JUDGMENT OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

20 February 2009

Joined Cases T-359/07 P to T-361/07 P

Commission of the European Communities

v

Marli Bertolete and Others

(Appeal – Civil service – Contract staff of OIB – Former salaried employees under Belgian law – Change of applicable regime – Commission decisions fixing remuneration – Equal treatment)

Appeals: brought against the judgments of the Civil Service Tribunal of the European Union (Second Chamber) of 5 July 2007 in Case F-26/06 Bertolete and Others v Commission [2007] ECR-SC I-A-1-0000 and II-A-1-0000; Case F-24/06 Abarca Montiel and Others v Commission [2007] ECR-SC I-A-1-0000 and II-A-1-0000; and Case F-25/06 Ider and Others v Commission [2007] ECR-SC I-A-1-0000 and II-A-1-0000, seeking to have those judgments set aside.

Held: The judgments of the Civil Service Tribunal of the European Union (Second Chamber) of 5 July 2007 in Case F-26/06 Bertolete and Others v Commission [2007] ECR-SC I-A-1-0000 and II-A-1-0000; Case F-24/06 Abarca Montiel and Others v Commission [2007] ECR-SC I-A-1-0000 and II-A-1-0000; and Case F-25/06 Ider and Others v Commission [2007] ECR-SC I-A-1-0000 and II-A-1-0000 are set aside. The actions brought by the applicants at first instance, namely Marli Bertolete and the eight other members of the contract staff of the Commission, Sabrina Abarca Montiel and the 19 other members of the contract staff of the Commission, Béatrice Ider, Marie-Claire Desorbay and Lino Noschese, are dismissed. The applicants at first instance and the Commission are ordered to bear their own costs.

Summary

1. Officials – Contract staff – Remuneration – Definition

(Staff Regulations, Art. 62 et seq.; Conditions of Employment of Other Servants, Art. 19 et seq., Art. 92, and Annex, Art. 2(2))

2. Officials – Contract staff – Remuneration – Compensation for the reduction in remuneration of staff previously employed under rules of national law

(Conditions of Employment of Other Servants, Annex, Art. 2(2))

3. Officials – Conditions of Employment of Other Servants – Equal treatment – Application to a transitional regime

1. In view of the fact that the concept of remuneration as defined in Article 62 et seq. of the Staff Regulations and applicable to contract staff previously employed under rules of national law pursuant to Article 19 et seq. of the Conditions of Employment of Other Servants, read in conjunction with Article 92 of those Conditions of Employment, includes family allowances, the obligation for the institutions, under Article 2(2) of the Annex to the Conditions of Employment, to take account of current differences between the fiscal, social security and pension legislation of the Member State of employment and the provisions applicable to the contract staff member, must be construed as meaning that, where those institutions intend to compensate for any reduction in remuneration undergone by those transferring to the regime of Community contract staff, they must take into consideration all the elements constituting the concept of remuneration. In order to do so, they are therefore required to take account of specific features of the national fiscal, social security and pension law previously applicable which may affect the level of remuneration as defined in the Community Staff Regulations, even though any financial advantages resulting from those specific features do not necessarily constitute components of remuneration under national law. Consequently, Article 2(2) of the Annex to the Conditions of Employment of Other Servants requires the institutions, where they take the discretionary decision to compensate for a reduction in remuneration, to take into consideration, when calculating the additional sums, all the salary, fiscal and social benefits under national law which, in the applicable Community legislation, would be covered by the concept of remuneration. Therefore, the fact that the institution has included family allowances as defined in national law, which are a social benefit paid by the State rather than part of the remuneration paid by the employer, in calculating the additional sums granted to the staff concerned constitutes a correct application of Article 2(2) of the Annex to the Conditions of Employment of Other Servants.

(see paras 45-47)

See: 186/85 Commission v Belgium [1987] ECR 2029, paras 26 and 29; 189/85 Commission v Germany [1987] ECR 2061, para. 18

2. In order to apply the principle of equal treatment when it comes to determining the additional sums to be paid to staff previously employed under rules of national law after they have transferred to the regime of Community contract staff, the institution must compare the situations in question in the light of the purpose of Article 2(2) of the Annex to the Conditions of Employment of Other Servants, which is intended to maintain the level of the previous remuneration as defined in the Staff Regulations, in other words, the total previous remuneration including family allowances, and to convert it into remuneration as provided for in the Staff Regulations. In conducting that comparison in the light of the purpose of the applicable provisions and the definition of remuneration in the Community Staff Regulations the institution must thus take account of the respective family situations of the persons concerned and, in particular, whether or not they have children. From both a factual and a legal point of view, at the time when they transfer to the regime for contract staff provided for in Article 7(1) and Article 8(1) of the general implementing provisions for the transitional measures applicable to staff employed by the Office for Infrastructure and Logistics in Brussels, the family and salary situation of a person who has one or more children is fundamentally different from that of a person without children, since the latter is not entitled, either under the previous national contractual regime or under the Community Staff Regulations, to family allowances for dependent children as a specific component of their remuneration. On the contrary, the separate family and salary situations of these two categories of persons constitutes a relevant criterion for differentiating between them, which the institution cannot lawfully overlook in the light of the purpose of the applicable rules.

(see paras 50-51)

3. The application of the principle of equal treatment to a transitional regime requires the institution to take account of the personal situation of all those concerned at the exact moment when their status changes, since that change constitutes a significant caesura which is likely to change all their rights and obligations substantially. If that were not the case, the Community institutions would, in order to observe the principle of equal treatment in such a situation of ad hoc change in the status of those concerned, have to take into consideration, when adopting measures of general application, hypothetical changes in the personal situation of each of those individuals, thereby imposing on the institutions an excessive and impracticable requirement to conduct a prospective, comparative review. That assessment is, however, subject always to the need to check the personal situation of the staff members concerned at regular intervals, and, if necessary, to remedy any future inequalities between persons who are, at this later stage, in similar or identical situations.

(see para. 54)

See: T-435/04 Simões Dos Santos v OHIM [2007] ECR-SC I-A-1-0000 and II-A-1-0000, para 90 et seq.