T-226/95

ORDER OF 26. 11.1996 — CASE T-226/95

O R D E R O F T H E C O U R T O F FIRST INSTANCE (First Chamber) 26 November 1996 *

In Case T-226/95,

Hedwig Kuchlenz-Wînter, the divorced spouse of a former official of the Euro- pean Parliament, residing at Kehlen, Luxembourg, represented by Dieter Rogalla, Rechtsanwalt, Sprochkövel, with an address for service in Luxembourg at the Chambers of Armin Machmer, 1 Rue Roger Barthel, Bereldange,

applicant,

v

T H E C O U R T O F FIRST INSTANCE O F T H E E U R O P E A N C O M M U N I T I E S (First Chamber),

composed of: A. Saggio, President, V. Tiili and R. M. Moura Ramos, Judges,

Registrar: H.Jung,

makes the following

Order

Facts and procedure

4 Under Article 72(1 b) of the Staff Regulations of Officials of the European Com- munities ('the Staff Regulations'), the divorced spouse of an official may continue to be insured against sickness for a maximum of one year from the date of the decree absolute of divorce.

s The documents in the case show that, as a resident of Luxembourg, Mrs Kuchlenz- Winter is entitled to Luxembourg social security. O n the other hand, since she has not completed the requisite periods of insurance in Germany, she is not entitled to cover under the German State sickness insurance scheme. N o r does she fulfil the criteria for voluntary membership of the German scheme; and, since she suffers from a serious illness, the private sickness insurance schemes have refused to cover her. In any event, the social security which she receives in Luxembourg is condi- tional on her residing in that country. The applicant therefore maintains that she can no longer return to Germany, since she has no social security protection there and her departure from Luxembourg would cause her to lose the only sickness insurance available to her.

6 By letter of 26 April 1994, the claims office of the Joint Sickness Insurance Scheme informed the applicant that her cover under the Scheme would expire on 31 March 1995, one year after the date of her divorce.

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KUCHLENZ-WINTER v COMMISSION

7 O n 7 February 1994 the applicant submitted to the Commission a request under Article 90 of the Staff Regulations, seeking permission to remain covered under the Joint Sickness Insurance Scheme after the expiry of the one-year period laid down by Article 72 of the Staff Regulations. Following the rejection of that request, the applicant submitted a complaint in accordance with Article 90(2) of the Staff Regu- lations against the decision rejecting it.

ORDER OF 26. 11.1996 — CASE T-226/95

i3 By order of 14 November 1995, the Court of Justice, recalling that actions brought by natural or legal persons under the third paragraph of Article 175 of the Treaty fall within the jurisdiction of the Court of First Instance, referred the case to this Court pursuant to the second paragraph of Article 47 of the EC Statute of the Court of Justice.

i4 By document lodged on 28 February 1996, the Commission raised an objection of inadmissibility. O n 19 April 1996 the applicant lodged her observations on that objection.

Forms of order sought by the parties

is The applicant claims that the Court should:

— declare that the Commission has failed to act, inasmuch as it has failed to pro- pose to the institutions of the European Union such amendments to the Staff Regulations as would prevent her exclusion from the Joint Sickness Insurance Scheme;

i7 In her observations on the objection of inadmissibility, the applicant contends that the Court should declare the action admissible and reject the objection.

Admissibility

is According to Article 114 of the Rules of Procedure, where a party applies to the Court for a decision on admissibility not going to the substance of the case, the remainder of the proceedings concerning the objection of inadmissibility must be oral, unless the Court decides otherwise.

i9 According to Article 111 of the Rules of Procedure, where an action is manifestly inadmissible, the Court may, by reasoned order and without taking further steps in the proceedings, give a decision on the action. In the present case, the Court con- siders that it has sufficient information from the documents before it, and finds that there is no need to take any further steps in the proceedings.

Arguments of the parties

20 The Commission's first plea concerns the interrelation between the present case and the proceedings concurrently pending in Case T-66/95. It states that the two actions are based on the same facts and the same pleas in law. Thus the forms of order sought in the two cases are the same, inasmuch as they seek the amendment of Article 72(lb) of the Staff Regulations. In both cases, moreover, the applicant advances pleas concerning her exclusion from the Joint Sickness Insurance Scheme and failure to act on the part of the Commission. Where an action is based on the same submissions as another action which is already pending between the same parties, it is inadmissible on the ground of litispendency (Joined Cases 358/85 and 51/86 France v Parliament [1988] E C R 4 8 2 1 , paragraph 12; judgment in Case T-28/89 Maindiaux and Others v Economic and Social Committee [1990] ECR11-59, paragraph 23).

22 By its third plea, the Commission maintains that there has not been any failure to act on its part in so far as the Directorate-General for Personnel and Administra- tion (DG IX) rejected the applicant's request in its letter of 23 June 1995. The fact that the Commission gave a negative response does not alter the position in any way, since it is clear from the third paragraph of Article 175 of the Treaty that a failure to act on the part of an institution occurs where it fails to take a decision or to define a position, and not where it adopts a measure different from that desired by the persons concerned. Consequently, the admissibility criteria laid down in Article 175 of the Treaty are not fulfilled (Joined Cases 5/62 to 11/62 and 13/62 to 15/62 San Michele and Others v High Authority [1962] E C R 4 4 9 , Case C-25/91 Pesqueras Echebastar v Commission [1993] ECR1-1719, paragraph 12, and Joined Cases C-15/91 and C-108/91 Buckl & Söhne and Others v Commission [1992] E C R 1-6061, paragraph 17).

23 The fourth plea concerns, first, the fact that the measure sought must be an act of which the applicants are the potential addressees, as required by the third para- graph of Article 175 of the Treaty and the relevant case-law (orders in Cases T-479/93 and T-559/93 Bernardi v Commission [1994] ECR 11-1115 and in CaseT-5/94 / v Commission [1994] E C R 11-391, paragraph 16). The defendant maintains that a regulation such as the Staff Regulations cannot form the subject- matter of an action for a declaration of failure to act brought by a private indi- vidual (Case 90/78 Granaria v Council and Commission [1979] E C R 1081, para- graph 14); in so far as its purpose is to require the Commission to propose to the Council the amendment or adoption of a regulation, such an action is inadmissible (Case 134/73 Holtz & Willemsen v Council [1974] E C R 1, paragraph 5). The

26 In the applicant's view, it is apparent from the foregoing that there is no litispend- ency between the present case and the action in Case T-66/95. Moreover, the two actions do not seek the same relief. Consequently, the Commission's second plea, alleging that she has no interest in bringing proceedings, is also unfounded.

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ORDER OF 26.11.1996 — CASE T-226/95

27 In response to the Commission's third plea, Mrs Kuchlenz-Winter considers that, in accordance with the judgment in Case 302/87 Parliament v Council [1988] E C R 5615, paragraph 17, the action for a declaration of failure to act continues to be justified since the refusal does not put an end to the failure to act.

28 As regards the fourth plea, the applicant maintains that the parallels, acknowledged by the Court of Justice, between the forms of action provided for in Articles 173 and 175 of the Treaty are such that an act addressed to a third party may form the subject-matter of an application under Article 175 of the Treaty. In any event, the act called for does not concern a third party, since it would directly benefit her and she would be its potential addressee. Furthermore, Article 175 of the Treaty may be used to bring about the adoption of a regulation provided that the regulation is of direct and individual concern to the applicant. That would be the position in the case of the amendment of the Staff Regulations sought by her, which would be addressed to specific addressees identified individually.

29 In response to the Commission's argument concerning the wide discretion it enjoys, the applicant maintains that such a discretion cannot result in the complete avoidance by the Commission of review by the courts. In the circumstances of the present case, and having regard to the principles enshrined in the Staff Regulations, in particular the duty to have regard for the interests and welfare of officials, the Commission had no discretion at all and it was bound to avail itself of its right to initiate measures.

32 In that regard, the applicant's argument concerning the judgment in Parliament v Council, cited above, is not relevant. That judgment, in which it was accepted that a refusal to act may be brought before the Court of Justice under Article 175 of the Treaty, relates only to a situation in which the applicant, having called upon the relevant institution to act, lacks the capacity to bring proceedings for annulment. That being the situation in which the Parliament found itself at the time of those proceedings, the Court of Justice was willing to accept that a refusal to act in response to a request made pursuant to Article 175 of the Treaty could be brought before it by way of an action for a declaration of failure to act, since the individual concerned would otherwise be deprived of all judicial protection. That is not the position in the present case, since the applicant was able to bring an action for the annulment of the Commission's decision of 23 June 1995.

33 In those circumstances, the Court finds that there has not been a failure to act on the part of the defendant.

34 The Commission's objection must therefore be upheld and the action must be dismissed as inadmissible.

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ORDER OF 26. 11.1996 — CASE T-226/95

Costs

Luxembourg, 26 November 1996.

H. Jung A. Saggio

Registrar President

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