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Cite as: [2003] EUECJ C-165/1, [2003] EUECJ C-165/01

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JUDGMENT OF THE COURT

10 July 2003 (1)

(Staff Regulations of Officials of the European Communities - Conditions of Employment of Other Servants - Local staff - Representation of the Commission in Austria - Applicability of national legislation concerning the representation of workers and defence of their interests)

In Case C-165/01,

REFERENCE to the Court under Article 234 EC by the Oberster Gerichtshof (Austria) for a preliminary ruling in the proceedings pending before that court between

Betriebsrat der Vertretung der Europäischen Kommission in Österreich

and

European Communities, Commission of the European Communities,

on the interpretation of Article 9 of and Annex II to the Staff Regulations of Officials of the European Communities and Article 79 of the Conditions of Employment of Other Servants of the European Communities,

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, M. Wathelet, R. Schintgen (Rapporteur) and C.W.A. Timmermans (Presidents of Chambers), C. Gulmann, D.A.O. Edward, A. La Pergola, P. Jann, V. Skouris, F. Macken, N. Colneric, S. von Bahr and J.N. Cunha Rodrigues, Judges,

Advocate General: L.A. Geelhoed,

Registrar: M.-F. Contet, Principal Administrator,

after considering the written observations submitted on behalf of:

- the Betriebsrat der Vertretung der Europäischen Kommission in Österreich, by G. Lansky, Rechtsanwalt,

- the European Communities, Commission of the European Communities, by M. Langer, acting as Agent, assisted by B. Hainz, Rechtsanwalt,

- the Austrian Government, by C. Pesendorfer, acting as Agent,

- the German Government, by W.-D. Plessing and M. Lumma, acting as Agents,

- the Swedish Government, by A. Kruse, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of the Betriebsrat der Vertretung der Europäischen Kommission in Österreich, represented by D. Pätzold, Rechtsanwalt; the European Communities, Commission of the European Communities, represented by J. Currall, acting as Agent, assisted by B. Hainz; the Netherlands Government, represented by C. Wissels, acting as Agent; and the Swedish Government, represented by A. Kruse, at the hearing on 11 February 2003,

after hearing the Opinion of the Advocate General at the sitting on 10 April 2003,

gives the following

Judgment

By order of 14 March 2001, received at the Court on 18 April 2001, the Oberster Gerichtshof (Supreme Court) referred to the Court for a preliminary ruling under Article 234 EC two questions on the interpretation of Article 9 of and Annex II to the Staff Regulations of Officials of the European Communities and Article 79 of the Conditions of Employment of Other Servants of the European Communities.

Those questions were raised in proceedings between the Betriebsrat der Vertretung der Europäischen Kommission in Österreich (Works Council of the Representation of the European Commission in Austria, the works council) and the European Communities, Commission of the European Communities, concerning the installation on the premises of the Commission's representation in Vienna (Austria) of a monitoring device recording personal data of the persons employed by the Commission.

Legal background

Community legislation

Articles 2 and 3 of Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission (OJ, English Special Edition 1968 (I), p. 30) determine respectively the Staff Regulations of Officials of the European Communities (the Staff Regulations) and the Conditions of Employment of Other Servants of the European Communities (the Conditions of Employment).

Under the first paragraph of Article 1 of the Staff Regulations:

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.

Article 9 of the Staff Regulations, which appears in Title I, General provisions, prescribes:

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.

Titles II to VII of the Staff Regulations lay down the rules on the rights and obligations of officials, their career (including recruitment, promotion and termination of service), working conditions (hours of work, leave, holidays), emoluments and social security (in particular remuneration and social security benefits), disciplinary measures and appeals available to officials.

Annex II to the Staff Regulations contains the rules on the composition and procedure of the bodies provided for in Article 9.

Article 1 of Annex II, which forms Section 1 of the annex, headed Staff Committee, provides:

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.

Sections 2, 3, 4 and 5 of Annex II to the Staff Regulations govern respectively the composition and operation of the Joint Committees, the Disciplinary Board, the Invalidity Committee and the Reports Committee. The Joint Committees and the Disciplinary Committee include members nominated by the Staff Committee.

By virtue of the Rules laying down the Composition and Operation of the Staff Committee, adopted by the Commission pursuant to Article 9(2) of and Annex II to the Staff Regulations, the Staff Committee of the Commission consists of a central committee and several local sections, corresponding to the various places of employment of the staff of that institution. The members of the central committee are nominated by the various local sections from among their members. The members of each local section are elected by the officials and other servants referred to in Article 7 of the Conditions of Employment. Officials and other servants who are not attached to a particular local section are represented by the local section of Brussels (Belgium). As there is no section specifically for the staff working in Vienna, they are represented by the Brussels local section, and so take part in that section's elections. The procedures for elections to local sections and the central committee are laid down by the general meeting of Commission officials, so as to ensure that officials of all categories and services and the other servants referred to in the first paragraph of Article 7 of the Conditions of Employment are represented on the central committee and, as far as possible, in each local section.

