61976CJ0048_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 48/76
ANDREAS H . REINARZ, A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING IN WASA, ( CANADA ), REPRESENTED BY A . J . HAMMERSTEIN, ADVOCATE AT THE ARRONDISSEMENTSRECHTBANK, MAASTRICHT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF FELICIEN JANSEN, 21 RUE ALDRINGER,
APPLICANT,
V COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, RAYMOND BAEYENS, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO, LEGAL ADVISER TO THE COMMISSION, BATIMENT CFL, PLACE DE LA GARE,
AND
COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISERS, ANTONIO SACCHETTINI, ACTING AS AGENT, AND GIJSBERTUS PEETERS, ACTING AS CO-AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MR VAN DEN HOUTEN, DIRECTOR OF THE LEGAL SERVICE OF THE EUROPEAN INVESTMENT BANK, 2 PLACE DE METZ,
DEFENDANTS,
Subject of the case
APPLICATION, AT THE PRESENT STAGE OF THE PROCEEDINGS, FOR A FINDING OF ADMISSIBILITY OF THE APPLICATION FOR THE ANNULMENT OF THE THIRD SUBPARAGRAPH OF ARTICLE 3 ( 3 ) OF REGULATION ( EEC ) NO 2530/72 OF THE COUNCIL OF 4 DECEMBER 1972 INTRODUCING SPECIAL AND TEMPORARY MEASURES APPLICABLE TO THE RECRUITMENT OF OFFICIALS OF THE EUROPEAN COMMUNITIES IN CONSEQUENCE OF THE ACCESSION OF NEW MEMBER STATES, AND FOR THE TERMINATION OF SERVICE OF OFFICIALS OF THOSE COMMUNITIES ( OJ, ENGLISH SPECIAL EDITION 1972 ( 1-8 DECEMBER ), P . 11 ); AND DAMAGES,
Grounds
1 THE APPLICANT, A FORMER OFFICIAL OF THE EUROPEAN COMMUNITIES AND AT PRESENT IN RECEIPT OF AN ALLOWANCE PURSUANT TO REGULATION ( EURATOM, ECSC, EEC ) NO 2530/72 OF THE COUNCIL OF 4 DECEMBER 1972 INTRODUCING SPECIAL AND TEMPORARY MEASURES APPLICABLE TO THE RECRUITMENT OF OFFICIALS OF THE EUROPEAN COMMUNITIES IN CONSEQUENCE OF THE ACCESSION OF NEW MEMBER STATES AND FOR THE TERMINATION OF SERVICE OF OFFICIALS OF THOSE COMMUNITIES ( OJ, ENGLISH SPECIAL EDITION 1972 ( 1-8 DECEMBER ), P . 11 ) SEEKS THE ANNULMENT OF THE FINAL SUBPARAGRAPH OF ARTICLE 3 ( 3 ) OF THAT REGULATION, IN CONJUNCTION WITH THE THIRD PARAGRAPH OF ARTICLE 63 OF THE STAFF REGULATIONS OR, AT LEAST, A DECLARATION THAT THEY DO NOT APPLY TO HIM AND COMPENSATION FOR THE LOSS WHICH HE CLAIMS TO HAVE SUFFERED AS A RESULT OF THE APPLICATION OF THOSE PROVISIONS .
2 AFTER THE APPLICANT ' S SERVICE WITH THE COMMUNITIES CAME TO AN END IN 1973, HE SETTLED IN CANADA AND, IN CONSEQUENCE, HIS ALLOWANCE, EXPRESSED IN BELGIAN FRANCS, HAS BEEN PAID IN THE CURRENCY OF CANADA CALCULATED ON THE BASIS OF THE OFFICIAL PAR VALUES IN FORCE ON 1 JANUARY 1965, PURSUANT TO ARTICLE 3 ( 3 ) OF REGULATION NO 2530/72, IN CONJUNCTION WITH THE THIRD PARAGRAPH OF ARTICLE 63 OF THE STAFF REGULATIONS .
3 THE APPLICANT CONTESTS THE CORRECTNESS OF THIS SYSTEM OF PAYMENT CLAIMING, INTER ALIA, THAT THE RULES IN QUESTION AND THE WAY IN WHICH THEY HAVE BEEN APPLIED TO HIM INFRINGE THE PRINCIPLE OF EQUALITY OF TREATMENT OF OFFICIALS, SINCE THE WEIGHTING APPLIED TO HIS ALLOWANCE IS THAT BASED ON LIVING CONDITIONS IN BELGIUM REGARDLESS OF DEPRECIATION IN THE PURCHASING POWER OF THE CANADIAN DOLLAR .
