Súdny dvor Európskej únie·Rozsudok·27.10.1981

C-783/79

ECLI:EU:C:1981:245

Súd: Súdny dvor Európskej únie
IČS: 61979CJ0783
Zdroj: eur-lex.europa.eu ↗

J U D G M E N T O F T H E C O U R T (FIRST CHAMBER) 17 OCTOBER 1981

Gerhard Venus and Wolfgang Obert ν Commission and Council of the European Communities

(Temporary servants — Rate of exchange for the transferable part of their remuneration)

Joined Cases 783 and 786/79

1. Officials — Applications to the Court — Prior complaint through official channels — Object — Act having an adverse effect adopted by the appointing authority (Staff Regulations of Officials, Arts 90 and 91)

2. Officials — Applications to the Court — Act having an adverse effect — Concept — Pay slip applying new rules concerning remuneration (Staff Regulations of Officials, Arts 90 and 91)

1. Under Articles 90 and 91 of the 2. The pay slip whereby the Staff Regulations of Officials the administration applies new regulations complaint, and consequently the concerning remuneration constitutes application, may be directed only an act liable to have an adverse effect against an act having an adverse effect within the meaning of the Staff Regu adopted by the appointing authority. lations.

In Joined Cases 783 and 786/79

GERHARD VENUS AND WOLFGANG OBERT, temporary servants of the Commission of the European Communities, employed by the Joint European Torus (JET) Joint Undertaking at Culham (UK), represented and assisted by Ernest Arendt, of the Luxembourg Bar, 34B Rue Philippe-II, Luxembourg, applicants, ν

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Joseph Griesmar, acting as Agent, with an address for service in Luxembourg at the office of Oreste Montako, Jean Monnet Building, Kirchberg,

1 — Language of the Case: French.

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and COUNCIL OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, John Carbery, acting as Agent, with an address for service in Luxembourg at the office of Douglas Fontein, head of the Legal Department of the European Investment Bank, Kirchberg,

defendants,

APPLICATION in the terms set out in the pleadings,

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

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

Advocate General: F. Capotorti Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

The facts of the case and the The version of Article 63 of the Staff conclusions, submissions and arguments Regulations of Officials in force until 31 of the parties put forward during the March 1979 provided that "Remuner- written procedure may be summarized as ation paid in a currency other than follows : Belgian francs shall be calculated on the basis of the par values accepted by the International Monetary Fund which were I — Facts and procedure in force on 1 January 1965". Reference was also made to the "IMF par values" The background of these cases, as with regard to the transfers provided for regards the provisions involved, may be in Article 17 of Annex VII made at the analysed as follows: request of officials who wished to have

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part of their remuneration available in, virtue of the wording of the Staff Regu- for example, their country of origin. lations then in force, subject to the same weighting as that applicable to the remuneration as a whole (namely the weighting applicable to the place of employment which was intended to take into account the particular living This system had been adopted at a time conditions there). The combined effect when exchange rates were fixed and its of the high weighting applicable in the application proved satisfactory as long as place of residence and or payment in the

they remained fixed. Complications arose when currencies began fluctuating, that currency of the country where the is to say from around 1971. The solution institution had its seat (as authorized on then adopted to deal with that situation the one hand by Article 82 of the Staff consisted in fixing the weighting referred Regulations concerning the weighting to in Article 64 of the Staff Regulations and on the other hand by Article 45 of in such a way that it made allowance not Annex VIII of the Staff Regulations only for changes in the cost of living but concerning the choice which may be also for currency fluctuations. The result made between three currencies of was of course that the weighting applied payment) was to make a second to countries with a strong currency was exchange gain possible. adjusted downwards and, conversely, the weighting for countries with a weak currency such as Italy, the United Kingdom and Ireland, was adjusted

upwards. The lawfulness of that system With a view to eliminating the was challenged by Mr Advocate General distortions to which the retention of the Mayras in his opinion in Case 26/74 reference to the "IMF par values" in the (Gillet [1975] ECR 463, at p. 475), since Staff Regulations were giving rise, the in his view Article 64 had clearly been Commission submitted to the Council on conceived and had clearly been 1 April 1977 a proposal for amendment formulated with the aim that the of the Staff Regulations, involving weighting should only compensate for abandonment of the "IMF par values" variations in the cost of living. and updating of the rates of exchange Nevertheless, the system was satisfactory (Official Journal C 99 of 22. 4. 1977, p. in practice, as far as salaries were 5). For such updating, it was proposed, concerned, and did not in any way pursuant to Article 63 of the Staff Regu- change the net salaries received by lations, that "the calculation" of the officials assigned elsewhere than to remuneration "shall be made on the basis Belgium or to Luxembourg, regardless of of the value of (the currency of payment) whether the currency of the country in terms of the European Unit of concerned was weak or strong. Account on 1 January 1977" (the latter date being liable to be changed at least once a year).

It was simultaneously proposed, with regard to the transfers provided for in Article 17 of Annex VII, that they should be made "on the basis However, transfers made by officials of the value of the European Unit of assigned to countries whose currencies Account (EUA) specified in . . . Article had become "weak" to countries with a 6 3 " and that moreover the amounts "strong" currency gave rise to an transferred should be "weighted by a "exchange gain". Moreover, the amount coefficient representing the ratio between of the remuneration transferred was, by the weighting for the country in the

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currency of which the transfer is made remuneration and pensions of Officials and the weighting for the country of the and Other Servants of the European official's employment". Communities following the amendment of the provisions of the Staff Regulations concerning the monetary parities to be used in implementing the Staff Regu- Having received that proposal and after lations (Official Journal 1978, L 369, p. obtaining the opinion of the European 8). Since the point of departure (amount Parliament and of the Court of Justice of the remuneration expressed in Belgian with regard thereto, the Council adopted francs, the currency in which the re- Regulation No 3085/78 on 21 December muneration was to be expressed) in fact 1978, amending, with particular refer- theoretically remained unchanged, as far ence to the monetary parities to be used, as calculation of the payment was Regulation No 259/68 laying down the concerned and since the point of arrival Staff Regulations of Officials of the (amount in national currency of European Communities and the payment) was also normally to stay the Conditions of Employment of Other same, it was appropriate that, as soon as Servants of the Communities, Regulation one of the parameters (rate of exchange) No 2530/72 and Regulation No 1543/73 involved in calculation of the payment concerning certain special measures underwent a change, the second (Official Journal 1978, L 369, p. 6). parameter (weighting coefficient) should Regulation No 3085/78, which was to be adjusted to ensure the neutrality of apply from 1 April 1979, updates the the transaction. parities referred to in Article 63 of the Staff Regulations, in this way: the Belgian franc remains the currency in which the remuneration is to be The applicants, who are temporary expressed, but is to be converted for the servants, of German nationality, at the purposes of payment into another Joint European Torus (JET) Joint currency "on the basis of the exchange Undertaking, complain of the loss they rates used for the implementation of have suffered as a result of the new the General Budget of the European arrangements adopted in Regulations Communities on 1 July 1978". As Nos 3085/78 and 3086/78 which entail, regards the weighting to be applied to at their expense, an increase in the cost the amounts transferred, Regulation No of the transfer in accordance with Article 3085/78 adopted the formula contained 17 of Annex VII to the Staff Regu- in the proposal of 1 April 1977. lations, made at their request through the institution.

At the same time as the exchange rates In the offers of employment signed were updated, it was appropriate to respectively on 8 November and 13 adjust the weightings applicable to the December 1978 (Dr Venus) and on 27 various places of employment so that October 1978 (Dr Obert) by the Head every official (or temporary servant) of Personnel at the JET Joint Under- assigned elsewhere than to Belgium or to taking, it was stated that the proposed Luxembourg would be assured that his remuneration was made up of a part remuneration for April 1979 would payable in sterling at the place of remain at the same level as his re- employment at the rate of UKL 1 = muneration for the previous month, this BFR 140 and of another part, known as being achieved by Council Regulation the transferable part, payable in German No 3086/78 of 21 December 1978 marks in the country of origin at the rate adjusting the weightings applicable to the of DM 1 = BFR 13.66.

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As a result of the new rules, the rate of that is to say Regulations Nos 3085/78 exchange of the German mark against and 3086/78. the Belgian franc went up from BFR 12.50 to BFR 15.76; transfers from the Even before that circular was distributed, United Kingdom, the country of the applicants submitted a complaint to employment, to the Federal Republic of the Commission dated 26 March 1979. Germany, the country of origin, were In that complaint the applicants claimed thenceforth made at the rate of UKL 1 that the above regulations should not be = D M 6.096 whereas previously UKL 1 applied or at least that "appropriate was worth upon transfer (140 : 13.66 = ) transitional measures" should be D M 10.24. Thus, for a transfer of D M adopted. 1 000, the exchange value which, The Commission replied on 12 July 1979 according to the previous rates of informing the persons concerned that on exchange, was UKL 97.57 in March the one hand it could not, without 1979 (corresponding to BFR 13 660), in exceeding its powers, refrain from April went up to UKL 164.05, by virtue applying Council regulations which had of the new rates provided for in Article duly entered into force and on the other 63 of the Staff Regulations UKL 1 = hand that it approved in substance the D M 3.86) and of the adjustment arising amendments which had been made to the from the weighting represented by the Staff Regulations. ratio between the new "Germany" weighting (98.7) and the new "United The applications in these proceedings Kingdom" weighting (62.5). were recorded at the Court Registry on 22 October 1979 (in the case of the In the case of Dr Venus, the amount of Venus application 783/79) and on 26 whose transfers in April 1979 was D M October 1979 (in the case of the Obert 4 318.96, the increased cost amounted to application 786/79). UKL 709.38 (exchange value in By an order of 13 December 1979, the April of the amount Court (First Chamber) decided to join transferred) the cases for the purposes of the — UKL 421.40 (exchange value in procedure and the judgment. March of the amount transferred) On hearing the report of the Judge- UKL 287.98. Rapporteur and the views of the Advocate General, the Court (First In the case of Dr Obert, whose transfers Chamber) decided to open the oral were of D M 4 363.03, the increased cost procedure without any preparatory amounted to: enquiry. UKL 716.61 (exchange value of the amount in April) — UKL 425.70 (exchange value of the II — C o n c l u s i o n s of t h e p a r t i e s amount in March) UKL 290.91. The applicants claim that the Court should: By a circular of 4 April 1979, the Head of Personnel at the J E T Joint Under- 1. Rule that the decision of the taking informed the European Atomic applicants' employer, whereby the Energy Community and J E T personnel conversion rate for the transferable that as from 1 April 1979 new rules were part of their remuneration is fixed at to enter into force for calculating the UKL 1 = D M 6.09 is void or else not transferable part of their remuneration, applicable to the applicants;

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2. Rule, on the contrary, that the Regulations Nos 3085/78 and 3086/78 conversion rate for that transferable had the effect of unilaterally changing part is the rate fixed by contract the agreed conversion rate and therefore between the parties, namely UKL 1 the employer infringed the contractual = (140 : 13.66) = DM 10.24; rights validly acquired by the applicants.

3. Order the Commission to repay to the The applicants maintain that they left applicants the loss of salary sufferedtheir employment and families in the owing to and since the application of Federal Republic of Germany to take up the rules in issue; the posts offered by the Commission on the faith of the specific proposals, 4. Order the defendants to pay the costs containing detailed figures, which had of the action. been made to them during the negotiations which preceded their engagement. The possibility of trans- The Commission contends that the Court ferring a substantial part of their remun- should : eration at the rate of DM 1 = BFR 13.66 to their country of origin, where 1. Dismiss the applications as inad- they would still have major financial missible; commitments, was a deciding factor in their entering into the contracts and 2. In the alternative, dismiss them as should therefore be regarded as an unfounded. essential aspect thereof.

The applicants claim that it would be The Council, in a written submission on contrary to the general principle of legal a procedural issue lodged pursuant to certainty that they should be exposed to Article 91 of the Rules of Procedure, a radical change in their circumstances contends that the Court should declare brought about by interference with the applications inadmissible as far as the fundamental conditions which were such Council is concerned. as to induce them to accept their posts.

The applicants are of the opinion, in the III — Submissions and argu- second place, that by unilaterally ments of the parties changing their terms of remuneration the employer has breached the rule laid down by the Court in its judgment of The applicants maintain that their rights 5 June 1973 (Case 81/72 Commission v and obligations in their capacity as Council [1973] ECR 575) protecting the temporary servants are derived in the confidence that the staff could have that first place from their contract of the authorities would respect their under- employment and not from the Staff takings. Regulations of Officials (Case 25/68 Schemers Parliament [1977] ECR 1729). In its defence submissions, the Com- mission contends that the admissibility of The offers of employment accepted by these applications seems doubtful, on the applicants stated that the conversion more than one ground. rate of the part of their remuneration transferable to the Federal Republic of The Commission points out that the Germany had been fixed at DM 1 = applicants seek annulment of the BFR 13.66. "employer's decision whereby the

VENUS AND OBERT v COMMISSION AND COUNCIL

conversion rate for the transferable part measure in respect of which an of their remuneration is fixed at UKL 1 application may be made. It is a = D M 6.09" without specifying the date document the scope of which is merely and the nature of the contested decision. to explain the content and consequences The Commission therefore takes the of new provisions of the Staff Regu- view that three possibilities should be lations and is intended to provide "clarifi- envisaged : cations" as to the consequences of Regu- lations Nos 3085/78 and 3086/78. According to the Commission therefore — First: the applications seek a the memorandum does not constitute a declaration that Regulations Nos measure having an adverse effect in 3085/78 and 3086/78 of the Council respect of which an action can be are void and inapplicable. brought. The Commission takes the view that the concept of a measure having an adverse effect is very closely linked with The Commission states that in those the concept of an interest in taking legal circumstances these applications are proceedings but, in its view, the inadmissible having regard to the order applicants have no interest which can be of the Court of 4 October 1979 in Case furthered by annulment of the circular in 48/79 (Ooms and Others v Commission question, since neither its legality nor [1979] ECR 3121) in which the Court even its existence affects the lawfulness stated: of subsequent decisions as to calculation of remuneration, those decisions having been taken to implement not the circular "According to Article 91 (2) of the Staff but the new provisions of the Staff Regu- Regulations actions by officials instituted lations. under Article 179 of the EEC Treaty must be directed against the appointing authority and relate to acts or omissions The applicants' complaint is therefore to of that authority which adversely affect be ascribed not to the underlying the applicants. The action does not measures, Regulations Nos 3085/78 and satisfy that condition since it relates to 3086/78, or to the explanatory circular the annulment of a Council Regulation of 4 April 1979, but to the decisions . . . Furthermore since Regulations Nos involved in calculating their remuner- 3085/78 and 3086/78 constitute neither ation for April which gave rise to the a decision addressed to the applicants alleged loss. nor a decision which although in the form of a regulation is of direct and — Third: the applications seek individual concern to them, the annulment of the individual decisions application is likewise inadmissible in so regarding calculation of the far as it is based upon Article 173 of the applicants' remuneration in respect of EEC Treaty." April 1979 in regard to which Regu- lations Nos 3085/78 and 3086/78 were applied for the first time. — Second: the applications seek annulment of the circular of 4 April 1979 issued by the JET The Commission considers that the administration. applications appear to be inadmissible in this third case because the calculation of the applicants' remuneration for the The Commission maintains that that month of April was not the subject of memorandum does not constitute a any complaint on their part. By their

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complaint of 26 March 1979 directed of 4 April 1979 is a document of a against Regulations Nos 3085/78 and merely explanatory nature and not 3086/78, the applicants asked that the therefore one which can be contested rules should not be applied to them. That before the Court. By means of that complaint having been rejected, the explanatory note, the employer in fact applicants were entitled to lodge a informed the staff of the J E T Joint complaint against the actual decision Undertaking that as from 1 April 1979 relating to the calculation of remuner- the new rules relating to the methods of ation. However, no such complaint was calculating remuneration and transfer ever lodged. rates established by Regulations Nos 3085/78 and 3086/78 would likewise be applied to the remuneration paid by JET. For the above reasons the Commission is Consequently, the note of 4 April 1979 of the opinion that the first head of gave notice to the applicants, for the first claim of the application is inadmissible. time, of the new rates which were to be applied to transfers by staff under contract to JET. That note was therefore As regards the second head of claim not one of a merely explanatory nature. seeking repayment of the alleged loss of remuneration, the Commission takes the view that it too is inadmissible by reason The applicants maintain that it was of the inadmissibility of the first head of impossible to bring their action in respect claim in the application. of the pay slips since, as from April, they would have had to lodge a complaint The Commission relies on the judgment through official channels each month of the Court of 12 December 1967 against the calculation of their monthly (Case 4/67, Muller (née Collignon) ν salary until the Court had finally given a Commission [1967] ECR 365) in which decision on their application. the Court stated that the inadmissibility of a request for annulment involves the inadmissibility of a claim for damages The applicants consider that the matter closely linked with the request for in issue was properly submitted to the annulment. Commission by the two complaints through official channels of 15 and 26 March 1979. In their view, the aim of In their reply the applicants state that Article 91 (2), which is intended to allow they lodged not pnly a complaint on and encourage amicable settlement of 26 March 1979 but also a collective any difference which arises between the complaint on 15 March 1979 signed by officials or servants and the adminis all the EAEC servants at JET. Moreover, tration, was thus attained. Therefore, it they point out that in its examination of would have been superfluous to lodge the admissibility of the application the fresh complaints against the employer's Commission fails to mention the express subsequent decisions and in particular decision rejecting the complaint through against the memorandum of 4 April 1979 official channels, signed by Mr and against the monthly pay slips. Tugendhat on 12 July 1979.

The applicants take the view that As regards the admissibility of the Council regulations may be contested application, the applicants are of the indirectly by officials by means of an view that it is incorrect to assert, as does objection of illegality (Article 184 of the the Commission, that the memorandum Treaty).

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On all the foregoing grounds, the Servants" and by Article 17 of Annex applicants are of the opinion that the VII, which in conjunction with Article 63 application is admissible. Accordingly, of the Staff Regulations defines the their request for compensation for the terms on which an official may transfer loss arising from the entry into force of part of his remuneration. They should Regulations Nos 3085/78 and 3086/78 have known that those provisions were is likewise admissible. The applicants amended by Regulations Nos 3085/78 take the view that the request for and 3086/78. The Commission therefore compensation flows by implication, but rejects the applicants' argument that the not of necessity, from the request for memorandum of 4 April 1979 " . . . is annulment. equivalent with respect to (them) to the decision of which (they) seek annulment and of which (they) do not know the In its rejoinder, the Commission observes precise date and nature". that regulations cannot be contested by means of the objection of illegality provided for in Article 184 of the Treaty, The Commission also rejects the since the applications are not admissible applicants' argument as to the need that under either Article 179 or Article 173 of would have arisen for them to lodge a the Treaty. Applications by officials complaint through official channels each lodged under Article 179 must be month as from April against the monthly directed against the appointing authority calculation of their remuneration. and must specify the acts or omissions on According to the Commission, a the part of that authority, and that complaint followed by an application, condition is not fulfilled where the both directed against the salary slip for application is directed against a Council the month of April 1979, would have regulation. been valid as a complaint and application against the subsequent salary slips.

