JUDGMENT OF 17. 2. 1977 — CASE 48/76 REINARZ v COMMISSION AND COUNCIL

In Case 48/76

THE COURT (Second Chamber) composed of: P. Pescatore, President of Chamber, M. Sørensen and Lord Mackenzie Stuart, Judges, Advocate-General: F. Capotorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts

II — Procedure

III — Submissions and arguments of the parties on the admissibility of the application

IV — Oral procedure

Law

Costs

I —. Facts

1. In the interests of the service and in order to meet requirements resulting from the accession of new Member States, Regulation (Euratom, ECSC, EEC) No 2530/72 of the Council authorized the institutions of the Communities, until 30 June 1973, to adopt for their officials in Grades A 1 to A 5 inclusive measures terminating their service (Article 2 (1)).

2. The applicant entered the service of the ECSC in 1952. In 1959, he transferred to the service of the Commission of the EEC, where he was classified in Grade A 2.

II —. Procedure

1. On 8 June 1976 the applicant submitted the present application in which he claims that the Court should:

2. In his application, the applicant claims, inter alia, on the substance, that he is entitled to a monthly allowance paid to him either after conversion into Canadian dollars of the amount which he receives in Belgian francs on the basis of the par value of the Belgian franc against the Canadian dollar at the time of payment or by payment in Belgian francs in accordance with the regulations applicable to officials of the EEC.

3. By defences lodged respectively on 17 August and 12 July 1976, the Commission and the Council requested the Court to rule pursuant to Article 91 of the Rules of Procedure on the admissibility of the application without going into the substance, to declare the application to be inadmissible, and to order the applicant to pay the costs.

4. In a statement lodged on 15 September 1976, the applicant requested the Court to dismiss the objection raised by the Council, costs being awarded accordingly. In a statement lodged on 15 October 1976, the applicant leaves the objection of inadmissibility raised by the Commission to the discretion of the Court.

5. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate-General, the Court (Second Chamber) decided to open the oral procedure on the objection without making any preparatory inquiry.

III —. Submissions and arguments of the parties on the admissibility of the application

1. The Commission states that in so far as the application is directed against it, it can be interpreted as, in essence, seeking annulment of the application which it made of the provisions of the last subparagraph of Article 3 (3) of Regulation No 2530/72. In addition the application refers to an action for damages on the ground of non-contractual liability.

2. (a) The Council states that, even though the conclusions of the applicant are not a comprehensive statement of the purpose of the applications addressed to the Court, it is possible to distinguish the three following actions on the basis of the application taken as a whole: an application for annulment of the provision contained in the last subparagraph of Article 3 (3) of Regulation No 2530/72; an action based on non-contractual liability under the second paragraph of Article 215 of the Treaty; an application, in the alternative, based on the inapplicability, within the meaning of Article 184 of the Treaty, of the provision which it is sought, alternatively, to annul. (b) With regard to the action for annulment, the Council points out that there are only two possible alternatives: an appeal pursuant to Article 91 of the Staff Regulations or proceedings under Article 173 of the Treaty. The application is inadmissible in both cases. The applicant is subject to the provisions of the Staff Regulations in the matter of appeals even though he is not, strictly speaking a person to whom these Staff Regulations apply because the conditions applicable to him are determined by Regulation No 2530/72. One of the recitals to the regulation expressly mentions the need to adopt on a temporary basis special measures concerning the Staff Regulations of Officials of the European Communities. In consequence, the rules contained in Articles 90 and 91 of the Staff Regulations must be observed if the application is to be admissible. Article 90 (2) clarifies the concept of act adversely affecting by indicating that it arises when the appointing authority ought to have taken a decision or has failed to adopt a measure prescribed by the Staff Regulations. The only decision which the conclusions in the application seek to have annulled is an act of the Council. Since the Council is not the appointing authority in the case of the applicant, the contested act cannot therefore constitute an individual act which adversely affects him within the meaning of Article 90 (2) of the Staff Regulations. Nor does the applicant fulfil the conditions laid down in the second paragraph of Article 173 of the EEC Treaty under which an individual can institute proceedings for annulment before the Court. There is no act in the form of a regulation or a decision addressed to another person which is of direct and individual concern to him. In the first place, it is clear that the contested act was an act of general application within the meaning of the judgment of the Court of 14 December 1962 in Joined Cases 16 and 17/62, Confederation Nationale des Producteurs de Fruits et Légumes and Others v Council [1962] ECR 471. Secondly, the contested act cannot be held to be ofindividual concern to the applicant within the meaning of the judgment of the Court of 15 July 1963 in Case 25/62, Plaumann & Co. v Commission [1963] ECR 95. (c) As regards an action based on non-contractual liability, the Council contends that this application is concerned with one of the conclusions which the Council would have to draw from a judgment of annulment and is, therefore, indistinguishable from an application for annulment within the meaning of the judgment of the Court of 18 March 1975 in Case 72/74, Union Syndicale-Service Public Européen and Others v Council [1975] ECR 401. Finally, the Council refers to the judgment of the Court of 22 October 1975 in Case 9/75, Meyer-Burckhardt v Commission [1975] ECR 1171. It follows from that judgment that, since the present dispute originates in a relationship of employment between the person concerned and the institution, it must be pursued under Article 179 of the Treaty and Articles 90 and 91 of the Staff Regulations and, as regards in particular the question of its admissibility, lies outside the sphere of application of Articles 178 and 215 of the Treaty. In the light of the principles so clearly laid down by the Court, the Council concludes that, proceedings instituted by the applicant on the ground of non-contractual liability are inadmissible for the same reasons as those which apply in the case of an application for annulment based on Article 91 of the Staff Regulations of Officials. (d) As regards the applicant's claim concerning inapplicability, the Council considers that no such claim can be made since the present case involves a dispute in which the Court would not pronounce on the substance.

3. The applicant, defendant in the preliminary proceedings, states in reply to the objection of inadmissibility raised by the Council that he accepts that there are two channels of appeal open to him: that under the Staff Regulations provided for in Article 179, and that under Article 178 of the Treaty. The applicant contends that the latter was the only means of redress open to him; his action is directed in the first place against the Council and refers to a loss which occurred only some considerable time after the entry into force of Regulation No 2530/72, which is the cause of that loss.

IV —. Oral procedure

1. The applicant, a former official of the European Communities and at present in receipt of an allowance pursuant to Regulation (Euratom, ECSC, EEC) No 2530/72 of the Council of 4 December 1972 introducing special and temporary measures applicable to the recruitment of officials of the European Communities in consequence of the accession of new Member States and for the termination of service of officials of those Communities (OJ, English Special Edition 1972 (1-8 December), p. 11) seeks the annulment of the final subparagraph of Article 3 (3) of that regulation, in conjunction with the third paragraph of Article 63 of the Staff Regulations or, at least, a declaration that they do not apply to him and compensation for the loss which he claims to have suffered as a result of the application of those provisions.

2. After the applicant's service with the Communities came to an end in 1973, he settled in Canada and, in consequence, his allowance, expressed in Belgian francs, has been paid in the currency of Canada calculated on the basis of the official par values in force on 1 January 1965, pursuant to Article 3 (3) of Regulation No 2530/72, in conjunction with the third paragraph of Article 63 of the Staff Regulations.

3. The applicant contests the correctness of this system of payment claiming, inter alia, that the rules in question and the way in which they have been applied to him infringe the principle of equality of treatment of officials, since the weighting applied to his allowance is that based on living conditions in Belgium regardless of depreciation in the purchasing power of the Canadian dollar.

4. The Council and the Commission, defendants, raised objections of inadmissibility contending, first, that the applicant did not, prior to the lodging of his application, submit a complaint under Article 90 (2) of the Staff Regulations to the competent authority and, secondly, that, in so far as the application is to be regarded as being brought under Article 178 and the second paragraph of Article 215 of the EEC Treaty, the application based on liability under those articles cannot arise in respect of matters concerning the rights of officials under the Staff Regulations.

5. Although Regulation No 2530/72 does not officially form part of the Staff Regulations of Officials, it is nevertheless concerned with regulating a specific aspect of the relationship, under Staff Regulations, between the Community institutions and certain of their officials.

6. Consequently, the means of redress available to those concerned in the event of a dispute concerning the application of the regulation are those provided for by the Staff Regulations, which include the lodging of an official complaint as a condition precedent to any application to the Court.

7. It is a fact that the applicant did not submit any complaint under Article 90 (2) of the Staff Regulations concerning the complaints which are the subject of this application.

8. In so far as it is brought under Article 179 of the Treaty and the first paragraph of Article 91 of the Staff Regulations, the application is, therefore, inadmissible.

9. In so far as the applicant relies for the basis of his application on Article 178 and the second paragraph of Article 215 of the Treaty relating to applications based on non-contractual liability, the application in this case would be admissible only if the articles mentioned were interpreted as making available to an official or to a former official a means of redress which is independent of the proceedings under Staff Regulations pursuant to Article 179 of the Treaty.

10. In this connexion it must be pointed out that, as the Court held in its judgment of 22 October 1975 in Case 9/75, Meyer-Burckhardt [1975] ECR 1171, a dispute between an official and the institution to which he is or was answerable concerning compensation for damage is pursued, where it originates in the relationship of employment between the person concerned and the institution, under Article 179 of the Treaty and Articles 90 and 91 of the Staff Regulations and lies outside the sphere of application of Articles 178 and 215 of the Treaty.

11. Furthermore, the unlimited jurisdiction conferred on the Court in the disputes referred to in Article 179 enables it, within the context of such disputes, to give judgment not only on the validity of the contested act but also on compensation for any damage suffered by the person concerned as a result of an act contrary to his rights under the Staff Regulations.

12. In consequence the application is inadmissible also in that it is based on Article 178 and the second paragraph of Article 215 of the Treaty.

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

14. The applicant has failed in his submissions.

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

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

1 Dismisses the application;

2 Orders the parties to bear their own costs.