Avis juridique important

61981J0198

European Court reports 1982 Page 04145

Summary

1 . OFFICIALS - EQUALITY OF TREATMENT - DISCRIMINATION - PROHIBITION - INFRINGEMENT - CONDITIONS

3.OFFICIALS - POST - DESCRIPTION OF DUTIES AND POWERS - ORGANIZATION OF DEPARTMENTS - DISCRETIONARY POWERS OF THE ADMINISTRATION ( STAFF REGULATIONS , ARTS 5 ( 1 ) AND ( 4 ) AND 7 AND ANNEXES I A AND B )

Parties

IN JOINED CASES 198 TO 202/81

1 . FERNANDO MICHELI , RESIDING AT 40 AVENUE DU RENOUVEAU , BRUSSELS ,

3.ANDRE BROCCART , RESIDING AT 31 CHAUSEE DE HUY , CHAUMONT-GISTOUX ,

4.FERNANDO LATTANZIO , RESIDING AT 52 RUE STEVIN , BRUSSELS ,

5.MARIO LABATE , RESIDING AT 69 RUE D ' ALVAU , HEVILLERS ,

OFFICIALS OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , ASSISTED AND REPRESENTED BY JACQUES PUTZEYS AND XAVIER LEURQUIN , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF G . NICKTS , HUISSIER DE JUSTICE , 17 BOULEVARD ROYAL ,

APPLICANTS ,

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY JACQUES DELMOLY , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY DANIEL JACOB OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF O . MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DEFENDANT ' S DECISIONS DATED 8 APRIL 1981 , WHEREBY IT REFUSED TO AWARD THE APPLICANTS A DIFFERENTIAL OR COMPENSATORY ALLOWANCE TO BE CALCULATED AS THE DIFFERENCE BETWEEN THE REMUNERATION ACTUALLY RECEIVED AND THE REMUNERATION DUE FOR THE PERFORMANCE OF THE DUTIES OF AN OPERATOR OF INTERPRETATION EQUIPMENT , FROM THE DAY ON WHICH THEY ENTERED THE SERVICE OF THE DEFENDANT , OR AT LEAST FROM THE DATE ON WHICH THEY WERE APPOINTED AS OFFICIALS , PLUS INTEREST ON THE ARREARS AT THE RATE OF 8% ,

Grounds

1 BY APPLICATIONS LODGED AT THE COURT REGISTRY ON 3 JULY 1981 , THE APPLICANTS , WHO ARE OFFICIALS OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , BROUGHT AN ACTION UNDER ARTICLE 91 OF THE STAFF REGULATIONS FOR ANNULMENT OF THE COMMISSION ' S DECISIONS OF 8 APRIL 1981 WHEREBY IT REFUSED THEM A COMPENSATORY ALLOWANCE REPRESENTING THE DIFFERENCE BETWEEN THE REMUNERATION ACTUALLY RECEIVED AND THE REMUNERATION DUE FOR THE PERFORMANCE OF THE DUTIES OF AN OPERATOR OF INTERPRETATION EQUIPMENT , FROM THE DAY ON WHICH THEY ENTERED THE SERVICE OF THE DEFENDANT , OR AT LEAST FROM THE DAY ON WHICH THEY WERE APPOINTED AS OFFICIALS , PLUS INTEREST ON THE ARREARS AT THE RATE OF 8% .

2 THE APPLICANTS WERE ALL SUCCESSFUL IN INTERNAL COMPETITION NO COM/C/4/78 , WHICH WAS ORGANIZED BY THE COMMISSION WITH A VIEW TO DRAWING UP A RESERVE LIST FOR THE RECRUITMENT OF CLERICAL ASSISTANTS IN CAREER BRACKET C 4/C 5 RESPONSIBLE FOR PERFORMING THE DUTIES OF AN OPERATOR OF INTERPRETATION EQUIPMENT AND THEY WERE THEREFORE RECRUITED INTO THOSE GRADES . BY COMPLAINTS OF 19 AND 22 NOVEMBER 1979 , THEY SOUGHT TO BE RECLASSIFIED IN GRADE C 3 SINCE , IN THEIR OPINION , THE DUTIES WHICH THEY WERE PERFORMING CORRESPONDED TO THE BASIC POST OF CLERICAL OFFICER AND NOT TO THAT OF CLERICAL ASSISTANT . THE COMPLAINTS WERE REJECTED BY THE DEFENDANT AND THE APPLICANTS DID NOT CONTEST THAT REJECTION WITHIN THE PRESCRIBED PERIOD .

3 BY A FRESH COMPLAINT OF 25 APRIL 1980 , THE APPLICANTS SUBMITTED A REQUEST FOR THE DIFFERENTIAL ALLOWANCE PROVIDED BY ARTICLE 7 ( 2 ) OF THE STAFF REGULATIONS . THAT REQUEST WAS ALSO REJECTED . THE APPLICANTS THEREUPON BROUGHT THEIR ACTION .

