61974J0050

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1 . OFFICIALS - APPLICATION - SUBJECT-MATTER - FAILURE TO SPECIFY - COMPLAINT - COMPETENT INSTITUTION - APPLICATION TO - BRINGING PROCEEDINGS - APPROPRIATE TIME - SPECIAL DIFFICULTIES - ADMISSIBILITY

( STAFF REGULATIONS, ARTICLES 90 AND 91 )

2 . JOINT NUCLEAR RESEARCH CENTRE ( JNRC ) - LOCAL STAFF - CONDITIONS RELATING TO REMUNERATION - ADAPTATION - LOCAL PRACTICE - INSTITUTIONS - DISCRETION - CONDITIONS FOR OTHER ESTABLISHMENT STAFF - COMPARISON - LIMITS

( STAFF REGULATIONS; CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE COMMUNITIES, ARTICLE 94 )

1 . THE FAILURE TO SPECIFY THE SUBJECT-MATTER OF AN ACTION DOES NOT RENDER IT INADMISSIBLE IF, BECAUSE OF THE SPECIAL NATURE OF THE DECISION-MAKING PROCESS FOLLOWED IN THE PARTICULAR CASE, IT WAS ESPECIALLY DIFFICULT FOR THE APPLICANTS TO KNOW TO WHICH INSTITUTION THEY SHOULD APPLY, TO DECIDE AT WHAT MOMENT THEIR ACTION COULD BE EFFECTIVE AND TO RECOGNIZE THE MEASURE AFFECTING THEM ADVERSELY .

2 . ARTICLE 94 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE COMMUNITIES CONFERS ON THE COMPETENT INSTITUTIONS A WIDE DISCRETIONARY POWER TO ADAPT THE CONDITIONS RELATING TO REMUNERATION OF THE LOCAL STAFF AND OF THE ESTABLISHMENT STAFF TO THE PARTICULAR LOCAL CIRCUMSTANCES OF EACH OF THE ESTABLISHMENTS IN QUESTION, TAKING INTO ACCOUNT THE REQUIREMENTS WHICH ARISE BOTH FROM THE INTERNAL WORKING CONDITIONS OF THESE ESTABLISHMENTS AND ALSO FROM THE CONSIDERATIONS RESULTING FROM THE ECONOMIC AND SOCIAL SITUATION WITHIN WHICH THE STAFF ARE PLACED .

THE PROVISIONS ADOPTED TO THIS END MAY BE CRITICIZED IN THE LIGHT OF A COMPARISON WITH THE CONDITIONS RELATING TO REMUNERATION OF STAFF EMPLOYED IN THE ESTABLISHMENTS WITHIN OTHER MEMBER STATES ONLY IF THE COUNCIL AND COMMISSION HAVE MISUSED THEIR POWERS IN RESPECT OF SUCH STAFF .

IN CASE 50/74,

FRIEDRICH ASMUSSEN AND OTHERS, ALL OF THEM MEMBERS OF THE ESTABLISHMENT STAFF OF THE JOINT NUCLEAR RESEARCH CENTRE ( JNRC ) OF THE EUROPEAN ATOMIC ENERGY COMMUNITY, EMPLOYED IN KARLSRUHE, REPRESENTED BY JACQUES PUTZEYS, ADVOCATE OF THE COUR D'APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF NICOLAS WENNMACHER, HUISSIER DE JUSTICE, 17 BOULEVARD ROYAL, APPLICANTS,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, GIORGIO PINCHERLE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF ITS LEGAL ADVISER, PIERRE LAMOUREUX, 4 BOULEVARD ROYAL,

AND

COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY DANIEL VIGNES, ADVISER IN THE LEGAL DEPARTMENT, ACTING AS AGENT, ASSISTED BY ANTONIO SACCHETTINI, ADVISER IN THE LEGAL DEPARTMENT, ACTING AS CO-AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF J . N . VAN DEN HOUTEN, DIRECTOR OF THE LEGAL DEPARTMENT OF THE EUROPEAN INVESTMENT BANK, 2 PLACE DE METZ, DEFENDANTS,

APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE COMMISSION OF 1 APRIL 1974, REJECTING A COMPLAINT OF THE APPLICANTS AGAINST THE GRANTING OF A SUM OF 600 000 UNITS OF ACCOUNT SOLELY IN FAVOUR OF LOCAL STAFF AND ESTABLISHMENT STAFF AT ISPRA, AND AN APPLICATION FOR DAMAGES,

ADMISSIBILITY

1 THIS ACTION, BROUGHT BY 59 MEMBERS OF THE ESTABLISHMENT STAFF OF THE JOINT NUCLEAR RESEARCH CENTRE EMPLOYED AT THE CENTRE AT KARLSRUHE, IS FOR THE ANNULMENT OF MEASURES TAKEN BY THE COUNCIL AND THE COMMISSION ALLOCATING AN OVERALL BUDGETARY PROVISION OF 600 000 UNITS OF ACCOUNT IN ORDER TO IMPROVE THE FINANCIAL SITUATION OF LOCAL STAFF AND ESTABLISHMENT STAFF WORKING AT THE CENTRE AT ISPRA WITH, IN CONSEQUENCE, EITHER THE INCLUSION OF STAFF OF THE SAME CATEGORY AT OTHER CENTRES IN THE ALLOCATION OF THE PROVISION, OR THE GRANTING TO THOSE 59 MEMBERS OF EQUIVALENT INCREASES BY WAY OF DAMAGES .

2 THE APPLICANTS HAVE BROUGHT THEIR ACTION AGAINST THE COUNCIL AND THE COMMISSION SIMULTANEOUSLY BUT HAVE NOT CLEARLY DEFINED THE ACT ADVERSELY AFFECTING THEM WITHIN THE MEANING OF ARTICLE 90 OF THE STAFF REGULATIONS OF OFFICIALS APPLICABLE BY ANALOGY UNDER ARTICLE 46 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE COMMUNITIES .

3 IT IS THEREFORE NECESSARY IN THE FIRST PLACE TO ESTABLISH WHAT IS THE SUBJECT-MATTER OF THIS ACTION .

4 ON 20 JULY 1972 THE COUNCIL CONSENTED TO MAKE AVAILABLE TO THE COMMISSION AN OVERALL BUDGETARY PROVISION OF 600 000 UNITS OF ACCOUNT IN ORDER TO IMPROVE THE FINANCIAL SITUATION OF LOCAL STAFF AND OF CERTAIN ESTABLISHMENT STAFF AT ISPRA .

5 FOLLOWING AN EXCHANGE OF VIEWS BETWEEN THE COMMISSION AND THE COMMITTEE OF PERMANENT REPRESENTATIVES, AND ACTING ON A PROPOSAL OF THE COMMISSION, THE COUNCIL ON 5 FEBRUARY 1973, SET OUT IN DETAIL THE DISTRIBUTION OF THIS OVERALL BUDGETARY PROVISION SPECIFYING ON THE ONE HAND THE STAFF WHO WERE TO BENEFIT AND ON THE OTHER HAND THE AMOUNTS TO BE GRANTED TO EACH OF THE CATEGORIES OF STAFF THUS DEFINED .

6 ON 3 APRIL 1973 THE APPLICANTS BROUGHT BEFORE THE COMMISSION A REQUEST THAT THE BENEFIT OF THE INCREASE IN SALARIES GRANTED TO THE ESTABLISHMENT STAFF AT ISPRA SHOULD ALSO BE GRANTED TO ESTABLISHMENT STAFF AT OTHER ESTABLISHMENTS OF THE JOINT RESEARCH CENTRE .

7 SINCE THIS REQUEST WAS REJECTED BY THE COMMISSION ON 8 AUGUST 1973, THE APPLICANTS, BY A MEMORANDUM OF 29 OCTOBER 1973, REGISTERED ON 30 OCTOBER, BROUGHT A COMPLAINT BEFORE THE COMMISSION AGAINST ITS REFUSAL TO ACCEDE TO THEIR REQUEST .

8 THIS COMPLAINT WAS REJECTED BY THE COMMISSION WHICH SO INFORMED THE APPLICANTS IN LETTERS OF 1 APRIL 1974 WHICH REACHED THEM BETWEEN 18 APRIL AND 24 MAY .

9 A JOINT APPLICATION DIRECTED AGAINST THE COUNCIL AND THE COMMISSION JOINTLY, WAS LODGED AT THE COURT REGISTRY ON 10 JULY 1974 .

10 AS REGARDS THE COMMISSION, THIS APPLICATION SEEKS THE ANNULMENT OF THE FINAL REFUSAL GIVEN BY THE COMMISSION ON 1 APRIL 1974 .

11 AS REGARDS THE COUNCIL, THE APPLICANTS FORMULATED CLAIMS OF A FINANCIAL NATURE FOR EITHER THE ALLOCATION OF THE OVERALL BUDGETARY PROVISION AMONGST ALL THE STAFF IN THE SAME POSITION AS THE ESTABLISHMENT STAFF AT ISPRA OR FOR THE PAYMENT, BY WAY OF DAMAGES, OF A 'COMPENSATORY AMOUNT' TO RE-ESTABLISH THE BALANCE BETWEEN ALL THE STAFF EMPLOYED AT DIFFERENT ESTABLISHMENTS OF THE JOINT RESEARCH CENTRE .

12 FOR ITS PART, THE COMMISSION CHALLENGES THE ADMISSIBILITY OF THE APPLICATION BROUGHT IN THE MANNER DESCRIBED ABOVE .

13 IT BELIEVES THAT AS IT ONLY ACTED TO ENSURE THE EXECUTION OF THE MEASURES ORDERED BY THE COUNCIL, IT HAS NOT TAKEN ANY DECISION CAPABLE OF ADVERSELY AFFECTING THE APPLICANTS .

14 FOR ITS PART, THE COUNCIL HAS RAISED NO OBJECTION AS TO ADMISSIBILITY .

15 WHILE SUBSTANTIAL DOUBTS MAY ARISE WITH REGARD TO THE ADMISSIBILITY OF THE APPLICATION, PARTICULARLY WITH REGARD TO THE FAILURE TO SPECIFY THE SUBJECT-MATTER THEREOF, NEVERTHELESS IT SHOULD BE TAKEN INTO CONSIDERATION THAT THIS AMBIGUITY ARISES PRINCIPALLY FROM THE METHODS ADOPTED IN COMING TO THE DECISION IN THIS CASE; THESE WERE SUCH THAT THE MEASURE IN QUESTION TOOK SHAPE GRADUALLY WITH TWO INSTITUTIONS, THE COUNCIL AND THE COMMISSION, BEING INVOLVED AND WITH THE COMMITTEE OF PERMANENT REPRESENTATIVES ACTING AS INTERMEDIARY .

16 IN THESE CIRCUMSTANCES IT WAS PARTICULARLY DIFFICULT FOR THE APPLICANTS, ILL INFORMED OF THE PROGRESS OF THE DECISION CONCERNING THEM, TO KNOW TO WHICH INSTITUTION THEY SHOULD APPLY AND TO DECIDE AT WHAT MOMENT ACTION ON THEIR PART COULD AFFECT A MEASURE WHICH MIGHT SEEM TO THEM NOT TO BE OPEN TO CHALLENGE .

17 FOR THIS REASON THERE CANNOT BE HELD AGAINST THEM THE FACT THAT THEY ACTED SIMULTANEOUSLY AGAINST THE COUNCIL AND THE COMMISSION, THAT THEY ADDRESSED THEIR INITIAL COMPLAINT TO THE COMMISSION ALONE, WHICH IS THEIR DIRECT EMPLOYER, AND THAT THEY CHOSE AS THE SUBJECT-MATTER OF THEIR APPLICATION, PREPARATORY MEASURES WHICH GAVE RISE TO IMPLEMENTING DECISIONS ONLY AFTER THE APPLICATION HAD BEEN BROUGHT .

18 IN THESE CIRCUMSTANCES THE SUBSTANCE OF THE APPLICATION MUST BE EXAMINED .

SUBSTANCE

19 THE APPLICANTS MAINTAIN IN THE FIRST PLACE, THAT THERE SHOULD BE LEFT OUT OF CONSIDERATION THE DECISION TAKEN ON 5 FEBRUARY 1973 BY THE COUNCIL, ACTING ON A PROPOSAL FROM THE COMMISSION, BECAUSE THE PRECISE ALLOCATION OF THE OVERALL BUDGETARY PROVISION TO DIFFERENT CATEGORIES OF STAFF AT THE CENTRE AT ISPRA IS CONTRARY TO THE PROVISIONS OF THE ORIGINATING DECISION OF THE COUNCIL TAKEN ON 20 JULY 1972 .

20 NO CONTRADICTION AT ALL IS TO BE FOUND BETWEEN THE DECISION OF 20 JULY 1972 AND THAT OF 5 FEBRUARY 1973 .

21 IN FACT IN ITS DECISION OF 20 JULY 1972, THE COUNCIL DECIDED, IN A PRELIMINARY MANNER, WITHOUT FIXING MORE PRECISE DETAILS, ON THE ALLOCATION OF AN OVERALL BUDGETARY PROVISION OF 600 000 UNITS OF ACCOUNT WHICH WAS INTENDED TO IMPROVE THE FINANCIAL SITUATION OF LOCAL STAFF AND CERTAIN ESTABLISHMENT STAFF AT ISPRA .

22 THE PROPOSAL OF THE COMMISSION WHICH GAVE RISE TO THE DECISION OF THE COUNCIL OF 5 FEBRUARY 1973 REFLECTS THE AGREEMENT MADE BETWEEN THE COMMISSION AND THE COMMITTEE OF PERMANENT REPRESENTATIVES RELATING TO THE DETAILS OF THE DISTRIBUTION OF THE AMOUNT IN QUESTION .

23 IT APPEARS FROM THIS SEQUENCE OF EVENTS THAT THE DECISION OF 20 JULY 1972 WAS, ON THE PART OF THE COUNCIL, ONLY IN THE NATURE OF A PREPARATORY DECISION ON PRINCIPLE SO THAT THE DECISION OF 5 FEBRUARY 1973 MUST, FOR THE APPRECIATION OF THE SITUATION SUBMITTED TO THE COURT, BE REGARDED AS EXPRESSING THE FINAL WILL OF THE COUNCIL .

24 THIS SUBMISSION MUST THEREFORE BE REJECTED .

25 SECONDLY, THE APPLICANTS MAINTAIN IN SUPPORT BOTH OF THE ACTION FOR ANNULMENT AND OF THE ACTION FOR COMPENSATION, THAT THE COUNCIL AND THE COMMISSION WENT BEYOND THE SCOPE OF THE MEASURES PERMITTED BY ARTICLE 94 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE COMMUNITIES WITH REGARD TO REMUNERATION, IN FAVOUR OF THE ESTABLISHMENT STAFF AT ISPRA .

26 MORE PRECISELY THEY ARGUE THAT THIS PROVISION PLACES THE INSTITUTIONS UNDER AN OBLIGATION TO DETERMINE THE SALARY SCALES TAKING INTO CONSIDERATION 'LOCAL PRACTICE '.

27 FOR THE ESTABLISHMENTS OTHER THAN THAT AT ISPRA, THIS LOCAL PRACTICE HAD BEEN DEFINED BY REFERENCE TO THE REMUNERATION OF COMPARABLE STAFF EMPLOYED IN NATIONAL RESEARCH CENTRES WHEREAS IN THE ABSENCE OF SUCH A CENTRE IN ITALY, THEY HAD BEEN DETERMINED BY REFERENCE TO THE COLLECTIVE AGREEMENT OF WORKERS IN THE METAL AND ENGINEERING SECTOR ( METALMECCANICI ).

28 IT IS ESTABLISHED, ACCORDING TO THE APPLICANTS, THAT AT THE TIME WHEN THE INCREASES WERE GRANTED TO THE STAFF AT ISPRA, THIS AGREEMENT, WHICH IS THE ONLY DECISIVE CRITERION FOR ASCERTAINING 'LOCAL PRACTICE' FOR THE STAFF OF THIS ESTABLISHMENT, HAD NOT BEEN CHANGED .

29 IT IS FOR REASONS OUTSIDE THIS CRITERION, THAT IS TO SAY, THE INCREASE IN THE COST OF LIVING IN ITALY AND THE LESSENING OF THE DIFFERENTIALS BETWEEN THE STAFFS WORKING WITHIN THE ESTABLISHMENT AT ISPRA THAT THE INSTITUTIONS GRANTED THE INCREASE IN QUESTION .

30 THEY ARE SAID THEREBY TO HAVE CREATED DISCRIMINATION TO THE DETRIMENT OF COMPARABLE STAFF AT OTHER ESTABLISHMENTS WHOSE FINANCIAL SITUATION WAS LINKED TO THAT OF THE STAFF OF NATIONAL RESEARCH CENTRES .

31 UNDER ARTICLE 94 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE COMMUNITY 'THE COUNCIL ... ACTING ON A PROPOSAL FROM THE COMMISSION ... AND TAKING INTO ACCOUNT LOCAL PRACTICE, SHALL DETERMINE :

( A ) THE CONDITIONS RELATING TO THE REMUNERATION OF ESTABLISHMENT STAFF OF THE JOINT NUCLEAR RESEARCH CENTRE AT EACH PLACE OF EMPLOYMENT;

( B ) THE ALLOWANCES, INSURANCES, SOCIAL SECURITY BENEFITS AND OTHER SIMILAR BENEFITS OF WHATEVER KIND TO WHICH THEY SHALL BE ENTITLED '.

32 IT IS CLEAR FROM THIS ARTICLE, IN THE FIRST PLACE, THAT THE CONDITIONS RELATING TO REMUNERATION ARE DETERMINED SPECIFICALLY 'AT EACH PLACE OF EMPLOYMENT '.

33 SECONDLY, IT APPEARS THAT THE TAKING INTO CONSIDERATION OF 'LOCAL PRACTICE' NEED AMOUNT TO NO MORE THAN A MOTIVATION, THAT IS TO SAY, A SIMPLE GUIDE-LINE WHICH IN NO WAY EXCLUDES THE TAKING INTO CONSIDERATION OF OTHER FACTORS .

34 THUS, ARTICLE 94 CONFERS ON THE COMPETENT INSTITUTIONS A WIDE DISCRETIONARY POWER TO ADAPT THE CONDITIONS RELATING TO REMUNERATION OF THE LOCAL STAFF AND OF THE ESTABLISHMENT STAFF TO THE PARTICULAR LOCAL CIRCUMSTANCES OF EACH OF THE ESTABLISHMENTS IN QUESTION, TAKING INTO ACCOUNT THE REQUIREMENTS WHICH ARISE BOTH FROM THE INTERNAL WORKING CONDITIONS OF THESE ESTABLISHMENTS AND FROM THE CONSIDERATIONS RESULTING FROM THE ECONOMIC AND SOCIAL SITUATION WITHIN WHICH THE STAFF ARE PLACED .

35 CRITICISM MAY BE LEVELLED AGAINST THE PROVISIONS ADOPTED TO THIS END IN THE LIGHT OF A COMPARISON WITH THE CONDITIONS RELATING TO REMUNERATION OF STAFF EMPLOYED IN THE ESTABLISHMENTS WITHIN OTHER MEMBER STATES, ONLY IF IT IS ESTABLISHED THAT THERE IS, TO THE DETRIMENT OF SUCH STAFF, A MISUSE OF POWERS COMMITTED BY THE COUNCIL AND BY THE COMMISSION IN EXERCISING THE DISCRETION GRANTED TO THEM BY ARTICLE 94 .

36 HOWEVER, THE APPLICANTS HAVE ADDUCED NO PROOF SHOWING THAT THE COMPETENT INSTITUTIONS DECIDED ON THE BASIS OF FACTORS APART FROM THOSE WHICH ARTICLE 94 ALLOWS OR COMMITTED SUCH A MISUSE OF POWERS .

37 FOR THAT REASON THE APPLICATION MUST BE DISMISSED .

38 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

39 THE APPLICANTS HAVE FAILED IN THEIR APPLICATION .

40 HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES, THE INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION;

2 . ORDERS EACH OF THE PARTIES TO BEAR ITS OWN COSTS .