Court of Justice of the European Communities (including Court of First Instance Decisions)

Legal background

Community legislation

For the purposes of these Staff Regulations, official of the Communities means any person who has been appointed, as provided for in these Staff Regulations, to an established post on the staff of one of the institutions of the Communities by an instrument issued by the appointing authority of that institution.

1. There shall be set up:

(a) within each institution:

- a Staff Committee, which may be organised in sections for the different places of employment;

- one or more Joint Committees, as appropriate for the number of officials at the places of employment;

- one or more Disciplinary Boards, as appropriate for the number of officials at the places of employment;

- a Reports Committee, if required;

(b) for the Communities:

- an Invalidity Committee;

which shall perform the functions assigned to them by these Staff Regulations.

1a. For the application of certain provisions of these Staff Regulations, a common Joint Committee may be established for two or more institutions.

2. The composition and procedure of the bodies shall be determined by each institution in accordance with the provisions of Annex II.

The members of these bodies shall be listed in the Monthly Staff Bulletin of the Communities.

3. The Staff Committee shall represent the interests of the staff vis-à-vis their institution and maintain continuous contact between the institution and the staff. It shall contribute to the smooth running of the service by providing a channel for the expression of opinion by the staff.

It shall bring to the notice of the competent bodies of the institution any difficulty having general implications concerning the interpretation and application of these Staff Regulations. It may be consulted on any difficulty of this kind.

The Committee shall submit to the competent bodies of the institution suggestions concerning the organisation and operation of the service and proposals for the improvement of staff working conditions or general living conditions.

The Committee shall participate in the management and supervision of social welfare bodies set up by the institution in the interests of its staff. It may, with the consent of the institution, set up such welfare services.

4. In addition to the functions assigned to them by these Staff Regulations, the Joint Committee or Committees may be consulted by the appointing authority or by the Staff Committee on questions of a general nature which either of the latter thinks fit to submit.

5. The opinion of the Reports Committee shall be sought:

(a) on action following completion of probationary service;

(b) on dismissals for incompetence; and

(c) on the selection of staff to be affected by any reduction in the establishment.

The Committee shall ensure that the periodic reports on staff members are made in a uniform manner within any one institution.

The Staff Committee shall comprise the members thereof, together with their alternates, if any, whose term of office shall be three years. The institution may, however, decide to fix a shorter term of office, which may not be less than one year. Every official of the institution shall be entitled to vote and stand for election.

The conditions for election to the Staff Committee if it is not organised in local sections, or to the local section, if the Staff Committee is organised in local sections, shall be laid down by the general meeting of officials of the institution in service at the relevant place of employment. Election shall be by secret ballot.

If the Staff Committee is organised in local sections, the manner in which the members of the Central Committee are appointed for each place of employment shall be laid down by the general meeting of officials of the institution in service at the relevant place of employment. Only members of the local section concerned may be appointed members of the Central Committee.

Membership of the Staff Committee if it is not organised in local sections, or of the local section if the Staff Committee is organised in local sections, shall be such as to ensure the representation of all categories of officials and of all services provided for in Article 5 of the Staff Regulations and also of the servants referred to in the first paragraph of Article 7 of the Conditions of Employment of other servants of the Communities. The Central Committee of a Staff Committee organised in local sections shall be validly constituted upon appointment of a majority of its members.

Elections to the Staff Committee if it is not organised in local sections, or to the local section if the Staff Committee is organised in local sections, shall be valid only if two thirds of the officials entitled to vote take part. However, if this proportion is not attained, the second vote shall be valid if the majority of those entitled take part.

The duties undertaken by members of the Staff Committee and by officials appointed by the Committee to organs set up under the Staff Regulations or by the institution shall be deemed to be part of their normal service in their institution. The fact of performing such duties shall in no way be prejudicial to the person concerned.

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.

A servant whose contract is for more than one year or for an indefinite period shall be entitled to vote in elections and stand for election to the Staff Committee provided for in Article 9 of the Staff Regulations.

A servant whose contract is for less than one year shall also be entitled to vote if he has been employed for at least six months.

The Joint Committee provided for in Article 9 of the Staff Regulations may be consulted by the institution or by the Staff Committee on questions of a general nature relating to servants to whom Article 1 applies.

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.

As regards social security, the institution shall be responsible for the employer's share of the social security contributions under current regulations in the place where the servant is to perform his duties.

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.

These rules determine the special conditions of employment of local staff of the Commission of the European Communities serving in Austria who have contracts for a definite or indefinite period or are regarded as such under Austrian legislation.

The legal provisions of the present rules are to apply without prejudice to more favourable mandatory Austrian legislation.

National legislation

In Austria the term Arbeitsverfassungsrecht (labour relations law) is understood to mean that part of employment law which concerns the organisation, tasks, powers and mutual relations (disputes and collective agreements) of the representation of workers in a sector or an establishment, on the one hand, and the representation of the interests of employers in a sector or of individual employers, on the other, and collective legal regulation by other employment law bodies ... .

The main source of labour relations law is the [Bundesgesetz betreffend die Arbeitsverfassung (Arbeitsverfassungsgesetz) (Federal law on labour relations, the ArbVG) of 13 December 1973]. Its provisions govern three core areas of labour relations, that is to say, collective legal regulation (collective sources of law) in sectors and establishments (Part I of the ArbVG), labour relations in establishments (Betriebsverfassung) (Part II of the ArbVG and the rules on labour relations at European level in Part V) and the organisation, competence and procedure of those authorities and offices which hear disputes over laws and rules in labour relations law in establishments and deal with other administrative matters (Part III of the ArbVG ...).

The part of the ArbVG governing labour relations in establishments includes all the provisions which give the staff of an establishment (undertaking, group) a legal organisation, define duties and grant powers mainly as against the proprietor of the establishment. Those provisions are based on the notion that workers should participate in the affairs of the establishment. In this connection the provisions on labour relations in establishments in the ArbVG presume the existence of two groups of persons with opposing interests (proprietor of the establishment and staff) and allow the staff various powers ... .

...

Part II of the ArbVG (labour relations in establishments) applies pursuant to Paragraph 33(1) to establishments of all types, establishment being defined in Paragraph 34(1) as any place of work which forms an organisational unit within which a natural or legal person or a community of persons permanently pursues the achievement of specific results of labour by technical or non-material means, whether with a view to profit or not.

The territoriality principle determines the scope of the rules in the ArbVG on labour relations in establishments: every place of work located in Austria is therefore covered by the ArbVG and is therefore - where the other conditions are met - subject to the obligation to set up a works council ... .

According to Paragraph 33(2)(2) of the ArbVG, however, authorities, offices and other administrative entities of the Federation, the Länder, associations of municipalities, and municipalities do not fall within the provisions of Part II of that law. Instead, the laws on staff representation of the Federation or the individual Länder apply to the institutions which are exempted by that provision. ...

Under Paragraph 40(1) of the ArbVG, in every establishment in which at least five (within the meaning of Paragraph 49(1) of the ArbVG) workers entitled to vote are permanently employed, the workforce bodies required by the other provisions of Part II of the ArbVG are to be set up. The most important such body is the works council (Betriebsrat) (Paragraph 50 et seq. of the ArbVG).

The powers of the workforce to be exercised by the works council are laid down in the third chapter of Part II of the ArbVG (Paragraph 89 et seq. of the ArbVG). These include the rights laid down in sections 1 and 2 of the third chapter, such as the right to monitor compliance with the legal provisions concerning the employees of the establishment (Paragraph 89 of the ArbVG), the right to ask for appropriate measures to be taken and defects to be remedied in all matters concerning the interests of the employees (Paragraph 90 of the ArbVG), the right to general information from the proprietor of the establishment (Paragraph 91 of the ArbVG) ... . Paragraphs 96 (mandatory co-decision) and Paragraph 96a (necessary co-decision) of the ArbVG lay down a series of measures which require the approval of the works council in order to take effect in law; for measures under paragraph 96a of the ArbVG, the approval of the works council can be replaced, under subparagraph 2 thereof, by decisions of an arbitration body. Paragraph 97(1)(1) to (6a) in conjunction with Paragraph 97(2) of the ArbVG regulates cases of enforceable co-decision in which, in the absence of a works agreement, the measure sought may, following an application to the arbitration body, be replaced by a decision of that body, whereas in the cases of optional co-decision listed in Paragraph 97(1)(7) to (23a) and (25) of the ArbVG the measure sought cannot be adopted in the absence of a works agreement ... .

In section 3 of the third chapter of Part II of the ArbVG, rules are laid down on the right of participation of the works council in staff matters, namely rights of information (Paragraph 98 of the ArbVG) and rights of participation in the engagement of employees (Paragraph 99 of the ArbVG), the determination of remuneration in individual cases (Paragraph 100 of the ArbVG), transfers (Paragraph 101 of the ArbVG), the imposition of disciplinary measures (Paragraph 102 of the ArbVG), the allocation of works housing (Paragraph 103 of the ArbVG), promotions (Paragraph 104 of the ArbVG) and the termination by agreement of employment relationships (Paragraph 104a of the ArbVG). Provisions in this section to be emphasised are above all Paragraphs 105 and 106 of the ArbVG, which, in connection with termination of contracts and dismissal of employees, give the works council ... the possibility under certain conditions of bringing legal proceedings against terminations of contracts (dismissals) on the ground of reprehensible reasons (Paragraph 105(3)(1) of the ArbVG) or because they are socially unjustified (Paragraph 105(3)(2) of the ArbVG). ...

...

Paragraph 53 of the [Bundesgesetz über die Arbeits- und Sozialgerichtsarbeit (Arbeits- und Sozialgerichtsgesetz) (Federal law on the work of labour and social courts, the ASGG) of 7 March 1985] grants the works council capacity to be a party to proceedings. This legal provision is to be understood in the sense of a confirmation of the general capacity to be a party to proceedings of the works council in matters relating to employment law ... . Paragraph 54(1) of the ASGG gives the works council the right, within its sphere of operation, to sue or be sued in proceedings to establish the existence or non-existence of rights or legal relationships affecting at least three employees of the establishment or undertaking.

The main proceedings and the questions referred for a preliminary ruling

1. Is Article 79 of the Conditions of Employment (Article 3 of Council Regulation (EEC, Euratom, ECSC) No 259/68 of 29 February 1968), under which the conditions of employment of local staff, in particular (a) the details of their engagement and termination of their contract, (b) their leave, and (c) their remuneration, are to be determined by each institution in accordance with current rules and practice in the place where they are to perform their duties, to be understood as a reference to the relevant national law on employment, which, in the case of Austria, also requires the application of the law on labour relations in establishments laid down in Part II of the ArbVG?

2. Are the provisions of Article 9 of the Staff Regulations (Article 2 of Council Regulation (EEC, Euratom, ECSC) No 259/68 of 29 February 1968) and those of Annex II to the Staff Regulations concerning the Staff Committee, which is also responasible for representing the local staff of the Communities, to be interpreted as laying down exhaustive rules on collective employment law and the rights of co-decision of local staff and thus as precluding the application of the rules on labour relations in establishments laid down in the ArbVG to local staff serving in the representation of the Commission of the European Communities in Vienna?

The questions referred for a preliminary ruling

Costs