CELEX: 62009FJ0029
Civil service
Officials
Remuneration
Article 64 of the Staff Regulations
Third subparagraph of Article 3(5) and Article 9 of Annex XI to the Staff Regulations
Correction coefficient
Equal treatment

By application lodged at the Registry of the Tribunal on 30 March 2009, Mr Lebedef and Mr Jones requested the annulment of
an alleged decision of the Commission of the European Communities refusing to increase the purchasing power of officials employed
in Luxembourg (Luxembourg) to a level equivalent to that of officials employed in Brussels (Belgium) and, in the alternative,
annulment of their pay slips as from June 2008.

Legal context
Under Article 64 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’):
‘An official’s remuneration expressed in [EUR] shall, after the compulsory deductions set out in these Staff Regulations or
in any implementing regulations have been made, be weighted at a rate above, below or equal to 100%, depending on living conditions
in the various places of employment.
… The weighting applicable to the remuneration of officials employed at the provisional seats of the Communities shall be
equal to 100% as at 1 January 1962.’
Article 1 of Annex XI to the Staff Regulations, entitled ‘Rules for implementing Articles 64 and 65 of the Staff Regulations’,
provides:
‘1. Report from the Statistical Office of the European Communities (Eurostat)
For the purposes of the review provided for in Article 65(1) of the Staff Regulations, Eurostat shall draw up every year before
the end of October a report on changes in the cost of living in Brussels, the economic parities between Brussels and certain
places in the Member States, and changes in the purchasing power of salaries in national civil services in central government.
…
3. Changes in the cost of living outside Brussels (economic parities and implicit indices)
…
(d)      Outside Belgium and Luxembourg, changes in the cost of living during the reference period shall be measured by the implicit
indices. These indices are calculated by multiplying the Brussels International Index by the change in the economic parity.
…’
The first subparagraph of Article 3(5) of Annex XI to the Staff Regulations provides:
‘No correction coefficient shall be applicable in Belgium and Luxembourg.’
In the words of Article 5(3) of Annex XI to the Staff Regulations:
‘For each place for which a correction coefficient has been set (other than Belgium and Luxembourg), an estimate for December
of the economic parities mentioned in Article 1(3) shall be calculated. The change in the cost of living shall be calculated
according to the rules set out in Article 1(3).’
Last, Article 9(1) of Annex XI to the Staff Regulations provides:
‘The appropriate authorities of the Member States concerned, the administration of an institution of the [European Union]
or the representatives of officials of the [European Union] in a given place of employment can request the creation of a correction
coefficient specific to that place.
This request should be supported by objective factors revealing an appreciable difference over some years in the cost of living
between that place of employment and the capital of the Member State concerned (except for the Netherlands where The Hague
is used instead of Amsterdam). If Eurostat confirms that the difference is appreciable (more than 5%) and sustainable, the
Commission should present a proposal to set a correction coefficient for that place.’

Background to the dispute
Being of the view that for several years the purchasing power of officials employed in Luxembourg had consistently shown signs
of falling by comparison with that of officials employed in Brussels, Mr M. Ott, President of the Solidarité Européenne trade
union, wrote to Mr S. Kallas, Vice-President of the Commission, on 28 October 2005 requesting him to initiate a study into
the possibility of setting a correction coefficient for Luxembourg.
By letter of 29 October 2005 Mr Kallas replied that it was not in the interest of the staff to initiate work with the aim
of creating a correction coefficient for Luxembourg, on the ground, in particular, that such a measure required an amendment
of the Staff Regulations, which entailed the risk of renegotiation of the method for the annual adaptation of remunerations,
which was arrived at ‘after long and difficult negotiations in the context of the reform’.
On 3 April 2007 the interinstitutional trade union collective, composed of several trade unions and professional associations
of the European Parliament, the Commission and the Court of Justice of the European Union, sent a memorandum to the Director-General
of Eurostat requesting that he carry out a study in order to establish whether the difference in purchasing power of officials
employed in Luxembourg was appreciable by comparison with those employed in Brussels, and to set in motion the procedure provided
for in Article 9 of Annex XI to the Staff Regulations with a view to creating a specific correction coefficient for Luxembourg.
By memorandum of 6 June 2007 the Director-General of Eurostat replied that any request to establish a correction coefficient
was outside the competence of Eurostat and should be addressed to the Directorate-General (DG) ‘Personnel and Administration’
of the Commission.
By memorandum of 12 April 2008 a number of trade unions and professional associations, acting together as a common union front,
requested the Director-General of DG ‘Personnel and Administration’ to arrange an interinstitutional agreement on the loss
of purchasing power of the staff of the institutions.
By letter of 12 September 2008, registered by the administration on 15 September 2008, the applicants lodged a complaint against
their pay slips for June 2008, which contained a correction of the adjustment of remunerations which had been made at the
end of 2007, but without containing a specific correction coefficient for their place of employment, and also against the
pay slips for the following months.
By decision of 17 December 2008, notified by letter of 18 December 2008, the appointing authority rejected that complaint.

Forms of order sought by the parties and procedure
The applicants claim that the Tribunal should:
‘—      [p]rincipally, annul the implicit refusal to increase the purchasing power of the remuneration in Luxembourg to an equivalent
level to that of the purchasing powers of remuneration in Brussels;
—      [i]n the alternative, annul the applicants’ pay slips issued in the period after 15 June 2008’;
—      order the Commission to pay the costs.
The Commission contends that the Tribunal should:
—      dismiss the action;
—      order the applicants to pay the costs.
By letter received at the Registry of the Tribunal on 25 June 2009 by fax (the original having been lodged on 29 June 2009),
the Council of the European Union sought leave to intervene in the case in support of the form of order sought by the Commission.
The President of the Third Chamber of the Tribunal granted that request by order of 7 September 2009.
In its statement in intervention, which was received at the Registry of the Tribunal on 16 October 2009 by fax, the Council
submitted that the Tribunal should dismiss the action as manifestly inadmissible and, in the alternative, as unfounded with
respect to a plea of illegality raised by the applicants in support of their action.

Admissibility of the action

Arguments of the parties
The Commission maintains that the action is inadmissible, whether it is directed against the alleged refusal to create a correction
coefficient for Luxembourg or against the applicants’ pay slips as from June 2008.
First, the Commission observes that all the steps taken prior to the complaint were of a trade union and political nature,
but were not in accordance with the Staff Regulations. There was never a request, within the meaning of Article 90(1) of the
Staff Regulations, from an official acting in an individual capacity.
In any event, in so far as it is directed against the alleged refusal to create a correction coefficient for Luxembourg, the
action is out of time, as no complaint was lodged within three months of Mr Kallas’s rejection of the request of October 2005
or within three months of the Director-General of Eurostat’s refusal to carry out the requested calculations. The Commission
also observes that the applicants were not the authors of the requests in question.
Nor does the application have the same object as the previous steps. Its main object is to complain of the absence of a correction
coefficient for Luxembourg, which, in the applicants’ submission, would necessarily be higher than the correction coefficient
for Brussels, whereas the previous steps concerned the absence of calculations or agreement.
Second, the Commission acknowledges that an action by an official against his pay slip has been held to be admissible in so
far as that pay slip did not contain a correction coefficient to which the official considered he was entitled (see, to that
effect, Case T‑64/92
Chavane de Dalmassy and Others
v
Commission
[1994] ECR-SC I‑A‑227 and II‑723). However, that possibility assumes that the pay slip in question represents a change in
situation or a new decision — which was not the case in June 2008.
At the hearing, the applicants claimed, first of all, that they were entitled to challenge directly before the Tribunal the
implied refusal to increase the purchasing power of officials employed in Luxembourg to a level equivalent to the level of
purchasing power of officials employed in Brussels, by establishing a specific correction coefficient; next, that the June
2008 pay slip revealed a change in situation, in that it contained a correction of the adjustment of remunerations which had
been made following the annual examination carried out at the end of 2007, without containing a correction coefficient for
Luxembourg; and, last, that the time-limits prescribed for lodging a complaint and bringing an action had been fully observed.

Findings of the Tribunal
The action in so far as it is directed against the alleged refusal to increase the purchasing power of officials employed
in Luxembourg to a level equivalent to that of the purchasing power of officials employed in Brussels
It should be borne in mind that, in the system of remedies organised by Articles 90 and 91 of the Staff Regulations, an action
against an implied decision rejecting a complaint requires either:
—      the introduction of a request, under Article 90(1) of the Staff Regulations, by the official concerned, which, in the absence
of a reply from the appointing authority within four months, is deemed to be impliedly rejected, in which case the official
may, within a fresh period of three months, submit a complaint to the appointing authority, pursuant to Article 90(2) of the
Staff Regulations; or
—      the introduction of a prior complaint against an act adversely affecting the person concerned, pursuant to Article 90(2) of
the Staff Regulations, the lack of reply whereto within a period of four months from the date of submission of the complaint
being treated, in accordance with the second subparagraph of Article 90(2), as an implied decision rejecting the complaint,
against which an action may be brought under Article 91 of the Staff Regulations.
In the present case, the pre-litigation procedure cannot be regarded as having been correctly followed by the applicants.
First, the applicants failed to submit a request, under Article 90(1) of the Staff Regulations, that the purchasing power
of officials employed in Luxembourg should be increased to a level equivalent to that of the purchasing power of officials
employed in Brussels, since even on the assumption that the letters of 28 October 2005, 3 April 2007 and 12 April 2008 might
be treated as requests within the meaning of Article 90(1) of the Staff Regulations, they did not originate with the applicants
themselves.
Second, and in any event, the replies of 29 November 2005 from Mr Kallas and of 6 June 2007 from the Director-General of Eurostat
were not acted upon during the periods prescribed for submitting a complaint and bringing an action. Likewise, no step was
taken by the trade unions and professional associations after their request of 12 April 2008 failed to elicit an express reply
from the Director-General of DG ‘Personnel and Administration’.
The action must therefore be dismissed as inadmissible in so far as it is directed against the alleged implied decision refusing
to increase the purchasing power of officials employed in Luxembourg to a level equivalent to that of the purchasing power
of officials employed in Brussels.
The action in so far as it is directed against the applicants’ pay slips issued from June 2008
It is clear from the application that the applicants raise, in substance, in support of their action against their pay slips
from June 2008, pleas against the first subparagraph of Article 3(5) of Annex XI to the Staff Regulations, in order to claim
before the Tribunal that that provision is inapplicable.
It should be borne in mind at the outset that Article 241 EC, which was applicable on the date on which the action was brought
and which, after amendment, is now Article 277 TFEU, provides that in proceedings in which the lawfulness of a regulation
referred to in that provision is at issue, any party may plead, in particular, in support of an action against an implementing
measure, the grounds specified in the second paragraph of Article 230 EC, now, after amendment, the second paragraph of Article
263 TFEU. It is settled case-law that that remedy is the expression of a general principle which ensures that every person
has or will have had the opportunity to challenge a legal act deriving from the Union which forms the basis of a act adversely
affecting him (Case 92/78
Simmenthal
v
Commission
[1979] ECR 777; Case 262/80
Andersen and Others
v
Parliament
[1984] ECR 195; and Case C‑11/00
Commission
v
ECB
[2003] ECR 7147, paragraphs 74 to 78). The rule laid down in Article 241 EC is evidently applicable in proceedings brought
before the Tribunal under Article 236 EC, now, after amendment, Article 270 TFEU.
However, it also follows from the case-law that the possibility provided by Article 241 EC of invoking the inapplicability
of a regulation does not constitute an independent right of action and may only be sought incidentally, so that where there
is no right to bring the main action or where the main action is inadmissible the plea of inadmissibility must also be declared
inadmissible (Case 33/80
Albini
v
Council and Commission
[1981] ECR 2141, paragraph 17, and Joined Cases 89/86 and 91/86
Étoile commerciale and CNTA
v
Commission
[1987] ECR 3005, paragraph 22).
According to Articles 90 and 91 of the Staff Regulations, the complaint and, consequently, the action may be directed only
against a act adversely affecting the applicant that is adopted by the appointing authority. It is also settled case-law that
a act adversely affecting a person, for the purposes of Article 90(2) and Article 91(1) of the Staff Regulations, is one which
produces binding legal effects such as to have a direct and immediate effect on the applicant’s interest by significantly
altering his legal position (Case F‑101/05
Grünheid
v
Commission
[2006] ECR-SC I‑A‑1‑55 and II‑A‑1‑199, paragraph 33 and the case-law cited).
The Tribunal must therefore ascertain whether the action, in so far as it is directed against the applicants’ pay slips issued
from June 2008, meets the requirements of Articles 90 and 91 of the Staff Regulations.
In that regard, it must be emphasised that a pay slip, by its nature and its purpose, does not possess the characteristics
of a measure aversely affecting the official concerned, since it merely represents in financial terms the substance of previous
administrative decisions relating to the personal and legal situation of the official (Case F‑103/05
Pickering
v
Commission
[2008] ECR-SC I-A-1-101 and II-A-1-527, paragraph 72, and Case F‑112/05
Bain and Others
v
Commission
[2008] ECR-SC I-A-1-111 and II-A-1-579, paragraph 73). However, in so far as it clearly reveals the existence and the content
of an administrative decision of individual application, which had hitherto not been disclosed, provided that it had not been
formally notified to the official concerned, the pay slip, containing the statement of the financial rights, may be regarded
as a act adversely affecting the official concerned and capable of forming the subject-matter of a complaint and, where necessary,
an action (see, to that effect, Case T‑354/05
Reggimenti
v
Parliament
[2005] ECR-SC I‑A‑33 and II‑147, paragraphs 38 and 39, concerning the reimbursement of travel expenses, or order in Case T‑181/97
Meyer and Others
v
Court of Justice
[1998] ECR-SC I‑A‑151 and II‑481, concerning the deduction of an amount of family allowance received elsewhere). In those
circumstances, the communication of the pay slip has the effect of causing time to begin to run for the purposes of lodging
a complaint and bringing an action against the administrative decision adopted with respect to the official concerned and
reflected in the pay slip (
Pickering
v
Commission
, paragraph 75, and
Bain and Others
v
Commission
, paragraph 76).
The same applies when the pay slip gives material form, for the first time, to the implementation of a new act of general
application concerning the fixing of pecuniary rights, such as a decision amending the method used in calculating travel expenses
(Case T‑221/02
Lebedef and Others
v
Commission
[2003] ECR-SC I‑A‑211 and II‑1037, paragraphs 24 and 25); a decision amending a scale of parental contributions for nursery
services (Case T‑297/94
Vanderhaeghen
v
Commission
[1997] ECR-SC I‑A‑7 and II‑13); a regulation amending correction coefficients (Case T‑175/97
Bareyt and Others
v
Commission
[2000] ECR-SC I‑A‑229 and II‑1053;
Pickering
v
Commission
; and
Bain and Others
v
Commission
); a regulation adjusting the amount of remunerations (Joined Cases T‑98/92 and T‑99/92
Di Marzio and Lebedef
v
Commission
[1994] ECR-SC I‑A‑167 and II‑541); or a regulation introducing an exceptional crisis levy or a temporary contribution (Case
3/83
Abrias and Others
v Commission [1985] ECR 1995 and Joined Cases T‑97/92 and T‑111/92
Rijnoudt and Hocken
v
Commission
[1994] ECR-SC I‑A‑159 and II‑511).
In the latter situations, the first pay slip following the entry into force of an act of general application altering the
pecuniary rights of an abstract category of officials necessarily represents, in regard to its addressee, the adoption of
an administrative decision of individual application producing mandatory legal effects of such a kind as to have a direct
and immediate effect on the interests of the official concerned. Also, even on the assumption that it might be considered
that a new administrative decision of individual application is adopted every month by the appointing authority as to the
determination of the official’s pecuniary rights and is reflected in the corresponding pay slip, those successive decisions
would merely confirm the first decision which significantly altered the official’s legal situation in application of the new
measure of general application.
Consequently, an official who failed, within the periods prescribed for submitting a complaint and bringing an action, to
challenge the pay slip giving material form for the first time to the implementation of a measure of general application determining
pecuniary rights cannot validly, after those periods have lapsed, challenge the subsequent pay slips by invoking against them
the same illegality as that vitiating the first pay slip (
Pickering
v
Commission
, paragraphs 75 to 89, and
Bain and Others
v
Commission
, paragraphs 76 to 89).
However, the situation in the present case does not correspond to the situations described above. It is apparent on reading
the applicants’ arguments that the applicants essentially take issue with the Commission’s persistent application of the first
subparagraph of Article 3(5) of Annex XI to the Staff Regulations without having carried out a study of the possible difference
in purchasing power between Brussels and Luxembourg, whereas they claim that new economic circumstances have arisen which,
by reference in particular to the principle of equal treatment, no longer justify the application of that provision.
In that regard, it should be borne in mind that the principle of equal treatment is binding on the legislature, as the Commission
acknowledges, and that the establishment of weightings, provided for in Articles 64 and 65 of the Staff Regulations, is specifically
intended to implement that very principle, by maintaining an equivalent purchasing power for all officials, whatever their
place of employment (see, to that effect, Case 194/80
Benassi
v
Commission
[1981] ECR 2815, paragraph 5; Case C‑301/90
Commission
v
Council
[1992] ECR I‑221, paragraph 19; and order of 29 April 2004 in Case C‑187/03 P
Drouvis
v
Commission
, not published in the ECR, paragraph 25 and the case-law cited).
Where, as in the present case, the position of a party is that new factors have given rise to an obligation for the European
Union to adopt new normative measures, it is for that party, as a rule, to follow the procedures prescribed by the Treaty
and also by European Union legal acts (see, to that effect, Case C‑241/01
National Farmers’ Union
[2002] ECR I‑9079, paragraph 38).
However, it must be pointed out that Article 90(1) of the Staff Regulations only empowers officials to request the administration,
acting in its capacity as appointing authority, to take a decision relating to them. That is not the position in the present
case, since the applicants take issue with the Commission, essentially, for not having taken the political initiatives necessary
for a specific correction coefficient to be established in future for Luxembourg, which presupposes that the first subparagraph
of Article 3(5) of Annex IX to the Staff Regulations must be repealed. Such a request falls outside the scope of Article 90(1)
of the Staff Regulations, since a political initiative cannot be characterised as a ‘decision relating to [an official]’.
In those circumstances, and in the light of the procedural difficulties that would be encountered by an individual intending
to bring an action for failure to act, under Article 256 TFEU, against an institution in order to have a provision of a regulation
adopted by the EU legislature repealed (see, to that effect, in particular, Case C‑107/91
ENU
v
Commission
[1993] ECR I‑599, paragraphs 16 and 17), to preclude, in application of the case-law referred to at paragraphs 33 to 36 above,
the possibility for an official to challenge his pay slip on the ground of a change in factual circumstances, such as a change
in economic conditions, by raising, on that occasion, a plea of illegality against a provision of the Staff Regulations which,
while perhaps valid when adopted, has, in the submission of the official concerned, become unlawful as a consequence of that
change in circumstances, would render it practically impossible to exercise a remedy designed to ensure compliance with the
general principle of equal treatment recognised by EU law and would thus constitute a disproportionate interference with the
right to effective judicial protection.
It is therefore appropriate, in the very particular circumstances of the case, in order to maintain their right of action,
to accept that officials may challenge their pay slips by raising against a provision of the Staff Regulations fixing their
pecuniary rights a plea of illegality alleging, in particular, breach of the principle of equal treatment, notwithstanding
the restrictions arising under the case-law referred to at paragraphs 33 to 36 above.
In the light of all the foregoing, the plea alleging that the action is inadmissible in so far as it is directed against the
applicants’ pay slips from June 2008 onwards must be rejected.

