United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS S A MAIDMENT The Appellant in person
For the Respondent	DAVID BEAN QC MR J R CURRALL Commission of the European Communities Rue de la Loi, 200 B 1049 Brussels Belgium


 


THE HONOURABLE MR JUSTICE MORISON (PRESIDENT): This is an appeal against a decision of an Industrial Tribunal held at Bristol on 10 March 1998. It's decision was sent to the parties on 17 March 1998.

In her IT1, which was filed on 2 January 1998, the Applicant, Miss Maidment, complained as follows:

"I wish to complain that the personnel procedures that exclude women such as myself on age grounds are in effect indirect sex discrimination as defined in Article 119 of the Treaty using European law and the United Kingdom Sex Discrimination legislation 1975 and all subsequent amendments.

The letter that I received that said I was ineligible on age grounds is my evidence of the breach of the Act and Treaty. "

Her complaint in a nutshell is that by imposing some kind of age requirement, women were discriminated against because during part of the years men might have spent in employment, women could be expected to be spending in childbirth and childcare activities.

The European Commission who were the Respondents to this Application, presented their response in succinct form on 4 February 1998 as follows:

"The Industrial Tribunal has no jurisdiction to entertain a complaint against an institution of the European Communities concerning employment under the Staff Regulations (including applications for employment), such disputes must be submitted to the Court of First Instance of the European Communities in Luxembourg, which has sole jurisdiction, see attached letter"

Attached to the IT3 was a letter setting out in some detail an elaboration of their jurisdiction submission.

On 20 February 1998, the Industrial Tribunals sent out to both parties a Notice of Hearing of a preliminary point. That Notice said this:

"The hearing will be limited to consideration of the following preliminary issue to decide whether the Tribunal has jurisdiction to consider the claim. You may submit representations in writing and advance oral argument at the hearing if you wish."

The Appellant, Miss Maidment, told me and I accept that at some stage after receiving this Notice she had a telephone conversation with an Officer within the Industrial Tribunal. She did not turn up at the hearing nor had she submitted any detailed representations on the jurisdiction issue and the matter proceeded in her absence. The Industrial Tribunal's decision, which was essentially a repetition by way of acceptance of Counsel's argument on behalf of the European Commission, Mr Bean QC, accepted that the European Court of Justice had exclusive jurisdiction to deal with complaints such as was made by Miss Maidment. Accordingly, the Application was dismissed.

The Applicant told me that the decision of the Industrial Tribunal came as something of a surprise to her. I think at the end of the day, the surprise was more due to the fact that the decision had gone against her than that the decision had been made at all.

On 6 July 1998, at a preliminary appeal, Miss Maidment's appeal against the Industrial Tribunal's decision was allowed to proceed to a full hearing which took place this morning. At this appeal she has represented herself, if I might say so without being patronising, succinctly and admirably clearly and we have also had the advantage of conspicuously able and clear submissions from Mr Bean QC, who has again represented the Commission. Before turning to the arguments, I would propose to refer to the Article of the European Treaty which seems to me to have most part to play in this case and to the provisions of the Staff Regulations which are in issue and to two European Court decisions which we have been taken through in detail.

Article 179 of the European Treaty provides:

"The 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 or the conditions of employment".

The relevant Staff Regulations are headed "Regulations and Rules Applicable to Officials and Other Servants of the European Communities" and it is the April 1996 decision to which our attention has been drawn. The Regulations themselves are contained in paragraphs which are headed "Articles". These are obviously not to be confused with Articles of the European Treaty. Article 90(1) of the Staff Regulations provides:

"Any person to whom these Staff Regulations apply may submit to the appointing authority a request that it take a decision relating to him. The authority shall notify the person concerned of its reasoned decision within 4 months from the date on which the request was made. If at the end of that period no reply to the request has been received, this shall be deemed to constitute an implied decision rejecting it, against which a complaint may be lodged in accordance with the following paragraph: Sub-Article(2) "any person to whom these Staff Regulations apply may submit to the appointing authority a complaint against an act adversely affecting him, either where the said authority has taken a decision or where it has failed to adopt a measure prescribed by the Staff Regulations."

The complaint must be lodged within 3 months, and then various factual situations are set out from which time begins to run. Article 91 of the Staff Regulations in Sub-Article(1) provided:

"The Court of Justice of the European Communities shall have jurisdiction in any dispute between the Communities and any person to whom the Staff Regulations apply regarding the legality of an act adversely affecting such person within the meaning of Article 90(2)."

In disputes of a financial character, the Court of Justice shall have unlimited jurisdiction and then Sub-Article (5) of Article 91 of the Staff Regulations provides:

"Appeals under this Article shall be investigated and heard as provided for in the Rules of the Procedure of the Court of Justice of the European Communities".

It will be apparent from a recitation both of the provisions of the Treaty and of the Staff Regulations that there are, as Mr Bean pointed out, two questions which require to be answered. Firstly, is a dispute between a candidate for employment with the Commission a dispute between the Community and its servants. On one view of it, if, like the Appellant, you are not a servant of the Commission, then you are not a servant to whom Article 179 would apply. Secondly, in any event, if the European Court of Justice has jurisdiction, is it's jurisdiction exclusive or is it concurrent with the jurisdiction of the National Court.

The two prime authorities to which reference should be made, in our judgment, are to be found in the case of Myrianne Coen v Belgian State reported at 1997 ECR, Page 403. The summary of the judgment contains this statement:

"The time limits prescribed in Articles 90 and 91 of the Staff Regulations for lodging complaints and bringing proceedings are a matter of public policy and are not subject to the discretion of the parties or the Court since they were established in order to ensure that legal positions are clear and certain. Consequently, Article 179 of the Treaty and Articles 90 and 91 of the Staff Regulations are to be interpreted as meaning that the periods of which those provisions prescribed for challenging a decision of the appointing authority of one of the community institutions cannot be caused to run afresh by a judgment given by a Court of a Member State finding an act of that state unlawful where the act in question may have influenced the institution's decision which is to be challenged".

The need for those comments stems from the nature of the dispute which arose between the parties in that case. There had been proceedings brought by Miss Coen against a Belgian State Ministry in relation to their activities in connection with her appointment to a European institution and the Court said this:

"Paragraph 15 :

It should be noted at the outset that the Court's jurisdiction in disputes between the Community and its servants is based on Article 179 of the Treaty and not on Article 173 to which the first question refers. "

"Paragraph 17:

Articles 90 and 91 of the Staff Regulations do not apply only to persons who have the status of officials or employees other than local staff. They also apply to persons claiming that status including candidates in a recruitment procedure organised by a Community institution (see to that effect Case 286/83 Alexis and others v Commission reported at 1989 ECR 2445, paragraph 9)."

"Paragraph 21:

It is settled case law that the time limits prescribed in the Staff Regulations for lodging complaints and bringing proceedings and those for brining actions under Article 173 of the Treaty are a matter of public policy and are not subject to the discretion of the parties or the Court since they were established in order that legal positions are clear and certain."

"Paragraph 22:

Although in circumstances such as those at issue in the main proceeding, the lawfulness of a recruitment procedure initiated by a Community institution may depend on whether certain acts of the national authorities to which that institution has turned are themselves lawful. It is for the person aggrieved to exercise, within the time limits laid down by the Staff Regulations, remedies made available even if only as a precautionary measure."

"Paragraph 23:

Any other interpretation would leave the mandatory time limits laid down by the Treaty and the Staff Regulations open to circumvention through the bringing of legal proceedings at the national level."

The second case which we consider to be of significance, again a decision of the European Court of Justice, is called Poline v The European Atomic Energy Community. The Respondents are a community of nations which had entered into Treaty obligations amongst themselves and there is a provision in the Euratom Treaty which is analogous to, if not identical to, Article 179 of the European Treaty.

Article 152 of the Euratom Treaty or EACT Treaty, which provides that the Court of Justice shall have jurisdiction in any dispute between the Community and its servants, lays down that this jurisdiction shall be exercised within the limits and under the conditions laid down in the Staff Regulations or the conditions of employment.

The argument that was presented in that case on behalf of the plaintiffs in the action, the individuals, was as follows: When under a particular Convention such as that between the Italian Government and Euratom, the local Courts are made responsible for settling disputes arising out of the service relationship, it is before them alone that proceedings may be brought. The fact that the administration does not recognise the workers as servants or officials is irrelevant.

In giving its judgment, the European Court said this:

"As the conditions of employment of officials and servants other than local staff are determined by the Staff Regulations or by the Conditions of Employment, disputes arising over these conditions are under Article 152 of the EACT Treaty placed within the jurisdiction of the Court whereas the Conditions of Employment for local staff are laid down in accordance with national law and may be the subject of proceedings before the National Courts."

"Paragraph 13

In these circumstances, as the rights in question are those recognised by the Staff Regulations, Article 152 of the EACT Treaty must be interpreted as meaning that it applies not only to persons who have the status of officials or of servants other than local staff, but also to persons who lay claim to this status"

"Paragraph 14

The second question has also been asked whether the basis of the service relationship between the Community and its officials or servants must at all times and invariably reside in an instrument of appointment or whether for this instrument there may be substituted a judicial decision, finding that on the facts there exists a particular service relationship."

"Paragraph 13

In view of the answer to the first question, the reply to the second must be that the basis of the service relationship between the Community and its officials or servants other than local staff cannot reside in a decision of a National Court."

It is against that background in particular that I turn to the arguments which were presented to us in this case. The Appellant submits that she is entitled under the Treaty itself to put forward her claims in the National Court. She has the right as a citizen of the state of Great Britain to advance her claim in the National Courts. She can assert her rights in domestic law, these are rights which derive from her being a citizen of this country.

Secondly, if there is a conflict between the European position as set out in Article 179 and her rights in British law, then the latter must prevail. She says that Article 119 in a sense confers upon individuals rights of supremacy which she is entitled to enforce in the European Courts. She says furthermore that the jurisdiction in the United Kingdom gives her a juridical advantage for two reasons: firstly because of the time limit provisions here which involve a degree of flexibility and discretion on the part of the Industrial Tribunal, whereas in Europe apparently a very inflexible approach is taken to time and secondly in relation to representation and her opportunities for access to the judicial system. In relation to the second point, she observes that she will be required to be represented at any hearing before the European Court by a qualified advocate, whereas in the United Kingdom she has access to the Courts here without that necessity. She has exercised such a right in the Employment Appeal Tribunal this morning. She therefore says that in a wider sense, this Court should recognise that juridical advantage and if there is a conflict, we should say that British law should predominate for that reason also.

She also says that she was somewhat taken by surprise, in view of the telephone call that she had with a member of staff at the Industrial Tribunal, by the fact that it had reached a final decision on jurisdiction. I believe her position to be that she had either believed that the Tribunal was simply going to give directions as to how the jurisdiction issue was to be determined or that it would give her a chance later on at some stage to present her case. She says that it was for that reason that she did not advance any argument to the Industrial Tribunal or make any appearance herself.

On behalf of the European Commission, Mr Bean QC has submitted that the Industrial Tribunal's decision was correct and cannot be faulted. He says that it is clear from reading Article 179, the Articles in the Staff Regulations to which I have referred and the two European Court decisions, that disputes between candidates for a post in the European Commission are justiciable only in the European Court of Justice.

The decision of this Court, I will express in this way: It seems to us that the Industrial Tribunal's decision was correct. There is, as we see it, no conflict between the laws of England and the provisions of the European Treaty. In that sense, it does not seem to us that any question of supremacy arises. The question at issue is which Court will take jurisdiction over the dispute between the parties. Whichever Court does so will inevitably have to apply, as it seem to us, the provisions of Article 119 and of the Equal Treatment Directive which our domestic legislation was drafted to give effect to.

English law applies under the terms of our statute when actual or prospective employment is at an establishment in Great Britain. Whether or not that provision would have restricted Miss Maidment's right to apply to an Industrial Tribunal does not arise for consideration, but it does seem to us to give an indication that there is nothing in domestic legislation which is incompatible with a person in her position having to litigate her case in the European Court of Justice.

We understand her complaint that she may be under a juridical disadvantage by the requirement in the European Court of Justice that she must have a lawyer to represent her interests, although it should be said that there is a legal aid scheme in force which she protests has the same effect as the legal aid scheme in the United Kingdom, namely to enable the very poor and the very rich to have access to the Courts but not to those who fall between the two. It is plain that the time limit for bringing proceedings in the European Court is rigidly applied, but it does not seem to us that the criticisms of the detailed arrangements made in relation to procedural matters of this sort should lead to the conclusion that she must be given rights which she otherwise would not have had under English law. It seems to us that the procedural arrangements for bringing cases in the European Court should be looked at by this Court in precisely the same way that the European Court looks at the procedural requirements of member states. Broadly speaking, it is the European Court's view that matters of procedural provisions of this sort are exclusively for the member states and the Domestic Courts provided that they do not deprive a party of an effective opportunity to bring proceedings and obtain a remedy. In those circumstances it does not seem to us appropriate that a Domestic Court or National Court should examine the procedural activities of the European Court but rather to accord respect to that Court to enable it to carry out its procedures and rules as it thinks fit.

Furthermore, the requirement that a person appearing before that Court must have the services of a professional advocate is commonplace at what I will call a senior Court level within jurisdictions in mainland Europe. This is not a provision which is unique to the European Court of Justice, it is to be found in jurisdictions in France and Germany to the President's knowledge and no doubt in many other jurisdictions as well. That said, although not strictly pertinent to the issues on this appeal, it does seem to us important that the Commission make plain to candidates and employees that any employment related dispute must be tried by the European Court and that they do not fall into the trap of seeking a remedy in a Domestic Court before realising that it is too late to advance a case in the European Court. We make that point in complete ignorance of whether the European Commission has failed to make plain to prospective candidates and employees as to their rights. We are making no judgment about the quality of the information which they are providing because we are simply are unaware of it, but we do think it important if it is not already done, that it should be made crystal clear so that people have an effective remedy if they wish to present their complaint.

As to the suggestion, which I think was at one stage being made, that Miss Maidment was somehow being misled as to what was going to happen at the Industrial Tribunal, I am bound to say that I did not regard this as one of her better points. It seemed to me at the end of the day that she must have known that the Tribunal was going to embark on a hearing to determine whether it had jurisdiction, bearing in mind the terms, and clear terms, of the European Commission's response to her Originating Application. But in any event it was a pure question of law for the Industrial Tribunal as it a pure question of law for the Employment Appeal Tribunal and I am sure that she will accept that she has been given a full and proper opportunity to present her legal submissions to this Court.

It seems to us therefore on the real question at issue that we can decide the case relatively shortly. I take first the issue as to whether the provisions of Article 179 cover prospective employees, that is candidates, as well as those who are actually in employment. It will be obvious from the passages that I have cited from the two judgments, in particular paragraph 17 of the Coen judgment and paragraph 13 of the Poline judgment, that the European Court regards Article 179 as embracing the persons who are seeking employment with the Commission as well as those who are in it. We can see good policy reasons why the European Court may have taken that view because as Mr Bean pointed out, it would lead to a fairly remarkable position if in fact the European Court of Justice dealt with those who were in employment but it was left to the member states' Domestic Courts to determine their rights if they had not been accepted for employment.

Therefore on the question that was posed: does Article 179 apply to Miss Maidment, the answer is that it is capable of applying to her even though she was a mere candidate. Secondly, does the European Court have exclusive jurisdiction. On this point we consider that the decision in Poline is clear. The language of the case was Italian, the language of the Court is French and there is, and I have cited from it, an English translation of the Court's judgment. As I have indicated, paragraph 11 of the Poline judgment says that "disputes arising under these conditions are placed within the jurisdiction of the Courts". The words "are placed within the jurisdiction of the Court" are, or could be considered to be, somewhat equivocal. However, I am bound to say that it seems to me that the rest of the judgment in English makes it reasonably clear that the European Court of Justice must have meant that it was placed exclusively within the jurisdiction of the Court. I take that view because of what was said in paragraphs 14 and 15 of the judgment which related to the second question.

If the National Court is not capable of making a decision which determines the basis of the service relationship between the Community and its servants, then it seems to me most unlikely that the European Court of Justice would have contemplated that there was any purpose in there being concurrent jurisdiction between themselves and the Courts of the member states. That is not the only point. It is, I think, a question of language and translation. The word that is used in the language of the case is "riservate", which looks as though it is saying reserved and I have been told by Mr Bean that that is probably the best English translation of it. The French language representation of the judgment uses the words "sont reservé" and that plainly indicates a reservation to the European Court of Justice and it implies that it has exclusive jurisdiction. It may be that the force of the word is more than implying exclusive jurisdiction, it is actually saying so. But on the basis of the judgment as a whole of the policy as I under stand it and of the good sense of there being one Court and one Court only to govern the rights of the parties, I am happy to conclude that the proper interpretation of Article 179 on the basis of the European Court's decisions, it is that the European Court of Justice has exclusive jurisdiction to deal with employment disputes relating to candidates and employees of institutions of the European Community including the Commission.

Accordingly, we are of the view that the Industrial Tribunal was correct to have adopted Mr Bean's submissions which he presented in similar form in this Court and that the decision of the Industrial Tribunal was correct. The appeal therefore will be dismissed.

Miss Maidment has asked us for leave to appeal to the Court of Appeal. I can understand the temptation of granting leave in this case, simply because the point that is raised in this case is of interest and in one sense of some importance, bearing in mind the nature of the submissions which have been made to us. On the other hand, it seems to me that this is not a case where leave should be granted because we have, all of us, in the adjudication process, come to the view that Miss Maidment's position is not tenable in law. Attractively presented though her arguments were, we have no doubt about our decision.

This is therefore not a case where with hesitation we have dismissed the appeal and if she wishes to take the matter further, as is her prerogative, we are of the view that it would be better if she was to seek leave from the Court of Appeal, who then can decide for themselves whether they consider that this a point which they should consider.