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 II-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.

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 II-777 and Case T-64/92 Chavane de Dalmassy and Others v Commission [1994] ECR-SC II-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.

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.

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 II-129, para. 63; T-207/95 Ibarra Gil v Commission [1997] ECR-SC II-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 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 II-187, paras 29 and 30

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] ECR 513, paras 5 and 6; T-547/93 Lopes v Court of Justice [1996] ECR-SC II-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.