3.

Articles 178 and the second paragraph of Article 215 of the Treaty are the basis upon which the applicant contends for the admissibility of his application. As the Court is aware these articles form the basis of its jurisdiction to take cognizance of disputes concerning compensation for damage on the ground of non-contractual liability. In the present case two questions must be resolved: whether, in the application, the applicant is in fact seeking to establish the non-contractual liability of the Community and, more generally, whether officials (or former officials) may be permitted to institute proceedings under Article 178 of the Treaty when the subject-matter of such proceedings falls within the scope of the Staff Regulations of Officials. I consider that the first of these questions should be answered in the negative. On the applicant's own admission, the loss of which he complains originates not from the adoption of Regulation No 2530/72 but from its application to his own case: in the said statement of 15 September 1976 it is, in fact, declared that the proceedings instituted ‘relate to a loss which recurred only a considerable time after the entry into force of Regulation No 2530/72 which constitutes the cause of the loss’. Regulation No 2530/72 was applied to Mr Reinarz in the context of a relationship between him and the Community which was the direct result of the termination of his service. Even if such a relationship is to be defined in terms of the Staff Regulations and not in terms of contract, it seems to me clear that the scope of such a relationship differs from that of non-contractual liability: what really constitutes the subject-matter of the dispute is the way in which the Commission performs a duty arising from provisions in the nature of staff regulations, which corresponds to the former official's individual right to payment of the allowance. The second question should also be answered in the negative. Whilst it is true that, pursuant to Article 179, the Court of Justice has jurisdiction in any dispute between the Community and its servants (that is to say, ‘within the limits and under the conditions laid down in the Staff Regulations or the Conditions of Employment’) it seems logical to infer from this that any dispute which is begun by a person who relies upon his status as a servant or former servant of the Community and which raises a problem to be resolved under the conditions applicable to servants of the Community must follow exclusively the procedure laid down in Article 179 and in Articles 91 and 92 of the Staff Regulations not only when the application is for the annulment of a measure but also when compensation for damage is claimed. The fact that reference is made in Article 91 (1) to disputes between the Community and any person to whom these Staff Regulations apply ‘regarding the legality of an act adversely affecting such a person’ does not preclude the right to submit applications for compensation for damage within the framework of the said Article 91. I refer specifically to claims for compensation which turn on the illegality of a Community measure, as in the present case. Since in the disputes mentioned in Article 179 the Court has unlimited jurisdiction it may in fact give a ruling in respect both of the validity of the contested measure and on compensation for damage jointly or as alternatives. The Court of Justice has already had occasion to give a ruling on this point. In its judgment of 22 October 1975 in Case 9/75 Mayer Burckbardt v Commission ([1975] ECR 1171 et seq.) it was stated inter alia, in ground of judgment No 7, that ‘a dispute between an official and the institution to which he is or was answerable concerning compensation for damage is pursued, where it originates in the relationship of employment between the person concerned and the institution, under Article 179 of the Treaty and Articles 90 and 91 of the Staff Regulations and, as regards in particular the question of its admissibility, lies outside the sphere of application of Articles 178 and 215 of the Treaty and of Article 43 of the Protocol on the Statute of the Court of Justice of the EEC’. Below, in ground of judgment No 10 of the same decision, it was stated that in the context of disputes between officials and the institutions, Articles 90 and 91 of the Staff Regulations make no distinction between actions for annulment and actions for damages. Nor can it be validly objected that the Court of Justice, in its judgment of 5 April 1973 in Case 11/72, Luigi Giordano v Commission ([1973] ECR 417 et seq.), declared admissible an application by a former servant of the Commission pursuant to the second paragraph of Article 215 of the Treaty. As is clear from ground of judgment No 1 of that judgment this application was really for a declaration that the Community was liable because the Commission had supplied unfavourable information regarding the applicant to the Court thereby preventing him from obtaining a post at the Court of Justice. The damage for which compensation was claimed was that allegedly occasioned ‘by reason of the Commission's behaviour subsequent to the expiry of the [first] contract of employment’ (ground of judgment No 4). Thus, the person concerned was simply in the position of an applicant for a post with the Community. His former position as a temporary official was relevant in that it made it possible for the Commission to supply information to the Court. It is clear that, since the person concerned in that case had not obtained the post which he wanted (or participated in any competition which had been announced in accordance with the Staff Regulations), it was impossible to submit a claim for compensation within the framework of the Staff Regulations: the situation would have been different in the case of a claim for compensation linked, for example, to an allegation that the official had been unlawfully dismissed from his first post with the Commission. The judgment of the Court of Justice of 15 December 1966 in Case 59/65, Schreckenberg v Commission ([1966] ECR 543) fully accords with the point of view which I have adopted. In that case an official of the EEC submitted an appeal for the annulment of a negative decision of the Commission and a claim for damages, both under Article 91 of the Staff Regulations. The Court declared that the first application was inadmissible and then ruled that the claim for compensation was also inadmissible, and declared: ‘Although a party may take action by means of a claim for compensation without being obliged by any provision of law to seek the annulment of the illegal measure which causes him damage, he may not by this means circumvent the inadmissibility of an application which concerns the same illegality and has the same financial end in view’.