Opinion of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. The cases to which this Opinion refers are primarily concerned with the consequences of Council Regulation No 3087 of 21 December 1978 on the remuneration of officials employed in the small town of Ispra, in the Province of Varese, Northem Italy. There are essentially two points at issue: the adequacy of the new weighting laid down by the abovementioned regulation in relation to the cost of living and the date as from which the weighting should have been applied. A number of the cases also raise the problem of the adverse effects of Council Regulations Nos 3085 and 3086/78 on the cost for officials of transferring part of their remuneration abroad. In that respect the Court has already dismissed the officials' claims in Cases 817, 828 and 1253/79 by its three judgments of 4 February 1982 ([1982] ECR 245, 269 and 297).

2. The first question which must once again be considered is that of admissibility.

3. Turning now to the substance of the case, I propose to examine in the first place the question of the weighting applied to officials employed at the Ispra Joint Research Centre, a question with which I shall deal in general terms, without reference to the views which I have put forward regarding the admissibility of the various applications on this matter.

4. According to the first paragraph of Article 64 of the Staff Regulations of Officials 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. Article 65 (2) of the Staff Regulations goes on to provide that In the event of a substantial change in the cost of living, the Council shall decide, within two months, what adjustments should be made to the weightings and as appropriate to apply them retrospectively.

5. The method used to calculate the weighting for Italy indicated in Regulation No 3087/78 is apparent from the Commission's statements and from the documents produced by it in the course of the proceedings. The bases adopted for the calculation were a survey carried out in 1975, which referred only to the cost of living in capital cities, and an inquiry carried out in 1965 to 1967 on family budgets, the results of which for Italy were brought up to date by means of statistical calculations based on the changes in the cost of living in Rome. Also, the Statistical Office of the Commission carried out a survey in Varese in May 1976, covering 230 items (excluding rent, heating and electricity with were the subject of a later survey). It ascertained that the cost of living in Varese was higher than the level reflected by the weighting for Italy then in force — the latter was 112.04 % whilst the cost of living in Varese had jumped to 126.4 %. In order to make those dau fully comparable, it was necessary to add 6.7 % to the value for Rome in order to reflect the different evolution of the cost of living as between Italy and Belgium between December 1975 and June 1976. The difference between Rome and Varese was thus found to be 7.66 % (112.04 + 6.07 = 118.74; 126.4 — 118.74 = 7.66). Moreover, as a result of the survey of rents carried out in Varese the figure for the cost of living in Varese was reduced from 126.5 to 121.5 (see note from the Statistical Office of the Commission dated 17. 8. 1976, attached to the Commission's observations of 12. 1. 1982). The difference between Rome and Varese was therefore reduced further, becoming 2.76 % (121.5 — 118.74). It was nevertheless a substantial difference. But it was not taken into account by Regulation No 3087/78, which adopted a weighting calculated solely by reference to the cost of living in the capital.

6. The applicants' second complaint concerns the date on which Regulation No 3087/78 entered into force. It has been seen that the new weighting laid down in that regulation was applied as from 1 January 1978, whilst according to the applicants the date of application should have been 1 January 1976 because by thai year considerable increases in the cost of living had already occurred and thus the obligation to update the weighting has arisen. By failing to act in that manner, the Council is alleged to have infringed Article 65 (2) of the Staff Regulations.

7. All the applicants, with the exception of Mrs Roumengous, also maintain that the Commission has failed in the duty to assist officials imposed on it by Article 24 of the Staff Regulations, both because it submitted to the Council a proposal for a regulation — which was adopted without amendment as Regulation No 3087/78 — which did not take account of the difference between the cost of living in Rome and that in Varese and which applied the new weighting only as from 1 January 1978, and because it complied with the regulation in question.

