JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

8 November 2000

Case T-44/97

Piera Ghignone and Others

v

Council of the European Union

‛Officials — Remuneration — Posting to a third country — Adjustment of weightings — Retroactive effect — Recovery of overpayment’

Full text in French   II-1023

Application for:

application for annulment of the applicants' salary slips for May and June 1996.

Held:

The opinions of the legal service of the Council, produced by the applicants in annexes 5 and 10 to the reply, are removed from the case-file. The application is dismissed. The parties are ordered to bear their own costs.

Summary

1. Officials — Actions — Time-limits — Successive complaints

   (Staff Regulations, Art. 90(2) and 91(3))

2. Procedure — Production before the Court of First Instance of the opinions expressed by the legal service of the Community institutions — Conditions

3. Officials — Remuneration — Weightings — Regulation — Obligation to state reasons — Scope

   (EC Treaty, Art. 190 (now Art. 253 EC); Staff Regulations Annexes X and XI)

4. Officials — Decision adversely affecting an official — Decision of the appointing authority applying a measure of general application to the individual situation of an official — Obligation to state reasons — Scope

   (Staff Regulations, Art. 25, second para.)

5. Officials — Remuneration — Weightings — Adjustment to ensure equivalence of purchasing power — Obligation incumbent on the Community legislature — Failure to comply with time-limits — Not relevant

   (Staff Regulations, Annex X, Art. 13)

6. Officials — Remuneration — Weightings — Provisions applicable to officials serving in non-member countries — Principles — Adjustment of the weighting with retroactive effect — Whether permissible — Pay slip — Provisional nature — Recovery of overpayment — Whether permissible

   (Staff Regulations, Art. 64; Annexes X, Art. 13)

1.  Whether one complaint under Article 90(2) of the Staff Regulations has been followed by a second complaint, where both these complaints have been the subject of two successive decisions rejecting them and where the applicant has complied with the time-limit for bringing an action in respect of the second of these decisions, the action against the second decision can be regarded as inadmissible only where the latter decision must be regarded as purely confirmative of the first decision of rejection. That is so where the second decision contains no new material by comparison with the first decision.

   (see paras 38-40)

   See: T-10/94 Kratz v Commission [1995] ECR-SC I-A-99 and II-315, paras 19 and 20; T-100/96 Vicente-Nunez v Commission [1998] ECR-SC I-A-591 and II-1779, paras 37 to 43

2.  It is necessary to give particular protection to opinions of the legal service of an institution. It would be contrary to the public interest, which requires that the institutions be able to benefit from the opinions of their legal services, provided in complete independence, to accept that such internal documents might be produced in proceedings before the Court of First Instance by persons other than the services at whose request they were prepared, without their production having been authorised by the institution concerned or ordered by the Court.

   (see paras 47-48)

   See: Opinion of Advocate General Jacobs in C-350/92 Spain v Council [1995] ECR I-1985, I-1988, para. 35; T-610/97 R Carlsen and Others v Council [1998] ECR II-485, paras 45 to 47

3.  The statement of reasons for a regulation fixing the weightings to be applied to officials' salaries may be confined to indicating, on the one hand, the general situation which led to its adoption and, on the other, the general objectives which it is intended to achieve. It is not required to address the technical aspects of the procedure for calculation.

   (see para. 54)

   See: C-30/96 P Abello and Others v Commission [1998] ECR I-377, para. 89

4.  In the case of a decision by which the appointing authority applies a measure of general application to the individual situation of an official, without having any discretion in that regard, the statement of reasons may be confined to a reference to the legislative measure and to an indication, if necessary in the circumstances of the case, of the reasons why the appointing authority considers that the conditions for the application of that measure to that official are fulfilled. The appointing authority is not required by the second paragraph of Article 25 of the Staff Regulations to state the reasons why the Community legislature adopted the measure.

   (see para. 58)

5.  The Community legislature is required to ensure that officials in Brussels and other places of employment in third countries enjoy equivalent purchasing power by adjusting weightings. That obligation is not extinguished solely because it was not fulfilled within the period prescribed by the Staff Regulations. Even on the assumption that the periods prescribed in Article 13 of Annex X to the Staff Regulations for the adjustment of the weightings are mandatory and that the Community legislature failed to fulfil its obligation to adjust the weightings at the prescribed time, such a breach of the applicable rules does not affect the validity of the regulations fixing weightings.

   (see para. 78)

6.  Unlike the provisions of the Staff Regulations on the fixing of weightings for officials employed within the Member States, Article 13 of Annex X to the Staff Regulations does not provide expressly for retroactive effect where new weightings are fixed for officials posted to third countries. However, the principle of equality of treatment requires that new weightings should apply retroactively with effect from the date on which it is recorded that there is no longer equivalence of purchasing power. That principle, of which equivalence of purchasing power is an expression, underlies, not only Article 64 of the Staff Regulations on the fixing of weightings within the Union, but also Article 13 of Annex X to the Staff Regulations on the fixing of weightings for third countries, and, therefore, the objective to be achieved by fixing new weightings, in other words, respect for the principle of equal treatment, requires that regulations adjusting weightings for third countries should have retroactive effect.

   A provision which expressly gives the salary slips of officials of the Communities posted to third countries provisional status, to make it possible to take account of the retroactive adjustment of the weightings and which provides for the recovery, by the Communities of the amount overpaid as a result of that adjustment, is not contrary to the rules on the withdrawal of administrative measures. The retroactive fixing of those weightings is necessary to ensure equivalence of purchasing power and the salary slips cannot give rise to subjective rights other than those derived from the rules on remuneration which the salary slips implement.

   (see paras 87-90, 93)

   See: C-301/90 Commission v Council [1992] ECR I-221, para. 29; T-177/95 Barraux and Others v Commission [1996] ECR-SC I-A-541 and II-1451, para. 46; T-177/96 Costacurta v Commission [1998] ECR-SC I-A-225 et II-705, para. 47; T-116/96, T-212/96 and T-215/96 Telchini and Others v Commission [1998] ECR-SC I-A-327 and II-947, para. 129