Order — ECLI:EU:T:1998:4
Date: 1998-01-20
Language of the case: German
Court formation: Third Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Administrative complaint;Specific cases of acts having adverse effect;Reopening;Weightings
Procedure: Staff cases
Origin: Germany

ORDER OF THE COURT OF FIRST INSTANCE (Third Chamber) 
20 January 1998 
Case T-160/96 
Max Kögler 
v 
Court of Justice of the European Communities 
(Officials - Pension - Weighting - Change of capital of a Member State — 
Retroactivity) 
Full text in German 11-35 
Application for: first, annulment of the decision of the Complaints 
Committee of the Court of Justice of 1 July 1996, second, 
recalculation and definitive determination of the applicant's 
pension for the period 1 July 1991 to 30 June 1994 
applying the weighting fixed annually for Berlin by the 
Council and, third and in the alternative, designation of a 
date in the near future when such recalculation and 
determination will take place. 
Decision: Application inadmissible. 
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ABSTRACT - CASE T-160/96 
Abstract of the Order 
The applicant is a former Director of the Translation Directorate of the Court of 
Justice of the European Communities who was retired with effect from 1 December 
1987. Following his retirement he has always lived in Konz, in Germany. 
Under Article 82(1) of the Staff Regulations of Officials of the European 
Communities (Staff Regulations), the pensions of former officials are to be weighted 
at the rate fixed for the country where the recipient proves he has his residence. 
In Case T-536/93 Benzler v Commission [1994] ECR-SC 11-777 and Case T-64/92 
Chavane de Dalmassy and Others v Commission [1994] ECR-SC 11-723 the Court 
of First Instance held that Article 6(2) of, first, Council Regulation (EEC, ECSC, 
Euratom) No 3834/91 of 19 December 1991 adapting, with effect from 1 July 1991, 
the remuneration and pensions of officials and other servants of the European 
Communities and the weightings affecting that remuneration and those pensions (OJ 
1991 L 361, p. 13) and, secondly, Council Regulation (EEC, ECSC, Euratom) 
No 3761/92 of 21 December 1992 adapting, with effect from 1 July 1992, the 
remuneration and pensions of officials and other servants of the European 
Communities and the weightings affecting that remuneration and those pensions (OJ 
1992 L 383, p. 1), in so far as they fixed a provisional weighting for Germany on 
the basis of the cost of living in Bonn, infringed the principle set out in Annex XI 
to the Staff Regulations that the weighting for each Member State should be fixed 
by reference to the cost of living in its capital, since Berlin had been the capital of 
Germany since 3 October 1990. 
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KOGLER v COURT OF JUSTICE 
The weightings, described in a footnote in the abovementioned regulations as 
'provisional figure' or stated to be applicable 'without prejudice to the decisions 
which the Council may be required to adopt following a proposal from the 
Commission', were not subsequently amended following those judgments of the 
Court of First Instance. 
Then, on 19 December 1994, the Council adopted Regulation (ECSC, EC, Euratom) 
No 3161/94 adapting, as from 1 July 1994, the remuneration and pensions of 
officials and other servants of the European Communities and the weightings 
applying to that remuneration and those pensions (OJ 1994 L 335, p. 1). 
Article 6(1) of that regulation provides, with effect from 1 July 1994, for a general 
weighting for Germany based for the first time on Berlin and also for special 
weightings for Bonn, Karlsrahe and Munich. 
Subsequently, Council Regulation (EC, Euratom, ECSC) No 2963/95 of 18 
December 1995, adapting, with effect from 1 July 1995, the remuneration and 
pensions of officials and other servants of the European Communities and the 
weighting affecting such remuneration and pensions (OJ 1995 L 310, p. 1), 
confirmed the fixing of a general weighting for Germany based on the cost of living 
in Berlin, with retroactive effect from 1 July 1995. 
Since the applicant considered that the Court should have applied to his pension 
slips for the period 1 July 1991 to 30 June 1994 the weightings based on the cost 
of living in Berlin rather then establishing them on the basis of the cost of living in 
Bonn he submitted a request under Article 90(1) of the Staff Regulations for his 
pension to be redetermined with retroactive effect. 
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ABSTRACT - CASE T-160/96 
The applicant's request was rejected by decision of the Registrar of the Court of 
Justice acting in his capacity as appointing authority and the applicant submitted a 
complaint to the same effect to the Complaints Committee of the Court 
(Committee); he further requested that the Court should designate a date in the near 
future when the desired calculation would be made. 
That complaint was rejected on the ground that it had been submitted out of time 
and was therefore inadmissible. The acts adversely affecting the applicant within 
the meaning of Article 90(2) of the Staff Regulations were in this instance the 
pensions slips for the period in question. 
Admissibility 
The right to rely on the principle of the protection of legitimate expectations extends 
to any individual whom the administration has led to entertain reasonable 
expectations. However, breach of that principle may not be pleaded unless the 
administration has given him precise assurances (paragraph 34). 
See: T-235/94 Galtieri v Parliament [1996] ECR-SC 11-129, para. 63; T-207/95 Ibarra Gil v 
Commission [1997] ECR-SC 11-31, para. 25 
The Council cannot be considered to have led the applicant to entertain 'reasonable 
expectations' or to have given him 'precise assurances' since, by describing the 
weightings for Germany affecting remuneration and pensions as provisional in the 
footnotes to Regulations Nos 3834/91 and 3761/92 or by specifying that those 
weightings were applied 'without prejudice to the Decisions which the Council may 
be required to adopt following a proposal from the Commission', it only reserved 
the right to amend those weightings without laying down an obligation to revise 
their determination with retroactive effect. Consequently, the applicant cannot claim 
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KOGLER v COURT OF JUSTICE 
that the Council led him to entertain a 'legitimate expectation' allowing him to hope 
that he might escape the application of the time-limits in the Staff Regulations 
referred to above (paragraph 38). 
Furthermore, the monthly pension slips notified to the applicant between 1 July 
1991 and 30 June 1994 clearly constitute acts adversely affecting the applicant, in 
so far as each of them determines the amount of his pension (paragraph 39). 
See: 783/89 and 786/89 Venus and Ober! v Commission and Council [1981] ECR 2445, para. 
25; Benzler v Commission, cited above, paras 15 to 19 
In so far as these pension slips were notified individually to the applicant, the 
applicant should have submitted a complaint each time within the following three 
months, thus complying with the time-limit laid down in Article 90 of the Staff 
Regulations. However, he submitted his complaint almost two years after the expiry 
of the prescribed period, which began to run when he received the final slip for 
June 1994 (paragraph 39). 
The time-limit for submitting a complaint laid down in Article 90 of the Staff 
Regulations is intended to ensure the certainty of legal situations and the certainty 
of the law. It is therefore a matter of public policy and is not a matter for the 
discretion of the parties or the Court. The fact that an institution gives an answer, 
on its merits, to an administrative claim that is out of time and therefore 
inadmissible cannot derogate from the system of peremptory time-limits established 
by Articles 90 and 91 of the Staff Regulations (paragraph 40). 
See: T-35/96 Rasmussen v Commission [1997] ECR-SC 11-187, paras 29 and 30 
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ABSTRACT - CASE T-160/96 
An official may not therefore contrive to cause time to run afresh by submitting to 
the appointing authority a request under Article 90(1) of the Staff Regulations. 
Morē specifically, an official who has failed within the time-limits laid down in 
Articles 90 and 91 of the Staff Regulations to institute proceedings for the 
annulment of an act adversely affecting him cannot, by means of a claim for 
compensation for the damage caused by that act, make good that omission and thus 
contrive to make time begin to run afresh. Such a step is admissible only if new 
facts have arisen which justify a reconsideration of the situation (paragraph 41). 
See: 302/85 Pressler-Hoeft v Court of Auditors [1987] ECR513, paras 5 and 6; T-547/93 Lopes 
v Court of Justice [1996] ECR-SC 11-185, para. 60 
In the present case the applicant's action, which is based on an alleged failure to act 
on the part of the Council, must be regarded as an attempt to circumvent the 
time-limits laid down in Articles 90 and 91 of the Staff Regulations in that its 
purpose is, first, the annulment of a decision of the Committee which merely 
confirms that the action is inadmissible and, second, to obtain, by an action for 
compensation, the additional amount he would have received if the 'Berlin' 
weighting had been applied from 1991 (paragraph 42). 
Operative part: 
The application is dismissed as manifestly inadmissible,, 
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