OPINION OF MR ADVOCATE-GENERAL

DUTHEILLET DE LAMOTHE

DELIVERED ON 5 MAY 1971 ( 1 )

Mr President,

Members of the Court,

Like many of their colleagues of other nationalities, many German officials in the service of the Communities still take on certain financial obligations in the Federal Republic of Germany.

Some stem from family liabilities (for example, children at university and parents in need of help) and some from liabilities which are of a more permanent type: buying a house or a flat by instalments or setting up a retirement pension. It is certain that for all these servants the revaluations of the Deutschmark and in particular the revaluation in 1969 had the effect of increasing the burden of these financial liabilities and even put some of them in an extremely difficult situation. The problem may, it seems, arise again if certain information is to be believed.

The Commission is moreover aware of this and declares itself willing to give favourable consideration to the possibility of assistance in certain particularly difficult cases.

But what some of the officials in question seek to obtain is something quite different.

They consider in fact that the Community is under an obligation to make compensation for the increase in expenditure resulting for them from the fact that in order to meet the same obligations expressed in Deutschmarks they have been obliged since the revaluation of the mark to transfer a greater sum in Belgian francs, that is, the currency in which their salary is expressed and paid. Because the Commission did not acknowledge the existence of that obligation, 13 of the officials concerned, all in service in Luxembourg, have lodged the present applications to this Court which all request principally

1. that the Court acknowledge the existence of the right which the applicants invoke,

2. that accordingly the Court order the Commission to pay to each of them compensation equal to the loss caused him by the revaluation of the Deutschmark,

3. that the Court lay down the principle of compensation of the same kind as regards future losses.

The principal conclusions do not raise any particular question of admissibility. But one of these applications, Application 65/70 by Mr Werner Horn, contains in addition supplementary conclusions requesting that the Court order the Commission to ‘insert in the next edition of the Staff Regulations a provision making the employer of officials of the European Communities generally responsible for all financial risks’.

In my opinion the Court must dismiss these supplementary conclusions as inadmissible and remind the applicant who submitted them that it is not for the Court to give orders to the Community authorities, as it has already ruled several times for example in its judgment of 15 December 1966 in Case 62/65 [1966] ECR 561.

In support of their principal conclusions, the applicants put forward four submissions or rather four sets of submissions:

A — The first submission which was chiefly developed in the oral procedure will not detain me long. It is based on the provisions of Article 24 of the Staff Regulations. But it is sufficient to read that article to ascertain that it cannot be validly relied upon in this case. Indeed its aim is to provide for assistance and the possible responsibility of the Communities where an official suffers certain damage because of his occupation or his duties. But the wording shows clearly what damage this is: threats, insulting or defamatory acts or utterances, or attacks to persons or property. It is true that this list is not exhaustive but it would be an unusually bold legal construction, and one which really seems impossible, to add to that list by means of case-law the decision of a Member State to change the par value of its currency.

B — The second submission put forward by the applicants in order to attempt to establish the right to compensation which they claim to have is based on the provisions of Article 76 of the Staff Regulations. Article 76, you will remember, provides that ‘gifts, loans or advances may be made to officials, former officials or where an official has died, to those entitled under him who are in a particularly difficult position as a result inter alia of serious or protracted illness or by reason of family circumstances’. The actual wording of this article is sufficient to show that although it grants a power, it does not impose an obligation and that in any case it can only intend to solve individual cases. The applicants were indeed aware of the difficulty and seek to establish that in their particular position, this article should no longer be the basis of a rule making it possible to settle individual cases, but for the obligation to recognize far wider rights. But their arguments on this point are linked in fact to the third submission which they put forward according to which the spirit of the Staff Regulations, all the provisions thereof and the ‘obligation on the part of the official authority to exercise a duty of care towards its servants’ require the Communities to make good the loss for which they request compensation.

C — The third submission or the third group of submissions calls for a preliminary remark on my part. Much as I sympathize, as I have just indicated at the beginning of my opinion, with the sad human aspects of the effects of the revaluation of the mark on the position of certain officials of the European Communities of German nationality, and, moreover, much as I am prepared, as I shall do in a moment, to urge the Commission to examine these individual cases as favourably as possible, on the other hand, as I must tell the applicants quite frankly, I cannot subscribe either in detail or in principle to a certain conception of the European public service which appears to me perhaps wrongly, moreover, and in that case I apologize, to be reflected in some of the arguments they put forward in support of their view.

A priori two broad schemes governing the position of officials employed by the European Communities could be conceived:

1. a status of servants put at the disposal of the Communities by the national administrative authorities. Under such a scheme the salary of those servants would have been a salary expressed in national currency, possibly with the addition of certain compensatory payments, but in respect of which those servants would only have run risks or hazards, from the financial point of view, common to all their fellow countrymen and common in particular to all employees in their home country.

2. an independent status in which an official of the European Communities is in an entirely different position from that of officials in the public service in his home country, in which he enjoys a legal and factual position which has no connexion with that of those officials and which involves, by comparison with their position, privileges but also disadvantages.

The authors of the Treaty adopted this second concept in Article 212 of the Treaty, for reasons of the very nature of the Communities, as did the authors of the Staff Regulations.

In fact the latter laid down two basic principles:

(a) the obligation for the official to reside in his place of employment (Article 20).

(b) that his salary should be fixed irrespective of all national criteria and that this salary should be calculated in a single and previously defined monetary unit (Article 63).

I would take exception to any attempt to obtain recognition for a system which is a mixture of these two: a system in which officials are guaranteed a permanent salary expressed in the currency of their country of origin whilst retaining the privileges which remuneration in their place of work and in a monetary unit different from that of the country of which they are still citizens may offer them.

On the contrary, I am of the opinion that the independent system for officials of the European Communities does not in any way imply a sort of guarantee of exchange rates for the transfers which these officials may wish to make to their countries of origin.

Indeed, as recompense for their obligation to reside in their place of employment, the Staff Regulations, particularly Article 17 of Annex VII, have given them certain privileges in this respect.

These privileges consist essentially m the opportunity to transfer, in conditions which are in general more favourable than those available to ordinary individuals, certain sums earned by them in the service of the Communities up to a maximum amount equal to their expatriation allowance laid down in the Staff Regulations, which is the direct consideration for their duty of residence, and even possibly up to a maximum amount equal to the expenditure which this duty of residence indirectly causes them.

Indeed, the applicants rely upon this provision in support of their view but, in my opinion, Article 17 on the contrary rather tells against their arguments.

This provision is in fact a derogation from the general principles of the Staff Regulations which spring from the Community nature of the European public service.

In my opinion it follows that

— on the one hand this provision can only be given a restrictive interpretation,

— on the other it can only be extended or altered by an express provision.

On this last point the applicants rely upon proposals made by the Commission (OJ C 83 of 28.6.1969, p. 16) or intentions declared by it (OJ C 14 of 4.2.1970, p. 9), but:

(a) the Commission never envisaged an obligation to pay full and continuing compensation for exchange losses which officials may suffer in view of the changes in par values of the currencies between States, but only a relaxation of the present system enabling it in certain cases to take action in favour of those officials;

(b) moreover, and above all, these proposals have never up until now resulted in a decision of the Council, which is the only authority having a power to take decisions in that respect.

For these reasons I am therefore of the opinion that the third submission or the third group of submissions put forward by the applicants cannot be accepted. The fourth group of submissions is based on the claim that the applicants' right springs from the obligation imposed on the Community authorities to observe the principle of ‘equality of treatment between servants of the Communities’.

I have already expressed in a recent case the doubts which I have as to the very existence of and above all as to the scope which some people would like to attribute to this principle.

At all events, even if it exists, it does not seem to be able to be validly relied upon in this case, for three reasons.

1. In any case it could only apply as regards remuneration of officials working in the same place, that is for whom living conditions within the meaning given to this expression by Article 64 of the Staff Regulations are identical or closely related. But most of the examples which the applicants rely on refer to cases of servants of the Communities who, unlike themselves, were obliged to reside somewhere other than in Luxembourg, for example in England or in France.

2. A fortiori it could only apply to servants of the Communities; but certain examples upon which the applicants rely refer to servants of other international organizations, servants of NATO in Turkey etc. However, it is quite clear that although the work of the bodies responsible for examining the position of servants of other international organizations may constitute a very useful source of information for the Community authorities, the decision in this respect falls only to them and them alone.

3. Finally if it were accepted that a principle of ‘equality of treatment’ for servants could be invoked in this case, it would still have to be adapted so as to be reconciled with a principle, in my opinion even more fundamental of the European public service, that of non-discrimination between servants because of their national origins.

Clearly, a vast equalization scheme could be imagined in which officials who, because of their nationality, profit from certain changes in the par values of currencies, would convey all or some of that profit to those of their colleagues of other nationalities to whom other changes in the par values of currencies had caused losses.

Perhaps such a scheme would succeed in reconciling the principle of ‘equality of treatment’ and that of non-discrimination on the ground of nationality.

But in my opinion it would have little chance of being accepted; it seems Utopian and in any case it does not exist.

In these circumstances, I am therefore of the opinion that none of the submissions put forward by the applicants is well-founded.

However, before finishing, I would like to address the Commission.

It informed you that in certain individual cases revealed in these applications, it was prepared to make liberal use of the powers given to it under Article 76 of the Staff Regulations of Officials.

I should like to ask it to be particularly generous in this respect as to the number of persons granted assistance and as to the amount of assistance.

Moreover I would like to draw its attention to the case of retired officials which seems to me to be particularly deserving.

Having made these observations I submit:

1. that the applications should be dismissed,

2. That the parties should bear their own costs.

( 1 ) Translated from the French.