ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Third Chamber)

12 November 2008 (*)

(Civil service – Technical assistant – Objection of lack of jurisdiction – Objection of inadmissibility – Lack of jurisdiction of the Tribunal)

In Case F‑88/07,

ACTION under Articles 236 EC and 152 EA,

Juan Luís Domínguez González, residing in Girona (Spain), initially represented by R. Nicolazzi Angelats, lawyer, and subsequently by R. Nicolazzi Angelats and M.-C. Oller Gil, lawyers,

applicant,

v

Commission of the European Communities, represented by J. Currall and L. Lozano Palacios, acting as Agents,

defendant,

THE TRIBUNAL (Third Chamber),

composed, in deliberation, of P. Mahoney (Rapporteur), President, I. Boruta and H. Tagaras, Judges,

Registrar: W. Hakenberg,

having regard to the written procedure and further to the hearing on 18 June 2008,

makes the following

Order

1        By application lodged at the Registry of the Tribunal on 29 August 2007, Mr Domínguez González seeks an order requiring the Commission of the European Communities to pay him EUR 20 310.68 in compensation for the damage allegedly caused to him by the termination of his contract of employment following his pre-employment medical examination.

 Legal context

2        Under the terms of Article 235 EC, ‘[t]he Court of Justice [of the European Communities] shall have jurisdiction in disputes relating to compensation for damage provided for in the second paragraph of Article 288 [EC]’.

3        Under the terms of Article 236 EC, ‘[t]he Court of Justice shall have jurisdiction in any dispute between the Community and its servants within the limits and under the conditions laid down in the Staff Regulations [of Officials of the European Communities] or the Conditions of Employment [of Other Servants of the European Communities]’.

4        Article 238 EC provides that ‘[t]he Court of Justice shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by or on behalf of the Community, whether that contract be governed by public or private law’.

5        Article 282 EC reads:

‘In each of the Member States, the Community shall enjoy the most extensive legal capacity accorded to legal persons under their laws; it may, in particular, acquire or dispose of movable and immovable property and may be a party to legal proceedings. To this end, the Community shall be represented by the Commission.’

6        The second paragraph of Article 288 EC reads:

‘In the case of non-contractual liability, the Community shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.’

7        Article 46 of the Statute of the Court of Justice reads:

‘Proceedings against the Communities in matters arising from non-contractual liability shall be barred after a period of five years from the occurrence of the event giving rise thereto. …’

8        Article 1 of the Annex to the Statute of the Court of Justice reads:

‘The European Union Civil Service Tribunal … shall exercise at first instance jurisdiction in disputes between the Communities and their servants referred to in Article 236 [EC] and Article 152 [EAEC], including disputes between all bodies or agencies and their servants in respect of which jurisdiction is conferred on the Court of Justice.’

9        Title VII, headed ‘Appeals’, of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’ or ‘the Staff Regulations of Officials’), contains Article 91, which provides that ‘[t]he Court of Justice … shall have jurisdiction in any dispute between the Communities and any person to whom these Staff Regulations apply ...’

10      Article 1 of the Conditions of Employment of Other Servants of the European Communities, in the version in force at the time the applicant’s contract was concluded (‘the old CEOS’ or ‘the CEOS’) reads:

‘The conditions of employment shall apply to servants engaged under contract by the Communities.

Such servants shall be:

–        temporary staff,

–        auxiliary staff,

–        local staff,

–        special advisers.’

11      Article 2 of the old CEOS provides:

‘For the purposes of these conditions of employment, “temporary staff” means:

(a)      staff engaged to fill a post which is included in the list of posts appended to the section of the budget relating to each institution and which the budgetary authorities have classified as temporary;

(b)      staff engaged to fill temporarily a permanent post included in the list of posts appended to the section of the budget relating to each institution;

(c)      staff, other than officials of the Communities, engaged to assist either a person holding an office provided for in the Treaties establishing the Communities, or the Treaty establishing a Single Council and a Single Commission of the European Communities, or the elected President of one of the institutions or organs of the Communities or the Elected Chairman of one of the political groups in the European Parliament;

(d)      staff engaged to fill temporarily a permanent post paid from research and investment appropriations and included in the list of posts appended to the budget relating to the institution concerned.’

12      Article 3 of the old CEOS reads:

‘For the purposes of these conditions of employment, “auxiliary staff” means:

(a)      staff engaged, within the limits set in Article 52, for the performance of full-time or part-time duties in an institution but not assigned to a post included in the list of posts appended to the section of the budget relating to that institution;

(b)      staff engaged, after the possibilities of temporary posting of officials within the institution have been examined, to replace certain persons who are unable for the time being to perform their duties …’

13      Article 4 of the old CEOS reads:

‘For the purposes of these conditions of employment, “local staff” means staff engaged according to local practice for manual or service duties, assigned to a post not included in the list of posts appended to the section of the budget relating to each institution and paid from the total appropriations for the purpose under that section of the budget. By way of exception, staff engaged to perform executive duties at the Press and Information Offices of the Commission of the European Communities may also be regarded as local staff.

In places of employment outside the Community countries, staff engaged for duties other than those mentioned in the first paragraph which, in the interests of the service, could not be assigned to an official or servant having another capacity within the meaning of Article 1, may be regarded as local staff.’

14      Article 5 of the old CEOS reads:

‘For the purposes of these conditions of employment, “special adviser” means a person who, by reason of his special qualifications and notwithstanding gainful employment in some other capacity, is engaged to assist one of the institutions of the Communities either regularly or for a specified period and who is paid from the total appropriations for the purpose under the section of the budget relating to the institution which he serves.’

15      Article 79 of the old CEOS provides:

‘Subject to the provisions of this Title, the conditions of employment of local staff, in particular:

(a)      the manner of their engagement and termination of their contract,

(b)      their leave, and

(c)      their remuneration,

shall be determined by each institution in accordance with current rules and practice in the place where they are to perform their duties.’

16      Article 81 of the old CEOS provides:

‘1.      Any dispute between the institution and a member of the local staff serving in a Member State shall be submitted to the competent court in accordance with the laws in force in the place where the servant performs his duties.

2.      Any dispute between the institution and a member of the local staff serving in a third country shall be submitted to an arbitration board under the conditions defined in the arbitration clause contained in the servant’s contract.’

17      Article 122 of the Conditions of Employment of Other Servants of the European Communities, in the version in force from 1 May 2004 (‘the new CEOS’ or ‘the CEOS’), provides that any dispute between the institution and a member of the local staff serving in a third country shall be submitted to an arbitration board on the conditions defined in the arbitration clause contained in the local staff member’s contract.

18      Under Articles 46, 73 and 83 of the old CEOS, the provisions of Articles 90 and 91 of the Staff Regulations apply by analogy to temporary staff, auxiliary staff and special advisers. Under Articles 46, 73, 117 and 124 of the new CEOS the provisions of Articles 90 and 91 of the Staff Regulations apply by analogy to temporary staff, auxiliary staff, contract staff and special advisers.

19      Article 3 of the General Rules Governing the Fixed-Term Employment Contracts of Technical Assistance Staff on Cooperation Projects for Third Countries to provide Humanitarian or Food Aid from the European Community (‘the General Rules Governing the Fixed-Term Employment Contracts of Technical Assistance Staff’) provides in particular:

‘The [c]ontracting party shall be recruited under a [c]ontract of employment for a fixed term in accordance with the provisions of the [c]ontract.

Considering the context in which the [t]echnical [a]ssistance mission is conducted, the large number of persons concerned in implementing and financing it and its objective – which is to be replaced in due course by the receiving country’s own resources –, the job of a [t]echnical [a]ssistant naturally involves a limited and unpredictable element as regards its development and duration, over which neither the employer nor the [c]ontracting party have control. The job of a [t]echnical assistant does not therefore fit into a normal employment context and can only be the subject of fixed-term, short-term contracts that cannot be extended by tacit renewal, such that the circumstances described above may warrant a succession of fixed-term [c]ontracts.

Where the [t]echnical [a]ssistance needs of a recipient country and the resources of Community aid allow several [c]ontracts to be concluded for different missions, irrespective of the timing and/or details of such succeeding contracts and the length of any breaks, the apparent continuity of the [c]ontracting party’s duties shall not have the effect of transforming the nature of the [c]ontract into a permanent [c]ontract. The [p]arties recognise that the special nature of a [t]echnical [a]ssistance [m]ission and its unpredictable nature also affect them in the same way and expressly accept its effects on the nature of their contractual commitments.

The [c]ontracting party acknowledges in particular that, this being so, the Commission as the employer is not in a postion to provide him with permanent employment and that that aspect has been reflected in the level of remuneration.

Acknowledgement of this constitutes an essential condition of the [c]ontract.

