Report for the Hearing delivered in Case 91/85

I — Statement of facts and written procedure

1. Article 1 (2) of Council Regulation (ECSC, EEC, Euratom) No 2615/76 of 21 October 1976 amending Regulation (EEC, Euratom, ECSC) No 259/68 as regards the conditions of employment of other servants of the European Communities (Official Journal 1976, L 299, p. 1) added a paragraph (d) to the Conditions of Employment of Other Servants of the European Communities (hereinafter referred to as ‘the Conditions’) according to which staff engaged to fill temporarily a permanent post paid from research and investment appropriations and included in the list of posts appended to the budget relating to the institution concerned are to be regarded as temporary staff. Previously, such staff had been engaged either as local staff or members of the establishment staff. The final recital in the preamble to Regulation No 2615/76 specifies that the conditions laid down in the regulation are to apply only to staff paid from the research and investment appropriations and do not in any circumstances constitute a precedent with regard to employment in the European public service. Article 1 (5) of the same regulation added a fifth paragraph to Article 20 of the Conditions in which it is provided that the basic monthly salaries of staff to whom Article 2 (d) applies is to be determined for each grade and step in accordance with a table appended thereto. That table was different from the tables applicable to officials inasmuch as it fixed the salaries for Categories C and D at a level about 5% below that provided for officials in the corresponding categories.

2. Article 7 of Council Regulation (ECSC, EEC, Euratom) No 1578/85 of 10 June 1985 amending the conditions of employment of other servants of the European Communities (Official Journal, L 154, p. 1) provides that, in Article 20 of the Conditions, the fifth paragraph and the scale of basic monthly salaries is to be deleted. According to Article 13, Regulation No 1578/85 applies, with effect from 1 January 1985, to temporary staff in service when the regulation came into force. That regulation was adopted after the present action had been brought on 5 April 1985.

3. The three applicants were engaged by the Commission, Anne-Marie Christ on 1 July 1979, Olga Priplata on 4 July 1979 and Elizabeth McDonnell on 1 June 1979, as members of the temporary staff filling ‘a post which is included in the list of posts appended to the section of the budget relating to each institution and which the budgetary authorities have classified as temporary’ (Article 2 (a) of the Conditions). They were classified in Category C.

4. In 1983, the applicants were assigned to temporary posts (FAST) which were transformed into permanent posts with effect from 1 January 1984.

5. On 30 March 1984, the Commission sent the applicants a draft agreement supplementary to their contracts of service which provided that they would be engaged as members of the temporary staff under Article 2 (d) of the Conditions with effect from 1 January 1984 and would make them subject to the provisions applicable to members of the temporary staff under that article. Anne-Marie Christ and Elizabeth McDonnell signed the supplementary agreement at the end of April 1984 and Olga Priplata signed it at the beginning of May 1984.

6. By letter of 27 April 1984, Mrs Priplata was informed that, as a result of the application of the new salary scale from the month of January 1984, she had received an over-payment of BFR 11388 for the period from 1 January to 30 April 1984 and that that sum would be recovered by way of deduction from her salary for the month of June 1984. Mrs Priplata and Miss McDonnell noted when reading their salary statements for May 1984 that their basic salary had been reduced. By memorandum of 7 June 1984, Miss McDonnell was informed that she had received an overpayment of BFR 10748 for the period from 1 January to 30 April 1984 and that that sum would be deducted from her salary for the months of June and July 1984. With regard to Mrs Christ, the new salary scale was applied to her for the first time in respect of her salary for the month of July 1984 and, at the same time, an overpayment of BFR 20262 for the period from 1 January to 30 June 1984 was recovered. Following a complaint from the applicants, the appointing authority decided not to recover the sums wrongly paid in respect of the months of January, February and March 1984, since the agreement supplementary to the contract of employment was dated 30 March 1984.

7. By memoranda of 25, 26 and 20 July 1984 the applicants submitted a complaint under Article 90 (2) of the Staff Regulations concerning the supplementary agreement modifying their contract of employment, which ‘adversely affected them in regard to their basic salary’ (-5%) by changing their status from that of a member of the temporary staff under Article 2 (a) (initial contract) to Article 2 (d) of the Conditions'.

8. The Commission rejected the complaints in a series of reasoned decisions, dated 4 January 1985 in regard to Mrs Christ, notified to her on 25 January 1985, and dated 10 January 1985 in regard to Mrs Priplata and Miss McDonnell, notified to Mrs Priplata on 25 January 1985 and to Miss McDonnell on 21 January 1985.

9. By an application lodged at the Court Registry on 5 April 1985, Anne-Marie Christ, Olga Priplata and Elizabeth McDonnell brought an action against the Commission in which they claimed that the Court should: (1) Declare their application admissible and well founded; (2) Annul the salary statements for May 1984 issued by the Commission to Mrs Priplata and Miss McDonnell and that for July 1984 issued to Mrs Christ as well as all subsequent salary statements inasmuch as they apply Regulation No 2615/76, adopted by the Council on 21 October 1976, which adds a fourth paragraph and the accompanying table of salaries to Article 20 of the Conditions; (3) Order the defendant to pay all the costs of the case pursuant to Article 69 (2) of the Rules of Procedure and also the expenses necessarily incurred by the applicant for the purposes of the procedure, in particular, the travel and subsistence expenses and the fees of a lawyer pursuant to Article 73 (b) thereof. In their reply lodged on 13 December 1985, the applicants reduced their claim, having regard to Regulation No 1578/85, which had been adopted in the interim, and ultimately claimed that the Court should: (i) Annul the salary statements issued by the Commission to Mrs Priplata and Miss McDonnell for the period from May to December 1984 and to Mrs Christ for the period from July to December 1984 to the extent that they constitute an application of the regulation at issue, namely Regulation No 2615/76, adopted by the Council on 26 October 1976, adding a fifth paragraph to Article 20 of the Conditions and the table of salaries appended thereto; (ii) Order the Commission to pay all the costs.

10. The Commission contends that the Court should: (i) Declare the application admissible but unfounded; (ii) Make the appropriate order as to costs.

11. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

II — Submissions and arguments of the parties

The submissions and arguments of the parties turn essentially on three points:

a) the unlawfulness of Regulation No 2615/76

b) the historical and budgetary reasons underlying the regulation in question

c) the fact that the Commission and the Council were aware of the unlawfulness of the regulation.

A — The unlawfulness of Regulation No 2615/76

1. The applicants claim first that Regulation No 2615/76 unlawfully added a fifth paragraph to Article 20 of the Conditions inasmuch as it fixed the salaries for Categories C and D at a level approximately 5% below that provided for officials and other members of the temporary staff in the corresponding categories. Since there is no objective justification for that measure, the regulation is manifestly contrary to the overriding principle of equal treatment, recognized by the Court in its judgments of 31 May 1979 (Case 156/78 Newth v Commission [1979] ECR 1941) and of 2 December 1982 (Joined Cases 198 to 202/81 Micheli and Others v Commission [1982] ECR 4145). The applicants were, with retroactive effect from 1 April 1984, victims of discrimination vis-à-vis other officials and members of staff performing the same duties and in comparable positions. The applicants consider that the legal nature of the relationship under which the work is carried out is identical both for members of staff in Categories C and D engaged under Article 2 (d) of the Conditions and for those in Categories A and B paid out of the same appropriations. They claim that they were engaged on the basis of the same criteria as officials and other servants of the European Communities and that the Commission does not justify the difference in salary on the basis of a difference in seniority or age or any other objective factor. The applicants' salaries dropped by about 5% even though they occupied exactly the same posts as they had occupied before they ceased to be temporary servants under Article 2 (a) of the Conditions and became temporary servants under Article 2 (d).

2. The Commission states that staff engaged to fill temporarily a permanent post paid from research and investment appropriations and included in the list of posts appended to the budget relating to the institution concerned were not initially regarded as members of the temporary staff but as local staff or members of the establishment staff. It also states that even though Regulation No 2615/76 gave all the staff of the research centres the status of temporary servants, notwithstanding a certain reluctance, regardless of the category to which the person belonged, it was none the less provided that they would constitute a distinct sub-category within the temporary staff: that referred to in Article 2 (d) of the Conditions. The applicants' argument, which amounts to a claim that such staff had, immediately and ab initio, the right to be subject to the same conditions of employment as other members of the temporary staff, is totally without foundation. The Commission refers to the Opinion of Mr Advocate General Darmon in Case 326/82 (judgment of 20 May 1984, Helga Aschermann and Others v Commission [1984] ECR at 2268), according to which: According to the Commission, the Court's previous decisions show that ‘it is not possible to question the differences in status between the various categories of persons employed by the Communities, whether as officials properly so called or in various categories of staff covered by the Conditions of Employment of Other Servants... each of those categories is defined in accordance with the legitimate requirements of the Community administration and the nature of the permanent or temporary tasks which it has to perform. The fact that some categories of persons employed by the Communities may enjoy guarantees under the Staff Regulations and social security benefits which are not given to other categories cannot, therefore, be regarded as discrimination ... ’ (Judgment of 6 October 1983 in Joined Cases 118 to 123/82 Celant and Others v Commission [1983] ECR at 3012, paragraph 23; judgment of 23 January 1986 in Case 171/84 Soma v Commission [1986] ECR 192, paragraph 30). On the basis of those decisions, the Commission considers that the definition of each of the categories of temporary staff referred to in Article 2 of the Conditions corresponds to legitimate needs of the Community administration and to the nature of the permanent or temporary tasks which it has to perform and that therefore the fact that the various categories of temporary staff are subject to rules which may vary from one category to the other cannot be regarded as discrimination. That applies in particular to the temporary staff referred to in Article 2 (a) and (d) of the Conditions. According to the Commission, the fact that persons employed by the European institutions and performing the same duties receive different salaries is not in itself unlawful. The legal nature of the relationship under which the work is carried out, the degrees or diplomas held, the professional qualifications and experience, seniority in the service, age and historical considerations can justify different salaries being paid for the same work. The Commission adds that although it is true that the staff referred to in Article 2 (d), or at least those in Categories C and D, receive a basic monthly salary which is about 5% lower than that paid to the temporary staff referred to in Article 2 (a), but that is not the only difference. Thus, until recently, Article 39 of the Conditions awarded temporary servants within the meaning of Article 2 (a) and (b) merely a severance grant but not a pension whereas temporary servants within the meaning of Article 2 (c) and (d) were entitled to a pension or to a severance grant, as appropriate, on the same conditions as officials. It was only very recently that the Council adopted, on 27 September 1985, a regulation abolishing the differences in regard to severance grants between the various categories of temporary staff referred to in Article 2 of the Conditions and conferring the right to a pension on temporary servants within the meaning of Article 2 (a). The Commission observes that the applicants complained in their pleadings that their salary had been reduced following their transfer from the category of temporary staff referred to in Article 2 (a) of the Conditions to that of the temporary staff referred to in Article 2 (d) but they did not mention that that transfer gave them a right to a pension which they did not previously enjoy. They also omitted to say that the transfer in question provided them with greater security of employment inasmuch as the posts which they occupy are permanent posts and not temporary posts as was previously the case. According to the Commission, regard must be had to the fact that the applicants made a free, contractual choice to accept their new status as temporary servants within the meaning of Article 2 (d) of the Conditions, that is to say, they were aware of the differences, both favourable and unfavourable, which existed between their new status and that which they had previously had under Article 2 (a). The fact that the applicants in fact continued to perform the same duties is of no consequence.

‘discrimination ... consists of treating in an identical manner situations which are different or treating in a different manner situations which are identical. However, the applicants, who are temporary staff paid from research and investment appropriations, are not recruited on the basis of the same criteria Or paid out of the same appropriations as the officials or the other temporary staff referred to in Article 2 (a), (b) and (c) of the Conditions of Employment; they are subject to special provisions. Consequently, even if they are graded in the same categories, for the purposes of the Staff Regulations and the Budget, they are not in the same position as officials or other temporary staff’.

B — The historical and budgetary reasons underlying the regulation in question

1. The applicants state that the Commission cannot rely on historical or budgetary reasons to justify the fifth paragraph of Article 20, inserted by Regulation No 2615/76. In the statement of the reasons on which its proposal for a regulation of 14 July 1983 was based, the Commission expressly recognized that ‘the principle of equality must take precedence over the historical factors which underlie that difference’ and that ‘that inequality in regard to salaries cannot be maintained in the light of the fact that the work and duties being performed are the same’. The budgetary considerations relied upon also do not stand up to serious examination. The applicants and other temporary staff who are the victims of discrimination belong to Categories C and D, and for that reason, receive a considerably lower salary. The 5% difference represents a negligible saving when compared to the overall financial burden of salaries and even to the total financial burden resulting from the absorption of the former establishment and local staff into the category of temporary staff. The applicants point out that the same financial considerations should have required, a fortiori, that temporary staff in Categories A and B be the victims of similar discrimination.

2. The Commission states that the difference between the basic monthly salaries exists for historical, budgetary reasons. According to the Commission, if that difference did not exist, Regulation No 2615/76, which made it possible to establish a single body of contractual rules for all temporary staff working in the research centres, including those at a level comparable to that of Category C and D, who had previously been establishment or local staff, would undoubtedly never have been adopted. That was the premise on which the salary scales for staff in Categories C and D were drawn up (5% less than that provided for in the scales for officials in Categories C and D) and, on that basis, the Commission was able to state that the change in status envisaged could be carried out without any additional financial burden being imposed on the research appropriations. The reason why Regulation No 2615/76 did not provide for the same 5% difference in the basic monthly salary of temporary staff in Categories A and B covered by Article 2 (d) was that, at the time when that regulation was adopted, the great majority of staff in Categories A and B had the status of officials, whereas in the lower categories the majority of the staff were either establishment or local staff; only a minority of the staff in Category C were officials and there were no officials at all in category D. In any event, Regulation No 2615/76 constituted a significant improvement in the position of the former establishment and local staff of the research centres. According to the Commission, not only did such staff receive an assurance that, by becoming temporary servants within the meaning of Article 2 (d) of the Conditions, they would not suffer any loss of salary but, what is more, in practically all the establishments, the members of staff in question received a significantly higher salary than they had previously received, notwithstanding the fact that the basic monthly salaries for Categories C and D, as laid down in the table included in Article 20 of the Conditions, were about 5% lower than those for the corresponding categories of officials and other temporary staff.

C — The fact that the Commission and the Council were aware of the unlawfulness of the regulation

1. The applicants consider that the Commission was well aware of the discrimination which has been criticized. They point out that on 20 December 1982, Helga Ascherman and 47 other members of staff brought an action before the Court for a declaration that the Commission was required to restore the applicants' position in such a way that their remuneration, in all its component parts, was equal to that received by officials in the same category. Hardly seven months after that action was brought and at a time when the Commission had been applying Regulation No 2615/76 for more than seven and a half years, the Commission, on 14 July 1983, submitted a proposal for a regulation amending the Conditions, in particular, by the abolition of the fifth paragraph of Article 20 and the table of salaries appended thereto. The action was dismissed as inadmissible without the Court ruling on the substance of the case. The applicants emphasize that the Commission's proposal was adopted only on 10 June 1985, that is to say, less than 10 weeks after they brought their action, and the Commission thus took advantage of procedural time-limits obtained on the pretext that discussions were in course. The Commission denies that either it or the Council were aware that Regulation No 2615/76 was unlawful and that it brought the illegality complained of to an end only under the threat of pending actions. Regulation No 2615/76 significantly improved the position of the former establishment and local staff of the research centres. That explains why it was only after several years, when the recollection of that improvement had passed, that the first trade union claims were made, in 1981, concerning the abolition of the existing difference. In its proposal of 14 July 1983, the Commission considered that the time had come to complete the task undertaken in 1976 by abolishing an inequality in regard to salaries originating in historical considerations which no longer existed. In so doing the Commission in no way admitted that the 1976 regulation was in any sense unlawful ab initio. Regulation No 1578/85 was adopted for reasons of fairness and convenience, not for reasons of legality. The Commission's initiative forms a logical part of the initiatives it has taken to improve conditions of service and there is nothing unusual in the length of time which elapsed between the proposal submitted by the Commission to the Council and its adoption, having regard to the different stages which must necessarily be gone through before a regulation of this type can be definitively adopted. The Commission explains that the reason why it twice sought an extension of time for submission of its defence was that it was aware that the adoption of its proposal was imminent and it hoped that the applicants would consider that they had obtained satisfaction and would withdraw their action, which, in the circumstances, must be regarded as precipitate.

F. Schockweiler

Judge-Rapporteur

1 Language of the Case: French.