JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

29 January 1997

Case T-297/94

Joëlle Vanderhaeghen

v

Commission of the European Communities

‛Officials — Actions for annulment — Admissibility — Pay slips applying the scales in respect of certain parental contributions fixed by an inter-institutional joint committee — Principle of equality of treatment’

Full text in French II-13

Application for:

annulment of the implicit decision of the Commission rejecting the applicant's complaint in respect of her pay slip for January 1994 inasmuch as that pay slip shows that the administration applied to her the scales of parental contributions in force in Luxembourg in respect of the nursery services used by her as an official, and for a declaration that the scales fixed by the Social Activities Committee are unlawful.

Decision:

annulment.

Abstract of the Judgment

The nursery services offered by the Centre Polyvalent de l'Enfance (Childhood Centre) (CPE) are provided by the Community institutions in both Luxembourg and Brussels against payment of a parental contribution which is deducted each month from the pay of the official or servant concerned. In Luxembourg, the parental contribution scales are fixed by the Comité des Activités Sociales (CAS), an inter-institutional joint body in which representatives of the institutions based in that city participate.

The applicant is the mother of a child who has attended a CPE nursery in Luxembourg since 15 September 1993. The monthly parental contribution in respect of that service was deducted for the first time from her pay for January 1994.

The parental contribution paid in Luxembourg is higher than that asked of officials and servants with the same income working in Brussels. On 18 March 1994 the applicant lodged a complaint in respect of her pay slip for January 1994, claiming that the decision of the CAS fixing the parental contribution scales applicable in Luxembourg is unlawful inasmuch as it infringes the principle of equality of treatment.

On 30 September 1994, the applicant brought the present proceedings. On 7 October 1994 she received notification of a decision expressly rejecting her complaint of 18 March 1994.

Admissibility

Vie main plea in law, based on the absence of an act adversely affecting the official

The concept of ‘pay’ within the meaning of Article 119 of the EC Treaty ‘comprises any consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment from his employer and irrespective of whether the worker receives it under a contract of employment, by virtue of legislative provisions or on a voluntary basis’. It follows from that definition, which is the expression of a general principle applicable not only in the context of Article 119 of the Treaty but also to be taken into account in determining the extent of the rights of all workers, that the concept of ‘pay’ must be understood in its broad sense. Article 62 of the Staff Regulations of Officials of the European Communities (the Staff Regulations) must therefore be interpreted in the light of that case-law. It follows that, although the institutions are not obliged by the Staff Regulations to provide the social service at issue, that service must be treated as a payment in kind covered by the statutory definition of ‘pay’, since it is directly connected to the exercise of the duties of staff of the European Communities and its existence corresponds to a requirement of the principle of equal opportunities for men and women (paragraph 21).

See: C-360/90 Bölel [1992] ECR I-3589, para. 12

Given the particular character of the CAS, an inter-institutional joint body with no separate legal identity which cannot as such be brought before the Community judicature, the Court of First Instance is only able to review the legality of its acts under Article 91 of the Staff Regulations in so far as they have been confirmed by the defendant institution. The applicant's claim must be interpreted as concerning only the decision of the Commission which confirmed the scales at issue and applied them to the applicant (paragraph 22).

See: T-495/93 Carrer and Others v Court of Justice [1994] ECRSC II-651, para. 22

Furthermore, in the context of the remedies provided for by Article 91 of the Staff Regulations and in the case of an act of a general nature which must subsequently be implemented by a series of individual decisions, an official may rely on the illegality of that act in order to challenge the individual decision affecting him. A pay slip drawn up by an institution and delivered to an official amounts to an act adversely affecting that official which may be the subject of a complaint and ultimately an action (paragraph 23).

See: 262/80 Andersenand Others v Parliament [1984] ECR 195, para. 6; 181/86 to 184/86 Del Plato and Others v Commission [1987] ECR 4991, para. 9; T-262/94 Baiwir v Commission [1996] ECRSC II-739, para. 33

The pay slip challenged by the applicant must be considered an act adversely affecting her inasmuch as it indicates that the administration first applied to her the parental contribution scales fixed by the CAS and confirmed by the Commission (paragraph 24).

Alternative plea in law based on infringement of Article 90(2) of the Staff Regulations

In her complaint of 18 March 1994, made under Article 90(2) of the Staff Regulations, the applicant challenged her pay slip for January 1994. The complaint was lodged within the three month time-limit provided for by that provision. This action, which was commenced on 30 September 1994, must be declared admissible (paragraph 28).

Conformity of the application with the requirements of Article 44(1) (c) of the Rules of Procedure

The concise nature of the application, which contains a summary of the pleas relied upon, did not prevent the Commission from usefully preparing its defence. The Court of First Instance is able to exercise its jurisdiction over the act which is challenged (paragraph 31).

Substance

In any event, in order for a claim to be admissible, it is sufficient that it was implicitly mentioned in the complaint. Since die pre-litigation procedure is informal in character and those concerned are generally acting without the assistance of a lawyer at that stage, the administration must not interpret the complaints restrictively but, on the contrary, must consider them with an open mind (paragraph 37).

See: T-18/907 o/¡£e/¡ v Commission [1991] ECR II-187, para. 22

Plea based on infringement of the principle of equality of treatment

The existence of a nursery service adapted to the specific needs of officials and servants of the European Communities is an essential element of a policy intended to ensure equal opportunities for men and women. The benefit provided to the staff of the institutions by the operation of that social service must be treated as a payment in kind, covered by the statutory definition of ‘pay’. The Commission's decisions connected with the application of the parental contribution scales fixed by the CAS to all its staff must necessarily be in conformity with the requirements of the principle of equality of treatment. The effect of this fundamental principle of European Civil Service Law is specifically to prohibit excessive and unjustified differences in the treatment of staff working for the Communities, even if, in the case of a service to be treated as a payment in kind, it does not automatically require parental contribution scales to be the same in every place of employment (paragraph 49).

In so far as the Commission did not observe the requirements of the principle of equality of treatment in its decision confirming the parental contribution scales fixed for Luxembourg by the CAS, the applicant's claim based on infringement of that principle is well founded (paragraph 50).

The Commission's decision, a general act the legality of which is open to review by the Court of First Instance, is unlawful. The applicant's pay slip for January 1994 must therefore be annulled in part (paragraph 51).

Operative part:

The applicant's pay slip for January 1994 is annulled inasmuch as it shows a deduction in respect of a parental contribution for the nursery service provided by the Luxembourg Childhood Centre, calculated on the basis of the scales applied by the Commission in Luxembourg.