Judgment of the Court (First Chamber) of 10 December 1980. - Giuseppe Grasselli v Commission of the European Communities. - Officials: retirement. - Case 23/80.



European Court reports 1980 Page 03709

Greek special edition Page 00451



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - APPLICATIONS TO THE COURT - ACT ADVERSELY AFFECTING AN OFFICIAL - STATEMENT OF PECUNIARY RIGHTS CONTAINED IN A DECISION PLACING AN OFFICIAL ON EARLY RETIREMENT

( STAFF REGULATIONS , ARTS 90 AND 91 )

2 . OFFICIALS - APPLICATIONS TO THE COURT - ACT WHICH IS MERELY CONFIRMATORY - TIME-LIMIT FOR APPLICATION NOT RENEWED

( STAFF REGULATIONS , ARTS 90 AND 91 )

3 . OFFICIALS - APPLICATIONS TO THE COURT - TIME-LIMITS - APPLICABILITY TO REQUESTS FOR RECALCULATION OF PENSION RIGHTS - CONDITIONS

( STAFF REGULATIONS , ARTS 90 AND 91 ; ANNEX VIII , ART . 41 , FIRST PARAGRAPH )

Summary

1 . A STATEMENT OF THE PECUNIARY RIGHTS OF AN OFFICIAL WHICH FORMS AN INTEGRAL PART OF A DECISION PLACING HIM ON EARLY RETIREMENT MAY BE CONSIDERED AS AN ACT ADVERSELY AFFECTING HIM .

2 . A MEASURE WHICH CONTAINS NO NEW FACTOR AS COMPARED WITH A PREVIOUS MEASURE CONSTITUTES A PURELY CONFIRMATORY MEASURE AND CANNOT THEREFORE HAVE THE EFFECT OF SETTING A FRESH TIME-LIMIT IN FAVOUR OF THE PERSON TO WHOM THE EARLIER MEASURE WAS ADDRESSED .

3 . ANY OFFICIAL WHO SEEKS TO HAVE HIS PENSION RECALCULATED WHERE THERE HAS BEEN ERROR OR OMISSION OF ANY KIND MAY , IT IS TRUE , AVAIL HIMSELF OF THE PROVISIONS OF THE FIRST PARAGRAPH OF ARTICLE 41 OF ANNEX VIII TO THE STAFF REGULATIONS BY REQUESTING SUCH A RECALCULATION BY MEANS OF A COMPLAINT AND , IF NECESSARY , BY WAY OF LEGAL PROCEEDINGS , BUT FOR HIS COMPLAINT AND HIS ACTION TO BE ADMITTED UNDER ARTICLES 90 AND 91 OF THE STAFF REGULATIONS HE MUST EXERCISE HIS RIGHT OF ACTION WITHIN THE PERIODS LAID DOWN BY THOSE ARTICLES , STARTING FROM THE TIME OF THE OCCURRENCE OF A NEW FACT SUCH AS TO JUSTIFY A RECALCULATION OF HIS PENSION OR FROM THE TIME WHEN HE ACTUALLY BECAME AWARE OF THE EXISTENCE OF SUCH A FACT .

Parties

IN CASE 23/80

GIUSEPPE GRASSELLI , A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT 25 VIA BEMBO , CREMONA , REPRESENTED BY CESARE RIBOLZI , OF THE MILAN BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF VICTOR BIEL , 18 A RUE DES GLACIS ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ORESTE MONTALTO , 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

OBJECTION , AT THE PRESENT STAGE OF THE PROCEEDINGS , THAT THE APPLICATION FOR THE ANNULMENT OF THE IMPLIED DECISION REJECTING THE APPLICANT ' S COMPLAINT OF 6 JUNE 1979 CONCERNING THE FAILURE TO PAY FAMILY AND EDUCATION ALLOWANCES FOR DEPENDENT CHILDREN AND THE REDUCTION OF THE PENSION ACQUIRED ON TERMINATION OF SERVICE UNDER THE PROVISIONS OF REGULATION NO 259/68 OF THE COUNCIL IS INADMISSIBLE ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 15 JANUARY 1980 GIUSEPPE GRASSELLI , A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , BROUGHT AN ACTION SEEKING THE ANNULMENT OF THE IMPLIED DECISION REJECTING HIS COMPLAINT OF 6 JUNE 1979 IN WHICH HE REQUESTED THAT HE BE PAID FAMILY AND EDUCATIONAL ALLOWANCES FOR DEPENDENT CHILDREN TOGETHER WITH PAYMENT OF A FULL EARLY RETIREMENT PENSION UNDER THE MEASURES FOR FINAL TERMINATION OF SERVICE WHICH WERE APPLIED TO HIM BY VIRTUE OF REGULATION NO 259/68 OF THE COUNCIL .

2 MR GRASSELLI ENTERED THE SERVICE OF THE HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY ON 5 OCTOBER 1961 AND WAS PLACED AS FROM FEBRUARY 1963 IN THE DIRECTORATE FOR STEEL WHICH BECAME , FOLLOWING THE ESTABLISHMENT OF A SINGLE COMMISSION FOR THE THREE COMMUNITIES , THE DIRECTORATE FOR STEEL IN DIRECTORATE-GENERAL III OF THE COMMISSION . ON 8 APRIL 1968 HE SUBMITTED AN APPLICATION FOR TERMINATION OF HIS SERVICE IN APPLICATION OF REGULATION NO 259/68 OF THE COUNCIL OF 29 FEBRUARY 1968 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( I ), P . 30 ), ADAPTING THE PROVISIONS IN THE STAFF REGULATIONS OF OFFICIALS AND THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES TO THE NEW POSITION BROUGHT ABOUT BY THE MERGER OF THE EXECUTIVES AND LAYING DOWN FOR THAT PURPOSE ' ' SPECIAL MEASURES TEMPORARILY APPLICABLE TO OFFICIALS OF THE COMMISSION ' ' .

3 ARTICLE 4 ( 1 ) OF THAT REGULATION AUTHORIZED THE COMMISSION UNTIL 30 JUNE 1968 TO ADOPT MEASURES TERMINATING THE SERVICE OF OFFICIALS WITHIN THE MEANING OF ARTICLE 47 OF THE STAFF REGULATIONS . PARAGRAPH ( 3 ) OF THE SAME ARTICLE STATED THAT , IF THE INTERESTS OF THE SERVICE PERMITTED , THE COMMISSION WAS TO TAKE INTO ACCOUNT REQUESTS FOR TERMINATION OF SERVICE SUBMITTED BY OFFICIALS .

4 AN OFFICIAL IN RESPECT OF WHOM SUCH A MEASURE WAS ADOPTED WAS ENTITLED INITIALLY TO MONTHLY ALLOWANCES AND SUBSEQUENTLY TO A FULL EARLY RETIREMENT PENSION . ANY OFFICIAL WHO HAD NOT COMPLETED ELEVEN YEARS OF SERVICE COULD , HOWEVER , BY VIRTUE OF ARTICLE 6 OF THE REGULATION , RENOUNCE HIS PENSION RIGHTS AND REQUEST THE AWARD OF A SEVERANCE GRANT PAYABLE UNDER THE CONDITIONS SET OUT IN ARTICLE 12 OF ANNEX VIII TO THE STAFF REGULATIONS .

5 SPECIAL PROVISIONS WERE ALSO LAID DOWN IN RESPECT OF FORMER OFFICIALS OF THE EUROPEAN COAL AND STEEL COMMUNITY WHO OPTED FOR APPLICATION OF THE EARLY RETIREMENT SCHEME . BY VIRTUE OF ARTICLE 7 OF THE REGULATION , SUCH OFFICIALS WERE THUS ABLE TO ASK FOR THE PECUNIARY RIGHTS ATTACHING TO THEIR PENSION TO BE DETERMINED NOT UNDER ARTICLE 5 OF REGULATION NO 259/68 BUT IN ACCORDANCE WITH THE PROVISIONS OF THE ECSC STAFF REGULATIONS WHICH , IN THE CASE OF OFFICIALS WHO WERE ESTABLISHED PRIOR TO 1 JANUARY 1962 AND WHO WERE IN GRADES OTHER THAN A 1 AND A 2 , WERE ESSENTIALLY THOSE OF ARTICLE 34 .

6 THE PENSION SCHEME LAID DOWN BY THOSE PROVISIONS DIFFERED FROM THAT ESTABLISHED BY ARTICLE 5 OF REGULATION NO 259/68 BOTH AS REGARDS THE INITIAL ALLOWANCE , THE CALCULATION OF THE LENGTH OF SERVICE TO BE TAKEN INTO ACCOUNT FOR PENSION PURPOSES AND THE CONDITIONS OF PAYMENT OF THE LATTER , AND AS REGARDS THE PECUNIARY RIGHTS ATTACHING TO THE PENSION . AS TO THE LATTER RIGHTS , THE PROVISIONS OF THE ECSC REGULATIONS , IN CONTRAST TO ARTICLE 5 OF REGULATION NO 259/68 , INCLUDED PAYMENT OF A REDUCED EARLY RETIREMENT PENSION AND DID NOT MAKE PROVISION FOR PAYMENT OF FAMILY AND EDUCATIONAL ALLOWANCES FOR DEPENDENT CHILDREN .

7 THE APPLICANT ASKED , ON 8 APRIL 1968 , TO HAVE HIS SERVICE TERMINATED UNDER REGULATION NO 259/68 AND THE COMMISSION INFORMED HIM BY A LETTER OF 21 JUNE 1968 THAT IT ACCEPTED HIS REQUEST AND , IN VIEW OF THE FACT THAT HE HAD NOT COMPLETED BY THAT DATE THE ABOVE-MENTIONED ELEVEN YEARS OF SERVICE , ASKED HIM TO CHOOSE BETWEEN THE AWARD OF THE PENSION AND PAYMENT OF A SEVERANCE GRANT . SHOULD HE OPT FOR THE AWARD OF PENSION , IT ASKED HIM TO INFORM THE ADMINISTRATION WHETHER HE PREFERRED HIS RIGHTS TO BE CALCULATED UNDER ARTICLE 5 OF REGULATION NO 259/68 OR UNDER THE PROVISIONS OF ARTICLE 34 OF THE FORMER ECSC REGULATIONS . TO THAT END , THE DIRECTOR-GENERAL FOR PERSONNEL AND ADMINISTRATION SENT HIM ON 16 SEPTEMBER 1968 AN EXPLANATORY TABLE SHOWING THE BENEFITS TO WHICH HE WOULD BE ENTITLED UNDER EACH OF THOSE TWO RETIREMENT SCHEMES AND DREW HIS ATTENTION , IN PARTICULAR , TO THE FACT THAT THE SCHEME OF ARTICLE 34 OF THE ECSC REGULATIONS INVOLVED PAYMENT OF A REDUCED EARLY RETIREMENT PENSION AND DID NOT MAKE PROVISION FOR FAMILY AND EDUCATIONAL ALLOWANCES FOR DEPENDENT CHILDREN .

