Mr Walter GANSHOF VAN DER MEERSCH, Chairman, Mr Raul VENTURA, Sir Donald TEBBIT, members

Transcription

1 Decision of the Appeals Board of 23 February 1983 Appeals Nos /1981 (Mrs M.-C. Farcot and others v. Secretary General) The Appeals Board, composed of : assisted b y Mr Walter GANSHOF VAN DER MEERSCH, Chairman, Mr Raul VENTURA, Sir Donald TEBBIT, members Mr Michel de SALVIA, Secretary and Miss Margaret KILLERBY, Deputy Secretary, having deliberated, has given the following decision. PROCEDURE 1. Appeals by the following appellants were brought before the Board : - Mrs Marie Christine FARCOT Appeal No. 52/ Mrs Eliane BROS-BRANN " No 53/ Mr Cyril BUHLER " No 54/ Mr Bernard CARBIENER " No 55/ Mrs Vera CHABERT " No 56/ Mrs Jill CHATTERTON " No 57/ Mr Jürgen DROWSKI " No 58/ Mr Wilfrid FAIVRET " No 59/ Mrs Carol FERAT-GAIN " No 60/ Mrs Linda Jean FITCHETT-ROLL " No 61/ Mr Malcolm GAIN " No 62/ Miss Anne GIANNINI " No 63/ Miss Marie-José HALT " No 64/ Mrs Michelle KEEFE " No 65/ Mrs Ann MEYER " No 66/ Mrs Ursula NOUARI " No 67/ Mrs Susan Jane PATTON " No 68/ Mrs Annie ROBERT-COTTEREAU " No 69/ Mr William VALK " No 70/ Mr Derrik WORSDALE " No 71/ Mrs Gisela WORSDALE " No 72/ Mrs Josette YOESLE-BLANC " No 73/ Mrs Antoinette BOURDELET " No 74/ Mr Giorgio CAMICI " No 75/1981

2 2. These appeals were lodged on 26 and 27 May and 2 June They were registered on those same days in the Board's register. 3. Mrs M.-C. Farcot appended to her appeal lodged on 26 May 1981 a supplementary memorial to which the other appellants refer. 4. By an order of 26 November 1981, the Chairman of the Board joined the appeals, on account of their close connection with each other, in accordance with Rule 21 of the Rules of Procedure of the Appeals Board in force at the relevant time. 5. In a letter of 3 June 1981, the Secretary General of the Council of Europe was asked to present his observations on the appeals before 15 July He requested several extensions of the time-limit laid down by the Chairman, as a result of which the time-limit was extended to 18 December On 15 December 1981, he communicated his observations to the Secretary of the Board and these observations were forwarded to the appellants for reply. On 11 February 1982, the appellants' representative sent in her reply. 6. In a letter of 7 April 1982, the parties were informed of the date of the hearing, fixed for 14 June On 11 May 1982, the Secretary General submitted supplementary observations on the appeal. These observations were forwarded for information to the appellants who did not avail themselves of this opportunity to make further comments 8. The public hearing took place on 14 June 1982 in the Council of Europe, in the presence of Mrs Farcot and some of the other appellants, represented by Me M. Nadal a barrister practising at the Strasbourg Bar, and of Mr E. Harremoes, Director of Legal Affairs, representing the Secretary General and assisted by Mr M. Scheuer, Principal Administrative Officer in the Directorate or Administration, Establishment Division, Mr P. Leal, Administrative Officer in the Directorate of Legal Affairs, Central Section and Mrs C. Apprill, Principal Administrative Assistant in the Directorate of Legal Affairs, Central Section. THE FACTS The facts as presented by the parties may be summarised as follows 9. Mrs M.-C. Farcot and the 23 other appellants are conference interpreters whom the Council of Europe employs on a temporary basis to reinforce the permanent staff. 10. On 9 April 1980, the "Caisse Mutuelle Provinciale des Professions Libérales" (Provincial Mutual Fund for the Liberal Professions) sent Mrs Farcot a form intended to provide the Fund with the information required for her possible affiliation to the selfemployed workers' scheme under French Social Security. 11. In a letter of 17 April 1980, the Director of the Caisse informed the Head of the Establishment Division of the Council of Europe that order No issued on 15

