Opinion of Advocate General Lenz delivered on 19 January 1994

1 Original language: German.

2 Under Article l8Sb(3) of the EC Treaty (which is identical to the former Article 206(4) of the EEC Treaty), the members of the Court of Auditors are appointed for a term of six years.

3 OJ 1977 L 268, p. 1. The text of that Regulation has since been amended several times, most recently by Council Regulation (EEC, Euratom, ECSC) No 1084/92 of 28 April 1992 (OJ 1992 L 117, p. 1). For the purposes of the present proceedings the only relevant amendment is that by Council Regulation (Euratom, ECSC, EEC) No 1416/81 of 19 May 1981 (OJ 1981 L 142, p. 1), which gave Article 16(1) of Regulation No 2290/77 its present form.

4 Article 16(1) appears at first sight to contain three subparagraphs. The Court of Auditors accordingly refers in the defence to the first, second and third subparagraphs of that paragraph. The applicant, on the other hand, regards the first two subparagraphs as belonging together and thus counts only noo subparagraphs (the section containing the rule applicable in the event of the death of the member during his term of office forming the second subparagraph). I shall use below, for the sake of clarity, the designations chosen by the Court of Auditors.

5 The letter incorrectly refers here to Article 16(1).

6 The application in the instant case was lodged before the entry into force of the Maastricht Treaty, by which the title of the EEC Treaty was changed to Treaty establishing the European Community' (EC Treaty). For simplicity I shall refer in this Opinion to the relevant provisions of the EC Treaty which are now in force, pointing out any changes which may have been made from the provisions of the EEC Treaty.

7 OJ, English Special Edition 1967, p. 222. The Regulation has since been amended on several occasions, most recently by Council Regulauon (EEC, Euratom, ECSC) No 3762/92 of 21 December 1992 (OJ 1992 L 383, p. 4).

8 Judgment in Case 22/70 Commission v Council [1971] ECR 263, paragraph 42.

9 Under Article 81(1) of the Rules of Procedure of the Court of Justice, the period of time allowed for commencing proceedings against measures adopted by an institution runs from the day following the receipt by the person concerned of notification of the measure. Under Article 81(2) of the Rules of Procedure and Article 1 of Annex II to those rules, the time-limit is extended by two days for applicants from Belgium.

10 There is also no provision in the Treaty with respect to the Court of Auditors analogous to Article 180, by which jurisdiction is conferred on the Court of Justice to decide proceedings against certain acts of the European Investment Bank, under the conditions laid down in Article 173.

11 Judgment in Joined Cases 193 and 194/87 Maurissen and others v Court of Auditors [1989] ECR 1045.

12 Judgment in Case 294/83 Les Verts v Parliament [1986] ECR 1339.

13 Ibid., paragraph 23.

14 Ibid., paragraph 25.

15 Maurissen, p. 1064, paragraph 53.

16 Ibid., Opinion of Mr Advocate General Darmon, p. 1065, paragraph 57.

17 Ibid-, p. 1064, paragraph 54. It is thus abo irrelevant that the Court of Auditors is now expressly recognized as an institution of the Community by Article 4(1) of the EC Treaty (as amended by the Maastricht Treaty).

18 This point will be discussed in the following section (paragraph 20 et seq.).

19 Maurissen , cited above, paragraph 29 et seq. (especially paragraph 49). With respect to the other decision of the Court of Auditors challenged by the trade union, the application was declared inadmissible as being out of time.

20 OJ 1988 L 319, p. 1.

21 Judgments in Case 9/75 Meyer-Burckhardt v Commission [1975] ECR 1171, paragraph 7, and Case 48/76 Reinarz v Commission and Council [1977] ECR 291, paragraphs 9 to 12.

22 The question whether this is also the case for legai remedies against regulations need not be examined here (see on this f)oint, for example, S. Van Raepenbusch, Le contentieux de a fonction publique européenne, CDE 1992, p. 564, aï pp. 572Í). The case-law in this field appears not to be altogether consistent. For example, in its judgment in Joined Cases 87 and 130/77, 22/83, 9 and 10/84 Salerno v Commission and Council [1985] ECR 2523, the Court held that the application brought by several members of the staff of the European Association for Cooperation (an association entrusted by the Commission with certain tasks) against a regulation laying down conditions for their appointment as Community officials was admissible under the second paragraph of Article 173, but dismissed them as unfounded. The Court based its decision on costs, however, on Article 70 of the Rules of Procedure (under which the institutions are to bear their own costs in proceedings by servants of the Communities), although that provision is applicable only to actions based upon Article 179 (Judgment in Case 64/80 Giuffrida and Campogrande v Council [1981] ECR 693, paragraph 9).

23 That view is shared by E. Grabitz in: Grabitz (ed.), Kommentar zum EWG-Vertrag (updated to September 1992), paragraph 3 on Article 179.

24 judgment in Case 58/75 Sergy v Commission [1976] ECR 1139, paragraph 32.

25 Under Article 73 of the Conditions of Employment of Other Servants, the provisions of Title VII of the Staff Regulations, concerning appeals (Articles 90 and 91), apply by analogy to such servants.

26 See the judgments in Case 18/70 Duraffour v Council [1971] ECR 515 and Case 24/71 Meinhardi v Commission [1972] ECR 269.

27 Judgment in Case 163/88 Kontogeorgis v Commission [1989] ECR 4189.

28 Cited above (footnote 6). Article 11 of that Regulation has the same content as Article 12 of Regulation No 2290/77.

29 [1989] ECR 4194, at p. 4196 (paragraph 7 a sea.). The applicant had mistakenly based his application on Article 172 of the EC Treaty and Article 22(3) of the Staff Regulations.

30 Ibid., p. 4197 (paragraph 9).

31 Since the entry into force of Council Decision 93/350/Euratom, ECSC, EEC of 8 June 1993 amending Council Decision 88/591/ECSC, EEC, Euratom establishing a Court of First Instance of the European Communities (OJ 1993 L 144, p. 21), the Court of First Instance also has jurisdiction in actions brought by natural or legal persons pursuant to the second paragraph of Article 173 (with the exception of actions brought against measures under Article 113 of the EC Treaty). The present action by Mrs H. is not affected thereby, since at the time of the entry into force of the said decision the preliminary repon provided for in Article 44(1) of the Rules of Procedure had already been presented (see Article 4 of the Decision).

32 It may be noted in passing that the circumstance that the plaintiff in the present case, after bringing an action before the Court of Justice, submitted a complaint to the Court of Auditors in accordance with Article 90 of the Staff Regulations and after rejection of that complaint brought proceedings before the Court of First Instance on the basis of Article 179 is not relevant to the question of the admissibility of the present proceedings. The action before the Court of First Instance was brought purely as a precaution, as Mrs H.'s representative stated at the hearing before the Court of Justice. Mrs H.'s lawyer thereby sought in laudable fashion to protect his client against all eventualities. That must not, however, affect the decision on the admissibility of these proceedings.

33 The applicant's complaint that the Court of Auditors was not entitled to deduct sickness insurance contributions and taxes when determining the survivors' pensions in any event concerns only the applicant herself (see paragraph 4 above).

34 Article 1(2) of Regulation No 1461/81 (see footnote 2) replaced the last sentence of Article 16(1) by the subparagraph in question here.

35 Under Article 10 a member is entitled to a pension of 4.5% of the basic salary last received for each full year in office and one-twelfth of that sum for each complete month (see paragraph 3 above, in fine).

36 After a term of office of eight years a member would be entitled to a pension of 36% of kis basic salary (4.5% x 8).

37 See the (single) recital in the preamble to Regulation No 1416/81 (cited above, footnote 2).

38 As a further example of the inadequacy of the legislative provisions, one might point to the fact that the third subparagraph of Article 16(1) represents a special provision with relation to the second subparagraph of Article 16(1), which appears to lay down definitive rules for the area it relates to (the cases where a member dies during his term of office). Under that rule the widow would in all cases receive 36% of her husband's last basic salary. It turns out, however, that the rule in the second subparagraph of Article 16(1) can also be more advantageous for the widow. If the member's term of office has already lasted long enough to give him the highest possible pension entitlement (70% of his basic salary; see Article 10 of the Regulation), a calculation on the basis of the second subparagraph gives a pension of 42% (60% of 70%) of the basic salary. It cannot be supposed that the third subparagraph is to apply in such cases, although the legislative provision appears to prescribe this.

39 See, most recently, the annual report concerning the financial year 1992, OJ 1993 C 309, p. 1.

40 Official Journal, 24 March 1954, p. 275; there is no official English text of this Decision.

41 Official Journal, 6 July 1954, p. 437; there is no official English text of this Decision.

42 For instance, according to the references in the preamble to the decision of 24 June 1954, that decision was based on a proposal from a committee. Neither that proposal nor the drafts of later legislative measures in this field appear ever to have been published, however.

43 The German text of the Decision uses only the expression Hinterbliebenenbeziige (survivors' pensions) at this point. However, it is clear from the French version {Le total des pensions), which under Article 100 of the E CSC Treaty is the only authentic version, that the text in fact means Gesamtbetrag der Hinterbliebenenbezíige (total amount of the survivors' pensions). That expression is also the one used at the corresponding point in Article 10 of the decision of 24 June 1954 (on the emoluments of the Members of the Court of Justice).

44 In the regulation concerning the Court of justice (on which see below), Article 22 provides that all previous provisions on emoluments shall be repealed, but the Decision of the Special Council of Ministers of the ECSC of 13 and 14 October 1958 shall, however, remain in force. That decision has not been published, so that the possibility cannot be excluded that it related also to the topic in question here. The point is of purely historical interest, however.

45 OJ, English Special Edition 1952-1958, p. 255.

46 OJ, English Special Edition 1952-1958, p. 250. The Regulation is not dated.

47 OJ, English Special Edition 1952-1958, p. 259.

48 OJ, English Special Edition 1952-1958, p. 263.

49 The new provisions speak of basic salary, whereas the decisions of 1953 and 1954 speak of salary. It is questionable whether the new choice of words resulted in a change to the basis of calculation. In any event, the maximum pension payable amounts to 50% of the last basic salary (Article 9), corresponding to the provisions in the 1953 and 1954 decisions.

50 Apan from the reference, mentioned above, to basic salary instead of salary (see footnote 48).

51 Probably the most striking — and amusing — example is the manuscript of the Lex Salica, dating from the sixth or seventh century and written by the monk Agamben. See on this point e.g. H. Nehlsen, Zur Aktualität und Effektivität germanischer Rechtsaufzeichnungen, Recht und Schrift im Mittelalter, ed. P. Classen, p. 449, pp. 465 f.

52 See for example the judgment in Case 29/69 Stauder v Ulm [1969] ECR 419, paragraph 3.

53 See footnote 6 above and the corresponding text (with the present title of the Regulation).

54 OJ, English Special Edition 1970, p. 724.

55 OJ, English Special Edition 1971, p. 200.

56 Article 3 of Regulation No 723/71. That provision also confirms that my numbering of the subparagraphs of the Regulation in question (see footnote 3) is appropriate.

57 See paragraph 45 above, in fine.

58 The passage in question (which forms the second indent of the third subparagraph of Article 16(1) of Regulation No 2290/77) was inserted into the relevant provisions by Regulation No 1416/81 (see footnote 2).

59 OJ 1973 L 155, p. 8.

60 The references in Article 15 to the Commission and Court of Justice were of course replaced in Regulation No 2290/77 by references to the Court of Auditors.

61 The decision of 22 July 1992 refers in this respect to Article 12 of the Regulation. However, that inaccuracy (in any case not specifically complained of by the applicant) is in my opinion of no relevance for the present case.

62 See footnote 26 above.