61979J0783

1 . OFFICIALS - APPLICATIONS TO THE COURT - PRIOR COMPLAINT THROUGH OFFICIAL CHANNELS - OBJECT - ACT HAVING AN ADVERSE EFFECT ADOPTED BY THE APPOINTING AUTHORITY

( STAFF REGULATIONS OF OFFICIALS , ARTS 90 AND 91 )

2 . OFFICIALS - APPLICATIONS TO THE COURT - ACT HAVING AN ADVERSE EFFECT - CONCEPT - PAY SLIP APPLYING NEW RULES CONCERNING REMUNERATION

( STAFF REGULATIONS OF OFFICIALS , ARTS 90 AND 91 )

1 . UNDER ARTICLES 90 AND 91 OF THE STAFF REGULATIONS OF OFFICIALS THE COMPLAINT , AND CONSEQUENTLY THE APPLICATION , MAY BE DIRECTED ONLY AGAINST AN ACT HAVING AN ADVERSE EFFECT ADOPTED BY THE APPOINTING AUTHORITY .

2 . THE PAY SLIP WHEREBY THE ADMINISTRATION APPLIES NEW REGULATIONS CONCERNING REMUNERATION CONSTITUTES AN ACT LIABLE TO HAVE AN ADVERSE EFFECT WITHIN THE MEANING OF THE STAFF REGULATIONS .

IN JOINED CASES 783 AND 786/79

GERHARD VENUS AND WOLFGANG OBERT , TEMPORARY SERVANTS OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , EMPLOYED BY THE JOINT EUROPEAN TORUS ( JET ) JOINT UNDERTAKING AT CULHAM ( UK ), REPRESENTED AND ASSISTED BY ERNEST ARENDT , OF THE LUXEMBOURG BAR , 34B RUE PHILIPPE-II , LUXEMBOURG ,

APPLICANTS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , JOSEPH GRIESMAR , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , JEAN MONNET BUILDING , KIRCHBERG ,

AND

COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , JOHN CARBERY , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF DOUGLAS FONTEIN , HEAD OF THE LEGAL DEPARTMENT OF THE EUROPEAN INVESTMENT BANK , KIRCHBERG ,

DEFENDANTS ,

APPLICATION IN THE TERMS SET OUT IN THE PLEADINGS ,

1 BY APPLICATIONS LODGED AT THE COURT REGISTRY ON 22 OCTOBER 1979 AND 26 OCTOBER 1979 THE APPLICANTS , DR G . VENUS AND DR W . OBERT , TEMPORARY SERVANTS OF THE COMMISSION WORKING AT THE JOINT EUROPEAN TORUS ( JET ) JOINT UNDERTAKING IN THE UNITED KINGDOM BROUGHT ACTIONS PURSUANT TO ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS ( HEREINAFTER REFERRED TO AS ' ' THE STAFF REGULATIONS ' ' ) FOR ANNULMENT OF THE COMMISSION ' S DECISION WHEREBY THE CONVERSION RATE FOR THE TRANSFERABLE PORTION OF THEIR REMUNERATION WAS FIXED AT UK = DM 6.09 .

2 BY COUNCIL DECISION OF 30 MAY 1978 ( OFFICIAL JOURNAL 1978 L 151 , P . 10 ) A JOINT UNDERTAKING CALLED ' ' JOINT EUROPEAN TORUS ( JET ), JOINT UNDERTAKING ' ' ( HEREINAFTER REFERRED TO AS ' ' JET ' ' ) WAS SET UP , ITS AIM BEING TO CONSTRUCT , OPERATE AND EXPLOIT A LARGE TORUS FACILITY OF THE TOKAMAK TYPE AND ITS AUXILIARY FACILITIES . ARTICLE 2 OF THE DECISION PROVIDES THAT THE STATUTES OF JET , ANNEXED TO THE DECISION , ARE TO BE ADOPTED . ARTICLE 8.5 OF THE STATUTES PROVIDES INTER ALIA THAT , UNLESS DECIDED OTHERWISE IN CERTAIN SPECIAL CASES , STAFF IS TO BE RECRUITED BY THE COMMISSION FOR TEMPORARY POSTS IN ACCORDANCE WITH THE ' ' CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES ' ' ( HEREINAFTER REFERRED TO AS THE ' ' CONDITIONS OF EMPLOYMENT ' ' ) AND ASSIGNED BY THE COMMISSION TO THE JOINT UNDERTAKING .

3 THE APPLICANT DR VENUS IS OF GERMAN NATIONALITY . HE IS A CERTIFICATED PHYSICIST AND A DOCTOR IN NATURAL SCIENCES OF THE TECHNICAL UNIVERSITY OF MUNICH . HE WAS RECRUITED AS A TEMPORARY SERVANT , ASSIGNED TO JET AND CLASSIFIED IN GRADE A 4 , STEP 1 , ON THE BASIS OF OFFERS OF EMPLOYMENT DATED 8 NOVEMBER 1978 AND 13 DECEMBER 1978 . IN THE OFFER OF 13 DECEMBER 1978 IT WAS STATED THAT OF HIS TOTAL SALARY , EXPRESSED IN BELGIAN FRANCS AND AMOUNTING TO BFR 155 842 PER MONTH , HE COULD TRANSFER TO HIS COUNTRY OF ORIGIN 35% , THAT IS TO SAY BFR 54 545 , AT A RATE AT WHICH THE ACTUAL COST OF THE TRANSFER WOULD BE ONLY UKL 389.60 , WHICH WOULD LEAVE THE APPLICANT WITH A BALANCE OF SALARY OF UKL 723.56 . THE APPLICANT ACCEPTED THE OFFER AND ENTERED INTO A WRITTEN CONTRACT WITH THE COMMISSION ON 13 DECEMBER 1978 .

4 THE APPLICANT DR OBERT IS OF GERMAN NATIONALITY . HE IS A CERTIFICATED PHYSICIST OF THE UNIVERSITY OF KARLSRUHE . HE WAS RECRUITED AS A TEMPORARY SERVANT , CLASSIFIED IN GRADE A 5 , STEP 3 , ON THE BASIS OF AN OFFER OF EMPLOYMENT DATED 27 OCTOBER 1978 ACCOMPANIED BY A CALCULATION OF HIS NET REMUNERATION , IN WHICH IT WAS STATED THAT OF HIS TOTAL SALARY , EXPRESSED IN BELGIAN FRANCS AMOUNTING TO BFR 157 247 PER MONTH , HE COULD TRANSFER TO HIS COUNTRY OF ORIGIN 35 % , THAT IS TO SAY , BFR 55 036 , AT A RATE AT WHICH THE ACTUAL COST OF THE TRANSFER WOULD BE ONLY UKL 458.63 , LEAVING HIM A BALANCE OF SALARY OF UKL 664.56 . THE APPLICANT ACCEPTED THE OFFER AND ENTERED INTO A WRITTEN CONTRACT WITH THE COMMISSION ON 21 NOVEMBER 1978 .

5 THE CONTRACTS ENTERED INTO WITH THE APPLICANTS PROVIDED THAT THE LATTER WOULD BE BOUND BY THE PROVISIONS APPLICABLE TO TEMPORARY SERVANTS IN ACCORDANCE WITH ARTICLE 2 ( A ) OF THE CONDITIONS OF EMPLOYMENT .

6 THE PROVISIONS CONCERNING REMUNERATION AND REIMBURSEMENT OF EXPENSES FOR SUCH STAFF APPEAR IN CHAPTER 5 OF THE CONDITIONS OF EMPLOYMENT . ARTICLE 27 , WHICH IS PART OF THAT CHAPTER , PROVIDED THAT ARTICLES 16 AND 17 OF ANNEX VII TO THE STAFF REGULATIONS ARE TO APPLY TO THEM BY ANALOGY .

7 THE APPLICANTS THEN REGULARLY TRANSFERRED THROUGHT THE COMMISSION PART OF THEIR EMOLUMENTS IN THE CURRENCY OF THEIR COUNTRY OF ORIGIN PURSUANT TO ARTICLE 17 OF ANNEX VII TO THE STAFF REGULATIONS .

8 ON 21 DECEMBER 1978 , THE COUNCIL ADOPTED REGULATION ( EURATOM , ECSC , EEC ) NO 3085/78 ( OFFICIAL JOURNAL L 369 , P . 6 ) ARTICLE 1 OF WHICH PROVIDES THAT ARTICLE 63 OF THE STAFF REGULATIONS IS TO BE REPLACED BY THE FOLLOWING :

' ' OFFICIALS ' REMUNERATION SHALL BE EXPRESSED IN BELGIAN FRANCS . IT SHALL BE PAID IN THE CURRENCY OF THE COUNTRY IN WHICH THE OFFICIAL PERFORMS HIS DUTIES .

REMUNERATION PAID IN A CURRENCY OTHER THAN BELGIAN FRANCS SHALL BE CALCULATED ON THE BASIS OF THE EXCHANGE RATES USED FOR THE IMPLEMENTATION OF THE GENERAL BUDGET OF THE EUROPEAN COMMUNITIES ON 1 JULY 1978 .

THIS DATE SHALL BE CHANGED , AT THE TIME OF THE ANNUAL REVIEW OF REMUNERATION PROVIDED FOR IN ARTICLE 65 , BY THE COUNCIL ACTING BY A QUALIFIED MAJORITY UPON A PROPOSAL FROM THE COMMISSION AS PROVIDED IN THE FIRST INDENT OF THE SECOND SUB-PARAGRAPH OF ARTICLES 148 ( 2 ) OF THE EEC TREATY AND OF 118 ( 2 ) OF THE EURATOM TREATY .

WITHOUT PREJUDICE TO THE APPLICATION OF ARTICLES 64 AND 65 , THE WEIGHTINGS FIXED PURSUANT TO THESE ARTICLES SHALL , WHENEVER THE ABOVE DATE IS CHANGED , BE ADJUSTED BY THE COUNCIL , WHICH , ACTING IN ACCORDANCE WITH THE PROCEDURE MENTIONED IN THE THIRD PARAGRAPH , SHALL CORRECT THE EFFECT OF THE VARIATION IN THE BELGIAN FRANC WITH RESPECT TO THE RATES REFERRED TO IN THE SECOND PARAGRAPH . ' '

9 ARTICLE 2 OF THE REGULATION PROVIDES :

' ' ARTICLE 17 OF ANNEX VII SHALL BE REPLACED BY THE FOLLOWING :

ARTICLE 17

1 . PAYMENT SHALL BE MADE TO EACH OFFICIAL AT THE PLACE AND IN THE CURRENCY OF THE COUNTRY WHERE HE CARRIES OUT HIS DUTIES .

2 . UNDER THE TERMS LAID DOWN IN RULES DRAWN UP BY COMMON AGREEMENT BY THE INSTITUTIONS OF THE COMMUNITIES , AFTER CONSULTATION OF THE STAFF REGULATIONS COMMITTEE , AN OFFICIAL MAY :

( A ) THROUGH THE INSTITUTION WHICH HE SERVES , REGULARLY HAVE PART OF HIS EMOLUMENTS TRANSFERRED UP TO A MAXIMUM AMOUNT EQUAL TO HIS EXPATRIATION OR FOREIGN RESIDENCE ALLOWANCE ;

- EITHER IN THE CURRENCY OF THE MEMBER STATE OF WHICH HE IS A NATIONAL ,

- OR IN THE CURRENCY OF THE MEMBER STATE IN WHICH EITHER HIS OWN DOMICILE OR THE PLACE OF RESIDENCE OF A DEPENDANT RELATIVES IS LOCATED ,

- OR IN THE CURRENCY OF HIS PREVIOUS COUNTRY OF EMPLOYMENT OR OF THE COUNTRY IN WHICH HIS INSTITUTION HAS ITS SEAT , PROVIDED THAT THE OFFICIAL IN QUESTION HAS BEEN ASSIGNED TO A POST OUTSIDE THE TERRITORY OF THE EUROPEAN COMMUNITIES ;

( B)HAVE REGULAR TRANSFERS MADE IN EXCESS OF THE MAXIMUM STATED AT THE BEGINNING OF PARAGRAPH ( A ) PROVIDED THAT THEY ARE INTENDED TO COVER EXPENDITURE ARISING IN PARTICULAR OUT OF COMMITMENTS PROVED TO HAVE BEEN REGULARLY UNDERTAKEN BY THE OFFICIAL OUTSIDE THE COUNTRY WHERE THE INSTITUTION HAS ITS SEAT OR OUTSIDE THE COUNTRY WHERE HE CARRIES OUT HIS DUTIES ;

( C)BE AUTHORIZED , IN VERY EXCEPTIONAL CIRCUMSTANCES AND FOR GOOD REASONS SUPPORTED BY EVIDENCE , TO HAVE TRANSFERRED , APART FROM THE AFOREMENTIONED REGULAR TRANSFERS , SUMS WHICH HE MAY WISH TO HAVE AVAILABLE IN THE CURRENCIES REFERRED TO IN PARAGRAPH ( A ).

3 . THE TRANSFERS PROVIDED FOR IN PARAGRAPH ( 2 ) SHALL BE MADE AT THE EXCHANGE RATE SPECIFIED IN THE SECOND PARAGRAPH OF ARTICLE 63 OF THE STAFF REGULATIONS ; THE AMOUNTS TRANSFERRED SHALL BE MULTIPLIED BY A COEFFICIENT REPRESENTING THE DIFFERENCE BETWEEN THE WEIGHTING FOR THE COUNTRY IN WHICH THE OFFICIAL IS EMPLOYED . ' '

10 ARTICLE 4 OF REGULATION NO 3085/78 PROVIDES THAT IT IS TO ENTER INTO FORCE ON 1 JANUARY 1979 AND IS TO APPLY AS FROM 1 APRIL 1979 .

11 ON 21 DECEMBER 1978 , THE COUNCIL ALSO ADOPTED REGULATION ( EURATOM , ECSC , EEC ) NO 3086/78 ADJUSTING THE WEIGHTINGS APPLICABLE TO THE REMUNERATION AND PENSIONS OF OFFICIALS AND OTHER SERVANTS OF THE EUROPEAN COMMUNITIES FOLLOWING THE AMENDMENT OF THE PROVISIONS OF THE STAFF REGULATIONS CONCERNING THE MONETARY PARITIES TO BE USED IN IMPLEMENTING THE STAFF REGULATIONS . ARTICLE 1 ( 1 ) OF THE REGULATION FIXES , INTER ALIA , THE WEIGHTING APPLICABLE TO THE REMUNERATION AS 98.7 FOR THE FEDERAL REPUBLIC OF GERMANY AND 62.5 FOR THE UNITED KINGDOM .

12 AS A RESULT OF THE NEW RULES , THE RATE OF EXCHANGE FOR THE GERMAN MARK AGAINST THE POUND STERLING CHANGED FROM UKL 1 = DM 10.24 TO UKL 1 = DM 6.096 AND CONSEQUENTLY THE APPLICATION OF THOSE RULES ENTAILED , ACCORDING TO THE APPLICANTS , A SUBSTANTIAL DECREASE IN THEIR EFFECTIVE SALARY , THE AMOUNT TRANSFERRED IN GERMAN MARKS REMAINING THE SAME BUT THE BALANCE PAID IN POUNDS STERLING BEING DECREASED .

13 PURSUANT TO ARTICLE 46 OF THE CONDITIONS OF EMPLOYMENT , THE PROVISIONS OF TITLE VII ( NAMELY ARTICLES 90 AND 91 ) OF THE STAFF REGULATIONS CONCERNING APPEALS ARE APPLICABLE BY ANALOGY TO THE APPLICANTS .

14 BY A LETTER OF 15 MARCH 1979 , THE APPLICANTS AND OTHER SCIENTISTS EMPLOYED AS SERVANTS WITH JET SENT A COLLECTIVE REQUEST TO THE JET COUNCIL ASKING IT TO SET UP AN INTERIM SYSTEM WHICH WOULD AVOID ANY REDUCTION IN THEIR EFFECTIVE SALARY .

15 IN LETTERS SENT BY THEM SEPARATELY ON 26 MARCH 1979 THE APPLICANTS ASKED THAT THE RULES IN ISSUE SHOULD NOT BE APPLIED TO THEM OR THAT THE COMMISSION SHOULD APPLY COMPENSATORY INTERIM MEASURES IN THEIR CASE .

16 BY LETTER OF 12 JULY 1979 , THE COMMISSION REPLIED ON THE ONE HAND THAT IT COULD NOT , WITHOUT EXCEEDING ITS POWERS , REFRAIN FROM APPLYING COUNCIL REGULATIONS WHICH HAD DULY ENTERED INTO FORCE AND ON THE OTHER HAND THAT IT APPROVED IN SUBSTANCE THE AMENDMENTS WHICH HAD BEEN MADE TO THE STAFF REGULATIONS .

17 THE APPLICANTS THEN BROUGHT THEIR ACTIONS AGAINST BOTH THE COUNCIL AND THE COMMISSION . THEY ASK THAT THE COURT DECLARE THAT THEIR EMPLOYER ' S DECISION WHEREBY THE CONVERSION RATE FOR THE TRANSFERABLE PORTION OF THEIR REMUNERATION IS FIXED AT UKL 1 = DM 6.09 IS VOID , OR ELSE THAT IT IS NOT APPLICABLE TO THEM ; TO DECLARE THAT , ON THE CONTRARY , THE RATE OF EXCHANGE FOR THAT TRANSFERABLE PORTION IS THE ONE FIXED BY CONTRACT BETWEEN THE PARTIES NAMELY UKL 1 = DM 10.24 AND TO ORDER THE COMMISSION TO REIMBURSE THEM FOR THE LOSS OF SALARY SUFFERED BY THEM AS A RESULT OF THE RULES IN ISSUE .

18 THE APPLICANTS RELY ON TWO GROUNDS . THE FIRST IS THE INFRINGEMENT OF ACQUIRED RIGHTS . ACCORDING TO THE APPLICANTS , THE CONDITIONS APPLICABLE TO TEMPORARY SERVANTS ARE BASED ON THEIR CONTRACT OF EMPLOYMENT . THE RIGHTS AND OBLIGATIONS OF THE APPLICANTS ARE THEREFORE DERIVED IN THE FIRST PLACE FROM THEIR CONTRACT OF EMPLOYMENT AND NOT FROM THE CONDITIONS OF EMPLOYMENT . THE TERMS OF REMUNERATION WERE IN THE CIRCUMSTANCES THE SUBJECT OF A SPECIAL AGREEMENT BETWEEN THE PARTIES . THE VARIOUS COMPONENTS OF THAT REMUNERATION WERE SET OUT IN THE OFFERS OF EMPLOYMENT OF 26 OCTOBER 1978 ( OBERT ) AND 8 NOVEMBER AND 13 DECEMBER 1978 ( VENUS ). THOSE RIGHTS AND OBLIGATIONS COULD NOT BE UNILATERALLY CHANGED BY THE RULES IN ISSUE AND THE EMPLOYER THEREFORE INFRINGED THE RIGHTS WHICH THE APPLICANTS HAD VALIDLY ACQUIRED BY CONTRACT .

19 THE SECOND GROUND IS BREACH OF THE PRINCIPLE OF THE LEGITIMATE EXPECTATION WHICH EVERY OFFICIAL MAY HAVE WITH REGARD TO THE CONDUCT OF THE AUTHORITY EMPLOYING HIM . BOTH APPLICANTS LEFT THEIR EMPLOYMENT , AND DR VENUS ALSO LEFT HIS FAMILY , TO TAKE UP THE POSTS OFFERED BY THE COMMISSION ON THE FAITH OF THE SPECIFIC PROPOSALS , CONTAINING DETAILED FIGURES , WHICH HAD BEEN MADE TO THEM DURING THE NEGOTIATIONS WHICH PRECEDED THEIR ENGAGEMENT ; THE POSSIBILITY OF TRANSFERRING A SUBSTANTIAL PORTION OF THEIR REMUNERATION AT THE RATES SPECIFIED IN THE OFFERS OF EMPLOYMENT TO THEIR COUNTRY OF ORIGIN WHERE THEY WOULD STILL HAVE MAJOR FINANCIAL COMMITMENTS WAS A DECIDING FACTOR IN THEIR ENTERING INTO THE CONTRACTS AND SHOULD THEREFORE BE REGARDED AS AN ESSENTIAL ASPECT OF THEIR APPOINTMENT . IT WOULD BE CONTRARY TO THE GENERAL PRINCIPLE OF LEGAL CERTAINTY THAT THE APPLICANTS SHOULD BE EXPOSED TO A RADICAL CHANGE IN THEIR CIRCUMSTANCES BROUGHT ABOUT BY INTERFERENCE WITH FUNDAMENTAL CONDITIONS OF SUCH A NATURE AS TO INDUCE THEM TO ACCEPT THEIR POSTS .

ADMISSIBILITY

20 BY WRITTEN SUBMISSION LODGED AT THE COURT REGISTRY ON 14 JANUARY 1980 THE COUNCIL RAISED AN OBJECTION OF INADMISSIBILITY PURSUANT TO ARTICLE 91 OF THE RULES OF PROCEDURE OF THE COURT . NEITHER THE SUBJECT-MATTER OF THE APPLICATIONS NOR THE CONCLUSIONS CONTAINED IN THEM CALLED IN QUESTION ANY MEASURE TAKEN BY THE COUNCIL . THE COUNCIL IS NOT THE APPOINTING AUTHORITY AS FAR AS THE APPLICANTS ARE CONCERNED . MOREOVER , THE APPLICANTS NEVER SENT THE COUNCIL A COMPLAINT WITHIN THE MEANING OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS . AS REGARDS THE REQUEST THAT THE COMMISSION BE ORDERED TO REIMBURSE THEM FOR THEIR LOSS OF SALARY IN CONSEQUENCE OF AND FROM THE TIME OF APPLICATION OF THE RULES IN ISSUE , APART FROM THE FACT THAT THAT REQUEST REFERS EXPRESSLY TO THE COMMISSION , THE APPLICANTS ' ACTION IN RESPECT OF NON-CON TRACTUAL LIABILITY IS ALSO INADMISSIBLE . THE DAMAGE ALLEGEDLY SUFFERED BY THE APPLICANTS IS TO BE REGARDED AS A DIRECT CONSEQUENCE OF THE APPLICATION OF THE DECISION IN RESPECT OF WHICH A DECLARATION OF NULLITY IS SOUGHT AND , IN THOSE CIRCUMSTANCES , THE ACTION TO ESTABLISH LIABILITY IS MERGED WITH THE ACTION FOR ANNULMENT .

21 IN REPLY TO THE COUNCIL THE APPLICANTS STATE THAT IT IS NOT THEIR INTENTION TO BRING AN ACTION SPECIFICALLY AGAINST ONE OF ITS MEASURES BUT ADD THAT THEY THOUGHT THAT THEY SHOULD INDIRECTLY INVOLVE THE COUNCIL IN THE PROCEEDINGS SINCE THE RULES IN ISSUE ORIGINATED FROM IT . THEY STATE THAT THEY DO NOT SEEK AND HAVE NEVER SOUGHT TO BRING AN ACTION TO ESTABLISH NON-CONTRACTUAL LIABILITY UNDER ARTICLE 215 OF THE TREATY , AGAINST EITHER THE COUNCIL OR THE COMMISSION .

22 THE OBJECTIONS MUST BE UPHELD . UNDER ARTICLES 90 AND 91 OF THE STAFF REGULATIONS THE COMPLAINT , AND CONSEQUENTLY THE APPLICATION , MAY BE DIRECTED ONLY AGAINST THE APPOINTING AUTHORITY AND THE ACT HAVING AN ADVERSE AFFECT MUST HAVE BEEN ADOPTED BY THAT AUTHORITY .

23 IN ITS DEFENCE , THE COMMISSION ALSO CONTENDS THAT THE APPLICATION IS INADMISSIBLE . IT ENVISAGES THREE POSSIBILITIES REGARDING THE REQUEST FOR ANNULMENT OF THE ' ' EMPLOYER ' S DECISION WHEREBY THE CONVERSION RATE FOR THE TRANSFERABLE PART OF THEIR REMUNERATION IS FIXED AT UKL 1 = 6.09 DM ' ' . IF THE APPLICATIONS SEEK ANNULMENT OF REGULATIONS NOS 3085/78 AND 3086/78 THEY DO NOT REFER TO A MEASURE BY THE APPOINTING AUTHORITY AND ARE THEREBY INADMISSIBLE . IF THE APPLICATIONS SEEK ANNULMENT OF THE CIRCULAR OF 4 APRIL 1979 , ISSUED BY THE JET ADMINISTRATION , THE APPLICATIONS ARE LIKEWISE INADMISSIBLE , IN THE FIRST PLACE BECAUSE THAT CIRCULAR IS MERELY A DOCUMENT WHICH EXPLAINS THE CONTENT AND CONSEQUENCES OF THE NEW PROVISIONS OF THE STAFF REGULATIONS AND CANNOT THEREFORE CONSTITUTE A MEASURE HAVING AN ADVERSE AFFECT WITHIN THE MEANING OF ARTICLE 90 OF THE STAFF REGULATIONS : IN ADDITION , BECAUSE THE APPLICANTS DID NOT LODGE ANY COMPLAINT REGARDING THE CIRCULAR . FINALLY , IF , AS POSTULATED AS THE THIRD POSSIBILITY , THE APPLICATIONS SEEK ANNULMENT OF THE INDIVIDUAL DECISIONS REGARDING CALCULATION OF THE REMUNERATION IN RESPECT OF APRIL 1980 , THEY ARE LIKEWISE INADMISSIBLE BECAUSE THE CALCULATION OF THE APPLICANT ' S REMUNERATION FOR THE MONTH OF APRIL WAS NOT THE SUBJECT OF ANY COMPLAINT AT ALL ON THEIR PART . INADMISSIBILITY OF THE CLAIM FOR ANNULMENT INVOLVES INADMISSIBILITY OF THE CLAIM FOR COMPENSATION LINKED WITH THE FIRST MENTIONED CLAIM .

24 IN REPLY THE APPLICANTS STATE THAT THE COMMISSION MAY NOT , WITHOUT CONTRADICTING ITSELF , REPROACH THE APPLICANTS FOR NOT LODGING A PRIOR COMPLAINT THROUGH OFFICIAL CHANNELS AGAINST A DECISION WHICH , ACCORDING TO THE COMMISSION , MAY NOT BE ANNULLED OR AMENDED . THE MATTER IN ISSUE WAS PROPERLY SUBMITTED TO THE COMMISSION BY THE COMPLAINTS THROUGH OFFICIAL CHANNELS OF 15 AND 26 MARCH 1979 AND CONSEQUENTLY THE APPLICATIONS , IN SO FAR AS THEY ARE DIRECTED AGAINST THE EMPLOYER ' S DECISION TO CALCULATE THEIR REMUNERATION IN ACCORDANCE WITH THE RULES IN ISSUE , ARE ADMISSIBLE AND ACCORDINGLY THEIR ACTION SEEKING COMPENSATION FOR THE DAMAGE SUFFERED BY THEM IN CONSEQUENCE OF THAT DECISION IS ALSO ADMISSIBLE .

25 THE ACTION IS ALSO INADMISSIBLE IN SO FAR AS IT IS DIRECTED AGAINST THE COMMISSION . THE APPLICANTS ' COMPLAINTS DATE FROM MARCH 1979 . ONLY ON 15 APRIL 1979 , WHEN PREPARING THE PAY SLIP FOR APRIL 1979 , DID THE COMMISSION APPLY THE NEW REGULATIONS AND THUS ADOPT THE FIRST MEASURE LIABLE ADVERSELY TO AFFECT THE APPLICANTS IN THE MANNER PROVIDED FOR IN THE STAFF REGULATIONS . THE COMPLAINTS WERE THEREFORE PREMATURE . AFTER RECEIPT OF THEIR PAY SLIPS FOR APRIL 1979 THE APPLICANTS DID NOT AT ANY TIME LODGE COMPLAINTS AGAINST THAT MEASURE PURSUANT TO ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS . IF THE COMPLAINTS OF 15 AND 26 MARCH ARE TO BE REGARDED AS REQUESTS AS PROVIDED FOR BY ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS , INVITING THE COMMISSION TO ADOPT A DECISION WITH RESPECT TO THEM , THE APPLICANTS DID NOT LODGE COMPLAINTS AS PROVIDED FOR BY ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS AGAINST THE COMMISSION ' S REFUSAL TO TAKE SUCH A DECISION , REGARDLESS OF WHETHER THAT REFUSAL WAS CONSTITUTED BY THE CIRCULAR LETTER OF 4 APRIL 1979 OR BY THE LETTER OF 12 JULY 1979 . IN THE ABSENCE OF A COMPLAINT DULY LODGED IN ACCORDANCE WITH ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS , FOLLOWING A MEASURE HAVING AN ADVERSE EFFECT , THE APPLICATIONS ARE INADMISSIBLE .

26 IT IS REGRETTABLE THAT THE COMMISSION SHOULD HAVE GIVEN THE APPLICANTS , IN THE OFFERS OF EMPLOYMENT OF 27 OCTOBER AND 13 DECEMBER 1978 , SPECIFIC DETAILS AS TO THE EXCHANGE RATES APPLICABLE TO THE TRANSFERS , KNOWING AS IT DID THAT THOSE RATES WOULD BE CONSIDERABLY AFFECTED BY THE REGULATIONS WHICH , AT THE TIME THE OFFERS OF EMPLOYMENT WERE MADE , IT WAS INSISTENTLY ASKING THE COUNCIL TO ADOPT BEFORE THE END OF 1978 . HOWEVER , THAT FACT HAS NO EFFECT ON THE ADMISSIBILITY OF THE APPLICATIONS .

27 HAVING REGARD TO THE FOREGOING CONSIDERATIONS , THE APPLICATIONS MUST BE DISMISSED AS INADMISSIBLE .

COSTS

28 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .

29 HOWEVER , SINCE THE TERMS OF THE COMMISSION ' S OFFERS OF EMPLOYMENT WERE A FACTOR IN THE APPLICANTS ' DECISION TO BRING THEIR APPLICATIONS THE COMMISSION IS ORDERED TO PAY THE COSTS OF THE PROCEEDINGS .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

1 . DISMISSES THE APPLICATIONS AS INADMISSIBLE .

2 . ORDERS THE COMMISSION TO PAY TO COSTS OF THE PROCEEDINGS .