JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)

5 July 2007

Case F-25/06

Béatrice Ider and Others

v

Commission of the European Communities

(Civil service – Members of the contract staff – Grading and remuneration – Office for Infrastructure and Logistics Brussels (OIB) – Staff entrusted with executive duties – Former salaried employees under Belgian law – Change of applicable regime – Equal treatment)

Application: brought under Articles 236 EC and 152 EA, in which Mrs Ider, Mrs Desorbay and Mr Noschese, members of the Commission’s contract staff, seek annulment of the decisions of the authority empowered to conclude contracts fixing their grades and remuneration under contracts for members of the contract staff signed in April 2005 which took effect on 1 May 2005, and annulment of the same authority’s decisions of 21 November 2005 dismissing their complaints against those earlier decisions.

Held: The decision by which the Commission fixed Mrs Ider’s remuneration under a contract for a member of the contract staff signed in April 2005 is annulled. The remainder of the action is dismissed. The Commission is ordered to bear its own costs and to pay half of Mrs Ider’s costs. Mrs Ider is to bear half of her own costs. Mrs Desorbay and Mr Noschese are to bear their own costs.

Summary

1.      Officials – Contract staff – Remuneration

(Conditions of Employment of Other Servants, Annex, Art. 2(2))

2.      Officials – Contract staff – Remuneration

(Conditions of Employment of Other Servants, Annex, Art. 2(2))

1.      It is clear from the wording of Article 2(2) of the Annex to the Conditions of Employment of Other Servants that where a worker previously linked to the institution under an employment contract governed by national law has been engaged as a member of the contract staff, resulting in a reduction in his remuneration compared with what he received under the previous contract, the payment of an additional amount of remuneration is merely an option available to the institution. Moreover, Article 2(2) allows the institution a very broad discretion to fix the additional amount in so far as it must take into account differences between the national fiscal, social security and pension legislation that applied under the previous contract and the rules applicable to the contract staff member.

The Commission has applied Article 2(2) of the Annex to the Conditions of Employment of Other Servants by adopting Articles 7 and 8 of the general implementing provisions for the transitional measures applicable to staff employed by the Office for Infrastructure in Brussels in the day nurseries and kindergartens in Brussels, together with Annexes I to III of those general implementing provisions. Under the latter provisions, it has in fact undertaken to pay an additional amount to certain categories of contract staff in accordance with the rules laid down in those provisions. Those rules for the application of Article 2(2) of the Annex to the Conditions of Employment of Other Servants must not, however, infringe higher rules of civil service law.

(see paras 92-93, 95)

2.      In order to ascertain whether the inclusion of family allowances in the definition of net remuneration as a contract staff member on the one hand, and as a salaried employee under national law on the other, is likely to penalise contract staff who, on the dates referred to in Articles 7 and 8 of the general implementing provisions for the transitional measures applicable to staff employed by the Office for Infrastructure in Brussels in the day nurseries and kindergartens in Brussels, had dependent children as compared with those who, on the same dates, did not, it is important to note, first, that those two categories of contract staff are placed in comparable situations for the purpose of Article 2(2) of the Annex to the Conditions of Employment of Other Servants, which aims to compensate for any reduction in remuneration resulting from the fact that the workers concerned have gained the status of contract staff.

Secondly, the inclusion of family allowances in the definition of net remuneration as a contract staff member on the one hand, and as a salaried employee under national law on the other, directly affects the additional amount fixed as a result of comparing those net remunerations in accordance with the rules laid down in Annex I to the general implementing provisions. Where the amount of Community family allowances included in the first of the cases compared is higher than the allowances received under the legislation of the Member State of employment and included in the second of the cases compared, the additional amount paid to those who already have one or more dependent children on the day when they gain the status of contract staff would be correspondingly reduced.

It follows that the inclusion of family allowances in the definition of remuneration is likely to create differences of treatment in terms of salary depending on whether or not the contract staff member concerned had dependent children on the dates provided for in Articles 7 and 8 of the general implementing provisions, to the detriment of staff members who did have one or more dependent children on those same dates. The fact that family allowances constitute a component of the remuneration which the Communities are obliged to pay to their officials or other staff cannot, however, justify differences in treatment between contract staff where it is simply a question of paying them additional salary to compensate for a reduction in remuneration resulting from a move from a national law regime to a Community law regime.

Consequently, in the absence of any objective justification, paragraphs A and B of Annex I to the general implementing provisions for the transitional measures applicable to staff employed by the Office for Infrastructure in Brussels in the day nurseries and kindergartens in Brussels, to which Article 7 of those same general implementing provisions refers, infringes the general principle of equal treatment.

(see paras 96-101)