ORDER OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

12 November 2008

Case F-88/07

Juan Luís Domínguez González

v

Commission of the European Communities

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

Application: brought under Articles 236 EC and 152 EA, in which Mr Domínguez González seeks an order requiring the Commission 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.

Held: The Tribunal does not have jurisdiction to hear this action. Each party is to bear its own costs.

Summary

1.      Officials – Actions – Right to bring an action – Persons claiming the status of officials or of staff other than local staff

(Staff Regulations, Arts 90 and 91)

2.      Officials – Staff Regulations – Conditions of Employment of Other Servants – Scope

(Arts 238 EC and 282 EC; Conditions of Employment of Other Servants, Arts 1, 2, 3 and 5)

1.      Not only persons enjoying the status of officials or of staff other than local staff may bring an action before the Court to contest a decision adversely affecting them, but also persons claiming that status, since 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.

(see paras 64-65)

See:

65/74 Porrini and Others [1975] ECR 319, para. 13; 116/78 Bellintani and Others v Commission [1979] ECR 1585, para. 6; 123/84 Klein v Commission [1985] ECR 1907, para. 10

T‑74/98 Mammarella v Commission [1999] ECR-SC I‑A‑151 and II‑797, para. 16

2.      The Staff Regulations and the Conditions of Employment of Other Servants 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 Community’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 Conditions of Employment of Other Servants, thereby committing an abuse of process.

In order to ensure that the institution did not commit an abuse of process, it is not sufficient to establish that it is entitled to regard the various types of contract provided for in the Conditions of Employment of Other Servants and subject to the jurisdiction of the Community courts as not being suited to the situation of staff to whom it wishes to entrust certain missions, it is also necessary to ascertain whether the conditions of employment offered to those staff meet the minimum social requirements applying in any State governed by the rule of law.

(see paras 70, 87)

See:

Mammarella v Commission, paras 39 and 40, and the case-law cited therein