Opinion of the Advocate General — ECLI:EU:C:2008:204
Date: 2008-04-08
Language of the case: French
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Appeal - unfounded;Appeal - inadmissible;Staff cases

summary of the factual situation is in order here. There is a basic amount for the pension of each former official of the Communities, which, in the scheme provided for in the new Staff Regulations, can never be reduced, irrespective of the pensioner’s place of residence. In other words, the minimum correction coefficient is 100% (which obviously means that there is no need for a correction coefficient). For example, the ‘minimum’ level of pension is paid, under Article 3 of Regulation No 31/2005, to pensioners living in the Czech Republic, Estonia, Greece, Spain, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Portugal, Slovenia and Slovakia, and, under Annex XI to the Staff Regulations, to pensioners living in Belgium and Luxembourg, two Member States to which correction coefficients are not applied. In the other Member States, a correction coefficient calculated on the basis of the difference between the cost of living in the Member State in which they live and the cost of living in Belgium (cf. Article 1(3)(a)(ii) of Annex XI to the new Staff Regulations) is applied to pensioners in the position of the appellant, who acquired their pension rights before the new Staff Regulations came into force, which produces an increase in the amount of pension actually paid. Under Article 3 of Regulation No 31/2005, for example, the correction coefficient for the United Kingdom from 1 July 2004 was 137.5%. 93. It is therefore obvious, on the basis of this factual background, that the Court of First Instance correctly stated, at paragraph 117 of the judgment under appeal, that the new pension scheme makes no reference to the cost of living in Brussels. Simply, for the pensions and the salaries of serving officials for Belgium (and Luxembourg), there is no provision to apply any correction coefficient to the reference amounts. 94. It is true that, in the changeover from the old to the new Staff Regulations, the reference amount for pensions was not changed. Moreover, if that amount had been reduced, the pension actually paid to the appellant would have decreased. 95. The arguments developed by the Court of First Instance in addition to the basic finding mentioned above, in particular at paragraphs 124 and 125, are in my view superfluous for the purpose of ruling on the plea put forward by the appellant, no matter how correct they may be as a matter of principle. 96. I therefore consider that the second argument relied upon by the appellant in connection with the plea should also be dismissed, there being no discriminatory difference in treatment between the appellant and retired former officials of the Communities living in Belgium. E – Discrimination in relation to pensioners living in one of the ‘less expensive’ Member States 1. Arguments of the parties 97. Finally, the appellant reiterates the fourth argument raised before the Court of First Instance to support his claim of a difference in treatment, an argument based on the advantage allegedly given to pensioners living in ‘less expensive’ Member States by applying a correction coefficient of 100% to them under the new scheme. In particular, he maintains that the Court of First Instance was wrong to hold that he had no interest in bringing proceedings to challenge that alleged advantage. 98. The appellant recognises that, according to consistent case-law, there is a need for a legal interest to justify the admissibility of a complaint. He considers, however, in contrast to the view expressed by the Court of First Instance at paragraph 135 of the judgment under appeal, that in his case such an interest exists. In particular, his legal interest in bringing proceedings derives from the fact that, once again, the situation of pensioners living in ‘less expensive’ States by comparison with the situation of the appellant testifies to the existence of a discriminatory difference in treatment. 99. Moreover, the appellant also challenges the argument of the Court of First Instance that, since the pension scheme for former officials of the Communities does not operate as a pension fund but is based on the principle of solidarity, any reduction in the pensions paid to former officials living in ‘less expensive’ Member States would confer no advantage on the appellant. In particular, he maintains that the saving made in this way would make it possible, for example, to return to the application of the ‘capital method’ (paragraph 78 of the appeal). 100. In addition, the appellant maintains that the judgment under appeal is defective in so far as it maintains that the decision of the Community legislature to apply a correction coefficient of 100% to pensioners living in ‘less expensive’ Member States was not manifestly arbitrary or inappropriate (paragraph 136 of the judgment under appeal). 101. The Commission and the Council first reaffirm that, in their opinion, the Court of First Instance was correct to rule that the plea was inadmissible. Moreover, according to those institutions, no criticism can be levelled at the observations of the Court of First Instance on the broad discretion which the Community legislature enjoys in this regard, the limits of which were not, in their view, exceeded in the present case. 102. The Commission goes on to maintain that the Court of First Instance should also have ruled that argument inadmissible in that it had been raised by the appellant for the first time in his reply in the proceedings at first instance (paragraph 71 of the cross-appeal). 2. Assessment 103. Beginning with the Commission’s remark that the argument under examination should have been ruled inadmissible, I consider that the Commission’s position cannot be endorsed. Although in the action before the Court of First Instance the appellant did not specifically mention the comparison with pensioners living in ‘less expensive’ Member States when dealing with the alleged infringement of the principle of equal treatment, it is none the less true that the argument in question was inherent, albeit in embryonic form, in the part of the application alleging misuse of powers, infringement of the principle of proportionality and the obligation to state reasons. In particular, paragraph 93 of the application lodged with the Court of First Instance reads as follows: ‘Finally, on the basis of the various principles mentioned, the application of that rule would be contradictory because it applies to pensions a coefficient of 100 for the capitals and Member States where the coefficient is, however, below 100, as is currently the case, in particular, for Athens, Budapest, Lisbon, Prague and Warsaw.’ 104. Bearing in mind the settled case-law of the Court of Justice according to which, notwithstanding the general prohibition on the submission of new pleas in law, it is possible in the course of proceedings to submit pleas that may be regarded as amplifying a plea put forward previously, whether directly or by implication, in the original application, (25) I consider that the argument complaining of a difference in treatment in relation to pensioners living in ‘less expensive’ Member States is admissible. 105. I shall now move on to the appellant’s specific complaint in this regard. The appellant maintains that the Court of First Instance incorrectly held that he had no interest in bringing proceedings. 106. To that end, in particular, the appellant disputes the findings made by the Court of First Instance at paragraph 133 et seq. of the judgment under appeal, where it stated that the appellant had failed to demonstrate that he could have benefited in some way from removal of the advantage conferred by the new Staff Regulations on pensioners living in ‘less expensive’ Member States. 107. It does not appear to me that the appellant’s arguments are so convincing as to bring into question the correctness of the reasoning of the Court of First Instance. 108. It is undisputed in the case-law that, in order to contest the legality of a Community act, either directly or by way of an objection, the legal interest in bringing proceedings must derive from the practical benefit that the appellant is likely to gain from any decision upholding his claims. (26) 109. It seems clear to me that, here, the only object of the argument put forward by the appellant is to highlight the fact that the legislature decided to apply the rules set out in the new Staff Regulations on the abolition of correction coefficients for pensions with immediate effect to pensioners living in ‘less expensive’ Member States. By contrast, the appellant will never be subject to that new system (which would be particularly disadvantageous for him, as we have seen), since he will continue to benefit from the application of a correction coefficient of significantly more than 100%. 110. Since it is clear that any reduction in the pensions paid to former officials living in ‘less expensive’ Member States, which would be the consequence of finding the decision of the legislature unlawful, would bring the appellant no obvious advantage, the reasoning followed by the Court of First Instance in finding the argument inadmissible is not, in my view, open to criticism. 111. Furthermore, the appellant would also have no interest in bringing proceedings if his complaint were to be interpreted as being directed, in general terms, against the decision of the legislature to abolish correction coefficients, since, as we have seen, their abolition does not affect the appellant personally. 112. Moreover, the Court of First Instance did in any case also briefly examine the substance of the argument in question observing that, even in that case, it cannot be held that the Community legislature exceeded the discretion it enjoys. These observations of the Court of First Instance, despite being succinct (having, it should be noted, been made merely in the alternative), also seem, in my opinion, to be above any possible reproach. 113. The Community legislature decided to apply, with immediate effect, to pensioners living in ‘less expensive’ Member States, the pension calculation mechanism to be applied in the future to all former officials who have acquired their pension rights after the new Staff Regulations came into effect. Moreover, in order to safeguard the position of those who, like the appellant, live in an ‘expensive’ Member State and acquired their pension rights before 1 May 2004, the legislature provided for a correction coefficient to be maintained for their benefit, albeit one calculated differently, as we have seen. To my mind, it cannot be said that the legislature has manifestly exceeded the limits of its discretion. 114. I therefore consider that this final argument put forward by the appellant must also be rejected. VII – Costs 115. Under the first paragraph of Article 122 of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision on costs. Pursuant to Article 69(2) 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. 116. On the other hand, the second paragraph of the Article 122 provides that, in appeals brought by officials or other servants of an institution, the Court may order the parties to share the costs where equity so requires. 117. Since these proceedings are the first before the Court of Justice to address the question of the reform of the pension scheme for officials of the Communities under the new Staff Regulations and as certain legal aspects of the new arrangements may indeed appear problematic, I suggest that the Court should order that the costs be shared. VIII – Conclusion 118. In the light of the foregoing considerations, I propose that the Court of Justice: (1) dismiss the appeal; (2) order each party to bear its own costs. 1 – Original language: Italian. 2 – Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (OJ 2004 L 124, p. 1). 3 – Council Regulation (EC, Euratom) No 31/2005 of 20 December 2004 adjusting, with effect from 1 July 2004, the remuneration and pensions of officials and other servants of the European Communities and the correction coefficients applied thereto (OJ 2005 L 8, p. 1). 4 – The judgment under appeal, paragraphs 99 to 109. 5 – Ibid., paragraphs 110 to 115. 6 – Ibid., paragraphs 116 to 130. 7 – Ibid., paragraphs 131 to 139. 8 – See paragraph 14 of the appeal. 9 – That is the sense of the conclusions of the Commission’s reply and point 31 thereof. I note, however, that at point 40 of that document the Commission states that ‘… the Court of Justice should therefore annul the part of the judgment of the Court of First Instance in which it did not rule that the first and third parts of the plea were inadmissible in that they were not raised in the pre-litigation complaint, and also the fourth part since it was raised only in the reply’. However, in the light of the position that I intend to adopt with regard to the ‘cross-appeal’, it is not necessary to determine whether the Commission does or does not, as a preliminary matter, seek the annulment of the judgment under appeal. 10 – Point 32 of the Commission’s reply. 11 – Case 91/76 de Lacroix v Court of Justice [1977] ECR 225, paragraph 11. 12 – See, for example, Joined Cases 122/79 and 123/79 Schiavo v Council [1981] ECR 473, paragraph 22; Joined Cases 75/82 and 117/82 Razzouk and Beydoun v Commission [1984] ECR 1509, paragraph 13; and Case 302/85 Pressler-Hoeft v Court of Auditors [1987] ECR 513, paragraph 5. 13 – Case T‑57/89 Alexandrakis v Commission [1990] ECR II‑143, paragraph 8. This stance has been consistently reiterated: see, for example, Case T‑19/90 von Hoessle v Court of Auditors [1991] ECR II‑615; Case T‑1/91 Della Pietra v Commission [1992] ECR II‑2145; and Case T‑127/00 Nevin v Commission [2002] ECR‑SC I‑A‑149 and II‑781. 14 – See, for example Razzouk and Beydoun v Commission, paragraph 9, and Case C‑316/97 P Parliament v Gaspari [1998] ECR I‑7597, paragraph 17. 15 – Case 52/85 Rihoux and Others v Commission [1986] ECR 1555, paragraph 13; Case 242/85 Geist v Commission [1987] ECR 2181, paragraph 9; Case 346/87 Bossi v Commission [1989] ECR 303, paragraph 27; and Case 126/87 Del Plato v Commission [1989] ECR 643, paragraph 12. 16 – See, for example, Case 133/88 Casto Del Amo Martinez v Parliament [1989] ECR 689, paragraph 13. 17 – Case C‑68/05 P [2006] ECR I‑10367, paragraphs 95 to 98. See also the Opinion of Advocate General Stix-Hackl in that case (in particular, points 89 to 103). 18 – Casto Del Amo Martinez v Parliament, paragraph 11. 19 – On that right, see, for example, Case C‑432/05 Unibet [2007] ECR I‑2271, paragraph 37, and the case-law cited. 20 – The judgment under appeal, paragraph 100. 21 – That principle is crystallised in the formula that requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. See, for example, Case C‑273/04 Poland v Council [2007] ECR I‑8925, paragraph 86; Joined Cases C‑87/03 and C‑100/03 Spain v Council [2006] ECR I‑2915, paragraph 48; Case C‑44/94 Fishermen’s Organisations and Others [1995] ECR I‑3115, paragraph 46. For the Community public employment sector, see, for example, Case 119/83 Appelbaum v Commission [1985] ECR 2423 and Joined Cases T‑18/89 and T‑24/89 Tagaras v Court of Justice [1991] ECR II‑53, paragraph 68. 22 – The translation of this and all other passages from the judgment under appeal is not official. 23 – Case T‑184/00 [2003] ECR‑SC I‑A‑51 and II‑297, confirmed by order of 29 April 2004 in Case C‑187/03 P (not published in the ECR). 24 – Order of 7 October 1987 in Case 108/86 G.d.M. v Council and Economic and Social Committee [1987] ECR 3933, paragraph 10; see also Case T‑141/03 Sniace v Commission [2005] ECR II‑1197, paragraph 22; Case T‑45/91 McAvoy v Parliament [1993] ECR II‑83, paragraph 22; Case T‑144/99 Institute of Professional Representatives before the European Patent Office v Commission [2001] ECR II‑1087, paragraphs 29 to 35. In the last-mentioned judgment, moreover, the Court of First Instance appears to have considered an interest in bringing proceedings to be a requirement on a par with those laid down in Article 230 EC. 25 – See, for example, Case 306/81 Verros v Parliament [1983] ECR 1755, paragraph 9; the order of 13 November 2001 in Case C‑430/00 P Dürbeck v Commission [2001] ECR I‑8547, paragraph 17; and Case C‑412/05 P AlconInc. v OHIM [2007] ECR I‑3569, paragraphs 38 to 40. 26 – See, for example, Case 37/72 Marcato v Commission [1973] ECR 361, paragraph 7; Case 124/75 Perinciolo v Council [1976] ECR 1953, paragraph 26; and Case 85/82 Schloh v Council [1983] ECR 2105, paragraph 14. As one may surmise, in recent years it has been mainly the Court of First Instance and, latterly, also the Civil Service Tribunal that have considered whether or not an appellant has a legal interest in bringing proceedings, while the Court of Justice has held that there is a similar criterion for assessing the admissibility of appeals against judgments of the Court of First Instance (see, for example, Case C‑19/93 P Rendo v Commission [1995] ECR I‑3319, paragraph 13; Case C‑174/99 P Parliament v Richard [2000] ECR I‑6189, paragraph 33; and Case C‑50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I‑6677, paragraph 21; and the order of 25 January 2001 in Case C‑111/99 P Lech-Stahlwerke v Commission [2001] ECR I‑727, paragraph 18.