The cases before the Court are brought by numerous officials against their institutions — the Commission, Case 211/80 Case 260/80 Ivar Andersen and Others. Case 262/80 Kirsten Andersen and Others. Joined Cases André and Others. Other cases.
The facts which are at the origin of the actions and the substantive legal problems which they raise are identical to those of Case 64/80 [1981] ECR 693.
In the present cases the Court will no doubt find it necessary to decide as to the substance of the questions in terms of their different legal bases. The actions are or may be regarded as so-called staff cases brought under Article 179 of the Treaty and Article 91 of the Staff Regulations in which use is made of the incidental machinery for the review of the lawfulness of regulations provided by Article 184 of the Treaty. They are in fact directed Cases other than uu loined cases. Joined cases. In the cases other than the joined cases only the lawfulness of Regulation No 160/80 is challenged.
Similar actions have also been brought by officials of the Court of Justice Case 261/80 Case 259/80 Case 263/80
By Council Regulation No 3177/76 of
Article 1 of the regulation.
Article 2 has been applied to only a veiy small number of officials, for Regulation No 161/80 which entered into force on the same day as part of the periodic review of remuneration led to an increase in basic salaries. On the basis of the revised scale of Article 1 of Regulation No 160/80.
I shall have occasion to mention many other facts when considering the substantive legal problems raised by the cases.
In the case of
There was an express decision rejecting the complaints on Article 90 (2) at the end.
Case 211/80 against lite Commission.
Joined cases.
Cases 260 and 262/80 respectively against the Council and the Parliament.
By order of
The cases were adjourned at the request of the applicants in the hope of reaching an amicable settlement. The proceedings resumed their course after failure of the negotiations.
It is necessary first of all to consider the problems of admissibility and then the substantive submissions.
Up to the end the argument between the applicants and the Commission on this question has ben dogged by a misunderstanding. Whereas the objection of inadmissibility raised by the Commission in its defence concerns the actions only in so far as they seek the annulment of Council Regulations Nos 160 and 161/80, the applicants in their reply repeated the arguments which they had put forward to refute the objection of inadmissibility raised by the Council, which the Court subsequently rejected in the aforesaid order. Since they considered it preferable that the Court should decide on admissibility before dealing with the substance they moreover confined the reply to questions of admissibility and asked to deliver a reply on the substance in a separate pleading. That request was refused and the Commission also restricted itself in the same way in its rejoinder, whilst emphasizing that it was not challenging the admissibility of the actions as a whole.
In my opinion in so far as the actions directly seek the annulment of Council Regulations Nos 160 and 161/80 they are manifestly inadmissible for the reasons already given in the Court's order of
The objection by the Council seems to me limited. The Council is not denying the admissibility of the said actions in so far as they challenge the lawfulness of the salary statements and statements of arrears and indirectly the regulation on the basis of which they have been drawn up. It considers only that the applicants have no interest in acting against the express decision of rejection of their complaint. It contends in essence that annulment of the decision would leave subsisting both the effects of the regulation against which the applicants have raised an objection of illegality and those of the statements of salary and arrears which constitute the measures directly challenged.
That view appears to me unfounded. It seems to me that officials have an interest in challenging decisions rejecting complaints made against measures such as statements of salary and arrears, for such decisions confirm expressly and with an appropriate statement of reasons the validity of the measures. Generally speaking it would moreover seem somewhat illogical to allow the admissibility of an action in so far as it is directed against a measure adversely affecting an applicant and to refuse it in so far as it is brought against the express rejection of the complaint made against that measure which is the necessary consequence in the system of remedies provided by the Staff Regulations.
On the first issue the Parliament's reasoning assumes that according to the wording of the Staff Regulations only a decision of the administration may be the subject of a complaint and then, if necessary, of an action before the Court. In the Parliament's view the statements of salary and arrears at issue cannot be regarded as decisions taken by the administration, for they constitute only the application of provisions of regulations which the applicants consider unlawful. In other words in drawing up those statements the administration of the Parliament has not taken any decision; it has confined itself to carrying out a Council regulation which is binding on it.
That Judgment of the Second Chamber of
[1981] ECRatp. 1321.
Even apart from that quotation I think that as soon as it is accepted that a pay slip causes time for bringing an action to start to run the case-law of the Court, by implication, confers on that class of document the quality of a measure adversely affecting a party. It seems to me that it cannot be otherwise by reason of the terms of Article 90 (2) of the Staff Regulations which provides that complainst must be made against a measure adversely affecting an official and may take the form, as in the present cases, of a measure of an individual nature and that the period for lodging complaints starts to run on the date of notification of the decision to the person concerned.
The Parliament also contests the objection, which is part of the claim for annulment of the salary statements, that Regulation No 160/80 is illegal. It maintains that Article 184 of the Treaty, which allows any party to proceedings in which a regulation of the Council is in issue to plead the grounds specified in the first paragraph of Article 173 notwithstanding the expiry of the period for bringing an action gives relief only from the period within which a direct action must be brought if it is not to lapse. It contends that the challenge to the lawfulness of Regulation No 160/80 as an ancillary issue in the present cases has become impossible [1981] ECRatp. 1321.
As with the previous argument this one is also contrary to the case-law. As long ago as the judgment of Joined Cases
At p. 507.
That view was clarified in the judgment of Case
Ibid, at paragraph 39, p. 800 (my italics); sec also to the same effect the opinion of Mr Advocate General Duthcillet de Lamothe in Joined Cases
I may add that, as the applicants have already observed, in a previous action brought under the Staff Regulations the application was made against an individual decision refusing to pay the applicant a sum of money (expatriation allowance) due under a regulation Artide 21 (2) of Council Regulation No 912/78. Judgment of the Second Chamber of
Accepting thus the admissibility of the applications, may I turn to actual consideration of the substantive submissions. First of all, however, it seems to me appropriate to mention that:
Certain of them seem already to have been made in the
Certain submissions put forward in the joined cases are substantially similar in content to those made in the other cases, where, however, they are dealt with at considerably greater length;
Within each group of cases (joined cases and other cases) a connection which is at times very close may be found between different submissions.
It also happens that the same argument is put forward to support several submissions; in such a case I shall consider it only once.
All the applicants maintain that the statement of the reasons on which Regulation No 160/80 is based is inaccurate inasmuch as the second recital in the preamble thereto states that the manner in which the weighting was incorporated in the basic salary scales in 1976 resulted in
Three months before the adoption of the decision of
Moreover, the Commission's proposal of
Articles 64 and 65 (2) of the Staff Regulations.
It appears however from those very documents, especially those which show the efforts of the institutions to remove the distortions which appeared, that, as they have said, they were surprised by the occurrence of losses in certain cases and by the size of the gains found in very many other cases.
Yet other evidence seems to me to support that conclusion. As soon as it discovered the size of the increases caused by the system adopted the Council undertook to remove them. By Regulation No 2859/77 of Opinion of Mr Advocate General Rcischl in the Giuffrida aud Campograndc casc [1981] ECR ac p. 706.
In view of those circumstances it seems to me exaggerated to claim that the increases which occurred had been intended by the Council and even more that they indicated a deliberate salary policy on its part. The words
The second submission in the
Article 1 of Regulation No 160/80 replaces the basic salary scales laid down by Regulation No 3084/78 and applicable until
The reasoning would be valid if it related to Regulation No 161/80 which adjusted the remuneration of officials and other servants for the period from
The contested regulation is of another kind. It is founded directly on Article 24 of the so-called Treaty merging the executives Treaty Establishing a Single Council and a Single Commission of the European Communities signed in Brussels on
Against that analysis it may nevertheless be countered that Article 1 thereof amends the basic salary scales adopted by Regulation No 3084/78 which adjusted remuneration for the period from
The answer is that it does not. On the one hand, as regards the future, as we have seen, the system of incorporating the weightings adopted in the decision had already been reformed, first provisionally by Regulation No 2857/77 and then definitively by the decision of
The judgments'cited by the applicants,
In the joined cases the applicants allege that in adopting the system for neutralizing the incorporation of the weightings for which it opted in 1976 the Council was binding itself to observe it. In adopting however Regulations Nos 160 and 161/80 it departed from it, they claim, and thus disregarded the aforesaid principle.
As however I have already said Regulation No 161/80 did not apply the 1976 method. As to Regulation No 160/80 it did not have to comply with a system alien to its objective.
In spite
It cannot therefore rely on the pretext of an alleged error to impose corrective measures several years later and in addition with retroactive effect.
Moreover, if the applicants were right, any authority would risk having its decisions annulled on the ground that they depart from opinions, or even advice, expressed during the procedure leading up to them, whereas as a general rule opinions are, as in this case, without any binding force.
AU the applicants put forward breach of the principle of the protection of legitimate expectation.
That principle which is a general principle of law and accordingly ranks higher than secondary rules of Community law such as Council regulations, expresses the idea that those affected by the regulations, and their representatives, are entitled to expect that the Community authority will honour its undertakings.
The applicants consider that their legitimate expectations have been disappointed in several ways which it is appropriate to consider in turn.
Although the staff representatives gave their assent in 1977 (on the adoption of Regulation No 2859/77) and in 1978 (on the change in the method itself and the adoption of Regulation No 1461/78) to the amendment for the future of the system of incorporating weightings in the salary scales, it is common ground that they refused it in relation to the amendment made by Regulation No 160/80.
That complaint must be dismissed.
I stress that Regulation No 160/80 makes no amendment to the system of incorporating weightings into the salary scales adopted by the decision of
In any event under the system adopted for the drafting of legislation the authority with the power to issue regulations is entitled unilaterally to amend its previous measures. The Council thus had the power to adopt Regulation No 160/80 which definitively removes the questionable effects of Regulation No 3177/76 in spite of the reservations of the staff representatives.
That complaint is also wrongly addressed. If it were well founded it would involve, for the reasons I have already expounded, the illegality not of Regulation No 160/80 but of the amending decision of 1978. Moreover even apart from what I have already said it is to be observed that the applicants' interpretation is incompatible with the wording of the review clause which includes review by the Council of the
The application by the Council thai there should be no discussion of the document from which the quotation is extracted on the ground that it is confidential is obviously inadmissible since the same docucmiu was produced in the
In my opinion that argument does not bear scrutiny. What do the matters to which the applicants refer reveal? In relation to the Commission there is only one conclusion: in 1979 it did not have the same opinion as it had in 1978 since it proposed to the Council the draft of what was to become Regulation No 160/80. That observation is however not decisive. The Council, it is true, may not adopt a regulation except after a proposal from the Commission but it is not bound to follow it. It could therefore have adopted the regulation in question even if the Commission had not changed its opinion.
As to the Council, there is nothing to show that its failure to react to the aforesaid declaration by the staff representatives must be regarded as acquiescence. Since the distortions caused in the salary scales by the former method of incorporating the weightings were not eliminated by the measures adopted in 1978, there is on the contrary nothing surprising in the fact that it was not decided to maintain definitively such inequality of treatment. In any event the precise assurances given by the administration to those concerned and required by the case-law of the Court before a breach of the principle of the protection of legitimate expectation may successfully be relied upon, are absent here. Cf. the Opinion of Mr Advocate General Capotorti in Case
In those circumstances the submission must be dismissed in its entirety.
In all the cases also the applicants claim that Regulation No 160/80 infringed their vested rights.
In considering that submission I shall deal at the same time with two submissions special to the joined cases. As it is worded the submission of disregard of the principle of fairness largely covers that of infringement of vested rights since it maintains that
Regulation No 160/80 which was adopted while the method was in force infringes those rights both by making retroactive to
Cf. the Opinion of Mr Advocate General Mayras in Case
Article 66 in respect of basic salaries.
Nevertheless according to the case-law of the Court the new rules cannot have retroactive effect upon arrears of salary which have already fallen due under previous rules. The officials have a vested right to them and that right has its origin in specific Staff Regulations which were in force prior to the amendment decided upon by the competent authority.
In the present case Regulation No 160/80 does not adversely affect the vested rights of officials in relation to arrears of salary or pension which have already fallen due. On the one hand it provides that no part of the amounts paid during the period between Article 2(1) (a). Article 2 (I) (b).
Finally let me observe that those transitional provisions which expressly exclude repayment show that the applicants in the joined cases are obviously wrong in claiming that there is a breach of Article 85 of the Staff Regulations in relation to recovery of undue payment.
The last two submissions in relation to the internal lawfulness of the regulation adopted and put forward only by the applicants in the joined cases may also be speedily dismissed.
It suffices to observe in that respect that the regulation is applicable in principle from Article 2.
Article 64.
Article 65 (2).
No such submission can be properly made either against the regulations adopted in 1980 or moreover with regard to the decision of
It remains for me to consider the submissions as to external lawfulness which the applicants put forward based on infringement of essential procedural requirements Cases 211, 260 and 262/80. Joined cases.
In the applicants' view Regulation No 160/80 ought to have been adopted by the Council pursuant to Article 65 of the Staff Regulations and not Article 24 of the Merger Treaty since Article 1 replaces by new tables the salary tables laid down by regulation adopted by the Council on the basis of Article 65.
That argument overlooks the fact that apart from Article 1 the regulation in question includes an Article 2 laying down transitional provisions for which Article 65 is an insufficiently legal basis and that those provisions cannot be separated from those of Article 1 the adverse consequences of which they are intended to mitigate in respect of officials who until then had benefited from the distortions created in 1976.
It follows from the judgments of the Court of Case On
The documents supplied by the Council after the hearing show that at its meeting on 15 and
It thus appears that the Parliament's opinion was properly taken into account by the Council.
Opinion of Mr Advocate General Ucischl in the Giuffrida and Campogrando asc [1981] LCR at p. 714. The applicants consider that that procedure was disregarded because the Parliament in its resolution of 18 January took the view that the conditions for its application were satisfied in the present case and expressly requested its application by the Council in the event of the latter's deciding not to follow its opinion. It is not necessary to decide \vhcthcr the declaration in question constitutes only an undertaking of a political nature or whether it has legal effects; it suffices to observe that Regulation No 160/80 cannot be regarded as a measure having appreciable financial implication since Article 1 thereof was repealed on the day on which it entered into force by Regulation No 161/80 and Article 2 was applied to only some 5% of those benefiting from the distortions. Since that condition is of an objective nature, as soon as it was obvious that it was not satisfied it was not for one of the institutions concerned to impose on the others recourse to a procedure subject thereto. [1981] ECR at pp. 713 and 714. For all those reasons my Opinion is that the Court should: Dismiss the applications as unfounded; Order the defendant institutions to bear their own costs pursuant to Article 70 of the Rules of Procedure.