C-326/82

JUDGMENT OF THE COURT (FIRST CHAMBER) 30 MAY 1984 1

Helga Aschermann and Others v Commission of the European Communities

(Staff paid from research and investment appropriations — Salary)

Case 326/82

Officials—Actions — Decision which is no longer open to challenge — Admissibility — condition — Important new fact (StaffRegulations, Arts 90 and 91)

The appointing authority is not required, reconsider a decision which is no longer unless important new facts arise, to open to challenge.

APPLICATION for the annulment of the salary statements, received by the applicants since February 1982,

THE COURT (First Chamber )

composed of: Lord Mackenzie Stuart , President , T . Koopmans , President of Chamber , and G. Bosco , Judge ,

Advocate General : M . Darmon Registrar : P . Heim

gives the following

JUDGMENT

appropriations, are to be determined for Research Centre, Ispra, submitted to the each grade and step in accordance with a Commission, as the appointing authority, table contained in the same article. That complaints under Article 90 (2) of the table differs from those applicable to Staff Regulations objecting to the salary officials and other temporary staff, since statements they liad received since it fixes the salaries for Categories C and February 1982. They argued that the fact D at levels approximately 5 % below that they received remuneration which those laid down for officials and other was less than that paid to officials and temporary staff in the corresponding other temporary staff in the same grades categories. consumed discrimination contrary to the overriding principle of equal treatment. They also maintained that the discrim­ ination was made worse by the fact that That difference was maintained by the the special crisis levy also applied to various annual regulations adjusting re­ them. muneration pursuant to Article 65 (1) of the Staff Regulations and in particular by Council Regulations Nos 371/82 and 372/82 of 15 February 1982 (Official By a letter dated 20 December 1982 Journal 1982, L 47, pp. 8 and 13) signed by Mr Burke, a member of the adjusting the remuneration for 1980 and Commission, the Commission informed 1981. Council Regulation No 3821/81 of the applicants that it could not accept 15 December 1981 (Official Journal their complaints. The applicants there 1981, L 386, p. 1), which introduced a upon submitted the present application, special temporary crisis levy on salaries, which was lodged at the Court Registry pensions and termination-of-service al­ on 20 December 1982. lowances, also left that situation un­ changed. Upon hearing the report of the Judge- Rapporteur and the views of the Advocate General, the Court (First However, in July 1983, the Commission Chamber) decided to open the oral decided to submit a proposal to the procedure without any preparatory Council for a regulation amending the inquiry. However, it requested the Conditions of Employment of Other Commission and the Parliament to Servants of the Communities and supply it with certain details of the providing in particular for the repeal of proposal regarding the repeal of the the fourth paragraph of Article 20 of the fourth paragraph of Article 20 of the Conditions of Employment and the table Conditions of Employment. of basic monthly salaries relating to it. That amendment would have removed all inequality of treatment of the various temporary staff belonging to the same category. So far, the Commission's II — Conclusions of the parties proposal has not been accepted by the Council.

2. On the basis of Article 184 of the missible or at least unfounded and grant EEC Treaty, Article 156 of the costs in accordance with the law. EAEC Treaty and, so far as is necessary, of the third paragraph of Article 36 of the ECSC Treaty, III — Submissions and argu­ declare Council Regulations Nos ments of the parties 371/82, 372/82 and 3821/81 inap­ plicable as from the time when Council Regulation No 2615/76 Objection of inadmissibility entered into force or from the time when the applicants were recruited In its defence, the Commission first raises as temporary members of staff, in an objection of inadmissibility to the any event from 1 January 1982, application in these proceedings. It takes inasmuch as Council Regulations the view that the only measure which Nos 371/82, 372/82 and 3821/81 could adversely affect the applicants was maintain, with regard to the ap­ Regulation No 2615/76 since it was that plicants, the differences in salary and measure, and not any of the subsequent other remuneration introduced by regulations referred to by the applicants, Council Regulation No 2615/76 of which introduced the alleged discrimi­ 21 October 1976, and more parti­ nation of which they complain. cularly by the last sentence of Article 20 of the Conditions of Em­ At that time the members of staff ployment; concerned did not consider it necessary to raise an objection of illegality either 3. Declare and adjudge that the de­ against that regulation or against the fendant must restore the applicants' subsequent regulations, which main­ position, at least with effect from 1 tained the discrimination. January 1982, in such a way that their remuneration, in all its The Commission is aware that officials component parts, is equal to that and other staff may request the received by officials in the same competent administrative authority to categories; review an earlier decision if they can show that there has been a new fact 4. In the alternative, order the de­ which may substantially change the fendant to produce in their entirety circumstances which led to the original all the documents relating to the decision (see the judgment in Case exchanges between the Council and 28/72, Tontodonati v Commission, [1973] itself on the issue forming the ECR 779). It notes, however, that it did subject-matter of these proceedings; not in fact receive a request under Article 90 (1) of the Staff Regulations 5. Take formal note that the applicants but a direct complaint within the meaning of Article 90 (2) thereof. reserve the right to amplify their conclusions following the production of those documents; Besides, Regulations Nos 371/82, 372/82 and 3821/81 cannot in any event be regarded as a "new fact" substantially 6. Order the defendant to pay the changing the circumstances prevailing at costs." the time when Regulation No 2615/76 was adopted, for they allowed the alleged discrimination created by Regu­ The Commission contends that the Court lation No 2615/76 to continue should declare the application inad­

In its rejoinder, the Commission returns to the question whether a "new fact" According to the applicants, those regu­ exists in this case. Although the Court lations do constitute a "new fact" as referred to a "sufficiently important new defined by the Court in its decisions (see fact" in its judgment in the Muller case the judgment in Case 109/63, Muller v cited by the applicants, it was because it Commission, [1964] ECR 663). does not wish to allow decisions which have become definitive to be constantly called in question. The Court does not therefore merely require a new fact but In the applicant's view, there is requires the new fact to have a certain absolutely no requirement, as the importance. Commission appears to believe, that persons who have an interest in having a previous decision reviewed after a new fact has arisen must first lodge a request In this case, the regulations to which the under Article 90 (1) of the Staff Regu­ applicants refer do not make their lations since such a request certainly position worse in any way. The same cannot be required if, as in this case, it is true of Regulation No 3821/81. would have had no effect. Moreover, the basis for the crisis levy, namely the basic salary of each official or other servant minus social security and pension contributions and tax and The applicants submit that, in order to minus the basic salary of an official in demonstrate the existence of a "new Grade D 4, Step 1, is negligible in the fact", it is enough to show that the case of low incomes such as those of the discrimination of which they complain applicants. has been maintained by the regulations which followed Regulation No 2615/76. Indeed, even purely routine regulations may cause a particular situation to "crys­ Nor can the Commission agree with the tallize", thereby creating a "new fact" applicants' argument based on the

judgment in Case 737/79, Battaglia compared with those officials and other v Commission. In that case the Court servants who perform the same duties took a number of circumstances into and are in a comparable situation. They consideration, among them the retro­ point out that the discrimination is active application of the regulations in confined to Categories C and D, dispute, which are not present in the whereas it does not exist in the case of applicant's case. Even if the talks which Categories A and B. have begun between the Commission and staff representatives have resulted in the Commission's proposing a regulation to Such unequal treatment conflicts with a the Council, they provide no justification higher-ranking legal principle laid down for calling in question situations which by the Court which overrides staff rules have been established for a long time. or regulations contrary to it (see the judgment in Case 156/78, Newth v Commission, [1979] ECR 1941). They As regards the need for a prior request also point out that the Commission, in to be made by the person concerned proposing the abolition of the discrimi­ under Article 90 (1) of the Staff Regu­ nation to the Council, has recognized lations, the Commission takes the view that it is desirable to bring it to an end. that this requirement must always be fulfilled whenever a review of an individual or general case is requested. In its defence the Commission makes the preliminary point that Regulation No 2615/76 considerably improved the Substance situation of staff paid from research and investment appropriations compared with their previous situation, since the staff In support of their contention that the concerned in all the research es­ determination of their salaries is un­ tablishments, and unquestionably those lawful, the applicants rely on two at Ispra, received much higher pay than separate submissions. before. The difference between the salaries of staff paid from research and investment appropriations and the First submission salaries of officials and other staff in the same categories is explained by the Council's desire to avoid too great a In their application the applicants observe burden being imposed on the budget that, even after the adoption of Regu­ owing to the inclusion of former lations Nos 371/82 and 372/82, their establishment and local staff in the salaries are still approximately 5 % lower category of temporary staff. Further­ than those of officials in the same more, that difference has not increased category. In addition, since the end of in the course of time. February 1982, their salary statements have included deductions for the crisis levy. The Commission points out that the Court has consistently held that discrim­ Consequently, since 30 October 1976 — ination consists in treating in an identical the date on which establishment and manner situations which are different or local staff were made subject to . the treating in a different manner situations conditions of employment of temporary which are identical. The principle of staff — they have suffered discrimination non-discrimination is observed if persons

In their reply the applicants observe that there is a contradiction between the arguments put forward by Mr Burke in As far as concerns the proposal for a the reply given to their complaints and regulation which it submitted to the those set out in the preamble to the Council, it is one of the initiatives which proposal submitted to the Council on an it regularly takes with a view to amendment to the Conditions of Em­ improving and perfecting the provisions ployment. In that preamble the Com­ of the Staff Regulations and the mission states in fact that the principle of Conditions of Employment, but it equality must take precedence over certainly does not mean that the historical factors to which the discrim­ Commission considers the reform carried ination at issue owes its origin and that out in 1976 through the adoption of such unequal pay cannot reasonably be Regulation No 2615/76 to be unlawful. maintained where the work done and duties performed are the same.

Second submission The budgetary considerations relied upon by the Commission do not withstand examination either. In the first In their second submission the applicants place, the financial burden is very slight maintain that the Commission failed in since temporary staff in Categories C its duty to look after their well-being, and D are involved. Secondly, if since when the provisions relating to the financial considerations are to be taken crisis levy were adopted and also when into account, discriminatory arrange­ the proposals for the adoption of Regu­ ments should be applied to staff in Cate­ lations Nos 371/82 and 372/82 were put gories A and B as well. Finally, the forward, it should have ensured that the budgetary problems which allegedly remuneration of staff in Categories C

Decision

1 By application lodged at the Court Registry on 20 December 1982, Helga Aschermann and 47 other temporary servants of the Commission of the European Communities employed at the Joint Research Centre , Ispra , Italy, brought an action under Article 91 of the Staff Regulations of Officials (hereinafter referred to as " the Staff Regulations ") for a declaration that

(i) Council Regulations Nos 371 / 82 and 372 / 82 of 15 February 1982 (Official Journal 1982, L 47 , pp . 8 and 13) and Council Regulation No 3821 / 81 of 15 December 1981 (Official Journal 1981 , L 386 , p . 1), are not applicable to them and

JUDGMENT OF 30. 5. 1984 — CASE 326/82

(ii) that the Commission must restore their position, at least with effect from 1 January 1982, in such a way that their remuneration is equal in all its component parts to that received by officials in the same categories.

2 After the entry into force of Council Regulation No 2615/76 of 21 October 1976 (Official Journal 1976, L 299, p. 1) staff engaged to fill temporarily a permanent post paid from research and investment appropriations (herein­ after referred to as "research staff"), who had previously been engaged as local or establishment staff, were recruited as temporary staff. Consequently, since that time they have been subject to the same arrangements as other temporary staff, namely those laid down in Title II of the Conditions of Employment of Other Servants of the European Communities (hereinafter referred to as "the Conditions of Employment").

JUDGMENT OF 30. 5. 1984 — CASE 326/82

lations Nos 371/82 and 371/82 adjusting remuneration for 1980 and 1981. That situation was not altered by Regulation No 3821/81 either, which introduced a special temporary crisis levy on, inter alia, the remuneration of the staff of the Communities.

6 The applicants are all research staff in Category C or D. By complaints lodged with the Commission under Article 90 (2) of the Staff Regulations they contested the salary statements which they had received since February 1982. They maintained that the fact that they received less remuneration than officials and other temporary staff in the same grades performing the same duties constituted discrimination contrary to the overriding principle of equal treatment.

7 By letter dated 20 December 1982 the Commission rejected those complaints.

8 The applicants thereupon brought this action in which they in substance request the Court to declare, pursuant to Article 1984 of the EEC Treaty, Article 156 of the EAEC Treaty and the third paragraph of Article 36 of the ECSC Treaty, that Regulations Nos 371/82, 372/82 and 3821/81 are inap­ plicable to them and to order the Commission to pay to them the difference between the remuneration which they have actually received at least since 1 January 1982 and the remuneration which they would have received if the unequal treatment in relation to the officials and other temporary staff per­ forming the same duties had not existed.

Admissibility

13 It must be borne in mind, as the Court has held many times (see the judgments in Joined Cases 109/63 and 13/64, Muller y Commission [1964] ECR 663, Case 28/72, Tontodonati v Commission, [1973] ECR 779 and in Case 173/80, Blasig v Commission, [1981] ECR 1649), that the appointing authority is not required, unless important new facts arise, to reconsider a decision which is no longer open to challenge.

1 4 In this case, the decision constituting the first application of Regulation No 2615/76 to the applicants was adopted several years, before their complaints were lodged with· the Commission. Consequently, that decision can no longer be challenged.

15 In reply to the applicants' argument that the application to them of Regu­ lations Nos 371/82, 372/82 and 3821/81 constitutes an important new fact within the meaning of the decisions of the Court it must be pointed out that

JUDGMENT OF 30. 5. 1984 — CASE 326/82

Regulations Nos 371/82 and 372/82 merely increase the remuneration and pensions of officers and other servants of the Communities for 1980 and 1981 pursuant to Article 65 (1) of the Staff Regulations and that consequently they do not alter in any way the situation of which the applicants complain.

16 By way of derogation from Article 3 (1) of Regulation No 260/68, Regu­ lation No 3821/81 introduced, for a period expiring on 1 July 1991, a special temporary levy on net salaries, pensions and termination-of-service allowances. In the case of officials and other staff in active employment the basis of the levy is the basic salary for the various grades and steps less the social security and pension contributions and the tax, before any levy, payable by an official in the same grade and step without dependants and the basic salary of an official in Grade D 4, Step 1.

On those grounds,

THE COURT (First Chamber)

hereby:

1. Dismisses the application as inadmissible;

2. Orders the parties to bear their own costs.

Mackenzie Stuart K o o p m a n s Bosco