Avis juridique important

Judgment of the Court (Second Chamber) of 21 May 1981. - Andreas H. Reinarz v Commission of the European Communities. - Exchange rate applicable to allowances. - Case 29/80. European Court reports 1981 Page 01311

Summary Parties Subject of the case Grounds Decision on costs Operative part

1 . OFFICIALS - APPLICATION - REQUEST SUBMITTED TO APPOINTING AUTHORITY TO TAKE A DECISION - PERIOD - ABSENCE - PREVIOUS REJECTION OF APPLICATION HAVING THE SAME SUBJECT-MATTER FOR FAILURE TO ADHERE TO PRELIMINARY ADMINISTRATIVE PROCEDURE - CONTINUED APPLICABILITY OF MEANS OF REDRESS PROVIDED FOR BY STAFF REGULATIONS

( STAFF REGULATIONS , ARTS 90 AND 91 )

2 . OFFICIALS - TERMINATION OF SERVICE - SYSTEM INTRODUCED BY REGULATION NO 2530/72 - MONTHLY ALLOWANCE - EXCHANGE RATE APPLICABLE - OBJECTION BY OFFICIAL TO WHOM THE SYSTEM WAS APPLIED AT HIS REQUEST

( STAFF REGULATIONS , ART . 63 , THIRD PARAGRAPH ; REGULATION NO 2530/72 OF THE COUNCIL , ART . 3 ( 3 ))

1 . SINCE NO SPECIFIC PERIOD IS PROVIDED FOR WITHIN WHICH A REQUEST WITHIN THE MEANING OF ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS IS TO BE SUBMITTED , IT CANNOT BE HELD AGAINST AN OFFICIAL THAT HE HAS SUBMITTED SUCH A REQUEST TO THE APPOINTING AUTHORITY EVEN WHERE THE COURT HAS PREVIOUSLY DISMISSED AN APPLICATION WITH THE SAME SUBJECT-MATTER THOUGH SOLELY ON THE GROUND THAT THE PRELIMINARY ADMINISTRATIVE PROCEDURE HAS NOT BEEN ADHERED TO ; HIS RIGHT TO HAVE RECOURSE TO THE MEANS OF REDRESS PROVIDED FOR BY THE STAFF REGULATIONS SUBJECT TO COMPLIANCE WITH THE REQUIREMENTS THEREOF IS THUS LEFT INTACT .

2 . AN OFFICIAL WHO RETIRES FROM THE COMMUNITY OF HIS OWN INITIATIVE CANNOT CLAIM TO BE SURPRISED BY THE FACT THAT THE EXPRESS PROVISIONS OF THE LEGISLATION IN FORCE AT THE TIME ON THE EXCHANGE RATE APPLICABLE TO THE MONTHLY ALLOWANCE ARE APPLIED TO HIM WHEN HE WAS WELL AWARE OF THE AMOUNT OF THE ALLOWANCE AND ACCEPTED IT WITH FULL KNOWLEDGE OF THE FACTS AT THE TIME OF HIS DEPARTURE .

IN CASE 29/80

ANDREAS H . REINARZ , A FORMER OFFICIAL ( A 2 ) OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT BEERSEL ( 44 GROENSTRAAT , DWORP ), REPRESENTED BY A . J . HAMMERSTEIN OF THE MAASTRICHT BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF F . JANSEN , HUISSIER , 21 RUE ALDRINGEN ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY R . BAEYENS , ACTING AS AGENT , ASSISTED BY R . NYS OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR :

1 . A DECLARATION THAT THE PROVISIONS OF THE THIRD SUBPARAGRAPH OF ARTICLE 3 ( 3 ) OF REGULATION NO 2530/72 OF THE COUNCIL OF 4 DECEMBER 1972 INTRODUCING SPECIAL AND TEMPORARY MEASURES APPLICABLE TO THE RECRUITMENT OF OFFICIALS OF THE EUROPEAN COMMUNITIES IN CONSEQUENCE OF THE ACCESSION OF NEW MEMBER STATES , AND FOR THE TERMINATION OF SERVICE OF OFFICIALS OF THOSE COMMUNITIES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( 1-8 DECEMBER ), P . 11 ) IN CONJUNCTION WITH THE LAST PARAGRAPH OF ARTICLE 63 OF THE STAFF REGULATIONS ARE NOT TO BE APPLIED TO THE APPLICANT IN SO FAR AS THE ALLOWANCES WHICH WERE PAID TO HIM IN CANADA FOR THE PERIOD FROM 1 MAY 1974 TO 1 SEPTEMBER 1977 ARE CONCERNED ;