The Conditions of Employment apply, as laid down in Article 1, to all servants engaged under contract by the Communities. That provision distinguishes between temporary staff, auxiliary staff, local staff and special advisers.

The first paragraph of Article 4 of the Conditions of Employment provides:

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.

Article 7 of the Conditions of Employment, which forms part of Title I, General provisions, provides:

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.

Titles II (Articles 8 to 50a) and III (Articles 51 to 78) of the Conditions of Employment lay down the rules applicable to temporary staff and auxiliary staff respectively, concerning in particular their rights and obligations, conditions of engagement, working conditions including holidays, remuneration, social security benefits, appeals and termination of employment.

Title IV of the Conditions of Employment, headed Local staff, contains the following provisions:

Article 79

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.

Article 80

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.

Article 81

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.

On the basis inter alia of Articles 4, 79, 80 and 81 of the Conditions of Employment, the Commission on 21 November 1989, after consulting the Staff Committee, adopted framework rules determining the conditions of employment of local staff of the Commission of the European Communities serving in third countries. The framework rules entered into force on 1 January 1990, but are applicable only from the coming into effect of the special conditions of application drawn up for each place of employment.

Article 1 of the rules fixing the special conditions of employment of local staff serving in Austria (the special rules for Austria), adopted in 1994 after consulting the central committee of the Staff Committee, provides:

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.

Like Titles II and III of the Conditions of Employment applicable to temporary staff and auxiliary staff, the special rules for Austria contain provisions relating inter alia to the conditions of engagement of local staff, their career, rights and obligations, working conditions including holidays, remuneration, social security benefits, termination of contracts, and appeals available to them.

It follows from the Commission's reply to a written question put by the Court that the special rules for Austria have continued to apply to local staff of the Commission's representation in Vienna even after the accession of the Republic of Austria to the European Union.

National legislation

The order for reference gives the following account of the national legal background:

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 order for reference also discloses that the works proprietor's obligation under Paragraph 91 of the ArbVG to provide the works council with information on all matters which concern the economic, social, health or cultural interests of the employees of the establishment may be enforced by legal proceedings. Moreover, under Paragraph 96a of the ArbVG, the introduction of systems for the automatic recording, processing and transfer of personal data on employees, going beyond the recording of general details about the person and occupational qualifications is among the measures which are subject to the approval of the works council. However, approval is not necessary where the actual or proposed use of such data does not go beyond the fulfilment of obligations under the law, the rules of collective legal regulation or an employment contract. Where the approval of the works council is required, it must be in the form of a (written) works agreement. If no agreement is reached between the works council and the works proprietor, the proprietor can have an arrangement adopted by using the arbitration body. If the employer takes the measure without securing the approval of the arbitration body or the works council, the works council can have the measure annulled by the courts.

The main proceedings and the questions referred for a preliminary ruling

On 12 March 1998 a works council was elected, pursuant to the provisions of the ArbVG, by the local staff of the Commission's representation in Vienna. The latter, which was informed without delay of the election and the immediately following constitution of the works council, did not contest the election. In the order for reference, the national court states that the chairman and vice-chairman of the works council are regarded by the Commission's representation in Vienna as the local representatives of the local staff.

In February 1999 elections were held for the Staff Committee of the Commission, within the meaning of Article 9 of the Staff Regulations. The local staff working in the Commission's representation in Vienna took part in the election. None of them was elected to the Staff Committee.

At the end of October 1998, the works council learnt of the existence of a monitoring device which allowed personal data on the employees to be recorded, since, to gain access to the office, they had to use a personalised microchip card and enter a code.

The works council, taking the view that the rights conferred on it by Paragraphs 91 and 96a of the ArbVG had been infringed by the Commission when the device was installed and used, brought proceedings in the Austrian courts seeking an order that the Commission, first, inform it which personal data concerning employees is automatically recorded and how that data is processed and communicated and, second, dismantle all equipment for recording personal data of employees installed unlawfully in the absence of approval by the works council.

The Arbeits- und Sozialgericht Wien (Labour and Social Court, Vienna) (Austria), at first instance, dismissed the application inter alia on the ground that, by virtue of the primacy of Community law, in particular Article 9 of the Staff Regulations, the provisions of the ArbVG did not apply and the election of the works council was therefore null and void, so that it did not have capacity to be a party or to bring proceedings.

The Oberlandesgericht Wien (Higher Regional Court, Vienna) (Austria), on appeal, upheld that decision, again essentially on the ground of the primacy of Community law, which precluded the coexistence within the Community institutions of a staff committee within the meaning of Article 9 of the Staff Regulations, which, as an internal body, lacked the necessary legal personality and capacity to being proceedings itself, and a body emanating from the staff, such as the works council within the meaning of the ArbVG, with capacity to bring proceedings under Paragraph 53 of the ASGG.

The works council appealed on a point of law (Revision) against the judgment of the Oberlandesgericht Wien to the Oberster Gerichtshof. Regarding it as clear that the Commission's representation in Vienna does not fall within the exception under Paragraph 33(2)(2) of the ArbVG, that it constitutes an establishment within the meaning of Paragraph 34(1) of that law and that it permanently employs at least five workers entitled to vote within the meaning of Paragraph 49(1) of that law, the Oberster Gerichtshof considers that the representation is obliged to set up a works council in accordance with Paragraph 40(1) of the ArbVG, if Part II of the ArbVG applies to it.

Observing in that connection that the Court has not yet ruled on whether Article 79 of the Conditions of Employment refers also to legislation such as Part II of the ArbVG, or on whether the provisions of the Staff Regulations relating to the Staff Committee are capable of restricting the application of that national law, the Oberster Gerichtshof decided to stay the proceedings and refer the following questions to the Court 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

Since the two questions are closely connected, they should be examined together.

To answer the questions, it should be noted, first, that Article 9(1) of the Staff Regulations provides for a staff committee to be set up within each Community institution. In accordance with the first subparagraph of Article 9(3), that staff committee represents the interests of the staff vis-à-vis the institution concerned, maintaining continuous contact between the institution and the staff, and contributes to the smooth running of the service of the institution by providing a channel for the expression of opinion by the staff.

For the purpose of carrying out that function of representing the interests of the staff, the Staff Committee, under the second, third and fourth subparagraphs of Article 9(3) of the Staff Regulations, has the right to bring matters to the notice of the competent bodies of the institution concerned and to be consulted by them on any difficulty having general implications concerning the interpretation and application of the Staff Regulations, the right to make suggestions of any sort concerning the organisation and operation of the service of that institution or for the improvement of staff working conditions or general living conditions, and the right to participate in the management and supervision of social welfare bodies set up by that institution in the interests of its staff. Moreover, in accordance with the provisions of Section 2 of Annex II to the Staff Regulations, persons nominated by the Staff Committee are members of the joint committee or committees within each institution and, under Article 9(4) of the Staff Regulations, those committees may be consulted on questions of a general nature which either the appointing authority or the Staff Committee itself thinks fit to submit.

It should also be noted that, under Article 7 of the Conditions of Employment, staff engaged under contract by the Communities, including local staff, are entitled, subject to certain conditions concerning the length of their contracts or the period for which they have actually been employed, to vote in elections for the Staff Committee of the institution which has engaged them and to stand for election to that committee, on the same basis as all officials of that institution.

Next, the fourth paragraph of Article 1 of Annex II to the Staff Regulations prescribes that the membership of the staff committee of each institution, or of its local sections if it is divided into local sections, must be such as to ensure the representation of all the staff referred to in the first paragraph of Article 7 of the Conditions of Employment, including local staff with contracts for more than one year or for an indefinite period. It follows from paragraph 10 above that the Commission expressly reiterated that obligation in the Rules laying down the Composition and Operation of the Staff Committee which it adopted pursuant to Article 9(2) of and Annex II to the Staff Regulations.

It follows from the above that, by adopting Regulation No 259/68, the Community legislature ensured that local staff are able to take part in representing the interests of the staff of the institution which has engaged them, on the same terms of staff representation as those it established for the benefit of officials of the European Communities and the other staff covered by the Conditions of Employment.

In those circumstances, it must be examined, second, whether Article 79 of the Conditions of Employment must be interpreted as allowing, or indeed requiring, the local staff of an institution also to enjoy the right to take part in representing their interests under the national legislation in force in the Member State where they are to perform their duties.

To determine for this purpose whether, having regard to the use of the words in particular in Article 79 of the Conditions of Employment, the arrangements for the representation and defence of the interests of local staff are also included in the conditions of employment within the meaning of that provision, the latter expression must be placed in its context and interpreted in terms of the spirit of the provision and the structure of the Conditions of Employment of which it forms part.

First of all, Article 79 of the Conditions of Employment provides that, subject to the other provisions of Title IV relating to the social security arrangements applicable to local staff and the settlement of disputes between them and their institution, the conditions of employment of local staff are to be determined by each institution in accordance with current rules and practice in the place where they are to perform their duties.

As the Court held in Case C-126/99 Vitari [2000] ECR I-9425, paragraph 23, it follows that the national law of the State in which a member of the local staff performs his duties is not applicable as it stands to the employment relationship between a Community institution and a member of the local staff.

Next, the Conditions of Employment are divided into several titles, the first of which, as its heading shows, contains general provisions applicable to all categories of staff referred to in Article 1 of the Conditions of Employment, while the following titles lay down the specific rules applicable to each of those categories.

It is clear, first, that the conditions under which contract staff may vote for and be elected to the Staff Committee are laid down in Article 7 of the Conditions of Employment, which, since it forms part of Title I, applies to all the staff covered by the Conditions of Employment.

Second, while Titles II and III of the Conditions of Employment, relating to temporary staff and auxiliary staff, define in detail the rules applicable to those staff as regards inter alia their conditions of engagement and termination of employment, working conditions including holidays, and remuneration, Article 79 of the Conditions of Employment, which appears in Title IV relating to local staff, refers as regards those aspects of their conditions of employment to the current rules and practice in the place where they are to perform their duties.

In those circumstances, it must be recognised that when, in Title IV of the Conditions of Employment dealing with local staff, the Community legislature refers, as regards their conditions of employment, to current rules and practice in the place where they are to perform their duties, this is not intended to cover aspects of the employment relationship between those staff and their institution other than those regulated in Titles II and III for other categories of staff.

Finally, it should be pointed out that Article 79 of the Conditions of Employment cannot without a risk of jeopardising the proper functioning of the services of a Community institution be interpreted as capable of leading to the adoption, on a specific point and for the same category of the institution's staff, of differing or even conflicting measures, drawn up in different frameworks and in accordance with different rules.

Yet that could be the case precisely in the event of the concurrent exercise by the whole of the staff of a Community institution within the Staff Committee, on the one hand, and a particular category of staff within a body set up pursuant to the national legislation of the State in which they perform their duties, on the other, of the rights conferred on them respectively by the Staff Regulations and by that national legislation as regards representation of the staff and defence of their interests.

It follows that the arrangements for the representation and defence of the interests of the local staff of a Community institution do not form part of the conditions of employment within the meaning of Article 79 of the Conditions of Employment, and that those arrangements are governed exhaustively by Article 9 of the Staff Regulations in conjunction with Annex II thereto and Article 7 of the Conditions of Employment.

Consequently, the reference in Article 79 of the Conditions of Employment to current rules and practice in the place where local staff are to perform their duties cannot include the national legislation applicable to that place concerning the participation of workers in the undertaking which employs them, such as the rules in Part II of the ArbVG.

Contrary to the submissions of the works council and the Austrian and Swedish Governments, no argument to the contrary can be derived from the allegedly fragmentary or rudimentary nature of the provisions of the Staff Regulations and the Conditions of Employment on participation by the staff of the Community institutions in the representation and defence of their interests.

First, as the Advocate General observes in points 96 and 97 of his Opinion, the system of representation and defence of the interests of the staff established by the relevant provisions of the Staff Regulations and the Conditions of Employment is designed to meet the needs of the various institutions and their staff and to enable them to contribute by carrying out their individual tasks to the realisation of the objectives of the European Union.

It was not argued before the Court that the details of that system, as they follow from Regulation No 259/68, were contrary to any higher-ranking provision of Community law, or were inadequate for ensuring the defence of the interests of the staff of the Community institutions in a form appropriate to the needs of the institutions and the accomplishment of their tasks.

Second, the arrangements for the participation by the workers of an undertaking, as organised at the level of the States in which local staff of the European Communities may be required to perform their duties, are not necessarily the same as those defined in Part II of the ArbVG, and may even vary within a single State depending on the circumstances, so that in any event their application to those local staff would not be such as to guarantee those staff, in all cases, a more complete participation in the defence of their interests than that which derives from the provisions of the Staff Regulations and the Conditions of Employment.

In the light of all the foregoing, the answer to the questions must be that Article 9 of and Annex II to the Staff Regulations and Article 79 of the Conditions of Employment must be interpreted as precluding the application to the local staff employed in the Commission's representation in Vienna of the Austrian legislation on labour relations in establishments in Part II of the ArbVG.

Costs

On those grounds,

THE COURT,

in answer to the questions referred to it by the Oberster Gerichtshof by order of 14 March 2001, hereby rules:

Article 9 of and Annex II to the Staff Regulations of Official of the European Communities and Article 79 of the Conditions of Employment of Other Servants of the European Communities must be interpreted as precluding the application to the local staff employed in the representation of the Commission of the European Communities in Vienna (Austria) of the Austrian legislation on labour relations in establishments in Part II of the Bundesgesetz betreffend die Arbeitsverfassung (Arbeitsverfassungsgesetz) (Federal law on labour relations) of 13 December 1973.

Rodríguez IglesiasWathelet Schintgen

Timmermans
Gulmann Edward

La Pergola
Jann Skouris

Macken
Colneric von Bahr

Cunha Rodrigues

Delivered in open court in Luxembourg on 10 July 2003.

R. Grass G.C. Rodríguez Iglesias

Registrar President

1: Language of the case: German.