EN Official Journal of the European Union C 118/14

Action brought on 9 February 2012 — Council of the European Union v European Commission

(Case C-66/12)

2012/C 118/23

Language of the case: French

Parties

Applicant: Council of the European Union (represented by: M. Bauer and J. Herrmann, agents)

Defendant: European Commission

Form of order sought

— primarily, annul, under Article 263 TFEU, the communication from the Commission, COM(2011) 829 final of 24 November 2011, in so far as the Commission thereby refused definitively to submit appropriate proposals to the European Parliament and the Council on the basis of Article 10 of Annex XI to the Staff Regulations and also annul, under Article 263 TFEU, the Commission’s proposal for a Council Regulation adjusting, with effect from 1 July 2011, the remuneration and pensions of officials and other servants of the European Union and the correction coefficients applied thereto, and

— alternatively, find established, under Article 265 TFEU, an infringement of the Treaties by reason of the fact that the defendant has failed to submit appropriate proposals to the European Parliament and the Council on the basis of Article 10 of Annex XI to the Staff Regulations;

— order the European Commission to pay the costs.

Pleas in law and main arguments

In support of the first head of claim seeking the annulment of the communication from the Commission dated 24 November 2011, the Council relies on a single plea in law claiming an infringement of Article 10 of Annex XI to the Staff Regulations, read together with the second sentence of Article 13(2) TEU and Article 241 TFEU. The Council maintains that the Commission’s conclusion that there is no serious and sudden deterioration in the economic and social situation within the European Union is vitiated by several errors: the Commission failed to take into account all the relevant and available objective data and erred in its assessment of some of the data on which it based its analysis. Given that, in accordance with the judgment of 24 November 2010 in Case C-40/10 (paragraph 79), ‘it cannot be considered that the exercise of the powers conferred on the Commission by [Article 10 of Annex XI] constitutes a mere option for that institution’, those errors in the legal characterisation of the facts, which are manifest errors of assessment, have vitiated by illegality the refusal by the Commission to submit appropriate proposals on the basis of that article. By that refusal, the Commission is also in breach of its duty of sincere cooperation (Article 13(2) TEU).

The second head of claim seeks the annulment of the proposal for a regulation adjusting the remuneration and pensions of officials in accordance with the ‘normal method’ established by Article 3 of Annex XI of the Staff Regulations. The Council claims that that proposal constitutes an act having legal effects, because, according to paragraph 71 of the judgment in Case C-40/10, ‘the Council is not entitled to rely, in the context of Article 3, on a discretion going beyond the criteria laid down in that article’. By choosing to submit a proposal based on the application of the ‘normal method’ instead of a proposal based on the exception clause in Article 10 of Annex XI, the Commission has deprived the European Parliament and the Council of the possibility of exercising their discretion as to the criteria of that exception clause. That choice is tainted by the same errors as the Commission’s conclusion in the communication of 24 November 2011 that there is no serious and sudden deterioration in the economic and social situation within the European Union. Further, the Council claims that by submitting the proposal for the adjustment of remuneration in accordance with the ‘normal method’, the Commission is also in breach of its duty of sincere cooperation (Article 13(2) TEU).

Finally, the Council claims, alternatively, that, in the event that the communication from the Commission dated 24 November 2011 should not be regarded by the Court of Justice as a definition by the Commission of its position within the meaning of the second paragraph of Article 265 TFEU, the Commission is in breach of its obligation under Article 241 TFEU, read together with Article 10 of Annex XI to the Staff Regulations as interpreted by the Court of Justice in Case C-40/10 (paragraph 79), to submit a proposal on that basis.