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

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.