Opinion of Mr Advocate-General Capotorti

Mr President,

Members of the Court,

1. The subject-matter of my opinion is limited: it consists exclusively in the question of the admissibility of the application submitted on 8 June 1976 by Mr Andreas Reinarz against the Council and the Commission. As you will recall, the Second Chamber decided to consider first of all the objections of inadmissibility put forward by the defendants, without regard to the substance of the case, which the parties have not yet been required to debate. I must, however, summarize the circumstances in which the application arose and the claims submitted by Mr Reinarz.

2. Even although the applicant no longer has the status of an official of the Community, there is no doubt that his status as a former Community official is a condition precedent to the application and that the subject-matter of the application comes within the scope of the Staff Regulations. In this connexion it is worthy of note that, in its final recital of the preamble, the said Regulation No 2530/72 specifies that special measures concerning the Staff Regulations of the European Communities should be adopted. Consequently, the proper solution would have been for the applicant to avail himself of the procedure laid down in Article 179 of the Treaty of Rome and in Article 91 (1) of the Staff Regulations of Officials, observing, of course, the conditions laid down in Article 91 (2). This was not done and, in the statement lodged on 15 September 1976, the applicant concedes that he had not availed himself of the means of redress under the Staff Regulations referred to in Article 179 since he considered that the only remedy open to him was that referred to in Article 178 of the Treaty. I shall consider this view a little later. Nevertheless it remains henceforth established that, if the application is considered from the point of view of Article 179 of the EEC Treaty, it is inadmissible since it is not disputed that Mr Reinarz has failed to submit a complaint to the Commission within the meaning of Article 90 (2).

3. Articles 178 and the second paragraph of Article 215 of the Treaty are the basis upon which the applicant contends for the admissibility of his application. As the Court is aware these articles form the basis of its jurisdiction to take cognizance of disputes concerning compensation for damage on the ground of non-contractual liability. In the present case two questions must be resolved: whether, in the application, the applicant is in fact seeking to establish the non-contractual liability of the Community and, more generally, whether officials (or former officials) may be permitted to institute proceedings under Article 178 of the Treaty when the subject-matter of such proceedings falls within the scope of the Staff Regulations of Officials.

4. It has now become pointless to consider whether the application is admissible under the second paragraph of Article 173 or Article 184 of the EEC Treaty. Indeed it seems to me that the considerations set out with regard to the exclusive nature of the jurisdiction laid down in Article 179 in respect of applications submitted by officials or former officials of the Community regarding their conditions of employment must suffice to rule out recourse to procedures other than those specified in the said articles. However, given the general nature of the provision whose annulment is sought in the present case (the last subparagraph of Article 3 (3) of Regulation No 2530/72) no decision was addressed to the applicant and contested by him; it is equally certain that the regulation in question cannot be described as in the form of a regulation and really of direct and individual concern to Mr Reinarz. Indeed the applicant himself has never maintained this. Finally, with regard to Article 184, this provision can be taken into consideration only on the footing that there are proceedings in which a regulation of the Council or of the Commission is in issue: the question of admissibility must, therefore, be considered in relation to the action instituting such proceedings and an unfavourable ruling in that action affects the particular subject-matter of Article 184.

5. I accordingly conclude by recommending that the Court should for the foregoing reasons declare inadmissible the application submitted by Mr Reinarz on 8 June 1976 against the Council and the Commission.

1 Translated from the Italian.

2 Translator's note: the phrase in brackets does not appear in the English translation in the Official Journal.