C-194/80

J U D G M E N T OF T H E C O U R T (SECOND CHAMBER) 19 NOVEMBER 1981 1

Paolo Benassi ν Commission of the European Communities

(Staff Regulations of Officials — Transfer of pension rights)

Case 194/80

Officials — Remuneration — Basic salary — Concept — Application for the determi­ nation of the years of pensionable service to be credited in the event of transfer ofpension rights (Staff Regulations of Officials, Art. 66 and Annex VIII, Art. 11 (2))

The basic salary, as provided for in expression "basic salary" cannot vary Article 66 of the Staff Regulations of from one provision to another in the Officials, comprises the amounts shown absence of objective considerations in the table contained in that provision, justifying such a difference. adjusted, where appropriate, by the weighting adopted for the seats of the The concept of basic salary as thus Communities by the Council in the light defined is valid in particular for the of the annual review provided for by application of Article 11 (2) of Annex Article 65, and the meaning of the VIII to the Staff Regulations.

APPLICATION for a declaration that the number of years of pensionable service with which the applicant is to be credited by the Commission under its own pension scheme, on the basis of the amount of the actuarial equivalent or the sums repaid, referred to in Article 11 (2) of Annex VIII to the Staff Regulations, must, pursuant to the General Provisions for giving effect to the said Article 11 (2), and in particular pursuant to Article 3 (3) of the said General Provisions, be calculated with reference to the official's basic annual salary, irrespective of the weighting, which in this case is 148.7 pursuant to Regulation No 2998/75 of the Council of 17 November 1975,

THE COURT (Second Chamber)

composed of: O. Due, President of Chamber, P. Pescatore and A. Chloros, Judges,

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

gives the following

BENASSI ν COMMISSION

By letter of 17 March 1980, received at In Italy, his country of origin, the the Secretariat General of the applicant had completed 186 months of Commission on 18 March 1980, the pensionable service, which represented applicant lodged a complaint under the sum of LIT 4 478 420, corresponding Article 90 of the Staff Regulations to BFR 343 495 at the relevant rates of contesting essentially the application of exchange. the weighting to his basic annual salary,

JUDGMENT OF 19. 11. 1981 — CASE 194/80

BENASSI ν COMMISSION

retirement. Case 114/7 Jacquemart ν Commission, in which the Court, taking the view that Article 65 of the Staff Regulations The defendant is also of the opinion that allowed the Council to choose the most there are no grounds for contesting the suitable ways and means of implementing admissibility of the application. a remuneration policy consonant with the criteria adopted in that article, considered that although adjustment of Substance remuneration by adjustment of the basic salaries shown in the table incorparated in Article 66 might appear to be more in line with the procedure laid down in

The Article 66 of the Staff Regulations, Commission therefore concludes that in which defines the basic salaries for each this case it was justified in calculating the grade and step, comes into operation. number of years of pensionable service to be credited to the applicant with reference to the amount shown in the The Commission is therefore clearly table incorporated in Article 66 of the confusing remuneration in the strict Staff Regulations, after application of the sense with basic salary.

weighting appropriate to the remun­ In response to the applicant's argument eration of officials employed at the pro­ that if he retired to Italy he would be visional seats of the Communities, penalized in so far as his pension would namely 147.8, and that in so doing it be subject to the weighting applicable in merely calculated the number of years of relation to that country, the defendant pensionable service with reference to the contends in the first place that such an basic annual salary as defined by the argument is inadmissible on the ground Court. that it is based upon a mere hypothesis which will be fulfilled, if ever, only at retirement age, so that the applicant has no present and well-defined interest. 2. The consequences of the method of Moreover, according to the defendant, calculation adopted by the the argument is unfounded in any case Commission since application of the geographic weighting to the pensions of retired officials who have declared themselves resident in Italy does not entail- any The applicant challenges the method of advantage or disadvantage for them with calculation adopted by the Commission, respect to other retired officials who pointing out its unacceptable conse­ have established their residence else­ quences in the form of the absurd and where. discriminatory disparities to which he alleges it gives rise. He considers that as a result of the illogicality of the method applied by the Commission he would be According to the defendant, the geo­ penalized twice if he were to retire to graphical weightings, far from destroying Italy. equality as between officials, achieve equality in so far as, by reason of their corrective effect, they are specifically intended to ensure that all retired The defendant maintains that the officials have the same purchasing power applicant's arguments are based on a regardless of where they live. confusion between the geographical weightings referred to in Article 64 and the weightings determined until 1976 under Article 65 of the Staff Regulations 3. The scope of the Jacquemart judgment in order to fix the remuneration levels of officials employed at the provisional seats of the Communities, on the basis of which the remuneration for the other The applicant contests the general and places of employment is determined. legislative character which the Com­ According to the Commission, regardless mission seeks to attribute to the of the applicant's place of employment at judgment in Jacquemart ν Commission by the time of the transfer of his pension relying on paragraph 22 of the decision rights, the basic annual salary would in which it is stated that "the basic salary have been determined in the same way. as referred to in Article 66 of the Staff In other words, it would have been equal Regulations comprises the amounts to twelve times the amount shown in the included in the table contained in that table incorporated in Article 66 of the article, subject, where appropriate, to the Staff Regulations, after application of the weighting adopted for the provisional weighting of 147.8 applicable to the seats by the Council". According to the remuneration of officials employed at the applicant, that judgment is res inter alios provisional seats of the Communities. acta as is evidenced by the reservation at

the end of paragraph 24 of the same the Commission wishes to adopt an judgment ("without there being any interpretation of the term "basic salary" objective consideration to justify such a in line with the Jacquemart judgment, it difference"). ought, in the applicant's view, to take steps to amend certain provisions which are tied to the concept of basic salary, The applicant observes that there is a such as Article 72 (3) of the Staff Regu fundamental and objective difference lations and Article 8 (2) of the Rules on between the Jacquemart case and this Sickness Insurance or Article 73 (1) of

According to the applicant, it is clear that in September 1975, when he was established, the Commission regarded as The applicant's view, however, is that for basic salary only the salary shown in the the calculation of pension rights the table in Article 66 of the Staff Regu uniform application of the provisions of lations, which in the case of the applicant Article 3 (3) of the General Provisions would give an annual sum of BFR giving effect to Article 11 (2) of Annex 415 728 and not the sum of BFR 618 188 VIII to the Staff Regulations, which which the Commission seeks to impose make reference to the basic salary, on the basis of the above-mentioned ensures that there is no danger of judgment of the Court.

which it was based. The applicant maintains that the latter definition of the term "basic salary" was accepted upon adoption of the General The applicant observes, moreover, that Provisions giving effect to Article 11 (2) despite the authority enjoyed by the of Annex VIII, which entered into force judgments of the Court, an individual on 1 July 1969, and that it should be decision cannot in any way alter the law interpreted in that way, in accordance as agreed upon between the parties, and with the spirit which prevailed when the that, even if there were to be a change in provisions in question were adopted. If legislation today, that change could not

affect a situation for which, in the is a question not of applying retro applicant's opinion, the basis should be actively a provision giving effect to the the salary taken into consideration in Staff Regulations, but of applying it September 1975, at the time when he immediately and correctly. Where, as a was established. result of interpretation by the Court, provisions of the Staff Regulations The defendant maintains that the Court's acquire a different meaning from that interpretation of the Staff Regulations is which the institution previously at not confined to the case in point, but is tributed to them, they are, by virtue of of general application and that the the principle that the judicial interpret creative role of case-law, and in ation of provisions is enforceable against particular that of the Court of Justice, in the institutions, appicable in their new the formation and developpment of meaning to pre-existing matters which Community law is too well known and are still pending. recognized to be contested.

institutions of the Community. Court, whose interpretation may be relied upon against the institutions in the The defendant states that it has thus at same way as the Staff Regulations all times taken account of the judgments themselves. of the Court in applying those provisions of the Staff Regulations which have been judicially interpreted, taking the view The Commission also contests the that it was obliged immediately to apply applicant's argument relating to "the any rule whose meaning and scope had spirit of the law", according to which at been defined by the Court. It points out the time of the entry into force of the that it proceeded in that manner in General Provisions giving effect to implementing the judgments of the Court Article 11 (2) of Annex VIII to the Staff of 7 June 1972 in Cases 20/71 Sabbatini Regulations the basic salary referred to ν European Parliament and 32/71 in Article 3 (3) consisted of the amounts Chollet, née Bauduin ν Commission, shown in the table contained in Article regarding the grant or restoration, as 66 of the Staff Regulations.

Jacquemart judgment. Whilst at that time, as at present, adjustment of remuneration was effected By contrast with the applicant's claims, by adjustment of the basic salaries shown and in the light of the latter judgment, it in the table contained in Article 66 of

the Staff Regulations, during the The objective considerations referred to experimental period from 1972 to 1976, by the Court were concerned, in the remuneration was adjusted by the context of the judgment in question, application of a weighting to the with cases where the adoption of the amounts shown in the table contained in same interpretation would detract from that provision, namely the weighting the principle of equality as between applicable to the remuneration of officials in comparable situations. In this officials employed at the provisional regard, the defendant contends that the seats of the Communities, in this case definition of basic salary given in the 148.7, as from 1 July 1975. Although the Jacquemart judgment leads to greater method of adjusting the level of remun equality of treatment as between officials eration has thus varied over the years, by contrast with the method advocated the concept of the basic salary has itself by the applicant, which would lead to remained unchanged. serious discrimination depending on whether the persons concerned had been

have made clear by observing that there was no objective consideration to justify giving to the term "basic salary" in Article 12 (c) of Annex VIII a meaning The method advocated by the applicant different from that which it has in Article would lead to undoubted inequality at 66 of the Staff Regulations. In response the expense of officials established after to that argument the defendant states 1 January 1977, who would obtain fewer that although the Court did not exclude years of pensionable service than those outright any other interpretation justified established before that date.

in Article 66 of the Staff Regulations, subsequently examining whether or not there were any objective reasons which might have justified an interpretation Finally, the Commission points out that which departed from the concept since 1 January 1977, on which date the applicable in the case of the severance Council changed its policy of raising the grant. level of remuneration by means of weightings, there has been an annual

Decision

1 By an application lodged at the Court Registry on 30 September 1980, P. Benassi, an official of the Commission of the European Communities, brought an action for annulment of the Commission's decision of 2 September 1980 rejecting his complaint under Article 90 of the Staff Regu- lations of Officials in which he requested that the number of years of pensionable service with which he was to be credited on the basis of the amount of the actuarial equivalent or the sums repaid referred to in Article 11 (2) of Annex VIII to the Staff Regulations should, pursuant to the General Provisions giving effect to the said Article 11 (2) and in particular pursuant to Article 3 of those General Provisions, be calculated with reference to his basic annual salary, without the application of the weighting — 148.7 in this case — fixed by Regulation No 2998/75 of the Council of 17 November 1975.

2 The applicant maintains, in that regard, that the basic annual salary is determined by adding together the twelve monthly basic salary payments determined by reference to Article 66 of the Staff Regulations, which defines

BENASSI ν COMMISSION

the basic salaries for each grade and step, without applying any weighting. He considers that the application of a weighting to that amount is due to a confusion between remuneration in the strict sense and basic salary.

3 The applicant further states that reference to the basic annual salary adjusted by a weighting would have unacceptable consequences in the form of absurd and discriminatory disparities affecting the persons concerned according to their place of employment.

JUDGMENT OF 19. 11. 1981 — CASE 194/80

amounts by application of the weighting, as was the case from 1972 to 1976, or by an adjustment of the table contained in Article 66 by incorporation of the weighting, as is the case for the period after 1 January 1977.

8 It should be emphasized that this definition of the term "basic salary" avoids the illogical consequence of recognizing different seniority for the purposes of the Community pension scheme depending on whether the variations in the cost of living occurring after the adoption of the Staff Regulations were incorporated in the figures shown in the table contained in Article 66 of the Staff Regulations.

9 Moreover, the applicant's argument to the effect that application of the weightings has led to discrimination or adverse consequences affecting him takes no account of the clear and precise nature of the distinction drawn in the Staff Regulations between geographical weightings and those provided for in Article 65.

10 It must be made clear that the basic salary, as provided for in Article 66 of the Staff Regulations, comprises the amounts shown in the table contained in that provision, adjusted where appropriate by the weighting adopted for the seats of the Communities by the Council in the light of the annual review provided for by Article 65, and the meaning of the expression "basic salary" cannot vary from one provision to another in the absence of objective considerations justifying such a difference.

1 1 There does not appear to be any justification for attributing a meaning different from that laid down by the Court in the case cited above to the expression "basic salary attaching to the grade on establishment" for the purpose of calculating the number of years of pensionable service with which an official is to be credited on the basis of the amount of the actuarial equivalent or the sums repaid referred to in Article 11 (2) of Annex VIII to the Staff Regulations.

16 However, under Article 70 of the Rules of Procedure the costs incurred by the institutions in actions by servants of the Communities are to be borne by those institutions.

On those grounds,

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

hereby:

1. Dismisses the application;

2. Orders the parties to bear their own costs.