OPINION OF MR ADVOCATE GENERAL

VERLOREN VAN THEMAAT

DELIVERED ON 27 OCTOBER 1983 ( 1 )

Mr President,

Members of the Court,

1. Introduction

As the Court knows, in Belgium and Luxembourg there is a two-tier foreign exchange market. On the one hand, there is a free exchange market on which changes in supply and demand without restrictions may lead to fluctuations in rates. On the other hand, there is a regulated market on which intervention on the part of the National Bank of Belgium maintains the fluctuation in rates within certain limits. As a result of that intervention the rate of Belgian and Luxembourg francs on the regulated market is as a rule higher than that on the free market. In order to ensure the proper functioning of that two-tier exchange market, restrictions are imposed inter alia on the purchase and sale of foreign currencies against regulated francs.

In the course of time those restrictions have been relaxed by the Belgian and Luxembourg authorities in various ways as regards officials of the European Communities. During the 1960 special convertible accounts were made available to them, through which currency could be bought on the regulated market. Originally, the only restriction imposed was that such accounts could be opened only by officials of the Community who were not Belgian or Luxembourg nationals. However, it later became clear that the opportunity thus offered resulted very frequently in the purchase of foreign currency which was immediately resold at a profit on the free market (“arbitrage”, leading to “exchange rate premiums”). As the Belgian and Luxembourg authorities regarded such transactions as an improper use of special convertible accounts, in December 1981 they restricted the possibility of salary payments into those accounts or into foreign accounts to 25% of the salary. In June 1982 that restriction was lifted, at the, request of the institutions, inasmuch as the entire amount of the salary could be paid into a special foreign convertible account on condition that the institutions required the officials concerned to sign a declaration by which they undertook to refrain inter alia from arbitrage transactions as described above. However, it was still impossible for salaries of officials of Belgian or Luxembourg nationality to be paid into such special convertible accounts.

The application of Mr Depoortere, who is of Belgian nationality, relates to that exclusion. On 17 November 1981, he had submitted to the Commission under Article 90 (2) of the Staff Regulations of Officials a complaint in that regard, which on 18 May 1982 was rejected by the Commission as unfounded. He then submitted this application to the Court on 12 August 1982, that is, within the period prescribed in Article 91 (3). As the said exclusion is not the result of an independent decision of the Commission but is the direct result of the decisions of the Belgian and Luxembourg authorities which I have briefly summarized (but which are set out in greater detail in the Report for the Hearing), the first question which arises in connection with this application is obviously the question of its admissibility.

2. The application

In the application, the applicant claims that the Court should:

1. Declare the application admissible and well founded;

2. Consequently: 2.1. Annul the reply of the Commission of 18 May 1982 to the applicant's complaint of 17 November 1981; 2.2. Abolish the discrimination regarding remuneration and the machinery relating thereto, in particular by ordering the Commission to pay the remuneration into similar accounts affording similar opportunities to all officials as regards their use; 2.3. Order that the infringement of Article 12 of the Protocol on the Privileges and Immunities of the Communities should cease; 2.4. Award the applicant payment of income of which he has been deprived since February 1981 amounting to BFR 125500, which amount may be increased in the course of the proceedings; 2.5. Order the defendant to pay the costs.

The contentions and main arguments adduced in the application in support of the claim relate to the breach or misapplication, or both, of:

(a) the Staff Regulations of Officials of the European Communities, in particular Article 63 and Article 17 (1) of Annex VII to those regulations;

(b) the general principles of the equality of officials of the European Communities in Belgium, inasmuch as there is discrimination between officials of the European Communities as regards payment and such discrimination is based on nationality alone;

(c) Article 48 (2) of the EEC Treaty and Article 7 (1) of Regulation No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community, inasmuch as the Commission has failed to oppose discrimination as regards the treatment of its own staff;

(d) the general principles governing the application of Articles 1 and 2 of the First Directive for the implementation of Article 67 of the EEC Treaty of 11 May 1960 because, contrary to those provisions, the Commission allowed “appreciable and lasting” differences to persist between exchange rates on the official foreign exchange market and those on the free foreign exchange market, as a result of which the abovementioned discrimination assumed a specific and significant financial form;

(e) the general principles of the equality of officials of the European Communities in Belgium inasmuch as notwithstanding its obligation under Article 12 (c) of the Protocol of 8 April 1965 on the Privileges and Immunities of the Communities and Article 1 of Regulation No 549/69 of the Council of 25 March 1969 on officials to whom Articles 12, 13 and 14 of the Protocol apply, the Commission failed to request for the applicant with all convenient speed and in conformity with its duty as guardian of the Treaties, the customary facilities which make up the convertibility scheme organized by the Belgo-Luxembourg Exchange Control Institute, and which became established with the passing of time and have since also been sanctioned by the Commission itself and by the Belgian Government;

(f) the general consequences flowing from the disposal of “own resources”, which in the case of Belgium are automatically foreign balances, allotted to the Communities by the Decision of 21 April 1970 on the replacement of financial contributions from Member States by the Communities' own resources, and from the principle that revenue is not to be assigned to a specific purpose (Article 3 of the Financial Regulation of 21 December 1977), which precludes Member States' foreign exchange contributions from being assigned to specific ends and a fortiori to methods of remuneration which are to be dealt with differently according to nationality.

From the text of the applicant's contentions and arguments it is in my opinion incontestable that he criticizes the Commission in particular for not having taken effective action against the Belgian and Luxembourg authorities in relation to the alleged discrimination against officials of Belgian (or Luxembourg) nationality. In that connection I refer especially to points (c), (d) and (e), but also in point (b) the Commission is not accused of discriminatory treatment but merely of the existence of discrimination, responsibility for that discrimination remaining unspecified. The claim for damages, too, logically presupposes that officials of Belgian or Luxembourg nationality ought to enjoy the same facilities as are granted to officials of other nationalities. However, if the facilities for officials of other nationalities were to be regarded as unlawful, it would be not so much a case of unlawful damage to the applicant (and other Belgian or Luxembourg officials of the Communities) as an advantage enjoyed be the other which is regarded as unlawful.

3. The question of admissibility

Article 91 (2) of the Staff Regulations states that an appeal lies only if “the appointing authority has previously had a complaint submitted to it pursuant to Article 90 (2)”. Article 90 (2) provides, so far as is relevant here, that: “Any person to whom these Staff Regulations apply may submit to the appointing authority a complaint against an act adversely affecting him either where the said authority has taken a decision or where it has failed to adopt a measure prescribed by the Staff Regulations.”

The admissibility of the application therefore depends upon the definition of the decision adopted or of the measure prescribed by the Staff Regulations but which the Commission has failed to adopt, with the result that the applicant is adversely affected.

However, no such definition is to be found in the application, in the prior complaint or in the rejoinder. As I have already stated, the most that may be deduced from those documents is that the applicant blames the Commission for not having taken effective action against the abovementioned Belgian and Luxembourg measures. However, such action cannot be inferred from any provision of the Staff Regulations but would have to be based on Article 169 of the EEC Treaty. The applicant might perhaps have invited the Commission to act on the basis of Article 175 of the EEC Treaty. However, there is nothing in the application or in the preceding complaint to indicate that the application may be interpreted in that way. On the contrary, both documents indicate that the admissibility of the claim should be determined exclusively on the basis of Articles 90 and 91 of the Staff Regulations. Apart from that, the Commission correctly points out in paragraph 30 of its defence that in the Court's judgment in the first Liitticke case (Case 48/65, [1966] ECR 19) the Court held that a private individual could not require the Commission to apply Article 169. In that connection, an official of the Community must in my opinion be equated with a private individual.

It will be recalled that the Court attempted during the oral procedure to clarify the object of the application in the sense of the articles cited and at the same time the admissibility of that application.

During the oral procedure, the Commission stated that it did indeed entertain doubts as to the admissibility of the application but had finally conceived the complaint as being directed against the failure to assist the applicant as required by Article 24 of the Staff Regulations. It added that it did not wish to raise an objection of inadmissibility because it was in its view of fundamental importance that there should be a substantive judgment on the problems raised by Mr Depoortere. It stated that considerations regarding the efficient use of legal procedure also played a part in its decision in the sense that, if this application were to be declared inadmissible, fresh proceedings might be commenced by another Belgian or Luxembourg official in which greater attention would be paid to the rules of the Staff Regulations. By giving a judgment on the substance of the case, the Court might make fresh applications superfluous.

In my view, there are various reasons for which this basis for admissibility suggested by the Commission cannot be accepted by the Court and for which it is advisable for the Court of its own motion to declare the application inadmissible.

First, it is clear from the application and also from the applicant's rejoinder that he is not criticizing the Commission for not having assisted him in an action on his part against the Belgian State. On the contrary, he complains that the Commission, “as guardian of the Treaties, did not itself ensure the equality of its servants, Belgian or non-Belgian officials”, according to the summary of the object of the application given by the applicant's representative at the hearing. However, that still does not adequately define the decision or the failure to adopt a measure, within the meaning of Article 90 (2) of the Staff Regulations, against which the application is directed.

Secondly, the object of the application also cannot be deduced with sufficient clarity from the application or the rejoinder, except perhaps for the claim for damages, which I nevertheless regard as inadmissible on similar grounds to be dealt with later. As I have already stated, the text of the application stresses that the applicant complains in particular that the Commission did not take effective action against the Belgian and Luxembourg authorities in relation to the alleged descrimination. However, as I have also already remarked, such a complaint cannot be regarded as admissible under Articles 90 and 91 of the Staff Regulations as the Staff Regulations impose no obligation to take such action, if the applicant intended to accuse the Commission of failing to initiate proceedings against Belgium on the basis of Article 169 of the EEC Treaty, he ought to have made that clear, as I have stated, in the application. If the applicant intended to accuse the Commission exclusively of not having adopted the measures which it might have adopted independently — if necessary together with the other institutions — he ought to have relied not upon Article 63 of the Staff Regulations and on Article 17 (1) of Annex VII thereto, but upon Article 17 (2) of that annex, which he did not do. The applicant has also not made clear what other decisions the Commission might in his view have taken independently with regard to him but failed to take. In that connection, the reference to Article 63 of the Staff Regulations and Article 17 (1) of Annex VII thereto has no adequate foundation, since the applicant has not disputed that his salary was paid in Belgian francs, and those articles contain no provision concerning the way in which officials may dispose of their salaries for the purchase of foreign currencies. Those facilities are by their nature dependent upon the national currency legislation applicable.

Thirdly, since the decision within the meaning of Article 90 (2) against which the application is directed is not defined, it is also in practice scarcely possible to examine the substance of the main complaints and contentions in the application. The nature of the criteria which must be applied in making an assessment will in fact vary considerably according to the nature of the decision which the Commission has failed to take.

Fourthly, I also regard the applicant's claim for “payment of income of which he has been deprived” as inadmissible. Since that claim must according to the explanation in his rejoinder be regarded as a claim for damages under the second paragraph of Article 215 of the EEC Treaty it will also have to be regarded as inadmissible. By way of explanation of the unlawful act or failure to act of which he accuses the Commission, the applicant refers in his rejoinder chiefly to page 18 of his complaint. The explanations set out on that page amount to a a complaint that the Commission did not initiate proceedings under Article 169 of the EEC Treaty against the Belgian State on the ground of the alleged breaches of Community law. As I have already stated, however, it follows from the case-law of the Court that an official cannot in law require the application of Article 169. I have also failed to find in the rejoinder or in the explanations given at the hearing a clear definition of other unlawful acts of which the applicant accuses the Commission. In that regard I refer to my previous arguments.

Finally, in contrast to the Commission, I by no means regard it as being in the interests of proper and efficient administration of justice to leave aside the question of admissibility and examine the substance of this claim. Indeed, a defective formulation in the application of the question at issue can scarcely result in a satisfactory examination of the substance. The consequence feared by the Commission of another application, this time also based presumably on the infringement of Article 24 of the Staff Regulations, has, moreover, subsequently arisen to some extent in Case 28/83, Forcheri v Commission, so that in addition that consequence can no longer be avoided by a decision on the substance. As the Court knows, the Belgian Government has also intervened in that new case, which makes possible a satisfactoiy legal outcome in relation to the assessment of the Belgian and Luxembourg measures which also form the main background to the application to which this opinion relates.

4. Final remarks and conclusions

In my argument set out above I do not in any way wish to ignore the understandable dissatisfaction which is prevalent in particular, although not exclusively, among Belgian and Luxembourg officials of the Community concerning the restrictions on their freedom to dispose of their salaries resulting from the Belgian and Luxembourg rules on exchange transactions. Naturally, it remains to be seen whether the solution to that problem which, as appears from the information provided during the oral procedure, the institutions have very recently found, will be regarded as fully satisfactory. If that is not the case, I too should not wish to rule out the possibility that the Court might in due time be called upon to arrive in some way at a substantive decision as regards the consequences of the Belgian and Luxembourg rules for the right of Belgian and Luxembourg officials freely to dispose of their salaries. However, that will then have to be decided on the basis of a clear formulation of the problem, which, as I have already stated, is lacking in this case. In that connection, these proceedings may certainly be regarded as a useful contribution to the clarification of the problem at issue, in so far as they have already offered the Commission an opportunity of setting out clearly its legal views thereon.

Finally, on the basis of my analysis of the case, I recommend that the Court should:

1. Of its own motion declare the action inadmissible;

2. Order the parties to bear their own costs.

( 1 ) Translated from the Dutch.