61980J0262

1 . OFFICIALS - APPLICATION - MEASURE ADVERSELY AFFECTING - CONCEPT - SALARY STATEMENT APPLYING THE RULES IN FORCE IN RELATION TO REMUNERATION

( STAFF REGULATIONS , ARTS 90 AND 91 )

2.OBJECTION OF INADMISSIBILITY - ARTICLE 184 OF THE EEC TREATY - OBJECTIVE

1 . THE SALARY STATEMENT PREPARED BY AN INSTITUTION AND ISSUED TO AN OFFICIAL MAY CONSTITUTE A MEASURE ADVERSELY AFFECTING HIM AND BE THE SUBJECT OF A COMPLAINT AND ULTIMATELY AN ACTION . THE FACT THAT THE INSTITUTION CONCERNED IS ONLY APPLYING THE REGULATIONS IN FORCE IS IRRELEVANT IN THAT RESPECT .

2 . ARTICLE 184 OF THE EEC TREATY GIVES EXPRESSION TO A GENERAL PRINCIPLE CONFERRING UPON ANY PARTY TO PROCEEDINGS THE RIGHT TO CHALLENGE INCIDENTALLY , WITH A VIEW TO OBTAINING THE ANNULMENT OF A DECISION ADDRESSED TO HIM , THE VALIDITY OF THE PROVISIONS OF REGULATIONS WHICH FORM THE LEGAL BASIS THEREOF .

IN CASE 262/80 ,

KIRSTEN ANDERSEN AND OTHERS , OFFICIALS OF THE SECRETARIAT GENERAL OF THE EUROPEAN PARLIAMENT , REPRESENTED BY GEORGES VANDERSANDEN , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF JANINE BIVER , 2 RUE GOETHE ,

APPLICANTS ,

V

EUROPEAN PARLIAMENT , REPRESENTED BY MARTIN SCHMIDT , DIRECTOR OF PERSONNEL AND SOCIAL AFFAIRS , ASSISTED BY ALEX BONN , OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ALEX BONN , 22 COTE D ' EICH ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF THE IMPLIED DECISION BY THE EUROPEAN PARLIAMENT REJECTING THE COMPLAINTS SUBMITTED BY THE APPLICANTS AGAINST THE DECISION OF THE EUROPEAN PARLIAMENT TO PAY THEIR REMUNERATION ON THE BASIS OF COUNCIL REGULATION NO 160/80 OF 21 JANUARY 1980 AMENDING THE STAFF REGULATIONS OF OFFICIALS AND THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES ( OFFICIAL JOURNAL L 20 , P . 1 ),

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 25 NOVEMBER 1980 KIRSTEN ANDERSEN AND 28 OTHER OFFICIALS OF THE EUROPEAN PARLIAMENT BROUGHT AN ACTION UNDER ARTICLE 179 OF THE EEC TREATY FOR THE ANNULMENT OF THEIR SALARY STATEMENTS FOR FEBRUARY AND MARCH 1980 IN SO FAR AS THOSE STATEMENTS WERE BASED ON THE PROVISIONS OF COUNCIL REGULATION NO 160/80 OF 21 JANUARY 1980 AMENDING THE STAFF REGULATIONS OF OFFICIALS AND THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES ( OFFICIAL JOURNAL L 20 , P . 1 ).

2 THE APPLICANTS HAVE STATED THAT THEY ARE CHALLENGING BY THEIR ACTION THE INDIVIDUAL DECISIONS ADDRESSED TO THEM AND , BY WAY OF AN OBJECTION OF ILLEGALITY , THE VALIDITY OF REGULATION NO 160/80 ON WHICH THE CONTESTED DECISIONS ARE BASED .

3 THE EUROPEAN PARLIAMENT RAISES TWO OBJECTIONS OF INADMISSIBILITY WITH REGARD TO THE ACTION . IN THE FIRST PLACE IT CONTENDS THAT THE SALARY STATEMENTS THE ANNULMENT OF WHICH IS SOUGHT ARE MERELY THE IMPLEMENTATION BY THE ADMINISTRATION OF THE PROVISIONS OF REGULATIONS PROVIDING FOR THE REMUNERATION OF OFFICIALS ; ACCORDINGLY THEY CANNOT BE REGARDED AS DECISIONS SINCE NO ADMINISTRATIVE AUTHORITY HAS TO DECIDE ANY PROBLEM WHATSOEVER .

4 THAT OBJECTION MUST BE DISMISSED . IT FOLLOWS FROM THE CASE-LAW OF THE COURT AND IN PARTICULAR THE JUDGMENT OF 27 OCTOBER 1981 ( JOINED CASES 783 AND 786/79 VENUS AND OBERT V COMMISSION AND COUNCIL ( 1981 ) ECR 2445 ) THAT THE SALARY STATEMENT PREPARED BY AN INSTITUTION AND ISSUED TO AN OFFICIAL MAY CONSTITUTE A MEASURE ADVERSELY AFFECTING HIM AND BE THE SUBJECT OF A COMPLAINT AND ULTIMATELY AN ACTION . THE FACT THAT THE INSTITUTION CONCERNED IS ONLY APPLYING THE REGULATIONS IN FORCE IS IRRELEVANT IN THAT RESPECT .

5 IN THE SECOND PLACE THE EUROPEAN PARLIAMENT CONTENDS THAT THE OBJECTION OF ILLEGALITY PUT FORWARD BY THE APPLICANTS IS NOT ADMISSIBLE . WHERE THE APPLICANTS CANNOT BRING A DIRECT ACTION AGAINST A REGULATION THE PARLIAMENT CLAIMS THAT THEY CANNOT , AS IS APPARENT FROM THE CASE-LAW OF THE COURT , ACHIEVE THE SAME END BY THE INDIRECT MEANS OF AN OBJECTION OF ILLEGALITY . ARTICLE 184 OF THE TREATY DOES NOT APPLY IN THE PRESENT CASE SINCE IT REFERS TO THE SPECIAL CASE OF AN APPLICANT WHO WOULD HAVE BEEN ABLE TO BRING A DIRECT ACTION UNDER ARTICLE 173 BUT HAS ALLOWED THE TIME FOR DOING SO TO EXPIRE .

6 ON THAT ISSUE IT SUFFICES TO RECALL , AS THE COURT HAS STATED INTER ALIA IN THE JUDGMENT OF 6 MARCH 1979 ( CASE 92/78 , SIMMENTHAL V COMMISSION ( 1979 ) ECR 777 ) THAT ARTICLE 184 OF THE EEC TREATY GIVES EXPRESSION TO A GENERAL PRINCIPLE CONFERRING UPON ANY PARTY TO PROCEEDINGS THE RIGHT TO CHALLENGE INCIDENTALLY , WITH A VIEW TO OBTAINING THE ANNULMENT OF A DECISION ADDRESSED TO HIM , THE VALIDITY OF THE PROVISIONS OF REGULATIONS WHICH FORM THE LEGAL BASIS THEREOF .

7 IT FOLLOWS THAT THE SUBMISSIONS OF THE PARLIAMENT IN RELATION TO ADMISSIBILITY MUST BE DISMISSED AND THAT IT IS NECESSARY TO CONSIDER THE SUBSTANCE OF THE APPLICATION .

8 ALL SIX SUBMISSIONS PUT FORWARD BY THE APPLICANTS CHALLENGE THE VALIDITY OF REGULATION NO 160/80 . THE EUROPEAN PARLIAMENT HAS LEFT THIS MATTER TO THE COURT .

