Judgment of the Court (Second Chamber) of 19 November 1981. - Paolo Benassi v Commission of the European Communities. - Staff Regulations of Officials - Transfer of pension rights. - Case 194/80.



European Court reports 1981 Page 02815



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

OFFICIALS - REMUNERATION - BASIC SALARY - CONCEPT - APPLICATION FOR THE DETERMINATION OF THE YEARS OF PENSIONABLE SERVICE TO BE CREDITED IN THE EVENT OF TRANSFER OF PENSION RIGHTS

( STAFF REGULATIONS OF OFFICIALS , ART . 66 AND ANNEX VIII , ART . 11 ( 2 ))

Summary

THE BASIC SALARY , AS PROVIDED FOR IN ARTICLE 66 OF THE STAFF REGULATIONS OF OFFICIALS , COMPRISES THE AMOUNTS SHOWN IN THE TABLE CONTAINED IN THAT PROVISION , ADJUSTED , WHERE APPROPRIATE , BY THE WEIGHTING ADOPTED FOR THE SEATS OF THE COMMUNITIES BY THE COUNCIL IN THE LIGHT OF THE ANNUAL REVIEW PROVIDED FOR BY ARTICLE 65 , AND THE MEANING OF THE EXPRESSION ' ' BASIC SALARY ' ' CANNOT VARY FROM ONE PROVISION TO ANOTHER IN THE ABSENCE OF OBJECTIVE CONSIDERATIONS JUSTIFYING SUCH A DIFFERENCE .

THE CONCEPT OF BASIC SALARY AS THUS DEFINED IS VALID IN PARTICULAR FOR THE APPLICATION OF ARTICLE 11 ( 2 ) OF ANNEX VIII TO THE STAFF REGULATIONS .

Parties

IN CASE 194/80

PAOLO BENASSI , AN OFFICIAL IN THE TERMINOLOGY DEPARTMENT OF THE COMMISSION OF THE EUROPEAN COMMUNITIES IN LUXEMBOURG , RESIDING AT 7 RUE KENNEDY , BRIDEL , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT 18A RUE DES GLACIS , AT THE CHAMBERS OF HIS LEGAL REPRESENTATIVE , VICTOR BIEL , OF THE LUXEMBOURG BAR ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , JOSEPH GRIESMAR , ACTING AS AGENT , ASSISTED BY ROBERT ANDERSEN , OF THE BRUSSELS BAR , RESIDING AT 214 AVENUE MONTJOIE , BRUSSELS , 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 A DECLARATION THAT THE NUMBER OF YEARS OF PENSIONABLE SERVICE WITH WHICH THE APPLICANT IS TO BE CREDITED BY THE COMMISSION UNDER ITS OWN PENSION SCHEME , ON THE BASIS OF THE AMOUNT OF THE ACTUARIAL EQUIVALENT OR THE SUMS REPAID , REFERRED TO IN ARTICLE 11 ( 2 ) OF ANNEX VIII TO THE STAFF REGULATIONS , MUST , PURSUANT TO THE GENERAL PROVISIONS FOR GIVING EFFECT TO THE SAID ARTICLE 11 ( 2 ), AND IN PARTICULAR PURSUANT TO ARTICLE 3 ( 3 ) OF THE SAID GENERAL PROVISIONS , BE CALCULATED WITH REFERENCE TO THE OFFICIAL ' S BASIC ANNUAL SALARY , IRRESPECTIVE OF THE WEIGHTING , WHICH IN THIS CASE IS 148.7 PURSUANT TO REGULATION NO 2998/75 OF THE COUNCIL OF 17 NOVEMBER 1975 ,

Grounds

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 30 SEPTEMBER 1980 , P . BENASSI , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , BROUGHT AN ACTION FOR ANNULMENT OF THE COMMISSION ' S DECISION OF 2 SEPTEMBER 1980 REJECTING HIS COMPLAINT UNDER ARTICLE 90 OF THE STAFF REGULATIONS OF OFFICIALS IN WHICH HE REQUESTED THAT THE NUMBER OF YEARS OF PENSIONABLE SERVICE WITH WHICH HE WAS TO BE CREDITED ON THE BASIS OF THE AMOUNT OF THE ACTUARIAL EQUIVALENT OR THE SUMS REPAID REFERRED TO IN ARTICLE 11 ( 2 ) OF ANNEX VIII TO THE STAFF REGULATIONS SHOULD , PURSUANT TO THE GENERAL PROVISIONS GIVING EFFECT TO THE SAID ARTICLE 11 ( 2 ) AND IN PARTICULAR PURSUANT TO ARTICLE 3 OF THOSE GENERAL PROVISIONS , BE CALCULATED WITH REFERENCE TO HIS BASIC ANNUAL SALARY , WITHOUT THE APPLICATION OF THE WEIGHTING - 148.7 IN THIS CASE - FIXED BY REGULATION NO 2998/75 OF THE COUNCIL OF 17 NOVEMBER 1975 .

2 THE APPLICANT MAINTAINS , IN THAT REGARD , THAT THE BASIC ANNUAL SALARY IS DETERMINED BY ADDING TOGETHER THE TWELVE MONTHLY BASIC SALARY PAYMENTS DETERMINED BY REFERENCE TO ARTICLE 66 OF THE STAFF REGULATIONS , WHICH DEFINES THE BASIC SALARIES FOR EACH GRADE AND STEP , WITHOUT APPLYING ANY WEIGHTING . HE CONSIDERS THAT THE APPLICATION OF A WEIGHTING TO THAT AMOUNT IS DUE TO A CONFUSION BETWEEN REMUNERATION IN THE STRICT SENSE AND BASIC SALARY .

3 THE APPLICANT FURTHER STATES THAT REFERENCE TO THE BASIC ANNUAL SALARY ADJUSTED BY A WEIGHTING WOULD HAVE UNACCEPTABLE CONSEQUENCES IN THE FORM OF ABSURD AND DISCRIMINATORY DISPARITIES AFFECTING THE PERSONS CONCERNED ACCORDING TO THEIR PLACE OF EMPLOYMENT .

4 THE COMMISSION DRAWS A DISTINCTION , ON THE BASIS OF THE JUDGMENT OF THE COURT OF 13 JULY 1978 IN CASE 114/77 JACQUEMART V COMMISSION (( 1978 ) ECR 1697 ), BETWEEN GEOGRAPHICAL WEIGHTINGS AS PROVIDED FOR BY THE FIRST AND SECOND PARAGRAPHS OF ARTICLE 64 AND WEIGHTINGS FIXED BY THE COUNCIL PURSUANT TO ARTICLE 65 ( 2 ) OF THE STAFF REGULATIONS TO DETERMINE THE LEVEL OF THE VARIOUS ELEMENTS COMPRISING THE REMUNERATION OF OFFICIALS EMPLOYED AT THE VARIOUS SEATS OF THE COMMUNITIES . THE COMMISSION CONTENDS THAT ALTHOUGH THE GEOGRAPHICAL WEIGHTINGS DO NOT FORM PART OF THE BASIC SALARY , THE SAME DOES NOT APPLY IN THE CASE OF THE SECOND TYPE OF WEIGHTING .

5 AS THE COURT STATED IN THE JUDGMENT CITED ABOVE , THE FUNCTION OF THE WEIGHTING MENTIONED IN ARTICLE 64 OF THE STAFF REGULATIONS IS TO ENSURE THAT THE REMUNERATION OF ALL OFFICIALS HAS THE SAME PURCHASING POWER , WHATEVER THEIR PLACE OF EMPLOYMENT . ON THE OTHER HAND , THE WEIGHTING MENTIONED IN ARTICLE 65 IS A MEANS AVAILABLE TO THE COUNCIL FOR ADJUSTING THE REMUNERATION OF ALL OFFICIALS AND SERVANTS OF THE COMMUNITIES .

THE SECOND KIND OF WEIGHTING , AS PART OF THE MACHINERY FOR ADJUSTING THE REMUNERATION OF OFFICIALS EMPLOYED AT THE SEATS OF THE COMMUNITIES , IS INTENDED BY VIRTUE OF ITS VERY FUNCTION TO BE MERGED WITH THE BASIC SALARY , HAVING REGARD TO THE FACT THAT IT WAS ADOPTED IN ORDER TO DETERMINE REMUNERATION BY ITS APPLICATION TO THE AMOUNTS SHOWN IN THE TABLE CONTAINED IN ARTICLE 66 OF THE STAFF REGULATIONS OF OFFICIALS .

7 THAT TABLE IS THE SOLE BASIS FOR DETERMINING THE BASIC SALARY , UPON ESTABLISHMENT , ONLY IN CASES WHERE THE AMOUNTS SHOWN THEREIN HAVE NOT IN FACT HAD THE WEIGHTING REFERRED TO IN ARTICLE 65 OF THE STAFF REGULATIONS APPLIED TO THEM . THE BASIC SALARY IS ARRIVED AT EITHER BY THE UPDATING OF THOSE AMOUNTS BY APPLICATION OF THE WEIGHTING , AS WAS THE CASE FROM 1972 TO 1976 , OR BY AN ADJUSTMENT OF THE TABLE CONTAINED IN ARTICLE 66 BY INCORPORATION OF THE WEIGHTING , AS IS THE CASE FOR THE PERIOD AFTER 1 JANUARY 1977 .

8 IT SHOULD BE EMPHASIZED THAT THIS DEFINITION OF THE TERM ' ' BASIC SALARY ' ' AVOIDS THE ILLOGICAL CONSEQUENCE OF RECOGNIZING DIFFERENT SENIORITY FOR THE PURPOSES OF THE COMMUNITY PENSION SCHEME DEPENDING ON WHETHER THE VARIATIONS IN THE COST OF LIVING OCCURRING AFTER THE ADOPTION OF THE STAFF REGULATIONS WERE INCORPORATED IN THE FIGURES SHOWN IN THE TABLE CONTAINED IN ARTICLE 66 OF THE STAFF REGULATIONS .

9 MOREOVER , THE APPLICANT ' S ARGUMENT TO THE EFFECT THAT APPLICATION OF THE WEIGHTINGS HAS LED TO DISCRIMINATION OR ADVERSE CONSEQUENCES AFFECTING HIM TAKES NO ACCOUNT OF THE CLEAR AND PRECISE NATURE OF THE DISTINCTION DRAWN IN THE STAFF REGULATIONS BETWEEN GEOGRAPHICAL WEIGHTINGS AND THOSE PROVIDED FOR IN ARTICLE 65 .

10 IT MUST BE MADE CLEAR THAT THE BASIC SALARY , AS PROVIDED FOR IN ARTICLE 66 OF THE STAFF REGULATIONS , COMPRISES THE AMOUNTS SHOWN IN THE TABLE CONTAINED IN THAT PROVISION , ADJUSTED WHERE APPROPRIATE BY THE WEIGHTING ADOPTED FOR THE SEATS OF THE COMMUNITIES BY THE COUNCIL IN THE LIGHT OF THE ANNUAL REVIEW PROVIDED FOR BY ARTICLE 65 , AND THE MEANING OF THE EXPRESSION ' ' BASIC SALARY ' ' CANNOT VARY FROM ONE PROVISION TO ANOTHER IN THE ABSENCE OF OBJECTIVE CONSIDERATIONS JUSTIFYING SUCH A DIFFERENCE .

11 THERE DOES NOT APPEAR TO BE ANY JUSTIFICATION FOR ATTRIBUTING A MEANING DIFFERENT FROM THAT LAID DOWN BY THE COURT IN THE CASE CITED ABOVE TO THE EXPRESSION ' ' BASIC SALARY ATTACHING TO THE GRADE ON ESTABLISHMENT ' ' FOR THE PURPOSE OF CALCULATING THE NUMBER OF YEARS OF PENSIONABLE SERVICE WITH WHICH AN OFFICIAL IS TO BE CREDITED ON THE BASIS OF THE AMOUNT OF THE ACTUARIAL EQUIVALENT OR THE SUMS REPAID REFERRED TO IN ARTICLE 11 ( 2 ) OF ANNEX VIII TO THE STAFF REGULATIONS .

12 IT IS THEREFORE APPROPRIATE TO CONCLUDE THAT THE COMMISSION PROPERLY INTERPRETED THE TERM ' ' BASIC SALARY ' ' , FOR THE PURPOSE OF CALCULATING THE NUMBER OF YEARS OF PENSIONABLE SERVICE TO BE CREDITED TO THE APPLICANT ON THE BASIS OF THE AMOUNT OF THE ACTUARIAL EQUIVALENT OR SUMS REPAID , AS INCLUDING THE WEIGHTING PROVIDED FOR IN ARTICLE 65 OF THE STAFF REGULATIONS .

13 IT FOLLOWS THAT THE APPLICATION MUST BE DISMISSED AS UNFOUNDED .

Decision on costs

14 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .

15 THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .

16 HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE THE COSTS INCURRED BY THE INSTITUTIONS IN ACTIONS BY SERVANTS OF THE COMMUNITIES ARE TO BE BORNE BY THOSE INSTITUTIONS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .