C-44/74

2. Officials — Strikes — Non-payment for days covered by stoppage of work — Legality

1. In the context of the right of action wages and other benefits pertaining to made available by Article 91 of the days on strike are not due to persons Staff Regulations and in the case of a who have taken part in that strike. measure of a general nature designed This principle is applicable to to be implemented by means of a relations between the institutions of series of individual decisions affecting the Communities and their officials. all or a large proportion of the That statement in no way implies any officials of an institution, an official decision in relation to the existence of taken individually cannot be deprived an official's right to strike or in of his right to invoke the illegality of relation to the detailed rules which that measure in order to attack the may govern the exercise of such a individual decision which alone right. allows him certain knowledge of the manner in which and the extent to An institution's decision not to pay which his individual interests are for days on strike cannot be affected. invalidated by the fact that the other institutions have chosen not to take 2. According to a principle recognized in measures which they could lawfully the labour law of the Member States, have adopted.

In Joined Cases 44, 46 and 49/74

Marie-Louise Acton and OTHERS, all officials of the Commission of the European Communities, represented by Marc-Antoine Pierson, Advocate at

1 — Language of the Case: French.

JUDGMENT OF 18. 3. 1975 — JOINED CASES 44, 46 AND 49/74

Composed of: R. Lecourt, President, J. Mertens de Wilmars and A. J. Mackenzie Stuart, Presidents of Chambers, A. M. Donner, R. Monaco, P. Pescatore, H. Kutscher, M. Sørensen (Rapporteur) and A. O'Keeffe, Judges,

Advocate-General: A. Trabucchi Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts and the arguments adduced by and it is the Commission's sole the parties during the written procedure responsibility to apply this principle' and may be summarized as follows: 'that non-payment will take effect in any event as from' 11 January 1971. This decision was notified to the staff. The I — Facts and procedure Director-General for Personnel and Administration issued three circulars, Following strike action in 1970 the namely during 1971, on 20 March 1972 Commission decided on 16 December and on 29 November 1972, in which he 1970 that 'it stands to reason that there reminded the staff of the Commission's can be no payment for days on strike decision of 16 December 1970.

A so-called 'warning' strike of staff of Commission and representatives of the the institutions of the European trade unions and staff associations, the Communities took place during the Commission re-affirmed its decision and afternoon of 30 November and on 1 instructedthe Directorate-General for December 1972. It was followed by a Personnel and Administration to arrange strike lasting from 11 to 15 December for the deductions to be made. 1972. These strikes were prompted by This decision was communicated to the the attitude adopted by the Council representatives of the trade unions and during negotiations and the adoption of staff associations.

December 1972 for the purpose of the staff, recalling the decisions of 16 obtaining the annulment of the Council December 1970, 20 December 1972, 28 regulation of 12 December 1972 1 . February and 21 March 1973, and During its meeting on 20 December 1972 explaining the reasons for those the Commission decided to collaborate decisions. This announcement was with the other institutions in elaborating reproduced in the Staff Courier of 12 a common attitude regarding such April 1973. portions of the salaries of the officials as On 21 September 1973 the following corresponded to the days on strike. For announcement from the Directorate- its part, the Commission was of the General for Personnel and Administra opinion that remuneration should be tion appeared in the Staff Courier: withheld for each day of the strike, with the reservation however that, if the 'Following the strikes which took place Commission should win the action in December of last year, the brought before the Court, 'payment Commission, at its meeting on 21 March would be made in respect of Monday 11, 1973, confirmed its decision to arrange for a deduction to be made from the

JUDGMENT OF 18. 3. 1975 — JOINED CASES 44, 46 AND 49/74

of October 1973 in the case of staff — annul the decision of 21 September working in Brussels and, at latest, from 1973 and the individual decisions salary for November in the case of staff making the deductions adopted by working in Luxembourg. the Commission on 15 October 1973, The deduction will consist of 1/30 of which resulted in the reduction in their salaries for the month of remuneration for each day on strike and will be itemized as follows on pay slips: October, paid on 15 October, as well ......’ as of the decisions rejecting their complaints; Individual action for the purpose of making these deductions was indeed — accordingly, order the Commission taken during October in respect of a to pay the applicants the sums large number of officials of the deducted, with interest at 6.5%; Commission who had taken part in the strikes. — order the Commission to pay the costs of the proceedings. 2. The applicants all submitted The Commission contends that the complaints pursuant to Article 90 (2) of Court should: the Staff Regulations, for the purpose of obtaining repayment of the deductions — principally, reject the actions as made against their salary. inadmissible; The Commission expressly rejected these — in the alternative, reject them as complaints, and the present actions were unfounded; brought on 20 June, 26 June and 5 July 1974 and registered at the Court on 25 — order the applicants to pay the costs June, 27 June and 8 July 1974 of the proceedings. respectively. By order of 22 July 1974 the Court (Second Chamber) joined the three III — Submissions and argu­ actions for the purposes of the procedure ments of the parties and judgment. The written procedure followed the Admissibility of the actions normal course.

Moreover, this alleged 'decision' was not scrutiny by the applicant himself, by a measure of such a kind as to affect the means of the objection of illegality. The persons concerned adversely in such Commission submits that since no such circumstances as to cause the period objection was put forward, it would within which an action for annulment appear that none of the submissions of must be brought to start to run, since it illegality which have been advanced merely constituted publication of the against the individual decisions taken in detailed rules for the future execution of October can be admissible, since they a prior decision. are identical to the submissions which could and should have been entered Strictly speaking, this measure was in fact superfluous, since its adoption was against the basic general decisions. not essential to render the individual If, on the other hand, the decision of 21 deductions legal. The measure which March 1973 is not taken to be general in was at the basis of the action and which character but to have 'individual- constituted the necessary and sufficient collective' force, since it was directed to justification for the individual decisions those on strike during December 1972, making the deductions was the decision that is to say a limited and ascertainable of 21 March 1973. This decision, which, number of officials, the decision would following its publication on 28 March have been open to appeal by the officials 1973 (by way of informaphone) and 12 concerned. In this case, however, the April 1973 (by way of the Staff Courier), actions are out of time, since they was not contested by anyone within the question the legality of the decision of period prescribed, became unassailable March 1973 which was rendered on 21 September 1973. According to the unassailable by the expiry of the period case-law of the Court a measure which set out in the Staff Regulations for the merely confirms a previous measure does lodging of an appeal. not cause the period for lodging an appeal to start to run afresh. (c) The conclusions concerning the annulment of the express decisions (b) The conclusions concerning the rejecting the complaints annulment of the individual These decisions merely confirm the decisions making the deductions individual measures adopted in October In the Commission's view, the 1973. It therefore follows that the admissibility of these conclusions actions, to the extent to which they are appears equally questionable because directed against them, are inadmissible in those decisions were merely measures consequence of the inadmissibility of the implementing the decisions of a general conclusions directed against the initial nature taken on 16 December 1970 and measures.

According to Article 212 of the EEC not to pay for more than the first three Treaty it is incumbent upon the Council days of the strike. to lay down the Staff Regulations, in Moreover, the course of action adopted consultation with the Commission. The by the Commission in taking these Staff Regulations laid down by the decisions was curious. It took a first Council contain no mention of strikes decision on 28 February 1973, without and cannot therefore authorize the prior consultation with the unions. Commission to lay down precise rules Subsequently it consulted the unions and for their conduct. Secondly, regulation then took a confirmatory decision on 21 of the exercise of the right to strike is an March 1973. This course of action essential element of the terms of resulted in the creation of legal employment of all workers. It is uncertainty as to which decision must be therefore unthinkable that the Commis­ taken to be determinative. The sion should have the power to regulate applicants emphasize that apart from the the right to strike without being bound two decisions of 28 February and 21 to undertake prior consultation with March 1973, the Commission took a representatives of the staff, as provided decision on 20 December 1972; by Article 110 of the Staff Regulations. including the communication of 21 No such consultation has taken place. September 1973, this amounts to four It follows that the decisions of 16 decisions relating to a single event. December 1970, 28 February and 21 March 1973 invoked by the Commission 3. In its rejoinder, the Commission should be deemed to be non-existent emphasizes that the applicants have in within the meaning of that word in no way challenged its submissions of French administrative law. inadmissibility with regard to the 'decision' of 21 September 1973. Apart from these submissions as to the non-existence of the decisions, the For its part, the Commission challenges applicants expressly adduce against the the contention that the Court's unlimited

non-existence has never had the effect of Commission fails to understand how freeing persons concerned thereby from these remarks can have any relevance to the obligation to bring the matter before the problem of the admissibility of the the courts, either by means of an action, applications. Moreover, these allegations or by means of an objection of illegality, are entirely new and unconnected with for the purpose of obtaining a finding the submissions made in support of the that the measure concerned is null and actions. Finally, the Commission denies

March 1973. In fact, relying upon the They further claim that the decision to general legal principle which is expressed make a deduction was taken not only in in the rule of service rendered, and the absence of any legal basis, but was which prompted it to take its general also contrary to principles enshrined in decisions of December 1970 and March the Staff Regulations. 1973, far from encroaching upon the The deductions were thus contrary to powers of the Council, it properly Article 85 of the Staff Regulations on the exercised the powers conferred by recovery of undue payment, since there Article 85 of the Staff Regulations on the is no evidence whatever that the salaries competent authority.

salary. As regards the fresh submission to the effect that these general decisions, The principles of civil law do not allow contrary to the requirement of Article debts to be set off against sums owed 110 of the Staff Regulations, were not unless the debts are liquid, due and preceded by consultations with certain. In the present case, these last representatives of the staff, the two conditions were not fulfilled. Commission points out particularly that The deductions infringe Article 60 of the before the decision of 16 December 1970 Staff Regulations which lays down that was adopted consultations did take any unauthorized absence by an official

JUDGMENT OF 18. 3. 1975 — JOINED CASES 44, 46 AND 49/74

cf. Article 62, Article 55a and Article 3 amounts to discrimination against its own officials in relation to officials of of Annex IVa, and the order of the Court of 30 November 1972 in Case the other institutions, which did not make deductions. 75/72 (Rec. 1972, p. 1201). Regarding the various provisions of the Finally, the applicants claim that the Staff Regulations which it is alleged to ‘exception’ in respect of 11, 12 and 13 have ignored, the Commission first December 1972 laid down by the expresses reservations as to the method decision of 20 December was intended to adopted by the applicants who, faced penalize those officials who did not obey with a factual situation not covered by the Commission's call to return to work the Staff Regulations, wish to apply to on 14 December.

the first paragraph of Article 62 justification provided by the decision of authorizing deductions to be made from 21 March 1973 — by the general legal remuneration is to be found in Article 85 principle according to which no of the Staff Regulations. remuneration is due to officials in the absence of service rendered, in particular Similarly, the submission to the effect as a consequence of participation in an that Article 60 of the Staff Regulations organized stoppage of work. This has been infringed is irrelevant.

strikes. In the Commission's view it is of strike action must necessarily be permissible to take account of national forbidden by the Staff Regulations. solutions in resolving problems of Concerning the submission based upon principle regarding which the Staff Article 85 of the Staff Regulations, the Regulations are silent. Commission claims that the payment

Regarding the applicants' criticism are nowhere touched upon in the Staff concerning the delay between the strike Regulations. and the date when the deductions were Regarding the applicants' allegation that made — a criticism which the the 'exception' in respect of 11, 12 and Commission finds too perfunctory and 13 December was intended to penalize lacking in substance — it points out that officials who did not go back to work Article 85 lays down no time-limit for on 14 December, the Commission merely the recovery of undue payment and recalls that the initial decision was further states that the facts of the case amended by the decision of 21 March (expected delivery of the judgment of the 1973 to the effect that an 'exception' was Court in Case 81/72, complex to be made in respect of the first three accounting procedures, holiday period) days, whatever their date. justified the date chosen for making the deductions. Regarding the applicants' request for interest on the sums deducted, the In the Commission's opinion the Commission claims, first, that such submission relating to the conditions for interest could be payable only from the the setting-off of debts is frivolous. There time the action was brought, and, can be no doubt that the conditions for further, that in any case the request such setting-off were fulfilled. This should be dismissed for the sufficient procedure is moreover employed for all reason that Community law contains no budgetary adjustments. The Commission indication of the existence, permissibility refers here to Article 22 of the Financial or rate of such interest. Regulation of 25 April 1973, applicable to the general budget of the European 3. In their reply, the applicants claim to Communities (Official Journal L 116/73). expose contradictions in the Commis­ Regarding the submission relating to sion's argument. Article 86 of the Staff Regulations the Commission claims that it did not intend In their opinion, if the Commission's the deductions to be taken as a action were based upon the rule of punishment, but as the normal service rendered, its decision to pay for consequence of a strike, as was stated in three days of strike was unjustifiable. the communication to the staff on 28 Moreover, an examination of the March 1973. Member States' legislation concerning Regarding the submission alleging strike action by public servants reveals discrimination as between officials of the that such legislation is practically Commission and those of the other unformulated, and that in such cases the institutions, the Commission claims that principles applicable to unauthorized this is a matter of discretion for each absence are applied. In the interests of institution and the fact that the other consistency therefore the Commission institutions saw fit not to make the must apply the same principles to its deductions cannot render its own own staff. It refuses to do so on the decision discriminatory. The legality of pretext that it is faced with a factual

situation not covered by the provisions reason than to furnish the Commission of the Staff Regulations. with a defence against an accusation of misuse of powers, while not in fact It is however the applicants' view that removing the grounds for such an the authors of the Staff Regulations accusation. The Commission should not intended that days on strike should be treated as unauthorized absences. It is be permitted to exercise an alleged power to regulate the right to strike for inconceivable that they should not have the purpose of reaching the arbitary imagined the possibility of a strike by decision that the only legal strikes are officials. The steps to be taken in such those by which it can put pressure upon an event can only therefore be those laid the Council. down by the Staff Regulations. In the absence of other provisions a strike must 4. In its rejoinder, the Commission first be treated in the same way as absence claims that the exception' in respect of without prior permission from an three days which the applicants believe immediate superior. Any other interpre­ they can turn to their own account in a tation would lead to legal uncertainty. somewhat remarkable manner, can in no This principle should not lead to the way be interpreted as being in conclusion that strikes in themselves are contradiction with the prevailing rule completely unlawful and must be regarding service rendered. Waiver of prohibited. This would be neither a part of a debt has never entitled the direct nor a necessary consequence of person benefiting from the waiver to the applicants' arguments. total exemption from the debt. In the If, as the Commission states, the Commission's view the exception', deductions constitute recovery of undue which was a matter of expediency, is payment, it must be borne in mind that irrelevant to a dispute regarding the the absences took place during matter of legality. December 1972. The deductions should The Commission next emphasizes that it therefore have been made in respect of is a common tendency in the domestic remuneration for December 1972, or, at law of the Member States to view strikes the latest, in respect of that for January 1973. The fact that the deductions were as being untainted by illegality and free of disciplinary consequences. The made in respect of remuneration for Commission finds it difficult to conceive October 1973 left the Commission's how the applicants can maintain, intentions very much in doubt. This contrary to this general trend, that their doubt renders the Commission's right to strike action should be interpreted as an recover undue payment questionable. illegal and unauthorized absence, and The lack of consultation with the Staff therefore prohibited by the Staff Committee, expressly provided for by Regulations. In fact, the Staff Article 110 of the Staff Regulations, Regulations are totally silent on this necessarily amounted to discrimination point. It would be wholly unreasonable, against officials of the Commission as in filling this gap, to adopt a solution compared with those of the other which ran counter to generally accepted institutions. practices of national law.

2 The deduction was made at a rate of one-thirtieth of the monthly remuneration per day on strike, although an 'exception' was made for three days of the strike.

Admissibility

3 It is the Commission's major contention that the actions are inadmissible.

4 Regarding the measure adopted on 21 September 1973, which the applicants consider to be a decision, the Commission claims that it was intended merely to publicize the detailed rules for the implementation of its decision of 21 March 1973 concerning deductions to be made in respect of days on strike, and that in any event that measure was not the subject of a complaint pursuant to Article 90 (2) of the Staff Regulations.

JUDGMENT OF 18. 3. 1975 — JOINED CASES 44, 46 AND 49/74

5 In so far as the actions are directed against the individual decisions of October 1973 the Commission contends that they are inadmissible on the ground that those decisions were merely taken in implementation of the decision of 21 March 1973 and of a general decision of 16 December 1970, against which the applicants did not enter any formal objection of illegality.

11 It must first be ascertained whether, as a general rule, an official who has taken part in a general stoppage of work described as a strike is entitled to receive salary in the absence of service rendered.

ACTON AND OTHERS v COMMISSION

12 On this point, according to a principle recognized in the labour law of the Member States, wages and other benefits pertaining to days on strike are not due to persons who have taken part in that strike.

13 This principle may be applied to relations between the institutions of the Communities and their officials, as the Commission has already stated on a previous occasion, in its decision of 16 December 1970, according to which 'it stands to reason that there can be no payment for days on strike'.

14 That statement in no way implies any decision in relation to the existence of an official's right to strike or in relation to the detailed rules which may govern the exercise of such a right.

15 Although certain Member States deny their public servants or certain categories of public servants the right to strike, whereas other Member States allow it, the Staff Regulations of Officials of the European Communities remain silent on the subject.

21 However, the deductions were made not as a punishment for a disciplinary offence but merely as the consequence of failure to perform duties; accordingly, the provisions of Title VI are inapplicable in this case.

22 The fact that the Commission made an exception for three days of the strike in respect of which no deduction was made does not alter this fact.

23 This measure, which was adopted in favour of all officials who took part in the stoppage, whatever the date on which they were absent, was not in fact intended merely to apply to those who did not answer the Commission's call to its staff to return to work after the first three days of the strike.

24 It cannot therefore be considered a disciplinary measure, albeit disguised, directed against them.

25 Finally, the applicants maintain that they are the victims of discrimination on the part of the Commission, since no deductions were made from the salaries of officials of other institutions of the Communities who took part in the strike.

26 The contested decisions cannot be invalidated by the fact that the other institutions chose not to take measures which they could lawfully have adopted.

31 The applicants have failed in their actions.

32 According to Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

33 However, according to Article 70 of the Rules of Procedure, in proceedings brought by officials of the Communities, institutions shall bear their own costs.

On those grounds,

THE COURT

hereby:

Registrar President