JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

27 October 1994

Case T-64/92

Bernard Chavane de Dalmassy and Others

v

Commission of the European Communities

‛Officials and members of the temporary staff — Pay slip — Act adversely affecting an official — Weighting — Change of State capital — Objection of illegality’

Full text in French II-723

Application for:

annulment of the applicants' pay slips for January 1992.

Decision:

Annulment.

Abstract of the Judgment

The Commission submitted a draft regulation to the Council of 4 September 1991, proposing that, with effect from 1 October 1990, a weighting for Germany be adopted with reference to die cost of living in Berlin, which had become the new capital of that country in October 1990, and that specific weightings be fixed for Bonn and Karlsruhe.

By Regulation No 3834/91 of 19 December 1991, the Council adjusted the remuneration and pensions of officials and the weightings to be applied thereto with effect from 1 July 1991. Article 6(2) of that regulation fixed a provisional weighting for Germany of 95.1, by reference to the cost of living in the former capital, Bonn, and a provisional specific weighting for Berlin of 107.5.

In January 1992 the applicants, who were employed in Karlsruhe, received a supplementary pay slip for December 1991, which settled arrears of remuneration for the period between July and December 1991, and a pay slip for January 1992. Both pay slips applied a weighting of 95.1.

The applicants applied for the annulment of the pay slips for January 1992 in so far as they applied a weighting for Germany fixed by Regulation No 3834/91, the legal basis for the slips in question, calculated by reference to the cost of living in Bonn and not Berlin, in breach of the principle that the weighting for each Member State should be fixed by reference to the cost of living in the capital.

Admissibility

A pay slip may constitute an act adversely affecting an official within the meaning of Article 90(2) of the Staff Regulations and be the subject of a complaint and ultimately an action. Only a measure which definitively states the will of a Community institution may constitute an act adversely affecting an official (paragraphs 20 and 22).

See: 262/80 Andersen v Parliament [1984] ECR 195, para. 4; 264/83 Délhez v Commission [1985] ECR 2179, para. 20; C-313/90 CIRFS v Commission [1993] ECR I-1125, para. 27; T-17/90, T-28/91 and T-17/92 Cámara Alloisio v Commission [1993] ECR II-841, para. 39

Although Regulation No 3834/91, on which the January pay slips were based, fixed the weighting for Germany only provisionally, the Commission is unable to reverse its decision to apply that weighting to the applicants' remuneration for January 1992 unless and until the Council retrospectively amends the regulation. In those circumstances, contrary to what the Commission maintains, that decision constitutes a definitive act against which an action may be brought (paragraph 23).

The Court rejects the Commission's second plea of inadmissibility to the effect that, because the contested pay slips related to January 1992, they were confirmatory of the supplementary pay slips for December 1991. Although, in principle, the Community judicature has held an action against a purely confirmatory measure to be inadmissible, an action against a confirmatory decision is inadmissible only if the confirmed decision has become final in relation to the person concerned for lack of any challenge by legal action within the prescribed time-limits. Otherwise, that person is entitled to contest either the confirmed decision or the confirmatory decision or both (paragraph 25).

See: 166/86 and 220/86 Irish Cement v Commission [1988] ECR 6473, para. 16; 193/87 and 194/87 Maurissenv Court ofAuditors [1989] ECR 1045, para. 26; T-4/90 Lestellev Commission [1990] ECR II-689, paras 24 to 27

The Commission cannot claim that the January 1992 pay slips are confirmatory, given that the settlement of arrears, which was the occasion on which the Commission applied the contested weighting for the first time, took place on 30 December 1991, a date prior to the entry into force of Regulation No 3834/91 on 1 January 1992 (paragraph 26).

In any event, the period for bringing an action challenging the supplementary pay slips for December 1991 had not yet expired when the applicants brought their action challenging the January 1992 pay slips only (paragraph 27).

Substance

The alleged infringement of Article 63 et seq. of the Staff Regulations

The objection of illegality, as raised by the applicants against Regulation No 3834/91, is a remedy provided for by Article 184 of the EC Treaty and reflects the general principle that any party has the right in the context of legal proceedings to challenge the validity of a legislative measure in order to obtain the annulment of a decision addressed to that party which has that measure as its legal basis (paragraph 41).

See: Andersen v Parliament, cited above, para. 6; 87/77, 130/77, 22/83, 9/84 and 10/84 Salerno v Commission and Council [1985] ECR 2523, para. 36; T-6/92 and T-52/92 Reinan v Commission [1993] ECR II-1047, para. 56

The Court rejects the Commission's argument that Regulation No 3834/91 fixed the weighting for Germany on a provisional basis only, since Article 184 of the Treaty, the purpose of which is to protect parties against the application of unlawful provisions, makes no distinction between measures enacting provisional rules and those enacting definitive ones (paragraph 43).

See: Salerno v Commission and Council, cited above, para. 36

The Court also rejects the Commission's argument that the objection of illegality is inadmissible because the provisions in Regulation No 3834/91 on the calculation of the weighting for Germany were confirmatory of those in Regulation No 3736/90 of 19 December 1990, which also fixed the weighting by reference to the cost of living in Bonn, after the designation of Berlin as the capital, without any objection of illegality being raised against it. In the Court's opinion, the principle of the inadmissibility of an action against a confirmatory measure, the purpose of which is to prevent the restarting of prescribed periods for the bringing of actions, should not be applied to an objection which, under Article 184 of the Treaty, may be raised notwithstanding the expiry of such periods (paragraphs 44 and 45).

Under the principle of the hierarchy of legal rules, Regulation No 3834/91 may not depart from the principles in Articles 63 to 65a of the Staff Regulations and in Annex XI thereto, on which it is expressly based. Unlike Regulation No 3830/91 of 19 December 1991, which, being a measure amending the detailed rules for adjusting remuneration, was adopted after consulting the European Parliament and the Court of Justice pursuant to Article 24(1) of the Merger Treaty and the Staff Regulations Committee pursuant to Article 10 of the Staff Regulations, Regulation No 3834/91, being a regulation implementing the Staff Regulations, was not the subject of such consultation (paragraphs 51 and 52).

The fixing by Regulation No 3834/91 of a provisional weighting for Germany calculated on the basis of the cost of living in Bonn and of a provisional weighting for Berlin, the new capital, is an unlawful departure from the principle, stated by the Council in Annex XI to the Staff Regulations and confirmed by the Court of Justice, that the weighting for each Member State should be fixed by reference to the cost of living in its capital. Whilst the lack of certain statistics may justify the fixing of a provisional weighting, the Court considers that, since the Council had enough information to fix a provisional weighting for the new capital, Berlin, it was not entitled to fix a provisional weighting based on the cost of living in another city (paragraphs 54 and 56).

The Court therefore annuls the contested pay slips in so far as they applied a weighting for Germany fixed by Article 6(2) of Regulation No 3834/91 in breach of the relevant provisions of the Staff Regulations (paragraph 57).

Operative part:

The applicants' pay slips for January 1992 are annulled in so far as they apply a weighting calculated by reference to the cost of living in Bonn.