C-158/79

1. In order that the rule contained in 2. The wordings of Article 65 (2) Article 64 of the Staff Regulations to precludes any interpreution to the the effect that account must be taken effect that the Council is not obliged of living conditions in the various to adjust the weightings within a "places of employment" may be period of two months following any observed, that expression must be substantial change in the cost of understood as meaning not only the living. The Council's power in this capitals of the Member States but the respect is to decide whether or not exact places where the duties of a there has been a substantial increase sufficiently large number of officials in the cost of living and, if there has, and other employees of the to draw the appropriate conclusions. Communities are performed. Any other interpreution would run Therefore it is for the Community counter to the objective of the provision in question which is to institutions, in cases in which the cost guarantee to all officials the same of living in such a place of purchasing power whatever their employment undergoes fluctuations place of employment. greater than those occurring in the capiul of the Sute in question, to determine separate weightings.

In Case 158/79

MONIQUE ROUMENGOUS, NEE CARPENTIER, residing in Bodio La Ragorella, an official of the Commission at the Joint Research Centre, Ispra, represented

1 — Language ofthe Case: Italian.

JUDGMENT OF 15. 12. 1982 — CASE 151/79

and assisted by Mr Cesare Ribolzi, of the Milan Bar, with an address for service in Luxembourg at the Chambers of V. Biel, Advocate, 18a Rue des Glacis, applicant, v

gives the following

JUDGMENT

Facts and Issues

The facts of the case and the conclusions Council and the Commission have, since and arguments of the parties put forward 1967, used the following procedure for during the written procedure may be comparing the level of prices between summarized as follows: Brussels and the various other places of employment. The Statistical Office of the European Communities, in conjunction I — Facts and written procedure with the competent national offices, carries out regular price surveys in 1. In fixing the weighting referred to in respect of goods and services considered Article 64 of the Staff Regulations, the as representing typical items of

ROUMENGOUS CARPENTTIER » COMMISSION

The statistical inquiries to which the Commission had referred were "With effect from 1 January 1978, the conducted by the Statistical Office in weighting applicable to the remuneration May 1976 in the Province of Varese. An

JUDGMENT OF 15. 12. 1982 — CASE 158/79

ROUMENGOUS CARPENTIER v COMMISSION

Justification of the use of those prices by complaints made at the same ume, and the need to introduce a system enabling lodged with the Commission on 11 April 1979, the applicant, without challenging weightings to be regularly adjusted. the payment made on the basis of Regu- lation No 3084/78, contested the payment made in pursuance of Regu- The Commission representatives stated lation No 3087/78 on the ground that it that the method proposed should apply was not retroactive to 1 January 1976. to the weighting as from 1 January 1978 whilst the staff representatives believed there was justification for applying it On 12 July 1979 the Commission trom an earlier date and reserved their freedom of action before the Council on rejected the complaint. this point. They also pointed out that some disparity still remained owing in This application was made on 11 particular to the differences in pnces October 1979 at the same rime as the between Rome and Varese. other similar applications (Cases 159 to 529/79 and 734/79). The working party's recommendations were incorporated in the Commission's On 9 January 1980 the Commission proposal to the Council of 10 November submitted a request for a declaration of 1978 to increase the weighting by 6.4% inadmissibility pursuant to Arude 91 of as from 1 January 1978 (Doc COM(78) the Rules of Procedure. 591). During the discussions at Council level the staff representatives refused to accept 1 January 1978 as the date for the It was subsequently decided that this case entry into force of the amended should become a test case. weighting.

On hearing the repon of the Judge- 5. Declare, (within the context of the Rapporteur and the views of the powers of unlimited jurisdiction Advocate General, the Court (First enjoyed by the Court in this sphere) Chamber) decided to open the oral that the applicant is entitled to the procedure on the substance without any amounts resulting from the increase preparatory inquiry. in the weighting of 6.4 % applied to the 1976 and 1977 salaries as well as to the subsequent consolidation provided for to take account of the II — Conclusions of the parties higher level of prices in Varese as against Rome (which the Court may confirm by whatever means it thinks The applicant claims that the Coun fit) together with interest thereon; should: 6. Order the defendant to pay the costs." "1. Annul the implied decision rejecting the present applicant's complaint dated 11 April 1979 or, should the Court accept (which the applicant The Commission contends that the Coun does not) the defendant's con- should: tentions, annul the Commission's alleged express individual decision of Dismiss the application as inadmissible in rejection dated 12 July 1979; all its submissions;

known that the aforementioned against 100 for Brussels) as from memorandum was to be regarded as an October 1975 (Report of 5 October 1978 individuai decision on the complaints of the Sutistical Office under the lodged against Council Regulations Nos heading "Results"). 3085, 3086 and 3087/78 and against the application of Regulation No 3087/78. The applicant sutes that there was no indication that the recipients had been notified or of the date of any such notification. She also points out that the memorandum of 12 July 1979 had the The second submission is that the effect of discouraging those concerned infringement does not merely exist from seeking the protection of the ratione tempons but also from a Court's jurisdiction by stating that in any quantiutive point of view. In fact Article event the same question had been 64 of the Staff Regulations provides that brought before the Court in Case 48/79 the weighting is to be calculated the decision in which, if the applicant's "according to the living conditions in claims were conceded, might also be of the different places of employment". benefit to those concerned in these According to the conclusions of the first proceedings. Those concerned were report of the Sutistical Office of 17 June therefore allowed to become time-barred 1976, the Iulian weighting of 1975 was whilst awaiting the outcome of another 12.9% lower than the figure which case in which the Commission was the ought to have been applied in the successful party. The applicant relies on Province of Varese. In the sutement of the Court to find that there was an reasons accompanying the Commission's implied rejection of her complaint. proposal, the text of which later became Council Regulation No 3087/78, the defendant admitted that the employment of a large number of Commission surf in Ispra ought to have caused it to have regard to the level of prices in that locality at the time at which the The applicant, in her first submission, weighting was fixed. sutes that Regulation No 3087/78 constitutes a clear breach of Article 65 (2) of the Surf Regulations since, faced with a substantial and even sizeable change in the cost of living in Italy, it did not provide for the weighting applicable to Italy to be adjusted in There was a breach also as regards the sufficient time or at least did not provide method chosen. The scheme adopted by for it to be sufficiently retroactive. The the Commission and approved by the weighting had not been adequate since Council gave rise to extremely well- 1975 because the level of prices recorded founded criticisms as regards the in Ispra ought to have led to adoption of products used for calculating prices in a clearly higher weighting as from the various Member Sutes and for the November 1975 (see Report of 17 June scheme's tendency to uke account 1976 of the Sutistical Office) and, of divergent developments in the although calculated on the basis of the economic situation of the Member price levels recorded in the capiul, the Sutes. Such criticisms were formulated weighting (112 as against 100 for in good time by representatives of the Brussels) was lower than that which staff and by the officials themselves who ought to have been applied (119 as sought to lodge a complaint under

Article 90. For their part, the competent requirements is to be found in the basic authorities did not fail to recognize the regulation. On the specific problem of imperfections of the method applied but, retroactivity that regulation in its recitals there as well, inertia prevailed over all contains no justification of the date from opposition and all the well-founded which it was to apply and merely states reasons of an economic or legal nature. that "it is appropriate to correct the weighting for Italy in accordance with the result of studies carried out by the Statistical Office ..." and remains silent on the period to which those studies relate. Consequently, the opportunity for If it is assumed that the weightings staff to defend their rights is restricted applied outside Italy are correa and and defence is made more difficult, as is adapted to reality, the fact remains that the Court's power of judicial review. The officials employed in Ispra were less well case-law of the Court relating to the treated at least during 1976 and 1977 duty to sute the reasons on which a when the weighting remained unadjusted measure is based is well-settled. and there was no provision for any corresponding retroactivity. There was also discrimination between Commission staff employed in offices of the Community in other places in Italy. That state of affairs undeniably constitutes a difference of treatment between the A —Admissibility employees of the same institution contrary to the principle of non-discrimi- nation and constitutes a misuse of powers since the weighting mechanism was not applied for the purpose for 1. In its objection of inadmissibility, the which it was intended by the provisions Commission observes that the application of the Staff Regulations. is inadmissible first of all in its conclusions seeking annulment. The measure adversely affecting the applicant is said to be the Commission's decision to pay to the applicant arrears of salary In her third submission the applicant with a retroactive effect limited to 1 considers that, if the memorandum of 12 January 1978 without taking account of July 1979 is to be considered an the cost of living peculiar to the Province individual decision rejecting her of Varese. In January 1979 arrears of complaint, the formal defects vitiaung it salary were paid to the applicant in are only too plain. These are in implementation, on the one hand, of particular the absence of any statement Regulation No 3087/78 and, on the of the reasons on which it is based and other, of Regulation No 3084/78 its notification by way of internal distri- altering with effect from 1 July 1978 the bution in incertam personam. The scale of basic salaries and fixing, with situation existing in 1975 having been effect from the same date, the weighting clearly established and cited as such to for Italy at 146.8. The applicant is not the authors of the complaint, there is no contesting the calculation of arrears of reason why the retroattive effect which salary for the period subsequent to 1 July was proposed, decided upon and applied 1978. Her claim relates solely to the went back only as far as 1 January 1978. determination of her salary arrears by The infringement of essential procedural the application of Regulation No

The Commission takes the view that the 2. In her observations on the objection claim for arrears of salary for a period of inadmissibility, the applicant claims prior to 1 January 1978 is inadmissible that, during the procedure leading to the since it is tantamount to a challenge, alteration in the weighting (which is made outside the time-limits, to the always subsequent, by quite a long various successive measures of the period, to the facts justifying it) and administrative authority which at the pending notification of the amount and material time calculated the applicant's the retroactivity decided upon, any monthly remuneration. To challenge the action would have been premature. An decision relating to the salary arrears action brought against a calculation of a amounts to challenging successive calcu- salary on the ground that the weighting lations of remuneration from January had not yet been raised and particularly 1976 to December 1977. an action started during the procedure leading to the revision would certainly have laid the applicant open to an objection of inadmissibility. She would have been met with the reply that she should await the Council's decision and, Since it grants no additional amounts on if appropriate, then contest the decision the basis of each monthly. instalment of calculating the arrears. Furthermore, an salary calculated and paid from January action against monthly salary payments 1976 to December 1977, the contested which do not take account of the decision is confirmatory as regards each increased weighting falls far short of the of the monthly calculations made during requirement of legal certainty proclaimed that period. As such it can found no by the other side. In the first place since, right of action, regard being had to well- in the case of an increase pursuant to settled authority to the effect that a Article 65 (2), a review of the weighting confirmatory measure is not a measure is subject to an ad boc procedure adversely affecting an official. On the (Council Decision on a proposal from other hand, none of the administrau« the Commission, to be adopted within decisions calculating the monthly two months), the question arises whether instalments of the salary paid to the the day to which retroactivity is to take applicant from January 1976 to effect should not be counted as from the December 1977 was ever the subject ot a expiry of the two months indicated complaint, still less was any legal action above. Secondly, since those concerned brought in respect of them. The Court is are at liberty to assess the date on which therefore faced with a situation similar to the events of an economic nature that which came before it in the 81 justifying an increase occurred (for Joined Cases 15/73 etc. Kortner and example a substantial increase in the cost Others v Commission, Council and Par- of living) and thus the corresponding liament [1974] ECR 177).

failure to adapt the weighting in force, expiry of the period running from the there is a risk of there being as many date of the decision adversely affecting different days a quo as there are them to stop or refuse the allowance. applicants, according to their subjective The applicant's position is quite assessments. Finally, those inclined to act different. She did specifically attack the belatedly might "construa" periods of first decision adversely affecting her time for complaints and applications by concerning the amount and the retro- reducing the period of retroactivity active effect of the weighting specifically requested to the three months preceding fixed for Italy, implemented in her case their respective complaints under Anicie by the calculation of her remuneration

active effect of the weighting may only opposing view were accepted, namely be brought after those factors have been that the applicant ought to have brought determined and implemented. her application against the calculation of her salary for January 1976, a non- confirmatory administrative measure would in any event have supervened (contrary to the situation considered by the Court in Case 15/73) which would be capable of being challenged This case and the Kortner case have independently and consequently of nothing in common.

ROUMENGOUS CARPENTIER v COMMISSION

4. In her reply the applicant states that recorded in Ispra. those concerned are in a position to complain about the inadequacy of the weighting only if they have information available to them. It is easy to see that the Commission itself, in spite of the considerable investigative resources at its disposal, is not in a position to verify in a 5. In its rejoinder the Commission brief space of time (such as the period of retorts that the applicant's claim is three months for lodging a complaint) invalidated by the facts which show that, whether the weightings applied corre- during the period 1976 to 1978, regu- spond to reality. Moreover, the persons lations relating to the value of the Italian concerned had good reason for weighting were regularly adopted by the considering that their claim would be Council. Moreover, the statistical conceded at the decision stage. During surveys, agreements and political the political discussion of 19 March 1976 compromises resulted finally in the the Commission itself let it be adoption of Regulation No 3087/78 understood that, for its part, it had not which did not call in question the taken a negative decision as regards the weightings prior to 1 January 1978.

. . as in December 1982, officials could regards the time-limits for lodging challenge the quantum without the complaints made subsequent to a Commission's raising any objection of Council regulation relating to your inadmissibility on the ground that no pecuniary rights the Commission complaints were lodged during the undertakes for its pan in future not to period taken into consideration by the take the point of the possible lateness of regulation. If, on the other hand, the those complaints in relation to the date Council in December 1982 fixed a nearer of the coming into effect of the regu- date for the entry into force, for example

JUDGMENT OF 15. 12. 1982— CASE IS8/79

1. The Commission, in its defence, seeks to examine "entirely in the alter- native" the substance of the submissions As far as the second submission is concerned, and in the absence of any put forward in support of the further details, the defendant assumes application. that the applicant is basing her claim, which was, moreover, not expressed by way of a complaint, on the fact that in its report of 17 August 1976 the Statis- As regards the first submission, the tical Office stated that the cost of living Commission recalls that the weighting in in the Province of Varese was 1.8% question was established on the basis of higher than that in Rome. Pursuant to a

ROUMENGOUS CARPENTIER v COMMISSION

employment. Nor can the applicant maintain that the failure to take into account the cost of living in the Province of Varese is contrary to fairness; from the setting up of the centre in Ispra until a very recent period, the cost of living in Rome was significantly higher than in the Province of Varese; the applicant thus enjoyed, for a number of years, a As to Regulation No 3087/78 itself, the weighting calculated in accordance with defendant considers that it contains a a cost of living higher than that which statement of the reasons on which it was she was in fact required to meet. Finally, based and that statement, however it should be stressed that the difference laconic, is sufficient to satisfy the of 1.8% mentioned above is merely of requirement to provide such a statement. importance as an indicator. That result It refers to the proposal submitted by the was obtained on the basis of a test survey Commission containing in its annex the of prices carried out in the Province of results of statistical surveys carried out Varese in May 1976 affecting 230 items by the Statistical Office.

Moreover, which, admittedly, had been brought up the survey carried out by the Statistical to date, and recourse was not had to a Office annexed to the proposal clearly fresh survey in view of the opposition highlighted the need for making certain mentioned above from the unions and adjustments to and updating the results staff associations. available for the earlier statistical surveys, to obtain the correo weighting to apply at the beginning of 1978, namely 143.2 for Ispra. It is clear from the foregoing that the relevant date is

JUDGMENT OF 15. 12. 1982 — CASE 158/79

2. In her reply, the applicant recalls 1977 it is possible to draw up the that, pursuant to Article 64 of the Staff following table: Regulations, officials' remuneration is to be adjusted periodically by the application of a weighting higher or Varete Rome lower than or equal to 100% according 1.29 1.27 from the base year to the living conditions in the different 1961 (1961 = 1) to places of employment. Specifically in 1966 compliance with that provision the 1.13 1.10 from the base year Commission until 1970 applied 1966 (1966 = 1) to differential weightings even within the 1970 same Member State to take account of the cost of living actually recorded in the 1.46 1.40 from the base year 1961 (1961 = 1) to various places in which officials were 1970 required to perform their duties. That happened in the case of both France and 2.03 1.98 from the base year Italy, in the latter case by giving to Ispra 1970 (1970 = 1) to a weighting which differed from that 1976 applied to Rome (Gazzetta Ufficiale L 2.30 2.18 from the base year 289 of 17 February 1969). It was only 1966 (1966 = 1) to subsequently, as from 1970, that the 1976 weighting was made uniform within each 2.98 2.78 from the base year Member State and brought up to the 1961 (1961 = 1) to level of prices in the capital. The 1976 legislature intended that measure similarly as a favour since in general the cost of living is higher in the capitals. Similarly, an ISTAT telex message dated However, that is not the case as far as 12 July 1980 enables the following table the Province of Varese is concerned. to be drawn up in respect of subsequent yean:

Furthermore, in a communication to capable of being censured without the Council containing a proposed restriction by the Court, which has amendment to the method of periodic jurisdiction in the matter both as to adjustment of remuneration the legality and substance. As regards the Commission suggested in March 1981 speculation by the Commission relating that every five years the Statistical Office to the "contingent" nature of the retro- of the European Communities should activity which may be provided for, determine whether the relationship suffice it to say that the only correct between weightings correctly established interpretation of the rule is as follows: equivalent purchasing power for the the institutions are obliged to provide for remuneration paid to staff employed in appropriate retroactivity in a case in the capitals of the Member States. In which revision of the weighting is carried addition it proposed that the same out after a delay in relation to the events should be done as regards the other giving rise to it. Finally, and this enables places of employment (that is to say, it to be asserted with confidence that other than capitals) where objective those directly concerned were kept in a factors showed that there was a risk of state of uncertainty from the legislative major distortions, regard being had to point of view, the weighting for Italy the dau recorded in the capital of the fixed by Regulation No 3086/78 at 74.3 country concerned (proposal for a new (as against 100 for Brussels) was reduced method of adjusting remuneration). to 70.3 following a rectification of doubtful legality carried out three months later. That is strange because the weighting of 74.3 appears in all the versions of the Official Journal of 19 January 1978, in the Council minutes and even in the pleadings of the Commission in this case.

As regards the applicant's claims as to an As far as the increase in the cost of living alleged breach by the Commission of the at the beginning of 1976 is concerned principle of non-discrimination, the (1.8% greater in Varese than in Rome), Commission considers that it is fairer not the Commission considers that the to limit the comparison of the respective discretionary power conferred on the situations of Varese and Rome to a given Council, when it is faced with a complex moment in time but to compare the cost economic situation as in the present case, of living in the two places over a more allows it to take the view that a change representative period. Moreover it points in costs of that order is not a "sub- out that the tables submitted by the stantial" change within the meaning of applicant are scarcely explicit. The first Article 65 (2) of the Staff Regulations. includes the indices of prices for Rome and Varese relating to 1966, 1970 a id 1976 without its being stated whether the index is for the year indicated or the average index for the period preceding that year. As regards the second table, which stops at the end of 1979, it also does not enable a year-by-year breakdown to be carried out.

If the whole of the reference period is taken into consideration the cumulative increase in the cost of living was 3.71% greater in Varese than in Rome, that is to say, an average of 0.33% per year. The difference is so slight that the trend The wording of Article 65 (2) of the observed in the last two years, namely a Staff Regulations clearly shows that an rate of increase greater by 1.81% per adjustment of the weighting presupposes annum in the cost of living in Rome, a "substantial" change in the cost of need only continue until June of next living and that such an adjustment isto year to achieve arithmetical equality in be retroactive only "if appropriate".

As lations. far as the period of two months is concerned, that only begins to run as

from the time when the Council has and that they are in a sense the result of acknowledged the existence of such a a compromise. "substantial change". Apan from an analysis of that provision it should be remembered that, under Article 64 of the Staff Regulations, the weighting must be in conformity with the "living conditions" in the different places of employment; that criterion is certainly less compelling than the "cost of living". In any event the weighting which came into force on 1 January 1978 was established by reference to factors brought up to date in relation to those which were used at the time the weightings were drawn up for preceding periods. That fa« that the new weighting for 1978 was fixed by means of a more accurate method represents progress. That is not to say, however, that the weightings fixed during 1976 and 1977 on the basis of the factors available at Therefore if the applicant considers that that time must be regarded as the rates at which the Italian weightings incompatible with Article 65 (2). On the were fixed for 1976 and 1977 are vitiated contrary, it must berememberedthat in by illegality it would be for her to claim May 1976 the Statistical Office carried not, as she does, the retroactive out, at the express request of the application to 1 January 1976 of the defendant, a survey of prices in the weighting at the rate which came into Province of Varese which showed at that force on 1 January 1978 but rather the time that the weighting applicable to fixing of four new rates each calculated Italy was lower by 1.8% than the on the basis of four fresh price surveys. weighting which should have been Those would have to be carried out on applied to Varese. After the determi- the basis of the statistical information nation by the Council, with effect from 1 available on 1 January 1976, 1 July 1976, July 1976, of the new weighting, that 1 January 1977 and 1 July 1977. But it is weighting proved to be only 1.3% lower by no means certain that the Italian than that which ought to have been weightings calculated in that way for 1976 and 1977 would be more applied to Varese. However, the favourable than those actually applied discrepancy was in truth trivial and it during that period. It is, moreover, certainly cannot be asserted that the significant that neither the applicant nor method of calculation used at that time the staff representatives have requested by the Statistical Office caused any that the weighting be fixed by applying distortions. It ought to be remembered the method described above. They also that the new weightings fixed by deliberately abstained, aware that the Regulations Nos 3084/78 and 3087/78, increase of 6.4% in the weighting was which were obtained by means of a more merely the result of a political sensitive method than that used in the compromise which they had also desired past, are based on the extrapolation of (see Minutes of the Meeting of the Joint certain available statistical data with the "Iulian weighting" Group of 6 July agreement of the staff representatives 1978).

ROUMENGOUS CARPENTIER » COMMISSION

4 In 1976, 1977 and 1978 consultations on technical matters took place between representatives of the staff and those of the Commission and Council but no agreement was reached on the alteration of the weighting or on the date to which the new weighting should have retroactive effect. In the meantime by a series of regulations the Council had increased the weighting for Italy as from 1 January 1976 to 176.6 as against 157.8 for Belgium, as from 1 July 1976 to 189.3 as against 157.8 for Belgium, as from 1 January 1977 to 120 as against 100 for Belgium, as from 1 January 1977 to 132.1 as against 104.5 for Belgium and as from 1 July 1977 to 130.2 as against 100 for Belgium. In most cases those regulations had a retroactive effect of about six months.

s On 26 June 1978 the Council adopted Regulation No 1461/78 (Official Journal L 176, p. 1) by which the weighting for Italy was fixed at 137.6 as against 102.3 for Belgium. The recitals in the preamble to that regulation state that "a decision on the Commission proposal for the correction of the weightings for three countries of employment will be taken only in the light of a study to be carried out by the Commission."

6 After a fresh inquiry by the Statistical Office of the Communities and discussions between the Commission and the Council, on 10 November 1978 the Commission proposed to the Council that the weighting for Italy be fixed at 146.4 as against 102.3 for Belgium with retroactive effect to 1 January 1978. That proposal was accepted by the Council by the adoption of Regu- lation N o 3087/78 of 21 December 1978 (Official Journal L 369, p. 10). On the same date the Council adopted Regulation No 3084/78 (Official Journal L 369, p. 1) fixing the weighting for Italy at 146.8 as against 100 for Belgium as from 1 July 1978.

Admissibility

12 The Commission claims that the application is inadmissible as regards the period from July to December 1978 since Regulation No 3087/78, which is the only one in dispute, fixed the weighting for the first half of 1978. A second ground of inadmissibility is that the calculation of arrears carried out in January 1979 was in the nature of a confirmation of the monthly calcu- lations of salary made during 1976 and Î977 and such payment of arrears does not therefore constitute a measure capable of founding an independent right of action, particularly since no complaint was made at that time against the calculations of salary for the years in question.

1 3 Regard being had to the circumstances of the case, the Commission's objection cannot be upheld. In fact, although it is important to safeguard the

ROUMENGOUS CARPENTIER » COMMISSION

16 The application must therefore be adjudged admissible.

The substance

1? As regards the weighting applied to officials employed in Ispra, the applicant is pursuing two objectives. First she seeks to obtain a revision of the amount of the weighting which, in her view, ought to be calculated on the basis of

JUDGMENT OF 15. 12. 1982 — CASE 158/79

the cost of living at the official's exact place of employment, in this case in the Province of Varese, and not automatically in the capital of the country in question. In this case, the applicant maintains that the cost of living in the Province of Varese was, during the years 1976 to 1978, substantially higher than in Rome. Secondly the applicant requests that the weighting for Italy, fixed at 146.4 by Regulation No 3087/78, be applied retroactively to 1 January 1976.

is The applicant challenges the arrears of salary calculated on the basis of Regulation No 3087/78 which, in her view, are in breach of Articles 64 and 65 of the Staff Regulations relating to the weighting, the principle of non- discrimination and the rules which require observance of essential procedural requirements.

22 In fact it is clear from the figures communicated by the Commission on the basis of the results of the survey carried out by the Statistical Office in Varese in May 1976 taking into consideration 230 items of expenditure (excluding rent, heating and electricity which were the subject of a later investigation) that the cost of living in that province was 7.66% higher than in Rome. After the result of the investigation carried out in Varese on the level of rents had been taken into account, the difference was reduced to 2.76% which still represented a substantial difference within the meaning of Article 65 (2) of the Staff Regulations. Moreover it is clear from the reasons accompanying the Commission's proposal which led to Regulation No 3087/78 that the Commission itself entertained doubts as to whether the sole reference to the cost of living in Rome was well founded since it stated that: "the use of a single weighting for each country of employment, worked out for the capital, places staff working in Ispra at a slight disadvantage. The statistics available show that the cost of living in Rome has risen less rapidly than in the Varese area, from which it may reasonably be assumed that prices in Rome are now lower than in Varese. This existence of lower prices in the capiul than elsewhere is the exception rather than the rule in the Nine. In view of the number of staff employed in Ispra a special local price survey would appear justified. However, the Commission feels that it would be wiser not to innovate in this direction and to abide by the Council Decision of 1968, which provides specifically for the use of the price indexes relating to the capiul".

28 That argument cannot be upheld. In fact the wording of Article 65 (2) precludes any interpretation to the effect that the Council is not obliged to adjust the weightings within a period of t w o months following any sub- stantial change in the cost of living. It should be remembered that the Court in its judgment of 6 October 1982 in Case 59/81 (Commission v Council [1982] ECR 3329) held that the Council's power in this respect was to decide whether or not there had been a substantial increase in the cost of living and, if there had, to draw the appropriate conclusions. Any other interpretation would run counter to the objective of the provision in question which is to guarantee to all officials the same purchasing power whatever their place of employment.

29 That submission is therefore well founded.

30 Consequently it is not necessary to examine the other submissions put forward by the applicant which were put only in the alternative.

ROUMENGOUS CARPENTIER v COMMISSION

31 The applicant's salary statement for the month of January 1979 must therefore be annulled, in so far as it is restricted to giving effect to Council Regulation No 3087/78, both as to the amount of the adjustment of the weighting and as to the retroactive effect of that adjustment, together with the decisions rejecting the applicant's complaints. Regulation No 3087/78 is not applicable to the applicant in so far as it takes no account of the cost ot living in Varese and limits the retroactive effect of the adjustment of the weighting to 1 January 1978.

32 Since it may be expected that the competent institutions will take the measures necessary to comply with this judgment, examination of the claim for compensation for the pecuniary damage suffered by the applicant is deferred to a date to be fixed at a later date if necessary.

2. Orders the Commission to report to the Court before 15 July 1983 on the measures taken to comply with this judgment;

3. Defers examination of the claim for compensation for the pecuniary damage suffered by the applicant to a date to be fixed at a later date if necessary;

4. Reserves the costs.

O'Keeffe Bosco Koopmans

Delivered in open court in Luxembourg on 15 December 1982.

J. A. Pompe A. O'Keeffe Deputy Registrar President of the First Chamber