2 . AN ORDER THAT THE COMMISSION COMPENSATE HIM FOR THE FINANCIAL LOSS THUS SUFFERED OR AT LEAST PAY DEMAGES ,

1 BY APPLICATION RECEIVED AT THE COURT REGISTRY ON 18 JANUARY 1980 , MR REINARZ , A FORMER OFFICIAL OF THE EUROPEAN COMMUNITIES IN BRUSSELS WHO IS CURRENTLY IN RECEIPT OF AN ALLOWANCE UNDER REGULATION NO 2530/72 OF THE COUNCIL OF 4 DECEMBER 1972 INTRODUCING SPECIAL AND TEMPORARY MEASURES APPLICABLE TO THE RECRUITMENT OF OFFICIALS OF THE EUROPEAN COMMUNITIES IN CONSEQUENCE OF THE ACCESSION OF NEW MEMBER STATES , AND FOR THE TERMINATION OF SERVICE OF OFFICIALS OF THOSE COMMUNITIES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( 1-8 DECEMBER ), P . 11 ), BROUGHT AN ACTION FIRST FOR A DECLARATION THAT WITH REGARD TO THE ALLOWANCES PAID TO THE APPLICANT IN CANADA DURING THE PERIOD FROM 1 MAY 1974 TO 1 SEPTEMBER 1977 THE PROVISIONS OF THE LAST SUBPARAGRAPH OF ARTICLE 3 ( 3 ) OF REGULATION NO 2530/72 IN CONJUNCTION WITH THOSE OF THE LAST PARAGRAPH OF ARTICLE 63 OF THE STAFF REGULATIONS WERE NOT APPLICABLE TO HIM AND , SECONDLY , FOR AN ORDER REQUIRING THE COMMISSION TO COMPENSATE HIM ON GROUNDS OF FAIRNESS FOR THE FINANCIAL LOSS WHICH HE CLAIMS TO HAVE SUFFERED AS A RESULT OF THE APPLICATION OF THOSE PROVISIONS , OR AT LEAST TO PAY HIM SUCH DAMAGES AS THE COURT SEES FIT .

2 UPON RELINQUISHING HIS POST WITH THE COMMUNITIES IN 1973 , THE APPLICANT SETTLED IN CANADA AND ACCORDINGLY HIS ALLOWANCE , CALCULATED IN BELGIAN FRANCS , WAS PAID IN THE CURRENCY OF THAT COUNTRY CALCULATED ON THE BASIS OF THE PAR VALUES ACCEPTED BY THE INTERNATIONAL MONETARY FUND WHICH WERE IN FORCE ON 1 JANUARY 1965 , PURSUANT TO ARTICLE 3 ( 3 ) OF REGULATION NO 2530/72 IN CONJUNCTION WITH THE THIRD PARAGRAPH OF ARTICLE 63 OF THE STAFF REGULATIONS .

3 IN 1976 , THE APPLICANT APPLIED TO THE COURT FOR THE ANNULMENT OR AT LEAST FOR A DECLARATION OF INAPPLICABILITY AS FAR AS HE WAS CONCERNED OF THE AFORESAID PROVISIONS AND FOR COMPENSATION IN RESPECT OF THE LOSS WHICH HE CLAIMED TO HAVE SUFFERED BUT THE COURT , IN ITS JUDGMENT OF 17 FEBRUARY 1977 IN CASE 48/76 REINARZ V COMMISSION ( 1977 ) ECR 291 , DECLARED HIS APPLICATION INADMISSIBLE ON THE GROUND THAT IT WAS NOT PRECEDED BY AN OFFICIAL COMPLAINT , A CONDITION PRECEDENT TO ANY APPLICATION TO THE COURT .

4 BY LETTER OF 9 MAY 1978 AND AGAIN BY LETTER OF 28 NOVEMBER 1978 , THE APPLICANT SUBMITTED TO THE APPOINTING AUTHORITY PRIMARILY A REQUEST WITHIN THE MEANING OF ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS THAT THE COMMISSION TAKE A DECISION GRANTING HIM COMPENSATION FOR THE LOSSES WHICH HE CLAIMED TO HAVE SUFFERED OR AT LEAST AWARDING HIM DAMAGES TO MAKE GOOD HIS FINANCIAL LOSS . IN THE SAME LETTER , HAVING REGARD TO THE POSSIBILITY THAT THE COMMISSION MIGHT REJECT HIS REQUEST , THE APPLICANT SUBMITTED IN THE ALTERNATIVE A COMPLAINT , ON THE BASIS OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS , CONCERNING THE FACT THAT THE COMMISSION HAD , IN CALCULATING HIS MONTHLY ALLOWANCES , RELIED ON THE AFORESAID PROVISIONS OF THE REGULATIONS , INCLUDING THE STAFF REGULATIONS , WHICH PROVISIONS HE CLAIMED SHOULD BE DECLARED NULL AND VOID OR AT LEAST INAPPLICABLE IN RELATION TO HIM .

5 THE COMMISSION CONSIDERED THAT THE STEPS TAKEN BY THE APPLICANT AMOUNTED TO A COMPLAINT WITHIN THE MEANING OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS AND REJECTED IT ON 28 MARCH 1979 ON THE GROUNDS THAT IT WAS TIME-BARRED AND UNFOUNDED .

6 ON 22 JUNE 1979 , THE APPLICANT RAISED WITH THE COMMISSION THE OBJECTION THAT IT HAD MISTAKENLY CONSIDERED HIS REQUEST FOR COMPENSATION AS A COMPLAINT AND HE POINTED OUT THAT , BY THAT LETTER , HE WAS SUBMITTING IN ACCORDANCE WITH ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS A COMPLAINT ' ' AGAINST THE REJECTION OF HIS REQUEST THAT IT TAKE THE DECISION RELATING TO HIM WHICH HE SOUGHT ' ' .

7 THE COMMISSION REJECTED THAT COMPLAINT BY LETTER OF 21 DECEMBER 1979 RECALLING ONCE AGAIN THAT ' ' IT IS NOT ADMISSIBLE ' ' OR WELL FOUNDED . ON 18 JANUARY 1980 , THE APPLICANT BROUGHT THIS APPLICATION AGAINST THE REJECTION OF HIS COMPLAINT .

ADMISSIBILITY OF THE APPLICATION

8 THE COMMISSION CHALLENGES THE ADMISSIBILITY OF THE APPLICATION ON THE GROUNDS THAT , FIRST , THIS IS A REPETITION OF AN APPLICATION FOR DAMAGES WHICH HAS ALREADY BEEN BROUGHT BEFORE THE COURT IN CASE 48/76 AND DISMISSED BY JUDGMENT OF 17 FEBRUARY 1977 AND , SECONDLY , THAT THE APPLICANT ' S LETTER OF 9 MAY 1978 CONSTITUTES A COMPLAINT AND PROCEEDINGS HAVE BEEN INSTITUTED BEFORE THE COURT AFTER THE EXPIRY OF THE PERIOD SPECIFIED IN ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS .

9 HOWEVER , SINCE IT APPEARS FROM THE APPLICANT ' S LETTER OF 9 MAY 1978 THAT HE SUBMITTED PRIMARILY A REQUEST TO THE APPOINTING AUTHORITY AND IN THE ALTERNATIVE A COMPLAINT , IT IS NECESSARY TO CONSIDER THE ADMISSIBILITY OF EACH OF THOSE STEPS SEPARATELY .

11 HOWEVER , AS REGARDS THE PRINCIPAL REQUEST SUBMITTED BY THE APPLICANT TO THE COMMISSION , ARTICLE 90 ( 1 ) LAYS DOWN THAT :

' ' ANY PERSON TO WHOM THESE STAFF REGULATIONS APPLY MAY SUBMIT TO THE APPOINTING AUTHORITY , A REQUEST THAT IT TAKE A DECISION RELATING TO HIM ' ' .

12 IT FOLLOWS FROM THAT ARTICLE THAT SINCE NO SPECIFIC PERIOD IS PROVIDED FOR WITHIN WHICH A REQUEST IS TO BE SUBMITTED , IT CANNOT BE HELD AGAINST THE APPLICANT THAT HE HAS SUBMITTED SUCH A REQUEST TO THE APPOINTING AUTHORITY WHICH THE COURT HAS PREVIOUSLY DISMISSED , THOUGH SOLELY ON THE GROUND THAT THE PRELIMINARY ADMINISTRATIVE PROCEDURE HAS NOT BEEN ADHERED TO ; HIS RIGHT TO HAVE RECOURSE TO THE MEANS OF REDRESS PROVIDED FOR BY THE STAFF REGULATIONS SUBJECT TO COMPLIANCE WITH THE REQUIREMENTS THEREOF , WHICH HAVE MOREOVER BEEN MET BY THE APPLICANT , IS THUS LEFT INTACT . ON THIS POINT , THEREFORE , HIS SUBMISSIONS ARE ADMISSIBLE .

SUBSTANCE

13 IN THIS CONTEXT , THE APPLICANT , WHO ESSENTIALLY SEEKS ON GROUNDS OF FAIRNESS COMPENSATION OR DAMAGES FROM THE COMMISSION FOR THE LOSS SUFFERED , ALLEGES THAT THE APPLICATION OF THE PROVISIONS OF ARTICLE 3 OF REGULATION NO 2530/72 IN CONJUNCTION WITH THOSE OF ARTICLE 63 OF THE STAFF REGULATIONS HAS RESULTED IN DISCRIMINATION AGAINST HIM COMPARED WITH OTHER FORMER OFFICIALS RESIDING IN ONE OF THE MEMBER STATES WHICH THE COMMISSION HAS IMPLICITLY RECOGNIZED IN THE PREAMBLE TO COUNCIL REGULATION NO 3085/78 OF 21 DECEMBER 1978 AMENDING THE MONETARY PARITIES TO BE USED . THIS SYSTEM IS ALSO CONTRARY TO THE GENERAL PRINCIPLE OF HUMAN RIGHTS WHICH ALLOWS ANY PERSON TO SETTLE , ON TERMINATION OF SERVICE , IN THE COUNTRY OF HIS CHOICE WITHOUT SUFFERING A REDUCTION IN EMOLUMENTS , AND TO ARTICLE 12 OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COMMUNITIES .

14 THE OBJECTION TO THAT ARGUMENT IS THAT THE APPLICANT - WHO RETIRED FROM THE COMMUNITY OF HIS OWN INITIATIVE - CANNOT HAVE BEEN SURPRISED BY THE FACT THAT LEGISLATION CONTAINING EXPRESS PROVISIONS WHICH WAS AMENDED ONLY AS FROM 1 APRIL 1979 BY COUNCIL REGULATION NO 3085/78 OF 21 DECEMBER 1978 WAS APPLIED TO HIM . ACCORDINGLY , HE WAS WELL AWARE OF THE AMOUNT OF THE MONTHLY ALLOWANCE TO BE PAID TO HIM ON HIS DEPARTURE FOR CANADA IN MAY 1973 AND HE ACCEPTED IT WITH FULL KNOWLEDGE OF THE FACTS .

15 THIS SYSTEM DOES NOT , MOREOVER , RESULT IN DISCRIMINATION AGAINST OFFICIALS WHO ARE IN THE SAME POSITION AS THE APPLICANT , THAT IS TO SAY , WHERE THEY HAVE ALSO CHOSEN TO RESIDE IN A COUNTRY OUTSIDE THE COMMUNITIES .

16 FINALLY , ARTICLE 12 ( C ) OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COMMUNITIES HAS NO RELEVANCE IN THE PRESENT CASE AND ALL THAT NEED BE STATED IN THIS REGARD IS THAT IT IS APPLICABLE ONLY IN THE TERRITORY OF EACH OF THE MEMBER STATES .

17 THEREFORE , IT IS NECESSARY TO CONCLUDE THAT THE APPLICATION MUST BE DISMISSED .

18 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

19 HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES , INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .