Opinion of Mr Advocate General Mischo delivered on 26 September 1989. - Leslie Brown v Court of Justice of the European Communities. - Public service - Refusal to grant a differential allowance. - Case 125/87.



European Court reports 1989 Page 03489



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . Although the Court has already had to deal with this case when considering the objection of inadmissibility raised by the defendant which gave rise to an interlocutory judgment on 8 March 1988, I shall take the liberty of briefly outlining the key facts and dates which must be taken into account when ruling on the substance of the application .

2 . 1 . Mr Brown, who had previously been classified in Grade C 2, Step 5, was appointed to Grade B 5, Step 4, with effect from 1 August 1981 . In accordance with Article 45(2 ) of the Staff Regulations, Mr Brown' s appointment to the higher category was made on the basis of a competition ( an internal competition based on qualifications and tests ). In order to make up the difference between the remunerations for his old and new classifications respectively, Mr Brown was granted a differential allowance described as a "degressive" allowance because, in accordance with the system applied at that time, it was gradually absorbed as the remuneration corresponding to his new classification increased .

3 . 2 . On 29 January 1985 the Court, in paragraph 23 of its judgment in Case 273/83 Michel v Commission (( 1985 )) ECR 347, declared :

"the relevant provisions of the Staff Regulations must be interpreted as meaning that the classification in step of an official moving from one category to another must be based on the principles laid down in Article 46 and not on those laid down in the second paragraph of Article 32 ".

4 . 3 . On 10 April 1986 the President of the Court, acting in his capacity as appointing authority, adopted a general decision concerning "transfer from one category to a higher category on the basis of a competition" ( see the title of the communication informing the staff of the decision ). Part A of that decision embodies the conclusions concerning classification in step which the Court had drawn, in its judgment in Michel, from the application of Article 46 of the Staff Regulations . It does, however, first specify that :

"the classification in grade of an official transferred to a higher category following a competition will continue to be fixed normally at the basic grade for the post for which he was recruited ".

Part B of the decision introduced, with effect from 1 March 1986, a new system of differential allowances, described as a "progressive" system because it was henceforth to be calculated with regard to the "notional career" which the official would have had if he had remained in his former category . On the basis of that decision, which also applied - but not retroactively - to all those who had been appointed to a higher category before 1 March 1986, Mr Brown, who had been promoted to Grade B 4, Step 2, on 1 January 1986, then received an allowance equal to the difference between the remuneration corresponding to that classification and that corresponding to Grade C 2, Step 7, which he would have occupied from 1 August 1984 to 1 August 1986 had he remained in Category C .

5 . 4 . In its interlocutory judgment of 8 March 1988, the Court held that the application which Mr Brown had made in the mean time was inadmissible

"in so far as (( it )) seeks the grant of a differential allowance calculated according to the criteria laid down in that general decision with effect from the date of the applicant' s appointment" to Grade B 5, Step 4 ( paragraph 14 of the judgment ).

However, it ruled that the application was admissible in so far as it concerned

"the claim relating to the granting with effect from 1 February 1985 of a differential allowance calculated in accordance with the general decision of the President of the Court of Justice of 10 April 1986" ( paragraph 1 of the operative part ).

6 . Despite those very clear provisions of the interlocutory judgment of 8 March 1988, the applicant claims in the reply, lodged after that judgment was delivered, that the Court should declare not only that the new system of differential allowances should have been applied in his case as from 1 February 1985, but also that

"he is entitled to the differential allowance intended to make up the difference between his salary in his former Grade C 2, Step 5, and the salary in Grade B 4, Step 2, with effect from 1 February 1985 ".

7 . The defendant sees that claim as an indirect attempt to reintroduce into the proceedings that part of the application which the Court had declared inadmissible in its judgment of 8 March 1988, since it still challenges Mr Brown' s classification in Grade B 5, Step 4, as decided when he was transferred to Category B in 1981 . At the hearing the applicant did, in fact, specify that his application was directed not only against Part B of the contested general decision, but also against Part A, concerning classification in grade and step, to the non-retroactivity of which he also objected . Apart from the fact that the application of the provisions of that part of the decision to his case at the time of his appointment to Category B or as from 1 February 1985 would not have been of any benefit to him since he was classified at the highest step in the basic grade of his new category, that head of claim is clearly inadmissible either because it amounts to calling into question, after the expiry of the period for bringing an action, his classification on being transferred to Category B, or because it constitutes a new claim not stated in the application - or, indeed, in the reply .

8 . Moreover, in so far as his application is to be interpreted as seeking not a review of his classification but the granting of an allowance to ensure that he received remuneration equivalent to that for Grade B 4, Step 2, despite the fact that he was classified in Grade B 5, Step 4, it cannot be considered - particularly in view of the reference to the date of 1 February 1985, when he was still classified in Grade B 5, Step 4, and not Grade B 4, Step 2 - to be directed in reality at any aim other than that of obtaining, in addition to the "progressive" differential allowance instituted by the general decision of 10 April 1986, an allowance to make up for the difference between the remuneration for his actual grade and step - Grade B 5, Step 4 - and that pertaining for the grade and step established on the basis of a hypothetical classification in Grade B 4, Step 2 . In March 1986, when the general decision in question took effect, the applicant received, pursuant to that decision, an allowance to make up for the difference between his actual grade and Grade C 2, Step 7, which he would have occupied had he not changed category, and the same would have applied in February 1985, the month from which he wishes to have the decision made retroactive . The basic salary for Grade C 2, Step 7, is higher not only than that for Grade B 5, Step 4, but also than that for Grade B 4, Step 2 . Consequently, in this hypothesis too, his claim should be declared inadmissible because it goes beyond what the Court judged to be admissible, namely a claim for "the granting with effect from 1 February 1985 of a differential allowance calculated in accordance with the general decision of the President of the Court of Justice of 10 April 1986 ".

9 . The only question which remains to be settled following the Court' s interlocutory judgment of 8 March 1988, therefore, concerns the retroactive effect of Part B of the contested general decision . The question is, in concrete terms, whether the Court' s judgment of 29 January 1985 in Michel can constitute valid grounds for the applicant' s claim that he was entitled, from the following month, to a differential allowance of the progressive type introduced by the general decision .

10 . The defendant puts forward the following three arguments against that conclusion :

( 1 ) differential allowances, whether "degressive" or "progressive", are not provided for in the Staff Regulations, but derive from considerations of personnel management policy, regardless of any legal obligation;

( 2 ) the principle of legal certainty precludes a Community measure from having retroactive effect other than in exceptional circumstances where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected;

( 3 ) the judgment in Michel did not in any way deal with the question of differential allowances - it concerned only the classification in step of an official following his transfer to a higher category .

11 . All those arguments are intended to demonstrate that the President of the Court was not obliged, either by the Staff Regulations or by the judgment in Michel, to set up a progressive - or indeed any kind of - differential allowance, and that the applicant therefore has no grounds for demanding that a benefit to which he has no legal claim should be granted to him retroactively .

12 . I shall say forthwith that the defendant' s argument is correct as regards the result to which it leads, that is to say the dismissal of the application . As it is expressed, however, that argument appears to me to be only partly right or, in any event, to have ignored certain distinctions .

13 . It is true that the subject-matter of the dispute in the Michel case was the classification in step of an official following his transfer to a higher category . It is true also that the Staff Regulations make no mention of a differential allowance intended to make up for any difference between the old and new remunerations received by an official transferred from one category to another .

14 . The explanation for that is that Article 46 refers explicitly only to cases where an official is promoted to a higher grade within the same category and it ensures, in its provisions concerning classification in step, that an official thus promoted receives in his new grade a basic salary which is at least equal to, if not greater than, that which he received in his former grade .

15 . But the Staff Regulations are silent with regard to the classification in step of an official transferred to a higher category . And it was in that context, as we have seen, that the Court, in its judgment in Michel, on the basis of an analysis of the context and purpose of the relevant provisions of the Staff Regulations, decided that the principles contained in Article 46, and not those in Article 32, should apply to classification in step on transfer to a higher category . It is clear from the beginning of paragraph 23 of that judgment, cited above, which starts with the words "It follows from the foregoing ..." that the Court was thus merely applying to classification in step the general statement in the previous paragraph, namely :

"In order to ensure that an official in one of the highest grades in a category does not suffer a loss, which might in some cases be substantial, of seniority and salary by comparison with his colleagues on being transferred to the category above, it is ... necessary to apply to him the principles laid down in Article 46 of the Staff Regulations ".

16 . The second paragraph of Article 46 provides, inter alia :

"An official appointed to a higher grade shall in no case receive a basic salary lower than that which he would have received in his former grade ".

In its judgment in Michel, the Court pointed out, moreover, that Article 46 was intended, inter alia, to ensure the greatest possible continuity regarding not only an official' s seniority, but also his salary, as his career develops ( see paragraphs 21 and 22 of the judgment ).

17 . I conclude from the above that, although the Staff Regulations do not explicitly provide for the granting of a differential allowance of any kind, nor do they allow an official to suffer a drop in salary after a transfer to a higher category . The problem lies in determining how, in the absence of any indications in the Staff Regulations themselves, such a situation is to be avoided .

18 . One solution to that problem might be to classify the official concerned in a grade and step which ensured that his remuneration was no lower than that which he received in his former category . An examination of the table of basic monthly salaries given in Article 66 of the Staff Regulations shows that, as long as an official who changes category is classified only in the basic grade in his new category, there is a strong likelihood that his new salary will be lower than that which he previously received, especially in view of the fact that the basic grade in each category generally contains only four steps .

19 . But that question, namely whether in such cases the official should be classified in a grade higher than the basic grade, does not require an answer for the purposes of the present case, since the applicant' s objection to his classification as laid down on his appointment to Category B and his claim that his classification should take effect from 1 February 1985 are both inadmissible . I shall merely state that in my view the objection to the principle that an official may be classified in a grade higher than the basic grade lies not so much in the defendant' s arguments in that regard, set out in paragraph III.9 of the Report for the Hearing, as in the consideration that an official' s classification must depend on the nature of the post held and the duties carried out and may not be determined according to his remuneration . ( 1 )

20 . In any event, in cases where it is impossible to effect such a classification, the provisions of Article 46 by virtue of which an official who changes category may not suffer a loss of salary oblige the institutions to grant such officials an allowance intended to make up for the difference between their old and new basic salaries .

21 . That, in my opinion, is where the "novelty" of the Michel judgment lies . In its previous case-law, as expressed in particular in its judgment of 13 July 1972 in Joined Cases 55 to 76, 86, 87 and 95/71 Besnard and Others v Commission (( 1972 )) ECR 543, the Court considered that there was a clear distinction between the promotion referred to in Article 45(1 ) of the Staff Regulations and the transfer to a higher category referred to in Article 45(2 ) and held that

"the provisions of Article 46 are not as such applicable to change of category" ( paragraph 10 ).

It concluded, therefore, that the administrative authority merely had the option of preventing

"the promotion of an official (( from )) resulting in his remuneration being lower than that which he (( would have )) received in his former post" ( paragraph 20 )

and accepted that, while such a concern could not justify a derogation from the Staff Regulations,

"nevertheless it does not prevent the provisional grant of a compensatory allowance to the official" ( paragraph 21 ).

22 . The judgment in Michel, by ruling in favour of the application of the principles laid down in Article 46 of the Staff Regulations in cases of change in category in order to ensure that the officials concerned do not suffer a loss, which might in some cases be substantial, of seniority and salary, changed that option into an obligation, at least in cases where their classification in the new category does not ensure that they receive a basic salary no lower than that which they received in their former grade .

23 . That being so, I nevertheless consider that the concept of "basic salary" should be understood as covering that part of an official' s remuneration which does not include the family allowances and other allowances referred to in the third paragraph of Article 62 of the Staff Regulations . The basic salary which an official receives in his new category need not necessarily correspond, therefore, to one of the "basic monthly salaries" detailed in Article 66 of the Staff Regulations . The aim is not to guarantee that the basic salary will increase, but rather to prevent it from decreasing .

24 . It follows that an allowance of the "degressive" type is perfectly suitable in order to achieve that aim . It ensures that an official appointed to a higher category continues to receive, regardless of his classification, a basic salary no lower than that which he received in his former category . If that is so, it follows in turn that the introduction of an allowance of the more favourable "progressive" type is not based on any legal obligation on the administrative authorities, so that an official who changes category can in no event be entitled to claim that allowance retroactively .

25 . In that context, I should like to point out that in its judgment in the Besnard case, cited above - which, it may be mentioned, concerned the general decision of the Commission on the basis of which the individual classification of the applicant in the Michel case was effected - the Court considered that, in the granting of a compensatory allowance taking into account the notional career of officials in their former category,

"this consideration (( the legitimate interest of the official that ... his promotion shall not entail loss of salary )) was extended to its extreme limits in favour of the applicants" ( see paragraphs 31 and 32 ).

26 . On the basis of all of the foregoing, I therefore propose that the Court should rule that Mr Brown' s claim to be granted with effect from 1 February 1985 a differential allowance calculated in accordance with the general decision of the President of the Court of Justice of 10 April 1986 is unfounded . His application should therefore be dismissed and the costs shared in accordance with Article 70 of the Rules of Procedure .

(*) Original language : French .

( 1 ) See the judgment of the Court of 13 July 1972 in Joined Cases 55 to 76, 86, 87 and 95/71 Besnard and Others v Commission (( 1972 )) ECR 543, especially paragraphs 19 (" Remuneration is dependent on the grade and post not the converse ") and 31 (" the grade in which an official is placed following a change of category may not be determined by the remuneration which he received previously ").