C-198/81

APPLICATION for the annulment of the defendant's decisions dated 8 April 1981, whereby it refused to award the applicants a differential or compensatory allowance to be calculated as the difference between the remuneration actually received and the remuneration due for the per- formance of the duties of an operator of interpretation equipment, from the day on which they entered the service of the defendant, or at least from the date on which they were appointed as officials, plus interest on the arrears at the rate of 8%,

T H E COURT (First Chamber)

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

Advocate General: G. Reischl Registrar: P. Heim

gives the following

MICHELI vCOMMISSION

Having been successful in Internal On 25 April 1980, the applicants Competition No COM/C/4/78, based submitted a further request under Article on tests and organized by the 90 (1) of the Staff Regulations for the Commission for the purpose of drawing award of a differential allowance as up a reserve list for the recruitment of provided in Article 7 (2) of those regu- clerical assistants (Career Bracket C 4 / lations. The request of Messrs Micheli C 5) required to perform the duties of and Broccartwas rejected by decision of operators of interpretation equipment, the Head of the Individual Rights and they were recruited as probationary Privileges Division of 24 June 1980. On officials in Grade C 5 or C 4, following 14 July 1980, both parties repeated their the publication of Vacancy Notices Nos request, the rejection of which was COM/231 and 232/77, COM/665/77 confirmed on 22 and on 29 July 1980. As and COM/129 to 131/78, by decisions to the requests of the other three of the Head of the Division for Re- applicants, they were rejected by implied cruiting, Appointments and Promotion, decision on 25 August 1980. of 23 August 1979. By the latter's decisions of 24 March 1980, which took effect on 1 March 1980, Messrs On 14 and 15 October 1980, the Parlante, Broccartand Lattanzio were applicants lodged a final complaint under established in Grade C 5, and Messrs Article 90 (2) of the Staff Regulations

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against the rejection of the earlier Order the defendant to pay all the costs. complaint. On 8 April 1981, the Member of the Commission with responsibility for The Commission claims that the Court staff matters rejected that last complaint. should:

By order of 17 September 1981, the III — Submissions and argu- Court (First Chamber) decided to join ments of the parties the cases for the purposes of the procedure and judgment. 1. Applications Upon hearing the report of the Judge- Rapporteur and the views of the In support of the request for an Advocate General, the Court (First annulment contained in their appli- Chamber) decided to open the oral cations, the applicants put forward three procedure without any preparatory arguments. The first alleges infringement inquiry. of Article 5 (3) of the Staff Regulations, breach of the principle of equal treatment and misuse of powers. That situation results from the fact- that the II — C o n c l u s i o n s of the parties applicants perform duties of operators of interpretation equipment but receive the remuneration of clerical assistants, Each of the applicants claims that the whereas officials performing the same Court should: duties elsewhere in the Commission or in other Community institutions are entitled to the remuneration of clerical officers. Admit his application and declare it well The defendant thus applies different founded; conditions of remuneration to officials belonging to the same category and per- forming the same duties. Annul the contested decision taken by the defendant on 8 April 1981 ; The second argument alleges misap- plication of Article 5 (4) of the Staff Order the Commission to pay the Regulations and of the general applicant a differential or compensatory implementing provisions contained in allowance to be calculated as the Annex IA thereto, an incorrect difference between the remuneration statement of reasons and misuse of received and the remuneration due for powers. That situation results from the work performed as an operator of fact that the reason given for refusing to interpretation equipment since the date grant the applicants a differential of his entry into the service of the allowance is that a clerical assistant may Commission, or at any rate from the be called upon to perform the duties of date on which he was established, plus an operator of interpretation equipment, interest on the arrears at the rate of 8%; whereas the defendant itself has included

The third argument alleges infringement of Article 7 (2) of the Staff Regulations and breach of the principle of fairness, of the duty of the administration to assist its 2. Defence officials and misuse of powers. The argument is based on the fan that the applicants were refused a differential allowance even though they had been As regards the first argument, the performing, on a permanent basis and Commission replies that, in the first for a long period of time, duties of a place, it has no factual basis since the higher level of responsibility than those defendants have failed to furnish any corresponding to the career bracket of information to support the comparison clerical assistant. In the first place, an which they attempt to draw between official who temporarily occupies a post their situation and that of other officials in a career bracket within his category performing the same duties who but ranking above the career bracket to nevertheless receive the remuneration of which he is assigned ought to receive a a clerical officer. The argument has no differential allowance; in the second legal basis either, since any comparison place, fairness dictates that an official with the situation of officials employed who permanently performs duties which by other institutions is irrelevant may not normally be required of an inasmuch as every institution is free, official of that grade ought to be re- within the limits fixed by Articles 5 and 7 munerated in the same way as an official of the Staff Regulations and Annexes I A performing identical duties, and the duty and I B thereto, to define the duties and of the administration to assist its officials powers attaching to each basic post. As requires that they be remunerated for far as the situation in other places of the services they provide and the employment within the Commission is responsibilities they assume. concerned, the applicants do not state whether the comparison which they draw relates to officials holding the basic post of clerical officer or to those holding In support of the claim for compensation that of clerical assistant. contained in their applications, the applicants argue that the Commission made the misuke of underestimating the extent of the duties and responsibilities The situation of clerical officers per- entrusted to them and of organizing its forming the duties of an operator of staff in such a way that clerical assistants interpretation equipment cannot be permanently perform duties of clerical compared to that of the applicants, who officers and are directly answerable to a hold the post of clerical assistant, principal clerical officer whereas, by their because, as Mr Advocate General very nature, the duties of a clerical Mayras said in his opinion in Case 50/74 assistant should be supervised by a Asmussen v Commission [1975] ECR clerical officer. The damage thereby 1018, "Whilst the principle of equality of suffered is equivalent to the difference in treatment is . . . a rule of a general remuneration between Grade C 3 and nature, which is applicable to Com- the grades assigned to the applicants. munity administrative law, for there to

be discrimination it is still necessary that admission requirements consistent with unequal treatment should be applied to the description quoted above. identical or comparable situations". It is undeniable that access to the basic posts of clerical officer and clerical assistant is subject to different criteria which are laid down in broad, objective terms; fur- thermore, the applicants decided against contesting the merits of their assignment The Commission submits that both the to the post of clerical assistant. text of its decision and that of the Notice Consequently, the comparison they of Competition show that the duties of attempt to draw fails to disclose any an operator of interpretation equipment infringement of Article 5 (3) of the Staff may be performed either by clerical Regulations or any breach of the officers or by clerical assistants. In this principle of equality of treatment. connection, regard is had to the official's qualifications, the extent of his experi- ence and the degree of responsibility involved in those duties, account being taken of the position of the administrative unit concerned in the hierarchy of the institution. Hence it is irrelevant to point out that the Commission's decision quoted above uses the title "Operator of interpretation equipment" only with regard to the basic post of "Clerical Officer" (and not to As to the second argument, the that of "Clerical Assistant"). It should in Commission contends that its decision fact be made clear that the titles of the "describing the basic posts . . . and the posts appearing in that decision are illus- duties they involve" (Staff Courier No trative rather than limitative in character, 272 of 4 September 1973, pages 37 to as is demonstrated by the words "In 43), adopted pursuant to Article 5 (4) of particular" inserted above the list of titles the Staff Regulations and Annex I A of posts for each career bracket. thereto, demonstrates that an official in Career Bracket C 2 / C 3 who holds the basic post of clerical officer must be engaged either in administrative work or else "in the execution of work of a technical nature necessitating a vocational background and qualification supported in principle by a certificate of As to the third argument, the vocational aptitude or acquired through Commission considers that it has no practical experience". On the other factual basis since, as it has pointed out, hand, an official holding the basic post the duties of an operator of interpre- of clerical assistant is defined as carrying tation equipment may be entrusted to out "office or technical work necessi- officials holding the post of clerical tating only vocational specialization or assistant. In any case, the argument has basic skills". In accordance with the no legal basis. It is necessary, in the first latter description of duties, the defendant place, to disregard the concept of organized Internal Competition No fairness, since the Court has applied it in COM/C/4/78 for the recruitment of proceedings involving employees of the Community in only two cases, relating to clerical assistants, which laid down

the problem of an action brought out of their classification as clerical assistants. time, which the Court none the less Furthermore, the defendant contends declared to be admissible for reasons of that it has demonstrated that the duties fairness. Secondly, there can be no performed by the applicants were in question of a "general principle" of keeping with their grade and that, in any fairness, since that elusive concept event, they were not entitled to the constitutes, at most, a secondary source allowance provided by Article 7 (2) of of law designed to fill lacunae in the the Staff Regulations. In the circum- positive law, of which there are none in stances, the applicants were wrong to this case. Nor may the applicants seek to conclude that their duties and rely upon the duty of the administration responsibilities had been "underes- to assist officials. That concept has, timated". Equally groundless is the admittedly, been approved by the Court allegation that the tasks of a clerical (Joined Cases 33 and 75/79 Kuhner v assistant had, in essence, to be performed Commission [1980] ECR 1677) but, as under the supervision of a clerical Mr Advocate General Mayras has officer. It is fruitless, the Commission stressed, ".. - in accordance with the contends, to seek confirmation of that maxim specialia generalibus derogant, it view in the Staff Regulations or the seems that because the obligation is of a provisions deriving from them such as general nature it can only be usefully the decision of the Commission referred invoked when there are no specific to by the applicants. In fact, officials and provisions" (opinion in the Kuhner case other employees perform their duties cited above). In this case, however, the within a complex hierarchical system grant of a differential allowance is the which seldom involves any interrelated subject of an ad hoc provision; namely duties. As a matter of merely secondary Article 7 (2) of the Staff Regulations. importance, the Commission wishes to Lastly, in the Commission's view, there point out that if an error on its p a r tis are no grounds for the allegation that held to have occurred, the damage the latter provision has been infringed. should be assessed by reference not to Besides the fact that the duties the date of the applicants' entry into performed by the applicants were not of service but to the date on which they a higher level of responsibility than those submitted their request in accordance which may be entrusted to a clerical with Article 90 of the Staff Regulations. assistant, it should be recalled that, Finally, there are in any case no grounds according to well-established case-law of for awarding interest on the arrears of the Court, "Since the decision to call the allowance, if it is awarded, because upon an official to occupy temporarily a "rectifications effected as a result of a post arises from an assessment of the complaint or an application to the Court interests of the service, the party do not differ from current rectifications involved cannot, by reason only of the unless there are exceptional circum- fact that he is performing the functions of the post in question, claim a right to obtain the benefit of this temporary posting" (Case 23/74, Küster v Par- liament [1975] ECR 353).

Turning to the second argument, the The applicants rely upon the principle of applicants point out that the equality of treatment underlying Article Commission's decision referred to above 5 (3) of the Staff Regulations, which includes in particular, amongst the titles provides as follows "Identical conditions corresponding to the post of clerical of recruitment and service career shall officer, the entry "Operator of interpret- apply to all officials belonging to the ation equipment". In Career Bracket same category or the same service". In C 4/C 5 on the other hand, the this case, the applicants' first argument is description of duties for the basic post of factually well founded since officials clerical assistant refers to the execution performing exactly the same duties as of "office or technical work necessitating the applicants in the Commission's only vocational specialization or basic translation department in Luxembourg skills". Amongst the titles corresponding and in the departments of the other to those duties there is no mention of European institutions in Luxembourg, operator, or even of assistant operator, Strasbourg and Brussels, are all graded of interpretation equipment. in Career Bracket C 2/C 3. If the Commission persists in its attitude, it will be necessary for a preparatory inquiry to to be ordered for the purpose of ascer- taining what treatment is accorded to the According to the Staff Regulations and various operators of equipment. The to consistent case-law of the Court, there comparison must relate to the duties must be a correlation between the career actually performed and not to the basic brackets and the basic posts (see Article posts of clerical officer and clerical 5 (4) of the Staff Regulations and the assistant. In spite of an investigation judgments in Cases 46/69 Reinarz v conducted by the Commission in the Commission [1970] ECR 275 and 14/79 department to which the applicants are Loebisch v Council [1979] ECR 3679) attached, it had had to admit that the and an official in a given grade is duties actually performed were those of entitled to occupy a basic post and to an operator of interpretation equipment perform duties which in both cases and not those of an assistant operator. correspond to that grade. In that respect, Furthermore, the Commission acknowl- the applicants maintain, the Commission edges that fact, by implication but irre- has no margin of discretion. That indeed futably, in so far as it confines itself to accounts for the importance of the asserting, as a matter of law, that the Commission's decision describing the duties of operators of interpretation basic posts figuring in Annex I A to the equipment may be performed either by Staff Regulations and the duties they clerical officers or by clerical assistants, involve, which has the status of a regu- which is not the case. The applicants lation. The applicants do not dispute that request the Court to hear witness the list of the titles of posts is not

As far as the third argument is concerned, the applicants point out that, as a matter of law, it is incorrect to contend that, in the absence of a favourable decision on the part of the appointing authority, they are precluded from claiming a differential allowance. Since, in the administrative phase before bringing an action, they asked to be awarded that allowance, the Court is competent to review the lawfulness of the refusal. As regards the basis of the As regards the claim for compensation, argument, they point out that the the applicants maintain in their reply that case-law dealing with the right to be the inquiry ordered by the Commission reclassified in a higher grade is not during these proceedings in order to relevant in the circumstances, since this establish the exact nature and extent action is not concerned with that right. of the duties entrusted to them Furthermore, according to the Court, the demonstrated that it was ignorant of decision to call upon an official to those duties, or at least that it under- occupy a post temporarily must be based estimated their real extent. Such on an assessment of the interests of the an attitude is tantamount to malad- service but such an assessment must not ministration, which calls for compen- be arbitrary or unlimited. Hence, the sation. The situation is aggravated by the exercise of the administration's dis- fact that in the translation department in cretionary powers is subject to review by which the applicants work there is no the Court and must be confined to giving clerical officer and that their immediate

superior is a principal clerical officer, inassistants, the team has not so far other words an official in Grade C 1. included any officials in Career Bracket The applicants stress that, in its C 4/C 5. As regards the operators description of duties, the appointing working at the Parliament, the authority has consistently applied the comparison is irrelevant because they principle upheld by the Court in Case were recruited following a competition 15/65 (Klaer v High Authorityof the which prescribed, amongst the ECSC [1965] ECR 1045), namely that qualifications required, that the the occupant of a post is to be placed candidate should hold a "technical under the authority of the official in the diploma in radio-electricity", whereas career bracket immediately superior to the applicants were recruited following

Contrary to the applicants' assertions, all the operators working in the Conference Services 4. Rejoinder Division do not necessarily perform the same duties, do not have the same responsiblities and certainly cannot claim to have the same experience. As regards the specific nature of the duties, only the With regard to the first argument, the most senior operators are familiar with defendant contends in its rejoinder that the Commission's interpretation equip- any reference to Article 5 (3) of the Staff ment fitted with monitor lights.

Treaty. The argument is groundless years for operators in Grade C 5. inasmuch as the comparisons drawn by the applicants are quite irrelevant. Operators of interpretation equipment working in the Commission in Luxem- bourg are supervised by an official in Grade B 5 and are distributed as follows: two officials in Grade C 1, three officials As to the second argument, the in Grade C 3 and one official in Grade Commission contends that it is founded C 4 who took up his duties on 1 January neither on Article 5 (4) of the Staff

MICHELI v COMMISSION

JUDGMENT OF 2. 12. 1982 — JOINED CASES 198 TO 202/81

provision" (Article 7 (2) of the Staff the inference that unless the occupant of Regulations). a post is subject to the authority of the official in the career bracket immediately As regards the claim for compensation, above his own, the situation constitutes no "inquiry" of any kind whatsoever has an infringement. Even if that were the been ordered by the defendant. The case, it would be fruitless to look for any applicants are incorrect, the Commission connection between the alleged instance contends, to maintain that the of maladministration and the alleged Conference Services Division does not damage. include any clerical officers. In fact, the department in question includes seven clerical officers. Furthermore, the Kker IV — Oral procedure judgment hardly supports the applicants' view since in that case the Court The parties presented oral argument at criticized the decision to place the person the sitting on 8 July 1982. concerned — an unclassified adviser in Grade A 1 — under the authority of a The Advocate General delivered his director-general, that is to say an official opinion at the sitting on 14 October in the same grade. It does not support 1982.

Decision

1 By applications lodged at the CourtRegistry on 3 July 1981, the applicants, who are officials of the Commission of the European Communities, brought an action under Article 91 of the Staff Regulations for annulment of the Commission's decisions of 8 April 1981 whereby it refused them a compensatory allowance representing the difference between the remuner- ation actually received and the remuneration due for the performance of the duties of an operator of interpretation equipment, from the day on which they entered the service of the defendant,, or at least from the day on which they were appointed as officials, plus interest on the arrears at the rate of 8%.

5 It should, however, be recalled that the case-law of the Court shows that, although the principle of equality of treatment is a general rule forming part of the law applicable to the employees of the Communities, discrimination occurs only where identical or comparable situations are treated in an unequal way.

6 Contrary to the view put forward by the applicants, a breach of the prohibition of discrimination occurs only in cases of unequal treatment where the discrimination is not objectively justified. In this case, however, as the defendant contends, the classification in Career Bracket C 2/C 3 of the Commission's operators of interpretation equipment in Luxembourg is warranted by the fact that they are few in number and hence are better able to replace one another, whereas the applicants belong to a department which has a larger number of operators. In addition, it should be recalled that every

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institution is responsible, within the limits laid down in Articles 5 and 7 of the Staff Regulations and in Annexes IA and I B thereto, for defining the duties and powers attaching to every basic post.

7 As regards the technicians employed by the Parliament, to whose situation the applicants compare their own, it is sufficient to observe that in Notice of Competition No COM/C/4/78 the Commission called only for a knowledge of radio technology, whereas the Parliament, in a similar notice of open competition in the same year, called for a "technical diploma in radio- electricity" for technicians in Grade C 3.

fact which is especially apparent from the words "In particular", inserted above the list of titles of the posts relating to each career bracket.

1 3 Thus the second argument put forward by the applicants must also be rejected.

14 Lastly, the applicants maintain that contrary to Article 7 (2) of the Staff Regulations and in breach of the principle of fairness and of the duty of the administration to assist its officials, they were refused a differential allowance even though they were performing, on a permanent basis and for a long period of time, duties of a higher level of responsibility than those corresponding to the career bracket of clerical assistant.

15 As the Court held in its judgment of 12 March 1975 in Case 23/74 Küster v Parliament [1975] ECR 353, the application of Article 7 (2), which provides for a temporary posting allowance, requires an express decision of the appointing authority, which is lacking in this case. Furthermore, it appears from the discussion of the previous argument that the applicants do not perform duties of a higher level of responsibility than those which may be assigned to officials of their grade. Furthermore, as the concept of a temporary posting normally implies, the duties which they perform are no different from those which are inherent in their own posts.

16 The third argument, whereby the applicants seek the annulment of the Commission's decisions to refuse them a differential allowance, must therefore be rejected as unfounded.

Claim for c o m p e n s a t i o n

On those grounds,

THE COURT (First Chamber)

hereby:

1. Dismisses the application;

2. Orders the applicants and the Commission to bear their own costs.

O'Keeffe Bosco Koopmans