C-48/76

1. In the event of a dispute concerning a condition precedent to any ■ the application of a regulation which, application to the Court. although not officially forming part of 2. A dispute between an official and the the Staff Regulations of Officials, institution to which he is or was is nevertheless concerned with answerable concerning compensation regulating a specific aspect of the for damage is pursued, where it relationship, under Staff Regulations, originates in the relationship of between the Community institutions employment between the person and certain of their officials, the concerned and the institution, under means of redress available to those Article 179 of the Treaty and Articles concerned are those provided for by 90 and 91 of the Staff Regulations and the Staff Regulations, which include lies outside the sphere of application the lodging of an official complaint as of Articles 178 and 215 of the Treaty.

In Case 48/76

ANDREAS H. REINARZ, a former official of the Commission of the European Communities, residing in Wasa, (Canada), represented by A.J. Hammerstein, Advocate at the Arrondissementsrechtbank, Maastricht, with an address for service in Luxembourg at the Chambers of Félicien Jansen, 21 rue Aldringer,

applicant, v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Raymond Baeyens, acting as Agent, with an address for service in

I — Language of the Case: Dutch.

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

Advocate-General: F. Capotorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts' of the case, the procedure, the I — Facts conclusions and the submissions and arguments of the parties may be 1. In the interests of the service and in summarized as follows: order to meet requirements resulting

provides proof of residence. third subparagraph of Article 3 (3) of Regulation No 2530/72. The weighting If the recipient of that allowance resides valid for Belgium is applied to these outside the Community countries the amounts in accordance with the second

weighting to be applied to the allowance subparagraph of Article 3 (3) of the shall be that valid for Belgium. regulation.

The allowance shall be expressed in II — Procedure Belgian francs. It shall be paid on the basis of the values referred to in [the third paragraph of] Article 63 of the Staff 1. On 8 June 1976 the applicant Regulations.' submitted the present application in which he claims that the Court should: '1. Rule that with regard to the monthly The third paragraph of Article 63 of the allowance due to the applicant, the Staff Regulations of Officials (hereinafter provisions of the final subparagraph referred to as 'the Staff Regulations') of Article 3 (3) of Regulation No reads as follows: 2530/72 of the Council in conjunction with the third paragraph 'Remuneration paid in a currency other of Article 63 of the Staff Regulations, than that of the country where the are void or at least should not be Community which he serves has its applied in respect of the applicant; provisional seat shall be calculated on the 2. Order the Council and the basis of the par values accepted by the Commission of the EEC to International Monetary Fund, which were compensate the applicant for the past in force on 1 January 1965.' and future damage suffered or to be

JUDGMENT OF 17. 2. 1977 — CASE 48/76

2. In his application, the applicant The applicant further objects to the fact claims, inter alia, on the substance, that that the social security benefits to which, he is entitled to a monthly allowance over and above his monthly allowance, paid to him either after conversion into he is entitled under Article 3 (1) of Canadian dollars of the amount which he Regulation No 2530/72 are also paid to receives in Belgian francs on the basis of him in converted Canadian dollars in the par value of the Belgian franc against the Canadian dollar at the time of pursuance of the rule which he contests. payment or by payment in Belgian francs in accordance with the regulations In the alternative, the applicant relies on applicable to officials of the EEC. the general principles relating to the protection of human rights, contending The rules contested by the applicant that the contested rules impede involve, inter alia, a breach of the emigration from the Community to a principle of equality of treatment as third country. between officials of the Community. 3. By defences lodged respectively on In this connexion the applicant states 17 August and 12 July 1976, the that the weighting which is applied to Commission and the Council requested his allowance, together with the system the Court to rule pursuant to Article 91 of payment which he is contesting, take of the Rules of Procedure on the no account of living conditions in admissibility of the application without Canada or of the purchasing power of going into the substance, to declare the the Canadian dollar, which, since 1 application to be inadmissible, and to January 1965, has depreciated in relation order the applicant to pay the costs. to that of the Belgian franc.

III — Submissions and argu­ Article 173 of the Treaty. The application ments of the parties on the is inadmissible in both cases. admissibility of the application The applicant is subject to the provisions of the Staff Regulations in the matter of 1. The Commission states that in so far appeals even though he is not, strictly as the application is directed against it, it speaking a 'person to whom these Staff can be interpreted as, in essence, seeking Regulations apply' because the annulment of the application which it conditions applicable to him are made of the provisions of the last determined by Regulation No 2530/72. subparagraph of Article 3 (3) of One of the recitals to the regulation Regulation No 2530/72. In addition the expressly mentions the need to adopt on application refers to an action for a temporary basis special measures damages on the ground of concerning the Staff Regulations of non-contractual liability. Officials of the European Communities.

Since this is a dispute between a former In consequence, the rules contained in official and the institution in which he Articles 90 and 91 of the Staff was employed, the rules of procedure laid Regulations must be observed if the down in Articles 90 and 91 of the Staff application is to be admissible. Article 90 Regulations are applicable in this case. (2) clarifies the concept of 'act adversely affecting' by indicating that it arises The applicant did not lodge a complaint when the appointing authority ought to within the meaning of Article 90 (2) of have taken a decision or has failed to

JUDGMENT OF 17. 2. 1977 — CASE 48/76

'individual' concern to the applicant considers that no such claim can be within the meaning of the judgment of made since the present case involves a the Court of 15 July 1963 in Case 25/62, dispute in which the Court would not Plaumann & Co. v Commission [1963] pronounce on the substance. ECR 95. 3. The applicant, defendant in the (c) As regards an action based on preliminary proceedings, states in reply non-contractual liability, the Council to the objection of inadmissibility raised contends that this application is by the Council that he accepts that there concerned with one of the conclusions are two channels of appeal open to him: which the Council would have to draw that under the Staff Regulations provided from a judgment of annulment and is, for in Article 179, and that under Article therefore, indistinguishable from an 178 of the Treaty. The applicant application for annulment within the contends that the latter was the only meaning of the judgment of the Court of means of redress open to him; his action 18 March 1975 in Case 72/74, Union is directed in the first place against the Syndicale-Service Public Européen and Council and refers to a loss which Others v Council [1975] ECR 401. occurred only some considerabletime Finally, the Council refers to the after the entry into force of Regulation No 2530/72, which is the cause of that judgment of the Court of 22 October loss. 1975 in Case 9/75, Meyer-Burckhardt v Commission [1975] ECR 1171. It follows The judgment of the Court of 22 from that judgment that, since the October 1975 in Case 9/75 has no present dispute originates in a relevance in the present case since the relationship of employment between the situation of the applicant is entirely person concerned and the institution, it different. must be pursued under Article 179 of the Treaty and Articles 90 and 91 of the Staff IV — Oral procedure Regulations and, as regards in particular the question of its admissibility, lies The applicant announced that he would outside the sphere of application of not appear at the hearing on 13 January Articles 178 and 215 of the Treaty. 1977.

2 After the applicant's service with the Communities came to an end in 1973, he settled in Canada and, in consequence, his allowance, expressed in Belgian francs, has been paid in the currency of Canada calculated on the basis of the official par values in force on 1 January 1965, pursuant to Article 3 (3) of Regulation No 2530/72, in conjunction with the third paragraph of Article 63 of the Staff Regulations.

3 The applicant contests the correctness of this system of payment claiming, inter alia, that the rules in question and the way in which they have been applied to him infringe the principle of equality of treatment of officials, since the weighting applied to his allowance is that based on living conditions in Belgium regardless of depreciation in the purchasing power of the Canadian dollar.

4 The Council and the Commission, defendants, raised objections of inadmissibility contending, first, that the applicant did not, prior to the lodging of his application, submit a complaint under Article 90 (2) of the Staff Regulations to the competent authority and, secondly, that, in so far as the application is to be regarded as being brought under Article 178 and the second paragraph of Article 215 of the EEC Treaty, the application based on liability under those articles cannot arise in respect of matters concerning the rights of officials under the Staff Regulations.

5 Although Regulation No 2530/72 does not officially form part of the Staff Regulations of Officials, it is nevertheless concerned with regulating a specific aspect of the relationship, under Staff Regulations, between the Community institutions and certain of their officials.

10 In this connexion it must be pointed out that, as the Court held in its judgment of 22 October 1975 in Case 9/75, Meyer-Burckhardt [1975] ECR 1171, a dispute between an official and the institution to which he is or was answerable concerning compensation for damage is pursued, where it originates in the relationship of employment between the person concerned and the institution, under Article 179 of the Treaty and Articles 90 and 91 of the Staff Regulations and lies outside the sphere of application of Articles 178 and 215 of the Treaty.

11 Furthermore, the unlimited jurisdiction conferred on the Court in the disputes referred to in Article 179 enables it, within the context of such disputes, to give judgment not only on the validity of the contested act but also on compensation for any damage suffered by the person concerned as a result of an act contrary to his rights under the Staff Regulations.

12 In consequence the application is inadmissible also in that it is based on Article 178 and the second paragraph of Article 215 of the Treaty.

REINARZ v COMMISSION AND COUNCIL

Costs

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

2. Orders the parties to bear their own costs.

Pescatore Sørensen Mackenzie Stuart

Delivered in open court in Luxembourg on 17 February 1977.

A. Van Houtte P. Pescatore

Registrar President of the Second Chamber

OPINION OF MR ADVOCATE-GENERAL CAPOTORTI DELIVERED ON 3 FEBRUARY 1977 1