Moreover, since Regulations Nos As regards the applicants' observation 3085/78 and 3086/78 do not constitute a that the application is also directed decision addressed to the applicants, the against the Commission's decision of 12 application is also inadmissible because it July 1979 whereby their complaint was is based on Article 173 of the Treaty. expressly rejected, the Commission asserts that decisions of the Court have The Commission states that the consistently indicated that an application memorandum of 4 April 1979 does not of that kind is to be regarded as constitute a measure having an adverse inadmissible (judgments of 8 February effect, in respect of which an application 1973 in Case 33/72 Gunnelia v may be lodged. That memorandum Commission [1973] ECR 475 and of 15 could not be in the nature of a general June 1976 in Case 1/76 Mack v decision whose object was to render Commission [1976] ECR 1017). The Regulations Nos 3085/78 and 3086/78 measures having an adverse affect applicable to some of the Commission consisted of measures capable of directly staff. The Commission is of the opinion affecting a specific legal situation that those regulations, which are (judgment of 10 December 1969 in Case mandatory and enforceable in their own 32/68 Grasselli v Commission [1969] right, were in fact implemented as soon ECR 505). as they were applied to the staff as a whole. The applicants should know that A confirmatory measure, like the their situation is governed by the Commission's decision of 12 July 1979, "Conditions of Employment of Other is one whereby the appointing authority,

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having received at an earlier stage a reimburse them for the loss of salary complaint within the meaning of Article suffered by them in consequence of and 90 (2) of the Staff Regulations, confirms since the time of application of Regu in its reply the decision against which the lations Nos 3085/78 and 3086/78, the complaint is directed. The application Council relies on the case-law of the should be directed against the decision Court (judgments of 20 October 1975 having an adverse effect and not against in Case 9/75 Meyer-Burchhardt ν the confirmatory measure. Commission [1975] ECR 1171 and of 17 February 1977 in Case 48/76 Reinarz The Council, in its objection of ν Commission and Council [1977] ECR inadmissibility, contends that the act 291) to support its view that the actions having an adverse effect is an brought by the applicants in respect of administrative measure taken by the non-contractual liability are inadmissible Commission, namely the application as for the same reasons as those already from 1 April 1979 to the applicants of indicated with regard to the application the conversion rates determined in for annulment based on Article 91 of the accordance with Regulations Nos Staff Regulations. 3085/78 and 3086/78 to the transferable portion of their remuneration. The In their reply to the objection of application of those rates, in the inadmissibility raised by the Council, the Council's view, was the responsibility of applicants state that it is not their the Commission as the appointing intention to bring a direct action against authority as regards the servants of the the Council but believe that it is appro JET Joint Undertaking recruited by it. priate for the Council, which drew up The Council is of the view that in those the regulations called in question by the circumstances the applications are not to application, to have an opportunity to be regarded as direct actions against the express its view on the grounds of their Council alleged illegality.

The applicants are of the opinion that Article 91 (1) of the Staff Regulations of the conditions for admissibility pre Officials provides that the Court has scribed in Article 184 of the Treaty have jurisdiction " . . . in any dispute between been fulfilled. the Communities and any person to whom the Staff Regulations apply The application is directed, in the first regarding the legality of an act adversely instance, against a decision having an affecting such person within the meaning adverse affect taken by the appointing of Article 90 (2)". The latter provision authority, the matter at issue having defines the concept of an act having an previously been submitted to it in adverse affect, stating that the appointing accordance with Article 90 (2) of the authority must have taken a decision or Staff Regulations. That decision having failed to adopt a measure prescribed by an adverse effect was taken on the the Staff Regulations. The Council basis of two Council regulations. In maintains therefore that, since it is not consequence, in the applicants' view, the the appointing authority as far as the conditions for admissibility prescribed in applicants are concerned, a measure Article 91 of the Staff Regulation and in adopted by it cannot constitute an act Article 184 of the Treaty have been having an adverse effect within the fulfilled. meaning of Article 90 (2) of the Staff Regulations. As regards an application to establish non-contractual liability pursuant to As regards the applicants' request that Anicie 215 (2) of the Treaty, the the Commission should be ordered to applicants state that it is not their

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intention to lodge such an application IV — Oral procedure against either the Council or the Commission. In the applicants’ view, the Commission's obligation to compensate them for their loss of remuneration arises The parties presented oral argument at from breach of the contract of the sittings on 19 and 20 February 1981. employment. That contract is between the Commission and the applicants and accordingly is of no concern to the The Advocate General delivered his Council. opinion at the sitting on 14 May 1981.

Decision

1 By applications lodged at the Court Registry on 22 October 1979 and 26 October 1979 the applicants, Dr G. Venus and Dr W. Obert, temporary servants of the Commission working at the Joint European Torus (JET) Joint Undertaking in the United Kingdom brought actions pursuant to Article 91 of the Staff Regulations of Officials (hereinafter referred to as "the Staff Regulations") for annulment of the Commission's decision whereby the conversion rate for the transferable portion of their remuneration was fixed at UK = D M 6.09.

2 By Council Decision of 30 May 1978 (Official Journal 1978 L 151, p. 10) a joint undertaking called "Joint European Torus (JET), Joint Undertaking" (hereinafter referred to as "JET") was set up, its aim being to construct, operate and exploit a large torus facility of the Tokamak type and its auxiliary facilities. Article 2 of the decision provides that the Statutes of JET, annexed to the decision, are to be adopted. Article 8.5 of the Statutes provides inter alia that, unless decided otherwise in certain special cases, staff is to be recruited by the Commission for temporary posts in accordance with the "Conditions of Employment of Other Servants of the European Communities" (hereinafter referred to as the "Conditions of Employment") and assigned by the Commission to the Joint Undertaking.

3 The applicant Dr Venus is of German nationality. He is a certificated physicist and a doctor in natural sciences of the Technical University of Munich. He was recruited as a temporary servant, assigned to J E T and classified in Grade A 4, Step 1, on the basis of offers of employment dated

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8 November 1978 and 13 December 1978. In the offer of 13 December 1978 it was stated that of his total salary, expressed in Belgian francs and amounting to BFR 155 842 per month, he could transfer to his country of origin 35%, that is to say BFR 54 545, at a rate at which the actual cost of the transfer would be only UKL 389.60, which would leave the applicant with a balance of salary of UKL 723.56. The applicant accepted the offer and entered into a written contract with the Commission on 13 December 1978.

4 The applicant Dr Obert is of German nationality. He is a certificated physicist of the University of Karlsruhe. He was recruited as a temporary servant, classified in Grade A 5, Step 3, on the basis of an offer of employment dated 27 October 1978 accompanied by a calculation of his net remuneration, in which it was stated that of his total salary, expressed in Belgian francs amounting to BFR 157 247 per month, he could transfer to his country of origin 35 %, that is to say, BFR 55 036, at a rate at which the actual cost of the transfer would be only UKL 458.63, leaving him a balance of salary of UKL 664.56. The applicant accepted the offer and entered into a written contract with the Commission on 21 November 1978.

5 The contracts entered into with the applicants provided that the latter would be bound by the provisions applicable to temporary servants in accordance with Article 2 (a) of the Conditions of Employment.

6 The provisions concerning remuneration and reimbursement of expenses for such staff appear in Chapter 5 of the Conditions of Employment. Article 27, which is part of that chapter, provided that Articles 16 and 17 of Annex VII to the Staff Regulations are to apply to them by analogy.

7 The applicants then regularly transferred throught the Commission part of their emoluments in the currency of their country of origin pursuant to Article 17 of Annex VII to the Staff Regulations.

8 On 21 December 1978, the Council adopted Regulation (Euratom, ECSC, EEC) No 3085/78 (Official Journal L 369, p. 6) Article 1 of which provides that Article 63 of the Staff Regulations is to be replaced by the following:

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"Officials' remuneration shall be expressed in Belgian francs. It shall be paid in the currency of the country in which the official performs his duties.

Remuneration paid in a currency other than Belgian francs shall be calculated on the basis of the exchange rates used for the implementation of the general budget of the European Communities on 1 July 1978.

This date shall be changed, at the time of the annual review of remuneration provided for in Article 65, by the Council acting by a qualified majority upon a proposal from the Commission as provided in the first indent of the second sub-paragraph of Articles 148 (2) of the EEC Treaty and of 118 (2) of the Euratom Treaty.

Without prejudice to the application of Articles 64 and 65, the weightings fixed pursuant to these Articles shall, whenever the above date is changed, be adjusted by the Council, which, acting in accordance with the procedure mentioned in the third paragraph, shall correct the effect of the variation in the Belgian franc with respect to the rates referred to in the second paragraph."

9 Article 2 of the Regulation provides :

"Article 17 of Annex VII shall be replaced by the following:

Article 17

1. Payment shall be made to each official at the place and in the currency of the country where he carries out his duties.

2. Under the terms laid down in rules drawn up by common agreement by the institutions of the Communities, after consultation of the Staff Regu- lations Committee, an official may:

(a) through the institution which he serves, regularly have part of his emoluments transferred up to a maximum amount equal to his ex- patriation or foreign residence allowance; — either in the currency of the Member State of which he is a national,

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— or in the currency of the Member State in which either his own domicile or the place of residence of a dependant relatives is located,

— or in the currency of his previous country of employment or of the country in which his institution has its seat, provided that the official in question has been assigned to a post outside the territory of the European Communities;

(b) have regular transfers made in excess of the maximum stated at the beginning of paragraph (a) provided that they are intended to cover expenditure arising in particular out of commitments proved to have been regularly undertaken by the official outside the country where the institution has its seat or outside the country where he carries out his duties;

(c) be authorized, in very exceptional circumstances and for good reasons supported by evidence, to have transferred, apart from the aforementioned regular transfers, sums which he may wish to have available in the currencies referred to in paragraph (a).

3. The transfers provided for in paragraph (2) shall be made at the exchange rate specified in the second paragraph of Article 63 of the Staff Regulations; the amounts transferred shall be multiplied by a coefficient representing the difference between the weighting for the country in which the official is employed."

10 Article 4 of Regulation No 3085/78 provides that it is to enter into force on 1 January 1979 and is to apply as from 1 April 1979.

π On 21 December 1978, the Council also adopted Regulation (Euratom, ECSC, EEC) No 3086/78 adjusting the weightings applicable to the remun eration and pensions of Officials and Other Servants of the European Communities following the amendment of the provisions of the Staff Regu lations concerning the monetary parities to be used in implementing the Staff Regulations. Article 1 (1) of the regulation fixes, inter alia, the weighting applicable to the remuneration as 98.7 for the Federal Republic of Germany and 62.5 for the United Kingdom.

VENUS AND OBERT v COMMISSION AND COUNCIL

12 As a result of the new rules, the rate of exchange for the German mark against the pound sterling changed from UKL 1 = DM 10.24 to UKL 1 = DM 6.096 and consequently the application of those rules entailed, according to the applicants, a substantial decrease in their effective salary, the amount transferred in German marks remaining the same but the balance paid in pounds sterling being decreased.

1 3 Pursuant to Article 46 of the Conditions of Employment, the provisions of Title VII (namely Articles 90 and 91) of the Staff Regulations concerning appeals are applicable by analogy to the applicants.

1 4 By a letter of 15 March 1979, the applicants and other scientists employed as servants with JET sent a collective request to the JET Council asking it to set up an interim system which would avoid any reduction in their effective salary.

15 In letters sent by them separately on 26 March 1979 the applicants asked that the rules in issue should not be applied to them or that the Commission should apply compensatory interim measures in their case.

16 By letter of 12 July 1979, the Commission replied on the one hand that it could not, without exceeding its powers, refrain from applying Council regu- lations which had duly entered into force and on the other hand that it approved in substance the amendments which had been made to the Staff Regulations.

17 The applicants then brought their actions against both the Council and the Commission. They ask that the Court declare that their employer's decision whereby the conversion rate for the transferable portion of their remuner- ation is fixed at UKL 1 = DM 6.09 is void, or else that it is not applicable to them; to declare that, on the contrary, the rate of exchange for that transferable portion is the one fixed by contract between the parties namely UKL 1 = DM 10.24 and to order the Commission to reimburse them for the loss of salary suffered by them as a result of the rules in issue.

JUDGMENT OF 27. 10. 1981 — JOINED CASES 783 AND 786/79

18 The applicants rely on two grounds. The first is the infringement of acquired rights. According to the applicants, the conditions applicable to temporary servants are based on their contract of employment. The rights and obligations of the applicants are therefore derived in the first place from their contract of employment and not from the Conditions of Employment. The terms of remuneration were in the circumstances the subject of a special agreement between the parties. The various components of that remuneration were set out in the offers of employment of 26 October 1978 (Obert) and 8 November and 13 December 1978 (Venus). Those rights and obligations could not be unilaterally changed by the rules in issue and the employer therefore infringed the rights which the applicants had validly acquired by contract.

19 The second ground is breach of the principle of the legitimate expectation which every official may have with regard to the conduct of the authority employing him. Both applicants left their employment, and Dr Venus also left his family, to take up the posts offered by the Commission on the faith of the specific proposals, containing detailed figures, which had been made to them during the negotiations which preceded their engagement; the possibility of transferring a substantial portion of their remuneration at the rates specified in the offers of employment to their country of origin where they would still have major financial commitments was a deciding factor in their entering into the contracts and should therefore be regarded as an essential aspect of their appointment. It would be contrary to the general principle of legal certainty that the applicants should be exposed to a radical change in their circumstances brought about by interference with fundamental conditions of such a nature as to induce them to accept their posts.

Admissibility

20 By written submission lodged at the Court Registry on 14 January 1980 the Council raised an objection of inadmissibility pursuant to Article 91 of the Rules of Procedure of the Court. Neither the subject-matter of the applications nor the conclusions contained in them called in question any measure taken by the Council. The Council is not the appointing authority as far as the applicants are concerned. Moreover, the applicants never sent the Council a complaint within the meaning of Article 90 (2) of the Staff Regu- lations. As regards the request that the Commission be ordered to reimburse them for their loss of salary in consequence of and from the time of application of the rules in issue, apart from the fact that that request refers expressly to the Commission, the applicants' action in respect of non-con-

VENUS AND OBERT v COMMISSION AND COUNCIL

tractual liability is also inadmissible. The damage allegedly suffered by the applicants is to be regarded as a direct consequence of the application of the decision in respect of which a declaration of nullity is sought and, in those circumstances, the action to establish liability is merged with the action for annulment.

21 In reply to the Council the applicants state that it is not their intention to bring an action specifically against one of its measures but add that they thought that they should indirectly involve the Council in the proceedings since the rules in issue originated from it. They state that they do not seek and have never sought to bring an action to establish non-contractual liability under Article 215 of the Treaty, against either the Council or the Commission.

22 The objections must be upheld. Under Articles 90 and 91 of the Staff Regu- lations the complaint, and consequently the application, may be directed only against the appointing authority and the act having an adverse affect must have been adopted by that authority.

23 In its defence, the Commission also contends that the application is inadmissible. It envisages three possibilities regarding the request for annulment of the "employer's decision whereby the conversion rate for the transferable part of their remuneration is fixed at UKL 1 = 6.09 DM". If the applications seek annulment of Regulations Nos 3085/78 and 3086/78 they do not refer to a measure by the appointing authority and are thereby inadmissible. If the applications seek annulment of the circular of 4 April 1979, issued by the JET administration, the applications are likewise inadmissible, in the first place because that circular is merely a document which explains the content and consequences of the new provisions of the Staff Regulations and cannot therefore constitute a measure having an adverse affect within the meaning of Article 90 of the Staff Regulations: in addition, because the applicants did not lodge any complaint regarding the circular. Finally, if, as postulated as the third possibility, the applications seek annulment of the individual decisions regarding calculation of the re- muneration in respect of April 1980, they are likewise inadmissible because the calculation of the applicant's remuneration for the month of April was not the subject of any complaint at all on their part. Inadmissibility of the claim for annulment involves inadmissibility of the claim for compensation linked with the first mentioned claim.

JUDGMENT OF 27. 10. 1981 — JOINED CASES 783 AND 786/79

24 In reply the applicants state that the Commission may not, without contradicting itself, reproach the applicants for not lodging a prior complaint through official channels against a decision which, according to the Commission, may not be annulled or amended. The matter in issue was properly submitted to the Commission by the complaints through official channels of 15 and 26 March 1979 and consequently the applications, in so far as they are directed against the employer's decision to calculate their remuneration in accordance with the rules in issue, are admissible and accordingly their action seeking compensation for the damage suffered by them in consequence of that decision is also admissible.

25 The action is also inadmissible in so far as it is directed against the Commission. The applicants' complaints date from March 1979. Only on 15 April 1979, when preparing the pay slip for April 1979, did the Commission apply the new regulations and thus adopt the first measure liable adversely to affect the applicants in the manner provided for in the Staff Regulations. The complaints were therefore premature. After receipt of their pay slips for April 1979 the applicants did not at any time lodge complaints against that measure pursuant to Article 90 (2) of the Staff Regulations. If the complaints of 15 and 26 March are to be regarded as requests as provided for by Article 90 (1) of the Staff Regulations, inviting the Commission to adopt a decision with respect to them, the applicants did not lodge complaints as provided for by Article 90 (2) of the Staff Regulations against the Commission's refusal to take such a decision, regardless of whether that refusal was constituted by the circular letter of 4 April 1979 or by the letter of 12 July 1979. In the absence of a complaint duly lodged in accordance with Article 90 (2) of the Staff Regulations, following a measure having an adverse effect, the applications are inadmissible.

26 It is regrettable that the Commission should have given the applicants, in the offers of employment of 27 October and 13 December 1978, specific details as to the exchange rates applicable to the transfers, knowing as it did that those rates would be considerably affected by the regulations which, at the time the offers of employment were made, it was insistently asking the Council to adopt before the end of 1978. However, that fact has no effect on the admissibility of the applications.

27 Having regard to the foregoing considerations, the applications must be dismissed as inadmissible.

VENUS AND OBERT v COMMISSION AND COUNCIL

Costs

28 Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs.

29 However, since the terms of the Commission's offers of employment were a factor in the applicants' decision to bring their applications the Commission is ordered to pay the costs of the proceedings.

On those grounds,

THE COURT (First Chamber)

1. Dismisses the applications as inadmissible.

2. Orders the Commission to pay to costs of the proceedings.

Bosco O'Keeffe Koopmans

Delivered in open court in Luxembourg on 27 October 1981.

A. Van Houtte G. Bosco Registrar President of the First Chamber

OPINION OF MR ADVOCATE GENERAL CAPOTORTI

(see Case 167/80, [1981] ECR 1512)