C-125/87

BROWN v COURT OF JUSTICE

OPINION OF MR ADVOCATE GENERAL MISCHO delivered o n 8 D e c e m b e r 1987 *

Mr President, 'An official appointed to the higher grade Members of the Court, shall in no case receive a basic salary lower than that which he would have received in his former grade.'

1. By a decision of 13 August 1981 taken by 4. In a letter of 5 February 1982 dismissing the President of the Court in his capacity of the complaint the President of the Court appointing authority, Leslie Brown, a rejected that argument, stating that: clerical officer in Grade C 2, Step 5, was appointed an administrative assistant in Grade B 5, Step 4, with effect from 1 August 1981. At the same time Mr Brown 'Article 46 of the Staff Regulations upon was granted a differential allowance equal which the complainant relies cannot apply to the difference between the net either directly or by analogy to the remuneration relating to his former classifi- situation. The article concerns only the step cation in Grade C 2, Step 5, and the net in which an official is to be placed on remuneration relating to his classification in promotion within the same category (see the Grade B 5, Step 4. Under the system in judgment of 13 July 1972 in Joined Cases force at that time, the differential allowance 55 to 76, 86, 87 and 95/71 Besnard and was meant to be absorbed as the net Others v Commission [1972] ECR 543). remuneration in the new grade increased.

In classifying the complainant in Grade B 5 the appointing authority adhered strictly to 2. Mr Brown was quick to object that the the principle set out in the second indent of appointment would cause him to suffer a Article 31 (1) of the Staff Regulations which significant loss compared with what he states that as a rule officials shall be would have received in his old grade if he appointed to the starting grade for the post had continued to advance to a higher step for which they have been recruited.' every two years and had received general salary increases applying to all officials.

November 1981 in the light of the judgment 9. On 10 April the President of the Court which the Court had just delivered on finally came to adopt the general decision 29 January 1985 in Case 273/83 (Michel v on 'transition' from one category to a Commission [1985] ECR 347). In that higher category against which Mr Brown judgment the Court stated in particular that: lodged a complaint on 5 August 1986 under Article 90 (2) of the Staff Regulations. He learned of the existence of that decision through a communication from the Staff 'In order to ensure that an official in one of Committee of 14 May 1986 and a the highest grades in a category does not 'décompte — état comparatif' dated 3 July suffer a loss, which might in some cases be 1986 drawn up by the Finance Division of substantial, of seniority and salary by the Court which he received on 22 July comparison with his colleagues on being 1986. transferred to the category above, it is . . . necessary to apply to him the prin- ciples laid down in Article 46 of the Staff Regulations' (paragraph 22). 10. In introducing an increasing differential allowance that general decision (the contents of which were officially notified to Further on, it stated: staff by a communication from the Registrar of 26 March 1987) in substance met the claims of Mr Brown who continued, 'Article 46 has the effect of maintaining the however, to object to the date of its entry seniority . .. acquired when officials are into force, fixed at 1 March 1986, and transferred to a new category" (paragraph requested that it be applied as from the date 24). on which the officials concerned are appointed to a higher category or at any rate from the date of the judgment in the Michel case. 7. The position adopted in the Michel judgment on the question of the applica- bility of Article 46 where an official moves from one category to a higher category therefore differed from the position under 11. There was a further exchange of letters the previous case-law on which the with the President of the Court who initially President of the Court had relied when wished to treat Mr Brown's complaint as a rejecting Mr Brown's first complaint in request under Article 90 (1) of the Staff February 1982. Regulations before the ad hoc Committee of the Court expressly rejected his complaint on 30 January 1987 on the ground that, by virtue of the principle of legal certainty, a 8. Whilst maintaining that Mr Brown's decision of general application may not request was time-barred, the President have retroactive effect save in very excep- stated in his reply of 4 June 1985 that 'the tional circumstances. institutions are examining what conse- quences to draw from the Michel judgment' but pointed out that he could not 'predict what the outcome of this will be, nor how far any change, if there were to be one, 12. In his application lodged on 10 April could be made retroactive or apply to those 1987 Mr Brown seeks the annulment of the promoted before such a change'. decision rejecting his complaint directed

against the general decision of 10 April 15. At first sight, therefore, the application 1986 and a declaration that he is entitled to should be regarded as admissible. the differential allowance calculated according to the new method, together with interest, with retroactive effect from the date on which he was appointed to Grade 16. However, the Court, as an adminis- B 5 or at any rate from the date of the tration and a defendant, has reached the judgment in Michel. opposite conclusion. It has raised an objection of inadmissibility against the application on the ground that its real purpose is to call in question the methods of calculating the differential allowance which 13. What view must be taken of this case? was determined on 13 August 1981 when First of all, according to the first indent of the applicant was appointed to Grade B 5. Article 90 (2) of the Staff Regulations, In the Court's view, the application is officials have the right to lodge a complaint therefore out of time. and then an appeal against a 'measure of a general nature' of the appointing authority which adversely affects them; the measure need not be of 'individual concern' to them within the meaning of Article 173 of the 17. Under established case-law: EEC Treaty. 1 The Court has in fact recognized the admissibility of such actions in De Dapper v Parliament (judgment of 29 September 1976 in Case 54/75 [1976] ECR 'the time-limits laid down in Articles 90 and 1381) and Diezler and Others v Economic 91 of the Staff Regulations are mandatory and Social Committee (judgment of 27 and are not subject to the discretion of the October 1987 in Joined Cases 146 and parties or of the Court, since they were laid 431/85 [1987] ECR 4283). In this case, Mr down with a view to ensuring clarity and Brown lodged within the prescribed periods legal certainty'. 2 a complaint and then an appeal against the general decision of the President of the Court of 10 April 1986. It may also be said that Mr Brown may claim to have an 18. It follows that, even if: existing personal interest in seeing that the general decision of 10 April 1986 is given greater retroactive effect than it has been given. 'under Article 90 (1) of the Staff Regu- lations any official may request the appointing authority to take a decision relating to him, . . . that right does not allow an official to evade the time-limits laid 14. Moreover, it may be observed that the down in Articles 90 and 91 for the lodging Committee of the Court vested with the of a complaint and an appeal by indirectly power to determine complaints of officials calling in question by means of a request a did not declare the applicant's complaint previous decision which was not challenged inadmissible but rejected it as regards the within the period prescribed. Only the substance. existence of substantial new facts may 1 — On this point sec my Opinion of II June 1986 in Joined Cases 269 and 292/84 Fabbro and Scharf v Commission 2 — See the judgment of 7 May 1986 in Case 191/84 Barcella [1986] ECR 2983, p. 2996. and Others v Commission [1986] ECR 1541, paragraph 12.

21. It is true that, in the present case, M r Brown's complaint of 5 August 1986 was It went on to state that: expressly directed against the general decision of 10 April 1986 and not against the individual decision of 13 August 1981. 'A fortiori, he may not raise retrospective claims relating to his classification and, consequently, to his past and future 22. But Mr Brown does not contest the remuneration' (paragraph 10). substance of the general decision which corresponds to that which he has always sought. In his complaint he requests that 25. However, what applies to the conditions that decision be applied retroactively from of recruitment must logically also apply to 'the date when all officials concerned have the conditions of appointment following had to accept a lower salary after a promotion or a change of category. The promotion or, in any event, from differential allowance granted upon such an 29 January 1985 (the date of the judgment event is one of those conditions. of the Court in Case 273/83 Michel v Commission) as the date from which the system applied by the Court of Justice to 26. Only the emergence of a new fact might officials passing from one category to therefore possibly justify time running another must be considered illegal'. afresh.

23. Mr Brown is therefore primarily 27. The defendant points out quite rightly requesting that he and the other officials in this regard that the judgment of 29 who have not brought actions against the January 1985 in the Michel case cannot differential allowance granted to them when constitute such a new fact since it is estab- lished case-law that: 3 — See the order of 19 February 1987 in Case 101/86 Mogensen v Commission [1987] ECR 825, paragraph 9. 4 — See the judgment of 15 December 1971 in Case 17/71, Tontodonati v Commission [1971] ECR 1059, paragraph 3 at p. 1062. Commission [1971] ECR 1059, *§ 'apart

29. When considered independently from the judgment in the Michel case, the 32. However, in his application Mr Brown decision of 10 April 1986 does in fact alternatively claims a declaration that he 'is appear to be a quite fundamental change in entitled to the differential allowance the administrative practice of the Court. intended to make up the difference between However, in its judgment in Schots-Kortner his salary in his former Grade C 2, Step 5, and Others v Council, Commission and and the salary in Grade B 4, Step 2, in Parliament 6 the Court held that a general accordance with Article 46 of the Staff change of direction in administrative Regulations with effect from 1 February practice, even following upon judgments 1985', which is the first day of the month finding on a preliminary point of law that a following the judgment of the Court in the provision of the Staff Regulations is not Michel case. applicable, 'must in the present circum- stances be considered as the anticipated application of a formal amendment in the Staff Regulations but must not be 33. In his complaint of 5 August 1985 M r understood as permitting the retrospective Brown justified that claim by the fact that reopening of a situation resulting from since the date of the judgment in Michel the decisions taken in relation to the applicants, system previously applied by the Court which at the expiry of the time-limits for when an official changes category must be appeals had become final'. The Court regarded as illegal. therefore dismissed those appeals as inad- missible.

in Michel. Those consequences should have lodged a complaint and then an appeal been drawn immediately after the delivery within the periods prescribed by the Staff of that judgment because the administration Regulations. He also has an existing of a Community institution is not at liberty personal interest in the adoption of the to pursue, if only temporarily, a practice solution he proposes. contrary to the clear meaning of the Staff Regulations. 38. Finally, it may not be objected that, since he claims to derive rights from the 35. The question whether that argument of interpretation of the Staff Regulations the applicant is correct is obviously related contained in the judgment in Michel, he to the substance of the case on which I may ought to have submitted a 'request' in not express my views at this stage. relation to that judgment and not a 36. I must simply examine the question 'complaint' about the decision of 10 April whether Mr Brown's alternative claim, 1986. Since 5 February 1985 he has in fact which can by all means be considered inde- requested that his complaint of 1981 be pendently of his other claims, is admissible reconsidered in the light of the judgment or not. and this may also be regarded as a 'request'. H e was told, quite rightly, that a judgment 37. It must be said that the purpose of the of the Court only has effect between the alternative claim is not to call in question a parties but that the institutions were decision which was previously taken with examining the consequences to be drawn regard to the applicant and which became from the judgment in Michel although it was final upon the expiry of the period for not possible to predict the outcome of that bringing an action. The applicant is simply examination, in particular as regards the exercising the right which, as I pointed out retroactive effect of any measures which at the beginning of this Opinion, any might be taken. As soon as he became aware official has to challenge a measure of a of the decision of 10 April 1986 Mr Brown general nature of the appointing authority lodged a complaint and then made this adversely affecting him. Mr Brown has application.