Judgment No. 3051
The complaints are dismissed.
Given that Mr B. did not have a direct contractual relationship with the EPO, the contract under which he performed his services was between a consultancy firm and the EPO, and as he was paid for his services by that firm and not the Office, it is clear that he was not in an employment relationship with the EPO. However, the question remains whether Mr B. was a de facto employee as the complainants allege.
With regard to his alleged integration into the Office infrastructure, although the EPO provides him with a user ID, access to the Office computer system, a listing in the internal telephone directory and an office with his name on the door and although he works under the supervision of an EPO manager, it is not disputed that his listing in the internal telephone directory and his user ID clearly indicate that he is not an employee. Nor do the complainants challenge the Internal Appeals Committee’s finding that it is standard practice to give external staff such technical and organisational support as is necessary to permit them to do the work for which they are retained.
Of particular significance is the fact that during the material time, Mr B. also worked as a consultant for several other agencies and corporations. As well, between 2000 and 2005, he averaged only 70 work days per year at the Office and in only one of those years did he slightly exceed 100 work days in contrast with the 220 work days minus annual leave and public holidays for an EPO employee. Lastly, the contracts under which Mr B.’s services were provided to the EPO specified that they were governed by German law.
Having regard to these factors, it cannot be said that Mr B. was in any sense an employee of the EPO and it follows that the Service Regulations have no application to him. Accordingly, the Staff Committee’s claimed right under the Service Regulations is not engaged. As under Article II, paragraph 5, of its Statute, the competence of the Tribunal is limited to “complaints alleging nonobservance, in substance or in form, of the terms of appointment of officials and of provisions of the Staff Regulations”, the present complaints are beyond the jurisdiction of the Tribunal.
ILOAT reference: Article II, paragraph 5, of the Statute
status of complainant; competence of tribunal; non official; complaint dismissed