C-63/70

Commission of the European Communities, represented by its Legal Adviser, Jürgen Utermann, with an address for service in Luxembourg at the offices of Émile Reuter, 4 boulevard Royal,

defendant,

Application for compensation for losses which have been suffered and will have to be suffered because of the revaluation of the Deutschmark,

THE COURT (First Chamber),

composed of: A. M. Donner (Rapporteur), President of Chamber, R. Monaco and J. Mertens de Wilmars, Judges,

Advocate-General: A. Dutheillet de Lamothe Registrar: A. Van Houtte

I — Summary of facts and mal course. The defendant did not sub­ procedure mit a rejoinder. After hearing the report of the Judge- The facts which form the basis of the Rapporteur and the views of the Ad­ action and the procedure may be sum­ vocate-General, the First Chamber of marized as follows: the Court decided to open the oral pro­ With effect from 27 October 1969, the cedure without instituting a preparatory Deutschmark was revalued, the result inquiry. of which was to increase its official par The parties presented oral argument at value in relation to the Belgian franc the hearing on 1 April 1971. from Bfrs 12.50 to Bfrs 13.66. There­ The Advocate-General delivered his fore, servants of the Communities who opinion at the hearing on 5 May 1971. had taken on obligations in Deutsch­ marks but whose place of employment is not in the Federal Republic of Ger­ II — Conclusions of the many were compelled to devote larger parties sums of money in Belgian francs for transfers relating to these obligations. The applicants claim that the Court Since approaches to the Commission to should: obtain compensation for the losses re­ (a) order the Commission of the Euro­ sulting from this change were without pean Communities to pay as com­ success, on 16 July 1970 the applicants pensation for loss of income from submitted a complaint under Article 90 15 November 1969 to 15 Novem­ of the Staff Regulations. Finding that ber 1970 specified sums to each ap­ the Commission had not replied to this plicant in accordance with the cal­ complaint within the prescribed period culation annexed to his application: of two months, the applicants lodged (b) declare that the defendant must the present applications against the im­ moreover pay the applicants in the plied decision rejecting their complaint future sums of money to compen­ on 16 November 1970. sate for loss of income; Article 76 of the Staff Regulations of (c) order the defendant to bear the costs. Officials, the provision upon which the The applicant in Case 65/70 (Mr Wer­ applicants rely in particular, reads as ner Horn) claimed in addition to the follows: abovementioned conclusions that the Court should: "Gifts, loans or advances may be made to officials, former officials or where 'urge the defendant to insert in the an official has died, to those entitled next edition of the Staff Regulations under him who are in a particularly a provision making the employer of difficult position as a result inter alia officials of the European Communities of serious or protracted illness or by generally responsible for all financial reason of family circumstances.' risks.'

III — Submissions and argu possibility of measures of compensation ments of the parties for servants of the Communities where the par values were changed. The submissions and arguments of the The applicants claim that in so far as parties may be summarized as follows: the provisions of the Staff Regulations and the annexes thereto which relate to A — Admissibility the emoluments of officials cannot be The defendant does not contest the ad adapted to the abovementioned principle, missibility of the applications.

Although, however, the applica peal through official channels was lodged tion of Article 76 comes in principle with the administration and that, on the within the discretionary power of the other, they are too general to be able Community authorities, in this case the to form the subject-matter of an appli margin of discretion is in fact particu cation. larly narrow in view both of the prin ciple of the duty of care towards its B — Cm the substance of the case officials on the part of the public author The applicants consider that the Com ity and of the prohibition on any dis mission, by refusing to compensate them crimination between different groups of for the loss of revenue which the re

Council's consent. Both when the florin many each month both to fulfil certain and the Deutschmark were revalued in standing commitments which they have 1961 and when the Deutschmark was taken upon themselves there and to dis revalued in 1969, it had sought from charge certain family obligations, the the Council on the basis of the Coun change in the par value of the Deutsch cil's 'declaration of intent' of 1960, mark involves a loss of income for them quoted by the applicants, measures of and places them in a particularly diffi compensation for officials affected by cult position. these changes in par values.

BODE v COMMISSION

With regard mission to the effect that these transfers to the remainder of their obligations, were henceforth carried out on the basis they were obliged to buy the necessary of a corresponding part of the salary, foreign currency on the open market expressed in Belgian francs, and no where, since the end of 1968, the rate longer, as had been the case until then, for the Deutschmark was sometimes by calculating them on the basis of the much higher than the official rate. national currency of the country where Finally, the defendant adopts a definite the official was carrying out his duties, viewpoint on certain particular cases in which the salary was in principle among those in the present cases in paid in accordance with Article 17 (1) which very heavy losses owing to the of Annex VII. The defendant points revaluation were declared, losses which out that, although the result of these do not seem to rule out the possible decisions was that those concerned did application of Article 76 of the Staff not have to sustain completely the nega

More par values as the basis for the pay over, the argument which the applicants ment of salaries (in the country where purport to derive from Article 76 of the currency was revalued) (see the the Staff Regulations is unfounded. In third paragraph of Article 63 of the fact, on the one hand, this provision Staff Regulations as amended by does not create a personal right to speci Regulation No 30/65/EEC, OJ, fic benefits and confers a discretionary English Special Edition 1965-1966, power on the competent authorities. On p. 43); the other hand, this is a provision of a — on the other hand, that in the very social nature which provides for an ex words of the defendant in its state ception to the general rule and this pre ment of defence, officials carrying out cludes measures which are so general their duties in England and in France and unlimited as to time as those which when the English pound and the the applicants claim. French franc were devalued did not, Although, on the other hand, it is pos

JUDGMENT OF 16. 6. 1971 — JOINED CASES 63 TO 75/70

to Article 17 (2) of Annex VII is not 17 (2) of Annex VII are disregarded, sufficient to justify this inequality of like all officials of the Communities they treatment, since the Staff Regulations have their bankers' orders carried out not lay down measures and rules applic­ through the open market in foreign able to all officials in order to com­ currency but by convertible accounts for pensate for the disadvantages which which the exchange rate differs from the are the result of decreases in pur­ official par value by not more than 1%. chasing power and monetary fluctua­ During the oral procedure, the appli­ tions (see the third paragraph of cants alleged in particular that Article Article 63 and Article 65 of the Staff 76 of the Staff Regulations is in fact Regulations). the application and concrete expression Moreover, the applicants allege that the of the principle of the employer's duty Council wrongly referred to the decision of care ('Fursorgepflicht') which is laid of the 'Coordinating Committee' men­ down by Article 24. The special pro­ tioned above, in that the position of vision can only be explained by the con­ officials of the Communities who are the cern to enable the Commission to cover holders of the rights granted by the the expenses laid down therein by the Staff Regulations cannot be compared normal budgetary means. The applicants with the position of servants of the pointed out that, moreover, where 'joint organizations' which is much less officials could have suffered losses settled. through a slight delay in the payment Finally the applicants state that they of severance grants because of the re­ were right to rely upon the official rate valuation of the Deutschmark the Com­ of the Deutschmark when drawing up mission had indeed adjusted its calcula­ their calculations, because even if the tions without feeling itself obliged to special facilities provided for by Article seek the prior consent of the Council.

4 Article 76 does not impose any specific obligation on the Community authorities, but is intended to give them the power to come to the assistance of officials or former officials who are in difficulties. This provision con­ stitutes an exception to the general principle that all officials are subject to the same Staff Regulations and cannot obtain privileges, other than those which are laid down in a general and objective manner. Therefore, the ap­ pointing authority must assess the individual circumstances of each case in which there is a request for the application of this article before it can acknowledge the existence of a particularly difficult position. Thus the pro­ vision prohibits its automatic application as soon as certain events occur, such as a serious or protracted illness.

5 Although the facts upon which the applicants rely are capable, in appropriate cases, of creating a particularly difficult position within the meaning of Article 76 of the Staff Regulations, the mere fact that they have had to meet larger payments following the revaluation of the Deutschmark cannot by itself constitute a sufficient reason for applying that provision. Although therefore it falls to the officials concerned to apply individually to the Commission so that the latter can assess whether Article 76 should be applied in view inter alia of the amount of their salary, the fact that they suffered loss through the revaluation of the Deutschmark cannot, however, be sufficient by itself to justify such application.

6 Therefore, the submission based on the alleged infringement of that provision must be rejected.

Costs

11 Under the provisions of Article 69 (2) of the Rules of Procedure, the un­ successful party shall be ordered to pay the costs, subject to the reservation that under Article 70 of those rules, institutions shall bear their own costs in applications by servants of the Communities.

The applicants have failed in their submissions.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaties establishing the European Communities; Having regard to the Staff Regulations of Officials of the European Com­ munities, especially Article 76; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,

BODE v COMMISSION

OPINION OF MR ADVOCATE-GENERAL DUTHEILLET DE LAMOTHE

DELIVERED ON 5 MAY 1971 1

Mr President, tion seek to obtain is something quite Members of the Court, different. They consider in fact that the Com­ Like many of their colleagues of other munity is under an obligation to make nationalities, many German officials in compensation for the increase in ex­ the service of the Communities still penditure resulting for them from the take on certain financial obligations in fact that in order to meet the same ob­ the Federal Republic of Germany. ligations expressed in Deutschmarks they Some stem from family liabilities (for have been obliged since the revaluation example, children at university and of the mark to transfer a greater sum in parents in need of help) and some from Belgian francs, that is, the currency in liabilities which are of a more permanent which their salary is expressed and paid. type: buying a house or a flat by instal­ Because the Commission did not ments or setting up a retirement pension. acknowledge the existence of that obliga­ It is certain that for all these servants tion, 13 of the officials concerned, all in the revaluations of the Deutschmark service in Luxembourg, have lodged the and in particular the revaluation in 1969 present applications to this Court which had the effect of increasing the burden all request principally of these financial liabilities and even put 1. that the Court acknowledge the ex­ some of them in an extremely difficult istence of the right which the appli­ situation. The problem may, it seems, cants invoke, arise again if certain information is to 2. that accordingly the Court order the be believed. Commission to pay to each of them The Commission is moreover aware of compensation equal to the loss caused this and declares itself willing to give him by the revaluation of the favourable consideration to the possibility Deutschmark, of assistance in certain particularly diffi­ 3. that the Court lay down the principle cult cases. of compensation of the same kind as But what some of the officials in ques- regards future losses. 1 — Translated from the French.