Opinion of Mr Advocate General Mischo delivered on 12 October 1989. - Silverio Acerbis and others v Commission of the European Communities. - Officials - Adjustment of weighting. - Case C-320/81.



European Court reports 1990 Page I-00563



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . By an application lodged on 24 December 1981, Mr S . Acerbis and 485 officials of the Commission, all employed at the Joint Research Centre at Ispra ( Varese, Italy ), contested their salary statements for February and March 1981 which contained the calculation by the Commission of arrears of salary, with effect from 1 July 1980, pursuant to Council Regulation ( Euratom, ECSC, EEC ) No 397/81 of 10 February 1981 fixing, with effect from 1 July 1980, the tables of salaries and other components of remuneration ( Official Journal 1981, L 46, p . 1 ).

2 . The applicants claimed primarily that those calculations should be annulled and put forward four submissions in support of their claims : infringement of Article 64 and Article 65(2 ) of the Staff Regulations, infringement of the principle of non-discrimination and breach of the principle of the "protection of legitimate expectations ".

3 . Article 64 provides that the remuneration of officials "shall ... be weighted at a rate above, below or equal to 100%, depending on living conditions in the various places of employment ". That provision is said to have been infringed because a single weighting was fixed for the whole of Italy on the basis of the prices prevailing in Rome, which are significantly lower than those prevailing at Ispra . Thus the Council is alleged not to have carried out the adjustment of the applicants' remuneration according to "living conditions in the various places of employment ".

4 . With regard to infringement of Article 65(2 ) of the Staff Regulations, that provision is as follows :

"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 ".

The infringement of that provision is said to ensue from the fact that the contested measures were not only insufficient, but also introduced too late .

5 . The applicants consider that the principle of non-discrimination has been infringed because they were placed in a worse position than their colleagues employed in places that had been taken into account when the weighting was calculated .

6 . Finally, the applicants' last submission is that "despite the assurances officially given to the staff" the adjustment of the weighting at issue was not based on the statistical investigation of prices carried out in October 1980 by the Statistical Office of the Communities .

7 . As a consequence of the many judgments delivered by the Court on this subject, the subject-matter of the action has been considerably reduced .

8 . In Case 59/81 ( 1 ) the Court found that the adjustment was insufficient and had been made too late, and it annulled Council Regulation ( Euratom, ECSC, EEC ) No 187/81 and certain provisions of Regulation No 397/81 on which the salary slips challenged in these proceedings were based .

9 . In its interim judgment of 15 December 1982 in Case 158/78 Roumengous Carpentier (( 1982 )) ECR 4379, the Court also decided that Council Regulation ( Euratom, ECSC, EEC ) No 3087/78 of 21 December 1978 adjusting the weighting applicable to the remuneration of officials and other servants of the Communities employed in Italy ( Official Journal 1978, L 369, p . 10 ), in which the same method of calculation was used as in the abovementioned Regulations Nos 187/81 and 397/81 and, as in the latter regulations, a single weighting was fixed for the whole of Italy, was contrary to Articles 64 and 65 of the Staff Regulations, principally because it did not provide for a separate weighting for Varese .

10 . It is therefore common ground between the parties that the applicants' complaints concerning a separate weighting for Ispra and the fact that the adjustment was insufficient and made too late are now devoid of purpose .

11 . It is clear from the applicants' observations concerning the judicial and legislative developments in this matter that the scope of the action is now reduced to two claims .

12 . First, the applicants ask the Court to hold that the adjustment of the weighting should be based on the result of the investigations carried out by the Statistical Office of the Communities, and specifically that, with effect from 1 January 1981, the weightings appearing in the regulation ought to have taken into account the five-yearly investigation carried out in October 1980 .

13 . In its judgment of 28 June 1988 in Case 7/87 Commission v Council (( 1988 )) ECR 3401, the Court annulled Regulation ( EEC, Euratom, ECSC ) No 3619/86 of 26 November 1986 correcting the weightings applicable in Denmark, Germany, Greece, France, Ireland, Italy, the Netherlands and the United Kingdom of the remuneration and pensions of officials and other servants of the European Communities ( Official Journal, L 336, p . 1 ).

14 . The Council acted on that judgment in its Regulation ( ECSC, EEC, Euratom ) No 3294/88 of 24 October 1988 correcting the weightings applicable in Denmark, Germany, Greece, France, Ireland, Italy, the Netherlands and the United Kingdom of the remuneration and pensions of officials and other servants of the European Communities ( Official Journal 1988, L 293, p . 1 ). Article 1 of that regulation introduces a weighting specifically applicable to Varese with effect from 1 January 1981, and the preamble refers expressly to the need to give effect to the findings of the verification carried out by the Statistical Office of the Communities "in 1980 and 1985 ".

15 . Clearly that claim has now also become devoid of purpose . The applicants' representative acknowledged that to be the case at the hearing .

16 . The applicants' second claim for the payment of default and compensatory interest calls for the following comments .

17 . By its final judgment of 15 January 1985 in Case 158/79 Roumengous Carpentier v Commission (( 1985 )) ECR 39, and other judgments of the same date, the Court awarded default interest at the rate of 6% per annum on the amount of arrears of salary due from the date of the applicants' complaint but rejected as out of time the claim for compensatory interest .

18 . In compliance with those judgments, by a decision of 31 July 1985, the Commission paid default interest to all officials employed at Ispra, thus including the applicants in this case . The latter acknowledged at the hearing that their claim was henceforward limited to the payment of compensatory interest, the awarding of which would act as a counterbalance to the loss they suffered as a result of falling exchange rates . In that regard, I would make the following remarks .

19 . The claim concerning the payment of default as well as compensatory interest is in any case out of time because it was first submitted only in the reply . It is thus inadmissible pursuant to Article 19 of the Statute of the Court of Justice and Article 38 of the Rules of Procedure, which preclude the addition of fresh claims during the procedure . Moreover, since they did not object in good time to the decision of the Commission of 31 July 1985 to pay default interest alone, the applicants cannot be allowed to rely on their 1981 application for the purpose of obtaining now amounts which they did not obtain then .

20 . With regard to costs, the Commission acknowledges that the present action arose as a result of a regulation that was repealed following a judgment by the Court; it considers, however, that the applicants' conduct in continuing to pursue this action, despite everything, warrants an order that the parties bear their own costs . I share that point of view because, as the 272 applicants who formally withdrew well understood, it was clear that the action was no longer justified, especially after the order of 10 June 1987 in Case 321/81 declaring that application to have become devoid of purpose; in that case other officials at the Ispra centre were contesting the same salary statements as the applicants on the basis of essentially the same provisions of the Staff Regulations, and its similarity with the present case was emphasized by the applicants themselves in their observations lodged at the Court on 2 December 1985 . There was even less justification for continuing the action after the Council adopted Regulation No 3294/88, cited above .

21 . I therefore propose that the Court hold that the application for the annulment of the applicants' salary statements for February and March 1981 which contained the calculation of arrears of salary pursuant to Council Regulation No 397/81 has become devoid of purpose and that the Court order the parties to pay their own costs .

(*) Original language : French .

( 1 ) Judgment of 6 October 1982 in Case 59/81 Commission v Council (( 1982 )) ECR 3329 .