Judgment of the Court (First Chamber) of 16 July 1981. - Gordon Craigie Bowden and others v Commission of the European Communities. - Officials - Rates of exchange for the calculation of pensions. - Case 153/79.



European Court reports 1981 Page 02111



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 153/79

GORDON CRAIGIE BOWDEN AND OTHERS , OFFICIALS OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , 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

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , THOMAS F . CUSACK , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

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 2 OCTOBER 1979 THE APPLICANTS , 12 OFFICIALS OF THE COMMISSION , BROUGHT AN ACTION AGAINST THE COMMISSION PURSUANT TO ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS CLAIMING THAT THE COURT SHOULD :

( 1 ) DECLARE COUNCIL REGULATIONS NOS 3085/78 AND 3086/78 INAPPLICABLE AS REGARDS THEM ;

( 2)ANNUL THE COMMISSION DECISION REJECTING THE APPLICANTS ' COMPLAINTS CONCERNING THE APPLICATION TO THEM OF THOSE REGULATIONS .

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 / 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 REGULATIONS 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 BY VARIOUS COMPLAINTS UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS THE APPLICANTS ( ALL SAVE ONE ) ASKED THE COMMISSION TO TAKE A DECISION IN RESPECT OF THEM ACKNOWLEDGING THAT THEY WOULD BE ENTITLED , UPON THE SEVERANCE OF THE SERVICE RELATIONSHIP AND SUBJECT TO THE FULFILMENT OF ALL OTHER CONDITIONS OF THE STAFF REGULATIONS , TO A PENSION OF THE SAME AMOUNT AS THEY WOULD HAVE RECEIVED IF REGULATION NO 3086/78 HAD NOT BEEN ADOPTED .

9 BY A CIRCULAR LETTER OF 12 JULY 1979 THE COMMISSION REJECTED THESE COMPLAINTS .

10 THE APPLICANTS COMMENCED THIS ACTION FOLLOWING THE REJECTION OF THEIR COMPLAINTS . THEY CONTEST REGULATIONS NOS 3085/78 AND 3086/78 . THEY CLAIM THAT REGULATION NO 3085/78 WAS ADOPTED BY THE COUNCIL WITHOUT DUE CONSULTATION WITH THE EUROPEAN PARLIAMENT AND THE COURT OF JUSTICE . IN ADDITION THE STATEMENT OF THE REASONS ON WHICH THE CONTESTED REGULATIONS ARE BASED IS INADEQUATE . THE REGULATIONS WERE ADOPTED IN BREACH OF THE VESTED RIGHTS OF THE APPLICANTS TO A PENSION CALCULATED ON THE BASIS EXISTING BEFORE THE ADOPTION OF THE SAID REGULATIONS .

11 BY A DOCUMENT LODGED WITH THE COURT REGISTRY ON 26 OCTOBER 1979 THE COMMISSION , IN PURSUANCE OF ARTICLE 91 OF THE RULES OF PROCEDURE OF THE COURT , PUT FORWARD AN OBJECTION OF INADMISSIBILITY . IN ITS VIEW THE APPLICANTS ARE NOT ENTITLED TO CONTEST DIRECTLY A REGULATION OF THE COUNCIL EITHER BY THE PROCEDURE OF ARTICLE 179 OF THE TREATY AND ARTICLES 90 AND 91 OF THE STAFF REGULATIONS OF OFFICIALS OR BY THAT OF ARTICLE 173 OF THE TREATY . SINCE THE REGULATIONS IN QUESTION ARE OF GENERAL APPLICATION THE APPLICANTS CANNOT CLAIM THAT THEY ARE OF DIRECT AND INDIVIDUAL CONCERN TO THEM . CONSEQUENTLY THEY CANNOT CONTEST THEM UNDER ARTICLE 173 OF THE TREATY . THE MERE SUBMISSION OF A COMPLAINT PURSUANT TO ARTICLE 90 OF THE STAFF REGULATIONS AND ITS REJECTION ARE NOT SUFFICIENT TO CREATE A JUDICIAL REMEDY AGAINST A MEASURE WHICH IS IN THE NATURE OF A REGULATION . MOREOVER THE APPLICANTS , IN THEIR CAPACITY AS OFFICIALS IN SERVICE , HAVE NO INTEREST CAPABLE OF JUSTIFYING THEIR ACTION . THE CIRCULAR LETTER OF 12 JULY 1979 DOES NOT CONSTITUTE A DECISION HAVING A DIRECT INCIDENCE ON A GIVEN LEGAL SITUATION AND THUS AN ACT ADVERSELY AFFECTING THEM WITHIN THE MEANING OF ARTICLE 90 OF THE STAFF REGULATIONS .

12 THE APPLICANTS , IN THEIR OBSERVATIONS ON THE OBJECTION , REPLY THAT THEY ARE NOT SEEKING TO CONTEST DIRECTLY A COUNCIL REGULATION . THEIR ACTION IS DIRECTED AGAINST A DECISION OF THE COMMISSION . IT IS LEGITIMATE FOR THEM TO SEEK A DECLARATION THAT THE REGULATIONS ARE UNLAWFUL IN SO FAR AS THEY ILLEGALLY AFFECT THEIR PENSION RIGHTS . THE APPLICANTS ARE ENTITLED TO CONTEST A DECISION REJECTING THEIR COMPLAINT AS TO THE EFFECT UPON THEM OF A REGULATION . THE REGULATIONS IN QUESTION ARE DISCRIMINATORY AS AGAINST THE APPLICANTS AND AFFECT THEIR RIGHTS AND THEY ARE OF DIRECT AND INDIVIDUAL CONCERN TO THEM . AS REGARDS THEIR INTEREST IN TAKING ACTION , THE APPLICANTS ACKNOWLEDGE THAT AT THE TIME WHEN THE APPLICATION WAS LODGED THEY HAD NO RIGHT TO A PENSION BUT THEY MAINTAIN THAT THE EFFECT OF THE REGULATIONS IN QUESTION IS TO AFFECT AT THE PRESENT TIME THE CALCULATION OF THEIR FUTURE RIGHTS WHICH , IN THEIR VIEW , JUSTIFIES THEIR INTEREST IN TAKING ACTION .

13 THE COMMISSION ' S OBJECTION 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 .

Decision on costs

14 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 .