Judgment_paragraph 3. · Roger Buyl and Others v European Commission (817/79)

3.In their reply, the applicants claim that introduction of the EUA was received as a political measure, whereas the application of the rate applicable to the general budget of the Communities was after all merely a simple operation of self-defence on the part of the institutions. Accordingly, there was indeed an infringement of an essential procedural requirement.As regards the concept of vested rights, Mr Advocate General Mayras emphasized in Gillet, cited above, that the Community authority is entitled at any time to amend the provisions of the Staff Regulations in any way which it considers to be in accordance with the interests of the service. The applicants have been unable to identify any interest of the service which might have compelled the authorities to curtail what the Commission described as unjustified advantages. It its judgment in Case 54/77 Herpels 1978 ECR 585, the Court stated that “an official cannot in any case claim a vested right unless the facts giving rise to that right arose under a particular set of Staff Regulations prior to the amendment decided upon by the Community authority”. The applicants are in no doubt that they signed their contracts on terms wholly different from those which it is sought to impose upon them now and take the view that those earlier conditions may not be changed from one day to the next. It may be possible to apply the new provisions without any transitional arrangements to new transfers, for example to new insurance contracts, but in the case of transfers authorized under the old provisions the Court should have regard to the fact that the event giving rise to them, namely entering into the contract, took place before the amendment was made to the Staff Regulations.There is a considerable difference between the circumstances of the Herpels case, in which the applicant wrongly enjoyed the benefit of the separation allowance for a period of seven years, and the present case in which it is even formally admitted by the defence that in the past the applicants were perfectly entitled to the favourable exchange conditions regarding their transfers, particularly since they had been encouraged by the conduct of the Commission itself which, in 1972, had made the conditions for transfers more advantageous despite warnings from the financial control department.As regards the assurances given by the Commission to the Parliament, they related to “remuneratıon and other payments”. Accordingly, a guarantee was indeed given that the “residual” income also would not be diminished.As regards the arguments relating to restricted authority and misuse of powers, the applicants point out that in his opinion in Case 114/77 Jacquemart [1978] ECR 1697, at p. 1718, Mr Advocate General Warner stated that “the power for the Council to lay down the Staff Regulations ... must ... be subject to the limits imposed by the general principles of Community law”. It is not a question of claiming that the Council could not change the parities in respect of commitments entered into by officials after its decision but of preventing the exchange rate from being amended in respect of pre-existing obligations. Thus, the Council was subject to a restriction as regards the obligations entered into before 28 December 1978. The misuse of power arises from the fact that a change purporting to be an updating of the exchange rates was in fact a more substantial change. In the past, the amounts transferred were, as a result of the weighting, influenced only by the living conditions obtaining at the place of employment. Under the new system, transfers are made at the updated rate but only the weighting of the country of destination is applied.The applicants are of the opinion that the Parliament did not understand the effect which the change of weighting would have on the cost of transfer operations; if it had understood that effect, it would have been unable to form the view that the new system would in no way affect officials with regard to remuneration and “other payments”. The defendant asserts that the Parliament “was perfectly aware that with regard to transfers there was no longer any question of financial neutrality and that an increase in the cost of such transfers might arise from the updating of the rates”. The applicants, whilst recognizing the candidness of such a statement, point out that the increased cost of the transfers derives to a considerable extent from the fact that the new weighting is that of the country to which the transfer is to be made.