C-167/80

JUDGMENT OF 4. 6. 1981 — CASE 167/80 CURTIS v COMMISSION AND PARLIAMENT

CELEX: 61980CJ0167
Datum: 1981-06-04
Källa: eur-lex.europa.eu

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

gives the following

JUDGMENT

Facts and Issues

The facts, the course of the procedure, the conclusions and arguments of the parties may be summarized as follows :

I — Facts and procedure

The applicant is already a party to the proceedings in the same matter which are pending before the Court (Case 154/79 Stephen Biller and Others v European Parliament) but which were commenced before the issue of the notice which is the subject of the present application.

This notice, a letter dated 22 October 1979, signed by the Head of the Pensions, Remunerations, Various Allowances Division, notified the applicant that by application of Article 4 of Council Regulation No 3085/78, the amount of his pension would be reduced by 10 % each month, from October 1979 and would amount to BFR 8398 as from July 1980.

By letter dated 8 January 1980 the applicant submitted a complaint to the Commission under Article 90 (2) of the Staff Regulations directed against “Council Regulations Nos 3085/78 and 3086/78 and the notice applying Council Regulation 3085/78, dated 22. 10. 1979”.

On the same date the applicant submitted an identical complaint to the Parliament. At the time of the present application of the Court no reply to those complaints had been received by the applicant. The applicant considers that they must be taken to have been rejected by implied decisions.

Each of the defendants presented an objection of inadmissibility under Article 91 of the Rules of Procedure.

Upon 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 the issue of admissibility without holding any preliminary inquiry.

II — Conclusions of the parties

The applicant claims that the Court should:

“(1) declare Regulations Nos 3085/78 and 3086/78 inapplicable; (2) further or in the alternative, annul the notice of 22 October 1979 and/or the decision(s) of the defendant(s) rejecting the applicant's complaint; (3) order the defendant(s) to pay the applicant the sums which would have been paid to the applicant if his pension had not been reduced by the aforesaid regulations together with interest thereon at the rate of 1 % above the United Kingdom minimum lending rate or in the alternative at such other rate as the Court shall determine; (4) in any event order the defendant(s) to pay the costs.”

The European Parliament requests the Court:

1) to dismiss the application as inadmissible;

2) to order the applicant to pay his own costs.

The Commission requests the Court:

1) to dismiss the application as inadmissible;

2) to order the applicant to pay his own costs.

III — Submissions and arguments of the parties

The applicant submits that the notice of 22 October 1979 and the decisions rejecting the complaints are unlawful by reason of the illegality of the regulations themselves. The grounds for the illegality of the regulations are set out in Case 154/79 Biller and Others v European Parliament and the applicant refers the Court to the application and reply in that case for the applicant's submissions.

The European Parliament points out that the time the applicant submitted his first complaint by letter of 30 June 1979, no act adversely affecting him did, in fact, exist. The Council regulations in question entered into force on 1 January 1979 and took effect on 1 April 1979 but they became applicable to the applicant for the first time on 1 October 1979.

When the applicant instituted on 3 October 1979 the proceedings in Case 154/79, the time-limit of four months within which the appointing authority should reply to the complaint according to Article 90 (2) of the Staff Regulations had not yet expired. Taken in conjunction with the fact that the applicant had not received a reply to his first complaint, this made his application in Case 154/79 premature in the sense of Article 91 of the Staff Regulations.

The applicant submitted a second complaint on 16 January 1980 and lodged the present application on 18 July 1980 which essentially repeats the arguments and conclusions put forward in Case 154/79. Since the issues in the present application are, in fact, the same as those raised in Case 154/79, the European Parliament submits that the application should be rejected on two grounds.

Firstly, the applicant is acting contrary to the system of appeals as laid down in Articles 90 and 91 of the Staff Regulations in so far as he seeks to present two successive appeals to the Court having one and the same object. Secondly, it is not in conformity with Article 42 (2) of the Rules of Procedure which provides that no fresh issue may be raised in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the written procedure. The applicant in lodging the present application, seeks, by ways of Articles 90 and 91 of the Staff Regulations, to evade the intent or object of the Rules of Procedure.

In its objection of inadmissibility the European Parliament argues that the applicant's second complaint which it received on 16 January 1980 was not submitted within the period of three months as required by Article 90 of the Staff Regulations. The complaint was directed against the letter of 22 October 1979 from the competent division of the Commission. This letter does not constitute an act within the meaning of Article 91 of the Staff Regulations since it merely explains the financial consequences of the application to the applicant of the Council Regulations in question. The time-limit for submitting a complaint under Article 90 started to run when the applicant received the letter of 4 September 1979 confirming the application to him of Regulations Nos 3085/78 and 3086/78. Consequently, the second complaint received by the European Parliament was not submitted within the period of three months as required by Article 90 of the Staff Regulations.

