JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

22 June 1994

Joined Cases T-97/92 and T-111/92

Loek Rijnoudt and Michael Hocken

v

Commission of the European Communities

‛Officials — Temporary contribution — Rates of contribution to the pension scheme’

Full text in French II-511

Application for:

annulment of the applicants' pay slips for January 1992 in so far as they reflect the application of the temporary contribution and establish as from that date an inevitable increase in the applicants' contributions to the pension scheme.

Decision:

Application dismissed.

Abstract of the Judgment

Article 65 of the Staff Regulations provides that the Council is to review the remuneration of officials annually, any adjustments being made in accordance with a method to be determined by the Council. By Decision 81/1061 (OJ 1981 L 386, p. 6) the Council laid down the method of applying Article 65 for the period from 1 July 1981 to 30 June 1991. At the same time, Regulation No 3821/81 (OJ 1981 L 386, p. 1) imposed a ‘crisis levy’ on remunerations for a period ending on 1 July 1991.

After extensive consultation with Community staff, the Council adopted on 19 December 1991:

— Regulation No 3831/91, introducing a temporary contribution at the gross rate of 5.83% as from 1 January 1992 by the insertion of a new Article 66a in the Staff Regulations (OJ 1991 L 361, p. 7);

— Regulation No 3832/91, increasing the rate of contribution to the pension scheme from 6.75% to 8.25% as from 1 January 1993 (OJ 1991 L 361, p. 9).

On 15 January 1992 the applicants received their pay slips for January 1992, which were drawn up to take account, in particular, of Regulation No 3831/91. On 13 March and 3 April 1992 respectively, Mr Rijnoudt and Mr Hocken lodged complaints which challenged in identical terms the levying of the temporary contribution and the future increase in their contributions to the pension scheme.

Mr Hocken did not receive an individual reply to his complaint, but the express decision rejecting Mr Rijnoudt's complaint, which was notified to Mr Rijnoudt by letter of 5 August 1992, was published in the issue of Informations Administratives of 24 September 1992, effectively constituting implied rejection of the other complaints at the expiry of the time-limit under the Staff Regulations.

Mr Rijnoudt and Mr Hocken brought the present actions on 5 November and 21 December 1992 respectively.

Admissibility

The time-limits applicable to Mr Hocken's action

Examining of its own motion the question — concerning a matter of public policy — as to whether Mr Hocken's action was brought within the prescribed time-limit, the Court considers that notification by means oi Informations Administratives of tlie express decision rejecting Mr Rijnoudt's complaint also constitutes an express decision rejecting each one of the identical complaints submitted by all the other officials concerned and indeed gives a detailed reply to those complaints. It would be contrary to the principle of equal treatment for those other officials to have been deemed to have received an implied rejection, devoid of all reasoning, of their complaints. Moreover, the provision under which an implied rejection is deemed to take place at the expiry of a period of four months is not intended to exonerate the institution from its duty to reply with a reasoned decision. It follows that Mr Hocken's action was brought within the time-limit (paragraphs 32 and 35 to 37).

The admissibility of the actions in so far as they plead the unlawfidness of Regulation No 3832/91

The Court points out that, under the system of remedies established by Articles 90 and 91 of the Staff Regulations, an official may only challenge an act which adversely affects him individually, and that it is only in that context that he may plead the unlawfulness of an act of general application (paragraph 41).

See: 153/79 Bowden v Commission [1981] ECR 2111. para. 13; T-14/91 Weyrich v Commission [1991] ECR II-235, para. 46

The actions are therefore inadmissible in so far as they plead the unlawfulness of Regulation No 3832/91 before the date of its entry into force and, as a consequence, there is no individual implementing measure (paragraph 42).

Substance

The pleas concerning Regulation No 3831/91

(a) The plea based on insufficient statement of reasons for Regulation No 3831/91

Bearing in mind that, in the case of a measure of general application, the statement of reasons may be confined to indicating, on the one hand, the general situation which led to its adoption and, on the other hand, the general objectives which it is intended to achieve, the Court is of the opinion that, having regard to the lengthy negotiations which took place before the regulation was adopted between the Communities and their staff, all of whom were kept informed of the content and scope of those negotiations, the statement of the reasons for the regulation does, contrary to what the applicants allege, satisfy the requirements of Article 190 of the Treaty, given that it provides a sufficient indication of the general situation which led to the adoption of the regulation and of its general objectives (paragraphs 49, 52, 55 and 56).

See: 3/83 Abrias v Commission [1985] ECR 1995, paras 30 and 31

(b) The plea based on the absence of objective justification and infringement of the principle of parallel development

Unlike the applicants, the Court does not consider that the temporary contribution introduced by Regulation No 3831/91 by inserting a new Article 66a into the Staff Regulations is devoid of objective justification or infringes the principle of parallel development, which finds expression in Article 65 of the Staff Regulations and in the previous methods of adjustment, and in accordance with which adjustments to the remunerations of Community officials take account, in particular, of movements in public service salaries in the Member States. First, the contested regulation was adopted entirely in conformity with its legal basis, namely the second subparagraph of Article 24(1) of the Merger Treaty, which does not impose any limitation on the legislative power of the Council in that respect. Secondly, since the legality of an amendment to the Staff Regulations cannot be called in question on the basis of another of its provisions, the Council was not bound by the provisions of Article 65 of the Staff Regulations when it amended Article 66a. Furthermore, the wording of Article 65 does not in any way prevent the introduction of the temporary contribution (paragraphs 64 and 65).

(c) The plea based on the Commission's failure to honour commitments towards its staff

(i) Admissibility

The Court rejects the Commission's objection of inadmissibility based on the applicants' reference to their original complaint for the purposes of the statement of certain arguments. Although it is generally not acceptable merely to refer to an annex for the statement of the facts, pleas in law and arguments that should be included in the application itself, there is no reason to hold the applicants' arguments inadmissible for failure to comply with Article 44(1 )(c) of the Rules of Procedure in circumstances where the application briefly indicates the plea in question and neither the defendant, which expressly replied in its pleadings to the relevant arguments set out in the complaint, nor the Community judicature have been prevented from understanding the arguments on this point (paragraph 71).

The Court points out that the present case differs from other cases, where either the application referred to a document produced in different proceedings or the Court was, in particular, unable to identify the act which the applicant was seeking to have annulled (paragraph 72).

See: 19/63 and 65/63 Prakash v Commission of the EAEC [1965] ECR 533; T-35/89 TOI Zubizarreta v Albani [1992] ECR II-1599; T-72/92 Benzler v Commission [1993] ECR II-347

(ii) Substance

Contrary to what has been argued by the applicants, the Court considers that the Commission is obliged to act in complete independence when proposing a Community legislative measure to the Council, and that, in consequence, neither agreements concerning internal relations between the Commission, as employer, and its staff nor the fact that a referendum was organized to consult the staff can be invoked in order to challenge the validity of Regulation No 3831/91, which was adopted by the Council, on a proposal from the Commission, pursuant to Article 24 of the Merger Treaty and Article 13 of the Protocol on the Privileges and Immunities of the European Communities (paragraphs 83, 84 and 85).

In any event, the Court considers that the plea has no factual basis (paragraph 92).

(d) The plea alleging failure of the Council to observe the consultation procedure provided for by its decision of 23 June 1981

The Court rejects this plea because the mandatory requirements of that decision were observed, and there is therefore no need to examine whether such nonobservance might have led to the regulation in question being declared inapplicable (paragraphs 97, 99 and 100).

(e) The plea alleging breach of the principles of the protection of legitimate expectations, proper administration and sound management

The Court rejects this plea because an official may not rely on those principles in order to challenge the legality of a new provision in a regulation, especially in an area whose subject-matter is undergoing constant change according to changes in the economic climate (paragraph 104).

See: 33/87 Christianas v Court of Justice [1988] ECR 2995, para. 23; T-6/92 and T-52/92 Reinan v Commission [1993] ECR II-1047, para. 85

Operative part:

The applications are dismissed as inadmissible in so far as they seek a declaration that Council Regulation (ECSC, EEC, Euratom) No 3832/91 of 19 December 1991 amending the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities with regard to the contribution to the pension scheme is inapplicable, and, as to the remainder, are dismissed as unfounded.