C-153/79

JUDGMENT OF THE COURT (FIRST CHAMBER) OF 16 JULY 1981 1

Gordon Craigie Bowden and Others ν Commission of the European Communities

"Officials — Rates of exchange for the calculation of pensions"

Case 153/79

Officials — Applications to the Court — Application directed against a regulation — Absence of act adversely affecting the official — Inadmissibility (EEC Treaty, Art. 173; Staff Reguktions of Officials, Arts 90 and 91; Council Regu­ lations Nos 3085 and 3086/78 amending the Staff Regulations of Officials) Regulations Nos 3085 and 3086/78 are lations is not sufficient to create a of general application and hence officials judicial remedy against a measure which may not claim that they constitute is in the nature of a regulation. The decisions which are of direct and procedure provided for in Article 90 (2) individual concern to them in order to applies only where the appointing call their validity in question in authority has taken a decision or has proceedings under Article 173 of the refrained from adopting a measure pres­ Treaty. cribed by the Staff Regulations and The mere submission of a complaint where such conduct constitutes an act pursuant to Article 90 of the Staff Regu­ adversely affecting the official.

In Case 153/79

APPLICATION for the annulment of the defendant's decision rejecting the applicants' complaints pursuant to Article 90 (2) of the Staff Regulations concerning the application to them of Council Regulations (Euratom, ECSC, EEC) Nos 3085/78 and 3086/78 of 21 December 1978,

THE COURT (First Chamber),

composed of: T. Koopmans, President of Chamber, A. O'Keeffe and G. Bosco, Judges,

Advocate General: F. Capotorti Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

into pounds sterling, at the prevailing paid in the currency of the country in rate of exchange this gave a pension (P) which the official performs his duties. of A χ 1.441 Remuneration paid in a currency other pounds sterling. than Belgian francs shall be calculated on 60 the basis of the exchange rates used for If, on the other hand the pensioner the implementation of the general budget decided to have his pension paid in of the European Communities on 1 July sterling, it would be converted into 1978. sterling in accordance with Article 63 (3) of the Staff Regulations "on the basis of This date shall be changed, at the time of the par accepted by the International the annual review of remuneration Monetary Fund and in force on 1 provided for in Article 65, by the January 1965, that is at the rate of 140 Council acting by a qualified majority Belgian francs to the pound", giving the upon a proposal from the Commission as pensioner a pension of provided in the first indent of the second subparagraph of Articles 148 (2) of the A x 1.441 EEC Treaty and of 118 (2) of the Eur­ pounds sterling. 140 atom Treaty.

Therefore as a result of the failure of the Community authorities to take into Without prejudice to the application of account changes in the exchange rate of Articles 64 and 65, the weightings fixed the currencies of Member States, a pursuant to these Articles shall, whenever person resident in the United Kingdom the above date is changed, be adjusted who elected to have his pension paid in by the Council, which, acting in Belgian francs obtained a substantially accordance with the procedure higher pension than the beneficiary who mentioned in the third paragraph, shall chose to have his pension paid in correct the effect of the varation in the sterling. Belgian franc with respect to the rates referred to in the second paragraph".

The applicants allege that the combined I l l — Submissions and argu­ effect of these regulations is to reduce by ments of the parties more than 50% the pension of a beneficiary resident in the United Kingdom who has elected to have his The applicants submit that Regulations pension paid in Belgian francs. As from 1 Nos 3085 and 3086/78 are illegal. They April 1979 the pension was calculated as were, it is alleged, adopted in violation Ρ = A χ 0.625 Belgian francs instead of of essential procedural requirements. Ρ = A χ 1.441 Belgian francs. The Council failed to consult the On 26 October 1979 the defendant European Parliament as required by the raised a preliminary objection of Treaty (Merger Treaty, Article 24 (1)). inadmissibility under Article 51 of the Regulation No 3085/78 refers in its Rules of Procedure. preamble to the opinion of the Par­ liament published in Official Journal 1977, C 183. However, that opinion was Upon hearing the report of the Judge- concerned with a proposal of the Rapporteur and the views of the Commission of 2 March 1977 (Official Advocate General, the Court (First Journal 1977, C 99) on the introduction Chamber), decided to open the oral of the European unit of account into the procedure on the preliminary objection, Staff Regulations. Since Regulation No without any preparatory inquiry. 3085/78 has nothing to .do with the European unit of account, it can be concluded that there was no proper consultation of Parliament. II — Conclusions of the parties Indeed the Parliament in its resolution notes "the Commission's assurance that The applicants claim that the Court its proposal will in no way affect the real should: value of the payments made to officials in the form of remuneration, pensions (1) Declare Regulations Nos 3085 and and allowances". 3086/78 inapplicable; The applicants point out that the absence of proper consultation with the Par­ (2) Annul the defendant's decision liament on Regulations ¡Nos .3085 and rejecting the applicants' complaints 3086/78 is confirmed by the fact that it concerning the application to them was not until after their adoption that of those regulations; there was any awareness of their effect on existing rights. (3) Order the defendant to pay costs. The preamble to Regulation No 3085/78 refers to the opinion of the Court of The Commission contends that the Court Justice. The applicants, in the absence of should: any knowledge of any consultation with the Court of Justice, assume that this opinion, like that of the Parliament, was (1) Dismiss the application as inad­ given on the Commission's proposal to missible; introduce the European unit of account into the Staff Regulations. The (2) Order the applicant to pay the costs. applicants conclude that the procedure

The applicants argue that the above- mentioned regulations offend against The applicants draw a distinction Article 190 of the Treaty in so far as between variable factors in pension they do not state the reasons on which formulae such as weightings for the cost they are based. of living, and provisions which define these factors. The former can be varied, the latter cannot since any change necessarily affects the basis for the The applicants further submit that Regu­ determination of pension rights. lations Nos 3085 and 3086/78 constitute a violation of vested rights. They point The defendant raises a preliminary out that it is well established in the objection as to the admissibility of the case-law of the Court that the Council application and requests the Court, has no power to amend the Staff Regu­ pursuant to Article 91 of the Rules of lations in violation of vested or acquired Procedure, not to enter into the merits rights (droits acquis). The terms of of the case but to rule on this objection. Annex VIII to the Staff Regulations recognize that since pension rights accrue by virtue of years of pensionable The defendant submits that the service they vest not only in those application is inadmissible on two already retired and already receiving a grounds : pension, but in anyone who has completed a period of service qualifying for a pension. Moreover many officials, "That neither under the procedure in pursuance of Article 11 (2) of Annex governed by Article 179 of the EEC VIII, upon entry into the service of the Treaty and Articles 90 and 91 of the Commission, transferred the actuarial Staff Regulations nor under that equivalent of retirement pension rights governed by Article 173 of the EEC acquired in the expectation that they Treaty is it open to Community officials would benefit from the provisions in to attack directly a regulation of the force at the time they made the transfer. Council;

The defendant submits that the application is not admissible under either The defendant submits that the of these provisions. application is also inadmissible under Article 173. Article 173 states: Article 179 gives the Court jurisdiction in any dispute between the Community and "The Court of Justice shall review the its officials within the limits and under legality of acts of the Council and the the conditions laid down in the Staff Commission other than recommen­ Regulations or the Conditions of dations or opinions. It shall for this Employment. purpose have jurisdiction in actions brought by a Member State, the Council or the Commission on grounds of lack of Article 91 provides: competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating "The Court of Justice of the European to its application, or misuse of powers. Communities shall have jurisdiction in any dispute between the Communities and any person to whom these Staff Regulations apply regarding the legality Any natural or legal person may, under of an act adversely affecting such person the same conditions, institute proceed­ within the meaning of Article 90 (2) . . . " ings against a decision addressed to that person or against a decision which, although in the form of a regulation or a Article 90 (2) defines acts as decisions decision addressed to another person, is taken by the appointing authority, in this of direct and individual concern to the case the defendant, or the failure by the former. same authority to adopt measures pre­ scribed by the Staff Regulations. The proceeding provided for in this article shall be instituted within two The Court in Case 48/79 Ooms ν months of the publication of the Commission ([1979] ECR 3121) which measure, or of its notification to the concerned an attack on Regulations Nos plaintiff, or, in the absence thereof, of 3085 and 3086/78, held that they did not the day on which it came to the constitute acts within the meaning of knowledge of the latter, as the case may Article 91 (2), consequently the Court be." had no jurisdiction under Article 179.

The defendant argues that the applicants This position therefore is unchanged have no immediate and vested interest in since the application to him of the regu­ the substance of their complaint and lations in question. therefore have no locus standi. The applicants have not completed ten years of service. They have only an expectation that some day they will begin to acquire The applicants in their reply to the potential rights. Yet they seek judgment Commission's objection as to upon the method whereby their pension admissibility question the Commission's entitlement, expressed in Belgian francs, assertion that the Council has not will be converted into the currency of reduced pensions when in fact the effect their country of retirement. Given these of the offending regulations is to reduce circumstances the applicants cannot be pensions by more than 50%. deemed to have a certain and immediate interest in the issues before the Court.

The applicants point out that they are The defendant, although reserving not seeking " t o attack directly a regu­ argument on the merits of the case, lation of the Council"; their application makes the following observations on the is for the annulment of a decision of the applicants' statement of facts. defendant.

The Council, in Regulations Nos 3085 and 3086/78 did not reduce pensions. It Case 48/79 Ooms v Commission is merely put an end to an anomaly therefore not in point. The issue in these whereby, as a result of currency fluc­ proceedings is whether an applicant can tuations from 1971 onwards, pensioners challenge a decision rejecting his resident in weak currency countries who complaint concerning the effect on him chose to have their pensions paid in of a regulation. Belgian francs obtained unjustifiable financial advantages.

The applicants reject the defendant's argument that the action is inadmissible "Although it is true that before because the acts being challenged are of retirement, an uncertain future event, general application. They argue that pension rights are contingent rights although the acts may be of general which are in process of creation from application, they affect the applicants day to day, it is none the less clear that differently from the way in which they an administrative act which decides that affect other Community officials. a particular period of employment cannot be taken into account for the calculation of years of pensionable service immediately and directly affects The applicants conclude that a regulation the legal situation of the person in staff matters must be open to direct concerned even if that act is to be challenge by way of action against the implemented only subsequently." rejection or a complaint or at the very least where either the regulation is manifestly illegal or where the regulation affects some officials differently and adversely or where the regulation has The applicants submit that similar retroactive effects. Applying these criteria considerations, mutatis mutandis, apply in the application is admissible. Alter­ the present case. The very basis and natively, the applicants contend that the function of the weightings applicable to issue of admissibility should be reserved pensions have been unlawfully changed; until the substance of the case has been they have been changed with retroactive heard. effect in so far as they affect periods of

(2) Annul the Commission decision rejecting the applicants' complaints concerning the application to them of those regulations.

2 In the version in force until the end of 1978, Articles 63 and 64 of the Staff Regulations of Officials provided that:

"An official's remuneration shall be expressed in Belgian francs.

It shall be paid in the currency of the country in which the official performs his duties.

JUDGMENT OF 16. 7. 1981 — CASE 153/79

Remuneration paid in a currency other than Belgian francs shall be calculated on the basis of the par values accepted by the International Monetary Fund . . . on 1 January 1965. An official's remuneration expressed in Belgian francs shall . . . be weighted at a rate above, below or equal to 100%, depending on living conditions in the various places of employment. The weighting applicable to the remuneration of officials employed at the provisional seats of the Communities shall be equal to 100% as at 1 January 1962."

BOWDEN ν COMMISSION

Without prejudice to the application of Articles 64 and 65, the weightings fixed pursuant to these Articles shall, whenever the above date is changed, be adjusted by the Council, which, acting in accordance with the procedure mentioned in the third paragraph, shall correct the effect of the variation in the Belgian franc with respect to the rates referred to in the second paragraph."

6 According to the provisions of Article 4 of the regulation it was to enter into force on 1 January 1979 and was to apply from 1 April 1979. However, for pensions and allowances of which the net amount became less than that under the existing arrangements, the regulation was only to apply from 1 October 1979. From that date the difference between the net amounts resulting from the implementation of that regulation and those received in September 1979 was to be reduced by 1/10per month.

7 On 21 December 1978 the Council also adopted Regulation (Euratom, ECSC, EEC) No 3086/78 adjusting the weightings applicable to the re­ muneration and pensions of officials and other servants of the European Communities following the amendment of the provisions of the Staff Regu­ lations concerning the monetary parities to be used in implementing the Staff Regulations. Article 1 (2) of the regulation fixes inter alia the weighting applicable to pensions in accordance with the second subparagraph of Article 82 (1) of the Staff Regulations at 62.5 for the United Kingdom.

8 By various complaints under Article 90 (2) of the Staff Regulations of Officials the applicants (all save one) asked the Commission to take a decision in respect of them acknowledging that they would be entitled, upon the severance of the service relationship and subject to the fulfilment of all other conditions of the Staff Regulations, to a pension of the same amount as they would have received if Regulation No 3086/78 had not been adopted.

1 1 By a document lodged with the Court Registry on 26 October 1979 the Commission, in pursuance of Article 91 of the Rules of Procedure of the Court, put forward an objection of inadmissibility. In its view the applicants are not entitled to contest directly a regulation of the Council either by the procedure of Article 179 of the Treaty and Articles 90 and 91 of the Staff Regulations of Officials or by that of Article 173 of the Treaty. Since the regulations in question are of general application the applicants cannot claim that they are of direct and individual concern to them. Consequently they cannot contest them under Article 173 of the Treaty. The mere submission of a complaint pursuant to Article 90 of the Staff Regulations and its rejection are not sufficient to create a judicial remedy against a measure which is in the nature of a regulation. Moreover the applicants, in their capacity as officials in service, have no interest capable of justifying their action. The circular letter of 12 July 1979 does not constitute a decision having a direct incidence on a given legal situation and thus an act adversely affecting them within the meaning of Article 90 of the Staff Regulations.

Costs 14 Under Article 70 of the Rules of Procedure institutions are to bear their own costs in staff cases.

On those grounds,

THE COURT (First Chamber)

hereby:

1. Dismisses the application as inadmissible;

2. Orders the parties to bear their own costs.