61979CJ0799_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 799/79
GUNTER BRUCKNER, EURATOM CENTRE, ISPRA ( VARESE ), ITALY, REPRESENTED BY B . POTTHAST AND H . J . RUBER OF THE COLOGNE BAR, ASSISTED BY PROFESSOR E . STEINDORFF OF THE UNIVERSITY OF MUNICH, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF V . BIEL, ADVOCATE, 18A RUE DES GLACIS,
APPLICANT,
V
( 1 ) COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY J . PIPKORN, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF O . MONTALTO, JEAN MONNET BUILDING, KIRCHBERG,
( 2)COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, J . CARBERY, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF D . FONTEIN, DIRECTOR OF THE LEGAL DEPARTMENT OF THE EUROPEAN INVESTMENT BANK, KIRCHBERG,
DEFENDANTS,
Subject of the case
APPLICATION IN THE TERMS SET OUT IN THE PLEADINGS,
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 12 NOVEMBER 1979 GUNTER BRUCKNER, AN OFFICIAL OF THE COMMISSION EMPLOYED AT THE JOINT RESEARCH CENTRE AT ISPRA IN ITALY, BROUGHT AN APPLICATION UNDER ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS ( HEREINAFTER REFERRED TO AS ' ' THE STAFF REGULATIONS ' ' ) AGAINST THE COUNCIL AND COMMISSION OF THE EUROPEAN COMMUNITIES .
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 AND IN FORCE 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 IN ACCORDANCE WITH ARTICLE 17 OF ANNEX VII TO THE STAFF REGULATIONS AN OFFICIAL MAY HAVE PART OF HIS EMOLUMENTS TRANSFERRED, EITHER REGULARLY OR ON
AN EXCEPTIONAL BASIS, TO A COUNTRY OTHER THAN THE ONE IN WHICH HE PERFORMS HIS DUTIES . UNTIL 31 MARCH 1979, ARTICLE 17 ( 4 ) PROVIDED THAT SUCH TRANSFERS WERE TO BE MADE THROUGH THE INSTITUTION TO WHICH THE OFFICIAL BELONGED ' ' AT THE OFFICIAL EXCHANGE RATE RULING ON THE DATE OF TRANSFER ' ' . THE ' ' OFFICIAL EXCHANGE RATE ' '
WITHIN THE MEANING OF THAT PROVISION WAS THE LAST PARITY ACCEPTED BY THE INTERNATIONAL MONETARY FUND, WHICH HAD NOT BEEN ALTERED SINCE 1 NOVEMBER 1969 ( FOR EXAMPLE, BFR 13.66 TO DM 1 ).
4 ON 21 DECEMBER 1978 THE COUNCIL ADOPTED REGULATION ( EURATOM, ECSC, EEC ) NO 3085/78 ( OFFICIAL JOURNAL L 369, P . 6 ), ARTICLE 1 OF WHICH STATED 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 . ' '
5 ARTICLE 2 OF THE REGULATION PROVIDES :
' ' ARTICLE 17 OF ANNEX VII SHALL BE REPLACED BY THE FOLLOWING :
ARTICLE 17
1 . PAYMENT SHALL BE MADE TO EACH OFFICIAL AT THE PLACE AND IN THE CURRENCY OF THE COUNTRY WHERE HE CARRIES OUT HIS DUTIES .
2 . UNDER THE TERMS LAID DOWN IN RULES DRAWN UP BY COMMON AGREEMENT BY THE INSTITUTIONS OF THE COMMUNITIES, AFTER CONSULTATION OF THE STAFF REGULATIONS COMMITTEE, AN OFFICIAL MAY :
( A ) THROUGH THE INSTITUTION WHICH HE SERVES, REGULARLY HAVE PART OF HIS EMOLUMENTS TRANSFERRED UP TO A MAXIMUM AMOUNT EQUAL TO HIS EXPATRIATION OR FOREIGN RESIDENCE ALLOWANCE :
- EITHER IN THE CURRENCY OF THE MEMBER STATE OF WHICH HE IS A NATIONAL,
-OR IN THE CURRENCY OF THE MEMBER STATE IN WHICH EITHER HIS OWN DOMICILE OR THE PLACE OF RESIDENCE OF A DEPENDENT RELATIVE IS LOCATED,
-OR IN THE CURRENCY OF HIS PREVIOUS COUNTRY OF EMPLOYMENT OR OF THE COUNTRY IN WHICH HIS INSTITUTION HAS ITS SEAT, PROVIDED THAT THE OFFICIAL IN QUESTION HAS BEEN ASSIGNED TO A POST OUTSIDE THE TERRITORY OF THE EUROPEAN COMMUNITIES ;
( B)HAVE REGULAR TRANSFERS MADE IN EXCESS OF THE MAXIMUM STATED AT THE BEGINNING OF PARAGRAPH ( A ) PROVIDED THAT THEY ARE INTENDED TO COVER EXPENDITURE ARISING IN PARTICULAR OUT OF COMMITMENTS PROVED TO HAVE BEEN REGULARLY UNDERTAKEN BY THE OFFICIAL OUTSIDE THE COUNTRY WHERE THE INSTITUTION HAS ITS SEAT OR OUTSIDE THE COUNTRY WHERE HE CARRIES OUT HIS DUTIES ;
( C)BE AUTHORIZED, IN VERY EXCEPTIONAL CIRCUMSTANCES AND FOR GOOD REASONS SUPPORTED BY EVIDENCE, TO HAVE TRANSFERRED, APART FROM THE AFOREMENTIONED REGULAR TRANSFERS, SUMS WHICH HE MAY WISH TO HAVE AVAILABLE IN THE CURRENCIES REFERRED TO IN PARAGRAPH ( A ).
3 . THE TRANSFERS PROVIDED FOR IN PARAGRAPH ( 2 ) SHALL BE MADE AT THE EXCHANGE RATE SPECIFIED IN THE SECOND PARAGRAPH OF ARTICLE 63 OF THE STAFF REGULATIONS ; THE AMOUNTS TRANSFERRED SHALL BE MULTIPLIED BY A COEFFICIENT REPRESENTING THE DIFFERENCE BETWEEN THE WEIGHTING FOR THE COUNTRY IN WHICH THE OFFICIAL IS EMPLOYED . ' '
6 ARTICLE 4 OF THE REGULATION PROVIDES THAT THE REGULATION IS TO ENTER INTO FORCE ON 1 JANUARY 1979 AND THAT IT IS TO APPLY FROM 1 APRIL 1979 .
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 ( 1 ) OF THE REGULATION FIXES INTER ALIA THE WEIGHTING APPLICABLE TO REMUNERATION AT 74.3 FOR ITALY AND AT 98.7 FOR THE FEDERAL REPUBLIC OF GERMANY .
8 THE APPLICANT HAD REGULARLY TRANSFERRED, PURSUANT TO ARTICLE 17 OF ANNEX VII TO THE STAFF REGULATIONS, A SPECIFIC PART OF HIS REMUNERATION TO THE FEDERAL REPUBLIC OF GERMANY, APPLYING THE EXCHANGE RATE IN FORCE ON 1 NOVEMBER 1969 . AS A RESULT OF THE APPLICATION OF THE NEW PROVISIONS CITED ABOVE, AFTER 1 APRIL 1979 THE COST OF THOSE TRANSFERS, EXPRESSED IN ITALIAN LIRE, INCREASED BY LIT 284 463 .
9 ON 21 JUNE 1979 THE APPLICANT SUBMITTED TO THE COMMISSION PURSUANT TO ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS A COMPLAINT AGAINST THE INCREASE IN THE COST OF THOSE TRANSFERS . THE COMMISSION REPLIED ON 28 SEPTEMBER 1979 STATING ON THE ONE HAND THAT IT COULD NOT, WITHOUT EXCEEDING ITS POWERS, REFRAIN FROM APPLYING COUNCIL REGULATIONS WHICH HAD DULY ENTERED INTO FORCE AND ON THE OTHER HAND THAT IT APPROVED IN SUBSTANCE THE AMENDMENTS WHICH HAD BEEN MADE TO THE STAFF REGULATIONS .
10 THE APPLICANT THEREUPON BROUGHT THIS ACTION AGAINST THE COUNCIL AND THE COMMISSION . IN SUBSTANCE HE ASKS THE COURT TO :
( 1 ) ANNUL THE SALARY STATEMENTS FOR JANUARY AND APRIL 1979 AND THE COMMISSION ' S DECISIONS OF 12 JULY AND 28 SEPTEMBER 1979 ON HIS COMPLAINT IN SO FAR AS THOSE STATEMENTS CONTAIN PARTICULARS OF SALARY CALCULATED ON THE BASIS OF COUNCIL REGULATIONS NOS 3085/78 AND 3086/78 .
( 2)DECLARE THAT SINCE APRIL 1979 THE APPLICANT HAS BEEN ENTITLED TO REMUNERATION CORRESPONDING TO AT LEAST THAT WHICH THE APPLICANT RECEIVED IN LIRE UP TO AND INCLUDING MARCH 1979 AFTER MAKING THE SAME TRANSFERS UNDER ARTICLE 17 OF ANNEX VII TO THE STAFF REGULATIONS AS UP TO MARCH 1979 BUT INCREASED BY THE PERCENTAGE OF THE SALARY ADJUSTMENT APPLIED FROM APRIL 1979 PURSUANT TO ARTICLE 65 ( 1 ) OF THE STAFF REGULATIONS .
( 3)DECLARE THAT REGULATIONS NOS 3085/78 AND 3086/78 ARE INAPPLICABLE TO THE TRANSFERS REGULARLY MADE BY THE APPLICANT .
( 4)ORDER THE DEFENDANTS TO PAY DAMAGES TOGETHER WITH INTEREST THEREON FOR THE FINANCIAL LOSS SUFFERED BY THE APPLICANT AS A RESULT OF THE APPLICATION OF THE REGULATIONS IN ISSUE .
11 BY A SUBMISSION DATED 11 JANUARY 1980 THE COUNCIL MADE AN OBJECTION AS TO THE ADMISSIBILITY OF THE APPLICATION . ACCORDING TO THE COUNCIL THE FOLLOWING THREE ACTIONS ARE DISCERNIBLE IN THE APPLICATION : ( 1 ) AN ACTION FOR THE ANNULMENT OF REGULATIONS NOS 3085/78 AND 3086/78, ( 2 ) AN ACTION FOR DAMAGES FOR NON-CONTRACTUAL LIABILITY AND ( 3 ) A CLAIM THAT THE REGULATIONS ARE INAPPLICABLE .
12 AS FAR AS THE ACTION FOR ANNULMENT IS CONCERNED, THE COUNCIL SEES TWO POSSIBILITIES, NAMELY ( A ) AN ACTION BASED ON ARTICLE 91 OF THE STAFF REGULATIONS AND ( B ) AN ACTION BASED ON ARTICLE 146 OF THE EAEC EURATOM TREATY WHICH CORRESPONDS TO ARTICLE 173 OF THE EEC TREATY . IN THE FIRST CASE THE APPLICATION IS ADMISSIBLE ONLY IF IT COMPLIES WITH THE RULES LAID DOWN BY ARTICLES 90 AND 91 OF THE STAFF REGULATIONS, WHICH THIS APPLICATION DOES NOT . THE APPLICANT HAS NEVER SUBMITTED TO THE COUNCIL A COMPLAINT WITHIN THE MEANING OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS . SECONDLY THE COUNCIL CANNOT BE REGARDED AS THE APPOINTING AUTHORITY IN THE APPLICANT ' S CASE . ARTICLE 91 OF THE STAFF REGULATIONS PERMITS AN ACTION TO BE BROUGHT ONLY AGAINST ACTS ADVERSELY AFFECTING OFFICIALS WHICH CAN EMANATE ONLY FROM THE APPOINTING AUTHORITY .
13 IN THE SECOND CASE AN ACTION FOR ANNULMENT CANNOT BE FOUNDED ON ARTICLE 146 OF THE EAEC TREATY . REGULATIONS NOS 3085 AND 3086/78 APPLY TO ALL COMMUNITY OFFICIALS . THEREFORE IT IS NOT POSSIBLE TO CONTEND THAT THEY ARE DECISIONS ADDRESSED TO THE APPLICANT OR DECISIONS OF DIRECT AND INDIVIDUAL CONCERN TO HIM ALTHOUGH IN THE FORM OF A REGULATION . THE COUNCIL FURTHERMORE CLAIMS THAT THE ACTION WAS NOT BROUGHT WITHIN TWO MONTHS OF THE PUBLICATION OF THE REGULATIONS IN QUESTION AS REQUIRED BY THE THIRD PARAGRAPH OF ARTICLE 173 .
14 THE ACTION FOR DAMAGES IS NOT ADMISSIBLE EITHER . ACCORDING TO THE CASE-LAW OF THE COURT, WHERE SUCH A CLAIM ORIGINATES IN THE RELATIONSHIP OF EMPLOYMENT
BETWEEN THE PERSONS CONCERNED AND THE INSTITUTION, IT LIES OUTSIDE THE SCOPE OF ARTICLES 178 AND 215 OF THE TREATY AS FAR AS ITS ADMISSIBILITY IN PARTICULAR IS CONCERNED .
15 THE CLAIM THAT THE REGULATIONS ARE INAPPLICABLE APPEARS TO BE FOUNDED ON ARTICLE 156 OF THE EAEC TREATY WHICH CORRESPONDS TO ARTICLE 184 OF THE EEC TREATY . THAT PROVISION ENABLES ANY PARTY TO INVOKE BEFORE THE COURT THE INAPPLICABILITY OF A REGULATION IN PROCEEDINGS IN WHICH IT IS IN ISSUE AND IN ORDER TO DO SO TO PLEAD THE GROUNDS SPECIFIED IN THE FIRST PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY . HOWEVER, IT IS APPARENT FROM THE DECISIONS OF THE COURT THAT A DECLARATION OF INAPPLICABILITY UNDER ARTICLE 184 OF THE TREATY IS AN INCIDENTAL REMEDY OF LIMITED EFFECT . THE MERE POSSIBILITY OF A DECLARATION OF INAPPLICABILITY DOES NOT OPEN THE WAY TO PROCEEDINGS AGAINST THE COUNCIL JUST BECAUSE IT IS THE INSTITUTION WHICH ADOPTED THE ACT ALLEGED TO BE UNLAWFUL .
16 IN REPLY TO THAT OBJECTION THE APPLICANT CLAIMS THAT THE ACTION AGAINST THE COUNCIL IS NOT AN ACTION FOR ANNULMENT BUT ONLY FOR DAMAGES . IF ARTICLES 90 AND 91 OF THE STAFF REGULATIONS ARE NOT APPLICABLE TO THE RELATIONSHIP BETWEEN THE APPLICANT AND THE COUNCIL, EVEN AS A LEX SPECIALIS THOSE PROVISIONS CANNOT EXCLUDE THE APPLICATION OF ARTICLE 151 AND THE SECOND PARAGRAPH OF ARTICLE 188 OF THE EAEC TREATY . THE APPLICANT THEREFORE TAKES THE VIEW THAT HE MAY BASE HIS CLAIM FOR DAMAGES ON THOSE ARTICLES .
17 THE APPLICANT BELIEVES THAT, IF IT IS ASSUMED THAT THE REQUIREMENTS OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS MUST BE FULFILLED IN EVERY CASE, THEN IT MUST BE SAID THAT THE APPLICANT FULFILS THOSE CONDITIONS BECAUSE HE SUBMITTED A COMPLAINT TO THE APPOINTING AUTHORITY AGAINST THE REGULATIONS ADOPTED BY THE COUNCIL . HE CLAIMS THAT THE COUNCIL IS CONTRADICTING ITSELF WHEN IT RULES OUT ARTICLES 90 AND 91 OF THE STAFF REGULATIONS FOR AN ACTION FOR ANNULMENT AND YET WISHES THEM TO APPLY TO AN ACTION FOR DAMAGES . THE APPLICANT INVOKES THE INAPPLICABILITY OF THE REGULATIONS ONLY AS AN INCIDENTAL CLAIM .
18 THE OBJECTION RAISED BY THE COUNCIL MUST BE UPHELD . AN ACTION FOR ANNULMENT OF REGULATIONS NO 3085/78 AND NO 3086/78 OF THE COUNCIL IS INADMISSIBLE, SINCE THE REGULATIONS IN QUESTION ARE OF GENERAL APPLICATION AND
CANNOT BE ASSIMILATED TO DECISIONS WHICH, ALTHOUGH TAKEN IN THE FORM OF REGULATIONS, ARE OF DIRECT AND INDIVIDUAL CONCERN TO THE APPLICANTS . MOREOVER, EVEN IF SUCH AN ACTION AGAINST THE COUNCIL WERE ADMISSIBLE IN THAT RESPECT IT WOULD NEVERTHELESS BE INADMISSIBLE BECAUSE IT IS OUT OF TIME, HAVING BEEN LODGED AFTER THE EXPIRY OF THE PERIOD LAID DOWN IN THE THIRD PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY, WHICH CORRESPONDS TO THE THIRD PARAGRAPH OF ARTICLE 146 OF THE EAEC TREATY .
19 THE APPLICANT ' S CLAIM FOR COMPENSATION SEEKS TO OBTAIN PRECISELY THE SAME RESULTS AS THOSE WHICH HE WOULD OBTAIN FROM THE ANNULMENT OF THE REGULATIONS . THE COURT HAS HELD ON A NUMBER OF OCCASIONS, IN PARTICULAR IN ITS JUDGMENT OF 15 DECEMBER 1966 ( SCHRECKENBERG, CASE 59/65 ( 1966 ) ECR 543 ) THAT ALTHOUGH A PARTY MAY TAKE ACTION BY MEANS OF A CLAIM FOR COMPENSATION WITHOUT BEING OBLIGED BY ANY PROVISION OF LAW TO SEEK THE ANNULMENT OF THE ILLEGAL MEASURE WHICH CAUSES HIM DAMAGE, HE MAY NOT BY THIS MEANS CIRCUMVENT THE INADMISSIBILITY OF AN APPLICATION WHICH CONCERNS THE SAME ILLEGALITY AND WHICH HAS THE SAME FINANCIAL END IN VIEW . THE CLAIM FOR COMPENSATION IS THEREFORE INADMISSIBLE .
20 IN THE CIRCUMSTANCES THE APPLICATION IS INADMISSIBLE IN SO FAR AS IT IS DIRECTED AGAINST THE COUNCIL AND MUST THEREFORE BE DISMISSED .
21 THE COMMISSION DOES NOT CHALLENGE THE ADMISSIBILITY OF THE APPLICATION IN SO FAR AS IT IS DIRECTED AGAINST IT . THE PROCEEDINGS CONCERNING THE SUBSTANCE OF THE CASE WILL THEREFORE CONTINUE .
Decision on costs
22 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .
23 HOWEVER, 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 THOSE INSTITUTIONS .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION AS INADMISSIBLE IN SO FAR AS IT IS DIRECTED AGAINST THE COUNCIL .
2 . ORDERS THE APPLICANT AND THE COUNCIL TO BEAR THEIR OWN COSTS .