JUDGMENT OF 10. 12. 1969 — CASE 32/68 GRASSELLI v COMMISSION

In Case 32/68

THE COURT (First Chamber) composed of: R. Monaco, President of Chamber, A. M. Donner (Rapporteur) and J. Mertens de Wilmars, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of the facts

II — Conclusion of the parties

III — Submissions and arguments of the parties

A — Admissibility

B — The substance of the case

IV — Procedure

Grounds off judgment

Costs

I —. Summary of the facts

(a). that he was in agreement with the date — 1 October 1968 — of termination of his service;

(b). that he had decided to opt for the pension in conformity with the provisions of Article 6 of Regulation No 259/68;

(c). that he was holding in abeyance his decision on the choice available to him under Article 7 of Regulation No 259/68 until after a decision had been reached on his appeal through official channels a copy of which was enclosed.

II —. Conclusion of the parties

—. annul the disputed decision, communicated as a schedule to the memorandum dated 16 September 1968, signed by Ch. Reichling in the form of an explanatory table of the applicant's rights as from the termination of his service in so far as it envisaged the application of Article 34 of the former version of the Staff Regulations and, in that event, denied the applicant a right to a dependent child allowance and the right to a full pension without applying a reduction coefficient;

—. in exercise of its unlimited jurisdiction to rule that in the event of his opting for Article 34 of the former Staff Regulations, the provisions of Article 5 (8) of Regulation No 259/68 will also be applicable;

—. in any event to order the defendant to pay the costs.

—. reject the application in its entirety as inadmissible or unfounded;

—. order the applicant to pay the costs.

III —. Submissions and arguments of the parties

A —. Admissibility

1. It is a question of the interpretation of provisions and not their application; moreover an official notice published in the Staff Courier of 16 April 1968 issued a reminder that it was for the purposes of information only and not binding on the Commission.

2. The applicant has an interest in obtaining an authentic interpretation of the provisions in question.

3. If explanatory tables such as those in dispute are regarded as having the scope of decisions capable of being contested on their notification to the officials to whom they are addressed the period for lodging an appeal must start to run.

1. Since the contested measure emanates from the Commission and determines precisely the applicant's position with regard to the two possibilities put forward for his choice, it constitutes a decision in accordance with the case-law of the Court.

2. Since the contested measure affects the applicant's right to exercise an option, it adversely affects him.

3. The inadmissibility of an appeal such as the present one would mean that the official might lose the right of appeal against the actual application of the provisions in question, owing to his failure to take action within the appropriate period against their interpretation as notified to him by the Commission.

B —. The substance of the case

1. The pension rights form part of the remuneration referred to in Article 7(1) of Regulation No 259/68, as that provision refers not only to Article 34 of the former Staff Regulations of the ECSC but also to Article 50 of the Rules and Regulations of the ECSC.

2. Since the abovementioned Article 34 expressly provides for the payment of a proportional pension and in this connexion refers to the conditions laid down in the pension scheme, it must be deduced that the pension payable on early retirement is affected by the reduction normally applicable, as is laid down in Article 59 of the Rules and Regulations of the ECSC and re-enacted in Article 9 of Annex VIII to the Staff Regulations of Officials of the European Communities.

3. It is clear from the fourth subparagraph of Article 5 (7) of Regulation No 259/68 (in particular: At the end of such period …) that this provision is applicable only to officials who, having opted for the ECSC system, are not entitled to receive the grant provided for in Article 5(1) during the period provided for in Article 5(2).

4. In fact a derogation from the general rule, that is to say the application of a reduction coefficient to the pensions payable on early retirement, is envisaged only in the cases expressly referred to.

A —. As to the reduction coefficient

B —. As to the dependent child allowance

IV —. Procedure

1. By an application lodged on 16 December 1968, the applicant requested the annulment of the defendant's decision notified to the applicant as a schedule to the memorandum dated 16 September 1968 signed by Mr C. Reichling, Director-General for Personnel and Administration, in the form of an explanatory table of the applicant's rights as from the termination of his service, in so far as it envisages the application of Article 34 of the former version of the Staff Regulations and, in that event, applies a reduction coefficient reduction to the pension due to the applicant and refuses him the dependent child allowance.

2. The defendant has raised the question of the admissibility of the application on the ground that the explanatory table in dispute does not constitute a decision.

3. Pursuant to Article 91(1) of the Staff Regulations, the Court of Justice of the European Communities shall have jurisdiction in any dispute between the Communities and any person to whom those Staff Regulations apply regarding the legality of a measure adversely affecting such person.

4. Only measures capable of directly affecting a specific legal situation may be considered as having an adverse effect.

5. The contested communication has the object neither of determining the applicant's rights in a specific legal situation nor of binding the appointing authority with regard to determining those rights in the future.

6. In fact, in an official notification published in the Staff Courier of 16 April 1968, the Commission recalled that the data provided at the request of the persons concerned in the application of Regulation No 259/68 were for the purposes of information and not binding on the Commission.

7. Consequently information such as that at issue in this case cannot be recognized as having an effect adverse or otherwise on the legal position of officials.

8. The application for annulment is thus inadmissible.

9. In his application the applicant secondly asks the Court, in exercise of its unlimited jurisdiction to rule that in the event of his opting for Article 34 of the former Staff Regulations, the provisions of Article 5(7) and (8) of Regulation No 259/68 will also be applicable.

10. The first sentence of Article 91(1) governs the second so that this provision only confers unlimited jurisdiction on the Court where there is a dispute within the meaning of the first sentence.

11. It follows from the foregoing that ipso facto the Court lacks jurisdiction to give the ruling requested.

12. Moreover Article 7, as opposed to other provisions of the regulation relating to options, does not limit to any period the exercise of the right in question so that the applicant retains the power of postponing his choice until a later date.

13. Consequently the request for a ruling is inadmissible.

14. The application must therefore be dismissed as inadmissible.

15. The applicant has failed in his application.

16. Under the terms of Article 69(2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

17. However, under Article 70 of the Rules of Procedure, in proceedings commenced by servants of the Communities, institutions shall bear their own costs.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaties establishing the European Communities; Having regard to the Protocol on the Statute of the Court of Justice; Having regard to the Staff Regulations of Officials of the European Communities, especially Article 91; Having regard to Regulation No 259/68, especially Article 7; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT (First Chamber) hereby:

I Dismisses the application as inadmissible.

2 Orders the parties to bear their own costs.