C-76/93
ECLI:EU:C:1994:239
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SCARAMUZZA v COMMISSION
OPINION OF ADVOCATE GENERAL JACOBS delivered on 9 June 1994 *
My Lords, cial and exceptional provisions applicable to officials serving in a third country'. Article 11 of Annex X provides:
'Remuneration, as also the allowances referred to in Article 10, shall be paid in Bel gian francs in Belgium. They shall be subject 1. Mrs Piera Scaramuzza is an official of the to the weighting applicable to the remunera Commission in grade B3. For some years tion of officials employed in Belgium.' now she has served the Commission in non- member States. On 4 January 1988 she was posted to the Commission's Delegation in Oslo and was subsequently transferred to the Commission's office in New York as from 17 June 1991. Article 12 of Annex X provides:
'At the request of the official, the appointing authority may decide to pay all or part of his remuneration in the currency of the country of employment. In that event, it shall be sub 2. The salary regime applicable to Mrs Scar ject to the weighting for the place of amuzza, as an official serving in a non- employment and shall be converted on the member State, is to be found in Annex X to basis of the corresponding exchange rate. the Staff Regulations of Officials of the European Communities. Annex X was added to the Staff Regulations by Council Regula tion (Euratom, ECSC, EEC) No 3019/87 of 5 October 1987. 1 Annex X is entitled 'Spe
In duly substantiated exceptional cases, the " Original language: English. appointing authority may make all or part of 1 — OJ 1987 L 286, p. 3. this payment in a currency other than that of
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the country of employment in such a way as 4. She lodged a complaint against that deci to maintain purchasing power.' sion which was explicitly rejected by the Commission in a decision adopted on 26 July 1991. Mrs Scaramuzza challenged that decision before the Court of First Instance. Her application was dismissed in a 2 judgment dated 15 December 1992. She has now appealed against that judgment to the The Commission adopted Internal Directives Court of Justice. implementing Article 12 of Annex X. Arti cle 1 of the Internal Directives provides:
5. Before the Court of First Instance Mrs Scaramuzza put forward two submissions. The first was that Article 1 of the Internal Directives was contrary to Article 12 of 'In pursuance of Article 12 of Annex X to Annex X, which did not limit the proportion the Staff Regulations and at the request of of an official's salary that could be paid in the official, the appointing authority shall the local currency and did not confer any pay in the currency of the place of employ discretion on the appointing authority. That ment a part of his remuneration up to 80% submission was rejected by the Court of of his net remuneration. First Instance, which held that Article 12 of Annex X, and in particular the words 'may decide', combined with the expression 'at the request of the official', conferred a margin of discretion on the appointing authority. By adopting internal directives imposing a limit of 80% on the portion of the salary to be In duly reasoned cases the appointing automatically payable in the currency of the authority may agree to pay in the currency country of employment the Commission did of the country of employment a part of the not exceed the limits of its discretionary remuneration exceeding 80%.' power. In fact it was still possible for an offi cial to receive 100% of his salary in the cur rency of the country of employment if his request was properly substantiated.
3. On 1 October 1990 Mrs Scaramuzza asked for the whole of her salary to be paid in the currency of the place of employment 6. Mrs Scaramuzza's second submission was with application of the corresponding based on the alleged breach of the principle, weighting, with retroactive effect from the laid down in Articles 64 and 65 of the Staff date when she was posted to Oslo. That request was rejected by the Director-General of Personnel and Administration in a letter 2 — Case T-75/91 Scaramuzza v Commission [1992] ECR of 12 February 1991. II-2557.
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Regulations, according to which the purchas 9. The Commission contends that the appel ing power of an official's salary should not lant's single submission amounts in sub vary depending on his place of employment. stance to two distinct submissions: one based She also argued that the Commission's prac on her right freely to dispose of her salary tice was effectively depriving her of part of and the other based on the alleged breach of her salary. Furthermore, if she were required, the fundamental right to privacy. According in accordance with Article 1 of the Internal to the Commission, neither of those submis Directives, to furnish proof as to the way in sions was raised in the proceedings before which she spent her salary, that would con the Court of First Instance and they are stitute an intrusion into her private life therefore both inadmissible under Arti which would be contrary to Article 12 of the cle 113(2) of the Rules of Procedure, which Universal Declaration of Human Rights. states that 'The subject-matter of the pro ceedings before the Court of First Instance may not be changed in the appeal'.
7. The Court of First Instance dismissed those arguments for reasons that are summa 10. As regards the first submission, the rized below (in paragraphs 17 and 18). Commission contends that before the Court of First Instance Mrs Scaramuzza argued that the Commission had deprived her of part of her remuneration, whereas in her appeal she argues that the Commission, by means of the presumption established in Article 1 of the Internal Directives, is limit Admissibility ing her freedom to spend the whole of her remuneration at her place of employment. As regards the second submission, the Com mission states that the alleged breach of the general principle of respect for privacy was invoked for the first time in Mrs Scaramuz- za's reply in the proceedings before the Court of First Instance and that Article 8 of 8. In her appeal Mrs Scaramuzza relies on a the European Convention on Human Rights 'single submission' based (a) on the infringe was not invoked at all before the Court of ment of the general principle of law — First Instance. enshrined in Article 62 of the Staff Regula tions — to the effect that a worker is entitled to dispose of his salary as he pleases and (b) on the infringement of the general principle of law to the effect that the individual's pri vacy must be respected, a principle enshrined in Article 8 of the European Convention on Human Rights and in Article 12 of the Uni 11. In my view, the Commission's argu versal Declaration of Human Rights. ments on admissibility cannot be upheld. As
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regards the first point, the difference Article 12 of the Universal Declaration of between the argument pursued by Mrs Scar Human Rights are broadly similar in con amuzza on appeal and the argument pursued tent. Since one of the provisions was pleaded at first instance is not as great as it might before the Court of First Instance and the appear. Her argument that she is being pre fundamental right to privacy was raised, it is vented from spending her salary as and legitimate to regard the reference to the where she chooses should not be taken liter other provision in the appeal as simply a ally. Presumably she is free to do as she development of an issue that was raised at pleases with the 20% of her remuneration first instance. that is paid in Belgian francs. She may, for example, have it transferred to Norway or to any other country (subject to the applicable rules on exchange control). She may, how ever, find that it is not worth her while to do Substance so because the 20% will be subject to the weighting for Belgium, rather than the higher weighting for Norway, with the result that upon transfer to Norway its purchasing power will be diminished. Thus the gist of her argument is once again that she is being 13. Article 62 of the Staff Regulations pro deprived of part of the remuneration that vides that 'an official who is duly appointed would be due to her if the relevant provi shall be entitled to the remuneration carried sions were properly applied. by his grade and step'. The first paragraph of Article 63 provides that:
Officials' remuneration shall be expressed in Belgian francs. It shall be paid in the cur rency of the country in which the official performs his duties.'
12. As regards the alleged breach of the fun damental right to privacy, it is sufficient to note that in paragraph 27 of the judgment appealed against the Court of First Instance referred to Mrs Scaramuzza's argument to The first paragraph of Article 64 provides the effect that her privacy would be violated, that: contrary to Article 12 of the Universal Dec laration of Human Rights, if she were required to furnish proof about the nature and structure of her expenditure. It is true that Mrs Scaramuzza did not expressly invoke Article 8 of the European Conven 'An official's remuneration expressed in Bel tion on Human Rights before the Court of gian francs shall, after the compulsory First Instance. However, that provision and deductions set out in these Staff Regulations
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or in any implementing regulations that have weighting for that country), if the official so been made, be weighted at a rate above, requests, and that it may pay a greater por below or equal to 100%, depending on living tion of the official's remuneration in the cur conditions in the various places of employ rency of the country of employment (with ment.' the appropriate weighting) only if the official states adequate reasons for receiving more than 80% of his remuneration in that cur rency. Any part of the official's remuneration not paid in the currency of the country of employment is paid in Belgian francs and is subject to the weighting for Belgium.
Article 65 of the Staff Regulations requires the Council to carry out an annual review of the level of remuneration of officials and other servants.
16. Thus the difference in treatment suffered by Mrs Scaramuzza, in comparison with an official employed in a Member State, relates only to 20% of her remuneration. In order 14. The Court has consistently held that the to obtain that part of her remuneration in purpose of Articles 64 and 65 is to ensure the currency of the country of employment, that all officials of the same grade and step with the weighting applicable for that coun have equivalent purchasing power, wherever try, she must state special reasons demon their place of employment, in accordance 3 strating, presumably, that she needs to spend with the principle of equality of treatment. more than 80% of her salary in the country of employment. Her argument that she is being deprived of part of her salary would only be valid if there were no objective jus tification for treating her differently from an official employed in a Member State as regards 20% of her remuneration. 15. The 'special and exceptional provisions' of Annex X to the Staff Regulations derogate from Articles 63 and 64 as regards officials employed in non-member States. The effect of those provisions, in conjunction with the Commission's Internal Directives, is that the appointing authority pays up to 80% of the official's remuneration in the currency of the country of employment (applying the 17. The Court of First Instance held, after dealing exhaustively with the issue in para graphs 32 to 56 of its judgment, that there was objective justification for the difference 3 — See, for example, Case C-301/90 Commission v Council [1992] ECR 1-221, paragraph 22 of [the judgment. in treatment described above. The Court
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observed that the relevant rules were different treatment of officials depending on founded on presumptions that officials whether or not they serve in a Member State. employed in a Member State were likely to spend their whole salary in the country of employment but that officials employed in non-member States were likely to spend no more than 80% of their salary in the country of employment. Those presumptions were justified, in particular because officials in the latter category were provided with free 20. Mrs Scaramuzza, in her appeal, does not accommodation and were able to obtain the point to any specific defect in the reasoning reimbursement of all their medical expenses, of the judgment of the Court of First whereas officials employed in a Member Instance. She considers that, by upholding State had to pay for their own accommoda the Commission's practice based on Article tion and had to bear 20% of their medical 1 of the Internal Directives, the Court of expenses (see paragraph 46 of the judgment First Instance approved a flagrant breach of appealed against). the general principle of law according to which the official is allowed to spend his sal ary as he pleases, a breach which the Com mission is only willing to repair by means of a procedure which violates the fundamental right to privacy. She states that the fact that an official employed in a non-member State 18. The Court held that it was reasonable to receives free accommodation and compre fix at 20% the portion of remuneration hensive health cover is totally irrelevant; the which an official employed in a non-member fact that she does not incur such expenditure State was unlikely to spend at his place of at her place of employment cannot limit her employment. The Court noted that before right to spend the whole of her remuneration the entry into force of Annex X to the Staff at that place. Regulations officials employed in non- member States were required to pay 15 to 20% of their remuneration to their institu tion as a contribution to the cost of the accommodation provided for them by the institution. Moreover, the figure of 20% cor responded to the importance given to the cost of accommodation for the purpose of 21. As I have already observed, Mrs Scara calculating the weightings for a particular muzza is not prevented, by the rule in ques place (paragraph 48). tion, from spending her salary as and where she pleases or from transferring the 20% from Belgium to her place of employment. She may of course find that it is not in her interest to do so unless the weighting for her place of employment is applied to the 20%. If she wishes to have that weighting applied 19. I fully concur with the reasons given by to the 20% or to a part of it, she must, under the Court of First Instance for holding that Article 1 of the Internal Directives, submit a there was objective justification for the request to the Commission stating reasons to
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justify payment of more than 80% of her pose the Court draws inspiration from the remuneration in the currency of her place of constitutional traditions common to the employment. Member States and from the guidelines sup plied by international treaties for the protec tion of human rights on which the Member States have collaborated or of which they are signatories. The European Convention on Human Rights has special significance in that respect. 22. Mrs Scaramuzza objects to that require ment on the ground that it would involve an invasion of her privacy, contrary to Article 8 of the European Convention on Human Rights and Article 12 of the Universal Dec laration of Human Rights. Both those instru ments proclaim the individual's right to respect for his private and family life, home 25. It is clear that the Community institu and correspondence. tions must, when applying the Staff Regula tions to their officials, respect fundamental rights, including the right to privacy enshrined in Article 8 of the European Con vention on Human Rights. However, I do not think that a rule requiring an official to state reasons to justify payment of more than 23. Although Article 12 of the Universal 80% of his remuneration in the currency of Declaration of Human Rights was pleaded at his place of employment can in itself entail a first instance (as is clear from paragraph breach of the fundamental right to privacy. 27 of the judgment appealed against), the Court of First Instance did not, in an other wise exhaustive analysis, rule specifically on the alleged breach of fundamental rights. I do not, however, think that the judgment should be annulled for that reason.
26. That is not to say that the application of such a rule cannot ever lead to a breach of the right to privacy. Much will depend on the kind of information which the Commis sion requires before acceding to a request for 24. The Court of Justice has consistently more than 80% of an official's remuneration held 4 that fundamental rights form an inte to be paid in the currency of the place of gral part of the general principles of law, the employment. If the Commission is satisfied observance of which it ensures. For that pur with a statement explaining that the official has no financial commitments in Belgium or in his Member State of origin, and giving basic details about exceptional expenditure 4 — Sec. for example, Case C-260/89 ERT [1991] ECR I-2925, paragraph 41 of the judgment. that he has incurred in the country of
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employment (for example, the purchase of a 28. It follows that the appeal must be dis house, a sailing boat or a motor caravan), missed. then I do not think that the official's right to privacy would be impaired by disclosure of such information. If, on the other hand, the Costs Commission were to require details of all the official's expenditure over a certain period or if it were to demand access to all his bank 29. Under Article 70 of the Rules of Proce statements, that would obviously be a differ dure, the normal rule in proceedings between ent matter. Community institutions and their servants is that the institutions bear their own costs. However, under the second paragraph of Article 122 of the Rules of Procedure, that rule does not apply in the case of appeals except where the appeal is brought by the institution. Therefore, as regards the costs of 27. Mrs Scaramuzza has not alleged that the appeal, the general rule laid down in there has been such a request for informa Article 69(2) of the Rules of Procedure tion. She is simply challenging the rule itself. applies, with the result that the appellant For the reasons given above, I do not think should be ordered to pay the costs of the that such a challenge can succeed. appeal.
Conclusion
30. Accordingly, I am of the opinion that the Court should:
(1) dismiss the appeal;
(2) order the appellant to pay the costs of the appeal.
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