Opinion of Mr advocate general Capotorti

Mr President,

Members of the Court,

1. The present action concerns the conditions for the application of the weighting to the pension paid by the Communities and in particular the criteria whereby, pursuant to Article 82 of the Staff Regulations of Officials, that weighting is to be calculated.

2. The defendant institution raised a preliminary objection to the effect that the application was inadmissible because it failed to relate in summary form the ground on which [it] is based and was thereby in breach of the provisions of Article 38 (1) (c) of the Rules of Procedure. That objection is nevertheless unfounded.

3. The admissibility of the application is also contested on the ground of irregularity in the prior administrative complaint. As the Court is aware, under the first indent of Article 91 (2) of the Staff Regulations, an appeal is admissible if the appointing authority has previously had a complaint submitted to it pursuant to Article 90 (2) within the period prescribed therein …. In the present case the Commission argued in its letter of 12 July 1978 whereby it rejected the request of Mr Michaelis for the application ex tunc of the Belgian weighting that the complaint was out of time. The Commission observed in this connexion that the decision concerning Mr Michaelis's pension was notified to him on 5 September 1974 and that it was then stated that the pension had been calculated on the basis of the weighting for Germany. Accordingly the complaint should have been submitted within the period of three months from that date and not after a period of three years or more.

4. Counsel for the applicant endeavours to have the action dealt with under Article 41 of Annex VIII to the Staff Regulations; this endeavour is also intended to overcome the procedural obstacle constituted by the objection that the application is inadmissible, which I have discussed earlier.

5. In order to sustain his argument concerning the special nature of the procedure said to be based on Article 41 the applicant relies on three arguments, none of which however, in my view, should be upheld.

6. The foregoing considerations confirm the inadmissibility of the application since it is contrary to the first indent of Article 91 (2) of the Staff Regulations. Nevertheless I consider it appropriate also to review the substance of the case which was argued at length in the course of the procedure.

7. According to the applicant there has been a further breach of Article 82 of the Staff Regulations: the Commission is said to have applied to the pension the weighting for Germany even though it knew that the applicant had never transferred his home from Brussels to Vallendar.

8. In the alternative the applicant maintains that the administation, by applying the German instead of the Belgian weighting to his pension, has unjustifiedly enriched itself at his expense. He therefore claims on this ground a sum equal to the balance which has been underpaid (and improperly retained by the Commission) during the period from 1 September 1974 to 31 December 1976.

9. I am therefore of the opinion that the Court of Justice should rule that the action instituted against the Commission by Mr Michaelis by an application dated 2 October 1978 is inadmissible or at least unfounded. In view of the nature of the proceedings the parties should bear their own costs.

1 Translated from the Italian.