61980CJ0033_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 33/80
RENATO ALBINI, A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES AND NINE OTHER FORMER OFFICIALS OF THE COMMISSION, REPRESENTED AND ASSISTED BY RAIMONDO MARINI-CLARELLI OF THE ROME BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF VICTOR BIEL, ADVOCATE, 18 A RUE DES GLACIS,
APPLICANTS,
V
COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, JOHN CARBERY, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF DOUGLAS FONTEIN, DIRECTOR OF THE LEGAL DEPARTMENT OF THE EUROPEAN INVESTMENT BANK, KIRCHBERG,
AND
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, JOSEPH GRIESMAR, AND BY ORESTE MONTALTO, A MEMBER OF THE LEGAL DEPARTMENT, ACTING AS AGENTS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, MARIO CERVINO, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANTS,
Subject of the case
APPLICATION IN THE TERMS SET OUT IN THE PLEADINGS,
Grounds
1 BY AN APPLICATION RECEIVED AT THE COURT REGISTRY ON 24 JANUARY 1980 THE APPLICANTS BROUGHT PROCEEDINGS UNDER ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS AGAINST THE COUNCIL OF THE EUROPEAN COMMUNITIES AND THE COMMISSION OF THE EUROPEAN COMMUNITIES . THE APPLICANTS, WHO ARE TEN RETIRED OFFICIALS OF THE COMMISSION, CLAIM THAT THE COURT SHOULD :
( 1 ) ANNUL OR AT LEAST DECLARE INAPPLICABLE TO THEM COUNCIL REGULATIONS NOS 3085/78 AND 3086/78 OF 21 DECEMBER 1978 ;
( 2)IN THE ALTERNATIVE AWARD THE APPLICANTS A COMPENSATORY ALLOWANCE CALCULATED IN SUCH A WAY AS TO AVOID ANY REDUCTION IN THE PENSIONS PAID TO THE APPLICANTS BEFORE THE ENTRY INTO FORCE OF REGULATIONS NOS 3085/78 AND 3086/78 .
2 IN THE VERSION IN FORCE UNTIL THE END OF 1978, ARTICLES 63 AND 64 OF THE STAFF REGULATIONS PROVIDED THAT : ' ' 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 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 WAS TO ENTER INTO FORCE ON 1 JANUARY 1979 AND WAS TO APPLY FROM 1 APRIL 1979 . HOWEVER, FOR PENSIONS AND ALLOWANCES OF WHICH THE NET AMOUNT BECAME LESS THAN THAT UNDER THE EXISTING ARRANGEMENTS, THE REGULATION WAS TO APPLY ONLY FROM 1 OCTOBER 1979 . FROM THAT DATE THE DIFFERENCE BETWEEN THE NET AMOUNTS RESULTING FROM THE IMPLEMENTATION OF THAT REGULATION AND THOSE RECEIVED IN SEPTEMBER 1979 WAS TO 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 WEIGHTING APPLICABLE TO PENSIONS IN ACCORDANCE WITH THE SECOND SUBPARAGRAPH OF ARTICLE 82 ( 1 ) OF THE STAFF REGULATIONS AT 74.4 FOR ITALY .
8 DURING MARCH 1979 CERTAIN OF THE APPLICANTS SUBMITTED REQUESTS TO THE COMMISSION TO THE EFFECT THAT THE COMMISSION SHOULD PROPOSE TO THE COUNCIL
ALL NECESSARY AMENDMENTS TO REGULATIONS NOS 3085 AND 3086/78 THE LEGALITY OF WHICH WAS CONTESTED BY THE APPLICANTS . IN A COMMUNICATION OF 12 JULY 1979 THE COMMISSION REFUSED THOSE REQUESTS .
9 DURING OCTOBER 1979 MOST OF THE APPLICANTS LODGED COMPLAINTS UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS AGAINST THE COMMISSION ' S DECISION . THE COMMISSION MAINTAINED ITS VIEW AND THE APPLICANTS HAVE THEREFORE BROUGHT THIS ACTION .
10 THE APPLICANTS MAINTAIN THAT THE PENSION SCHEME FOR OFFICIALS IS A CONTRIBUTORY ONE, FINANCED AS TO ONE-THIRD BY THE CONTRIBUTIONS OF THE OFFICIALS . THEREFORE THE PENSION IS NOTHING OTHER THAN DEFERRED REMUNERATION AND IS NOT A KIND OF GRATUITY GRANTED BY THE EMPLOYER . ALL OFFICIALS OF A CERTAIN GRADE AND SENIORITY PAY THE SAME AMOUNT OF CONTRIBUTION BY MEANS OF A DEDUCTION AT SOURCE . ALL DEDUCTIONS ARE MADE IN BELGIAN FRANCS AT SOURCE AND WITHOUT BEING WEIGHTED . THE SCHEME PRESUPPOSES THAT AN OFFICIAL WHO HAS MADE CONTRIBUTIONS OF THE SAME AMOUNT AS THOSE PAID BY OTHER OFFICIALS OF THE SAME GRADE AND SENIORITY SHOULD RECEIVE A PENSION OF THE SAME AMOUNT AS THE PENSION ENJOYED BY OTHER OFFICIALS AND THAT SUCH PENSION SHOULD CORRESPOND BOTH TO THE CONTRIBUTIONS WHICH HE HAS PAID BY WAY OF DEDUCTION AND TO THE PAYMENTS MADE BY THE EMPLOYER . THE APPLICANTS CONSIDER THAT IT IS ILLEGAL TO REDUCE THE PENSION BY APPLYING A WEIGHTING DEPENDING ON THE PLACE OF RESIDENCE AND ON THE COST OF LIVING PREVAILING THERE BECAUSE TO DO SO WOULD BE TO LIMIT THE FREEDOM OF MOVEMENT OF THE PENSIONER AT THE VERY MOMENT WHEN HE HAS THE GREATEST NEED OF IT . THROUGH THE ADOPTION OF THE CONTESTED REGULATIONS AND THE CONSEQUENT REDUCTION IN THEIR PENSIONS BY MORE THAN ONE-
HALF, THE LEGITIMATE EXPECTATIONS OF THE APPLICANTS HAVE BEEN FRUSTRATED .
11
BY DOCUMENTS LODGED ON 28 AND 29 FEBRUARY 1980 RESPECTIVELY, THE COUNCIL AND THE COMMISSION, IN PURSUANCE OF ARTICLE 91 OF THE RULES OF PROCEDURE OF THE COURT, PUT FORWARD OBJECTIONS OF INADMISSIBILITY RELATING TO THE ACTION FOR ANNULMENT, TO THE CLAIM FOR A DECLARATION OF THE INAPPLICABILITY OF THE REGULATIONS AS REGARDS THE APPLICANTS AND TO THE CLAIM FOR A COMPENSATORY ALLOWANCE .
12 AS REGARDS THE ACTION FOR ANNULMENT THE COUNCIL AND THE COMMISSION CONTEMPLATE TWO POSSIBLE BASES FOR AN ACTION ; EITHER ARTICLE 91 OF THE STAFF REGULATIONS OR ARTICLE 173 OF THE TREATY . ACCORDING TO THE COUNCIL THE ACTION BROUGHT UNDER ARTICLE 91 OF THE STAFF REGULATIONS IS INADMISSIBLE ON THE FOLLOWING GROUNDS : THE APPLICANTS HAVE FAILED TO LODGE A COMPLAINT WITH THE COUNCIL WITHIN THE MEANING OF ARTICLE 90 ( 2 ); SECONDLY THE COUNCIL IS NOT THE APPOINTING AUTHORITY AS REGARDS THE APPLICANTS ; ARTICLE 91 GIVES A RIGHT OF ACTION ONLY AGAINST ACTS ADVERSELY AFFECTING AN OFFICIAL AND SUCH ACTS CAN ONLY BE THOSE OF THE APPOINTING AUTHORITY . ACCORDING TO THE COMMISSION THE RIGHT OF ACTION CONFERRED BY ARTICLE 91 OF THE STAFF REGULATIONS MAY ONLY BE EXERCISED AGAINST AN ' ' ACT ADVERSELY AFFECTING ' '
AN OFFICIAL AND ISSUING FROM THE APPOINTING AUTHORITY, WHEREAS IN THE PRESENT CASE, THE ACTION RELATES TO COUNCIL REGULATIONS, WHICH DO NOT CONSTITUTE ACTS ADVERSELY AFFECTING AN OFFICIAL WITHIN THE MEANING OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS .
13 THE COUNCIL AND THE COMMISSION MAINTAIN THAT EVEN IF THE ACTION WERE BASED ON ARTICLE 173 OF THE TREATY IT WOULD NEVERTHELESS BE INADMISSIBLE BECAUSE THE CONTESTED REGULATIONS ARE NOT DECISIONS ADDRESSED TO THE APPLICANTS OR DECISIONS WHICH, ALTHOUGH IN THE FORM OF A REGULATION, ARE OF DIRECT AND INDIVIDUAL CONCERN TO THE APPLICANTS . IN ANY EVENT, THE APPLICATION IS INADMISSIBLE BECAUSE IT WAS NOT BROUGHT WITHIN THE PERIOD OF TWO MONTHS FROM THE DATE OF PUBLICATION OF THE REGULATIONS .
14 AS REGARDS THE CLAIM FOR A DECLARATION OF THE INAPPLICABILITY OF THE REGULATIONS IN QUESTION THE COUNCIL AND THE COMMISSION POINT OUT THAT SUCH A CLAIM COULD ONLY BE BROUGHT UNDER ARTICLE 184 OF THE TREATY . HOWEVER, THAT ARTICLE ONLY ALLOWS AN APPLICANT TO INVOKE THE INVALIDITY OF A REGULATION INCIDENTALLY AND WITH LIMITED EFFECT AND THEN ONLY IN THE FRAMEWORK OF PROCEEDINGS BROUGHT BEFORE THE COURT UNDER A DIFFERENT PROVISION OF THE TREATY . THE RIGHT TO CALL IN QUESTION THE LEGALITY OF THE REGULATION INCIDENTALLY CANNOT FOUND AN ACTION WHICH SEEKS AS ITS MAIN OBJECT A DECLARATION OF INAPPLICABILITY . THE COUNCIL AND THE COMMISSION THEREFORE CONSIDER THAT THE CLAIM BROUGHT UNDER ARTICLE 184 OF THE TREATY IS INADMISSIBLE .
15 THE COUNCIL TAKES THE VIEW THAT THE CLAIM FOR DAMAGES IS LIKEWISE INADMISSIBLE . SUCH A CLAIM CONFLICTS WITH THE CASE-LAW OF THE COURT ACCORDING TO WHICH PROCEEDINGS BY AN OFFICIAL ( OR A FORMER OFFICIAL ) FOR DAMAGES WHEN BASED ON THE EMPLOYMENT RELATIONSHIP BETWEEN THE INSTITUTION AND THE PERSON CONCERNED MUST BE BROUGHT ON THE BASIS OF ARTICLE 179 OF THE TREATY AND
ARTICLES 90 AND 91 OF THE STAFF REGULATIONS . THE ACTION CAN THUS ONLY BE BROUGHT AGAINST THE APPOINTING AUTHORITY . THE COMMISSION ADDS THAT, WHERE AN OFFICIAL UNDER ARTICLE 179 OF THE TREATY BRINGS PROCEEDINGS FOR THE ANNULMENT OF A MEASURE ADOPTED BY AN INSTITUTION AND AT THE SAME TIME FOR THE AWARD OF DAMAGES TO COMPENSATE FOR THE DAMAGE HE HAS SUFFERED AS A RESULT OF THAT MEASURE, IF THE ACTION FOR ANNULMENT IS HELD TO BE INADMISSIBLE, IN ACCORDANCE WITH THE CASE-LAW OF THE COURT, THIS LEADS TO THE INADMISSIBILITY OF THE ACTION FOR DAMAGES .
16 THE APPLICANTS STATE IN REPLY THAT THEY SUBMITTED THEIR COMPLAINTS WITHIN THE TIME SPECIFIED BY THE STAFF REGULATIONS . ACCORDING TO THE APPLICANTS THE CONTESTED REGULATIONS ARE ACTS ADVERSELY AFFECTING THEM SINCE THEY HAVE RESULTED IN A REDUCTION BY MORE THAN ONE-HALF OF THE AMOUNTS OF THEIR PENSION ENTITLEMENT . THE REGULATIONS WERE ADOPTED BY THE COUNCIL AND CARRIED INTO EFFECT BY THE COMMISSION AND IT WAS FOR THAT REASON THAT THE APPLICANTS DECIDED TO INSTITUTE PROCEEDINGS AGAINST BOTH INSTITUTIONS . THE APPLICANTS CERTAINLY DO NOT DISAGREE WITH THE COUNCIL ' S OPINION THAT AN APPLICATION FOR A DECLARATION OF THE INAPPLICABILITY OF A REGULATION MAY ONLY BE SOUGHT AS AN ADJUNCT TO OTHER PROCEEDINGS BUT THAT DOES NOT JUSTIFY THE CONCLUSION WHICH THE COUNCIL DRAWS . AS REGARDS THE ALTERNATIVE CLAIM FOR COMPENSATION DAMAGE SUFFERED, THIS CLAIM IS JUSTIFIED BY THE GENERAL DUTY OF ASSISTANCE WHICH COMMUNITY INSTITUTIONS OWE TO THEIR OFFICIALS .
17 THE OBJECTIONS OF INADMISSIBILITY RAISED BY THE COUNCIL AND THE COMMISSION MUST BE UPHELD . THE EFFECT OF ARTICLES 90 AND 91 OF THE STAFF REGULATIONS IS THAT THE COMPLAINT, AND THEREFORE THE APPLICATION TO THE COURT, MAY ONLY BE DIRECTED AGAINST THE APPOINTING AUTHORITY AND THAT THE ACT ADVERSELY AFFECTING THE OFFICIAL MUST BE AN ACT OF THAT AUTHORITY . MOREOVER, THE ACTION, IN SO FAR AS IT IS BASED ON ARTICLE 173, EVEN IF IT WERE OTHERWISE ADMISSIBLE, WAS NOT BROUGHT WITHIN THE PERIOD LAID DOWN BY THAT ARTICLE . ACCORDING TO THE CASE-LAW OF THE COURT THE POSSIBILITY PROVIDED BY ARTICLE 184 OF THE TREATY OF INVOKING THE INAPPLICABILITY OF A REGULATION DOES NOT CONSTITUTE AN INDEPENDENT RIGHT OF ACTION AND MAY ONLY BE SOUGHT INCIDENTALLY . IN THE ABSENCE OF SUCH AN INDEPENDENT RIGHT OF ACTION THE APPLICANTS CANNOT INVOKE ARTICLE 184 .
18 AS REGARDS THE CLAIM FOR DAMAGES THE CASE-LAW OF THE COURT ( IN PARTICULAR THE JUDGMENT OF 12 DECEMBER 1967, MULLER V COMMISSION ( 1967 ) ECR 365, AND THE JUDGMENT OF 20 OCTOBER 1965, MEYER-BURCKHARDT V COMMISSION ( 1975 )
ECR 1171 ) LAYS DOWN THAT WHERE AN OFFICIAL BRINGS PROCEEDINGS UNDER ARTICLE 179 OF THE TREATY FOR THE ANNULMENT OF AN ACT OF AN INSTITUTION AND FOR THE AWARD OF COMPENSATION FOR THE DAMAGE HE HAS SUFFERED AS A RESULT OF THAT ACT, THE CLAIMS ARE SO CLOSELY CONNECTED THAT THE INADMISSIBILITY OF THE APPLICATION FOR ANNULMENT MUST ENTAIL THE INADMISSIBILITY OF THE CLAIM FOR COMPENSATION .
19
THE APPLICATION MUST THEREFORE BE DISMISSED AS INADMISSIBLE .
Decision on costs
20 UNDER ARTICLE 70 OF THE RULES OF PROCEDURE THE COSTS INCURRED BY THE INSTITUTIONS IN PROCEEDINGS BROUGHT BY EMPLOYEES OF THE COMMUNITIES ARE TO BE BORNE BY SUCH INSTITUTIONS .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION AS INADMISSIBLE ;
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .