C-532/79

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by J. Pipkorn, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of O. Monako, Jean Monnet Building, Kirchberg, defendant,

APPLICATION in the terms set out in the applicants' conclusions,

AMESZ v COMMISSION

T H E C O U R T (First Chamber)

composed of: A.O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges,

Advocate General: F. Capotorti Registrar: P. Heim

JUDGMENT OF 15. 12. 1982 — JOINED CASES 532, 534, 567, 600. 618 AND 660/79

VII. This led to an increase in the follows: weighting for officials assigned to countries such as Italy where the value of the currency had decreased in relation to "Transfers provided for in paragraphs the parities notified to the International (2) and (3) shall be made on the basis of Monetary Fund and to a reduction in the the par values referred to in the last weighting for officials assigned to paragraph of Article 63 of the Staff countries whose currency had gained in Regulations; the amounts transferred value in relation to the parities of the shall be multiplied by a coefficient

That proposal was country whose currency had diminished rejected by the Staff Regulations in value, the weighting in respect of that Committee to which it had been country was applied to their pension in referred. The Council obtained the accordance with Article 82 (1) of the opinion of the European Parliament and Staff Regulations. Article 45 of Annex of the Court of Justice. By resolution of VIII to the Staff Regulations gave them 7 July 1977 (Official Journal C 183, the opportunity of having their pensions p. 55) the Parliament approved the paid in the strong currency of their proposal taking note of "the Com- country of origin or of that of the seat of mission's assurance that its proposal will

in no way affect the real value of the "... The first two paragraphs of Article payments made to officials in the form of 63 are to be replaced by the following: remuneration, pensions and allowances". Officials' remuneration shall be At the sitting the Commissioner expressed in Belgian francs. It shall be responsible for administration, Mr paid in the currency of the country in Tugendhat, stated: "The object of the which the official performs his duties. Commission's system is financial Remuneration paid in a currency other neutrality, and what we think that our than Belgian francs shall be calculated on system can achieve is an equality of pur- the basis of the exchange rates used for chasing power. What we want is that a the implementation of the general budget Commission official of a given grade, of the European Communities on . . . whether he is working in Brussels or Luxembourg or London or any other part of the Community, should be able to buy exactly the same quantity of goods as his equal in another part of the Community . . . The problem of transfers The Commission urges the Council to is also one that has preoccupied the adopt the aforementioned article before Commission. There is a proposal for an the end of the year as well as Article 17 amendment of the Staff Regulations now of Annex VII which is the result of the under consideration. In our view, that Council's studies relating to the amendment must be adopted no later amendments to the Staff Regulations . . . than the present draft regulation and that, I think, covers another point about which there has been concern." The . . . regulation should come into effect on 1 January 1979 . . . and should apply from 1 April 1979. However, for pensioners in receipt of allowances whose net financial benefits will be less than those under the existing The Council did not succeed in 1978 in arrangements, the regulation will apply adopting the regulation proposed by the only from 1 October 1979." Commission on 6 October 1976 (Official Journal C 271, p. 5) "on the procedure for applying the European unit of account (EUA) to the legal acts adopted by the institutions of the European Communities". The Commission there- (b) On 21 December 1978 the Council fore set to work to bring up to date, in adopted Regulation No 3085/78 the light of the situation thereby created, (Official Journal 1978 L 369, p. 6), the exchange rates in respect of re- amending, with particular reference to muneration for officials as envisaged by the monetary parities to be used, Regu- the proposal of 1 April 1977. In an annex lation No 259/68 laying down the Staff to its Report in 1978 on the yearly Regulations of Officials of the European survey of the level of remuneration Communities and the Conditions of (COM(78) 673 final of 29 November Employment of Other Servants of the 1978) the Commission sent the following Communities, Regulation No 2530/72 communication to the Council on which and Regulation No 1543/73 concerning neither the Parliament, the Court of certain special measures. The regulation Justice nor the Staff Regulations embodies the wording of the communi- Committee was consulted: cation from the Commission of 29 Nov-

ember 1978 and also the formula in the changes which he sets out in detail contained in the proposal of 1 April 1977 in these proceedings, namely a reduction concerning the weighting to be applied of about 25%. to amounts transferred. The Council added, however: "From that date the difference between the net amounts resulting from the implementation of the regulation and those received in September 1979 shall be reduced by Vio per month." The regulation fixes 1 July In fixing the weighting referred to in 1978 as the relevant date for calculating Article 64 of the Staff Regulations, the remuneration paid in a currency other Council and the Commission have, since than Belgian francs on the basis of the 1967, used the following procedure for exchange rates used for the comparing the level of prices between implementation of the general budget ot Brussels and the various other places of the Communities and goes on to state employment. The Statistical Office of the that that date shall be changed at the European Communities, in conjunction time of the annual review of remuner- with the competent national offices, ation. carries out regular price surveys in respect of goods and services considered as representing typical items of house- hold expenditure for officials in the various places of employment.

For of the European Communities following example, the index calculated using the the amendment of the provisions of the "Fisher" method expresses in a single Staff Regulations concerning the figure the relationship of prices in monetary parities to be used in Brussels to those in Rome and vice vena. implementing the Staff Regulauons, That figure is used for calculating the which amended the value of the weightings within the Community weightings according to the various because it expresses the relationship of places of employment. In order to do prices from one town to another in a that the Commission and the Council of reversible manner and because it is the European' Communities used a for- therefore possible to make not only mula the intended result of which was bilateral but also multilateral pnce that in the case of each official or other comparisons. According to this method, servant employed outside Belgium or the weighting is obtained by dividing the Luxembourg the remuneration for April "Fisher" index calculated as described 1979 would be maintained at the same above, by the corresponding rate of level as that of the previous month. exchange used to convert the remuner- However, in the applicant's view, as far. ation of officials into the respective as the disposable amount of his remuner- national currencies in accordance with ation is concerned, that formula resulted Article 63 of the Staff Regulauons.

AMESZ » COMMISSION

October and November 1975 a Article 2 comparative study of prices was earned out in all the capitals of the Community. The weightings for Italy given in Article 1 of Regulation (Euratom, ECSC, EEC) No 1461/78 is repealed with effect from 1 January 1978." (d) Reguládon No 3087/78 of 21 December 1978 adjusting the weighting applicable to the remuneration and That regulation was adopted in the pensions of officials and other servants following circumstances: of the European Communities employed or having a home in Italy (Official The fall in the value of the Italian lira Journal L 369, p. 10) provides: which depreciated rapidly at the end of 1975 and the beginning of 1976 and the monetary measures taken by the Iulian Government as a result brought about "The Council of the European strong inflationary pressure. It led the Communities,.. • staff representatives in Ispra to submit a number of pay demands based on their claims that the weighting for Italy no Having regard to the proposal from the longer reflected the widening gap Commission, between the cost of living in Brussels and Ispra and that the weighting calculated according to the "Fisher" method led in particular to a large gap between the par Whereas the weighting for Italy should value of the lira in relation to the Belgian be corrected in line with the findings of franc on the currency markets and the the statistical surveys carried out by the equivalent value in lire of the remuner- Statistical Office of the European ation paid to officials at Ispra and Communities, considerably reduced the external pur- chasing power of the remuneration.

levels was then taken into account. The and services which are qualitatively and ensuing report found that there was a quantitatively identical. The Commission difference of 8.5% between the representatives rejected that basis of weighting for Italy, calculated for Varese reference but they did agree that the by the Statistical Office to be (121.5 to purchasing power parities used to the base 100 for Brussels) and the calculate the weighting might present weighting for Italy adopted by the some distortion. By a telex message of 12 Council (112.04 to the base 100 for December 1977 the staff representatives Belgium). Of that 8.5%, 6.7% was asked the Member of the Commission attributed to the widening gap between responsible for administrative matters, the cost of living index in Italy and that Mr Tugendhat, to make representations in Belgium from December 1975 to June to the Council in order to have the 1976. According to the Statistical Office weighting for 1977 acknowledged to be approximately 2% might be attributed to provisional. the difference in price levels between the Varese and Rome regions.

AMESZ v COMMISSION

Justification of the use of those prices by 2. Facts the need to introduce a system enabling weightings to be regularly adjusted. The applicant Amesz was engaged as an official by the Commission on 15 March 1961 and with effect from that day was assigned to the EAEC Joint Research The Commission representatives stated Centre in Ispra. He is now in Grade A 5. that the method proposed should apply He is a Netherlands national. On the to the weighting as from 1 January 1978 date on which this action was brought he while the staff representatives believed was 46 years old, was married and had there was justification for applying it four dependent children. from an earlier date and reserved their freedom of action before the Council on this point. They also pointed out that The applicant Bauch was engaged as an some disparity still remained owing in official by the Commission on 1 April particular to the differences in prices 1961 and with effect from that date was between Rome and Varese. assigned to the EAEC Joint Research Centre in Ispra. He is now in Grade B 1, Step 6. He is a German national. On the date on which this action was brought he was 51 years old, was married and had The working party's recommendations two dependent children. were incorporated in the Commission's proposal to the Council of 10 November 1978 to increase the weighting by 6.4°/o The applicant Flamm was engaged as an as from 1 January 1978 (Doc. COM(78) official by the Commission on 1 July 591). During the discussions at Council 1962 and with effect from that date was level the staff representatives refused to assigned to the EAEC Joint Research accept 1 January 1978 as the date for the Centre in Ispra. He is now in Grade A 4. entry into force of the amended He is a German national. On the date on weighting. which this action was brought he was 48 years old, was married and had three dependent children.

Grade A 5, Step 7. He is a German marks at a bank, an employee working national. On the date on which this at Ispra obtained in January 1976 34% action was brought he was 45 years old, less and in March 1979 35% less than was married and had three dependent his colleague in Brussels. children. The applicant Amesz used the direct The applicant Nijman was engaged as an transfer method in order to pay the official by the Commission on 1 March following expenses: 1961 and with effect from that date was assigned to the EAEC Joint Research Transfer of remuneration DM 3 000 Centre in Ispra. He is now in Grade B 2. Other monthly commitments HFL 2 835 He is a Netherlands national. On the date on which this action was brought he Annual holidays was 52 years old, was married and had in the country three dependent children. of origin, approximately HFL 585 Other monthly commitments, The method applicable until 31 March approximately HFL 100 1979 was advantageous for officials employed in Italy. It may be seen from this application that in the case, for Under the previous transfer system the example, of two employees of German financial position was as follows: nationality employed in Brussels and Ispra, in Grade B 3, Step 3, and married Net salary BFR 255 993 with two children at secondary school, who transfer through the Commission to Amount thereof paid LIT 2 079 937 the BHW house-purchase sayings Transfers: scheme 35% of their net salary (the (BHW)DM3 000 maximum), the one employed at Ispra Others HFL 3 520.48 obtained in January 1976 12% more Sum in lire LIT 1119 973 than his colleague in Brussels for the part Toul sum LIT 3 199 910 of his salary transferred to the Federal Republic of Germany, whereas in March 1979 he obtained 46.8% more. Under the new system the financial position appears to be as follows: Therefore, the applicants claim, a privilege was removed but the disad- Net salary BFR 122 591 vantages, which might have been to some Paid LIT 1 353 577 degree offset by the advantages of the Transfers: method previously applied, remained. (BHW) DM 3 000 Those advantages stem for example from Others HFL 3 520.47 the fact that in Italy property values do Sum in lire LIT 1 847 240 not increase in the same way as in the Federal Republic of Germany or from Totalsum LIT 3 180 817 the fact that officials employed in Italy have to use a larger portion of their On 15 April 1979 the loss was: salary to purchase currency if they do not wish to spend their holidays in Italy. Total sum LIT 727 267 Of total salary 22.7% If an official had to change a part of his remuneration, say 35%, into German Of March salary 35.0%

Net salary BFR 241 460 Net salary BFR 215 991 Amount thereof paid LIT 1 905 575 Amount thereof paid LIT 1 512 801 Transfers: Transfers: (BHW)DM3 113 (BHW) DM 1 830 (Commission) BFR 4 661 (Commission) BFR 3 985 (Others) DM 3 062.30 (Others) DM 2 164.09 Sum in lire LIT 1 112 700 Sum in lire LIT 731 806 Totalsum LIT 3 018 275 Total sum LIT 2 244 607

JUDGMENT OF 15. 12. 1982 — JOINED CASES 532, 5J4, 547, 600, 618 AND 660/79

Under the new system the financial Under the new system the financial position appears to be as follows: position appears to be as follows:

Net salary BFR 85 986 Net salary BFR 110 198 Amount thereof paid LIT 1 001 331 Paid LIT 1 199 504 Transfers: Transfers: (BHW) DM 1 830 (BHW) DM 1 924 (Commission) BFR 3 985 (Commission) DM 3 587.29 (Others) DM 2 164.08 (Other) BFR 3 402 Sum in lire LIT 1 243 772 Sum in lire LIT 677 750

Totalsum LIT 2 245 103 Total sum LIT 2 877 254

On 15 April 1979 the loss was: On 15 April 1979 the loss was:

Transfers : The applicants' complaints were received (BHW) D M 2 085 at the Commission on 21 June 1979. (Others) DM 2 608.82 Sum in lire LIT 1 328 400 On 28 September 1979 the Commission replied to the complaints of 21 June 1979 Total sum LIT 2 452 093 and once again to the complaints of 11 April 1979. On 15 April 1979 the loss was: These applications against the Commission and the Council were Total sum LIT 522 039 received at the Court on 11 October Of total salary 21.3% 1979 at the same time as 199 other parallel applications (Cases 530 to Of March salary 31.7% 729/79 and 781/79). 3. Written procedure By a letter of 27 December 1979 the applicants amended their applications to By identical complaints submitted under challenge, in addition to the salary Article 90 (2) of the Staff Regulations a statement for April 1979, that for large number of officials at Ispra made January 1979. objection to a reduction of approx- By document dated 11 January 1980 the imately 26% in their actual remuneration which they claimed was the result of the Council raised an objection of application of Regulations Nos 3085 and inadmissibility. 3086/78. They claimed that those regu- By a letter of 8 February 1980 the lations were unlawful and that Regu- Commission submitted its observations lation No 3087/78 had not been given on the amendment of the applications sufficient retroactive effect and asked for contending that the period prescribed for measures to be taken to make up for the bringing an action against the statements loss in purchasing power which they of 15 January 1979 had expired in claimed had taken place in 1976 and October 1979. 1977. On 19 June 1980 the Commission The applicants sent their complaints to withdrew "that objection. the Commission on 27 March and 11 April 1979. On hearing the report of the Judge- Rapporteur and the views of the Advocate General, the Court (First On 12 July 1979 the Commission Chamber) decided to open the oral rejected those complaints. procedure as to admissibility without any preparatory inquiry. By fresh complaints submitted in June 1979 and identical in form a large By order dated 10 November 1981, the number of officials at Ispra objected to Court (First Chamber) decided to join the application to their remuneration for the present cases for the purposes of the April 1979 of Regulations Nos 3085 and oral procedure and judgment. 3086/78 and the updated exchange rates fixed by those regulations and to the By order dated 10 November 1981 the changes in the method whereby officials Court (First Chamber) decided that these transferred a pan of their monthly salary applications were inadmissible in so far to a country other than that in which as they were directed against the they were employed. Council.

II — Conclusions of the parties under Article 17 of Annex VII to the Staff Regulations as up to March 1979 but increased by the 1. The applicants each claim that the percentage of the salary Court should: adjustment applied from April 1979 in accordance with Article I. As against the first defendant: 65 (1) of the Staff Regulations; 1. Declare unlawful and annul the salary statements issued by the 6. In the alternative to 5. above, first defendant for January and declare that from and including April 1979 and its decisions of 12 April 1979 the applicants have July 1979 and 28 September 1979 been entitled to remuneration on his complaints in so far as they calculated on the basis of the contain particulars of salary legal provisions in force and calculated on the basis of Regu- applicable until March 1979, lations Nos 3085, 3086 and Council Regulations Nos 3085 3087/78 of the Council of the and 3086/78 thus not being European Communities; applied, that is to say, in the same amount as the sum payable in 2. Declare that the applicant is Iulian lire after the same entitled to remuneration which transfers had been made in also takes account of the pur- accordance with Article 17 of chasing power of the Italian lira Annex VII to the Suff Regu- abroad as well as in the Province lations as up to March 1979; of Varese from the time when the applicant was posted to Ispra, but from no later than January 1976; 7. In the alternative to 6. above, declare that the applicants are 3. In the alternative to 2. above, entitled to remuneration which, declare that the applicant is after transfers of the same entitled to remuneration which amounts in accordance with also takes account of the pur- Article 17 of Annex VII to the chasing power of the Italian lira Suff Regulations, leaves a in the Province of Varese from disposable amount in lire the time at which the applicant corresponding to the amount in was posted to Ispra, but from no lire which the applicant had unul later than January 1976; March 1979, with of course an adjustment to the new legal 4. In the alternative to 2. and 3. situation arising out of Council declare that the applicants are Regulations Nos 3085 and entitled to remuneration which 3086/78 having to be made takes account of the purchasing during a transitional period from ower of the Italian lira, taking actual increases in salary in the S Lome as the base, from the time at which the applicant was posted future, but not from adjustments on the basis of Articles 64 and 65 to Ispra, but from no later than (1) of the Suff Regulations; January 1976; 5. Declare that from and including April 1979 the applicants have 8. As a further alternative to 6. and been entitled to remuneration 7. above, declare that the corresponding to at least what applicants are entided to re- they were paid in Iulian lire up muneration in accordance with to and including March 1979 Article 4 of Council Regulation after making the same transfers No 3085/78;

I. 1. Dismiss the applications as inadmissible in so far as they directly or indirectly challenge the Ill — Submissions and argu- correctness of the weighting ments of the parties applied for Italy to the applicants' salary statements for January and April 1979 by alleging Council It should be noted that the applicants Regulation No 3087/78 of 21 and the Commission request the Court December 1978 to be vitiated by to regard the arguments put forward in a mistake; the parallel case Birke (543/79) as forming an integral part of their 2. Dismiss the rest of the arguments in these cases. applications as unfounded as far as the Commission is concerned; The applicants Amesz, Hoffmann, Knoeppel and Nijman lay stress on the 3. Order the applicants to pay the fact that they require the amounts costs; transferred to Article 17 of Annex VII for the payment of their children's school II. In the alternative io 1.1. gram leave fees and the applicant Bauch for the for the Commission to give its views payment of voluntary contributions to within a period to be fixed by the the legal insurance pension scheme or for

JUDGMENT OF 15. 12. 1982 — JOINED CASES 532, 534, 567, 600, 618 AND 660/79

For an emoluments to such an extent that they official employed in Ispra an identical can no longer adequately cover their transfer of DM 1 000 to Germany would essential requirements in Italy if they also have amounted to BFR 13 660 at the continue to carry out long-term last IMF rate of BFŔ 13.66 to DM 1. commitments contracted by them on the However, converted into lire at the rate basis of a practice of transfers going of exchange applicable in 1965 (LIT 100 back several years. = BFR 8), that amount would have meant a reduction of only LIT 170 750 in the part of the remuneration paid in The Commission is of the opinion that a Italy. By the application of the new distinction must be made between the method, the remuneration at the disposal level of the remuneration and the of that official in Italy is reduced by LIT transfer system for emoluments.

between 1 January 1979 and 1 April 1979 in spite of the fact that they were The Commission refers to its pleadings aware of the imminent reform. To all in the Birke case (543/79) in which it intents and purposes they therefore claims in particular that by undertaking a agreed to reduce the portion of their reform of the transfer system it properly remuneration which remained available took care to safeguard the interests of in Italy. In any event that reduction was the officials concerned. nothing other than the price they had to pay for the exchange rate advantages which, during the period prior to 1 April Thus, an official employed in Brussels 1979, the application of the transfer before 1 April 1979 had to use an system at that time in force had brought amount of BFR 13 660 for transferring them without there being any objective to Germany an amount of DM 1 00O in justification for those advantages. accordance with Article 17 of Annex VII. Under the terms of the new rules governing transfers, the amount in The applicants request the Court to question is increased to BFR 15 968. declare that Regulation No 3086/78

The applicants claim that the heads of The question whether the weighting, claim should be interpreted to the effect altered by Council Regulation No that the applicants' remuneration ought 3087/78, is to take account of the cost to be calculated in accordance with the of living in Varese or in Rome is crucial. regulation as published in its original At the sitting in February 1981 the version. Consequendy the applicants are Commission's representative stated that, entitled to payment of the amount of the as regards the weightings applicable to resulting difference. places of employment, only the capitals could be taken into consideration because of the muliplicity of places of The Commission's statement that none employment which made it difficult to of the promises or guarantees which it adopt any different procedures. gave to the Parliament or the latter's However, under the Staff Regulations it resolution related to transfers and that is the actual place of employment which the Parliament itself authorized the is relevant and not the capiul of the losses incurred is wrong as is shown by country, seeing that approximately 1 800 Written Question No 2140/80 addressed officials are employed in Varese and by Mr Linkohr to the Commission: approximately 20 in Rome. Moreover it should be added that a weighting existed until 1970 for Varese. On 17 March 1981 the Commission informed the "1. The implementation of Council Council that as regards the weightings Regulations 3085/78 and 3086/78 applicable to the place of employment it has in part led to substantial was necessary to take into account not decreases in the salaries of only the capitals of the Member States Community officials. Officials whose but also the other places of employment place of employment is in Italy have in those countries in which it appeared been particularly affected, suffering from objective factors that there was a

risk of significant distortions regard examples the Commission used the being had to the information recorded in weighting of 137.6 provided for, by the capiul of the country in question Council Regulation No 1461/78 for when remuneration levels were Italy. In fact for the calculations carried established (Doc. COM(81) 109 final). out for the salaries of December 1978 it ought to have applied the legally applicable weighting of 146.8 laid down in Council Regulation No 3084/78. It is from that fact that the loss indicated and The applicants dispute the Commission's calculated by the applicants arises. The argument to the effect that Regulations Commission should therefore abandon Nos 3085/78 and 3086/78 brought its tactic of sowing confusion and agree about no reduction in the remuneration with the applicants at least on the basis paid to officials and claim that officials of objective dau. employed in Italy, in obtaining currency on the free market, had to spend for example LIT 26 for BFR 1, in other words, clearly more than was paid to them by application of the parity for The Commission is of the opinion that salaries of LIT 18.35 to BFR 1. It was the portion of the application relating to also specifically for that reason that the the correction of the published number of officials who could make weightings is not admissible since the transfers under Article 17 of Annex VII applicants' claim was not made the was extended. subject of a complaint pursuant to the provisions of Article 90 (2) of the Staff Regulations or, within the period specified, of an application under Article 91 (2). The applicants reject the Commission's argument that they ought to compare the losses incurred in April 1979 not to the salary for March 1979 when the In any event the application is weighting was 146.8 but to the salary for unfounded. It is clear from the concept December 1978 when the weighting was of a corrigendum in contrast to a sub- 137.6. For the reform introduced as from sequent amendment relating to the 1 April 1979 the Commission converted subsunce of a legal measure that a the weightings applied in March 1979 (as corrigendum does not have to be regards Italy 146.8 pursuant to Council adopted following the same procedure as Regulation No 3084/78). That con- the corrected measure itself. The version was carried out by Council Regu- correction of publishing errors conuined lation No 3086/78. Consequently a in Council regulations by means of a comparison between the months of simple corrigendum of the text published March and April is substantively appro- in the Official Journal is a normal priate and its content is correa. The practice. Hitherto, the Court has calculation of the remuneration current expressed no criticism of this practice. on 15 December 1978 was in fact carried out by means of the weighting of 137.6 for Italy pursuant to Council Regulation No 1461/78. That weighting was abolished on 21 December 1978 by a The sole purpose of the provisions of decision of the Council with retroactive Regulation No 3086/78 was to adjust effect to 1 July 1978 by Council Regu- the weighting of 146.8 laid down by lation No 3084/78 and replaced by the Regulation No 3084/78 of 21 December weighting of 146.8. In its numerical 1978 with effect from 1 July 1978 to the

monetary parities as amended by Regu- missibility of the applications alleging lation No 3085/78. The weightings that the weighting applicable to the appearing in the regulations adopted remuneration of officials employed in pursuant to Articles 64 and 65 of the Italy is wrong on the ground that it does Staff Regulations are calculated by not take into account the cost of living in dividing the index obtained by the use Varese or the cost of obtaining currency, of the "Fisher" method by the the Commission must then express its corresponding exchange rate used for the opinion in particular on the question conversion of officials' remuneration into whether the Council was able, at the the currency of the country of the place time when the weightings were laid of employment pursuant to Article 63 of down, to have regard to the efforts made the Sufi Regulations. Until 31 March by Member States to promote uniformity 1979 the rate applicable to that transfer in living conditions in their national was LIT 12.5 to BFR 1. With effect from territory. It would also have to reply to 1 April 1979, pursuant to the provisions the question to what extent the of Regulation No 3085/78, the rate applicants' staff representatives were able applicable became the rate used for the to justify the new method of calculating implementation of the general budget of the Fisher index on which the weighting the European Communities on 1 July was based. 1978, that is to say 26.1097 LIT to BFR 1. The weighting for Italy, which until 31 March 1979 had been 146.8, was then The argument cannot be accepted that a recalculated on the basis of the following member of the Parliament may put a formula: written question which shows that commitments were made to the Par- liament. It is clear moreover from the speech made by the President of the 146.8 x 12.50 (former rate of the lira) Committee on Budgets on 7 July 1977 26.1097 (new rate of the lira) before the Parliament that the latter had been informed of all the essential features of the updating of the transfer system. That calculation gives a result rounded up of 70.3. The case of temporary staff is no different from that of officials; they have no special right to protection of The weighting of 74.3 published in legitimate expectation. In fact their Official Journal L 369 of 29 December remuneration and the system of transfers 1978 on page 8 is therefore clearly a were not settled directly in the contract printing error. That error was therefore of appointment. In the same way, that properly corrected by means of a contract contains no provision stating corrigendum published in the Official that the Staff Regulations in force at a Journal which could not have affected given time must be applied to the sub- the rights of the applicants in any way. sequent performance of the contraa of Moreover, the Commission's communi- appointment without amendment. That cation to its staff in March 1979 contains means that in each case the Staff Regu- the correct weighting. lations in their latest form must be applied. Hence the provisions of Regu- lation No 3085/78 apply to the re- muneration of temporary staff and to If the Court does not share the transfers made by them in the same way Commission's opinion on the inad- as they apply to officials.

2 Until the end of 1978 the Staff Regulations provided that an official's remuneration was to be expressed in Belgian francs and paid in the currency of the country in which the official performed his duties on the basis of the par values accepted by the International Monetary Fund which were in force on 1 January 1965. Remuneration expressed in Belgian francs was to be weighted at a rate above, below or equal to 100 %, depending on living conditions in the various places of employment. Article 17 of Annex VII to the Staff Regulations enabled an official, within certain limits, to have part of his emoluments, regularly transferred through the institution to which the official belonged in the currency of the other Member States listed in that article.

AMESZ v COMMISSION

3 Following the devaluation of certain currencies since 1970 the Council used the weighting not merely to adjust remuneration according to living conditions in the various places of employment but also to compensate for the devaluation of certain weak currencies. As a result, if an official employed in a country having a weak currency transferred a part of his remuneration to a Member State having a strong currency he obtained special advantages.

4 On 21 December 1978 the Council adopted Regulation (Euratom, ECSC, EEC) No 3085/78 (Official Journal L 369, p. 6) amending the provisions of the Staff Regulations. The rate of exchange to be used for converting re- omuneration into the currency of the place of employment was to be that used for the implementation of the general budget of the European Communities on 1 July 1978. Article 17 of Annex VII to the Staff Regu- lations was also amended. In its new version paragraph (3) of Article 17 provides that:

, From 1975 officials employed at the Joint Research Centre in Ispra complained to the Commission that the cost of living in Italy had considerably increased and accordingly requested that the weighting for Italy be revised. They complained in particular that in their opinion the cost ot living in the Province of Varese was higher than m Rome and they urged the Commission to take account of that difference when fixing the weighting applicable to their remuneration.

io 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 effe«. 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.

„ On 26 June 1978 the Council adopted Reguládon No 1461/78 (Official lournal 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 suite that "a decision on the Commission proposal for the correction ot the

AMESZ v COMMISSION

weightings for three countries of employment will be taken only in the light of a study to be carried out by the Commission".

JUDGMENT OF 15. 12. 1982 — JOINED CASES 532, 5J4, 567, 600, 618 AND 660/79

i7 By circular letters of 12 July and 28 September 1979 the Commission rejected those complaints.

is The applicants therefore brought these applications against the Council and the Commission challenging the cost of transfers effected on the basis of Regulations Nos 3085/78 and 3086/78 as well as the amount and the date of application of the weighting adopted by Regulation No 3087/78.

i9 By an order of 10 November 1981 ([1981] ECR 2569), the Court (First Chamber) held these actions to be inadmissible in so far as they were directed against the Council.

Admissibility

20 The Commission has argued that the applications, to the extent to which they are directed against the application of Regulation No 3087/78, are inadmissible. In its view the complaints of 26 March 1979, relating to Regu- lation No 3087/78, concern the extension of retroactivity but contain no allegation relating to the method of calculating variations in living costs or, as a result, in the amount of the increase in the weighting. Those complaints were, it claims, made too late to challenge the non-payment of arrears in respe« of 1976 and 1977. The payment in January 1979 of the amount of the arrears relating solely to the period subsequent to 1 January 1978 confirms the monthly payments made prior to that date and may therefore be analysed as a measure confirmatory of previous decisions, not capable of founding an independent right of action.

25 As regards the contents of the applicants' complaints it is true that the complaint of 26 March 1979 merely requested "that the Commission immediately adopt the necessary measures to compensate for the losses in purchasing power in respect of 1976 and 1977 which have been duly recorded" without expressly mentioning the inadequacy of the weighting fixed as from 1 January 1978 by Regulation No 3087/78 and the complaint of 5 April 1979 is worded in similar terms. It should however be observed that the Commission's replies by way of circular letters dated 12 July and 26 September 1979 make no distinction between the complaints of the various officials complaining both of the amount of the adjustment to the weighting

JUDGMENT OF 15. 12. 1982 — JOINED CASES 532. 534, 567, 600. 618 AND 660/79

and of the date to which it was made retroactive or merely of one or other of the two aspects of the problem. In fact those replies merely reject all complaints.

26 In its judgment of 1 July 1976 in Case 58/75 Sergy v Commission-[1976] ECR 1139 the Court (First Chamber) held that under Article 91 of the Statt Regulations an appeal to the Court of Justice lies only if the appointing authority has previously had a complaint submitted to it and· the complaint has been rejected by a decision. The object of that provision is to permit and encourage an amicable settlement of the dispute which has arisen between officials or other employees and the administration. In order to comply with that requirement it is essential that the administration should be in a position to know the complaints or requests of the person concerned.

31 The applicants claim finally that the contested regulation prejudices the maintenance of their economic situation and ought therefore to be considered invalid because it is contrary to the legal principle of the main- tenance of acquired rights. Furthermore, the Commission has failed in its duty of assistance towards its officials and ought to have provided for a transitional period such as that laid down in favour of pensioners by Article 4 of Regulation No 3085/78.

32 It should be remembered that the Court, by judgments dated 4 February 1982 in Cases 817/79 Bttyl[\922) ECR 245; 828/79 Adam [1982] ECR 269 and 1253/79 Battaglia [1982] ECR 297 rejected submissions similar to those put forward by the applicant. It is sufficient to refer to those judgments to find that those allegations are unfounded.

33 As regards the weighting applied to officials employed in Ispra, the applicants are pursuing two objectives. First, they seek to obtain a revision of the amount of the weighting which, in their view, ought to be calculated on the basis of the cost of living at the officials' exact place of employment, in this case in the Province of Varese, and not automatically in the capiul of the country in question. In these cases, the applicants maintain that the cost of living in the Province of Varese was, during the years 1976 to 1978 sub- stantially higher than in Rome. Secondly, the applicants request that the weighting for Italy, fixed at 146.4 by Regulation No 3087/78, be applied retroactively to 1 January 1976.

34 In particular the applicants challenge their salary statements for January 1979 calculated on the basis of Regulation No 3087/78 which, in their view, is in

38 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 o n the

AMESZ » COMMISSION

«o Therefore it is for the Community institutions in cases in which the cost of living in such a place of employment undergoes fluctuations greater than those occurring in the capital of the State in question to determine separate weightings. Hence the applicants' submission relating to the calculation of the weighting affecting their salary on the basis of the cost of living in the Province of Varese must be considered well founded.

41 As regards the retroactivity of Regulation No 3087/78 the applicants claim that that regulation ought to have been applied as from 1 January 1976 since substantial increases in the cost of living had occurred as from that year.

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42 In fact it is clear from the reports of the Statistical Office of 17 and 29 June 1976 and from its memorandum of 17 August 1976 that changes of more than 2 % in the cost of living as against that at Brussels had occurred in 1976 both in Rome and, to a greater extent, in Varese.

43 The Commission states in that connection that Article 65 (2) of the Staff Regulations, which provides that "in the event of a substantial change in the cost of living, the Council shall decide, within two months, what adjustments should be made to the weightings and if appropriate to apply them retrospectively", must be understood as giving the Council discretionary power to decide whether measures adjusting weightings should be retroactive or not.

44 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 two 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.

On those grounds,

T H E C O U R T (First Chamber)

hereby:

1. Dismisses the applications in so far as they are founded on the alleged illegality of Council Regulations Nos 3085/78 and 3086/78;

2. Annuls the applicants' salary statements for January 1979, in so far as they are 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 applicants' complaints; declares Regulation No 3087/78 not applicable to the applicants in so far as it takes no account of the cost of living in Varese and limits the retroactive effect of the adjustment of the weighting to 1 January 1978;

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

OPINION OF MR ADVOCATE GENERAL CAPOTOMl

(see Case 158/79, p. 4404)