Helga Aschermann and Others v European Commission (326/82)

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.