JUDGMENT OF 12. 11. 1981 — CASE 543/79 BIRKE ν COMMISSION AND COUNCIL

In Case 543/79

THE COURT (First Chamber) composed of: G. Bosco, President of Chamber, A. O'Keeffe and T. Koopmans, Judges, Advocate General: F. Capotorti Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

The facts of the case and the conclusions, submissions and arguments of the parties put forward during the written procedure may be summarized as follows :

I — Facts and procedure

1. Background provisions

This case should be seen against the background of the following provisions:

a) In the version in force until 31 March 1979, Article 63 of the Staff Regulations of Officials provided that: The relevant parity was BFR 12.50 to DM 1 and BFR 8 to LIT 100. In accordance with Article 17 of Annex VII to the Staff Regulations, an official may have part of his emoluments transferred, either regularly or on an exceptional basis, to a country other than the one in which he performs his duties. Until 31 March 1979 Article 17 (4) provided that such transfers were to be made through the institution to which the official belonged “at the official rate of exchange in force at the date of the transfer”. The “official rate of exchange” within the meaning of that provision was the last parity accepted by the International Monetary Fund, which had not been altered since 1 November 1969 (for example, BFR 13.66 to DM 1). After the collapse in 1971 of the international system of fixed exchange rates, which is at the heart of those provisions, the parities came to reflect less and less the purchasing power of the currencies involved and their value on the international money market. Officials who made transfers to countries the value of whose currency had increased in relation to the parities notified to the International Monetary Fund were thus able to realize gains on the exchange rate, as compared with transfers made in normal market conditions. In accordance with the legal position existing prior to 1 April 1979 the weighting provided for in Article 64 of the Staff Regulations to reflect the living standards at the place where the official performed his duties had to be applied to the whole of the remuneration including the part to be transferred to another country pursuant to Article 17 of Annex VII. This led to an increase in the weighting for officials assigned to countries such as Italy where the value of the currency had decreased in relation to the parities notified to the International Monetary Fund and to a reduction in the weighting for officials assigned to countries whose currency had gained in value in relation to the parities of the Fund. However, the applicant maintains that the increase made in the weighting was very slight. For example, the weighting for Italy was increased, in figures, from 100 to 146.9, whereas the exchange rate had fallen from LIT 12.5 for BFR 1 to LIT 28 for BFR 1. Pensioners were able to derive special advantages from these provisions, if they declared their domicile to be in a country whose currency had diminished in value, the weighting in respect of that country was applied to their pension in accordance with Article 82 (1) of the Staff Regulations. Article 45 of Annex VIII to the Staff Regulations gave them the opportunity of having their pensions paid in the strong currency of their country of origin or of that of the seat of the institution to which they belonged. This state of affairs was condemned by Mr Advocate General Mayras in his opinion in Case 28/74 (Gillet, [1975] ECR 475). From 1974 onwards the Commission has submitted proposals to the Council with a view to abolishing the anomalies in the rules governing the payment of remuneration and pensions brought about by the breakdown in the international system of fixed exchange rates. The proposal for a Council regulation amending the Staff Regulations of Officials, submitted to the Council by the Commission on 13 June 1974 (Official Journal C 88, p. 25) provided for an amended version of Article 17 (4) of Annex VII to the Staff Regulations as follows : On 1 April 1977 the Commission submitted to the Council a proposal for a Council regulation introducing the European unit of account (EUA) into the Staff Regulations of Officials (Official Journal C 99, p. 5). That proposal was rejected by the Staff Regulations Committee to which it had been referred. The Council obtained the opinion of the European Parliament and of the Court of Justice. By resolution of 7 July 1977 (Official Journal C 183, p. 55) the Parliament approved the proposal taking note of “the Commission's assurance that its proposal will in no way affect the real value of the payments made to officials in the form of remuneration, pensions and allowances”. At the sitting the Commissioner responsible for administration, Mr Tugendhat, stated: “The object of the Commission's system is financial neutrality, and what we think that our system can achieve is an equality of purchasing power. What we want is that a Commission official of a given grade, whether he is working in Brussels or Luxembourg or London or any other part of the Community, should be able to buy exactly the same quantity of goods as his equal in another part of the Community... The problem of transfers is also one that has preoccupied the Commission. There is a proposal for an amendment of the Staff Regulations now under consideration. In our view, that amendment must be adopted no later than the present draft regulation and that, I think, covers another point about which there has been concern.” The Council did not succeed in 1978 in adopting the regulation proposed by the Commission on 6 October 1976 (Official Journal C 271, p. 5) “on the procedure for applying the European unit of account (EUA) to the legal acts adopted by the institutions of the European Communities”. The Commission therefore set to work to bring up to date, in the light of the situation thereby created, the exchange rates in respect of remuneration for officials which was envisaged by the proposal of 1 April 1977. In an annex to its report in 1978 on the yearly survey of the level of remuneration (COM (78) 673 final of 29 November 1978) the Commission sent the following communication to the Council on which neither the Parliament, the Court of Justice nor the Staff Regulations Committee was consulted : The Commission urges the Council to adopt the aforementioned article before the end of the year as well as Article 17 of Annex VII which is the result of the Council's studies relating to the amendment to the Staff Regulations ... The ... regulation should come into effect on 1 January 1979 ... and should apply from 1 April 1979. However, for pensioners in receipt of allowances whose net financial benefits will be less than those under the existing arrangements, the regulation will apply only from 1 October 1979.”

“An official's remuneration shall be expressed in Belgian francs.

It shall be paid in the currency of the country in which the official performs his duties.

Remuneration paid in a currency other than Belgian francs shall be calculated on the basis of the par values accepted by the International Monetary Fund, and in force on 1 January 1965.”

“Transfers provided for in paragraphs (2) and (3) shall be made on the basis of the par values referred to in the last paragraph of Article 63 of the Staff Regulations; the amounts transferred shall be multiplied by a coefficient representing the difference between the weighting for the country in whose currency the transfer is made and the weighting for the country in which the official is employed.”