4 THE COUNCIL AND THE COMMISSION, DEFENDANTS, RAISED OBJECTIONS OF INADMISSIBILITY CONTENDING, FIRST, THAT THE APPLICANT DID NOT, PRIOR TO THE LODGING OF HIS APPLICATION, SUBMIT A COMPLAINT UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS TO THE COMPETENT AUTHORITY AND, SECONDLY, THAT, IN SO FAR AS THE APPLICATION IS TO BE REGARDED AS BEING BROUGHT UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY, THE APPLICATION BASED ON LIABILITY UNDER THOSE ARTICLES CANNOT ARISE IN RESPECT OF MATTERS CONCERNING THE RIGHTS OF OFFICIALS UNDER THE STAFF REGULATIONS .
5 ALTHOUGH REGULATION NO 2530/72 DOES NOT OFFICIALLY FORM PART OF THE STAFF REGULATIONS OF OFFICIALS, IT IS NEVERTHELESS CONCERNED WITH REGULATING A SPECIFIC ASPECT OF THE RELATIONSHIP, UNDER STAFF REGULATIONS, BETWEEN THE COMMUNITY INSTITUTIONS AND CERTAIN OF THEIR OFFICIALS .
6 CONSEQUENTLY, THE MEANS OF REDRESS AVAILABLE TO THOSE CONCERNED IN THE EVENT OF A DISPUTE CONCERNING THE APPLICATION OF THE REGULATION ARE THOSE PROVIDED FOR BY THE STAFF REGULATIONS, WHICH INCLUDE THE LODGING OF AN OFFICIAL COMPLAINT AS A CONDITION PRECEDENT TO ANY APPLICATION TO THE COURT .
7 IT IS A FACT THAT THE APPLICANT DID NOT SUBMIT ANY COMPLAINT UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS CONCERNING THE COMPLAINTS WHICH ARE THE SUBJECT OF THIS APPLICATION .
8 IN SO FAR AS IT IS BROUGHT UNDER ARTICLE 179 OF THE TREATY AND THE FIRST PARAGRAPH OF ARTICLE 91 OF THE STAFF REGULATIONS, THE APPLICATION IS, THEREFORE, INADMISSIBLE .
9 IN SO FAR AS THE APPLICANT RELIES FOR THE BASIS OF HIS APPLICATION ON ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY RELATING TO APPLICATIONS BASED ON NON-CONTRACTUAL LIABILITY, THE APPLICATION IN THIS CASE WOULD BE ADMISSIBLE ONLY IF THE ARTICLES MENTIONED WERE INTERPRETED AS MAKING AVAILABLE TO AN OFFICIAL OR TO A FORMER OFFICIAL A MEANS OF REDRESS WHICH IS INDEPENDENT OF THE PROCEEDINGS UNDER STAFF REGULATIONS PURSUANT TO ARTICLE 179 OF THE TREATY .
10 IN THIS CONNEXION IT MUST BE POINTED OUT THAT, AS THE COURT HELD IN ITS JUDGMENT OF 22 OCTOBER 1975 IN CASE 9/75, MEYER-BURCKHARDT ( 1975 ) ECR 1171, A DISPUTE BETWEEN AN OFFICIAL AND THE INSTITUTION TO WHICH HE IS OR WAS ANSWERABLE CONCERNING COMPENSATION FOR DAMAGE IS PURSUED, WHERE IT ORIGINATES IN THE RELATIONSHIP OF EMPLOYMENT BETWEEN THE PERSON CONCERNED AND THE INSTITUTION, UNDER ARTICLE 179 OF THE TREATY AND ARTICLES 90 AND 91 OF THE STAFF REGULATIONS AND LIES OUTSIDE THE SPHERE OF APPLICATION OF ARTICLES 178 AND 215 OF THE TREATY .
11 FURTHERMORE, THE UNLIMITED JURISDICTION CONFERRED ON THE COURT IN THE DISPUTES REFERRED TO IN ARTICLE 179 ENABLES IT, WITHIN THE CONTEXT OF SUCH DISPUTES, TO GIVE JUDGMENT NOT ONLY ON THE VALIDITY OF THE CONTESTED ACT BUT ALSO ON COMPENSATION FOR ANY DAMAGE SUFFERED BY THE PERSON CONCERNED AS A RESULT OF AN ACT CONTRARY TO HIS RIGHTS UNDER THE STAFF REGULATIONS .
12 IN CONSEQUENCE THE APPLICATION IS INADMISSIBLE ALSO IN THAT IT IS BASED ON ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY .
Decision on costs
COSTS
13 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
14 THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .
15 HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS COMMENCED BY AN OFFICIAL OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION ;
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .