61985J0091

OFFICIALS - CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS - TEMPORARY STAFF PAID FROM RESEARCH AND INVESTMENT APPROPRIATIONS - BREACH OF PRINCIPLE OF EQUAL TREATMENT - SALARY BELOW THAT OF OTHER TEMPORARY STAFF IN COMPARABLE POSITIONS AND PERFORMING DUTIES OF THE SAME NATURE

BY LAYING DOWN A TABLE OF SALARIES APPLYING ONLY TO MEMBERS OF THE TEMPORARY STAFF IN CATEGORIES C AND D ASSIGNED TO PERMANENT POSTS PAID FROM RESEARCH AND INVESTMENT APPROPRIATIONS WHICH PROVIDED FOR SALARIES WHICH WERE APPROXIMATELY 5% BELOW THOSE PAID TO OTHER MEMBERS OF THE TEMPORARY STAFF , ARTICLE 1 ( 5 ) OF REGULATION NO 2615/76 INFRINGED , IN A CASE IN WHICH A DIFFERENCE IN TREATMENT WAS NOT OBJECTIVELY JUSTIFIED , THE PRINCIPLE OF EQUAL PAY FOR OFFICIALS AND OTHER SERVANTS IN COMPARABLE POSITIONS AND PERFORMING DUTIES OF THE SAME NATURE .

IN CASE 91/85

ANNE-MARIE CHRIST ( NEE CLEMEN ),

OLGA PRIPLATA ( NEE SCHNEIDER ),

ELIZABETH MCDONNELL

MEMBERS OF THE TEMPORARY STAFF OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY JEAN-NOEL LOUIS , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF NICOLAS DECKER , 16 AVENUE MARIE-THERESE ,

APPLICANTS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , DIMITRIOS GOULOUSSIS , ACTING AS AGENT , ASSISTED BY ROBERT ANDERSEN , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF GEORGIOS KREMLIS , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR ANNULMENT OF THE SALARY STATEMENTS ISSUED BETWEEN MAY AND DECEMBER 1984 ,

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 5 APRIL 1985 , OLGA PRIPLATA , ELIZABETH MCDONNELL AND ANNE-MARIE CHRIST , MEMBERS OF THE TEMPORARY STAFF OF THE COMMISSION , BROUGHT AN ACTION FOR THE ANNULMENT OF THE SALARY STATEMENTS ISSUED TO THEM BETWEEN MAY AND DECEMBER 1984 ( PRIPLATA AND MCDONNELL ) AND JULY AND DECEMBER 1984 ( CHRIST ).

2 THE APPLICANTS WERE ENGAGED BY THE COMMISSION AS MEMBERS OF THE TEMPORARY STAFF ' TO FILL A POST WHICH IS INCLUDED IN THE LIST OF POSTS APPENDED TO THE SECTION OF THE BUDGET RELATING TO EACH INSTITUTION AND WHICH THE BUDGETARY AUTHORITIES HAVE CLASSIFIED AS TEMPORARY ' ( ARTICLE 2 ( A ) OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES , HEREINAFTER REFERRED TO AS ' THE CONDITIONS ' ). THEY WERE CLASSIFIED IN CATEGORY C .

3 THE TEMPORARY POSTS TO WHICH THEY WERE ASSIGNED WERE TRANSFORMED INTO PERMANENT POSTS WITH EFFECT FROM 1 JANUARY 1984 . AT THE END OF APRIL OR THE BEGINNING OF MAY 1984 , THE APPLICANTS SIGNED A SUPPLEMENTARY AGREEMENT AMENDING THEIR CONTRACTS OF EMPLOYMENT ACCORDING TO WHICH THEY WERE TO BE REGARDED AS TEMPORARY STAFF EMPLOYED UNDER ARTICLE 2 ( D ) OF THE CONDITIONS WITH EFFECT FROM 1 JANUARY 1984 .

4 THE APPLICANTS CLAIM THAT THEY REALIZED AT THE TIME WHEN THEY RECEIVED THEIR SALARY THAT THEIR NEW STATUS RESULTING FROM THE AMENDMENT OF THEIR CONTRACT INVOLVED A REDUCTION OF APPROXIMATELY 5% IN THEIR SALARY . CONSEQUENTLY , THEY SUBMITTED COMPLAINTS AGAINST THE AMENDMENT UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS ; THOSE COMPLAINTS WERE REJECTED BY DECISIONS OF 4 , 10 AND 21 JANUARY 1985 .

