C-167/80

J U D G M E N T OF T H E C O U R T (FIRST CHAMBER) OF 4 JUNE 1981 1

Dunstan Curtis v Commission of the European Communities and European Parliament

"Staff Regulations — Exchange rates for the calculation of pensions"

Case 167/80

Officials — Application to the Court — Act adversely affecting an official — Act emanatingfromthe appointing authority (Staff Regulations of Officials, Art. 91)

The appeal referred to in Article 91 of affecting an official and emanating from the Staff Regulations of Officials may be the appointing authority. directed only against an act adversely

and

EUROPEAN PARLIAMENT, represented by Francesco Pasetti-Bombardella, Director-General of Administration, Personnel and Finance acting as Agent, assisted by Sir Derek Walker-Smith, barrister with an address for service at the Secretariat of the European Parliament, Kirchberg, Luxembourg,

defendants,

APPLICATION for annulment of the decisions rejecting the applicant's complaints pursuant to Article 90 (2) of the Staff Regulations concerning the application to him of Council Regulations Nos 3085/78 and 3086/78 of 21 December 1978, amending the Staff Regulations with respect to monetary parities to be used and the weightings applicable to the remuneration and pensions of officials and other servants of the European Communities (Official Journal 1978, L 369),

THE COURT (First Chamber)

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

This notice, a letter dated 22 October The applicant claims that the Court 1979, signed by the Head of the should: Pensions, Remunerations, Various Allowances Division, notified the "(1) declare Regulations Nos 3085/78 applicant that by application of Article 4 and 3086/78 inapplicable; of Council Regulation No 3085/78, the amount of his pension would be reduced (2) further or in the alternative, annul by 10 % each month, from October the notice of 22 October 1979 1979 and would amount to BFR 8 398 as and/or the decision(s) of the from July 1980. defendant(s) rejecting the applicant's complaint; By letter dated 8 January 1980 the applicant submitted a complaint to the (3) order the defendant(s) to pay the Commission under Article 90 (2) of the applicant the sums which would Staff Regulations directed against have been paid to the applicant if "Council Regulations Nos 3085/78 and his pension had not been reduced 3086/78 and the notice applying Council by the aforesaid regulations Regulation 3085/78, dated 22. 10. 1979". together with interest thereon at the rate of 1 % above the United Kingdom minimum lending rate or On the same date the applicant in the alternative at such other rate submitted an identical complaint to the as the Court shall determine; Parliament. At the time of the present application of the Court no reply to (4) in any event order the defendant(s) those complaints had been received by to pay the costs."

JUDGMENT OF 4. 6. 1981 — CASE 167/80

The European Parliament requests the junction with the fact that the applicant Court: had not received a reply to his first complaint, this made his application in (1) to dismiss the application as Case 154/79 premature in the sense of inadmissible; Article 91 of the Staff Regulations.

Firstly, the applicant is acting contrary to III — Submissions and argu- the system of appeals as laid down in m e n t s of t h e p a r t i e s Articles 90 and 91 of the Staff Regu- lations in so far as he seeks to present two successive appeals to the Court The applicant submits that the notice of having one and the same object. 22 October 1979 and the decisions Secondly, it is not in conformity with rejecting the complaints are unlawful by Article 42 (2) of the Rules of Procedure reason of the illegality of the regulations which provides that no fresh issue may themselves. The grounds for the illegality be raised in the course of proceedings of the regulations are set out in Case unless it is based on matters of law or of 154/79 Biller and Others v European fact which come to light in the course of Parliament and the applicant refers the the written procedure. The applicant in Court to the application and reply in that lodging the present application, seeks, by case for the applicant's submissions. ways of Articles 90 and 91 of the Staff Regulations, to evade the intent or object The European Parliament points out that of the Rules of Procedure. the time the applicant submitted his first complaint by letter of 30 June 1979, no act adversely affecting him did, in fact, In its objection of inadmissibility the exist. The Council regulations in European Parliament argues that the question entered into force on 1 January applicant's second complaint which it 1979 and took effect on 1 April 1979 but received on 16 January 1980 was not they became applicable to the applicant submitted within the period of three for the first time on 1 October 1979. months as required by Article 90 of the Staff Regulations. The complaint was When the applicant instituted on 3 Octo- directed against the letter of 22 October ber 1979 the proceedings in Case 1979 from the competent division of the 154/79, the time-limit of four months Commission. This letter does not within which the appointing authority constitute an act within the meaning of should reply to the complaint according Article 91 of the Staff Regulations to Article 90 (2) of the Staff Regulations since it merely explains the financial had not yet expired. Taken in con- consequences of the application to the

