Report for the Hearing delivered in Case 91/85

I — Statement of facts and written procedure

1. Article 1 (2) of Council Regulation (ECSC, EEC, Euratom) No 2615/76 of 21 October 1976 amending Regulation (EEC, Euratom, ECSC) No 259/68 as regards the conditions of employment of other servants of the European Communities (Official Journal 1976, L 299, p. 1) added a paragraph (d) to the Conditions of Employment of Other Servants of the European Communities (hereinafter referred to as the Conditions) according to which staff engaged to fill temporarily a permanent post paid from research and investment appropriations and included in the list of posts appended to the budget relating to the institution concerned are to be regarded as temporary staff. Previously, such staff had been engaged either as local staff or members of the establishment staff. The final recital in the preamble to Regulation No 2615/76 specifies that the conditions laid down in the regulation are to apply only to staff paid from the research and investment appropriations and do not in any circumstances constitute a precedent with regard to employment in the European public service.

2. Article 7 of Council Regulation (ECSC, EEC, Euratom) No 1578/85 of 10 June 1985 amending the conditions of employment of other servants of the European Communities (Official Journal, L 154, p. 1) provides that, in Article 20 of the Conditions, the fifth paragraph and the scale of basic monthly salaries is to be deleted. According to Article 13, Regulation No 1578/85 applies, with effect from 1 January 1985, to temporary staff in service when the regulation came into force. That regulation was adopted after the present action had been brought on 5 April 1985.

3. The three applicants were engaged by the Commission, Anne-Marie Christ on 1 July 1979, Olga Priplata on 4 July 1979 and Elizabeth McDonnell on 1 June 1979, as members of the temporary staff filling a post which is included in the list of posts appended to the section of the budget relating to each institution and which the budgetary authorities have classified as temporary (Article 2 (a) of the Conditions). They were classified in Category C.

4. In 1983, the applicants were assigned to temporary posts (FAST) which were transformed into permanent posts with effect from 1 January 1984.

5. On 30 March 1984, the Commission sent the applicants a draft agreement supplementary to their contracts of service which provided that they would be engaged as members of the temporary staff under Article 2 (d) of the Conditions with effect from 1 January 1984 and would make them subject to the provisions applicable to members of the temporary staff under that article. Anne-Marie Christ and Elizabeth McDonnell signed the supplementary agreement at the end of April 1984 and Olga Priplata signed it at the beginning of May 1984.

6. By letter of 27 April 1984, Mrs Priplata was informed that, as a result of the application of the new salary scale from the month of January 1984, she had received an over-payment of BFR 11388 for the period from 1 January to 30 April 1984 and that that sum would be recovered by way of deduction from her salary for the month of June 1984.

7. By memoranda of 25, 26 and 20 July 1984 the applicants submitted a complaint under Article 90 (2) of the Staff Regulations concerning the supplementary agreement modifying their contract of employment, which adversely affected them in regard to their basic salary (-5%) by changing their status from that of a member of the temporary staff under Article 2 (a) (initial contract) to Article 2 (d) of the Conditions'.

8. The Commission rejected the complaints in a series of reasoned decisions, dated 4 January 1985 in regard to Mrs Christ, notified to her on 25 January 1985, and dated 10 January 1985 in regard to Mrs Priplata and Miss McDonnell, notified to Mrs Priplata on 25 January 1985 and to Miss McDonnell on 21 January 1985.

9. By an application lodged at the Court Registry on 5 April 1985, Anne-Marie Christ, Olga Priplata and Elizabeth McDonnell brought an action against the Commission in which they claimed that the Court should:

10. The Commission contends that the Court should:

11. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

II — Submissions and arguments of the parties

The submissions and arguments of the parties turn essentially on three points:

A — The unlawfulness of Regulation No 2615/76

1. The applicants claim first that Regulation No 2615/76 unlawfully added a fifth paragraph to Article 20 of the Conditions inasmuch as it fixed the salaries for Categories C and D at a level approximately 5% below that provided for officials and other members of the temporary staff in the corresponding categories. Since there is no objective justification for that measure, the regulation is manifestly contrary to the overriding principle of equal treatment, recognized by the Court in its judgments of 31 May 1979 (Case 156/78 Newth v Commission [1979] ECR 1941) and of 2 December 1982 (Joined Cases 198 to 202/81 Micheli and Others v Commission [1982] ECR 4145). The applicants were, with retroactive effect from 1 April 1984, victims of discrimination vis-à-vis other officials and members of staff performing the same duties and in comparable positions. The applicants consider that the legal nature of the relationship under which the work is carried out is identical both for members of staff in Categories C and D engaged under Article 2 (d) of the Conditions and for those in Categories A and B paid out of the same appropriations. They claim that they were engaged on the basis of the same criteria as officials and other servants of the European Communities and that the Commission does not justify the difference in salary on the basis of a difference in seniority or age or any other objective factor.

2. The Commission states that staff engaged to fill temporarily a permanent post paid from research and investment appropriations and included in the list of posts appended to the budget relating to the institution concerned were not initially regarded as members of the temporary staff but as local staff or members of the establishment staff. It also states that even though Regulation No 2615/76 gave all the staff of the research centres the status of temporary servants, notwithstanding a certain reluctance, regardless of the category to which the person belonged, it was none the less provided that they would constitute a distinct sub-category within the temporary staff: that referred to in Article 2 (d) of the Conditions.

B — The historical and budgetary reasons underlying the regulation in question

1. The applicants state that the Commission cannot rely on historical or budgetary reasons to justify the fifth paragraph of Article 20, inserted by Regulation No 2615/76.

2. The Commission states that the difference between the basic monthly salaries exists for historical, budgetary reasons.

C — The fact that the Commission and the Council were aware of the unlawfulness of the regulation

1. The applicants consider that the Commission was well aware of the discrimination which has been criticized.

1 Language of the Case: French.