JUDGMENT OF 22. 10. 1975 — CASE 9/75 MEYER-BURCKHARDT v COMMISSION

In Case 9/75

THE COURT (First Chamber) composed of: J. Mertens de Wilmars (Rapporteur), President of Chamber, R. Monaco and A. O'Keeffe, Judges, Advocate-General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

Law

Costs

I —. Facts and procedure

1. The applicant, a former civil servant in the Federal Republic of Germany, who had been an official of the European Communities from 1 July 1958, was retired on grounds of invalidity on 30 June 1967. He complains that the legislation of the Federal Republic on the subject of retirement pensions for civil servants limits and even, in some cases, prohibits the concurrent payment of a Community retirement pension and a retirement pension granted by the Federal Republic. This limitation is apparently particularly strict in the case of a Community pension on the basis of invalidity where the maximum amount has been granted. In this case the German pension is reduced from 75 % to 12 % of the remuneration upon which it is based. This limitation arises from the combined effect of paragraph 160 b (1) and Article X (2) of the Law of 19 July 1968 (fifth law amending the provisions concerning the conditions of employment and salaries of civil servants, BGBl I 1968, p. 848) and it was applied to the applicant by the German administration for the period from 1 October 1968 to 30 June 1972.

2. Believing the provisions of German law invoked against him to be incompatible with Community law, in particular Article 5 of the Treaty, and with the Staff Regulations, in particular Article 78, the applicant brought an action based on the reduction of his German retirement pension before the Verwaltungsgericht Freiburg which, by Judgment of 28 June 1973, found against him, after dismissing an application that a preliminary ruling be requested of the Court of Justice — which, in the applicant's view, would have allowed the German court, in the light of the interpretation requested, to find that the alleged incompatibility did exist

3. The applicant estimates his loss attendant upon the reduction by 63 % of the rate of his German pension during the period from 1 October 1968 to 30 June 1972 at DM 122486.88.

4. On 23 May 1973 the applicant submitted the following request to the Commission: that, in accordance with Article 169 of the EEC Treaty, the Commission should bring an action against the Federal Republic of Germany in order to put an end to the infringement of the third paragraph of Article 177 of the EEC Treaty committed by the Bundesverwaltungsgericht of the Federal Republic of Germany.

II —. Conclusions of the parties

III —. Submissions and arguments of the parties

1. The applicant bases his action for damages on the fact that the Commission definitively refused to assist him in his proceedings against the German authorities, thereby infringing Article 24 of the Staff Regulations and causing him material damage. The Commission, as guardian of the Treaty, was bound to institute proceedings against the Federal Republic of Germany on the basis of Article 169 of the Treaty for the purpose of terminating the twofold infringement by that country of its Community obligations.

2. In its defence the Commission contests the admissibility of the application.

3. In his reply the applicant sets out the basis of his application; the infringement of the Treaty against which the Commission failed to take action consisted in the fact that the Bundesverwaltungsgericht, supported by the Federal Government, is putting an incorrect interpretation upon the third paragraph of Article 177 and is refusing, on the basis of that erroneous interpretation, to submit two important questions of Community law to the Court of Justice for a preliminary ruling. The first question which should have been referred to the Court would have been for the purpose of ascertaining whether the Staff Regulations must be interpreted as meaning that officials of all the Member States who are in a comparable position must receive truly equal amounts by way of remuneration and pensions. On the basis of the preamble to the Staff Regulations of Officials of the European Communities, defining the objectives of those regulations, which are further specified in the Judgment of 16 December 1960 (Case 16/60, Humblet), the applicant proposes an answer in the affirmative. Hence, the first and second sentences of paragraph 160 b (1) of the Bundesbeamtengesetz should not be applied to retired officials of the European Communities.

4. In its rejoinder the Commission states that the applicant has still not clearly stated whether he is basing his action for damages upon Article 179 of the Treaty and the Staff Regulations, or upon the second paragraph of Article 215 of the Treaty. Tne Commission concedes that if the action is based upon Article 215, the limitation period of five years has not expired in so far as the application is no longer based on anything but the infringement of Article 177 of the Treaty by the Bundesverwaltungsgericht. If he is submitting his application in the context of the Staff Regulations, the applicant cannot invoke in support of the admissibility of his application the Judgment of the Court of 13 July 1972 (Case 79/71, Heinemann v Commission, Rec. 1972, p. 589), in which the Court ruled that an action for damages was admissible not being subject to the time-limits of Article 91 of the Staff Regulations. In that case the Court in fact expressly stated that the action for damages under consideration was based not upon the illegality of an act but upon the provision of incorrect information. In its Judgment of 21 February 1974 (Joined Cases 15 to 33/73 et al, Schots (née Kortner) and Others v Council, Commission and Parliament, [1974] ECR 189), the Court stated that if a claim for compensation has its origin in the alleged illegality of an institution's decisions the basis for the application lies exclusively in Article 179 of the Treaty and the application is therefore subject to the time-limits of Articles 90 and 91 of the Staff Regulations.

1. The application is for an order that the Commission pay the sum of DM 122486.88 as compensation for the damage allegedly caused to the applicant by the Commission's refusal to institute proceedings against the Federal Republic of Germany on the basis of Article 169 of the Treaty.

2. The applicant, a former civil servant of the Federal Republic and, later, an official of the European Economic Community, is contesting before the German courts the validity in relation to Community law of certain legislative provisions of the Federal Republic whereby, for the period from 1 October 1968 to 30 June 1972, he suffered an appreciable reduction in his German retirement pension by reason of the overlapping of that pension with the Community retirement pension.

3. However, on 23 May 1973, having learned of a previous judgment of 24 February 1972 of the Bundesverwaltungsgericht in a case to which he was not a party but which he considered to be similar, and believing that the Bundesverwaltungsgericht ought, prior to giving judgment, to have had recourse to Article 177 of the Treaty, the applicant submitted to the Commission a request within the meaning of Article 90 of the Staff Regulations of Officials for the purpose of securing the institution against the Federal Republic of proceedings under Article 169 of the Treaty in order to put an end to the infringement of the third paragraph of Article 177 of the EEC Treaty which, in his opinion, had been committed by the Bundesverwaltungsgericht. This request, which was rejected, first by implication and then expressly, was followed by a complaint to the same effect, which was also rejected, by letter of 7 February 1974. On 18 April 1974, without having brought the dispute arising from the rejection of his complaint before the Court of Justice, the applicant submitted to the Commission a fresh request for an award of damages, which following an implied rejection and a complaint, which was expressly rejected on 7 November 1974, gave rise to the present action for damages.

4. According to the applicant the Commission's failure to institute proceedings against the Federal Republic in the matter of the judgment given by the Bundesverwaltungsgericht on 24 February 1972 is the cause of the damage for which he is seeking compensation, corresponding to the reduction in his German retirement pension made under the national legislation in dispute. He claims in this respect that the provisions of the German legislation which affect his position are incompatible with Community law and that a preliminary ruling from the Court of Justice on the interpretation of the Staff Regulations of Officials would, if it had been sought, have enabled the German courts to find in favour of the existence of the alleged incompatibility.

5. According to the Commission the application is inadmissible both in the event of its being founded upon Article 179 of the Treaty and on the Staff Regulations of Officials and in the event of its being based on Article 215 of the Treaty.

6. In support of his application the applicant has relied upon Articles 178 and 215 of the Treaty and Article 179 thereof and on the Staff Regulations of Officials.

7. According to Article 179 of the Treaty the Court of Justice has jurisdiction in any dispute between the Community and its servants within the limits and under the conditions laid down in the Staff Regulations or the conditions of employment.

8. The applicant has based his application in particular upon an infringement by the Commission of Article 24 of the Staff Regulations on the protection due by institutions to officials.

9. In this connexion the Commission claims that the present application is inadmissible because the applicant has failed to bring an appeal before the Court within the period of three months laid down in Article 91 (3) of the Staff Regulations against the rejection, by letter from the Commission of 7 February 1974, of his first complaint of 1 October 1973 and that he cannot, by means of the present action for damages, make good this omission.

10. Although the action for annulment and the action for damages are indeed distinct types of action, it is none the less the case that, within the context of disputes between officials and the institutions, Articles 90 and 91 of the Staff Regulations make no distinction between them as regards both the administrative and the contentious procedures to which they may give rise.

11. Therefore, as from the date of rejection of his complaint of 1 October 1973 by letter of the Commission of 7 February 1974, the applicant could, within the period of three months, have brought before the Court an action concerning the legality of an act adversely affecting him, and the financial consequences which might have arisen therefrom.

12. The application of 22 January 1975, registered on 31 January 1975, was registered after the expiry of that period.

13. For the sake of completeness it should be noted that even if the action could be based upon Article 215 of the Treaty and avoided the procedural rules contained in Article 90 and 91 of the Staff Regulations it would nevertheless be out of time, since it was brought after the expiry of the period prescribed in Article 43 of the Protocol on the Statute of the Court of Justice of the EEC.

14. Accordingly, the application must be dismissed as inadmissible.

15. The applicant has failed in his submissions.

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

1 Dismisses the application;

2 Orders the parties to bear their own costs.