JUDGMENT OF 18. 3.1975 — JOINED CASES 44, 46 AND 49/74 ACTON AND OTHERS v COMMISSION

In Joined Cases 44, 46 and 49/74

THE COURT Composed of: R. Lecourt, President, J. Mertens de Wilmars and A. J. Mackenzie Stuart, Presidents of Chambers, A. M. Donner, R. Monaco, P. Pescatore, H. Kutscher, M. Sørensen (Rapporteur) and A. O'Keeffe, Judges, Advocate-General: A. Trabucchi Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

Admissibility of the actions

The substance of the case

Law

Admissibility

The substance of the case

Costs

I —. Facts and procedure

1. Following strike action in 1970 the Commission decided on 16 December 1970 that it stands to reason that there can be no payment for days on strike and it is the Commission's sole responsibility to apply this principle and that non-payment will take effect in any event as from11 January 1971. This decision was notified to the staff. The Director-General for Personnel and Administration issued three circulars, namely during 1971, on 20 March 1972 and on 29 November 1972, in which he reminded the staff of the Commission's decision of 16 December 1970.

2. The applicants all submitted complaints pursuant to Article 90 (2) of the Staff Regulations, for the purpose of obtaining repayment of the deductions made against their salary.

II —. Conclusions of the parties

III —. Submissions and arguments of the parties

1. In its defence, the Commission makes the following points in particular as to the admissibility of the actions:

2. The applicants adduce the following arguments in their reply to these submissions of inadmissibility:

3. In its rejoinder, the Commission emphasizes that the applicants have in no way challenged its submissions of inadmissibility with regard to the decision of 21 September 1973.

1. The applicants first recall that the strikes of November and December 1972 were undertaken in protest against a Council decision which the staff took to be illegal, and that the Commission shared this view, which was held to be well founded by the Court of Justice.

2. In its defence, the Commission replies, on the basis of a detailed comparative analysis of the law of the Member States, that the deductions are justified — in addition to the immediate justification provided by the decision of 21 March 1973 — by the general legal principle according to which no remuneration is due to officials in the absence of service rendered, in particular as a consequence of participation in an organized stoppage of work. This principle is accepted without exception in the Member States, and is of very general application, whether it flows from the law, from case-law or simply from accepted administrative practice. The implementation of this principle, in the case of absence by reason of strike action, is recognized by case-law to be legitimate, even though the principle itself is not expressly formulated in the law in relation to the actual case of strikes. In the Commission's view it is permissible to take account of national solutions in resolving problems of principle regarding which the Staff Regulations are silent.

3. In their reply, the applicants claim to expose contradictions in the Commission's argument.

4. In its rejoinder, the Commission first claims that the exception' in respect of three days which the applicants believe they can turn to their own account in a somewhat remarkable manner, can in no way be interpreted as being in contradiction with the prevailing rule regarding service rendered. Waiver of part of a debt has never entitled the person benefiting from the waiver to total exemption from the debt. In the Commission's view the exception', which was a matter of expediency, is irrelevant to a dispute regarding the matter of legality.

1. The present actions, brought by 3 number of officials of the Commission of the European Communities, seek the annulment of the Commission's decisions of 21 September and 15 October 1973, in implementation of which a deduction was made from their salary for the month of October 1973 by reason of their participation in strike action during December 1972.

2. The deduction was made at a rate of one-thirtieth of the monthly remuneration per day on strike, although an exception was made for three days of the strike.

3. It is the Commission's major contention that the actions are inadmissible.

4. Regarding the measure adopted on 21 September 1973, which the applicants consider to be a decision, the Commission claims that it was intended merely to publicize the detailed rules for the implementation of its decision of 21 March 1973 concerning deductions to be made in respect of days on strike, and that in any event that measure was not the subject of a complaint pursuant to Article 90 (2) of the Staff Regulations.

5. In so far as the actions are directed against the individual decisions of October 1973 the Commission contends that they are inadmissible on the ground that those decisions were merely taken in implementation of the decision of 21 March 1973 and of a general decision of 16 December 1970, against which the applicants did not enter any formal objection of illegality.

6. The essential purpose of the actions is to obtain the annulment of the individual decisions taken with respect to the applicants.

7. In the context of the right of action made available by Article 91 of the Staff Regulations and in the case of a measure of a general nature designed to be implemented by means of a series of individual decisions affecting all or a large proportion of the officials of an institution, an official taken individually cannot be deprived of his right to invoke the illegality of that measure in order to attack the individual decision which alone allows him certain knowledge of the manner in which and the extent to which his individual interests are affected.

8. Therefore the objection of inadmissibility put forward by the Commission seeks unjustifiably to put an obstacle in the way of the exercise, by officials, of their entitlement to enforce their rights before the Court.

9. The objection must therefore be dismissed.

10. The applicants are challenging the legality of deductions made from their salary as a result of their participation in the strike of December 1972.

11. It must first be ascertained whether, as a general rule, an official who has taken part in a general stoppage of work described as a strike is entitled to receive salary in the absence of service rendered.

12. On this point, according to a principle recognized in the labour law of the Member States, wages and other benefits pertaining to days on strike are not due to persons who have taken part in that strike.

13. This principle may be applied to relations between the institutions of the Communities and their officials, as the Commission has already stated on a previous occasion, in its decision of 16 December 1970, according to which it stands to reason that there can be no payment for days on strike.

14. That statement in no way implies any decision in relation to the existence of an official's right to strike or in relation to the detailed rules which may govern the exercise of such a right.

15. Although certain Member States deny their public servants or certain categories of public servants the right to strike, whereas other Member States allow it, the Staff Regulations of Officials of the European Communities remain silent on the subject.

16. In the present case it is sufficient to note that the collective stoppage of work in relation to which the decisions in dispute were taken was considered by all concerned to be a method of defending collective interests of the staff and was therefore described as strike action.

17. However, the applicants maintain that the deductions are contrary to Article 60 of the Staff Regulations, according to which any unauthorized absence shall be deducted from the annual leave of the official concerned.

18. As has already been noted, it is common ground that the stoppage in December 1972 was a collective action undertaken by the officials concerned for the defence of their interests.

19. It follows that participation in the strike falls outside the scope of Article 60.

20. The applicants further claim that the deductions are incompatible with the provisions of Title VI of the Staff Regulations concerning disciplinary measures.

21. However, the deductions were made not as a punishment for a disciplinary offence but merely as the consequence of failure to perform duties; accordingly, the provisions of Title VI are inapplicable in this case.

22. The fact that the Commission made an exception for three days of the strike in respect of which no deduction was made does not alter this fact.

23. This measure, which was adopted in favour of all officials who took part in the stoppage, whatever the date on which they were absent, was not in fact intended merely to apply to those who did not answer the Commission's call to its staff to return to work after the first three days of the strike.

24. It cannot therefore be considered a disciplinary measure, albeit disguised, directed against them.

25. Finally, the applicants maintain that they are the victims of discrimination on the part of the Commission, since no deductions were made from the salaries of officials of other institutions of the Communities who took part in the strike.

26. The contested decisions cannot be invalidated by the fact that the other institutions chose not to take measures which they could lawfully have adopted.

27. Pursuant to Article 85 of the Staff Regulations any sum overpaid to an official shall be recovered if the recipient was aware that there was no due reason for the payment or if the fact of the overpayment was patently such that he could not have been unaware of it.

28. It is clear from the foregoing that the absence of entitlement to payment for days on strike was so evident that the conditions of Article 85 have been fulfilled in this case.

29. Since that article does not fix a time-limit for recovery of the undue payment, the delay which occurred between the strike and the making of the deductions is not so excessive as to invalidate the decisions in dispute.

30. The actions must therefore be dismissed.

31. The applicants have failed in their actions.

32. According to Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

33. However, according to Article 70 of the Rules of Procedure, in proceedings brought by officials of the Communities, institutions shall bear their own costs.

On those grounds, THE COURT hereby:

1 Dismisses the actions;

2 Orders the parties to bear their own costs.

1 By judgment of 5 June 1972 the Court found in favour of the Commission and ruled that Articles 1 to 4 of that regulation should be annulled (Case 81/72, [1973] ECR 575).