5 THE DIFFERENCE IN SALARY RESULTED FROM THE FIFTH PARAGRAPH OF ARTICLE 20 OF THE CONDITIONS , ADDED BY ARTICLE 1 ( 5 ) OF COUNCIL REGULATION NO 2615/76 OF 21 OCTOBER 1976 AMENDING REGULATION ( EEC , EURATOM , ECSC ) NO 259/68 AS REGARDS THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES ( OFFICIAL JOURNAL , L 299 , P . 1 ). ACCORDING TO THAT PROVISION , STAFF ENGAGED TO FILL TEMPORARILY A PERMANENT POST PAID FROM RESEARCH AND INVESTMENT APPROPRIATIONS AND INCLUDED IN THE LIST OF POSTS APPENDED TO THE BUDGET RELATING TO THE INSTITUTION CONCERNED ARE TO BE PAID A SALARY DIFFERENT FROM THAT PAID TO OTHER MEMBERS OF THE TEMPORARY STAFF . THE SALARIES PAID TO RESEARCH STAFF IN CATEGORIES C AND D ARE APPROXIMATELY 5% BELOW THOSE PAID TO OTHER MEMBERS OF THE TEMPORARY STAFF IN THE SAME CATEGORIES .

6 THE APPLICANTS CLAIMS THAT THAT PROVISION IS UNLAWFUL ON THE GROUND THAT IT IS CONTRARY TO THE SUPERIOR PRINCIPLE OF EQUAL TREATMENT , RECOGNIZED BY THE COURT ; ACCORDING TO THAT PRINCIPLE , THEY SHOULD NOT BE PAID A SALARY BELOW THAT OF OTHER OFFICIALS AND MEMBERS OF STAFF IN A COMPARABLE POSITION AND PERFORMING THE SAME DUTIES AND , FURTHERMORE , THEIR SALARY SHOULD NOT BE DIMINISHED WHEN THEY HAVE CONTINUED TO PERFORM THE SAME DUTIES AS THEY PERFORMED BEFORE THEY WERE APPOINTED UNDER ARTICLE 2 ( D ). THEY ADD THAT THAT DISCRIMINATION EXISTS ONLY IN REGARD TO MEMBERS OF STAFF IN CATEGORIES C AND D , WHEREAS THOSE IN CATEGORIES A AND B DO NOT SUFFER A REDUCTION IN SALARY .

7 THE COMMISSION CONTESTS THE PROPOSITION THAT IT IS DISCRIMINATORY TO ACCORD TO MEMBERS OF THE TEMPORARY STAFF PAID FROM RESEARCH AND INVESTMENT APPROPRIATIONS TREATMENT DIFFERENT FROM THAT ACCORDED TO OTHER MEMBERS OF THE TEMPORARY STAFF , SINCE THEY ARE NOT RECRUITED IN ACCORDANCE WITH THE SAME CRITERIA AND ARE NOT PAID FROM THE SAME APPROPRIATIONS AS OTHER MEMBERS OF THE TEMPORARY STAFF . ACCORDING TO THE COMMISSION , THE FACT THAT MEMBERS OF STAFF PERFORMING THE SAME DUTIES RECEIVE DIFFERENT SALARIES IS , IN ITSELF , IN NO WAY UNLAWFUL . FURTHERMORE , THE FACT OF MOVING FROM AN APPOINTMENT UNDER ARTICLE 2 ( A ) TO ONE UNDER ARTICLE 2 ( D ) ALSO HAS ADVANTAGES FOR THE APPLICANTS , SUCH AS THE POSSIBILITY OF MORE SECURE EMPLOYMENT AND THE RIGHT TO A PENSION , WHICH MAY BE SUBSTITUTED FOR THE RIGHT TO A SEVERANCE GRANT , THE ONLY RIGHT PROVIDED FOR UNDER THEIR PREVIOUS STATUS . THUS , AN OVERALL ASSESSMENT OF THEIR NEW STATUS MUST SHOW THAT IT IS IN GENERAL MORE FAVOURABLE , AND IN ANY CASE , THE ADVANTAGES COMPENSATE FOR THE SMALL REDUCTION IN SALARY INVOLVED .

