61980CJ0167_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 167/80
DUNSTAN CURTIS, FORMERLY SECRETARY-GENERAL OF THE CONSERVATIVE GROUP IN THE EUROPEAN PARLIAMENT, OF PENBRYN HALL, MONTGOMERY, POWYS, WALES, REPRESENTED BY FRANCIS JACOBS OF THE MIDDLE TEMPLE, BARRISTER, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE RESIDENCE OF MR G . W . CLARKE, 3 RUE DANTE,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, ANTHONY MCCLELLAN, ACTING AS AGENT, ASSISTED BY DANIEL JACOB, LAWYER AT THE BRUSSELS BAR, 93, AVENUE BRILLAT-SAVARIN, 1050 BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, MARIO CERVINO, JEAN MONNET BUILDING, KIRCHBERG,
AND
EUROPEAN PARLIAMENT, REPRESENTED BY FRANCESCO PASETTI-BOMBARDELLA, DIRECTOR-GENERAL OF ADMINISTRATION, PERSONNEL AND FINANCE ACTING AS AGENT, ASSISTED BY SIR DEREK WALKER-SMITH, BARRISTER WITH AN ADDRESS FOR SERVICE AT THE SECRETARIAT OF THE EUROPEAN PARLIAMENT, KIRCHBERG, LUXEMBOURG,
DEFENDANTS,
Subject of the case
APPLICATION FOR ANNULMENT OF THE DECISIONS REJECTING THE APPLICANT ' S COMPLAINTS PURSUANT TO ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS CONCERNING THE APPLICATION TO HIM OF COUNCIL REGULATIONS NOS 3085/78 AND 3086/78 OF 21 DECEMBER 1978, AMENDING THE STAFF REGULATIONS WITH RESPECT TO MONETARY PARITIES TO BE USED AND THE WEIGHTINGS APPLICABLE TO THE REMUNERATION AND PENSIONS OF OFFICIALS AND OTHER SERVANTS OF THE EUROPEAN COMMUNITIES ( OFFICIAL JOURNAL 1978, L 369 ),
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 18 JULY 1980 UNDER ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS AGAINST THE EUROPEAN PARLIAMENT AND THE COMMISSION OF THE EUROPEAN COMMUNITIES THE APPLICANT, A FORMER MEMBER OF THE TEMPORARY STAFF OF THE EUROPEAN PARLIAMENT, CLAIMS THAT THE COURT SHOULD :
1 . DECLARE THAT COUNCIL REGULATIONS NOS 3085/78 AND 3086/78 OF 21 DECEMBER 1978 DO NOT APPLY TO HIM .
2 . IN THE ALTERNATIVE, ANNUL THE NOTICE OF 22 OCTOBER 1979 OF THE COMMISSION DETERMINING THE MANNER IN WHICH THE APPLICANT ' S PENSION WAS TO BE REDUCED WITH EFFECT FROM 1 OCTOBER 1979 AND THE IMPLIED DECISIONS OF THE DEFENDANTS REJECTING THE COMPLAINTS OF THE APPLICANT OF 8 JANUARY 1980 SUBMITTED UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS .
3 . ORDER THE DEFENDANTS TO PAY THE APPLICANT THE SUMS WHICH WOULD HAVE BEEN PAID TO HIM IF HIS PENSION HAD NOT BEEN REDUCED BY THE AFORESAID REGULATIONS TOGETHER WITH INTEREST THEREON AT THE RATE OF 1% ABOVE THE UNITED KINGDOM MINIMUM LENDING RATE OR SUCH OTHER RATE AS THE COURT SHALL DETERMINE .
4 . ORDER THE DEFENDANTS TO PAY THE COSTS .
2 IT WAS PROVIDED IN ARTICLES 63 AND 64 OF THE STAFF REGULATIONS OF OFFICIALS, IN THE VERSION APPLICABLE UP TO THE END OF THE YEAR 1978 :
' ' AN OFFICIAL ' S REMUNERATION SHALL BE EXPRESSED IN BELGIAN FRANCS .
IT SHALL BE PAID IN THE CURRENCY OF THE COUNTRY IN WHICH THE OFFICIAL PERFORMS HIS DUTIES .
REMUNERATION PAID IN A CURRENCY OTHER THAN BELGIAN FRANCS SHALL BE CALCULATED ON THE BASIS OF THE PAR VALUES ACCEPTED BY THE INTERNATIONAL MONETARY FUND . . . ON 1 JANUARY 1965 .
AN OFFICIAL ' S REMUNERATION EXPRESSED IN BELGIAN FRANCS SHALL . . . BE WEIGHTED AT A RATE ABOVE, BELOW OR EQUAL TO 100%, DEPENDING ON LIVING CONDITIONS IN THE VARIOUS PLACES OF EMPLOYMENT .
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 82 OF THE STAFF REGULATIONS PROVIDES THAT ' ' THE PENSIONS ( OF FORMER OFFICIALS ) SHALL BE CALCULATED BY REFERENCE TO SALARY SCALES IN FORCE ON THE FIRST DAY OF THE MONTH IN WHICH ENTITLEMENT COMMENCES .
THEY SHALL BE WEIGHTED IN THE MANNER PROVIDED FOR IN ARTICLE 64 AND ARTICLE 65 ( 2 ) FOR THE COUNTRY OF THE COMMUNITIES WHERE THE PERSON ENTITLED TO THE PENSION DECLARES HIS HOME TO BE ' ' .
4 THE THIRD PARAGRAPH OF ARTICLE 45 OF ANNEX VIII ( PENSION SCHEME ) PROVIDES THAT : ' ' BENEFICIARIES MAY ELECT TO HAVE THEIR PENSIONS PAID IN THE CURRENCY EITHER OF THEIR COUNTRY OF ORIGIN OR OF THEIR COUNTRY OF RESIDENCE OR OF THE COUNTRY WHERE THE INSTITUTION TO WHICH THE OFFICIAL BELONGED HAS ITS SEAT : THEIR CHOICE SHALL REMAIN OPERATIVE FOR AT LEAST TWO YEARS . ' '
5 ON 21 DECEMBER 1978 THE COUNCIL ADOPTED REGULATION ( EURATOM, ECSC, EEC ) NO 3085/78 ( OFFICIAL JOURNAL 1978, L 369, P . 6 ), ARTICLE 1 OF WHICH STATES THAT ARTICLE 63 OF THE STAFF REGULATIONS IS REPLACED BY THE FOLLOWING :
' ' OFFICIALS '
REMUNERATION SHALL BE EXPRESSED IN BELGIAN FRANCS . IT SHALL BE PAID IN THE CURRENCY OF THE COUNTRY IN WHICH THE OFFICIAL PERFORMS HIS DUTIES .
REMUNERATION PAID IN A CURRENCY OTHER THAN BELGIAN FRANCS SHALL BE CALCULATED ON THE BASIS OF THE EXCHANGE RATES USED FOR THE IMPLEMENTATION OF THE GENERAL BUDGET OF THE EUROPEAN COMMUNITIES ON 1 JULY 1978 .
THIS DATE SHALL BE CHANGED, AT THE TIME OF THE ANNUAL REVIEW OF REMUNERATION PROVIDED FOR IN ARTICLE 65, BY THE COUNCIL ACTING BY A QUALIFIED MAJORITY UPON A PROPOSAL FROM THE COMMISSION AS PROVIDED IN THE FIRST INDENT OF THE SECOND SUBPARAGRAPH OF ARTICLES 148 ( 2 ) OF THE EEC TREATY AND OF 118 ( 2 ) OF THE EURATOM TREATY .
WITHOUT PREJUDICE TO THE APPLICATION OF ARTICLES 64 AND 65, THE WEIGHTINGS FIXED PURSUANT TO THESE ARTICLES SHALL, WHENEVER THE ABOVE DATE IS CHANGED, BE ADJUSTED BY THE COUNCIL, WHICH, ACTING IN ACCORDANCE WITH THE PROCEDURE MENTIONED IN THE THIRD PARAGRAPH, SHALL CORRECT THE EFFECT OF THE VARIATION IN THE BELGIAN FRANC WITH RESPECT TO THE RATES REFERRED TO IN THE SECOND PARAGRAPH . ' '
6 ACCORDING TO THE PROVISIONS OF ARTICLE 4 OF THE REGULATION IT SHALL ENTER INTO FORCE ON 1 JANUARY 1979 AND SHALL APPLY FROM 1 APRIL 1979 . HOWEVER, FOR PENSIONS AND ALLOWANCES OF WHICH THE NET AMOUNT BECOMES LESS THAN THAT UNDER THE EXISTING ARRANGEMENTS, THE REGULATION SHALL ONLY APPLY FROM 1 OCTOBER 1979 . FROM THAT DATE THE DIFFERENCE BETWEEN THE NET AMOUNTS RESULTING FROM THE IMPLEMENTATION OF THIS REGULATION AND THOSE RECEIVED IN SEPTEMBER 1979 SHALL BE REDUCED BY / PER MONTH .
7 ON 21 DECEMBER 1978 THE COUNCIL ALSO ADOPTED REGULATION ( EURATOM, ECSC, EEC ) NO 3086/78 ADJUSTING THE WEIGHTINGS APPLICABLE TO THE REMUNERATION AND PENSIONS OF OFFICIALS AND OTHER SERVANTS OF THE EUROPEAN COMMUNITIES FOLLOWING THE AMENDMENT OF THE PROVISIONS OF THE STAFF REGULATIONS CONCERNING THE MONETARY PARITIES TO BE USED IN IMPLEMENTING THE STAFF REGULATIONS . ARTICLE 1 ( 2 ) OF THE REGULATION FIXES INTER ALIA THE WEIGHTINGS APPLICABLE TO PENSIONS IN ACCORDANCE WITH THE SECOND SUBPARAGRAPH OF ARTICLE 82 ( 1 ) OF THE STAFF REGULATIONS AT 62.5 FOR THE UNITED KINGDOM .
8 BY A LETTER OF 22 OCTOBER 1979 THE COMMISSION, WHICH WAS DESIGNATED BY THE BUDGETARY AUTHORITIES OF THE COMMUNITIES TO PROVIDE THE PENSION BENEFITS, NOTIFIED THE APPLICANT THAT BY THE APPLICATION OF ARTICLE 4 OF REGULATION NO 3086/78 THE AMOUNT OF HIS PENSION WOULD FALL FROM BFR 18 256 IN OCTOBER 1979 TO BFR 8 398 IN JULY 1980 AND THAT THAT LATTER AMOUNT WOULD BE ACHIEVED BY PROGRESSIVE REDUCTION .
9 PURSUANT TO ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS THE APPLICANT LODGED COMPLAINTS AGAINST THAT LETTER WITH THE EUROPEAN PARLIAMENT AND THE COMMISSION, BY LETTERS OF 8 JANUARY 1980 . SINCE HE DID NOT RECEIVE ANY REPLY TO THESE COMPLAINTS HE INSTITUTED THESE PROCEEDINGS .
THE OBJECTION OF INADMISSIBILITY RAISED BY THE COMMISSION
10 BY A DOCUMENT DATED 30 SEPTEMBER 1980 THE COMMISSION RAISED AN OBJECTION OF INADMISSIBILITY UNDER ARTICLE 91 OF THE RULES OF PROCEDURE . ACCORDING TO IT THE APPLICATION IS INADMISSIBLE ON THE GROUNDS ( 1 ) THAT THE COMMISSION IS NOT THE APPOINTING AUTHORITY AND ( 2 ) THAT THE APPLICATION IS NOT DIRECTED AGAINST AN ACT ADVERSELY AFFECTING THE APPLICANT . PROCEEDINGS BROUGHT UNDER ARTICLE 91 MUST BE AGAINST THE APPOINTING AUTHORITY . IT IS CLEAR FROM ARTICLE 45 OF ANNEX VIII TO THE STAFF REGULATIONS THAT IT IS THE INSTITUTION IN WHICH THE OFFICIAL WAS SERVING AT THE TIME WHEN HIS ACTIVE EMPLOYMENT ENDED, IN THIS CASE THE EUROPEAN PARLIAMENT, WHICH IS RESPONSIBLE FOR CALCULATING THE AMOUNT OF PENSION . THE COMMISSION, IN CALCULATING THE PENSIONS SUBSEQUENTLY TO BE RECEIVED BY EACH OF THE FORMER OFFICIALS AND SERVANTS OF THE COMMUNITIES AFFECTED BY THE NEW SCHEME, WAS MERELY ACTING AS THE AGENT OF THE PARLIAMENT UNDER ARTICLE 45 OF ANNEX VIII TO THE STAFF REGULATIONS . THE LETTER OF 22 OCTOBER 1979 DOES NOT CONSTITUTE A MEASURE ADVERSELY AFFECTING THE APPLICANT FOR THE PURPOSES OF THE STAFF REGULATIONS ; THE PAYMENT SLIP FOR OCTOBER 1979 CONSTITUTES THE ACT ADVERSELY AFFECTING THE APPLICANT AGAINST WHICH HE SHOULD HAVE INSTITUTED THE PROCEEDINGS .
11 BY A DOCUMENT OF 11 NOVEMBER 1980 THE APPLICANT SUBMITS THAT THE OBJECTION SHOULD BE REJECTED AND ALTERNATIVELY THAT THE ISSUE OF ADMISSIBILITY SHOULD BE RESERVED UNTIL THE SUBSTANCE OF THE CASE HAS BEEN HEARD . ACCORDING TO HIM, THE APPLICATION IS DIRECTED AGAINST THE DECISION TO REDUCE HIS PENSION, A DECISION WHICH WAS NOTIFIED TO HIM BY THE COMMISSION . FURTHERMORE, THE COMMUNICATION OF THE COMMISSION CONSTITUTES OR CONTAINS THE ACT APPLYING
THE CONTESTED REGULATIONS TO THE APPLICANT . HE MAY THUS CHALLENGE THAT ACT AND IN DOING SO FOUND ON THE UNLAWFULNESS OF THE REGULATIONS .
12 THE FIRST SUBMISSION OF THE COMMISSION IS WELL FOUNDED . ARTICLES 90 AND 91 OF THE STAFF REGULATIONS SHOW THAT THE APPEAL REFERRED TO IN ARTICLE 91 MAY BE DIRECTED ONLY AGAINST THE APPOINTING AUTHORITY, IN THIS CASE THE EUROPEAN PARLIAMENT . THE APPLICATION AGAINST THE COMMISSION IS THEREFORE INADMISSIBLE . IT IS ACCORDINGLY UNNECESSARY TO CONSIDER THE SECOND SUBMISSION .
THE OBJECTION OF INADMISSIBILITY RAISED BY THE PARLIAMENT
13 BY A DOCUMENT DATED 30 OCTOBER 1980 THE EUROPEAN PARLIAMENT SUBMITTED AN OBJECTION OF INADMISSIBILITY UNDER ARTICLE 91 OF THE RULES OF PROCEDURE . THE APPLICANT AND 11 OFFICIALS OF THE PARLIAMENT LODGED AN APPLICATION ( CASE 154/79 ) BEFORE THE EXPIRY OF THE PERIOD OF FOUR MONTHS WITHIN WHICH THE APPOINTING AUTHORITY IS REQUIRED UNDER ARTICLE 90 OF THE STAFF REGULATIONS TO REPLY TO A COMPLAINT SUBMITTED BY AN APPLICANT . THE APPLICANT SUBMITTED A SECOND COMPLAINT ON 16 JANUARY 1980 AND SUBSEQUENTLY, ON 18 JULY 1980, INSTITUTED THESE PROCEEDINGS . THIS WAY OF PROCEEDING IS, FIRST, CONTRARY TO THE SYSTEM OF APPEALS AS LAID DOWN IN ARTICLES 90 AND 91 OF THE STAFF REGULATIONS IN SO FAR AS IT WOULD ALLOW TWO SUCCESSIVE APPEALS TO THE COURT HAVING ONE AND THE SAME OBJECT . SECONDLY, IT IS NOT IN CONFORMITY WITH THE SPIRIT OF ARTICLE 42 OF THE RULES OF PROCEDURE, ACCORDING TO WHICH NO FRESH ISSUE MAY IN PRINCIPLE BE RAISED IN THE COURSE OF PROCEEDINGS .
14 FURTHERMORE, THE COMPLAINT RECEIVED BY THE PARLIAMENT ON 16 JANUARY 1980 IS OUT OF TIME . IT SHOULD HAVE BEEN SUBMITTED WITHIN A PERIOD OF THREE MONTHS WHICH STARTED TO RUN FROM THE TIME WHEN THE APPLICANT RECEIVED THE LETTER OF 4 SEPTEMBER 1979 FROM THE COMMISSION WHICH CONFIRMED THAT THE ABOVE-MENTIONED REGULATIONS OF THE COUNCIL WERE APPLICABLE TO THE APPLICANT AS FROM 1 OCTOBER 1979 .
15 IN HIS REPLY THE APPLICANT CHALLENGES THE VALIDITY OF THE SUBMISSIONS OF THE PARLIAMENT . THE PRESENT APPLICATION IS NOT CONTRARY TO THE SYSTEM OF APPEALS LAID DOWN IN ARTICLES 90 AND 91 OF THE STAFF REGULATIONS . IN CASE 154/79 THE PARLIAMENT OBJECTED TO THE ADMISSIBILITY OF THE ACTION ON THE GROUND THAT THE APPLICANTS HAD NO STANDING TO CHALLENGE REGULATIONS BUT ONLY INDIVIDUAL
MEASURES AND THAT THEY COULD NOT OVERCOME THAT LACK OF STANDING BY MAKING A COMPLAINT DIRECTED AGAINST A REGULATION . CONSEQUENTLY THE APPLICANT IS FULLY JUSTIFIED IN BRINGING A SECOND APPLICATION TO PRESERVE HIS POSITION AGAINST THE INDIVIDUAL ACT AFFECTING HIM . ARTICLE 42 OF THE RULES OF PROCEDURE IS NOT RELEVANT HERE SINCE THESE ARE NEW PROCEEDINGS .
16 THE SECOND SUBMISSION IS ALSO UNFOUNDED . THE LETTER OF 4 SEPTEMBER 1979 DID NOT IN ANY WAY SET OUT THE MANNER IN WHICH THE OFFENDING REGULATIONS WERE TO BE APPLIED TO THE APPLICANT AND WERE ONLY AN ATTEMPT TO JUSTIFY THE ADOPTION OF THE REGULATIONS IN QUESTION . THE DECISIVE LETTER WAS THAT OF 22 OCTOBER 1979 WHICH DECIDED THAT THE REGULATIONS IN QUESTION WERE TO APPLY TO THE CALCULATION OF THE APPLICANT ' S PENSION .
17 THE OBJECTION OF THE PARLIAMENT MUST BE DISMISSED . FIRST, THERE IS NOTHING IN THE SYSTEM OF APPEALS REFERRED TO IN ARTICLES 90 AND 91 OF THE STAFF REGULATIONS WHICH PRECLUDES THE INTRODUCTION OF A SECOND APPLICATION AGAINST AN ACT ADVERSELY AFFECTING THE APPLICANT IN THE COURSE OF THE PROCEDURE OF ANOTHER APPLICATION AGAINST AN ACT OTHER THAN THAT CONCERNED IN THE SECOND APPLICATION AND THIS APPLIES A FORTIORI WHERE THE FIRST APPLICATION IS LIABLE TO BE DECLARED INADMISSIBLE BECAUSE IT WAS LODGED PREMATURELY . WITH REGARD TO THE ALLEGED LATENESS OF THE COMPLAINT THE ARGUMENT OF THE APPLICANT TO THE EFFECT THAT THE LETTER OF 4 SEPTEMBER DOES NOT CONSTITUTE A DECISION MUST BE UPHELD . THE FIRST DECISION APPLYING THE REGULATIONS TO THE APPLICANT WAS THAT CONTAINED IN THE LETTER OF 22 OCTOBER 1979 . THE APPLICATION AGAINST THE EUROPEAN PARLIAMENT IS THUS ADMISSIBLE .
Decision on costs
18 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . SINCE THE APPLICANT HAS FAILED IN HIS ACTION IN SO FAR AS IT IS DIRECTED AGAINST THE COMMISSION, HE MUST BE ORDERED TO PAY THE COSTS . NEVERTHELESS, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN STAFF CASES THE INSTITUTIONS SHALL BEAR THEIR OWN COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY RULES :
1 . THE APPLICATION OF THE APPLICANT, IN SO FAR AS IT IS DIRECTED AGAINST THE COMMISSION OF THE EUROPEAN COMMUNITIES, IS DISMISSED AS INADMISSIBLE .
2 . THE APPLICATION OF THE APPLICANT, IN SO FAR AS IT IS DIRECTED AGAINST THE EUROPEAN PARLIAMENT, IS ADMISSIBLE ; THE WRITTEN PROCEDURE SHALL BE RESUMED WITH REGARD TO THE SUBSTANCE .
3 . THE APPLICANT SHALL PAY HIS OWN COSTS IN THE PROCEEDINGS AGAINST THE COMMISSION .
4 . THE COMMISSION OF THE EUROPEAN COMMUNITIES SHALL PAY ITS OWN COSTS .
5 . THE COSTS OF THE PROCEEDINGS BETWEEN THE APPLICANT AND THE EUROPEAN PARLIAMENT ARE RESERVED .