Avis juridique important

Judgment of the Court (First Chamber) of 19 January 1984. - Ivar Andersen and others v Council of the European Communities. - Official - Revision of salary scales. - Case 260/80. European Court reports 1984 Page 00177

Parties Subject of the case Grounds Decision on costs Operative part

1 . OFFICIALS - ACTION - INTEREST IN TAKING ACTION - ACTION FOR ANNULMENT DIRECTED AGAINST BOTH THE DECISION REJECTING THE COMPLAINT AND THE MEASURE ADVERSELY AFFECTING THE APPLICANT - ADMISSIBILITY

( STAFF REGULATIONS , ARTS 90 AND 91 )

IN CASE 260/80

IVAR ANDERSEN AND OTHERS , OFFICIALS OF THE GENERAL SECRETARIAT OF THE COUNCIL OF THE EUROPEAN COMMUNITIES , 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

COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY R . O . DALCQ AND M . GROSSMANN , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF H . J . BABBRUWE , DIRECTOR OF THE LEGAL AFFAIRS DEPARTMENT OF THE EUROPEAN INVESTMENT BANK , 100 BOULEVARD KONRAD-ADENAUER ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE GENERAL SECRETARIAT OF THE COUNCIL OF THE EUROPEAN COMMUNITIES OF 7 OCTOBER 1980 EXPRESSLY REJECTING THE APPLICANTS ' COMPLAINT AGAINST THE COUNCIL ' S DECISION 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 IVAR ANDERSEN AND 173 OTHER OFFICIALS OF THE COUNCIL OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION UNDER ARTICLE 179 OF THE EEC TREATY FOR THE ANNULMENT OF THE DECISION OF THE SECRETARY GENERAL OF THE COUNCIL OF 7 OCTOBER 1980 REJECTING THE COMPLAINT WHICH THE APPLICANTS HAD JOINTLY MADE AGAINST THE DECISION OF THE SECRETARY GENERAL TO CALCULATE THEIR SALARY STATEMENTS FOR FEBRUARY 1980 AND THE STATEMENTS OF PAYMENT OF THE ARREARS 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 ).

2 THE APPLICANTS HAVE STATED THAT THE APPLICATION , LIKE THE COMPLAINT , IS DIRECTED AGAINST THE SALARY STATEMENTS IN SO FAR AS THEY REFLECT THE APPLICATION OF REGULATION NO 160/80 , THE VALIDITY OF WHICH THEY CHALLENGE BY WAY OF AN OBJECTION OF ILLEGALITY .

5 DURING THE PROCEEDINGS THE COUNCIL OBJECTED TO THE PRODUCTION BY THE APPLICANTS OF CERTAIN DOCUMENTS ANNEXED TO THEIR REPLY RELATING TO THE NEGOTIATIONS BETWEEN THE COUNCIL AND THE STAFF REPRESENTATIVES . THEY ARE , IT STATED , INTERNAL DOCUMENTS OF THE COUNCIL WHICH MAY NOT BE PRODUCED IN COURT WITHOUT THE AUTHORIZATION OF THE COUNCIL PURSUANT TO ARTICLE 18 OF ITS RULES OF PROCEDURE OF 24 JULY 1979 ( OFFICIAL JOURNAL L 268 , P . 1 ). IN THE ABSENCE OF SUCH AUTHORIZATION IT IS CLAIMED THAT THOSE DOCUMENTS SHOULD BE REMOVED FROM THE FILE .

6 SINCE THE COUNCIL HAS HOWEVER NOT PUT FORWARD ANY ARGUMENT TO JUSTIFY THE REMOVAL OF THE DOCUMENTS IN QUESTION FROM THE FILE BY REASON OF THEIR NATURE OR CONTENT , ITS OBJECTION MUST BE DISMISSED . IT MAY HOWEVER BE NOTED THAT THE DOCUMENTS DO NOT ADD ANYTHING NEW TO THE OTHER MATTERS IN THE FILE TO ASSIST A DECISION ON THE SUBSTANCE OF THE ACTION .

7 IN THOSE CIRCUMSTANCES IT IS NECESSARY TO CONSIDER THE SUBSTANCE OF THE APPLICATION . THE SIX SUBMISSIONS PUT FORWARD BY THE APPLICANTS ALL CHALLENGE THE VALIDITY OF REGULATION NO 160/80 .

8 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 .

9 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 .

10 THE COUNCIL RECOGNIZES THAT IT WAS NOT UNAWARE OF THE TECHNICAL DIFFICULTIES AND DRAWBACKS WHICH MIGHT BE INVOLVED IN THE METHOD ADOPTED FOR THE INCORPORATION OF THE WEIGHTING INTO THE SCALES OF BASIC SALARY . FOR THAT REASON THE DECISION OF 29 JUNE 1976 LAYING DOWN THE METHOD PROVIDED A REVIEW CLAUSE FOR DETERMINING POSSIBLE SUBSEQUENT IMPROVEMENTS AND ' ' RECTIFYING ANY DISTORTIONS ' ' . HOWEVER , THE COUNCIL WAS UNABLE TO FORESEE THE EXTENT OF THE INCREASES IN REMUNERATION WHICH CERTAIN OFFICIALS RECEIVED . REGULATION NO 160/80 DOES NOT SEEK TO ALTER A SALARY POLICY IN FAVOUR OF CERTAIN OFFICIALS WHICH WAS ACCEPTED ON THE ADOPTION OF THE METHOD OF INCORPORATION BUT ITS SOLE OBJECTIVE IN ACCORDANCE WITH THE STATEMENT OF REASONS ON WHICH IT WAS BASED IS TO RECTIFY THE DISTORTIONS WHICH OCCURRED .

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 OPERATING 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 FOR 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 UNDERTAKINGS ENTERED INTO IN RELATION TO THE ADJUSTMENT OF REMUNERATION .

14 ACCORDING TO THE COUNCIL , THE OBJECTIVE PURSUED BY THE INCORPORATION OF THE WEIGHTINGS INTO THE SALARY SCALES WAS TO REDUCE THE WEIGHTING FOR BELGIUM AND LUXEMBOURG TO 100 IN ORDER TO GIVE THE WEIGHTINGS BACK THEIR TRUE FUNCTION IN ACCORDANCE WITH ARTICLE 64 OF THE STAFF REGULATIONS , NAMELY TO COMPENSATE FOR THE DIFFERENCE IN THE COST OF LIVING IN THE VARIOUS PLACES OF EMPLOYMENT . SINCE THAT INCORPORATION , BY REGULATION NO 3177/76 , WAS BASED ON ARTICLES 64 AND 65 OF THE STAFF REGULATIONS THE RECTIFICATION OF THE DISTORTIONS CAUSED BY THE METHOD OF INCORPORATION WAS EFFECTED PURSUANT TO THE SAME PROVISIONS BY REGULATION NO 160/80 AND IN ACCORDANCE WITH THE REVIEW CLAUSE PROVIDED FOR THAT PURPOSE .

15 THE 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 ADJUSTING 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 .

16 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 POSSIBLE DISTORTIONS .

17 IN THE COUNCIL ' S VIEW THAT SUBMISSION IS IN FACT DIRECTED AGAINST REGULATION NO 3177/76 .

18 IT MUST BE OBSERVED THAT THE 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 , THE LATTER IS PRECISELY INTENDED TO PUT AN END TO SUCH 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 .

19 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 .

20 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 .

21 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 .

22 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 RE-ABSORB 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 .

23 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 .

24 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 THAT 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 .

25 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 .

26 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 .

27 THE COUNCIL HAS CLAIMED THAT THE CONDITIONS FOR APPLYING THAT PROCEDURE WERE NOT SATISFIED IN THIS CASE SINCE REGULATION NO 160/80 IS NOT A MEASURE WITH APPRECIABLE FINANCIAL IMPLICATIONS . THE APPLICANTS HAVE NOT CHALLENGED THAT CONTENTION . IN THOSE CIRCUMSTANCES THE FACT THAT THE PARLIAMENT HAD REQUESTED THE INITIATION OF THE CONCILIATION PROCEDURE IS NOT CAPABLE OF AFFECTING THE LEGALITY OF THE REGULATION AT ISSUE . THAT COMPLAINT ALSO MUST THEREFORE BE REJECTED .

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

COSTS

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .