61974J0028

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1 . OFFICIALS - VESTED RIGHTS - ACQUISITION - CONDITIONS - BASED ON THE STAFF REGULATIONS

2 . OFFICIALS - TERMINATION OF SERVICE - HOLDERS OF GRADES A 1 AND A 2 UNDER THE SCHEME OF THE STAFF REGULATIONS OF THE ECSC OF 1956 - FINANCIAL BENEFITS - LEGALITY

( REGULATION NO 2530/72, ARTICLE 5 )

3 . OFFICIALS - REMUNERATION - PAYMENT - CURRENCY OTHER THAN THE BELGIAN FRANC - DEVALUATION - ARTICLE 63 OF THE STAFF REGULATIONS OF OFFICIALS - LEGALITY

1 . AS THE LEGAL LINK BETWEEN AN OFFICIAL AND THE ADMINISTRATION IS BASED UPON THE STAFF REGULATIONS AND NOT UPON A CONTRACT, AN OFFICIAL CANNOT IN ANY CASE CLAIM A VESTED RIGHT UNLESS THE FACTS GIVING RISE TO THAT RIGHT AROSE UNDER A PARTICULAR SET OF STAFF REGULATIONS PRIOR TO THE AMENDMENT DECIDED UPON BY THE COMMUNITY AUTHORITY .

2 . THE BENEFITS RESERVED BY ARTICLE 5 OF REGULATION NO 2530/72 FOR OFFICIALS WHO HELD GRADE A1 OR A2 UNDER THE SCHEME OF THE STAFF REGULATIONS OF THE ECSC OF 1956 ARE A MERE TRANSPOSITION FROM THE STAFF REGULATIONS OF 1962 AND CANNOT CONSEQUENTLY BE REGARDED AS DISCRIMINATORY .

3 . ALTHOUGH IT IS FOR THE COUNCIL TO ADAPT THE STAFF REGULATIONS TO ECONOMIC REALITIES AND THUS TO SEEK THE MEANS OF ALLEVIATING ANY LOSS SUFFERED BY OFFICIALS RESIDING IN A COUNTRY WHOSE CURRENCY HAS BEEN SUBSTANTIALLY DEVALUED, THAT CANNOT MEAN THAT THE EXISTING WORDING OF ARTICLE 63 IS ILLEGAL OR THAT IN CONSEQUENCE IT IS INAPPLICABLE WITHIN THE MEANING OF ARTICLE 184 OF THE EEC TREATY .

IN CASE 28/74

FABRIZIO GILLET, FORMER DIRECTOR-GENERAL AT THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY GIACOMO ANTONELLI AND FILIPPO SATTA OF THE ROME BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF LAMBERT DUPONG, 14/A RUE DES BAINS, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, GIORGIO PINCHERLE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ITS LEGAL ADVISER, P . LAMOUREUX, 4 BOULEVARD ROYAL, DEFENDANT,

APPLICATION FOR A DECLARATION OF THE APPLICANT'S RIGHT TO PAYMENT OF THE ALLOWANCES ON RESIGNATION IN THE INTERESTS OF THE SERVICE ON THE BASIS OF ARTICLE 42 OF THE STAFF REGULATIONS OF THE ECSC OF 1956 AND TO THE CONVERSION OF THE AMOUNTS PAID TO HIM BY WAY OF SUCH ALLOWANCES ON THE BASIS OF THE REAL PARITIES BETWEEN THE BELGIAN FRANC AND THE ITALIAN LIRA AT THE DATE OF PAYMENT,

1 BY AN APPLICATION MADE ON 3 MAY 1974, THE APPLICANT BROUGHT AN ACTION BEFORE THE COURT FOR ANNULMENT OF THE MEMORANDUM OF THE COMMISSION OF 7 FEBRUARY 1974 REJECTING HIS REQUEST THAT THE ALLOWANCE TO WHICH HE IS ENTITLED UNDER REGULATION NO 2530/72 ( OJ L 272, P . 1 ) SHOULD BE PAID ON THE BASIS OF ARTICLE 42 OF THE STAFF REGULATIONS OF THE ECSC OF 1956 AND CONVERTED INTO ITALIAN LIRE AT THE OFFICIAL RATE IN FORCE AT THE TIME OF THE PAYMENT OF THE ALLOWANCE .

THE FIRST HEAD OF THE APPLICATION

2 THE APPLICANT MAINTAINS THAT ARTICLE 5 ( 1 ) AND ( 2 ) OF REGULATION NO 2530/72 IS VITIATED BY ILLEGALITY BECAUSE IT IS DISCRIMINATORY IN THAT IT ESTABLISHES TWO DIFFERENT SYSTEMS OF PAYMENT FOR OFFICIALS IN GRADE A1 AND A2 ENGAGED UNDER THE STAFF REGULATIONS OF THE ECSC OF 1956 AND WHO TERMINATED THEIR SERVICE UNDER THE SAME CONDITIONS, ACCORDING TO WHETHER OR NOT THEY HELD ONE OF THESE TWO GRADES ON THE DATE OF THE ENTRY INTO FORCE OF THE STAFF REGULATIONS OF OFFICIALS OF THE ECSC ON 1 JANUARY 1962 .

3 HE MAINTAINS FURTHER THAT TO REFUSE HIM THE BENEFIT OF ARTICLE 42 OF THE STAFF REGULATIONS OF THE ECSC, UNDER WHICH HE WAS ENGAGED, WOULD BE TO INFRINGE HIS VESTED CONTRACTUAL RIGHT TO HAVE THE WHOLE OF THAT ARTICLE APPLIED TO HIM IF, HAVING BEEN SUBSEQUENTLY PROMOTED TO GRADE A1 OR A2, HE WERE TO BE THE SUBJECT OF A MEASURE ANALOGOUS TO RETIREMENT IN THE INTERESTS OF THE SERVICE .

4 NEVERTHELESS THE LEGAL LINK BETWEEN AN OFFICIAL AND THE ADMINISTRATION IS BASED UPON THE STAFF REGULATIONS AND NOT UPON A CONTRACT .

5 AN OFFICIAL CANNOT IN ANY CASE CLAIM A VESTED RIGHT UNLESS THE FACTS GIVING RISE TO THAT RIGHT AROSE UNDER A PARTICULAR SET OF STAFF REGULATIONS PRIOR TO THE AMENDMENT DECIDED UPON BY THE COMMUNITY AUTHORITY .

6 THE VALIDITY OF A TRANSITIONAL PROVISION CONCERNING THE FINANCIAL RIGHTS OF AN OFFICIAL WHO TERMINATES HIS SERVICE AFTER BEING BROUGHT UNDER A NEW SCHEME OF REGULATIONS INTENDED TO PREVENT THE OFFICIAL FROM FINDING HIMSELF FINANCIALLY IN A LESS FAVOURABLE POSITION THAN HE WOULD HAVE BEEN IN IF HE HAD LEFT THE SERVICE BEFORE THE NEW SYSTEM HAD ENTERED INTO FORCE CANNOT BE PUT IN QUESTION .

7 ALTHOUGH REGULATION NO 2530/72 MADE PROVISION FOR DIFFERENT FINANCIAL SCHEMES FOR OFFICIALS TERMINATING THEIR SERVICE IN SUCH CIRCUMSTANCES, THAT WAS BECAUSE ITS AUTHORS TOOK INTO ACCOUNT THE FACT THAT CERTAIN OF SUCH OFFICIALS BENEFITED FROM THE APPLICATION OF PARTICULAR PROVISIONS OF THE REGULATIONS, ESTABLISHED FIRST OF ALL BY ARTICLE 99 OF THE TRANSITIONAL PROVISIONS OF THE STAFF REGULATIONS OF OFFICIALS OF THE ECSC OF 1962 AND SUBSEQUENTLY BY THE SECOND PARAGRAPH OF ARTICLE 2 OF REGULATION ( EEC, EURATOM, ECSC ) NO 259/68 ( OJ L 56 OF 4 MARCH 1968 ).

8 THE BENEFITS RESERVED BY ARTICLE 5 OF REGULATION NO 2530/72 FOR OFFICIALS WHO HELD GRADE A1 OR A2 UNDER THE SCHEME OF THE STAFF REGULATIONS OF THE ECSC OF 1956 ARE A MERE TRANSPOSITION FROM THE STAFF REGULATIONS OF 1962 AND CANNOT CONSEQUENTLY BE REGARDED AS DISCRIMINATORY .

9 CONSEQUENTLY THE FIRST HEAD OF THE APPLICATION MUST BE REJECTED .

THE SECOND HEAD OF THE APPLICATION

10 THE APPLICANT MAINTAINS THAT THE PROVISION OF ARTICLE 63 OF THE STAFF REGULATIONS, ACCORDING TO WHICH REMUNERATION PAID IN A CURRENCY OTHER THAN BELGIAN FRANCS IS TO BE CALCULATED ON THE BASIS OF THE PARITIES ACCEPTED BY THE INTERNATIONAL MONETARY FUND WHICH WERE IN FORCE ON 1 JANUARY 1965 IS INAPPLICABLE TO THE PAYMENT OF HIS ALLOWANCE .

11 TO APPLY THESE PROVISIONS NOW FOR THE PAYMENT OF AN ALLOWANCE DUE IN ITALIAN LIRE WHILST THAT CURRENCY HAS BEEN SUBSTANTIALLY DEVALUED SINCE THE DATE MENTIONED ABOVE WOULD, ACCORDING TO THE APPLICANT, INFRINGE THE PRINCIPLE OF EQUALITY OF TREATMENT OF OFFICIALS AND, CONSEQUENTLY, WOULD BE ILLEGAL .

12 UNDER THE TERMS OF ARTICLE 64 OF THE STAFF REGULATIONS THE REMUNERATION OF AN OFFICIAL IS TO BE WEIGHTED AT A RATE CALCULATED ACCORDING TO LIVING CONDITIONS IN THE VARIOUS PLACES OF EMPLOYMENT .

13 UNDER THE TERMS OF ARTICLE 65, IN THE EVENT OF A SUBSTANTIAL CHANGE IN THE COST OF LIVING, THE COUNCIL IS TO DECIDE WITHIN TWO MONTHS WHAT ADJUSTMENTS SHOULD BE MADE TO THE WEIGHTINGS AND IF APPROPRIATE TO APPLY THEM RETROSPECTIVELY .

14 THE SCHEME THUS ESTABLISHED, WHICH IS BASED UPON THE FIXED PARITIES PROVIDED FOR IN ARTICLE 63, IS INTENDED EFFECTIVELY TO GUARANTEE THAT THE SALARY OF ALL OFFICIALS HAS THE SAME PURCHASING POWER WHATEVER THEIR PLACE OF WORK OR RESIDENCE .

15 NEVERTHELESS, IN A PERIOD OF MONETARY INSTABILITY IT IS POSSIBLE THAT THE OBJECTIVE SOUGHT BY THESE PROVISIONS MAY NOT BE ENTIRELY ACHIEVED .

16 ALTHOUGH IT IS FOR THE COUNCIL TO ADAPT THE REGULATIONS TO ECONOMIC REALITIES AND THUS TO SEEK THE MEANS OF ALLEVIATING ANY LOSS SUFFERED BY OFFICIALS RESIDING IN A COUNTRY WHOSE CURRENCY HAS BEEN SUBSTANTIALLY DEVALUED, THAT CANNOT MEAN THAT THE EXISTING WORDING OF ARTICLE 63 IS ILLEGAL OR THAT IN CONSEQUENCE IT IS INAPPLICABLE WITHIN THE MEANING OF ARTICLE 184 OF THE EEC TREATY .

17 THE SECOND HEAD OF THE APPLICATION MUST CONSEQUENTLY BE REJECTED .

18 THE APPLICANT HAS FAILED IN HIS APPLICATION .

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

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

ON THOSE GROUNDS,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .