C-29/80

JUDGMENT OF 21. 5. 1981 — CASE 29/80

In Case 29/80

ANDREAS H. REINARZ, a former official (A 2) of the Commission of the European Communities, residing at Beersel (44 Groenstraat, Dworp), represented by A. J. Hammerstein of the Maastricht Bar, with an address for service in Luxembourg at the office of F. Jansen, huissier, 21 Rue Aldringen, applicant, v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by R. Baeyens, acting as Agent, assisted by R. Nys of the Brussels Bar, with an address for service in Luxembourg at the office of Mario Cervino, Jean Monnet Building, Kirchberg,

defendant,

APPLICATION for:

REINARZ v COMMISSION

JUDGMENT

Facts and Issues

The facts and the arguments of the question, with the result that he lost parties put forward during the written approximately one million Belgian procedure may be summarized as francs. In 1976 the applicant applied to' follows : the Court for the annulment or the last subparagraph of Article 3 (3) of Regu- lation No 2530/72 and for damages against the Commission on the ground that payment to him of the monthly I — Facts and p r o c e d u r e allowance pursuant to Article 3 (1) (b) of the said regulation was effected in Canadian dollars on the basis of a fictitious exchange rate, in accordance with the contested provision, which was The applicant, who became an official of much higher than the actual market the European Coal and Steel Community exchange rate between the Belgian franc (ECSC) in 1952 and of the Commission and the Canadian dollar. The action was of the European Economic Community declared inadmissible by judgment of (EEC) on 15 April 1959, in Grade A 2, 17 February 1977 on the ground that it requested that Regulation No 2530/72 had not been preceded by an official be applied to him; in consequence, he complaint (Case 48/76, Reinarz v retired in the interests of the service on Commission [1977] ECR 291). 1 May 1973.

On 28 March 1979, the Commission suffered by him during the period rejected his request as unfounded and referred to in paragraph 1 by virtue pointed out that "the complaint has not of the application of the provisions been lodged within the period prescribed referred to in paragraph 1 or at least by Article 90 (2) of the Staff Regu- order the Commission to pay the lations". applicant such financial compen- sation as the Court sees fit; By registered letter of 22 June 1979, the applicant submitted a complaint within 3. Order the Commission to bear the the meaning of Article 90 (2) against the costs". Commission's decision rejecting his request. The defendant contends that the Court By. letter of 21 December 1979, the should: Commission also rejected that complaint pointing out that "it is not admissible". "Dismiss the claim for compensation: Faced with that rejection, the applicant has brought the present application — principally on the ground that it is which was received at the Court Registry inadmissible, on 18 January 1980. — alternatively on the ground that it is On hearing the report of the Judge- unfounded, and Rapporteur and the views of the Advocate General, the Court (Second Order the applicant to bear the costs". Chamber) decided to open the oral procedure without holding a preparatory inquiry. III — Summary of the sub- missions and arguments of the parties II — Conclusions of the parties A — Admissibility

by Council Regulation No 3085/78 of Therefore, the applicant maintains that 21 December 1978 (Official Journal, he adhered strictly to the procedure L 369, p. 6) and are no longer in force. prescribed by the Staff Regulations and, consequently, to the time-limits laid down therein: he "requested the Commission to grant him compensation Therefore "the Commission finds that on grounds of fairness for the loss Mr Reinarz has failed to avail himself suffered". Finally, the applicant fails to within the prescribed period of the see what argument the Commission can means of redress provided for under the deduce from the fact that the provisions Staff Regulations and the Treaty". criticized by him on grounds of fairness have been amended by Council Regu- lation No 3085/78 with effect from 1 April 1979. In his view, the amendment The applicant considers that the indicates merely that the Commission Commission wrongly regards the letter realized that the application of a of 9 May 1978 as a complaint within the monetary parity bearing no relation to meaning of Article 90 (1) and (2) of the reality was indefensible. Staff Regulations. That letter contains "a long explanation to the effect that the applicant has submitted primarily a request to the Commission" and only in the alternative, that is to say in the event In its rejoinder, the Commission of the Commission's taking the view that maintains first that the letter of 28 the conditions for acceding to his November 1978 is described by the principal request have not been complied applicant himself as "a supplement to his with, has he submitted a complaint. complaint, or to his request, within the meaning of Article 90 (1) and (2) of the Staff Regulations". Subsequently, it reiterates that there were sound reasons Since that letter of 9 May 1978 failed to for regarding the two letters sent by reach the Commission, the applicant sent the applicant as complaints and, another letter on 28 November 1978, to consequently, for rejecting them as such. which a photocopy of the earlier letter was attached in which he pointed out to the Commission that he had submitted a request and, only as a secondary point, a complaint. According to the Commission, the applicant relies, on the basis of equitable considerations contra legem, upon the fact that the amendment contained in The Commission admittedly regarded Regulation N o 3085/78 lacks retroactive the first letter exclusively as a complaint, effect. The amendment of the rule treated it as such and rejected it. That is applied to Mr Reinarz for the period why, in his complaint of 22 June 1979, from 1974 to 1977 which entered into the applicant expressly drew the force on 1 April 1979 "cannot have the Commission's attention to the fact that it effect of reviving a dispute which has had wrongly considered the first letter as been barred by limitation for several a complaint. In fact, the Commission did years". Furthermore, the action is not take any decision concerning the inadmissible on the additional ground request submitted to it by Mr Reinarz in that it has been brought before the Court accordance with the provisions of Article after the expiry of the period specified in 90 (1) of the Staff Regulations. Article 90 (2) of the Staff Regulations.

B — Substance regulation which is designed to ensure equivalence in the purchasing power of the allowances in question by intro- In his application, the applicant founds ducing certain weightings, the purpose of his case on six arguments. which is precisely to ensure such equivalence. Furthermore, the Com- mission, "in complete disregard of the Council and of the Staff Regulations", adopted measures taking into account 1. The Commission is bound in fairness the diminished purchasing power in the to compensate the applicant for the loss case of officials carrying out their duties of income suffered during the period in South American countries, for which complained of "because the strict no weighting has been fixed, but has application and implementation of the failed to adopt any provisions in relation provisions of Regulation No 2530/72 in to the applicant who is in a comparable conjunction with those of the third situation, such difference in treatment paragraph of Article 63 of the Staff being discriminatory. Admittedly, the Regulations in relation to the applicant allowances paid to him in Canada were was arbitrary, discriminatory, unjustified weighted at the rate fixed for Belgium and wholly unfair". The preamble to but that weighting bears no relation to Regulation No 3085/78 demonstrates the level of prices and the cost of living that the Commission itself came to the in Canada. conclusion that it was necessary to amend the provisions of the Staff Regu- lations concerning the monetary parities and the detailed rules to be applied for 3. The Community has enriched itself the transfer in a currency other than at the applicant's expense given that the Belgian francs of the allowance to which advantage in the exchange rate resulting an official or former official is entitled. from the payment in devalued Canadian The amendment is based on Article 3 of dollars of an allowance calculated in the aforesaid regulation which, referring Belgian francs has been entirely to the back to the second paragraph of Article benefit of the Community's finances. 63 of the Staff Regulations, lays down that the above-mentioned allowances must be paid on the basis of the par values used for the implementation of the general budget of the European Com- 4. The applicant criticizes above all munities. According to the applicant, "the manner in which — namely by however, the fact that Regulation No taking into account the principles of 3085/78 does not cover earlier cases care, fairness and good faith — the constitutes proof of the negligent and Commission is to fulfil an obligation" arbitrary manner in which the arising under the Staff Regulations Commission has treated him. which corresponds to the directly applicable right to payment vested in officials or former officials and he refers to the judgment given by the Court on 31 May 1979 in Case 156/78 Newth v Commission [1979] ECR 1941 in which 2. The strict and inflexible application the Commission "considered that there of the fourth subparagraph of Article 3 was an indissoluble link between the (3) of Regulation No 2530/72 is also weighting applicable to the place of contrary to the system established by that residence and the currency in which

With regard to the Commission's argument that he should have been aware, on the basis of "clear" provisions, The Commission, after explaining that it of the financial consequences resulting intends to examine the substance of the from his settling in Canada, the applicant case only for the sake of completeness, disputes that those provisions can be maintains that it has correctly applied considered as being clear. He maintains Regulation No 2530/72, the provisions in this respect that "the head of the of which are explicit and accordingly Legal Department of the Communities" incapable of being interpreted, and that informed him orally at the time that the the regulation has been amended only application of the last subparagraph of with effect from 1 April 1979 by Regu- Article 3 (3) of Regulation N o 2530/72 lation No 3085/78. Furthermore, when "was restricted in his opinion to the he decided to settle in Canada, Mr Member States of the Community" Reinarz was or should have been aware, which tallies with the opinion expressed

JUDGMENT OF 21. 5. 1981 — CASE 29/80

by the Commission in the above- last subparagraph of Article 3 (3) of mentioned Newth case, that is to say that Regulation N o 2530/72, his assertion is there is an indissoluble link between the to some extent based on fact, the weighting applicable to the place of Commission nevertheless fails to see residence of the persons concerned and what the applicant is endeavouring to the currency in which payment to them prove, given that the contents of that is to be effected. assertion do not add anything in support of his case.

REINARZ v COMMISSION

Decision

1 By application received at the Court Registry on 18 January 1980, Mr Reinarz, a former official of the European Communities in Brussels who is currently in receipt of an allowance under Regulation No 2530/72 of the Council of 4 December 1972 introducing special and temporary measures applicable to the recruitment of officials of the European Communities in consequence of the accession of new Member States, and for the termination of service of officials of those Communities (Official Journal, English Special Edition 1972 (1-8 December), p. 11), brought an action first for a declaration that with regard to the allowances paid to the applicant in Canada during the period from 1 May 1974 to 1 September 1977 the provisions of the last subparagraph of Article 3 (3) of Regulation No 2530/72 in conjunction with those of the last paragraph of Article 63 of the Staff Regulations were not applicable to him and, secondly, for an order requiring the Commission to compensate him on grounds of fairness for the financial loss which he claims to have suffered as a result of the application of those provisions, or at least to pay him such damages as the Court sees fit.

2 Upon relinquishing his post with the Communities in 1973, the applicant settled in Canada and accordingly his allowance, calculated in Belgian francs, was paid in the currency of that country calculated on the basis of the par values accepted by the International Monetary Fund which were 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.

6 On 22 June 1979, the applicant raised with the Commission the objection that it had mistakenly considered his request for compensation as a complaint and he pointed out that, by that letter, he was submitting in accordance with Article 90 (2) of the Staff Regulations a complaint "against the rejection of his request that it take the decision relating to him which he sought".

7 The Commission rejected that complaint by letter of 21 December 1979 recalling once again that "it is not admissible" or well founded. On 18 January 1980, the applicant brought this application against the rejection of his complaint.

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

8 The Commission challenges the admissibility of the application on the grounds that, first, this is a repetition of an application for damages which has already been brought before the Court in Case 48/76 and dismissed by judgment of 17 February 1977 and, secondly, that the applicant's letter of 9 May 1978 constitutes a complaint and proceedings have been instituted before the Court after the expiry of the period specified in Article 90 (2) of the Staff Regulations.

9 However, since it appears from the applicant's letter of 9 May 1978 that he submitted primarily a request to the appointing authority and in the alter- native a complaint, it is necessary to consider the admissibility of each of those steps separately.

REINARZ v COMMISSION

Substance

13 In this context, the applicant, who essentially seeks on grounds of fairness compensation or damages from the Commission for the loss suffered, alleges that the application of the provisions of Article 3 of Regulation No 2530/72 in conjunction with those of Article 63 of the Staff Regulations has resulted in discrimination against him compared with other former officials residing in one of the Member States which the Commission has implicitly recognized in the preamble to Council Regulation N o 3085/78 of 21 December 1978

JUDGMENT OF 21. 5. 1981 — CASE 29/80

amending the monetary parities to be used. This system is also contrary to the general principle of human rights which allows any person to settle, on termination of service, in the country of his choice without suffering a reduction in emoluments, and to Article 12 of the Protocol on the Privileges and Immunities of the European Communities.

1 4 The objection to that argument is that the applicant — who retired from the Community of his own initiative — cannot have been surprised by the fact that legislation containing express provisions which was amended only as from 1 April 1979 by Council Regulation No 3085/78 of 21 December 1978 was applied to him. Accordingly, he was well aware of the amount of the monthly allowance to be paid to him on his departure for Canada in May 1973 and he accepted it with full knowledge of the facts.

15 This system does not, moreover, result in discrimination against officials who are in the same position as the applicant, that is to say, where they have also chosen to reside in a country outside the Communities.

On those grounds,

T H E C O U R T (Second Chamber)

hereby:

1. Dismisses the application;

2. Orders the parties to bear their own costs.

Pescatore Touffait Due