CELEX: C1998/209/28
Language: en
Date: 1998-07-04 00:00:00
Title: Appeal brought on 26 March 1998 by Max Kögler against the order made on 20 January 1998 by the Third Chamber of the Court of First Instance of the European Communities in Case T-160/96 between Max Kögler and the Court of Justice of the European Communities, supported by the Council of the European Union (Case C-82/98 P)

C 209/14               EN                 Official Journal of the European Communities                                     4.7.98
     must in any event be able to adopt interim measures                   (3) alternatively, specify a date in the near future
     within the meaning of Article 2(1)(a) and (b) of that                       when that calculation and determination are to
     directive and to annul the contracting authority's                          take place;
     award decision, and the right to rely in proceedings on
     that obligation as against a Member State?                      (III) order the respondents to pay the costs.
C. If Question B is answered in the affirmative:                     Pleas in law and main arguments adduced in support:
                                                                     Ð     The contested order wrongly held that the request
     Is the obligation described under A. also sufficiently
                                                                           made pursuant to Article 90(1) of the Staff
     clear and precise to mean that in such a procedure the
                                                                           Regulations, and thus the action, were inadmissible.
     national court must disregard contrary provisions of
                                                                           The appellant contests, first, the construction placed
     national law which would prevent the court from
                                                                           on the provisions applicable in the present case,
     fulfilling that obligation, and must fulfil that
                                                                           which is diametrically opposed to the clear wording
     obligation directly as part of Community law even if
                                                                           of those provisions and is wholly unjustified.
     national law lacks any basis on which to act?
                                                                           Contrary to the view expressed by the Court of First
                                                                           Instance, the words without prejudice to' appearing
(1) OJ L 395, 30.12.1989, p. 33.                                           in the phrase without prejudice to the decisions to
                                                                           be taken by the Council' are meaningless for the
                                                                           purposes of determining whether the fixing of the
                                                                           weightings is to be definitive or provisional, because
                                                                           they are compatible with both of those
                                                                           interpretations. The answer to that question is, by
                                                                           contrast, clearly apparent from the words to be
Appeal brought on 26 March 1998 by Max Kögler
                                                                           taken', which, as is indicated by the corresponding
against the order made on 20 January 1998 by the Third
                                                                           wording in the French text Ð . . . est appeleÂ aÁ
Chamber of the Court of First Instance of the European
                                                                           prendre' Ð can only be intended to mean must take'
Communities in Case T-160/96 between Max Kögler and
                                                                           or is required to take'. Contrary to the reasoning
the Court of Justice of the European Communities,
                                                                           contained in the contested order, the appellant has at
      supported by the Council of the European Union
                                                                           no time asserted that he relied on the application of
                        (Case C-82/98 P)                                   the Berlin weightings; there was no need whatever
                          (98/C 209/28)                                    for him to do so in order to substantiate his claim.
                                                                           On the contrary, the appellant clearly stated that he
                                                                           relied solely on the undertaking by the Council that
                                                                           a definitive regulation, the content of which was
An appeal against the order made on 20 January 1998 by
                                                                           unknown, would in due course be adopted.
the Third Chamber of the Court of First Instance of the
European Communities in Case T-160/96 between Max
Kögler and the Court of Justice of the European                            The Court of First Instance wrongly stated that the
Communities, supported by the Council of the European                      appellant should have contested the pension
Union, was brought before the Court of Justice of the                      statements received by him for the period from 1 July
European Communities on 26 March 1998 by Max                               1991 to 30 June 1994 within the prescribed time-
Kögler, represented by Theo Baltes, Rechtsanwalt, Trier,                   limit; where a person fails to contest a measure
with an address for service in Luxembourg at the                           within the time-limit laid down, he cannot start time
Chambers of ReneÂ Weber, 3 Rue de la Loge, L-1945                          running afresh by submitting a request pursuant to
Luxembourg.                                                                Article 90(1) of the Staff Regulations. In the present
                                                                           case, the Court of First Instance could only have
                                                                           come to that conclusion, which is certainly a correct
The appellant claims that the Court should:                                statement of the position as regards definitive
                                                                           decisions of the appointing authority, because, by
                                                                           failing to take into account the fact that the
(I)    set aside the order of the Court of First Instance of
                                                                           provisions on which the said pension statements
       20 January 1998 dismissing as inadmissible the
                                                                           were based were provisional, and by nonsensically
       application in Case T-160/96 (1);
                                                                           misconstruing the appellant's reliance on the
                                                                           undertaking given by the Council, it failed to take
(II)   determine the dispute definitively, and in particular:              account of the distinctive characteristics of the
                                                                           present case.
       (1) annul the decision of the respondent's
             Complaints Committee of 1 July 1996;                    Ð     The appellant requests the Court of Justice to
                                                                           determine the entire dispute, since, in his view, the
       (2) rule that the appellant's retirement pension for                only matters to be decided are points of law.
             the period from 1 July 1991 to 30 June 1994 be
             recalculated and definitively determined on the         (1) OJ C 94, 28.3.1998, p. 23.
             basis of the weightings for Berlin fixed annually
             by the Council;