CELEX: 61981CC0198
Language: en
Date: 1982-10-14 00:00:00
Title: Opinion of Mr Advocate General Reischl delivered on 14 October 1982. # Fernando Micheli and others v Commission of the European Communities. # Officials - Differential allowance. # Joined cases 198 to 202/81.

OPINION OF MR ADVOCATE GENERAL REISCHL
      DELIVERED ON 14 OCTOBER 1982 (
            1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      The applicants in the joined staff cases with which this opinion is concerned have all been employed by the Commission since 1977 or 1978 as operators of interpretation equipment (“opérateurs d'installations d'interprétation”). They were originally recruited as temporary staff or auxiliary staff and in due course, after passing an internal competition based on tests for the creation of a reserve list for clerical assistants in Grade C 4/C 5 (COM/C/4/78), were appointed, with effect from 1 March 1980, as established officials. Messrs. Parlante, Brocean and Lattanzio were classified in Grade C 5 and Messrs. Micheli and Labate in Grade C 4.
      In November 1977, before the expiry of their probationary period, they lodged a complaint pursuant to Article 90 of the Sufi Regulations to the effect that the only post and grade appropriate to their duties, viewed objectively, were those of clerical officer. Their complaints were rejected by the appointing authority on the ground that the competition notice in question had referred only to the recruitment of clerical assistants in Grade C 4/C 5 and not of clerical officers in Grade C 2/C 3. The applicants failed to bring an action within the prescribed period and the decisions classifying them were then no longer subject to review.
      On 25 April 1980 the applicants followed a different procedure by submitting requests pursuant to Article 90 (1) of the Staff Regulations for the grant of the differential allowance provided for in Article 7 (2) of the Staff Regulations. The requests were rejected, some by express decision and some by implied decision and the applicants then lodged a complaint through official channels pursuant to Article 90 (2) of the Staff Regulations. That complaint was ultimately rejected by express decision of the Member of the Commission with responsibility for staff matters in a memorandum of 8 April 1981.
      On 3 July 1981 the officials concerned brought an action seeking annulment of the Commission's decision of 8 April 1981 and an order that the defendant should pay them, as from the day on which they took up their duties or at least from the date of their appointment as officials, a differential allowance or compensation equal to the difference between the remuneration actually received by them and the remuneration which they ought to have received for the performance of the duties of operator of interpretation equipment, together with interest thereon.
      Before I consider whether these claims are well founded, I should point out that the suggestion might certainly be made that the action is wholly inadmissible because it is brought in this case by an indirect means, namely a request for the differential allowance provided for in Article 7 (2) of the Staff Regulations in order ultimately to secure a de facto reconsideration of the classification of the applicants, which is no longer subject to review. Since the defendant has not, however, resorted to an obstructive defence of that kind and since—at least de jure — the aim pursued is different from that of the original approaches through official channels, I consider it appropriate to express my own views on the matter.
      1. Annulment of the decision of 8 April 1981
      
               (a)
            
            
               In support of their claim, the applicants state that the Commission has infringed Article 5 (3) of the Staff Regulations and contravened the principle of equal pay for equal work, in so far as it pays less to the applicants than to other officials employed by the same insutution or by other institutions who perform comparable duties.
               Even if it is conceded that the Commission is right in its assertion that the provision in question, according to which “Identical conditions of recruitment and service career shall apply to all officials belonging to the same category or the same service”, is not intended to guarantee the same remuneration for officials who perform comparable duties, it is fundamentally incontestable that the principle of equal treatment must be taken into account in the rules governing the staff of the Communities. As the Court has emphasized on several occasions, inter alia in the Boursin (
                     2
                  ) case, a particular aim of the principle embodies in Article 5 of the Staff Regulations that an official's grade must correspond to the duties performed by him is to avoid inequality of treatment as between officials to whom duties of a legally comparable nature have been assigned.
               However, contrary to the view held by the applicants, it is not possible to treat every case of different treatment as a breach of that prohibition of discrimination. On the contrary, as the Court has always made clear, a breach of the principle of equal treatment is only to be presumed when the difference of treatment is not objectively justified.
               
               A difference of treatment may however, notwithstanding a similar description for a given activity, be justified in particular on grounds relating to the quality and quantity of the work done. Accordingly, it is inappropriate to complain about the fact that operators of interpretation equipment who, as in the case of those employed by the Commission in Luxembourg, form a small team of six officials and therefore must, if the need arises, deputize for one another are in a better situation as regards salary than some operators employed by the Commission in Brussels where at least 22 officials are available to carry out the duties required.
               The comparison made by the applicants with the technicians working for the Parliament is also to be seen in that light. In this case also it is evident that the different scope of the duties, particularly in view of the amount of interpretation equipment involved, may justify different treatment of the technicians. Moreover, the different demands of the post are also reflected in the qualifications required for it. Thus in its Notice of Competition No COM/C/4/78 for the drawing up of a reserve list for clerical assistants the Commission merely required knowledge of radio-technology whilst the Parliament, in an equivalent Notice of Open Competition (PE 75/C — Official Journal 1979, C 249 of 20. 10. 1978, p. 8) for clerical officers (technicians) in Grade C 3 required a technical diploma in radio-electńcity.
               Finally, it likewise does not follow from the comparison drawn by the applicants between their own position and that of officials of the same branch in Brussels that the Commission has breached the principle of equal pay for equal work by according the latter a higher classification. In this connection it may still be an open question whether, although their duties are similarly described, those officials actually undertake work which is more demanding since in any case a different classification on account of differing seniority and age and the resulting experience is objectively justified. A glance at the list produced by the Commission of the staff employed by it as operators of interpretation equipment clearly shows that the Commission took those criteria into account. Thus the average seniority of the technicians in Grade C 5 is five years, that of those in Grade C 4 is six years, that of the C 2 officials is 18 years and that of the C 1 officials is 18 Vi years. To take another example, the age of the C 5 technicians is under 30 years, whilst the C 1 officials are over 40 years old. If the officials with scant experience of life and the service were from the outset to be accorded the same classification as older officials entrusted with comparable duties, advancement within the same category would be impossible.
            
         
               (b)
            
            
               In support of their claims the applicants also allege that the incorrectness of the decision whereby the Commission refused to grant them a differential allowance is also apparent from the description of the duties and powers attaching to each basic post drawn up by the Commission in accordance with Anide 5 (4) of the Staff Regulations and published in Staff Courier No 272 of 4 September 1973. It is to be inferred from that description, they claim, that the duties of an operator of interpretation equipment may only be undertaken by a clerical officer in Grade C 2/C 3 and not by a clerical assistant in Grade C 4/C 5.
               That this argument is also unsound is, however, apparent from the fact that, as is clearly shown by the words “in particular” preceding each description of duties, that list is to be regarded as merely illustrative and not limitative. If the applicants' view were correct, it would entail the consequence that a particular task could only ever be undertaken by officials belonging to one and the same grade. It is apparent from the description of the duties in question, however, that the same duties may be undertaken by officials who belong to different grades and only the nature of their qualifications or the extent of their experience is decisive for their differing classification.
            
         
               (c)
            
            
               Finally the Commission is charged with failing to grant a differential allowance and thus contravening Article 7 (2) of the Staff Regulations, breaching the principle of fairness and lastly failing in its duty of assistance towards its officials.
               As the Court has made clear on several occasions, inter alia in the Küster (
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                  ) and Grosz, née Lampe (
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                  ) cases, the application of that provision requires an express decision of the appointing authority since it involves in relation to the official an entitlement to specific benefits from the administration. Independently of the fact that the applicants, as has been seen, do not undertake any more important duties than those which may be required of officials of their grade, what is lacking in this case in any event is an express instance of “assignment to duties” of that kind. Moreover, the application of that provision presupposes, as may be inferred from the Prelle (
                     5
                  ) judgment, that the duties temporarily undertaken are substantially different from those associated with an official's own post. Such a difference cannot be assumed in the present case — even if it were conceded that the other principal factual requirements were satisfied.
               In view of the legal position described above, I am unable to see in what way the Commission is alleged to have breached the principle of fairness and its duty to assist its officials by withholding a differential allowance.
            
         2. The claim for compensation
      Apart from the other heads of claim, the applicants put forward the view that in the organization of its departments the Commission is guilty of maladministration in two instances and therefore is under an obligation to pay the claimed differential allowance or compensation by way of damages. They allege first that the Commission underestimated the real significance of the duties assigned to the applicants and their responsibility and secondly that it has not employed any Grade C 3 clerical officers as operators of interpretation equipment. Consequently, the applicants, whose immediate superior is an official in Grade B 1, have in fact had to carry out the duties of clerical officers.
      However, that argument is undermined by the fact that, as the Court has consistently emphasized in its decisions, each institution prepares its own list of posts independently and has wide discretionary powers regarding the organization of its departments. Since the applicants have not successfully proved that their present duties do not correspond to those of a clerical assistant classified in a grade in Career Bracket C 4/C 5, the Commission cannot be alleged to have misused its powers.
      As has already been seen, the same duties may in addition be undertaken by officials who belong to different grades in a category. In particular, there is nothing in the Staff Regulations justifying the assumption that appointment to a grade depends on whether or not the next grade above is occupied. In any case, the opposite view cannot, contrary to the applicant's argument, be inferred from the judgment of the Court in Klaer, (
            6
         ) in which the matter at issue was whether an official in Grade A 1 could be subordinated to another official in that grade. Approving the description of duties adopted by the High Authority the Court held in that respect only that the holder of a post is in principle subordinate to an official in the next higher grade.
      Quite apart from the foregoing legal considerations, it must be stated that, as has been seen, the Commission employs seven operators of interpretation equipment in Grade C 2 who are classified in the same career bracket — C 2/C 3 — as clerical officers.
      
               3.
            
            
               Since therefore all applicants' claims are unfounded, I propose that the actions be dismissed and that an order as to costs be made in accordance with Article 70 of the Rules of Procedure.
            
         (
            1
         )	Translated from the German.
      (
            2
         )	Judymem ot 17 Dcctmbtr 1964. Case 102/63 Bonnin v High Authority of the ECSC (1964) ECR 691.
      (
            3
         )	Judgment of 12 March 1975, Cile 2J/74 Kutter v European Parliament [1975) ECR 353.
      (
            4
         )	Judgment of 9 July 1970, Case 35/69 Ctoja nee Limpe v Commission of the European Communities [1970] ECR 609.
      (
            5
         )	Judgment of 16 December 197C. Case 5/70 Maurice Prelle v Commiiíion oi the European Commumtieţ [197:] ECR 1075.
      (
            6
         )	ludemeni oí 15 December 1965. Case 15/65 Werner Klaerv Hieh Authority ot the £CÍC[I96S] ECR IC45.