APPLICATION FOR ANNULMENT

4 THE APPLICANTS PUT FORWARD THREE ARGUMENTS . THE FIRST IS BASED UPON INFRINGEMENT OF ARTICLE 5 ( 3 ) OF THE STAFF REGULATIONS , BREACH OF THE PRINCIPLE OF EQUALITY OF TREATMENT AND MISUSE OF POWERS , INASMUCH AS THE APPLICANTS PERFORM DUTIES OF OPERATORS OF INTERPRETATION EQUIPMENT BUT ARE REMUNERATED AS CLERICAL ASSISTANTS , WHEREAS THE REMUNERATION OF A CLERICAL OFFICER IS PAYABLE FOR THE SAME DUTIES PERFORMED IN OTHER PLACES OF EMPLOYMENT WITHIN THE COMMISSION OR IN OTHER INSTITUTIONS OF THE COMMUNITY . THE DEFENDANT , IT IS CLAIMED , THUS APPLIES DIFFERENT CONDITIONS OF REMUNERATION TO OFFICIALS BELONGING TO THE SAME CATEGORY AND PERFORMING THE SAME DUTIES .

5 IT SHOULD , HOWEVER , BE RECALLED THAT THE CASE-LAW OF THE COURT SHOWS THAT , ALTHOUGH THE PRINCIPLE OF EQUALITY OF TREATMENT IS A GENERAL RULE FORMING PART OF THE LAW APPLICABLE TO THE EMPLOYEES OF THE COMMUNITIES , DISCRIMINATION OCCURS ONLY WHERE IDENTICAL OR COMPARABLE SITUATIONS ARE TREATED IN AN UNEQUAL WAY .

6 CONTRARY TO THE VIEW PUT FORWARD BY THE APPLICANTS , A BREACH OF THE PROHIBITION OF DISCRIMINATION OCCURS ONLY IN CASES OF UNEQUAL TREATMENT WHERE THE DISCRIMINATION IS NOT OBJECTIVELY JUSTIFIED . IN THIS CASE , HOWEVER , AS THE DEFENDANT CONTENDS , THE CLASSIFICATION IN CAREER BRACKET C 2/C 3 OF THE COMMISSION ' S OPERATORS OF INTERPRETATION EQUIPMENT IN LUXEMBOURG IS WARRANTED BY THE FACT THAT THEY ARE FEW IN NUMBER AND HENCE ARE BETTER ABLE TO REPLACE ONE ANOTHER , WHEREAS THE APPLICANTS BELONG TO A DEPARTMENT WHICH HAS A LARGER NUMBER OF OPERATORS . IN ADDITION , IT SHOULD BE RECALLED THAT EVERY INSTITUTION IS RESPONSIBLE , WITHIN THE LIMITS LAID DOWN IN ARTICLES 5 AND 7 OF THE STAFF REGULATIONS AND IN ANNEXES I A AND I B THERETO , FOR DEFINING THE DUTIES AND POWERS ATTACHING TO EVERY BASIC POST .

7 AS REGARDS THE TECHNICIANS EMPLOYED BY THE PARLIAMENT , TO WHOSE SITUATION THE APPLICANTS COMPARE THEIR OWN , IT IS SUFFICIENT TO OBSERVE THAT IN NOTICE OF COMPETITION NO COM/C/4/78 THE COMMISSION CALLED ONLY FOR A KNOWLEDGE OF RADIO TECHNOLOGY , WHEREAS THE PARLIAMENT , IN A SIMILAR NOTICE OF OPEN COMPETITION IN THE SAME YEAR , CALLED FOR A ' ' TECHNICAL DIPLOMA IN RADIO-ELECTRICITY ' ' FOR TECHNICIANS IN GRADE C 3 .

8 MOREOVER , SENIORITY , AGE AND THE RESULTANT EXPERIENCE ARE OBJECTIVE CRITERIA WHICH , AS IN THIS CASE , ENABLE TECHNICIANS SUCH AS OPERATORS OF INTERPRETATION EQUIPMENT TO BE CLASSIFIED IN DIFFERENT WAYS .

9 IT FOLLOWS FROM THE FOREGOING THAT THE APPLICANTS ' FIRST ARGUMENT MUST BE REJECTED .

10 IN THE SECOND PLACE , THE APPLICANTS CLAIM THAT , CONTRARY TO ARTICLE 5 ( 4 ) OF THE STAFF REGULATIONS AND TO THE GENERAL IMPLEMENTING PROVISIONS OF ANNEX I A THERETO , THE DEFENDANT REFUSED TO GRANT A DIFFERENTIAL ALLOWANCE ON THE GROUND THAT A CLERICAL ASSISTANT MAY BE CALLED UPON TO PERFORM DUTIES OF AN OPERATOR OF INTERPRETATION EQUIPMENT , WHEREAS THE COMMISSION ITSELF HAS CLASSIFIED THOSE DUTIES AMONGST THOSE WHICH MAY BE ENTRUSTED ONLY TO A CLERICAL OFFICER .

11 THEY BASE THEIR ARGUMENT ON THE DESCRIPTION OF THE DUTIES AND POWERS ATTACHING TO THE BASIC POSTS , WHICH WAS ADOPTED PURSUANT TO ARTICLE 5 ( 4 ) OF THE STAFF REGULATIONS AND PUBLISHED IN ' ' STAFF COURIER ' ' NO 272 OF 4 SEPTEMBER 1973 , FROM WHICH IT IS APPARENT THAT THE DUTIES OF AN OPERATOR OF INTERPRETATION EQUIPMENT MAY BE PERFORMED ONLY BY A CLERICAL OFFICER IN CAREER BRACKET C 2/C 3 AND NOT BY A CLERICAL ASSISTANT IN CAREER BRACKET C 4/C 5 .

12 HOWEVER , THE COMMISSION CORRECTLY POINTS OUT THAT THE TITLES OF THE POSTS APPEARING IN THAT DECISION ARE ILLUSTRATIVE AND NOT LIMITATIVE IN CHARACTER , A FACT WHICH IS ESPECIALLY APPARENT FROM THE WORDS ' ' IN PARTICULAR ' ' , INSERTED ABOVE THE LIST OF TITLES OF THE POSTS RELATING TO EACH CAREER BRACKET .

13 THUS THE SECOND ARGUMENT PUT FORWARD BY THE APPLICANTS MUST ALSO BE REJECTED .

14 LASTLY , THE APPLICANTS MAINTAIN THAT CONTRARY TO ARTICLE 7 ( 2 ) OF THE STAFF REGULATIONS AND IN BREACH OF THE PRINCIPLE OF FAIRNESS AND OF THE DUTY OF THE ADMINISTRATION TO ASSIST ITS OFFICIALS , THEY WERE REFUSED A DIFFERENTIAL ALLOWANCE EVEN THOUGH THEY WERE PERFORMING , ON A PERMANENT BASIS AND FOR A LONG PERIOD OF TIME , DUTIES OF A HIGHER LEVEL OF RESPONSIBILITY THAN THOSE CORRESPONDING TO THE CAREER BRACKET OF CLERICAL ASSISTANT .

15 AS THE COURT HELD IN ITS JUDGMENT OF 12 MARCH 1975 IN CASE 23/74 KUSTER V PARLIAMENT ( 1975 ) ECR 353 , THE APPLICATION OF ARTICLE 7 ( 2 ), WHICH PROVIDES FOR A TEMPORARY POSTING ALLOWANCE , REQUIRES AN EXPRESS DECISION OF THE APPOINTING AUTHORITY , WHICH IS LACKING IN THIS CASE . FURTHERMORE , IT APPEARS FROM THE DISCUSSION OF THE PREVIOUS ARGUMENT THAT THE APPLICANTS DO NOT PERFORM DUTIES OF A HIGHER LEVEL OF RESPONSIBILITY THAN THOSE WHICH MAY BE ASSIGNED TO OFFICIALS OF THEIR GRADE . FURTHERMORE , AS THE CONCEPT OF A TEMPORARY POSTING NORMALLY IMPLIES , THE DUTIES WHICH THEY PERFORM ARE NO DIFFERENT FROM THOSE WHICH ARE INHERENT IN THEIR OWN POSTS .

16 THE THIRD ARGUMENT , WHEREBY THE APPLICANTS SEEK THE ANNULMENT OF THE COMMISSION ' S DECISIONS TO REFUSE THEM A DIFFERENTIAL ALLOWANCE , MUST THEREFORE BE REJECTED AS UNFOUNDED .

CLAIM FOR COMPENSATION

17 THE APPLICANTS ALLEGE THAT THE COMMISSION WAS GUILTY OF MALADMINISTRATION INASMUCH AS IT UNDERESTIMATED THE IMPORTANCE OF THE DUTIES AND RESPONSIBILITIES ENTRUSTED TO THEM AND ORGANIZED ITS ADMINISTRATION IN SUCH A WAY THAT CLERICAL ASSISTANTS PERMANENTLY PERFORM THE DUTIES OF CLERICAL OFFICERS AND ARE DIRECTLY ANSWERABLE TO A PRINCIPAL CLERICAL OFFICER , WHEREAS THE DUTIES OF A CLERICAL ASSISTANT SHOULD ESSENTIALLY BE PERFORMED UNDER THE SUPERVISION OF A CLERICAL OFFICER .

18 NONE THE LESS , ACCORDING TO WELL-ESTABLISHED CASE-LAW EACH INSTITUTION DRAWS UP ITS LIST OF POSTS INDEPENDENTLY AND ENJOYS WIDE DISCRETIONARY POWERS IN THE ORGANIZATION OF ITS DEPARTMENTS . SINCE THE APPLICANTS HAVE FAILED TO DEMONSTRATE THAT THEIR PRESENT DUTIES ARE NOT IN KEEPING WITH THOSE OF A CLERICAL ASSISTANT IN GRADE C 5 OR C 4 , THE COMMISSION CANNOT BE HELD TO HAVE MISUSED ITS POWERS .

19 THE ARGUMENT MUST THEREFORE BE REJECTED .

Decision on costs

COSTS

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