61979CJ0532(01)_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN JOINED CASES 532, 534, 567, 600, 618, 660/79 AND 543/79
1 . JAN AMESZ, RESIDING AT 28 VIA CARNISIO, COCQUIO ( VARESE ), ITALY,
2.ROLF BAUCH, RESIDING AT 13 VIA MATTEOTTI, ANGERA ( VARESE ), ITALY,
3.JAKOB FLAMM, RESIDING AT VIA GRAZIA DELEDDA, RANCO ( VARESE ), ITALY,
4.HANS HOFFMANN, RESIDING AT 2 VIA CERVINO, TAINO ( VARESE ), ITALY,
5.HELMUT KNOEPPEL, RESIDING AT 116 VIA MATTEOTTI, CADREZZATE ( VARESE ), ITALY,
6.HENRICUS NIJMAN, RESIDING AT 55 VIA CORRIDONI, VARESE, ITALY,
7.ANTON BIRKE, RESIDING AT 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 VICTOR BIEL, AVOCAT, 18 A RUE DES GLACIS,
APPLICANTS,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY J . PIPKORN, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE AT THE OFFICE OF O . MONTALTO, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION IN THE TERMS SET OUT IN THE APPLICANTS '
CONCLUSIONS,
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 11 OCTOBER 1979, THE APPLICANTS, OFFICIALS 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 THEIR REMUNERATION FOR THE MONTHS OF JANUARY AND APRIL 1979, AND FOR AN ORDER THAT THE COMMISSION MAKE GOOD THE DAMAGE SUFFERED BY THEM AS A RESULT OF THE UNLAWFUL DECISIONS FIXING THEIR REMUNERATION .
2 ON 15 DECEMBER 1982, IN CASE 543/79 ( BIRKE, ( 1982 ) ECR 4425 ) AND IN JOINED CASES 532, 534, 567, 600, 618 AND 660/79 ( AMESZ AND OTHERS, ( 1982 ) ECR 4465 ), THE COURT DELIVERED TWO IDENTICAL JUDGMENTS IN WHICH, ADJUDICATING ON THE APPLICANTS '
REQUESTS RELATING TO THE COMMISSION ' S DECISIONS FIXING THEIR REMUNERATION FOR APRIL 1979, IT DISMISSED THEIR APPLICATIONS IN SO FAR AS THEY ALLEGED THAT COUNCIL REGULATIONS NOS 3085/78 AND 3086/78 WERE ILLEGAL .
3 IN THE SAME JUDGMENTS THE COURT, GIVING JUDGMENT ON THE CLAIMS RELATING TO THE COMMISSION ' S DECISIONS FIXING THEIR REMUNERATION FOR JANUARY 1979, HELD THAT THE APPLICANTS '
SUBMISSION THAT REGULATION NO 3087/78 INFRINGED ARTICLES 64 AND 65 OF THE STAFF REGULATIONS WAS WELL FOUNDED, AND PROCEEDED, FIRST, TO ANNUL THE APPLICANTS '
SALARY STATEMENTS FOR JANUARY 1979 IN SO FAR AS THEY DID NO MORE THAN GIVE EFFECT TO THE AFORESAID COUNCIL REGULATION, BOTH AS TO THE AMOUNT BY WHICH THE WEIGHTING WAS ADJUSTED AND AS TO THE RETROACTIVITY OF THAT ADJUSTMENT, AND, SECONDLY, TO DECLARE THE REGULATION TO BE INAPPLICABLE TO THE APPLICANTS IN SO FAR AS IT TOOK NO ACCOUNT OF THE COST OF LIVING IN VARESE AND LIMITED THE RETROACTIVITY OF THE WEIGHTING TO 1 JANUARY 1978 . IN THE SAME JUDGMENTS THE COURT REQUESTED THE COMMISSION TO REPORT TO IT ON THE MEASURES TAKEN TO COMPLY WITH THEM AND DECIDED TO DEFER EXAMINATION OF THE CLAIM FOR COMPENSATION FOR PECUNIARY DAMAGE SUFFERED BY THE APPLICANTS TO A DATE TO BE FIXED THEREAFTER, IF NECESSARY ; AT THE SAME TIME, IT RESERVED THE COSTS .
4 FOLLOWING THOSE JUDGMENTS, THE COMMISSION SUBMITTED TWO REPORTS, THE SECOND OF WHICH NOTES THE ADOPTION BY THE COUNCIL OF REGULATION NO 3681/83 OF 19 DECEMBER 1983 ( OFFICIAL JOURNAL L 368, P . 1 ), ADJUSTING WITH EFFECT FROM 1 JANUARY 1976 THE WEIGHTINGS APPLICABLE TO THE REMUNERATION OF OFFICIALS AND OTHER SERVANTS ASSIGNED TO POSTS IN ITALY, AND FIXING SPECIAL WEIGHTINGS FOR VARESE WITH EFFECT FROM THE SAME DATE . ON THE BASIS OF THAT REGULATION, THE COMMISSION CALCULATED AND PAID TO THE APPLICANTS ARREARS OF SALARY DURING THE PERIOD FROM THE END OF DECEMBER 1983 AND JANUARY 1984 .
5 AFTER FINDING THAT, NOTWITHSTANDING THE ADOPTION OF THE AFORESAID REGULATION AND THE MEASURES TAKEN BY THE COMMISSION TO IMPLEMENT IT, THE PARTIES HAD NOT MANAGED TO REACH AGREEMENT ON AN OUT-OF-COURT SETTLEMENT OF THEIR DISPUTE, THE COURT DECIDED, IN PURSUANCE OF ITS JUDGMENTS OF 15 DECEMBER 1982, TO CONSIDER THE MATTERS LEFT IN ABEYANCE, NAMELY THE CLAIM FOR COMPENSATION FOR THE PECUNIARY DAMAGE SUFFERED BY THE APPLICANTS AND THE QUESTION OF COSTS .
THE CLAIM FOR COMPENSATION FOR THE PECUNIARY DAMAGE SUFFERED BY THE APPLICANTS
6 IT SHOULD BE BORNE IN MIND AT THE OUTSET, FOR THE PURPOSES OF CONSIDERING THE CLAIM FOR COMPENSATION FOR PECUNIARY DAMAGE SUFFERED BY THE APPLICANTS, THAT IN THEIR APPLICATIONS THEY REQUESTED THE COURT TO ORDER THE COMMISSION, ON THE ONE HAND, TO PAY THEM, IN ITALIAN LIRA, THE DIFFERENCE BETWEEN THE AMOUNTS BY WAY OF REMUNERATION TO WHICH THEY WOULD HAVE BEEN ENTITLED IF REGARD HAD BEEN HAD TO THE PURCHASING POWER OF THE ITALIAN LIRA, BOTH ABROAD AND IN THE PROVINCE OF VARESE,
SINCE THEIR POSTING TO ISPRA, TO BE CALCULATED ' FROM JANUARY 1976 AT THE EARLIEST ', AND THE AMOUNTS ACTUALLY RECEIVED PURSUANT TO REGULATION NO 3087/78, AND, ON THE OTHER HAND, TO SUPPLEMENT THE ARREARS DUE TO THEM BY INTEREST AT THE RATE OF 6%, TO RUN FROM THE DATE ON WHICH EACH AMOUNT OF ARREARS FELL DUE UNTIL THE DATE OF ACTUAL PAYMENT .
THE PRINCIPAL CLAIM ( ARREARS OF REMUNERATION )
7 IN THEIR OBSERVATIONS IN REPLY TO THE REPORTS SUBMITTED BY THE COMMISSION, THE APPLICANTS DO NOT CHALLENGE EITHER THE AMOUNT OF THE WEIGHTINGS FIXED BY THE COUNCIL IN REGULATION NO 3681/83 OR THE AMOUNTS PAID TO THEM BY THE COMMISSION IN PURSUANCE THEREOF BY WAY OF ARREARS OF REMUNERATION IN RESPECT OF THE PERIOD COMMENCING ON 1 JANUARY 1976 . HOWEVER, THEY TAKE THE VIEW THAT FURTHER ARREARS OF REMUNERATION ARE DUE TO THEM IN RESPECT OF THE PERIOD PRIOR TO THAT DATE, ON THE GROUND THAT IN ORDER TO GIVE EFFECT TO THE JUDGMENTS OF 15 DECEMBER 1982 THE INSTITUTIONS CONCERNED SHOULD HAVE ADJUSTED THE WEIGHTINGS APPLICABLE TO VARESE FOR THE PERIOD PRIOR TO 1 JANUARY 1976, SINCE THE CHECKS CARRIED OUT BY THE STATISTICAL OFFICE OF THE EUROPEAN COMMUNITIES ON THE DATA PROVIDED BY THE ISTITUTO CENTRALE DI STATISTICA HAD REVEALED THAT, FROM JULY 1974, THE COST OF LIVING IN VARESE HAD DEVIATED FROM THAT OF ROME BY 1.8% .
8 THE COMMISSION DISPUTES THE ADMISSIBILITY OF THAT CLAIM, POINTING OUT THAT IT MANIFESTLY EXCEEDS THE CLAIMS MADE BY THE APPLICANTS, NOT ONLY IN THEIR COMPLAINTS OF 1979 BUT ALSO IN THEIR APPLICATIONS TO THE COURT ; THE LATTER CLEARLY REFER TO THE PERIOD RUNNING ' FROM THE TIME OF THE APPLICANTS '
POSTING TO ISPRA, BUT FROM JANUARY 1976 AT THE EARLIEST ' .
9 THAT OBJECTION MUST BE UPHELD . IN THIS REGARD IT IS SUFFICIENT TO POINT OUT THAT, ACCORDING TO A CONSISTENT LINE OF DECIDED CASES, THE WORDING OF ARTICLE 19 OF THE STATUTE OF THE COURT OF JUSTICE OF THE EEC AND ARTICLE 38 OF THE RULES OF PROCEDURE PRECLUDE THE INTRODUCTION OF FRESH CLAIMS IN THE COURSE OF THE PROCEEDINGS .
10 IT SHOULD THEREFORE BE HELD, IN SO FAR AS IS NECESSARY, THAT THE PRINCIPAL CLAIM, INASMUCH AS IT RELATES TO ARREARS OF REMUNERATION PAYABLE AS FROM 1 JANUARY 1976, NO LONGER HAS ANY PURPOSE IN VIEW OF THE BACK-PAYMENTS MADE BY THE COMMISSION PURSUANT TO REGULATION NO 3681/83 .
SUBSIDIARY CLAIM ( INTEREST )
11 AS STATED ABOVE, THE APPLICANTS FURTHER REQUESTED THAT THE COMMUNITY BE ORDERED TO PAY INTEREST AT THE RATE OF 6% ON THE ARREARS, TO RUN FROM THE DATE ON WHICH EACH AMOUNT OF ARREARS FELL DUE TO THE DATE OF ACTUAL PAYMENT .
DEFAULT INTEREST
12 THE APPLICANTS ASK FOR INTEREST TO BE AWARDED TO THEM IN RESPECT OF THE DELAY IN SETTLING THEIR PECUNIARY CLAIMS AND AT A RATE WHICH MAKES ALLOWANCE FOR CURRENCY DEPRECIATION, WHICH IS ESPECIALLY ACUTE IN ITALY . THE COMMISSION CONTENDS, PRIMARILY, THAT NO INTEREST IN RESPECT OF DELAY IS PAYABLE IN THE CASE OF SUMS PAID TO MEMBERS OF STAFF, WITHOUT FAULT ON THE PART OF THE ADMINISTRATION, ON THE BASIS OF LEGISLATIVE MEASURES ADOPTED PURSUANT TO THE STAFF REGULATIONS ; IN THE ALTERNATIVE IT CONTENDS THAT SUCH INTEREST FALLS TO BE PAID AT AN ANNUAL RATE OF 6%, COMMENCING FROM THE COURT ' S JUDGMENT OF 15 DECEMBER 1982, OR, AT THE EARLIEST, FROM 26 MARCH 1979, ON WHICH DATE THE APPLICANTS HAD LODGED THEIR COMPLAINT WITH THE COMMISSION UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS . AT THE HEARING THE COMMISSION STATED THAT, EVEN IF THE COURT WERE TO AWARD THE APPLICANTS INTEREST IN RESPECT OF SUMS WITH EFFECT FROM THE DATE ON WHICH THEY HAD SUBMITTED THEIR COMPLAINT TO THE COMMISSION, IT WOULD EXTEND THE ARRANGEMENT TO COVER ALL THE APPLICANTS .
13 IN RESPONSE TO THE COMMISSION ' S ARGUMENT THE APPLICANTS CONTEND, PRIMARILY, THAT THERE WAS A SERIOUS WRONGFUL OMISSION ON THE PART OF THE COMMISSION IN THE PERFORMANCE OF ITS FUNCTIONS, INASMUCH AS, ALTHOUGH IT WAS AWARE OF THE ILLEGAL SITUATION TO WHICH THE PARTIES CONCERNED HAD OBJECTED, IT TOOK NO ACTION TO REMEDY THAT SITUATION .
14 HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE, IN PARTICULAR THE EXCESSIVE SLOWNESS OF THE COMMUNITY INSTITUTIONS IN DISCHARGING THEIR DUTIES, AND TO ITS PREVIOUS DECISIONS, ESPECIALLY ITS JUDGMENT OF 20 MARCH 1984 ( RAZZOUK AND BEYDOUN V COMMISSION, JOINED CASES 75 AND 117/82, ( 1984 ) ECR 1509 ), WHICH WAS CONCERNED, AS IS THE PRESENT CASE, WITH SUMS OWED BY VIRTUE OF THE STAFF REGULATIONS, THE COURT FIXES THE INTEREST IN RESPECT OF THE DELAY IN SETTLING THE APPLICANTS '
PECUNIARY CLAIMS AT 6% PER ANNUM, SUCH INTEREST TO RUN FROM 26 MARCH 1979, THE DATE OF THE COMPLAINT WHICH THEY SUBMITTED TO THE COMMISSION UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS, AS REGARDS THE ARREARS WHICH WERE DUE ON THAT DATE, OR, WHERE ARREARS BECAME PAYABLE AFTER THAT DATE, FROM THE DATES ON WHICH THEY DID SO .
COMPENSATORY INTEREST
15 IN THEIR SUBMISSIONS IN REPLY TO THE COMMISSION ' S REPORTS, THE APPLICANTS FURTHER REQUEST THAT THE COMMISSION BE ORDERED TO PAY COMPENSATORY INTEREST TO MAKE GOOD THE DAMAGE SUFFERED BY THEM AS A RESULT OF THE DEPRECIATION OF THE ITALIAN LIRA DURING THE PERIOD PRECEDING PAYMENT OF THE ARREARS OF REMUNERATION .
16 THE COMMISSION DISPUTES NOT ONLY THE SUBSTANCE OF THAT CLAIM BUT ALSO ITS ADMISSIBILITY, ON GROUNDS IDENTICAL TO THOSE CITED WITH REGARD TO THE CLAIM FOR ARREARS IN RESPECT OF THE PERIOD PRIOR TO 1976 .
17 THE ARGUMENT TO THE EFFECT THAT THE CLAIM IS INADMISSIBLE MUST BE UPHELD . THAT CLAIM IS A FRESH CLAIM AND, AS SUCH, MUST BE REGARDED AS BROUGHT OUT OF TIME AND HENCE AS INADMISSIBLE .
Decision on costs
COSTS
18 UNDER ARTICLE 69 OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS, BUT THE COURT MAY ORDER THAT THE PARTIES ARE TO BEAR THEIR OWN COSTS IN WHOLE OR IN PART WHERE EACH PARTY SUCCEEDS ON SOME AND FAILS ON OTHER HEADS .
19 SINCE EACH OF THE PARTIES HAS BEEN UNSUCCESSFUL ON SOME HEADS - THE APPLICANTS IN THEIR CLAIMS CONCERNING THE COMMISSION ' S DECISIONS FIXING THEIR REMUNERATION FOR AUGUST 1979, AND THE COMMISSION IN ITS CONTENTIONS REGARDING THE DECISIONS ON THEIR REMUNERATION FOR JANUARY 1979 - THE COSTS SHOULD BE APPORTIONED IN SUCH A WAY THAT THE COMMISSION SHALL PAY ITS OWN COSTS TOGETHER WITH ONE THIRD OF THOSE INCURRED BY THE APPLICANTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER ),
FURTHER TO ITS JUDGMENTS OF 15 DECEMBER 1982,
HEREBY :
1 . DECLARES THAT THE APPLICANT ' S CLAIM FOR ARREARS OF REMUNERATION NO LONGER HAS ANY PURPOSE INASMUCH AS IT RELATES TO THE PERIOD COMMENCING ON 1 JANUARY 1976 ;
2.ORDERS THE COMMISSION TO PAY DEFAULT INTEREST AT THE RATE OF 6% PER ANNUM ON THE AMOUNT OF THE ARREARS OF REMUNERATION WHICH IT PAID IN PURSUANCE OF REGULATION NO 3681/83, SUCH INTEREST TO BE CALCULATED WITH EFFECT FROM 26 MARCH 1979, THE DATE OF THE APPLICANTS '
COMPLAINTS, AS REGARDS THE AMOUNTS OF ARREARS WHICH WERE DUE ON THAT DATE, OR, IN THE CASE OF ARREARS WHICH BECAME PAYABLE AFTER THAT DATE, FROM THE DATES ON WHICH THEY DID SO ;
3.FOR THE REST, DISMISSES THE APPLICATIONS ;
4.ORDERS THE COMMISSION TO PAY ITS OWN COSTS TOGETHER WITH ONE THIRD OF THOSE INCURRED BY THE APPLICANTS .