9 THE FIRST SUBMISSION ALLEGES AN INACCURATE STATEMENT OF REASONS IN THE REGULATION . THE RECITALS IN THE PREAMBLE THERETO REFER TO THE NEED TO CORRECT ' ' UNINTENDED ' ' INCREASES IN REMUNERATION RESULTING FROM THE INCORPORATION OF THE WEIGHTING INTO THE SALARY SCALES OF OFFICIALS , WHEREAS IN FACT , IT IS CLAIMED , THE COUNCIL HAD BEEN ALERTED TO THE RISKS INHERENT IN THE MANNER IN WHICH THE INCORPORATION WAS EFFECTED AND THE DISTORTIONS WHICH WOULD RESULT THEREFROM ; IN NEVERTHELESS PROCEEDING THEREWITH THE COUNCIL THUS ACTED WITH FULL KNOWLEDGE OF THE SITUATION .

10 THE INCORPORATION OF THE WEIGHTING INTO THE BASIC SALARY SCALES LAID DOWN BY THE STAFF REGULATIONS WAS DECIDED UPON BY THE COUNCIL ON 29 JUNE 1976 AS PART OF A NEW METHOD OF ADJUSTING THE REMUNERATION OF OFFICIALS . THE INCORPORATION WAS EFFECTED BY COUNCIL REGULATION NO 3177/76 OF 21 DECEMBER 1976 ADJUSTING THE REMUNERATION AND PENSIONS OF OFFICIALS AND OTHER SERVANTS OF THE EUROPEAN COMMUNITIES AND THE WEIGHTINGS APPLIED THERETO ( OFFICIAL JOURNAL L 359 , P . 1 ). THE REGULATION INTRODUCED NEW SCALES WITH EFFECT FROM 1 JANUARY 1977 AND REDUCED THE WEIGHTING FOR BELGIUM AND LUXEMBOURG , WHICH HAD BEEN 157.8 FROM 1 JULY 1976 , TO 100 .

11 IT MUST BE OBSERVED THAT THE RECITALS IN THE PREAMBLE TO REGULATION NO 160/80 EXPRESSLY MENTION ' ' THAT UNINTENDED INCREASES IN REMUNERATION RESULTED FROM THE MANNER IN WHICH THE 157.8% WEIGHTING WAS INCORPORATED IN THE BASIC SALARY SCALES ' ' AND FOR THAT REASON ' ' THIS SITUATION SHOULD BE RECTIFIED BY ADJUSTING THE BASIC SALARY SCALES ' ' . THUS THE REGULATION ITSELF STATES IN THE RECITALS THERETO THAT IT IS INTENDED TO CORRECT A SITUATION WHICH APPEARED FOLLOWING THE REFORM OF 1976 AND IN WHICH INCREASES IN REMUNERATION WERE REVEALED WHICH DID NOT RELATE TO THAT REFORM .

12 THOSE CONSIDERATIONS CONSTITUTE A SUFFICIENT STATEMENT OF REASONS ON WHICH TO BASE THE OPERATION OF REVISING THE SALARY SCALES . IN PARTICULAR IT BY NO MEANS APPEARS FROM THE DECISIONS AND REGULATIONS PRIOR TO REGULATION NO 160/80 THAT THE COUNCIL , AS PART OF THE METHOD FOR ADJUSTING THE REMUNERATION ADOPTED IN 1976 , INTENDED TO FAVOUR CERTAIN OFFICIALS AS AGAINST OTHERS RATHER THAN TO ARRANGE FOR THE INCORPORATION OF THE WEIGHTING INTO THE SCALE IN A MANNER WHICH WOULD NECESSITATE SUBSEQUENT CORRECTION OF CERTAIN DISTORTIONS THE IMPORTANCE OF WHICH , MOREOVER , IT UNDER-ESTIMATED AT THE TIME .

13 THE SECOND SUBMISSION ALLEGES INFRINGEMENT OF RULES OF LAW INASMUCH AS THE COUNCIL DID NOT OBSERVE THE CRITERIA WHICH IT HAD ITSELF LAID DOWN IN ADOPTING THE DECISION OF 1976 IN RELATION TO THE METHOD OF ADJUSTING REMUNERATION . WHEREAS REGULATION NO 3177/76 CONSTITUTED A CORRECT APPLICATION OF THE METHOD OF ADJUSTMENT DEFINED BY THAT DECISION REGULATION NO 160/80 WAS INTENDED TO CALL THAT APPLICATION IN QUESTION , IT IS CLAIMED , BY READJUSTING THE BASIC SALARIES AND THUS BREAKING UNDERTAKINGS ENTERED INTO IN RELATION TO THE ADJUSTMENT OF REMUNERATION .

14 THAT SUBMISSION MUST BE DISMISSED . ON THE ONE HAND IT OVERLOOKS THE FACT THAT THE COUNCIL IN THE DECISION OF 1976 HAD INSERTED A REVIEW CLAUSE RELATING IN PARTICULAR TO DISTORTIONS WHICH MIGHT ARISE FROM THE INCORPORATION OF THE WEIGHTING INTO THE SCALE . ON THE OTHER HAND THE METHOD ADOPTED BY THE SAID DECISION WAS INTENDED TO IMPLEMENT ARTICLE 65 OF THE STAFF REGULATIONS ; ALTHOUGH IT MIGHT THUS RESULT IN CIRCUMSCRIBING THE EXERCISE BY THE COUNCIL OF THE DISCRETION CONFERRED UPON IT BY ARTICLE 65 IN ADUSTING REMUNERATION , IT DOES NOT AFFECT REGULATION NO 160/80 , WHICH IS A REGULATION AMENDING THE STAFF REGULATIONS PURSUANT TO ARTICLE 24 OF THE TREATY ESTABLISHING A SINGLE COUNCIL AND A SINGLE COMMISSION OF THE EUROPEAN COMMUNITIES AND ADOPTED ACCORDING TO THE PROCEDURES AND WITH THE GUARANTEES INVOLVED IN SUCH AN AMENDMENT .

15 IN THEIR THIRD SUBMISSION THE APPLICANTS MAINTAIN THAT THE COUNCIL HAS INFRINGED THE PRINCIPLE OF DUE CARE INASMUCH AS THE DISTORTIONS WHICH IT SOUGHT TO REMOVE BY REGULATION NO 160/80 WERE THE ACTUAL RESULTS OF THE IMPLEMENTATION OF REGULATION NO 3177/76 . THE COUNCIL COULD HAVE AVOIDED THE OCCURRENCE OF DISTORTIONS IF IT HAD POSTPONED THE INCORPORATION OF THE WEIGHTING INTO THE SALARY SCALE AS THE STAFF REPRESENTATIVES PROPOSED IN ORDER TO CARRY OUT THE NECESSARY CALCULATIONS FOR A CORRECT ASSESSMENT OF THE POSSIBLE DISTORTIONS .

16 IT MUST BE OBSERVED THAT THAT SUBMISSION OVERLOOKS THE FACT THAT THE OBJECTIVE OF REGULATION NO 3177/76 DIFFERS FROM THAT OF REGULATION NO 160/80 . WHEREAS THE FORMER IS INTENDED TO IMPLEMENT THE COUNCIL DECISION OF 29 JUNE 1976 BY INCORPORATING THE WEIGHTING INTO THE SCALE SUBJECT TO SUBSEQUENT REVIEW , ESPECIALLY AS REGARDS POSSIBLE DISTORTION . IT WAS IN FACT THE COUNCIL ' S TASK TO REMOVE AS SOON AS POSSIBLE DISTORTION CONSISTING IN A FAVOURABLE TREATMENT OF CERTAIN OFFICIALS AS AGAINST OTHERS AS REGARDS THEIR PECUNIARY ENTITLEMENTS . THE SUBMISSION MUST THEREFORE BE REJECTED .

17 THE FOURTH AND FIFTH SUBMISSIONS COMPLAIN THAT IN ADOPTING REGULATION NO 160/80 THE COUNCIL INFRINGED THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION AND THE VESTED RIGHTS OF THE APPLICANTS .

18 THOSE SUBMISSIONS ARE FIRST OF ALL BASED ON THE ARGUMENT THAT REGULATION NO 160/80 SUBSTANTIALLY DEPARTS FROM THE METHOD WHICH THE COUNCIL HAD SELECTED IN JUNE 1976 . IT NEVERTHELESS APPEARS FROM THE PREVIOUS CONSIDERATIONS THAT THE REGULATION IS OUTSIDE THE FIELD OF APPLICATION OF THE METHOD ADOPTED FOR IMPLEMENTING ARTICLE 65 OF THE STAFF REGULATIONS .

19 THE TWO SUBMISSIONS ARE ALSO BASED ON A SLIGHTLY DIFFERENT ARGUMENT , NAMELY THAT THE RIGHTS ACQUIRED BY OFFICIALS UNDER REGULATION NO 3177/76 CANNOT BE CALLED IN QUESTION BY THE COUNCIL SAVE IN THE EVENT OF THE ADOPTION OF A NEW METHOD FOR ADJUSTING REMUNERATION .

20 IN THAT RESPECT IT MUST BE REMEMBERED THAT REGULATION NO 160/80 , WHICH HAS RETROACTIVE EFFECT FROM 1 JULY 1979 , PROVIDES THAT NO PART OF THE AMOUNTS PAID BETWEEN THAT DATE AND THE DATE OF ITS ENTRY INTO FORCE , NAMELY 27 JANUARY 1980 , IS TO BE REQUIRED TO BE REPAID . FURTHERMORE , IT PROVIDES TRANSITIONAL MEASURES INTENDED PROGRESSIVELY TO REABSORB THE DISTORTIONS WITHOUT BRINGING ABOUT A REDUCTION IN THE AMOUNTS ACTUALLY PAID . MOREOVER , THE EFFECT OF COUNCIL REGULATION NO 161/80 OF 21 JANUARY 1980 EFFECTING THE ANNUAL REVIEW OF REMUNERATION UNDER THE REVISED SCALES ( OFFICIAL JOURNAL L 20 , P . 5 ) WAS TO INCREASE , ALSO FROM 1 JULY 1979 , ( THE REMUNERATION RESULTING FROM THE APPLICATION OF REGULATION NO 160/80 IN SUCH A WAY THAT , APART FROM CERTAIN SPECIAL CASES , THE REDUCTIONS IN BASIC SALARIES RESULTING FROM THE REVISION OF THE SCALE WERE IMMEDIATELY RE-ABSORBED .

21 IN THOSE CIRCUMSTANCES THERE HAS BEEN DISREGARD NEITHER OF LEGITIMATE EXPECTATIONS NOR OF VESTED RIGHTS . THE APPLICANTS ' ARGUMENT TO THE EFFECT THAT TO DETERMINE WHETHER THERE HAS BEEN SUCH DISREGARD IT IS NECESSARY TO ASCERTAIN , NOT WHETHER OR NOT THERE HAS BEEN A REDUCTION IN THE AMOUNTS ACTUALLY PAID BUT WHETHER THE RATE OF REMUNERATION HAS BEEN FROZEN FOR A CERTAIN PERIOD , MUST BE REJECTED IN CIRCUMSTANCES SUCH AS THE PRESENT , IN WHICH THE REGULATION AT ISSUE IS INTENDED PRECISELY TO PUT AN END TO UNJUSTIFIED INCREASES SUCH AS THOSE RESULTING FROM THE SCALE PREVIOUSLY APPLICABLE .

22 THE SIXTH SUBMISSION ALLEGES INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS . IN ADOPTING REGULATION NO 160/80 OF 21 JANUARY 1980 , WHEREAS THE OPINION OF THE EUROPEAN PARLIAMENT WAS NOT GIVEN UNTIL 18 JANUARY 1980 , THE COUNCIL , IT IS CLAIMED , FAILED IN ITS DUTY TO TAKE ACCOUNT OF THE OPINION ; IN DOING SO IT ALSO DISREGARDED THE RULES GOVERNING NEGOTIATIONS BETWEEN THE COUNCIL AND STAFF , WHICH ASSUME THAT ALL THE FACTS OF THE PROBLEM ARE KNOWN . FINALLY , THE COUNCIL DISREGARDED THE JOINT DECLARATION ON INTER-INSTITUTIONAL CONCILIATION SINCE THE PARLIAMENT HAD IN VAIN REQUESTED THAT THE CONCILIATION PROCEDURE BE INITIATED IN THE PRESENT CASE .

23 THE COMPLAINT THAT THE OPINION OF THE EUROPEAN PARLIAMENT WAS NOT TAKEN INTO ACCOUNT HAS NO FACTUAL BASIS . IT IS APPARENT FROM THE DOCUMENTS PREPARED BY THE SECRETARIAT OF THE COUNCIL AND INCLUDED IN THE FILE THAT AFTER BEING INFORMED THAT THE OPINION ADOPTED BY THE PARLIAMENT AT THE SITTING ON 18 JANUARY 1980 DID NOT DEPART FROM THE DRAFT OPINION OF WHICH IT HAD COGNIZANCE THE PERMANENT REPRESENTATIVES COMMITTEE DECIDED ON 18 JANUARY 1980 TO RESUME CONSIDERATION OF THE PROBLEM OF STAFF REMUNERATION AND TO RECOMMEND TO THE COUNCIL THE ADOPTION OF TWO REGULATIONS AND CERTAIN DECLARATIONS TO BE INCLUDED IN THE MINUTES OF THE COUNCIL SITTING . IT THUS APPEARS THAT THE OPINION OF THE PARLIAMENT WAS PROPERLY TAKEN INTO ACCOUNT BY THE COUNCIL .

24 AS REGARDS INTER-INSTITUTIONAL CONCILIATION , THE APPLICANTS HAVE REFERRED TO THE JOINT DECLARATION OF THE EUROPEAN PARLIAMENT , THE COUNCIL AND THE COMMISSION OF 4 MARCH 1975 ( OFFICIAL JOURNAL C 89 , P . 1 ). THAT DECLARATION PROVIDES THAT THE CONCILIATION PROCEDURE WHICH IT LAYS DOWN MAY BE FOLLOWED FOR COMMUNITY MEASURES OF GENERAL APPLICATION WHICH HAVE APPRECIABLE FINANCIAL IMPLICATIONS , AND OF WHICH THE ADOPTION IS NOT REQUIRED BY VIRTUE OF EXISTING MEASURES .

25 IT FOLLOWS THAT THE PROCEDURE WAS NOT DEVISED FOR CASES IN WHICH THE COMMUNITY MEASURES IN QUESTION DOES NOT HAVE APPRECIABLE FINANCIAL IMPLICATIONS . AS REGARDS REGULATION NO 160/80 THE APPLICANTS HAVE NOT ESTABLISHED OR EVEN ALLEGED THAT IT HAS SUCH IMPLICATIONS . IN THOSE CIRCUMSTANCES THEIR COMPLAINT MUST BE REJECTED SINCE THE SOLE FACT THAT THE PARLIAMENT HAD REQUESTED THE INITIATION OF THE CONCILIATION PROCEDURE IS NOT CAPABLE OF AFFECTING THE LEGALITY OF THE REGULATION .

26 IT FOLLOWS FROM ALL THE FOREGOING THAT THE ACTION MUST BE DISMISSED IN ITS ENTIRETY .

COSTS

27 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES THE INSTITUTIONS ARE TO BEAR THEIR OWN COSTS .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .