C-33/87
ECLI:EU:C:1988:272
- Súd
- Súdny dvor Európskej únie
- IČS
- 61987CC0033
- Zdroj
- eur-lex.europa.eu ↗
OPINION OF MR DA CRUZ VILAÇA —CASE 33/87
OPINION OF MR ADVOCATE GENERAL DA CRUZ VILAÇA delivered on 31 May 1988 *
Mr President, 4. The applicant submitted a complaint, Members of the Court, seeking annulment of the decision of the administration of the Court in so far as it applied the weighting. He also requested that the administration should be instructed to send the family allowances to his wife 1. On 21 March 1986 the Personnel without the application of any weighting, or Division of the Court of Justice informed alternatively that they should be paid to the one of its officials, Vassili Christianos, a applicant, who would undertake to transfer lawyer-reviser in the Greek Division of the them to his ex-wife at the normal exchange Translation Directorate, that pursuant to rate applied by banks. the new provisions of Articles 67 and 68 of the Staff Regulations and Articles 1, 2 and 3 of Annex VII thereto, the family allowances payable to him would thereafter be paid 5. The complaint was expressly rejected by direct to his ex-wife, who resides in Greece the committee of the Court responsible for with their son, of whom she has custody. dealing with complaints; it is against that rejection that the present action has been brought.
2. Under those provisions the calculation of 6. The Commission of the European the allowances in question (household Communities was given leave to intervene in allowance, dependent child allowance and support of the defendant. education allowance) would also involve the application of a geographical weighting corresponding to the country of residence of the person entitled to custody. 7. The applicant asks the Court, essentially, to
(a) annul the decision rejecting his 3. Consequently, and in accordance with complaint; instructions from the Head of the Personnel Division, the applicant's remuneration was reduced as from May 1986 by LFR 15 822 in respect of all the family allowances (b) direct that the family allowances to be payable. That sum was equivalent, at the paid to the person having custody of the official exchange rate, to DR 48 680, but child are to be calculated at the actual the applicant's ex-wife's account was exchange rate for Luxembourg francs credited with only DR 32 520 as a result of and drachmas, without the application the application of the weighting for Greece. of any weighting;
* Translated from the Portuguese.
CHRISTIANOS v COURT OF JUSTICE
(c) order an adjustment of the applicant's 13. It contends that the Court could not account; order the measures sought by the applicant: the applicant does not complain of misappli cation of the Staff Regulations but chal (d) order the defendant to pay the lenges the application of a provision which differences between the amounts he objects to as illegal. deducted from his salary and those paid to the recipient of the allowances as from 15 May 1986; 14. However, it is for the Community legis lature alone to adopt the necessary measures to bring to an end any discrimination (e) order the defendant to pay default deriving from the contested legislation interest and also the costs ofthe (judgment in Razzouk and Beydoun [1984] proceedings. ECR 1509, at p. 1530, paragraph 19) and the administrations of the institutions are, until then, under an obligation to apply the 1. The admissibility of the application provisions of the Staff Regulations for the time being in force.
8. The action is intended to secure, in the first place, annulment of the decision 15. In my view, this problem may be rejecting the applicant's complaint. resolved into two issues:
9. That decision is a purely confirmatory (1) whether or not an objection of illegality measure which, taken in isolation, cannot be has been raised by the applicant; challenged.
(2) whether or not the Court is competent 10. But, as the Court has acknowledged in to order the measures sought by the similar circumstances, 1 it must be applicant. recognized that the subject-matter of an action extends also to the measure against which a complaint was submitted and whose implementation adversely affects the 16. As regards the first part of the problem, applicant. the terms used by the applicant — both in his complaint and in his ap plication — indicate, albeit ambiguously, 11. No inadmissibility thus arises in that that he wished to avoid directly challenging respect, as indeed the defendant stated in its the legality of the applicable provisions of defence. the Staff Regulations, preferring to direct his action against the legality of the admin istration's decision, having regard to the 12. However, the defendant also raised an manner in which the latter interpreted and objection of inadmissibility regarding the applied those provisions. applicant's second, third and fourth heads of claim. 17. Thus, all his arguments purport to 1 — Judgment of 20 March 1984 in Joined Cases 75 and challenge the 'strict' or 'literal' application 117/82 Razzouk and Beydoun [1984] ECR 1509, at p. 1527, paragraph 7. of the amendment to the Staff Regulations
OPINION OF MR DA CRUZ VILAÇA — CASE 33/87
which, far from adversely affecting 21. Let us first look at the second part of dependent children, was designed to ensure the problem of admissibility. The applicant their effective protection. He claimed, points to a parallel with Newth, 4 which therefore, that such literal application gave concerned the application of Article 50 (5) rise to 'results which were not foreseen and of the Staff Regulations, in relation to the ran counter to the interests of the persons geographical weightings to be applied in the which it (the provision of the Staff Regu case of retirement in the interests of the lations) ought to protect', creating an service. The claims made in that case were irregular and unfair situation, leading, in wholly similar to those at issue here. this particular case, to an infringement of general principles, above all the principle of equality.
22. Without discussing the admissibility of the claims — which was not challenged by 18. There may be doubts as to the admissi the Commission, the defendant in that bility of a merely implicit 'objection of case — the Court considered that the illegality' in the applicant's arguments. 2 application of Article 50 (5) of the Staff Regulations to a situation like that of the applicant would have disturbing conse quences, infringing the principle of equality, 19. It is clear, however, that the real and therefore that the administration was problem raised in this action is in fact under a duty to interpret the provision in whether Article 67 (4), in so far as it question so as to avoid such a consequence, requires a geographical weighting to be and accordingly ought to apply weightings applied to family allowances paid to a different from those prescribed by that person other than the official concerned, is provision. to be considered inapplicable' to the applicant's situation, for fear that its application might result in the infringement of a superior rule of law. In fact, it is impossible to call in question the legality of 23. Pursuant to Article 91 of the Staff a decision of the administration regarding Regulations, which gives it unlimited juris the applicant's family allowances without diction in proceedings of a financial challenging the propriety of the clear character, the Court then held that the provision of the Staff Regulations on which Commission should determine the it is based. applicant's rights with all due precision.
20. Moreover, at the hearing, Counsel for 24. It does not however seem to me that the the applicant, when pressed by the Court, issue in that case is liable to influence the finally conceded that the object of the decision to be given in this one. application was to challenge, by way of objection, the propriety of the provision concerned. It is appropriate to dispel any doubts regarding this matter, 3which I shall analyse in the second part of this Opinion. 25. It is incontestable that, in cases where the administration enjoys discretion in 2 — Judgment of 17 December 1959 in Case 14/59 Fonderies de Pont-à-Mousson [1959] ECR 215, at p. 230. 4 — Judgment of 31 May 1979 in Case 156/78 Newth v 3 — Idem. Commission [1979] ECR 1941, at p. 1952, paragraph 13.
CHRISTIANOS v COURT OF JUSTICE
deciding whether and in what terms to its judgments. 7 Accordingly, this claim is adopt a particular decision, the Court inadmissible.' cannot take its place by adopting the decision for it or determining which of a number of existing possibilities is to be 31. However, the situation is not so clear chosen. 5 where the annulment of the administration's measure is sought because it was based on provisions of the Staff Regulations which contravene a superior rule of law and are 26. Accordingly, the Court has always therefore inoperative. taken care to avoid encroaching upon the discretion of the administration by means of the orders or injunctions available to it. 32. Following such annulment, it is incumbent on the Community legislature, on the one hand, to comply with the judgment by taking the measures necessary 27. Any claim to that effect must therefore to restore observance of the principle in be regarded as manifestly inadmissible. questions; 9 but, on the other hand, it is incumbent upon the administration to re-examine the applicant's position 28. And even where the administration's immediately and adopt, in the mean time, powers are circumscribed, there is no reason the measures necessary to bring to an end necessarily to reach a very different the prejudical or discriminatory situation of 10 conclusion. which he was the victim.
33. Once the contested provision has been 29. In fact, the exercise of such powers then declared inoperative, it may become stems from the obligation to give effect to necessary — so that the administration is in the judgment, and it becomes unnecessary a position to 'determine the rights of the 1 for the Court to address any order to the applicant with all due precision' 1— for the defendant institution to adopt a particular Court to provide it with valid points of measure or decision. reference or parameters for its decision.
34. That is what the Court did in Razzouk 30. As was stated, in general terms, by the 6 and 'Beydoun when it directed that the Court in De Compte, 'Article 176 of the provisions of the Staff Regulations Treaty provides that an institution whose act has been declared void is required to 7 — Seeking retroactive restoration of the applicant's full entit- take the necessary measures to comply with lement. the judgment of the Court of Justice. The 8 — See also judgment of 23 February 1961 in Case 30/59 De Gezamenlijke Steenkolenmijnen [1961] ECR 1, at p. 36 ; Court cannot, without exceeding its juris judgments of 1 July 1964 in Case 26/63 Pistoj v diction, address orders to the Community Commission [1964] ECR 341 and Case 78/63 Huber v Commission [1964] ECR 367. This trend in the case-law institutions regarding the implementation of prevailed over that followed in earlier cases, such as the judgment of 19 March 1964 in Case 18/63 Schmitz-Wollast v European Economic Community [1964] ECR 85 and the 5 — Judgment of 16 December I960 in Case 44/59 Fiddelaar v judgment of 7 July 1964 in Case 70/63 Collotti v Court of Commission [1960] ECR 535, at p. 542; judgment of 19 Justice [1964] ECR 435. March 1975 in Case 189/73 Van Reenen v Commission 9 — Razzouk and Beydoun, cited above, paragraph 19. [1975] ECR 445, at p. 454. 10 — Ibidem. 6 — Judgment of 20 June 1985 in Case 141/84 De Compte v Parliament [1985] ECR 1951, at p. 1967, paragraph 22. 11 — Newth, cited above, paragraph 14.
OPINION OF MR DA CRUZ VILAÇA — CASE 33/87
concerning widow's pensions should be 2. Analysis of the merits applied to one of the applicants; that is also what the Court did in Newth, when it directed that the weighting for Belgium should be applied to the payment, calculated in Belgian francs, to which the applicant 40. The applicant alleges that a number of was entitled under Article 50 (5) of the Staff general principles of law have been Regulations and that the applicant's account contravened : should be adjusted and the arrears due be paid to him.
35. However, for all practical purposes, that (a) The principle of equity: the strict problem does not arise in the case under application of Article 67 (4) led in the review here. applicant's case to an iniquitous situation, entailing unforeseen results totally opposed to the interests of the 36. The applicant has made a number of persons who should have been claims but has not set out specific grounds protected, in so far as the latter were for each of them. On the contrary, the prevented from receiving the full grounds relied upon are common to all the amount of the family allowances; claims.
37. If, as will be seen shortly, the grounds of the application must be regarded as (b) The principle of protection of legitimate wholly unfounded, that would immediately expectations, the duty to have regard for imply dismissal not only of the main claim the interests of officials and the principle (annulment of the contested decision) but of sound administration: the adminis also of the ancillary claims and of those tration of the Court applied abstract rules without taking account of the seeking orders to be addressed to the interests of the official and his minor administration with a view to enforcement child and without informing him of the of the judgment. consequences of the application of those rules;
38. Since, in either case, it is necessary to consider the merits of the grounds relied on, in so far as a number of the claims escape the objection of inadmissibility, if it should (c) The principle of equality of treatment: the be concluded that the action is entirely system at issue, although having the unfounded it will be unnecessary to express objective of according equal treatment a specific view on the admissibility or well- to persons residing in different foundedness of the claims alleged by the countries, has as its result discrimination defendant to be inadmissible. between officials whose families reside in Greece and those whose families reside in another Member State, 39. It may in fact be stated at this point that depriving the former of part of the none of the grounds adduced is capable of family allowances to which they are providing the least support for the action. entitled;
CHRISTIANOS v COURT OF JUSTICE
(d) The prohibition of 'unjust enrichment: 45. Remuneration comprises, by virtue of although conceding in his reply that Article 62, a 'basic salary, family allowances there can be no real 'unjust enrichment' and other allowances' and all of them are of the administration, the applicant subject to the geographical weightings alleges that the latter's action regarding referred to in Articles 64 and 65. That the transfer of family allowances means practice is confirmed by the judgment in 13 that the recipient thereof is ultimately Jacquemart of 13 July 1978, which makes paid less than she would receive if (as it clear (paragraph 14) that 'the weightings under the previous system) the official do not constitute an additional element of himself made the transfer at the remuneration but are a means of calculating prevailing rate of exchange or if she the amounts of the various elements making resided not in Greece but in up that remuneration'. The application of Luxembourg. the weightings will involve an increase or a decrease, as the case may be, of the remuneration expressed in Belgian francs.
41. The applicant's arguments do not stand up to analysis.
46. Article 67 (4) does no more than clarify 42. As far as the principles of equity and the fact that the weighting applied to family equal treatment are concerned, what the allowances paid to a person having custody applicant is in fact challenging is the of the children (where that person is not the application of the geographical weightings official) is the weighting applicable to the to the family allowances paid to a person country of residence of that person. other than the official, in accordance with Article 67 (4) of the Staff Regulations.
47. And in fact it would not be equitable to 43. However, as the Court has emphasized pay the allowances in the currency of the on more than one occasion in relation to country in which the official performs his Articles 64 and 65 of the Staff Regulations, duties, subjecting them to the weighting the purpose of the geographical weightings applicable to that country, when the official is 'to guarantee, in accordance with the does not have custody of the child and the principle of equal treatment, the main child resides in another country with the tenance of equal purchasing power for all person who looks after him. officials, regardless of their place of 2 employment'. 1
44. The principles adopted in the Staff 48. The result of the system adopted is thus Regulations is that of parity of purchasing that the persons having custody of the children of officials receive the same power of the remuneration of officials, amount, calculated according to the cost of regardless of the place where they perform living, wherever they reside: the application their duties. of this rule makes certain that equity is 12 — Judgment of 6 October 1982 in Case 59/81 Commission v wholly ensured. Council [1982] ECR 3329, at p. 3358, paragraph 33; judgment of 15 December 1982 in Case 158/79 13 — Case 114/77 Jacquemart vCommission [1978] ECR 1697, at Roumengous Carpentierv Commission [1982] ECR 4379, at p. 4402, paragraph 28. p. 1706.
OPINION OF MR DA CRUZ VILAÇA —CASE 33/87
49. In the applicant's case, the general rule previously transferred by the applicant was observed, without any unforeseen or himself; this is because the cost of living is undesirable consequences. lower in Athens than in Brussels and Luxembourg. In other cases, the situation will be, and is, the reverse and, for the same reasons of relative fairness, the weighting to 50. It has not been shown that the be applied in those cases will be higher. applicant's situation is in any way excep tional so as to justify, in regard to him, a departure from or a change in the application of the rule in question. 54. The applicant's son thus enjoys the same purchasing power as the son of any other official entrusted to that official or to a third party and residing in any Member State, which would not be the case if the 51. On the contrary, the rule is applied to a weightings were not applied. general category of persons, defined in abstract terms according to their circum stances, and the applicant simply comes within that general category. Moreover, it 55. Furthermore, there is no doubt that the has been explained to us that, in the Court applicant's son will receive, by way of of Justice alone, the system is applied to family allowances, the same amount in about 15 to 20 people. The Commission has Greek currency, and therefore will enjoy also given a number of examples of the the same purchasing power, as the son of application of the same provision to the any other official entrusted to the care of family allowances payable to its officials, the official's spouse and residing with the resulting in some cases in a decrease and in latter in Greece. others in an increase of the nominal amounts in Belgian francs, depending on the places of residence of the persons with custody of the children. 56. No better fate awaits the allegation of breach of the principle of the protection of legitimate expectations: it is not legitimate for an official to expect that a provision of 52. In the same way it is not possible to the Staff Regulations will be applied incor speak of breach of the principle of equality rectly or will be flagrantly infringed — as where a provision is applied which is would happen if, as the applicant requests, intended precisely to ensure that different the family allowances were sent to his treatment is accorded to people who are in ex-wife without the application of any different situations, so as to offset the weighting or if they were paid direct to the differences and make certain that, as a applicant in a currency other than that of result of the adjustment envisaged in the the country of residence of the person provision, they are placed in equivalent having custody of the child. circumstances.
57. Article 67 (4), which was added to the Staff Regulations by Article 5 of Council 53. There is no doubt that the application Regulation (EEC/Euratom/ECSC) No of the weighting in force for Greece has 14 2074/83 of 21 July 1983, originates from resulted in the amount transferred by the administration being lower than that 14 — OJ L 203, 27.7.1983, p. 1.
CHRISTIANOS v COURT OF JUSTICE
the competent authority, has the same value Regulations, calling upon him, moreover, to as the amended legislation, is not subject to take the measures necessary to ensure any formal defect and was well known to correct application of the rules and prevent the applicant (particularly since the adminis any undue loss. tration drew attention to the changes to the Staff Regulations in a note which it circulated on 21 March 1986); the applicant cannot therefore claim to be surprised, or to have any subjective expectation or acquired 61. In other words, not only can the right under the previous rules, in order to applicant not consider himself the victim of escape the application of Article 67 any provisions of the Staff Regulations (4) — which, moreover, is not retroactive. which have, as far as he is concerned, discriminatory consequences; he also cannot complain that the administration, by applying those provisions, has acted in 58. As the Court has emphasized, 5 the 1 relation to him in an improper, unfair or relationship between officials and even careless manner. There may indeed institutions is based upon the Staff Regu have been a delay in applying the new lations and no commitment given by the provisions which, it appears, was due to administration can be relied on in such administrative difficulties; however, the circumstances to suspend the the effects of a applicant suffered no loss as a result. properly introduced amendment to the Staff Regulations.
62. Finally, when confronted by the defendant's defence, the applicant 59. That being the case, it is not clear how abandoned, in his reply, the submission as the Community's duty to have regard for the to the alleged unjust enrichment of the interests of its officials or the principle of institution, but he continued to maintain sound administration could be at issue, since that he and his son had suffered, as a result all that occurred was the straightforward of the application of the contested application of a provision of the Staff Regu provisions, 'unjust impoverishment'. lations inspired by the concern (stemming from complaints previously made to the institutions) to ensure the prompt and effective payment of family allowances to the persons having custody of children, to enable them to enjoy the same treatment 63. The defendant has shown sufficiently regardless of their place of residence. that the submission made in the application was based on a profound misunderstanding. Pursuant to Article 62 et seq. of the Staff Regulations, the remuneration of officials (including family allowances) — always 60. Furthermore, as we have seen, the expressed in Belgian francs — is subject to a administration informed the applicant well weighting above, equal to or below 100%, in advance that, having regard to the infor depending on the differing living conditions mation provided by him, it was going to in the various places of employment. apply the relevant provisions of the Staff However, it is paid in the currency of the country in which the official performs his 15 — Judgment of 19 March 1975 in Case 28/74 Gillet v Commission [1975] ECR 463, at p. 472, paragraph 4. duties or, where it is appropriate to apply
OPINION OF MR DA CRUZ VILAÇA—CASE 33/87
Article67 (4), in the currency of the calculated so as to guarantee equality of the country of residence of the person purchasing power of remuneration. responsible for the official's children, in which case there is applied, if necessary, the 66. Since all that is involved is a method of rate of exchange used for the implemen calculating remuneration, there is no trace tation of the general budget of the of any enrichment of the institutions at the Communities, in accordance with the expense of their officials; still less of unjust second subparagraph of Article 63 (2). enrichment, when it is clear that the system applied derives from the Staff Regulations. 64. This applies to all the elements making up the remuneration and, as far as family 67. Since, despite everything, the applicant allowances are concerned, it applies whether has continued to claim to have suffered the children are in the custody of the 'unjust impoverishment', one of two alter official or of a third party, whether they natives must prevail: either this is a new reside at the official's place of employment submission made in the reply, which cannot or in another Member State and whether be taken into consideration in view of the official works in Brussels or Article 42 (2) of the Rules of Procedure; or Luxembourg or in another Member State. else it is merely another aspect of the same 65. Depending on the circumstances, the submission and must therefore be governed appropriate weighting will be applied, by the same considerations.
3. Conclusion
68. Since the applicant has failed in all his submissions, the application must be dismissed and the costs be borne by the parties in accordance with the combined provisions of Articles 69 (2) and 70 of the Rules of Procedure.