Summary
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Keywords
1 . OFFICIALS - STAFF REGULATIONS - REGULATION AMENDING THE STAFF REGULATIONS - FORMULATION PROCEDURE - REGULAR CONSULTATION WITH THE PARLIAMENT - ESSENTIAL PROCEDURAL REQUIREMENT - SCOPE
( MERGER TREATY , ART . 24 )
2 . APPLICATION FOR ANNULMENT - SUBMISSIONS - MISUSE OF POWER - CONCEPT
3 . OFFICIALS - EQUALITY OF TREATMENT - DIFFERENCE OF TREATMENT AS BETWEEN SERVING OFFICIALS AND PENSIONERS - ABSENCE OF DISCRIMINATION
Summary
1 . THE CONSULTATION PROVIDED FOR BY ARTICLE 24 OF THE MERGER TREATY , WHICH IN PARTICULAR ENABLES THE PARLIAMENT EFFECTIVELY TO PARTICIPATE IN THE COMMUNITY ' S LEGISLATIVE PROCESS , IS AN ESSENTIAL FEATURE OF THE INSTITUTIONAL BALANCE WHICH THE TREATIES SEEK TO ACHIEVE . REGULAR CONSULTATION WITH THE PARLIAMENT BEFORE THE ADOPTION OF A REGULATION AMENDING THE STAFF REGULATIONS OF OFFICIALS CONSTITUTES THEREFORE AN ESSENTIAL PROCEDURAL REQUIREMENT , THE DISREGARD OF WHICH RENDERS THE REGULATION IN QUESTION VOID .
THAT REQUIREMENT MAY BE REGARDED AS HAVING BEEN MET WHEN THE REGULATION FINALLY ADOPTED CONFORMS TO THE PROPOSAL SUBMITTED TO THE PARLIAMENT , SO LONG AS CHANGES MADE ARE OF METHOD RATHER THAN OF SUBSTANCE .
2 . THE MISUSE OF POWER HAS A PRECISELY DEFINED SCOPE : IT REFERS TO CASES WHERE AN ADMINISTRATIVE AUTHORITY HAS USED ITS POWERS FOR A PURPOSE OTHER THAN THAT FOR WHICH THEY WERE CONFERRED ON IT .
3 . DISCRIMINATION CONSISTS OF TREATING IN AN IDENTICAL MANNER SITUATIONS WHICH ARE DIFFERENT OR TREATING IN A DIFFERENT MANNER SITUATIONS WHICH ARE IDENTICAL . THE SITUATION OF A SERVING OFFICIAL DIFFERS CONSIDERABLY FROM THAT OF A PENSIONER , SO THAT THERE IS NO DISCRIMINATION IN A CASE WHERE THE COMMUNITY LEGISLATURE ACCORDS TO PENSIONERS TREATMENT WHICH IS NOT IDENTICAL TO THAT APPLIED TO SERVING OFFICIALS .
Parties
IN CASE 817/79
ROGER BUYL , AND NINETEEN OTHER OFFICIALS OF THE COMMISSION EMPLOYED AT THE GEEL JOINT RESEARCH CENTRE ( BELGIUM ), REPRESENTED BY VICTOR BIEL , OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT HIS CHAMBERS 18A RUE DES GLACIS ,
APPLICANT ,
V
COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , JOSEPH GRIESMAR , ACTING AS AGENT , ASSISTED BY DANIEL JACOB , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , JEAN MONNET BUILDING , KIRCHBERG ,
DEFENDANT ,
Subject of the case
APPLICATION IN THE TERMS SET OUT IN THE PLEADINGS ,
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 17 DECEMBER 1979 , THE APPLICANTS , OFFICIALS OF THE COMMISSION EMPLOYED AT GEEL IN BELGIUM , BROUGHT AN ACTION PURSUANT TO ARTICLE 91 OF THE STAFF REGULATION OF OFFICIALS ( HEREINAFTER REFERRED TO AS ' ' THE STAFF REGULATIONS ' ' ) FOR ANNULMENT OF THE COMMISSION ' S DECISIONS FIXING THEIR REMUNERATION FOR APRIL 1979 AND OF THE REJECTION OF THE COMPLAINTS LODGED BY THEM AGAINST THOSE DECISIONS .
2 ARTICLES 63 AND 64 OF THE STAFF REGULATIONS IN THE VERSION IN FORCE UNTIL THE END OF 1978 PROVIDED : ' ' AN OFFICIAL ' S 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 PAR VALUES ACCEPTED BY THE INTERNATIONAL MONETARY FUND . . . ON 1 JANUARY 1965 . AN OFFICIAL ' S REMUNERATION EXPRESSED IN BELGIAN FRANCS SHALL . . . BE WEIGHTED AT A RATE ABOVE , BELOW OR EQUAL TO 100% , DEPENDING ON LIVING CONDITIONS IN THE VARIOUS PLACES OF EMPLOYMENT . . . . THE WEIGHTING APPLICABLE TO THE REMUNERATION OF OFFICIALS EMPLOYED AT THE PROVISIONAL SEATS OF THE COMMUNITIES SHALL BE EQUAL TO 100% AS AT 1 JANUARY 1962 ' ' .
3 IN ACCORDANCE WITH ARTICLE 17 OF ANNEX VII TO THE STAFF REGULATIONS AN OFFICIAL MAY HAVE PART OF HIS EMOLUMENTS TRANSFERRED EITHER REGULARLY OR ON AN EXCEPTIONAL BASIS TO A COUNTRY OTHER THAN THAT IN WHICH HE PERFORMS HIS DUTIES . UNTIL 31 MARCH 1979 ARTICLE 17(4 ) PROVIDED THAT SUCH TRANSFERS WERE TO BE MADE THROUGH THE INSTITUTION WHICH HE SERVES ' ' AT THE OFFICIAL EXCHANGE RATE RULING ON THE DATE OF TRANSFER ' ' . THE ' ' OFFICIAL EXCHANGE RATE ' ' WITHIN THE MEANING OF THAT PROVISION WAS THE LAST PARITY ACCEPTED BY THE INTERNATIONAL MONETARY FUND , WHICH HAD NOT BEEN ALTERED SINCE 1 NOVEMBER 1969 ( FOR EXAMPLE , BFR 13.66 = DM 1 ).
4 ON 21 DECEMBER 1978 THE COUNCIL ADOPTED REGULATION ( EURATOM , ECSC , EEC ) NO 3085/78 ( OFFICIAL JOURNAL 1978 L 369 , P . 6 ). ARTICLE 1 OF THAT REGULATION PROVIDES THAT ARTICLE 63 OF THE STAFF REGULATIONS IS REPLACED BY THE FOLLOWING WORDING :
' ' 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 SUBPARAGRAPH 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 ' ' .
5 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 DEPENDENT RELATIVE 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 STATED 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 WHOSE CURRENCY THE TRANSFER IS MADE AND THE WEIGHTING FOR THE COUNTRY ) IN WHICH THE OFFICIAL IS EMPLOYED . ' ' '
6 ARTICLE 4 OF THE REGULATION PROVIDES THAT IT IS TO ENTER INTO FORCE ON 1 JANUARY 1979 AND IS TO APPLY FROM 1 APRIL 1979 .
7 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 REMUNERATION AS 98.7 FOR THE FEDERAL REPUBLIC OF GERMANY AND 97.8 FOR THE NETHERLANDS .
8 AS FROM 1 APRIL 1979 THE COST IN BELGIAN FRANCS OF THE TRANSFERS WHICH THE APPLICANTS MADE REGULARLY TO THEIR COUNTRIES OF ORIGIN OR TO THE FEDERAL REPUBLIC OF GERMANY INCREASED CONSIDERABLY AND CONSEQUENTLY THE BALANCE OF THEIR REMUNERATION , AFTER THE TRANSFERS , WAS REDUCED .
9 ON 25 AND 27 JUNE 1979 THE APPLICANTS FILED COMPLAINTS UNDER ARTICLE 90(2 ) OF THE STAFF REGULATIONS REGARDING THE INCREASE IN THE COST OF TRANSFERS MADE BY THEM AS FROM APRIL 1979 . ON 28 SEPTEMBER 1979 THE COMMISSION REPLIED TO THE EFFECT THAT , ON THE ONE HAND , IT COULD NOT WITHOUT EXCEEDING ITS AUTHORITY FAIL TO APPLY COUNCIL REGULATIONS WHICH HAD PROPERLY ENTERED INTO FORCE AND , ON THE OTHER HAND , THAT IN SUBSTANCE IT APPROVED THE AMENDMENTS MADE TO THE STAFF REGULATIONS .
10 THE APPLICANTS THEREFORE BROUGHT THIS ACTION ASKING THE COURT TO DECLARE THAT THE DECISIONS DETERMINING THEIR REMUNERATION FOR APRIL 1979 ARE ILLEGAL AND INAPPLICABLE AND TO ORDER THE COMMISSION TO PAY THE APPLICANTS AS FROM APRIL 1979 AND THE DIFFERENCE BETWEEN THE AMOUNTS TO WHICH THEY WERE ENTITLED ON THE BASIS OF THE FORMER PROVISIONS AND THE AMOUNTS ACTUALLY RECEIVED ON THE BASIS OF REGULATION NO 3085/78 , TOGETHER WITH INTEREST AT 6% AS FROM THE VARIOUS DATES ON WHICH THE AMOUNTS FELL DUE .
11 THE APPLICANTS ALLEGE IN THE FIRST PLACE AN INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS . THEY MAINTAIN THAT THE CONTESTED REGULATIONS WERE ADOPTED WITHOUT THE PRIOR CONSULTATION WITH THE PARLIAMENT REFERRED TO IN ARTICLE 24 OF THE TREATY OF 8 APRIL 1965 ESTABLISHING A SINGLE COUNCIL AND A SINGLE COMMISSION OF THE EUROPEAN COMMUNITIES ( HEREINAFTER REFERRED TO AS ' ' THE MERGER TREATY ' ' ) AND THAT THE PARLIAMENT WAS LED INTO ERROR REGARDING THE EFFECT OF THE PROPOSALS SUBMITTED TO IT . CONSULTATION WITH THE EUROPEAN PARLIAMENT TOOK PLACE ON THE BASIS OF A PROPOSAL FROM THE COMMISSION WHICH WAS CONSIDERABLY DIFFERENT FROM THE TEXT OF THE REGULATION ADOPTED BY THE COUNCIL .
12 THE APPLICANTS THEN PUT FORWARD ARGUMENTS CONCERNING THE CONTENT AND EFFECTS OF THE REGULATIONS . THEY CRITICIZE THE APPLICATION OF THE REGULATIONS , MAINTAINING THAT IMPLEMENTATION OF THE NEW WORDING OF ARTICLE 17 OF ANNEX VII TO THE STAFF REGULATIONS BREACHES THE PRINCIPLE OF PROTECTION OF VESTED RIGHTS ; THAT SINCE THE CHANGE IN CONDITIONS LAID DOWN IN THE STAFF REGULATIONS INVOLVED A CONSIDERABLE REDUCTION OF THE NET REMUNERATION RECEIVED BY OFFICIALS IT UNDERMINED THE VESTED RIGHTS OF THE APPLICANTS AND THEIR LEGITIMATE EXPECTATION REGARDING THEIR EMPLOYER ' S CONDUCT ; AND THAT THE APPLICATION OF THE TEXT WAS IN BREACH OF FORMAL COMMITMENTS ENTERED INTO BY THE COMMISSION TO THE EFFECT THAT IT WOULD ENSURE THAT THE MEASURES PROPOSED BY IT WOULD BE STRICTLY NEUTRAL AND WOULD NOT AFFECT THE REAL VALUE OF PAYMENTS MADE TO OFFICIALS IN RESPECT OF THEIR REMUNERATION , PENSIONS AND ALLOWANCES .
13 THE APPLICANTS ALSO COMPLAIN OF THE DISCRIMINATION WHICH , ACCORDING TO THEM , IS INHERENT IN THE TRANSITIONAL PROVISIONS APPLICABLE TO PENSIONS IN VIEW OF THE FACT THAT NO TRANSITIONAL PROVISIONS ARE APPLICABLE TO THE TRANSFERS MADE BY THE APPLICANTS IN ACCORDANCE WITH ARTICLE 17 OF ANNEX VII TO THE STAFF REGULATIONS . THE COMMISSION SHOULD , IN THE DISCHARGE OF ITS DUTY TO ASSIST OFFICIALS , OF WHICH ARTICLE 24 OF THE STAFF REGULATIONS CONSTITUTES AN ILLUSTRATION , HAVE LAID DOWN TRANSITIONAL PROCEDURES FOR COMPENSATION , BY WAY OF AN IMPLEMENTING MEASURE , WHICH WOULD HAVE BEEN COTERMINOUS WITH THE LEGAL AND CONTRACTUAL OBLIGATIONS OF THE OFFICIALS .
INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS
14 IT SHOULD BE NOTED THAT , WHEN CHANGES ARE MADE TO THE STAFF REGULATIONS OF OFFICIALS AND THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS , COMMUNITY LAW REQUIRES THAT THE PARLIAMENT AND THE COURT OF JUSTICE BE CONSULTED AND THAT THE OPINION OF THE STAFF REGULATIONS COMMITTEE BE OBTAINED . ARTICLE 24 OF THE MERGER TREATY PROVIDES THAT ' ' THE COUNCIL SHALL , ACTING BY A QUALIFIED MAJORITY ON A PROPOSAL FROM THE COMMISSION AND AFTER CONSULTING THE OTHER INSTITUTIONS CONCERNED , LAY DOWN THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES AND THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THOSE COMMUNITIES ' ' . ARTICLE 10 OF THE STAFF REGULATIONS PROVIDES THAT THE STAFF REGULATIONS COMMITTEE ( CONSISTING OF REPRESENTATIVES OF THE STAFF COMMITTEES ) IS TO BE CONSULTED BY THE COMMISSION ON ANY PROPOSAL FOR THE REVISION OF THE STAFF REGULATIONS .
15 A DISTINCTION SHOULD HOWEVER BE MADE BETWEEN THE REQUIREMENTS OF COMMUNITY LAW APPLICABLE TO REGULATION NO 3085/78 , WHICH INVOLVES AMENDMENT OF THE STAFF REGULATIONS , AND THOSE APPLICABLE TO REGULATION NO 3086/78 , WHICH ADJUSTS THE WEIGHTINGS . A REGULATION SUCH AS REGULATION NO 3086/78 , WHICH DETERMINES THE WEIGHTINGS , IS ADOPTED BY THE COUNCIL ON A PROPOSAL FROM THE COMMISSION PURSUANT TO ARTICLE 64 OF THE STAFF REGULATIONS , WHICH IMPOSES NO OBLIGATION INVOLVING CONSULTATION .
16 AS REGARDS REGULATION NO 3085/78 , IT IS TRUE THAT ARTICLE 24 OF THE MERGER TREATY PROVIDES FOR CONSULTATION WITH THE OTHER INSTITUTIONS CONCERNED , ONE OF THOSE BEING THE PARLIAMENT . THAT CONSULTATION , WHICH IN PARTICULAR ENABLES THE PARLIAMENT EFFECTIVELY TO PARTICIPATE IN THE COMMUNITY ' S LEGISLATIVE PROCESS , IS AN ESSENTIAL FEATURE OF THE INSTITUTIONAL BALANCE WHICH THE TREATIES SEEK TO ACHIEVE . REGULAR CONSULTATION WITH THE PARLIAMENT CONSTITUTES THEREFORE AN ESSENTIAL PROCEDURAL REQUIREMENT , THE DISREGARD OF WHICH RENDERS THE REGULATION IN QUESTION VOID . IT IS THEREFORE APPROPRIATE TO CONSIDER WHETHER THE REQUIRED CONSULTATION IN FACT TOOK PLACE .
17 ON 1 APRIL 1977 THE COMMISSION , AFTER GIVING NOTICE TO THE STAFF REGULATIONS COMMITTEE , PLACED BEFORE THE COUNCIL A PROPOSAL FOR A COUNCIL REGULATION INTRODUCING THE EUROPEAN UNIT OF ACCOUNT ( EUA ) INTO THE STAFF REGULATIONS ( OFFICIAL JOURNAL 1977 C 99 , P . 5 ). ARTICLE 1 CONCERNS SUBSTITUTION OF THE EUA FOR THE BELGIAN FRANC IN ARTICLE 63 OF THE STAFF REGULATIONS . THE PROPOSAL INCORPORATED THE CHANGES MADE NECESSARY BY THE ADOPTION OF THE EUA , IN PARTICULAR THE SUBSTITUTION OF A NEW TABLE IN ARTICLE 66 OF THE STAFF REGULATIONS , IN WHICH REMUNERATION IS EXPRESSED IN EUROPEAN UNITS OF ACCOUNT , IN PLACE OF THE OLD TABLE IN WHICH REMUNERATION IS EXPRESSED IN BELGIAN FRANCS . ARTICLE 4 OF THE PROPOSAL CONCERNS SUBSTITUTION OF THE FOLLOWING WORDING FOR ARTICLE 17(4 ) OF ANNEX VII TO THE STAFF REGULATIONS :
' ' TRANSFERS PROVIDED FOR IN PARAGRAPHS ( 2 ) AND ( 3 ) SHALL BE MADE ON THE BASIS OF THE VALUE OF THE EUROPEAN UNIT OF ACCOUNT ( EUA ) SPECIFIED IN THE SECOND PARAGRAPH OF ARTICLE 63 OF THE STAFF REGULATIONS ; THE AMOUNTS TRANSFERRED SHALL BE WEIGHTED BY A COEFFICIENT REPRESENTING THE RATIO BETWEEN THE WEIGHTING FOR THE COUNTRY IN THE CURRENCY OF WHICH THE TRANSFER IS MADE AND THE WEIGHTING FOR THE COUNTRY OF THE OFFICIAL ' S EMPLOYMENT . ' '
THE PROPOSAL INCLUDED OTHER PROVISIONS WHICH ARE NOT PERTINENT TO THIS CASE .
18 HAVING RECEIVED THE PROPOSAL AND A REQUEST FOR AN OPINION FROM THE COUNCIL , THE PARLIAMENT GAVE A FAVOURABLE OPINION ( OFFICIAL JOURNAL 1977 C 183 , P . 55 ). THE PARLIAMENT ' S RESOLUTION INCLUDED , INTER ALIA , THE FOLLOWING RECITALS :
' ' WHEREAS THE SOLE PURPOSE OF THE COMMISSION ' S PROPOSALS SUBMITTED TO PARLIAMENT IS TO EXPRESS IN EUROPEAN UNITS OF ACCOUNT THOSE VALUES ( REMUNERATIONS , ALLOWANCES TRANSFERS OF FUNDS , WEIGHTINGS , TAX ) HITHERTO EXPRESSED IN BELGIAN FRANCS , WITHOUT AFFECTING THE RIGHTS OF STAFF OR EXPOSING THEIR EMOLUMENTS TO POSSIBLE FLUCTUATIONS ;
. . . . . .
WHEREAS FOLLOWING THE INTRODUCTION OF THE EUROPEAN UNIT OF ACCOUNT , WEIGHTINGS WILL NO LONGER BE REQUIRED TO CORRECT EXCHANGE PARITIES AND WILL HENCEFORTH BE USED PRINCIPALLY TO TAKE ACCOUNT OF INCREASES IN THE COST OF LIVING , AS ORIGINALLY INTENDED ;
WHEREAS THE COMMISSION HAS GIVEN ASSURANCES THAT ITS PROPOSALS WILL IN NO WAY ADVERSELY AFFECT THE REMUNERATIONS AND OTHER ALLOWANCES OF OFFICIALS AND OTHER SERVANTS OF THE EUROPEAN COMMUNITIES ;
' '
19 THE RESOLUTION ASKS THE COMMISSION TO INTRODUCE , IN GOOD TIME , THE ADMINISTRATIVE ARRANGEMENTS NEEDED TO ENSURE THAT THE APPLICATION OF THE EUROPEAN UNIT OF ACCOUNT DOES NOT DISRUPT EXISTING ADMINISTRATIVE PRACTICES OR EVEN TEMPORARILY HARM THE INTERESTS OF THE EUROPEAN CIVIL SERVICE AND NOTES THE COMMISSION ' S ASSURANCE THAT ITS PROPOSAL WILL IN NO WAY AFFECT THE REAL VALUE OF THE PAYMENTS MADE TO OFFICIALS IN THE FORM OF REMUNERATION , PENSIONS AND ALLOWANCES .
20 IN A COMMUNICATION TO THE COUNCIL DATED 29 NOVEMBER 1978 THE COMMISSION EXPRESSED THE DESIRE THAT ARTICLE 1 OF ITS PROPOSAL OF 1 APRIL 1977 SHOULD BE AMENDED . THE TEXT OF THE NEW PROPOSAL CORRESPONDS TO THE FIRST TWO PARAGRAPHS OF ARTICLE 63 AS AMENDED BY REGULATION NO 3085/78 . IN THE SAME COMMUNICATION , THE COMMISSION PROPOSED A TRANSITIONAL PERIOD OF SIX MONTHS , THAT IS TO SAY UNTIL 1 OCTOBER 1979 , FOR PENSIONERS AND RECIPIENTS OF ALLOWANCES WHOSE NET EMOLUMENTS WOULD SUFFER A REDUCTION FOLLOWING THE UPDATING .
21 REGULATION NO 3085/78 FOLLOWED THAT PROPOSAL FROM THE COMMISSION , WITH A MINOR AMENDMENT TO THE WORDING , ADDING AFTER THE PROPOSED TRANSITIONAL PROVISION A FURTHER TRANSITIONAL PROVISION : ' ' FROM THAT DATE THE DIFFERENCE BETWEEN THE NET AMOUNTS RESULTING FROM THE IMPLEMENTATION OF THIS REGULATION AND THOSE RECEIVED IN SEPTEMBER 1979 SHALL BE REDUCED BY 1/10 PER MONTH ' ' .
22 IT APPEARS FROM THE REPORT OF THE PARLIAMENT ' S COMMITTEE ON BUDGETS THAT THE PARLIAMENT WAS IN A POSITION TO ASSESS THE POSSIBLE IMPACT OF THE COMMISSION ' S INITIAL PROPOSAL ON PENSIONS AND TRANSFERS MADE UNDER ARTICLE VII TO THE STAFF REGULATIONS AND THAT ASSURANCES GIVEN TO THE PARLIAMENT BY THE COMMISSION MUST BE UNDERSTOOD TO THE EFFECT THAT THE ' ' NEUTRALITY ' ' OF THE PROPOSAL CONCERNED THE ENTIRE REMUNERATION OF OFFICIALS AND THAT IN CERTAIN CASES THE COMMISSION ' S PROPOSAL MIGHT HAVE THE EFFECT OF INCREASING THE COST OF TRANSFERS .
23 IN FACT , THE REGULATION FINALLY ADOPTED CONFORMED TO THE PROPOSAL SUBMITTED TO THE PARLIAMENT APART FROM THE SUBSTITUTION OF UPDATED EXCHANGE RATES FOR THE EUA AND THE TRANSITIONAL PROVISIONS INTENDED TO ALLEVIATE THE EFFECT OF THE PROVISIONS OF THE REGULATION FOR A SPECIFIC PERIOD WITH REGARD TO CERTAIN PENSIONERS . AS REGARDS THE SUBSTITUTION OF THE UPDATED EXCHANGE RATES FOR THE EUA , IT SHOULD BE NOTED THAT THE RATES ADOPTED EXACTLY REFLECTED THE VALUE OF THE EUA IN TERMS OF NATIONAL CURRENCIES AS AT 1 APRIL 1978 , SO THAT THE AMENDMENT TO THE INITIAL PROPOSAL CONSTITUTED IN REALITY A CHANGE OF METHOD RATHER THAN OF SUBSTANCE . AS REGARDS THE TRANSITIONAL PROVISION FOR THE BENEFIT OF CERTAIN PENSIONERS , IT SHOULD BE NOTED THAT THAT PROVISION CORRESPONDED BROADLY TO THE WISH EXPRESSED BY THE PARLIAMENT .
24 IN THOSE CIRCUMSTANCES , FURTHER CONSULTATION WITH THE PARLIAMENT REGARDING THE CONTESTED PROVISIONS WAS UNNECESSARY .
CONTENT AND EFFECTS OF THE REGULATIONS
25 THE APPLICANTS ARE OF THE OPINION THAT THE NEW SYSTEM FOR CALCULATING THE EXCHANGE RATES FOR TRANSFERS ENCROACHES UPON THEIR VESTED RIGHTS . ON THE BASIS OF THE PROVISIONS IN FORCE UNTIL APRIL 1979 THE APPLICANTS ENTERED INTO BINDING COMMITMENTS FROM WHICH THEY COULD NOT BE DISCHARGED FOR A SPECIFIC PERIOD OF TIME . THE EXISTENCE FOR MANY YEARS OF THE FACILITY FOR TRANSFERRING REGULARLY A CERTAIN PART OF THEIR MONTHLY REMUNERATION INDUCED THEM TO ENTER INTO THOSE COMMITMENTS AND THEY HAD EVERY RIGHT TO BELIEVE THAT THE SYSTEM WOULD NOT BE CHANGED TO THEIR DISADVANTAGE BEFORE THEIR COMMITMENTS , PARTICULARLY WITH REGARD TO LOANS , HAD EXPIRED . THEY ARE THEREFORE ENTITLED TO THE MAINTENANCE IN FORCE OF THE OLD TRANSFER SYSTEM , OR AT LEAST TO A TRANSITIONAL SYSTEM CONTINUING TO APPLY THE PREVIOUS EXCHANGE RATES UNTIL THEY ARE CLEAR OF THEIR COMMITMENTS . THE COMMISSION GAVE A FORMAL UNDERTAKING TO THE PARLIAMENT TO ENSURE THAT THE MEASURES TO BE ADOPTED WOULD BE STRICTLY ' ' NEUTRAL ' ' AND WOULD NOT AFFECT THE REAL VALUE OF THE PAYMENTS MADE TO OFFICIALS IN THE FORM OF REMUNERATION , PENSIONS AND ALLOWANCES . THE POWER OF COMMUNITY INSTITUTIONS IS LIMITED BY THE PRINCIPLE OF RESTRICTED AUTHORITY . BY DECREASING THE REAL VALUES , THE INSTITUTIONS CONTRAVENED THAT PRINCIPLE , WHICH CONSTITUTES A MISUSE OF POWER .
26 FURTHERMORE THE APPLICANTS MAINTAIN THAT THE ABSENCE , IN THE CONTESTED REGULATIONS , OF TRANSITIONAL PROVISIONS IN FAVOUR OF SERVING OFFICIALS SIMILAR TO THOSE OF WHICH PENSIONERS HAVE THE BENEFIT BREACHES THE PRINCIPLE OF NON-DISCRIMINATION .
27 IT IS TRUE THAT THE ADOPTION OF THE UPDATED EXCHANGE RATES HAD THE EFFECT OF INCREASING THE COST OF THE TRANSFERS MADE TO THE FEDERAL REPUBLIC OF GERMANY PURSUANT TO ARTICLE 17 OF ANNEX VII TO THE STAFF REGULATIONS . THE AMENDMENT OF THE PARITIES AND OF ARTICLE 17 OF ANNEX VII TO THE STAFF REGULATIONS WAS , HOWEVER , MADE IN ORDER TO DO AWAY WITH A SYSTEM WHICH WAS SUCH AS TO GIVE BENEFITS TO OFFICIALS EMPLOYED IN CERTAIN COUNTRIES AND INVOLVE UNJUSTIFIED LOSSES FOR THE COMMUNITY . AS REGARDS THE APPLICANTS , WHO ARE ALL EMPLOYED IN BELGIUM , THERE WAS NO VALID REASON FOR THEM TO BENEFIT FROM ARTIFICIAL EXCHANGE RATES FOR MAKING THOSE TRANSFERS . NEITHER THE COUNCIL NOR THE COMMISSION HAD GIVEN ANY ASSURANCES TO OFFICIALS THAT THE MORE FAVOURABLE SYSTEM OF TRANSFERS WOULD BE MAINTAINED INDEFINITELY . IN THOSE CIRCUMSTANCES , THE ADOPTION OF THE REAL RATES COULD NOT BREACH ANY PRINCIPLE RELATING TO PROTECTION OF THEIR LEGITIMATE EXPECTATIONS .
28 AS REGARDS THE ARGUMENT BASED ON THE PRINCIPLE OF RESTRICTED AUTHORITY , IT IS SUFFICIENT TO DRAW ATTENTION TO THE FACT THAT THE CONCEPT OF MISUSE OF POWER HAS A PRECISELY DEFINED SCOPE . IT REFERS TO CASES WHERE AN ADMINISTRATIVE AUTHORITY HAS USED ITS POWERS FOR A PURPOSE OTHER THAN THAT FOR WHICH THEY WERE CONFERRED ON IT . IN THIS CASE , NO SUCH USE OCCURRED . THE COUNCIL WAS EXERCISING THE POWERS CONFERRED ON IT IN THE NORMAL WAY WHEN , BY MEANS OF REGULATION NO 3085/78 , IT DIRECTLY ACHIEVED THE LAWFUL OBJECTIVE PURSUED BY IT , NAMELY THE UPDATING OF THE EXCHANGE RATES .
29 AS REGARDS THE ALLEGED DISCRIMINATION ARISING FROM THE TRANSITIONAL MEASURES AFFECTING THE RECIPIENTS OF PENSIONS , IT IS SUFFICIENT TO POINT OUT THAT DISCRIMINATION IN THE LEGAL SENSE CONSISTS OF TREATING IN AN IDENTICAL MANNER SITUATIONS WHICH ARE DIFFERENT OR TREATING IN A DIFFERENT MANNER SITUATIONS WHICH ARE IDENTICAL . THE SITUATION OF A SERVING OFFICIAL DIFFERS CONSIDERABLY FROM THAT OF A PENSIONER , SO THAT THERE IS NO DISCRIMINATION IN A CASE WHERE THE COMMUNITY LEGISLATURE ACCORDS TO PENSIONERS TREATMENT WHICH IS NOT IDENTICAL TO THAT APPLIED TO SERVING OFFICIALS .
30 CONSIDERATION OF THE SUBMISSIONS OF THE APPLICANT HAVING SHOWN THAT NONE OF THE GROUNDS RELIED UPON MAY BE HELD , THE ACTION MUST BE DISMISSED AS UNFOUNDED .
Decision on costs
COSTS
31 UNDER ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .
32 NEVERTHELESS , PURSUANT TO ARTICLE 70 OF THE RULES OF PROCEDURE , THE INSTITUTIONS ARE TO BEAR THE COSTS WHICH THEY HAVE INCURRED IN PROCEEDINGS COMMENCED AGAINST THEM BY OFFICIALS OF THE COMMUNITIES .
Operative part
ON THOSE GROUNDS ,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION ;
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .
Full & Egal Universal Law Academy