Judgment of the Court (First Chamber) of 19 January 1984. - Michel Advernier and others v Commission of the European Communities. - Official - Revision of salary scales. - Case 211/80.



European Court reports 1984 Page 00131



Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

OFFICIALS - REMUNERATION - NEW METHOD OF ADJUSTMENT - INCORPORATION OF WEIGHTINGS IN THE SALARY SCALES - RECTIFICATION OF DISTORTIONS RESULTING FROM SUCH INCORPORATION - COUNCIL REGULATION NO 160/80 - OBJECTION OF ILLEGALITY - DISMISSAL

Parties

IN CASE 211/80 ,

MICHEL ADVERNIER AND OTHERS , OFFICIALS OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY GEORGES VANDERSANDEN OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF JEANINE BIVER , 2 RUE GOETHE , LUXEMBOURG ,

APPLICANTS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , RAYMOND BAEYENS , ACTING AS AGENT , ASSISTED BY ROBERT ANDERSEN , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE COMMISSION OF THE EUROPEAN COMMUNITIES OF 28 JULY 1980 EXPRESSLY REJECTING THE APPLICANTS ' COMPLAINT AGAINST THE COMMISSION ' S DECISION TO PAY THEIR REMUNERATION ON THE BASIS OF COUNCIL REGULATION NO 160/80 OF 21 JANUARY 1980 AMENDING THE STAFF REGULATIONS OF OFFICIALS AND THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES ( OFFICIAL JOURNAL L 20 , P . 1 ),

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 27 OCTOBER 1980 MICHEL ADVERNIER AND 291 OTHER OFFICIALS OF THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION UNDER ARTICLE 179 OF THE EEC TREATY FOR THE ANNULMENT OF THE COMMISSION DECISION OF 28 JULY 1980 REJECTING THE COMPLAINT WHICH THE APPLICANTS HAD JOINTLY MADE AGAINST THE COMMISSION DECISION TO CALCULATE THEIR SALARY STATEMENTS FOR MARCH 1980 AND THE STATEMENTS OF PAYMENT OF THE ARREARS ON THE BASIS OF COUNCIL REGULATION NO 160/80 OF 21 JANUARY 1980 AMENDING THE STAFF REGULATIONS OF OFFICIALS AND THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES ( OFFICIAL JOURNAL L 20 , P . 1 ).

2 THE SIX SUBMISSIONS PUT FORWARD BY THE APPLICANTS ALL CHALLENGE THE VALIDITY OF REGULATION NO 160/80 AGAINST WHICH AN OBJECTION OF ILLEGALITY IS RAISED .

3 THE FIRST SUBMISSION ALLEGES AN INACCURATE STATEMENT OF REASONS IN THE REGULATION . THE RECITALS IN THE PREAMBLE THERETO REFER TO THE NEED TO CORRECT ' ' UNINTENDED ' ' INCREASES IN REMUNERATION RESULTING FROM THE INCORPORATION OF THE WEIGHTING INTO THE SALARY SCALES OF OFFICIALS , WHEREAS IN FACT , IT IS CLAIMED , THE COUNCIL HAD BEEN ALERTED TO THE RISKS INHERENT IN THE MANNER IN WHICH THE INCORPORATION WAS EFFECTED AND THE DISTORTIONS WHICH WOULD RESULT THEREFROM ; IN NEVERTHELESS PROCEEDING THEREWITH THE COUNCIL THUS ACTED WITH FULL KNOWLEDGE OF THE SITUATION .

4 THE INCORPORATION OF THE WEIGHTING INTO THE BASIC SALARY SCALES LAID DOWN BY THE STAFF REGULATIONS WAS DECIDED UPON BY THE COUNCIL ON 29 JUNE 1976 AS PART OF A NEW METHOD OF ADJUSTING THE REMUNERATION OF OFFICIALS . THE INCORPORATION WAS EFFECTED BY COUNCIL REGULATION NO 3177/76 OF 21 DECEMBER 1976 ADJUSTING THE REMUNERATION AND PENSIONS OF OFFICIALS AND OTHER SERVANTS OF THE EUROPEAN COMMUNITIES AND THE WEIGHTINGS APPLIED THERETO ( OFFICIAL JOURNAL L 359 P . 1 ). THE REGULATION INTRODUCED NEW SCALES WITH EFFECT FROM 1 JANUARY 1977 AND REDUCED THE WEIGHTING FOR BELGIUM AND LUXEMBOURG , WHICH HAD BEEN 157.8 FROM 1 JULY 1976 , TO 100 .

5 THE COMMISSION INFERS FROM THOSE CIRCUMSTANCES THAT THE COUNCIL INTENDED AT THE TIME TO REDUCE TO 100 THE WEIGHTINGS FOR BELGIUM AND LUXEMBOURG IN ORDER TO GIVE THE WEIGHTINGS BACK THEIR TRUE FUNCTION PURSUANT TO ARTICLE 64 OF THE STAFF REGULATIONS , NAMELY TO COMPENSATE FOR THE DIFFERENCES IN THE COST OF LIVING IN THE VARIOUS PLACES OF EMPLOYMENT . ALTHOUGH THAT OPERATION GAVE RISE TO SOME DISTORTIONS DUE IN PARTICULAR TO THE FACT THAT THE INCREASE IN THE SCALE INTENDED TO NEUTRALIZE THE INCREASE IN TAX RESULTING FROM THE INCORPORATION OF THE WEIGHTING WAS CALCULATED ON THE BASIS OF THE POSITION OF AN UNMARRIED OFFICIAL NOT IN RECEIPT OF THE VARIOUS ALLOWANCES , THE DISTORTIONS WERE ONLY SECONDARY EFFECTS AND NOT INTENDED BY THE REFORM IN QUESTION .

6 THE COMMISSION ADDS THAT THE COUNCIL WAS AWARE OF THE RISKS INVOLVED IN THE NEW METHOD ; THE DECISION OF 29 JUNE 1976 LAYING DOWN THE METHOD INCLUDES A REVIEW CLAUSE FOR DETERMINING POSSIBLE SUBSEQUENT IMPROVEMENTS AND ' ' RECTIFYING ANY DISTORTIONS ' ' . HOWEVER , THE COUNCIL WAS SURPRISED BY THE EXTENT OF THE INCREASES RECEIVED BY CERTAIN OFFICIALS . THE COMMISSION POINTS OUT THAT REGULATION NO 160/80 RECTIFIED THE DISTORTIONS BY AMENDING THE SCALE OF REMUNERATION AND PROVIDING THAT THE ' ' REVISED ' ' SCALE SHOULD HENCEFORTH SERVE AS THE BASIS FOR THE CALCULATION OF ADJUSTMENTS IN FUTURE REMUNERATION .

7 IT MUST BE OBSERVED THAT THE RECITALS IN THE PREAMBLE TO REGULATION NO 160/80 EXPRESSLY MENTION ' ' THAT UNINTENDED INCREASES IN REMUNERATION RESULTED FROM THE MANNER IN WHICH THE 157.8% WEIGHTING WAS INCORPORATED IN THE BASIC SALARY SCALES ' ' AND FOR THAT REASON ' ' THIS SITUATION SHOULD BE RECTIFIED BY ADJUSTING THE BASIC SALARY SCALES ' ' . THUS THE REGULATION ITSELF STATES IN THE RECITALS THERETO THAT IT IS INTENDED TO CORRECT A SITUATION WHICH APPEARED FOLLOWING THE REFORM OF 1976 AND IN WHICH INCREASES IN REMUNERATION WERE REVEALED WHICH DID NOT RELATE TO THAT REFORM .

8 THOSE CONSIDERATIONS CONSTITUTE A SUFFICIENT STATEMENT OF REASONS ON WHICH TO BASE THE OPERATION OF REVISING THE SALARY SCALES . IN PARTICULAR IT BY NO MEANS APPEARS FROM THE DECISIONS AND REGULATIONS PRIOR TO REGULATION NO 160/80 THAT THE COUNCIL , AS PART OF THE METHOD FOR ADJUSTING THE REMUNERATION ADOPTED IN 1976 , INTENDED TO FAVOUR CERTAIN OFFICIALS AS AGAINST OTHERS RATHER THAN TO ARRANGE FOR THE INCORPORATION OF THE WEIGHTING INTO THE SCALE IN A MANNER WHICH WOULD NECESSITATE SUBSEQUENT CORRECTION OF CERTAIN DISTORTIONS THE IMPORTANCE OF WHICH , MOREOVER , IT UNDER-ESTIMATED AT THE TIME .

9 THE SECOND SUBMISSION ALLEGES INFRINGEMENT OF RULES OF LAW INASMUCH AS THE COUNCIL DID NOT OBSERVE THE CRITERIA WHICH IT HAD ITSELF LAID DOWN IN ADOPTING THE DECISION OF 1976 IN RELATION TO THE METHOD OF ADJUSTING REMUNERATION . WHEREAS REGULATION NO 3177/76 CONSTITUTED A CORRECT APPLICATION OF THE METHOD OF ADJUSTMENT DEFINED BY THAT DECISION REGULATION NO 160/80 WAS INTENDED TO CALL THAT APPLICATION IN QUESTION , IT IS CLAIMED , BY READJUSTING THE BASIC SALARIES AND THUS BREAKING UNDERTAKINGS ENTERED INTO IN RELATION TO THE ADJUSTMENT OF REMUNERATION .

10 ACCORDING TO THE COMMISSION , THE FIXING OF NEW SCALES OF REMUNERATION BY REGULATION NO 160/80 IS NOT CONTRARY TO THE REMUNERATION POLICY LAID DOWN BY THE COUNCIL DECISION OF 29 JUNE 1976 , THE PURPOSE OF WHICH WAS TO ENSURE , IN THE MEDIUM TERM , THAT THE REMUNERATION OF EUROPEAN OFFICIALS KEPT PACE WITH THE AVERAGE SALARIES OF THE VARIOUS CLASSES OF NATIONAL CIVIL SERVANTS IN THE MEMBER STATES . THE SOLE PURPOSE OF THE FIXING OF NEW SCALES IN 1980 WAS TO PREVENT CERTAIN OFFICIALS FROM OBTAINING ADDITIONAL INCREASES CONTRARY TO THE OBJECT OF THE REFORM OF 1976 .

11 THE SUBMISSION MUST BE DISMISSED . ON THE ONE HAND IT OVERLOOKS THE FACT THAT THE COUNCIL IN THE DECISION OF 1976 HAD INSERTED A REVIEW CLAUSE RELATING IN PARTICULAR TO DISTORTIONS WHICH MIGHT ARISE FROM THE INCORPORATION OF THE WEIGHTING INTO THE SCALE . ON THE OTHER HAND THE METHOD ADOPTED BY THE SAID DECISION WAS INTENDED TO IMPLEMENT ARTICLE 65 OF THE STAFF REGULATIONS ; ALTHOUGH IT MIGHT THUS RESULT IN CIRCUMSCRIBING THE EXERCISE BY THE COUNCIL OF THE DISCRETION CONFERRED UPON IT BY ARTICLE 65 IN ADJUSTING REMUNERATION , IT DOES NOT AFFECT REGULATION NO 160/80 , WHICH IS A REGULATION AMENDING THE STAFF REGULATIONS PURSUANT TO ARTICLE 24 OF THE TREATY ESTABLISHING A SINGLE COUNCIL AND A SINGLE COMMISSION OF THE EUROPEAN COMMUNITIES AND ADOPTED ACCORDING TO THE PROCEDURES AND WITH THE GUARANTEES INVOLVED IN SUCH AN AMENDMENT .

12 IN THEIR THIRD SUBMISSION THE APPLICANTS MAINTAIN THAT THE COUNCIL HAS INFRINGED THE PRINCIPLE OF DUE CARE INASMUCH AS THE DISTORTIONS WHICH IT SOUGHT TO REMOVE BY REGULATION NO 160/80 WERE THE ACTUAL RESULTS OF THE IMPLEMENTATION OF REGULATION NO 3177/76 . THE COUNCIL COULD HAVE AVOIDED THE OCCURRENCE OF DISTORTIONS IF IT HAD POSTPONED THE INCORPORATION OF THE WEIGHTING INTO THE SALARY SCALE AS THE STAFF REPRESENTATIVES PROPOSED IN ORDER TO CARRY OUT THE NECESSARY CALCULATIONS FOR A CORRECT ASSESSMENT OF POSSIBLE DISTORTIONS .

13 THE COMMISSION ANSWERS THAT THE ALLEGED HASTE IN THE ADOPTION OF REGULATION NO 3177/76 CANNOT INFLUCENCE THE VALIDITY OF A SUBSEQUENT REGULATION SUCH AS REGULATION NO 160/80 .

14 IT MUST BE OBSERVED THAT THE SUBMISSION OVERLOOKS THE FACT THAT THE OBJECTIVE OF REGULATION NO 3177/76 DIFFERS FROM THAT OF REGULATION NO 160/80 . WHEREAS THE FORMER IS INTENDED TO IMPLEMENT THE COUNCIL DECISION OF 29 JUNE 1976 BY INCORPORATING THE WEIGHTING INTO THE SCALE SUBJECT TO SUBSEQUENT REVIEW , ESPECIALLY AS REGARDS POSSIBLE DISTORTION , THE LATTER IS PRECISELY INTENDED TO PUT AN END TO SUCH DISTORTION . IT WAS IN FACT THE COUNCIL ' S TASK TO REMOVE AS SOON AS POSSIBLE DISTORTION CONSISTING IN A FAVOURABLE TREATMENT OF CERTAIN OFFICIALS AS AGAINST OTHERS AS REGARDS THEIR PECUNIARY ENTITLEMENTS . THE SUBMISSION MUST THEREFORE BE REJECTED .

15 THE FOURTH AND FIFTH SUBMISSIONS COMPLAIN THAT IN ADOPTING REGULATION NO 160/80 THE COUNCIL INFRINGED THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION AND THE VESTED RIGHTS OF THE APPLICANTS .

16 THOSE SUBMISSIONS ARE FIRST OF ALL BASED ON THE ARGUMENT THAT REGULATION NO 160/80 SUBSTANTIALLY DEPARTS FROM THE METHOD WHICH THE COUNCIL HAD SELECTED IN JUNE 1976 . IT NEVERTHELESS APPEARS FROM THE PREVIOUS CONSIDERATIONS THAT THE REGULATION IS OUTSIDE THE FIELD OF APPLICATION OF THE METHOD ADOPTED FOR IMPLEMENTING ARTICLE 65 OF THE STAFF REGULATIONS .

17 THE TWO SUBMISSIONS ARE ALSO BASED ON A SLIGHTLY DIFFERENT ARGUMENT , NAMELY THAT THE RIGHTS ACQUIRED BY OFFICIALS UNDER REGULATION NO 3177/76 CANNOT BE CALLED IN QUESTION BY THE COUNCIL SAVE IN THE EVENT OF THE ADOPTION OF A NEW METHOD FOR ADJUSTING REMUNERATION .

18 IN THAT RESPECT IT MUST BE REMEMBERED THAT REGULATION NO 160/80 , WHICH HAS RETROACTIVE EFECT FROM 1 JULY 1979 , PROVIDES THAT NO PART OF THE AMOUNTS PAID BETWEEN THAT DATE AND THE DATE OF ITS ENTRY INTO FORCE , NAMELY 27 JANUARY 1980 , IS TO BE REQUIRED TO BE REPAID . FURTHERMORE , IT PROVIDES TRANSITIONAL MEASURES INTENDED PROGRESSIVELY TO REABSORB THE DISTORTIONS WITHOUT BRINGING ABOUT A REDUCTION IN THE AMOUNTS ACTUALLY PAID . MOREOVER THE EFFECT OF COUNCIL REGULATION NO 161/80 OF 21 JANUARY 1980 EFFECTING THE ANNUAL REVIEW OF REMUNERATION UNDER THE REVISED SCALES ( OFFICIAL JOURNAL L 20 , P . 5 ) WAS TO INCREASE , ALSO FROM 1 JULY 1979 , THE REMUNERATION RESULTING FROM THE APPLICATION OF REGULATION NO 160/80 IN SUCH A WAY THAT , APART FROM CERTAIN SPECIAL CASES , THE REDUCTIONS IN BASIC SALARIES RESULTING FROM THE REVISION OF THE SCALE WERE IMMEDIATELY RE-ABSORBED .

19 IN THOSE CIRCUMSTANCES THERE HAS BEEN DISREGARD NEITHER OF LEGITIMATE EXPECTATIONS NOR OF VESTED RIGHTS . THE APPLICANTS ' ARGUMENT TO THE EFFECT THAT TO DETERMINE WHETHER THERE HAS BEEN SUCH DISREGARD IT IS NECESSARY TO ASCERTAIN , NOT WHETHER OR NOT THERE HAS BEEN A REDUCTION IN THE AMOUNTS ACTUALLY PAID BUT WHETHER THE RATE OF REMUNERATION HAS BEEN FROZEN FOR A CERTAIN PERIOD , MUST BE REJECTED IN CIRCUMSTANCES SUCH AS THE PRESENT , IN WHICH THE REGULATION AT ISSUE IS INTENDED PRECISELY TO PUT AN END TO UNJUSTIFIED INCREASES SUCH AS THOSE RESULTING FROM THE SCALE PREVIOUSLY APPLICABLE .

20 THE SIXTH SUBMISSION ALLEGES INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS . IN ADOPTING REGULATION NO 160/80 OF 21 JANUARY 1980 , WHEREAS THE OPINION OF THE EUROPEAN PARLIAMENT WAS NOT GIVEN UNTIL 18 JANUARY 1980 , THE COUNCIL , IT IS CLAIMED , FAILED IN ITS DUTY TO TAKE ACCOUNT OF THAT OPINION ; IN DOING SO IT ALSO DISREGARDED THE RULES GOVERNING NEGOTIATIONS BETWEEN THE COUNCIL AND STAFF WHICH ASSUME THAT ALL THE FACTS OF THE PROBLEM ARE KNOWN . FINALLY , THE COUNCIL DISREGARDED THE JOINT DECLARATION ON INTER-INSTITUTIONAL CONCILIATION SINCE THE PARLIAMENT HAD IN VAIN REQUESTED THAT THE CONCILIATION PROCEDURE BE INITIATED IN THE PRESENT CASE .

21 THE COMPLAINT THAT THE OPINION OF THE EUROPEAN PARLIAMENT WAS NOT TAKEN INTO ACCOUNT HAS NO FACTUAL BASIS . IT IS APPARENT FROM THE DOCUMENTS PREPARED BY THE SECRETARIAT OF THE COUNCIL AND INCLUDED IN THE FILE THAT AFTER BEING INFORMED THAT THE OPINION ADOPTED BY THE PARLIAMENT AT THE SITTING ON 18 JANUARY 1980 DID NOT DEPART FROM THE DRAFT OPINION OF WHICH IT HAD COGNIZANCE THE PERMANENT REPRESENTATIVES COMMITTEE DECIDED ON 18 JANUARY 1980 TO RESUME CONSIDERATION OF THE PROBLEM OF STAFF REMUNERATION AND TO RECOMMEND TO THE COUNCIL THE ADOPTION OF TWO REGULATIONS AND CERTAIN DECLARATIONS TO BE INCLUDED IN THE MINUTES OF THE COUNCIL SITTING .

22 AS REGARDS INTER-INSTITUTIONAL CONCILIATION , THE APPLICANTS HAVE REFERRED TO THE JOINT DECLARATION OF THE EUROPEAN PARLIAMENT , THE COUNCIL AND THE COMMISSION OF 4 MARCH 1975 ( OFFICIAL JOURNAL C 89 , P . 1 ). THAT DECLARATION PROVIDES THAT THE CONCILIATION PROCEDURE WHICH IT LAYS DOWN MAY BE FOLLOWED FOR COMMUNITY MEASURES OF GENERAL APPLICATION WHICH HAVE APPRECIABLE FINANCIAL IMPLICATIONS , AND OF WHICH THE ADOPTION IS NOT REQUIRED BY VIRTUE OF EXISTING MEASURES .

23 THE COMMISSION HAS CLAIMED THAT THE CONDITIONS FOR APPLYING THAT PROCEDURE WERE NOT SATISFIED IN THIS CASE SINCE REGULATION NO 160/80 IS NOT A MEASURE WITH APPRECIABLE FINANCIAL IMPLICATIONS . THE APPLICANTS HAVE NOT CHALLENGED THAT CONTENTION . IN THOSE CIRCUMSTANCES THE FACT THAT THE PARLIAMENT HAD REQUESTED THE INITIATION OF THE CONCILIATION PROCEDURE IS NOT CAPABLE OF AFFECTING THE LEGALITY OF THE REGULATION AT ISSUE . THAT COMPLAINT ALSO MUST THEREFORE BE REJECTED .

24 IT FOLLOWS FROM ALL THE FOREGOING THAT THE ACTION MUST BE DISMISSED IN ITS ENTIRETY .

Decision on costs

COSTS

25 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES THE INSTITUTIONS ARE TO BEAR THEIR OWN COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .