Opinion of the Advocate General — ECLI:EU:C:1999:327
Date: 1999-06-24
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Appeal - unfounded;Staff cases

summary of the pleas in 
law on which the application is based, and 
very logically held that that requirement 
was not satisfied by an application for 
compensation in respect of damage caused 
by a Community institution that did not 
contain information allowing the damage 
alleged by the applicants to be identified. 
39. Therefore, the Court of First Instance 
did not infringe that provision either. 
40. It follows from the above that the first 
plea in law must be dismissed. 
The second plea in law 
41. The second plea alleges infringement of 
Article 176 of the Treaty and the case-law 
applying it, and also an error in the 
interpretation of the judgment of the Court 
of First Instance in Chavarte de Dalmassy. 
42. The applicants argue that the Court of 
First Instance erred in law by holding that 
that judgment placed two inseparable obli­
gations on the Council, namely to adopt a 
regulation fixing a weighting for Germany 
calculated by reference to the cost of living 
in Berlin and to fix a specific weighting for 
Karlsruhe. 
43. The Court of First Instance was there­
fore wrong to hold that the Commission 
was not obliged, where the Council had not 
adopted the necessary measures, to draw 
up new pay slips applying the weighting for 
the country of employment, calculated by 
reference to the cost of living in the capital 
in the absence of a specific weighting for 
the applicants' place of employment. 
44. For the Court of First Instance to hold 
that non-execution of the Chavane de 
Dalmassy judgment by the Commission 
did not constitute a failure to act was 
therefore a breach of Article 176 of the 
Treaty. 
45. The Commission considers, however, 
that the applicants' argument is clearly 
incorrect. Both the letter and the spirit of 
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APOSTOLIDIS AND OTHERS V COMMISSION 
the rules relied on and the Chavarte de 
Dalmassy judgment meant that the Council 
was under two obligations which were 
inseparably linked and that the Commis­
sion was not entitled to disregard them in 
order to satisfy the applicants' claim. It 
maintains that it cannot therefore be 
accused of any failure to act in the matter 
whatsoever. 
46. Let me say at once that I can only 
concur with the Commission's analysis, and 
that the applicants' attempts to make both 
the Staff Regulations and the case-law say 
what they clearly do not say do not appear 
to me convincing. 
47. The applicants' lawyer emphasised at 
the hearing all the importance to be 
attached to this plea, insisting that in a 
Community governed by the rule of law it 
is crucial that a judgment should not be left 
unexecuted. I entirely share that point of 
view, but would observe that the imple­
mentation envisaged by the applicants 
concerns only part of the obligations set 
out by the judgment in question. 
48. I find it undeniable that the Chavarte de 
Dalmassy judgment imposes two connected 
obligations on the Council. First, by prohi­
biting the Council from adopting a weight­
ing for the country in question calculated 
by reference to a city other that the capital, 
it requires it to refer to the cost of living in 
that capital to fix the weighting applicable 
to the country concerned. 
49. Secondly, it requires it to fix specific 
weightings for places of employment of 
officials situated in that country where an 
appreciable distortion in the cost of living is 
found to exist in relation to the capital. 
50. The link between those two obligations 
emerges clearly from the very wording of 
the Chavarte de Dalmassy judgment, which 
shows that the Council was not entitled, in 
the light of the principle laid down in 
Annex XI to the Staff Regulations, to fix a 
provisional weighting for Germany on the 
basis of the cost of living in a city other 
than the capital. 
51. At paragraph 56 of that judgment, the 
Court of First Instance stated that: 
'In those circumstances, the Council should 
on the one hand have fixed a weighting for 
Germany, provisional if necessary, on the 
basis of the cost of living in Berlin and then, 
on the other, fixed specific weightings, also 
provisional if necessary, for the various 
places of employment in that country 
where a noticeable variation in purchasing 
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OPINION OF MR MISCHO — CASE C-327/97 Ρ 
power had been determined by comparison 
with the cost of living in the capital, Berlin.' 
52. The use of the terms 'on the one 
hand ... on the other' undeniably reveals a 
link between the two parts of the sentence 
in question; they need to be understood 
together in order to determine the full 
content of the Council's obligation. 
53. That evidence is confirmed by the very 
objective of weightings. They are not 
designed automatically to bring about an 
increase in the applicants' remuneration 
where the cost of living in the capital of the 
Member State where they are employed 
increases. 
54. Article 64 of the Staff Regulations and 
Annex XI thereto, containing rules for 
implementing Articles 64 and 65, show 
that weightings are intended, as the term 
implies, to correct the effects of differences 
in the cost of living in the various places of 
employment, so as to safeguard equality of 
treatment between officials. 
55. It necessarily follows that the Council 
is obliged to fix weightings where differ­
ences in the cost of living between the 
various places of employment reach a 
sufficient level to undermine equality of 
treatment. 
56. If the Council's obligation were limited 
to fixing a weighting calculated by refer­
ence to the cost of living in the capital and 
did not include the fixing of specific 
weightings for places of employment where 
appreciable distortions are found, there 
would be no certainty that that the aim of 
equal treatment of officials, implying the 
neutralisation of those distortions, would 
be attained. 
57. Article 9 of Annex XI to the Staff 
Regulations leaves no doubt in that regard, 
since it provides that, where such distor­
tions are found, 'the Council ... shall 
decide' to fix specific weightings. The use 
of the word 'shall' clearly shows the 
imperative nature of the Council's obliga­
tion. 8 
58. That is also apparent from the settled 
case-law of the Court of Justice, which has 
held that: 
'the purpose of Articles 64 and 65 of the 
Staff Regulations ... is to ensure that all 
officials have equivalent purchasing power, 
wherever their place of employment, in 
accordance with the principle of equality of 
treatment'. 
8 The other language versions of that provision use similar 
terms. 
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APOSTOLIDIS AND OTHERS V COMMISSION 
59. The Court therefore concluded that: 
'Accordingly the Council has no discretion 
as to whether to introduce a specific 
weighting for a place of employment if it 
is established that the cost of living there is 
substantially higher than in the capital.' 9 
60. That conclusion being, in the Court's 
judgment, the direct consequence of the 
principle of equal treatment, it is also valid 
where, as in this case, the cost of living in 
the place of employment in question is 
substantially lower than in the capital. 
61. The applicants also rely on the case of 
Brazzelli and Others v Commission 10 in 
support of the argument that the Council's 
discretion in fixing weightings is such that 
there can be no certainty in the matter 
before the Council has exercised its powers. 
62. That consideration is irrelevant in this 
case. It is not a question here of demon­
strating that the Commission could have no 
certainty as to the weightings which the 
Council would fix. 
63. What matters in this case is that the 
Commission not only had the right but was 
even under an obligation to consider that it 
was for the Council and it alone to fix the 
weightings and, in particular, a specific 
weighting for the places of employment 
where the cost of living diverged signifi­
cantly in relation to the capital. 
64. The fact that the raison d'être of the 
weightings is the implementation of the 
equal treatment principle also implies that 
the Commission cannot apply them in such 
a way as to undermine that principle. It 
therefore follows that, if the Council has 
not fixed the required weightings, the 
Commission cannot grant the benefit of a 
weighting calculated by reference to the 
capital and thus not taking account of 
differences in the cost of living found 
between the place of employment in ques­
tion and the capital. 
65. As the contested judgment rightly 
pointed out, it was already clear from the 
case-law that the difference in the cost of 
living between Karlsruhe and the capital 
Berlin was significant. 11 
66. Nor do the applicants anywhere deny 
the existence, referred to by the Commis­
sion in its proposals for a regulation for the 
9 Case C-301/90 Commission v Council [1992] ECR I-221, 
paragraphs 22 and 25. 
10 Joined Cases T-17/89, T-21/89 and T-25/89 Brazzelli and 
Others v Commission [1992] ECR II-293. 
11 See Barraux and Others v Commission, cited in paragraph 53 
above, and at paragraph 66 of the contested judgment. 
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OPINION OF MR MISCHO — CASE C-327/97 Ρ 
purpose of fixing a specific weighting for 
Karlsruhe, of a significant difference in the 
cost of living between that city and Berlin. 
67. They say, indeed, that 'the Council's 
refusal to adopt the proposal submitted by 
the Commission conveys its wish to apply 
the "Germany" weighting, calculated by 
reference to the cost of living in Berlin, to 
officials employed in Karlsruhe'.12 
68. However, the regulation adopted by the 
Council, following the Commission's pro­
posals, had the effect of applying to the 
applicants the weighting calculated by 
reference to Bonn, a fact which should 
have been known to the applicants since it 
lay at the root of the action brought by 
them in the case which led to the Chavarte 
de Dalmassy judgment, compliance with 
which they say they are seeking. 
69. If, as the applicants argue, the Council 
had wished to give them the benefit of the 
Berlin weighting, I do not believe it would 
have adopted a regulation whose effect was 
to apply to them the very different weight­
ing calculated by reference to the cost of 
living in Bonn. 
70. It follows from the above that the 
Court of First Instance was right to hold 
that the Commission was not entitled to 
draw up pay slips for the applicants by 
reference to the cost of living in Berlin, 
since the distortion found in relation to 
Berlin made it obligatory for the Council to 
fix a specific weighting for Karlsruhe. 
71. The Court of First Instance was there­
fore right to hold that there was no failure 
to act on the part of the Commission. 
72. The applicants further argue that three 
possibilities were open to the Commission 
in order to comply with the Chavane de 
Dalmassy judgment. 
73. They maintain that, apart from draw­
ing up pay slips applying a weighting 
calculated by reference to Berlin, a possi­
bility rejected by the Court of First 
Instance, the Commission could have 
brought an action against the Council for 
failure to act or started a dialogue with 
them. 
74. They do not, however, challenge the 
reasoning of the Court of First Instance in 12 Paragraph 64 of the appeal. 
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APOSTOLIDIS AND OTHERS V COMMISSION 
paragraphs 99 to 103 of the contested 
judgment, which shows that an individual 
cannot compel the Commission to bring an 
action for failure to act, since it would thus 
endanger the margin for manœuvre inher­
ent in the Commission's discretion in the 
matter of complying with a judgment. 
75. It therefore only remains for me to 
examine whether the Court of First 
Instance should have held that the Com­
mission was required, in the circumstances 
of the case, to open a dialogue with the 
applicants concerning compliance with the 
Chavarte de Dalmassy judgment. 
76. The Court of First Instance begins by 
noting that, in accordance with that judg­
ment, the Commission was unable, where a 
legislative measure had not been adopted 
by the Council, to apply a different weight­
ing to the applicants' remuneration from 
that required by the legislation in force and 
thus, in particular, a weighting calculated 
by reference to the cost of living in Berlin. 
77. It has already been seen that the Court 
of First Instance was right to reach that 
conclusion. 
78. As the Court of First Instance states, 
that inability undeniably constituted a 
'particular difficulty' in complying with 
that judgment. 
79. Where such a difficulty arises, the case-
law holds 13 that it is for the institution 
concerned to take such decision as will 
provide due compensation for a disadvan­
tage which has resulted for the applicants 
from the annulled decision. 
80. The applicants deduce therefrom that, 
if the Commission considered that it faced 
a particular difficulty in complying with the 
Chavarte de Dalmassy judgment, it should 
have opened a dialogue with them in order 
to resolve the situation, rather than refrain­
ing from taking any position. 
81. However, such a dialogue only had any 
reason to come into being if the situation 
arising for the applicants from non-com­
pliance with the Chavarte de Dalmassy 
judgment caused them loss. 
82. The case-law cited by the applicants 
themselves requires the institution con­
cerned, in the event of particular difficulty 
13 See the judgment in Parliament v Meskens, cited above. 
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OPINION OF MR MISCHO — CASE C-327/97 Ρ 
in complying with a judgment, to take 
measures capable of providing due com­
pensation for the disadvantages arising 
from that situation. 
83. It necessarily follows that there is no 
obligation to take such measures where the 
disadvantage has not been established. 
84. It has been noted above that the Court 
of First Instance rightly held that, in this 
case, such loss has not been demonstrated. 
85. It was therefore right to conclude that 
the Commission was not obliged to take 
compensatory measures for the benefit of 
applicants, and could not therefore be 
accused of any failure to act in that regard. 
86. The Council states, in its reply, that it 
shares the conclusions which the Court of 
First Instance reached. It does, however, 
challenge the reasoning of the Court in 
paragraphs 60 and 61 of the contested 
judgment, worded as follows: 
'Where the Community judicature annuls a 
measure taken by an institution, that insti­
tution is obliged under Article 176 of the 
Treaty to take the appropriate measures to 
comply with the judgment.... Furthermore, 
where rules are declared unlawful, the 
subsequent adoption by that institution of 
new rules, applicable to future situations, 
does not remove, as far as the injured party 
is concerned, the effects of the illegality 
committed against him in the past ... 
It follows that the mere adoption of 
Regulation No 3161/94 does not, a priori, 
constitute sufficient compliance with the 
Chavane de Dalmassy judgment, inasmuch 
as that regulation does not concern the 
officials' pay slips for the months of 
January 1992 to June 1994 inclusive.' 
87. The Council considers that it might be 
deduced from those statements of the Court 
of First Instance that the Council, the 
author of the regulation of which applica­
tion had been set aside in the Chavarte de 
Dalmassy case through operation of the 
objection of illegality, was under an obliga­
tion to adopt a new regulation. 
88. The Council submits that the case-law 
on Article 184 of the Treaty shows that not 
to be so. It maintains that a distinction 
should be made between the annulment of 
a legislative measure, entailing in principle 
an obligation to replace it, and the applica­
tion of the objection of illegality, the only 
consequence of which is to make it neces-
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APOSTOLIDIS AND OTHERS V COMMISSION 
sary, in a given case, to set aside the 
legislative provisions serving as a basis for 
the individual measure under challenge. 
89. The Council concludes by requesting 
the Court 'in accordance with the second 
indent of Article 116(1) of the Rules of 
Procedure, to uphold the forms of order 
sought at first instance by the Commission 
and the Council'. 
90. Since those forms of order were upheld 
by the Court of First Instance, the Council's 
intervention thus seeks confirmation of the 
contested judgment and the dismissal of the 
appeal, even if it criticises an aspect of the 
contested judgment. 
91. The Council thus seeks confirmation of 
the contested judgment whilst at the same 
time pursuing a line of argument that does 
not constitute a reply to the pleas of the 
applicants, since the latter are alleging a 
failure to act on the part of the Commis­
sion, not the Council. 
92. I do not therefore consider that the 
Court needs to give a ruling on the 
Council's argument. 
93. It is therefore only as a subsidiary 
remark that I say I do not share the 
Council's anxieties. What the Court of First 
Instance says is that 'mere adoption of 
Regulation No 3161/94 does not, a 
priori,14 constitute sufficient compliance 
with the Chavarte de Dalmassy judgment'. 
94. The Court of First Instance has not 
therefore expressed a final position on the 
subject. 
95. Moreover, the paragraphs cited above 
do not constitute grounds inseparable from 
the operative part of the contested judg­
ment. The only conclusion which the Court 
of First Instance draws is that it needs to 
examine the extent of the obligations for 
the Commission arising from the Chavane 
de Dalmassy judgment in the absence of 
adoption by the Council of a regulation 
applicable to the period concerned. 
96. That conclusion is not challenged by 
the Council, and the question whether or 
not the latter was obliged to adopt such a 
regulation is not relevant to the reasoning 
of the Court of First Instance. 
14 Emphasis added. 
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OPINION OF MR MISCHO — CASE C-327/97 Ρ 
97. In the light of the above, the applicants' 
second plea in law must also be dismissed. 
The third plea in law 
98. This plea alleges infringement of Arti­
cle 63 et seq. of the Staff Regulations 
concerning the remuneration of officials. 
Under the case-law, the applicants main­
tain, those provisions require that, in the 
absence of a fixing by the Council of a 
specific weighting for Karlsruhe, their 
remuneration should be subject to a 
weighting calculated by reference to the 
cost of living in the capital of the Member 
State of employment. 
99. I entirely share the Commission's ana­
lysis that that plea clearly disregards the 
purpose of the provisions on weightings in 
the Staff Regulations. 
100. As already stated, the case-law15 
shows that the purpose of weightings on 
the remuneration of officials, provided for 
by Articles 64 and 65 of the Staff Regula­
tions, is to ensure that all officials have 
equivalent purchasing power, wherever 
their place of employment, in accordance 
with the principle of equality of treatment. 
101. It is undeniable, and moreover not 
challenged by the applicants themselves, 
that during the period in question the cost 
of living in Karlsruhe was considerably 
lower than that in Berlin. Therefore, to 
apply to the remuneration of staff 
employed in Karlsruhe a weighting calcu­
lated by reference to the cost of living in 
Berlin would clearly be contrary to the 
principles following from the case-law cited 
above. 
102. It follows from the above that the 
Court of First Instance did not infringe 
Article 63 et seq. of the Staff Regulations 
by deciding that the Commission was not 
in a position to apply to the applicants' 
remuneration a weighting calculated by 
reference to the cost of living in Berlin. 
103. The applicants' third plea in law must 
therefore also be dismissed. 15 See Commission ν Council, cited above. 
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Conclusions 
104. For the reasons given above, I propose that the Court should dismiss the 
action as unfounded. 
105. Concerning costs, it should be noted that, by virtue of the reference in 
Article 118 of the Rules of Procedure of the Court of Justice, Article 69 of those 
rules applies in this case, subject to the provisions of Article 122. 
106. Article 69(2) provides that an unsuccessful party is to be ordered to pay the 
costs if they have been applied for in the successful party's pleadings. That is not 
the case here. 
107. Under Article 69(4), institutions which intervene are to bear their own 
costs. 
108. I therefore propose that each of the parties should bear its own costs. 
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