JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

30 September 1998

Case T-164/97

Silvio Busacca and Others

v

Court of Auditors of the European Communities

‛Officials — Termination of service as a result of the accession of new Member States — Act adversely affecting an official — Objection of illegality — Legality of Regulation (EC, Euratom, ECSC) No 2688/95 — Equal treatment — Infringement of essential procedural requirements — Prior consultation of the institutions and of the Staff Regulations Committee’

Full text in French II-1699

Application for:

annulment of the decisions of the Court of Auditors of 16 September 1996 rejecting the applicants' requests that their names be entered on the list of persons having manifested their interest in being the subject of a decision terminating their service as a result of the accession of Austria, Finland and Sweden.

Decision:

Annulment.

Abstract of the Judgment

On 7 July 1995 the Commission, having on 21 June 1995 obtained a favourable opinion from the Staff Regulations Committee in accordance with the second paragraph of Article 10 of the Staff Regulations of officials of the European Communities (‘the Staff Regulations’), presented a proposal for a Council Regulation (EC, Euratom, ECSC) introducing special measures to terminate the service of officials of the European Communities as a result of the accession of Austria, Finland and Sweden (COM (95) 327 final, OJ 1995 C 246, p. 23, hereinafter ‘the initial proposal’).

According to Article 1 thereof, the object of the initial proposal is to authorise the European Parliament, the Council, the Commission, the Court of Justice, the Court of Auditors and the Economic and Social Committee, in the interests of the service and in order to take account of requirements resulting from the accession of Austria, Finland and Sweden to the European Communities, to adopt, until 30 June 2000, measures terminating the service of officials who have reached the age of 55, with the exception of those in grades A 1 and A 2.

According to Article 3 of the initial proposal, the officials to whom those termination of service measures apply are to be selected by the institution concerned on the basis of the interests of the service in connection with enlargement, after the staff have been given the opportunity to express their interest and after the Joint Committee has been consulted. It is required to take into consideration the age, ability, efficiency, conduct in the service, family situation and seniority of the officials concerned, whose length of service must be a minimum of 10 years. Under no circumstances may termination of service take place without the consent of the person concerned.

According to Article 4 of the initial proposal, an official whose service is terminated is to be entitled to a monthly allowance equal to 70% of the basic salary referable to his grade and step at the time of his departure from the service. Entitlement to the allowance is to cease not later than the last day of the month in which the former official attains the age of 65 and in any event as soon as the person concerned, before reaching that age, is eligible for the maximum retirement pension. At that point the former official is automatically to receive a retirement pension.

The initial proposal provides that the defendant is to be authorised to decide to terminate the service of 12 officials.

The initial proposal was submitted to the institutions concerned for their opinion, in accordance with Article 24 of the Treaty establishing a Single Council and a Single Commission of the European Communities (‘the Merger Treaty’).

The Parliament, the Court of Justice and the Court of Auditors issued favourable opinions on 25 September, 12 October and 26 October 1995 respectively.

During the course of the legislative procedure, the Commission indicated its willingness, with a view to facilitating the decision-making process within the Council, to split the initial proposal and to agree to priority treatment being given by the Council to measures for termination of service in respect of the Parliament alone (Council document No 11098/95 of 31 October 1995, reproduced in Annex 5(c) to the application).

On 17 November 1995 the Council consequently adopted Regulation (EC, Euratom, ECSC) No 2688/95 introducing special measures to terminate the service of officials of the European Communities as a result of the accession of Austria, Finland and Sweden (OJ 1995 L 280, p. 1), authorising the Parliament alone to proceed to terminate the service of certain of its officials.

The applicants are officials of the Court of Auditors.

Between 22 August and 2 September 1996 they submitted separate requests under Article 90(1) of the Staff Regulations, using standard-form wording in the following terms:

‘I would inform you that, having reached the age of 55 before 30 June 1996 and completed at least ten years of service, I hereby manifest my interest in the adoption of a decision terminating my service as a result of the accession of Austria, Finland and Sweden, as provided for by the Commission proposal published in OJ C 246 of 22 September 1995, p. 23, which has already been implemented by Regulation No 2688/95 in respect of part of the complement of officials of the European Communities.

Consequently, I should be grateful if you would enter my name on the list of persons who have manifested such an interest and from amongst whom the appointing authority is to make its selection in respect of the period from 1 July 1995 to 30 June 1996.’

The Secretary-General of the defendant, in his capacity as appointing authority, sent to each applicant on 16 September 1996 a standard-form reply in the following terms:

‘I acknowledge receipt of your abovementioned request, which has had my full attention.

However, I regret that I am unable to react favourably to it.

Under Regulation No 2688/95, the measures for termination of service as a result of the accession of Austria, Finland and Sweden are applicable only to officials of the European Parliament. Since officials of the Court of Auditors cannot be eligible under that regulation for those measures, there is no legal basis on which your request can be taken into consideration. ’

Between 21 October and 13 December 1996 the applicants lodged separate standard-form complaints against those decisions pursuant to Article 90(2) of the Staff Regulations. They complained that the refusal of their requests by the appointing authority was based on the fact that the personal scope of Regulation No 2688/95 was limited to officials of the Parliament. Those complaints were rejected on 28 February 1997 by standard-form decisions of the Secretary-General of the defendant, in which the applicants were informed that their complaints were either inadmissible or unfounded.

Admissibility

A decision of the appointing authority rejecting a request for entry on the list of officials interested in having their service terminated, on the ground that Regulation No 2688/95 introducing special measures to terminate the service of officials of the European Communities as a result of the accession of new Member States is not applicable in the institution concerned, directly and immediately affects the legal situation of the officials concerned and consequently prejudices them, inasmuch as they can no longer claim the benefit of the measures in question, whether by participating in another procedure or by any other means, and inasmuch as the institution concerned has not taken any final decision subsequent to the decision rejecting those requests which those officials can challenge (paragraph 36).

See: 204/85 Streghili v Court of Auditors [1987] ECR 389, para. 6; T-82/89 Marcato v Commission [1990] ECR II-735, paras 49 and 52; T-157/96 Affettato v Commission [1998] ECRSC II-97, para. 21

Furthermore, although entry on the list in question constitutes merely a preparatory act which does not mean that the measures requested will definitely be granted, a refusal on the aforementioned ground to take into consideration a manifestation by an official of interest in having his or her service terminated clearly and definitively operates, in the absence of adoption by the Council of the Commission's proposal for a similar regulation applicable to the official in question, to deprive that official of the benefit of that measure, and therefore adversely affects him or her (paragraph 37).

It follows that the action is admissible (paragraph 39).

Substance

Breach of the principle of non-discrimination

The general principle of equal treatment requires that comparable situations should not be treated differently unless such differentiation is objectively justified. In a matter involving the exercise of discretion, that principle is disregarded where the institution makes a differentiation which is arbitrary or manifestly inappropriate in relation to the objective pursued (paragraph 49).

See: 147779 Hochstrass v Court of Justice [1980] ECR 3005, para. 7; T-109/92 Lacruz Bassols v Court of Justice [1994] ECRSC II-105, para. 87; T-142/95 Delvaitx v Commission [1997] ECRSC II-1247, para. 95

By restricting the scope of Regulation No 2688/95 to the Parliament alone, despite the fact that other institutions have indicated their intention, like the institution to which that regulation applies, to adopt measures for the termination of service of officials and have undergone a comparable change in their complement of staff, the Council has differentiated between the situations of those institutions in a manner which is arbitrary or, at the very least, manifestly inappropriate (paragraphs 58 and 59).

The plea alleging breach of the principle of nondiscrimination is consequently well founded (paragraph 61).

Infringement of essential procedural requirements

It is necessary, first of all, to examine the merits of the argument that (1) the Parliament and (2) the Staff Regulations Committee should have been consulted a second time (paragraph 79).

In the first place, the second subparagraph of Article 24(1) of the Merger Treaty provides that amendments of the Staff Regulations are to be adopted ‘on a proposal from the Commission and after consulting the other institutions concerned’ (paragraph 80).

Consultation of the Parliament under Article 24 of the Merger Treaty, which enables it, in particular, to participate effectively in the Community's legislative process, is an essential feature of the institutional balance which the Treaties seek to achieve. Regular consultation with the Parliament pursuant to that provision therefore constitutes an essential procedural requirement noncompliance with which renders the act in question void (paragraph 81).

See: 817/79 Buyl and Others v Commission [1982] ECR245, para. 16; 828/79 Adam v Commission [1982] ECR 269, para. 17; 1253/79 Battaglia v Commission [1982] ECR 297, para. 17

The Parliament must be consulted again whenever the text finally adopted, taken as a whole, differs in essence from the text on which the Parliament has already been consulted, except in cases in which the amendments substantially correspond to the wishes of the Parliament itself. The amendment of a proposal does not concern the essence of the text, taken as a whole, if, first, it forms part of the objective pursued by the text in question and, second, it does not affect the fundamental scheme of that text (paragraphs 82 and 84).

See: C-408/95 Eurotunnel and Others v SeaFrance [1997] ECR I-6315, para. 46; C-280/93 Germany v Council [1994] ECR I-4973, paras 40 and 41

The amendment made to the initial proposal goes to its essence. Furthermore, it does not correspond to the wish expressed by the Parliament. That institution had approved the initial proposal in its opinion. Its wish was therefore that all the institutions should be able to have recourse to measures to terminate the service of their officials. Moreover, it expressly asked to be reconsulted in the event of any substantial amendment. The defendant's objection that the amendment corresponded to the wish expressed by the Parliament is therefore unfounded (paragraphs 87 to 89).

It follows that the Parliament should have been consulted again before the Council adopted the amended version of the initial proposal (paragraph 90).

Second, it must be observed that the second sentence of the second paragraph of Article 10 of the Staff Regulations requires the Staff Regulations Committee to be consulted by the Commission on any proposal for revision of the Staff Regulations (paragraph 91).

That provision imposes on the Commission a consultation obligation which extends not only to formal proposals but also to the introduction by it of substantial amendments to proposals which have already been considered, unless, in the latter case, the amendments correspond, in essence, to those proposed by the Staff Regulations Committee (paragraph 92).

First, that way of proceeding is justified by the wide scope which the provision in question attaches to the obligation laid down by it and, second, that interpretation is dictated by the role assumed by the Staff Regulations Committee, which, as a joint body composed both of representatives of the administrative authorities and of democratically elected representatives of the staff of all the institutions, is called upon to take into consideration and express the interests of the Community civil service as a whole (paragraphs 93 to 95).

An adequate legal basis for such reconsultation is to be found in Article 10 of the Staff Regulations, which is not contradicted by Article 24 of the Merger Treaty (paragraph 96).

In the present case, the Staff Regulations Committee issued an opinion in favour of the initial proposal on 21 June 1995. However, the amendment made to the initial proposal by the Commission in the course of the legislative procedure was substantial. Moreover, it did not correspond to any amendment proposed by the Staff Regulations Committee. It follows, applying the above principles, that the Staff Regulations Committee should have been consulted again on the amendment of the initial proposal (paragraphs 99 and 100).

The plea alleging infringement of essential procedural requirements is therefore well founded as regards consultation of the Parliament and of the Staff Regulations Committee (paragraph 101).

The contested decisions must therefore be annulled, without there being any need to examine the other complaints alleging failure to consult the Court of Auditors and the Court of Justice, infringement of Article 189a of the Treaty and failure to provide a statement of reasons, or any of the other pleas advanced in support of the objection of illegality, or the request for production of documents made pursuant to Article 64(2)(c) and (d) of the Rules of Procedure of the Court of First Instance (paragraph 102).

Operative part:

The decisions of the Court of Auditors of 16 September 1996 addressed to Silvio Busacca, Carlo Degli Abbati, Pamela Rattigan, Gisela Tremont and Cécile Vandam, rejecting their requests that their names be entered on the list of persons having manifested their interest in being the subject of a decision terminating their service, as provided for by Council Regulation (EC, Euratom, ECSC) No 2688/95 of 17 November 1995 introducing special measures to terminate the service of officials of the European Communities as a result of the accession of Austria, Finland and Sweden, are annulled.