Judgment — ECLI:EU:T:1998:117
Date: 1998-06-09
Language of the case: French
Court formation: Third Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Specific cases of acts having adverse effect;Scope of judicial review
Procedure: Staff cases - inadmissible

summary pension slips for December 1994, relating to the 
period 1 July 1994 to 31 December 1994, were drawn up the Court of Auditors 
applied Regulation No 3161/94. 
These pension slips were notified to the applicants between 30 December 1994 and 
1 February 1995. 
The applicants considered that the Court of Auditors should have applied to these 
pension slips the weighting for Berlin with retroactive effect to 3 October 1990 
rather than to 1 July 1994, and submitted complaints against the pension slips 
between 26 March and 5 April 1995. Their complaints were expressly rejected by 
decisions adopted on 18 July 1995. 
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BIEDERMANN AND OTHERS v COURT OF AUDITORS 
Admissibility 
Tiie heads of claim relating to the reinstatement of the applicants' pension rights in 
their entirety and interest for late payment 
In proceedings brought under Article 91 of the Staff Regulations it is not for the 
Court to make declarations of principle or to issue directions to Community 
institutions. First, the Community judicature manifestly has no jurisdiction to issue 
directions to Community institutions. Second, where a measure is annulled, the 
institution concerned is required by Article 176 of the EC Treaty to take the 
necessary measures to comply with the judgment. An application to the Court for 
reinstatement of the applicants' pensions rights in their entirety is therefore 
inadmissible (paragraphs 36 and 37). 
See: T-94/92 X v Commission [1994] ECR-SC 11-481, para. 33; T-583/93 P v Commission 
[1995] ECR-SC 11-433, para. 17 
Since the head of claim relating to interest for late payment is closely linked to the 
preceding head of claim, it must likewise be declared inadmissible (paragraph 38). 
Claims for the annulment of the pension slips for December 1994 
An administrative complaint and the legal action which follows it must both be 
directed against an 'act adversely affecting' the applicant within the meaning of 
Article 90(2) and Article 91(1) of the Staff Regulations, and the act having adverse 
effect is that which directly and immediately affects the applicant's legal situation 
(paragraph 39). 
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ABSTRACT - CASE T-173/95 
See: 204/85 Stroghili v Court of Auditors [1987] ECR 389, para. 6; T-14/91 Weyrich v 
Commission [1991] ECR 11-235, para. 35 
In the present case the applicants maintain that their pension slips for December 
1994, relating to the period 1 July 1994 to 31 December 1994, are acts having 
adverse effect in so far as they represent the first application of Regulation 
No 3161/94, which, since it has retroactive effect only to 1 July 1994, deprived 
them of arrears in respect of the' period 3 October 1990 to 30 June 1994 
(paragraph 40). 
However, the contested pension slips contain no decision, not even an implied 
decision, concerning pension rights in respect of that period. Regulation 
No 3161/94, on which the slips are based, was adopted solely on the basis of the 
Commission's proposal for a regulation for the period subsequent to 30 June 1994. 
It does not incorporate the Commission's second amended proposal for a regulation, 
irrespective of the precise date on which that proposal was submitted to the Council. 
Moreover, it follows from a letter from the Secretary-General of the Council of 25 
January 1995 concerning, in particular, the second amended proposal that the 
question of the retroactive effect of the weighting fixed by reference to the cost of 
living in Berlin for the period 1990 to 1994 was still under discussion within the 
Council after Regulation No 3161/94 had been adopted (paragraph 41). 
The applicants have not put forward the slightest evidence that the Council was 
under an obligation to adopt a position in Regulation No 3161/94 itself on the 
application to the period between October 1990 and 30 June 1994 of a weighting 
based on the cost of living in Berlin. In particular, the mere fact that the 
Commission's second amended proposal, like Regulation No 3161/64, was based 
on Articles 64 and 82 of the Staff Regulations, did not place the Council under such 
an obligation. Regulation No 3161/94 cannot therefore be regarded as incorporating 
an implied rejection of the Commission's second amended proposal. When that 
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BIEDERMANN AND OTHERS v COURT OF AUDITORS 
regulation was adopted there was nothing to prevent the Council from subsequently 
adopting the regulation desired by the applicants (paragraph 42). 
Consequently, the applicants' arguments in respect of the provisional nature of the 
regulations preceding Regulation No 3161/94 and, accordingly, the pension slips 
based thereon are inoperative (paragraph 43). 
Last, the applicants' argument that they would be unable to bring an action for 
failure to act should the Council fail to adopt the relevant regulation must also be 
rejected. An action for failure to act cannot be replaced by an action for annulment 
directed against a measure which has actually been adopted, since that measure was 
not required to deal with the matter in issue (paragraph 44). 
It follows that the applicants have challenged pension slips which do not adversely 
affect them, since they do not include a position on the question of the retroactive 
application to the period beginning in October 1990 of the weighting fixed by 
reference to the cost of living in Berlin (paragraph 45). 
The claims for annulment must therefore be declared inadmissible (paragraph 43). 
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ABSTRACT - CASE T-173/95 
Operative part: 
The applications are dismissed as inadmissible. 
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