JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

26 May 1998

Case T-177/96

Mario Costacurta

v

Commission of the European Communities

‛Officials — Remuneration — Weighting — Special derogations applying to officials posted to nonmember countries — Contrary to the principles of equivalence of purchasing power and equal treatment’

Full text in French II-705

Application for:

first, annulment of the Commission's decision of 22 July 1996 refusing the applicant the weighting for Zaire while he was posted to the Commission's delegation in that country and, second, compensation for the consequent harm.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant has held the post of administrative and financial assistant in the Commission's delegation in Kinshasa (Zaire) from March 1993. At that time the weighting for Zaire was 97.49.

By Regulation (ECSC, EC, Euratom) No 2403/94 of 29 September 1994 determining the weightings applicable to the remuneration of officials posted in third countries (OJ 1994 L 257, p. 1), the Council determined the weighting for Zaire at 117.66 with effect from 1 January 1993. The weightings for Zaire were subsequently the subject of the following adjustments, published in Administrative Notices No 907 of 8 September 1995:

— 109.93 with effect from 1 March 1993;

— 216.22 with effect from 1 April 1993;

— 243.34 with effect from 1 May 1993;

— 247.13 with effect from 1 June 1993.

In consequence of a memorandum drawn up by the Statistical Office of the European Communities (Eurostat) on 15 November 1993, the Commission made no further proposals to determine new weightings for Zaire. Eurostat stated in that memorandum that the statistical value of the information available for the calculation of parities for Zaire was dubious. By Regulation (EC, Euratom, ECSC) No 793/95 of 31 March 1995 determining the weightings applicable to the remuneration of officials serving in third countries (OJ 1995 L 80, p. 1), the Council determined the weightings for Zaire, with effect from 1 July 1993, at 0.00, with the comment ‘not available’. This information was communicated to the Commission staff in Special Administrative Notices of 31 October 1995.

By note of 19 October 1995 the applicant requested the appointing authority to transfer each month from January 1996 a sum in the currency of the country of employment, the new Zaire, corresponding to BFR 40000, subject to the weighting of 247.13.

By note of 10 November 1995 the applicant, relying on Articles 12 and 13 of Annex X to the Staff Regulations of Officials of the European Communities (Staff Regulations), requested that the weightings be applied retroactively to the monthly amount of BFR 60000 for the period March 1993 to December 1995.

By note of 14 November 1995 the appointing authority rejected the applicant's request of 19 October 1995 on the ground that the Council had no longer determined the weighting for Zaire since 1 July 1993.

On 22 November 1995 the applicant repeated his requests of 19 October and 10 November 1995. In respect of the transfers to be made in and after January 1996 he asked that a monthly amount of BFR 100000 subject to the weighting of 247.13 be paid in the event that the the appointing authority should opt for the application of the second paragraph of Article 12 of Annex X to the Staff Regulations. His requests went unanswered.

On 16 February 1996 the applicant filed a complaint under Article 90(2) of the Staff Regulations, which was registered on 20 February 1996. It was not until 22 July 1996 that the appointing authority took an express decision rejecting the complaint; the decision reached the applicant in Kinshasa on 13 August 1996.

Admissibility

An action for compensation is directly linked with the action for annulment, since it seeks compensation for damage resulting from the acts in respect of which annulment is sought. Where there is a direct link between an action for annulment and an action for compensation the latter action is admissible as incidental to the action for annulment (paragraph 26).

See: T-17/90, T-28/91 and T-17/92 Cámara Alloisio and Others v Commission [1993] ECR II-841, para. 46, and the case-law cited there

Substance

Claims for annulment

In support of his action the applicant relies on three pleas in law. The first alleges an infringement of Articles 12 and 13 of Annex X to the Staff Regulations, the second a breach of the applicant's financial rights and a failure to have regard for his welfare, and the third an infringement of the principle of nondiscrimination and the right to equal treatment. Since these pleas are related they must be examined together.

Although the remuneration of officials posted to nonmember countries is in principle paid in Belgian francs in Belgium and subject to the appropriate weighting, payment of remuneration may exceptionally, in accordance with Article 12 of Annex X to the Staff Regulations, be made in whole or in part in the country of employment, subject to the weighting for that country, or in a currency other than that of the place of employment, according to the appropriate rales designed to ensure the maintenance of purchasing power. The principle of equivalence of the purchasing power of all officials, irrespective of their place of employment, underlies that provision and reflects the principle of equal treatment.

Although Article 12 of Annex X confers on the appointing authority a wide discretion to determine the extent to which it must grant a request made by an official on the basis of that provision, that discretion must be exercised in conformity with the general principles of law and the rules laid down in the Staff Regulations (paragraphs 43 to 47).

See: T-47/91 Auzat v Commission [1992] ECR II-2535, para. 38; T-75/91 Scaramuzza v Commission [1992] ECR II-2557, paras 17 to 19

The legality of a decision taken in application of Article 12 of Annex X to the Staff Regulations can only be validly disputed if the applicant establishes that the appointing authority has infringed one of those rules (paragraph 46).

In the present case the prices of the range of products referred to in the documents produced by the applicant show that the fact that his remuneration was paid in Belgian francs throughout the period in question, in application of Article 11 of Annex X to the Staff Regulations, did not reduce his purchasing power in comparison with that of other officials. It follows that the contested decisions do not prejudice his financial interests (paragraph 54).

Claims for compensation

It is settled law that non-contractual liability on the part of the Community supposes that the applicant proves the illegality of the allegedly wrongful act committed by the Community institution, the actual harm suffered and the existence of a causal link between the act and the damage alleged to have been suffered. A claim by an official for compensation for the harm caused by an act committed by the administration which has damaged his financial interests must be rejected where the illegality of the act has not been established (paragraphs 60 and 61).

See: T-3/92 Latham v Commission [1994] ECRSC II-83, para. 63; T-589/93 Ryan-Sheridan v EFILWC [1996] ECRSC II-77, para. 141

Operative part:

The application is dismissed.