217/82 · GlobalLawDB

2. Breach of the principle that there should be no discrimination on the basis of nationality

(a) Mr Depoortere submits in that respect that the rules introduced by the Institut Belgo-Luxembourgeois des Changes relating to exchange transactions are discriminatory inasmuch as they treat non-Belgian officials of the Communities as “foreigners” solely on the basis of their nationality. In the applicant's view, all the officials of the Communities, whatever their nationality, are “régnicoles” in view of the fact that they are all required, under Article 20 of the Staff Regulations, to reside at their place of employment.The Commission failed to fulfil its obligation not to discriminate against its Belgian staff inasmuch as it did not oppose, from the outset, the measures taken by the Institut Belgo-Luxembourgeois des Changes. Moreover, the applicant maintains that the disputed national regulation does not compel the Commission to pay the remuneration of non-Belgian officials into special foreign convertible accounts. Under that legislation it would be equally possible for the Commission to pay their remuneration into accounts assimilated to the accounts of “régnicoles”, as it does in the case of the salaries of Belgian officials.Mr Depoortere adds that non-Belgian and non-Luxembourg officials receive an expatriation allowance and may rely on the provisions relating to transfers in Annex VII to the Staff Regulations for payments abroad which they are obliged to make and which they can substantiate. Thus the fact that they may have certain financial obligations in their country of origin may not be advanced as a reason for granting them, in addition, privileged status for the remaining part of their salary.(b) The Commission considers that the principle of equality is respected. No distinction is made as regards the payment of salaries between Belgian or Luxembourg officials and other officials, since the two groups are paid in Belgian francs.More specifically, Article 48 (2) of the Treaty and Article 7 (1) of Regulation No 1612/68 have not been infringed, inasmuch as those provisions concern only discrimination as regards employment, remuneration and other conditions of work and employment. In this case, the difference in salary relates to the nature of the bank accounts which officials may open and the opportunities which those accounts offer them in relation to the purchase of currency.In any case, there is no unlawful discrimination. The Court has defined discrimination as the treating of similar situations differently or the treating of different situations identically (judgment of 17. 7. 1963, Case 13/63, Italy v Commission, [1963] ECR 167). In this instance, there is a difference between, on the one hand, non-Belgian and non-Luxembourg officials, who have had to establish themselves in Belgium as the result of taking up their duties in the Communities and who retain certain financial obligations in their countries of origin or who wish to keep money there for other reasons, and, on the other hand, Belgian and Luxembourg officials, whose obligations are similar to those of their compatriots who are not in the service of the Communities.That assessment is confirmed by the fact that retired officials who are not of Belgian or Luxembourg nationality and who, of their own accord, continue to reside in Belgium or Luxembourg may retain a special convertible account for a period of three years only from the date on which they leave the service. If, after the expiry of that period, they decide to continue to reside there, they are treated, for the purposes of the exchange legislation, in the same way as other residents in Belgium or Luxembourg.