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URL: http://www.bailii.org/eu/cases/EUECJ/1984/C32682.html
Cite as: [1984] EUECJ C-326/82

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61982J0326
Judgment of the Court (First Chamber) of 30 May 1984.
Helga Aschermann and others v Commission of the European Communities.
Staff paid from research and investment appropriations - Salary.
Case 326/82.
European Court reports 1984 Page 02253

OFFICIALS - ACTIONS - DECISION WHICH IS NO LONGER OPEN TO CHALLENGE - ADMISSIBILITY - CONDITION - IMPORTANT NEW FACT
( STAFF REGULATIONS , ARTS 90 AND 91 )

THE APPOINTING AUTHORITY IS NOT REQUIRED , UNLESS IMPORTANT NEW FACTS ARISE , TO

RECONSIDER A DECISION WHICH IS NO LONGER OPEN TO CHALLENGE .

IN CASE 326/82
HELGA 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 ,
APPLICANTS ,
V
COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY JORN 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 MONTALTO , ALSO A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,
DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF THE SALARY STATEMENTS RECEIVED BY THE APPLICANTS SINCE FEBRUARY 1982 ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 20 DECEMBER 1982 , HELGA ASCHERMANN AND 47 OTHER TEMPORARY SERVANTS OF THE COMMISSION OF THE EUROPEAN COMMUNITIES EMPLOYED AT THE JOINT RESEARCH CENTRE , ISPRA , ITALY , BROUGHT AN ACTION UNDER ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS ( HEREINAFTER REFERRED TO AS ' ' THE STAFF REGULATIONS ' ' ) FOR A DECLARATION THAT
( I ) COUNCIL REGULATIONS NOS 371/82 AND 372/82 OF 15 FEBRUARY 1982 ( OFFICIAL JOURNAL 1982 , L 47 , PP . 8 AND 13 ) AND COUNCIL REGULATION NO 3821/81 OF 15 DECEMBER 1981 ( OFFICIAL JOURNAL 1981 , L 386 , P . 1 ) ARE NOT APPLICABLE TO THEM AND
( II)THAT THE COMMISSION MUST RESTORE THEIR POSITION , AT LEAST WITH EFFECT FROM 1 JANUARY 1982 , IN SUCH A WAY THAT THEIR REMUNERATION IS EQUAL IN ALL ITS COMPONENT PARTS TO THAT RECEIVED BY OFFICIALS IN THE SAME CATEGORIES .

2 AFTER THE ENTRY INTO FORCE OF COUNCIL REGULATION NO 2615/76 OF 21 OCTOBER 1976 ( OFFICIAL JOURNAL 1976 , L 299 , P . 1 ) STAFF ENGAGED TO FILL TEMPORARILY A PERMANENT POST PAID FROM RESEARCH AND INVESTMENT APPROPRIATIONS ( HEREINAFTER REFERRED TO AS ' ' RESEARCH STAFF ' ' ), WHO HAD PREVIOUSLY BEEN ENGAGED AS LOCAL OR ESTABLISHMENT STAFF , WERE RECRUITED AS TEMPORARY STAFF . CONSEQUENTLY , SINCE THAT TIME THEY HAVE BEEN SUBJECT TO THE SAME ARRANGEMENTS AS OTHER TEMPORARY STAFF , NAMELY THOSE LAID DOWN IN TITLE II OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES ( HEREINAFTER REFERRED TO AS ' ' THE CONDITIONS OF EMPLOYMENT ' ' ).

3 HOWEVER , THE FOURTH PARAGRAPH OF ARTICLE 20 OF THE CONDITIONS OF EMPLOYMENT , WHICH WAS INSERTED BY REGULATION NO 2615/76 , LAYS DOWN A TABLE OF SALARIES FOR RESEARCH STAFF WHICH DIFFERS FROM THE TABLE APPLYING TO OTHER TEMPORARY STAFF INASMUCH AS THE SALARIES OF RESEARCH STAFF IN CATEGORIES C AND D ARE ABOUT 5% LOWER THAN THOSE OF OTHER TEMPORARY STAFF IN THE SAME CATEGORIES AND GRADES .

4 IN THAT CONNECTION IT SHOULD BE POINTED OUT THAT IN JULY 1983 THE COMMISSION SUBMITTED A PROPOSAL TO THE COUNCIL FOR A REGULATION AMENDING THE CONDITIONS OF EMPLOYMENT WHICH , BY REPEALING THE FOURTH PARAGRAPH OF ARTICLE 20 OF THOSE CONDITIONS AND THE RELEVANT TABLE OF SALARIES , PROVIDED IN PARTICULAR FOR THE SALARIES OF RESEARCH STAFF IN CATEGORIES C AND D TO BE MADE THE SAME AS THOSE OF OTHER TEMPORARY STAFF IN THE CORRESPONDING CATEGORIES . IN THE STATEMENT OF THE REASONS FOR THAT PROPOSAL THE COMMISSION , AFTER STATING THAT THERE IS AT PRESENT A DIFFERENCE OF 5% BETWEEN THE SALARIES OF RESEARCH STAFF AND THOSE OF OTHER TEMPORARY STAFF , RECOGNIZES THAT THE PRINCIPLE OF EQUALITY SHOULD TAKE PRECEDENCE OVER THE HISTORICAL FACTORS TO WHICH THAT DISPARITY OWES ITS ORIGIN AND THAT THE INEQUALITY OF PAY CANNOT REASONABLY BE MAINTAINED WHERE THE WORK DONE AND THE DUTIES PERFORMED ARE THE SAME . THE PROCEDURE FOR APPROVING THAT PROPOSAL HAS STILL NOT BEEN COMPLETED .

5 THE SALARIES FIXED BY REGULATION NO 2615/76 WERE MAINTAINED WITHOUT ANY APPRECIABLE CHANGE BY THE REGULATIONS ANNUALLY ADJUSTING REMUNERATION PURSUANT TO ARTICLE 65 ( 1 ) OF THE STAFF REGULATIONS , IN PARTICULAR BY REGU LATIONS NOS 371/82 AND 371/82 ADJUSTING REMUNERATION FOR 1980 AND 1981 . THAT SITUATION WAS NOT ALTERED BY REGULATION NO 3821/81 EITHER , WHICH INTRODUCED A SPECIAL TEMPORARY CRISIS LEVY ON , INTER ALIA , THE REMUNERATION OF THE STAFF OF THE COMMUNITIES .

6 THE APPLICANTS ARE ALL RESEARCH STAFF IN CATEGORY C OR D . BY COMPLAINTS LODGED WITH THE COMMISSION UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS THEY CONTESTED THE SALARY STATEMENTS WHICH THEY HAD RECEIVED SINCE FEBRUARY 1982 . THEY MAINTAINED THAT THE FACT THAT THEY RECEIVED LESS REMUNERATION THAN OFFICIALS AND OTHER TEMPORARY STAFF IN THE SAME GRADES PERFORMING THE SAME DUTIES CONSTITUTED DISCRIMINATION CONTRARY TO THE OVERRIDING PRINCIPLE OF EQUAL TREATMENT .

7 BY LETTER DATED 20 DECEMBER 1982 THE COMMISSION REJECTED THOSE COMPLAINTS .

8 THE APPLICANTS THEREUPON BROUGHT THIS ACTION IN WHICH THEY IN SUBSTANCE REQUEST THE COURT TO DECLARE , PURSUANT TO ARTICLE 1984 OF THE EEC TREATY , ARTICLE 156 OF THE EAEC TREATY AND THE THIRD PARAGRAPH OF ARTICLE 36 OF THE ECSC TREATY , THAT REGULATIONS NOS 371/82 , 372/82 AND 3821/81 ARE INAPPLICABLE TO THEM AND TO ORDER THE COMMISSION TO PAY TO THEM THE DIFFERENCE BETWEEN THE REMUNERATION WHICH THEY HAVE ACTUALLY RECEIVED AT LEAST SINCE 1 JANUARY 1982 AND THE REMUNERATION WHICH THEY WOULD HAVE RECEIVED IF THE UNEQUAL TREATMENT IN RELATION TO THE OFFICIALS AND OTHER TEMPORARY STAFF PERFORMING THE SAME DUTIES HAD NOT EXISTED .

ADMISSIBILITY
9 AS A PRELIMINARY SUBMISSION THE COMMISSION CONTENDS THAT THE ACTION IS INADMISSIBLE .

10 IT SUBMITS THAT THE ORIGIN OF THE DISCRIMINATION OF WHICH THE APPLICANTS COMPLAIN LIES IN REGULATION NO 2615/76 AND NOT , AS THEY MAINTAIN , IN THE LATER REGULATIONS , IN PARTICULAR REGULATIONS NOS 371/82 , 372/82 AND 3821/81 , SINCE THOSE REGULATIONS DID NO MORE THAN MAINTAIN A SITUATION WHICH WAS ALREADY IN EXISTENCE . SINCE THEY FAILED TO CHALLENGE THE FIRST DECISION APPLYING REGULATION NO 2615/76 TO THEM , THE APPLICANTS MAY NO LONGER CALL IN QUESTION A SITUATION WHICH HAS EXISTED FOR YEARS BY BASING THEIR CASE ON REGULATIONS NOS 371/82 , 372/82 AND 3821/81 . THE COMMISSION ACCORDINGLY REQUESTS THE COURT TO DECLARE THE ACTION INADMISSIBLE ON THE GROUND THAT IT IS OUT OF TIME .

11 THE APPLICANTS DO NOT DISPUTE THAT THE DISCRIMINATION IN QUESTION HAS EXISTED SINCE REGULATION NO 2615/76 ENTERED INTO FORCE . HOWEVER , THEY TAKE THE VIEW THAT THE APPLICATION OF REGULATIONS NOS 371/82 , 372/82 AND 3821/81 TO THEM CONSTITUTES A NEW FACT WHICH SUBSTANTIALLY CHANGES THEIR SITUATION INASMUCH AS THOSE REGULATIONS MAKE THE DISCRIMINATION UNDER WHICH THEY WERE ALREADY SUFFERING STILL WORSE .

12 THE COMMISSION DISPUTES THAT THE APPLICATION OF THE ABOVEMENTIONED REGULATIONS TO THE APPLICANTS CAN BE REGARDED AS A NEW FACT ENABLING THEM TO BRING AN ACTION THE ESSENTIAL PURPOSE OF WHICH IS TO ELIMINATE THE 5% DIFFERENCE WHICH HAS EXISTED FOR A LONG TIME BETWEEN THE SALARIES OF RESEARCH STAFF AND THOSE OF OFFICIALS AND OTHER TEMPORARY STAFF . IT FURTHER ARGUES THAT , EVEN SUPPOSING THE EXISTENCE OF A NEW FACT AFFECTING THE APPLICANTS , THEY OUGHT TO HAVE SUBMITTED A REQUEST TO THE COMMISSION UNDER ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS AND NOT IMMEDIATELY SUBMITTED A COMPLAINT UNDER ARTICLE 90 ( 2 ), AS THEY HAVE DONE .

13 IT MUST BE BORNE IN MIND , AS THE COURT HAS HELD MANY TIMES ( SEE THE JUDGMENTS IN JOINED CASES 109/63 AND 13/64 , MULLER V COMMISSION ( 1964 ) ECR 663 , CASE 28/72 , TONTODONATI V COMMISSION , ( 1973 ) ECR 779 AND IN CASE 173/80 , BLASIG V COMMISSION , ( 1981 ) ECR 1649 ), THAT THE APPOINTING AUTHORITY IS NOT REQUIRED , UNLESS IMPORTANT NEW FACTS ARISE , TO RECONSIDER A DECISION WHICH IS NO LONGER OPEN TO CHALLENGE .

14 IN THIS CASE , THE DECISION CONSTITUTING THE FIRST APPLICATION OF REGULATION NO 2615/76 TO THE APPLICANTS WAS ADOPTED SEVERAL YEARS , BEFORE THEIR COMPLAINTS WERE LODGED WITH THE COMMISSION . CONSEQUENTLY , THAT DECISION CAN NO LONGER BE CHALLENGED .

15 IN REPLY TO THE APPLICANTS ' ARGUMENT THAT THE APPLICATION TO THEM OF REGULATIONS NOS 371/82 , 372/82 AND 3821/81 CONSTITUTES AN IMPORTANT NEW FACT WITHIN THE MEANING OF THE DECISIONS OF THE COURT IT MUST BE POINTED OUT THAT REGULATIONS NOS 371/82 AND 372/82 MERELY INCREASE THE REMUNERATION AND PENSIONS OF OFFICERS AND OTHER SERVANTS OF THE COMMUNITIES FOR 1980 AND 1981 PURSUANT TO ARTICLE 65 ( 1 ) OF THE STAFF REGULATIONS AND THAT CONSEQUENTLY THEY DO NOT ALTER IN ANY WAY THE SITUATION OF WHICH THE APPLICANTS COMPLAIN .

16 BY WAY OF DEROGATION FROM ARTICLE 3 ( 1 ) OF REGULATION NO 260/68 , REGULATION NO 3821/81 INTRODUCED , FOR A PERIOD EXPIRING ON 1 JULY 1991 , A SPECIAL TEMPORARY LEVY ON NET SALARIES , PENSIONS AND TERMINATION-OF-SERVICE ALLOWANCES . IN THE CASE OF OFFICIALS AND OTHER STAFF IN ACTIVE EMPLOYMENT THE BASIS OF THE LEVY IS THE BASIC SALARY FOR THE VARIOUS GRADES AND STEPS LESS THE SOCIAL SECURITY AND PENSION CONTRIBUTIONS AND THE TAX , BEFORE ANY LEVY , PAYABLE BY AN OFFICIAL IN THE SAME GRADE AND STEP WITHOUT DEPENDANTS AND THE BASIC SALARY OF AN OFFICIAL IN GRADE D 4 , STEP 1 .
17 IT IS CLEAR FROM THIS THAT THE BASIS OF THE LEVY IS VERY SMALL IN THE CASE OF A LOW INCOME AND BECOMES SMALLER AS INCOME DECREASES , SO THAT , AS THE COMMISSION HAS RIGHTLY MAINTAINED , A DEGRESSIVE SYSTEM IS INVOLVED WHOSE EFFECT ON THE APPLICANTS IS VERY LIMITED .

18 IN THOSE CIRCUMSTANCES IT MUST BE CONCLUDED THAT THE APPLICANTS ' SITUATION HAS NOT BEEN SUBSTANTIALLY CHANGED BY REGULATION NO 3821/81 AND THAT CONSEQUENTLY THE APPLICATION OF THAT REGULATION CANNOT BE REGARDED AS A NEW FACT UPON WHICH THEY MAY RELY .

19 THE APPLICATION MUST THEREFORE BE DISMISSED AS INADMISSIBLE .

COSTS
20 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , THE INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES .

ON THOSE GROUNDS ,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION AS INADMISSIBLE ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .