T-46/90

European Parliament, represented by Jorge Campinos, Jurisconsult, assisted by Manfred Peter and Jannis Pantalis, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the Secretariat of the European Parliament, Kirchberg,

defendant,

APPLICATION for the annulment of the decision of the European Parliament refusing the applicants the flat-rate allowance provided for in Article 1 of Council Regulation (ECSC, EEC, Euratom) N o 300/76 of 9 February 1976 determining the categories of officials entitled to allowances for shiftwork, and the rates and con­ ditions thereof,

T H E C O U R T O F FIRST INSTANCE OF TFIE E U R O P E A N COMMUNITIES (Fourth Chamber),

composed of: C. W. Bellamy, President, A. Saggio and C. P. Briėt, Judges,

Registrar: J. Palacio González, Administrator,

The facts and legal background of the application

1 Mr Devillez, Mr Bunnik, Mr Cadogan and Mr Kill are assigned to the print shop of the European Parliament (hereinafter the 'Parliament'). As appears from the doc- uments before the Court, two-shift operation was introduced as from 8 September 1989 as regards those four officials, for the purpose of reducing the effects on their health of the high noise levels linked to the operation of the rotary press and of restricting overtime. As was confirmed by the parties in reply to a written question from the Court of First Instance, that work was performed by two teams, one working from 7 a. m. to 1.30 p. m. and the other from 1 p. m. to 7.30 p. m. on a weekly basis, excluding Saturdays, Sundays and official holidays. As appears from the observations of the Parliament, which were not denied by the officials in ques- tion, it ended on 15 September 1990 at the request of the applicants.

2 Operation on a shiftwork basis may confer entitlement, under certain conditions, to an allowance under Article 56a of the Staff Regulations of Officials of the Euro- pean Communities. The relevant legal provisions for the granting of such an allow- ance are as follows:

A — Under Article 56a of the Staff Regulations, as amended by Regulation (Eura- tom, ECSC, EEC) N o 1009/75 of the Council of 14 April 1975 amending Regu- lation (EEC, Euratom, ECSC) N o 259/68 laying down the Staff Regulations of officials and the conditions of employment of other servants of the European Com- munities (OJ 1975 L 98, p. 1):

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—· BFR 15 589 — where the department operates on a two-shift basis, one of them at night, including Saturdays, Sundays and public holidays;

— BFR 17 014, where the department operates on a round-the-clock basis, exclud- ing Saturdays, Sundays and public holidays;

— BFR 22 238 — where the department operates on a continuous basis.

3 In this case, by memorandum of 17 November 1989, Mrs Gomez de Enterria, Director General of translation and general services, of which the print shop forms part, informed Mr Van den Berge, Director General of Staff, Budget and Finance, that she had just learned that an 'experiment' involving two-shift working by the four officials mentioned above had commenced on 8 September 1989 and that the results appeared to be satisfactory. Accordingly, she requested that the flat-rate allowance under Article 56a of the Staff Regulations be paid to the officials in ques- tion as from 8 September 1989. A copy of the said memorandum was sent by Mrs Gomez de Enterria to the persons concerned, according to their observations, which were not disputed by the Parliament.

7 D u r i n g the suspension of the proceedings sound-proofing w o r k was put in hand following an expert's report carried o u t by the AIB-Vinçotte Association on 18 June 1991, on the Parliament's initiative. According to measurements taken on 9 D e c e m b e r 1991 by the same expert appointed by the Parliament, that w o r k resulted in an improvement of approximately four 'A' decibels (measuring noise level in terms of its impact on the human ear, hereinafter 'decibels'). In the expert's report put before the C o u r t of First Instance on 6 February 1992, it was concluded that the permissible level of 85 decibels was exceeded only as regards the rotary press. T h e Parliament ordered a new expert's report to be d r a w n up by the AIB-Vinçotte Association concerning the noise to which operators of the rotary press were exposed. That expert's report was sent to the Parliament on 9 December 1992 and forwarded to the C o u r t of First Instance on 25 January 1993. In their written observations on that expert's report, submitted on 11 March 1993, the applicants dispute the report's conclusions.

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8 In the absence of an amicable settlement between the parties by 15 May 1992, the time-limit for lodging the defence was automatically set and the written procedure followed the normal course. It ended on 23 November 1992. Upon hearing the report of the Judge-Rapporteur, the Court of First Instance decided to open the oral procedure without any preparatory inquiry. In reply to the written questions of the Court of First Instance, the parties stated, prior to the hearing, their under- standing of the concept of 'work at night' within the meaning of Article 56a of the Staff Regulations and confirmed certain facts. The oral procedure took place on 31 March 1993.

In his reply, Mr Devillez claims in addition that the Court should:

— order the defendant to pay him, having regard to the new fact constituted by the defendant's refusal to carry out in sufficient time the work necessary for

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reducing the noise level, an amount corresponding to the flat-rate allowance for shiftwork for the period between the termination of the aforementioned shift­ work and the completion of the said sound-proofing work.

The defendant contends that the Court of First Instance should:

The admissibility of the application for annulment

Arguments of the parties

10 The defendant contends that the application for annulment of the decisions of 19 December 1989 and 18 July 1990 rejecting the complaint is inadmissible. It con­ tends, first, that the decision of 19 December 1989 was not taken by the appointing authority and cannot, therefore, be the subject of a legal action under Article 91 of

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the Staff Regulations. It argues, secondly, that the applicants no longer have any legal interest in requesting the retroactive annulment of the decision of 18 July 1990, inasmuch as the two-shift working ended on 15 September 1990.

12 In the context of the first plea alleging lack of competence of the Director General of Personnel, Budget and Finance to take the contested decision, it should be ascer- tained whether the aforesaid memorandum of 19 December 1989 was capable of adversely affecting the applicants. That presupposes not only that that measure was adopted by the competent authority, but also that it contained a definitive position as to the applicability of Article 56a of the Staff Regulations in respect of the appli- cants. That question of public policy, which is closely linked to the plea relied upon by the defendant, must be considered by the Court of First Instance of its own motion (see in particular the judgment of the Court of Justice of the European Coal and Steel Community in Joined Cases 7/54 and 9/54 Groupement des Industries Sidérurgiques Luxembourgeoises ν High Authority [1954 to 1956] ECR 175 at pp. 191 and 192 and the judgment of the Court of First Instance in Case T-130/89 Β ν Commission [1990] ECR 11-761, summary publication).

1 3 The documents before the Court clearly indicate that the author of the contested memorandum acted with the agreement of the appointing authority. The Parlia­ ment confirmed the contents of the memorandum at issue, as is shown by the dis­ missal of the complaint against the said memorandum by the Secretary General of the Parliament on 18 July 1990. Moreover, since the applicants were informed of the clear, precise and reasoned refusal by the Director General for Personnel, Bud­ get and Finance of the request which had been sent to him by their immediate

15 Moreover, in so far as the officials in question had been associated with the request p u t forward by their superior in her m e m o r a n d u m of 17 N o v e m b e r 1989 to the Director General for Personnel, Budget and Finance, the said m e m o r a n d u m should be interpreted as a request within the meaning of Article 90(1) of the Staff Regu­ lations. T h e association of the officials in question with that request stems in par­ ticular from the fact that a copy had been c o m m u n i c a t e d t o them by their superior w h o also informed them subsequently of the administration's refusal. T h e w o r d i n g of the said m e m o r a n d u m was completely u n a m b i g u o u s . It clearly and precisely requested p a y m e n t to the applicants of the allowance provided for by Article 56a of the Staff Regulations. T h e c o n t e n t s of that request seeking a decision in favour of the applicants were therefore clearly identifiable. T h a t confirms that the refusal of the D i r e c t o r General to w h o m the request was made cannot in any case be regarded as a purely internal act forming part of an exchange of c o r r e s p o n d e n c e within the administration, or as a mere piece of information. It clearly has the nature of a decision.

16 As regards the second plea of inadmissibility alleging lack of legal interest in bringing proceedings, the C o u r t of First Instance notes that the applicants have a financial interest in requesting the a n n u l m e n t of the contested decisions refusing to grant them the allowance to which they consider they are entitled for w o r k i n g on a two-shift basis from 8 September 1989 t o 15 September 1990.

Arguments of the parties

19 The applicants contend, first, that Regulation N o 300/76 in no way makes the granting of the flat-rate allowance subject to the regular performance of work at night or on Saturdays, Sundays or public holidays. Where there are two provisions of the same kind, the said regulation, as a new and specific provision, overrides Article 56a of the Staff Regulations providing for the grant of an allowance only for an official 'who is expected to work regularly at night, on Saturdays, Sundays and public holidays'. Furthermore, the applicants pointed out in their written reply to the question of the Court of First Instance concerning the meaning of work at night that that concept was defined neither in Article 56a of the Staff Regulations nor in Regulation N o 300/76. They argued that Article 1(1) of the regulation nev- ertheless does give some guidance inasmuch as it concerns, amongst those entitled to the allowance, officials assigned to the telex and/or telephone service who oper- ate on a two-shift basis from 7 a. m. to 1 p. m. or from 1 a. m. to 7 p. m. They infer that the intention of the legislature behind Regulation N o 300/76 is that working hours starting at 7 a. m. and/or finishing at 7 p. m. are to be treated in the same way as night-time working hours giving rise to entitlement to an allowance.

20 In those circumstances, the applicants consider that by refusing them the allowance under Article 1 of that regulation, the defendant has restrictively interpreted the

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regulation contrary to the general principle of equal treatment of officials. At the hearing, thev alleged, in particular, that their working conditions were similar to those of officials assigned to the telex service, which has mainly become a telephone and facsimile service and is therefore much less noisy.

22 F u r t h e r m o r e , the defendant points out that pursuant to Regulation N o 300/76, shiftwork must be carried out 'within the meaning of Article 56a of the Staff Reg- ulations' in order to confer entitlement to an allowance. However, the applicants have not fulfilled the requirement concerning w o r k at night set out in that article. In that regard, the defendant considered, in its written reply to a question of the C o u r t of First Instance concerning night time, that that concept related to w o r k carried out between 10 p. m. and 7 a. m. It mainly relied on Regulation (Euratom) N o 1371/72 of the Council of 27 June 1972 determining the rates and conditions of the special allowances which may be granted to officials or servants w h o are paid from appropriations in the research and investment budget and employed in an establishment of the Joint Research C e n t r e or in indirect action, for certain services of a special nature (OJ, English Special Edition 1972 (II), p. 609) and on the Report from the C o m m i s s i o n to the Council ( C O M (85) 372 final) of 15 July 1985 on the special allowance granted for certain services of a special nature in 1981, 1982, 1983 and 1984.

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Findings of the Court

23 The Court must determine whether during their two-shift working the applicants met all the requirements concerning the grant of the allowance in question as set out in Article 1 of Regulation N o 300/76 interpreted in conjunction with Article 56a of the Staff Regulations and the general principle of equal treatment of offi- cials.

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specific constraints, for the possibility of granting such an allowance to certain cat­ egories of recipients to be determined and under conditions to be subsequently defined by an implementing regulation.

27 A fortiori, where there is operation on a two-shift basis during the day, within the meaning of the first indent of Article 1 of Regulation N o 300/76, the provisions of the regulation in conjunction with Article 56a of the Staff Regulations clearly pre­ vent the application, by way of analogy, of that first indent to officials not covered by categories of recipients expressly defined, by reason of the specific nature of the indent.

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300/76, implementing Article 56a, cannot be applied to a situation which not only fails to meet the conditions set out under Article 56a but, furthermore, is not expressly covered by the regulation. In such a situation, the fundamental premises for applicability by way of analogy are lacking.

29 The abovementioned principles must next be applied to this case. The Court notes that the applicants operated on a two-shift basis from 7 a. m. to 1.30 p. m. and from 1 p. m. to 7.30 p. m. In the scheme of Article 1 of Regulation N o 300/76 such work clearly comes under the concept of operation on a two-shift basis during the day, referred to under the first indent of that article. It cannot be categorized as work at night within the meaning, in particular, of the second indent of the article. As appears from the Parliament's written reply to the question of the Court of First Instance concerning work at night, such a view is confirmed by the practice of the institutions, which consists in taking into consideration, for the granting of an allowance for work at night within the meaning of Regulation N o 300/76, work carried out between 10 p. m. and 7 a. m. That practice is in line with the provisions of Regulation N o 1371/72, which was repealed by Regulation N o 300/76 in so fai­ as it set out the conditions for granting, and the rates of allowances under, Article 56a. That regulation expressly referred to night work performed between 10 p. m. and 7 a. m. In those circumstances, the applicants, who already fall outside the cat­ egories of recipients referred to above, cannot, a fortiori, invoke the applicability by way of analogy of Article 1 of Regulation N o 300/76 for shiftwork performed, as in this case, during the day.

The second plea alleging a failure to take account of the duty to have regard for the interests of officials and of the health and safety rules

A r g u m e n t s of the parties

32 T h e second plea is in t w o parts. In the first part the applicants suggest that, inas- much as the introduction of operation on a two-shift basis was precisely intended to remedy the failure of the administration to take action in relation to the health and safety rules, it was the responsibility of the administration, pursuant to its d u t y to have regard for the interests of officials, to grant them an allowance under Arti- cle 56a of the Staff Regulations.

33 In order to establish the administration's failure to act, the applicants allege that, as an employer, the Parliament is b o u n d not only to observe Council Directive 8 6 / 1 8 8 / E E C of 12 M a y 1986 on the protection of workers from the risks related to exposure to noise at w o r k (OJ 1986 L 137, p. 28), but also the rules for the p r o - tection of workers in force in the place of e m p l o y m e n t , in this case the general reg- ulations in force in L u x e m b o u r g on safety at work. However, as early as 27 July 1989, D r De Wilde sent Mrs G o m e z de Enterria the results of the measurements of the noise levels in the print shop. T h e applicants point out that D r De Wilde found

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35 In connection with the second part of that plea, the applicants point out that they had been informed by their Director General, Mrs Gomez de Enterria, as early as 8 September 1989 of their entitlement to a flat-rate allowance for shiftwork. They state that they had received a copy of her memorandum of 17 November 1989 to Mr Van den Berge requesting that the flat-rate allowance for shiftwork provided for by Article 56a of the Staff Regulations be paid to them as from 8 September 1990. They consider that they were therefore legitimately entitled to expect that the allowance in question would be granted to them. In those circumstances, they con- tend that by not immediately informing them of the possible mistake made by their Director General, the administration failed in its duty to have regard for the inter- ests of officials. In fact, it was not until more than two months after the applicants had received a copy of Mrs Gomez de Enterria's said memorandum of 17 Novem- ber 1989 that Mr Van den Berge sent to Mrs Gomez de Enterria, on 19 December 1989, the memorandum refusing to grant that flat-rate allowance to the applicants, which is the subject of this dispute.

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36 T h e defendant c o n t e n d s that a misinterpretation of a C o m m u n i t y rule cannot ren­ der the administration liable and that promises which are contrary to the provisions of the Staff Regulations c a n n o t create a legitimate expectation.

Findings of the C o u r t

37 As regards the first part of that plea, the C o u r t points out, first of all, that although shiftwork is decided u p o n by the administration, whatever the reason for it, the p a y m e n t of an allowance u n d e r Article 56a of the Staff Regulations is governed by the conditions set out in Regulation N o 300/76. Since those conditions are not met in this case, as has already been determined, the applicants cannot h o p e to obtain the grant of an allowance u n d e r Article 56a by invoking the d u t y to have regard for the interests of officials, which operates in the framework of the applicable p r o ­ visions, which are binding on the institution.

Arguments of the parties

40 The defendant raises an objection of inadmissibility against the claim submitted by Mr Devillez in his reply, for compensation for the damage allegedly suffered from 16 September 1990 until the date when the work in question was carried out, on account of the defendant's refusal to effect the sound-proofing work at the proper time. It argues that such a claim goes beyond the scope of this dispute.

41 Mr Devillez considers that the persistence of excessively high noise levels follow- ing the sound-proofing work undertaken after this application was lodged, as shown by the measurements of the noise levels carried out by the AIB-Vinçotte Association, constitutes a new matter which allows him to submit a claim for dam- ages in the course of the proceedings. During the oral procedure he invoked the concept of procedural economy in support of the admissibility of that claim.

Findings of the Court

42 It should first be pointed out that the abovementioned claim for damages has no link whatever with the claim for annulment of the decision refusing to grant an allowance under Article 56a of the Staff Regulations, set out in the originating application. Its admissibility must, therefore, be considered separately from the admissibility of that application; the Court of First Instance may at any time of its own motion consider whether there exists any absolute bar to proceeding with the action (see, in particular, the judgment of the Court of First Instance in Case T-8/92 Di Rocco ν ESC [1992] ECR II-2653, paragraph 34, and the order of the Court of First Instance in Case T-53/92 De Stachelski ν Commission [1992] ECR 11-35, para­ graphs 14 and 17).

45 U n d e r Article 87(2) of the Rules of P r o c e d u r e of the C o u r t of First Instance, the unsuccessful party is to be ordered to pay the costs, if they have been applied for in the successful party's pleadings. However, u n d e r Article 88 of those rules, in proceedings between the C o m m u n i t i e s and their servants the institutions are t o bear their o w n costs.

46 F u r t h e r m o r e , according to the second subparagraph of Article 87(3) of those rules, the C o u r t may order a party, even if successful, t o pay costs which it considers that party to have unreasonably or vexatiously caused the opposite party to incur.

47 In this case the C o u r t notes that it was only after this application was b r o u g h t on 18 O c t o b e r 1990 that the Parliament's officers ordered an expert's report and then t o o k measures to reduce the noise levels in the print s h o p . However, according to the applicants' statements, which were not denied by the defendant, an expert's report d r a w n up bv D r D e Wilde showing that the noise level in the print s h o p reached 90 decibels had been sent to the Parliament on 27 July 1989. D r D e Wilde proposed several measures to reduce the noise level and a compulsory audiogram during the annual medical check-up. It is apparent from the applicants' allegations,

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which were not contested by the defendant, that no action was taken on those pro- posals and that it was only on the basis of an expert's report drawn up at the Par- liament's request on 18 June 1991 that the administration undertook work in order to reduce harmful noise levels. Following that work, the results of a first expert's report drawn up on 9 December 1991 on the Parliament's initiative showed the need to order a second expert's report concerning in particular the noise level to which the operator of the rotary press was exposed. The results of that second expert's report were not sent to the Parliament until 9 December 1992.

Bellamy Saggio Briët

Delivered in open court in Luxembourg on 30 June 1993.

H. Jung C. W. Bellamy

Registrar President

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