Opinion of Advocate General Lenz delivered on 5 October 1993

1 Original language: German.

2 [1992] ECR II-293.

3 The claims were originally brought before the Court of Justice which by orders of 15 November 1989 after completion of the written procedure referred the cases to the Court of First Instance. Concerning particulars of the procedure see paragraphs 1 and 12-18 of the contested judgment.

4 Council Regulation of 24 October 1988 correcting the weightings applicable in Denmark, Germany, Greece, France, Ireland, Italy, the Netherlands and the United Kingdom to the remuneration and pensions of officials and other servants of the European Communities (OJ 1988 L 293, p. 1).

5 Council Regulation of 26 November 1986 correcting the weightings applicable in Denmark, Germany, Greece, France, Ireland, Italy, the Netherlands and the United Kingdom to the remuneration and pensions of officials and other servants of the European Communities (OJ 1986 L 336, p. 1).

6 Judgment in Case 7/87 Commission v Council [1988] ECR 3401.

7 Paragraph 19 of the contested judgment.

8 Paragraphs 23 to 25 of the contested judgment.

9 Paragraph 26 of the contested judgment.

10 See paragraphs 29-31 of the contested judgment.

11 See paragraph 2 above.

12 Paragraphs 32 and 33 of the contested judgment; the observation relates to paragraph 25 of the judgment in Case 7/87.

13 Paragraph 39 of the contested judgment.

14 Paragraph 36 of the contested judgment.

15 Paragraph 39 of the contested judgment.

16 Paragraph 38 of the contested judgment; the Court's observation is based on the fact that the Commission's definitive proposal for the Council regulation had already been made in late 1985 and was also the basis of Regulation No 3916/86 and Regulation No 3294/88.

17 Paragraph 39 of the contested judgment.

18 Paragraphs 12 et seq.

19 P. 26 et seq., point 31 of the appeal.

20 P. 27 et seq., points 33-35 of the appeal.

21 See Article 168a of the EEC Treaty and Article 51 of the Statute of the Court of Justice of the EEC and the similar provisions concerning the two other communities.

22 See the judgment in Case C-238/90 P Vidranyi v Commission [1991] ECR I-4339, paragraph 12).

23 Previous footnote, paragraph 29 of the judgment.

24 Point 35, p. 28 of the appeal.

25 See the judgment in Case 28/64 Müller v Council of the EEC and the Council of the EAEC [1965] ECR 237, 247 and the judgment in Case 307/85 Gavanas v ESC and Council [1987] ECR 2435, paragraph 7.

26 See the judgment in Case 264/83 Delhez v Commission [1986] ECR 2749, paragraph 16.

27 In its case-law on Article 178 and the second paragraph of Article 215 of the EEC Treaty, the Court of Justice goes so far as to declare inadmissible actions against the Community if the damage alleged is due to the conduct of the national authorities: see For example the judgment in Joined Cases 89 and 91/86 L'Étoile Commerciale and CNTA v Commission [1987] ECR 3005, paragraphs 17-21.

28 Paragraphs 36 and 37 of the contested judgment.

29 See the judgment cited in footnote 5 at paragraphs 11-13, 15-22 and 23-27.

30 See the judgment in Joined Cases 63-69/72 Werhahn v Council [1973] ECR 1229, paragraph 7.

31 See the judgment in Case 9/75 Meyer-Burckbardt v Commission [1975] ECR 1171.

32 See the previous footnote.

33 Paragraph 7 of the judgment.

34 The applicant, a former national civil servant and former official of the Commission, had claimed compensation from the Commission for not complying with his request to take action against the Member State under Article 169 of the EEC Treaty. Rules which were disadvantageous to the applicant's claims for Community retirement pension applied in that Member State. The Court of Justice considered the application to fall under Articles 90 and 91 of the Staff Regulations because the applicant himself relied on them and claimed an infringement of Article 24 of the Staff Regulations on the protection due by institutions to officials (paragraph 8 of Meyer-Burckhardt). In the present case too the Court of First Instance has proceeded from a wide interpretation of Article 179 of the EEC Treaty. Consideration of the Commission's proposal, which led to the delay found in paragraph 39 of the contested judgment, is part of the legislative procedure pursuant to Article 64 of the Staff Regulations. It is to be borne in mind that generally the Commission as an institution with power to make proposals is also subject to the general rules on compensation (see the Werhahn judgment [footnote 29], paragraph 8). It is however not necessary to discuss the question whether the present case is sufficiently concerned with an employment relationship of officials, since none of the parties to the appeal has raised the question.

35 Case 158/79 [1985] ECR 39. Likewise the parallel judgments of the same day in Joined Cases 532/79, 534/79, 567/79, 600/79, 618/79, 660/79 and 543/79 Amesz v Commission [1985] ECR 57; Case 737/79 Battaglia v Commission [1985] ECR 71.

36 Paragraph 10 of the judgment.

37 Regulation No 3087/78 (OJ 1978 L 369, p. 10).

38 See the judgment in Case 158/79 Roumengous Carpentier v Commission [1982] ECR 4379, paragraphs 6 and 25-27.

39 Order of 26 September 1984 in Case 175/83 Culmsee v ESC and Council [1984] ECR 3321.

40 Judgment in Case 175/83 Culmsee v ESC [1985] ECR 2149.

41 These decisions are part of a number of similar cases: see the judgments in Case 174/83 Ammann and Others v Council [1985] ECR 2133; in Case 176/83 Allo v Commission [1985] ECR 2155; Case 233/83 Agostini v Commission [1985] ECR 2163; in Case 247/83 Amkrosetti v Commission [1985] ECR 2171 and in Case 264/83 Delhezv Commission [1985] ECR 2179. In contrast to the applicants in the Culmsee case the applicants in these cases took action only against their appointing authorities.

42 See the applicants' observations referred to in paragraphs 12 and 13 of the judgment in Case 175/83 Culmsee v ESC [1986] ECR 2667.

43 See paragraph 17 of the judgment (previous footnote).

44 See the judgment in Case C-68/91 P Moriu v Commission [1992] ECR I-6849, parigraphs 24-26.

45 Page 29, points 39 and 40 of the appeal.

46 Pages 30-32, points 41-50 of the appeal.

47 Page 32, point 54 of the appeal.

48 See paragraph 61 above.

49 See paragraph 35 of the contested judgment.

50 Judgment in Case 264/83 Delhez v Commission [1986] ECR 2749, paragraph 16.

51 See the express remarks to that effect in the Opinion of Advocate General Sir Gordon Slynn in Joined Cases 169/83 and 136/84 Leussink v Commission [1986] ECR 2812 and 2814.

52 See for example the judgment in Joined Cases 19/69, 20/69, 25/69 and 30/69 Richez-Parise v Commission [1970] ECR 325.

53 The relationship between the terms unlawfulness and service-related fault has not as yet been comprehensively defined. In many contributions by writers the view is taken that any unlawfulness for the purpose of the phrasing used in Article 215 of the EEC Treaty implies at the same time a service-related fault (see the evidence in Huglo, Juris Classeur, Europe, part 370, No 21). Cf. also the judgment in Case 111/86 Delauchev Commission [1987] ECR 5345, paragraph 30, where in the field of civil service law the Court laid down the condition of the illegality of the allegedly wrongful act committed by the institutions. See further the judgment in Case 137/79 Kohl v Commission [1980] ECR 2601, paragraph 16, where (also in the field of civil service law) the Court refers to Article 215 of the EEC Treaty. In the present connection I prefer the concept of maladministration, for the infringement found by the Court of First Instance concerns an unwritten rule which is to be applied according to the circumstances of the particular case: see paragraphs 36 and 37 of the contested judgment.

54 Joined Cases 169/83 and 136/84 Leussink v Commission [1986] ECR 2801.

55 See the heading above paragraph 10 and the text of paragraph 13 of the judgment.

56 See paragraph 22 of the judgment.

57 As is well known, Community law, as a partial legal system, requires supplementation by general legal principles to be derived from the laws of the Member States in other spheres: as regards basic rights see for example the judgment in Case 14/73 Nold v Commission [1974] ECR 491, paragraph 13.

58 As regards the ECSC Treaty the criterion of context has been expressly recognized in two recent judgments: judgment in Joined Cases C-363/88 and C-364/88 Finsider and Others v Commission [1992] ECR I-359, paragraph 24 and in Case C-220/91 P Commission v Stahlwerke Peine-Salzgitter [1993] ECR I-2393, paragraph 29.

59 See most recently the judgment in Joined Cases C-104/89 and C-37/90 Mülder and Others v Council and Commission [1992] ECR I-3061, paragraph 12. Regarding the criterion applied by the Court see generally: Joliet, Le Droit Institutionnel des Communautés Européennes, Le Contentieux, Liège 1981, pp. 269-271; Rideau/Charrier, Code de Procédures Européennes, Paris 1990, p. 189.

60 The Commission has not denied the fact that in view of the date its proposal was made there is a service-related fault which could make it liable.

61 That is also apparently the basis of Advocate General Mancini's Opinion of 11 December 1984 in Case 158/79 Roumengous Carpentier v Commission [1985] ECR 39, 42; the Opinion of Judge Biancarelli, acting as Advocate General, of 30 January 1991 in Case T-120/89 Stahlwerke Peine-Salzgitter v Commission [1991] ECR II-279, 364.

62 See the judgment in Case 9/69 Sayag v Leduc [1969] ECR 329, paragraphs 5-11 and the Opinion of Mr Advocate General Gand of 1 July 1969 in that case, ibid. 338, 341.

63 Judgments in Case 59/81 Commission v Council [1982] ECR 3329; in Case 158/79 Roumengous Carpentier v Commission [1982] ECR 4379; in Case 7/87 Commission v Council [1988] ECR 3401 and in Case 301/90 Commission v Council [1992] ECR I-221.

64 To that effect see the judgment in Case 156/78 Newth v Commission [1979] ECR 1941 and the judgment in Case 256/78 Misenta v Commission [1980] ECR 219.

65 See for example the judgment in Case 156/80 Morbelli v Commission [1981] ECR 1357, paragraph 34. See also the judgment in Case T-8/90 Colmant v Commission [1992] ECR II-469.

66 See the judgment in Roumengous Carpentier (footnote 37).

67 Joined Cases 64/76 and 113/76, 167/78 and 239/78, 27/79, 28/79 and 45/79 Dumortier and Others v Council [1982] ECR 1733.

68 Case number and parties as above, [1979] ECR 3091.

69 See the Opinion of Mr Advocate General Van Gerven of 26 January 1993 in Case C-271/91 Marshall judgment of 2 August 1993 [1993] ECR I-4367, I-4381, point 23, and the Opinion of Mr Advocate General Tesauro of 16 September 1993 in Case 308/87 Grifoni v EAEC judgment of 3 February 1994 [1994] ECR I-341, I-343, points 22 and 24.

70 Page 18 under point 7 of the appeal.

71 See paragraph 35.

72 P. 17 under points 4-6 and p. 22 under point 18 of the appeal.

73 P. 16 under point 2 of the appeal.

74 P. 18 under point 10 of the appeal.

75 P. 2 of the reply; my emphasis.

76 Above, paragraph 100.

77 Above, paragraph 97.

78 Paragraphs 23-25 of the contested judgment.

79 Above paragraph 97.

80 In the present case... the legal basis for the five-yearly adjustment should have been established by 1986 at the latest, having regard to the fact that at that time the Council possessed all the information needed to adopt a regulation in accordance with the requirements of the Staff Regulations.

81 I do not consider it necessary to answer the question of the admissibility of the first plea in law, which the officials also raised, because the case did not depend on that see above, paragraph 102.

82 Case C-346/90 P F.v Commission [1992] ECR I-2691.

83 Paragraph 36 of the contested judgment.

84 Paragraph 29 of the contested judgment.

85 See paragraphs 57-96 above.

86 Case 174/83 Ammann and Others v Council [1986] ECR 2647.

87 Judgment in Joined Case 27/59 and 39/59 Campolongo v High Authority [1960] ECR 391.

88 See for example the judgment in Case 115/76 Leonardini v Commission [1978] ECR 735 and the judgment in Case 185/80 Carganese v Commission [1981] ECR 1785, paragraphs 19-21.

89 See the judgment in Case 11/63 Lepape v High Authority [1964] ECR 61, in particular pp. 156 and 162.

90 See on the Staff Regulations for example the judgment in Case 21/86 Samara v Commission [1987] ECR 795; on general liability see the judgment in the Mulder case (footnote 58 above).

91 Paragraph 20 of the contested judgment.

92 Paragraph 21 of the contested judgment.

93 See also as regards Article 65 the Ammann judgment and the similar judgments of the same day (footnote 85).

94 See footnote 86.

95 See for example the default interest which the Court of Justice fixed in the Berti case for the period after the delivery of a final judgment determining the quantum of the applicant's damage (Case 131/81 Berti v Commission [1985] ECR 645). Such interest is comparable with the interest which the Court of Justice laid down in the proceedings for a declaration of liability in the field of the common agricultural policy: first in the so-called Quellmehl and Maize Gritz judgments of 4 October 1979 (see footnote 67 and the similar judgments of the same day) and most recently in the Mulder case (footnote 58).

96 See for example the judgments in Case 114/77 Jacquemart v Commission [1978] ECR 1697; in Joined Cases 63 and 64/79 Boizard v Commission [1980] ECR 2975; in Case 40/79 Pv Commission [1981] ECR 361; and in Case 103/81 Chaumont-Barthel v Parliament [1982] ECR 1003.

97 See the judgment in Case 106/76 Gelders-Deboeck v Commission [1977] ECR 1623, paragraphs 25-30.

98 See the judgment in Case 271/87 Fedeli v Parliament [1989] ECR 993 (summary publication; see paragraphs 15 and 16 of the full judgment). No later than that judgment the Court of Justice seems to have abandoned the requirement of a grave mistake of interpretation within the meaning of the Gelders judgment (previous footnote).

99 See paragraph 92 above.

100 As to the delay for which the Council was responsible see above, paragraphs 28-54, and below at paragraph 144.

101 Above at paragraphs 42 and 43.

102 Footnote 34; also the parallel judgments of the same day, ibid.

103 See paragraph 45 above.

104 Judgments in Case 101/74 Kurrer v Council [1976] ECR 259; in Case 115/76 Leonardini v Commission [1978] ECR 735; in Case 152/77 B v Commission [1979] ECR 2819; in Case 156/80 Morbelli v Commission [1981] ECR 1357 and in Case 186/80 Suss v Commission [19811 ECR 2041.

105 Leonardini judgment, previous footnote, paragraph 12.

106 Footnote 103.

107 Paragraphs of 20 and 21 of the judgment.

108 Judgment in Case 9/81 Williams v Court of Auditors [1982] ECR 3301.

109 Paragraph 1 of the operative part.

110 Paragraph 2 of the operative part; my italics.

111 Paragraph 17 of the judgment.

112 Paragraph 19 of the judgment.

113 See paragraph 72 above.

114 Above, paragraphs 28-54.

115 See above, paragraphs 77-94.

116 See paragraph 124 above.

117 Opinion of Mr Advocate General Mancini of 31 January 1985 in the Ammanti case [1986] ECR 2131, 2140.

118 See the Leonardini judgment (footnote 103), paragraph 37.

119 Paragraphs 20-55 above.