C-799/79

JUDGMENT OF 12. 11. 1981 — CASE 799/79 BRUCKNER v COMMISSION AND COUNCIL

CELEX: 61979CJ0799
Datum: 1981-11-12
Källa: eur-lex.europa.eu

THE COURT (First Chamber) composed of: G. Bosco, President of Chamber, A. O'Keeffe and T. Koopmans, Judges, Advocate General: F. Capotorti Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

1. Background provisions

2. Facts

3. Written procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

IV — Oral procedure

Decision

Costs

I —. Facts and written procedure

1. Background provisions

(a). In the version in force until 31 March 1979, Article 63 of the Staff Regulations of Officials provided that:

(b). On 21 December 1978 the Council adopted Regulation No 3085/78 (Official Journal 1978 L 369, p. 6), amending, with particular reference to the monetary parities to be used, Regulation No 259/68 laying down the Staff Regulations of Officials of the European Communities and the Conditions of Employment of Other Servants of the Communities, Regulation No 2530/72 and Regulation No 1543/73 concerning certain special measures. The regulation embodies the wording of the communication from the Commission of 29 November 1978 and also the formula contained in the proposal of 1 April 1977 concerning the weighting to be applied to amounts transferred. The Council added, however: From that date the difference between the net amounts resulting from the implementation of the regulation and those received in September 1979 shall be reduced by 1/10 per month. The regulation fixes 1 July 1978 as the relevant date for calculating remuneration paid in a currency other than Belgian francs on the basis of the exchange rates used for the implementation of the general budget of the Communities and goes on to state that that date shall be changed at the time of the annual review of remuneration.

(c). Hand in hand with the bringing up to date of the rates of exchange, the Council adopted Regulation No 3086/78 of 21 December 1978 (Official Journal L 369, p. 8) adjusting the weightings applicable to the remuneration and pensions of Officials and Other Servants of the European Communities following the amendment of the provisions of the Staff Regulations concerning the monetary parities to be used in implementing the Staff Regulations, which amended the value of the weightings according to the various places of employment. In order to do that the Commission and the Council of the European Communities used a formula the intended result of which was that in the case of each official or other servant employed outside Belgium or Luxembourg the remuneration for April 1979 would be maintained at the same level as that of the previous month. However, in the applicant's view, as far as the disposable amount of his remuneration is concerned, that formula resulted in a reduction of about 25%.

2. Facts

3. Written procedure

II —. Conclusions of the parties

I. As against the first defendant:

II. As against both defendants: Order them to pay the difference in Italian lire resulting from the calculation referred to in I.9.

III. 1. Order the defendants to compensate the applicant for his pecuniary loss the amount of which is to be fixed by the Court at the amount of interest at 6% payable on the arrears from the date on which they fell due until the date of payment. 2. Order the defendants to pay the costs.

1. Dismiss the application in Case 799/79 as inadmissible in so far as it is directed against the Council;

2. Order the applicant to bear the costs.

III —. Submissions and arguments of the parties

1. In his application the applicant claims that his action is admissible for the following reasons :

2. In its application for a decision on a preliminary objection, the Council contends that an application based on Article 91 of the Staff Regulations is admissible only if it complies with the rules laid down in Articles 90 and 91 of the Staff Regulations, which this application does not. First, the applicant has never submitted to the Council a complaint within the meaning of Article 90 (2). Secondly, the Council cannot be regarded as the appointing authority. Therefore Regulations Nos 3085 and 3086/78 do not amount to acts adversely affecting the applicant which may be challenged by way of the action provided for in Article 91. Nor can an action for a declaration that they are void be founded on Article 146 of the EAEC Treaty. Regulations Nos 3085 and 3086/78 apply to all Community officials whilst Regulation No 3087/78 applies to all officials employed in Italy. Therefore it may not be maintained that they are decisions addressed to the applicant or decisions which although in the form of a regulation are of direct and individual concern to him. In any case the application was out of time.

3. In his observations on the Council's objection the applicant points out that the application directed against that institution is not an application for annulment but only a claim for damages. There may be doubt whether the applicant is entitled to proceed against the Council under Articles 90 and 91 of the Staff Regulations which as a lex specialis cannot prevent the application of Article 151 and the second paragraph of Article 188 of the EAEC Treaty. The applicant is therefore entitled to base his claims on the latter and in so doing is not obliged to fulfil the conditions laid down by Article 91.

4. In its defence the Commission raises no objection to the admissibility of the application as far as it is concerned, particularly in regard to the procedural provisions contained in Article 91 of the Staff Regulations.

5. In its rejoinder the Commission points out discrepancies in the amendment of the application.

IV —. Oral procedure

1. By application lodged at the Court Registry on 12 November 1979 Günter Bruckner, an official of the Commission employed at the Joint Research Centre at Ispra in Italy, brought an application under Article 91 of the Staff Regulations of Officials (hereinafter referred to as the Staff Regulations) against the Council and Commission of the European Communities.

2. In the version in force until the end of 1978 Articles 63 and 64 of the Staff Regulations provided that: An official's remuneration shall be expressed in Belgian francs. It shall be paid in the currency of the country in which the official performs his duties. Remuneration paid in a currency other than Belgian francs shall be calculated on the basis of the par values accepted by the International Monetary Fund and in force on 1 January 1965. An official's remuneration expressed in Belgian francs ... shall be weighted at a rate above, below or equal to 100%, depending on living conditions in the various places of employment. The weighting applicable to the remuneration of officials employed at the provisional seats of the Communities shall be equal to 100% as at 1 January 1962.

3. In accordance with Article 17 of Annex VII to the Staff Regulations an official may have part of his emoluments transferred, either regularly or on an exceptional basis, to a country other than the one in which he performs his duties. Until 31 March 1979, Article 17 (4) provided that such transfers were to be made through the institution to which the official belonged at the official exchange rate ruling on the date of transfer. The official exchange rate within the meaning of that provision was the last parity accepted by the International Monetary Fund, which had not been altered since 1 November 1969 (for example, BFR 13.66 to DM 1).

4. On 21 December 1978 the Council adopted Regulation (Euratom, ECSC, EEC) No 3085/78 (Official Journal L 369, p. 6), Article 1 of which stated that Article 63 of the Staff Regulations is replaced by the following:

5. Article 2 of the regulation provides:

6. Article 4 of the regulation provides that the regulation is to enter into force on 1 January 1979 and that it is to apply from 1 April 1979.

7. On 21 December 1978 the Council also adopted Regulation (Euratom, ECSC, EEC) No 3086/78 adjusting the weightings applicable to the remuneration and pensions of Officials and Other Servants of the European Communities following the amendment of the provisions of the Staff Regulations concerning the monetary parities to be used in implementing the Staff Regulations. Article 1 (1) of the regulation fixes inter alia the weighting applicable to remuneration at 74.3 for Italy and at 98.7 for the Federal Republic of Germany.

8. The applicant had regularly transferred, pursuant to Article 17 of Annex VII to the Staff Regulations, a specific part of his remuneration to the Federal Republic of Germany, applying the exchange rate in force on 1 November 1969. As a result of the application of the new provisions cited above, after 1 April 1979 the cost of those transfers, expressed in Italian lire, increased by LIT 284 463.

9. On 21 June 1979 the applicant submitted to the Commission pursuant to Article 90 (2) of the Staff Regulations a complaint against the increase in the cost of those transfers. The Commission replied on 28 September 1979 stating on the one hand that it could not, without exceeding its powers, refrain from applying Council regulations which had duly entered into force and on the other hand that it approved in substance the amendments which had been made to the Staff Regulations.

10. The applicant thereupon brought this action against the Council and the Commission. In substance he asks the Court to:

11. By a submission dated 11 January 1980 the Council made an objection as to the admissibility of the application. According to the Council the following three actions are discernible in the application: (1) an action for the annulment of Regulations Nos 3085/78 and 3086/78, (2) an action for damages for non-contractual liability and (3) a claim that the regulations are inapplicable.

12. As far as the action for annulment is concerned, the Council sees two possibilities, namely (a) an action based on Article 91 of the Staff Regulations and (b) an action based on Article 146 of the EAEC Euratom Treaty which corresponds to Article 173 of the EEC Treaty. In the first case the application is admissible only if it complies with the rules laid down by Articles 90 and 91 of the Staff Regulations, which this application does not. The applicant has never submitted to the Council a complaint within the meaning of Article 90 (2) of the Staff Regulations. Secondly the Council cannot be regarded as the appointing authority in the applicant's case. Article 91 of the Staff Regulations permits an action to be brought only against acts adversely affecting officials which can emanate only from the appointing authority.

13. In the second case an action for annulment cannot be founded on Article -146 of the EAEC Treaty. Regulations Nos 3085 and 3086/78 apply to all Community officials. Therefore it is not possible to contend that they are decisions addressed to the applicant or decisions of direct and individual concern to him although in the form of a regulation. The Council furthermore claims that the action was not brought within two months of the pub-. lication of the regulations in question as required by the third paragraph of Article 173.

14. The action for damages is not admissible either. According to the case-law of the Court, where such a claim originates in the relationship of employment between the persons concerned and the institution, it lies outside the scope of Articles 178 and 215 of the Treaty as far as its admissibility in particular is concerned.

15. The claim that the regulations are inapplicable appears to be founded on Article 156 of the EAEC Treaty which corresponds to Article 184 of the EEC Treaty. That provision enables any party to invoke before the Court the inapplicability of a regulation in proceedings in which it is in issue and in order to do so to plead the grounds specified in the first paragraph of Article 173 of the EEC Treaty. However, it is apparent from the decisions of the Court that a declaration of inapplicability under Article 184 of the Treaty is an incidental remedy of limited effect. The mere possibility of a declaration of inapplicability does not open the way to proceedings against the Council just because it is the institution which adopted the act alleged to be unlawful.

16. In reply to that objection the applicant claims that the action against the Council is not an action for annulment but only for damages. If Articles 90 and 91 of the Staff Regulations are not applicable to the relationship between the applicant and the Council, even as a lex specialis those provisions cannot exclude the application of Article 151 and the second paragraph of Article 188 of the EAEC Treaty. The applicant therefore takes the view that he may base his claim for damages on those articles.

17. The applicant believes that, if it is assumed that the requirements of Article 90 (2) of the Staff Regulations must be fulfilled in every case, then it must be said that the applicant fulfils those conditions because he submitted a complaint to the appointing authority against the regulations adopted by the Council. He claims that the Council is contradicting itself when it rules out Articles 90 and 91 of the Staff Regulations for an action for annulment and yet wishes them to apply to an action for damages. The applicant invokes the inapplicability of the regulations only as an incidental claim.

18. The objection raised by the Council must be upheld. An action for annulment of Regulations No 3085/78 and No 3086/78 of the Council is inadmissible, since the regulations in question are of general application and cannot be assimilated to decisions which, although taken in the form of regulations, are of direct and individual concern to the applicants. Moreover, even if such an action against the Council were admissible in that respect it would nevertheless be inadmissible because it is out of time, having been lodged after the expiry of the period laid down in the third paragraph of Article 173 of the EEC Treaty, which corresponds to the third paragraph of Article 146 of the EAEC Treaty.

19. The applicant's claim for compensation seeks to obtain precisely the same results as those which he would obtain from the annulment of the regulations. The Court has held on a number of occasions, in particular in its judgment of 15 December 1966 (Schreckenberg, Case 59/65 [1966] ECR 543) that although a party may take action by means of a claim for compensation without being obliged by any provision of law to seek the annulment of the illegal measure which causes him damage, he may not by this means circumvent the inadmissibility of an application which concerns the same illegality and which has the same financial end in view. The claim for compensation is therefore inadmissible.

20. In the circumstances the application is inadmissible in so far as it is directed against the Council and must therefore be dismissed.

21. The Commission does not challenge the admissibility of the application in so far as it is directed against it. The proceedings concerning the substance of the case will therefore continue.

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

23. However, under Article 70 of the Rules of Procedure the costs incurred by the institutions in proceedings brought by employees of the Communities are to be borne by those institutions.

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

1 Dismisses the application as inadmissible in so far as it is directed against the Council.

2 Orders the applicant and the Council to bear their own costs.