C-9/75

1. Since Articles 90 and 91 of the Staff answerable concerning compensation Regulations make no distinction for damage is pursued, where it between the action for annulment and originates in a relationship of the action for damages as regards employment between the person administrative and contentious concerned and the institution, under procedure, the person concerned is at Article 179 of the Treaty and Articles liberty, in view of the independence 90 and 91 of the Staff Regulations of the different types of action, to and, as regards in particular the choose either one or the other, or question of its admissibility, lies both together, on condition that he outside the sphere of application of brings his action within the period of Articles 178 and 215 of the Treaty three months after the rejection of his and of Article 43 of the Protocol on complaint the Statute of the Court of Justice of 2. A dispute between an official and the the EEC. institution to which he is or was

In Case 9/75

MARTIN MEYER-BURCKHARDT, a retired Director of the Commission of the European Communities, residing at Horben in the Federal Republic of Germany, represented by Heinz Niederhausen, Advocate of Freiburg, with an

1 — Language of the Case: German.

JUDGMENT OF 22. 10. 1975 — CASE 9/75

address for service in Luxembourg at the Chambers of Ernest Arendt, 34b rue Philippe II, applicant, v

gives the following

JUDGMENT

Facts

The facts and the arguments put forward who had been an official of the European by the parties during the oral procedure Communities from 1 July 1958, was may be summarized as follows: retired on grounds of invalidity on 30 June 1967. He complains that the I — Facts and procedure legislation of the Federal Republic on the subject of retirement pensions for civil 1. The applicant, a former civil servant servants limits and even, in some cases, in the Federal Republic of Germany, prohibits the concurrent payment of a

MEYER-BURCKHARDT v COMMISSION

June 1972. The Commission rejected this request by a decision of 18 October 1973, by which 2. Believing the provisions of German time the applicant had already submitted law invoked against him to be a complaint on 1 October 1973, in incompatible with Community law, in accordance with Article 90 (2) of the Staff particular Article 5 of the Treaty, and Regulations. This complaint was rejected with the Staff Regulations, in particular by a decision of 11 February 1974. Article 78, the applicant brought an action based on the reduction of his On 18 April 1974 the applicant German retirement pension before the submitted to the Commission a further Verwaltungsgericht Freiburg which, by request within the meaning of Article 90 Judgment of 28 June 1973, found of the Staff Regulations, this time against him, after dismissing an concerning the grant, on the basis of application that a preliminary ruling be Article 215 of the EEC Treaty, of requested of the Court of Justice — damages in respect of the loss suffered by which, in the applicant's view, would him as a result of the Commission's have allowed the German court, in the refusal or omission to institute the light of the interpretation requested, to procedure under Article 169 against the find that the alleged incompatibility did Federal Republic.

On that occasion the Bundesverwaltungsgericht also took the The applicant claims that the Court of view that it was not necessary to seek a Justice of the European Communities preliminary ruling. should:

The applicant cites the case of a former III — Submissions and argu­ official of the Commission, Hans ments of the parties Ganschow, whose action for a declaration that paragraph 160 b (1) of the 1. The applicant bases his action for Bundesbeamtengesetz was inapplicable damages on the fact that the by reason of its incompatibility with Commission definitively refused to assist Community law governing the him in his proceedings against the employment of officials was dismissed German authorities, thereby infringing both by the court of first instance and by Article 24 of the Staff Regulations and the Bundesverwaltungsgericht. Neither of causing him material damage. The those courts felt it necessary to refer a Commission, as guardian of the Treaty, preliminary question to the Court of was bound to institute proceedings Justice of the European Communities on against the Federal Republic of Germany the basis of Article 177 of the Treaty. on the basis of Article 169 of the Treaty for the purpose of terminating the In the same way the action brought by twofold infringement by that country of the applicant himself before the its Community obligations. administrative court of Freiburg was rejected by judgment of 28 June 1973. He claims that the Federal Republic of An appeal on a point of law Germany is guilty, first, of an (Sprungrevision) was next brought before infringement of the second paragraph of the Bundesverwaltungsgericht, which has Article 5 of the Treaty and of Article 78 not yet given judgment. Assuming from of the Staff Regulations. The application the judgment in Ganschow given by that of the first and second sentences of court, that the latter would not refer the paragraph 160 b (1) of the Bundes­ case to the Court of Justice under Article beamtengesetz (Law on federal civil 177, the applicant has requested that servants) to retired officials of the judgment be suspended in the appeal European Communities infringes Article proceedings until such time as the Court 5 of the Treaty in that it jeopardizes the of Justice has given judgment on this attainment of the objective of ensuring application. that the Communities obtain the services of officials of the highest standard of The second infringement of which the independence, ability, efficiency and Federal Republic is accused, that of its

obligations under the Treaty, arises, in general failure by the Commission to the applicant's opinion, from the refusal fulfil its obligations, apart from the of the Bundesverwaltungsgericht to make statutory relationship between the use of the procedure under Article 177 of applicant and the Commission, the the Treaty. The failure to comply with application must be deemed to be based Article 177 on the part of the in fact upon the second paragraph of Bundesverwaltungsgericht, which re

Nevertheless, it is proceedings amounts to misconduct on inadmissible because it represents an the part of the Commission. attempt to evade the provisions governing time-limits for the submission The probable dismissal by the of applications, since following Bundesverwaltungsgericht of the appeal notification to him of the Commission's at present pending before it will involve decision, dated 18 October 1973 and the applicant in the loss of his right to 7 February 1974, to reject his take further legal action against the representations, the applicant did not Federal Republic of Germany in the refer the matter of this rejection to the matter of the payment of the DM Court within the specified period.

The contests the admissibility of the case-law of the Court concerning the application. requisite conditions for the lodging of an action for damages (Judgment of It first examines the matter from the 2 December 1971, Case 5/71, point of view of form. To the extent to Schöppenstedt, Rec. 1971, p. 975) cannot which the Commission is accused of be relied upon because in the case having infringed the provisions of Article invoked the question at issue was that of 24 of the Staff Regulations an action for the admissibility of an action to establish damages brought against the institution liability, whereas an action on the basis as employer can be founded only upon of Articles 173 or 175 was, as a general the provisions of Article 91 (1) of the rule, inadmissible. This case raises the Staff Regulations in conjunction with problem of the admissibility of an action those of Article 179 of the EEC Treaty. for damages where the applicant has The second paragraph of Article 215 may exceeded the period available to him for be relied upon where rights are invoked contesting before the Court the act or in the context of the conditions of omission complained of, which is the service of officials only on condition that basis of his request for compensation. the supplementary rules of procedure laid down by Articles 90 and 91 of the Quite apart from this aspect the action Staff Regulations are applied. In so far as for damages is in any event inadmissible the applicant also wishes to allege in because it is out of time.

JUDGMENT OF 22. 10. 1975 — CASE 9/75

fulfil its obligations in refraining from inadmissibility is based on the fact that action at the time of the adoption of the Article 169 is intended to protect the Law of 19 July 1968 amending the general interest of the Communities, not Bundesbeamtengesetz. Since the first the interests of individuals, so that any request for compensation was lodged infringement of that article cannot create only on 18 April 1974 it is inadmissible a right to damages in favour of pursuant to Article 43 of the Protocol on individuals. The particular role assigned the Statute of the Court of Justice of the to Article 169 also explains why the rule EEC. If the ‘request’ of 18 April 1974 is enunciated by the Court in Case 5/71, to be understood as a complaint within Schöppenstedt, cited above, cannot be the meaning of Article 90 (2) of the Staff extended to the present case. There is a Regulations, the time-limit of three fundamental difference between, on the months laid down in that article was also one hand, review by the Court, in the not adhered to, since the Commission's context of an action for damages, of the alleged failure to act had been known to legality of a substantive measure adopted the applicant since 1973. by a Community institution against which individuals cannot institute

MEYER-BURCKHARDT v COMMISSION

interest may oblige it to play its case-law the conditions for requesting a supervisory role, but even so such an preliminary ruling, gave reason to tear obligation could not be the that the very mechanism of Article 177 subject-matter of an action before the was being rendered obsolete. Such is not Court. the case here.

Furthermore, Article 169 of the Treaty is Regarding the infringement of the not intended directly to ensure the obligation to assist officials, laid down in protection of individuals. The Member Article 24 of the Staff Regulations, the States decided that they would be Commission notes that this provision is answerable before the Court only to the intended to ensure that officials are other Member States or to the assisted by the Communities where, by Commission. Even in the context of the reason of their position or duties, they procedure for preliminary rulings a are the victims of an act punishable by failure by the Commission to fulfil its law. The German Law cannot be obligation of supervision does not fall represented as an attack on the property into the category of provisions which an of the applicant or as an unjust, criminal individual may invoke as a subsidiary and punishable legislative measure. matter. Furthermore, the right to compensation laid down by the second paragraph of If Article 169 of the Treaty is to be Article 24 presupposes that the official considered as a provision which is at concerned has been unable to obtain least capable of serving the interests of compensation from the person who has individuals too, a legal obligation may be caused the damage, whereas in this case discerned only in the event of a clear the applicant has a means of recourse infringement of the Treaty by a Member against the Federal Government before State, such that the Commission's the courts. Any error of law which a freedom of discretion is reduced. The national court such as the Bundes­

JUDGMENT OF 22. 10. 1975 — CASE 9/75

The Commission's interpretation, to submit two important analysis is incorrect because that questions of Community law to the provision is also concerned with German Court of Justice for a preliminary ruling. pensions which are not awarded at the maximum rate and moreover it does not The first question which should have apply to German officials leaving the been referred to the Court would have service of the Communities with a been for the purpose of ascertaining Community pension but not suffering whether the Staff Regulations must be invalidity. interpreted as meaning that officials of all the Member States who are in a The applicant believes that the line of comparable position must receive truly argument relating to the inadmissibility equal amounts by way of remuneration of the action for damages in so far as it is

The independent Communities. nature of the action for damages was In the event of a negative answer to this affirmed in the Judgment of 28 April first question, a second question should 1971 (Case 4/69, Lütticke, Rec. 1971, p. be put on the interpretation of Article 78 325) and in a series of more recent cases of the Staff Regulations (Regulation No (Judgments of: 2 December 1971, Case 31 (EEC) of 18 December 1961, OJ No 5/71, Schöppenstedt, Rec. 1971, p. 975; 13 45 of 14. 6. 1962). This would be for the July 1972, Case 79/71, Heinemann, Rec. purpose of ascertaining whether the right 1972, p. 579; 13 June 1972, Joined Cases to a Community invalidity pension 9 and 11/71, Cie. d'Approvisionnement, enjoyed by an official in the service of Rec. 1972, p. 391; 24 October 1973, Case the EEC suffering a total permanent 43/72, Merkur, [1973] ECR 1055; 2 July 1974, Case 153/73, Holtz and invalidity can be affected, even indirectly, by the fact that the Member State views Willemsen, [1974] ECR 675). the suspension in toto of the official's If, contrary to the applicant's claims, the right to a national pension as the legal Court of Justice may be seised by way of

a preliminary reference only of questions et al, Schots (née Kortner) and Others v of interpretation of Community law Council, Commission and Parliament, having direct effect, the applicant notes [1974] ECR 189), the Court stated that if that at all events Article 24 of the Staff a claim for compensation has its origin Regulations and Article 7 of the Treaty in the alleged illegality of an institution's create directly applicable rights. decisions the basis for the application Furthermore, far from overwhelming the lies exclusively in Article 179 of the Commission with actions in its function Treaty and the application is therefore as guardian of the Treaty, the institution subject to the time-limits of Articles 90 of an action for damages based upon and 91 of the Staff Regulations. behaviour of the Commission which is Since the applicant did not refer the contrary to the Treaty would tend to matter to the Court within three months counteract an overindulgent attitude on following the final rejection of his the part of the Commission with regard request by letter from the Commission to infringements of the Treaty by Member States.

4. In its rejoinder the Commission him the right to refer the matter to the states that the applicant has still not Court of Justice. clearly stated whether he is basing his action for damages upon Article 179 of As to the legal basis of the application, the Treaty and the Staff Regulations, or the Commission is of the opinion that upon the second paragraph of Article the applicant's criticisms or paragraph 215 of the Treaty. Tne Commission 160 b of the Federal Law regarding civil concedes that if the action is based upon servants are based upon misconceptions Article 215, the limitation period of five or fall outside the context of that part of years has not expired in so far as the the provisions which concerns him.

The German legislature Commission, Rec. 1972, p. 589), in which took as its basis the general principle that the Court ruled that an action for officials paid out of public funds must damages was admissible ‘not being not receive more than one maximum subject to the time-limits of Article 91 of pension at the end of a full working life. the Staff Regulations’. In that case the During the public hearing on 10 July Court in fact expressly stated that the 1975 the parties further developed the action for damages under consideration arguments adduced during the written was based not upon the illegality of an

JUDGMENT OF 22. 10. 1975 — CASE 9/75

Law

1 The application is for an order that the Commission pay the sum of DM 122 486·88 as compensation for the damage allegedly caused to the applicant by the Commission's refusal to institute proceedings against the Federal Republic of Germany on the basis of Article 169 of the Treaty.

2 The applicant, a former civil servant of the Federal Republic and, later, an official of the European Economic Community, is contesting before the German courts the validity in relation to Community law of certain legislative provisions of the Federal Republic whereby, for the period from 1 October 1968 to 30 June 1972, he suffered an appreciable reduction in his German retirement pension by reason of the overlapping of that pension with the Community retirement pension.

The applicant's action before the Verwaltungsgericht Freiburg was dismissed on 28 June 1973 and he appealed to the Bundesverwaltungsgericht which, up to the date of this judgment, has not reached a decision.

5 According to the Commission the application is inadmissible both in the event of its being founded upon Article 179 of the Treaty and on the Staff Regulations of Officials and in the event of its being based on Article 215 of the Treaty.

6 In support of his application the applicant has relied upon Articles 178 and 215 of the Treaty and Article 179 thereof and on the Staff Regulations of Officials.

It is therefore necessary to ascertain, for the purpose of deciding the admissibility of the application, the provisions upon which the latter should be based.

The applicant replies that in relation to the action for annulment, the action for damages is an independent type of action subject to specific conditions as to admissibility, from which it follows that his action, which was brought within a period of three months following the rejection of his complaint concerning the refusal to grant him compensation, is admissible.

10 Although the action for annulment and the action for damages are indeed distinct types of action, it is none the less the case that, within the context of disputes between officials and the institutions, Articles 90 and 91 of the Staff Regulations make no distinction between them as regards both the administrative and the contentious procedures to which they may give rise.

In this connexion it is of significance that both Article 178 of the Treaty and Articles 90 and 91 of the Staff Regulations refrain from defining the nature of the action available in the event of rejection of a complaint through administrative channels.

According to Article 91, in proceedings relating to the legality of an act adversely affecting the applicant, the Court has jurisdiction, whatever the nature of the action.

11 Therefore, as from the date of rejection of his complaint of 1 October 1973 by letter of the Commission of 7 February 1974, the applicant could, within the period of three months, have brought before the Court an action concerning the legality of an act adversely affecting him, and the financial consequences which might have arisen therefrom.

It should be noted that the applicant has based his right to compensation precisely upon the illegality of the rejection of his complaint, thereby

Even if the complaint relating to the rejection of the claim for compensation, which was registered on 9 September 1974 and rejected in its turn on 7 November 1974, were considered to constitute the application referred to in Article 43 of the Protocol on the-Statute of the Court of Justice of the EEC, the position remains the same.

14 Accordingly, the application must be dismissed as inadmissible.

Costs

15 The applicant has failed in his submissions.

According to Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

OPINION OF MR WARNER — CASE 9/75

Monaco Mertens de Wilmars O'Keeffe

Delivered in open court in Luxembourg on 22 October 1975.

A. Van Houtte R. Monaco

Registrar President of the First Chamber

OPINION OF MR ADVOCATE-GENERAL WARNER DELIVERED ON 18 SEPTEMBER 1975

My Lords, office for a very long period in the German civil service. He has found that, The genesis of the dispute in this case under the German legislation in lies in legislation of the Federal Republic question, the result of his receiving a of Germany designed to prevent the pension from the Commission has been cumulation of pension benefits by those to reduce the amount of his German civil who have spent part of their working life service pension, a reduction which in the service of that State and part in attained considerable proportions during the service of an international or the period to which the application supranational institution. The applicant, pertains. Herr Meyer-Burckhardt, is a retired official of the Commission of the EEC In essence, the applicant claims damages who, before entering its service, had held from the Commission for its alleged