8 BEFORE ENTERING INTO A DISCUSSION OF THE ARGUMENTS PUT FORWARD BY THE PARTIES , IT MUST BE POINTED OUT THAT THE DIFFERENCE IN TREATMENT COMPLAINED OF WAS ABOLISHED BY ARTICLE 7 OF COUNCIL REGULATION NO 1578/85 OF 10 JUNE 1985 AMENDING THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES ( OFFICIAL JOURNAL , L 154 , P . 1 ), WHICH REPEALED THE RELEVANT PARAGRAPH OF ARTICLE 20 OF THE CONDITIONS AS WELL AS THE SPECIAL TABLE OF SALARIES . WHEN , IN JULY 1983 , THE COMMISSION SUBMITTED TO THE COUNCIL A PROPOSAL FOR A REGULATION AMENDING THE CONDITIONS , WHICH WAS INTENDED , IN PARTICULAR , TO REPEAL THE SPECIAL TABLE OF SALARIES AND TO ENSURE THAT RESEARCH STAFF IN CATEGORIES C AND D RECEIVED THE SAME SALARY AS OTHER MEMBERS OF THE TEMPORARY STAFF IN THE CORRESPONDING CATEGORIES , IT STATED THE REASONS FOR ITS PROPOSAL IN THE FOLLOWING TERMS : ' THE HISTORICAL REASONS FOR THIS DIFFERENTIAL , WHICH HAS EXISTED SINCE THE NEW ARRANGEMENTS CAME INTO FORCE ON 30 OCTOBER 1976 , SHOULD NOW GIVE WAY TO THE PRINCIPLE OF EQUALITY . THE DIFFERENTIAL CANNOT BE MAINTAINED IN THE FACE OF EQUAL WORK AND EQUAL RESPONSIBILITY . THE PROPOSAL THEREFORE DOES AWAY WITH THIS DIFFERENTIAL ( ARTICLE 6 ), WHICH THE EMPLOYEES CONCERNED REGARD AS DISCRIMINATORY ' .

9 IN THOSE CIRCUMSTANCES , IT MUST BE CONSIDERED WHETHER THE PROVISION CONTAINED IN ARTICLE 20 OF THE CONDITIONS , IN THE FORM IN WHICH IT WAS IN FORCE UNTIL REPEALED BY ARTICLE 7 OF REGULATION NO 1578/85 , INFRINGES THE PRINCIPLE OF EQUAL PAY FOR OFFICIALS IN COMPARABLE POSITIONS , LAID DOWN , IN PARTICULAR , IN THE JUDGMENT OF 31 MAY 1979 ( CASE 156/78 NEWTH V COMMISSION ( 1979 ) ECR

10 AS THE COURT STATED IN ITS JUDGMENT OF 2 DECEMBER 1982 ( JOINED CASES 198 TO 202/81 MICHELI AND OTHERS V COMMISSION ( 1982 ) ECR 4145 ) UNEQUAL TREATMENT OF OFFICIALS CONSTITUTES A BREACH OF THAT PRINCIPLE ONLY WHERE THE DISCRIMINATION IS NOT OBJECTIVELY JUSTIFIED .

11 IN THIS CASE , THE COMMISSION CLAIMS TO FIND OBJECTIVE JUSTIFICATION FOR THE DIFFERENCE IN TREATMENT , FIRSTLY , IN THE FACT THAT THE PERSONS ASSIGNED TO THE RESEARCH AND INVESTMENT PROGRAMMES WERE INITIALLY RECRUITED AS LOCAL OR ESTABLISHMENT STAFF AND , SECONDLY , IN THE FACT THAT THE NEW STATUS GRANTED TO THE PERSONS CONCERNED IS IN GENERAL MORE FAVOURABLE THAN THEIR PREVIOUS ONE .

12 THE FIRST EXPLANATION CANNOT BE ACCEPTED . FROM THE DATE ON WHICH THEY WERE APPOINTED , THE APPLICANTS WERE MEMBERS OF THE TEMPORARY STAFF . WITH REGARD TO THE SECOND EXPLANATION PUT FORWARD , IT IS SUFFICIENT FIRSTLY TO NOTE THAT , AFTER THEIR TRANSFER TO THE NEW CATEGORY OF TEMPORARY STAFF , THE APPLICANTS CONTINUED TO PERFORM EXACTLY THE SAME DUTIES AS BEFORE AND , SECONDLY , TO CONSIDER WHETHER THE REDUCTION IN THEIR SALARY AS COMPARED WITH WHAT THEY WERE PREVIOUSLY RECEIVING AND WITH THE SALARY OF OTHER MEMBERS OF THE TEMPORARY STAFF IS JUSTIFIED AND COMPENSATED FOR BY AN IMPROVEMENT IN THEIR CONDITIONS OF EMPLOYMENT FROM OTHER POINTS OF VIEW .

13 IN THAT REGARD , THE COMMISSION POINTS TO THE GREATER SECURITY OF EMPLOYMENT WHICH THE APPLICANTS ENJOY UNDER THEIR NEW STATUS . THE REPLY TO THAT ARGUMENT IS THAT , ALTHOUGH IT IS CORRECT THAT , UNDER THE APPLICANTS ' PREVIOUS STATUS , THEIR CONTRACTS WERE FOR THE DURATION OF A SPECIFIED PROGRAMME , IT IS NONE THE LESS TRUE THAT THOSE CONTRACTS COULD BE RENEWED IF THE PROGRAMMES CONCERNED WERE CONTINUED OR REPLACED BY OTHERS . FURTHERMORE , THE FACT THAT THE EXISTING POSTS WERE TRANSFORMED INTO PERMANENT POSTS SHOWS THAT THERE WAS NO INTENTION OF TERMINATING THE PROGRAMMES . IT MUST ALSO BE POINTED OUT THAT , ALTHOUGH UNDER THE APPLICANTS ' NEW STATUS THE POSTS TO WHICH THEY HAVE BEEN APPOINTED ARE PERMANENT , THEY DO NOT THEREBY OBTAIN ANY PARTICULAR GUARANTEE OF EMPLOYMENT SINCE , AS MEMBERS OF THE TEMPORARY STAFF , THEIR CONTRACTS MAY BE TERMINATED AT ANY TIME WITH THREE MONTHS ' NOTICE .

14 UNDER THEIR NEW STATUS , THE APPLICANTS ALSO HAVE THE RIGHT TO A RETIREMENT PENSION . HOWEVER , ON THE ONE HAND , THAT IS NO MORE THAN AN EXPECTATION WHICH PRESUPPOSES THAT CERTAIN CONDITIONS WILL BE FULFILLED , IN PARTICULAR THAT THE APPLICANTS WILL HAVE BEEN EMPLOYED BY THE COMMUNITIES FOR A CERTAIN MINIMUM PERIOD , WHICH WAS NOT THE CASE AT THE TIME WHEN THEIR POSTS WERE TRANSFORMED . ON THE OTHER HAND , UNDER THEIR PREVIOUS STATUS , THE APPLICANTS HAD THE RIGHT TO A SEVERANCE GRANT , WHICH MAY BE REGARDED AS EQUIVALENT TO A CAPITALIZED RETIREMENT PENSION . IN ANY EVENT , THAT DISTINCTION HAS IN THE MEANTIME BEEN ABOLISHED AND ALL MEMBERS OF THE TEMPORARY STAFF NOW HAVE THE RIGHT TO A PENSION .

15 UNDER THOSE CIRCUMSTANCES , IT MAY NOT BE CONSIDERED THAT CONFERMENT OF SUCH A BASIC PUBLIC SERVICE RIGHT AS THE RIGHT TO A RETIREMENT PENSION CAN JUSTIFY , IN EXCHANGE , A REDUCTION IN SALARY .

16 IN ORDER TO JUSTIFY THE FACT THAT THE REDUCTION IN SALARY AFFECTED ONLY MEMBERS OF STAFF IN CATEGORIES C AND D , TO THE EXCLUSION OF THOSE IN CATEGORIES A AND B , THE COMMISSION AGAIN RELIES ON BUDGETARY CONSIDERATIONS , CONTENDING THAT THE STATE OF COMMUNITY FINANCES DID NOT AT THE TIME , BY REASON OF THE LARGE NUMBERS OF STAFF IN THOSE CATEGORIES , MAKE IT POSSIBLE TO PAY THE NORMAL SALARY TO MEMBERS OF STAFF IN CATEGORIES C AND D OF THE NEW CAREER STRUCTURE , WHEREAS THE SAME DIFFICULTY DID NOT EXIST IN REGARD TO MEMBERS OF STAFF IN CATEGORIES A AND B OWING TO THE LIMITED NUMBER OF PERSONS CONCERNED .

