61979CJ0543(01)_EN
Parties
Subject of the case
Grounds
Operative part
Parties
IN CASE 543/79
ANTON BIRKE, 9 VIA VERBANO, TAINO ( 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, REPRESENTED 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, ANTON BIRKE, 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 AND AN ORDER THAT THE COMMISSION MAKE GOOD THE DAMAGE INCURRED BY HIM AS A RESULT OF THE UNLAWFUL DECISIONS FIXING HIS RENUMERATION .
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 17 OF ANNEX VII TO THE STAFF REGULATIONS WAS ALSO AMENDED . IN ITS NEW VERSION PARAGRAPH ( 3 ) OF ARTICLE 17 PROVIDED THAT :
' ' THE TRANSFERS PROVIDED FOR IN PARAGRAPH ( 2 ) SHALL BE MADE AT THE EXCHANGE RATE SPECIFIED IN THE SECOND PARAGRAPH OF ARTICLE 63 ON 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 REGULATIONS 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 . IN MARCH 1979 THE EQUIVALENT IN ITALIAN LIRE OF THE SUMS THUS REGULARLY TRANSFERRED THROUGH THE COMMISSION AMOUNTED TO LIT 652 840 .
8 AS A RESULT OF THE APPLICATION OF THE PROVISIONS CITED ABOVE, AFTER 1 APRIL 1979 THE COST OF THOSE TRANSFERS, EXPRESSED IN ITALIAN LIRE, INCREASED TO LIT 1 120 595 AND THE BALANCE OF THE APPLICANT ' S REMUNERATION AFTER THE TRANSFERS WAS CONSEQUENTLY REDUCED .
9 FROM 1975 OFFICIALS EMPLOYED AT THE JOINT RESEARCH CENTRE IN ISPRA COMPLAINED TO THE COMMISSION THAT THE COST OF LIVING IN ITALY HAD CONSIDERABLY INCREASED AND ACCORDINGLY REQUESTED THAT THE WEIGHTING FOR ITALY BE REVISED . THEY COMPLAINED IN PARTICULAR THAT IN THEIR OPINION THE COST OF LIVING IN THE PROVINCE OF VARESE WAS HIGHER THAN IN ROME AND THEY URGED THE COMMISSION TO TAKE ACCOUNT OF THAT DIFFERENCE WHEN FIXING THE WEIGHTING APPLICABLE TO THEIR REMUNERATION .
10 IN 1976, 1977 AND 1978 CONSULTATIONS ON TECHNICAL MATTERS TOOK PLACE BETWEEN REPRESENTATIVES OF THE STAFF AND THOSE OF THE COMMISSION AND COUNCIL BUT NO AGREEMENT WAS REACHED ON THE ALTERATION OF THE WEIGHTING OR ON THE DATE TO WHICH THE NEW WEIGHTING SHOULD HAVE RETROACTIVE EFFECT . IN THE MEANTIME BY A SERIES OF REGULATIONS THE COUNCIL HAD INCREASED THE WEIGHTING FOR ITALY AS FROM 1 JANUARY 1976 TO 176.6 AS AGAINST 157.8 FOR BELGIUM, AS FROM 1 JULY 1976 TO 189.3 AS AGAINST 157.8 FOR BELGIUM, AS FROM 1 JANUARY 1977 TO 120 AS AGAINST 100 FOR BELGIUM, AS FROM 1 JANUARY 1977 TO 132.1 AS AGAINST 104.5 FOR BELGIUM, AND AS FROM 1 JULY 1977 TO 130.2 AS AGAINST 100 FOR BELGIUM . IN MOST CASES THOSE REGULATIONS HAD A RETROACTIVE EFFECT OF ABOUT SIX MONTHS .
11 ON 26 JUNE 1978 THE COUNCIL ADOPTED REGULATION NO 1461/78 ( OFFICIAL JOURNAL, L 176, P . 1 ) BY WHICH THE WEIGHTING FOR ITALY WAS FIXED AT 137.6 AS AGAINST 102.3 FOR BELGIUM . THE RECITALS IN THE PREAMBLE TO THAT REGULATION STATE THAT ' ' A DECISION ON THE COMMISSION PROPOSAL FOR THE CORRECTION OF THE WEIGHTINGS FOR THREE COUNTRIES OF EMPLOYMENT WILL BE TAKEN ONLY IN THE LIGHT OF A STUDY TO BE CARRIED OUT BY THE COMMISSION ' ' .
12 AFTER A FRESH INQUIRY BY THE STATISTICAL OFFICE OF THE COMMUNITIES AND DISCUSSIONS BETWEEN THE COMMISSION AND THE COUNCIL, ON 10 NOVEMBER 1978 THE COMMISSION PROPOSED TO THE COUNCIL TO FIX THE WEIGHTING FOR ITALY AT 146.4 AS AGAINST 102.3 FOR BELGIUM WITH RETROACTIVE EFFECT TO 1 JANUARY 1978 . THAT PROPOSAL WAS ACCEPTED BY THE COUNCIL BY THE ADOPTION OF REGULATION NO 3087/78 OF 21 DECEMBER 1978 ( OFFICIAL JOURNAL, L 369, P . 10 ). ON THE SAME DATE THE COUNCIL ADOPTED REGULATION NO 3084/78 ( OFFICIAL JOURNAL, L 369, P . 1 ) FIXING THE WEIGHTING FOR ITALY AT 146.8 AS AGAINST 100 FOR BELGIUM AS FROM 1 JULY 1978 .
13 THE STAFF CONCERNED CHALLENGED REGULATION NO 3087/78 IN SO FAR AS IT FIXED THE WEIGHTING AT A LEVEL WHICH DID NOT TAKE ACCOUNT OF THE COST OF LIVING AT VARESE AND GAVE THAT WEIGHTING RETROACTIVE EFFECT ONLY TO 1 JANUARY 1978 .
14 IN JANUARY 1979 THE COMMISSION PAID THE ARREARS OF REMUNERATION DUE UNDER REGULATIONS NOS 3087/78 AND 3084/78 .
15 ON 26 MARCH 1979 THE APPLICANT SUBMITTED TO THE COMMISSION A COMPLAINT UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS AGAINST REGULATIONS NOS 3085/78 AND 3086/78 . ON THE SAME DATE HE SUBMITTED TO THE COMMISSION A REQUEST UNDER ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS THAT THE COMMISSION IMMEDIATELY ADOPT THE MEASURES NECESSARY TO MAKE UP FOR THE LOSS OF PURCHASING POWER IN 1976 AND 1977 . THAT REQUEST CONCERNED REGULATION NO 3087/78 .
16 BY A LETTER OF 4 APRIL 1979 THE APPLICANT SUBMITTED A COMPLAINT UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS CONCERNING THE RETROACTIVE EFFECT OF THE WEIGHTING FOR ITALY RESULTING FROM REGULATION NO 3087/78 . ON 13 JUNE THE
APPLICANT SUBMITTED A COMPLAINT AGAINST THE APPLICATION OF REGULATIONS NOS 3085/78 AND 3086/78 AS SHOWN IN HIS SALARY STATEMENT FOR APRIL .
17 BY CIRCULAR LETTERS OF 12 JULY AND 28 SEPTEMBER 1979 THE COMMISSION REJECTED THOSE COMPLAINTS .
18 THE APPLICANT THEREFORE BROUGHT THIS APPLICATION AGAINST THE COUNCIL AND THE COMMISSION CHALLENGING THE COST OF TRANSFERS EFFECTED ON THE BASIS OF REGULATIONS NOS 3085/78 AND 3086/78 AS WELL AS THE AMOUNT AND THE DATE OF APPLICATION OF THE WEIGHTING ADOPTED BY REGULATION NO 3087/78 .
