JUDGMENT OF 30. 9. 1975 - CASE 50/74 ASMUSSEN v COMMISSION AND COUNCIL

In Case 50/74,

THE COURT (Second Chamber) composed of: A. J. Mackenzie Stuart, President of Chamber, P. Pescatore, (Rapporteur) and H. Kutscher, Judges, Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts

II — Written procedure

III — Conclusions of the parties

IV — Submissions and arguments of the parties during the written procedure

A — Admissibility

B — Substance

1. The application for annulment

2. The application for damages

V — Oral procedure

Law

Admissibility

Substance

Costs

I —. Facts

(a). Financial measures to benefit a certain number of local staff at Ispra (approximately 120), carrying out duties of a level identical to those of the two highest grades of establishment staff: 150000 u.a.,

(b). Allowance for the secretarial and switchboard duties of the staff concerned: 42000 u.a. (46 local staff, 80 establishment staff);

(c). Financial measures allowing a salary increase (averaging 7 to 8 %) for all local staff and establishment staff at the Ispra centre: 388000 u.a. (307 local staff, 421 establishment staff).

II —. Written procedure

III —. Conclusions of the parties

IV —. Submissions and arguments of the parties during the written procedure

A —. Admissibility

B —. Substance

1. The application for annulment

(a). On 20 July 1972 the Council authorized the Commission to allocate an overall budgetary provision of 600000 units of account in order, in the first place, to improve the financial position of local staff at Ispra and, secondly, to eliminate serious divergences existing to the detriment of certain establishment staff at Ispra. The Commission decided to use this overall budgetary provision to undertake not only a readjustment of the salaries of the local staff but also various other operations including in particular a general increase in salaries for all local staff and establishment staff at Ispra.

(b). Even if the Commission acted within the scope of the powers conferred by the Council, Article 94 of the Conditions of Employment of Other Servants of the Community placed it under an obligation to take into account local practice in allocating the allowance between the establishment staff. The increase in salary granted to all the establishment staff at Ispra was effected without any local circumstances bringing any change into the financial situation existing in Italy.

(a). With regard to the allegation of misuse of powers, it should be stated, in the light of the observations submitted with regard to the admissibility of the action, that the decision of the Council of 20 July 1972 was in no way altered with regard to the geographical extent of the financial measures while the persons to receive these increases and the amounts to be granted to them were set out in detail or fixed by the decision of the Council of 5 February 1973. Therefore the argument of exceeding its mandate by a decision of a chiefly budgetary nature is without foundation.

(b). With regard to the allegation of discrimination it should be noted that the increase granted to establishment staff at Ispra was within the wider context of the rectification of quite specific discriminatory situations and of the salary increase to be granted to local staff. For this latter operation, the Commission did not need special permission from the Council since it had received the necessary appropriation at the time of the decision of 20 July 1972 and the appropriate powers were conferred on it by Article 79 of the Conditions of Employment of Other Servants. The intention to avoid further discrimination between local staff and establishment staff at Ispra caused the Commission to ask the Council that the establishment staff might receive the same increase; because of the particular situation of the Ispra establishment, the remuneration of the two categories of staff has always been calculated on the same criteria.

(c). The need to increase salaries was essentially due to the quite substantial differences in the salary increases which had already occurred at the different centres and to the increase in the cost of living in Italy in comparison with Germany. The Commission had therefore quite logically asked that the allocation of the appropriation 600000 units of account be made equally in favour of the local staff at Ispra and consequently in favour of the establishment staff at Ispra since these two categories were linked to the same criteria in respect of the movement of their salary scales. These conditions, based on the collective agreement of the metalmeccanici are nevertheless not the sole and exclusive ground for increase. Whilst the Council must take into account this collective agreement it is not obliged to abide by it; it can also take into consideration other local factors which manifest themselves in a general increase in the cost of living which still does not figure in the collective agreement renegotiated every two years.

(a). In making an allocation between all the establishment staff at Ispra, not only amongst certain of them, of the amount of 600000 units of account, the Commission has not gone beyond the mandate conferred upon it by the Council on 20 July 1972; in fact, the meeting of 5 February 1973 re-examined the decision of 20 July 1972.

(b). The argument based on an alleged disregard of local practice and consequently on an alleged infringement of Article 94 of the Conditions of Employment of Other Servants relies on excessive regard for formalities. The Council attaches more weight to the fact that the remuneration shall be determined at each place of employment than to the fact that it must take into account local practice; in addition this expression refers rather to certain details of the remuneration (monthly basis, weekly payment, existence of a salary scale etc.). It in no way follows from the Conditions of Employment of Other Servants that the remuneration of establishment staff may only be altered in the event of change in the local salaries or that there exists an absolute standard for alteration.

(c). With regard to the complaint of discrimination, it should be stated that according to the case-law of the Court of Justice, discrimination can exist only in cases of unequal treatment of equal situations but not in cases of different treatment of situations which are not comparable.

2. The application for damages

V —. Oral procedure

1. This action, brought by 59 members of the establishment staff ot the Joint Nuclear Research Centre employed at the Centre at Karlsruhe, is for the annulment of measures taken by the Council and the Commission allocating an overall budgetary provision of 600000 units of account in order to improve the financial situation of local staff and establishment staff working at the Centre at Ispra with, in consequence, either the inclusion of staff of the same category at other centres in the allocation of the provision, or the granting to those 59 members of equivalent increases by way of damages.

2. The applicants have brought their action against the Council and the Commission simultaneously but have not clearly defined the act adversely affecting them within the meaning of Article 90 of the Staff Regulations of Officials applicable by analogy under Article 46 of the Conditions of Employment of Other Servants of the Communities.

3. It is therefore necessary in the first place to establish what is the subject-matter of this action.

4. On 20 July 1972 the Council consented to make available to the Commission an overall budgetary provision of 600000 units of account in order to improve the financial situation of local staff and of certain establishment staff at Ispra.

5. Following an exchange of views between the Commission and the Committee of Permanent Representatives, and acting on a proposal of the Commission, the Council on 5 February 1973, set out in detail the distribution of this overall budgetary provision specifiying on the one hand the staff who were to benefit and on the other hand the amounts to be granted to each of the categories of staff thus defined.

6. On 3 April 1973 the applicants brought before the Commission a request that the benefit of the increase in salaries granted to the establishment staff at Ispra should also be granted to establishment staff at other establishments of the Joint Research Centre.

7. Since this request was rejected by the Commission on 8 August 1973, the applicants, by a memorandum of 29 October 1973, registered on 30 October, brought a complaint before the Commission against its refusal to accede to their request.

8. This complaint was rejected by the Commission which so informed the applicants in letters of 1 April 1974 which reached them between 18 April and 24 May.

9. A joint application directed against the Council and the Commission jointly, was lodged at the Court Registry on 10 July 1974.

10. As regards the Commission, this application seeks the annulment of the final refusal given by the Commission on 1 April 1974.

11. As regards the Council, the applicants formulated claims of a financial nature for either the allocation of the overall budgetary provision amongst all the staff in the same position as the establishment staff at Ispra or for the payment, by way of damages, of a compensatory amount to re-establish the balance between all the staff employed at different establishments of the Joint Research Centre.

12. For its part, the Commission challenges the admissibility of the application brought in the manner described above.

13. It believes that as it only acted to ensure the execution of the measures ordered by the Council, it has not taken any decision capable of adversely affecting the applicants.

14. For its part, the Council has raised no objection as to admissibility.

15. While substantial doubts may arise with regard to the admissibility of the application, particularly with regard to the failure to specify the subject-matter thereof, nevertheless it should be taken into consideration that this ambiguity arises principally from the methods adopted in coming to the decision in this case; these were such that the measure in question took shape gradually with two institutions, the Council and the Commission, being involved and with the Committee of Permanent Representatives acting as intermediary.

16. In these circumstances it was particularly difficult for the applicants, ill informed of the progress of the decision concerning them, to know to which institution they should apply and to decide at what moment action on their part could affect a measure which might seem to them not to be open to challenge.

17. For this reason there cannot be held against them the fact that they acted simultaneously against the Council and the Commission, that they addressed their initial complaint to the Commission alone, which is their direct employer, and that they chose as the subject-matter of their application, preparatory measures which gave rise to implementing decisions only after the application had been brought.

18. is In these circumstances the substance of the application must be examined.

19. The applicants maintain in the first place, that there should be left out of consideration the decision taken on 5 February 1973 by the Council, acting on a proposal from the Commission, because the precise allocation of the overall budgetary provision to different categories of staff at the Centre at Ispra is contrary to the provisions of the originating decision of the Council taken on 20 July 1972.

20. No contradiction at all is to be found between the decision of 20 July 1972 and that of 5 February 1973.

21. In fact in its decision of 20 July 1972, the Council decided, in a preliminary manner, without fixing more precise details, on the allocation of an overall budgetary provision of 600000 units of account which was intended to improve the financial situation of local staff and certain establishment staff at Ispra.

22. The proposal of the Commission which gave rise to the decision of the Council of 5 February 1973 reflects the agreement made between the Commission and the Committee of Permanent Representatives relating to the details of the distribution of the amount in question.

23. It appears from this sequence of events that the decision of 20 July 1972 was, on the part of the Council, only in the nature of a preparatory decision on principle so that the decision of 5 February 1973 must, for the appreciation of the situation submitted to the Court, be regarded as expressing the final will of the Council.

24. This submission must therefore be rejected.

25. Secondly, the applicants maintain in support both of the action for annulment and of the action for compensation, that the Council and the Commission went beyond the scope of the measures permitted by Article 94 of the Conditions of Employment of Other Servants of the Communities with regard to remuneration, in favour of the establishment staff at Ispra.

26. More precisely they argue that this provision places the institutions under an obligation to determine the salary scales taking into consideration local practice.

27. For the establishments other than that at Ispra, this local practice had been defined by reference to the remuneration of comparable staff employed in national research centres whereas in the absence of such a centre in Italy, they had been determined by reference to the collective agreement of workers in the metal and engineering sector (metalmeccanici).

28. It is established, according to the applicants, that at the time when the increases were granted to the staff at Ispra, this agreement, which is the only decisive criterion for ascertaining local practice for the staff of this establishment, had not been changed.

29. It is for reasons outside this criterion, that is to say, the increase in the cost of living in Italy and the lessening of the differentials between the staffs working within the establishment at Ispra that the institutions granted the increase in question.

30. They are said thereby to have created discrimination to the detriment of comparable staff at other establishments whose financial situation was linked to that of the staff of national research centres.

31. Under Article 94 of the Conditions of Employment of Other Servants of the Community the Council … acting on a proposal from the Commission … and taking into account local practice, shall determine:

32. It is clear from this article, in the first place, that the conditions relating to remuneration are determined specifically at each place of employment.

33. Secondly, it appears that the taking into consideration of local practice need amount to no more than a motivation, that is to say, a simple guide-line which in no way excludes the taking into consideration of other factors.

34. Thus, Article 94 confers on the competent institutions a wide discretionary power to adapt the conditions relating to remuneration of the local staff and of the establishment staff to the particular local circumstances of each of the establishments in question, taking into account the requirements which arise both from the internal working conditions of these establishments and from the considerations resulting from the economic and social situation within which the staff are placed.

35. Criticism may be levelled against the provisions adopted to this end in the light of a comparison with the conditions relating to remuneration of staff employed in the establishments within other Member States, only if it is established that there is, to the detriment of such staff, a misuse of powers committed by the Council and by the Commission in exercising the discretion granted to them by Article 94.

36. However, the applicants have adduced no proof showing that the competent institutions decided on the basis of factors apart from those which Article 94 allows or committed such a misuse of powers.

37. For that reason the application must be dismissed.

38. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

39. The applicants have failed in their application.

40. However, under Article 70 of the Rules of Procedure, in proceedings by servants of the Communities, the institutions shall bear their own costs.

On those grounds, THE COURT (Second Chamber) hereby:

1 Dismisses the application;

2 Orders each of the parties to bear its own costs.