8 AFTER SEEING THE EXPLANATORY TABLE THE APPLICANT SUBMITTED A COMPLAINT UNDER ARTICLE 90 OF THE STAFF REGULATIONS CLAIMING THAT APPLICATION OF ARTICLE 34 OF THE ECSC STAFF REGULATIONS COULD NOT PREVENT THE AWARD OF A FULL EARLY RETIREMENT PENSION AND PAYMENT OF THE ABOVE-MENTIONED ALLOWANCES , AND STATING THAT HE RESERVED HIS POSITION CONCERNING THE CHOICE BETWEEN THE TWO SCHEMES IN QUESTION PENDING A DECISION FROM THE ADMINISTRATION ON THE MATTER . IN VIEW OF THE EXPLANATIONS SUPPLIED BY THE COMMISSION THE APPLICANT BROUGHT AN ACTION BEFORE THE COURT ON 13 DECEMBER 1968 . IN ITS JUDGMENT OF 10 DECEMBER 1969 IN CASE 32/68 THE COURT DISMISSED THE APPLICATION AS INADMISSIBLE ON THE GROUND THAT THE ABOVE-MENTIONED EXPLANATIONS OF THE COMMISSION DID NOT AMOUNT TO AN ACT ADVERSELY AFFECTING HIM (( 1969 ) ECR AT P . 511 ).

9 ON BEING ASKED SUBSEQUENTLY BY THE COMMISSION TO MAKE HIS CHOICE AS TO THE SCHEME TO BE APPLIED IN RESPECT OF HIS RETIREMENT THE APPLICANT DECLARED BY A LETTER OF 27 FEBRUARY 1970 THAT HE OPTED FOR THE SCHEME UNDER ARTICLE 34 OF THE FORMER ECSC REGULATIONS , PRESSING AT THE SAME TIME FOR THE PROVISIONS IN ARTICLE 5 OF REGULATION NO 259/68 TO BE APPLIED IN HIS CASE WITH REGARD TO THE GRANT OF A WHOLE PENSION AND FAMILY AND EDUCATIONAL ALLOWANCES FOR DEPENDENT CHILDREN .

10 ON 11 APRIL 1973 THE DIRECTOR-GENERAL FOR PERSONNEL AND ADMINISTRATION ADOPTED A FORMAL DECISION GRANTING THE APPLICANT AN EARLY RETIREMENT PENSION UNDER THE ABOVE-MENTIONED ARTICLE 34 , AS FROM 1 OCOTBER 1972 . IN A LETTER OF THE SAME DATE THE HEAD OF THE RELEVANT DIVISION OF THAT DIRECTORATE-GENERAL CONFIRMED TO THE APPLICANT THAT THE PROVISIONS OF ARTICLE 5 OF REGULATION NO 259/68 WOULD NOT BE APPLIED TO HIM , AND SENT HIM A STATEMENT OF HIS PENSION RIGHTS SHOWING THAT HE WAS TO BE PAID A REDUCED PENSION WITHOUT FAMILY AND EDUCATION ALLOWANCES FOR DEPENDENT CHILDREN .

11 ON 6 JUNE 1979 THE APPLICANT SUBMITTED A COMPLAINT UNDER ARTICLE 90 OF THE STAFF REGULATIONS SEEKING TO OBTAIN THOSE ALLOWANCES TOGETHER WITH A FULL EARLY RETIREMENT PENSION . AS THE COMMISSION DID NOT REPLY TO THE COMPLAINT WITHIN THE PERIOD LAID DOWN BY THE REGULATIONS THE APPLICANT BROUGHT THE PRESENT PROCEEDINGS ON 15 JANUARY 1980 .

12 BY A DOCUMENT DATED 14 FEBRUARY 1980 , LODGED ON THE SAME DAY , THE COMMISSION MADE AN APPLICATION UNDER ARTICLE 91 OF THE RULES OF PROCEDURE FOR THE APPLICATION TO BE DISMISSED AS INADMISSIBLE BECAUSE IT WAS COMMENCED OUT OF TIME AND WAS EQUALLY INADMISSIBLE HAVING REGARD TO ARTICLE 41 OF ANNEX VIII TO THE STAFF REGULATIONS . IN HIS WRITTEN OBSERVATIONS , LODGED ON 13 MARCH 1980 , THE APPLICANT OPPOSES THE OBJECTION .

ADMISSIBILITY OF THE APPLICATION

( A ) OBSERVATION OF THE TIME-LIMIT FOR LODGING THE APPLICATION

13 IN SUPPORT OF ITS OBJECTION OF INADMISSIBILITY THE COMMISSION FIRST CLAIMS THAT THE MEASURE ADVERSELY AFFECTING THE OFFICIAL , ON THE LAWFULNESS OF WHICH THE COURT IS ASKED TO PRONOUNCE IN ACCORDANCE WITH ARTICLE 91 ( 1 ) OF THE STAFF REGULATIONS , IS IN THIS CASE THE DECISION OF THE DIRECTOR-GENERAL FOR PERSONNEL AND ADMINISTRATION OF 11 APRIL 1973 PLACING THE APPLICANT ON EARLY RETIREMENT UNDER THE CONDITIONS EXPRESSLY DEFINED BY THE APPROPRIATE DEPARTMENT OF THE COMMISSION , CONTAINED IN THE STATEMENT WHICH WAS SENT TO MR GRASSELLI ON THE SAME DAY .

14 THE APPLICANT , HOWEVER , MAINTAINS THAT NEITHER THE DECISION OF 11 APRIL 1973 NOR THE STATEMENT ATTACHED TO THE LETTER OF THE SAME DATE NOR , LASTLY , THE MONTHLY NOTICES OF PAYMENT SENT TO HIM SUBSEQUENTLY , CAN BE CONSIDERED AS THE ACT WHICH ADVERSELY AFFECTED HIM . HE EXPLAINS ON THIS POINT THAT THE ABOVE-MENTIONED DECISION WAS RESTRICTED EXCLUSIVELY TO PROVIDING THAT HE BE PLACED ON EARLY RETIREMENT WITHOUT ACTUALLY DEFINING HIS PECUNIARY RIGHTS , AND THAT THE STATEMENT OF THOSE RIGHTS ATTACHED TO THE LETTER OF 11 APRIL 1973 AMOUNTS , IN THE SAME WAY AS EACH OF THE NOTICES OF PAYMENT SENT TO HIM MONTHLY , TO A MERE ACCOUNTING RECORD DEVOID OF THE CHARACTER OF A DECISION .

15 IT HAS BEEN ESTABLISHED THAT IN FACT ON THE VERY DAY ON WHICH THE DECISION OF THE DIRECTOR-GENERAL OF PERSONNEL AND ADMINISTRATION GRANTING HIM A PENSION PAYABLE ON EARLY RETIREMENT WAS ADOPTED , THE APPLICANT RECEIVED FROM THE HEAD OF THE RELEVANT DIVISION IN THAT DIRECTORATE-GENERAL A STATEMENT OF HIS PECUNIARY RIGHTS SHOWING THAT THEY WERE THOSE PROVIDED FOR UNDER THE PENSION SCHEME LAID DOWN IN ARTICLE 34 OF THE ECSC REGULATIONS FOR WHICH THE APPLICANT HAD OPTED AND WHICH HAD BEEN ALLOWED HIM ON THE BASIS OF THE ABOVE-MENTIONED DECISION .

16 IN THE CIRCUMSTANCES THERE CAN BE NO QUESTION BUT THAT THE ABOVE-MENTIONED STATEMENT WAS AN INTEGRAL PART OF THE DECISION OF 11 APRIL 1973 , THE LEGAL EFFECTS OF WHICH ON THE APPLICANT ' S FINANCIAL POSITION IT DEFINED , SO THAT AS REGARDS IN PARTICULAR PAYMENT OF THE REDUCED PENSION WITHOUT FAMILY AND EDUCATION ALLOWANCES FOR DEPENDENT CHILDREN , IT MUST BE CONSIDERED TO BE THE ACT ADVERSELY AFFECTING THE APPLICANT .

17 AS THAT STATEMENT WAS SENT TO THE APPLICANT ON 11 APRIL 1973 IT WAS FROM THAT DATE THAT THE PERIODS LAID DOWN IN ARTICLES 90 AND 91 OF THE STAFF REGULATIONS FOR THE LODGING OF A COMPLAINT AND AN APPLICATION UNDER THOSE ARTICLES AGAINST THE FINANCIAL POSITION RESULTING FROM THE DECISION OF 11 APRIL 1973 AND IN PARTICULAR AS REGARDS THE APPLICATION OF A REDUCED RATE OF PENSION AND THE NON-PAYMENT OF THE ALLOWANCES IN QUESTION COMMENCED TO RUN .

18 THE NOTICES OF PAYMENT WHICH WERE SUBSEQUENTLY SENT TO THE APPLICANT EACH MONTH AND WHICH CONTAINED A STATEMENT OF HIS PECUNIARY RIGHTS WHICH CORRESPONDED TO THE FIRST STATEMENT CANNOT CAUSE THOSE PERIODS TO START TO RUN AFRESH . AS THE COURT HAS CONSISTENTLY HELD ( JUDGMENT OF 14 APRIL 1970 IN CASE 24/69 , NEBE V COMMISSION , ( 1970 ) ECR 145 ; JUDGMENT OF 8 MAY 1973 IN CASE 33/72 , GUNNELLA V COMMISSION , ( 1973 ) ECR 475 ), A MEASURE WHICH CONTAINS NO NEW FACTOR AS COMPARED WITH A PREVIOUS MEASURE CONSTITUTES A PURELY CONFIRMATORY MEASURE AND CANNOT THEREFORE HAVE THE EFFECT OF SETTING A FRESH TIME-LIMIT IN FAVOUR OF THE PERSON TO WHOM THE EARLIER MEASURE WAS ADDRESSED .

19 IT IS , HOWEVER , ESTABLISHED THAT THE APPLICANT DID NOT SUBMIT HIS COMPLAINT UNDER ARTICLE 90 OF THE STAFF REGULATIONS AGAINST THE APPLICATION OF A REDUCED RATE OF PENSION AND THE FAILURE TO PAY THE ALLOWANCES REFERRED TO ABOVE UNTIL 6 JUNE 1979 . WHILST IT IS TO BE REGRETTED THAT THE COMMISSION DID NOT CONSIDER IT NECESSARY TO REPLY TO THAT COMPLAINT , IN ACCORDANCE WITH ONE OF THE PRINCIPLES OF GOOD ADMINISTRATION , NEVERTHELESS THE FACT IS THAT THE COMPLAINT DOES NOT CONTAIN ANY NEW FACTOR AS COMPARED WITH THOSE PUT FORWARD BY THE APPLICANT EARLIER WHEN HIS SERVICE WAS TERMINATED IN 1973 AND IN RELATION TO WHICH THE ADMINISTRATION HAD STATED ITS POSITION IN ITS LETTER OF 11 APRIL 1973 .

20 IN THOSE CIRCUMSTANCES IT MUST THEREFORE BE CONCLUDED THAT THE APPLICANT ' S COMPLAINT OF 6 JUNE 1979 AND THIS APPLICATION , LODGED ON 15 JANUARY 1980 , ARE TO BE HELD AS BEING BROUGHT OUT OF TIME AS REGARDS ARTICLES 90 AND 91 OF THE STAFF REGULATIONS .

( B ) APPLICATION OF ARTICLE 41 OF ANNEX VIII TO THE STAFF REGULATIONS

21 IT IS ALSO ARGUED BY THE COMMISSION THAT THE FIRST PARAGRAPH OF ARTICLE 41 OF ANNEX VIII TO THE STAFF REGULATIONS HAS THE SOLE PURPOSE OF ENABLING THE INSTITUTIONS TO RECALCULATE PENSIONS AT ANY TIME AND DOES NOT GIVE OFFICIALS ANY RIGHT OF ACTION FOR THE PURPOSE OF OBTAINING SUCH A RECALCULATION IRRESPECTIVE OF THE PERIODS PRESCRIBED FOR APPLICATIONS , WHICH ARE LAID DOWN GENERALLY IN ARTICLES 90 AND 91 OF THE STAFF REGULATIONS .

22 AGAINST THAT THE APPLICANT CLAIMS THAT THE FIRST PARAGRAPH OF ARTICLE 41 OF ANNEX VIII TO THE STAFF REGULATIONS , BEING A SPECIFIC PROVISION IN THE RULES OF THE STAFF REGULATIONS RELATING TO THE PENSION SCHEME , MUST BE CONSIDERED , BOTH ON ITS WORDING AND ITS PURPOSE , AS A SPECIAL RULE WHICH DEROGATES FROM THE GENERAL SYSTEM APPLICABLE TO ACTIONS BROUGHT BY OFFICIALS AND GIVES THEM A RIGHT OF ACTION FOR THE RECALCULATION OF THEIR PENSIONS THE EXERCISE OF WHICH IS NOT SUBJECT TO OBSERVANCE OF THE TIME-LIMITS LAID DOWN IN ARTICLES 90 AND 91 OF THE STAFF REGULATIONS .

23 THE FIRST PARAGRAPH OF ARTICLE 41 OF ANNEX VIII TO THE STAFF REGULATIONS PROVIDES AS FOLLOWS :

' ' THE AMOUNT OF PENSION MAY AT ANY TIME BE CALCULATED AFRESH IF THERE HAS BEEN ERROR OR OMISSION OF ANY KIND . ' '

24 FOR A CORRECT INTERPRETATION OF THAT PROVISION IN ORDER TO DETERMINE THE CONDITIONS IN WHICH OFFICIALS MAY SEEK THE RECALCULATION OF THEIR PENSION REGARD MUST BE HAD TO THE SYSTEM LAID DOWN BY THE REGULATIONS GOVERNING DISPUTES AND THE UNDERLYING REQUIREMENTS OF THAT SYSTEM .

25 THE STAFF REGULATIONS MAKE GENERAL PROVISION IN ARTICLES 90 AND 91 FOR THE RIGHTS OF ACTION OF MEMBERS OF THE STAFF AGAINST ADMINISTRATIVE ACTS ADVERSELY AFFECTING THEM . THOSE PROVISIONS MAKE IT CLEAR THAT THE SYSTEM FOR THE SETTLEMENT OF DISPUTES THEREBY ESTABLISHED IS BASED IN ITS ENTIRETY ON THE REQUIREMENT THAT EXERCISE OF THE RIGHT OF ACTION IS PERMITTED ONLY SUBJECT TO STRICT OBSERVANCE OF THE TIME-LIMITS WHICH HAVE BEEN LAID DOWN .

26 ANY OFFICIAL WHO SEEKS TO HAVE HIS PENSION RECALCULATED WHERE THERE HAS BEEN ERROR OR OMISSION OF ANY KIND MAY , IT IS TRUE , AVAIL HIMSELF OF THE PROVISIONS OF THE FIRST PARAGRAPH OF ARTICLE 41 OF ANNEX VIII TO THE STAFF REGULATIONS BY REQUESTING SUCH A RECALCULATION BY MEANS OF A COMPLAINT AND , IF NECESSARY , BY WAY OF LEGAL PROCEEDINGS , BUT FOR HIS COMPLAINT AND HIS ACTION TO BE ADMITTED UNDER ARTICLES 90 AND 91 OF THE STAFF REGULATIONS HE MUST EXERCISE HIS RIGHT OF ACTION WITHIN THE PERIODS LAID DOWN BY THOSE ARTICLES , STARTING FROM THE TIME OF THE OCCURRENCE OF A NEW FACT SUCH AS TO JUSTIFY A RECALCULATION OF HIS PENSION OR FROM THE TIME WHEN HE ACTUALLY BECAME AWARE OF THE EXISTENCE OF SUCH A FACT .

