JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Third Chamber)
21 March 2013 (*)
(Civil service — Remuneration — Annual adjustment of the remuneration and pensions of officials and other servants — Articles 64, 65 and 65a of the Staff Regulations — Annex XI to the Staff Regulations — Regulation (EU) No 1239/2010 — Weightings — Officials assigned to Ispra)
In Case F‑112/11,
ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,
Raffaele Dalmasso, member of the contract staff at the European Commission, residing in Monvalle (Italy), represented by C. Mourato, lawyer,
applicant,
v
European Commission, represented by J. Currall and D. Martin, acting as Agents,
defendant,
supported by
Council of the European Union, represented by M. Bauer and J. Herrmann, acting as Agents,
intervener,
THE CIVIL SERVICE TRIBUNAL (Third Chamber)
composed of S. Van Raepenbusch (Rapporteur), President, R. Barents and K. Bradley, Judges,
Registrar: J. Tomac, Administrator,
having regard to the written procedure and further to the hearing on 27 November 2012,
gives the following
Judgment
1 By application received by the Registry of the Tribunal on 24 October 2011, Mr Dalmasso brought the present action seeking, in essence, the annulment of the decision of the European Commission applying to him Council Regulation (EU) No 1239/2010 of 20 December 2010 adjusting with effect from 1 July 2010 the remuneration and pensions of officials and other servants of the European Union and the correction coefficients applied thereto (OJ 2010 L 338, p. 1), in that it sets the correction coefficient applicable to the remuneration of the staff posted to the province of Varese (Italy; ‘the Varese weighting’) at 92.3%.
Legal context
2 Article 64 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) provides:
‘An official’s remuneration expressed in euros shall, after the compulsory deductions set out in these Staff Regulations or in any implementing regulations have been made, be weighted at a rate above, below or equal to 100%, depending on living conditions in the various places of employment.
These weightings shall be adopted by the Council [of the European Union], acting by a qualified majority on a proposal from the Commission as provided in Article 16(4) and (5) of the Treaty on European Union. The weighting applicable to the remuneration of officials employed at the provisional seats of the Communities shall be equal to 100% as at 1 January 1962.’
3 Article 65 of the Staff Regulations provides:
‘1. The Council shall each year review the remunerations of the officials and other servants of the European Union. This review shall take place in September in the light of a joint report by the Commission based on a joint index prepared by the Statistical Office of the European Union [Eurostat] in agreement with the national statistical offices of the Member States; the index shall reflect the situation as at 1 July in each of the countries of the Union.
During this review the Council shall consider whether, as part of economic and social policy of the Union, remuneration should be adjusted. Particular account shall be taken of any increases in salaries in the public service and the needs of recruitment.
2. In the event of a substantial change in the cost of living, the Council shall decide, within two months, what adjustments should be made to the weightings and if appropriate to apply them retrospectively.
3. For the purposes of application of this Article, the Council shall act by a qualified majority on a proposal from the Commission as provided for in the first indent of Article 205(2) of the Treaty on European Union.’
4 Pursuant to Article 65a of the Staff Regulations, the rules for implementing Articles 64 and 65 are set out in Annex XI thereto.
5 Chapter 1 of Annex XI to the Staff Regulations is entitled ‘Annual review of remuneration provided for in Article 65(1) of the Staff Regulations’. It comprises two sections: the first is entitled ‘Factors determining annual adjustments’ and the second ‘Arrangements for the annual adjustment of remuneration and pensions’.
6 Article 1 of Annex XI to the Staff Regulations, which is part of section 1 of Chapter 1 of that annex, provides:
‘1. Report from the Statistical Office of the European Union (Eurostat)
For the purposes of the review provided for in Article 65(1) of the Staff Regulations, Eurostat shall draw up every year before the end of October a report on changes in the cost of living in Brussels, the economic parities between Brussels and certain places in the Member States, and changes in the purchasing power of salaries in national civil services in central government.
2. Changes in the cost of living for Brussels (Brussels International Index)
Eurostat shall draw up an index, based on data provided by the Belgian authorities, to measure changes in the cost of living for officials of the European Union in Brussels. This index (hereinafter “the Brussels International Index”) shall take into account the changes between June of the previous year and June of the current year and shall be based on the statistical methodology defined by the Working Group on Article 64 of the Staff Regulations referred to in Article 13 [of this annex].
3. Changes in the cost of living outside Brussels (economic parities and implicit indices)
(a) Eurostat shall, in agreement with national statistical institutes or other appropriate authorities in the Member States, calculate the economic parities which establish the equivalence of purchasing power:
(i) of the salaries of officials of the Communities serving in the capitals of the Member States, except for the Netherlands where The Hague is used instead of Amsterdam, and in certain other places of employment with reference to Brussels,
(ii) of the pensions of officials paid in the Member States with reference to Belgium.
(b) The economic parities shall refer to the month of June each year.
(c) The economic parities shall be calculated in such a way that each basic component can be updated twice per year and checked by a direct survey at least once every five years. Eurostat shall update the economic parities using the most appropriate indices as defined by the Working Group on Article 64 of the Staff Regulations referred to in Article 13.
(d) Outside Belgium and Luxembourg, changes in the cost of living during the reference period shall be measured by the implicit indices. These indices are calculated by multiplying the Brussels International Index by the change in the economic parity.
4. Changes in the purchasing power of salaries of national civil servants in central government (specific indicators)
(a) For the purpose of measuring the percentage change, either upward or downward, in the purchasing power of salaries in the national civil services, Eurostat shall, on the basis of information supplied before the end of September by the national authorities concerned, calculate specific indicators reflecting changes in the real remuneration of civil servants in central government, between the month of July of the previous year and the month of July of the current year. The two should include one twelfth of all annually-paid elements.
The specific indicators shall take two forms:
(i) one indicator for each of the function groups, as defined in the Staff Regulations,
(ii) an average indicator weighted to reflect the number of national civil servants corresponding to each function group.
Each of these indicators shall be established in real gross and real net terms. For the transition from gross to net, account shall be taken of statutory deductions and general taxation factors.
To establish the gross and net indicators for the European Union total, Eurostat shall use a sample composed by the following Member States: Belgium, Germany, Spain, France, Italy, Luxembourg, Netherlands and United Kingdom. The Council, acting on a Commission proposal under Article 65(3) of the Staff Regulations, may adopt a new sample which represents at least 75% of the European Union [gross domestic product (GDP)] and which will apply from the year following its adoption. The results per country shall be weighted in proportion to its national GDP measured using purchasing power parities as shown in the most recent statistics published in accordance with the national accounts definitions in the European System of Accounts (ESA) currently in force.
(b) At the request of Eurostat, the appropriate national authorities shall supply it with the additional information which it considers necessary in order to draw up a specific indicator accurately measuring changes in the purchasing power of national civil servants.
If, after further consultation of the national authorities concerned, Eurostat finds statistical anomalies in the information obtained or finds it impossible to draw up indicators which measure with statistical accuracy the changes in the real income of civil servants in a given Member State, it shall report to the Commission and provide it with all the material it needs to make an assessment.
(c) Besides the specific indicators, Eurostat shall calculate certain control indicators. One such indicator shall be in the form of data on real per capita emoluments in central government, drawn up in accordance with the national accounts definitions in the [ESA] currently in force.
The Eurostat report on the specific indicators shall be accompanied by comments on the differences between these indicators and the above‑mentioned control indicators.’
7 Article 3 of Annex XI to the Staff Regulations, which forms part of section 2 of Chapter 1 of that annex, provides:
‘1. Under Article 65(3) of the Staff Regulations, the Council, acting on a Commission proposal and on the basis of the criteria set out in Section 1 of this Annex, shall take a decision before the end of each year adjusting remuneration and pensions, with effect from 1 July.
2. The amount of the adjustment shall be obtained by multiplying the Brussels International Index by the specific indicator. The adjustment shall be in net terms as a uniform across-the-board percentage.
3. The amount of the adjustment thus fixed shall be incorporated, in accordance with the following method, in the basic salary tables appearing in Article 66 of the Staff Regulations and in Annex XIII to the Staff Regulations and in Articles 20, 63 and 93 of the Conditions of Employment of other servants:
(a) the net remuneration and net pension without correction coefficient shall be increased or reduced by the annual adjustment referred to above,
(b) the new table of basic salaries shall be drawn up by calculating the gross amount which, after deduction of tax having regard to paragraph 4 and compulsory deductions for social security and pension contributions, corresponds to the net amount,
(c) the conversion of net amounts into gross amounts shall be based on the situation of an unmarried official who does not receive the allowances provided for in the Staff Regulations.
…
5. No correction coefficient shall be applicable in Belgium and Luxembourg. The correction coefficients applicable:
(a) to the salaries of officials of the European Union serving in each of the Member States and in certain other places of employment,
(b) by derogation from Article 82(1) of the Staff Regulations, to Community pensions paid in the other Member States for the part corresponding to the acquired rights acquired before 1 May 2004,
shall be determined on the basis of the ratios between the corresponding economic parities referred to in Article 1 [of this annex] and the exchange rates specified in Article 63 of the Staff Regulations for the relevant countries.
The procedures laid down in Article 8 of this Annex concerning the retrospective application of correction coefficients in places of employment with a high rate of inflation shall apply.
…’
8 Article 9 of Annex XI to the Staff Regulations provides:
‘1. The appropriate authorities of the Member States concerned, the administration of an institution of the European Union or the representatives of officials of the European Union in a given place of employment can request the creation of a correction coefficient specific to that place.
This request should be supported by objective factors revealing an appreciable difference over some years in the cost of living between that place of employment and the capital of the Member State concerned (except for the Netherlands where The Hague is used instead of Amsterdam). If Eurostat confirms that the difference is appreciable (more than 5%) and sustainable, the Commission should present a proposal to set a correction coefficient for that place.
2. Likewise the Council shall decide, on a proposal from the Commission, to withdraw the application of a correction coefficient specific to a certain place. In that case the proposal shall be based on one of the following:
(a) a request by the appropriate authorities of the Member State concerned, the administration of an institution of the European Union or the representatives of officials of the European Union in a given place of employment showing that the cost of living in that place is no longer significantly different (less than 2%) than that of the capital of the Member State concerned. This convergence should be sustainable and validated by Eurostat,
(b) the fact that there are no longer any officials and temporary staff of the European Union employed in that place.
3. The Council shall decide on the proposal in accordance with the second paragraph of Article 64 of the Staff Regulations.’
9 Articles 64, 65 and 65a of the Staff Regulations are applicable to members of the contract staff by virtue of Articles 20 and 92 combined of the CEOS.
10 Furthermore, point 1.1 of Annex I, entitled ‘M[ethodology]’, to Regulation (EC) No 1445/2007 of the European Parliament and of the Council of 11 December 2007 establishing common rules for the provision of basic information on Purchasing Power Parities and for their calculation and dissemination (OJ 2007 L 336, p. 1) provides:
‘A methodological manual will be provided by the Commission (Eurostat), following consultation with the Member States, describing the methods used at the various stages of compiling [purchasing power parities], including the methods for estimating missing basic information and for estimating missing parities. The methodological manual will be revised whenever a significant change to the methodology is made. It may introduce new methods to improve data quality, reduce costs or lessen the burden on data suppliers.’
Background to the dispute
11 The applicant is assigned to the Commission’s Joint Research Centre (JRC) in Ispra, province of Varese (Italy). The weighting applicable to his remuneration is the Varese weighting, which is a different weighting from the weighting for Italy.
12 By Regulation (EU) No 1239/2010, the Council adjusted, with effect from 1 July 2010, the remuneration of officials and other servants of the European Union and the correction coefficients applied thereto, in particular pursuant to Article 64 of the Staff Regulations.
13 The Varese weighting, which had been set at 97.1% for the period from 1 July 2009 to 30 June 2010, was set, by Article 3 of Regulation No 1239/2010, at 92.3% with effect from 1 July 2010. That new weighting was applied for the first time to the applicant when his February 2011 salary statement was drawn up.
14 On 21 March 2011, the applicant lodged a complaint against the Commission’s decision establishing his salary statement for February 2011 in so far as it applies the new Varese weighting to him.
15 By a decision of 12 July 2011, the Commission rejected the applicant’s complaint.
Forms of order sought by the parties
16 The applicant claims that the Tribunal should:
– ‘annul his salary slip of February 2011 and the salary slips for the following months applying [the new Varese weighting]’;
– annul the Commission’s decision of 12 July 2011 rejecting his complaint;
– order the Commission to pay the costs.
17 The Commission contends that the Tribunal should:
– dismiss the action;
– order the applicant to pay the costs.
18 The Council of the European Union, intervener, contends that the Tribunal should dismiss the action.
Law
19 It is settled case-law that the EU Tribunal is entitled to assess, according to the circumstances of each case, whether the proper administration of justice justifies the dismissal of the action on the merits without first ruling on the objection of inadmissibility raised by the defendant (judgment of 20 November 2012 in Case F‑1/11 Soukup v Commission, paragraph 29 and the case-law cited). In the circumstances of the present case and in the interests of procedural economy, although, in his application, the applicant confines himself, in part, to a reference to his complaint for the details of his arguments, the pleas as to the substance which he raises in the present action must be examined, without first ruling on the objection of inadmissibility raised by the Commission, since the action is, in any event, unfounded on the grounds set out below.
20 In support of his arguments seeking annulment, the applicant raises three pleas in law, alleging an infringement of the duty to state reasons and of the right to access to documents, a manifest error of assessment and an infringement of the principle of non-discrimination.
The first plea in law, alleging infringement of the duty to state reasons and of the right to access to documents
21 The first plea is in two parts.
22 In the first part, the applicant raises an objection of failure to state sufficient reasons which, in his view, vitiates the lawfulness of Regulation No 1239/2010 on which the individual decision which he contests is based.
23 In that regard, it must be borne in mind that the statement of reasons for a regulation which sets the weightings affecting officials’ remuneration may be confined to indicating the general situation which led to its adoption and the general objectives which it is intended to achieve, and need not refer to the technical aspects of the methods of calculation (see, with regard to the implementing regulations for Articles 64 and 65 of the Staff Regulations, judgment of 7 December 1995 in Joined Cases T‑544/93 and T‑566/93 Abello and Others v Commission, paragraph 89; see also, with regard to the regulation setting the weighting affecting the remuneration of officials assigned to countries outside the European Union, judgment of 8 November 2000 in Case T‑175/97 Bareyt and Others v Commission, paragraph 75). In the present case, the statement of reasons for Regulation No 1239/2010, although succinct, is sufficient in the light of those considerations.
24 In particular, Regulation No 1239/2010 concerns Articles 64 and 65 of the Staff Regulations and Annex XI thereto, which lay down the conditions under which the weightings are adjusted each year, that is to say, for the officials whose remuneration is stated in Euros, taking account of changes in the cost of living in Brussels and in the other places of employment to which a weighting is applied. Thus, it is clear that the reason for the adjustment of the Varese weighting is a change in the difference between the cost of living in Brussels and in Varese.
25 If it were possible for the applicant to be regarded as alleging an insufficient statement of reasons vitiating the lawfulness of the individual decision applying Regulation No 1239/2010 to him, that argument must also be rejected.
26 It is settled case-law that the statement of reasons for a decision having adverse effect is intended, on the one hand, to provide the person concerned with sufficient information to determine whether the decision was well founded and whether it is appropriate to bring proceedings before the Tribunal, and on the other, to enable the Tribunal to carry out its review. With regard to a decision by which the administration applies a measure of general application to the individual situation of an official, without having any discretion in that regard, the statement of reasons may be confined to a reference to the legislative measure and an indication, if necessary in the circumstances of the case, of the reasons why the administration considers the conditions for the application of that measure to that official are met. However, the administration is not required to state the reasons why the European Union legislature adopted the legislative measure by (Bareyt and Others v Commission, paragraphs 76 and 77).
