JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

5 December 2012

Case F‑110/11

Giorgio Lebedef and Others

v

European Commission

(Civil service — Officials — Remuneration — Article 64 of the Staff Regulations — First subparagraph of Article 3(5) of Annex XI to the Staff Regulations — Weighting — Act adversely affecting an official — Equal treatment)

Application: Action brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby Mr Lebedef, Mr Jones, Mr Gonzales Gonzales and Ms Lebedef-Caponi seek annulment of their payslips for December 2010 and subsequent months.

Held: The action is dismissed. The applicants are to bear their own costs and are ordered to pay the costs incurred by the Commission. The Council, intervener, is to bear its own costs.

Summary

1. Actions brought by officials — Request under Article 90(1) of the Staff Regulations — Meaning — Request for establishment of a specific weighting for Luxembourg — Not included

(Staff Regulations, Art. 90 (1); Annex XI, first subpara. of Article 3(5))

2. Actions brought by officials — Pleas in law — Plea alleging maintenance in force by the legislature of an act that is no longer justified — Admissibility

(Council Regulation No 1239/2010; Staff Regulations, Annex XI, first subpara. of Art. 3(5))

3. Officials — Remuneration — Weightings — Fixing — Powers of the Council — Discretion — Limits — Respect for the principle of equal treatment — Judicial review — Limits

(Staff Regulations, Arts 64 and 65)

4. Officials — Remuneration — Weightings — Absence of weighting for Belgium and Luxembourg — Breach of the principle of equal treatment — Burden of proof — Scope

(Staff Regulations, Annex XI, first and second subparas of Art.3(5))

5. Officials — Staff Regulations — Hierarchy between the rules of the Staff Regulations and the Annexes thereto — None — Hierarchy between the rules of the Staff Regulations — Scope

(Staff Regulations)

1. An official of the Commission is not entitled to lodge with the appointing authority a request under Article 90(1) of the Staff Regulations with the intention, in particular, that the appointing authority should undertake a study of a possible distortion between purchasing power in Brussels and that in Luxembourg, or indeed issue a proposal for the adoption of a weighting for Luxembourg. Article 90(1) of the Staff Regulations allows an official only to request the administration, acting in its capacity as appointing authority, to adopt a decision relating to him. In that regard, while it is true that the Commission has an initiative in those matters, it does so only as an institution participating in the legislative procedure within the European Union and not in its capacity as employer.

Furthermore, the possibility that a payslip reveals that the institution has not undertaken a study or made a proposal fixing a weighting for Luxembourg could not in any event be envisaged in the case of an official posted to Luxembourg but employed by an institution other than the Commission. It would be contrary to the principle of equal treatment if officials to whom the same weighting is applied on the ground that they are employed in the same place could have or not have a right to bring an action depending on whether their employer does or does not participate in the procedure for the adoption of the rules of the Staff Regulations.

(see paras 28-30)

See:

30 September 2010, F‑29/09 Lebedef and Jones v Commission, para. 40

2. Every legislative authority is required, first, to ascertain, if not on an ongoing basis then at least periodically, that the rules which it has laid down still meet the requirements for which they were conceived and, second, to amend or even repeal the rules which have lost all justification and are no longer appropriate in the new context in which they must produce their effects. Such verification must be undertaken, in particular, when the weightings are updated.

Accordingly, an official is entitled to raise a plea of illegality against the first subparagraph of Article 3(5) of Annex XI to the Staff Regulations, which provides that no correction coefficient is to be applicable in Belgium and Luxembourg, by maintaining that, in the light of the change in economic circumstances since its adoption in 2004, the legislature ought to have reconsidered or repealed that provision before adopting Regulation No 1239/2010 adjusting with effect from 1 July 2010 the remuneration and pensions of officials and other servants of the European Union and the correction coefficients applied thereto, rather than automatically continuing the application of that provision when adopting that regulation.

(see paras 39-41)

See:

17 July 1997, C‑248/95 and C‑249/95 SAM Schiffahrt and Stapf, para. 38; 22 October 2002, C‑241/01 National Farmers’ Union, para. 51

3. The purpose of the weightings affecting officials’ remuneration provided for in Articles 64 and 65 of the Staff Regulations is to ensure that equivalent purchasing power is maintained for all officials, whatever their place of employment, in accordance with the principle of equal treatment. It is for the Council, in accordance with Article 65(2) of the Staff Regulations, where it finds that there is a substantial variation in the cost of living, to draw the inferences by adapting the weightings. As regards a substantial variation in the cost of living established between a place of employment other than the capital of the Member State concerned and the capital, the Council has no discretion as to the need to introduce a specific weighting for a place of employment. The principle of equal treatment, which aims to ensure the establishment of those weightings, is also binding on the legislature.

In that regard, it follows from Article 65(2) of the Staff Regulations that only a substantial change in the cost of living in Luxembourg, by comparison with Brussels, could justify the adoption of adaptation measures in order to ensure the equivalence of purchasing power between officials employed in Luxembourg and their colleagues working in Brussels. The principle of equal treatment cannot require perfect identity of officials’ purchasing power, whatever their place of employment, but substantial correspondence of the cost of living between the places of employment concerned. In view of the complexity of the matter, the legislature has in that regard a wide discretion and intervention by the Courts of the European Union must be limited to examining whether the institutions remained within reasonable limits by reference to the considerations which prompted their action and did not use their powers in a manifestly incorrect manner.

(see paras 55-56, 60)

See:

23 January 1992, C‑301/90 Commission v Council, para. 25

7 December 1995, T‑544/93 and T‑566/93 Abello and Others v Commission, para. 76

Lebedef and Jones v Commission, paras 62 and 67

4. In an action brought by officials employed in Luxembourg alleging that they suffer discriminatory treatment owing to the absence of a specific weighting for that Member State, under the first subparagraph of Article 3(5) of Annex XI to the Staff Regulations, those officials cannot be required to demonstrate before the Courts of the European Union, to the requisite legal standard, the existence of an appreciable and sustainable increase in the cost of living in Luxembourg, by comparison with Brussels, capable of establishing the existence of unequal treatment of officials, depending on their place of employment. They are in a particularly difficult position as regards the establishment of proof, owing to the technical difficulties associated with the collection and preparation of sufficiently reliable statistics.

All that they are required to do in that regard is to produce a body of sufficiently significant indicia disclosing a possible difference in purchasing power of such a kind as to place the burden of proof on the defendant institution and, where appropriate, to warrant administrative investigations being undertaken by Eurostat.

(see paras 57, 59)

See:

Lebedef and Jones v Commission, paras 64 and 66

5. While there is, strictly speaking, no formal hierarchy between the fundamental rules of the Staff Regulations and the Annexes thereto, as both categories of rules were adopted by the Council, there may, depending on the case, be a substantive hierarchy between them, so that the annexes must be interpreted by reference to the basic rules and the system of the European Union Civil Service, as laid down in the Staff Regulations properly so-called.

(see para. 69)

See:

Lebedef and Jones v Commission, para. 83