The applicant, in his observations to the European Parliament's objection as to the admissibility of the application, points out that he was induced to make a second application to the Court by the submissions of the defendants themselves. In Case 154/79 the Parliament objected to the admissibility of the action on the ground that the applicant had no standing to challenge regulations but only individual measures. In Case 153/79, Gordon Craigie Bowden and Others v Commission, in which the issues are identical to those of Case 154/79, the Commission asserted that in the circumstances of the present case the correct course for the applicant was to challenge the first monthly pension payment in which the offending regulations were applied to him. This the applicant has now done. He has challenged, not the payment slip for October 1979 which simply reflects the decision in issue, but the decision itself, contained in the Commission's letter of 22 October 1979 which he received at the same time, since it is obvious that, where the letter notifying the applicant of a decision is sent at the same time as the monthly statement, the appropriate measure for the applicant to challenge is the decision recorded in the letter (judgment of 8 February 1973, Case 56/72, Goeth v Commission [1973] ECR 181).

The applicant argues that Article 42 of the Court's Rules of Procedure is not relevant to the present application since these proceedings are new. Their aim is the annulment of a decision which had not been taken when the application in Case 154/79 was brought.

The applicant rejects the European Parliament's argument that the application is out of time because it should have been directed against the letter from the Commission of 4 September 1979. That letter did not set out the manner in which the regulations in question were to be applied to the applicant. The decisive letter was that of 22 October 1979. Even if the letter of 4 September 1979 had set out the manner in which the applicant's pension would be affected by Regulations Nos 3085/78 and 3086/78, the applicant would not have been able to challenge that letter in so far as it constituted an explanation, not a decision adversely affecting him (judgment of 10 December 1969, Case 32/68, Grasselli v Commission [1969] ECR 505).

The Commission in its objection of inadmissibility submits that the application is inadmissible on two grounds:

the Commission is not the competent appointing authority as the applicant being temporary staff of the European Parliament depended upon that institution;

the application is not directed against an act adversely affecting the applicant. The only such act is the pay slip of October 1979; the applicant did not ask that this act be annulled.

The Commission argues that the application can only be directed against the European Parliament since that is the institution to which the applicant was attached (judgment of 7 April 1965, Case 28/24, Müller v Council of the EEC and Council of the EAEC [1965] ECR 237). Article 40 of Annex VIII to the Staff Regulations provides:

“The institution in which the official was serving at the time when his active employment ended shall be responsible for calculating the amount of retirement pension ...”

Although the notice dated 22 October 1979 was issued by the Commission, this does not mean that the Commission is the appointing authority. By virtue of Article 45 of Annex VIII to the Staff Regulations, benefits under the pension scheme are, on behalf of the Communities, provided by the institution designated by the budgetary authorities. It appears from the budget that the institution designated to pay all the pensions owed by the various institutions of the Communities is the Commission.

Therefore the Commission was acting on behalf of the Parliament when it made out the accounts of pensions of all the former officials and other employees of the European Communities affected by Regulations Nos 3085/78 and 3086/78.

The applicant seeks the annulment of the notice dated 22 October 1979 in which the Commission, acting on behalf of the Parliament gave the applicant the account of the future amount of his pension. This notice does not constitute an act adversely affecting the applicant within the meaning of Article 91 (1) of the Staff Regulations. The act adversely affecting the applicant is his payment slip of October 1979 which showed, for the first time, a reduction in the amount of his pension due to the application of Regulations Nos 3085/78 and 3086/78. It is against this slip that the applicant should have directed his appeal.

The applicant cannot avoid having his application dismissed as inadmissible by claiming that it is aimed at having Regulations Nos 3085/78 and 3086/78 declared inapplicable. Such a conclusion could only be based on Article 184 which does not provide for an autonomous action before the Court. The essential objective of Article 184 is to oust the two-month limitation period laid down in Article 173 of the Treaty by allowing a party to plead inapplicability of a Council Regulation at any time, on condition that his action is properly before the Court under some other article of the Treaty (judgment of 14 December 1962, Cases 31 and 32/62, Milchwerke H. Wöhrmann und Sohn and A. Lütticke v Commission [1962] ECR at p. 501 and p. 507; judgment of 6 March 1979, Case 92/78, Simmenthal v Commission [1979] ECR 777).

It is not possible in this case for the application to be based upon Article 179 of the EEC Treaty, because it is directed against an act which is not adversely affecting the applicant. A Council regulation cannot be considered to constitute an act adversely affecting the person concerned (order of 4 October 1979, Case 48/79, Ooms v Commission [1979] ECR 3121).

The Commission further alleges that the applicant cannot submit that he is seeking the annulment of an implicit decision rejecting his complaint. Such a decision, being of a confirmative character is no longer an act adversely affecting the applicant.

The applicant in his observations on the Commission's objection of inadmissibility submits that the objection is unfounded.

The applicant accepts that the Commission is not the appointing authority but it points out that there is nothing in Community law which says that an application can be made only against the appointing authority. In any event, an application is not made against art appointing authority, it has to be made against an institution. The appropriate institution is the institution from which the act having an adverse effect emanated, which is, in the present case, the Commission.

The applicant accepts that the institution in which an official was serving at the time when his active employment ended shall be responsible for calculating his pension. However the applicant is not complaining about the calculation of his pension, his complaint concerns a decision reducing his pension, a decision which was notified to him by the Commission.

The applicant contends that it is appropriate for him to challenge the decision recorded in a letter sent at the same time as the first monthly statement of his pension rather than the statement itself.

IV — Oral procedure

The parties presented oral argument before the Court on the 19 and 20 February 1981.

The Advocate General delivered his opinion on 14 May 1981.

Decision

1. By application lodged at the Court Registry on 18 July 1980 under Article 91 of the Staff Regulations of Officials against the European Parliament and the Commission of the European Communities the applicant, a former member of the temporary staff of the European Parliament, claims that the Court should: 1. Declare that Council Regulations Nos 3085/78 and 3086/78 of 21 December 1978 do not apply to him. 2. In the alternative, annul the notice of 22 October 1979 of the Commission determining the manner in which the applicant's pension was to be reduced with effect from 1 October 1979 and the implied decisions of the defendants rejecting the complaints of the applicant of 8 January 1980 submitted under Article 90 (2) of the Staff Regulations of Officials. 3. Order the defendants to pay the applicant the sums which would have been paid to him if his pension had not been reduced by the aforesaid regulations together with interest thereon at the rate of 1% above the United Kingdom minimum lending rate or such other rate as the Court shall determine. 4. Order the defendants to pay the costs.

2. It was provided in Articles 63 and 64 of the Staff Regulations of Officials, in the version applicable up to the end of the year 1978:

“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. Article 82 of the Staff Regulations provides that “the pensions (of former officials) shall be calculated by reference to salary scales in force on the first day of the month in which entitlement commences. They shall be weighted in the manner provided for in Article 64 and Article 65 (2) for the country of the Communities where the person entitled to the pension declares his home to be”.

4. The third paragraph of Article 45 of Annex VIII (Pension scheme) provides that: “Beneficiaries may elect to have their pensions paid in the currency either of their country of origin or of their country of residence or of the country where the institution to which the official belonged has its seat: their choice shall remain operative for at least two years.”

5. On 21 December 1978 the Council adopted Regulation (Euratom, ECSC, EEC) No 3085/78 (Official Journal 1978, 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.”

6. According to the provisions of Article 4 of the regulation it shall enter into force on 1 January 1979 and shall apply from 1 April 1979. However, for pensions and allowances of which the net amount becomes less than that under the existing arrangements, the regulation shall only apply from 1 October 1979. From that date the difference between the net amounts resulting from the implementation of this regulation and those received in September 1979 shall be reduced by 1/10 per month.

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 (2) of the regulation fixes inter alia the weightings applicable to pensions in accordance with the second subparagraph of Article 82 (1) of the Staff Regulations at 62.5 for the United Kingdom.

8. By a letter of 22 October 1979 the Commission, which was designated by the budgetary authorities of the Communities to provide the pension benefits, notified the applicant that by the application of Article 4 of Regulation No 3086/78 the amount of his pension would fall from BFR 18256 in October 1979 to BFR 8398 in July 1980 and that that latter amount would be achieved by progressive reduction.

9. Pursuant to Article 90 (2) of the Staff Regulations of Officials the applicant lodged complaints against that letter with the European Parliament and the Commission, by letters of 8 January 1980. Since he did not receive any reply to these complaints he instituted these proceedings.

The objection of inadmissibility raised by the Commission

10. By a document dated 30 September 1980 the Commission raised an objection of inadmissibility under Article 91 of the Rules of Procedure. According to it the application is inadmissible on the grounds (1) that the Commission is not the appointing authority and (2) that the application is not directed against an act adversely affecting the applicant. Proceedings brought under Article 91 must be against the appointing authority. It is clear from Article 45 of Annex VIII to the Staff Regulations that it is the institution in which the official was serving at the time when his active employment ended, in this case the European Parliament, which is responsible for calculating the amount of pension. The Commission, in calculating the pensions subsequently to be received by each of the former officials and servants of the Communities affected by the new scheme, was merely acting as the agent of the Parliament under Article 45 of Annex VIII to the Staff Regulations. The letter of 22 October 1979 does not constitute a measure adversely affecting the applicant for the purposes of the Staff Regulations; the payment slip for October 1979 constitutes the act adversely affecting the applicant against which he should have instituted the proceedings.

11. By a document of 11 November 1980 the applicant submits that the objection should be rejected and alternatively that the issue of admissibility should be reserved until the substance of the case has been heard. According to him, the application is directed against the decision to reduce his pension, a decision which was notified to him by the Commission. Furthermore, the communication of the Commission constitutes or contains the act applying the contested regulations to the applicant. He may thus challenge that act and in doing so found on the unlawfulness of the regulations.

12. The first submission of the Commission is well founded. Articles 90 and 91 of the Staff Regulations show that the appeal referred to in Article 91 may be directed only against the appointing authority, in this case the European Parliament. The application against the Commission is therefore inadmissible. It is accordingly unnecessary to consider the second submission.

The objection of inadmissibility raised by the Parliament

13. By a document dated 30 October 1980 the European Parliament submitted an objection of inadmissibility under Article 91 of the Rules of Procedure. The applicant and 11 officials of the Parliament lodged an application (Case 154/79) before the expiry of the period of four months within which the appointing authority is required under Article 90 of the Staff Regulations to reply to a complaint submitted by an applicant. The applicant submitted a second complaint on 16 January 1980 and subsequently, on 18 July 1980, instituted these proceedings. This way of proceeding is, first, contrary to the system of appeals as laid down in Articles 90 and 91 of the Staff Regulations in so far as it would allow two successive appeals to the Court having one and the same object. Secondly, it is not in conformity with the spirit of Article 42 of the Rules of Procedure, according to which no fresh issue may in principle be raised in the course of proceedings.

14. Furthermore, the complaint received by the Parliament on 16 January 1980 is out of time. It should have been submitted within a period of three months which started to run from the time when the applicant received the letter of 4 September 1979 from the Commission which confirmed that the above-mentioned regulations of the Council were applicable to the applicant as from 1 October 1979.

15. In his reply the applicant challenges the validity of the submissions of the Parliament. The present application is not contrary to the system of appeals laid down in Articles 90 and 91 of the Staff Regulations. In Case 154/79 the Parliament objected to the admissibility of the action on the ground that the applicants had no standing to challenge regulations but only individual measures and that they could not overcome that lack of standing by making a complaint directed against a regulation. Consequently the applicant is fully justified in bringing a second application to preserve his position against the individual act affecting him. Article 42 of the Rules of Procedure is not relevant here since these are new proceedings.

16. The second submission is also unfounded. The letter of 4 September 1979 did not in any way set out the manner in which the offending regulations were to be applied to the applicant and were only an attempt to justify the adoption of the regulations in question. The decisive letter was that of 22 October 1979 which decided that the regulations in question were to apply to the calculation of the applicant's pension.

17. The objection of the Parliament must be dismissed. First, there is nothing in the system of appeals referred to in Articles 90 and 91 of the Staff Regulations which precludes the introduction of a second application against an act adversely affecting the applicant in the course of the procedure of another application against an act other than that concerned in the second application and this applies a fortiori where the first application is liable to be declared inadmissible because it was lodged prematurely. With regard to the alleged lateness of the complaint the argument of the applicant to the effect that the letter of 4 September does not constitute a decision must be upheld. The first decision applying the regulations to the applicant was that contained in the letter of 22 October 1979. The application against the European Parliament is thus admissible.

Costs

18. Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs. Since the applicant has failed in his action in so far as it is directed against the Commission, he must be ordered to pay the costs. Nevertheless, under Article 70 of the Rules of Procedure, in staff cases the institutions shall bear their own costs.

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

1 The application of the applicant, in so far as it is directed against the Commission of the European Communities, is dismissed as inadmissible.

2 The application of the applicant, in so far as it is directed against the European Parliament, is admissible; the written procedure shall be resumed with regard to the substance.

3 The applicant shall pay his own costs in the proceedings against the Commission.

4 The Commission of the European Communities shall pay its own costs.

5 The costs of the proceedings between the applicant and the European Parliament are reserved.