C-15/73

JUDGMENT OF THE COURT (SECOND CHAMBER) 21 FEBRUARY 1974 1

Roswitha Schots, nee Kortner, and others v Council and Commission of the European Communities and European Parliament

Joined Cases 15 to 33, 52, 53, 57 to 109, 116, 117, 123, 132 and 135 to 137/73

Summary

1. Officials — Appeals — Act adversely affecting — Notification — Salary statement (Staff Regulations, Article 90)

2. Officials — Appeals — Provision of the Staff Regulations — Non-applicability — Finding by the Court — No retrospective effect — Time limit — Re-opening — Non-admissibility (Staff Regulations, Article 91) 3. Community law — Provision — Due regard to procedural and formal conditions — Illegality of the rule in question — Description as 'non-existent' — Inadmissibility

1 — Language of the Case: French.

JUDGMENT OF 21. 2. 1974 — JOINED CASES 15-33, 52, 53, 57-109, 116, 117, 123, 132 AND 135-137/73

20/73 MARLÈNE MEYER

21/73 ANITA DAERDEN

22/73 MARIE-THÉRÈSE DE CUYPER

23/73 GISELLA MILANESI-DE MOOR

COUNCIL OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser Gonzague Lesort, with an address for service in Luxembourg at the office of P. Lamoureux, 4 boulevard Royal, defendant,

28/73 INGEVELDE DEBATTICE

29/73 YVETTE HOUYET- LE CREFF

30/73 HERTA-MARIE DEBOIS

31/73 GODELIEVE VAN NUFFEL 32/73 MARIE-ELISABETH LEONARD 52/73 MARIA GOBIN-HUNZE 53/73 ANNA-MARIE RAINALDI-BEHR

57/73 MICHELINE SCHEFFLER-PILLONS 58/73 GISELA FRANÇOIS-GERSTER

SCHOTS-KORTNER AND OTHERS v COUNCIL, COMMISSION AND PARLIAMENT

67/73 INGRID LALOUX-HERRMANN

68/73 ANNE ZALINSKY-POTEMKINE

69/73 URSULA FRANCQ-KNÜVER 70/73 GORDINA DECLERCK-VAN DEN REEK

71/73 ELIANE VAN HAMME-WILLEMS

72/73 INGEBORG JOPPART-KLUWIG 73/73 ANNA-MARIA CLUDTS-DETILLON

80/73 PAOLA CORBIAU-MARCHELLO

81/73 JEANINE DUCHESNE-LABAYIE 82/73 EDITH DUMONCEAU-DRIEUX 83/73 ANNELIESE BECHET-WINKLER

84/73 ALBERTA DEBAISE-DEGLI ESPOSTI

85/73 MARIA FORNASIER-SIMON

86/73 BARBARA VANDER VELDE-FELLER

87/73 CARLA COSYNS-CROSETTO

96/73 MIREILLE THILGES-PORTE 97/73 ELIANE HAGEN-VAN LIEFFERINGE 98/73 CHRISTL SWARTENBROECKX-WEBER

99/73 GISELA VANDEN AVONT-ZIEPRIES

100/73 BRIGITTE DESPIC-TOUROLLE

101/73 EVA WAUTREQUIN-TRAFOJER 102/73 YVETTE DELACROIX-GLANIA

103/73 GISELA NAUWELAERTS-SCHEDLITZ

JUDGMENT OF 21. 2. 1974 — JOINED CASES 15-33, 52, 53, 57-109, 116, 117, 123, 132 AND 135-137/73

all officials of the Commission of the European Communities, represented by Maître Marcel Grégoire, with an address for service in Luxembourg at the chambers of Maître T. Biever,

and

137/73 CHARLOTTE RENIERS-SCHILLER,

official of the Commission of the European Communities, represented by Maître Thierry Chomé, advocate at the Brussels Bar, with an address for service in Luxembourg at the chambers of Maître T. Biever,

applicants,

v

123/73 MARIA-LUISA HETTINGER-AVANCINI,

all officials of the European Parliament, represented by Maître Marcel Gré­ goire, with an address for service in Luxembourg at the chambers of Maître T. Biever,

applicants,

SCHOTS-KORTNER AND OTHERS v COUNCIL, COMMISSION AND PARLIAMENT

v

European Parliament, represented by its Secretary-General Hans Robert Nord, assisted by Maître Alex Bonn, advocate at the Luxembourg Bar, with an address for service at the chambers of Maître Bonn, 22 Cote d'Eich, defendant,

THE COURT (Second Chamber)

composed of: M. Sørensen (Rapporteur), President of Chamber, P. Pescatore and Lord Mackenzie Stuart, Judges,

Advocate-General: A. Trabucchi Registrar: A. Van Houtte

gives the following

JUDGMENT OF 21. 2. 1974 — JOINED CASES 15-33 , 52, 53 , 57-109, 116, 117, 123, 132 AND 135-137/73

JUDGMENT

A — The facts of the cases, the subject plaints through their immediate matters of the applications and the views superiors, requesting payment of the of the parties may be summarized as arrears of expatriation allowance. The follows: periods in respect of which the applicants claim payment of arrears are of very different duration, the longest I — Facts and procedure going back to February 1953 and the shortest to February 1972. 1. The applicants, who are officials of The applications were either expressly or the institutions of the European bv implication rejected by the Communities, as a result of their defendants. marriage and application of Article 4 (3) of Annex VII of the Staff Regulations in 2. By applications lodged with the the then current version before its Court between 27 February and 23 May deletion by Regulation No 558/73 of the 1973, the applicants asked the Court to Council of 26 February 1973 (OJ L 55 of order payment of the arrears of the 28 February 1973, p. 1), had their expatriation allowance as from the expatriation allowance withdrawn or date when that allowance was refused by decisions of the institutions withdrawn or refused up to the date to which they belonged. when it was restored and, to the extent By judgments of 7 June 1972 in Cases necessary, to annual the decisions on the 20 and 32/71 (Sabbatini v European part of the defendants withdrawing or Parliament and Bauduin v Commission, refusing this allowance. Rec. 1972, pp. 345 and 363) the Court 3. In statements lodged between 4 held that the said Article 4 (3) of Annex April 1973 and 26 June 1973, the VII to the Staff Regulations established defendants raised objections concerning an arbitrary difference in treatment the admissibility of the applications and between officials, in that it made the asked the Court, in conformity with right of the interested officials to Article 91 of the Rules of Procedure, to continuance of the expatriation decide upon these objections without allowance after marriage dependent on going into the substance of the matter. the acquisition of the status of head of household, as that was defined at the 4. In statements lodged between 14 time. Consequently the Court held that Tune 1973 and 23 July 1973, the the decisions by which Mrs applicants argued that the objections as Sabbatini-Bertoni and Mrs Bauduin- to admissibility were not well-founded. Chollet had had their expatriation allowance withdrawn lacked legal basis 5. By orders of 19 March, 21 March, and must be declared void. 27 March and 30 May 1973 the Court, having heard the Advocates-General, As a result of these judgments, the decided to assign Cases 28 to 32, 52 and defendants granted to all the applicants 53, 57 to 104, 116 and 117, 132 and 135 the expatriation allowance with effect to 137/73 to the Second Chamber. from 1 July 1972. Between 25 July 1972 and 14 November 6. By orders of 11 April and 30 July 1972, the applicants submitted com­ 1973, the Court (Second Chamber) after

period between the decisions of the The applicants in all the cases, except authority and the complaints therefore Case 137/73, reply that the appeals are amounted to well beyond the three in the first place actions for payment of months' period specifically laid down by arrears and that actions for payment of Article 90 of the Staff Regulations. money due constitute an autonomous Besides, the applications are not form of action that is not subject to the admissible under Article 91 of the time limits of Article 91 of the Staff Regulations. In none of the cases was a Regulations. As a subsidiary point, the complaint received by the authority applicants argue that, at any rate in the within the periods laid down by Article majority of cases, they were, able to 90. ascertain that the expatriation allowance The Commission points out that as had been discontinued or had remained regards Cases 28 to 32, 52 and 53, 57 to unpaid only by reading their salary 104, 116 and 117, 132 and 135 to statements, there not having been any 137/73, a simple examination of the express and written communication on dates when the allowance was stopped this point, stating reasons. As regards the or refused and the date when the salary statements, these have no value applications were lodged, shows that the except simply for information. That applications are inadmissible because being the case, the decisions resulting in they are time-barred, having been made the discontinuance or refusal of the after the expiration of a period of three allowance were not properly notified to

was based upon the illegality found to modification of the legal view of the administration vis-à-vis officials other exist in the rule of law applied to the parties involved — as is was to the than the applicant, from which the latter applicants. Accordingly the declaration claim to benefit. of annulment contained in the judgments The applicant in Case 137/73 maintains of 7 June 1972 involves a judgment not that in the light of the general principles only in the specific case but of general and of principles of internal law import, since it is concerned with the accepted in the Member States it is legality of a provision of general important to clarify the nature, the effect applicability which was applied equally and the extent of the judgments of the and under the same conditions to the Court of 7 Tune 1972, holding Article 4 applicants in the present appeals. (3) of Annex VII to the Staff Regulations In the applicants' opinion it is to be illegal. She argues that an appeal permissible in these special circum­ to the Court aiming at the annulment of stances to argue that the circle of an illegal decision should be regarded as persons directly concerned by the an appeal based on an ultra vires act, judgments extends to. all those affected and that judgments given on such appeals by the provision of the Regulations held have an effect not only vis-à-vis the to have been illegal. applicants but erga omnes. The Court's The second new fact cited by the judgments cover all officials and applicants is the decision taken by the consequently also the applicant. She respondents henceforth, or again, to maintains that the effects of the nullity grant the applicants the expatriation of a legal act are reducible to the allowance with effect from 1 July 1972. cardinal principle that, the void act being Whilst it had previously been held that deemed never to have existed, its the applicants, by reasen of their consequences are retrospectively nulli­ marriage, did not fulfil — or no longer fied. It would be shocking to find that

by the prior application of a legal accordingly Articles 90 and 91 of the provision that was in fact null and of no Staff Regulations must be applicable as effect und the illegality of which extends from the Commission's decision of 1 erga omnes, one might be refused September 1972, restoring the allowance compensation on the ground that the as from 1 July 1972, without more period for appeal had expired. extensive retrospective effect. In the applicant's view the case law recognizes that a void act involving a B — The oral hearings took place on degree of irregularity or illegality that is 27 September and 15 November 1973. too striking or too unjust, must be The applicants were all represented by regarded as non-existent. The concept of Maître Grégoire, except the applicant in non-existence is used by the case law in Case 137/73, who was represented by order to correct certain rules of Maître Chomé and Maître Haas, of the procedure that might seem too rigorous Brussels Bar; the Council was in particular circumstances.

Commission. It follows from this applications constitute an autonomous situation that the Commission, which form of action, the institutions reply that itself is the author of the provisions of only Article 179 of the EEC Treaty can the Staff Regulations, creates in the provide the legal basis for appeals. And official a strong presumption that these according to this provision the limits and are in accordance with that legality on conditions determined by the Staff which all its actions rest. Moreover, the Regulations apply to all legal applicant considers that it would be only proceedings between the Community equitable for all pecuniary consequences and its staff.

JUDGMENT OF 21. 2. 1974 — JOINED CASES 15-33, 52, 53, 57-109, 116, 117, 123, 132 AND 135-137/73

There is in fact no doubt that the Regulation No 558/73 of 26 February 1973 (OJ L 55, p. 1) cancelled this applicants were aware of the withdrawal provision, but with a retrospective effect of their expatriation allowance more limited to 1 July 1972. than three months before they lodged their administrative complaint. In this As regards the administrative decisions respect the institutions refer to the granting the expatriation allowances judgments of the Court of 8 May 1973 anew as from 1 July 1972, these did no and of 30 May 1973 in Cases 33/72 and more than anticipate the advent of a new 36/72 (Gunnella v Commission and set of rules, and this was in fact brought Meganck v Commission, [1973] E.C_R_ into being by the aforementioned

concerned. In line with this reasoning, legislative or regulatory provision. the decision in the present appeals Accordingly there cannot in the present cannot be any different. Besides, this case be any question of non-existence. decision would be in conformity with The institutions point out that the principles recognized more or less concept of 'head of household', involved absolutely in the law of the different in the Sabbatini and Bauduin judgments, Member States. has in the course of years undergone an The institutions moreover stress the fact evolution in national laws and in legal that the judgments in the Sabbatini and and social thinking in general. Bauduin cases did not declare any The applicants maintain that they have annulment for reasons of illegality of the shown the existence of an administrative basic text, that is Article 4 (3) of Annex breach of duty capable of forming the

Grounds of judgment

1 The actions, filed at the Court between 27 February and 23 May 1973, are for payment to the applicants of arrears of expatriation allowance calculated from the day when this was withdrawn or refused, in application of Article 4 (B) of Annex VII to the Staff Regulations, up to the date when it was restored to them.

2 They are further for annulment — to the extent necessary — of the defendants' decisions withdrawing or. refusing the applicants the benefit of the, expatriation allowance, and of the decisions rejecting their complaints with a view to obtaining the grant of the allowance for the period prior to 1 July 1972.

JUDGMENT OF 21. 2. 1974 — JOINED CASES 15-33, 52, 53, 57409, 116, 117, 123, 132 AND 135-137/73

3 By preliminary documents, on the basis of Article 91 of the Rules of Procedure the defendants raised arguments of inadmissibility by reason of the lateness of the appeals, arguing that these had not been lodged in compliance with the rules laid down by Articles 90 and 91 of the Staff Regulations.

4 Under Article 91, an appeal to the Court of Justice shall lie only if the appointing authority has previously had a complaint submitted to it pursuant to Article 90 (2) within the period prescribed therein.

SCHOTS-KORTNER AND OTHERS v COUNCIL, COMMISSION AND PARLIAMENT

11 The basis for the appeals thus lies exclusively in Article 179 of the EEC Treaty, which provides that the Court shall have jurisdiction in any dispute between the Community and its servants within the limits and under the conditions laid down in the Staff Regulations.

12 The appeals are therefore subject to the time limits of Articles 90 and 91 of the Staff Regulations.

13 This argument must therefore be rejected.

14 Some of the applicants maintain that time has not started running against them, since the original 'decisions withdrawing or refusing the expatriation allowance were not properly communicated to them in accordance with Article 25 of the Staff Regulations.

15 The applicants could have realized that their allowance had been withdrawn or refused only by reading their salary statements, without there having in this respect been any express and reasoned written communication.

21 Finally, the applicants raise various arguments with a view to showing that time had in. any event started to run afresh in their case.

22 One of the applicants in this respect maintains that the provisions of Article 4 (3) of Annex VII to the Staff Regulations amount to illegality of so striking a kind that they must be considered as 'non-existent'.

23 The finding of non-existence of a rule is said to relieve the applicant from being time-barred by reason of the expiry of the time-limits for appeal.

24 All the applicants refer for the same purpose to the occurrence of certain 'new facts'.

25 The Court's judgments of 7 June 1972 in Case 20/71, Sabbatini v European Parliament and Case 32/71, Bauduin v Commission are said to amount to a new fact.

26 The ground of annulment of the individual decisions pronounced by these judgments was the illegality found to exist in Article 4 (3) of Annex VII to the Staff Regulations;

32 It therefore appears that the admissibility of the appeals must be judged with due regard to the need for legal certainty, indispensable to the proper functioning of the Community institutions, reflected in the fixing of time limits by Article 91 of the Staff Regulations.

33 In any event the provisions of Article 4 (3) of Annex VII to the Staff Regu­ lations cannot be termed 'non-existent', originating as it does with the competent authority and taken with due regard to the procedural and formal conditions laid down by the Treaties.

34 In the first place the parties treat as 'new facts' the circumstance that following upon the judgments of 7 June 1972, the provision in Article 4 (3) of Annex VII to the Staff Regulations appears to have been defective, and accordingly invalid as from the coming into force of the Staff Regulations.

35 Secondly, they take this view of the decisions, consequent upon the same judgments of the Court, taken in respect of them by the defendant institutions, bearing in mind that the effect of these decisions was the recognition with retrospective effect of the nonvalidity of the provision in the Staff Regu­ lations mentioned.

36 The judgments of 7 June 1972 have the authority of res judicata only in relation to the parties involved at that time.

JUDGMENT OF 21. 2. 1974 — JOINED CASES 15-33 , 52, 53 , 57-109, 116, 117, 123, 132 AND 135-137/73

42 The applicants have failed in their actions.

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

44 However, under the terms of Article 70 of the said Rules, the costs incurred by the institutions in actions brought by employees of the Community are to be borne by such institutions.

SCHOTS-KORTNER AND OTHERS v COUNCIL, COMMISSION AND PARLIAMENT

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Staff Regulations of the European Communities, especially Articles 25, 90 and 91; Having regard to the Rules of Procedure of the Court of Justice of the Euro­ pean Communities, especially Articles 69, 70 and 91,

A. Van Houtte M. Sørensen

Registrar President of the Second Chamber

OPINION OF MR ADVOCATE-GENERAL TRABUCCHI

DELIVERED ON 13 DECEMBER 1973 1

Mr President, equality of the sexes in the allocation of Members of the Court, the expatriation allowance provided for under Article 4 of Annex VII of the Staff In the face of a judgment laying down a Regulations, it is not surprising if new general principle, such as complete problems arise in giving effect to it in

1 — Translated from the Italian.