C-31/72

JUDGMENT OF THE COURT (FIRST CHAMBER) 4 APRIL 1973 1

Domenico Angelini v the European Parliament

Case 31/72

1. Officials — Non-contentious procedure — Commencement — Request starting time running — Absence of such effect Staff Regulations, Article 90, Article 91)

2. Officials — former ECSC Staff Regulations — Application for calculation of pension

3. Officials — Contractual employees — Transfer to Staff Regulations — Previous contract — Effects — Renunciation

address for service in Luxembourg at the seat of the European Parliament, Kirchberg, c/o the Secretary General,

Application for annulment of a decision of the President of the European Parliament of 7 March 1972, rejecting the request made in a letter of 4 January 1973 whereby the applicant sought, first, the calculation of his pension on the basis of the transitional provisions of the old ECSC Staff Regulations and, second, the revisions of his classification with effect from 1 January 1962 in grade A 3, taking account of the step which he had held previously in grade A 4.

THE COURT (First Chamber)

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

Advocate-General: K. Roemer

Registrar: A. Van Houtte

On 4 January 1972 he sent a letter to the — to make an order as to cost in President of the European Parliament accordance with the rules in force.' claiming that his pension should be calculated on the basis of the ECSC Staff Regulations in force between 1957 and III — Pleas and arguments 1961, i. e. during the period when he put forward by the had been in service, first as an auxiliary parties and later as a contractual servant. He argued that he had been deprived, when The pleas and arguments put forward by he was established in grade A 3 on 1 the parties may be summarized as January 1962, of the steps which he had follows: reached in grade A 4. On 7 March 1972 the President of the 1. Admissibility of the proceedings European Parliament replied that his claim had been rejected, since the Rules The defendant pleads that the for Auxiliaries were completely proceedings are inadmissible because independent of the ECSC Staff they are time-barred and because of the Regulations and the Rules No APE 351 applicant's renunciation and delay. made no wholesale reference to those — Expiry of time limits Regulations. The defendant pleads that the In addition his claim was time-barred in proceedings are time-barred, both with so far as it concerned his movement respect to the implied decision of refusal, from grade A 4 to grade A 3. which was deemed to occur, according On 6 June 1972 Mr Angelini instituted to Article 91 (2), second subparagraph, proceedings against this decision; his two months after the claim of 4 January application reached the Registry on 12 1972, and with respect to the decision of Tune 1972. At the hearing on 7 February the President of the European Parliament 1973 oral statements were made on of 7 March 1972, which in any case behalf of the applicant by Maître Biel merely confirmed the previous implied and on behalf of the European refusal and could not therefore re-open Parliament by Maître Gambino. the time limits for instituting proceedings The Advocate-General presented his (Judgment of 7 July 1971, 79/70, Müllers v Economic and Social opinion at the hearing on 1 March 1973. Committee, Recueil 1971, 689; Judgment of 24 June 1971, 53/70, Vinck v Commission, Recueil 1971, 601; II — Submissions of the Judgment of 17 March 1971, 47/70, parties Kschwendt v Commission, Recueil 1971, 251; Judgment of 14 April 1970, 24/69, The applicant asks the Court: Nebe v Commission, Recueil 1970, 145). The proceedings are also time-barred '1. to annul the decision of the President with respect to the decision to retire the of the European Parliament, applicant, taken on 6 January 1972 and notified to him on 8 February 1972. 2. to grant the claims put forward in his letter of 4 January 1972.' The applicant considers that the plea of inadmissibility must be rejected. The The defendant asks the Court: letter of 4 January 1972 merely had a preventive character and therefore did '— to declare that the claims put not constitute a request to the forward by the applicant are appointing authority within the meaning inadmissible, or at least to reject of Article 90, meeting with a refusal them on the merits, implied from the absence of a decision

applicant had also, by his declaration of The applicant claims that his pension 2 January 1963, expressly waived his should be fixed on the basis of the ECSC rights under the contract which existed Regulations. before 1 January 1962 between him and He argues that it is impossible that a the European Parliament, thereby right which he possessed, at the time confirming by an express declaration when he moved from the contractual the waiver which was already included system to the system of the EEC-EAEC in the actual text of Article 104 of the Staff Regulations, should disappear by Staff Regulations. virtue of Article 102 of the Staff By that declaration, the substitution of Regulations, solely because he accepted the EEC-EAEC Staff Regulations for the that transfer. The nature of the rights in previous contractual rules became question, being referable to public policy, unchallengeable and excluded any makes waiver impossible. subsequent attack. Moreover, he could not have claimed, at Moreover, the proceedings are also the moment of his transfer, a right which time-barred and therefore inadmissible would not become due until the moment

pension, regarded as deferred remunera­ retirement. This principle corresponds to tion, could not be affected by an adverse the rules governing the civil service in amendment, as shown by Article 92 in the Member States. the transitional and final provisions of The defendant adds that contributions to the Staff Regulations of 1 January 1962. the Provident Fund were taken into Consequently, an official cannot be account when the pension was deprived of a right which, if his contract calculated, and that in fact the had simply come to an end in 1962, applicant's length of service had even would have enabled his pension to be been extended backwards, in accordance paid in accordance with the transitional with Article 48 of Annex VIII to the provisions of the ECSC Staff Staff Regulations, to 16 May 1957, the Regulations. date when he took up his duties as an In its statement of defence, the defendant auxiliary servant, although he had not institution maintains that the applicant been affiliated to any fund before 1 July was never subject to the ECSC Staff 1958, because, during the first period, Regulations. These regulations provided the Rules for auxiliaries did not provide no rules for auxiliaries and other for such affiliation. The applicant could servants. On cases where the Rules for not derive any right from Annex X to auxiliaries entailed the application, by the Staff Regulations which governed analogy, of certain provisions of the only the establishment of officials ECSC Staff Regulations, such provisions holding a permanent post in one of the were expressly indicated. Besides, the institutions when the Staff Regulations Rules applicable to contractual servants came into force. (No APE 351) referred to a special Article 92 of the Staff Regulations Provident Fund, governed by specific concerns only those officials who had rules (Provisional Rules adopted by the been brought under the ECSC Staff Bureau on 8 April 1959 — No APE Regulations; it was provided that the 1658), with an independent fund separate from the fund provided for the new Staff Regulations would apply staff subject to the ECSC Staff automatically to these officials in place Regulations. of the Staff Regulations repealed. Article 92 does not have the meaning attributed Even if the applicability of the ECSC to it by the applicant, but merely Staff Regulations were conceded, no provides that the new Staff Regulations illegality could be discerned in changing may not prejudice acquired rights. from one set of Staff Regulations to another. The relationship between While denying that an adverse temporary servants and Community amendment took place, the defendant institutions should be regarded as a points out that in any case the nature of public law relationship (Judgment of 19 the amendment should be determined by July 1955, 1/55, Kergall, Recueil 1955-6, comparing the general scope of the new 11) and the letter of appointment Staff Regulations with the old Staff expressly stated that it was without Regulations, and not merely particular prejudice to the creation of a different aspects.

the application is based,' as required by The defendant replies that the Court has Article 38 (1) of the Court's Rules of held constantly that its decisions concern Procedure. Moreover, the movement only the parties to the case and do not from grade A 4 to grade A 3 took place constitute a new fact for other parties pursuant to Article 46 of the EEC-EAEC whose position is similar (Judgment of Staff Regulations, which corresponds to 14 December 1965, 47/65, Kalkuhl, Article 46 of the ECSC Staff Regulations. Recueil 1965, 1252; Judgment of 8 July The applicant replies that his claim on 1965, 49/64, Stipperger, Recueil 1965, this point must be interpreted, not as a 661). legal action, but as a criticism designed The movement from grade A 4 to grade to induce the Court to annul of its own A 3, pursuant to Article 46 of the Staff motion a measure which can no longer Regulations, took place in accordance be attacked. The refusal to bring the with a criterion which the Court has applicant's treatment into line with the held to be legitimate in the case of treatment spontaneously extended by the contractual servants who were estab­ defendant to other officials, following a lished when the Staff Regulations came new trend in the Court's case law, into force Judgment of 15 December constitutes a new fact, justifying Court 1966, Joined Cases 15/64 and 60/65, proceedings. Moreau, Recueil 1966, 663).

Grounds of judgment

1 By his application of 6 June 1972, which reached the Court's Registry on 12 June 1972, the applicant instituted proceedings for the annulment of a decision of the President of the European Parliament of 7 March 1972 rejecting his claim of 4 January 1972 whereby the applicant sought to have his pension calculated on the basis of the (more favourable) transitional provisions of the old ECSC Staff Regulations and to obtain, with effect from 1 January 1962, the benefit in grade A 3 of the steps which he had reached by that date in his former grade A 4.

5 Because the applicant resided in Italy, the time limit must be increased by 10 days in accordance with Article 1 of Annex II to the Rules of Procedure, and therefore expired at the earliest on 18 June 1972. This plea of inadmissibility must therefore be dismissed.

6 The defendant goes on to argue that the proceedings are inadmissible because they seek to re-open the validity of acts which have become final, and which the applicant did not attack at the appropriate time.

7 As regards the first part of his claim, the applicant argues that his pension should be calculated on the basis of the provisions of the ECSC Staff Regulations in force until 1 January 1962. The question whether these Regulations are, in whole or in part, applicable to auxiliary servants who were brought under the EEC Staff Regulations on 1 January 1962, concerns the merits of the dispute; contrary to the defendant's arguments, this question is not necessarily linked to the applicant's establishment in grade A 3 under the EEC Staff Regulations on 1 January 1962. The proceedings are admissible in this respect.

8 The proceedings are designed, in the second place, to give the applicant, with effect from 1 January 1962, the benefit in grade A 3 of the steps which he claims to have reached by that date in grade A 4.

9 If the applicant questioned the legality of the terms on which he was established with effect from 1 January 1962, by a decision of 13 December of the same year, he should have sought the annulment of that decision within the prescribed time limit. His present proceedings are, from that point of view, time-barred and therefore inadmissible.

13 According to Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs. The applicant has been unsuccessful. However, according to Article 70 of the Rules of Procedure, costs incurred by the institutions in proceedings brought by servants of the Communities shall be borne by those institutions.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral arguments of the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Staff Regulations of the European Coal and Steel Community in force until 1 Janury 1962;

ANGELINI v EUROPEAN PARLIAMENT

Having regard to the ECSC Staff Regulations which came into force on 1 January 1962, particularly Article 92 and the single article of Annex X; Having regard to the Rules (No APE 351) of the European Parliamentary Assembly concerning servants recruited by contract in the institutions of the Communities other than the High Authority of the ECSC; Having regard to the Staff Regulations of the European Economic Community; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Article 1 of Annex II:

THE COURT (First Chamber)

OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 1 MARCH 1973 1

Mr President, European Coal and Steel Community as Members of the Court, an 'auxiliary assistant adviser' on the basis of a contract dated 28 May 1957. The applicant in the case on which I am The said contract was originally valid presenting my opinion entered the for the period 16 May 1957 to 30 June service of the Common Assembly of the 1957. Later it was repeatedly extended, it

1 — Translated from the German.