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URL: http://www.bailii.org/eu/cases/EUECJ/1989/C12587_rev.html
Cite as: [1989] EUECJ C-125/87

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61987J0125(01)
Judgment of the Court (Fourth Chamber) of 26 October 1989.
Leslie Brown v Court of Justice of the European Communities.
Public service - Refusal to grant a differential allowance.
Case 125/87.
European Court reports 1989 Page 03489

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Officials - Advancement to a higher category - Classification in step - Applicable rules - Rules on promotion - Grant of a differential allowance intended to prevent any financial loss
( Staff Regulations, Art . 46 )

The classification in step of an official moving to a higher category must be based on the principles applicable to promotion laid down in Article 46 of the Staff Regulations .
When that classification causes the official a financial loss as envisaged in that article, the appointing authority is under an obligation to grant the official in question an allowance intended to make up for the difference between his old and new basic salaries .

In Case 125/87
Leslie Brown, an official of the Court of Justice of the European Communities, represented by Aloyse May, of the Luxembourg Bar, with an address for service in Luxembourg at his Chambers, 31 Grand-Rue, Luxembourg,
applicant,
v
Court of Justice of the European Communities, represented by Francis Hubeau, Head of the Personnel Division, acting as Agent, assisted by Jean-Francis Bellis, of the Brussels Bar, 222 avenue Louise, Brussels, with an address for service in Luxembourg at the office of its Agent, Annexe of the Court of Justice, Luxembourg,
defendant,
APPLICATION, following the interlocutory judgment of the Court ( Second Chamber ) of 8 March 1988, for the granting with effect from 1 February 1985 of a differential allowance calculated in accordance with the general decision of the President of the Court of Justice of 10 April 1986 concerning the introduction of a new method of calculating the differential allowance on transfer to a higher category following a competition,
THE COURT ( Fourth Chamber )
composed of : C . N . Kakouris, President of Chamber, T . Koopmans and M . Díez de Velasco, Judges,
Advocate General : J . Mischo
Registrar : J . A . Pompe, Deputy Registrar
having regard to the Report for the Hearing and further to the hearing on 28 June 1989,
after hearing the Opinion of the Advocate General delivered at the sitting on 26 September 1989,
gives the following
Judgment

1 By application lodged at the Court Registry on 10 April 1987, Leslie Brown, an administrative assistant at the Court of Justice, brought an action seeking in substance the grant of a differential allowance, with effect from 13 August 1981, the date on which he was appointed to Grade B 5, or in the alternative with effect from 1 February 1985, calculated in accordance with the method laid down in a general decision adopted by the President of the Court on 10 April 1986 .
2 The applicant, who was a clerical officer in Grade C 2, was appointed an administrative assistant in Grade B 5 with effect from 1 August 1981 . On that occasion, he was granted a differential allowance intended to make up for the difference between the remuneration in his former Grade C 2 and the remuneration in his new Grade B 5 . On 12 November 1981, Mr Brown lodged a complaint claiming that he had suffered financial loss as a result of that decision . On 5 February 1982, that complaint was rejected . On 12 July 1983, he submitted a request seeking an amendment of the method of calculating his differential allowance . On 8 November 1983, that request too was rejected .
3 On 10 April 1986, the President of the Court adopted a general decision concerning the classification and remuneration of officials who change to a higher category following a competition . That decision, which was notified to the staff of the Court on 26 March 1987, introduced a new system of differential allowances applicable from 1 March 1986 to all officials, including those who had changed from one category to another prior to that date . Part B of that decision is worded as follows :
"If the remuneration relating to the grade and step of an official in the higher category is lower than the remuneration which he received in his former grade and step prior to his transfer to the higher category, he shall be granted a differential allowance .
In the past, the allowance was absorbed as the remuneration in the new classification increased .
Henceforth, the allowance shall take account of the automatic advancement in step in the grade of the former category and of adjustments in the remuneration relating to the former classification ..."
4 By a complaint of 5 August 1986, the applicant objected to the date on which that decision took effect and requested that it be applied not with effect from 1 March 1986 but with effect from the date on which each official was appointed to a higher category . That complaint was rejected on 30 January 1987, and Mr Brown brought the present action .
5 The objection of inadmissibility raised by the defendant against that action was dealt with in a judgment of 8 March 1988 in which the Court ( Second Chamber ) declared the action admissible in so far as it sought a declaration that the general decision ought to have provided that it had retroactive effect from 1 February 1985 . The remainder of the application was held to be inadmissible .
6 In the reply, the applicant asks the Court to declare that he is entitled to receive a differential allowance intended to make up the difference between the salary for his former Grade C 2 and the salary for Grade B 4, with effect from 1 February 1985 .
7 In the rejoinder, the defendant asks the Court to dismiss the application as unfounded if it seeks the granting with effect from 1 February 1985 of a differential allowance calculated in accordance with the general decision in issue and to dismiss the application as inadmissible, in the alternative as unfounded, if it seeks the granting, in addition to the differential allowance, of an allowance intended to make up the difference between the remuneration for the applicant' s actual grade and step and the remuneration corresponding to a hypothetical classification in Grade B 4 .
8 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the applicable provisions, the course of the procedure and the submissions and arguments of the parties, which are referred to hereinafter only in so far as is necessary for the reasoning of the Court .
9 It must be noted, first of all, that the application contains two separate heads of claim, one of which seeks to have the differential allowance granted to the applicant made to take effect from 1 February 1985, while the other seeks to have the amount of that allowance calculated on the basis of a notional classification of the applicant in Grade B 4 .
10 In that regard, it must be pointed out that the Court, in its judgment of 8 March 1988, ruled that the second of those heads of claim was inadmissible because the period within which Mr Brown might have brought contentious proceedings against his classification in Grade B 5 had expired . That time-limit also precludes the classification decision from being called into question indirectly by the granting of an allowance calculated on the basis of a different classification .
11 It follows from the foregoing that, after the Court' s interlocutory judgment of 8 March 1988, it only remains to be determined whether Mr Brown is justified in claiming that part B of the general decision of the President of the Court of 10 April 1986 should be applied to him with retroactive effect from 1 February 1985 .
12 In support of his claim, the applicant relies principally on a breach of Article 46 of the Staff Regulations which, he asserts, is intended to ensure the greatest possible continuity in an official' s salary as his career develops, with regard to his seniority . He claims that the Court' s judgment of 29 January 1985 in Case 273/83 Michel v Commission (( 1985 )) ECR 347 makes it clear that the rules laid down in Article 46 of the Staff Regulations apply when an official moves to a higher category . In the applicant' s submission, the calculation of the differential allowance granted to him before that judgment must be regarded as unlawful . The general decision in issue should therefore have taken effect retroactively as from 1 February 1985 .
13 The defendant maintains that, on the contrary, it was under no obligation to give the general decision in question any retroactive effect whatever . The Court has consistently held that in general the principle of legal certainty precludes a Community measure from taking effect from a point in time before its publication, and it may only exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected . According to the defendant, the judgment of 29 January 1985, cited above, cannot serve as the point from which the general decision of the President took effect because that judgment in no way deals with the question of differential allowances and, therefore, in no way establishes that the Court' s previous practice in that regard was unlawful .
14 In that regard, it must be pointed out that the wording of Article 46 of the Staff Regulations refers only to cases where an official is appointed to a higher grade within the same category . In such cases, the rules laid down in that article relating to classification in step ensure that the official actually receives in his new grade a basic salary no lower than that which he received in his former grade . As far as officials moving from one category to another are concerned, the Court held in its judgment of 29 January 1985, cited above, that in the absence of similar provisions their classification in step should also be established on the basis of the principles laid down in Article 46 of the Staff Regulations .
15 It follows that when the classification in step of an official who has moved to a higher category causes him a financial loss as envisaged in Article 46 of the Staff Regulations, the appointing authority is under an obligation to grant the official in question an allowance intended to make up for the difference between his old and new basic salaries .
16 In the present case, it must be found that the appointing authority complied fully with its obligation under that article of the Staff Regulations . The differential allowance granted to Mr Brown following his change of category meets the requirements laid down in Article 46 of the Staff Regulations as interpreted by the judgment of 29 January 1985, cited above, since it prevented any loss of salary on his part .
17 The applicant is therefore not entitled to claim, on the basis of that article of the Staff Regulations, the retroactive benefit of a more favourable allowance such as that instituted by the general decision of the President of the Court of 10 April 1986 .
18 It must be added that there is no other principle of Community law on which the applicant may rely in support of his claim for the retroactive application of the differential allowance in question .
19 It follows from the foregoing that the application must be dismissed as unfounded .

Costs
20 Under Article 69(2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs . However, Article 70 of those Rules provides that institutions are to bear their own costs in proceedings brought by servants of the Communities .

On those grounds,
THE COURT ( Fourth Chamber )
hereby :
( 1 ) Dismisses the application;
( 2 ) Orders the parties to bear their own costs .