ORDER OF THE COURT OF FIRST INSTANCE (Second Chamber)

24 March 1998

Case T-232/97

Micheline Becret-Danieau and Others

v

European Parliament

‛Officials — Actions for annulment — Salary statement — Admissibility — Time-limits — New and material fact — Time-bar’

Full text in French II-495

Application for:

annulment of decisions expressly rejecting the applicants' requests for reimbursement of sums in respect of household grant received by their spouses which were deducted from their household allowance pursuant to Article 67(2) of the Staff Regulations of Officials of the European Communities, and, in so far as necessary, of the decisions of 15 and 21 May, 16 and 17 July 1997 expressly rejecting their complaints.

Decision:

Applications dismissed.

Abstract of the Order

The third paragraph of Artide 62 of the Staff Regulations of Officials of the European Communities provides that the remuneration of officials is to comprise, inter alia, family allowances. Article 67(1) of the Staff Regulations provides that family allowances are to comprise, inter alia, household allowance. According to Article 67(2), Officials in receipt of family allowances ... shall declare allowances of like nature paid from other sources'. It states that the latter allowances are to be deducted from those paid under the Staff Regulations.

Until June 1996, on the basis of the rule against overlapping benefits in Article 67(2), the European Parliament deducted from the household allowance to which eight of the applicants were entitled under the Staff Regulations the amount of household grant received by their spouses under the collective agreement or legislation in force in the employment sector concerned. The ninth applicant was in the service of the Court of Auditors of the European Communities, which also deducted from her household allowance the amount of family supplement received by her spouse, an official in the French civil service, under French social legislation.

In its judgment in Case T-147/95 Pavan v Parliament [1996] ECRSC II-861, the Court of First Instance held that the household grant (‘prime de ménage’) received by Luxembourg brewery employees under their collective labour agreement was not an ‘allowance of like nature’ within the meaning of Article 67(2) of the Staff Regulations. By letters of 2 July 1996, the defendant, acting in unison with the other Community institutions in Luxembourg, informed the relevant applicants that, pursuant to the judgment in Pavan and following consideration of the conditions for the receipt of household grant in each of the Luxembourg collective agreements in force in the relevant employment sectors, it had found that ‘that grant can no longer be regarded as “of like nature” to the household allowance’, and that it had therefore decided to cease to deduct it from their household allowances with effect from 1 July 1996. The fifth applicant received a letter in similar terms on 10 January 1997.

Between 6 August and 13 December 1996 all die applicants, except the ninth applicant, submitted to the defendant's appointing authority identically worded requests under Article 90(1) of the Staff Regulations for reimbursement of all sums deducted from their household allowance pursuant to the anti-overlapping rule, together with default interest. The ninth applicant submitted a similar request to the Court of Auditors.

Those requests were expressly rejected by the defendant's decisions notified between 5 September 1996 and 10 January 1997. Similarly, the ninth applicant's request was rejected by decision of the Court of Auditors in December 1996.

Between 17 January and 27 March 1997 all the applicants, including die ninth applicant, lodged a complaint against the decisions expressly rejecting their requests. Those complaints were expressly rejected by decisions of 15 May 1997, save in the case of the seventh, ninth and tenth applicants, whose complaints were expressly rejected by decisions dated 21 May, 16 and 17 July 1997 respectively. The essential ground relied upon in those decisions was that the measures adversely affecting them, that is to say, the salary statements in which the contested deductions had been made, had not been challenged by the applicants within the period laid down in the Staff Regulations, and that their requests for retroactive reimbursement under Article 90(1) of the Staff Regulations had not sufficed to start a new period running within which a complaint could be lodged.

Admissibility

Under the system of remedies established by Articles 90 and 91 of the Staff Regulations, an action for damages, which constitutes an autonomous remedy, separate from the action for annulment, is admissible only if it has been preceded by a prelitigation procedure in accordance with the provisions of the Staff Regulations. That procedure differs according to whether the damage for which reparation is sought results from an act having adverse effect within the meaning of Article 90(2) of the Staff Regulations or from conduct on the pait of the administration which contains nothing in the nature of a decision. In the first case, it is for the person concerned to submit to the appointing authority, within the prescribed time-limit, a complaint directed against the act in question. In the second case, on the other hand, the administrative procedure must commence with the submission of a request, within the meaning of Article 90(1) of the Staff Regulations, for compensation and continue, where appropriate, with a complaint against the decision rejecting that request (paragraphs 28 and 29).

See: T-64/91 Marcato v Commission [1992] ECR II-243, paras 30 to 35; T-500/93 Y v Court of Justice [1996] ECRSC II-977, paras 64 to 66; T-15/96 Liao v Council [1997] ECRSC II-897, paras 57 and 58

The loss for which compensation is claimed is the result of the fact that until June 1996 the appointing authority deducted, in the applicants' monthly salary statements, the national allowances at issue from the household allowance to which they were entitled. The salary statements are acts adversely affecting the applicants and may be the subject of a complaint and, as appropriate, an action. Notification of the monthly salary statement has the effect of setting time running for the purpose of the time-limit for proceedings against an administrative decision, where the scope of such a decision is clearly apparent from the statement. That is so in the case of a salary statement showing the official concerned that a deduction has been made pursuant to Article 67(2) of the Staff Regulations on the basis of information which he has himself supplied to the appointing authority (paragraphs 30 to 33).

See: 15/73 to 33/73, 52/73, 53/73, 57/73 to 109/73, 116/73, 117/73, 123/73, 132/73 and 135/73 to 137 ITi Schots-Kortnerand Others v Council, Commission and Parliament [1974] ECR 177, para. 18; 176/83 Alio v Commission [1985] ECR 2155, para. 13; 159/86 Canters vCommission [1988] ECR 4859, para. 6; 200/87 Giordani v Commission [1989] ECR 1877, para. 13; T-7/91 Schavoir v Council [1992] ECR II-2307, para. 34; T-98/92 and T-99/92 Di Marzio and Lebedef v Commission [1994] ECRSC II-541, para. 24; T-7/94 Adriaenssens and Others v Commission [1997] ECRSC II-1, para. 29

In the present case the applicants are precluded from contesting their salary statements showing the deductions at issue, since they have not done so within the period laid down in the Staff Regulations (paragraph 37).

Moreover, the possibility of submitting a request within the meaning of Article 90(1) does not enable an official to evade the time-limits laid down in Articles 90 and 91 for lodging complaints and commencing proceedings by using such a request indirectly as a means of contesting an earlier decision which was not challenged in due time. The time-limits for bringing actions are mandatory and not subject to the discretion of the Court or the parties. Only the existence of new and material facts can justify the submission of a request for review of a decision which has not been challenged in due time. A judgment of the Court of Justice or of the Court of First Instance annulling an act can constitute such a fact only in regard to the persons directly concerned by the act which has been annulled (paragraphs 38 to 43).

See: 43/64 Müller v EEC, EAEC and ECSC Councils [1965] ECR 385, 397; Opinion of Advocate General Gand in 50/64, 51/64, 53/64. 54/64 and 57/64 Loebisch and Others v EEC, EAEC and ECSC Councils [1965] ECR 825, 833; 52/64 Pfloeschnerv Commission [1965] ECR 981, 986; Schots-Kortnerand Others v Council, Commission and Parliament, cited above, para. 38; 127/84 Italy v Commission [1985] ECR 1437, para. 10; 232/85Beckerv Commission [1986] ECR 3401, para. 8; 125/87 Brown v Court of Justice [1988] ECR 1619, para. 13; 161/87 Muysers and Tülp v Court of Auditors [1988] ECR 3037, para. 11; T-131/95 Progoulis v Commission [1995] ECRSC II-907, para. 41; Adriaenssens and Others v Commission, cited above, paras 27 and 28; C-151/97 P (I) and C-157/97 P (I) National Power and PowerGen v Commission [1997] ECR I-3491, para. 73; T-16/97 Chauvin v Commission [1997] ECRSC II-681, paras 37 and 43

In the present case, the applicants were not parties to the dispute in the Pavan case and do not claim to have been directly concerned by the act annulled in that case. The judgment in Pavan cannot therefore be regarded as a new, material fact entitling them to reopen the period prescribed for lodging a complaint (paragraph 44).

Operative part:

The application is dismissed as inadmissible.