JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

27 October 1994

Case T-536/93

Hartwig Benzler

v

Commission of the European Communities

‛Officials — Pension — Weighting — Change of State capital’

Full text in French II-777

Application for:

annulment of the applicant's pension slip for January 1993.

Decision:

Annulment

Abstract of the Judgment

The applicant argues that, under the principle that the weighting for each Member State is to be fixed by reference to the cost of living in the capital, the Commission should have applied to his pension the weighting of 107.1 fixed by Article 6(2) of Regulation No 3761/92 of 21 December 1992 for Berlin, which had been the new capital of Germany since October 1990, and not the weighting of 96. 1 fixed by that article for the whole of Germany (except Berlin and Munich) by reference to the cost of living in Bonn, subject to subsequent provisions fixing the general weighting for Germany on the basis of the cost of living in Berlin.

Admissibility

A remuneration slip may constitute an act adversely affecting an official within the meaning of Article 90(2) of the Staff Regulations and be the subject of a complaint and ultimately an action. Only a measure which definitively states the will of a Community institution may constitute an act adversely affecting an official (paragraphs 15 and 17).

See: See: 262/80 Andersenv Parliament [1984] ECR 195, para. 4; 264/83 Délhez v Commission [1985] ECR 2179, para. 20; C-313/90 CIRFS v Commission [1993] ECR I-1125, para. 27; T-17/90, T-28/91 and T-17/92 Cámara Alloisio v Commission [1993] ECR II-841, para. 39

Although Regulation No 3761/92, on which the contested pension slip was based, fixed the weighting for Germany at 96.1 on a provisional basis, the Commission is unable to reverse its decision to apply that weighting to the applicant's pension for January 1993 unless and until the Council retrospectively amends the regulation. In those circumstances, contrary to what the Commission maintains, that decision constitutes a definitive act against which an action may be brought (paragraph 18).

Substance

In so far as the applicant alleges that the Commission was under an obligation to apply to him the weighting for the new capital Berlin and no other weighting, he is challenging the legality of the general weighting for Germany fixed on the basis of the cost of living for Bonn, which the contested pension slip applied to him. The Court therefore considers that it is dealing with an objection of illegality for the purposes of Article 184 of the EC Treaty (paragraphs 30 and 31).

Under the principle of the hierarchy of legal rules, Regulation No 3761/92 may not depart from the principles in Articles 63 to 65a and 82 of the Staff Regulations and in Annex XI thereto, on which it is expressly based. Unlike Regulation No 3830/91 of 19 December 1991, which, being a measure which amended the detailed rules for adjusting remuneration by incorporating Article 65a and Annex XI into the Staff Regulations, was adopted after consulting the European Parliament and the Court of Justice pursuant to Article 24 of the Merger Treaty and the Staff Regulations Committee pursuant to Article 10 of the Staff Regulations, Regulation No 3761/92, being a regulation implementing the Staff Regulations, was not the subject of such consultation (paragraphs 32 and 33).

The fixing of a provisional weighting for Germany calculated on the basis of the cost of living in Bonn and not Berlin, the new capital since October 1990, is an unlawful departure from the principle, stated by the Council in Annex XI to the Staff Regulations and confirmed by the Court of Justice, that the weighting for each Member State should be fixed by reference to the cost of living in its capital. Whilst the lack of certain statistics, invoked by the Council, may justify the fixing of a provisional weighting, the Court considers that, since the Council had enough information to fix a definitive weighting for the capital, Berlin, it must have had, at the time Regulation No 3761/92 was adopted, all the requisite data to fix a definitive weighting for Germany, calculated by reference to die cost of living in the new capital (paragraphs 35, 36 and 38).

See: 7/87 Commission v Council [1988] ECR 3401, para. 18

Although the Council has exclusive competence to fix weightings, the Commission nevertheless applied an unlawful weighting. The Court therefore annuls the contested pension slip (paragraphs 40 and 41).

Operative part:

The applicant's pension slip for January 1993 is annulled in so far as it applies a weighting calculated by reference to the cost of living in Bonn.