CASE OF PELLEGRIN v. FRANCE
No violation of Art. 6-1
Elisabeth Palm
8. Until 1989 the applicant was employed in the private sector, working mainly as a management and accountancy consultant. On the basis of the professional experience he had thus acquired, he applied for a job working for the French State under the overseas cooperation programme. 9. The French Ministry of Cooperation and Development recruited him – under a contract signed on 13 March 1989 – as a technical adviser to the Minister for the Economy, Planning and Trade of Equatorial Guinea. As head of project, he was to be responsible for drawing up the budget of State investment for 1990 and was to participate in the preparation of the three-year plan and the three-year programme of public investment, in liaison with Guinean civil servants and international organisations. 10. The contract stipulated that the applicant was to be placed at the disposal of the government of the Republic of Equatorial Guinea for two ten-month spells separated by a period of home leave calculated on the basis of five days for each month worked. The contract also laid down the conditions of his remuneration and in respect of all other matters referred to the regulations issued pursuant to the Law of 13 July 1972 (see paragraph 36 below). 11. On 9 January 1990, following a number of local disagreements, the Guinean authorities placed the applicant once more at the disposal of the French authorities. This caused the termination of his contract on expiry of his period of home leave (see paragraph 31 below). 12. The Ministry intended to give the applicant a new contract when he had completed his home leave, assigning him to duties in Gabon. To be eligible, he had to satisfy two prior conditions, as required of all other applicants for cooperation posts: firstly, candidates had to obtain the approval of the authorities of the country where they were to serve; secondly, they had to be certified medically fit to serve overseas. 13. As the approval of the Gabonese authorities was slow in coming, the Ministry of Cooperation and Development notified the applicant – by a letter of 2 February 1990 – that his contract was to be terminated and informed him that he would subsequently be removed from the Ministry’s establishment with effect from 15 March 1990. 14. The Gabonese authorities’ approval was later given for a post of financial analyst at the Ministry of Public Sector Reform. By a letter of 7 February 1990 the Ministry of Cooperation and Development noted this approval and accordingly declared the striking-off decision announced on 2 February null and void. The applicant was then summoned to attend the compulsory medical examination to assess his fitness to serve. 15. On 22 February 1990 the doctor responsible for the interministerial medical service, a specialist in tropical medicine, examined the applicant and ordered an additional psychiatric report. In the light of the results of the additional diagnosis, the doctor declared on 15 March 1990 that the applicant was permanently unfit to serve overseas. 16. On 23 March 1990 the Ministry of Cooperation and Development noted that opinion and accordingly informed the applicant that his name was to be removed from the list of the Ministry’s establishment with effect from 15 March 1990. 17. On 16 May 1990 the applicant lodged an application with the Paris Administrative Court to set aside the decision of 23 March 1990 as being unlawful. 18. On 9 November 1990 the Minister for Cooperation and Development filed his defence. 19. By an interlocutory judgment of 16 April 1992 the Paris Administrative Court ordered a medical report in order to ascertain whether, on account of his state of health, the applicant had been unfit in March 1990 to serve as a technical adviser under the overseas cooperation programme. 20. On 21 November 1992 the medical expert filed his report, having interviewed the applicant and given him a medical, psychological and neuropsychiatric examination on 3 September 1992. He gave it as his opinion that the Ministry of Cooperation and Development’s administrative reaction had been excessive and that the applicant’s state of health had not made him unfit to resume his duties after three months’ sick-leave, after which he could have gone before a medical board. 21. On 22 December 1992 the applicant filed a compensation claim, seeking an order requiring the State to pay him two different sums. Firstly, he claimed 550,000 French francs (FRF), which he considered to be the amount of remuneration he would have received if he had remained in post; secondly, he claimed FRF 500,000 in compensation for the personal, pecuniary and non-pecuniary damage he considered he had sustained on account of being struck off. 22. By a decision of 4 January 1993 the Paris Administrative Court fixed the amount payable in costs for the medical report. By a decision of 1 March 1993 it corrected a clerical error in the operative provisions of the first decision. 23. On 8 March 1993 the Minister for Cooperation and Development submitted his observations on the medical report. 24. On 14 April 1993 the applicant filed a reply. 25. On 3 May 1993 the Minister for Cooperation and Development submitted his defence to the applicant’s compensation claim of 22 December 1992, arguing that it was unfounded. 26. On 14 September and 4 October 1994 the Minister for Cooperation and Development filed a rejoinder and a number of documents. 27. On 13 December 1994 the applicant filed a reply. 28. The case was set down for hearing on 19 January 1995. On 9 January 1995 the applicant was informed that the case had been put off to a date to be determined later. 29. On 11 and 18 January 1995 the Minister for Cooperation and Development submitted additional observations and a number of documents. 30. On 16 February 1995 the applicant submitted a reply. 31. By a judgment of 23 October 1997, following a hearing on 25 September 1997, the Paris Administrative Court dismissed the applicant’s application, as regards both the request to have the striking-off decision set aside and the compensation claim. It held in particular: “... As to the application to set aside the Minister for Cooperation’s decision of [23] March 1990 Firstly, the documents in the file show that Mr Pellegrin’s contract with the State to work in Equatorial Guinea as a participant in the cooperation programme was terminated when the Guinean authorities placed him once more at the disposal of the French State. Although, by a letter of 7 February 1990, the Minister declared null and void the decision of 2 February 1990 announcing that Mr Pellegrin’s name would be removed from the list of the Ministry’s establishment with effect from 15 March 1990, which he did with a view to the signing of a new contract, he did not intend to reactivate the contract under which Mr Pellegrin had been assigned to duties in Equatorial Guinea, since that contract had been automatically terminated when the foreign State placed him once more at the disposal of the French State. Consequently, Mr Pellegrin may not validly argue that the decision of [23] March 1990 unlawfully rescinded the decision of 7 [February] 1990. Secondly, in deciding to remove the applicant’s name from the list of the Ministry’s establishment with effect from 15 March 1990, the Minister was merely drawing the consequences of the fact that the contract assigning Mr Pellegrin to duties in Equatorial Guinea expired on that date and of the fact that no new contract had been signed. Consequently, his decision was not invalidated by any unlawful retrospectiveness; ... Thirdly, the medical report of 21 November 1992 shows that on [23] March 1990 Mr Pellegrin did not satisfy the physical fitness conditions for service overseas. Consequently, he may not validly maintain that the decision of [23] March 1990, which cited the … opinion that he was unfit as ground for refusing him a new contract for the cooperation service in Gabon, was vitiated by an error of judgment; ... As to the compensation claim It follows from the rejection of Mr Pellegrin’s arguments in support of his application to set aside the decision of [23] March 1990 that he may not rely on any culpable unlawfulness making the State liable. Consequently, his claim for compensation from the State for prejudice caused by the decision of [23] March 1990 must be dismissed ...” 32. On 16 January 1998 the applicant gave notice of appeal against the above judgment, which had been served on him on 13 January, and filed his statement of the grounds of appeal. 33. On 10 June 1998 the Minister for Cooperation and Development filed a pleading. 34. On 30 June 1998 the applicant filed a further pleading. 35. The case is pending in the Paris Administrative Court of Appeal. 36. The relevant provisions of the law governing the position of civilian cultural, scientific and technical cooperation staff in post in foreign States (in respect of which two implementing decrees were promulgated on 25 April 1978) provide: “The civilian staff on whom the State calls to perform cultural, scientific or technical cooperation duties outside French territory at the service of foreign States, particularly by virtue of agreements between France and those States, shall be governed by the provisions of the present Law ...” “Without prejudice to the rules governing the exercise of judicial functions, the staff contemplated by the present Law shall serve, while performing their duties, under the authority of the Government of the foreign State or the body at whose service they have been placed, under conditions laid down by agreement between the French Government and the foreign authorities concerned. They shall be required to maintain the propriety and discretion befitting persons performing their duties in the territory of a foreign State and inherent in the publicservice nature of the tasks they carry out ... They shall be forbidden to engage in any act or participate in any event which might be damaging to the French State, local public policy or the relations the French State maintains with foreign States. In the event of failure to respect the obligations contemplated in the previous two paragraphs, their turn of duty may be terminated immediately, without prior formalities, and without prejudice to any administrative proceedings that may be brought against them on their return to France.” 37. Article 48(4) of the Treaty of 25 March 1957 instituting the European Economic Community (“the EEC Treaty”) provides for a derogation from the principle of freedom of movement for workers within the Community in respect of “employment in the public service”. 38. The Court of Justice of the European Communities has developed a restrictive interpretation of this derogation. In its judgment of 17 December 1980 in the case of Commission v. Belgium (C-149/79, ECR 3881) it decided that the derogation concerned only posts which involved direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities, and which thus presumed on the part of those occupying them the existence of a special relationship of allegiance to the State and reciprocity of rights and duties which formed the foundation of the bond of nationality. 39. The European Commission, to which the EEC Treaty assigned responsibility for ensuring the correct application of Community rules, noted that a large number of posts likely to be caught by the derogation had in reality no bearing on the exercise of powers conferred by public law or protection of the general interests of the State. 40. In a communication of 18 March 1988 it set itself the task of listing separately those activities which are covered by the derogation and those which are not. It thus established two distinct categories of activities according to whether or not they involved “direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State”. These categories were defined as follows: “Exclusion of specific activities in the national public service [from freedom of movement for workers] On the basis of current Court of Justice rulings, and bearing in mind the present conditions for establishing the single market, the Commission considers that the derogation in Article 48(4) covers specific functions of the State and similar bodies such as the armed forces, the police and other forces for the maintenance of order, the judiciary, the tax authorities and the diplomatic corps. This derogation is also seen as covering posts in State Ministries, regional government authorities, local authorities and other similar bodies, central banks and other public bodies, where the duties of the post involve the exercise of State authority, such as the preparation of legal acts, the implementation of such acts, monitoring of their application and supervision of subordinate bodies ... Activities concerned by action in the public service sector The Commission considers that the functions involved in certain forms of public employment are for the most part sufficiently remote from the specific activities of the public service as defined by the Court of Justice that they would only in very rare cases be covered by the exception in Article 48(4) of the Treaty. The Commission proposes therefore to implement its action in the following areas by order of priority: – bodies responsible for administering commercial services (e.g. public transport, electricity and gas supply, airline and shipping companies, posts and telecommunications, radio and television companies), – public health care services, – teaching in State educational establishments, – research for non-military purposes in public establishments. Each of these activities also exists in the private sector, to which Article 48(4) does not apply, or may be exercised in the public sector without the imposition of nationality requirements ...” Where the second category is concerned, the Commission has left it open to EEC member States to try to show that the duties of a given post involve the specific activities of the public service; this would, exceptionally, justify application of the derogation. 41. The Court of Justice has applied and developed these principles in a number of judgments. In its judgment of 2 July 1996 in the case of European Commission v. the Grand Duchy of Luxembourg (C-473/93, ECR I-3248), it held: “§ 27 ... in order to determine whether posts fall within the scope of Article 48(4) of the Treaty, it is necessary to consider whether or not the posts in question typify the specific activities of the public service in so far as it exercises powers conferred by public law and has responsibility for safeguarding the general interests of the State or of other public bodies. For that reason, the criterion for determining whether Article 48(4) of the Treaty is applicable must be functional and must take account of the nature of the tasks and responsibilities inherent in the post, in order to ensure that the effectiveness and scope of the provisions of the Treaty on freedom of movement of workers and equal treatment of nationals of all Member States is not restricted by interpretations of the concept of public service which are based on domestic law alone and which would obstruct application of Community rules (judgment in Case 307/84 Commission v. France [1986] ECR 1725, paragraph 12). … § 31 ... the generality of posts in the areas of research, health, inland transport, posts and telecommunications and in the water, gas and electricity supply services are remote from the specific activities of the public service because they do not involve direct or indirect participation in the exercise of powers conferred by public law or duties designed to safeguard the general interests of the State or of other public authorities (see, in particular, as regards the area of health, the judgment in Case 307/84 Commission v. France, and, as regards research for civil purposes, the judgment in Case 225/85 Commission v. Italy [1987] ECR 2625). … § 33 ... the Court has already stated that the very strict conditions which posts must satisfy in order to come within the exception laid down in Article 48(4) of the Treaty are not fulfilled in the case of trainee teachers (judgment in Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraph 28), in the case of foreign-language assistants (judgment in Case 33/88 Allué and Coonan [1989] ECR 1591, paragraph 9) or in the case of secondary school teachers (judgment in Case C-4/91 Bleis [1991] ECR I-5627, paragraph 7). § 34 For the same reasons, the same applies to primary school teachers ...”