8. Finally, all the applicants complain that Regulation No 3087/78, by laying down a single weighting for Italy and applying it only as from 1 January 1978, is contrary to the principle of equality, since the remuneration paid to officials at the Ispra Centre is lower, in terms of purchasing power, than that of officials assigned to other places of employment. In my opinion, this complaint is well founded but I have already dealt with the problems of equality of treatment when considering the infringement of Article 64 of the Staff Regulations of Officials, when I stated that the latter provision is to be interpreted in the light of the principle of equality. It follows that the infringement of Article 64, which I consider to have occurred in this case, at the same time constitutes a breach of that principle.

9. According to the applicant Roumengous, the statement of the reasons on which Regulation No 3087/78 is based is insufficient and therefore vitiated by an infringement of essential procedural requirements. But this complaint seems to me to be groundless. It is not in doubt that, pursuant to Article 190 of the EEC Treaty, the reasons on which regulations are based must be stated. However, the regulation in question is preceded by an adequate, albeit brief, statement of reasons. The sole recital in the preamble states that the need to correa the weighting for Italy is a result of the findings of the statistical surveys carried out by the Communities. Thus a reference — admittedly not a detailed reference — was made to the factors on which the Council based its decision. I would add that the statistical surveys were probably well known to the officials employed in Varese, whose staff representatives spent about three years negotiating the adjustment of the weighting which was then decided upon by means of the regulation in question. Moreover, the preamble to the regulation mentioned the Commission's proposal (the text of which is the same as that subsequently adopted by the Council) and that proposal was accompanied by a report illustrating in detail the reasons underlying the measure. I am of the opinion that, since the measure is a legislative one, a statement of reasons of that kind is adequate, in the light of Article 190 of the EEC Treaty to which I referred earlier.

10. The applicants Birke, Bruckner, Amesz, Bauch, Flamm, Hoffmann, Knoeppel and Ni j man also contested the calculation of their remuneration for April 1979, alleging that it was unlawfully reduced as a result of the greater cost of the partial transfers of their remuneration to other countries, in consequence of the provisions of Regulations Nos 3085 and 3086/78.

11. According to the applicants in Cases 543/79 and 799/79 and Joined Cases 532, 534, 567, 600, 618 and 660/79, the rules on the basis of which the cost of the transfers abroad of part of their remuneration was determined as from April 1979 are vitiated

12. The applicants seek to rely upon the principle of equality and maintain that the institutions, in regulating the levels of remuneration and, in particular, the procedures for transfers abroad of part of that remuneration, should take into account the fact that officials do not spend all their income in the country in which they are employed but also spend some in other States. That applies in particular in the case of officials employed in a country other than that of their origin and the institutions should allow officials freely to choose whether to bring their families with them or have them reside elsewhere, whether to have their children study in their country of origin or in the country where the official is employed or possibly in another country, and so on. By ensuring those conditions, the Communities would discharge their obligation to guarantee equality of treatment as between employees assigned to a country other than their national State and those employed in their country of origin.

13. I shall not dwell upon the alleged infringement of vested rights and of the principle of protection of legitimate expectation, two matters of which I spoke at length in my Opinion of 14 May 1981, in which I concluded that neither allegation was well founded.

14. A number of applicants also complain, in the alternative, of the absence of transitional provisions in Regulation No 3085/78 for the entry into force of the new transfer rules, which would, by setting them off to some extent against future real increases in salary, mitigate the adverse effects of those rules. In the further alternative they claim that the transitional provisions contained in Article 4 of Regulation No 3085 for the new pension system should be extended to the legal system for transfers. I would point out that, according to that provision, the new system applied only as from 1 October 1979 to pensions and allowances with underwent a reduction by comparison with the former system and also that after 1 October 1979 the difference between the amounts resulting from application of the new rules and the amounts received for September 1979 was reduced at the rate of one-tenth per month.

15. If it is acknowledged that Regulation No 3085/78 is not vitiated by the defects alleged by the applicants, there is no foundation for any of the claims for payment or for the claims in the alternative for damages, which are based on the view that the regulation in question is unlawful.

1 Translated from the Italian.