Merits
In support of their action, the applicants raise four pleas in law, the first three, which are developed together in the application,
alleging breach of the principle of equal treatment and non-discrimination, the principle of sound administration and the
principle of protection of legitimate expectations; and the fourth alleging breach of Article 64 of the Staff Regulations.

The first three pleas
Arguments of the parties
The applicants claim that the cost of living in Luxembourg is higher than in Brussels. In support of that assertion, they
refer to the national minimum wage and the cost of housing and also to data disseminated by the bank UBS, informal calculations
obtained by Eurostat statisticians and the assessments of colleagues who, in the context of mobility, have moved from Luxembourg
to Brussels or vice versa.
As Luxembourg is the only place of employment without a correction coefficient, the applicants maintain that the breach of
the principle of equal treatment and non-discrimination is manifest.
In the applicants’ submission, it is difficult, indeed impossible, to calculate a correction coefficient for Luxembourg in
the absence of the international index of the cost of living in that city, which should be established by means of a survey
carried out by Eurostat, which has never been done.
By failing to act on the staff representatives’ requests to that effect, which is apparent upon reading the pay slips for
June 2008 and subsequent months, the Commission failed to comply with Article 9 of Annex XI to the Staff Regulations and breached
the principle of sound administration. The applicants take the view that that Article, in referring to ‘an appreciable difference
… in the cost of living between [a given] place of employment and the capital of the Member State concerned’, refers in reality
to ‘an appreciable difference of purchasing power in a given place of employment by comparison with that found in the place
of employment which determines the remunerations in that given place of employment as well’.
Last, the applicants claim that, according to consistent case-law, the right to claim protection of legitimate expectations
extends to any individual on whose part the administration has given rise to well founded hopes. In the present case, the
applicants were given to believe that the absence of a correction coefficient for Luxembourg meant that the Commission had
carried out the necessary checks that enabled it to consider that there was justification for not making provision for such
a coefficient.
The Commission contends that the applicants have wholly failed to explain how Article 9 of Annex XI to the Staff Regulations
might have been breached, with respect to Luxembourg, since the first paragraph of Article 3(5) of that Annex, which has equal
rank, precludes the possibility of a correction coefficient for Luxembourg.
Indeed, the Commission does not deny that the legislature is generally bound by the principle of equal treatment. However,
with respect to the first subparagraph of Article 3(5) of Annex XI to the Staff Regulations, reliance on such a complaint
requires particularly detailed proof of the existence of a genuine and sustainable difference between Brussels and Luxembourg.
That is what follows from the case-law in cases where a coefficient fixed by the Council, on a given occasion, for a given
place of employment has been challenged. The same requirement of proof applies
a fortiori
where an applicant seeks to prove that the legislature disregarded, in the Staff Regulations themselves, the principle of
equal treatment by taking the view that two places of employment should be treated in the same way.
The Commission also refers to the wide discretion which the institutions enjoy when determining the factors to be taken into
consideration for the purpose of fixing correction coefficients, which has the consequence that only a manifest error of assessment
or a misuse of powers may be censured by the Tribunal (see, in particular, Joined Cases T‑201/00 and T‑384/00
Ajour and Others
v
Commission
[2002] ECR-SC I‑A‑167 and II‑885, paragraphs 47 to 49, and
Bareyt and Others
v
Commission
, paragraphs 57 and 64).
Yet the applicants fail to adduce the slightest evidence from which it might be inferred that there is any manifest error
of assessment in relation to the absence of a coefficient for Luxembourg.
First of all, in 2005 the President of the trade union Solidarité européenne, claiming that it was obvious that living was
more expensive in Luxembourg than in Brussels, requested the Commission to undertake a feasibility study of a specific coefficient.
However, Eurostat was not empowered to conduct an investigation into the family budgets of officials employed in Luxembourg,
with the aim of establishing such a coefficient, since as a matter of law the first subparagraph of Article 3(5) of Annex
XI to the Staff Regulations has the effect that such a coefficient cannot exist.
In addition, the Commission contends that the applicants rely merely on general and vague considerations, without the slightest
proof with respect to prices, on which it might be established that the cost of living in Luxembourg is indeed appreciably
and sustainably higher than the cost of living in Brussels.
Furthermore, the Commission maintains that the applicants’ reliance in the present case on Article 9 of Annex XI to the Staff
Regulations is incorrect, since that Article concerns the creation of a coefficient for a place other than the capital of
a State and not the capital itself, for which, in the case of Luxembourg, there is a special provision contained in the first
paragraph of Article 3(5) of that Annex.
The Commission further submits that the information available about the cost of living is by no means consistent with the
applicants’ assertions. It cites an example from
Mercer’s Cost of Living Survey
, which shows that in March 2008 the cost of living in Luxembourg (91.3) was lower than the cost of living in Brussels (92.9),
the index for New York being 100.
As regards the alleged breach of the principle of sound administration, the Commission observes that, according to the case-law,
a provision of the Staff Regulations cannot be challenged on that ground (Case T‑135/05
Campoli
v
Commission
[2006] ECR-SC I‑A‑2‑297 and II‑A‑2‑1527, paragraph 149).
As for the alleged breach of the principle of the protection of legitimate expectations, the Commission contends that the
applicants’ position is incoherent. The Commission would have understood it better if the applicants had maintained that the
administration had actually promised them that it would establish a specific coefficient for Luxembourg but had never done
so. In any event, it is precluded in law that the applicants can have had the slightest expectation of obtaining a coefficient
for Luxembourg, since the first subparagraph of Article 3(5) of Annex XI to the Staff Regulations expressly prohibits it.
Any promise to that effect, if it had existed, would have been contrary to the applicable provisions and therefore incapable
of giving rise to a legitimate expectation (Case T‑123/89
Chomel
v
Commission
[1990] ECR II‑131, paragraphs 26 to 30).
Findings of the Tribunal
The applicants take issue with the Commission, in substance, because, the first subparagraph of Article 3(5) of Annex XI to
the Staff Regulations notwithstanding, it did not instruct Eurostat to carry out statistical investigations that would enable
it to be established whether or not there was an appreciable difference in purchasing power to the detriment of officials
and other servants employed in Luxembourg by comparison with the purchasing power found in Brussels. They maintain that, by
its failure to act and in spite of the indicia produced by the applicants, which show that there has been an appreciable increase
in the cost of living in Luxembourg in recent years, the Commission breached the principles of equal treatment, sound administration
and the protection of legitimate expectations.
The applicants’ argument must therefore be understood as endeavouring to call in question principally the lawfulness of the
first subparagraph of Article 3(5) of Annex XI to the Staff Regulations in so far as that provision not only precludes the
possibility of establishing a correction coefficient for Luxembourg but also prevents the Commission from instructing Eurostat
to carry out the statistical investigations necessary to demonstrate the existence of any difference in the cost of living
between Brussels and Luxembourg, even though the indicia supplied by the applicants would justify initiating such investigations.
In that regard, it should be borne in mind that, according to consistent case-law, the purpose of the correction coefficients
affecting officials’ salaries provided for in Articles 64 and 65 of the Staff Regulations is to ensure that equivalent purchasing
power is maintained for all officials, whatever their place of employment, in accordance with the principle of equal treatment
(see, to that effect,
Benassi
v
Commission
, paragraph 5;
Commission
v
Council
, paragraph 19; and order in
Drouvis
v
Commission
, paragraph 25 and the case-law cited). It is for the Council, in accordance with Article 65(2) of the Staff Regulations,
where it finds an appreciable variation in the cost of living, to draw the appropriate conclusions by adjusting the correction
coefficients (
Commission
v
Council
, paragraph 24). The Court of Justice has added, with respect to an appreciable variation in the cost of living established
between a place of employment other than the capital of the Member State under consideration and the capital, that the Council
had no discretion as to whether to introduce a specific weighting for a place of employment (
Commission
v
Council
, paragraph 25).
It should also be borne in mind that the principle of equal treatment, which underlies the establishment of correction coefficients,
provided for in Articles 64 and 65 of the Staff Regulations, is also binding on the legislature, as the Commission acknowledges.
In the present case, it is clear that the applicants, who allege that officials employed in Luxembourg suffer discriminatory
treatment owing to the absence of a specific correction coefficient for that Member State, under the first paragraph of Article
3(5) of Annex XI to the Staff Regulations, are in a particularly difficult situation before the Tribunal as regards establishing
proof, owing to the technical difficulties associated with the gathering and preparation of sufficiently reliable statistical
data.
In those circumstances, the Commission cannot merely assert that the applicants have failed to demonstrate the existence of
an appreciable and sustainable gap between Luxembourg and Brussels, in support of their plea alleging breach of the principle
of equal treatment, while maintaining that it is impossible for the Commission to request Eurostat to initiate statistical
investigations in that regard, on the ground that the first subparagraph of Article 3(5) of Annex XI to the Staff Regulations
prohibits the establishment of a specific correction coefficient for Luxembourg. Were the Tribunal to follow it, such circular
reasoning would preclude the possibility of ensuring compliance with the principle of equal treatment of officials in the
field of remuneration and, in particular, the requirement to maintain equivalent purchasing power for all officials.
In those circumstances, in view of the technical difficulties associated with the definition and choice of basic data and
statistical methods, the applicants cannot be bound to demonstrate before the Tribunal, to the requisite legal standard, the
existence of an appreciable and sustainable increase in the cost of living in Luxembourg, by comparison with Brussels, capable
of establishing the existence of unequal treatment of officials, according to their place of employment. All that they are
required to do, as the Council conceded at the hearing, is to produce a body of sufficiently significant indicia disclosing
a possible difference in purchasing power of such a kind as to place the burden of proof on the Commission and, where appropriate,
to warrant administrative investigations being undertaken by Eurostat.
It is true that it follows from Article 65(2) of the Staff Regulations and from Article 9(1) of Annex XI to those Regulations
that only an appreciable increase in the cost of living in Luxembourg by comparison with Brussels could justify the adoption
of adjustment measures for the purpose of ensuring equivalence of purchasing power between officials employed in Luxembourg
and their colleagues working in Brussels. The principle of equal treatment cannot require perfect identity of officials’ purchasing
power, whatever their place of employment, but substantial correspondence of the cost of living between the places of employment
concerned. In view of the complexity of the matter, the legislature has in that regard a wide discretion and intervention
by the judicature must be limited to examining whether the institutions remained within reasonable limits by reference to
the considerations which prompted their action and did not use their powers in a manifestly incorrect manner (see, to that
effect, Joined Cases T‑544/93 and T‑566/93
Abello and Others
v
Commission
[1995] ECR-SC I‑A‑271 and II‑815, paragraph 76).
However, even though the applicants’ written pleadings are not very clear in that regard, the main complaint put forward in
support of the present action does indeed appear to be that the Commission persisted in applying the first paragraph of Article
3(5) of Annex XI to the Staff Regulations without having undertaken a study of the possible difference in purchasing power
between Brussels and Luxembourg. In such a context, judicial review is not limited to ascertaining whether there has been
a manifest error of assessment, but goes to whether or not the applicants have adduced sufficient indicia, such as sufficiently
substantiated figure-based or other studies from an authorised source, that would justify initiating an investigation.
However, in the present case, the applicants merely formulate a number of rather abstract considerations without providing
the slightest evidence susceptible of establishing at least a semblance of an appreciable difference warranting the initiation
of statistical investigations by Eurostat. In their application the applicants mention:
—      ‘data disseminated by UBS’, although those data are neither explained nor even produced;
—      unsubstantiated assertions relating to the national minimum wage, the price of accommodation and the price of renting offices
in Luxembourg;
—      ‘information obtained from colleagues who, in the context of mobility, have moved from Luxembourg to Brussels or from Brussels
to Luxembourg and have found that their purchasing power in Luxembourg is lower than that in Brussels’, without more specific
comment;
—      ‘informal calculations obtained by Eurostat statisticians’, also without further comment;
—      a letter of 6 March 2006 from the Director of Resources of the NATO Maintenance and Supply Agency, in which that Director
merely expresses his concern at the ‘increasing gap between the cost of living in Brussels and [the cost of living] in Luxembourg’;
—      and other assertions made in correspondence and trade union literature annexed to the application.
Such indicia are not sufficient to establish a semblance of an appreciable and sustainable difference in the cost of living
between the two places of employment in question, which, in the absence of a specific correction coefficient for Luxembourg,
would substantially reduce the purchasing power of officials employed in Luxembourg by comparison with that of their colleagues
working in Brussels, particularly since the Commission, for its part, has produced evidence suggesting, on the contrary, that
the cost of living is not as high in Luxembourg as in Brussels (see paragraph 57 above).
As for the alleged breach of the principle of sound administration, moreover, it is sufficient to observe that, in any event,
a provision of the Staff Regulations properly adopted by the Council cannot be called in question on the ground of an alleged
breach of such a principle (Case T‑256/01
Pyres
v
Commission
[2005] ECR-SC I‑A‑23 and II‑99, paragraph 66, and
Campoli
v
Commission
, paragraph 149).
Last, as regards the alleged breach of the principle of protection of legitimate expectations, it also suffices to observe
that the applicants have not been able to establish that they obtained precise assurances from the administration as to the
presence of an appreciable gap, with respect to officials’ purchasing power, between Brussels and Luxembourg, or indeed as
to the future adoption of a correction coefficient for Luxembourg. In any event, an official cannot rely on the principle
of protection of legitimate expectations in order to challenge the legality of a provision of the Staff Regulations, in this
case the first paragraph of Article 3(5) of Annex XI to the Staff Regulations, and to object to its application, as promises
made by the administration which do not have regard to the provisions of the Staff Regulations cannot give rise to a legitimate
expectation on the part of the person to whom they are addressed (see, to that effect,
Chomel
v
Commission
, paragraphs 26 to 30, and Case T‑175/03
Schmitt
v
EAR
[2004] ECR-SC I‑A‑211 and II‑939, paragraphs 46 and 47).
It is important to emphasise, in that regard, that the action is not directed against the refusal to comply with a request
to carry out a statistical investigation, but, in particular, against the pay slips, on the basis of a plea of illegality
directed against a provision of the Staff Regulations.
In view of all the foregoing, the first three pleas must be rejected.

The fourth plea
Arguments of the parties
The applicants note that, according to the second paragraph of Article 64 of the Staff Regulations, the weighting ‘applicable
to the remuneration of officials employed at the provisional seats of the Communities shall be equal to 100% as at 1 January
1962’. That, in their submission, means that over the years the weighting for Luxembourg may change. The applicants maintain
that Annex XI cannot limit the scope of Article 64 and they challenge the legality of Article 1(3)(d), Article 3(5) and Article
5(3) of Annex XI to the Staff Regulations, which refer to Luxembourg.
The applicants submit that there is a legal link between the contested individual decision, namely the Commission’s refusal
to increase the purchasing power of remuneration in Luxembourg to a level equivalent to that of the purchasing power of remuneration
in Brussels, and the general measure called in question, and that their plea of illegality is limited to what is essential
to the outcome of the dispute.
The Commission and the Council contend that the applicants put forward no argument in support of their fourth plea and that
this plea must therefore be rejected as inadmissible pursuant to Article 35(1)(d) and (e) of the Rules of Procedure.
As regards the merits, the Commission submits that, contrary to what the applicants suggest, Article 64 of the Staff Regulations
is not of a higher rank than the provisions of Annex XI. There is therefore no scope for maintaining that the latter provisions
may have infringed Article 64.
In reality, all the provisions referred to are of equal rank and should therefore be read together in order to ensure that
they are given a harmonious interpretation. Article 64 of the Staff Regulations cannot mean that a specific weighting may
be adopted for Luxembourg, since that would amount to interpreting that Article in such a way as to depart from the clear
wording of Article 3(3) or (5) of Annex XI. On the contrary, Article 64 must be understood as referring to cases other than
those to which particular provisions apply, such as those relating to Luxembourg.
The Council shares the Commission’s opinion in that regard and adds that, in so far as the applicants seek to take issue with
the provisions in issue in the light of the principle of equal treatment, it follows from Annex XI, and in particular from
Article 9(1) thereof, that it was not the legislature’s objective to ensure perfect identity, at any time, between the purchasing
power of officials employed in different places. That provision states that a request to create a new correction coefficient
‘should be supported by objective factors revealing an appreciable difference over some years in the cost of living between
[a given] place of employment and the capital of the Member State concerned’. Furthermore, as Advocate General Capotorti observed
in his Opinion in Case 158/79
Roumengous Carpentier
v
Commission
[1982] ECR 4379, ‘adjustment of the weightings is compulsory only in the event of a substantial increase in the cost of living[,
f]rom which it may be inferred that the aim of the Community legislature is not to ensure absolutely identical treatment (identical
purchasing power regardless of the place of employment), but substantial and reasonable equivalence of treatment, [with] possible
minor differences’. Even on the assumption that Article 9(1) of Annex XI to the Staff Regulations could be transposed, by
analogy, to the present case, it would follow that the lawfulness of the provisions in issue concerning Luxembourg, in the
light of the principle of equal treatment, could be called in question only where objective evidence revealed a significant
and sustainable difference in the cost of living between Brussels and Luxembourg.
In fact the applicants have adduced no objective evidence revealing such a difference between the two capitals, let alone
that such a difference was appreciable and sustainable.
Findings of the Tribunal
The applicants claim, in substance, that the provisions of Annex XI to the Staff Regulations, and in particular the first
paragraph of Article 3(5) thereof, cannot depart from Article 64 of the Staff Regulations, the letter and spirit of which
necessarily mean that the weightings affecting officials’ remuneration may be amended according to the living conditions in
the different places of employment.
In that regard, it is true that ‘Article 65
a
of the Staff Regulations provides that the rules for implementing Articles 64 and 65 are set out in Annex XI’. It may be inferred
that those implementing rules cannot depart from the basic rules laid down in Articles 64 and 65 of the Staff Regulations.
Generally, moreover, while there is not, strictly speaking, a formal hierarchy between the organic rules of the Staff Regulations
and the Annexes to those Regulations, as both categories of norms are adopted by the Council, there might exist between them,
depending on the case, a substantive hierarchy, given that the Annexes must be interpreted by reference to the foundations
and the system of the European Union civil service, as determined by the Staff Regulations in the strict sense.
In the present case, however, the applicants have not established that the provisions of Annex XI and, in particular, the
first paragraph of Article 3(5) thereof, disregard an essential rule set out in Article 64 of the Staff Regulations, as they
have failed to show that the legislature had unlawfully considered that living conditions in Brussels and in Luxembourg did
not justify the establishment of separate weightings. The question whether such an assessment constitutes a breach of the
principle of equal treatment or is vitiated by a manifest error of assessment was specifically examined in the context of
the first three pleas put forward in support of the action.
In the light of the foregoing, the fourth plea and, accordingly, the entire action must be rejected.

Costs
Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title II of those
Rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
Under Article 87(2), if equity so requires, the Tribunal may decide that an unsuccessful party is to pay only part of the
costs or even that he is not to be ordered to pay any.
It follows from the grounds set out above that the applicants have been unsuccessful. Furthermore, in its pleadings the Commission
expressly requested that the applicants be ordered to pay the costs. Since the circumstances of this case do not warrant the
application of the provisions of Article 87(2) of the Rules of Procedure, the applicant must be ordered to pay the costs.
Under Article 89(4) of the Rules of Procedure, moreover, interveners are to bear their own costs.
On those grounds,
THE CIVIL SERVICE TRIBUNAL (Third Chamber)
hereby:
1.
Dismisses the action;
2.
Orders Mr Lebedef and Mr Jones to pay all the costs, with the exception of those incurred by the Council of the European Union;
3.
Orders the Council of the European Union, intervener, to bear its own costs.
Mahoney
Kreppel
Van Raepenbusch
Delivered in open court in Luxembourg on 30 September 2010.
W. Hakenberg

P. Mahoney
Registrar

President
*
Language of the case: French.