C-32/68

1. Only measures capable of directly governs the second so that this pro­ affecting a specific legal situation may vision only confers unlimited juris­ be considered as having an adverse diction on the Court where there is effect. a dispute within the meaning of the 2. The first sentence of Article 91(1) first sentence.

In Case 32/68

Giuseppe L. V. Grasselli, an official of the Commission of the European Communities, residing at 25 Via Bembo, Cemona, represented by Marcel Grégoire, Advocate at the Cour d'Appel, Brussels with an address for service in Luxembourg at the Chambers of Tony Biever, 83 boulevard Grande- Duchesse-Charlotte,

applicant,

v

Commission of the European Communities , represented by its legal Adviser, Pierre Lamoureux, acting as Agent, with an address for service in Luxembourg at the Chambers of Emile Reuter, 4 boulevard Royal,

composed of: R. Monaco, President of Chamber, A. M. Donner (Rapporteur) and J. Mertens de Wilmars, Judges,

Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I— Summary of the facts This decision was notified to the appli­ cant by letter of 21 June 1968 from The facts which are the subject matter the Directorate-General for Personnel of the proceedings may be summarized and Administration. as follows: At that time the applicant was asked The applicant, who was engaged by to opt between a pension and the im­ the High Authority of the European mediate settlement of his rights and, Coal and Steel Community on 5 Octo­ further, if he chose a pension, to opt ber 1961, was as from February 1963 between the application to him, for the attached to the Directorate-General purpose of determining his remunera­ (ECSC) which consequent upon an tion, of Article 5 of Regulation No amalgamation of the Executives became 259/68 or of Article 34 of the former the Directorate for Steel in Directorate- Staff Regulations of the ECSC (cf. General III of the single Commission. Article 7 of Regulation No 259/68). He was an official in Grade A6, with the By a memorandum dated 16 September title of Administrator. 1968 and signed by Mr Reichling, a On 8 April 1968, the applicant sub­ table was forwarded to the applicant ex­ mitted a request that his service be plaining his rights as from the date of terminated, based on the provisions of the termination of his service, under Article 4(3) of Regulation (EEC, Eura­ the alternatives of applying Article 5 of tom, ECSC) No 259/68 of the Council Regulation No 259/68 or Article 34 of of 29 February 1968 (OJ No L 56, the former ECSC Staff Regulations. 4. 3. 1968). On 27 September 1968 the applicant At its meeting on 20 June 1968, the submitted an appeal through official defendant took a decision in favour of channels to the President of the Com­ this with effect from 1 October 1968. mission.

He pointed out that it was wrong that 1968, signed by Ch. Reichling in the in the event of his opting for Article form of an explanatory table of the 34 of the former Staff Regulations of applicant's rights as from the ter­ the ECSC a reduction coefficient should mination of his service in so far as be applied to his pension and that he it envisaged the application of Article should be refused entitlement to the 34 of the former version of the dependent child allowance. Staff Regulations and, in that event, He asked for a revision of the decision denied the applicant a right to a to be taken on the basis of the said dependent child allowance and the table. right to a full pension without ap­ On the same date the applicant wrote plying a reduction coefficient; to Mr Reichling informing him: — in exercise of its unlimited jurisdic­ (a) that he was in agreement with the tion to rule that in the event of his date — 1 October 1968 — of termina­ opting for Article 34 of the former tion of his service; Staff Regulations, the provisions of (b) that he had decided to opt for the Article 5 (8) of Regulation No 259/­ pension in conformity with the pro­ 68 will also be applicable; visions of Article 6 of Regulation — in any event to order the defendant No 259/68; to pay the costs.' (c) that he was holding in abeyance his The defendant contends that the Court decision on the choice available to should: him under Article 7 of Regulation '—reject the application in its entirety No 259/68 until after a decision had as inadmissible or unfounded; been reached on his appeal through — order the applicant to pay the costs. official channels a copy of which was enclosed. By letter dated 18 October 1968, but III — Submissions and argu­ posted in Brussels on 6 November 1968, ments of the parties which reached him in Montecatini on 13 November 1968, Mr van Gronsveld, The submissions and arguments of the Director-General for Personnel and Ad­ parties may be summarized as follows: ministration informed the applicant that A — Admissibility his letter of 27 September 1968 to the President of the Commission had been According to the defendant in its state­ carefully examined but that for the ment of defence the admissibility of the reasons set out therein his arguments application gives rise to serious doubts. could not be accepted. Whilst it relies on the wisdom of the By an application dated 13 December Court in this matter it sets out the fol­ 1968 and lodged at the Court Registry lowing facts in connexion with the on 16 December 1968 the applicant re­ problem: ferred the matter to the Court. 1. It is a question of the interpretation of provisions and not their applica­ II — Conclusion of the tion; moreover an official notice pub­ lished in the Staff Courier of 16 parties April 1968 issued a reminder that The applicant claims that the Court it was for the purposes of informa­ should: tion only and not binding on the Commission'. '—annul the disputed decision, com­ 2. The applicant has an interest in ob­ municated as a schedule to the taining an authentic interpretation of memorandum dated 16 September the provisions in question.

the official might lose the right of With regard to the application of a re­ appeal against the actual application duction coefficient, the defendant, in its of the provisions in question, owing statement of defence, states that this to his failure to take action within application is in accordance with the the appropriate period against their provisions referred to and that: interpretation as notified to him by 1. The pension rights form part of the the Commission. remuneration referred to in Article According to the defendant in his re­ 7(1) of Regulation No 259/68, as that joinder, it is clear from a reading of the provision refers not only to Article 34 applicant's arguments that in reality the of the former Staff Regulations of the present proceedings do not constitute an ECSC but also to Article 50 of the application for the annulment of a de­ Rules and Regulations of the ECSC. cision but an endeavour to make an ap­ 2. Since the abovementioned Article 34

end of such period . . .') that this pointless, since the sums to be paid provision is applicable only to officials under the ECSC system are always who, having opted for the ECSC lower than those resulting from the system, are not entitled to receive the application of Article 5 of Regulation grant provided for in Article 5(1) dur No 259/68. ing the period provided for in Article 3. The 'period' mentioned in the fourth 5(2). subparagraph of Article 5(7) of Regu

by Article 5 of Regulation No 259/68. lowance, the phrase 'in application of 5. The words 'these provisions' appear these provisions' in Article 5(8) of Regu ing in Article 5(8) include all the lation No 259/68 clearly refers to the provisions of Chapter II of Regula provisions of that article. It follows tion No 259/68. that the officials who have opted for the According to the defendant in its rejoin ECSC system are excluded from the der the concept of 'remuneration' in benefit provided for in Article 5(8). volves a distinction with regard to rights In his reply, the applicant states first of which do not relate to a sum of money. all that the expression 'remuneration' On the other hand, the Commission can only be understood by excluding states, with examples given in support, other rights, in particular those pertain that its interpretation by no means ex ing to social security. Consequently he cludes the fact that in various instances replies to the defendant's arguments by the outcome of the application of the alleging in particular: ECSC system may be more advantageous than that resulting from the application A — As to the reduction coefficient of Article 5 of Regulation No 259/68.

In fact, since clude the application of the other the former Staff Regulations of the provisions, such as Article 59 in ECSC and the Rules and Regulations particular. of the ECSC were no longer in force, 2. The figures given by the two inter it was indeed necessary to provide that pretations put forward show that, remuneration should be determined in contrary to the applicant's interpre accordance with the abovementioned tation, that proposed by the defendant Articles 34 and 50 and the reference by renders the option provided for by Article 34 to the 'pension scheme' of Article 7 of Regulation No 259/68 necessity refers to the present pension

scheme (Annex VIII to the present Staff consequently ordinary law is applicable. Regulations of Officials of the European Consequently this allowance is in fact Communities). Article 9 of this Annex included in the 'remuneration' and in the contains almost exactly the same pro­ option provided for by Article 7 of visions as Article 59 of the Rules and Regulation No 259/68. Regulations of the ECSC. Moreover, as the provisions of Article The defendant further states mat Article 5(7) and (8) of Regulation No 259/68 5 of Regulation No 259/68 by itself clearly constitute an entity, the argument constitutes a complete and independent based by the applicant on the said scheme which neither refers to other paragraph (8) is false. schemes nor requires to be combined In the oral procedure the defendant with other pre-existing schemes. This again summarized its interpretation of the complete new scheme constitutes one disputed provisions in the light of the of the options provided for by Article 7 subsequent rules and regulations govern­ of Regulation No 259/68. In fact, there ing the position of the officials of the can be no question of using the option European Communities. It follows from to obtain the advantage both of the for­ this that the sole aim of Article 7 of mer and of the new schemes and to Regulation No 259/68 is not to deprive avoid their disadvantages. the former officials of the ECSC of the The defendant then disputes the appli­ rights or advantages which were en­ cant's argument based on Article 5(9) tailed by the continuation of the ECSC and (10) of Regulation No 259/68. In system, but at the same time not to add fact, those provisions merely stipulate new advantages. for the persons covered by Article 5 rights normally provided for by the Staff IV — Procedure Regulations of Officials of the European Communities. On the other hand, the The written procedure followed the nor­ fourth subparagraph of Article 5(7) mal course. On hearing the report of the abovementioned confers a special benefit Judge-Rapporteur and the views of the on those whose situation is governed by Advocate-General, the First Chamber the scheme of Article 5. of the Court decided to open the oral With regard to the dependent child procedure without any preparatory in­ allowance, the defendant alleges that quiry. The parties presented oral argu­ Article 34 of the former Staff Regula­ ment at the hearing on 11 November tions of the ECSC and Article 50 of 1969. The Advocate-General delivered the Rules and Regulations of the ECSC his opinion at the hearing on 27 do not deal with this question and November 1969.

6 In fact, in an official notification published in the 'Staff Courier' of 16 April 1968, the Commission recalled that the data provided at the request of the persons concerned in the application of Regulation No 259/68 were for the purposes of information and not binding on the Commission.

7 Consequently information such as that at issue in this case cannot be recog­ nized as having an effect adverse or otherwise on the legal position of officials.

8 The application for annulment is thus inadmissible.

9 In his application the applicant secondly asks the Court, 'in exercise of its unlimited jurisdiction to rule that in the event of his opting for Article 34 of the former Staff Regulations, the provisions of Article 5(7) and (8) of Regula­ tion No 259/68 will also be applicable'.

10 The first sentence of Article 91(1) governs the second so that this provision only confers unlimited jurisdiction on the Court where there is a dispute within the meaning of the first sentence.

11 It follows from the foregoing that ipso facto the Court lacks jurisdiction to give the ruling requested.

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

17 However, under Article 70 of the Rules of Procedure, in proceedings com­ menced by servants of the Communities, institutions shall bear their own costs.

On those Pi grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaties establishing the European Communities; Having regard to the Protocol on the Statute of the Court of Justice; Having regard to the Staff Regulations of Officials of the European Com­ munities, especially Article 91; Having regard to Regulation No 259/68, especially Article 7; Having regard to the Rules of Procedure of the Court of Justice of the Euro­ pean Communities;

THE COURT (First Chamber)

hereby: