C-828/79

JUDGMENT OF 4. 2. 1982 — CASE 828/79

Staff Regulations that treatment, the 3. Discrimination consists of treating in object of which is to ensure that the an identical manner situations which Staff Regulations are applied to the are different or treating in a different officials and other servants of those manner situations which are identical. two bodies and to identify the The situation of a serving official appointing authority for those differs considerably from that of a employees, does not however extend pensioner, so that there is no dis- to the application of the provisions of crimination in a case where the the Treaties, such as Article 24 of the Community legislature accords to Merger Treaty, relating to the adop- pensioners treatment which is not tion of Community regulations. identical to that applied to serving officials.

In Case 828/79

ROBERT ADAM, an official of the Commission of the European Communities at the Ispra Joint Research Centre, Varese, Italy, represented by Cesare Ribolzi, of the Milan Bar, with an address for service in Luxembourg at the Chambers of Victor Biel of the Luxembourg Bar, 18a Rue des Glacis, applicant, v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Oreste Montalto, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg, Jean Monnet Building, Kirchberg,

defendant,

JUDGMENT

Facts and Issues

The facts of the case and the of exchange ruling on the date of the conclusions, submissions and arguments transfer". The "official exchange rate" of the parties put forward during the within the meaning of that provision was written procedure may be summarized as the last parity accepted by the Inter- follows : national Monetary Fund, which had not been altered since 1 November 1969 (for example, BFR 13.66 = D M 1).

I — Facts and p r o c e d u r e After the collapse in 1971 of the inter- national system of fixed exchange rates, which is at the heart of those provisions, the parities came to reflect less and less 1. Background provisions the purchasing power of the currencies involved and their value on the inter- This case should be seen against the national money market. Officials who background of the following provisions: had transfers made to countries the value of whose currency had increased in relation to the parities notified to the (a) In the version in force until International Monetary Fund were thus 31 March 1979 Article 63 of the Staff able to realize gains on the exchange Regulations of Officials provided that: rate, as compared with transfers made in normal market conditions.

Pensioners were able to derive special On 1 April 1977 the Commission advantages from these provisions. If they submitted to the Council a proposal for a declared their domicile to be in a Council regulation introducing the country whose currency had diminished European unit of account (EUA) into the in value, the weighting in respect of that Staff Regulations (Official Journal 1977 country was applied to their pension in C 99, p. 5). That proposal was rejected accordance with Article 82 (1) of the by the Staff Regulations Committee, to Staff Regulations. Article 45 of Annex which it had been referred. The Council VIII to the Staff Regulations gave them obtained the opinion of the European the opportunity of having their pensions Parliament and of the Court of Justice. paid in the strong currency of their By resolution of 7 July 1977 (Official country of origin or of that of the seat of Journal C 183, p. 55), the Parliament the institution to which they belonged. approved the proposal taking note of This state of affairs was condemned by "the Commission's assurance that its Mr Advocate General Mayras in his proposal will in no way affect the real opinion in Case 28/74 Gillet, [1975] value of the payments made to officials ECR 475. in the form of remuneration, pensions and allowances". At the sitting, the Member of the Commission responsible for administration, Mr Tugendhat, In 1974 the Commission submitted stated: "The object of the Commission's proposals to the Council with a view to system is financial neutrality, and what abolishing the anomalies in the rules we think that our system can achieve is governing the payment of remuneration an equality of purchasing power. What and pensions brought about by the we want is that a Commission official of break-down in the international system a given grade, whether he is working in of fixed exchange rates. 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 The proposal for a Council regulation transfers is also one that has preoccupied amending the Staff Regulations of the Commission. There is a proposal for Officials, submitted to the Council by the amendment of the Staff Regulations the Commission on 13 June 1974 now under consideration. In our view, (Official Journal 1974 C 88, p. 25) that amendment must be adopted no provided for an amended version of later than the present draft regulation, Article 17 (4) of Annex VII to the Staff and that, I think, covers another point Regulations: about which there has been concern."

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 L 369, p. 6), amending, the exchange rates in respect of re- with particular reference to the monetary muneration for officials which was parities to be used, Regulation N o envisaged by the proposal of 1 April 259/68 laying down the Staff Regu- 1977. In an annex to its report in 1978 lations of Officials of the European on the yearly survey of the level of Communities and the Conditions of remuneration (Doc. C O M . (78) 6735 Employment of Other Servants of the final of 29 November 1978), the Com- Communities, Regulation N o 2530/72 mission sent the following communi- and Regulation N o 1543/73 concerning cation to the Council on which neither certain special measures. The regulation the Parliament, the Court of Justice nor embodies the wording of the communi- the Staff Regulations Committee was cation from the Commission of 29 consulted: November 1978 and also the formula contained in the proposal of 1 April 1977 concerning the weighting to be applied to amounts transferred. The Council ". . . The first two paragraphs of Article added however: "From that date the 63 are replaced by the following : difference between the net amounts resulting from the implementation of the regulation and those received in September 1979 shall be reduced by 1/10 'Officials' remuneration shall be per month." The regulation fixes 1 July expressed in Belgian francs. It shall be 1978 as the relevant date for calculating paid in the currency of the country in remuneration paid in a currency other which the official performs his duties. than Belgian francs on the basis of Remuneration paid in a currency other the exchange rates used for the than Belgian francs shall be calculated on implementation of the general budget of the basis of the exchange rates used for the Communities and goes on to state the implementation of the general budget that that date shall be changed at the of the European Communities on . . . time of the annual review of re- muneration.

weighting according to the various places Commission dated 27 August 1979 as of employment, in such a way that every constituting an individual express official or temporary employee employed decision on the complaints. elsewhere than in Belgium or Luxem- bourg received the same level of re- This application, dated 10 December muneration in April 1979 as his re- 1979, was received at the Court on muneration for the preceding month. 21 December 1979, at the same time as Since the point of departure — the the other parallel applications (Cases 829 amount of the remuneration in Belgian to 1204/79, 1249 and 1250/79). francs — remained in effect ex hypothesi the same, as regards payment transactions, and the end of the It was subsequently decided that this case procedure — the amount of the payment should become a test case. in national currency — ought itself normally to remain the same, therefore On hearing the report of the Judge- as soon as one of the parameters of Rapporteur and the views of the payment, for example the exchange rate, Advocate General, the Court (First was altered it was necessary to adjust the Chamber) decided to open the oral second parameter (weighting) in such a procedure without any preparatory way as to ensure the neutrality of the inquiry. transaction.

II — C o n c l u s i o n s of t h e p a r t i e s 2. Facts and procedure

ADAM v COMMISSION

that the applicant is entitled to have The principle of non-discrimination is the parts of his salary which are paid also breached. In fact, there are no in Italian lire and in foreign currency transitional provisions applicable to the maintained unchanged, consolidated special category of officials who make at the March 1979 level until the transfers authorized by the Commission, effects of the change are absorbed by whereas Regulation No 3085/78 increases in remuneration — other contains such provisions with regard to than those payable in respect of those entitled to pensions. The necessary variations in purchasing power — and pre-condition for application of the is also entitled to rectification of the principle of non-discrimination, namely monthly payments made in the the similarity of the situation at the time intervening period; when such similarity is called in aid, is certainly satisfied in this case.

4. Order the defendant to pay the costs of the proceedings. The applicant contests the lawfulness of the weighting introduced by Regulation N o 3086/78 and the methods by which The Commission claims that the Court it was calculated. In fact, instead of the should: rule laid down in the first paragraph of Article 64 of the Staff Regulations being followed, the weightings were fixed so as Dismiss the application as unfounded; to obtain, by a simultaneous application of the new exchange rates, salaries nominally equal to those paid in March Order the applicant to pay the costs. 1979. The applicant claims that the infringement of that provision also amounts to a case of misuse of power since the Commission used the weighting III — Submissions and argu- for a purpose different from that laid m e n t s of t h e p a r t i e s down in the rules for that institution.

Regulations concerning the monetary therefrom are governed by regulations. It parities used in application of the Staff is thus pointless for the applicant to Regulations and the detailed ar- maintain that the draftsmen of the Staff rangements for the transfer of part of an Regulations intended to introduce, by official's emoluments to a country other means of Article 17 of Annex VII, an than the country of employment of the "exchange guarantee" for the benefit of person concerned". officials so as to safeguard them for all time from the effects of such fluctuations as might occur in the monetary parities and from the increased cost to which As regards the alleged individual decision such fluctuations might give rise with of 28 September 1979, it was notified "in regard to the financial obligations incertam personam", on an unspecified assumed by the staff in any particular

completeness. Subsequently, as a result of the new situation in which currencies float, it became in practice easy to take improper In its defence, the Commission points out advantage of the ratio legis of Article 17 that before the rule of protection of of Annex VII, since transfers of a part of legitimate expectation may be relied officials' remuneration, although within upon, the authority concerned must have the limits laid down in a "code of good entered into commitments, that is to say conduct" established in June 1974, "assumed obligations which it has bound became a means of obtaining "strong itself to observe" (cf. Case 81/72 currencies" at a rate much lower than Commission v Council [1973] ECR 575). the market rate, with consequent adverse At no time has the defendant given the effects on the Community budget. applicant an undertaking not to change the conditions of the Staff Regulations governing the employment relationship, The staff could not have been under any in particular as far as the detailed misapprehension as to the practical arrangements for transfers are con- repercussions on transfers of the

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JUDGMENT OF 4. 2. 1982 — CASE 828/79

As regards the allegation of insufficient consultation, the Commission observes that the applicant's view would be well founded if, after a first proposal from the Commission was put forward and before In his reply, the applicant emphasizes the Council adopted any decision on it, a that the Commission deliberately omitted quite new proposal was submitted, that is to mention an essential fact, namely that to say one concerning other matters or whilst in the past transfers outside Italy making substantial amendments (cf. a could be made at a favourable exchange contrario Case 41/69 ACF Chemiefarma rate, the value of the remaining re- [1970] ECR 661). In the same way, the muneration was reduced by the un- consultation procedure provided for in favourable impact of that same exchange Article 10 of the Staff Regulations does rate. The Commission was not entitled to

ADAM v COMMISSION

parity and the monetary parity. The beneficial to his own interests, a serving applicant maintains that in the past the official's residence is linked to his place Commission — at the expense of of employment and involves the need for criticism, on legal grounds, from the transfers of funds to another State or financial controller but with the clear States. In the third place, the refusal to intention of offering some compensation draw a comparison between serving to the staff — extended the possibilities officials and retired officials goes too of making transfers abroad. far; both cases are concerned with relationships and benefits which have the

be left untouched. Since the Parliament Council Regulation N o 160/80). explicitly mentions transfers in the second recital in the preamble to its resolution, it is clear that the guarantees that the rights of the staff would be left untouched related also to those transfers. By adhering to its position, the The applicant reiterates the objection Commission is guilty of very serious that essential procedural requirements misconduct consisting of misleading the have been infringed, indicating that the Parliament, which had assumed the role 1977 proposal sought inter alia to of intermediary regarding the guarantees introduce the European unit of account given to officials. into the Staff Regulations and to express in those units all the amounts until then expressed in Belgian francs, whilst Regu- lation N o 3085/78 maintains the Belgian franc as the monetary parameter and only the parities to be used pursuant to The applicant is of the opinion that, for the Staff Regulations are changed a number of reasons, serving officials together with the detailed arrangements

for any partial transfer of emoluments rates in pursuance of a decision of the outside the State of the place of Commission of 4 November 1974 and of employment. These differences of the Director General for Administration principle between the two instruments of 21 January 1976. seem even more substantial if the following is borne in mind: that the proposal related to a measure which was intended to conform to the Community monetary policy and to apply in practice the unit of account which was created on 18 December 1975 in all the areas of activity governed by the Treaties; that those fundamental objectives were not attained by Regulation N o 3085/78 (the In its rejoinder, the Commission admits important sector of the common agri- that the weighting has been used for a cultural policy in particular being purpose other than that for which it was excluded therefrom); that in view of the designed, but asserts that this was done fact that the unit of account was solely to protect officials from the definitive and subject to changes in case adverse effects of an out of date of need, the regulation provides that the exchange rate. The Council regulations power of review is to be exercised only contested in these proceedings made it when the annual examination of remun- possible to bring order into the system, eration takes place, even though the on the one hand by restoring to the interests of officials may in the meantime weighting its essential function of have been seriously harmed; that whilst making adjustments for the cost of living the 1977 proposal does not provide for and, on the other hand, by applying the adoption of supplementary provisions exchange rates which are fully in line regarding transfers, Regulation No with reality. If, before the adoption of 3085/78 refers to rules established on the Regulation N o 3087/78, advantages in basis of common agreement by the respect of transfers had been desired by the Commission to offset an inappro- institutions of the Communities after priate weighting, there would be no consultation of the Staff Regulations grounds for granting such compensation Committee, since those rules lay down after the weighting was increased by restrictive and inflexible limits on 6,4% because there would no longer be transfers, they make Regulation No anything to compensate. 3085/78 much more important than the 1977 proposal; that numerous "inno- vations", of which there is no trace in the 1977 proposal, were incorporated in Regulation No 3085/78, such as transfers effected by officials serving outside the territory of the Community and the introduction of other currencies, transfers in exceptional circumstances, transitional provisions in favour of pensioners, whilst rules of no lesser The Commission replies that the opinion necessity which were envisaged in the given by the Parliament on 15 October proposal were not included in the regu- 1974 is favourable to amendment of the lation, such as calculation for the weighting applicable to transfers and reimbursement of expenses still carried that inter alia it advocates the use for out on the basis of quarterly exchange the amounts to be transferred of a coefficient based on the ratio between

the weighting fixed for the country in loss of any advantage, why did the latter whose currency the transfer was made demand that the previous system, which and the weighting applicable to the gave them "no advantage" should be remuneration of the officials. That applied to them? The fact that pensioners opinion was not retracted in 1977 and have the opportunity to establish their the definitive text adopted by the residence where they wish has no legal Council in 1978 incorporated the effect other than to show that the amendment proposed by the Parliament positions under the Staff Regulations are in May 1974 in its precise terms. The different and are not comparable.

currency. The "financial neutrality" execution of such transfers in a manner which was expected to be the result of allowing considerable profits to be made the proposed system referred to the total in certain cases. Although there is dis- remuneration, disregarding any transfers, crimination, those discriminated against so that the total remuneration remained are not officials employed in Italy but at exactly the same level as before those employed in Belgium! As regards adjustment of the rates. The Parliament the absence of transitional measures, it is cannot have been mistaken on this point sufficient to point out that the essential since immediately after referring to the feature of transitional provisions is their "financial neutrality" Mr Tugendhat, the "voluntary" character. Member of the Commission who was concerned, drew the attention of the Members of the Parliament to the specific problem of transfers, which, he said, "is also one that has preoccupied the Commission". The report of the

The other the system of transfers gave no numerous "innovations" are, in the advantage to officials. If there was no opinion of the Commission, measures of

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3 In accordance with Article 17 of Annex VII to the Staff Regulations an official may have part of his emoluments transferred either regularly or on an exceptional basis to a country other than that in which he performs his duties. Until 31 March 1979 Article 17 (4) provided that such transfers were to be made through the institution which he serves "at the official exchange rate ruling on the date of transfer". The "official exchange rate" within the meaning of that provision was the last parity accepted by the International Monetary Fund, which had not been altered since 1 November 1969 (for example, BFR 13.66 = D M 1).

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

"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 provied in the first indent of the second subparagraph of Articles 148 (2) of the EEC Treaty and of 118 (2) of the Euratom Treaty.

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, or in the currency of the Member State in which either his own domicile or the place of residence of a dependent relative 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 whose currency the transfer is made and the weighting for the country] in which the official is employed.' "

1 1 The applicant therefore brought this action asking the Court (1) to annul the implied decision rejecting his complaint, and, in the alternative, the "so- called" express decision of 28 September 1979; (2) to declare unlawful the decrease in the part of the remuneration paid to the applicant in Italian lire, ceteris paribus, with effect from April 1979; (3) to declare that the applicant is entitled to have the parts of his salary which are paid in Italian lire and in foreign currency maintained unchanged, consolidated at the March 1979 level, until the effects of the change are absorbed by increases in re-

JUDGMENT OF 4. 2. 1982 — CASE 828/79

muneration — other than those payable in respect of variations in purchasing power — and is also entitled to rectification of the monthly payments made in the intervening period.

12 The applicant relies in the first place on certain grounds based on an infringement of essential procedural requirements. H e maintains that the contested regulations were adopted without prior consultation with the institutions concerned referred to in Article 24 of the Treaty of 8 April 1965 establishing a single Council and a single Commission of the European Communities (hereinafter referred to as "the Merger Treaty"). The Economic and Social Committee was not consulted, nor was the Court of Auditors which, according to the applicant, are the institutions concerned within the meaning of that article. Moreover, consultation with the European Parliament took place on the basis of a proposal from the Commission which was considerably different from the text of the regulation adopted by the Council.

I n f r i n g e m e n t of e s s e n t i a l p r o c e d u r a l r e q u i r e m e n t s

15 It should be noted that, when changes are made to the Staff Regulations of Officials and the Conditions of Employment of Other Servants, Community law requires that the Parliament and the Court of Justice be consulted and that the opinion of the Staff Regulations Committee be obtained. Article 24 of the Merger Treaty provides that "The Council shall, acting by a qualified majority on a proposal from the Commission and after consulting the other institutions concerned, lay down the Staff Regulations of Officials of the European Communities and the Conditions of Employment of Other Servants of those Communities". Article 10 of the Staff Regulations provides that the Staff Regulations Committee (consisting of representatives of the Staff Committees) is to be consulted by the Commission on any proposal for the revision of the Staff Regulations.

16 A distinction should however be made between the requirements of Community law applicable to Regulation N o 3085/78, which involves amendment of the Staff Regulations, and those applicable to Regulation N o 3086/78, which adjusts the weightings. A regulation such as Regulation N o 3086/78, which determines the weightings, is adopted by the Council on a proposal from the Commission pursuant to Article 64 of the Staff Regu- lations, which imposes no obligation involving consultation.

17 As regards Regulation No 3085/78, it is true that Article 24 of the Merger Treaty provides for consultation with the other institutions concerned, one of those being the Parliament. That consultation, which in particular enables the Parliament effectively to participate in the Community's legislative process, is an essential feature of the institutional balance which the Treaties seek to achieve. Regular consultation with the Parliament constitutes therefore an essential procedural requirement, the disregard of which renders the

"Whereas the sole purpose of the Commission's proposals submitted to Par- liament is to express in European units of account those values (re- munerations, allowances, transfers of funds, weightings, tax) hitherto expressed in Belgian francs, without affecting the rights of staff or exposing their emoluments to possible fluctuations;

ADAM v COMMISSION

Whereas following the introduction of the European unit of account, weightings will no longer be required to correct exchange parities and will henceforth be used principally to take account of increases in the cost of living, as originally intended;

Whereas the Commission has given assurances that its proposals will in no way adversely affect the remunerations and other allowances of officials and other servants of the European Communities;"

20 The resolution asks the Commission to introduce, in good time, the administrative arrangements needed to ensure that the application of the European unit of account does not disrupt existing administrative practices or even temporarily harm the interests of the European Civil Service and notes the Commission's assurance that its proposal will in no way affect the real value of the payments made to officials in the form of remuneration, pensions and allowances.

21 In a communication to the Council dated 29 November 1978 the Commission expressed the desire that Article 1 of its proposal of 1 April 1977 should be amended. The text of the new proposal corresponds to the frist two paragraphs of Article 63 as amended by Regulation N o 3085/78. In the same communication, the Commission proposed a transitional period of six months, that is to say until 1 October 1979, for pensioners and recipients of allowances whose net emoluments would suffer a reduction following the updating.

25 In those circumstances, further consultation with the Parliament regarding the contested provisions was unnecessary.

26 As regards the argument put forward by the applicant that the Economic and Social Committee and the Court of Auditors are institutions within the meaning of Article 24 of the Merger Treaty, and that consultation with them is an essential condition for the adoption of a regulation amending the Staff Regulations, it should be remembered that the Treaties establishing the Communities contain provisions specifying the institutions of the three Communities. The Economic and Social Committee and the Court of Auditors are not among those institutions. Accordingly, consultation with the Economic and Social Committee and the Court of Auditors was not mandatory.

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27 It is true that, according to the second paragraph of Article 1 of the Staff Regulations, the Economic and Social Committee and the Court of Auditors are treated as Community institutions for the purposes of the Staff Regu- lations. That treatment, the object of which is to ensure that the Staff Regu- lations are applied to the officials and other servants of those two bodies and to identify the appointing authority for those employees, does not however extend to the application of the provisions of the Treaties, such as Article 24 of the Merger Treaty, relating to the adoption of Community regulations.

C o n t e n t a n d effects of t h e r e g u l a t i o n s

29 The applicant's arguments are based on the premise that he is entitled to have the exchange rate applied to transfers made pursuant to Article 17 of Annex VII to the Staff Regulations maintained at a level enabling him to receive, after making those transfers, a balance of remuneration in Italian lire equal to the amount he received in March 1979, at least until he is clear of the commitments he entered into before April 1979. It should, however, be noted that the exchange rates applied until April 1979 were particularly favourable to officials employed in countries with a weak currency. In fact, the weighting had been fixed so as to take into account the devaluation of the currency in the place of employment, and was applied to the remuner- ation in its entirety, whereas the transfers were made at the exchange rate for the year 1969. As from April 1979 remuneration was calculated on the basis of the updated exchange rates, so as to ensure that each official received the

JUDGMENT OF 4. 2. 1982 — CASE 828/79

same total remuneration, expressed in national currency, as he received in March 1979. Transfers continued to be made at an exchange rate more favourable than the official rate, although less favourable than the rate pre- viously used, this being achieved by application to the amount transferred of the weighting derived from the relationship existing between the weighting fixed for the country in whose currency the transfer was made and the weighting fixed for the country in which the official was employed. This method of calculating the exchange rate was intended to enable an official employed in a country with a weak currency to make the transfers in question in respect of the same part of his total remuneration as an official employed in a country with a strong currency.

33 On the other hand, after the amendment to the Staff Regulations resulting from Regulation N o 3085/78, it was possible to restore the proper function of the weighting, namely that of reflecting the living conditions in the various places of employment. Although the cost of the transfers was rendered less favourable, the system nevertheless continued to benefit officials employed in a country with a weak currency.

34 It appears therefore that even though there may be limits on the powers of the Community legislature to reduce the benefits enjoyed by officials under a system provided for in the Staff Regulations, the view that in this case those limits have not been observed cannot be upheld.

35 The applicant also criticizes the manner in which the weighting is calculated in Regulation N o 3086/78. According to him, that calculation consists of an accounting device intended to leave things as they are, except with regard to the adverse effect on transfers, which constitutes a misuse of power.

36 In that respect, it should be noted that the adjustment of the exchange rates made by Regulation No 3085/78 removed the need for use of the weighting to compensate for the devaluation of certain currencies. Although as a result the weighting was fixed in such a manner as to give each official the total remuneration he would have received under the old system and although in certain cases that involved the loss of certain advantages regarding transfers, that consequence was in harmony with the purpose for which the Staff Regu- lations were amended and could not be described as a misuse of power.

41 The arguments based on the alleged discrimination must therefore be rejected.

42 Consideration of the submissions of the applicant having shown that none of the grounds relied upon may be upheld, the action must be dismissed as unfounded.

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Costs

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

44 Nevertheless, pursuant to Article 70 of the Rules of Procedure, the institutions are to bear the costs which they have incurred in proceedings commenced against them by officials of the Community.

Delivered in open court in Luxembourg on 4 February 1982.

J. A. Pompe G. Bosco Deputy Registrar President of the First Chamber

O P I N I O N O F MR ADVOCATE GENERAL C A P O T O R T I

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