“... The first two paragraphs of Article 63 are to be replaced by the following: ‘Officials’ remuneration shall be expressed in Belgian francs. It shall be paid in the currency of the country in which the official performs his duties. Remuneration paid in a currency other than Belgian francs shall be calculated on the basis of the exchange rates used for the implementation of the general budget of the European Communities on ...”

b) On 21 December 1978 the Council adopted Regulation No 3085/78 (Official Journal 1978 L 369, p. 6), amending, with particular reference to the monetary parities to be used, Regulation No 259/68 laying down the Staff Regulations of Officials of the European Communities and the Conditions of Employment of Other Servants of the Communities, Regulation No 2530/72 and Regulation No 1543/73 concerning certain special measures. The regulation embodies the wording of the communication from the Commission of 29 November 1978 and also the formula contained in the proposal of 1 April 1977 concerning the weighting to be applied to amounts transferred. The Council added, however: “From that date the difference between the net amounts resulting from the implementation of the regulation and those received in September 1979 shall be reduced by Vio per month”. The regulation fixes 1 July 1978 as the relevant date for calculating remuneration paid in a currency other than Belgian francs on the basis of the exchange rates used for the implementation of the general budget of the Communities and goes on to state that that date shall be changed at the time of the annual review of remuneration.

c) Hand in hand with the bringing up to date of the rates of exchange, the Council adopted Regulation No 3086/78 of 21 December 1978 (Official Journal L 369, p. 8) adjusting the weightings applicable to the remuneration and pensions of Officials and Other Servants of the European Communities following the amendment of the provisions of the Staff Regulations concerning the monetary parities to be used in implementing the Staff Regulations, which amended the value of the weighting according to the various places of employment. In order to do that the Commission and the Council of the European Communities used a formula the intended result of which was that in the case of each official or other servant employed outside Belgium or Luxembourg the remuneration for April 1979 would be maintained at the same level as that of the previous month. However, in the applicant's view, as far as the disposable amount of his remuneration is concerned that formula resulted in the changes to which he refers in detail in these proceedings, namely a reduction of about 25%. In fixing the weighting referred to in Article 64 of the Staff Regulations, the Council and the Commission have, since 1967, used the following procedure for comparing the level of prices between Brussels and the various other places of employment. The Statistical Office of the European Communities, in conjunction with the competent national offices, carries out regular price surveys in respect of goods and services considered as representing typical items of household expenditure for officials in the various places of employment. In respect of each item the relationship is calculated between the price in Brussels and the price prevailing in the town which is used as the point of reference for the place where the official performs his duties. By the use of this weighting it is possible to calculate the relative purchasing power of currencies in the countries where the officials of the Community perform their duties. For example, the index calculated using the “Fisher” method expresses in a single figure the relationship of prices in Brussels to those in Rome and vice versa. This figure is used for calculating the weightings within the Community because it expresses the relationship of prices from one town to another in a reversible manner and because it is therefore possible to make not only bilateral price comparisons but also multilateral ones. According to this method, the weighting is obtained by dividing the “Fisher” index calculated as described above, by the corresponding rate of exchange used to convert the remuneration of officials into the respective national currencies in accordance with Article 63 of the Staff Regulations. In October and November 1975 a comparative study of prices was carried out in all the capitals of the Community.

d) Regulation No 3987/78 of 21 December 1978 adjusting the weighting applicable to the remuneration and pensions of Officials and Other Servants of the European Communities employed or having a home in Italy (Official Journal L 369, p. 10) provides:

“Having regard to the proposal from the Commission,

Whereas the weighting for Italy should be corrected in line with the findings of the statistical surveys carried out by the Statistical Office of the European Communities,

has adopted this regulation:

Article 1

1. With effect from 1 January 1978, the weighting applicable to the remuneration of officials employed in Italy shall be 146.4.

2. With effect from 1 January 1978 the weighting applicable to pensions in accordance with the second subparagraph of Anicie 82 (1) of the Staff Regulations shall be 146.4 where the person entitled to the pension declares his home to be in Italy.

Article 2

The weightings for Italy given in Article 1 of Regulation (Euratom, ECSC, EEC) No 1461/78 is repealed with effect from 1 January 1978.”

That regulation was adopted in the following circumstances:

The fall in the value of the Italian lira which depreciated rapidly at the end of 1975 and the beginning of 1976 and the monetary measures taken by the Italian Government as a result brought about strong inflationary pressure. It led the staff representatives at Ispra to submit a number of pay demands based on their claims that the weighting for Italy no longer reflected the widening gap between the cost of living in Brussels and Ispra and that the weighting calculated according to the “Fisher” method led in particular to a large gap between the par value of the lira in relation to the Belgian franc on the currency markets and the equivalent value in lire of the remuneration paid to officials at Ispra and considerably reduced the external purchasing power of the remuneration.

From July 1975 the weighting for Italy was 166.6 as against 148.7 for Brussels and Luxembourg. In the spring of 1976 the Commission proposed provisionally to increase the weighting for Italy to 5.5% from 1 January 1976, the final percentage to be fixed once precise statistical data were available. The applicant claims that on 19 March 1976 the Commission of the European Communities also told officials that the examination of the weighting applicable to Italy had absolute priority. The Council did not accept that proposal.

The statistical inquiries to which the Commission referred were conducted by the Statistical Office in May 1976 in the province of Varese. An inquiry into rent levels was then taken into account. The ensuing report found that there was a difference of 8.5% between the weighting for Italy, calculated for Varese by the Statistical Office to be (121.5 to the base 100 for Brussels) and the weighting for Italy adopted by the Council (112.04 to the base 100 for Belgium). Of that 8.5%, 6.7% was attributed to the widening gap between the cost of living index in Italy and Belgium from December 1975 to June 1976. According to the Statistical Office approximately 2% could be attributed to the difference in price levels between the Varese and Rome regions.

On 21 December 1976 the Council adopted Regulation No 3177/76 (Official Journal L 359, p. 1) which from 1 July 1976 fixed the weighting at 189.3 for Italy as against 157.8 for Belgium and from 1 January 1977 at 120 for Italy as against 100 for Belgium.

The inquiry was the outcome of various representations made by staff representatives at Ispra to the Commission and in particular of a meeting with the President of that institution on 23 May 1976. The staff representatives questioned the statistical method used to fix the weighting and sought to have it amended. They considered the large gap between the purchasing power parities and the monetary parities of remuneration paid in lire to be incompatible with the principle of the equal treatment of officials. That was the result in particular of the fact that prices of imported goods react very much more quickly to the appreciation of a currency on the currency markets than the general price level. Equality of treatment in regard to pay can be attained only by reference to a common European “basket” of goods and services which are qualitatively and quantitatively identical. The Commission representatives rejected that basis of reference but they did agree that the purchasing power parities used to calculate the weighting might present some distortion. By a telex message of 12 December 1977 the staff representatives asked the member of the Commission responsible for administrative matters, Mr Tugendhat, to make representations to the Council in order to have the weighting for 1977 acknowledged to be provisional.

In May 1978, in addition to an adjustment of the weightings to the increased cost of living, the Commission proposed to the Council a supplementary increase of 5% in the weightings for Italy, the United Kingdom and Ireland.

On 12 June 1978 the President of the Commission met the staff representatives for a discussion on policy. A joint working party was set up in order to study the method of calculating and periodically reviewing the weighting. In its report of 26 July 1978 that party recommended that the Commission submit to the Council a proposal based on these points:

The 1967 list of consumer goods to be brought into line with that used for the 1975 inquiry;

The prices adopted in 1975 to be adopted and extrapolated to 1978 using common indices (namely for Rome and Brussels);

Justification of the use of those prices by the need to introduce a system enabling weightings to be regularly adjusted.

The Commission representatives said that the method proposed should apply to the weighting as from 1 January 1978 while the staff representatives believed there was justification for applying it from an earlier date and reserved their freedom of action before the Council on this point. They also pointed out that some disparity still remained owing in particular to the differences in prices between Rome and Varese.

The party's recommendations were incorporated in the Commission's proposal to the Council of 10 November 1978 to increase the weighting by 6.4% as from 1 January 1978 (Doc. COM (78) 591). During the discussions at Council level the staff representatives refused to accept 1 January 1978 as the date for the entry into force of the amended weighting.

After the adoption on 21 December 1978 of Regulation No 3087/78, in January 1979 the administration of the Commission calculated and paid the arrears due in respect of the period from 1 January 1978 to 30 June 1978. At the same time there were paid the arrears due in respect of the period from 1 July 1978 to 31 December 1978 under Council Regulation No 3084/78 of 21 December 1978 adjusting the remuneration and pensions of Officials and Other Servants of the European Communities and the weightings applied thereto (Official Journal L 369, p. 1), which fixed the weighting for Italy at 146.8 with effect from 1 July 1978.

2. Facts

The applicant was engaged as an official by the Commission on 1 April 1960 and with effect from 1 September 1960 assigned to the Euratom Joint Research Centre at Ispra in Italy. He is now in Grade B 2. He is a German national.

The method applicable until 31 March 1979 was advantageous for officials employed in Italy. It may be seen from the application that in the case of for example two employees of German nationality employed in Brussels and Ispra, in Grade B 3, Step 3, and married with two children at secondary school, who transfer through the Commission to the BHW home-purchase savings scheme 35% of their net salary (the maximum), the one employed at Ispra obtained in January 1976 12% more than his colleague in Brussels for the part of his salary transferred to the Federal Republic of Germany, whereas in March 1979 he obtained 46.8% more.

Therefore, the applicant claims, a privilege was removed but the disadvantages, which could have been to some degree offset by the advantages of the method previously applied, remained. Those disadvantages stem for example from the fact that in Italy property values do not increase in the same way as in the Federal Republic of Germany or from the fact that officials employed in Italy have to use a bigger portion of their salary to purchase currency if they do not wish to spend their holidays in Italy.

If an official had to change a part of his remuneration, say 35%, into German marks at a bank, a servant employed at Ispra obtained 34% less in January 1976 and in March 1979 35% less than his colleague in Brussels.

The applicant used the direct transfer method in order to pay the following expenses:

Under the previous transfer system the financial results were as follows:

Under the new system the figures are :

On 15 April 1979 the loss was:

3. Written procedure

By identical complaints submitted under Article 90 (2) of the Staff Regulations a large number of officials at Ispra made objection to a -.reduction of approximately 26% in their actual remuneration which they claimed was the result of the application of Regulations Nos 3085 and 3086/78. They claimed that those regulations were unlawful and that Regulation No 3087/78 had not been given sufficient retroactive effect and asked for measures to be taken to make up for the loss in purchasing power which they claimed had taken place in 1976 and 1977.

The applicant sent his complaints to the Commission on 27 March and 11 April 1979.

On 12 July 1979 the Commission rejected his complaints.

By fresh complaints submitted in June 1979 and identical in form a large number of officials at Ispra objected to the application to their remuneration for April 1979 of Regulations Nos 3085 and 3086/78 and the updated exchange rates fixed by those regulations and to the changes in the method whereby officials transferring a part of their monthly salary to a country other than that in which they were employed.

The applicant's complaint was received at the Commission on 21 January 1979.

On 28 September 1979 the Commission replied to the complaints of 21 June 1979 and once again to the complaints of 11 April 1979.

This application was submitted and received at the Court on 11 October 1979 at the same time as 199 other parallel applications (Cases 530 to 729/79 and 781/79).

It was subsequently decided that this case should become a test case.

By a letter of 27 December 1979 the applicant amended his application to challenge in addition to the salary statement for April 1979 that for January 1979.

By a letter of 8 February 1980 the Commission submitted its observations on the amendment of the application contending that the time-limit for bringing an action against the statement of 15 January 1979 had expired in October 1979.

In its rejoinder of 19 June 1980 the Commission withdrew that objection.

On hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court (First Chamber) decided to open the oral procedure on admissibility without any preparatory inquiry.

II — Conclusions of the parties

1. The applicant claims that the Court should: I. As against the first defendant: 1. Declare unlawful and annul the salary statements issued by the first defendant for January and April 1979 and its decisions of 12 July 1979 and 28 September 1979 on his complaints in so far as they contain particulars of salary calculated on the basis of Regulations Nos 3085/78, 3086/78 and 3087/78 of the Council of the European Communities; 2. Rule that the applicant is entitled to remuneration which also takes account of the purchasing power of the Italian lira abroad as well as in the province of Varese from the time when the applicant was posted to Ispra, but from no later than January 1976; 3. In the alternative to 2. above, rule that the applicant is entitled to remuneration which also takes account of the purchasing power of the Italian lira in the province of Varese from the time at which the applicant was posted to Ispra, but from no later than January 1976; 4. In the alternative to 2. and 3. rule that the applicant is entitled to remuneration which takes account of the purchasing power of the Italian lira, taking Rome as the base, from the time at which the applicant was posted to Ispra, but from no later than January 1976; 5. Rule that from and including April 1979 the applicant has been entitled to remuneration corresponding to at least what he was paid in Italian lire up to and including March 1979 after making the same transfers under Article 17 of Annex VII to the Staff Regulations as up to March 1979 but increased by the percentage of the salary adjustment applied from April 1979 in accordance with Article 65 (1) of the Staff Regulations; 6. In the alternative to 5. above rule that from and including April 1979 the applicant has been entitled to remuneration calculated on the basis of the legal provisions in force and applicable until March 1979, Council Regulations Nos 3085 and 3086/78 thus not being applied, that is to say, in the same amount as the sum payable in Italian lire after the same transfers had been made in accordance with Article 17 of Annex VII to the Staff Regulations as up to March 1979; 7. In the alternative to 6. above rule that the applicant is entitled to remuneration which, after transfers of the same amounts in accordance with Article 17 of Annex VII to the Staff Regulations, leaves a disposable amount in lire corresponding to the amount in lire which the applicant had until March 1979, with of course an adjustment to the new legal situation arising out of Council Regulations Nos 3085 and 3086/78 having to be made during a transitional period from actual increases in salary in the future, but not from adjustments on the basis of Articles 64 and 65 (1) of the Staff Regulations; 8. As a final alternative to 6. and 7. above rule that the applicant is entitled to remuneration in accordance with Article 4 of Council Regulation No 3985/78; 9. Rule that the first defendant must correct the applicant's statement in accordance with the obligations under 2. to 8. above and pay the ensuing increased amount; II. As against both defendants: 1. Order the defendants to pay in Italian lire the amount of the difference resulting from the calculation in 1.9. above; III. 1. Order the defendants to compensate the applicant for his financial loss the amount of which the Court is asked to fix at interest of 6 % on the amount of arrears from the date on which they fell due to the date of payment; 2. Order the defendants to pay the costs. The Commission contends that the Court should: I. 1. Reject the conclusions as inadmissible as against the Commission in so far as they directly or indirectly challenge the correctness of the weighting for Italy applied to the applicant's salary statements for January and April 1979 by alleging Council Regulation No 3087/78 of 21 December 1978 to be vitiated by a mistake; 2. Reject the rest of the application as unfounded as far as the Commission is concerned; 3. Order the applicant to pay the costs. II. In the alternative to 1.1. grant leave for the Commission to give its views within a period to be fixed by the Court on the question of the merits of the claims set forth above; III. In the alternative to 1.2. reject the claim formulated in III. 1. as unfounded in so far as interest is claimed in respect of a period prior to the date on which the applicant lodged his complaint against the salary statement for April 1979. In its application for a decision on a preliminary objection the Council contends that the Court should: 1. Rule the application to be inadmissible in so far as it is directed against the Council; 2. Order the applicant to bear the costs. In his observations on the Council's application the applicant claims that the Court should : Dismiss the Council's application for a preliminary ruling on admisibility and only consider the admissibility of the application together with the substance as a whole.

Ill — Submissions and arguments of the parties

1. In his application the applicant claims that his action is admissible for the following reasons : — Jurisdiction of the Court: the acts adversely affecting him are Council regulations. But the Council acts on proposals from the Commission which may not claim that it merely applies the provisions adopted by the Council. However, the applicant considers the primary act adversely affecting him to be the salary statements for January and April 1979. As an incidental matter the lawfulness of the provisions on which they are based must be examined. — Time-limit for bringing an action: the complaint was submitted in good time as far as the Council regulations are concerned. Admittedly it does not expressly refer to the salary statement for April 1979. However the Commission rejected the complaint in so far as it was directed against the application of the regulations in question which shows that the complaint was indeed submitted on the lines indicated in the application and that it was so understood. — Nature of application: head of claim I is concerned with the issue of legality, with alternative claims set out in 1.2. to 8. As far as the claims set out in 1.2. to 7. are concerned, they should be regardes as being in the nature of an application for a declaration. They are related to the claim for payment in 1.8. Here it is a matter of settling a dispute concerning officials' rights of a financial character within the meaning of Article 91 of the Staff Regulations. Finally, the claims formulated under II and III are claims against the Commission for damages. — Interest in bringing the action: every official has a right to protection and assistance (see Articles 24, 58 and 76 of the Staff Regulations). That represents a written and unwritten subjective right. There should also be taken into consideration Article 62 of the Staff Regulations which contains the mandatory provision that an official may not waive his entitlement to remuneration. Conversely, the obligor vis-à-vis the official may not have the right to withhold or reduce the amount of an official's remuneration. From Article 64 of the Staff Regulations, which deals with the weighting and appears to flow from officials' general right to assistance, the applicant can also derive a subjective right to have the same living conditions as other officials, irrespective of his place of employment. Individual officials are entitled to expect living conditions to be continually monitored and determined, at any rate at regular intervals. Article 65 makes provision for a procedure to determine the variations which have occurred in any one year in the cost of living and thereby to determine the purchasing power of a currency in each Member State; it therefore has a compensating function on the one hand and is the basis for genuine salary increases. To that extent the Council's discretion is reduced to only one possible decision. Under Article 65 (2), in the event of a substantial change in the cost of living, the Council must decide what adjustments should be made and “if appropriate to apply them retrospectively”. The principle that acquired rights should not be infringed is also a subjective right; that right has been infringed by the amendment of Article 63 of the Staff Regulations and Article 17 of Annex VII. The applicant further relies on the principle of the equal treatment of officials. It follows from that principle that all officials in the service of the European institutions should receive the same pay for the same work. In any event it is not permissible for an official at Ispra to be in effect treated worse than his colleagues in Brussels or Luxembourg just because he has to stay in Ispra and not Brussels or Luxembourg. There is no other reason however for the unequal treatment. Moreover acquired rights of the applicant have been infringed as well. For many years he has received a salary on the basis of valid provisions of Community law. It was the adjustments in 1978 which first diminished his disposable salary. There was no cause for that reduction. The applicant contends that he is entitled to have his salary maintained at its present level. A reduction of the applicant's remuneration could have been made only on the basis of the provisions contained in the Treaty (Articles 51 (2), 86 (2) and 102 of the Staff Regulations). Relevant procedural provisions were not observed either; the regulations eventually adopted were not placed before the institutions and the various committees. Council Regulation No 3085/78 was adopted without consultation with other institutions as is required. The obligation to consult them follows from the first and second subparagraphs of Article 24 (1) of the Treaty establishing a single Council and a single Commission of the European Communities. Regulation No 3085/78 also expressly refers to Article 24. The effect of the breach of that obligation to enter into consultation is that the regulation is invalid. In this connection the applicant points out that Regulation No 3085/78, which was adopted by the Council was not the subject of any consultation and was not and could not be considered by the institutions which were required to be involved and with whom consultation was a condition precedent to its adoption in its final form with the possible consequences. The applicant further bases his claim on the solemn undertaking given by the Commission of the European Communities to the Parliament for the benefit of officials and therefore of the applicant that the real value of remuneration, pensions and allowances would not be in any way affected by the 1978 regulations. In the applicant's opinion such an undertaking alone opens the way to an action for payment or damages without its first being necessary to bring an action for annulment. Finally the applicant believes that the breach of the duty of assistance, of the principles of equal treatment and the protection of acquired rights and of the undertaking represents a breach of duty on the part of the defendants in disregard of their obligations and, in the case of the weighting as applicable to Italy, an ommission which they are obliged to make good.

2. In its application for a decision on a preliminary objection, the Council contends that an application based on Article 91 of the Staff Regulations is admissible only if it complies with the rules laid down in Articles 90 and 91 of the Staff Regulations, which this application does not. First, the applicant has never submitted to the Council a complaint within the meaning of Article 90 (2). Secondly, the Council cannot be regarded as the appointing authority. Therefore Regulations Nos 3085 and 3086/78 do not amount to acts adversely affecting the applicant which may be challenged by way of the action provided for in Article 91. Nor can action for a declaration that they are void be founded on Article 146 of the EAEC Treaty. Regulations Nos 3085 and 3086/78 apply to all officials of the Communities whilst Regulation No 3087/78 applies to all officials employed in Italy. Therefore it may not be maintained that they are “decisions” addressed to the applicant or decisions which although in the form of a regulation are of “direct and individual concern” to him. In any case the application was out of time. The Council considers the applicant's claim concerning non-contractual liability likewise inadmissible and recalls that the criteria which have been laid down in the decisions of the Court (judgment of 20 October 1975 in Case 9/75 Meyer-Burckhardt [1975] ECR 1171) as regards actions for damages between the Communities and their servants justify its conclusion that the action for damages is not inadmissible for the same reasons as those in the case of an action for annulment brought pursuant to Article 91 of the Staff Regulations. As to the request for a declaration that the regulations are inapplicable the Council takes the view that an objection of illegality under Article 156 of the EAEC Treaty (Article 184 of the EEC Treaty) is not in itself sufficient to enable the Council to be sued solely on the ground that it is the institution which adopted the measure alleged to be unlawful. A declaration that a regulation is inapplicable consequent upon an objection of illegality is merely an incidental remedy the effects of which are limited. The Court has already stated that the annulment of an individual decision based on the finding that the general decisions on which it is based are defective affects the consequences of the general decision only in so far as the latter are given specific expression in the individual decision which has been annulled. Thus, in cases concerning the Staff Regulations the Court has annulled individual decisions pursuant to Article 184 without declaring that the provisions of the Staff Regulations of Officials which constituted their legal basis were themselves void (judgments of 7 June 1972 in Sabbatini née Bertoni, Case 20/71 [1972] ECR 345 and Chollet, née Bandititi, Case 32/71 [1972] ECR 363).

3. In his observations on the Council's objection, the applicant points out that the application directed against that institution is not an application for annulment but only a claim for damages. There may be doubt whether the applicant is entitled to proceed against the Council under Anieles 90 and 91 of the Staff Regulations which as a lex specialis cannot prevent the application of Article 151 and the second paragraph of Article 188 of the EAEC Treaty. The applicant is therefore entitled to base his claims for damages on the latter and in so doing he is not obliged to fulfil the conditions laid down by Article 91. If, however, it is assumed that the conditions of Article 91 (2) must be fulfilled in every case, then the applicant must be considered as having fulfilled them by submitting to the appointing authority a complaint against the regulations adopted by the Council. That is the most that can be required of an official who, under the complaints procedure, is acting without legal representation. He should be able to assume that he is acting in accordance with the requirements of the law in relying on the terms of the Staff Regulations (Case 50/74 Asmussen [1975] ECR 1003). To preclude actions against the Council to establish liability for a wrongful act or omission on its part would amount in many cases to excluding altogether any judicial remedy for officials, aimed at obtaining compensation for the damage they have suffered. The applicant's claim that the regulations are inapplicable is purely an incidental one. Therefore the Council's observations on the request for a declaration that they are inapplicable are devoid of purpose.

4. In its defence the Commission raises no objection to the admissibility of the claim set out in I. 1. of the application in so far as the salary statement which it issued is challenged on the ground that the calculation of salary shown therein made on the basis of the Council regulations is wrong in law. From the point of view of the requirements as to admissibility in disputes between the administration and its staff, the claims put forward in 1.4. to 8, II and III related to the dispute over the legality of that measure do not give rise to any objection either, provided they refer to the alleged irregularity in that limited way. For the rest, the Commission believes that the claim in 1.1. is inadmissible. The contention that the salary statement was based on Regulation No 3087/78 is incorrect. The calculation of salary was made on the basis of Regulations Nos 3085 and 3086/78 alone. One of the contentions made in the application is that the applicant's rights were breached by the fact that the weighting applied to calculate his remuneration for April 1979 was wrong because it did not take sufficient account of the actual differences in prices Between Brussels and Varese. That argument necessarily rests on the contention that the statements for January to March 1979 based on Regulation No 3084/78, including the arrears granted in January 1979 in respect of the period from 1 July to 31 December 1978, were also wrong. However, those statements are not challenged in the application. Again, the complaint under Article 90 (2) of the Staff Regulations objecting to the statement for January 1979 concerned only the arrears granted pursuant to Regulation No 3087/78 in respect of the period from 1 January 1978 to 30 June 1978 and only in so far as those arrears were due from 1 January 1976. Since the periods laid down in the Staff Regulations for the lodging of complaints and appeals have expired, the statements for the months prior to April 1979 are no longer subject to appeal. That, in the Commission's view, makes the submissions challenging the amount of weighting applied to the statement for April 1979 inadmissible. The measure which the applicant contests for the purposes of Articles 90 and 91 of the Staff Regulations in regard to the alleged error in the weighting for Italy fixed by Regulations Nos 3084 and 3087/78 is the salary statement for January 1979 based on those two regulations. The applicant did not use the procedures available under those articles in order to challenge that statement. The statements for February and March based on Regulation No 3084/78 and the contested statement for April 1979 based on Regulation No 3086/78 did not adversely affect the applicant in any fresh way and could not afford any new cause of action. Moreover the claim that the weighting ought to have been increased with retroactive effect from January 1976 is debarred by the incontestability of the calculations of salary made since January 1976 on the basis of the weightings in force at the time. That would be the case even if the action was directed against the salary statement for January 1979. The retroactive increase in weightings from 1 January 1978 is not a sufficient ground for challenging the salary statements for January 1976 to December 1977 which are no longer subject to appeal. The claims for declarations in 1.2. to 1.4. of the application, the part of claim 1.9. referring thereto and the corresponding claim for payment in II of the application are closely bound up with the claim for annulment which the defendant considers to be inadmissible. Those claims do indeed fall within the category of claims made in disputes of a financial character in which the Court of Justice has unlimited jurisdiction under Article 91 (1) of the Staff Regulations. However, the first sentence of Article 91 (1) of the Staff Regulations restricts the scope of the second sentence and confers that jurisdiction only in a dispute within the meaning of the first sentence. If one of the conditions for the admissibility of that dispute is not fulfilled, as in this case, the Court ceases to have the jurisdiction conferred upon it under the second sentence of Article 91 (1). The claim in III. 1. of the application is also inadmissible to the same extent as the claim in 1.1. A party wishing to assert claims for damages may not thereby-circumvent the inadmissibility of an application directed against the same illegal measure and intended to produce the same financial result.

5. In his reply the applicant claims that he also challenged the January salary statement in his application. That is apparent from the amendment to the application, which amendment is admissible because it was made in good time and merely clarifies in a declaratory manner and this is anyhow apparent from the content of the application. If the amendment to the application is not accepted the applicant points out that a retroactive increase in the weighting can still be sought by making an application against the April salary statement. The Council may retroactively increase the weighting on a proposal by the Commission, especially after a ruling by the Court on a preliminary objection. Previous salary statements, as adverse decisions which are no longer subject to appeal, can be no bar to that. The applicant must have the opportunity at least once to seek and pursue by appeal a favourable decision on past events. The case-law on confirmatory administrative acts and measures does not therefore prevent the heads of claim from being admissible. Like the Staff Regulations it provides authority for a decision which either refuses to acknowledge that the salary statements sent to the plaintiff are not measures at all or denies them any validity, at any rate in respect of the prior or later periods, and refuses to allow them to be deemed to be adverse decisions. Therefore only the Commission's decision on the complaint made may be considered to be the adverse decision which makes the period for bringing an action start to run. That decision was challenged in good time. Moreover, where parts of salary are in arrear, direct actions for payment which are not directed against an adverse decision by the administration are also admissible in any event. Such actions may not be precluded by a salary statement. The Commission itself makes no assertion of general inadmissibility with regard to the applicant's claims for a declaration and for payment. It claims rather that they are inadmissible because they are closely tied to the claims for annulment and for that reason are inadmissible as they are. The applicant contends that since the claims for annulment are not inadmissible the Commission's ground for alleging admissibility is invalid. As regards the claim for damages, the Commission once again simply relies on the inadmissibility of the claim for annulment. Since the claim for annulment is admissible that objection of the Commission cannot be upheld. The applicant in addition asks the Court to consider whether under its judgment in Case 9/75 cited above a general action to establish the liability of an institution for a wrongful act or omission is possible under Article 151 and the second paragraph of Article 188 of the EAEC Treaty besides actions pursuant to Article 152 of the EAEC Treaty and also Article 91 of the Staff Regulations and whether they may be brought without regard to the conditions laid down in Article 91 of the Staff Regulations. With the Council's objections also in mind, the applicant makes the further point with regard to the admissibility of the action to establish liability for a wrongful act or omission that the Court abandoned its original authority (Case 25/62 Plaumann [1963] ECR 95) whereby an institution's liability for a wrongful act or omission by reason of illegal measures may be asserted only after those measures have been annulled. It held in Case 59/65 Schreckenberg [1966] ECR 543 that an applicant may not, by means of a claim to establish liability for a wrongful act or omission, circumvent the inadmissibility of an application which concerns the same illegality and has the same financial end in view. From that it follows that it is not possible to claim in an action to establish liability for a wrongful act or omission that which cannot be obtained in an action for annulment. The Court has in the meantime not followed that authority either and now holds that an action for damages is an independent form of action, with a particular purpose to fulfil within the system of legal remedies, and subject to conditions on its use arising out of its specific aim. The purpose of actions to establish liability for a wrongful act or omission is not to have specific measures annulled but only to obtain damages. This is seen in particular where a measure affects several persons and causes damage to only one of them. That person may seek damages for the damage caused even if an action for annulment would achieve a similar result. Apart from that, however, the measure remains in force. That means that the admissibility of the claim for damages is not effected by the existence of other remedies or by the fact that the claim which is made overlaps with that which could be obtained through another action.

6. In its rejoinder the Commission withdraws its objections of inadmissibility made against the amendment to the application. It does however maintain that the submissions as to the insufficiency of the weighting for Italy are not admissible in so far as they are not intended merely to remove the disadvantages caused to the applicant by the change in the system of making transfers under Article 17 of Annex VII to the Staff Regulations. Notwithstanding the arguments contained in the reply, the Commission remains of the opinion that from April 1979 the salary statement merely confirmed the previous statements on this point and is therefore not a cause for complaint which makes the periods laid down in Articles 90 and 91 of the Staff Regulations start to run afresh. The case-law whereby the time for bringing an action when the system of remuneration is revised starts to run from the first monthly salary statement, if the decision taken is clear from the relevant notification of it, accords with the requirement of legal certainty which is essential for the proper functioning of an international organization which has officials in more than 80 places of employment. That requirement does not conflict with the need for officials to have legal protection since they are given full details about any such reforms of the system of remuneration. If they do not then take the opportunity afforded by the complaint procedure to obtain a legal remedy they may not invoke the ensuing loss of their right of appeal granted to them by Article 91 of the Staff Regulations. That is particularly so if, as in this case, a complaint is submitted and the claim made therein is unmistakably circumscribed and it does not later accord with the claims made in the application to the Court. The general inadequacy of the weighting which is alleged in the application was not mentioned in the complaint of 21 June 1979 objecting to the salary statement for April 1979. The complaint objected only to the reduction of the disposable amount of remuneration in lire which stemmed from the reform of the transfer system provided for by Article 17 of Annex VII to the Staff Regulations. Therefore the proper preliminary procedure under Article 90 of the Staff Regulations which is required for the Court to rule on the substance has not taken place. As to the retroactive effect of the increase in weighting, the Commission contends that the adoption and application of Regulation No 3087/78 would not for a first time have breached the right to have a weighting applied and calculated in the manner sought by the applicant. It would have been breached each time salary statements were issued and sent to the applicant between January 1976 and December 1977. However, the applicant never lodged a complaint against those statements in 1976 and 1977, let alone an action. Had the applicant gone to law and at that time obtained judicial recognition of the rights which he now asserts, that would have had no effect on the statements prior to the one contested. The Community institutions did not in the exercise of their powers undertake a reform of the system of remuneration because the system hitherto in force was illegal but because it was capable of being improved. The carrying out of a legal reform of that nature is not a sufficient ground for submitting to judicial review for the first time a state of affairs created by decisions which are no longer subject to appeal. In the Commission's view that principle must apply where a legal reform has a limited retroactive effect as in this case. It is difficult to see why previous states of affairs to which a limited retroactive effect does not apply should be treated differently from previous states of affairs which are not covered by a legal reform applying only to the future.

IV — Oral procedure

The parties presented oral argument at the sittings on 19 and 20 February 1981.

The Advocate General delivered his opinion at the sitting on 14 May 1981.

Decision

1. By application lodged at the Court Registry on 11 October 1979, the applicant, Anton Birke, an official of the Commission employed at the Common Research Centre at Ispra in Italy, brought an action under Article 91 of the Staff Regulations of Officials (hereinafter referred to as “the Staff Regulations”) against both the Council and the Commission for the annulment of the Commission's decisions determining the applicant's remuneration for January and April 1979 and of the decisions rejecting the applicant's complaints.

2. In the version in force until the end of 1978 Articles 63 and 64 of the Staff Regulations provided that: “An official's remuneration shall be expressed in Belgian francs. It shall be paid in the currency of the country in which the official performs his duties. Remuneration paid in a currency other than Belgian francs shall be calculated on the basis of the par values accepted by the International Monetary Fund on 1 January 1965. An official's remuneration expressed in Belgian francs ... shall be weighted at a rate above, below or equal to 100%, depending on living conditions in the various places of employment. The weighting applicable to the remuneration of officials employed at the provisional seats of the Communities shall be equal to 100% as at 1 January 1962.”

3. In accordance with Article 17 of Annex VII to the Staff Regulations an official may have part of his emoluments transferred, either regularly or on an exceptional basis, to a country other than the one in which he performs his duties. Until 31 March 1979 Article 17 (4) provided that such transfers were to be made through the institution to which the official belonged “at the official exchange rate ruling on the date of transfer”. The “official rate of exchange” within the meaning of that provision was the last parity accepted by the International Monetary Fund, which had not been altered since 1 November 1969 (for example, BFR 13.66 to DM 1).

4. On 21 December 1978 the Council adopted Regulation (Euratom, ECSC, EEC) No 3085/78 (Official Journal L 369, p. 6), Article 1 of which states that Article 63 of the Staff Regulations is replaced by the following:

“Officials' remuneration shall be expressed in Belgian francs. It shall be paid in the currency of the country in which the official performs his duties.

Remuneration paid in a currency other than Belgian francs shall be calculated on the basis of the exchange rates used for the implementation of the general budget of the European Communities on 1 July 1978.

This date shall be changed, at the time of the annual review of remuneration provided for in Article 65, by the Council acting by a qualified majority upon a proposal from the Commission as provided in the first indent of the second subparagraph of Articles 148 (2) of the EEC Treaty and of 118 (2) of the Euratom Treaty.

Without prejudice to the application of Articles 64 and 65, the weightings fixed pursuant to these articles shall, whenever the above date is changed, be adjusted by the Council, which, acting in accordance with the procedure mentioned in the third paragraph, shall correct the effect of the variation in the Belgian franc with respect to the rates referred to in the second paragraph.”

5. Article 2 of the regulation provides :

“Article 17 of Annex VII shall be replaced by the following:

Article 17

1. Payment shall be made to each official at the place and in the currency of the country where he carries out his duties.

2. Under the terms laid down in rules drawn up by common agreement by the institutions of the Communities, after consultation of the Staff Regulations Committee, an official may:

a) through the institution which he serves, regularly have part of his emoluments transferred up to a maximum amount equal to his expatriation or foreign residence allowance:

either in the currency of the Member State of which he is a national,

or in the currency of the Member State in which either his own domicile or the place of residence of a dependent relative is located,

or in the currency of his previous country of employment or of the country in which his institution has its seat, provided that the official in question has been assigned to a post outside the territory of the European Communities;

b) have regular transfers made in excess of the maximum stated at the beginning of paragraph (a) provided that they are intended to cover expenditure arising in particular out of commitments proved to have been regularly undertaken by the official outside the country where the institution has its seat or outside the country where he carries out his duties.

c) be authorized, in very exceptional circumstances and for good reasons supported by evidence, to have transferred, apart from the aforementioned regular transfers, sums which he may wish to have available in the currencies referred to in paragraph (a).

3. The transfers provided for in paragraph (2) shall be made at the exchange rate specified in the second paragraph of Article 63 of the Staff Regulations, the amounts transferred shall be multiplied by a coefficient representing the difference between the weighting for the country in which the official is employed.”

6. Article 4 of the regulation provides that the regulation is to enter into force on 1 January 1979 and that it is to apply from 1 April 1979.

7. On 21 December 1978 the Council also adopted Regulation (Euratom, ECSC, EEC) No 3086/78 adjusting the weightings applicable to the remuneration and pensions of Officials and Other Servants of the European Communities following the amendment of the provisions of the Staff Regulations concerning the monetary parities to be used in implementing the Staff Regulations. Article 1 of the regulation fixes inter alia the weighting applicable to remuneration at 74.3 for Italy and at 98.7 for the Federal Republic of Germany.

8. The applicant had regularly transferred, through the Commission, pursuant to Article 17 of Annex VII to the Staff Regulations, specific amounts to the Federal Republic of Germany. In March 1979 the equivalent in Italian lire of the sums regularly transferred through the Commission amounted to LIT 652 840.

9. As a result of the application of the new provisions cited above, after 1 April 1979 the cost of those transfers, expressed in Italian lire, increased to LIT 1120595 and the balance of his remuneration after the transfers was consequently reduced.

10. From 1975 officials employed at the Joint Research Centre at Ispra complained to the Commission that the cost of living in Italy had considerably increased and accordingly requested the weighting for Italy to be revised. They complained in particular that in their opinion the cost of living at Varese was higher than in Rome and they urged the Commission to take account of that difference when fixing the weighting applicable to their remuneration.

11. In 1976, 1977 and 1978 consultations on technical matters took place between representatives of the staff and those of the Commission and Council but no agreement was reached on the amount by which the weighting should be increased or on the date to which it should have retroactive effect. In the meantime by a series of regulations the Council had increased the weighting for Italy as from 1 January 1976 to 176.6 as against 157.8 for Belgium, as from 1 July 1976 to 189.3 as against 157.8 for Belgium, as from 1 January 1977 to 120 as against 100 for Belgium, as from 1 January 1977 to 132.1 as against 104.5 for Belgium, and as from 1 July 1977 to 130.2 as against 100 for Belgium. In most cases those regulations had a retroactive effect of about six months.

12. On 26 June 1978 the Council adopted Regulation No 1461/78 (Official Journal L 176, p. 1) by which the weighting for Italy was fixed at 137.6 as against 102.3 for Belgium. The recitals in the preamble to that regulation state that “a decision on the Commission proposal for the correction of the weightings for three countries of employment will be taken only in the light of a study to be carried out by the Commission”.

13. After a fresh inquiry by the Statistical Office of the Communities and discussions between the Commission and the Council, on 10 November 1978 the Commission proposed to the Council to fix the weighting for Italy at 146.4 as against 102.3 for Belgium with retroactive effect from 1 January 1978. That proposal was accepted by the Council by the adoption of Regulation No 3087/78 of 21 December 1978 (Official Journal L 369, p. 10). On the same date the Council adopted Regulation No 3084/78 (Official Journal L 369, p. 1) fixing the weighting for Italy at 146.8 as against 100 for Belgium as from 1 July 1978.

14. The staff challenged Regulation No 3087/78 in so far as it fixed the weighting at a level which did not take account of the cost of living at Varese and gave that weighting retroactive effect only to 1 January 1978.

15. In January 1979 the Commission paid the arrears of remuneration due under Regulations Nos 3087/78 and 3084/78.

16. On 26 March 1979 the applicant submitted to the Commission a complaint under Article 90 (2) of the Staff Regulations against Regulations Nos 3085/78 and 3086/78. On the same date he submitted to the Commission a request under Article 90 (1) of the Staff Regulations that the Commission immediately adopt the measures necessary to make up for the loss of purchasing power in 1976 and 1977. That request concerned Regulations No 3087/78.

17. By a letter of 4 April 1979 the applicant submitted a complaint under Article 90 (2) of the Staff Regulations concerning the retroactive effect of the weighting for Italy resulting from Regulation No 3087/78. On 13 June the applicant submitted a complaint against the application of Regulations Nos 3085/78 and 3086/78 reflected in his salary statement for April.

18. By letters of 12 July and 28 September 1979 the Commission rejected those complaints.

19. The applicant thereupon brought this action against the Council and the Commission. In substance he asks the Court to: (1) Annul the salary statements for January and April 1979 and the decisions on his complaints in so far as they contain particulars of salary calculated on the basis of Council Regulations Nos 3085/78, 3086/78 and 3087/78; (2) Declare that the applicant is entitled to remuneration which also takes account of the purchasing power of the Italian lira abroad as well as at Varese or, in the alternative, in the province of Varese or, in the further alternative, in Rome from the time at which the applicant was posted to Ispra, but from no later than January 1976; (3) Declare that since April 1979 the applicant has been entitled to remuneration corresponding to at least what he was paid in Italian lire up to and including March 1979 after making the same transfers under Article 17 of Annex VII to the Staff Regulations as those made up to March 1979 but increased by the percentage of the salary adjustment applied from April 1979 in accordance with Article 65 (1) of the Staff Regulations; (4) Declare Regulations Nos 3085/78 and 3086/78 are inapplicable to the transfers regularly made by the applicant; (5) Order the defendants to pay damages together with interest thereon for the financial loss suffered by the applicant as a result of the application of the regulations in issue.

20. By a submission dated 11 January 1980 the Council made an objection as to the admissibility of the application. According to the Council the following three actions are discernible in the application: (1) an action for the annulment of Regulations Nos 3085/78 and 3086/78, (2) an action for damages for non-contractual liability and (3) a claim that the regulations are inapplicable.

21. As far as the action for annulment is concerned, the Council sees two possibilities, namely (a) an action based on Article 91 of the Staff Regulations and (b) an action based on Article 146 of the EAEC Treaty which corresponds to Article 173 of the EEC Treaty. In the first case the application is admissible only if it complies with the rules laid down by Articles 90 and 91 of the Staff Regulations, which this application does not. The applicant has never submitted to the Council a complaint within the meaning of Article 90 (2) of the Staff Regulations. Secondly the Council cannot be regarded as the appointing authority in the applicant's case. Article 91 of the Staff Regulations permits an action to be brought only against acts adversely affecting officials which can emanate only from the appointing authority.

22. In the second case an action for annulment cannot be founded on Article 146 of the EAEC Treaty. Regulations Nos 3085/78 and 3086/78 apply to all Community officials whereas Regulation No 3087/78 applies to all officials employed in Italy. Therefore it is not possible to contend that they are decisions addressed to the applicant or decisions of direct and individual concern to him although in the form of a regulation. The Council furthermore claims that the action was not brought within two months of the publication of the regulations in question as required by the third paragraph of Article 173.

23. The action for damages is not admissible either. According to the case-law of the Court, where such a claim originates in the relationship of employment between the persons concerned and the institution, it lies outside the scope of Articles 178 and 215 of the Treaty as far as its admissibility in particular is concerned.

24. The claim that the regulations are inapplicable appears to be founded on Article 156 of the EAEC Treaty which corresponds to Article 184 of the EEC Treaty. That provision enables any party to invoke before the Court the inapplicability of a regulation in proceedings in which it is in issue and in order to do so to plead the grounds specified in the first paragraph of Article 173 of the EEC Treaty. However, it is apparent from the decisions of the Court that a declaration of inapplicability under Article 184 of the Treaty is an incidental remedy of limited effect. The mere possibility of a declaration of inapplicability does not open the way to proceedings against the Council just because it is the institution which adopted the act alleged to be unlawful.

25. In reply to that objection the applicant claims that the action against the Council is not an action for annulment but only for damages. If Articles 90 and 91 of the Staff Regulations are not applicable to the relationship between the applicant and the Council, even as a lex specialis those provisions cannot exclude the application of Article 151 and the second paragraph of Article 188 of the EAEC Treaty. The applicant therefore takes the view that he may base his claims for damages on those articles.

26. The applicant believes that, if it is assumed that the requirements of Article 90 (2) of the Staff Regulations must be fulfilled in every case, then it must be said that the applicant fulfils those conditions because he submitted a complaint to the appointing authority against the regulations adopted by the Council. He claims that the Council is contradicting itself when it rules out Articles 90 and 91 of the Staff Regulations for an action for annulment and yet wishes them to apply to an action for damages. The applicant invokes the inapplicability of the regulations only as an incidental claim.

27. The objection raised by the Council must be upheld. An action for annulment of Regulation Nos 3085/78 and 3086/78 of the Council is inadmissible, since the regulations in question are of general application and cannot be assimilated to decisions which, although taken in the form of regulations, are of direct and individual concern to the applicants. Moreover, even if such an action against the Council were admissible in that respect it would nevertheless be inadmissible because it is out of time, having been lodged after the expiry of the period laid down in the third paragraph of Article 146 of the EAEC Treaty, which corresponds to the third paragraph of Article 173 of the EEC Treaty.

28. The applicant's claim for compensation seeks to obtain precisely the same results as those which he would obtain from the annulment of the regulations. The Court has held on a number of occasions, in particular in its judgment of 15 December 1966 (Schreckenberg, Case 59/65 [1966] ECR 543) that 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 which has the same financial end in view. The claim for compensation is therefore inadmissible.

29. In the circumstances the application is inadmissible in so far as it is directed against the Council and must therefore be dismissed.

30. In its defence the Commission claimed the application to be inadmissible only in regard to some of the applicant's heads of claim. The Court (First Chamber) has decided not to rule on the questions of the admissibility of the application as directed against the Commission before the parties submit arguments on the substance and the documents relating thereto.

Costs

31. Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs.

32. However, under Article 70 of the Rules of Procedure the costs incurred by the institutions in proceedings brought by employees of the Communities are to be borne by those institutions.

On those grounds, THE COURT (First Chamber) hereby:

1 Dismisses the application as inadmissible in so far as it is directed against the Council.

2 Orders the applicant and the Council to bear their own costs.