Judgment of the Court (First Chamber) of 16 July 1981. - Stephen Biller and others v European Parliament. - Officials - Rates of exchange for the calculation of pensions. - Case 154/79.



European Court reports 1981 Page 02125



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

OFFICIALS - APPLICATIONS TO THE COURT - APPLICATION DIRECTED AGAINST A REGULATION - ABSENCE OF ACT ADVERSELY AFFECTING THE OFFICIAL - INADMISSIBILITY

( EEC TREATY , ART . 173 ; STAFF REGULATIONS OF OFFICIALS , ARTS 90 AND 91 ; COUNCIL REGULATIONS NOS 3085 AND 3086/78 AMENDING THE STAFF REGULATIONS OF OFFICIALS )

Summary

REGULATIONS NOS 3085 AND 3086/78 ARE OF GENERAL APPLICATION AND HENCE OFFICIALS MAY NOT CLAIM THAT THEY CONSTITUTE DECISIONS WHICH ARE OF DIRECT AND INDIVIDUAL CONCERN TO THEM IN ORDER TO CALL THEIR VALIDITY IN QUESTION IN PROCEEDINGS UNDER ARTICLE 173 OF THE TREATY .

THE MERE SUBMISSION OF A COMPLAINT PURSUANT TO ARTICLE 90 OF THE STAFF REGU LATIONS IS NOT SUFFICIENT TO CREATE A JUDICIAL REMEDY AGAINST A MEASURE WHICH IS IN THE NATURE OF A REGULATION . THE PROCEDURE PROVIDED FOR IN ARTICLE 90 ( 2 ) APPLIES ONLY WHERE THE APPOINTING AUTHORITY HAS TAKEN A DECISION OR HAS REFRAINED FROM ADOPTING A MEASURE PRESCRIBED BY THE STAFF REGULATIONS AND WHERE SUCH CONDUCT CONSTITUTES AN ACT ADVERSELY AFFECTING THE OFFICIAL .

Parties

IN CASE 154/79

STEPHEN BILLER AND OTHERS , OFFICIALS OF THE EUROPEAN PARLIAMENT , REPRESENTED BY FRANCIS JACOBS , OF THE MIDDLE TEMPLE , BARRISTER , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE RESIDENCE OF G . W . CLARKE , 3 RUE DANTE ,

APPLICANTS ,

V

EUROPEAN PARLIAMENT , REPRESENTED BY FRANCESCO PASETTI-BOMBARDELLA , DIRECTOR GENERAL OF ADMINISTRATION , PERSONNEL AND FINANCE , ACTING AS AGENT , ASSISTED BY SIR DEREK WALKER-SMITH , QUEEN ' S COUNSEL , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MR PASETTI-BOMBARDELLA , EUROPEAN PARLIAMENT ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DEFENDANT ' S DECISION REJECTING THE APPLICANTS ' COMPLAINTS PURSUANT TO ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS CONCERNING THE APPLICATION TO THEM OF COUNCIL REGULATIONS ( EURATOM , ECSC , EEC ) NOS 3085/78 AND 3086/78 OF 21 DECEMBER 1978 ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 3 OCTOBER 1979 THE APPLICANTS , WHO ARE TWELVE OFFICIALS OF THE EUROPEAN PARLIAMENT AND ONE FORMER MEMBER OF ITS TEMPORARY STAFF , BROUGHT AN ACTION SEEKING THE ANNULMENT OF THE DEFENDANT ' S DECISION REJECTING THE APPLICANTS ' COMPLAINTS PURSUANT TO ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS CONCERNING THE APPLICATION TO THEM OF COUNCIL REGULATIONS NO 3085/78 AND NO 3086/78 OF 21 DECEMBER 1978 ( OFFICIAL JOURNAL 1978 , L 369 , PP . 6 AND 8 ).

2 IN THE VERSION IN FORCE UNTIL THE END OF 1978 , ARTICLES 63 AND 64 OF THE STAFF REGULATIONS OF OFFICIALS 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 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 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 ONLY TO APPLY 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 1/10 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 REGU LATIONS 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 62.5 FOR THE UNITED KINGDOM .

8 IN MARCH 1979 THE APPLICANTS ( EXCEPT FOR MR CURTIS ), WHO ARE OFFICIALS IN THE EMPLOYMENT OF THE PARLIAMENT , SUBMITTED TO THE PARLIAMENT COMPLAINTS PURSUANT TO ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS WHICH WERE DIRECTED AGAINST COUNCIL REGULATION NO 3086/78 . THE APPLICANTS MAINTAINED THAT THE ALTERATION WHICH THAT REGULATION MADE TO THE WEIGHTING BROUGHT ABOUT A REDUCTION IN THE AMOUNT OF THE PENSION WHICH THEY WOULD HAVE RECEIVED IF , ON RETIREMENT , THEY HAD CHOSEN TO RESIDE IN THE UNITED KINGDOM AND THEY REQUESTED THAT THE APPOINTING AUTHORITY DECIDE THAT THE AMOUNT OF THEIR PENSION WOULD BE CALCULATED IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 45 OF ANNEX VIII TO THE STAFF REGULATIONS AND EMPLOYING THE WEIGHTINGS APPLICABLE BEFORE THEIR AMENDMENT BY REGULATION NO 3086/78 . ON 30 JUNE 1979 MR CURTIS , A FORMER MEMBER OF THE TEMPORARY STAFF OF THE PARLIAMENT WHO IS NOW RETIRED AND RESIDENT IN THE UNITED KINGDOM , SUBMITTED A SIMILAR COMPLAINT TO THE PARLIAMENT .

9 IN JULY 1979 THE PARLIAMENT INFORMED THE APPLICANTS , APART FROM MR CURTIS , THAT THEIR COMPLAINTS WERE NOT ADMISSIBLE INASMUCH AS THEY WERE DIRECTED AGAINST A COUNCIL REGULATION THE APPLICATION OR NON-APPLICATION OF WHICH COULD NOT BE REGARDED AS FALLING WITHIN THE DISCRETIONARY POWERS OF THE PARLIAMENT .

10 IN THE ACTION WHICH THEY BROUGHT FOLLOWING THAT DECISION THE APPLICANTS CONTEND THAT REGULATIONS NO 3086/78 AND NO 3085/78 ARE UNLAWFUL ON A SERIES OF GROUNDS , NAMELY INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT , VIOLATION OF VESTED RIGHTS , INFRINGEMENT OF THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION , LACK OF COMPETENCE , INFRINGEMENT OF THE STAFF REGULATIONS AND MISUSE OF POWERS .

11 IN ADDITION TO DISPUTING THE SOUNDNESS OF THE SUBSTANCE OF THE ACTION , THE PARLIAMENT HAS PUT FORWARD IN ITS DEFENCE AN OBJECTION OF INADMISSIBILITY . IT IS APPROPRIATE FIRST TO CONSIDER THAT OBJECTION .

12 THE PARLIAMENT MAINTAINS THAT THE APPLICANTS ' COMPLAINTS DO NOT CONSTITUTE COMPLAINTS WITHIN THE MEANING OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS . ACCORDING TO THE PARLIAMENT , BEFORE A COMPLAINT MAY BE MADE PURSUANT TO THAT ARTICLE IT IS NECESSARY THAT THERE BE AN ACT OF THE APPOINTING AUTHORITY ADVERSELY AFFECTING THE OFFICIAL , THE ACT BEING EITHER A DECISION TAKEN BY THE AUTHORITY OR A FAILURE BY IT TO ADOPT A MEASURE PRESCRIBED BY THE STAFF REGULATIONS . IN THE PRESENT CASE THE PARLIAMENT HAS NOT TAKEN ANY DECISION RELATING TO THE APPLICANTS OR IN REGARD TO THEIR ENTITLEMENT TO PENSION . IT IS NOT OPEN TO THE PARLIAMENT TO TAKE A DECISION TO THE EFFECT SOUGHT BY THE APPLICANTS , THAT IS TO SAY , A DECISION NOT TO APPLY IN THEIR CASE THE REGULATIONS ADOPTED BY THE COUNCIL . THE PARLIAMENT HAS NOT FAILED TO ADOPT IN RELATION TO THE APPLICANTS ANY MEASURE PRESCRIBED BY THE STAFF REGULATIONS .

13 THE PARLIAMENT SUBMITS THAT ARTICLE 184 OF THE TREATY , ON WHICH THE APPLICANTS RELY , DOES NOT IN FACT PROVIDE AN INDEPENDENT FORM OF ACTION BUT IS CONFINED TO DEALING WITH ISSUES OF LEGALITY WHICH ARE RAISED INCIDENTALLY , THAT IS TO SAY THOSE ARISING IN PROCEEDINGS WHICH HAVE THE LEGALITY OF OTHER ACTS AS THEIR PRINCIPAL SUBJECT-MATTER AND WHICH HAVE BEEN PROPERLY INSTITUTED .

14 IT IS FURTHER MAINTAINED THAT THE CASE-LAW OF THE COURT DEMONSTRATES THAT AN OFFICIAL MAY NOT AVAIL HIMSELF OF OTHER REMEDIES THAN THOSE PROVIDED FOR BY ARTICLE 179 OF THE TREATY AND ARTICLES 91 AND 92 OF THE STAFF REGULATIONS IN ORDER TO BRING BEFORE THE COURT A QUESTION WHICH MUST BE SETTLED ACCORDING TO THE CONDITIONS APPLICABLE TO OFFICIALS AND THAT CONSEQUENTLY THE JUDICIAL REMEDY PROVIDED FOR IN ARTICLE 173 OF THE TREATY IS NOT OPEN TO HIM .

15 THE APPLICANTS SUBMIT THAT THE DECISION REQUESTED OF THE PARLIAMENT DOES NOT CONSTITUTE A GENERAL DECISION NOT TO APPLY THE REGULATIONS BUT A DECISION NOT TO APPLY THEM TO A LIMITED GROUP OF PERSONS . THE APPLICANTS MAINTAIN THAT , PURSUANT TO ARTICLE 179 OF THE TREATY , THEY ARE ENTITLED TO BRING BEFORE THE COURT THE QUESTION WHETHER OR NOT THE REGULATIONS , ON A PROPER CONSTRUCTION , ARE APPLICABLE TO THEM AND TO RELY ON ARTICLE 184 OF THE TREATY IN THOSE PROCEEDINGS .

16 THE ARGUMENT ADVANCED BY THE PARLIAMENT MUST BE UPHELD . THE REGULATIONS IN QUESTION ARE OF GENERAL APPLICATION AND THE APPLICANTS MAY NOT CLAIM THAT THEY CONSTITUTE DECISIONS WHICH ARE OF DIRECT AND INDIVIDUAL CONCERN TO THEM IN ORDER TO CALL THEIR VALIDITY IN QUESTION IN PROCEEDINGS UNDER ARTICLE 173 OF THE TREATY . THE MERE SUBMISSION OF A COMPLAINT PURSUANT TO ARTICLE 90 OF THE STAFF REGULATIONS OF OFFICIALS IS NOT SUFFICIENT TO CREATE A JUDICIAL REMEDY AGAINST A MEASURE WHICH IS IN THE NATURE OF A REGULATION . MOREOVER , THE PROCEDURE PROVIDED FOR IN ARTICLE 90 ( 2 ) APPLIES ONLY WHERE THE APPOINTING AUTHORITY HAS TAKEN A DECISION OR HAS REFRAINED FROM ADOPTING A MEASURE PRESCRIBED BY THE STAFF REGULATIONS AND WHERE SUCH CONDUCT BY THE APPOINTING AUTHORITY CONSTITUTES AN ACT ADVERSELY AFFECTING THE OFFICIAL . THAT HAS NOT OCCURRED IN THE PRESENT CASE . CONSEQUENTLY IT WAS NOT POSSIBLE FOR THE APPLICANTS ' COMPLAINTS TO BE BASED ON ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS . THE ACTION IS THEREFORE INADMISSIBLE AND MUST BE DISMISSED WITHOUT ITS BEING NECESSARY TO CONSIDER THE SUBSTANCE .

Decision on costs

17 UNDER ARTICLE 70 OF THE RULES OF PROCEDURE INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN STAFF CASES .

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 .