C-82/98
ECLI:EU:C:2000:63
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KÖGLER V COURT OF JUSTICE
OPINION OF ADVOCATE GENERAL MISCHO delivered on 3 February 2000 *
1. The order of the Court of First Instance 3. After Germany was reunified, Berlin of 20 January 1998 in Kögler v Court of became the capital of Germany in Justice1 contested in the appeal which is October 1990. the subject of this Opinion, sets out the legislative background and facts giving rise to the dispute as follows.
4. In Case T-536/93 Benzler v Commis- ' 1 . The applicant is a former Director of sion [1994] ECR-SC 11-777 and Case the Translation Directorate of the T-64/92 Chavane do Dalmassy and Court of Justice of the European Com- Others v Commission [ 1994J ECR-SC munities who was retired with effect II-723 the Court of First Instance held from 1 December 1987. Following his that Article 6(2) of, first, Council Reg- retirement he has always lived in Konz, ulation (ECSC, EEC, Euratom) in Germany. No 3834/91 of 19 December 1991 adjusting, with effect from 1 July 1991, the remuneration and pensions of officials and other servants of the European Communities and the weightings applied thereto (OJ 1991 L 361, p. 13, hereinafter "Regulation No 3834/91") and, secondly, Council Regulation (EEC, Euratom, ECSC) 2. Under Article 82(1) of the Staff Reg- No 3761/92 of 21 December 1992 ulations of Officials of the European adjusting, with effect from 1 July Communities (hereinafter "the Staff 1992, the remuneration and pensions Regulations"), the pensions of former of officials and other servants of the officials are to be weighted at the rate European Communities and the fixed for the country where the recipi- weightings applied thereto (OJ 1992 ent proves he has his residence. L 383, p. 1, hereinafter "Regulation No 3761/92"), in so far as they fixed a provisional weighting for Germany on * Original language: French. the basis of the cost of living in Bonn, 1 — T-160/96 11998] ECR-SC I-A-15 and II-35. infringed the principle set out in
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Annex XI to the Staff Regulations that Berlin and also for special weightings the weighting for each Member State for Bonn, Karlsruhe and Munich. should be fixed by reference to the cost of living in its capital, since Berlin had been the capital of Germany since 3 O c t o b e r 1 9 9 0 . Accordingly the Court annulled the applicants' pay and pension slips in those cases as based on those regulations. 7. Subsequently, from 1st July 1 9 9 5 , Council Regulation (EC, Euratom, ECSC) N o 2963/95 of 18 December 1995 adjusting the remuneration and pensions of officials and other servants of the European Communities and the weightings applied thereto (OJ 1995 5. The weightings, described in a footnote L 310, p. 1), confirmed the fixing of a in the abovementioned regulations as general weighting for Germany based "provisional figure" or stated to be on the cost of living in Berlin, with applicable "without prejudice to the retroactive effect from 1 July 1995. decisions which the Council may be required to adopt following a proposal from the Commission", were not sub- sequently amended.
8. Since the applicant considered that the Court should have applied to his pen- sion slips for the period 1 July 1991 to 30 June 1994 the weightings based on the cost of living in Berlin rather than 6. Following the judgments referred to establishing them on the basis of the above, several meetings were held cost of living in Bonn, by a letter of within the Council to determine the 29 J a n u a r y 1 9 9 6 he s u b m i t t e d a measures to be adopted in execution request under Article 90(1) of the Staff thereof. Then, on 19 December 1994, Regulations for his pension to be the Council adopted Regulation redetermined with retroactive effect. (ECSC, EC, Euratom) N o 3161/94 adjusting, with effect from 1 July 1994, the remuneration and pensions of officials and other servants of the European Communities and the weightings applied thereto (OJ 1994 L 335, p. 1, hereinafter "Regulation N o 3161/94"). Article 6(1) ofthat reg- 9. The applicant's request was rejected by ulation provides, with effect from decision of 12 March 1996 of the 1 July 1994, for a general weighting Registrar of the Court of Justice acting for Germany based for the first time on in his capacity as appointing authority.
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10. On 10 May 1996 the applicant sub- does not fall within the jurisdiction of the mitted a complaint to the same effect to Court of Justice. the Complaints Committee of the Court (hereinafter "the Committee"); he further requested that the Court should designate a date in the near future when the desired calculation would be made. 4. The Council submits that the appellant has not precisely indicated the contested aspects of the order he seeks to have set- aside or the specific pleas in law relied on in support of this action. He confines himself 11. That complaint was rejected on 1 July to rehearsing or reproducing word for 1996 on the ground that it had been word the pleas in law and arguments set- submitted out of time and was there- out before the Court of First Instance. fore inadmissible. The acts adversely affecting the applicant within the meaning of Article 90(2) of the Staff Regulations were in this instance the pensions slips for the period in ques- tion. Accordingly, the applicant 5. It is undeniable that the appellant's allowed the periods for bringing staff pleadings will appear familiar to anyone actions to expire.' who has read the application at first instance.
Admissibility of the appeal 6. On the other hand, it is in the very nature of an appeal to seek to submit to the competent court the pleas and arguments, the dismissal of which by the Court of First- Instance is considered by the appellant to 2. The Council submits that Mr Kögler's constitute an infringement of Community appeal is manifestly inadmissible. It puts law. forward two arguments in this respect.
3. The Council submits, firstly, that the 7. Admittedly, it does not follow that an appellant is requesting a re-examination of appeal can be limited to a straightforward his application at first instance, without repetition of the application. Nevertheless, invoking specific pleas in law in support of it may prove to be inevitable for the his claims, and this, under the first para- appellant to rely to a certain extent on graph of Article 49 of the EC Statute of the arguments already submitted at first Court of Justice and under the case-law, instance.
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8. I therefore consider that this argument of Substance of the appeal the Council must be rejected.
12. The contested order examines in turn the two arguments put forward by the appellant to contest the objection on the grounds of inadmissibility raised by the Council. 9. The Council maintains, secondly, that the findings of the Court of First Instance concerning the inferences that the appellant was entitled to draw from the wording of Regulations Nos 3834/91 and 3761/92 and on the Council's replies to the questions put 13. Firstly, the Court of First Instance by the Court of First Instance in Benzler v states that the appellant was essentially Commission, cited above, are findings of claiming that the Council had 'firmly fact which are not amenable to review by u n d e r t a k e n ' to m a k e the weightings the Court of Justice on appeal. described as 'provisional' in the footnotes to Regulations Nos 3834/91, 3761/92 et seq. definitive and that, in those circum- stances, the principle of the protection of legitimate expectations precluded any sug- gestion that he should have challenged his pension slips earlier.
10. I do not share this point of view. The determination of the inferences that the appellant was entitled to draw from the wording of the Council regulations must, in 1 4 . A c c o r d i n g to the C o u r t of First my opinion, be considered as a problem of Instance, it is settled case-law that an interpretation of the abovementioned reg- official cannot plead breach of the principle ulations. The interpretation of the applic- of the protection of legitimate expectations able regulations is undeniably a question of if the administration has not given him law amenable to review on appeal. precise assurances.
15. Subsequently, according to the Court of First Instance, it was clear from all the circumstances of the case that the Council 11. The arguments seeking to establish the was merely leaving open the possibility that inadmissibility of the appeal cannot, there- it might alter the weightings but not fore, in my opinion, be upheld and the binding itself to adjust them retroactively substance of the appeal must be examined. once fixed.
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16. Thus, according to the Court of First 19. The Court of First Instance therefore Instance, the Council could not be said to declared the action to be inadmissible on have given the appellant 'precise assur- the ground that that complaint was out of ances' as required by the case-law relating time. to the principle of the protection of legit- imate expectations. Consequently, the Court of First Instance found that 'the applicant cannot claim that the Council led him to entertain a "legitimate expectation" allowing him to hope that he might escape 20. Furthermore, it pointed out that an the application of the time-limits in the official who has failed within the time-limit Staff Regulations referred to above'. laid down in Articles 90 and 91 of the Staff Regulations to institute proceedings for the annulment of an act adversely affecting him cannot, by means of a claim for compensa- tion for the damage caused by that act, make good that omission and thus contrive to make time begin to run afresh.
17. As regards the appellant's second argu- ment before the Court of First Instance, to the effect that his action was not directed against an act of the appointing authority 2 1 . The Court of First Instance found that, but against an omission, the contested 'in the present case the applicant's action, order noted, firstly, that the monthly pen- which is based on an alleged failure to act sion slips sent to him from 1 July 1991 to on the part of the Council, must be 30 J u n e 1994 clearly c o n s t i t u t e acts regarded as an attempt to circumvent the adversely affecting him, in so far as each time-limits laid clown in Articles 90 and 91 of them determines the amount of his of the Staff Regulations in that its purpose pension. is, first, the annulment of a decision of the Committee which merely confirms that the action is inadmissible and, second, to obtain, by an action for compensation, the additional amount he would have received if the "Berlin" weighting had been applied from 1991'.
18. The Court of First Instance found that, since each pension slip was sent to the appellant individually, he should have sub- mitted a complaint against each one within 22. I would like to say at the outset that I three months, so complying with the time- agree with the analysis of the Court of First limit laid down in Article 90 of the Staff Instance and that I consider that the three Regulations. However, in this case, he arguments essentially put forward by the submitted his complaint on 10 May 1996, appellant in support of his appeal should be almost two years after expiry of the pre- dismissed. I will examine these in the order scribed period, which began to run when he in which they have been submitted by the received the final slip for June 1994. appellant.
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23. Firstly, he claims that the Court of First 26. This recital is worded as follows: Instance was wrong to refuse to consider 'whereas, pending a decision by the Coun- the weighting applied in this case as cil on the Commission proposal establish- provisional. The terms used by the Council ing, as from 1 October 1990, the weight- in the regulations applicable at the time of ings to which the remuneration and pen- establishment of the pension slips at issue, sions of officials and other servants of the in particular Regulations Nos 3834/91 and European Communities are subject in Ger- 3761/92 and Council Regulation (Euratom, many, it is appropriate to adjust, on a ECSC, EC) No 3608/93 of 20 December provisional basis, the existing weightings'. 1993 adjusting, with effect from 1 July 1993, the remuneration and pensions of officials and other servants of the European Communities and the weightings applied thereto, 2 show that these measures were not to be regarded as definitive.
27. I would first of all observe that the appellant's argument essentially amounts to saying that the Council had led him to entertain the 'legitimate expectation' that the 'provisional figures' would soon be adjusted and made definitive and that it was not, therefore, necessary for him to 24. The appellant emphasises that the last bring an action within the time-limit pre- two of these regulations include the expres- scribed in the Staff Regulations. Therefore, sion 'without prejudice to the decisions the question whether or not the relevant which the Council may be required to provisions of regulations in point here are adopt'. That expression shows that the provisional should only be examined in the adoption of such decisions in the future context of the application of the principle constitutes a binding delegation on the part of the protection of legitimate expectations. of the Council.
28. As the Court of First Instance rightly 25. Furthermore, the appellant stresses that pointed out, in paragraph 34 of the con- the first of these regulations refers to the tested order, such a legitimate expectation weightings laid down as 'provisional fig- can, in accordance with settled case-law, ures' and, in the last recital in its preamble, result only from 'precise assurances' given expressly gives reasons for the provisional by a Community institution. 3 nature of those weightings. 3 — See, for example, Case T-207/95 Ibarra Gil v Commission [1997] ECR-SC I-A-13 and II-31 and Case T-211/95 Petit- 2 — OJ 1993 L 328, p. 1. Laurent v Commission [1997] ECR-SC I-A-21 and 11-57.
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29. It is not, therefore, sufficient that the tion was based on the fact that the Council provisions in question allow the interpreta- would apply a definitive regulation and tion of them put forward by the appellant; not, as the Court of First Instance states in his reading of them must follow with a paragraphs 37 and 38 of the contested sufficient degree of certainty from their order, on the fact that the 'Berlin' weighting context. In particular, the interpretation would be applied to him. offered must not be merely one of the possible meanings of the provisions at issue.
34. This point is of no relevance. The very principle of the adoption of a retroactive 30. That is the case here and in paragraphs act could not be the subject of any cer- 35 to 38 of the contested order the Court of tainty. Therefore, his interpretation of the First Instance cites the reasons which justify possible content of such an act is of little this conclusion. consequence.
31. The Court of First Instance rightly 35. I would add that the term 'provisional', notes that the only certain meaning of the used to describe the weighting laid down expression 'without prejudice to the deci- and to which the appellant attaches con- sions to be taken by the Council following siderable importance, only appears in Reg- the Commission proposal of 10 September ulation No 3834/91 and had already been 1991 (SEC (91) 1612 final)' is that the abandoned by the Council, two years Council is reserving its position as regards before the last pension slip at issue, in July the possibility of altering the weightings. 1992, on adoption of the following regula- tion.
32. Therefore, there is nothing in that wording that offers certainty with regard to the Council's future decisions. In parti- 36. It is true that, as the appellant observes, cular, although those provisions do not the Council stated, in its replies to the exclude the possibility that the Council will written questions put by the Court of First adopt new weightings with retroactive Instance in Beuzler v Commission and effect, they certainly do not allow this Chavane de Dalmassy and Others v Com- possibility to be considered a certainty. mission, cited above, that the definitive weightings would be adopted with retro- active effect. The Court of First Instance, however, rightly points out that this sen- tence can be read only in the global context 3 3 . In his second argument, the other of the Council's reply. It is clear from that aspects of which will be examined later, reply, set out in paragraph 25 of the the appellant also claims that his expecta- judgment in Benzler v Commission, cited
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above, that there was a considerable degree the protection of legitimate expectations of reluctance within the Council with had not been complied with. regard to the Commission's p r o p o s a l because the available statistical data did not fully reflect the new situation resulting from the unification of Germany and the change of capital had not yet produced 4 1 . Secondly, the appellant puts forward significant effects. The Council had, there- the fact that the Court of First Instance fore, requested the Commission to present failed to examine the arguments he derived it with a 'thorough analysis of the statis- from the principle of good faith, a principle tical, economic, concrete and legal aspects which must be taken into account in which form the basis of its proposal.' interpreting all legal acts of the Community institutions.
37. The letter relied on by the appellant 42. In this case, he claims, the Council had clearly shows that a new decision of the led him to believe that it would, in due Council with retroactive effect depended course and with retroactive effect, adopt a on the conclusions that could be drawn definitive regime, the detailed rules of from this analysis. which were as yet unknown, which would rectify any omissions under the provisional regime and which could, if necessary, be challenged by the appellant by means of the remedies provided for under the Staff Regulations. 38. It follows that the form of words mentioned above, like those used in the contested regulations, certainly allows the interpretation given to it by the appellant, although, given its context, this is not the 4 3 . According to the appellant, the Court only possible interpretation of what the of First Instance should therefore have author intended to say. understood that the appellant's hope of seeing a later regulation adopted, which would necessarily have to give rise to new limitation periods, was justified and that, therefore, the plea of inadmissibility on the ground of expiry of the period prescribed 39. Therefore, that phrase alone cannot for initiating proceedings could not be reasonably be regarded as giving the appel- upheld. lant any assurance of certainty.
44. It must be observed that this argument cannot be dissociated from the appellant's 40. It follows that the Court of First first argument, as may be seen, moreover, Instance properly considered that the con- from the numerous instances of overlap- ditions for application of the principle of ping in his pleadings.
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45. There would not, in this case, be any 49. Contrary to what the appellant slates, breach of the principle of good faith unless it does not follow that he has no recourse the appellant's expectations with regard to against what he considers to be a wrongful the future approach of the Council were omission on the part of the Council. justified. This would only be the case if the Council had previously given the appellant convincing reasons to hope for a specific action. We have already seen that this was not the case. 50. The alleged omission by the Council could have been invoked by the appellant in support of an action against the appoint- ing authority, as was the case, for example, in Benzlcr v Commission and Cbavane de Dalmassy and Others v Commission, cited above. 46. This argument of the appellant must therefore be rejected.
51. It follows that it was against the acts that, in the appellant's case, constituted the specific reflection of the alleged omission by the Council that the appellant should 47. Thirdly, the appellant claims that the have directed his action, as the Court of Court of First Instance altered the subject- First Instance notes in paragraph 39 of the matter of the dispute, so as to enable it to contested order. declare the action inadmissible. He states that his request and his action 'are not directed against provisional slips supplied to him but against the fact that the definitive regulation and the slips referred 52. The Court of First Instance was also to in the Council's regulations took an justified in refusing to consider that the inordinate time to materialise.' action before it was concerned with a failure to act on the part of the appointing authority. There is no doubt that the pension slips were sent to the appellant. There can therefore be no question of failure to act by the appointing authority, even if the content of the aforementioned 48. This argument amounts to maintaining slips did not correspond with the expecta- that the action is directed in reality against tions of the appellant. a failure to act on the part of the Council. It must be observed, however, that the system of remedies under Article 90 of the Staff Regulations does not allow for the possibi- lity of an applicant contesting an omission 53. The appellant, however, describes the on the part of the Council, since, by virtue slips in question as 'provisional' and claims of that provision, persons covered by the that they do not, therefore, definitively Staff Regulations can only act against an regulate his situation and cannot, therefore, act or omission of the appointing authority. be the subject of an action.
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54. It should be noted that the appellant the time-limit for submitting a complaint is starts from the premiss that an individual mandatory and is not at the disposal of the act adopted on the basis of a temporary parties. It follows that the fact that the regulation is also itself necessarily provi- defending institution has answered a com- sional, reasoning which does not seem to plaint made out of time on its merits does me to be unassailable. not make a later action admissible.
55. In any case, he ignores the fact that, in Benzler v Commission, cited above, which he invokes on several occasions, the Court 59. On the other hand, it is also clear from of First Instance had already held that the the case-law cited by the Court of First pension slips for the period in question Instance that the obstacle of the expired must be considered to be acts adversely time-limit for complaints cannot be cir- affecting the persons concerned, even if cumvented by the opening of a new period they resulted from the application of a through the introduction of a request under provisional weighting. Article 90(1) of the Staff Regulations.
56. The Court of First Instance therefore properly concluded that there was no fail- ure to act on the part of the appointing 60. The appellant goes on to state that the authority, since it had addressed to the effect of the argument of the Court of First appellant acts adversely affecting him and Instance is to deprive him of any recourse therefore open to challenge by way of an since the Court held that, if a provision of a action. regulation is correctly applied and the circumstances which justify its provisional nature only cease to exist after expiry of the time-limit for bringing an action against the 57. The complaint against those acts was individual implementing measure, the per- clearly out of time, since the time-limit for sons concerned by that measure cannot, at complaints under Article 90 of the Staff any time, bring an action with any chance Regulations had expired. The inadmissibil- of success against the same measure, which ity of the action follows clearly from this, is now without any legal basis, or against and it is not possible to criticise the Court its legal basis, which has become invalid. of First Instance, as the appellant has done, for construing that provision with undue rigour.
61. That submission cannot be upheld. If 58. As the Court of First Instance pointed an individual act is adopted on the basis of out in paragraphs 40 and 4 1 of the provisional legislation which no longer has contested order, without being contradicted any raison d'être, that consideration can be by the appellant, it is settled case-law that invoked to contest the validity of that act.
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If, on the other hand, the provisional considered that the object of the action was legislation was still justified at the time of to obtain the award, for the period in adoption of the individual act, the fact that question, of a pension calculated in accor- it later lost that justification does not mean, dance with the cost of living in Berlin. 4 as such, that all the individual acts adopted on the basis of it will be brought into question.
66. However, it can be seen that the arguments on which the merits of the 62. As the Council has rightly argued, the appellant's appeal are based all have the principle of legal certainty precludes such a aim of demonstrating his right to obtain proposition. such a pension.
63. The appellant also states that, at the time when he should, according to the 67. Thus, the Court of First Instance rightly Court of First Instance, have contested the held that such was indeed the true object of pension slips at issue, he could no longer his action — namely to challenge the have effectively formulated his complaint pension slips after the expiry of the time- alleging failure by the Council to adopt a limit under the Staff Regulation in order to definitive weighting covering the period in obtain the payment of a higher pension for question since it was not yet clear that the the period in question, recalculated in Council was not going to do so. accordance with the cost of living in Berlin.
64. This argument must be rejected. The 68. In any case, it must be observed that fact that, after the expiry of the period the appellant is criticising on this point an prescribed for instituting proceedings element which is not essential to the against a measure, something occurs on validity of the reasoning of the Court of the basis of which the applicant considers First Instance. That reasoning is based on he could have founded a complaint is not the consideration that the appellant had such as to cause time to run afresh for the been the subject of an act adversely affect- purpose of proceedings against that mea- ing him which he should have contested sure. within the time-limits. Thus, the Court of First Instance ruled on the procedural plea that the appellant should have used. The objective he would be pursuing in bringing such an action is not relevant in this 65. Finally, the appellant claims that the respect. Court of First Instance's erroneous modifi- cation of the subject-matter of the action can also be seen from the fact that it 4 — In particular, see paragraph 42 of the contested order.
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Conclusion
69. In view of the foregoing, the appeal must be dismissed.
70. With regard to costs, the Court of Justice and the Council have applied for costs against the appellant. By virtue of Article 122 of the Rules of Procedure of the Court of Justice, Article 70 of those Rules is not applicable to an appeal brought by officials or other servants of the institutions. Therefore, in my opinion, it is appropriate to apply Article 69(2) of the Rules of Procedure and to order the appellant to pay the costs of the action; the Council, as intervener, should bear its own costs, in accordance with Article 69(4).
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