C-219/80

MAURICE ANDRÉ AND OTHERS, officials of the Commission of the European Communities, represented by M.-A. Pierson and J. L. Hirsch, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of J. Welter, I I B Avenue de la Porte-Neuve, applicants,

v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Raymond Baeyens, acting as Agent, assisted by Robert Andersen, of the Brussels Bar, with an address for service in Luxembourg at the office of Oreste Montako, a member of its Legal Department, Jean Monnet Building, Kirchberg, and COUNCIL OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, John Carbery, assisted by R. O. Dalcq and M. Grossmann, of the Brussels Bar, with an address for service in Luxembourg at the office of H. J. Pabbruwe, Director of the Legal Affairs Department of the European Investment Bank, 100 Boulevard Konrad-Adenauer, defendants, 1 —Languageof the Case: French.

JUDGMENT OF 19. 1. 1984 — JOINED CASES 219 TO 228, 230 TO 235, 237, 238 AND 240 TO 242/80

A P P L I C A T I O N for the a n n u l m e n t of Council Regulation N o 1 6 0 / 8 0 of 21 J a n u a r y 1980 a m e n d i n g the Staff Regulations of Officials a n d the Conditions of E m p l o y m e n t of O t h e r Servants of the E u r o p e a n Communities (Official J o u r n a l L 20, p. 1) and Council Regulation N o 1 6 1 / 8 0 of 21 J a n u a r y 1980 adjusting the r e m u n e r a t i o n of pensions of officials a n d other servants of the E u r o p e a n Communities and the weighting applied thereto (Official J o u r n a l L 20, p. 5) and for the a n n u l m e n t of the calculation of salaries effected p u r s u a n t to those regulations,

The facts of the case, the course of officials and other servants of the the procedure and the conclusions, Communities and to determine any submissions and arguments of the parties adjustment thereof. may be summarized as follows :

Article 64 of the Staff Regulations I — Facts and written p r o c e d u r e provides that the remuneration should be weighted in accordance with the living conditions in the various places of 1. Article 65 (1) of the Staff Regu- employment. Article 65 (2) provides that lations provides that the Council is each in the event of a substantial change year to review the remuneration of the in the cost of living, the Council is

ANDRĖ v COMMISSION AND COUNCIL

to decide, within two months, what The new method of adjustment adopted adjustment should be made to the on 29 June 1976 provided that the weightings. Council was to decide on remuneration adjustments in net terms and that the net rate thus fixed was to be incorporated, in accordance with the following method, in the salary scales given in Article 66 of At its meeting on 29 June 1976 the the Staff Regulations and in Article 63 of Council adopted a new method for the Conditions of Employment of Other adjusting the remuneration of officials Servants : and other servants of the Communities.

"The rate of adjustment decided shall be It appears from the file that the adoption applied to the amount of the net salary of that new method of adjustment was for each step of each grade of official intended, inter alia, to incorporate the and for each class in every group of weighting, which amounted at the time other servants. to 148.7 as regards Belgium and Luxembourg, into the basic salary scales. Without concomitant measures such incorporation would have involved a reduction in net remuneration since the The new scale in gross terms shall be basic salaries as increased are also the drawn up by calculating for each step or basis for the Community tax and other class the gross amount which, after mandatory deductions. deduction of tax and compulsory contri­ butions, gives the new net amount referred to above.

In consequence the new method provides advantage of those receiving allowances that: on their taxable income or an expatri­ ation allowance or both. In view of such distortions and in order to avoid their repetition in future the Council Allowance is to be made within the introduced by Regulation N o 2859/77 framework of the subsequent annual of 19 December 1977 adjusting the re­ review for any interim adjustment of muneration and pensions of officials, and remuneration decided pursuant to Article other servants of the European Com­ 65 (2) of the Staff Regulations and made munities and the weightings applied by adjusting the relevant weightings; thereto (Official Journal L 330, p. 1) an amendment to Regulation N o 260/68 of the Council of 29 February 1968 laying down the conditions and procedure for The current weighting for Belgium and applying the tax for the benefit of Luxembourg is to be incorporated into the European Communities (Official the salary scales in accordance with the Journal, English Special Edition 1968 (I) aforesaid conditions; the weighting for p. 37). The amendment subjected the Belgium and Luxembourg thus becomes amounts liable to Community tax, for .100 % and the weightings for the other the period from 1 July 1977 to 30 June countries of employment are to be 1978, to a weighting of 106.084. adjusted accordingly.

scales, as decided in December 1976, In its pleading lodged on 27 March 1981 with effect from 1 January 1977, the the Council put forward an objection of Council determined to put an end to that inadmissibility pursuant to Article 91 of situation and on 21 January 1980 the Rules of Procedure. As regards the adopted Regulation No 160/80 amend­ Council the actions brought under ing the Staff Regulations (Official Article 179 of the Treaty are not directed Journal L 20, p. 1). That regulation lays against the appointing authority as down a new table of gross monthly provided by Article 91 (2) of the Staff salaries and abolishes the distortions in Regulations. In so far as the actions seek question. It entered into force on 27 the annulment of Regulations Nos 160 January 1980 with effect from 1 July and 161/80 pursuant to Article 173 of 1979. It provides however that no part of the Treaty they are also inadmissible. the salaries paid between 1 July 1979 and the date on which the regulation entered into force should be required to be By order of 8 July 1981 the Court (First repaid. On the other hand it lays down a Chamber) dismissed the actions as transitional scheme for the benefit of inadmissible in so far as they were officials who might suffer a loss of directed against the Council. income on application of the new scale. So long as the new scale would involve them in a loss of income the regulation Upon hearing the report of the Judge- provides that they are to continue to Rapporteur and the views of the enjoy the benefit of the former scheme. Advocate General the Court (First Chamber) decided to open the oral procedure without any preparatory inquiry. Except for certain special cases the reduction in basic salaries resulting from the adjustment of the scale were reabsorbed following the adjustment made on the same day by Council Regu­ II — C o n c l u s i o n s of t h e p a r t i e s lation No 161/80 effecting the annual adjustment of remuneration on the basis of the revised scales (Official Journal The applicants claim that the Court L 20, p. 5) which also applied as from should: 1 July 1979.

The applicants consider that the regu- lations constitute a collection of The defendant, the Commission, answers individual decisions affecting a number that notwithstanding the reservations of specific persons, namely those who in expressed the Council considered that it the Commission's opinion received un- was urgent to reduce the weighting for justified financial advantages as a result Belgium and Luxembourg to 100% and of the incorporation of the weightings thus to give the weightings back their into the salary scales. true function, namely to compensate for the differences in the cost of living in the various places of employment. Neverthe- less it stated from the outset that it Moreover they would have no possibility intended to make any improvements of action if on the one hand action shown to be necessary to the method of against the Council were inadmissible adjusting salaries, in particular by because it was not directed against the correcting any distortions. appointing authority and on the other hand action against the Commission were inadmissible because it related to measures in the nature of regulations. Moreover Regulation No 160/80 did not have retroactive effect to the detriment of staff. Although the revised scales were applicable from 1 July 1979 the regu- Substance lation provides that in the case of officials and other servants whose entitlements are in consequence reduced In various submissions the applicants no part of the amounts paid during the basically allege that the Council was duly period between 1 July 1979 and the date alerted by staff representatives of the on which the regulation entered into consequences of incorporating the force should be required to be repaid. In weightings into the basic salary scales creating a transitional scheme for the and cannot rely on any alleged error to benefit of such employees the Council in justify subsequent correction of the addition assured them that in future their distortions which in fact occurred. In previous net remuneration would be that respect the applicants rely on the maintained. In consequence of the principle patere legem quam ipse fecisti. In annual adjustment of remuneration for

JUDGMENT OF 19. 1. 1984 — JOINED CASES 219 TO 228, 230 TO 235, 237, 238 AND 240 TO 242/80

4 In those circumstances it is necessary to consider the substance of the applications.

5 First of all the applicants consider that the Council in adopting the contested regulations committed a breach of the principle patere legem quam ipse fecisti. In incorporating the weighting into the salary scales of officials the Council had been duly alerted by the staff representatives to the consequences of the system which it intended to apply. In nevertheless proceeding as it did the Council must, it is claimed, accept the consequences of its choice and is not entitled to escape the obligations raising therefrom.

6 The incorporation of the weighting into the basic salary scales laid down by the Staff Regulations was decided upon by the Council on 29 June 1976 as part of a new method of adjusting the remuneration of officials. The incor- poration was effected by Council Regulation No 3177/76 of 21 December 1976 adjusting the remuneration and pensions of officials and other servants of the European Communities and the weightings applied thereto (Official Journal, L 359, p. l).The regulation introduced new scales with effect from 1 January 1977 and reduced the weighting for Belgium and Luxembourg, which had been 157.8 from 1 July 1976, to 100.

7 The Commission infers from those circumstances that the Council intended at the time to reduce to 100 the weighting for Belgium and Luxembourg in order to give the weightings back their true function pursuant to Article 64 of the Staff Regulations, namely to compensate for the differences in the cost of living in the various places of employment. Although that operation gave rise to some distortions due in particular to the fact that the increase in the scale intended to neutralize the increase in tax resulting from the incor- poration of the weighting was calculated on the basis of the position of an unmarried official not in receipt of the various allowances, the distortions were only secondary effects and not intended by the reform in question.

JUDGMENT OF 19. 1. 1984 — JOINED CASES 219 TO 228, 230 TO 235, 237, 238 AND 240 TO 242/80

i3 In that respect it must be remembered that Regulation N o 160/80, which has retroactive effect from 1 July 1979, provides that no part of the amounts paid during the period between that date and the date of its entry into force, namely 27 January 1980, is to be required to be repaid. Furthermore, it provides transitional measures intended progressively to re-absorb the distortions without bringing about a reduction in the amounts actually paid. Moreover, the effect of Council Regulation No 161/80 of 21 January 1980 was to increase, also from 1 July 1979, the remuneration resulting from the application of Regulation N o 160/80 in such a way that, apart from certain special cases, the reductions in basic salaries resulting from the revision of the scale were immediately reabsorbed.

u In those circumstances there has been no infringement of personal rights. The applicants' argument to the effect that to determine whether there has been such infringement it is necessary to ascertain, not whether or not there has been a reduction in the amounts actually received but whether the rate of remuneration has been frozen for a certain period, must be rejected in circumstances such as the present in which the two contested regulations seek precisely to put an end to unjustified increases such as those resulting from the scale previously applicable without its being necessary to recover sums already paid or to reduce remuneration actually received.

is Finally the applicants allege that the Council had no power to revoke a salary scale previously adopted and that it committed a misuse of powers inasmuch as the system of weighting was used to amend salaries and not to ensure speedy adjustment of salaries in the event of an appreciable change in the cost of living in one or more places of employment.

Costs

20 Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. However, under Article 70 of the Rules of Procedure in proceedings brought by servants of the Communities the institutions are to bear their own costs.

On those grounds,

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

hereby:

1. Dismisses the application;

(see Case 211/80, p. 147)