61979CJ0799(01)_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 799/79
GUNTER BRUCKNER, JOINT RESEARCH CENTRE, ISPRA ( VARESE ), ITALY, REPRESENTED BY B . POTTHAST AND H . J . RUBER, RECHTSANWALTE, COLOGNE, ASSISTED BY PROFESSOR E . STEINDORFF OF THE UNIVERSITY OF MUNICH, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF V . BIEL, ADVOCATE, 18A RUE DES GLACIS,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, RESPRESENTED BY J . PIPKORN, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF O . MONTALTO, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION IN THE TERMS SET OUT IN THE APPLICANT ' S CONCLUSIONS,
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 11 OCTOBER 1979, GUNTER BRUCKNER, AN OFFICIAL OF THE COMMISSION EMPLOYED AT THE JOINT RESEARCH CENTRE IN ISPRA, ITALY, BROUGHT AN ACTION UNDER ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS FOR THE ANNULMENT OF THE COMMISSION ' S DECISIONS FIXING HIS REMUNERATION FOR THE MONTHS OF JANUARY AND APRIL 1979 TOGETHER WITH THE DECISION REJECTING THE COMPLAINTS LODGED BY HIM AGAINST THOSE DECISIONS .
2 UNTIL THE END OF 1978 THE STAFF REGULATIONS PROVIDED THAT AN OFFICIAL ' S REMUNERATION WAS TO BE EXPRESSED IN BELGIAN FRANCS AND PAID IN THE CURRENCY
OF THE COUNTRY IN WHICH THE OFFICIAL PERFORMS HIS DUTIES ON THE BASIS OF THE PAR VALUES ACCEPTED BY THE INTERNATIONAL MONETARY FUND WHICH WERE IN FORCE ON 1 JANUARY 1965 . REMUNERATION EXPRESSED IN BELGIAN FRANCS WAS TO BE WEIGHTED AT A RATE ABOVE, BELOW OR EQUAL TO 100%, DEPENDING ON LIVING CONDITIONS IN THE VARIOUS PLACES OF EMPLOYMENT . ARTICLE 17 OF ANNEX VII TO THE STAFF REGULATIONS ENABLED AN OFFICIAL, WITHIN CERTAIN LIMITS, TO HAVE PART OF HIS EMOLUMENTS REGULARLY TRANSFERRED THROUGH THE INSTITUTION TO WHICH THE OFFICIAL BELONGED IN THE CURRENCY OF THE OTHER MEMBER STATES LISTED IN THAT ARTICLE .
3 FOLLOWING THE DEVALUATION OF CERTAIN CURRENCIES SINCE 1970 THE COUNCIL USED THE WEIGHTING NOT MERELY TO ADJUST REMUNERATION ACCORDING TO LIVING CONDITIONS IN THE VARIOUS PLACES OF EMPLOYMENT BUT ALSO TO COMPENSATE FOR THE DEVALUATION OF CERTAIN WEAK CURRENCIES . AS A RESULT IF AN OFFICIAL EMPLOYED IN A COUNTRY HAVING A WEAK CURRENCY TRANSFERRED A PART OF HIS REMUNERATION TO A MEMBER STATE HAVING A STRONG CURRENCY HE OBTAINED SPECIAL ADVANTAGES .
4 ON 21 DECEMBER 1978 THE COUNCIL ADOPTED REGULATION ( EURATOM, ECSC, EEC ) NO 3085/78 ( OFFICIAL JOURNAL L 369, P . 6 ) AMENDING THE PROVISIONS OF THE STAFF REGULATIONS . THE RATE OF EXCHANGE TO BE USED FOR CONVERTING REMUNERATION INTO THE CURRENCY OF THE PLACE OF EMPLOYMENT WAS TO BE THAT USED FOR THE IMPLEMENTATION OF THE GENERAL BUDGET OF THE EUROPEAN COMMUNITIES ON 1 JULY 1978 . ARTICLE 78 OF ANNEX VII TO THE STAFF REGULATIONS WAS ALSO AMENDED . IN ITS NEW VERSION PARAGRAPH ( 3 ) OF ARTICLE 17 PROVIDES THAT :
' ' THE TRANSFERS PROVIDED FOR IN PARAGRAPH ( 2 ) SHALL BE MADE AT THE EXCHANGE RATE SPECIFIED IN THE SECOND PARAGRAPH OF ARTICLE 63 OF THE STAFF REGULATIONS, THE AMOUNTS TRANSFERRED SHALL BE MULTIPLIED BY A COEFFICIENT REPRESENTING THE DIFFERENCE BETWEEN THE WEIGHTING FOR THE COUNTRY IN WHICH THE OFFICIAL IS EMPLOYED . ' '
5 ARTICLE 4 OF THE REGULATION PROVIDED THAT THE REGULATION WAS TO ENTER FORCE ON 1 JANUARY 1979 AND WAS TO APPLY FROM 1 APRIL 1979 .
6 ON 21 DECEMBER 1978 THE COUNCIL ALSO ADOPTED REGULATION ( EURATOM, ECSC, EEC ) NO 3086/78 ADJUSTING THE WEIGHTINGS APPLICABLE TO THE REMUNERATION AND PENSIONS OF OFFICIALS AND OTHER SERVANTS OF THE EUROPEAN COMMUNITIES FOLLOWING THE AMENDMENT OF THE PROVISIONS OF THE STAFF REGULATIONS CONCERNING THE MONETARY PARITIES TO BE USED IN IMPLEMENTING THE STAFF REGULATIONS ( OFFICIAL JOURNAL L 369, P . 8 ). ARTICLE 1 OF THE REGULATION FIXES INTER ALIA THE WEIGHTING APPLICABLE TO REMUNERATION AT 74.3 FOR ITALY AND AT 98.7 FOR THE FEDERAL REPUBLIC OF GERMANY .
7 THE APPLICANT HAD REGULARLY TRANSFERRED, THROUGH THE COMMISSION, PURSUANT TO ARTICLE 17 OF ANNEX VII TO THE STAFF REGULATIONS, CERTAIN AMOUNTS TO THE FEDERAL REPUBLIC OF GERMANY APPLYING THE EXCHANGE RATE IN FORCE ON 1 NOVEMBER 1969 . AS A RESULT OF THE APPLICATION OF THE NEW PROVISIONS CITED ABOVE, AFTER 1 APRIL 1979 THE COST OF THOSE TRANSFERS, EXPRESSED IN ITALIAN LIRE, INCREASED BY LIT 284 463 AND THE BALANCE OF HIS REMUNERATION AFTER THE TRANSFERS WAS CONSEQUENTLY REDUCED .
8 ON 21 JUNE 1979 THE APPLICANT SUBMITTED TO THE COMMISSION PURSUANT TO ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS A COMPLAINT AGAINST THE INCREASE IN THE COST OF THOSE TRANSFERS . THE COMMISSION REPLIED BY CIRCULAR LETTERS OF 12 JULY AND 28 SEPTEMBER 1979 STATING ON THE ONE HAND THAT IT COULD NOT, WITHOUT EXCEEDING ITS POWERS, REFRAIN FROM APPLYING COUNCIL REGULATIONS WHICH HAD LAWFULLY ENTERED INTO FORCE AND ON THE OTHER HAND THAT IT APPROVED IN SUBSTANCE THE AMENDMENTS WHICH HAD BEEN MADE TO THE STAFF REGULATIONS .
9 THE APPLICANT THEREUPON BROUGHT THIS ACTION AGAINST THE COUNCIL AND THE COMMISSION . IN SUBSTANCE HE ASKS THE COURT TO :
1 . ANNUL THE SALARY STATEMENTS FOR JANUARY AND APRIL 1979 AND THE COMMISSION ' S DECISIONS OF 12 JULY AND 28 SEPTEMBER 1979 ON HIS COMPLAINT IN SO FAR AS THOSE STATEMENTS CONTAIN PARTICULARS OF SALARY CALCULATED ON THE BASIS OF COUNCIL REGULATIONS NOS 3085 AND 3086/78 .
2 . DECLARE THAT SINCE THE BEGINNING OF APRIL 1979 THE APPLICANT HAS BEEN ENTITLED TO REMUNERATION CORRESPONDING TO AT LEAST THAT WHICH THE APPLICANT
RECEIVED IN LIRE UP TO AND INCLUDING MARCH 1979 AFTER MAKING THE SAME TRANSFERS UNDER ARTICLE 17 OF ANNEX VII TO THE STAFF REGULATIONS AS UP TO MARCH 1979 BUT INCREASED BY THE PERCENTAGE OF THE SALARY ADJUSTMENT APPLIED FROM APRIL 1979 PURSUANT TO ARTICLE 65 ( 1 ) OF THE STAFF REGULATIONS .
3 . DECLARE THAT REGULATIONS NOS 3085 AND 3086/78 ARE INAPPLICABLE TO THE TRANSFERS REGULARLY MADE BY THE APPLICANT .
4 . ORDER THE DEFENDANTS TO PAY COMPENSATION TOGETHER WITH INTEREST THEREON FOR THE FINANCIAL DAMAGE SUFFERED BY THE APPLICANT AS A RESULT OF THE APPLICATION OF THE REGULATIONS AT ISSUE .
10 BY A JUDGMENT OF THE COURT ( FIRST CHAMBER ) OF 12 NOVEMBER 1981 (( 1981 ) ECR 2697 ), THE COURT HELD THIS ACTION TO BE INADMISSIBLE IN SO FAR AS DIRECTED AGAINST THE COUNCIL . SINCE THE COMMISSION DOES NOT DISPUTE THE ADMISSIBILITY OF THE APPLICATION IN SO FAR AS DIRECTED AGAINST IT THE COURT DECIDED TO HEAR ARGUMENT FROM THE APPLICANT AND THE COMMISSION ON THE SUBSTANCE OF THE CASE .
THE SUBSTANCE
11 AS REGARDS THE PROBLEM OF THE APPLICANT ' S REMUNERATION FOR APRIL 1979 AND ITS ALLEGED DIMINUTION AS A RESULT OF THE HIGHER COST OF PARTIAL TRANSFERS MADE BY THE APPLICANT TO OTHER COUNTRIES STEMMING FROM THE APPLICATION OF THE PROVISIONS OF REGULATIONS NOS 3085 AND 3086/78, THE APPLICANT FIRST RAISES CERTAIN SUBMISSIONS RELATING TO INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS . HE CLAIMS THAT REGULATION NO 3085/78 WAS ADOPTED WITHOUT DUE PRIOR CONSULTATION WITH THE EUROPEAN PARLIAMENT AND THE COURT OF JUSTICE AS PROVIDED FOR BY ARTICLE 24 OF THE MERGER TREATY OF 8 APRIL 1965 . THE ONLY CONSULTATION WITH THOSE INSTITUTIONS WAS ON THE BASIS OF A PROPOSAL SUBSTANTIALLY DIFFERENT FROM THE PROVISIONS OF THE REGULATIONS AS ADOPTED BY THE COUNCIL . NOR WAS THE STAFF REGULATIONS COMMITTEE CONSULTED ON THAT PROPOSAL .
12 THE APPLICANT THEN ARGUES THAT THE REFORM OF THE SYSTEM, CONTAINED IN ARTICLE 63 OF THE STAFF REGULATIONS, FOR THE PAYMENT OF REMUNERATION AND THE TRANSFER OF THE PART THEREOF MENTIONED IN ARTICLE 17 OF ANNEX VII TO THE STAFF REGULATIONS IS IN BREACH OF THE PRINCIPLE OF EQUAL TREATMENT . IN HIS VIEW, THE
COMMUNITY MUST ENSURE THAT AN OFFICIAL EMPLOYED IN ITALY DOES NOT INCUR ANY DISADVANTAGE AS COMPARED WITH AN OFFICIAL EMPLOYED FOR EXAMPLE IN KARLSRUHE ' ' WHEN BOTH SEEK TO SATISFY THE SAME NEEDS ' '
AND THEREFORE TO BENEFIT FROM THE SAME SERVICES IN ONE OR THE OTHER COUNTRY .
13 THE APPLICANT CLAIMS FINALLY THAT THE CONTESTED REGULATION PREJUDICES THE MAINTENANCE OF HIS ECONOMIC SITUATION AND OUGHT THEREFORE TO BE CONSIDERED INVALID BECAUSE IT IS CONTRARY TO THE LEGAL PRINCIPLE OF THE MAINTENANCE OF ACQUIRED RIGHTS . FURTHERMORE, THE COMMISSION HAS FAILED IN ITS DUTY OF ASSISTANCE TOWARDS ITS OFFICIALS AND OUGHT TO HAVE PROVIDED FOR A TRANSITIONAL PERIOD SUCH AS THAT LAID DOWN IN FAVOUR OF PENSIONERS BY ARTICLE 4 OF REGULATION NO 3085/78 .
14 IT SHOULD BE REMEMBERED THAT THE COURT, BY JUDGMENTS DATED 4 FEBRUARY 1982 IN CASES 817/79 BUYL ( 1982 ) ECR 245, 828/79 ADAM ( 1982 ) ECR 269 AND 1253/79 BATTAGLIA ( 1982 ) ECR 297 REJECTED SUBMISSIONS SIMILAR TO THOSE PUT FORWARD BY THE APPLICANT . IT IS SUFFICIENT TO REFER TO THOSE JUDGMENTS TO FIND THAT THE APPLICANT ' S ALLEGATIONS ARE UNFOUNDED .
Decision on costs
COSTS
15 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .
16 HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE THE COSTS INCURRED BY THE INSTITUTIONS IN PROCEEDINGS BROUGHT BY EMPLOYEES OF THE COMMUNITIES ARE TO BE BORNE BY THOSE INSTITUTIONS .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION ;
2 . ORDERS THE APPLICANT AND THE COUNCIL TO BEAR THEIR OWN COSTS .