applicant of the Council Regulations in The applicant argues that Article 42 of question. The time-limit for submitting a the Court's Rules of Procedure is not complaint under Article 90 started to run relevant to the present application since when the applicant received the letter these proceedings are new. Their aim is of 4 September 1979 confirming the the annulment of a decision which had application to him of Regulations Nos not been taken when the application in 3085/78 and 3086/78. Consequently, the Case 154/79 was brought. second complaint received by the European Parliament was not submitted within the period of three months as required by Article 90 of the Staff Regu- The applicant rejects the European Par- lations. liament's argument that the application is out of time because it should have been directed against the letter from the Commission of 4 September 1979. That letter did not set out the manner in which the regulations in question were to The applicant, in his observations to the be applied to the applicant. The decisive European Parliament's objection as to letter was that of 22 October 1979. Even the admissibility of the application, if the letter of 4 September 1979 had set points out that he was induced to make a out the manner in which the applicant's second application to the Court by pension would be affected by Regu- the submissions of the defendants lations Nos 3085/78 and 3086/78, the themselves. In Case 154/79 the Parlia- applicant would not have been able to ment objected to the admissibility of the challenge that letter in so far as it action on the ground that the applicant constituted an explanation, not a had no standing to challenge regulations decision adversely affecting him but only individual measures. In Case (judgment of 10 December 1969, Case 153/79, Gordon Craigie Bowden and 32/68, Grasselli v Commission [1969] Others v Commission, in which the issues ECR 505). are identical to those of Case 154/79, the Commission asserted that in the circumstances of the present case the correct course for the applicant was to The Commission in its objection of challenge the first monthly pension inadmissibility submits that the appli- payment in which the offending regu- cation is inadmissible on two grounds: lations were applied to him. This the applicant has now done. He has challenged, not the payment slip for October 1979 which simply reflects the decision in issue, but the decision itself, — the Commission is not the competent contained in the Commission's letter of appointing authority as the applicant 22 October 1979 which he received at being temporary staff of the the same time, since it is obvious that, European Parliament depended upon where the letter notifying the applicant that institution; of a decision is sent at the same time as the monthly statement, the appropriate measure for the applicant to challenge is the decision recorded in the letter — the application is not directed against (judgment of 8 February 1973, Case an act adversely affecting the 56/72, Goeth v Commission [1973] applicant. The only such act is the ECR 181). pay slip of October 1979; the

"The institution in which the official was serving at the time when his active employment ended shall be responsible The applicant cannot avoid having his for calculating the amount of retirement application dismissed as inadmissible by pension . . ." claiming that it is aimed at having Regu- lations Nos 3085/78 and 3086/78 declared inapplicable. Such a conclusion could only be based on Article 184 which does not provide for an autonomous action before the Court. The essential Although the notice dated 22 October objective of Article 184 is to oust the 1979 was issued by the Commission, this two-month limitation period laid down does not mean that the Commission is in Article 173 of the Treaty by allowing the appointing authority. By virtue of a party to plead inapplicability of a Article 45 of Annex VIII to the Staff Council Regulation at any time, on Regulations, benefits under the pension condition that his action is properly scheme are, on behalf of the before the Court under some other Communities, provided by the institution article of the Treaty (judgment of 14 designated by the budgetary authorities. December 1962, Cases 31 and 32/62, It appears from the budget that the Milchwerke H. Wöhrmann und Sohn and institution designated to pay all the A. Lütticke v Commission [1962] ECR at pensions owed by the various institutions p. 501 and p. 507; judgment of 6 March of the Communities is the Commission. 1979, Case 92/78, Simmenthal v Commission [1979] ECR 777).

Therefore the Commission was acting on behalf of the Parliament when it made out the accounts of pensions of all the former officials and other employees of It is not possible in this case for the the European Communities affected by application to be based upon Article 179 Regulations Nos 3085/78 and 3086/78. of the EEC Treaty, because it is directed

Decision

1 By application lodged at the Court Registry on 18 July 1980 under Article 91 of the Staff Regulations of Officials against the European Parliament and the Commission of the European Communities the applicant, a former member of the temporary staff of the European Parliament, claims that the Court should:

1. Declare that Council Regulations Nos 3085/78 and 3086/78 of 21 December 1978 do not apply to him.

2. In the alternative, annul the notice of 22 October 1979 of the Commission determining the manner in which the applicant's pension was to be reduced with effect from 1 October 1979 and the implied decisions of the defendants rejecting the complaints of the applicant of 8 January 1980 submitted under Article 90 (2) of the Staff Regulations of Officials.

JUDGMENT OF 4. 6. 1981 — CASE 167/80

3. Order the defendants to pay the applicant the sums which would have been paid to him if his pension had not been reduced by the aforesaid regulations together with interest thereon at the rate of 1% above the United Kingdom minimum lending rate or such other rate as the Court shall determine. 4. Order the defendants to pay the costs.

5 On 21 December 1978 the Council adopted Regulation (Euratom, ECSC, EEC) No 3085/78 (Official Journal 1978, L 369, p. 6), Article 1 of which states that Article 63 of the Staff Regulations is replaced by the following:

CURTIS v COMMISSION AND PARLIAMENT

"Officials' remuneration shall be expressed in Belgian francs. It shall be paid in the currency of the country in which the official performs his duties.

Remuneration paid in a currency other than Belgian francs shall be calculated on the basis of the exchange rates used for the implementation of the general budget of the European Communities on 1 July 1978.

This date shall be changed, at the time of the annual review of remuneration provided for in Article 65, by the Council acting by a qualified majority upon a proposal from the Commission as provided in the first indent of the second subparagraph of Articles 148 (2) of the EEC Treaty and of 118 (2) of the Euratom Treaty.

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."

T h e o b j e c t i o n of i n a d m i s s i b i l i t y r a i s e d by t h e C o m m i s s i o n

10 By a document dated 30 September 1980 the Commission raised an objection of inadmissibility under Article 91 of the Rules of Procedure. According to it the application is inadmissible on the grounds (1) that the Commission is not the appointing authority and (2) that the application is not directed against an act adversely affecting the applicant. Proceedings brought under Article 91 must be against the appointing authority. It is clear from Article 45 of Annex VIII to the Staff Regulations that it is the institution in which the official was serving at the time when his active employment ended, in this case the European Parliament, which is responsible for calculating the amount of pension. The Commission, in calculating the pensions sub- sequently to be received by each of the former officials and servants of the Communities affected by the new scheme, was merely acting as the agent of the Parliament under Article 45 of Annex VIII to the Staff Regulations. The letter of 22 October 1979 does not constitute a measure adversely affecting the applicant for the purposes of the Staff Regulations; the payment slip for October 1979 constitutes the act adversely affecting the applicant against which he should have instituted the proceedings.

1 1 By a document of 11 November 1980 the applicant submits that the objection should be rejected and alternatively that the issue of admissibility should be reserved until the substance of the case has been heard. According to him, the application is directed against the decision to reduce his pension, a decision which was notified to him by the Commission. Furthermore, the communication of the Commission constitutes or contains the act applying

13 By a document dated 30 October 1980 the European Parliament submitted an objection of inadmissibility under Article 91 of the Rules of Procedure. The applicant and 11 officials of the Parliament lodged an application (Case 154/79) before the expiry of the period of four months within which the appointing authority is required under Article 90 of the Staff Regulations to reply to a complaint submitted by an applicant. The applicant submitted a second complaint on 16 January 1980 and subsequently, on 18 July 1980, instituted these proceedings. This way of proceeding is, first, contrary to the system of appeals as laid down in Articles 90 and 91 of the Staff Regulations in so far as it would allow two successive appeals to the Court having one and the same object. Secondly, it is not in conformity with the spirit of Article 42 of the Rules of Procedure, according to which no fresh issue may in principle be raised in the course of proceedings.

1 4 Furthermore, the complaint received by the Parliament on 16 January 1980 is out of time. It should have been submitted within a period of three months which started to run from the time when the applicant received the letter of 4 September 1979 from the Commission which confirmed that the above- mentioned regulations of the Council were applicable to the applicant as from 1 October 1979.

15 In his reply the applicant challenges the validity of the submissions of the Parliament. The present application is not contrary to the system of appeals laid down in Articles 90 and 91 of the Staff Regulations. In Case 154/79 the Parliament objected to the admissibility of the action on the ground that the applicants had no standing to challenge regulations but only individual

Costs

18 Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs. Since the applicant has failed in his action in so far as it is directed against the Commission, he must be ordered to pay the costs. Nevertheless, under Article 70 of the Rules of Procedure, in staff cases the institutions shall bear their own costs.

CURTIS v COMMISSION AND PARLIAMENT

On those grounds,

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

hereby rules :

Delivered in open court in Luxembourg on 4 June 1981.

A. Van Houtte T. Koopmans Registrar President of the First Chamber