Christos Apostolidis and Others v Commission of the European Communities.
Date: 1999-10-05
19 As the Commission points out, it is clear from settled case-law of the Court of Justice that the purpose of Articles 64 and 65 of the Staff Regulations is to ensure that all officials of the same grade and step have equivalent purchasing power, wherever their place of employment, in accordance with the principle of equality of treatment (see, in particular, Case 194/80 Benassi v Commission [1981] ECR 2815, paragraph 5; Case C-301/90 Commission v Council [1992] ECR I-221, paragraph 22).  As the Advocate General has pointed out at paragraph 101 of his Opinion, it is undisputed that, during the period in question, the cost of living in Karlsruhe was considerably lower than that in Berlin.  Therefore, to apply to the remuneration of staff employed in Karlsruhe a weighting calculated by reference to the cost of living in Berlin would be contrary to the purpose of those articles of the Staff Regulations.
26 It should be pointed out that, following the reasoning of the case-law of the Court of Justice, it is for the Council, pursuant to Article 65(2) of the Staff Regulations, to determine whether there is an appreciable difference in the cost of living between the various places of employment and, if so, to draw the appropriate conclusions (see Case 59/81 Commission v Council [1982] ECR 3329, paragraph 32; Case C-301/90 Commission v Council [1992] ECR I-221, paragraph 24).  In that respect, it should be noted that the Council does not have any margin of discretion as to the need to introduce a specific weighting for a place of employment if, as in this case, the cost of living there is appreciably lower than in the capital.
27 As regards the first of the three possibilities which, in the applicants' submission, were open to the Commission in order to comply with the Chavane de Dalmassy judgment, this Court finds that the Court of First Instance was right in holding, at paragraphs 99 to 103 of the contested judgment, that the applicants could not oblige the Commission to bring an action for failure to act without jeopardising the margin for manoeuvre inherent in the discretion which the Commission has under Article 175 of the EC Treaty (now Article 232 EC) (see, by analogy, Case 247/87 Star Fruit v Commission [1989] ECR 291, paragraphs 10 to 14).
29 As for the third possibility open to the Commission, namely to establish a dialogue with the applicants concerning the implementation of the Chavane de Dalmassy judgment, the Court of First Instance rightly found, at paragraph 74 of the contested judgment, that, failing the adoption of new rules by the Council, the Commission was unable to apply a weighting to the applicants' remuneration other than that laid down by the rules in force.  That inability, as the Court of First Instance found, undoubtedly constituted a `particular difficulty' in implementing the Chavane de Dalmassy judgment, and, in such a situation, it is for the institution concerned to take a decision of a nature such as to provide fair compensation for the disadvantage which has resulted for the persons concerned by the decision which has been annulled (see Case C-412/92 P Parliament v Meskens [1994] ECR I-3757, paragraph 28).  The Court of First Instance was therefore right in holding, at paragraph 75, that, as it was not disputed that the applicants had obtained overall, during the period from January 1992 until 1 July 1994, the application to their remuneration of a weighting higher than that which they would have obtained if the Council had already amended the rules in force, such a disadvantage had not been demonstrated.