61983CJ0028_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 28/83
SANDRO FORCHERI, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY E . LEBRUN, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF T . BIEVER, 83 BOULEVARD GRANDE-DUCHESSE-CHARLOTTE,
APPLICANT,
SUPPORTED BY
LUIGI CASELLA, ENRICO OSIO, CORNELIA OUD AND JAN ROBERT DE RIJK, OFFICIALS OF THE COMMISSION, ASSISTED AND REPRESENTED BY E . LEBRUN, ALSO WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF T . BIEVER,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS PRINCIPAL LEGAL ADVISER, B . PAULIN, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO, A MEMBER OF ITS LEGAL SERVICE, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
SUPPORTED BY
THE GOVERNMENT OF THE KINGDOM OF BELGIUM, REPRESENTED BY M . WAELBROECK, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE BELGIAN EMBASSY, 4 RUE DES GIRONDINS,
Subject of the case
APPLICATION FOR
( A ) AN ORDER REQUIRING THE COMMISSION TO TAKE ALL THE NECESSARY STEPS TO HAVE THE CONVERTIBILITY OF HIS REMUNERATION PAID IN CONVERTIBLE BELGIAN FRANCS BY THE COMMISSION RESTORED TO 100% WITH RETROACTIVE EFFECT FROM 1 FEBRUARY 1982 AND
( B)THE ANNULMENT OF THE IMPLIED DECISION REJECTING HIS COMPLAINT OF 29 JULY 1982 AND, SO FAR AS IS NECESSARY, THE IMPLIED DECISION REJECTING HIS REQUEST FOR ASSISTANCE OF 8 FEBRUARY 1982,
Grounds
1 BY AN APPLICATIONS LODGED AT THE COURT REGISTRY ON 23 FEBRUARY 1983, SANDRO FORCHERI, AN OFFICIAL OF ITALIAN NATIONALITY AT THE COMMISSION OF THE EUROPEAN COMMUNITIES, BROUGHT AN ACTION FOR AN ORDER REQUIRING THE COMMISSION TO TAKE ALL THE NECESSARY STEPS TO HAVE THE CONVERTIBILITY OF HIS REMUNERATION RESTORED TO 100% WITH RETROACTIVE EFFECT FROM 1 FEBRUARY 1982 AND, SECONDLY, THE ANNULMENT OF THE IMPLIED DECISION REJECTING HIS COMPLAINT OF 29 JULY 1982 AND, SO FAR AS IS NECESSARY, OF THE IMPLIED DECISION REJECTING HIS REQUEST FOR ASSISTANCE OF 8 FEBRUARY 1982 .
2 IT SHOULD BE RECALLED THAT THERE ARE TWO DISTINCT EXCHANGE MARKETS FOR THE BELGIAN AND LUXEMBOURG FRANC, NAMELY A REGULATED MARKET ON WHICH THE MARGINS OF FLUCTUATION IN RELATION TO OTHER CURRENCIES ARE MAINTAINED WITHIN CERTAIN LIMITS AS A RESULT OF THE INTERVENTION OF THE CENTRAL BANKS AND A FREE MARKET ON WHICH THE RATE IS SUBJECT TO THE EFFECT OF SUPPLY AND DEMAND AND THERE IS NO INTERVENTION ON THE PART OF THE CENTRAL BANKS . THE EXCHANGE RATES APPLICABLE ON THE TWO MARKETS THEREFORE MOVE INDEPENDENTLY AND THE RATES OF FOREIGN CURRENCIES ON THE FREE MARKET ARE OFTEN HIGHER THAN THOSE ON THE
REGULATED MARKET . THE RELEVANT PROVISIONS SPECIFY FOR WHAT TRANSACTIONS AND UNDER WHAT CONDITIONS PURCHASES OR SALES OF CURRENCIES MAY OR MUST BE CARRIED OUT ON THE REGULATED MARKET OR ON THE FREE EXCHANGE MARKET .
3 CONSIDERING THAT THE UNRESERVED APPLICATION OF THOSE PROVISIONS TO OFFICIALS OF THE COMMUNITIES WHO WERE NOT OF BELGIAN OR LUXEMBOURG NATIONALITY WAS NOT FAIR, THE BELGIAN AND LUXEMBOURG AUTHORITIES IN THE COURSE OF THE 1970 ' S SET UP A SPECIAL SYSTEM FOR THOSE OFFICIALS IN THE FORM OF SPECIAL CONVERTIBLE FOREIGN ACCOUNTS . THOSE ACCOUNTS ARE DISTINGUISHED, ON THE ONE HAND, BY THE FACT THAT ONLY THE SALARIES AND ALLOWANCES PAID BY THE EUROPEAN COMMUNITIES AND SUMS TRANSFERRED FROM OTHER CONVERTIBLE ACCOUNTS MAY BE DEPOSITED IN SUCH ACCOUNTS AND, ON THE OTHER HAND, BY THE FACT THAT THEY PERMIT ALL EXCHANGE TRANSACTIONS TO BE EFFECTED ON THE REGULATED MARKET .
4 TOWARDS THE END OF 1981 THE GAP BETWEEN THE EXCHANGE RATES ON THE REGULATED MARKET AND THOSE ON THE FREE MARKET WIDENED AND IT BECAME COMMON PRACTICE FOR MANY OFFICIALS TO USE THE POSSIBILITIES OFFERED BY THE CONVERTIBLE ACCOUNTS TO EFFECT ' ' ARBITRAGE ' '
TRANSACTIONS IN WHICH THEY BOUGHT FOREIGN CURRENCY ON THE REGULATED MARKET AND THEN IMMEDIATELY RESOLD IT ON THE FREE MARKET, THEREBY MAKING A PROFIT IN BELGIAN OR LUXEMBOURG FRANCS BASED ON THE DIFFERENCE BETWEEN THE TWO RATES . IN ORDER TO STOP THAT PRACTICE, ON 21 DECEMBER 1981 THE INSTITUT BELGO-LUXEMBOURGEOIS DU CHANGE ( BELGO-LUXEMBOURG EXCHANGE INSTITUTE, HEREINAFTER REFERRED TO AS ' ' THE EXCHANGE INSTITUTE ' ' ) AMENDED THE EXISTING SYSTEM SO THAT IN FUTURE, IN THE ABSENCE OF SPECIAL AUTHORIZATION, ONLY 25% OF SUMS PAID AS SALARY OR ALLOWANCES COULD BE CREDITED TO THE SPECIAL CONVERTIBLE ACCOUNTS WHICH PLACED A CORRESPONDING LIMITATION ON THE POSSIBILITY FOR OFFICIALS TO BUY FOREIGN CURRENCY FREELY ON THE REGULATED MARKET .
5 FOLLOWING THE ADOPTION OF THOSE MEASURES, THE COMMUNITY INSTITUTIONS RECEIVED NUMEROUS REQUESTS FOR ASSISTANCE FROM THEIR OFFICIALS AND THEN COMPLAINTS SUBMITTED UNDER ARTICLE 90 OF THE STAFF REGULATIONS . FOR THEIR PART, THE INSTITUTIONS MADE REPRESENTATIONS TO THE EXCHANGE INSTITUTE TO HAVE THE POSSIBILITY FOR OFFICIALS OF OTHER THAN BELGIAN OR LUXEMBOURG NATIONALITY TO HAVE ALL THEIR SALARY AND ALLOWANCES PAID INTO A CONVERTIBLE ACCOUNT RESTORED .
6 ON 1 JUNE 1982, AFTER NEGOTIATIONS WITH THE COMMUNITY INSTITUTIONS, THE EXCHANGE INSTITUTE PUBLISHED A CIRCULAR STATING THAT SUCH OFFICIALS WERE ONCE MORE AUTHORIZED TO HAVE ALL THEIR SALARY AND ALLOWANCES CREDITED TO A SPECIAL CONVERTIBLE FOREIGN ACCOUNT, PROVIDED, HOWEVER, THAT THEY SIGNED A DECLARATION - WHICH HAD TO BE COUNTERSIGNED BY THE INSTITUTION EMPLOYING THEM - IN WHICH THE HOLDER OF THE CONVERTIBLE ACCOUNT :
' ' ACKNOWLEDGES THAT HE IS AWARE . . . ( THAT HE ) IS OBLIGED TO RECEIVE HIS REMUNERATION EITHER IN A CONVERTIBLE ACCOUNT OR IN FOREIGN CURRENCY WHICH MUST BE SOLD WITHIN EIGHT DAYS TO AN APPROVED BANK OPERATING ON THE REGULATED MARKET . . .;
. . .
ACKNOWLEDGES THAT HE HAS BEEN INFORMED THAT FUNDS IN BELGIAN OR LUXEMBOURG FRANCS STANDING TO THE CREDIT OF THE AFORESAID ACCOUNTS MAY BE USED WITHOUT RESTRICTION, EITHER IN ORDER TO EFFECT ANY PAYMENTS WITHIN THE TERRITORY OF THE BELGO-LUXEMBOURG ECONOMIC UNION OR IN ORDER TO BUY, ON THE REGULATED MARKET, THE FOREIGN CURRENCY NEEDED TO MEET, OUTSIDE THE TERRITORY OF THE UNION, ANY OBLIGATIONS ENTERED INTO OR TO BUILD UP SAVINGS OF WHICH HE WILL PROVIDE EVIDENCE AT THE EXCHANGE INSTITUTE ' S REQUEST ;
UNDERTAKES TO USE FUNDS STANDING TO THE CREDIT OF THE SAID ACCOUNT ONLY ON THE CONDITIONS STIPULATED ABOVE AND NOT TO CARRY OUT ANY TRANSACTION DESIGNED TO CIRCUMVENT THOSE PROVISIONS, SUCH AS ARBITRAGE TRANSACTIONS, THAT IS TO SAY, BUYING FOREIGN CURRENCY ON THE REGULATED MARKET OR TRANSFERRING FUNDS TO CONVERTIBLE FOREIGN ACCOUNTS WITH THE AIM OF PROCURING THE MEANS OF PAYMENT TO COVER CURRENT EXPENDITURE WITHIN THE TERRITORY OF THE BELGO-LUXEMBOURG ECONOMIC UNION ;
ACKNOWLEDGES THAT IF HE FAILS TO COMPLY WITH THIS UNDERTAKING IN ANY WAY, PROCEEDINGS MAY BE BROUGHT AGAINST HIM BY THE EXCHANGE INSTITUTE ' ' .
7 IF HOLDERS OF CONVERTIBLE ACCOUNTS DO NOT SIGN THAT UNDERTAKING, THEY REMAIN SUBJECT TO THE RULES LAID DOWN ON 21 DECEMBER 1981 DESCRIBED ABOVE .
8 ON 8 FEBRUARY 1982, THE APPLICANT, TAKING THE VIEW THAT THE RULES LAID DOWN ON 21 DECEMBER 1981 WERE UNLAWFUL AND ADVERSELY AFFECTED HIS STATUS AS AN OFFICIAL OF THE EUROPEAN COMMUNITIES, REQUESTED THE COMMISSION FOR ASSISTANCE UNDER ARTICLE 24 OF THE STAFF REGULATIONS . HE NEVER RECEIVED A REPLY TO HIS REQUEST .
9 CONSIDERING THAT THE UNDERTAKING PROPOSED IN THE EXCHANGE INSTITUTE ' S CIRCULAR OF 1 JUNE 1982 WAS UNACCEPTABLE, THAT THE ALTERNATIVE PROCEDURE WAS STILL UNLAWFUL AND THAT THE COMMISSION HAD NOT RESPONDED SATISFACTORILY TO HIS REQUEST FOR ASSISTANCE, THE APPLICANT ALSO REFUSED TO SIGN THE UNDERTAKING AND ON 29 JULY 1982 LODGED A COMPLAINT UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS . HAVING RECEIVED NO REPLY TO THAT COMPLAINT EITHER, HE BROUGHT THE PRESENT ACTION .
10 BEFORE THE COURT THE APPLICANT ARGUED THAT THE MEASURES ADOPTED BY THE EXCHANGE INSTITUTE ON 21 DECEMBER 1981 AND 1 JUNE 1982 CONSTITUTED INFRINGEMENTS BY THE TWO MEMBER STATES CONCERNED OF ARTICLE 67 OF THE EEC TREATY AND OF THE DIRECTIVES ADOPTED FOR THE IMPLEMENTATION OF THAT ARTICLE . HE FURTHER ARGUED THAT THOSE MEASURES ADVERSELY AFFECTED THE FACILITIES ACCORDED TO OFFICIALS OF THE COMMUNITIES IN RESPECT OF CURRENCY OR EXCHANGE REGULATIONS UNDER ARTICLE 12 ( C ) OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COMMUNITIES . FINALLY, HE ARGUED THAT THE MEASURES WERE CONTRARY TO THE PRINCIPLES OF EQUALITY AND DISTRIBUTIVE JUSTICE .
11 HE CONTENDS THAT, CONFRONTED WITH THAT UNLAWFUL SITUATION ADVERSELY AFFECTING THE STATUS OF ITS OFFICIALS, THE COMMISSION DID NOT TAKE THE STEPS WHICH WERE NECESSARY . IT THUS FAILED TO FULFIL, ON THE ONE HAND, ITS DUTY TO ASSIST OFFICIALS AND CONSIDER THEIR WELFARE, LAID DOWN INTER ALIA IN ARTICLE 24 OF THE STAFF REGULATIONS, AND, ON THE OTHER HAND, ITS DUTIES AS ' ' GUARDIAN ' '
OF THE TREATY .
12 IN VIEW OF THOSE ARGUMENTS IT MUST BE POINTED OUT IN THE FIRST PLACE THAT IN AN ACTION BROUGHT BY AN OFFICIAL UNDER ARTICLE 179 OF THE EEC TREATY THE COURT CANNOT DETERMINE WHETHER OR NOT A MEMBER STATE HAS FAILED TO FULFIL ONE OF ITS OBLIGATIONS UNDER THE TREATY OR RULE WHETHER THE COMMISSION HAS PROPERLY DISCHARGED THE SUPERVISORY DUTIES INCUMBENT UPON IT UNDER INTER ALIA ARTICLE 155 OF THE EEC TREATY . IN THE PRESENT CASE THEREFORE, IT IS SOLELY A
QUESTION OF DECIDING WHETHER THE COMMISSION, AS THE APPOINTING AUTHORITY, HAS FAILED IN ITS DUTY TO PROVIDE ASSISTANCE TO AN OFFICIAL WHO IS ALLEGING THAT A MEMBER STATE INFRINGED THE RIGHTS CONFERRED ON HIM IN THE INTERESTS OF THE COMMUNITIES BY HIS STATUS AS AN OFFICIAL . IT IS ONLY IN VIEW OF THAT QUESTION THAT IT MAY POSSIBLY BE NECESSARY TO EXAMINE THE NATIONAL MEASURES FIRST .
13 THE SECOND POINT WHICH MUST BE MADE IS THAT, AFTER THE FIRST MEASURES WERE ADOPTED BY THE EXCHANGE INSTITUTE IN DECEMBER 1981, THE COMMISSION, TOGETHER WITH THE OTHER COMMUNITY INSTITUTIONS, IMMEDIATELY MADE REPRESENTATIONS TO THE EXCHANGE INSTITUTE IN ORDER TO HAVE THOSE MEASURES REPLACED BY OTHERS WHICH, WHILST PUTTING AN END TO THE IMPROPER USE OF SPECIAL CONVERTIBLE ACCOUNTS WHICH ENABLED OFFICIALS TO ENJOY AN UNJUSTIFIED ADVANTAGE BY CARRYING OUT ' ' ARBITRAGE ' '
TRANSACTIONS, WOULD STILL MAKE IT POSSIBLE FOR THEM TO BUY ON THE REGULATED MARKET ALL THE FOREIGN EXCHANGE NEEDED TO COVER THEIR EXPENDITURE OUTSIDE THE BELGO-LUXEMBOURG ECONOMIC UNION . IT WAS AS A RESULT OF THAT ACTION THAT THE EXCHANGE INSTITUTE, BY ITS CIRCULAR OF 1 JUNE 1982, INTRODUCED THE PRESENT SYSTEM WHICH ONCE AGAIN ENABLES OFFICIALS OF OTHER THAN BELGIAN OR LUXEMBOURG NATIONALITY TO HAVE ALL THEIR REMUNERATION AND ALLOWANCES PAID INTO A SPECIAL CONVERTIBLE ACCOUNT PROVIDED ONLY THAT THEY COMPLY WITH THE OBLIGATIONS SET OUT IN A SIGNED DECLARATION .
14 AS THE APPLICANT HIMSELF HAS ADMITTED IN THE COURSE OF THE PROCEEDINGS BEFORE THE COURT, THIS ACTION IN FACT RAISES ONLY ONE QUESTION, NAMELY WHETHER THE COMMISSION WAS UNDER A DUTY TO PURSUE ITS EFFORTS TO PERSUADE THE BELGIAN AND LUXEMBOURG AUTHORITIES TO WITHDRAW OR AMEND THE DECLARATION TO BE SIGNED BY OFFICIALS . IN ORDER TO ANSWER THAT QUESTION, IT IS SUFFICIENT TO EXAMINE THE APPLICANT ' S OBJECTIONS REGARDING THE TEXT OF THAT DECLARATION .
15 THOSE OBJECTIONS CONCERN THE OBLIGATION TO SELL TO AN APPROVED BANK AT THE RATE PREVAILING ON THE REGULATED MARKET ALL REMUNERATION PAID IN FOREIGN CURRENCY AND TO ABSTAIN NOT ONLY FROM ARBITRAGE TRANSACTIONS IN THE STRICT SENSE OF THE TERM BUT ALSO FROM OTHER CURRENCY TRANSACTIONS WITH THE AIM OF PROCURING FUNDS TO COVER CURRENT EXPENDITURE WITHIN THE TERRITORY OF THE BELGO-LUXEMBOURG ECONOMIC UNION . LASTLY, THE APPLICANT CONTENDS THAT, AS
A COMMUNITY OFFICIAL, HE CANNOT BE SUBJECT TO THE CONTROL OF THE EXCHANGE INSTITUTE .
16 AS REGARDS THE FIRST TWO OBLIGATIONS, IT SHOULD FIRST BE POINTED OUT THAT ARTICLE 63 OF THE STAFF REGULATIONS PROVIDES THAT AN OFFICIAL ' S REMUNERATION IS TO BE PAID IN THE CURRENCY OF THE COUNTRY IN WHICH HE PERFORMS HIS DUTIES, IN THE APPLICANT ' S CASE, THEREFORE, IN BELGIAN FRANCS . THE ONLY EXCEPTIONS TO THAT RULE ARE LAID DOWN IN ARTICLE 17 OF ANNEX VII TO THE STAFF REGULATIONS WHICH PROVIDES THAT AN OFFICIAL RECEIVING THE EXPATRIATION ALLOWANCE MAY TRANSFER PART OF HIS EMOLUMENTS THROUGH THE INSTITUTION WHICH HE SERVES EITHER IN THE CURRENCY OF THE MEMBER STATE OF WHICH HE IS A NATIONAL OR IN THE CURRENCY OF THE MEMBER STATE OF WHICH EITHER HIS OWN DOMICILE OR THE PLACE OF RESIDENCE OF A DEPENDENT RELATIVE IS LOCATED .
17 SECONDLY, THE COURT MUST TAKE FORMAL NOTICE OF THE STATEMENTS MADE DURING THE PROCEEDINGS BEFORE THE COURT BY THE BELGIAN GOVERNMENT, INTERVENING IN SUPPORT OF THE COMMISSION . IT IS CLEAR FROM THOSE STATEMENTS THAT THE OBLIGATION TO SELL FOREIGN CURRENCY TO AN APPROVED BANK DOES NOT APPLY AT ALL TO THE PART OF EMOLUMENTS TRANSFERRED THROUGH THE INSTITUTION PURSUANT TO THE AFOREMENTIONED ARTICLE 17 AND THAT THE RIGHT TO PURCHASE FOREIGN CURRENCY ON THE REGULATED MARKET EXTENDS TO ALL MEANS OF PAYMENT, NEEDED TO COVER AN OFFICIAL ' S EXPENDITURE OUTSIDE THE TERRITORY OF THE BELGO-LUXEMBOURG ECONOMIC UNION, INCLUDING GIFTS .
18 IT MUST THEREFORE BE HELD THAT, BY THE MEASURES ADOPTED ON 1 JUNE 1982, THE BELGIAN AND LUXEMBOURG MONETARY AUTHORITIES, ACTING IN ACCORDANCE WITH THE SPIRIT OF THE PROTOCOL ON PRIVILEGES AND IMMUNITIES, FULLY RESTORED THE POSSIBILITY FOR OFFICIALS OF OTHER THAN BELGIAN OR LUXEMBOURG NATIONALITY TO PURCHASE ON THE REGULATED MARKET ALL THE FOREIGN CURRENCY NEEDED TO COVER THEIR EXPENDITURE OUTSIDE THE TERRITORY OF THE BELGO-LUXEMBOURG ECONOMIC UNION, ON THE SOLE CONDITION THAT THEY ABSTAIN FROM ALL CURRENCY TRANSACTIONS DESIGNED TO INCREASE THE VALUE IN BELGIAN OR LUXEMBOURG FRANCS OF MEANS OF PAYMENT INTENDED TO COVER THEIR EXPENDITURE WITHIN THE TERRITORY OF THE BELGO-LUXEMBOURG ECONOMIC UNION AND THAT THEY BE SUBJECT TO THE CONTROL OF THE MONETARY AUTHORITIES IN THAT REGARD . IT IS BY NO MEANS POSSIBLE FOR THAT CONDITION TO AFFECT OFFICIALS IN SUCH A WAY THAT THE INTERESTS OF THE COMMUNITIES ARE HARMED .
19 IN THOSE CIRCUMSTANCES, IT CANNOT BE MAINTAINED THAT THE COMMISSION HAS FAILED IN ITS DUTY TO ASSIST ITS OFFICIALS BY NOT OBJECTING TO THE MEASURES ADOPTED BY THE EXCHANGE INSTITUTE ON 1 JUNE 1982 . THE APPLICATION MUST, THEREFORE, BE DISMISSED .
Decision on costs
COSTS
20 ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, COMMUNITY INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES . THE OFFICIALS LUIGI CASELLA, ENRICO OSIO, JAN ROBERT DE RIJK AND CORNELIA OUD, WHO INTERVENED IN SUPPORT OF THE APPLICANT, AND THE BELGIAN GOVERNMENT, WHICH INTERVENED IN SUPPORT OF THE COMMISSION, MUST BEAR THEIR OWN COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION ;
2.ORDERS THE PARTIES, INCLUDING THE INTERVENERS, TO BEAR THEIR OWN COSTS .