Case C-485/08 P: Appeal brought on 11 November 2008 by Claudia Gualtieri against the judgment of the Court of First Instance (Fourth Chamber) of 10 September 2008 in Case T-284/06 Gualtieri v Commission
Date: 2008-11-11
Institutions: Court of Justice
Subjects: European Commission, European official, action by staff, allowances and expenses, appeal, equal pay, equal treatment, regulations for civil servants

7.2.2009

EN

Official Journal of the European Union

C 32/15

Action brought on 10 November 2008 — United Kingdom
of Great Britain and Northern Ireland v Council of the
European Union

(Case C-482/08)

(2009/C 32/24)

Language of the case: English

The annulment of the VIS Police Access Decision is accordingly
sought on the grounds
the United
Kingdom from its adoption entails the infringement of an essen-
the
tial procedural requirement and/or
Treaty, within the meaning of Article 35(6) EU.

the infringement of

the exclusion of

that

(1) OJ L 218, p. 129.

Parties

Applicant: United Kingdom of Great Britain and Northern
Ireland (represented by: V. Jackson, Agent, T. Ward, Barrister)

Defendant: Council of the European Union

Appeal brought on 11 November 2008 by Claudia Gualtieri
against the judgment of the Court of First Instance (Fourth
Chamber) of 10 September 2008 in Case T-284/06 Gualtieri
v Commission

The applicant claims that the Court should:

— annul Council Decision 2008/633/JHA of 23 June 2008
concerning access for consultation of the Visa Information
System (VIS) by designated authorities of Member States and
by Europol for the purposes of the prevention, detection
and investigation of terrorist offences and of other serious
criminal offences (1);

— determine, following the annulment of the VIS Police Access
Decision, that its provisions should remain effective, except
in so far as they have the effect of excluding the United
Kingdom from participating in the application of the VIS
Police Access Decision;

— order the Council of the European Union to pay the costs of

the proceedings.

Pleas in law and main arguments

The United Kingdom was denied the right to take part in the
adoption of the VIS Police Access Decision on the grounds that
the Council considered that the measure constitutes a develop-
ment of provisions of the Schengen acquis in which the United
Kingdom does not take part — namely the common visa policy.
As a consequence,
the United
Kingdom is not bound by the Decision or subject to its applica-
tion.

the Council considers that

The United Kingdom contends that the Council was wrong to
conclude that the Decision constitutes a development of provi-
sions of the Schengen acquis in which the United Kingdom does
not take part. The VIS Police Access Decision is not a develop-
ment of the common visa policy, but rather, a police coopera-
tion measure. Neither the aim nor the content of the VIS Police
Access Decision relate to the common visa policy. Rather it is
entirely concerned with the sharing of information entered by
visa authorities with designated law enforcement authorities and
Europol for the purpose of prevention, detection and investiga-
tion of terrorist offences and other serious offences. This is
reflected in the Council's choice of
legal basis, namely Arti-
cles 30(1)(b) and 34(2)(c) TEU.

(Case C-485/08 P)

(2009/C 32/25)

Language of the case: Italian

Parties

Appellant: Claudia Gualtieri
M. Gualtieri, avvocati)

(represented by: P. Gualtieri and

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— Dismiss all other claims, defences and pleas in law;

— make the appropriate findings and orders;

— uphold the pleas in law concerning the various questions
dealt with and grant each of the forms of order relating to
them, which are repeated in full, in any event, herein;

— state the principles of

law that the relationship between
seconded national experts (‘SNE’) and the Commission of
the European Communities is one of employment compar-
able to that of temporary staff and that the corresponding
allowances paid to SNE are in the nature of remuneration;

— declare that, under Community law, there should be equal
pay for equal work and that, in any event, the payment to
married persons of any remuneration different from that
paid to single or co-habiting persons gives rise to discrimi-
nation against members of a family as defined by law;

C 32/16

EN

Official Journal of the European Union

7.2.2009

— in the

that

alternative, declare

the allowances under
Article 17 of the Decision on SNE are payable in full to the
appellant from the date of her separation in fact or from the
lodgement of the divorce agreement before the Tribunal de
Bruxelles;

— consequently set aside, in full or in part, the judgment under
the
appeal delivered by the Court of First
European Communities on 10 September 2008 and served
on the following day, and uphold and grant, in full or in
part, the claims and forms of order sought at first instance
and on appeal, or refer the case back to the Court of First
Instance for it to make all necessary decisions on the merits;

Instance of

— order the Commission of the European Communities to pay
all the costs of the proceedings both at first instance and on
appeal or, in the alternative, those of the proceedings at first
instance.

Pleas in law and main arguments

suspended throughout

First of all, it is indisputable and clear on the basis of all the
provisions governing the legal status of SNE that the link with
the administration of origin is
the
secondment, and that during that period the national expert is
for the
fully integrated into the Commission's organisation,
exclusive benefit of which the expert is required to perform his
or her specific duties, with the consequent obvious equiparation
(more precisely: identity) of his or her legal position to that of
staff (at least temporary staff) who are, in their turn, equiparated
to officials as regards conditions of employment and matters of
remuneration.

For that reason, and by virtue of the provisions of Article 141(2)
EC (under which the concept of ‘pay’ includes any other considera-
tion, whether in cash or in kind, which the worker receives
directly or
from his
indirectly in respect of his employment,
employer), which is a rule that takes precedence over Article 17
of the Decision on SNE, and of the Staff Regulations of officials
and other servants of the European Union [sic] (third paragraph
of Article 62: ‘remuneration shall comprise basic salary, family
allowances and other allowances’), the corresponding allowances
paid to SNE are in the nature of remuneration, like the equiva-
lent allowances to which officials and other staff are entitled.

The appellant therefore submitted that there was a general prin-
ciple enshrined, in Community and other law, that there should
be equal pay for equal work, which is apparent from the provi-
sions of Article 14 of the ECHR, from Directive 2000/43/EC (1)
of 29 June 2000,
of
27 November 2000 and from Articles 3(2), 136, 137(1)(i)
and 141(1) EC.

from Directive 2000/78/EC (2)

On the other hand, the interpretation followed by the Court of
First Instance leads to two workers who perform the same work
being paid unequally if the spouse of one of them is already
resident in Brussels on the date of
the act of secondment,
causing serious discrimination against members of a family as

defined by law,
in spite of the strong protection which the
family receives in national and international legislation, and the
tendency of the laws of the various Member States, of the Staff
Regulations (Article 1(1) and (2)(c) of Annex VII) and of the
case-law of the European Court of Human Rights to equiparate
cohabitation to it.

Moreover, the allowances should have been paid in full, at the
very least, from the date of cessation of cohabitation, since there
is no indication, in the rules, of the alleged necessity to refer to
the starting point of the relationship, without taking account of
later changes.

As regards the plea of illegality of Article 20 of the Decision on
SNE, the appellant submitted, referring to Article 241 EC, that
the grounds of fact and law on which that plea was based were
set out in fully detailed and easily comprehensible fashion, so
that the respondent had raised no objection, and that the refer-
ence to the said Article 241 EC was clearly intended to obtain,
in any event, a decision on the disputed issues, even on the
contested basis that the action was out of time.

In addition, the appellant withdrew the plea in law concerning
breach of the principle of legitimate expectations and applied
for variation of the decision on the costs of the proceedings,
which, under Articles 87 and 88 of the Rules of Procedure of
the Court of First Instance, should have been fully recovered.
Finally, she asserted that the fact that the Court of First Instance
had considered and decided the dispute on the merits was
unequivocal recognition of the action's admissibility, which can
no longer be put in issue at this stage.

Having stated the principles of law according to which the rela-
tionship between SNE and the Commission is one of employ-
ment, comparable to that of temporary staff, and that the allow-
ances paid to SNE are remuneration, the appellant therefore
claims that the Court should declare that, under Community
law, there should be equal pay for equal work and that, in any
event, the payment to married persons of any remuneration
different from that paid to single or co-habiting persons leads to
discrimination against members of a family as defined by law
or, in the alternative, that the allowances under Article 17 of
the Decision on SNE are payable in full to the appellant from
the date of her separation in fact or from the lodgement of the
divorce agreement before the Tribunal de Bruxelles.

(1) Council Directive 2000/43/EC of 29 June 2000 implementing the
principle of equal treatment between persons irrespective of racial or
ethnic origin (OJ 2000 L 180, p. 22).

(2) Council Directive 2000/78/EC of 27 November 2000 establishing a
general framework for equal treatment in employment and occupa-
tion (OJ 2000 L 303, p. 16).