19 BY A JUDGMENT OF 12 NOVEMBER 1981 (( 1981 ) ECR 2269 ), THE COURT ( FIRST CHAMBER ) HELD THIS ACTION TO BE INADMISSIBLE IN SO FAR AS IT WAS DIRECTED AGAINST THE COUNCIL, HAVING DECIDED NOT TO GIVE A DECISION ON THE QUESTIONS OF ADMISSIBILITY OF THE ACTION AS DIRECTED AGAINST THE COMMISSION BEFORE THE PARTIES HAD SUBMITTED ARGUMENTS ON THE SUBSTANCE OF THE CASE, AND DOCUMENTS RELATING THERETO .
ADMISSIBILITY
20 THE COMMISSION HAS ARGUED THAT THE APPLICATION, TO THE EXTENT TO WHICH IT IS DIRECTED AGAINST THE APPLICATION OF REGULATION NO 3087/78, IS INADMISSIBLE . IN ITS VIEW, THE COMPLAINT OF 26 MARCH 1979, RELATING TO REGULATION NO 3087/78, CONCERNS THE EXTENSION OF RETROACTIVITY BUT CONTAINS NO ALLEGATION RELATING TO THE METHOD OF CALCULATING VARIATIONS IN LIVING COSTS OR, AS A RESULT, IN THE AMOUNT OF THE INCREASE IN THE WEIGHTING . THAT COMPLAINT WAS, IT CLAIMS, MADE TOO LATE TO CHALLENGE THE NON-PAYMENT OF ARREARS IN RESPECT OF 1976 AND 1977 . THE PAYMENT IN JANUARY 1979 OF THE AMOUNT OF THE ARREARS RELATING SOLELY TO THE PERIOD SUBSEQUENT TO 1 JANUARY 1978 CONFIRMS THE MONTHLY PAYMENTS MADE PRIOR TO THAT DATE AND MAY THEREFORE BE ANALYSED AS A MEASURE CONFIRMATORY OF PREVIOUS DECISIONS, NOT CAPABLE OF FOUNDING AN INDEPENDENT RIGHT OF ACTION .
21 THE COMMISSION HAS NOT EXTENDED ITS OBJECTION OF INADMISSIBILITY TO THE HEAD OF CLAIM RELATING TO THE PROBLEM OF THE TRANSFER ABROAD OF A PART OF REMUNERATION CORRESPONDING TO THE COMPLAINT OF JUNE 1979 .
22 IN REPLY TO THE OBJECTION OF INADMISSIBILITY THE APPLICANT ARGUES THAT A DECISION BY THE INSTITUTION ON THE APPLICANT ' S COMPLAINT CAN CAUSE THE PERIOD FOR BRINGING AN ACTION TO START TO RUN .
23 ALTHOUGH THE APPLICANT ' S ARGUMENT CANNOT BE ACCEPTED, NEVERTHELESS, REGARD BEING HAD TO THE CIRCUMSTANCES OF THE CASE, THE COMMISSION ' S OBJECTION CANNOT BE UPHELD . IN FACT, ALTHOUGH IT IS IMPORTANT TO SAFEGUARD THE APPLICATION OF THE RULE CONTAINED IN THE STAFF REGULATIONS WHICH PROVIDES FOR A PRIOR COMPLAINT THROUGH ADMINISTRATIVE CHANNELS WITHIN A RELATIVELY SHORT PERIOD, IT SHOULD NOT BE OVERLOOKED THAT SINCE NEGOTIATIONS HAD BEEN GOING ON FOR SOME MONTHS BETWEEN THE COUNCIL, THE COMMISSION AND THE STAFF REPRESENTATIVE BODIES, THE APPLICANT COULD LEGITIMATELY AWAIT THE OUTCOME OF THOSE NEGOTIATIONS BEFORE CONCERNING HIMSELF ABOUT THEIR POSSIBLY NEGATIVE EFFECT ON HIS SALARY . IN FACT COUNCIL REGULATIONS ADJUSTING THE WEIGHTINGS ARE ADOPTED SUBJECT TO A CERTAIN DELAY AND NORMALLY THEREFORE ARE RETROACTIVE IN THEIR APPLICATION FOR A PERIOD THE LENGTH OF WHICH IT IS SCARCELY POSSIBLE TO FORESEE . IN THE RECITALS IN THE PREAMBLE TO REGULATION NO 1461/78 THE COUNCIL MOREOVER ITSELF ACKNOWLEDGED THAT THE ADJUSTMENT OF THE WEIGHTING PROVIDED FOR BY THAT REGULATION FOR THREE COUNTRIES OF EMPLOYMENT WAS NOT DEFINITIVE .
24 THE COMMISSION ' S ARGUMENT, IF IT WERE ACCEPTED, WOULD MEAN THAT AN OFFICIAL WHO CONSIDERED HIMSELF INJURED BY THE COUNCIL ' S DELAY IN ADJUSTING THE WEIGHTING WOULD HAVE HAD NOT MERELY TO SUBMIT A SERIES OF COMPLAINTS POSSIBLY STRETCHING OVER SEVERAL YEARS, BUT ALSO TO BRING A SERIES OF ACTIONS BEFORE THE COURT, OR RISK BEING TIME-BARRED . THAT ARGUMENT CANNOT BE UPHELD . THE FACTS OF CASE 15/73 ( KORTNER ( 1974 ) ECR 177 ) ON WHICH THE COMMISSION FOUNDS ITS ARGUMENT ARE IN NO WAY SIMILAR TO THOSE OF THE PRESENT CASE .
25 AS REGARDS THE CONTENTS OF THE APPLICANT ' S COMPLAINTS IT IS TRUE THAT THE COMPLAINT OF 26 MARCH 1979 MERELY REQUESTED ' ' THAT THE COMMISSION
IMMEDIATELY ADOPT THE NECESSARY MEASURES TO COMPENSATE FOR THE LOSSES IN PURCHASING POWER IN RESPECT OF 1976 AND 1977 WHICH HAVE BEEN DULY RECORDED ' '
WITHOUT EXPRESSLY MENTIONING THE INADEQUACY OF THE WEIGHTING FIXED AS FROM 1 JANUARY 1978 BY REGULATION NO 3087/78 AND THE COMPLAINT OF 5 APRIL 1979 IS WORDED IN SIMILAR TERMS . IT SHOULD HOWEVER BE OBSERVED THAT THE COMMISSION ' S REPLIES BY WAY OF CIRCULAR LETTERS DATED 12 JULY AND 26 SEPTEMBER 1979 MAKE NO DISTINCTION BETWEEN THE COMPLAINTS OF THE VARIOUS OFFICIALS COMPLAINING BOTH OF THE AMOUNT OF THE ADJUSTMENT TO THE WEIGHTING AND OF THE DATE TO WHICH IT WAS MADE RETROACTIVE OR MERELY OF ONE OR OTHER OF THE TWO ASPECTS OF THE PROBLEM . IN FACT THOSE REPLIES MERELY REJECT ALL COMPLAINTS .
26 IN ITS JUDGMENT OF 1 JULY 1976 IN CASE 58/75 SERGY V COMMISSION ( 1976 ) ECR 1139, THE COURT ( FIRST CHAMBER ) HELD THAT UNDER ARTICLE 91 OF THE STAFF REGULATIONS AN APPEAL TO THE COURT OF JUSTICE LIES ONLY IF THE APPOINTING AUTHORITY HAS PREVIOUSLY HAD A COMPLAINT SUBMITTED TO IT AND THE COMPLAINT HAS BEEN REJECTED BY A DECISION . THE OBJECT OF THAT PROVISION IS TO PERMIT AND ENCOURAGE AN AMICABLE SETTLEMENT OF THE DISPUTE WHICH HAS ARISEN BETWEEN OFFICIALS OR OTHER EMPLOYEES AND THE ADMINISTRATION . IN ORDER TO COMPLY WITH THAT REQUIREMENT IT IS ESSENTIAL THAT THE ADMINISTRATION SHOULD BE IN A POSITION TO KNOW THE COMPLAINTS OR REQUESTS OF THE PERSON CONCERNED .
27 THE FACT THAT THE COMMISSION REPLIED IN AN IDENTICAL MANNER BY WAY OF A CIRCULAR LETTER TO ALL THE COMPLAINTS SHOWS THAT IT WAS AWARE OF THE OFFICIALS '
COMPLAINTS NOT MERELY REGARDING THE DATE OF APPLICATION OF REGULATION NO 3087/78 BUT ALSO REGARDING THE AMOUNT OF THE ADJUSTMENT TO THE WEIGHTING . IT CANNOT THEREFORE BE HEARD TO SAY THAT THE COMPLAINT WAS NOT SPECIFIC .
28 THE APPLICATION MUST THEREFORE BE ADJUDGED ADMISSIBLE .
THE SUBSTANCE
29 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 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 .
30 THE APPLICANT THEN ARGUES THAT THE REFORM OF THE SYSTEM CONTAINED IN ARTICLE 63 OF THE STAFF REGULATIONS FOR THE PAYMENT OF REMUNERATION AND FOR 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 .
31 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 .
32 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 THOSE ALLEGATIONS ARE UNFOUNDED .
33 AS REGARDS THE WEIGHTING APPLIED TO OFFICIALS EMPLOYED IN ISPRA, THE APPLICANT IS PURSUING TWO OBJECTIVES . FIRST, HE SEEKS TO OBTAIN A REVISION OF THE AMOUNT OF THE WEIGHTING WHICH, IN HIS VIEW, OUGHT TO BE CALCULATED ON THE BASIS OF THE COST OF LIVING AT THE OFFICIAL ' S EXACT PLACE OF EMPLOYMENT, IN THIS CASE IN THE PROVINCE OF VARESE, AND NOT AUTOMATICALLY IN THE CAPITAL OF THE COUNTRY IN
QUESTION . IN THIS CASE, THE APPLICANT MAINTAINS THAT THE COST OF LIVING IN THE PROVINCE OF VARESE WAS, DURING THE YEARS 1976 TO 1978, SUBSTANTIALLY HIGHER THAN IN ROME . SECONDLY THE APPLICANT REQUESTS THAT THE WEIGHTING FOR ITALY, FIXED AT 146.4 BY REGULATION NO 3087/78, BE APPLIED RETROACTIVELY TO 1 JANUARY 1976 .
34 IN PARTICULAR THE APPLICANT CHALLENGES HIS SALARY STATEMENT FOR JANUARY 1979 CALCULATED ON THE BASIS OF REGULATION NO 3087/78 WHICH, IN HIS VIEW, IS IN BREACH OF ARTICLES 64 AND 65 OF THE STAFF REGULATIONS RELATING TO THE WEIGHTING . ARTICLE 24 OF THE STAFF REGULATIONS RELATING TO THE COMMISSION ' S DUTY OF ASSISTANCE TOWARDS ITS OFFICIALS AND THE PRINCIPLE OF NON-DISCRIMINATION AND THE RULES WHICH REQUIRE RESPECT FOR ESSENTIAL PROCEDURAL REQUIREMENTS .
35 THE APPLICANT THUS FIRST PUTS FORWARD THE ARGUMENT THAT REGULATION NO 3087/78 INFRINGES ARTICLE 64 OF THE STAFF REGULATIONS INASMUCH AS THE SURVEYS OF THE STATISTICAL OFFICE OF THE COMMUNITIES FOR DETERMINING THE WEIGHTING WERE CARRIED OUT WITH REFERENCE TO LIVING CONDITIONS IN THE CAPITAL AND NOT AT THE PLACE OF EMPLOYMENT, SITUATED IN THE PROVINCE OF VARESE .
36 IT SHOULD BE NOTED THAT IN THE PAST THE COUNCIL HAS INTERPRETED ARTICLE 64 OF THE STAFF REGULATIONS AS POINTING NOT NECESSARILY TO THE CAPITAL OF THE COUNTRY OF EMPLOYMENT AS THE PLACE OF EMPLOYMENT BUT, ACCORDING TO THE CIRCUMSTANCES OF THE CASE, THE PRECISE PLACE OF EMPLOYMENT . THUS REGULATION NO 1/67/ECSC, 988/67/EEC AND 9/67/EAEC OF THE COUNCIL OF 12 DECEMBER 1967 PROVIDED TWO WEIGHTINGS BOTH FOR FRANCE ( 130.5% FOR PARIS AND FOR CERTAIN DEPARTMENTS AND 122.5% FOR THE REST OF THE COUNTRY ) AND FOR ITALY ( 114% FOR ISPRA AND 114.5% FOR THE REST OF THE COUNTRY ). IT WAS ONLY LATER THAT THE COUNCIL DECIDED TO USE A SINGLE WEIGHTING FOR EACH MEMBER STATE .
37 THAT NEW SYSTEM IN REALITY CONFERS IN MOST CASES A BENEFIT ON OFFICIALS NOT RESIDENT IN THE CAPITAL SINCE THE COST OF LIVING THERE IS GENERALLY HIGHER THAN IN THE PROVINCES . HOWEVER, IT SEEMS THAT THAT IS NOT THE CASE SPECIFICALLY IN ITALY WHERE THE SURVEY BY THE STATISTICAL OFFICE AND THE INFORMATION SUPPLIED BY THE ITALIAN INSTITUTE OF STATISTICS BOTH SHOW THAT THE COST OF LIVING IN VARESE IS HIGHER THAN THAT IN ROME .
38 IN FACT IT IS CLEAR FROM THE FIGURES COMMUNICATED BY THE COMMISSION ON THE BASIS OF THE RESULT OF THE SURVEY CARRIED OUT BY THE STATISTICAL OFFICE IN VARESE IN MAY 1976 TAKING INTO CONSIDERATION 230 ITEMS OF EXPENDITURE ( EXCLUDING RENT, HEATING AND ELECTRICITY WHICH WERE THE SUBJECT OF A LATER INVESTIGATION ) THAT THE COST OF LIVING IN THAT PROVINCE WAS 7.66% HIGHER THAN IN ROME . AFTER THE RESULT OF THE INVESTIGATION CARRIED OUT IN VARESE ON THE LEVEL OF RENTS HAD BEEN TAKEN INTO ACCOUNT, THE DIFFERENCE WAS REDUCED TO 2.76% WHICH STILL REPRESENTED A SUBSTANTIAL DIFFERENCE WITHIN THE MEANING OF ARTICLE 65 ( 2 ) OF THE STAFF REGULATIONS . MOREOVER IT IS CLEAR FROM THE REASONS ACCOMPANYING THE COMMISSION ' S PROPOSALS WHICH LED TO REGULATION NO 3087/78 THAT THE COMMISSION ITSELF ENTERTAINED DOUBTS AS TO WHETHER THE SOLE REFERENCE TO THE COST OF LIVING IN ROME WAS WELL FOUNDED SINCE IT STATED THAT ' ' THE USE OF A SINGLE WEIGHTING FOR EACH COUNTRY OF EMPLOYMENT, WORKED OUT FOR THE CAPITAL, PLACES STAFF WORKING IN ISPRA AT A SLIGHT DISADVANTAGE . THE STATISTICS AVAILABLE SHOW THAT THE COST OF LIVING IN ROME HAS RISEN LESS RAPIDLY THAN IN THE VARESE AREA, FROM WHICH IT MAY REASONABLY BE ASSUMED THAT PRICES IN ROME ARE LOWER THAN IN VARESE . THIS EXISTENCE OF LOWER PRICES IN THE CAPITAL THAN ELSEWHERE IS THE EXCEPTION RATHER THAN THE RULE IN THE NINE . IN VIEW OF THE NUMBER OF STAFF EMPLOYED IN ISPRA A SPECIAL LOCAL PRICE SURVEY WOULD APPEAR JUSTIFIED . HOWEVER, THE COMMISSION FEELS THAT IT WOULD BE WISER NOT TO INNOVATE IN THIS DIRECTION AND TO ABIDE BY THE COUNCIL DECISION OF 1968, WHICH PROVIDES SPECIFICALLY FOR THE USE OF THE PRICE INDEXES RELATING TO THE CAPITAL ' ' .
39 UNDER THOSE CONDITIONS, IN ORDER THAT THE RULE CONTAINED IN ARTICLE 64 OF THE STAFF REGULATIONS TO THE EFFECT THAT ACCOUNT MUST BE TAKEN OF LIVING CONDITIONS IN THE VARIOUS ' ' PLACES OF EMPLOYMENT ' '
MAY BE OBSERVED, THAT EXPRESSION MUST BE UNDERSTOOD AS MEANING NOT ONLY THE CAPITALS OF THE MEMBER STATES BUT THE EXACT PLACES WHERE THE DUTIES OF A SUFFICIENTLY LARGE NUMBER OF OFFICIALS AND OTHER EMPLOYEES OF THE COMMUNITIES ARE PERFORMED .
40 THEREFORE IT IS FOR THE COMMUNITY INSTITUTIONS, IN CASES IN WHICH THE COST OF LIVING IN SUCH A PLACE OF EMPLOYMENT UNDERGOES FLUCTUATIONS GREATER THAN THOSE OCCURRING IN THE CAPITAL OF THE STATE IN QUESTION, TO DETERMINE SEPARATE WEIGHTINGS . HENCE THE APPLICANT ' S SUBMISSIONS RELATING TO THE CALCULATION OF THE WEIGHTING AFFECTING HIS SALARY ON THE BASIS OF THE COST OF LIVING IN THE PROVINCE OF VARESE MUST BE CONSIDERED WELL FOUNDED .
41 AS REGARDS THE RETROACTIVITY OF REGULATION NO 3087/78 THE APPLICANT CLAIMS THAT THAT REGULATION OUGHT TO HAVE BEEN APPLIED AS FROM 1 JANUARY 1976 SINCE SUBSTANTIAL INCREASES IN THE COST OF LIVING HAD OCCURRED AS FROM THAT YEAR .
42 IN FACT IT IS CLEAR FROM THE REPORTS OF THE STATISTICAL OFFICE OF 17 AND 29 JUNE 1976 AND FROM ITS MEMORANDUM OF 17 AUGUST 1976 THAT CHANGES OF MORE THAN 2% IN THE COST OF LIVING AS AGAINST THAT AT BRUSSELS HAD OCCURRED IN 1976 BOTH IN ROME AND, TO A GREATER EXTENT, IN VARESE .
43 THE COMMISSION STATES IN THAT CONNECTION THAT ARTICLE 65 ( 2 ) OF THE STAFF REGULATIONS, WHICH PROVIDES THAT ' ' IN THE EVENT OF A SUBSTANTIAL CHANGE IN THE COST OF LIVING, THE COUNCIL SHALL DECIDE, WITHIN TWO MONTHS, WHAT ADJUSTMENTS SHOULD BE MADE TO THE WEIGHTINGS AND IF APPROPRIATE TO APPLY THEM RETROSPECTIVELY ' ', MUST BE UNDERSTOOD AS GIVING THE COUNCIL DISCRETIONARY POWER TO DECIDE WHETHER MEASURES ADJUSTING WEIGHTINGS SHOULD BE RETROACTIVE OR NOT .
44 THAT ARGUMENT CANNOT BE UPHELD . IN FACT THE WORDING OF ARTICLE 65 ( 2 ) PRECLUDES ANY INTERPRETATION TO THE EFFECT THAT THE COUNCIL IS NOT OBLIGED TO ADJUST THE WEIGHTINGS WITHIN A PERIOD OF TWO MONTHS FOLLOWING ANY SUBSTANTIAL CHANGE IN THE COST OF LIVING . IT SHOULD BE REMEMBERED THAT THE COURT IN ITS JUDGMENT OF 6 OCTOBER 1982 IN CASE 59/81 COMMISSION V COUNCIL ( 1982 ) ECR 332 HELD THAT THE COUNCIL ' S POWER IN THIS RESPECT WAS TO DECIDE WHETHER OR NOT THERE HAD BEEN A SUBSTANTIAL INCREASE IN THE COST OF LIVING AND, IF THERE HAD, TO DRAW THE APPROPRIATE CONCLUSIONS . ANY OTHER INTERPRETATION WOULD RUN COUNTER TO THE OBJECTIVE OF THE PROVISION IN QUESTION WHICH IS TO GUARANTEE TO ALL OFFICIALS THE SAME PURCHASING POWER WHATEVER THEIR PLACE OF EMPLOYMENT .
