Opinion of Mr advocate-general Reischl

Mr President,

Members of the Court,

I have today to give my opinion in a case which eight European trade unions have brought against the Council of the European Communities. These trade unions have their Head Offices in Brussels, Luxembourg, Karlsruhe, Ispra and Petten, and their task is to represent the interests of the European public service and in particular the interests of officials and other servants of the European Communities. In the present case the question is whether the Council has correctly adjusted the salaries of European officials and other servants in the previous years in accordance with Article 65 of the Staff Regulations.

As is known from another case (Case 81/72, Commission of the European Communities v Council of the European Communities [1973] ECR 575), this adjustment — as was laid down in the decision of the Council of 20 and 21 March 1972 — has to take place during a trial period of three years having regard to criteria which reflect the alteration in the purchasing power of salaries in the public service in the Member States. For this purpose the first criterion is the specific index which is laid down for a reference period, namely each period from 1 July to 30 June of the following year. This index is the alteration in the average basic salary of a selected group of employees taking into account the increase in the cost of living. The other criterion is an index based on the alteration in the total emoluments per head in the public service in the Member States. Salaries are to be fixed within the margin of discretion allowed by these two indices.

The fact that this has not been done correctly in previous years is alleged not only by the eight applicant unions; it is also accepted by the Commission, which has brought independent proceedings against the Council (Case 70/74, Commission v Council of the European Communities).

The Commission came to this view when it submitted the amounts for the period July 1972/June 1973 which were intended to show the increase in purchasing power of the salaries in the public service in each Member State. It observed that a particularly high rate had been announced for Italy, which was explained by the fact that a series of compensations had been incorporated in the basic salaries and the fixing of a general adjustment allowance which has to be taken into account under the terms of the specific index. Before December 1972 and January 1973 on the other hand the relevant compensations and allowances were not taken into account in fixing the specific index under the terms of the salary system obtaining at the time. The Commission inferred from this that several of the decisions taken by the Council in the past under Article 65 of the Staff Regulations had no correct basis. It was convinced that the specific index announced for Italy only partially reflected the increase in purchasing power during the period 1971/72 and that the amounts announced for 1973 reflected not only the increases for the period 1972/73 but also partly the increases for earlier years. As already intimated in a letter dated 10 December 1973 to the Council, the Commission was therefore endeavouring subsequently to work out proposals to deal with the said deficiencies. In a report to the Council dated 14 February 1974 it came to the view that it would be appropriate to provide as compensation a salary adjustment of 5.4 % with effect from 1 July 1972. The proposed regulation which it sent to the Council on 21 March 1972 was accordingly so drafted.

The Council however did not follow it. Rather did it resolve at a meeting on 22 and 23 July 1974 to keep to the decisions on salary adjustment taken in the past — most recently in December 1973 — and not to provide any corrections or supplements by way of compensation for salaried workers.

This caused the unions — and also the Commission — to bring the matter before the Court.

According to the statement of claims the unions are asking the Court to:

I do not need today to make a full investigation of these claims. The Council takes the view that it is not open to the applicant unions to bring the questions in dispute before the Court. It has therefore applied to have the admissibility of the application tried as a preliminary issue under Article 91 of the Rules of Procedure and to have the application declared inadmissible. A hearing took place on 18 February 1975 on the admissibility of the application. I have therefore now simply to examine whether the application is admissible.

1. With regard to the application for annulment of the resolution of the Council of 22 and 23 July 1974, the following must first of all be stated:

2. My examination is however not yet complete. Apart from the application which has just been dealt with there is another in the pleadings, which is directed to a finding that compensation should be made for the errors arising from the decisions of the Council prior to Regulation 2/74. The applicants take the view, at least in so far as the application is based on Article 178 in conjunction with Article 215 of the EEC Treaty, that there are no objections to admissibility so that the application cannot completely be described as inadmissible.

3. To summarize, I propose that the Council's contention should be accepted and the action dismissed as inadmissible. Since in the present case Article 70 of the Rules of Procedures does not apply, the costs of the proceedings must be borne by the applicants.

1 Translated from the German.