27 IN THE PRESENT INSTANCE THE NEW FACT CAPABLE OF POSSIBLY JUSTIFYING A REQUEST FOR THE APPLICANT ' S PENSION TO BE RECALCULATED UNDER THE FIRST PARAGRAPH OF ARTICLE 41 OF ANNEX VIII TO THE STAFF REGULATIONS MIGHT HAVE BEEN THE RULES PUBLISHED BY THE COUNCIL SUBSEQUENT TO REGULATION NO 259/68 , WHICH INTRODUCED MEASURES CONCERNING THE TERMINATION OF SERVICE PROVIDING , FOR OFFICIALS WHO ARE SUBJECT TO SUCH MEASURES , FOR THE APPLICATION , INTER ALIA , OF A SCHEME FOR UNREDUCED PENSIONS PAYABLE ON EARLY RETIREMENT , TOGETHER WITH PAYMENT OF THE ALLOWANCES IN QUESTION .

28 THOSE RULES , WHICH ARE TO BE FOUND MAINLY IN REGULATION NO 1543/73 OF 4 JUNE 1973 ( OFFICIAL JOURNAL L 155 , P . 6 ) WERE PUBLISHED IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES ON 11 JUNE 1973 , BUT IT WAS NOT UNTIL HIS COMPLAINT OF 6 JUNE 1979 THAT THE APPLICANT MADE USE OF THE REMEDY AVAILABLE UNDER ARTICLES 90 AND 91 OF THE STAFF REGULATIONS IN ORDER TO CLAIM PAYMENT OF AN UNREDUCED PENSION AND OF THE ALLOWANCES IN QUESTION .

29 FROM THE WRITTEN OBSERVATIONS WHICH WERE SUBMITTED IN RESPECT OF THE COMMISSION ' S PRELIMINARY OBJECTION OF INADMISSIBILITY , AND IN PARTICULAR PARAGRAPH ( 2 ) OF THOSE OBSERVATIONS , IT APPEARS THAT THE APPLICANT WAS IN A POSITION ' ' SUBSEQUENTLY ' ' TO ASCERTAIN THAT ' ' THE INJUSTICE OF WHICH HE HAD COMPLAINED ' ' IN HIS FIRST ACTION OF 13 DECEMBER 1968 ' ' HAD BEEN REMEDIED BY MEANS OF REGULATIONS NOS 2530/72 AND 1543/73 ' ' . ANNEX 2 TO THE APPLICATION SHOWS , IN ADDITION , THAT CONTACT BETWEEN ONE OF THE SPECIALIZED DEPARTMENTS OF THE DIRECTORATE-GENERAL FOR PERSONNEL AND ADMINISTRATION AND THE APPLICANT HAD BEEN ESTABLISHED IN 1975 , AT THE LATEST , AND THAT THAT CONTACT HAD RESULTED IN THE RECONSIDERATION OF CERTAIN OF THE APPLICANT ' S PECUNIARY RIGHTS .

30 THOSE FACTORS REVEAL THAT WHEN HE SUBMITTED HIS COMPLAINT ON 6 JUNE 1979 THE EXISTENCE OF THE ABOVE-MENTIONED RULES DID NOT CONSTITUTE AS FAR AS THE APPLICANT WAS CONCERNED A NEW FACT GIVING HIM THE RIGHT TO CLAIM UNDER ARTICLES 90 AND 91 OF THE STAFF REGULATIONS A RECALCULATION OF HIS PENSION IN ACCORDANCE WITH THE FIRST PARAGRAPH OF ARTICLE 41 OF ANNEX VIII TO THE STAFF REGULATIONS .

CONCLUSION

31 IN THOSE CIRCUMSTANCES THE DELAY IN THE SUBMISSION OF THAT COMPLAINT MUST BE CONSIDERED SUCH AS TO MAKE THIS ACTION INADMISSIBLE .

Decision on costs

32 IN ACCORDANCE WITH ARTICLES 69 AND 70 OF THE RULES OF PROCEDURE THE PARTIES MUST BEAR THEIR OWN COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE ACTION AS INADMISSIBLE ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .