C-416/92

H. v C O U R T O F A U D I T O R S

OPINION OF ADVOCATE GENERAL LENZ delivered on 19 January 1994 *

Mr President, ments of the members of the Court of Audi­ Members of the Court, tors. 2

A — Introduction

3. Those provisions, in the version currently 1. The applicant's husband was a member of in force, read as follows: 3 the Court of Auditors of the European Communities who had taken up his duties on 18 October 1987. O n 15 March 1992, during his term of office, ' he died in a road accident.

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That pension shall be equal to a percentage left, the total amount of the survivor's of the pension accruing to the member or pension shall be divided equally among former member of the Court of Auditors the orphans entitled. under Article 10 at the date of death, namely:

— for a widow 60%, 2. The total amount of these survivors' pen- sions shall not exceed the amount of the pension of the member or former member of the Court of Auditors on which they are calculated. The maximum total survivors' — for each child where the mother pensions payable shall be divided, where is still alive 10%, applicable, between the beneficiaries in accordance with the above percentages.'

— for each child where both father and mother are dead 20%.

Article 10 of the Regulation, referred to in the second subparagraph of Article 16(1), provides that the amount of the pension is 4.5% of the basic salary last received for each full year in office and one-twelfth of that However, if the death of the member of the sum for each complete month. The maxi- Court of Auditors occurs during his term of mum pension is 70% of the basic salary last office, received (Article 10(1), second sentence).

The result of that calculation was that the Court of Auditors determined a widow's The widow's pension for Mrs H. was calcu- pension of LFR 80 444 for Mrs H . and a lated on the basis of the third subparagraph pension of LFR 5 178 for each of the two of Article 16(1), since Mr H. had died during children. his term of office. The result was a sum of LFR 185 888 monthly (36% of the deceased's last basic salary). The Court of Auditors deducted sickness insurance contri- butions and taxes, so that a widow's pension of LFR 156 440 was finally determined. 6. In the abovementioned covering letter sent with the decision the Head of the Per- sonnel Division of the Court of Auditors indicated that the Financial Controller of the Court of Auditors had refused for legal rea- sons to waive application of Article 16(2) 4 in 5. The Court of Auditors then applied to the determining the survivors' pensions, as had pensions thus calculated the provisions of been done by two other Community institu- Article 16(2) on maximum payments. In so tions in two previous cases. The Financial doing, it took the view that the total amount Controller's opinion had been submitted t o of the survivors' pensions calculated for the competent authority of the Court of Mrs H. and her children could not exceed Auditors 'for a decision'. The writer of the the amount of the pension Mr H. would letter concluded by promising to inform have been entitled to at the date of his death. Mrs H . of the decision to be taken. That maximum amount was assessed by the Court of Auditors at LFR 90 799. The Court of Auditors arrived at that figure by deduct- ing sickness insurance contributions and taxes from the deceased's (hypothetical) pen- sion of LFR 100 689. 7. In a letter of 12 October 1992 the Head of the Personnel Division of the Court of Auditors informed Mrs H . that the Court of Auditors had decided not to change the deci-

8. Mrs H. thereupon brought an action before the Court of Justice, where her appli- cation was received on 14 December 1992, seeking a declaration that the decision of the competent authority of the Court of Audi- tors of 12 October 1992 determining the sur- vivors' pensions for herself and children was void. In her application, she argues in 10. From the procedural point of view, the essence that the maximum pension rule in present case raises above all the question Article 16(2) of Regulation N o 2290/77 is whether the dependants of a member of the not applicable if the survivor's pension is cal- Court of Auditors can proceed against the culated on the basis of the third subpara- decision of that institution which adversely graph of Article 16(1). She also argues that affects them on the basis of Article 173 of the the Court of Auditors was not entitled to EC Treaty 5 or whether they can seek a legal deduct sickness insurance contributions and remedy only in accordance with Article 179, taxes when determining the survivors' pen- in other words, under the conditions apply- sions. ing to servants of the Community. A deci- sion on this point is in my opinion of wider importance in two respects. Firstly, it would be natural for the procedural classification applying to actions brought by dependants of a member of the Court of Auditors to be applied also to comparable actions brought by the member himself. Secondly, it should 9. O n 11 January 1993 Mrs H. brought a be noted that the decision in this case relat- complaint under Article 90(2) of the Staff ing to the Court of Auditors will also be of Regulations of Officials of the European influence for analogous proceedings against Communities against the decision of the other Community institutions. Court of Auditors of 12 October 1992. The Court of Auditors rejected the complaint in a letter of 12 February 1993 from its presi- dent. Mrs H. thereupon brought an action 5 — The application in the instant case was lodged before the entry into force of the Maastricht Treaty, by which the title before the Court of First Instance in her of the E E C Treaty was changed to Treaty establishing the European Community' (EC Treaty). For simplicity I shall own name and that of her children (Case refer in this Opinion to the relevant provisions of the EC T-33/93). Those proceedings have not yet Treaty which are now in force, pointing out any changes which may have been made from the provisions of the EEC been decided. Treaty.

The time of adoption of the challenged mea- sure

Subject-matter of the application

12. Only measures which are intended to 13. The question of the time when the deci- have legal effects can be the subject of an sion was adopted can ultimately be left action for annulment under Article 173 of undecided, however. It should be observed the EEC Treaty. 7 There is no doubt that the firstly that the Court of Auditors has at no determination by the Court of Auditors of time disputed the applicant's contention that the survivors' pensions for Mrs H. and her the determination took place on 12 October 1992. Above all, however, it must be pointed out that the question could in any case be relevant only from the point of view of com- 6 — OJ, English Special Edition 1967, p. 222. The Regulation has pliance with the time-limit laid down in the since been amended on several occasions, most recently by Council Regulauon (EEC, Euratom, ECSC) N o 3762/92 third paragraph of Article 173 of the EC of 21 December 1992 (OJ 1992 L 383, p. 4). Treaty. However, as the period of two 7 — Judgment in Case 22/70 Commission v Council [1971] ECR 263, paragraph 42. months could only start running from the

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notification in the letter of 12 October 1992, challenge acts of the Court of Auditors there can be no doubt that that time-limit which are intended to produce legal effects was complied with in the present case. 8 can however, in my opinion, scarcely be doubted any more, since the Court's deci- sion in the Maurissen case. I0 In that case the Court had to decide inter alia on an applica- tion by a trade union against two decisions of the Court of Auditors (relating to partic- Whether measures of the Court of Auditors ipation in trade union activities within the can be challenged Court of Auditors).

8 — Under Article 81(1) of the Rules of Procedure of the C o u r t ' An interpretation of Article 173 of the of Justice, the period of time allowed for commencing pro- ceedings against measures adopted by an institution runs Treaty which excluded measures adopted by from the day following the receipt by the person concerned of notification of the measure. Under Article 81(2) of the Rules of Procedure and Article 1 of Annex II to those rules, the time-limit is extended by two days for applicants from Belgium. 10 — Judgment in Joined Cases 193 and 194/87 Maurissen and 9 — There is also no provision in the Treaty with respect to the others v Court of Auditors [1989] ECR 1045. Court of Auditors analogous to Article 180, by which juris- diction is conferred on the Court of Justice to decide pro- 11 — Judgment in Case 294/83 Les Verts v Parliament [1986] ceedings against certain acts of the European Investment E C R 1339. Bank, under the conditions laid down in Article 173. 12 — Ibid., paragraph 23.

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the European Parliament from those which might perhaps have a legal remedy using could be contested would lead to a result another method provided for in the Treaty, contrary both to the spirit of the Treaty as namely an action under Article 179. 1 7 expressed in Article 164 and to its system.' u

13 — Ibid., paragraph 25. 14 — Maurissen, p. 1064, paragraph 53. 15 — Ibid., Opinion of Mr Advocate General Darmon, p. 1065, 17 — This point will be discussed in the following section (para- paragraph 57. graph 20 et seq.). 16 — Ibid-, p. 1064, paragraph 54. It is thus abo irrelevant that 18 — Maurissen , cited above, paragraph 29 et seq. (especially the Court of Auditors is now expressly recognized as an paragraph 49). With respect to the other decision of the institution of the Community by Article 4(1) of the EC Court of Auditors challenged by the trade union, the appli- Treaty (as amended by the Maastricht Treaty). cation was declared inadmissible as being out of time.

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20 — Judgments in Case 9/75 Meyer-Burckhardt v Commission [1975] ECR 1171, paragraph 7, and Case 48/76 Reinarz v Commission and Council [1977] ECR 291, paragraphs 9 to 12. 21 — The question whether this is also the case for legai remedies against regulations need not be examined here (see on this )oint, for example, S. Van Raepenbusch, 'Le contentieux de 22. There is no provision in the Treaty f a fonction publique européenne', CDE 1992, p. 564, aï pp. 572Í). The case-law in this field appears not to be alto- which explains the relationship between gether consistent. For example, in its judgment in Joined Articles 173 and 179. However, it follows Cases 87 and 130/77, 22/83, 9 and 10/84 Salerno v Commis- sion and Council [1985] ECR 2523, the Court held that the from the system and purpose of the legisla- application brought by several members of the staff of the tion that an action which is within the scope European Association for Cooperation (an association entrusted by the Commission with certain tasks) against a of Article 179 in principle cannot be based on regulation laying down conditions for their appointment as Community officials was admissible under the second para- other provisions relating to admissibility. graph of Article 173, but dismissed them as unfounded. The Court based its decision on costs, however, on Article 70 of Article 179 may be regarded in this respect the Rules of Procedure (under which the institutions are to as a lex specialis for the field of disputes bear their own costs in proceedings by servants of the Communities), although that provision is applicable only to involving officials. actions based upon Article 179 (Judgment in Case 64/80 Giuffrida and Campogrande v Council [1981] ECR 693, paragraph 9). 22 — That view is shared by E. Grabitz in: Grabitz (ed.), Kom- mentar zum EWG-Vertrag (updated to September 1992), 19 — OJ 1988 L 319, p. 1. paragraph 3 on Article 179.

However, it is evident that Mr H. as a mem- ber of the Court of Auditors was not an offi- cial or other servant within the meaning of the aforesaid provisions. In my opinion, this follows simply from the Protocol on the Privileges and Immunities of the European Communities of 8 April 1965. Chapter V of the Protocol (Articles 12 to 16) is entitled Officials and Other Servants of the Euro- 23. The question therefore arises whether pean Communities'. Article 16 of the Proto- the present application could have been col states that the Council shall determine based on Article 179. A precondition for that the categories of officials and other servants would be that the Staff Regulations applied to whom the provisions of that chapter to Mrs H. (and her two children). The Court apply. Under Article 21, which is in Chapter has, however, recognized that dependants of VII ('General Provisions'), Articles 12 to 15 deceased officials or servants can also bring apply to the Judges, Advocates General and proceedings under Article 179 if they derive Registrar of the Court of Justice. That provi- rights from the Staff Regulations or the Con- sion would not have been necessary if those ditions of Employment of Other Servants 24 persons were in any event to be regarded as of the European Communities. 25 officials or other servants of the Community. Since under Anicie 188b(9) of the EC Treaty (previously Article 206(10) of the EEC 23 — judgment in Case 58/75 Sergy v Commission [1976] Treaty) the provisions of the Protocol also ECR 1139, paragraph 32. apply to the members of the Court of Audi- 24 — Under Article 73 of the Conditions of Employment of Other Servants, the provisions of Title VII of the Staff Reg- tors, the latter too are not to be regarded as ulations, concerning appeals (Articles 90 and 91), apply by analogy to such servants. officials or servants within the meaning of 25 — See the judgments in Case 18/70 Duraffour v Council the Staff Regulations or the Conditions of [1971] ECR 515 and Case 24/71 Meinhardi v Commission [1972] ECR 269. Employment of Other Servants.

That it is possible for a member of the Court 26. The fact that Regulation N o 2290/77 of Auditors in such a case first to submit a prescribes that the provisions of the Staff complaint in accordance with Article 90 of Regulations shall apply in certain fields the Staff Regulations and then to proceed makes no difference. Under the first para- under Article 179 is shown by the Court's graph of Article 12 of Regulation decision in the Kontogeorgis case. 26 In that N o 2290/77 the social security scheme pro- case the applicant, a former member of the vided for in the Staff Regulations applies to Commission, had applied to become affili- members of the Court of Auditors, with ated to the health insurance scheme for offi- respect to sickness, occupational disease, cials of the European Communities, on the industrial accident and birth and death bene- basis of Article 11 of Regulation fits. Under the second paragraph of Arti- N o 422/67. 27 He lodged a formal complaint cle 12 of that Regulation, this also applies to against the Commission's refusal. After the former members of the Court of Auditors, complaint had been rejected, he brought an subject to certain conditions. Under Arti- action before the Court. As Mr Advocate cle 19a of the Regulation, Article 66a of the General Jacobs noted in his Opinion, this Staff Regulations (relating to a special levy) applies 'mutatis mutandis' to the members of the Court of Auditors. The members of the Court of Auditors are thus equated with 26 — Judgment in Case 163/88 Kontogeorgis v Commission officials of the Communities in this respect. [1989] ECR4189. 27 — Cited above (footnote 6). Article 11 of that Regulation has However, that does not mean that they must the same content as Article 12 of Regulation No 2290/77.

was an application under Article 179. 2S The can be applied directly to the position of Advocate General concluded that in view of such persons. the fact that the case concerned, at least indi- rectly, the interpretation of the social secu- rity scheme provided for in the Staff Regula- tions, it had been 'clearly convenient and appropriate' for the special prelitigation pro- cedure to be used. 29 He therefore considered that the action under Article 179 was admis- sible. 28. With the view put forward by Mr Advo- cate General Jacobs in the Kontogeorgis case as a starting point, it could be argued that the carrying out of a prelitigation procedure under Article 90 of the Staff Regulations is appropriate in all cases in which the subject- matter is that of a typical staff case. That the present case is such a case is surely evident. The Court did not expressly address the The determination of the pension of a mem- point in its judgment. However, by dismiss- ber of the Court of Auditors or his surviving ing the application as unfounded and decid- relatives is in my opinion no different in sub- ing on costs in accordance with Article 70 of stance from the determination of the pension the Rules of Procedure (which relates to pro- of an official of the Communities or his sur- ceedings between the institutions and ser- viving relatives. The privileges and special vants of the Communities), it indicated that rights of members of the Court of Auditors it shared the Advocate General's view. It can are not affected in any way by the calcula- therefore be concluded from that judgment tion and determination of survivors' pen- that a member of the Commission can pro- sions. It is therefore equally sensible in both ceed under Article 179 in the area in ques- cases for disputes with respect to methods of tion. In my opinion, however, it does not calculation first to be discussed in a com- follow from the decision that he must make plaint procedure and settled if possible use of that possibility and is therefore not before being referred to the Community allowed to bring an action under Article 173. judicial institutions for examination. That would also meet the requirement of lifting the burden of avoidable disputes from the Community jurisdictions and reserving their resources for the fulfilment of their highest task, that of ensuring compliance with the law in interpretation and application of the Since the provisions at issue in the above- Treaties. mentioned case correspond to the provisions in force for members of the Court of Audi- tors, the judgment in the Kontogeorgis case

cle 90 must, in accordance with the wording application of Articles 90 and 91 of the Staff of that provision, be submitted to the Regulations. Those regulations could there- 'appointing authority'. The members of the fore be adduced by analogy at best. Court of Auditors are, however, appointed by the Council, and it would certainly be strange if that institution were to have to decide on a complaint from a member of the Court of Auditors. The problem would be even more delicate in the case of members of the Court of Justice, for instance, who under Article 167 of the EC Treaty are appointed by common accord of the governments of the Member States. It is certainly true that particular caution must be used, simply for reasons of legal cer- tainty, in adducing provisions by analogy when it is a question of the requirements for admissibility of an application. Those reser- vations can, however, be dispelled in another way, as will be shown below. As to whether the use of analogy is permissible in the Those doubts do not appear to me to be present case, it must be pointed out that the convincing, however. In cases of this type possibility of applying provisions of the Staff the reference to the 'appointing authority' Regulation by analogy is by no means for- ought sensibly to be understood as a refer- eign to the Regulation in question here, Reg- ence to the institution for which the person ulation N o 2290/77, as is shown for example in question acts or has acted. That the deci- by the abovementioned Article 19a. It may sion on a complaint by a member of an insti- also be pointed out that in this case the tution against that institution may be taken admissibility of an application under Arti- by a department (such as the personnel cle 173 cannot be derived directly from the department) which is lower in rank than the wording of that provision, as has been seen person bringing that complaint seems strange above. only at first sight. Closer examination reveals that that result would merely be the conse- quence of an appropriate distribution of tasks. The Kontogeorgis case — where the applicant's complaint was dealt with by the Commission's Directorate-General for Per- sonnel — demonstrates this clearly.

such an obligation might derive. From the applicant not only challenges the propor­ Court's decision in the Kontogeorgis case it tionate reduction of the widow's pension can be deduced at most that in such cases an determined in her case, but also complains of action can be based on Article 179. In view the reduction of the survivors' pensions of this uncertainty it would in my opinion determined for her children. Under Regula­ be wrong to treat the present application as tion N o 2290/77, however, the children of a inadmissible. For as long as the Court of Jus­ member of the Court of Auditors have an tice or Court of First Instance 3 0 has not independent right to survivors' pensions expressly ruled on the question whether in which does not derive from their mother. A cases of this type an action under Article 173 possible breach of that right could therefore can be brought immediately, or whether the be challenged only by the children them­ Article 179 procedure must in fact be used, it selves. The action before the Court of First should in my opinion be left to applicants to Instance was indeed brought by Mrs H. in decide which of these two remedies to make her own name and that of her children (see use of. The action brought by Mrs H. under paragraph 9 above). It appears that the desig­ Article 173 must therefore be regarded as nation of the two children as applicants (in admissible. 3 1 addition to the applicant) in the present pro­ ceedings was omitted by mistake, given that the power of attorney produced by the applicant's lawyer was granted by Mrs H. in her own name and also as legal guardian of The applicant's entitlement to bring proceed­ her two children. ings and the interpretation of the application

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as a result of its necessary and indivisible tence of Article 16(2) the maximum amount link with the reduction of Mrs H.'s widow's payable is to be divided between the benefi- pension. 32 ciaries 'in accordance with the ... percentages' prescribed in Article 16(1). At first sight such a division makes sense only if the percent- ages relate to the same amount, which is not the case here (the widow is to have 36% of the basic salary, while the children The merits of the application receive 10% of the pension). O n the other hand, it must be noted that A n k l e 16(2) refers to the amount of the pension of 'the member or former member' on which the survivors' pensions are calculated. The provi- Applicability of Article 16(2) of Regulation sion thus distinguishes between cases where N o 2290/77 a member dies during his term of office and cases where the member dies only after his term of office has expired. If the applicant's argument is correct, namely that Arti- cle 16(2) is not applicable if the survivors' pensions are calculated under the third sub- 34. The wording of Article 16(2) of Regula- paragraph of Article 16(1) (in other words, in tion N o 2290/77 does not permit any clear cases where the member dies during his term answer to the question whether that provi- of office), the reference in Article 16(2) to the sion is applicable in cases of the present type. pension of the member would be meaning- less.

36. However, if on the basis of the above considerations the point of view were adopted that the maximum payment rule in Article 16(2) applied to every determination of survivors' pensions under Article 16(1), 37. In view of those possible consequences, that would have curious consequences. Sup- it is necessary to look at the purpose of the posing that a member of the Court of Audi- legislative provision, in so far as it can be tors dies before completing the first full seen from the legislation. It is perfectly clear month of his term of office, his widow that the introduction of the special proce- would be entitled under the third subpara- dure laid down in the third subparagraph of graph of Article 16(1) to a widow's pension Article 16(1) for calculation of survivors' of 36% of the basic salary received by her pensions was intended to benefit the depen- husband. Under Article 16(2), however, the dants of a member who dies during his term maximum amount of the survivors' pensions of office. As far as the provision for orphans payable to the widow (and her children) (where both father and mother are dead) of a would be the amount of the pension which member is concerned, this follows from the the member would have been entitled to at very text of the Regulation. The purpose of the time of his death. But since in the exam- the provision in the second indent of the ple, in accordance with Article 10, there third subparagraph of Article 16(1), intro- would not yet be any entitlement to a pen- duced by Regulation N o 1416/81, was to fix sion, that would mean that no survivors' a 'minimum rate' for orphans' pensions. 36 pensions whatever would be payable. 34 The That provision accordingly gives the orphans legislature would thereby be granting with of both father and mother, where the mem- one hand what it immediately took away ber of the Court of Auditors has died during again with the other. his term of office, an orphan's pension of (a total of) not less than 12% of the member's last basic salary.

The provision in the first indent of the third surviving relatives of a member who had subparagraph of Article 16(1) is also died during his term of office would thereby intended (as will be confirmed below) to not only benefit from the special rule in the place the beneficiary in a better position. In third subparagraph of Article 16(2), which as that provision, the widow of a member who a rule leads to a pension which is more has died during his term of office is awarded favourable (compared with the calculation a pension of 36% of his basic salary, without under the second subparagraph), but their — unlike in the second subparagraph of Arti- pensions would also be exempted from the cle 16(1) — the length of the completed term maximum amount rule in Article 16(2). of office being taken into account. That rule N o reason can be seen for that twofold pref- was clearly intended to counter the unfair erential treatment. consequences which might arise from the application of the general rule in the second subparagraph of Article 16(1). Under that provision the widow is entitled to widow's pension of 60% of the pension accruing to the member at the date of death. That depen- dency on the member's pension entitlement has the effect that the shorter the term of office of the deceased member, the smaller the widow's pension calculated in accord- ance with that provision. I refer to the extreme case, considered above (paragraph 36) in a slightly different context, where the widow would receive no widow's pension at 39. The applicant admittedly argues that all. Article 16(2) could still be applied if her opinion were followed. The maximum pay- ment rule would however — if I understand the applicant correctly — in cases of the present type apply only to the survivors' pensions for the orphans, but not to the wid- ow's pension. However, that interpretation is clearly not appropriate for doing justice to the legislature's intention of limiting the total amount of the survivors' pensions. The sur- vivors' pensions for the children must be cal- culated in the present case under the second subparagraph of Article 16(1), as is not in 38. O n the other hand, it must be observed dispute between the parties. Each child is that Article 16(2) expresses the intention of therefore entitled to an orphan's pension the legislature to place an upper limit on the of 10% of the pension his father was entitled total amount of survivors' pensions payable. to at the time of his death. The maximum That too is a legitimate objective which the amount laid down in Article 16(2) would legislature was reasonably entitled to pursue. thus be exceeded only if the member in It would certainly be strange if that rule question was survived by more than ten chil- were to be applied only if the survivors' pen- dren — no doubt not precisely an everyday sions were calculated in accordance with the event. If the applicant's interpretation were second subparagraph of Article 16(1). The followed, Article 16(2) would therefore

37 — As a further example of the inadequacy of the legislative provisions, one might point to the fact that the third sub- paragraph of Article 16(1) represents a special provision with relation to the second subparagraph of Article 16(1), which appears to lay down definitive rules for the area it relates to (the cases where a member dies during his term of office). Under that rule the widow would in all cases 40. The provisional conclusion is that nei- receive 36% of her husband's last basic salary. It turns out, however, that the rule in the second subparagraph of Arti- ther the wording of the provision nor its cle 16(1) can also be more advantageous for the widow. If the member's term of office has already lasted long enough structure or its spirit makes it clear at a to give him the highest possible pension entitlement (70% glance how the question at issue here is to be of his basic salary; see Article 10 of the Regulation), a cal- culation on the basis of the second subparagraph gives a answered. Article 16, as the applicant's rep- pension of 42% (60% of 70%) of the basic salary. It cannot be supposed that the third subparagraph is to apply in such resentative correctly stated at the hearing, is cases, although the legislative provision appears to prescribe poorly drafted and thus throws up consider- this.

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The fact that the Court of Auditors did not ' 1. The widow and orphans of a Member or address the argument in question in the former Member of the High Authority who defence is also immaterial. The Court of has pension rights at the time of his death Auditors stated unambiguously that in its shall receive survivors' pensions. The basis opinion Article 16(2) is applicable in the for calculation of the survivors' pensions present case. It would therefore be mistaken shall be the pension which has accrued to the to suggest that by not adopting a position on Member or former Member up to the date the applicant's arguments, the Court of of his death. However, if the Member has Auditors had thereby conceded that they died during his term of office, the basis were relevant and correct. for calculation of the survivors' pensions

38 — See, most recently, the annual report concerning the finan- 39 — Official Journal, 24 March 1954, p. 275; there is no official cial year 1992, OJ 1993 C 309, p. 1. English text of this Decision.

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provided for above shall be a pension equal sions of the President, Judges, Advocates to 50% of the salary received at the time of General and Registrar of the Court of Jus- death. tice. 40 The only difference is that in the latter Decision the maximum payment rule in paragraph 2 constitutes a separate subpara- graph (the second subparagraph of Arti- cle 10(2)), whereas this is not the case in the 2. The survivors' pensions shall be Decision of 21 December 1953.

a) for the widow 50%

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widow's pension can amount to a maximum Despite those technical faults, however, the of 2 5 % of the basic salary. content of the provision is clear. If a member of the High Authority dies during his term of office, his widow is to receive a widow's pension equal to 25% (50% of 50%) of the salary last received by her husband. In this manner the widow is allocated a pension cor- responding to the maximum amount which could have been arrived at by application of the general rule (under which the widow's pension corresponds to 50% of the mem- ber's pension). This is a clear indication of the intention to give favourable treatment to the widow (and orphans) of a member who dies during his term of office.

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tion is immediately obvious; the survivors, French, Italian and Dutch versions: taken together, are not to receive more than the member himself would have received.

' 1. The widow and dependent children of a member or former member of the Com- mission to whom pension rights have accrued at the time of his death shall be 47. Those rules applicable to members of the entitled to a survivor's pension. High Authority, and the corresponding rules for the Court of Justice, were replaced by new provisions in 1961/62 at the latest. 43 Since the European Economic Community and the European Atomic Energy Commu- That pension shall be equal to a percentage nity had meanwhile been established, and it of the pension accruing to the member or was not until 1965 that their executives were former member under Article 9 at the date of merged with the High Authority of the death, namely: ECSC to form one Commission, there are a total of four legislative texts in the Official Journal — for the Court of Justice, for the High Authority of the ECSC, for the Com- mission of the European Atomic Energy Community, and for the Commission of the for the widow 50%, EEC — to regulate the question which is of relevance here.

for each child where the mother is still alive 10%,

48. The rules for the EEC Commission are in Regulation No 63 of the Council deter- mining the emoluments of members of the Commission.44 The provisions of Arti- for each child where both father cle 15(1) and (2) of that Regulation read as and mother are dead 20%. follows, corresponding to the text of the

In any event, the new version removed the deficiencies in the formulation of the earlier version. The amounts to be used as the basis of calculation are now defined only once, in paragraph 1. The maximum payment rule in paragraph 2 has already received the form Those provisions agree with the provisions which the present Regulation still use. The in Article 15(1) and (2) of each of Regulation survivors' pensions for the widow and of the Councils determining the emoluments orphans must not exceed, in total, the of members of the Court of Justice amount of the pension of the member or (No 62 EEC) (No 13 EAEC), 4i Regulation former member. That phrase — which causes No 14 of the Council determining the emol- such difficulties in the interpretation of the uments of members of the Commission (of provisions currently in force — is entirely the EAEC) of 18 December 1961 4 6 and the appropriate in Article 15(2) of Regulation Decision determining the emoluments of N o 63, since under Article 15(1) the basis of members of the High Authority of 22 May calculation is the (actual) pension or a 1962. 4? fictional pension equal to 50% of the basic salary. The reference to that fictional pen- sion, which seemed strange in the 1953 and 1954 decisions, can now be explained by the connection with Article 15(2). The legis- lative provision is therefore now meaningful and coherent.

49. Examination of those provisions shows that the basis of calculation for survivors' pensions has remained unaltered, as regards its content. As before, the widow in princi- ple receives 50% of the pension her husband 50. If the German version of those provi- would have been entitled to at the date of his sions is considered, however, the situation death; if the member dies during his term of office, the widow receives 50% of half his

Since the versions of that provision in all the other (then) official languages agree, how- ever, in basing the calculation of the survi- vors' pensions in such cases on the (fictional) pension, the German version is in all proba- 51. The mistake in the German versions of bility attributable to a translation error. It those legislative texts is of minor importance, seems that the translator responsible for the however, in that in the interpretation of pro- German version regarded the formulation visions of Community law, their content and used in Article 15(1) as unnecessarily com- purpose must be determined in the light of plicated and therefore replaced it by the sim- the versions of those provisions in all the ple reference to 'half the basic salary'. In so official languages. 51 A comparison with the doing he clearly overlooked the fact that the text of the relevant provisions in the other following paragraph of Article 15 refers to official languages shows quite clearly, how- the 'amount of the pension' and the compli- ever — as has been seen above — that the cated formulation in paragraph 1 was there- maximum payment rule in Article 15(2) was fore both necessary and appropriate. This intended to apply to all cases of calculation interference with the text is all the more sur- of survivors' pensions. prising in that that formulation is already used in the decisions of 1953 and 1954 and the new legislation thus did not introduce any change of content in this respect. 49 The 50 — Probably the most striking — and amusing — example is the manuscript of the Lex Salica, dating from the sixth or seventh century and written by the monk Agamben. See on this point e.g. H. Nehlsen, 'Zur Aktualität und Effektivität germanischer Rechtsaufzeichnungen', Recht und Schrift im Mittelalter, ed. P. Classen, p. 449, pp. 465 f. 49 — Apan from the reference, mentioned above, to 'basic salary' 51 — See for example the judgment in Case 29/69 Stauder v Ulm instead of salary (see footnote 48). [1969] ECR 419, paragraph 3.

for a widow 50%, 54. Compared with the text of the 1961 and 1962 provisions, neither the first part of Article 15(1) nor Article 15(2) has thus been altered in content. That is incidentally also the case with the German version, which for each child where the mother continues to refer to 'half the basic salary' is still alive 10%, for the purposes of calculating the pensions of the surviving relatives of a member who has died during his term of office; the mis- take in the previous legislation has thus been 52 — See footnote 6 above and the corresponding text (with the present title of the Regulation). passed on.

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H. v COURT OF AUDITORS

56. The question then arises, however, which In my opinion, however, it can scarcely be maximum total amount of survivors' pen- doubted that the legislature, when introduc- sions is to apply if the widow's pension is ing that new provision, did not pursue the calculated on the basis of the last sentence of aim of freeing widows' pensions in the cases Article 15(1). In my opinion, there is no in question from the applicability of the great difficulty in answering that question, maximum payment rule. Had that been the however. The said provision relates to one of legislature's intention, one would have the cases of a member dying during his term expected that Article 15(2) (which continues of office. It is therefore appropriate to take

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OPINION OF MR LENZ — CASE C-416/92

account of the maximum prescribed gener- 59. The legislature evidently soon became ally for such cases. The total amount of the aware of the absurdity. Article 15 was survivors' pensions must therefore not re-amended by Regulation (EEC, Euratom, exceed half the basic salary. As I have ECSC) No 723/71 of the Council already stated, that amount corresponds to of 30 March 1971,54 the following sentence the maximum pension under Article 9. being substituted for 'the last two sentences of the second subparagraph of Arti- cle 15(1)': 55

57. The provisions of Regulation No 422/67/EEC, 5/67/Euratom were amended by Regulation (ECSC, EEC, Eura- tom) No 2163/70 of the Council of 27 Octo- ber 1970. 53 That Regulation increased the maximum pension to 60%. At the same time 'However, if the death of a member of the the widow's pension provided for in the first Commission or of the Court occurs during indent of the second subparagraph of Arti- his term of office, the survivor's pension for cle 15(1) was set at 60% of the pension of the widow shall, from 1 July 1970, be equal the member or former member. to 36% of the basic salary received at the time of death.'

Since the widow of a member dying during survivor's pension for the widow, so that the his term of office was now to receive 36% of orphans' pensions are now to be determined the basic salary in every case, the legislature in accordance with the first sentence of the was now able to replace the two provisions second subparagraph of Article 15(1) (in previously applicable to such cases, the sec- other words, on the basis of the pension). ond and third sentences of the second sub- However, there is no indication in Regula- paragraph of Article 15(1), by a single provi- tion N o 723/71 that the rules on orphans' sion and thereby at the same time simplify pensions were to be amended. That this was the text. The legislature could have achieved in fact an unintentional consequence is the desired result by deleting the third sen- shown by the fact that in 1981 the legislature tence of the said provision and making the once more amended the amended provision, appropriate changes to the second sentence. in order to improve pensions for orphans of Instead the second sentence was deleted and both father and mother of a member of the the third sentence amended. The conse- Court of Auditors dying during his term of quence was that the new provision no longer office. 57 It would not be at all surprising if refers to a (fictional) pension, but provides the legislature were one day to adopt a fur- that the widow's pension is to be calculated ther amendment to restore the favourable on the basis of the basic salary. Since Arti- treatment of the other orphans too of a cle 15(2) was not changed and continues to member dying during his term of office. refer to the 'amount of the pension' which is the basis of calculation, the maximum amount rule now appears not to be applica- ble to such cases.

general method of calculation. However, 63. The legislative history of the original Regulation (ECSC, EEC, Euratom) provisions shows that until the early seven- No 1546/73 of the Council of 4 June 1973 58 ties, despite all their faults in detail, they increased the maximum pension provided for maintained two common principles over the in Article 9 of Regulation N o 422/67/EEC, years: firstly, the maximum payment rule in N o 5/67/Euratom from 60% to 70% of the paragraph 2 was intended to apply to all basic salary, without making a corresponding cases of the calculation of survivors' pen- adjustment to Article 15. The result was that sions; and secondly, the total amount of the the use of the general method for calculation survivors' pensions was not to exceed the of the widow's pension — under which the maximum pension in cases where a member maximum possible is a pension of 42% of died during his term of office. the basic salary (60% of 70%) — can again lead to more favourable circumstances for the widow than the provision in the second sentence of the second subparagraph of Arti- cle 15(1), by which the widow of a member dying during his term of office was in fact intended to be treated more favourably.

Those provisions were simple to apply as long as the maximum pension was 50% of the basic salary and the survivors' pensions amounted to 50% of the figure on which Conclusions for the present case they were calculated (pension or basic sala- ry). The system became confused when those percentages were altered (first by Regulation N o 2163/70) and as a result of various amendments the original method — calcula- tion on the basis of the actual or a fictional pension — was no longer in harmony with the maximum payment rule in paragraph 2.

At the hearing before the Court the appli- cant's representative argued that the institu- tion in question ought to act with generosity when determining survivors' pensions. However understandable that point of view 65. That conclusion is admittedly not imme- is, it must be pointed out, however, that sur- diately evident from the rules in force. How- vivors' pensions must be determined on the ever, as I have already stated, it is also not basis of the legislative provisions, which evident from those rules with any certainty must be interpreted correctly, as is necessary how cases such as the present one are to be here. resolved. The solutions put forward by the parties to the present proceedings do indeed appear tenable, if one focuses only on the wording and context of the provision. But if one considers the spirit and purpose of the provision, such as emerges from its legisla- tive history, neither of those two solutions produces an acceptable result. 66. The solution I have suggested, on the other hand, leads to appropriate results. The maximum possible amount of the survivors' pensions is limited to the amount the mem- ber himself would have had at his disposal in the most favourable case, in other words, the maximum pension. That that is reasonable requires no further discussion.

If the opinion of the Court of Auditors were adopted, the consequence would be that the widow's pension would be drastically reduced or even completely abolished, depending on the length of the member's term of office. Such a result was certainly not intended by the legislature. O n the other 67. The result in the present case is that the hand, if the applicant's opinion were fol- contested decision cannot stand, since it lowed, the pension payable to the widow of incorrectly determined the maximum

70. The deductions also appear to be justi- fied in principle with respect to the determi- nation of the maximum amount under Arti- cle 16(2). As I have already said, it follows 69. Let us first consider the widow's pension. from Article 21 that the emoluments of Article 21 of Regulation N o 2290/77 pro- members of the Court of Auditors are tax- vides that the Regulation laying down the able. Under Article 12(1) the members of the conditions and procedure for applying the Court of Auditors are entitled to the benefits tax for the benefit of the Communities shall of the social security scheme provided for in apply to members of the Court of Auditors. the Staff Regulations covering sickness, If the pensions payable to members of the occupational disease, industrial accident and Court of Auditors are liable to tax, that birth and death benefits. 61 Since the purpose should also be the case for the survivors' of the maximum payment rule in Arti- pensions. As to the sickness insurance con- cle 16(2) is in my opinion to limit the total tributions, reference must be made to Arti- amount of survivors' pensions to the amount cle 16(8) of Regulation N o 2290/77. 6° Under which would have been available to the that provision the widow and dependent member himself, it appears consistent to deduct the contributions which would have been deducted from the member.

60 — The decision of 22 July 1992 refers in this respect to Arti- cle 12 of the Regulation. However, that inaccuracy (in any case not specifically complained of by the applicant) is in my opinion of no relevance for the present case. 61 — See footnote 26 above.