45 THAT SUBMISSION IS THEREFORE WELL FOUNDED .
46 CONSEQUENTLY IT IS NOT NECESSARY TO EXAMINE THE OTHER SUBMISSIONS PUT FORWARD BY THE APPLICANT WHICH WERE PUT ONLY IN THE ALTERNATIVE .
47 THE APPLICANT ' S SALARY STATEMENT FOR THE MONTH OF JANUARY 1979 MUST THEREFORE BE ANNULLED, IN SO FAR AS IT IS RESTRICTED TO GIVING EFFECT TO COUNCIL
REGULATION NO 3087/78, BOTH AS TO THE AMOUNT OF THE ADJUSTMENT OF THE WEIGHTING AND AS TO THE RETROACTIVE EFFECT OF THAT ADJUSTMENT, TOGETHER WITH THE DECISIONS REJECTING THE APPLICANT ' S COMPLAINTS . REGULATION NO 3087/78 IS NOT APPLICABLE TO THE APPLICANT IN SO FAR AS IT TAKES NO ACCOUNT OF THE COST OF LIVING IN VARESE AND LIMITS THE RETROACTIVE EFFECT OF THE ADJUSTMENT OF THE WEIGHTING TO 1 JANUARY 1978 .
48 SINCE IT MAY BE EXPECTED THAT THE COMPETENT INSTITUTIONS WILL TAKE THE MEASURES NECESSARY TO COMPLY WITH THIS JUDGMENT, EXAMINATION OF THE CLAIM FOR COMPENSATION FOR THE PECUNIARY DAMAGE SUFFERED BY THE APPLICANT MUST BE DEFERRED TO A DATE TO BE FIXED AT A LATER DATE IF NECESSARY .
49 BEFORE 15 JULY 1983 THE COMMISSION SHALL REPORT TO THE COURT ON THE MEASURES TAKEN TO COMPENSATE THE APPLICANT ; THE APPLICANT WILL BE GIVEN AN OPPORTUNITY TO REPLY .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION IN SO FAR AS IT IS FOUNDED ON THE ALLEGED ILLEGALITY OF COUNCIL REGULATION NOS 3085/78 AND 3086/78 ;
2.ANNULS THE APPLICANT ' S SALARY STATEMENT FOR JANUARY 1979, IN SO FAR AS IT IS RESTRICTED TO GIVING EFFECT TO COUNCIL REGULATION NO 3087/78, BOTH AS TO THE AMOUNT OF THE ADJUSTMENT OF THE WEIGHTING AND AS TO THE RETROACTIVE EFFECT OF THAT ADJUSTMENT, TOGETHER WITH THE DECISIONS REJECTING THE APPLICANT ' S COMPLAINTS ; DECLARES REGULATION NO 3087/78 NOT APPLICABLE TO THE APPLICANT IN SO FAR AS IT TAKES NO ACCOUNT OF THE
COST OF LIVING IN VARESE AND LIMITS THE RETROACTIVE EFFECT OF THE ADJUSTMENT OF THE WEIGHTING TO 1 JANUARY 1978 ;
3.ORDERS THE COMMISSION TO REPORT TO THE COURT BEFORE 15 JULY 1983 ON THE MEASURES TAKEN TO COMPLY WITH THIS JUDGMENT ;
4.DEFERS EXAMINATION OF THE CLAIM FOR COMPENSATION FOR THE PECUNIARY DAMAGE SUFFERED BY THE APPLICANT TO A DATE TO BE FIXED LATER, SHOULD THE NECESSITY ARISE ;
5.THE COSTS ARE RESERVED .