1THE APPLICATION , IN SO FAR AS IT IS DIRECTED AGAINST THE COMMISSION , IS BASED ON ARTICLE 91 OF THE STAFF REGULATIONS OF THE EUROPEAN COMMUNITIES AND SEEKS IN SUBSTANCE AN ORDER THAT THE COMMUNITY SHOULD PAY THE APPLICANT THE DIFFERENCE BETWEEN THE SEVERANCE GRANT PAID TO HIM WITH EFFECT FROM 1 SEPTEMBER 1976 AND A GRANT CALCULATED BY APPLYING TO HIS LAST BASIC SALARY AS SHOWN IN THE TABLE OF SALARIES CONTAINED IN ARTICLE 66 OF THE SAID STAFF REGULATIONS A WEIGHTING OF 157.8% , TO WHICH SUM THERE SHOULD BE ADDED DEFAULT INTEREST OF 6% FROM 21 JANUARY 1977 .
2IN ORDER TO RESUME HIS EMPLOYMENT IN THE ADMINISTRATION OF THE MEMBER STATE FROM WHICH HE ORIGINATES , THE APPLICANT , AN OFFICIAL OF THE COMMISSION IN GRADE A 2 , STEP 3 , SUBMITTED HIS RESIGNATION , WHICH WAS ACCEPTED , AS REQUESTED , WITH EFFECT FROM 1 SEPTEMBER 1976 .
3AT THAT DATE HE DID NOT SATISFY THE CONDITIONS NECESSARY TO ENTITLE HIM TO A RETIREMENT PENSION WITHIN THE MEANING OF ARTICLE 77 OF THE STAFF REGULATIONS BUT WAS ENTITLED TO THE SEVERANCE GRANT REFERRED TO IN ARTICLE 12 OF ANNEX VIII TO THE STAFF REGULATIONS , WHICH PROVIDES THAT AN OFFICIAL RESIGNING WHO IS NOT ENTITLED TO A RETIREMENT PENSION SHALL BE ENTITLED ON LEAVING THE SERVICE TO PAYMENT OF A PROPORTIONAL SEVERANCE GRANT ' ' CALCULATED ON THE BASIS OF ONE AND A HALF MONTHS FOR EACH YEAR OF SERVICE OF THE LAST BASIC SALARY BEFORE DEDUCTIONS ' ' .
4ACCORDING TO ARTICLE 66 OF THE STAFF REGULATIONS BASIC MONTHLY SALARIES ARE DETERMINED FOR EACH GRADE AND STEP AS PROVIDED IN THE TABLE CONTAINED IN THAT ARTICLE , AND FOR GRADE A 2 , STEP 3 THE RELEVANT FIGURE APPEARING IN THE TABLE APPLICABLE ON 1 SEPTEMBER 1976 WAS BFRS 107 412 .
5THAT AMOUNT WAS TAKEN AS THE BASIS FOR CALCULATING THE APPLICANT ' S SEVERANCE GRANT .
6THE APPLICANT CHALLENGES THIS METHOD OF CALCULATION , CLAIMING THAT IN ORDER TO SATISFY THE REQUIREMENTS OF ARTICLE 65 OF THE STAFF REGULATIONS CONCERNING THE ADJUSTMENT OF REMUNERATION FOR WHICH PROVISION IS MADE IN THE SAID ARTICLE THE AMOUNTS IN THE ABOVE-MENTIONED TABLE HAD BEEN SUBJECT TO A WEIGHTING OF 157.8% IN RESPECT OF THE SALARIES OF OFFICIALS EMPLOYED AT THE PROVISIONAL SEATS OF THE COMMUNITY AND THAT THE AMOUNTS RESULTING FROM SUCH WEIGHTING SHOULD HAVE BEEN INCORPORATED INTO THE MONTHLY BASIC SALARY IN CALCULATING THE SEVERANCE GRANT .
7THE COMMISSION CLAIMS , ON THE OTHER HAND , THAT ACCORDING TO THE EXPRESS WORDING OF ARTICLE 12 OF ANNEX VIII TO THE STAFF REGULATIONS THE SEVERANCE GRANT IS CALCULATED ON THE BASIS OF THE LAST BASIC SALARY AND THAT THAT CONCEPT REFERS CLEARLY TO THE AMOUNTS SHOWN IN THE TABLE CONTAINED IN ARTICLE 66 OF THE STAFF REGULATIONS .
8WHEN , FOLLOWING THE ANNUAL REVIEW OF REMUNERATION AS REQUIRED BY ARTICLE 65 , THE COUNCIL DECIDES TO ADJUST THE LEVEL OF REMUNERATION IT IS FREE TO DO SO EITHER BY INCREASING THE BASIC SALARIES OR BY LEAVING THEM UNCHANGED AND APPLYING TO THEM A WEIGHTING , IN WHICH CASE THE BASIC SALARY REMAINS UNALTERED WITH THE RESULT THAT IT IS ON THAT SALARY THAT THE SEVERANCE GRANT MUST BE CALCULATED .
9HAVING RAISED SALARIES FOR SEVERAL YEARS BY MEANS OF THE WEIGHTINGS THE COUNCIL DECIDED ON 29 JUNE 1976 TO INCORPORATE THE WEIGHTINGS INTO THE BASIC SALARIES , BUT COUNCIL REGULATION NO 3177/76 OF 21 DECEMBER 1976 ( OFFICIAL JOURNAL L 359 , P . 1 ) WAS INTENDED TO GIVE EFFECT TO THAT DECISION ONLY AS FROM 1 JANUARY 1977 , SO THAT , IN THE COMMISSION ' S VIEW , THE CALCULATION OF THE APPLICANT ' S SEVERANCE GRANT ON 1 SEPTEMBER 1976 REMAINED GOVERNED BY THE PROVISIONS PREVIOUSLY IN FORCE .
10THE SILENCE MAINTAINED BY THE LEGISLATURE REGARDING THE APPLICATION OF ANY WEIGHTING TO THE SEVERANCE GRANT IS SAID TO SHOW ITS INTENTION TO EXCLUDE ANY SUCH APPLICATION .
11THE DETERMINATION OF THE AMOUNT OF AND PROCEDURE REGARDING THE REMUNERATION OF OFFICIALS IS GOVERNED BY ARTICLES 62 TO 70 OF THE STAFF REGULATIONS .
12THE FINAL PARAGRAPH OF ARTICLE 62 PROVIDES THAT REMUNERATION SHALL COMPRISE BASIC SALARY , FAMILY ALLOWANCES AND OTHER ALLOWANCES .
13ARTICLE 64 OF THE STAFF REGULATIONS PROVIDES THAT OFFICIALS ' REMUNERATION SHALL BE WEIGHTED AT A RATE DEPENDING ON LIVING CONDITIONS IN THE VARIOUS PLACES OF EMPLOYMENT .
14THE WEIGHTINGS DO NOT CONSTITUTE AN ADDITIONAL ELEMENT OF REMUNERATION BUT ARE A MEANS OF CALCULATING THE AMOUNTS OF THE VARIOUS ELEMENTS MAKING UP THAT REMUNERATION .
15IT FOLLOWS THAT ARTICLE 64 DOES NOT GOVERN THE LEVEL OF REMUNERATION BUT RATHER ITS GEOGRAPHICAL WEIGHTING DEPENDING ON LIVING CONDITIONS IN THE VARIOUS PLACES OF EMPLOYMENT BY PROVIDING THAT IN RELATION TO THE REMUNERATION OF OFFICIALS OF THE COMMUNITIES EMPLOYED AT THE PROVISIONAL SEATS , THE REMUNERATION IN OTHER PLACES SHALL BE ADJUSTED BY THE APPLICATION OF A WEIGHTING BRINGING THE REMUNERATION , AS APPROPRIATE , TO A FIGURE ABOVE , BELOW OR EQUAL TO THAT APPLICABLE TO OFFICIALS EMPLOYED AT THE PROVISIONAL SEATS .
16ARTICLE 65 , ON THE OTHER HAND , RELATES TO THE LEVEL OF REMUNERATION AND LAYS DOWN IN PARAGRAPH ( 1 ) THE PROCEDURE FOR THE ANNUAL REVIEW AS AT 1 JULY EACH YEAR OF THAT LEVEL AND , WHERE APPROPRIATE , FOR ITS ADJUSTMENT .
17ARTICLE 65 ( 2 ) PROVIDES THAT IN THE EVENT OF A SUBSTANTIAL CHANGE IN THE COST OF LIVING DURING THE YEAR , THE COUNCIL SHALL DECIDE , WITHIN A MAXIMUM PERIOD OF TWO MONTHS , WHAT ADJUSTMENTS SHOULD BE MADE TO THE WEIGHTINGS AND IF APPROPRIATE TO APPLY THEM RETROSPECTIVELY .
18ARTICLE 65 LEAVES TO THE COUNCIL THE CHOICE OF THE MOST APPROPRIATE MEANS AND FORMS FOR THE IMPLEMENTATION OF A POLICY WITH REGARD TO REMUNERATION WHICH IS IN ACCORDANCE WITH THE CRITERIA LAID DOWN BY THAT ARTICLE .
19ALTHOUGH ANY ADJUSTMENT OF REMUNERATION BY THE ADJUSTMENT OF THE BASIC SALARIES IN THE TABLE CONTAINED IN ARTICLE 66 WOULD APPEAR TO BE MORE CONSISTENT WITH THE PROCEDURE LAID DOWN IN ARTICLES 64 AND 65 , THE COUNCIL IS NEVERTHELESS AT LIBERTY TO RAISE THE LEVEL OF REMUNERATION BY APPLYING A WEIGHTING TO THE AMOUNTS IN THE TABLE IN ARTICLE 66 , PROVIDING ALWAYS THAT AS REGARDS THE PECUNIARY RIGHTS OF OFFICIALS SUCH METHOD DOES NOT LEAD TO RESULTS WHICH ARE INCOMPATIBLE WITH THOSE INTENDED BY THE PROCEDURE LAID DOWN IN ARTICLE 65 .
20THIS WOULD BE THE CASE IF THE APPLICATION OF WEIGHTINGS UNDER THE TERMS OF ARTICLE 65 ( 1 ) WERE TO LEAD , AS REGARDS THOSE PECUNIARY RIGHTS , TO RESULTS DIFFERENT FROM THOSE FLOWING FROM AN INCREASE IN THE AMOUNTS SHOWN IN THE TABLE IN ARTICLE 66 OF THE STAFF REGULATIONS .
21IT IS THEREFORE PROPER TO DISTINGUISH THE GEOGRAPHICAL WEIGHTINGS REFERRED TO IN ARTICLE 64 FROM THOSE WHICH THE COUNCIL IS AT LIBERTY TO APPLY IN THE CONTEXT OF THE IMPLEMENTATION OF ARTICLE 65 ( 1 ) FOR THE PURPOSE OF DETERMINING THE LEVEL OF THE DIFFERENT ELEMENTS OF REMUNERATION ( INCLUDING THE BASIC SALARY ) OF OFFICIALS EMPLOYED AT THE PROVISIONAL SEATS , FROM WHICH LEVEL THE REMUNERATION AT THE OTHER PLACES OF EMPLOYMENT IS THEN DERIVED .
22IT FOLLOWS FROM THESE CONSIDERATIONS THAT THE BASIC SALARY AS REFERRED TO IN ARTICLE 66 OF THE STAFF REGULATIONS COMPRISES THE AMOUNTS INCLUDED IN THE TABLE CONTAINED IN THAT ARTICLE , SUBJECT , WHERE APPROPRIATE , TO THE WEIGHTING ADOPTED FOR THE PROVISIONAL SEATS BY THE COUNCIL FOLLOWING THE ANNUAL REVIEW PROVIDED FOR IN ARTICLE 65 ( 1 ).
23IT IS ACCORDINGLY NOT POSSIBLE TO INTERPRET ARTICLE 12 ( C ) OF ANNEX VIII TO THE STAFF REGULATIONS AS EXPRESSING THE COUNCIL ' S INTENTION TO CALCULATE THE SEVERANCE GRANT ON A BASIS DIFFERENT FROM THAT OF THE MONTHLY BASIC SALARY AS INTENDED AND ESTABLISHED BY THE COUNCIL PURSUANT TO THE METHODS FOR THE ADJUSTMENT OF THE LEVEL OF REMUNERATION REFERRED TO IN ARTICLE 65 .
24ANY OTHER INTERPRETATION WOULD LEAD TO THE CONCLUSION THAT ARTICLE 12 ( C ) OF ANNEX VIII TO THE STAFF REGULATIONS IS UNLAWFUL AS BEING INCOMPATIBLE WITH THE PRINCIPLE OF THE EQUALITY OF OFFICIALS IN THAT TWO DIFFERENT CONCEPTS OF BASIC SALARY WOULD BE APPLIED , IN ARTICLE 66 OF THE STAFF REGULATIONS AND ARTICLE 12 OF ANNEX VIII RESPECTIVELY , WITHOUT THERE BEING ANY OBJECTIVE CONSIDERATION TO JUSTIFY SUCH A DIFFERENCE .
25ACCORDINGLY , IN DETERMINING THE SEVERANCE GRANT AS ON 1 SEPTEMBER 1976 THE COMMISSION WAS REQUIRED TO CALCULATE IT ON THE BASIS OF THE MONTHLY SALARY SHOWN IN THE TABLE CONTAINED IN ARTICLE 66 OF THE STAFF REGULATIONS , SUBJECT TO THE WEIGHTING OF 157.8% .
26IT IS THEREFORE APPROPRIATE TO ORDER THE COMMISSION TO PAY THE DIFFERENCE BETWEEN THE AMOUNT ACTUALLY PAID AND THE AMOUNT OF A SEVERANCE GRANT CALCULATED AS ON 1 SEPTEMBER 1976 BY THE APPLICATION OF THE AFOREMENTIONED WEIGHTING OF 157.8% , INCREASED BY DEFAULT INTEREST OF 6% FROM 22 FEBRUARY 1977 , THE DATE OF THE COMPLAINT SENT BY THE APPLICANT TO THE COMMISSION .
COSTS
27UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO BEAR THE COSTS .
28SINCE THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .
ON THOSE GROUNDS ,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . ORDERS THE COMMISSION TO PAY THE DIFFERENCE BETWEEN THE AMOUNT ACTUALLY PAID AND THE AMOUNT OF A SEVERANCE GRANT CALCULATED AS ON 1 SEPTEMBER 1976 BY THE APPLICATION OF THE AFOREMENTIONED WEIGHTING OF 157.8% , INCREASED BY DEFAULT INTEREST OF 6% FROM 22 FEBRUARY 1977 , THE DATE OF THE COMPLAINT SENT BY THE APPLICANT TO THE COMMISSION .
2 . ORDERS THE COMMISSION TO PAY THE COSTS .
BOSCO MERTENS DE WILMARS O ' KEEFFE DELIVERED IN OPEN COURT IN LUXEMBOURG ON 13 JULY 1978 .
