JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

10 July 1997

Case T-81/96

Christos Apostolidis and Others

v

Commission of the European Communities

‛Officials — Remuneration — Weighting — Steps taken to comply with a judgment annulling a measure — Article 176 of the EC Treaty — Fair compensation — Legal interest in bringing proceedings — Article 44(1 )(c) of the Rules of Procedure’

Full text in French II-607

Application for:

annulment of the Commission's decision rejecting the applicants' requests that their pay slips for January 1992 be drawn up so as to comply with the judgment of the Court of First Instance in Case T-64/92 Chavane de Dalmassy and Others v Commission [1994] ECRSC II-723, and for compensation for nonmaterial damage.

Decision:

Application dismissed.

Abstract of the Judgment

The applicants are 65 officials and members of the temporary staff of the Commission, employed at the European Institute for Transuranic Elements at Karlsruhe, Germany.

They were all also applicants in Case T-64/92 Chavane de Dalmassy and Others v Commission [1994] ECRSC II-723, the method of complying with the judgment in which forms the subject-matter of this action.

Under Article 64 of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’) and Article 20 of the Conditions of Employment of Other Servants of the European Communities, a weighting is applied to the remuneration of officials and members of the temporary staff, determined by reference to living conditions at their place of employment, to ensure that they have equal purchasing power irrespective of those conditions.

Until the adoption of Council Regulation (ECSC, EC, Euratom) No 3161/94 of 19 December 1994 adjusting, with effect from 1 July 1994, the remuneration and pensions of officials and other servants of the European Communities and the weightings applied thereto (OJ 1994 L 335, p. 1), the weighting applied to the remuneration of the applicants employed at Karlsrahe was that applicable to officials employed at Bonn, which was the capital of the Federal Republic of Germany until October 1990.

After the reunification of Germany, Berlin became the capital in October 1990. That event led the Commission to submit to the Council a draft regulation (SEC (91) 1612 final) on 4 September 1991, proposing that, with retrospective effect from 1 October 1990, a new weighting be calculated for Germany on the basis of the cost of living in Berlin and specific weightings be fixed for Bonn and Karlsruhe.

On 19 December 1991, the Council adopted Regulation (ECSC, EEC, Euratom) No 3834/91 adjusting, with effect from 1 July 1991, the remuneration and pensions of officials and other servants of the European Communities and the weightings applied thereto (OJ 1991 L 361, p. 13, corrigendum in OJ 1992 L 10, p. 56). That regulation lays down, inter alia, a weighting for Germany calculated on the basis of the cost of living in the former capital, Bonn, and a specific weighting for Berlin.

In January 1992, each applicant received a supplementary pay slip, which applied the ‘Bonn’ weighting (95.1) laid down by Article 6(2) of Regulation No 3834/91.

In its judgment in Chavane de Dalmassy, following an action by the applicants challenging their pay slips for January 1992, the Court of First Instance annulled those slips in so far as they applied a weighting calculated by reference to the cost of living in Bonn.

In paragraph 56 of its judgment, the Court held that the Council was not entitled to fix a provisional weighting for Germany on the basis of the cost of living in a city other than the capital. The Council should therefore first have fixed a weighting for Germany, provisional if necessary, on the basis of the cost of living in Berlin and then fixed specific weightings, also provisional if necessary, for the various places of employment in that country where a noticeable variation in purchasing power had been determined by comparison with the cost of living in the capital, Berlin.

Since no appeal has been made against that judgment, it has the force of res judicata.

Following the delivery of the Chavarte de Dalmassy judgment, on 9 December 1994, the Commission drew up a first amended proposal for a Council regulation (SEC (94) 2024 final) with a view to the ‘annual adaptation’ of officials' remuneration and pensions. It then adopted a second proposal for a regulation (doc. SEC (94) 2085 final) amending proposal SEC (91) 1612 final mentioned above and designed to fix, with retrospective effect from 1 October 1990, a general weighting for Germany and specific weightings for Bonn and Karlsruhe.

Then, on the basis of the first amended proposal, the Council adopted Regulation No 3161/94, which, inter alia, adapted weightings as from 1 July 1994. Article 6 of that regulation fixes a general weighting for Germany based on Berlin and a specific weighting for the remuneration of officials and other servants employed at Karlsruhe.

Under that provision, the Commission drew up revised pay slips for staff employed in Karlsruhe during the period from 1 July to 31 December 1994.

The Council took no action following the second amending proposal by the Commission concerning the retrospective fixing of the weightings as from October 1990.

On 5 May 1995, the applicants submitted a request under Article 90(1) of the Staff Regulations, first, that their pay slips since January 1992 be drawn up on the basis of the statutorily applicable weighting, secondly, for a declaration that the Commission erred by not adopting within a reasonable time the measures required by the Chavane de Dalmassy judgment pursuant to Article 176 of the EC Treaty and, thirdly, for the payment of BFR 50000 to each applicant by way of compensation for nonmaterial damage.

That request was implicitly rejected on 5 September 1995, four months after it was submitted.

Admissibility

Where a number of administrative measures are required in order to comply with a judgment annulling a measure, such compliance cannot be immediate. The Commission has a ‘reasonable time’ to comply with a judgment annulling a decision taken pursuant to the Treaty, even in the absence of an express provision in that regard in the Treaty (paragraph 37).

See: 266/82 Turner v Commission [1984] ECR 1, para. 5; T-120/89 StahlwerkePeine-Sahgitter v Commission [1991] ECR II-279, para. 66; T-73/95 Oliveira v Commission [1997] ECR II-381, para. 41

Therefore, contrary to what the Commission maintains, the applicants, who were successful in their action in Chavane de Dalmassy, were under no obligation to bring an action for a declaration that Article 176 of the Treaty had been infringed immediately after the delivery of the judgment annulling the contested measure, that is to say at the time of the notification of the first pay slip subsequent to the delivery of that judgment. To impose such an obligation would conflict with the right of the institution whose measure has been annulled to have the benefit of the ‘reasonable time’ referred to above (paragraph 38).

Where compliance with a judgment annulling a measure presents particular difficulties, the institution concerned may satisfy the obligation arising from Article 176 of the Treaty by taking such decision as will provide due compensation for the damage which the persons concerned have suffered as a result of the decision which has been annulled. In such circumstances, the appointing authority may also establish a dialogue with such persons to try to agree fair compensation for the unlawfulness suffered (paragraph 42)

See: C-412/92 P Parliament \Meskens [1994] ECR I-3757, para. 28

That possibility left to the Commission to make fair compensation to the persons concerned excludes a priori the existence of any absolute legal impossibility, merely on the strength of paragraph 23 of the Chavane de Dalmassy judgment, of the Commission adopting any measure at all. Since the definitive assessment as to whether the action brought by the applicants on that basis is well founded is a matter which goes to the substance of the case, their action cannot be regarded as premature (paragraph 43).

Substance

The applicants put forward two pleas in law in support of their action, respectively alleging infringement of Article 176 of the Treaty and infringement of Articles 24, 64 and 65 of the Staff Regulations.

The first plea, alleging infringement of Article 176 of'the Treaty

Where the Community judicature annuls a measure taken by an institution, that institution is obliged under Article 176 of the Treaty to take the appropriate measures to comply with the judgment. Furthermore, where rules are declared unlawful, the subsequent adoption by that institution of new nales, applicable to future situations, does not remove, as far as the injured party is concerned, the effects of the illegality committed against him in the past (paragraph 60).

See: Parliament v Meskens, cited above, para. 24; T-84/91 Meskens v Parliament [1992] ECR II-2335, paras 76 to 78; T-17/90, T-28/91 and T-17/92 Cámara Alloisio and Others v Commission Į1993] ECR II-841, paras 78 to 83

It follows that the mere adoption of Regulation No 3161/94 does not, a priori, constitute sufficient compliance with the Chavane de Dalmassy judgment, inasmuch as that regulation does not concern the officials' pay slips for the months of January 1992 to June 1994 inclusive (paragraph 61).

It must therefore be examined how far the Chovane de Dalmassy judgment also required the Commission to adopt measures concerning the period from January 1992 until 1 July 1994, the date on which Regulation No 3161/94 took effect (paragraph 62).

In exercising its discretion in determining the appropriate measures to comply with a judgment annulling a measure, as required by Article 176 of the Treaty, the administrative authority must observe the provisions of Community law as well as the operative part and the grounds of the judgment with which it is required to comply (paragraph 63).

See: Meskens v Parliament, cited above, para. 74; T-508/93 Mancini v Commission [1994] ECRSC II-761, para. 51

The Chavane de Dalmassy judgment states that, where it exercises its powers under Articles 64 and 65 of the Staff Regulations, the Council is not entitled, having regard to the principle laid down in Article l(3)(a) of Annex XI to the Staff Regulations, to fix a provisional weighting for Germany on the basis of the cost of living in a city other than the capital. In those circumstances, the Council is required to fix, first, a weighting for Germany — provisional if necessary — on the basis of the cost of living in Berlin and, secondly, specific weightings — which may also be provisional if necessary — for the various places of employment in that country where a noticeable variation in purchasing power has been determined by comparison with the cost of living in the capital, Berlin (paragraph 64).

The interrelation between those two obligations on the Council means that the applicants cannot seek fulfilment of one of those obligations without also taking account, in determining the extent of their rights, of the content of the second obligation (paragraph 69).

In those circumstances, the applicants' demand that the Commission should retrospectively apply the Berlin weighting to their pay slips up to January 1992 would imply an obligation on that institution to infringe the operative part of the Chavane de Dalmassy judgment, as elucidated in paragraph 56 thereof. Such a demand clearly exceeds the applicants' rights under Article 176 of the Treaty (paragraph 71).

Where compliance with a judgment annulling a measure presents particular difficulties, the institution concerned may satisfy the obligation arising from Article 176 of the Treaty by taking such decision as will provide fair compensation for the damage which the persons concerned have suffered as a result of the decision which has been annulled (paragraph 73).

See: Parliament v Meskens, cited above, para. 28

It is clear from paragraph 23 of the Chavane de Dalmassy judgment that, failing the adoption of new rules by the Council, the Commission was unable to apply a weighting to the applicants' remuneration other than that laid down by the rules in force. That inability undoubtedly constituted a ‘particular difficulty’ in implementing the Chavane de Dalmassy judgment, which obliged the Commission to adopt measures capable of making fair compensation for any disadvantage suffered by the applicants (paragraph 74).

However, the adoption of such compensatory measures is conditional on the applicants' having suffered a ‘disadvantage’. In that regard, it is undisputed that during the period from January 1992 until 1 July 1994 the applicants globally obtained the application to their remuneration of a weighting higher than that which they would have obtained if the Council had already amended the rules in force. The applicants having failed to demonstrate the existence of any disadvantage, the Commission was under no obligation to adopt compensatory measures such as those envisaged in the case-law (paragraph 75).

The applicants have alleged, finally, that Article 176 of the Treaty, as interpreted in the Parliament v Meskens judgment cited above (paragraph 24 et seq.), required the Commission not only to take direct implementation measures but also to make good the additional damage arising from the annulled measure, subject to the conditions in the second paragraph of Article 215 of the Treaty being fulfilled (paragraph 77).

Under Article 44(l)(c) of the Rules of Procedure, an application must state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based. In order to comply with those requirements, an application for compensation in respect of damage caused by a Community institution must contain information allowing the determination, inter alia, of the damage which the applicant claims to have suffered and of its nature and extent. Moreover, infringement of Article 44(l)(c) is one of the bars to proceeding with a case which the Court of First Instance may raise of its own motion, at any stage of the proceedings, pursuant to Article 113 of the Rules of Procedure (paragraph 79).

See: T-481/93 and T-484/93 Exporteurs in Levende Varkens and Others v Commission [1995] ECR II-2941, paras 75 and 76

In this case, the applicants' claim for compensation does not comply with the conditions laid down by Article 44(l)(c) of the Rules of Procedure (paragraph 80).

The second plea, alleging infringement of Articles 24, 64 and 65 of the Staff Regulations

The duty of the administration to have regard for the interests of its officials reflects the balance of the reciprocal rights and obligations established by the Staff Regulations in the relationship between the public authority and its servants. However, the protection of the rights and interests of officials must always be subject to compliance with the legal rules in force (paragraph 90).

See: T-33/89 and T-74/89 Blackman v Parliament [1993] ECR II-249, para. 96; T-46/90 Devillez and Others v Parliament [1993] ECR II-699, paras 37 and 38

Officials cannot therefore rely on the duty of the administration to have regard for their interests in order to claim advantages which run counter to the rulings in the judgment on which their action is based. Just as that duty cannot be relied upon against an institution in such a way as to cause it to infringe a legislative provision, nor can it require the institution to infringe the operative part of a judgment of the Court of First Instance that has acquired the force of res judicata, interpreted in the light of its reasoning (paragraph 91).

As for any infringement by the Commission of its duty of assistance by not challenging Regulations Nos 3161/94 and 3834/91 before the Community judicature, it is well established that Community institutions have a discretion, subject to review by the Community judicature, regarding the choice of ways and means for carrying out that duty (paragraphs 99 and 100).

See: T-59/92 Carolina v Commission [1993] ECR II-1129, paras 64 and 65; T-39/93 and T-553/93 Baltsavias v Commission [1995] ECRSC II-695, para. 59

Since the Commission has that discretion, an individual cannot compel it to bring an action for failure to act, or in other words require it to act in a given way, without endangering the scope for manoeuvre inherent in the Commission's discretion in the matter (paragraph 101).

See: T-575/93 Koelman v Commission [1996] ECR II-1, para. 71

Since a decision to bring a matter before the Court of Justice is an internal preparatory measure of the Commission, which is not potentially addressed to any specific person, individuals do not have the necessary standing to insist, by means of an action for failure to act, that the Commission should bring such proceedings (paragraph 102).

See: T-277/94 AITEC v Commission [1996] ECR II-351, para. 58 et seq.

The duty of assistance laid down by Article 24 of the Staff Regulations cannot therefore be relied upon by the applicants to compel the Commission to bring an action for failure to act against another institution (paragraph 103).

Operative part:

The application is dismissed.