27 In the present case, the decision of 12 July 2011 rejecting the applicant’s complaint clearly shows that the individual decision which the applicant seeks to have annulled was made on the basis of Regulation No 1239/2010. Having regard to the fact that the administration was required to apply that regulation to the applicant’s remuneration, that statement of reasons must be considered to be sufficient (Bareyt and Others v Commission, paragraph 78).
28 In the second part of the first plea in law, alleging infringement of the right of access to documents, the applicant criticises the Commission’s refusal to grant a request for additional information, made by the representatives of the staff as part of the work of the ‘Technical Group on Remunerations’ (‘the TGR’) during discussions prior to the adoption of Regulation No 1239/2010. In that regard, he refers, in particular, to the provisions of Article 15 TFEU, the provisions of Regulation No 1445/2007, the provisions of the methodological manual referred to in point 1.1 of Annex I to that regulation, the provisions of Regulation (EC) No 223/2009 of the European Parliament and of the Council of 11 March 2009 on European statistics and repealing Regulation (EC, Euratom) No 1101/2008 of the European Parliament and of the Council on the transmission of data subject to statistical confidentiality to the Statistical Office of the European Communities, Council Regulation (EC) No 322/97 on Community Statistics, and Council Decision 89/382/EEC, Euratom establishing a Committee on the Statistical Programmes of the European Communities (OJ 2009 L 87, p. 164), the provisions of Article 11 of Annex XI to the Staff Regulations, which provide in particular that ‘it shall be the task of Eurostat to monitor the quality of basic data and statistical methods used to work out the factors taken into account for the adjustment of remuneration’, the principle of sound administration and, finally, the principle of openness.
29 However, the applicant fails to establish that sending certain statistical data to the union representatives or consulting those union representatives constitutes an act preparatory to the adoption of Regulation No 1239/2010 or to that of the individual decisions applying it. In particular, although, at the hearing, he raised a procedural defect which, in his view, vitiated the adoption of Regulation No 1239/2010 in that the Commission wrongfully refused to send the data to the members of the TGR, whose role consists precisely of arranging consultation with the staff representatives before the adoption of regulations relating to the weightings, he fails to establish that one of the provisions or principles on which he relies in that regard, particularly those referred to in paragraph 28 of this judgment, required information to be sent to the TGR for the purposes of the adoption of Regulation No 1239/2010. Accordingly, the Tribunal cannot find that there was any procedural defect.
30 Thus, even if the staff representatives taking part in the work of the TGR were not kept sufficiently informed by the Commission and, in particular, if it were established that the Commission refused to grant a request from those representatives for information, that fact does not affect the lawfulness of Regulation No 1239/2010 or the individual decisions applying it.
31 The argument that the refusal to grant a request for additional information was unlawful must therefore be rejected as irrelevant.
32 In any event, with regard to the applicant’s own right of access to the documents, it was for him to make an application under Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) for access to the documents which he wished to have disclosed to him. After making such an application, and if it was rejected by the administration, he could have contested that rejection before the European Union Courts and could, if appropriate, have brought an action for annulment of his salary statements on the basis of the information thus obtained, arguing, if necessary, the existence of a material new fact. In those circumstances, the argument put forward by the applicant at the hearing that there was an infringement of the right to effective judicial protection cannot succeed.
33 The foregoing considerations cannot be called into question by the other arguments raised by the applicant as part of the plea alleging infringement of the right to access to documents.
34 Thus, with regard to the argument alleging the failure to have regard, in Regulation No 1239/2010 or in the decision applying it to the applicant, to the provisions of Article 11 of Annex XI to the Staff Regulations, those provisions, which state that it is the task of Eurostat to monitor the quality of data and statistical methods, have no bearing on the reasons for the disputed individual decision. However, to the extent that the applicant’s argument seeks to show that the data or methods used by Eurostat are not reliable, that will be examined next, in the context of the plea in law alleging a manifest error of assessment.
35 It follows from all of the foregoing that both parts of the first plea in law must be rejected.
The second plea in law, alleging a manifest error of assessment
36 As a preliminary point, it must be borne in mind that the principle of purchasing power equivalence between officials – which follows, in particular, from the provisions of Article 64 of the Staff Regulations – implies that the financial entitlements of officials and other staff secure, in equivalent professional and family situations, identical purchasing power irrespective of the place of work. That principle is implemented by applying to remuneration weightings expressing the ratio of the cost of living in Brussels, the reference city, to that of the different places of employment (judgment of 25 September 2002 in Joined Cases T‑201/00 and T‑384/00 Ajour and Others v Commission, paragraph 45).
37 With regard to the establishment or review of weightings, under Annex XI to the Staff Regulations, Eurostat is responsible for calculating the economic parities, in agreement with the statistical services of the Member States, and for ascertaining whether the ratios between the weightings accurately reflect purchasing power equivalences (Abello and Others v Commission, paragraph 55, and Ajour and Others v Commission, paragraph 46).
38 In that regard, it must be borne in mind that, according to case-law, the wording of Articles 64 and 65 of the Staff Regulations and of Annex XI to the Staff Regulations and the degree of complexity of the subject imply a wide discretion as regards the factors and elements to be taken into consideration when establishing or adjusting the weightings (Abello and Others v Commission, paragraph 53, and Ajour and Others v Commission, paragraph 47).
39 Accordingly, the assessment of the European Union Courts, as regards the definition and choice of the basic data and statistical methods used by Eurostat to draw up proposals for the weightings, must be confined to verifying that the principles laid down by the Staff Regulations have been complied with and that there has been no manifest error of assessment of the facts on which the weightings are based and that there has been no misuse of powers (Abello and Others v Commission, paragraph 56, and Ajour and Others v Commission, paragraph 48).
40 In addition, it must be pointed out that it is for the parties who wish to challenge the factors and the method used to establish the weightings to provide the information that could demonstrate that a manifest error has been committed (Abello and Others v Commission, paragraph 79, and Ajour and Others v Commission, paragraph 49).
41 Firstly, according to the applicant, the Varese weighting was reduced in a disproportionate manner having regard to the changes in the inflation differential between Brussels and Varese.
42 It is true that there was a reduction of 4.8% in the Varese weighting, which changed, in July 2010, from 97.1% to 92.3%.
43 In the applicant’s view, that is a substantial change which should reflect an equally substantial difference between the overall trend in prices in Brussels and the overall trend in prices in Varese.
44 It is apparent from the data produced by the applicant himself that between June 2009 and June 2010 the overall increase in prices was greater in Brussels than in Varese.
45 Thus, at first sight, a reduction in the Varese weighting appears to be justified.
46 Nevertheless, the applicant contests the extent of that reduction, which is, in his view, disproportionate in comparison with the difference between the increase in prices in Brussels and the increase in prices in Varese.
47 In the present case, the figures produced by the applicant, if they are correct, suggest that there is an inflation differential between Brussels and Varese of 1.2%, whereas the Varese weighting has been reduced by 4.8%.
48 However, it must be pointed out that the figures concerning the increase in prices are not derived from an exhaustive listing of all the transactions carried out during a certain period but seek, on the basis of enquiries, to give a merely representative estimate of the trends. Thus, in an area where only an approximation is possible, the finding of a mere disparity between the price trend differential between Brussels and another place of employment and the trend in the weighting applied to that place of employment cannot be sufficient to lead to the conclusion that there has been a manifest error of assessment. In order for that to be the case, the disparity in question must be particularly significant.
49 In those circumstances, even if the figures produced by the applicant were sufficiently reliable, the disparity found between the trend in comparative prices in Brussels and Varese and the trend in the Varese weighting do not point to the conclusion that there has been a manifest error of assessment.
50 In any event, in order to attempt to establish that the extent of the reduction in the Varese weighting is disproportionate in comparison with the disparity between the increase in prices in Brussels and the increase in prices in Varese, the applicant bases his argument on the alleged existence of a proportional relationship between the disparities in price variations and the weighting.
51 However, it follows from the Eurostat report of 18 November 2010 on the annual adjustment of remuneration and pensions (SEC/2010/1406 final), established in accordance with Articles 64 and 65 of and Annex XI to the Staff Regulations (‘the Eurostat report’), attached to Proposal COM(2010)678 which led to the adoption of Regulation No 1239/2010 to which the applicant refers in his complaint, that the calculation of the weightings cannot be reduced to a measure of the difference in the trend in the consumer prices index in Brussels and in the other places of employment.
52 The weightings are calculated on the basis of a certain number of categories of expenditure. A price ratio between Brussels and each place of employment is calculated for each of those categories of expenditure. That price ratio is then weighted according to the relative size of the category of expenditure in the basket of goods of the ‘average international official’ in Brussels, and the basket of goods of the ‘average international official’ in the place of employment.
53 Since that specific weighting reflects the structure of the expenditure of the ‘average international official’, there is no direct proportional relationship between the overall price trend differential between Brussels and another place of employment and the adjustment of the weighting applicable to that other place of employment.
54 In that regard, the Commission had, moreover, stated in its rejection of the complaint as follows:
‘The new expenditure structure for Brussels gives a greater weight to rent and other components which are relatively more expensive in Brussels than in Varese, and a lesser weight to elements which are relatively cheaper in Brussels. In consequence, the relative level of prices in Brussels has risen in comparison with that in Varese, which means that, in order to maintain the same purchasing power, the remuneration of an official assigned to Varese must be reduced in comparison with that of an official assigned to Brussels.’
55 Thus, the applicant’s argument concerning the relationship between the variations in the prices index and those in the weightings for Brussels and Varese must be rejected.
56 Secondly, the applicant alleges that, contrary to what is indicated by the data on the basis of which the Varese weighting was calculated – data which appear in the Eurostat report to which the applicant refers in his written submissions – the prices of electricity, household gas and home heating oil are higher in Varese than in Brussels.
57 However, the matters relied on by the applicant cannot be regarded as being sufficiently reliable or relevant to lead to a conclusion that there has been a manifest error of assessment.
58 The applicant bases his arguments, in part, on too restricted a sample of invoices (eight invoices in Brussels and seven in Varese for electricity, six invoices for Brussels and eight for Varese for domestic gas), while, as the Commission has stated in its rejection of the complaint, Eurostat uses estimates obtained directly from energy suppliers.
59 The applicant also bases his arguments on information which, in his submission, was supplied by a commercial organisation which gathers and publishes energy data. The applicant does not establish how the reliability of the data on which he bases his arguments is greater than that of the data relied upon by Eurostat. Furthermore, those data do not relate to Brussels and Varese, but to Belgium and Italy, which greatly limits their relevance.
60 Next, it must be found that the applicant has not succeeded in establishing that the data concerning the relationship between the prices of electricity, household gas and home heating oil charged in Brussels and those charged in Varese, on the basis of which the Varese weighting was calculated, are manifestly incorrect.
61 Thirdly, the applicant alleges that the ratio established between the prices of health care services in Brussels and in Varese ought to be much higher than that indicated by the data on the basis of which the weighting was calculated – data which appear in the Eurostat report.
62 The applicant bases his arguments on the parity coefficients implemented, on the basis of Article 20(5) of the Joint Rules on sickness insurance for officials of the European Union, adopted pursuant to Article 72 of the Staff Regulations, with a view to ensuring that, for a certain number of services for which reimbursement is subject to a ceiling, the actual rate of reimbursement in each of the Member States is identical to that applied in Belgium.
63 In the applicant’s submission, a certain number of parity coefficients show some health care services which are more expensive in Italy than in Belgium.
64 First of all, it must be noted that the applicant has not produced the documents on the basis of which he drew up the graphs and tables which appear in the complaint, but merely indicates the internet address from which he was able to collect those data. By virtue of Article 34(4) of the Rules of Procedure, it is not for the Tribunal to search on the Internet for documents which have not been annexed to the pleadings.
65 Next, the parity coefficients take account only of the expenses in respect of which a reimbursement by the Joint Sickness Insurance Scheme (‘JSIS’) is possible, which excludes certain non-reimbursed costs which are nevertheless related to health care.
66 Furthermore, in its rejection of the complaint, the Commission has stated, without the point having been disputed, that the parity coefficients apply only to certain of the expenses reimbursed by the JSIS.
67 Thus, in the light of the limited reliability of the data on which the applicant bases his arguments and the limits of the method taking into account the parity coefficients, it must be concluded that the applicant has not succeeded in establishing that the ratio, set out in the Eurostat report, between the prices of health care services in Brussels and those in Varese is manifestly incorrect.
68 In any event, even if those criticisms were well founded and the applicant had thus succeeded in establishing the existence of errors vitiating that ratio, he would still need to establish in addition that, having regard to the extent of the cumulative effects of those errors, the Varese weighting, as a whole, is manifestly incorrect (see, to that effect, Ajour and Others v Commission, paragraph 49).
69 However, that is not the case here. Health care expenses represent, having regard to the data in the Eurostat report, only 2.39% of the expenditure in the basket of goods of the ‘average international official’ in Varese and 1.92% of the expenditure in the basket of goods of the ‘average international official’ in Brussels.
70 Ultimately, the plea in law alleging a manifest error of assessment must be rejected.
The third plea in law, alleging breach of the principle of non-discrimination
71 The applicant submits that the officials and other staff posted to Varese are victims of discrimination in comparison with the officials and staff posted to Parma (Italy) and Turin (Italy). The latter are not subject to a specific weighting, but to the weighting applicable for Italy which was fixed at 106.6% by virtue of Regulation No 1239/2010.
72 However, the existence of a weighting in certain places of employment and its absence in other places of employment within a single Member State is not in itself discriminatory since the establishment of a weighting is based on objective data concerning the cost of living in the place of employment. Furthermore, Article 9 of Annex XI to the Staff Regulations provides for the creation of a correction coefficient specific to a place or the withdrawal of the application of a correction coefficient.
73 Moreover, the mere reference made by the applicant to some data relating to the cost of living in Varese, Parma, Turin and Rome (Italy) is not sufficient to establish the existence of the alleged discrimination.
74 Furthermore, in one of the documents produced by the applicant to support his allegations, it is stated that the data in question ‘are purely indicative’ and that ‘the calculation of the overall cost of living is of necessity arbitrary’.
75 Accordingly, the plea in law alleging breach of the principle of non-discrimination must be rejected.
76 It follows from all of the foregoing that the claims for annulment set out in the application must be rejected.
Costs
77 Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title II of those Rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that that party is not to be ordered to pay any.
78 It follows from the grounds set out above that the applicant has been unsuccessful in his action. Furthermore, in its application, the Commission has expressly requested that the applicant should be ordered to pay the costs. Since the circumstances of the present case do not warrant application of Article 87(2) of the Rules of Procedure, the applicant must bear his own costs and be ordered to pay the costs incurred by the Commission.
79 In accordance with Article 89(4) of the Rules of Procedure, the intervener must bear its own costs.
On those grounds,
THE CIVIL SERVICE TRIBUNAL (Third Chamber)
hereby:
1. Dismisses the action;
2. Declares that Mr Dalmasso is to bear his own costs and orders him to pay the costs incurred by the European Commission;
3. Declares that the Council of the European Union, intervener, is to bear its own costs.
Delivered in open court in Luxembourg on 21 March 2013.
Van Raepenbusch | Barents | Bradley |
W. Hakenberg | | S. Van Raepenbusch |