3 December 1977 by the French authorities provided for the affiliation to this scheme of conference interpreters exercising their profession on an independent basis. 12. In a letter of 6 May 1980, a copy of which was forwarded to Mrs Farcot as "spokesman" for the other interpreters who claimed to be in the same situation as her, the Head of the Establishment Division informed the Director of the Caisse that these interpreters did not come within the scope of the approved body because "temporary interpreters employed by the Council of Europe are henceforth to be regarded as temporary staff members coming within Articles 5 and 6 of the Agreement ; of / between France and the Council of Europe on the application of French Social Security legislation to the staff of the organisation ( ). Indeed, these 'free-lance' interpreters working for (the) interpretation service are, in accordance with the terms of their contract, under the authority of the Secretary General and responsible to him. They are entitled to the same privileges and immunities as other temporary staff members, including exemption from income tax. Consequently they will be affiliated to the general. French Social Security scheme with the exception of familv allowances..." (translation). 13. On the same day the Head of the Establishment Division informed the International Association of Conference Interpreters' (AIIC) negotiation delegation to the Co-ordinated Organisations that the Secretary General had decided to affiliate, from i January 1981, ail temporary staff members residing or working in France to the general social security scheme. The letter stated that "as regards 'free-lance' Interpreters, it is not legally possible to treat some of them as employees and others as persons carrying out a liberal profession, given that they all work under the same conditions and have the same contract" (translation). 14. Following this correspondence, the appellants did not apply to be affiliated to the Caisse Mutuelle Provinciale des Professions Libérales. 15. On 18 May 1980, the AIIC's negotiation delegation sent the following observations to the Head of the Establishment Division :"We are pleased about the affiliation to the general scheme in so far as it satisfies the wishes of some of our colleagues. However, and without prejudice to the final position to be adopted by the AIIC on this question, we can only strongly deplore the fact that, as regards 'free-lance' interpreters, you have found it impossible to institute a dual scheme similar to the one set up by the OECD." (translation). 16. In a letter of 9 December 1980, the Deputy Director of Administration and Finance informed the Director of the Caisse Mutuelle Provinciale des Professions Libérales that the Council of Europe was unable to proceed with the affiliation of temporary interpreters to the general French social security scheme on the ground that "... new discussions have begun with an AIIC committee ( ) following exchanges of views between the competent French Ministry and the Council of Europe, it seems that it should be determined in accordance with objective criteria and in particular working conditions whether part-time interpreters are to be regarded as employees or as persons following a liberal profession. The matter is still under consideration but the most recent case-law seems ultimately to regard 'free-lance' interpreters as persons carrying out a liberal profession on a worldwide basis.." (translation).

4 17. On 17 December 1980, Mrs Farcot asked the Secretary General to be so good as to instruct the competent departments to take all the measures required to affiliate conference interpreters to the general French social security scheme in accordance with the information communicated to her in the above-mentioned letter of 6 May In a letter of 14 January 1981, the Director of Administration and Finance replied as follows to Mrs Farcot :"It is correct that this organisation envisaged such affiliation in May New factors have, however, arisen and the question is still under consideration. Discussion have begun with an AIIC delegation set up to examine the problems relating to the social security cover of interpreters. Moreover, views are being exchanged with the competent French Ministry to determine suitable arrangements for social security cover for your profession ( ). For the time being no final decision has been taken but the Council of Europe intends to clarify the situation in the near future ( )" (translation). 19. By her letter of 28 January 1981 Mrs Farcot asked the Head of Administration and Finance to inform her unequivocally whether his letter of 14 January 1981 amounted to a refusal to implement the decision of 6 May By her letter of 25 March 1981, she asked the Secretary General to give her a speedy and clear reply to the question of her social security status and, if he intended to continue to refuse to implement that decision, to give her the reasons therefore so that she could appeal to the competent body. 21. Noting that her first pay slips for contracts performed for the Council of Europe after 1 January 1981 included no deduction for the general French social security scheme, Mrs Farcot informed the Secretary General in a letter of 1 April 1981 that, as far as she was concerned, this amounted to a refusal to implement the decision of 6 May Consequently she invited him to reverse his refusal to implement that decision 22. On 27 April 1981 the Director of Administration and Finance informed her that "it has not been possible to implement that decision because of the AIIC's opposition. Indeed the Association argued in particular that such a decision could be implemented only after an additional clause to the Agreement between the Council of Europe and the AIIC had been drawn up and requested that negotiations on the contents of such a clause be continued ( )" (translation). 23. The appeals are brought against the refusal of the Secretary General to affiliate the appellants to the general French social security scheme. SUBMISSIONS OF THE PARTIES I. Submissions of the appellants 24. The appellants maintained that these appeals were admissible on the ground that they had been brought against a decision within the meaning of Article 2, paragraph 1 of the

5 Statute of the Board, and were brought within the time-limits laid down in Article 3, paragraph 3 of that Statute, the provisions concerned being those in force at the relevant time. As regards the merits, they claimed that the above-mentioned letter of 6 May 1980 amounted to a decision to affiliate them to the general French social security scheme, a decision which conferred on them an individual right to this affiliation. Furthermore, the nonimplementation by the Secretary General of that decision was not only based on a ground that could not be used against the appellants, but also contravened their status as temporary staff members and consequently did not comply with Articles 5 and 6 of the Agreement of 21 December The appellants' submissions may set out as follows: a. Admissibility 25. The appellants argued that their appeals concerned "individual decisions applying to them" within the meaning of Article 2, paragraph 1 of the Statute of the Board. The letter of 27 April 1981 sent to Mrs Farcot by the Director of the Administration and Finance should be regarded as a decision rejecting the request for the application of the measure adopted on 6 May 1980, because that letter for the first time clearly informed the applicants that implementation of this measure had not been possible. Furthermore, given that the recognition on 6 May 1980 of the employee status of the appellants directly and individually concerned their careers, the refusal to give effect to it adversely affected the appellants; it constituted a decision against which an appeal could be brought. 26. They also maintained that the Secretary General could not legitimately invoke against them non-compliance with the time-limits laid down in Article 3, paragraph 3 of the Statute of the Board which provided that "appeals shall be lodged with the Secretariat of the Appeals Board within 30 days of notification of the Secretary General's decision to reject the application...". In their view, the time-limit for lodging an appeal in fact ran from 27 April 1981, when the Secretary General rejected the application. 27. The applicants submitted that if they had been clearly informed in December 1980 that their affiliation to the general French social security scheme was not going ahead, they would immediately have requested the Secretary General to reverse his decision. They would therefore not have entered into correspondence in all good faith, as they did from 17 December 1980 with the administration of the Council of Europe, whose communications were vague and likely to keep the appellants in an uncertain and difficult situation. b. The merits 28. The appellants considered that the letter of 6 May 1980, in which the Secretary General clearly and unequivocally informed the Director of the Caisse Mutuelle des Professions Libérales that temporary interpreters would be affiliated to the general French social security scheme from 1 January 1981, amounted to a decision that was binding on him.

6 This conclusion was confirmed by the information in the letter of the same day sent to the AIIC's negotiation delegation by the Head of the Establishment Division in which the latter expressly stated that "the Secretary General has decided ( ) to affiliate all temporary staff members living or working in France to the general French social security scheme ( )" (translation). Mrs Farcot had been informed of this decision as the representative of her temporary interpreter colleagues, following which the appellants decided not to request affiliation to the Caisse Mutuelle des Professions Libérales. The decision of 6 May 1980 consequently conferred an individual right on the appellants to be affiliated to the general French social security scheme. 29. The Secretary General could not escape from his obligation under this decision. Neither the AIIC's opposition to this affiliation nor the necessity to draw up a prior additional clause to the agreement entered into between the AIIC and the co-ordinated organisations concerning the working conditions of conference interpreters paid on a daily basis could validly be relied on in this context. Not only was it clear from the correspondence between the Council of Europe and the AIIC that the latter would have been in favor of affiliation, but in addition the Secretary General was bound by the Agreement entered into on 21 December 1959 between France and the Council of Europe on the application of French social security legislation to the staff of that organisation, an agreement who ie application to the appellants was precisely the purpose of the decision of 6 May In particular, Article 5 of that Agreement provided that "temporarv members of the staff of the Council of Europe Secretariat who are French nationals shall be subject to the whole body of French social security legislation, except that relating to family allowances". Under Article 6 of the Agreement, "temporary members of the staff of the Council of Europe who are nationals of countries which have concluded reciprocal agreements with France on social security, shall be subject to the whole body of French social security legislation except that relating to family allowances". 30. The appellants considered that they fell within these provisions as they had had, in any event, the status of temporary staff members of the Council of Europe, of which they were employees. They relied on several pieces of evidence that confirmed this conclusion. Their contracts of employment provided in particular that "the person appointed under this contract shall be under the authority of the Secretary General and responsible to him. In the carrying out of his duties he shall not seek or receive instructions from any government or any authority external to the Council" ; this provision was identical to the terms of Article 1 of the Staff Regulations. These contracts also stated that they were subject to Article 32 of the Staff Regulations. Pay slips issued to the appellants were drawn up under the heading:"payment of temporary staff members". Similarly, on their passes it was stated "temporary staff member". Finally they enjoyed the tax exemption to which all staff members of the Council of Europe were entitled.

7 In addition, the appellants claimed that the Staff Regulations provided for two categories of staff member only : permanent staff members and temporary staff members. The Secretary General could not therefore validly argue that temporary interpreters were a new category of staff members not coming with n the first two categories. II. Submissions of the Secretary Genera l a. The competence of the Appeals Board 31. The Secretary General submitted that the appeal must be considered on the basis of the texts applicable when the disputed decision was taken. Consequently Articles 59, 60 and 61 of the new Staff Regulations and the new Statute of the Appeals Board which took effect after the appeals were lodged, did not apply to these appeals, except as regards the composition, procedure and working methods of the Board. b. Admissibility 32. The Secretary General's principal claim was that the appeals were inadmissible in that they had been brought against an act which did not constitute a "decision" within the meaning of Article 2, paragraph 1 of the Statute of the Appeals Board. He noted that the forms of appeal lodged by the appellants all referred to the letter of 14 January 1981 sent to Mrs Farcot by the Director of Administration and Finance as the decision against which the appeals were brought. However, the Secretary General considered that the act complained of did not contain any decision strictly speaking that was capable of giving rise to a dispute. Its purpose was merely to inform Mrs Farcot of the present state of the question which concerned her. It was moreover expressly stated therein that "no decision has been taken but that the Council of Europe intends to clarify the situation in the near future" (translation). It was an interim reply and consequently did not constitute an administrative act with legal effect. As the act complained of did not come within the category of an administrative act with legal effect, it thus fell outside the scope of Article 2, sub-paragraph 1, of the Statute of the Appeals Board. As a result, the appeals brought against the alleged decision contained in the letter were inadmissible. 33. The appellants could not allege that the act complained of was the alleged decision in the letter of 27 April 1981 sent to Mrs Farcot by the Director of Administration and Finance.Not only was this letter a mere confirmation of the implied decision to reject the application, taken by the Secretary General on 27 February 1981, but also the appellants had failed to

8 comply with the procedure for administrative complaints laid down in Article 32 of the Staff Regulations in force at the relevant time. 34. The Secretary General's subsidiary claim was that the appeals did not comply with the time-limits in force at the period in question. Indeed, under Article 3, paragraph 3, sub-paragraph 1, of the Statute of the Appeals Board "Appeals shall be lodged with the Secretariat of the Appeals Board within 30 days of notification of the Secretary General's decision to reject the application ( ). In the absence of a decision by the Secretary General concerning the application, the period shall run from the date of expiry of the time-limits within which, under Article (32) of the Staff Regulations, the Secretary General may decide on the application. " Paragraph 1 of Article 32 of the Staff Regulations provided that: "The Secretary General shall be allowed 30 days from the date of receiving the application (for the withdrawal or amendment of an individual decision applicable to the staff member) to take a decision thereon ( )". Paragraph 3 of that Article provided that :"If,he Secretary General rejects an application or takes no decision thereon within the time-limits provided for in paragraph 1 above, the applicant may lodge an appeal with the Appeals Board ( )". 35. In the present case the act against which the appeal was brought is dated 14 January With regard to the application for a withdrawal of that alleged decision, of the three dates stated by the appellants in the forms of appeal, i.e. 28 January, 25 March and 1 April 1981, the first should be regarded as the relevant one. In the letter of that date, Mrs Farcot not only admitted that the letter of 14 January constituted a refusal to implement the decision which she alleged was taken on 6 May 1980, but she also put forward various arguments which, in her opinion, should lead the Secretary General to revoke his refusal. She concluded by "stating the terms of her request", namely that the Organisation should grant conference interpreters the type of social security cover claimed by them. The application was therefore sufficiently precise to provoke a decision rejecting it. 36. Furthermore, the reference in that letter to Article 32 of the Staff Regulations and the fact that the appellant, by virtue of that letter, had complied with the time-limit laid down in that article for lodging an application, amply demonstrate that the letter of 28 January 1981 is in fact the application for a withdrawal of a decision referred to in Article 32, paragraph 1 of the Staff Regulations. The two other dates stated by the appellants had no bearing whatever on the timelimits, as the Secretary General's position had been made clear before these letters by his implied decision of rejection. 37. In these circumstances, under the above-mentioned provisions there had been an implied decision by the Secretary General to reject the application within 30 days of 28 January 1981, when the application for a withdrawal of that decision was made, i.e 27 February 1981, and the

9 appeals ought therefore to have been brought within the following 30 days, i.e. 29 March 1981 at the latest. As the appeals were lodged on 26, 27 May and 2 June 1981, they were after the timelimit. 38. The Secretary General pointed out (see supra para. 33) that the letter of 27 April 1981 could not constitute the decision rejecting the application and that as a result the appeals brought on 26 and 27 May 1981 did not comply with the stipulate time-limits. 39. Finally, he considered that there was in the present case no circumstance which could justify resort to Article 3, paragraph 3, sub-paragraph 2, of the Statute, of the Board, under which the Boar may "( ) in exceptional circumstances ( ) declare admissible an appeal lodged after the expiry of these periods". 40. In these circumstances, the Secretary General concluded that the appeals were out of time and consequently inadmissible. c. The merits 41. The Secretary General pointed out that the letter of 6 May 1980 could not have conferred an individual right on the appellants to be affiliated to the general French Social Security scheme. That letter was only a declaration of intention to proceed with such affiliation and was consequently without any legal effect. Moreover, that letter was not sent to Mrs Farcot but to the "Caisse Mutuelle des Professions Libérales", Mrs Farcot having received a copy of the letter only as "spokesman" for a number of temporary interpreters. 42. Furthermore, the Secretary General submitted that the choice of social security cover for staff employed by the Council of Europe was a policy matter for the Organisation itself. Any decision taken on this question would be therefore in the nature of a regulation. 43. However, in the present case the agreement entered into by the AIIC and the Coordinated Organisations including the Council of Europe on the working conditions of conference interpreters stipulated that the conditions of affiliation of the latter to the general French social security scheme must be incorporated in a preliminary additional clause to that agreement. The Secretary General was therefore entitled to rely on this important formality, required under the agreement for the entry into force of regulations under which individual measures may be taken, to justify the fact that the solution envisaged could not have been implemented. Therefore, in the absence of such individual measures, no right to be affiliated was conferred on the appellants. 44. As regards the submission that the appellants were temporary staff members of the Council of Europe and consequently were entitled to rely on the alleged non-compliance with Articles 5 and 6 of the Agreement entered into on 21 December 1959 by the Council of Europe and France, the Secretary General submitted that the Board was not competent ratione materiae to consider this complaint. Article 2 of the Statute of the Appeals Board provided

10 that only disputes in which appellants "base their case on non-observance of the Staff Regulations, the Administrative Rules or the conditions of employment" may be referred to it. The alleged non-observance of that Agreement did not come within the categories laid down by that provision. 45. Furthermore, the Secretary General noted that the claim that the appellants were temporary staff members was based on an incorrect analysis of their legal status within the Council of Europe. The staff of the Organisation comprised different categories: permanent staff members, temporary staff members, other categories of staff employed on a temporary basis or for a special task. The status of staff member, whether the person was a permanent or temporary staff member, could not be presumed: it was conferred by the Secretary General by being mentioned in the contract of appointment, pursuant to the staff management powers conferred on him. The other categories of staff appointed on a temporary basis or for a special task included those whose contracts defined them otherwise than "staff" members. As regards the appellants, whose situation was exclusively contractual, their contracts of appointment stated that they were appointed as "temporary interpreters". 46. The "evidence" relied on by the appellants to support their allegation was not relevant. It only concerned the Organisation's internal administration. Similarly, the fact that some clauses in their contracts of appointment included the terms of various provisions of the Staff Regulations could not result in implied recognition of their status as temporary staff members. The tax exemption to which the appellants were entitled was a practice introduced at the request of professional bodies of conference interpreters. 47. Consequently, the submission that the appellants are temporary staff members could not be accepted. THE LAW 48. The appellants brought their appeals against the Secretary General's refusal to take the measures mentioned in the letter of 6 May 1980 concerning their affiliation to the general French Social Security Scheme. They requested the alleged decision to refuse such affiliation to be set aside. They also requested the Board : - to order the Council of Europe to pay each of the appellants Frs compensation for the damage they suffered ; - to order the Council of Europe to pay the costs incurred by these appeals.

11 49. In support of their appeals, the appellants claimed that they had the status of temporary staff members and that accordingly they came within Articles 5 and 6 of the Agreement entered into on 21 December 1959 between France and the Council of Europe on the application of French Social Security legislation to the staff of this Organisation. They claimed that the affiliation decision taken on 6 May 1980 conferred on them an individual right to that affiliation. - The competence of the Appeals Board 50. The Secretary General submitted that the appeals must be considered on the basis of the provisions in force when the disputed act was carried out (cf. supra para. 31). 51. The Board notes that Article 2, paragraph 1 of the former Statute of the Board provided that the Board "shall have authority to settle disputes... concerning individual decisions applying (to the appellant)..." and under Article 6, paragraph 1 of the same Statute "Where the Board allows an appeal, it shall annul the disputed decision. It may also order the Council of Europe to pay the appellant compensation for damage sustained as a result of an irregularity committed by the Secretary General''. Article 59, paragraph 1 of the present Staff Regulations changed this situation. It extended the competence of the Board, empowering it to review "any individual or general decision or measure taken by the Secretary General". In addition, under paragraph 2 of Article 60 of these Regulations "The Appeals Board, after establishing the facts, shall decide as to the law. In disputes of a pecuniary nature it shall have unlimited jurisdiction. In other disputes, it may annul the act complained of. It may also order the Council to pay the appellant compensation for damage resulting from the act complained of". 52. However, where, as in the present case, the competence of the body required to take a decision is wider than it was when the appeals were brought, it exercises its power of review on the basis of this extended competence, especially as the appellants are complaining of a continuing situation affecting what they regard as their present right to specific social security cover. In taking this decision, the Board relies on the principle of the proper administration of justice, a general principle of law. - The admissibility of the appeals 53. The Secretary General's principal submission was that the appeals were inadmissible 'because - they had been brought against an act which did not constitute a decision, an d - even supposing that the appeals were based on a decision, they did not comply with the time-limits laid down in Article 3, paragraph 3, sub-paragraph 1, of the Statute of the Appeals Board in force at the relevant time.

12 54. The appellants challenged this submission (cf. supra para. 25 to 27). 55. As regards the nature of the disputed act, the documents lodged in the file show that the appeals referred to the letter of 14 January 1981 sent to Mrs Farcot, which constituted a reply to the request she had made to the Secretary General on 17 December 1980 asking him to take all the necessary measures to affiliate conference interpreters to the general French Social Security Scheme, in accordance with the notification she had received in the letter of 6 May The Board notes that on 9 December 1980, the Secretary General informed the competent French authorities that the Council of Europe was not in a position to go ahead with the affiliation of temporary interpreters from This information was communicated to Mrs Farcot in a letter of 14 January These appeals have been brought against the refusal to affiliate the appellants, stated in a letter of 9 December 1980 sent to the competent French authorities, a copy of which was sent, inter alia, to the negotiating delegation of the AIIC. 58. The letter of 9 December 1980, which noted the position adcpted by the Secretary General as regards the social security cover of conference interpreters, is a decision capable of adversely affecting the appellants and an act whose validity the Board is entitled to review in accordance with Articles 59, paragraph 1 and 60, paragraph 2 of the new Staff Regulations. 59. As regards compliance with the time-limits laid down in Article 3, paragraph 3, subparagraph 1 of the Statute of the Board, the latter notes that the decision not to affiliate the appellants had been communicated to the competent French authorities on 9 December 1980 and that the time-limits for the purposes of bringing an appeal ran from 14 January 1981, when Mrs Farcot was notified of the above-mentioned decision. 60. The Board considers that the letter written on 28 January 1981 by Mrs Farcot is a clear request for the withdrawal of the Secretary General's decision, so that the implied decision of rejection should be considered as having been taken on 27 February 1981 and that, strictly speaking, the appeals had therefore to be brought at the latest by 29 March However, they were not lodged until 26, 27 May and 2 June In determining whether these appeals comply with the time-limits laid down in Article 3, paragraph 3, sub-paragraph 1 of the Statute of the Board, it is not sufficient to refer to the dates ; regard must be had to the substance of the communication and the precise meaning that can be attributed to it on the basis of the terms in which it is written. However, the Board considers that the terms of the communication (cf. supra para. 18) are so vague that they could reasonably have raised a doubt in the minds of the addressees as to its nature and meaning. In this respect, the Board notes that in spite of the repeated requests of Mrs Farcot Icf. supra para. 19 and 20), the Secretary General did not provide her with any reply until Mrs Farcot revealed her intentions in her letter of 1 April 1981 (see supra para. 21).

13 62. In addition the Board notes that the Secretary General could not, without being inconsistent, claim, at the same time, on the one hand that the communication of 14 January 1981 was nothing more than an interim reply (cf. supra para. 32) and that on the other hand the time-limits would take effect from the date of this same communication as if it had been a substantive decision (cf. supra para. 35 to 37). 63. The Board considers accordingly that the "exceptional circumstances", covered by sub-paragraph 2 of Article 3, paragraph 3 of the Statute of the Board, are of a nature to lead it to declare the appeals admissible although they were lodged outside the time-limits. - The merits of the appeals 64. The appellants relied on two grounds of appeal i. they maintained that as temporary staff members, Articles 5 and 6 of the Agreement entered into on 21 December 1959 between France and the Council of Europe on the application of French Social Security legislation to the staff of this Organisation, applied to them ; ii. the decision of 6 May 1980 had conferred on them an individual right :o be affiliated to the general French Social Security Scheme. 65. The Secretary General challenged these submissions maintaining i. that the appellants did not have the status of temporary staff members and that they could not validly rely on the Agreement of 21 December 1959 in order to claim affiliation to the general French Social Security Scheme ; ii. that the letter of 6 May 1980 was merely a declaration of intention and could not therefore amount to a decision to affiliate them, conferring on them an individual right to such affiliation. i. First ground of appea l 66. The Board considers that the solution to this dispute must be based on the general principle of welfare law (cf. in particular, Article 12 of the European Social Charter), whereby every employer is obliged to ensure that the staff he employs has proper social security cover. This principle is binding on the legal system of the Council of Europe and applies to all the Organisation's staff. 67. It is a matter for the administrative authority, when implementing this general principle, to take account of the characteristics arising out of the organisation of the staff employed. 68. There are three categories of staff in the Council of Europe: permanent staff members, temporary staff members and staff employed on an occasional basis, i.e. on a temporary basis or for a specific task. Whereas permanent staff members are appointed to a permanent post in the Organisation in accordance with the procedure laid down by the Regulations on Appointments and are accordingly subject to a statutory system, temporary members of staff and staff recruited on an occasional basis are subject primarily to a contractual relationship

14 69. As these groups of persons are in different situations, it is a matter for the administrative authority to adapt social cover to the different situations. 70. The Secretary General has undoubtedly a wide discretionary power of management in this area. However this power must be exercised with regard for the legal considerations and the factual circumstances which apply to each situation. 71. The appellants relied on several pieces of evidence that in their opinion conferred on them the status of temporary staff members, thereby justifying their affiliation to the general French Social Security Scheme (cf. supra para. 30) 72. The Board considers that the adtninistrative situation of "temporary conference interpreters" cannot be defined in a general and uniform way. 73. When, having regard to the contents and duration of their contracts of employment, their contracts only run for a short period for the performance of a specific task, these interpreters come within the category of occasional staff of the Council of Europe. A contract of this nature taken alone, would not entitle these interpreters to be affiliated to the general French Social Security Scheme. 74. It is necessary to look beyond the appearance of the terms used to the particular circumstances of each individual interpreter. The nature and conditions of performance under the authority of the Secretary General, of the tasks demanded, the length of the appointment, the frequency with which the Organisation uses the services of the same person on a occasional basis are factors which, when taken together, make it possible to ascertain when the person is economically dependent on the Organisation and integrated into one of its departments. 75. However, unlike temporary staff members, the degree of economic dependence and integration of interpreters appointed on an occasional basis whose situation is c'naracterised by these objective criteria is likely to change in accordance with the specific circumstances of each person concerned. 76. When a person appointed on an "occasional basis", fulfils such conditions his situation must be assimilated to that of "temporary staff members" as regards affiliation to the general French Social Security Scheme, an element of the conditions of service of this category of staff of the Organisation. Consequently, a person must, where he so requests, be given the benefit of social security cover which in the same conditions protect him against the same risks as those against which temporary staff are protected under the terms of the Agreement of 21 December It is clear from the information presented to the Board at the hearing that the interpreters employed on an occasional basis carry out a considerable part of the interpretation work at the Council of Europe. The case of Mrs Farcot is a striking example of long term assistance given to the Council of Europe by interpreters employed on an occasional basis.

15 The evidence available to the Board does not enable it to establish whether all or some of the other appellants are in a situation of economic dependence and integration. The fact remains however that, as regards the application to these cases of the principle of welfare law, - the right to proper social security cover-it was incumbent upon the Secretary General to take the appropriate decision in each particular case in regard the criteria set out above. However, the decision in dispute, which covers indiscriminately all the interpreters appointed on an occasional basis, is general in its effect and does not take account of the factual and legal distinctions relevant the situation of each of them. The decision is of a kind which will adversely affect the individual right to affiliation to the general French Social Security Scheme which could be claimed by those of the appellants who were in a state of economic dependence and integrated into a service of the Council of Europe in the light of the objective factors to which the Board has referred above. 78. The Board considers that the decision in dispute is tainted with illegality as the Secretary General had refused by a decision which was general in its effect to extend the benefit of affiliation to the scheme of French Social Security to all the appellants without distinguishing, giving reasons, between those who fulfilled the conditions of economic dependence and integration and those whose employment did not have these characteristics. In taking such a decision, the Secretary General did not apply to those who were entitled to their benefit the rules of law mentioned above (cf. supra para. 72 to 77). ii. Second ground of appeal 79. The appellants maintained that in the communication of 6 May 1980, the Secretary General recognised the existence of the right of "temporary conference" interpreters to affiliation to the general French Social Security Scheme as temporary staff members coming within the scope of Articles 5 and 6 of the Agreement of 21 December 1959 and that this amounted in their case to a recognition of an individual right. 80. The Board considers that interpreters whose situation shows that they are economically dependent on the Council of Europe and integrated into one of its departments, have, owing to these circumstances, an individual right to be affiliated to the general French Social Security Scheme (cf. supra para. 74 to 77), but that it is not on the communication of 6 May 1980 that they may validly rely in order to claim that they have such an individual right. - The claim for compensation 81. The appellants are also applying for Frs' compensation to be paid to each of them for damage arising out of the Secretary General's refusal to affiliate them to the general French Social Security Scheme.

16 The Board notes that the appellants have provided no evidence that could establish damage. For these reasons, The Board: Declares the appeals admissible; Declares them founded; Sets aside the decision of 9 December 1980, notified on 14 January 1981; Dismisses as unfounded the claim for compensation; Decides that the Council of Europe shall reimburse the appellants, up to a sum of five thousand Francs, for the expenses incurred by all of the appellants. Delivered at the public hearing in Strasbourg on 23 February 1983, the French text of the decision being authentic The Secretary to the Appeals Board The Chairman of the Appeals Board M. de SALVIA W.J. GANSHOF VAN DER MEERSCH