C-23/80
ECLI:EU:C:1980:284
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JUDGMENT OF 10. 12. 1980 — CASE 23/80
In Case 23/80
GIUSEPPE GRASSELLI, a former official of the Commission of the European Communities, residing at 25 Via Bembo, Cremona, represented by Cesare Ribolzi, of the Milan Bar, with an address for service in Luxembourg at the Chambers of Victor Biel, 18 a Rue des Glacis, applicant, v
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Oreste Montako, acting as Agent, with an address for service in Luxembourg at the office of its Legal Adviser, Mario Cervino, Jean Monnet Building, Kirchberg, defendant,
OBJECTION, at the present stage of the proceedings, that the application for the annulment of the implied decision rejecting the applicant's complaint of 6 June 1979 concerning the failure to pay family and education allowances for dependent children and the reduction of the pension acquired on termination of service under the provisions of Regulation N o 259/68 of the Council is inadmissible,
T H E C O U R T (First Chamber)
composed of: T. Koopmans, President of Chamber, A. O'Keeffe and G. Bosco, Judges,
Advocate General: J.-P. Warner Registrar: J. A. Pompe, Deputy Registrar
gives the following
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JUDGMENT
Facts and Issues
I — Facts and written p r o c e d u r e reducing factor would be applied to his pension and he would not be paid the dependent child allowance. Mr Grasselli then submitted a complaint against the Mr Grasselli, who entered the service of manner in which the Commission the High Authority of the European intended applying the ECSC pension Coal and Steel Community on 5 October scheme in his case and declared that he 1961 and was assigned as from February reserved his choice between the two 1963 to the Directorate-General for Steel schemes pending a decision on his (ECSC), which after the merger of the complaint. executives became the Directorate for Steel in Directorate-General III of the single Commission, submitted a request on 8 April 1968 that his service be The Commission's decision was negative, terminated in application of Regulation and he therefore brought an action No 259/68 of the Council of 29 before the Court of Justice on 13 February 1968 (Official Journal, English December 1968. Special Edition 1968 (I), p. 30). At its meeting on 20 June 1968 the Commission granted the request and authorized him to cease work as from 1 October 1968. By a letter of 21 June In a judgment of 10 December 1969 the 1968 the Directorate-General for Court held the action to be inadmissible Personnel and Administration notified on the ground that the explanatory table Mr Grasselli of that decision and asked in question did not amount to a decision. him to choose between receiving a pension and immediate payment of a severance grant and, if he chose the former, to decide whether his pecuniary On 30 January 1970 the Commission rights should be determined in administration asked Mr Grasselli to accordance with the provisions of Article make a decision as to which scheme was 5 of Regulation N o 259/68 or those of to be applied in respect of his retirement. Article 34 of the former Staff Regu- In a letter of 27 February 1970 M r lations of the ECSC, as he was permitted Grasselli indicated that he opted for the to do under Article 7 of the above- ECSC scheme. When he left the service mentioned Regulation No 259/68. In (1 October 1972) Mr Grasselli did order to assist Mr Grasselli in making however point out, in a form which he that choice the Directorate-General for was required to fill in for the purpose, Personnel and Administration sent him, that as he had left the service in on 16 September 1968, a table explaining accordance with the provisions of Regu- the benefits to which he would be lation No 259/68 his pension rights fell entitled under each of the two schemes. to be determined exclusively by that Among other things the table showed provision, and not by the provisions of that if he chose the ECSC scheme a the former ECSC regulations.
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In a letter dated 11 April 1973 the — Order that the written procedure be administration sent him a statement terminated; setting out a computation of his pension rights and confirmed that he was not — Decide, if appropriate, that it is not entitled to a full pension, or to family necessary to commence the oral allowances. From then on the Com- procedure; mission proceeded to pay him a reduced — Declare the application inadmissible; pension, without the addition of family allowances, as from 1 October 1972. — Order the applicant to pay the costs.
On 9 April 1979 Mr Grasselli submitted 2. The applicant contends that the a complaint under Article 90 (2) of the Court should reserve its decision as to Staff Regulations of Officials of the the objection of inadmissibility raised by European Communities seeking to the Commission for the final judgment, obtain, as from 1 October 1972, the rejecting any request to the contrary. family allowances provided for in Article 67 of the ECSC (1962) Regulations, together with a full retirement pension. Ill — Submissions and argu- The Commission failed to reply to the ments of the parties complaint, which it received and registered on 6 June 1979, and Mr Grasselli therefore lodged an application The Commission notes, first, that the on 14 January 1980, which was received application describes as an act adversely at the Court Registry on the following affecting the applicant the measure day. whereby the Commission computed the applicant's rights to retirement pension On 14 February 1980 the Commission for the first time (the letter of 11 April raised a preliminary objection of 1973). The applicant did not, however, inadmissibility, claiming that the appeal lodge a complaint against that decision had been brought out of time, and within the period of three months pre- requested in accordance with Article 91 scribed by Article 90 (2) of the Regu- (1) of the Rules of Procedure and lations. Under Article 91 (2) his without prejudice to examination of the application is therefore inadmissible. In substance of the case that the Court give any case the applicant was in a position a decision on the preliminary objection. from April 1973 to obtain confirmation of the decision concerning his pension by On hearing the report of the Judge- means of the explanatory note which Rapporteur and the views of the accompanies the monthly pension Advocate General the Court decided to payments and which, according to the open the oral procedure as to the consistent case-law of the Court, objection of inadmissibility, in amounts to notification of any admin- accordance with Article 91 (3) of the istrative measure whereby pension rights Rules of Procedure. are determined. In reply to the applicant's argument that payment of 'a reduced pension amounts II — Conclusions of the parties to a continuous breach which is repeated on the admissibility of the each month and which may therefore be application challenged at any moment within a period of three months from the latest 1. The Commission of the European explanatory note on the pension of Communities claims that the Court which the person concerned has been should: notified, it may be argued that,
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according to the case-law of the Court, 2530/72 and No 1543/73 of the Council measures which are purely "confir- providing conditions for voluntary matory" cannot be the subject-matter of retirement which were more favourable an independent action. There can be no than those under the 1968 scheme) when doubt that the explanatory notes on the he was notified in April 1973 of the pension are merely repetitive of the decision in question, for Regulation No administrative measure which determined 2530/72 had already been published by the amount for the first time. that date.
In addition, that supposedly new fact does not affect the applicant's situation in any way as the Commission Be that as it may, in seeking to show that was in no way bound to apply the his application is admissible the applicant different conditions provided for in appears to attribute the greatest respect of a fresh voluntary retirement importance to the argument based on the scheme to those who had taken first paragraph of Article 41 of Annex advantage of the former schemes. In the VIII to the Staff Regulations.
In the third place, even if his rights had been applicant's view, that article enables a computed on the basis of Regulation No pensioner to make an application to the 2530/72 of the Council the applicant Court each time he thinks his pension is would still not have been entitled to a vitiated by an error of fact or of law, full pension and family allowances without being subject to any time-limit because under that regulation a full whatsoever. pension cannot be granted to an official who has worked for less than ten years
in the service of the Commission, which The Commission maintains, on the is precisely the case with Mr Grasselli. contrary, that the wording of Article 41 of Annex VIII implies that the intention was to reserve for the administration alone the option of taking corrective measures if it discovers an error of fact Mr Grasselli considers, for his part, that or of law in the computation of a an examination of the substance of the pension. That interpretation of the issue is indispensable especially as the provision in question was adopted by Mr Commission stated in its objection that if Advocate General Reischl in Case 95/76, the applicant's claims were justified it Bruns v Commission, and by Mr would not hesitate to accept them at any Advocate General Capotorti in Case stage in the procedure, even if the 219/78, Michaelis v Commission. application was clearly inadmissible. Whether a claim is justified, however, can manifestly only emerge from an Lastly the Commission asserts that it did examination of its substance. not hesitate to raise a preliminary objection of inadmissibility because it is firmly convinced that, even if it is admissible, the application has no possibility whatsoever of succeeding as In particular, as to the arguments put regards the substance. The fact is that forward by the Commission in support the applicant was already aware, at least of the objection of inadmissibility, it to some extent, of the new fact which is should be noted that all the case-law supposed to give grounds for the which has been referred to by the other reconsideration provided for in the party in seeking to have the application above-mentioned Article 41 (in this dismissed on grounds of inadmissibility instance the adoption of Regulations No before final judgment relates to cases in
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which the Court agreed to undertake an and Capotorti in Cases 95/76 and examination of the substance. It would 219/78 respectively no doubt carry some therefore be unjustifiable and, to say the weight, but it should nevertheless be least, excessive to deduce from that line observed that the judgments delivered by of cases an argument preventing the the Court in those cases do not define ex applicant from putting forward his own professo the scope of Article 41 submissions in his defence, when on the concerning actions which may be contrary that opportunity was given to brought by officials in receipt of a the officials in the cases cited. pension and thus no decison has yet been made on the point.
In contrast to those officials, moreover, On the contrary, it may easily be noted who were officials in service, the that, for example, the judgment of 8 applicant, who is a pensioner, can rely November 1979 in Case 219/78 rejected not only on the normal remedies by implication the objection of provided for in Articles 90 and 91 of the inadmissibility which had been raised by Regulations, but also on the special the Commission and gave its decision on provisions in Article 41 of Annex VIII the substance of the case. concerning the modification of pensions.
Finally, since the other party has asserted That provision is doubly relevant to the that the application is in any case present case, as regards admissibility and unfounded, Mr Grasselli considers it the fact that the application is well necessary to refute the arguments put founded. In the applicant's opinion it forward by the Commission in this cannot be construed exclusively in favour respect. of one party, that is to say, as permitting the institution to recalculate or modify In the first place, contrary to what the the pension at any moment without Commission appears to believe, the giving the recipient of the pension, on applicant did not criticize the discre- the other hand, the corresponding right pancies between the conditions laid to ask for a recalculation at least where down for the voluntary retirement new considerations or facts are present. scheme of 1968 and those relating to the If that were so Article 41, which applies 1973 scheme, but rather complained of exclusively in respect of pensions, would the discrimination which was applied in lose any supplementary scope in that respect of Regulation No 259/68 particular sphere. In the circumstances, between employees who opted for since Regulations N o 2530/72 and No Article 34 of the former ECSC Regu- 1543/73 have placed former officials of lations and all other officials, whereas in the ECSC who opted for the scheme laid subsequent regulations the two cate- down in Article 34 of the ECSC Regu- gories were treated with absolute lations on an equal footing with other equality. officials as regards payment of a full pension and the benefit of family allowances, the applicant considers that Secondly, as regards the family he has reasonable grounds for allowances it should be pointed out that challenging the unfair withholding of his the termination of service occurred in the rights of which he remains a victim. present case in application, and by virtue, of Regulation No 259/68, with the exclusive option for which the latter The Commission's references to the provides in respect of the allowance opinions of Advocates General Reischl defined in Article 34 of the ECSC Staff
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Regulations. Yet that regulation includes are not relevant to disputes of that the right to dependent child allowances. nature.
In any case, even if the applicant's The applicant concludes that in view of submission is thought to be a liberal the very close similarity with the interpretation of the provisions in fundamental principles underlying the question it need only be observed that pension rights provided for under the the Court has itself provided an example Staff Regulations, and taking into of adopting liberal interpretations on account the option inherent in Article 41 each occasion on which it has been of Annex VIII, the conclusions reached necessary to find an equitable solution. by the highest courts in Italy may perfectly well be applied in Community Finally, even if the construction to be law as well. placed on the provisions in question were to be that which has been advanced by the Commission, there would still be In its reply to the applicant's sup- unfair discrimination sufficient to plementary observations the Commission invalidate the provision in question. The maintains that any reference to the state case-law of the Court of Justice reveals of the law in Member States, in this case that measures adopted under the Staff Italian law, is wholly irrelevant in the Regulations which are found to be present instance, which is merely a contrary to the principle of non-discrim- matter of applying the principles of ination by which the acts of the Community law which is autonomous, administration should be motivated must independent and sovereign. It adds that be considered unlawful. in any case all the rules on such matters in force in the Member States other than Italy provide in some way for time-limits In his supplementary observations Mr for bringing actions. To prove that Grasselli draws the Court's attention to statement it proceeds to give a brief the decisions of the highest courts in review of the rules applicable in that Italy, namely the Corte Costituzionale respect in those States. [Constitutional Court] and the Consiglio di Stato [Council of State]. Those two courts are now refusing to accept as mandatory the sixty-day time-limit pre- scribed for bringing actions which IV — O r a l p r o c e d u r e challenge administrative measures affecting financial rights adopted in relation to public servants, either in office or retired. In particular the Corte Mr Grasselli, represented by C. Ribolzi Costituzionale emphasized in its of the Milan bar, and the Commission of Decision No 8 of 15 January 1976 the European Communities, represented (which the applicant has annexed to his by O. Montalto, acting as Agent, assisted observations) that decisions concerning by R. Tanzilli, an expert, presented oral the pecuniary rights of public servants observations at the sitting on 13 October are measures which do not arise from the 1980. exercise of the authorities' powers but rather are of a contractual nature and, as a result, the grounds justifying the short The Advocate General delivered his time-limits laid down in respect of opinion at the sitting on 30 October measures adopted by a public authority 1980.
JUDGMENT OF 10. 12. 1980 — CASE 23/80
Decision
1 By application lodged at the Court Registry on 15 January 1980 Giuseppe Grasselli, a former official of the Commission of the European Communities, brought an action seeking the annulment of the implied decision rejecting his complaint of 6 June 1979 in which he requested that he be paid family and educational allowances for dependent children together with payment of a full early retirement pension under the measures for final termination of service which were applied to him by virtue of Regulation No 259/68 of the Council.
2 Mr Grasselli entered the service of the High Authority of the European Coal and Steel Community on 5 October 1961 and was placed as from February 1963 in the Directorate for Steel which became, following the establishment of a single Commission for the three Communities, the Directorate for Steel in Directorate-General III of the Commission. On 8 April 1968 he submitted an application for termination of his service in application of Regulation No 259/68 of the Council of 29 February 1968 (Official Journal, English Special Edition 1968 (I), p. 30), adapting the provisions in the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities to the new position brought about by the merger of the executives and laying down for that purpose "special measures temporarily applicable to officials of the Commission".
3 Article 4 (1) of that regulation authorized the Commission until 30 June 1968 to adopt measures terminating the service of officials within the meaning of Article 47 of the Staff Regulations. Paragraph (3) of the same article stated that, if the interests of the service permitted, the Commission was to take into account requests for termination of service submitted by officials.
4 An official in respect of whom such a measure was adopted was entitled initially to monthly allowances and subsequently to a full early retirement pension. Any official who had not completed eleven years of service could,
GRASSELLI v COMMISSION
however, by virtue of Article 6 of the regulation, renounce his pension rights and request the award of a severance grant payable under the conditions set out in Article 12 of Annex VIII to the Staff Regulations.
5 Special provisions were also laid down in respect of former officials of the European Coal and Steel Community who opted for application of the early retirement scheme. By virtue of Article 7 of the regulation, such officials were thus able to ask for the pecuniary rights attaching to their pension to be determined not under Article 5 of Regulation No 259/68 but in accordance with the provisions of the ECSC Staff Regulations which, in the case of officials who were established prior to 1 January 1962 and who were in grades other than A 1 and A 2, were essentially those of Article 34.
6 The pension scheme laid down by those provisions differed from that established by Article 5 of Regulation No 259/68 both as regards the initial allowance, the calculation of the length of service to be taken into account for pension purposes and the conditions of payment of the latter, and as regards the pecuniary rights attaching to the pension. As to the latter rights, the provisions of the ECSC Regulations, in contrast to Article 5 of Regu- lation No 259/68, included payment of a reduced early retirement pension and did not make provision for payment of family and educational allowances for dependent children.
7 The applicant asked, on 8 April 1968, to have his service terminated under Regulation No 259/68 and the Commission informed him by a letter of 21 June 1968 that it accepted his request and, in view of the fact that he had not completed by that date the above-mentioned eleven years of service, asked him to choose between the award of the pension and payment of a severance grant. Should he opt for the award of pension, it asked him to inform the administration whether he preferred his rights to be calculated under Article 5 of Regulation No 259/68 or under the provisions of Article 34 of the former ECSC Regulations. To that end, the Director-General for Personnel and Administration sent him on 16 September 1968 an explanatory table showing the benefits to which he would be entitled under each of those two retirement schemes and drew his attention, in particular, to the fact that the
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scheme of Article 34 of the ECSC Regulations involved payment of a reduced early retirement pension and did not make provision for family and educational allowances for dependent children.
8 After seeing the explanatory table the applicant submitted a complaint under Article 90 of the Staff Regulations claiming that application of Article 34 of the ECSC Staff Regulations could not prevent the award of a full early retirement pension and payment of the above-mentioned allowances, and stating that he reserved his position concerning the choice between the two schemes in question pending a decision from the administration on the matter. In view of the explanations supplied by the Commission the applicant brought an action before the Court on 13 December 1968. In its judgment of 10 December 1969 in Case 32/68 the Court dismissed the application as inadmissible on the ground that the above-mentioned explanations of the Commission did not amount to an act adversely affecting him ([1969] ECR at p. 511).
9 On being asked subsequently by the Commission to make his choice as to the scheme to be applied in respect of his retirement the applicant declared by a letter of 27 February 1970 that he opted for the scheme under Article 34 of the former ECSC Regulations, pressing at the same time for the provisions in Article 5 of Regulation No 259/68 to be applied in his case with regard to the grant of a whole pension and family and educational allowances for dependent children.
io On 11 April 1973 the Director-General for Personnel and Administration adopted a formal decision granting the applicant an early retirement pension under the above-mentioned Article 34, as from 1 Ocotber 1972. In a letter of the same date the head of the relevant division of that Directorate-General confirmed to the applicant that the provisions of Article 5 of Regulation No 259/68 would not be applied to him, and sent him a statement of his pension rights showing that he was to be paid a reduced pension without family and education allowances for dependent children.
n On 6 June 1979 the applicant submitted a complaint under Article 90 of the Staff Regulations seeking to obtain those allowances together with a full
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early retirement pension. As the Commission did not reply to the complaint within the period laid down by the regulations the applicant brought the present proceedings on 15 January 1980.
12 By a document dated 14 February 1980, lodged on the same day, the Commission made an application under Article 91 of the Rules of Procedure for the application to be dismissed as inadmissible because it was commenced out of time and was equally inadmissible having regard to Article 41 of Annex VIII to the Staff Regulations. In his written observations, lodged on 13 March 1980, the applicant opposes the objection.
A d m i s s i b i l i t y of t h e a p p l i c a t i o n
(a) Observation of the time-limit for lodging the application
i3 In support of its objection of inadmissibility the Commission first claims that the measure adversely affecting the official, on the lawfulness of which the Court is asked to pronounce in accordance with Article 91 (1) of the Staff Regulations, is in this case the decision of the Director-General for Personnel and Administration of 11 April 1973 placing the applicant on early retirement under the conditions expressly defined by the appropriate department of the Commission, contained in the statement which was sent to Mr Grasselli on the same day.
H The applicant, however, maintains that neither the decision of 11 April 1973 nor the statement attached to the letter of the same date nor, lastly, the monthly notices of payment sent to him subsequently, can be considered as the act which adversely affected him. He explains on this point that the above-mentioned decision was restricted exclusively to providing that he be placed on early retirement without actually defining his pecuniary rights, and that the statement of those rights attached to the letter of 11 April 1973 amounts, in the same way as each of the notices of payment sent to him monthly, to a mere accounting record devoid of the character of a decision.
is It has been established that in fact on the very day on which the decision of the Director-General of Personnel and Administration granting him a pension payable on early retirement was adopted, the applicant received from the head of the relevant division in that Directorate-General a statement of
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his pecuniary rights showing that they were those provided for under the pension scheme laid down in Article 34 of the ECSC Regulations for which the applicant had opted and which had been allowed him on the basis of the above-mentioned decision.
i6 In the circumstances there can be no question but that the above-mentioned statement was an integral part of the decision of 11 April 1973, the legal effects of which on the applicant's financial position it defined, so that as regards in particular payment of the reduced pension without family and education allowances for dependent children, it must be considered to be the act adversely affecting the applicant.
i7 As that statement was sent to the applicant on 11 April 1973 it was from that date that the periods laid down in Articles 90 and 91 of the Staff Regulations for the lodging of a complaint and an application under those articles against the financial position resulting from the decision of 11 April 1973 and in particular as regards the application of a reduced rate of pension and the non-payment of the allowances in question commenced to run.
is The notices of payment which were subsequently sent to the applicant each month and which contained a statement of his pecuniary rights which corresponded to the first statement cannot cause those periods to start to run afresh. As the Court has consistently held (judgment of 14 April 1970 in Case 24/69, Nebe v Commission, [1970] ECR 145; judgment of 8 May 1973 in Case 33/72, GunnelL· v Commission, [1973] ECR 475), a measure which contains no new factor as compared with a previous measure constitutes a purely confirmatory measure and cannot therefore have the effect of setting a fresh time-limit in favour of the person to whom the earlier measure was addressed.
i9 It is, however, established that the applicant did not submit his complaint under Article 90 of the Staff Regulations against the application of a reduced rate of pension and the failure to pay the allowances referred to above until 6 June 1979. "Whilst it is to be regretted that the Commission did not consider it necessary to reply to that complaint, in accordance with one of the principles of good administration, nevertheless the fact is that the complaint does not contain any new factor as compared with those put forward by the applicant earlier when his service was terminated in 1973 and
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in relation to which the administration had stated its position in its letter of 11 April 1973.
20 In those circumstances it must therefore be concluded that the applicant's complaint of 6 June 1979 and this application, lodged on 15 January 1980, are to be held as being brought out of time as regards Articles 90 and 91 of the Staff Regulations.
(b) Application ofArticle 41 of Annex VIII to the StaffRegulations 2i It is also argued by the Commission that the first paragraph of Article 41 of Annex VIII to the Staff Regulations has the sole purpose of enabling the institutions to recalculate pensions at any time and does not give officials any right of action for the purpose of obtaining such a recalculation irrespective of the periods prescribed for applications, which are laid down generally in Articles 90 and 91 of the Staff Regulations.
22 Against that the applicant claims that the first paragraph of Article 41 of Annex VIII to the Staff Regulations, being a specific provision in the rules of the Staff Regulations relating to the pension scheme, must be considered, both on its wording and its purpose, as a special rule which derogates from the general system applicable to actions brought by officials and gives them a right of action for the recalculation of their pensions the exercise of which is not subject to observance of the time-limits laid down in Articles 90 and 91 of the Staff Regulations.
23 The first paragraph of Article 41 of Annex VIII to the Staff Regulations provides as follows: "The amount of pension may at any time be calculated afresh if there has been error or omission of any kind."
24 For a correct interpretation of that provision in order to determine the conditions in which officials may seek the recalculation of their pension regard must be had to the system laid down by the regulations governing disputes and the underlying requirements of that system.
25 The Staff Regulations make general provision in Articles 90 and 91 for the rights of action of members of the staff against administrative acts adversely affecting them. Those provisions make it clear that the system for the settlement of disputes thereby established is based in its entirety on the requirement that exercise of the right of action is permitted only subject to strict observance of the time-limits which have been laid down.
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26 Any official who seeks to have his pension recalculated where there has been error or omission of any kind may, it is true, avail himself of the provisions of the first paragraph of Article 41 of Annex VIII to the Staff Regulations by requesting such a recalculation by means of a complaint and, if necessary, by way of legal proceedings, but for his complaint and his action to be admitted under Articles 90 and 91 of the Staff Regulations he must exercise his right of action within the periods laid down by those articles, starting from the time of the occurrence of a new fact such as to justify a recalculation of his pension or from the time when he actually became aware of the existence of such a fact.
27 In the present instance the new fact capable of possibly justifying a request for the applicant's pension to be recalculated under the first paragraph of Article 41 of Annex VIII to the Staff Regulations might have been the rules published by the Council subsequent to Regulation N o 259/68, which introduced measures concerning the termination of service providing, for officials who are subject to such measures, for the application, inter alia, of a scheme for unreduced pensions payable on early retirement, together with payment of the allowances in question.
28 Those rules, which are to be found mainly in Regulation N o 1543/73 of 4 June 1973 (Official Journal L 155, p. 6) were published in the Official Journal of the European Communities on 11 June 1973, but it was not until his complaint of 6 June 1979 that the applicant made use of the remedy available under Articles 90 and 91 of the Staff Regulations in order to claim payment of an unreduced pension and of the allowances in question.
29 From the written observations which were submitted in respect of the Commission's preliminary objection of inadmissibility, and in particular paragraph (2) of those observations, it appears that the applicant was in a position "subsequently" to ascertain that "the injustice of which he had complained" in his first action of 13 December 1968 "had been remedied by means of Regulations Nos 2530/72 and 1543/73". Annex 2 to the application shows, in addition, that contact between one of the specialized departments of the Directorate-General for Personnel and Administration and the applicant had been established in 1975, at the latest, and that that contact had resulted in the reconsideration of certain of the applicant's pecuniary rights.
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30 Those factors reveal that when he submitted his complaint on 6 June 1979 the existence of the above-mentioned rules did not constitute as far as the applicant was concerned a new fact giving him the right to claim under Articles 90 and 91 of the Staff Regulations a recalculation of his pension in accordance with the first paragraph of Article 41 of Annex VIII to the Staff Regulations.
Conclusion
3i In those circumstances the delay in the submission of that complaint must be considered such as to make this action inadmissible.
Costs
32 In accordance with Articles 69 and 70 of the Rules of Procedure the parties must bear their own costs.
On those grounds,
T H E C O U R T (First Chamber)
hereby:
1. Dismisses the action as inadmissible;
2. Orders the parties to bear their own costs.
Koopmans O'Keeffe Bosco
Delivered in open court in Luxembourg on 10 December 1980.
A. Van Houtte T. Koopmans Registrar President of the First Chamber