Court of Justice 01-07-1982 ECLI:EU:C:1982:253

Admissibility

The Commission observes in the first place that since the claim is founded on Article 91 of the Staff Regulations which relates only to officials of the Community it must be declared inadmissible. In this case, there is a contractual relationship freely entered into by the parties, who acknowledge the applicability of Italian law to the contract and also recognize the jurisdiction of the Court of Justice pursuant to a specific clause in the contract which refers to Article 153 of the EAEC Treaty and Article 181 of the EEC Treaty. It follows that the application bears no direct or indirect relation to Article 91 of the Staff Regulations. Moreover, since it is acknowledged that Italian law is applicable to this case the result is that no reference may in any event be made to Community law. Furthermore, the applicant does not seek recognition of her status as an established employee of the European Communities — if she did, the Court would in fact have jurisdiction to adjudicate — but, on the contrary, she claims that pursuant to Italian law her independent work relationship should be regarded as an employment relationship, with all the attendant economic consequences provided for by that law.

In her reply, the applicant counters the Commission's preliminary objections with the following submissions:

• The jurisdiction of the Court is incontestable since it arises from a specific clause in the contract;

• Article 91 of the Staff Regulations is applicable by virtue of Article 46 of the Conditions of Employment of Other Servants pursuant to which Title VII (which includes Article 91) concerning appeals applies by analogy. Those conditions apply to the “members of the auxiliary staff” defined by Article 3 as follows: “'Auxiliary staff means: (a) staff engaged... for the performance of fulltime 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.”

In the present case, the applicant asserts that she was recruited on the understanding that she was to be an employee and not an independent worker. That claim, even if contested, is sufficient not only to establish the jurisdiction of the Court but also to render the procedure under Article 91 of the Staff Regulations applicable, as appears from the judgment of the Court of 11 March 1975 in Case65/74 Porrini & Others v European Atomic Energy Community [1975] ECR 319.

The applicant also denies that this case has nothing to do with Community law. The subject-matter of the case is a relationship which, regardless of its nature, certainly existed with a Community institution and must be examined before the Community Court, which does not apply national law but only Community law. Community institutions may certainly enter into commitments provided for and sanctioned in the various national laws, but they do so only in accordance with rules and measures forming part of Community law.

Where, by means of a measure adopted by one of the institutions, Community law provides that a particular relationship is to be governed by the laws of a Member State, that relationship continues also to be a relationship within and governed by Community law. It follows that the Court is called upon to apply a Community measure within the Community legal order and need take cognizance of Italian law only in order to classify that relationship; once that classification has been made, the Court can decide upon the repercussions thereof on the Community institution in question. Thus, the applicant claims entitlement to a pension not on the basis of Italian law but on the basis of Community law; Italian law serves only to define the relationship as an employment relationship.

In its rejoinder, the Commission objects that the applicant's claim that she should be recognized as a member of the auxiliary staff is inadmissible since it cannot be regarded as anything other than a new claim, submitted out of time and no such claim was contained in the application or in the statement submitted through official channels.

The Commission also denies that that claim is well founded in so far as Article 52 of the Conditions of Employment of Other Servants provides that the actual duration of the contract of a member of the auxiliary staff may not exceed one year, which appears to contradict the claim that in fact the relationship was one of indefinite duration.

The Commission considers that in this case the Court, acting pursuant to a clause conferring jurisdiction, is called upon, by virtue of a provision contained in the same contract, to settle the dispute by applying Italian law as well (as the Court already had occasion to do in a similar case — cf. judgment of 7 December 1976 in Case 23/76 Pellegrini [1976] ECR 1807). In any case, the Court has on several occasions recognized that the Treaties and secondary Community legislation are not the only sources of Community law and that it is appropriate to use national law in order to fill any lacunae in Community law (judgment of the Court of 12 June 1980 in Case 138/79 Express Dairy Food Limited v Intervention Board for Agricultural Produce [1980] ECR 1887). In fact, the applicant seeks to avail herself of both Italian law and Community law so as to obtain from one what she thinks may be difficult to obtain from the other.

Substance of the case

As regards the substance of the case, the applicant claims that under Italian law there is no doubt that teaching in private schools of any type gives rise to an employment relationship of indefinite duration. In support of her assertion, she cites a number of judgments of Italian courts according to which, by virtue of Articles 1 and 2 of Italian Law No 230 of 18 April 1962, a contract which is renewed, together with the additional responsibilities deriving therefrom, for several consecutive years and for periods exceeding the duration of each teaching course is regarded as a contract of indefinite duration.

As a result of the nature of her contract, the applicant is entitled to all the conditions enjoyed by teachers in the private sector, namely:

• remuneration during the summer months when the school is closed;

• the payment of insurance and social-security contributions:

• the cost-of-living allowance (“contingenza”);

• periodical seniority increases;

• the 13th monthly payment;

• the retirement pension upon termination of employment;

• all other economic and legal benefits provided for in the national collective labour agreement of 11 September 1978 for staff in schools managed by institutions, private individuals or legal persons.

The nomen juris“prestazioni d'opera” [provision of services] contained in the contract is of no importance since the terminology used by the parties cannot change the essential nature of the relationship.

The Commission considers that, although Italian law is applicable to the case, neither the legislation relied upon nor the case-law referring thereto is relevant. The judgments cited all concern private schools and, because of the utilitarian criteria according to which such schools are managed, they have an inevitable tendency to exploit the teaching staff who, because of their particular situation, are inadequately protected. This inevitably leads the courts to give decisions intended in all cases to protect the party who is regarded as economically weak. That case-law is not applicable to the Commission of the European Communities, a supranational institution, which is not to be regarded in the same way as a private entrepreneur, since it is non-profit-making. On the contrary, the academic activity provided by it is of public utility in so far as its sole objective is to improve the technical knowledge of a number of people; in that respect, the Commission is comparable to a public administration and not to a private school. In these circumstances, the case-law of the Italian administrative courts, which is more restrictive than that of the ordinary courts, becomes relevant.

In the second place, the Commission observes that Mrs Pace's work, although extending over a long period, is nevertheless the provision of a service of a special and occasional nature, so that it may be included within the cases referred o in Article 51 of Decree No 1252 of the President of the Republic of 7 October 1963 which, in its list of categories of staff recruited on a temporary basis in whose employment contract an expiry date may be inserted, expressly mentions staff responsible for vocational training courses of short duration. In fact, the activities carried out by Mrs Pace were not regular but occasional in character and in any case the monthly average number of hours of classes was variable and never attained the minimum of 72 hours provided for in Article 24 of the collective agreement referred to. Her work was carried out for fixed periods only in order to satisfy the organizational requirements of the school and Mrs Pace was paid monthly solely because she so requested. A close examination of the relationship at issue discloses that it can only be regarded as atypical and in any event as a case of a derogation from the general rules contained in a written instrument. In fact, the case-law cited by the applicant refers expressly to the intention of the parties to derogate from the rules which must, in order to be valid, be embodied in a written instrument.

The Commission does not, moreover, understand on what grounds it should have engaged in a pretence from which ultimately no advantage would accrue to it, in view of the fact that the total remuneration received in respect of each year by the applicant exceeds by far the remuneration provided for in the collective agreement even though the latter includes public holidays, the 13th month and other benefits not granted by the Commission. In fact, under the collective agreement, work of 18 hours a week — a number of hours which the applicant never worked — gives the right to annual remuneration of LIT 2 730 000 (plus the cost-of-living allowance), whereas for the last academic year Mrs Pace, under her individual contract, received total remuneration of LIT 9 944 000. Implementation of the collective agreement in the applicant's case would not therefore have given her any pecuniary advantage.

As regards the claim for a pension, the Commission considers that, even if it is acknowledged — which is not the case — that an employment relationship exists, with the concomitant obligation to pay contributions, it should be noted that some of those contributions are in any event time-barred and, as regards the balance, any contributions paid would represent only a minimal proportion in comparison with the amount needed, under the Italian system, for entitlement to the minimum pension. Consequently it is very difficult to see how the applicant has suffered any real damage; in any case, the damage involved is very limited. All the foregoing is applicable if the applicant's claims are to that effect, since the claim to a “Community pension”, is in any case without foundation.

In her reply, the applicant disputes the Commission's view that Italian legislation on teaching contracts is applicable exclusively to private schools. In that respect, she cites judgments of the combined divisions of the Italian Corte di Cassazione according to which, in the case of schools managed by public bodies, the public nature of the body does not necessarily mean that the employment relationship of the teachers is one governed by public law. The relationship is governed by public law only if the operation of the school falls within the institutional objects of the body in question, but it is not governed by public law if the school is managed on a jure privatorum basis (cj. judgments No 1321 of 23 June 1965, No 933 of 7 April 1966, No 847 of 11 April 1964, No 2424 of 10 October 1966 and No 2065 of 21 June 1968).

The applicant also contests the method adopted by the Commission to calculate the number of hours worked per week or month, since it apportioned the teaching hours actually worked among all the months of the year, disregarding all periods during which the school was closed or the applicant was sick or on maternity leave. She therefore maintains, on the basis of various calculations, that she worked a complete or nearly complete teaching timetable and notes that all the teachers in the Centre, with the sole exception of three language teachers, are officials in the permanent employ of the Community. The applicant further observes that Italian case-law has held that contractually agreed limitations on the duration of an employment relationship are lawful only within the scope of Article 2097 of the Civil Code, which was repealed by Law No 230 of 1962.

In reply to the Commission's argument to the effect that the monthly salary received was greater than the minimum salary prescribed by the collective agreement, she states that the collective agreement provides that, regardless of the level of monthly remuneration, the teacher is entitled to that remuneration even during holiday periods, to an extra monthly payment and to the “contingenza” allowance (or cost-of-living allowance). All these advantages accrue to the applicant under Italian law and they cannot be offset by the monthly salary, even if the latter is significantly greater than the compulsory minimum under the collective agreement.

As regards the conditions on retirement, the applicant states that the Commission is mistaken in its view that she did not claim “recognition of the status of established employee” since that recognition is a precondition for the benefit applied for. As far as the problem of the pension is concerned, it is true that since the Commission has never paid social-security contributions for Mrs Pace, some of those contributions are time-barred as regards the right of the Istituto Nazionale della Previdenza Sociale [National Social Welfare Institution] to demand them. However, the applicant maintains that, under Italian law, if an employer fails to insure its employee, the latter is entitled to compensation for damage where, as in the present case, nonpayment of the contributions entails total or partial loss of entitlement to the insurance benefit. As regards Community law, Article 70 (1) of the Conditions of Employment of Other Servants provides that auxiliary staff must be affiliated to a compulsory social-security scheme. Since the applicant has asked that the Commission be ordered to pay her a pension, that means in practice that the defendant must ensure that Mrs Pace is affiliated to the Community social-security scheme, account being taken of the fact that the position regarding Mrs Pace's contributions before 1971 can no longer be regularized as far as the Istituto Nazionale della Previdenza Sociale is concerned, by reason of prescription. The grant of a Community pension therefore conforms perfectly both to Community law and to Italian law, which provides for compensation, even in a specific form.

Finally, the applicant complains that on 9 September 1981 she was publicly invited to leave the school and that, following her refusal, she was removed manu militari. She states that it was only after being so removed that her remuneration for the academic year 1980/81 was paid to her.

In its rejoinder, the Commission also disputes the relevance of the case-law relied upon by the applicant in her reply and observes in that respect that the question is not one of deciding whether the employment relationship in question is governed by public or private law and that in any event even if the teaching did not fall within the framework öf the institutional functions of the EAEC the fact would nevertheless remain that the EAEC is not acting as a private person of any kind. When the Commission states that it is not concerned with the pursuit of profit, it means that by operating the Ispra vocational training school it is not functioning as a private teaching establishment, which is clear in particular from the fact that the technical teaching provided in that school is totally free of charge and that accordingly the principles embodied in the case-law applicable to that field are not valid in this case.

As regards the teaching hours actually worked by the applicant, the Commission emphasizes that it is evident from the school timetable that the hours worked by Mrs Pace each week never attained the 18 hours provided for in the collective agreement and that in any case those hours are of a purely notional value, since although when Mrs Pace was ill or unable to be present the timetable was not respected, it served as the basis for her remuneration.

There is no doubt, according to the Commission, that in this case the parties intended to create a relationship limited in time, as is attested by the contracts for the various academic years. The renewal of those contracts on several occasions is accounted for by the fact that the activity carried out by the applicant at the vocational training school was of an extremely peripheral nature and could not therefore be dealt with from the legal point of view otherwise than by the conclusion of a contract for a specific period providing for work on a independent basis. The fact that other teachers in the school are officials of the Commission is of no relevance to this case, since they work there fulltime.

The Commission disputes that Article 70 (1) of the Conditions of Employment of Other Servants enables the applicant to be covered by the Community's social-security system since those conditions provide that auxiliary staff must be affiliated to a national social-security scheme. It finally points out that Mrs Pace's criticism regarding the episode of her removal from the Ispra school is not relevant to the case.