17 APART FROM THE FACT THAT THAT ARGUMENT IS DIFFICULT TO UNDERSTAND IF IT IS BORNE IN MIND THAT , BEFORE THE TRANSFORMATION OF THEIR POSTS , THE APPLICANTS AND OTHER MEMBERS OF STAFF IN CATEGORIES C AND D RECEIVED THE SALARY NORMALLY PAID TO STAFF IN THOSE CATEGORIES , IT MUST BE HELD THAT BUDGETARY CONSIDERATIONS CANNOT JUSTIFY DIFFERENCES IN PAY BETWEEN MEMBERS OF STAFF BELONGING TO THE SAME CATEGORY AND PERFORMING IDENTICAL OR COMPARABLE DUTIES .

18 THE COMMISSION ALSO SEEKS TO DENY THE APPLICANTS THE RIGHT TO CONTEST THE APPLICATION OF THE NEW ARRANGEMENTS ON THE GROUND THAT THEY FORMALLY ACCEPTED THEM BY SIGNING THE SUPPLEMENTARY AGREEMENT AMENDING THEIR CONTRACTS OF EMPLOYMENT . THAT OBJECTION CANNOT BE ACCEPTED SINCE SIGNATURE OF THE SUPPLEMENTARY AGREEMENTS CANNOT BE REGARDED , IN THIS CASE , AS ACCEPTANCE OF ALL THE DETAILS OF THE NEW ARRANGEMENTS . FIRSTLY , THE APPLICANTS HAD NO OTHER CHOICE IF THEY DID NOT WISH TO LOSE THEIR EMPLOYMENT , AS CAN BE SEEN FROM THE DECISION OF THE COMMISSION REJECTING THEIR COMPLAINTS . SECONDLY , THE SUPPLEMENTARY AGREEMENT IN NO WAY INDICATED THAT THE AMENDMENT OF THE CONTRACT INVOLVED A REDUCTION IN THEIR SALARY , AND THE APPLICANTS MAY WELL HAVE BEEN UNAWARE OF THAT CONSEQUENCE HAVING REGARD TO THE COMPLEXITY OF THE RULES AT ISSUE .

19 CONSEQUENTLY , IT MUST BE HELD THAT , BY LAYING DOWN A TABLE OF SALARIES APPLYING ONLY TO MEMBERS OF THE TEMPORARY STAFF IN CATEGORIES C AND D ASSIGNED TO PERMANENT POSTS PAID FROM RESEARCH AND INVESTMENT APPROPRIATIONS WHICH PROVIDED FOR SALARIES WHICH WERE APPROXIMATELY 5% BELOW THOSE PAID TO OTHER MEMBERS OF THE TEMPORARY STAFF , ARTICLE 1 ( 5 ) OF REGULATION NO 2615/76 INFRINGED , IN A CASE IN WHICH A DIFFERENCE IN TREATMENT WAS NOT OBJECTIVELY JUSTIFIED , THE PRINCIPLE OF EQUAL PAY FOR OFFICIALS IN COMPARABLE POSITIONS AND PERFORMING DUTIES OF THE SAME NATURE .

20 THAT PROVISION MAY NOT THEREFORE BE RELIED UPON AS A LEGAL BASIS FOR THE SALARY STATEMENTS WHICH ARE THE SUBJECT OF THIS ACTION .

21 CONSEQUENTLY , THE SALARY STATEMENTS OF OLGA PRIPLATA AND ELIZABETH MCDONNELL FOR THE MONTHS OF MAY TO DECEMBER OF 1984 AND THOSE OF ANNE-MARIE CHRIST FOR THE MONTHS OF JULY TO DECEMBER 1984 MUST BE ANNULLED TO THE EXTENT TO WHICH THE SALARY PAID TO THE APPLICANTS WAS LOWER THAN THAT PAID TO MEMBERS OF THE TEMPORARY STAFF IN CATEGORIES C AND D IN THE SAME POSITION .

COSTS

22 UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . AS THE COMMISSION HAS FAILED IN ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

( 1 ) ANNULS THE SALARY STATEMENTS OF OLGA PRIPLATA AND ELIZABETH MCDONNELL FOR THE MONTHS OF MAY TO DECEMBER OF 1984 AND THOSE OF ANNE-MARIE CHRIST FOR THE MONTHS OF JULY TO DECEMBER 1984 TO THE EXTENT TO WHICH THE SALARY PAID TO THE APPLICANTS WAS LOWER THAN THAT PAID TO THE MEMBERS OF THE TEMPORARY STAFF IN CATEGORIES C AND D IN THE SAME POSITION ;

( 2 ) ORDERS THE COMMISSION TO PAY THE COSTS .