…’

20      Article 8 of the General Rules Governing the Fixed-Term Employment Contracts of Technical Assistance Staff reads:

‘The [c]ontracting party is required to undergo, with doctors approved by the Commission, any medical examinations and vaccinations which the latter may decide. …

This [c]ontract may be terminated by the Commission if the [c]ontracting party is declared incapable of carrying out the duties of [a technical assistant].’

 Facts

21      On 30 June 1999 the applicant signed a ‘contract of employment’ with the European Community, represented by the Commission, to work as a ‘technical assistant’ in the Republic of Congo and the Democratic Republic of Congo, in connection with the humanitarian aid organised by the European Community Humanitarian Aid Department (ECHO).

22      From 1 July 1998 to 30 June 1999 the applicant had worked in Colombia, also as a technical assistant.

23      Three annexes were attached to the applicant’s contract of employment concluded on 30 June 1999. Annex I contained the General Rules Governing the Fixed-Term Employment Contracts of Technical Assistance Staff, which were applicable under Clause 3 of the applicant’s contract of employment. Annex II laid down the financial conditions relating to the contract of employment, and Annex III set out the scope of the mission assigned to the applicant.

24      The first paragraph of clause 5 of the applicant’s contract of employment reads as follows:

‘This contract is governed by Belgian law, in particular the Law of 3 July 1978 concerning contracts of employment, including the provisions governing termination of the contract by one or other of the contracting parties.’

25      Clause 6 of the applicant’s contract of employment contained the following provision:

‘Any dispute between the contracting parties or any claim by one party against the other under this contract that has not been resolved by amicable agreement between the contracting parties shall be referred to the Brussels courts.’

26      Clause 7 of the applicant’s contract of employment stated in particular that Article 8 of the General Rules Governing the Fixed-Term Employment Contracts of Technical Assistance Staff was to be modified as follows:

‘Medical examination: If the result of the medical examination by doctors approved by the Commission is negative, the contract shall be terminated with immediate effect.’

27      Annex III to the applicant’s contract of employment defined the scope of the mission assigned to him. Under the terms of point 2.1 of that annex, the general duties entrusted to the applicant consisted of assessing the general humanitarian situation in the Republic of Congo and in the West of the Democratic Republic of Congo, assessing the needs of the populations, advising ECHO on planning its assistance, and providing appropriate follow up to the implementation of programmes financed by the Commission. The applicant’s specific duties comprised analysing, assessing needs and planning (point 2.2.1 of Annex III), selection, monitoring and coordination (point 2.2.2 of Annex III), and coordination with development activities (point 2.2.3 of Annex III).

28      On 1 July 1999 the applicant underwent a pre-employment medical examination by Doctor G, a doctor at the Medical Centre of Brussels.

29      On 9 July 1999 Doctor G submitted a report in which he expressed the strongest reservations about whether the applicant could carry out the planned mission in the Republic of Congo and the Democratic Republic of Congo, and described the applicant as ‘unsuited, in view of the nature, length and location’ of the mission.

30      The applicant arrived in Kinshasa (Democratic Republic of Congo) on 15 July 1999.

31      On 16 July 1999 the applicant received a telephone call from the Commission informing him, without any explanation, that he should return immediately to Brussels.

32      The applicant returned to Brussels on 20 July 1999. That same day the Commission informed him that his contract of employment had been terminated with immediate effect under Article 7 of that contract and Article 8 of the General Rules Governing the Fixed-Term Employment Contracts of Technical Assistance Staff.

33      On 5 August 1999 the applicant sent a letter to the Director of the Relex Joint Service for Community Aid to Non-member Countries, in which he explained that he had mistakenly sent Doctor G not his latest electrocardiogram, dated February 1999, which was perfectly normal, but an electrocardiogram dated January 1999, shortly after an incident of thrombosis he had suffered in December 1998. In view of that mistake, the applicant requested another medical examination, for which he undertook to undergo all the tests and assessments that were deemed appropriate.

34      By letter of 18 August 1999, the applicant sent a complaint to the European Ombudsman. The latter had various exchanges of correspondence with the Commission.

35      By a decision of 14 June 2001 in respect of the applicant’s complaint, the Ombudsman held that the fact that the person concerned had not undergone a medical examination before the conclusion of his contract of employment was an instance of maladministration. He also stated that since the Commission refused to make any payment to the applicant by way of compensation and refused to enter into negotiations with a view to a friendly resolution of the dispute, the only possible remedy was to refer the matter to a court of competent jurisdiction. According to the Ombudsman, only a court ‘would have the possibility to hear arguments concerning the relevant national law and to evaluate conflicting evidence on any disputed issues of fact’.

36      On 3 July 2001 the applicant sought the advice of a Belgian lawyer, Maître N. The latter advised him that an action based on the ‘contract of employment’ had to be brought within a year following the ending of the contractual relationship. In the present case, according to Maître N, any such action should have been brought no later than 19 July 2000.

37      On 29 July 2002 the applicant applied to the Committee on Petitions of the European Parliament.

38      On 9 October 2003 the Chair of the Committee on Petitions of the European Parliament sent a letter to the Ombudsman in which he stated that the members of the Committee on Petitions had expressed astonishment that, although the Ombudsman had decided that it was an instance of maladministration, the Commission had not followed the Ombudsman’s recommendation of seeking a friendly solution to the dispute, and the management of ECHO had not subsequently offered any work to the petitioner.

39      On 20 May 2005 the applicant applied to the European Court of Human Rights.

40      On 8 June 2005 the Registry of the European Court of Human Rights informed the applicant that it had jurisdiction only to hear actions brought against Member States of the Council of Europe, and not to hear actions brought against Community institutions. The Registry of the European Court of Human Rights therefore advised the applicant to apply to the Court of Justice.

41      Following a letter sent by the applicant to the Registry of the Court of Justice on an unspecified date, the latter, by letter of 21 December 2005, informed the applicant that the court specialising in matters concerning the Community civil service was the Civil Service Tribunal.

 Procedure and forms of order sought

42      By a separate document lodged at the Registry of the Tribunal on 28 January 2008, the Commission raised a plea of lack of jurisdiction and inadmissibility in respect of the action, pursuant to Article 78 of the Rules of Procedure.

43      The applicant submitted its observations on the plea of lack of jurisdiction and inadmissibility on 22 February 2008 by fax (the original being lodged on 25 February 2008).

44      Article 78 of the Rules of Procedure provides that a party applying to the Tribunal for a decision on admissibility or lack of competence not going to the substance of the case must make the application by a separate document. As soon as the application has been lodged, the President will prescribe a period within which the opposite party may lodge a document containing the form of order sought and the arguments of fact and law relied on. Unless the Tribunal otherwise decides, the remainder of the proceedings will be oral.

45      In the present case the Tribunal considered that it was appropriate to arrange a hearing on the application lodged by the Commission under Article 78 of the Rules of Procedure.

46      The applicant claims that the Tribunal should:

–        order the Commission to pay him the sum of EUR 20 310.68 in compensation for damages he incurred as a result of the termination of his contract of employment;

–        order the Commission to pay the costs.

47      The Commission contends that the Tribunal should:

–        dismiss the action as inadmissible;

–        order the applicant to pay his own costs.

 Law

 Arguments of the parties

48      The Commission contends, first of all, that the Tribunal does not have jurisdiction to hear this action. The employment relationship between the institution and the applicant is governed by Belgian law and comes under the jurisdiction of the Brussels courts. At the hearing the Commission produced a ruling of 23 April 2008, in M. v Commission, delivered by the 18th Chamber of the Labour Court, Brussels, in which the applicant, who had been engaged as a technical assistant to work in connection with humanitarian aid organised by ECHO, sought the conversion of her fixed-term contract as a technical assistant into a permanent contract. The Labour Court, Brussels, examined the substance of the case, as it had done in other cases brought by technical assistants, which showed that it considered itself to have jurisdiction in that type of case.

49      The Commission maintains, secondly, that the action is manifestly inadmissible because it was brought out of time, since the applicant’s contract of employment was terminated on 20 July 1999, whereas the present action was brought on 29 August 2007.

50      The applicant submits, first of all, that he should be regarded as a member of staff within the meaning of the CEOS. He argues that the clause whereby his contract is subject to Belgian law is an ‘unfair term’. He argues that his action should be treated as an action for damages founded on non-contractual liability, in so far as it seeks compensation in respect of damage caused by a Community institution. Therefore, the Tribunal has jurisdiction, without prejudice to the jurisdiction of the Brussels courts stipulated in his contract of employment signed on 30 June 1999.

51      Secondly, the applicant challenges the Commission’s argument that the action was brought out of time. He contends that the procedures he initiated with the Ombudsman, the European Parliament’s Committee on Petitions and the European Court of Human Rights suspended the limitation period. Consequently, his action founded on non-contractual liability was brought within the period of five years laid down in Article 46 of the Statute of the Court of Justice.

 Findings of the Tribunal

52      Although there are serious doubts in this case as to the admissibility of the action, the Tribunal cannot address that issue without, as a preliminary matter, first considering whether it has jurisdiction to do so.

53      In the present case, under clauses 5 and 6 of the contract of employment as a technical assistant concluded between the applicant and the Commission, that contract is subject to Belgian law and the jurisdiction of the Brussels courts.

54      However, since the jurisdiction of the Tribunal is a matter of public policy (Case T‑174/95 Svenska Journalistförbundet v Council [1998] ECR II‑2289, paragraph 80; order in Case T‑387/00 Comitato organizzatore del convegno internazionale v Commission [2002] ECR II‑3031, paragraph 36), that question cannot be settled merely on the basis of the terms of the contract of employment concerned.

55      The jurisdiction of the Tribunal must be assessed in the light of the legal provisions in force at the date on which it makes its ruling.

56      The jurisdiction of the Tribunal is provided for and defined in Article 236 EC and Article 152 EA, Article 1 of the Annex to the Statute of the Court of Justice, Article 91 of the Staff Regulations of Officials and Articles 46, 73, 117 and 124 of the new CEOS.

57      Under the terms of Article 236 EC, the Court of Justice has jurisdiction in any dispute between the Community and its servants within the limits and under the conditions laid down in the Staff Regulations or the Conditions of Employment.

58      Article 91 of the Staff Regulations, contained in Title VII of those regulations, provides that the Court of Justice has jurisdiction in any dispute between the Communities and any person to whom those regulations apply.

59      Under Articles 46, 73 and 83 of the old CEOS and Articles 46, 73 and 124 of the new CEOS, the provisions of Title VII of the Staff Regulations concerning appeals apply by analogy to staff other than local staff.

60      By virtue of Article 81(2) of the old CEOS and Article 122 of the new CEOS, any dispute between the institution and a member of the local staff serving in a third country is to be submitted to an arbitration board under the conditions defined in the arbitration clause contained in the staff member’s contract of employment.

61      It is common ground between the parties that the applicant does not have the status of an official or other person covered by the Staff Regulations and has not entered into a contract with the Commission to work as a member of staff.

62      At the hearing, however, the applicant claimed that the fact that his contract was subject to Belgian law was an ‘unfair term’ and that, notwithstanding that clause, he should be considered to be a member of staff for the purposes of the old CEOS.

63      Although the applicant was asked a question in the preparatory report for the hearing, he did not specify to which category of staff he should, in his opinion, have been recruited. However, it should be noted that the applicant’s claim can only relate to the status of staff other than local staff, since, given Article 81(2) of the old CEOS and Article 122 of the new CEOS, the status of local staff does not provide a basis either for the Tribunal to have jurisdiction or for seeking application of Community law.

64      According to settled case-law, it is not only persons enjoying the status of officials or of staff other than local staff who may bring an action before the Court to contest a decision adversely affecting them, but also persons claiming that status (Case 65/74 Porrini and Others [1975] ECR 319, paragraph 13; Case 116/78 Bellintani and Others v Commission [1979] ECR 1585, paragraph 6; Case 123/84 Klein v Commission [1985] ECR 1907, paragraph 10; and Case T‑74/98 Mammarella v Commission [1999] ECR-SC I‑A‑151 and II‑797, paragraph 16).

65      The effect of that case-law is that the Community courts have jurisdiction at least to examine as a preliminary issue whether they do in fact have jurisdiction as to the admissibility and merits of a case.

66      It is necessary, therefore, in order to exercise that latter jurisdiction, to determine whether the applicant could in fact be regarded as a person covered by the Staff Regulations or a member of staff other than local staff.

67      As stated above, the applicant claims the status of member of staff other than local staff, although he does not deny that he has not concluded a contract of employment with the Commission to work as a member of staff.

68      Since, by virtue of the provisions of Article 236 EC read in conjunction with Article 1 of the Annex to the Statute of the Court of Justice, Article 91 of the Staff Regulations of Officials, Articles 46, 73 and 83 of the old CEOS and Articles 46, 73 and 124 of the new CEOS, any misconception by the defendant institution as to the scope of Articles 1, 2, 3 and 5 of the old CEOS is liable to entail removing the dispute from the jurisdiction of the Community courts, whereas, as was noted above, the rules governing jurisdiction are a matter of public policy, it is appropriate for the Tribunal to ascertain, even of its own motion, whether or not, in the instant case, the Commission misconceived the scope of those articles.

69      In that regard it should be noted first of all that, except for very specific and duly substantiated situations, employment relationships between the European Communities and members of their staff fall within the Staff Regulations and the CEOS. The Court of Justice has circumscribed with binding conditions the power to engage contract staff outside the scope of the CEOS (see, to that effect, Klein v Commission and Case 43/84 Maag v Commission [1985] ECR 2581).

70      On the other hand, as explained in the case-law, the Staff Regulations and the CEOS do not constitute an exhaustive body of rules prohibiting the employment of persons otherwise than within the framework of those rules. On the contrary, the Commission’s powers under Articles 282 EC and 238 EC to conclude contracts governed by the law of a Member State extends to contracts of employment or contracts for the provision of services. In those circumstances, recruitment of a person under a contract that makes express reference to the law of a particular State may be regarded as unlawful only where the defendant institution has laid down the conditions of employment of the person concerned, not in order to meet the needs of the service, but in order to avoid application of the provisions of the Staff Regulations or the CEOS, thereby committing an abuse of process (see Mammarella v Commission, paragraphs 39 and 40, and case-law cited therein).

71      It is therefore necessary to determine first of all whether or not the employment relationship between the applicant and the Commission was such that, on the date of signature of his contract, it fell within one of the three categories of contract subject to Community law in respect of which jurisdiction is conferred on the Community courts by the CEOS (see, to that effect, Maag v Commission), that is to say, first, contracts for members of the temporary staff, secondly, contracts for members of the auxiliary staff, or, thirdly, contracts for special advisers.

72      In this connection, account is to be taken of the fact that the provisions of the Staff Regulations employ precise wording, as do those of the CEOS, and there is no reason to extend their scope by analogy to situations to which they do not expressly refer (Klein v Commission, paragraph 23, and the case-law cited therein).

73      First, the status of member of the temporary staff is characterised by the fact that such staff occupy a permanent post in the service of the Community administration (Maag v Commission, paragraph 17, and the case-law cited therein).

74      In contrast, as Article 3 of the General Rules Governing the Fixed-Term Employment Contracts of Technical Assistance Staff expressly states, humanitarian aid missions to third countries involve a limited and unpredictable element as regards their development and duration.

75      The Commission was therefore entitled to consider that a contract as a temporary staff member was not an appropriate legal arrangement for engaging staff to whom it entrusted limited and unpredictable humanitarian aid missions to third countries.

76      Secondly, under Article 52 of the old CEOS, the actual period of employment of auxiliary staff, including any period under renewal, was not to exceed, if the staff member was engaged to replace an official or a member of temporary staff who was unable for the time being to perform his duties, the period of assignment for that purpose, or a period of one year in all other cases.

77      According to case-law, a contract of employment as a member of the auxiliary staff is characterised by its precariousness in time, since it may be used only to effect a temporary replacement or to allow the performance of administrative duties which are of a transitory nature, which fill an urgent need, or which are not clearly defined. Since the purpose of the CEOS is to arrange for occasional staff to perform duties which – by their nature or by virtue of the absence of a holder of the post – are precarious, it is clear that the CEOS cannot be wrongfully used to assign such staff to permanent duties for long periods (Maag v Commission, paragraphs 18 and 19, and case-law cited therein).

78      On the one hand, the applicant was not engaged to replace an official or a member of temporary staff who was unable for the time being to perform his duties and, on the other hand, although some technical assistance missions to third countries may be of a transitory nature or fill an urgent need, it cannot be excluded that other missions will require assistance lasting longer than one year.

79      The Commission was therefore entitled to consider that a contract as an auxiliary staff member was not an appropriate legal arrangement for engaging staff to whom it entrusted certain humanitarian aid missions.

80      Thirdly, Title V of the old CEOS provides for the recruitment of special advisers.

81      It is apparent from the very title ‘special adviser’ that the person concerned must provide advice.

82      Yet the description of the applicant’s post given in Annex III to his contract of employment makes clear that the duties entrusted to the applicant were more general and went further than providing advice. Indeed, some of the duties undertaken by the applicant concerned observation, coordination and planning.

83      Moreover, Article 5 of the old CEOS states that a special adviser is recruited ‘by reason of his special qualifications and notwithstanding gainful employment in some other capacity’.

84      The documents before the Tribunal do not show that the applicant possessed exceptional qualifications.

85      The Commission cannot be criticised therefore for regarding the legal arrangement applying to special advisers as being inappropriate for engaging the applicant for a humanitarian aid mission.

86      Thus, the old CEOS did not offer, among the three types of contracts for staff other than local staff, any that was sufficiently flexible to satisfy the Commission’s requirements for carrying out certain humanitarian aid missions to third countries.

87      However, in order to ensure that the Commission did not commit an abuse of process, it is not sufficient to establish that it was entitled to regard the various types of contract provided for in the CEOS and subject to the jurisdiction of the Community courts as not being suited to the situation of staff to whom it wished to entrust certain humanitarian aid missions, it is also necessary to ascertain whether the conditions of employment offered to the applicant met the minimum social requirements applying in any State governed by the rule of law.

88      In that regard, it is clear in particular from the financial conditions relating to the contract of employment that the applicant’s level of remuneration may be regarded as relatively high, since, if the contract had been performed he would have received a basic monthly salary of EUR 5 442.98. Article 3 of the General Rules Governing the Fixed-Term Employment Contracts of Technical Assistance Staff expressly states, moreover, that given the nature of a technical assistance mission, the Commission is not in a postion to provide the other contracting party with permanent employment, and that this aspect is reflected in the level of remuneration. If the applicant had performed his contract, he would also have received a head of family allowance, a dependent child allowance, an allowance to take into account living conditions and a flat-rate temporary housing allowance. He would also have received sickness and pension insurance cover. He would have been able to assert his rights before a national court, since his contract contained a clause conferring jurisdiction on the Brussels courts. It is necessary to point out in this regard that, as the Commission stated at the hearing, where such a clause exists, the Brussels Labour Court is indeed prepared to exercise its jurisdiction in cases brought by technical assistants concerning performance of their contract of employment. Lastly, the applicant’s contract of employment and the General Rules Governing the Fixed-Term Employment Contracts of Technical Assistance Staff required the applicant to undergo a pre-employment medical examination, a safeguard which was all the more essential since he was required to conduct his mission in a third country.

89      In these circumstances, the applicant’s contract of employment, by reason of its being subject to Belgian law and of its conferring jurisdiction on the Brussels courts, cannot be regarded as having been concluded in order to avoid the provisions of the Staff Regulations or the CEOS rather than to meet the needs of the service. Recruitment of the applicant under a contract of employment subject to Belgian law cannot therefore be held to be an abuse of process resulting in a breach of the rules of jurisdiction.

90      Accordingly, it must be concluded from all the foregoing that, having regard to the terms of Article 236 EC, Article 1 of the Annex to the Statute of the Court of Justice, Article 91 of the Staff Regulations of Officials, Articles 46, 73 and 83 of the old CEOS and Articles 46, 73 and 124 of the new CEOS, the Tribunal lacks jurisdiction to hear this action.

 Costs

91      Under Article 122 of the Rules of Procedure, the provisions of Title 2, Chapter 8, of those Rules on costs apply only to cases brought before the Tribunal from the date on which those Rules entered into force, namely 1 November 2007. The relevant provisions of the Rules of Procedure of the Court of First Instance of the European Communities on the subject continue to apply mutatis mutandis to cases pending before the Tribunal before that date.

92      Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under Article 88 of those Rules, in proceedings between the Communities and their servants the institutions are to bear their own costs.

93      Since, according to case-law, it is not only persons who have the status of officials or of staff other than local staff who may bring an action before the Community courts to contest a decision adversely affecting them, but also persons claiming that status, Article 88 of the Rules of Procedure of the Court of First Instance must also apply to such persons.

94      Since the applicant has been unsuccessful, each party must be ordered to bear its own costs.

On those grounds,

THE TRIBUNAL (Third Chamber)

hereby orders:

1.      The Tribunal does not have jurisdiction to hear this action.

2.      Each party shall bear its own costs.

Luxembourg, 12 November 2008.

W. Hakenberg

 

       P. Mahoney

Registrar

 

      President

The text of the present decision and those of the decisions of the Community Courts cited in it which have not yet been published in the European Court Reports are available on the internet site of the Court of Justice: www.curia.europa.eu


* Language of the case: Spanish.