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In Case 326/82Helga Aschermann and 47 other temporary servants of the Commission of the European Communities employed at the Joint Research Centre, Ispra (Italy), represented and assisted by Marcel Slusny, of the Brussels Bar, 272 Avenue Brugman, Brussels, with an address for service in Luxembourg at the Chambers of Ernest Arendt, Centre Louvigny, 34 B IV Rue Philippe-II,vCommission of the European Communities, represented by Jörn Pipkorn, a member of its Legal Department, acting as Agent, assisted by Robert Andersen, of the Brussels Bar, with an address for service in Luxembourg at the office of Oreste Montako, also a member of the Commission's Legal Department, Jean Monnet Building, Kirchberg,THE COURT (First Chamber)composed of: Lord Mackenzie Stuart, President, T. Koopmans, President of Chamber, and G. Bosco, Judge,Advocate General: M. DarmonRegistrar: P. Heimgives the following
Judgment
Facts and Issues
The facts of the case, the course of the procedure and the conclusions, submissions and arguments of the parties may be summarized as follows:
I —Legal background to the dispute and. summary of the facts
By virtue 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), 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 employed as temporary staff and not as local or establishment staff as was previously the case (see Article 2 (d) of the Conditions of Employment of Other Servants of the European Communities, (hereinafter referred to as “the Conditions of Employment”).As a result of that legislative amendment, staff paid from research and investment approporiations are now subject, in their capacity as temporary staff, to the provisions of Title II of the Conditions of Employment.However, the fourth paragraph of Article 20 of the Conditions of Employment, which was added by Regulation No 2615/76, provided that the salaries of the temporary staff to whom Article 2 (d) applies, that is to say staff paid from research and investment appropriations, are to be determined for each grade and step in accordance with a table contained in the same article. That table differs from those applicable to officials and other temporary staff, since it fixes the salaries for Categories C and D at levels approximately 5% below those laid down for officials and other temporary staff in the corresponding categories.That difference was maintained by the various annual regulations adjusting remuneration pursuant to Article 65 (1) of the Staff Regulations and in particular by Council Regulations Nos 371/82 and 372/82 of 15 February 1982 (Official Journal 1982, L 47, pp. 8 and 13) adjusting the remuneration for 1980 and 1981. Council Regulation No 3821/81 of 15 December 1981 (Official Journal 1981, L 386, p. 1), which introduced a special temporary crisis levy on salaries, pensions and termination-of-service allowances, also left that situation unchanged.However, in July 1983, the Commission decided to submit a proposal to the Council for a regulation amending the Conditions of Employment of Other Servants of the Communities and providing in particular for the repeal of the fourth paragraph of Article 20 of the Conditions of Employment and the table of basic monthly salaries relating to it. That amendment would have removed all inequality of treatment of the various temporary staff belonging to the same category. So far, the Commission's proposal has not been accepted by the Council.The applicants, who are all temporary staff in Categories C and D, are paid from research and investment appropriations and are employed at the Joint Research Centre, Ispra, submitted to the Commission, as the appointing authority, complaints under Article 90 (2) of the Staff Regulations objecting to the salary statements they liad received since February 1982. They argued that the fact that they received remuneration which was less than that paid to officials and other temporary staff in the same grades consumed discrimination contrary to the overriding principle of equal treatment. They also maintained that the discrimination was made worse by the fact that the special crisis levy also applied to them.By a letter dated 20 December 1982 signed by Mr Burke, a member of the Commission, the Commission informed the applicants that it could not accept their complaints. The applicants there upon submitted the present application, which was lodged at the Court Registry on 20 December 1982.Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court (First Chamber) decided to open the oral procedure without any preparatory inquiry. However, it requested the Commission and the Parliament to supply it with certain details of the proposal regarding the repeal of the fourth paragraph of Article 20 of the Conditions of Employment.
II —Conclusions of the parties
The applicants claim that the Court should:1. Declare the application admissible and well founded;2. On the basis of Article 184 of the EEC Treaty, Article 156 of the EAEC Treaty and, so far as is necessary, of the third paragraph of Article 36 of the ECSC Treaty, declare Council Regulations Nos 371/82, 372/82 and 3821/81 inapplicable as from the time when Council Regulation No 2615/76 entered into force or from the time when the applicants were recruited as temporary members of staff, in any event from 1 January 1982, inasmuch as Council Regulations Nos 371/82, 372/82 and 3821/81 maintain, with regard to the applicants, the differences in salary and other remuneration introduced by Council Regulation No 2615/76 of 21 October 1976, and more particularly by the last sentence of Article 20 of the Conditions of Employment;3. Declare and adjudge that the defendant must restore the applicants' position, at least with effect from 1 January 1982, in such a way that their remuneration, in all its component parts, is equal to that received by officials in the same categories;4. In the alternative, order the defendant to produce in their entirety all the documents relating to the exchanges between the Council and itself on the issue forming the subject-matter of these proceedings;5. Take formal note that the applicants reserve the right to amplify their conclusions following the production of those documents;6. Order the defendant to pay the costs.”The Commission contends that the Court should declare the application inadmissible or at least unfounded and grant costs in accordance with the law.
III —Submissions and arguments of the parties
Objection of inadmissibility
In its defence, the Commission first raises an objection of inadmissibility to the application in these proceedings. It takes the view that the only measure which could adversely affect the applicants was Regulation No 2615/76 since it was that measure, and not any of the subsequent regulations referred to by the applicants, which introduced the alleged discrimination of which they complain.At that time the members of staff concerned did not consider it necessary to raise an objection of illegality either against that regulation or against the subsequent regulations, which maintained the discrimination.The Commission is aware that officials and other staff may request the competent administrative authority to review an earlier decision if they can show that there has been a new fact which may substantially change the circumstances which led to the original decision (see the judgment in Case 28/72, Tontodonati v Commission, [1973] ECR 779). It notes, however, that it did not in fact receive a request under Article 90 (1) of the Staff Regulations but a direct complaint within the meaning of Article 90 (2) thereof.Besides, Regulations Nos 371/82, 372/82 and 3821/81 cannot in any event be regarded as a “new fact” substantially changing the circumstances prevailing at the time when Regulation No 2615/76 was adopted, for they allowed the alleged discrimination created by Regulation No 2615/76 to continue unchanged. With reference more particularly to Regulation No 3821/81, the Commission takes the view that it did not make the already existing discrimination any worse, since the crisis levy is of general application. It concludes that the salary statements contested by the applicants do not therefore adversely affect them.In their reply the applicants dispute that their application is out of time and thereby inadmissible. They submit that Regulations Nos 371/82, 372/82 and 3821/81 increased the discrimination under which they have suffered since the outset and as such are open to an objection of illegality.According to the applicants, those regulations do constitute a “new fact” as defined by the Court in its decisions (see the judgment in Case 109/63, Muller v Commission, [1964] ECR 663).In the applicant's view, there is absolutely no requirement, as the Commission appears to believe, that persons who have an interest in having a previous decision reviewed after a new fact has arisen must first lodge a request under Article 90 (1) of the Staff Regulations since such a request certainly cannot be required if, as in this case, it would have had no effect.The applicants submit that, in order to demonstrate the existence of a “new fact”, it is enough to show that the discrimination of which they complain has been maintained by the regulations which followed Regulation No 2615/76. Indeed, even purely routine regulations may cause a particular situation to “crystallize”, thereby creating a “new fact” (see the judgment in Case 737/79, Battaglia v Commission, [1982] ECR 4497). The applicants stress in particular that in this case, as in Battaglia, negotiations had been going on for years and a proposal for a regulation to abolish the discrimination had been sent to the Council by the Commission.As far as Regulation No 3821/81 is concerned, the discrimination was not only continued but even made worse, since the effect of the proportioned crisis levy is greater on low incomes, such as those of the applicants.In its rejoinder, the Commission returns to the question whether a “new fact” exists in this case. Although the Court referred to a “sufficiently important new fact” in its judgment in the Muller case cited by the applicants, it was because it does not wish to allow decisions which have become definitive to be constantly called in question. The Court does not therefore merely require a new fact but requires the new fact to have a certain importance.In this case, the regulations to which the applicants refer do not make their position worse in any way. The same is true of Regulation No 3821/81. Moreover, the basis for the crisis levy, namely the basic salary of each official or other servant minus social security and pension contributions and tax and minus the basic salary of an official in Grade D 4, Step 1, is negligible in the case of low incomes such as those of the applicants.Nor can the Commission agree with the applicants' argument based on the judgment in Case 737/79, Battaglia v Commission. In that case the Court took a number of circumstances into consideration, among them the retroactive application of the regulations in dispute, which are not present in the applicant's case. Even if the talks which have begun between the Commission and staff representatives have resulted in the Commission's proposing a regulation to the Council, they provide no justification for calling in question situations which have been established for a long time.As regards the need for a prior request to be made by the person concerned under Article 90 (1) of the Staff Regulations, the Commission takes the view that this requirement must always be fulfilled whenever a review of an individual or general case is requested.
Substance
In support of their contention that the determination of their salaries is unlawful, the applicants rely on two separate submissions.
First submission
In their application the applicants observe that, even after the adoption of Regulations Nos 371/82 and 372/82, their salaries are still approximately 5% lower than those of officials in the same category. In addition, since the end of February 1982, their salary statements have included deductions for the crisis levy.Consequently, since 30 October 1976 — the date on which establishment and local staff were made subject to the conditions of employment of temporary staff — they have suffered discrimination compared with those officials and other servants who perform the same duties and are in a comparable situation. They point out that the discrimination is confined to Categories C and D, whereas it does not exist in the case of Categories A and B.Such unequal treatment conflicts with a higher-ranking legal principle laid down by the Court which overrides staff rules or regulations contrary to it (see the judgment in Case 156/78, Newth v Commission, [1979] ECR 1941). They also point out that the Commission, in proposing the abolition of the discrimination to the Council, has recognized that it is desirable to bring it to an end.In its defence the Commission makes the preliminary point that Regulation No 2615/76 considerably improved the situation of staff paid from research and investment appropriations compared with their previous situation, since the staff concerned in all the research establishments, and unquestionably those at Ispra, received much higher pay than before. The difference between the salaries of staff paid from research and investment appropriations and the salaries of officials and other staff in the same categories is explained by the Council's desire to avoid too great a burden being imposed on the budget owing to the inclusion of former establishment and local staff in the category of temporary staff. Furthermore, that difference has not increased in the course of time.The Commission points out that the Court has consistently held that discrimination consists in treating in an identical manner situations which are different or treating in a different manner situations which are identical. The principle of non-discrimination is observed if persons belonging to different categories are treated differently. According to the Commission, staff paid from research and investment appropriations are not in the same situation as officials, even if they are in the same categories and perform similar duties. In this connection the Commission refers to the reply given by Mr Burke to the complaints submitted by the applicants in which he stated that there is nothing to prevent a public administration from employing, besides officials recruited by competition, staff engaged under contract to whom special provisions apply which do not grant such staff the same financial advantages as those enjoyed by officials.In their reply the applicants observe that there is a contradiction between the arguments put forward by Mr Burke in the reply given to their complaints and those set out in the preamble to the proposal submitted to the Council on an amendment to the Conditions of Employment. In that preamble the Commission states in fact that the principle of equality must take precedence over historical factors to which the discrimination at issue owes its origin and that such unequal pay cannot reasonably be maintained where the work done and duties performed are the same.The budgetary considerations relied upon by the Commission do not withstand examination either. In the first place, the financial burden is very slight since temporary staff in Categories C and D are involved. Secondly, if financial considerations are to be taken into account, discriminatory arrangements should be applied to staff in Categories A and B as well. Finally, the budgetary problems which allegedly caused the Commission to act in 1976 understandably exist in 1983 as well.In its rejoinder the Commission maintains that the mere fact that staff paid from research and investment appropriations perform the same duties as the other temporary staff and officials does not necessarily require the pay of the two groups of employees to be strictly equal. The legal nature of the contract under which the work is done, diplomas and other qualifications, practical experience, seniority in service, age and so forth are factors which may justify different pay for the same work.As far as concerns the proposal for a regulation which it submitted to the Council, it is one of the initiatives which it regularly takes with a view to improving and perfecting the provisions of the Staff Regulations and the Conditions of Employment, but it certainly does not mean that the Commission considers the reform carried out in 1976 through the adoption of Regulation No 2615/76 to be unlawful.
Second submission
In their second submission the applicants maintain that the Commission failed in its duty to look after their well-being, since when the provisions relating to the crisis levy were adopted and also when the proposals for the adoption of Regulations Nos 371/82 and 372/82 were put forward, it should have ensured that the remuneration of staff in Categories C and D paid from research and investment appropriations was finally made equal to the remuneration of officials in the same categories. In particular, they complain that the Commission has not exempted the staff concerned from the crisis levy, thus allowing the contested discrimination to be perpetuated and made worse.In its defence the Commission first states that, if there has been no infringement of the principle of equal treatment, it cannot be accused of having failed in some way or other to fulfil its duty to look after the applicants' well-being.The Commission further points out that it could not have remunerated its staff on conditions different from those laid down by the Council in exercise of the powers vested in that institution without exceeding its own powers.In their reply the applicants explain that they do not in any way criticize the Commission for having applied the Council regulations in force; their complaint is that it neither submitted proposals to the Council with a view to ending the discrimination against them nor brought an action before the Court, as it did in Case 59/81, Commission v Council.In its rejoinder the Commission stresses that is regards the contested regulations as perfectly legal and that in those circumstances it had no reason for bringing an action against the Council before the Court.
IV —Oral procedure
The applicants, represented by M. Slusny, and the Commission, represented by J. Pipkorn, acting as Agent, assisted by R. Andersen, presented oral argument at the sitting on 16 February 1984.The Advocate General delivered his opinion at the sitting on 15 March 1984.
Decision
Admissibility
Costs
Operative part
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.