C-320/81

OPINION OF MR MISCHO —CASE C-320/81

OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 12 October 1989 *

Mr President, Ispra. Thus the Council is alleged not to Members of the Court, have carried out the adjustment of the applicants' remuneration according to 'living conditions in the various places of employment'. 1. By an application lodged on 24 December 1981, Mr S. Acerbis and 485 officials of the Commission, all employed at 4. With regard to infringement of Article the Joint Research Centre at Ispra (Varese, 65(2) of the Staff Regulations, that Italy), contested their salary statements for provision is as follows: February and March 1981 which contained the calculation by the Commission of arrears of salary, with effect from 1 July 1980, pursuant to Council Regulation 'In the event of a substantial change in the (Euratom, ECSC, EEC) No 397/81 of cost of living, the Council shall decide, 10 February 1981 fixing, with effect from within two months, what adjustments 1 July 1980, the tables of salaries and other should be made to the weightings and if components of remuneration (Official appropriate to apply them retrospectively'. Journal 1981, L 46, p. 1).

The infringement of that provision is said to ensue from the fact that the contested 2. The applicants claimed primarily that measures were not only insufficient, but also those calculations should be annulled and introduced too late. put forward four submissions in support of their claims: infringement of Article 64 and Article 65(2) of the Staff Regulations, infringement of the principle of non­ 5. The applicants consider that the principle discrimination and breach of the principle of of non-discrimination has been infringed the 'protection of legitimate expectations'. because they were placed in a worse position than their colleagues employed in places that had been taken into account when the weighting was calculated.

9. In its interim judgment of 15 December 13. In its judgment of 28 June 1988 in Case 1982 in Case 158/78 Roumengous 7/87 Commission v Council [1988] ECR Carpentier [1982] ECR 4379, the Court also 3401, the Court annulled Regulation (EEC, decided that Council Regulation (Euratom, Euratom, ECSC) No 3619/86 of 26 ECSC, EEC) No 3087/78 of 21 December November 1986 correcting the weightings 1978 adjusting the weighting applicable to applicable in Denmark, Germany, Greece, the remuneration of officials and other France, Ireland, Italy, the Netherlands and servants of the Communities employed in the United Kingdom of the remuneration Italy (Official Journal 1978, L 369, p. 10), and pensions of officials and other servants in which the same method of calculation of the European Communities (Official was used as in the abovementioned Regu­ Journal, L 336, p. 1). lations Nos 187/81 and 397/81 and, as in the latter regulations, a single weighting was fixed for the whole of Italy, was contrary to Articles 64 and 65 of the Staff Regulations, 14. The Council acted on that judgment in principally because it did not provide for a its Regulation (ECSC, EEC, Euratom) No separate weighting for Varese. 3294/88 of 24 October 1988 correcting the weightings applicable in Denmark, Germany, Greece, France, Ireland, Italy, the Netherlands and the United Kingdom of the remuneration and pensions of officials and other servants of the European Com­ 10. It is therefore common ground between munities (Official Journal 1988, L 293, the parties that the applicants' complaints p. 1). Article 1 of that regulation introduces concerning a separate weighting for Ispra a weighting specifically applicable to Varese and the fact that the adjustment was insuf­ with effect from 1 January 1981, and the ficient and made too late are now devoid of preamble refers expressly to the need to give purpose. effect to the findings of the verification carried out by the Statistical Office of the 1 — Judgment of 6 October 1982 in Case 59/81 Commmion v Communities 'in 1980 and 1985'. Com.«/[1982] ECR 3329

15. Clearly that claim has now also become missible pursuant to Article 19 of the Statute devoid of purpose. The applicants' represen­ of the Court of Justice and Article 38 of the tative acknowledged that to be the case at Rules of Procedure, which preclude the the hearing. addition of fresh claims during the procedure. Moreover, since they did not object in good time to the decision of the 16. The applicants' second claim for the Commission of 31 July 1985 to pay default payment of default and compensatory interest alone, the applicants cannot be interest calls for the following comments. allowed to rely on their 1981 application for the purpose of obtaining now amounts 17. By its final judgment of 15 January which they did not obtain then. 1985 in Case 158/79 Roumengous Carpentier v Commission [1985] ECR 39, 20. With regard to costs, the Commission and other judgments of the same date, the acknowledges that the present action arose Court awarded default interest at the rate of as a result of a regulation that was repealed 6% per annum on the amount of arrears of following a judgment by the Court; it salary due from the date of the applicants' considers, however, that the applicants' complaint but rejected as out of time the conduct in continuing to pursue this action, claim for compensatory interest. despite everything, warrants an order that the parties bear their own costs. I share that point of view because, as the 272 applicants 18. In compliance with those judgments, by who formally withdrew well understood, it a decision of 31 July 1985, the Commission was clear that the action was no longer paid default interest to all officials employed justified, especially after the order of 10 at Ispra, thus including the applicants in this June 1987 in Case 321/81 declaring that case. The latter acknowledged at the application to have become devoid of hearing that their claim was henceforward purpose; in that case other officials at the limited to the payment of compensatory Ispra centre were contesting the same salary interest, the awarding of which would act as statements as the applicants on the basis of a counterbalance to the loss they suffered as essentially the same provisions of the Staff a result of falling exchange rates. In that Regulations, and its similarity with the regard, I would make the following present case was emphasized by the remarks. applicants themselves in their observations lodged at the Court on 2 December 1985. 19. The claim concerning the payment of There was even less justification for default as well as compensatory interest is in continuing the action after the Council any case out of time because it was first adopted Regulation No 3294/88, cited submitted only in the reply. It is thus inad­ above.