61975J0009

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1 . OFFICIALS - ACTION FOR ANNULMENT - ACTION FOR DAMAGES - NO DISTINCTION - TIME WITHIN WHICH AN ACTION MUST BE BROUGHT

( STAFF REGULATIONS, ARTICLE 90 AND ARTICLE 91 )

2 . OFFICIALS - ACTION FOR DAMAGES - ORIGIN - PLACE OF EMPLOYMENT - LEGAL BASIS

( STAFF REGULATIONS, ARTICLE 90 AND ARTICLE 91 )

1 . SINCE ARTICLES 90 AND 91 OF THE STAFF REGULATIONS MAKE NO DISTINCTION BETWEEN THE ACTION FOR ANNULMENT AND THE ACTION FOR DAMAGES AS REGARDS ADMINISTRATIVE AND CONTENTIOUS PROCEDURE, THE PERSON CONCERNED IS AT LIBERTY, IN VIEW OF THE INDEPENDENCE OF THE DIFFERENT TYPES OF ACTION, TO CHOOSE EITHER ONE OR THE OTHER, OR BOTH TOGETHER, ON CONDITION THAT HE BRINGS HIS ACTION WITHIN THE PERIOD OF THREE MONTHS AFTER THE REJECTION OF HIS COMPLAINT .

2 . A DISPUTE BETWEEN AN OFFICIAL AND THE INSTITUTION TO WHICH HE IS OR WAS ANSWERABLE CONCERNING COMPENSATION FOR DAMAGE IS PURSUED, WHERE IT ORIGINATES IN A RELATIONSHIP OF EMPLOYMENT BETWEEN THE PERSON CONCERNED AND THE INSTITUTION, UNDER ARTICLE 179 OF THE TREATY AND ARTICLES 90 AND 91 OF THE STAFF REGULATIONS AND, AS REGARDS IN PARTICULAR THE QUESTION OF ITS ADMISSIBILITY, LIES OUTSIDE THE SPHERE OF APPLICATON OF ARTICLES 178 AND 215 OF THE TREATY AND OF ARTICLE 43 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EEC .

IN CASE 9/75

MARTIN MEYER-BURCKHARDT, A RETIRED DIRECTOR OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT HORBEN IN THE FEDERAL REPUBLIC OF GERMANY, REPRESENTED BY HEINZ NIEDERHAUSEN, ADVOCATE OF FREIBURG, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 34B RUE PHILIPPE II, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, BRUSSELS, REPRESENTED BY ITS LEGAL ADVISER, PETER GILSDORF, ASSISTED BY MEINHARD HILF, A MEMBER OF THE LEGAL DEPARTMENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO, LEGAL ADVISER TO THE COMMISSION, PLACE DE LA GARE, DEFENDANT,

APPLICATION FOR AN AWARD OF DAMAGES,

1 THE APPLICATION IS FOR AN ORDER THAT THE COMMISSION PAY THE SUM OF DM 122 486.88 AS COMPENSATION FOR THE DAMAGE ALLEGEDLY CAUSED TO THE APPLICANT BY THE COMMISSION'S REFUSAL TO INSTITUTE PROCEEDINGS AGAINST THE FEDERAL REPUBLIC OF GERMANY ON THE BASIS OF ARTICLE 169 OF THE TREATY .

2 THE APPLICANT, A FORMER CIVIL SERVANT OF THE FEDERAL REPUBLIC AND, LATER, AN OFFICIAL OF THE EUROPEAN ECONOMIC COMMUNITY, IS CONTESTING BEFORE THE GERMAN COURTS THE VALIDITY IN RELATION TO COMMUNITY LAW OF CERTAIN LEGISLATIVE PROVISIONS OF THE FEDERAL REPUBLIC WHEREBY, FOR THE PERIOD FROM 1 OCTOBER 1968 TO 30 JUNE 1972, HE SUFFERED AN APPRECIABLE REDUCTION IN HIS GERMAN RETIREMENT PENSION BY REASON OF THE OVERLAPPING OF THAT PENSION WITH THE COMMUNITY RETIREMENT PENSION .

THE APPLICANT'S ACTION BEFORE THE VERWALTUNGSGERICHT FREIBURG WAS DISMISSED ON 28 JUNE 1973 AND HE APPEALED TO THE BUNDESVERWALTUNGSGERICHT WHICH, UP TO THE DATE OF THIS JUDGMENT, HAS NOT REACHED A DECISION .

3 HOWEVER, ON 23 MAY 1973, HAVING LEARNED OF A PREVIOUS JUDGMENT OF 24 FEBRUARY 1972 OF THE BUNDESVERWALTUNGSGERICHT IN A CASE TO WHICH HE WAS NOT A PARTY BUT WHICH HE CONSIDERED TO BE SIMILAR, AND BELIEVING THAT THE BUNDESVERWALTUNGSGERICHT OUGHT, PRIOR TO GIVING JUDGMENT, TO HAVE HAD RECOURSE TO ARTICLE 177 OF THE TREATY, THE APPLICANT SUBMITTED TO THE COMMISSION A REQUEST WITHIN THE MEANING OF ARTICLE 90 OF THE STAFF REGULATIONS OF OFFICIALS FOR THE PURPOSE OF SECURING THE INSTITUTION AGAINST THE FEDERAL REPUBLIC OF PROCEEDINGS UNDER ARTICLE 169 OF THE TREATY 'IN ORDER TO PUT AN END TO THE INFRINGEMENT OF THE THIRD PARAGRAPH OF ARTICLE 177 OF THE EEC TREATY' WHICH, IN HIS OPINION, HAD BEEN COMMITTED BY THE BUNDESVERWALTUNGSGERICHT . THIS REQUEST, WHICH WAS REJECTED, FIRST BY IMPLICATION AND THEN EXPRESSLY, WAS FOLLOWED BY A COMPLAINT TO THE SAME EFFECT, WHICH WAS ALSO REJECTED, BY LETTER OF 7 FEBRUARY 1974 . ON 18 APRIL 1974, WITHOUT HAVING BROUGHT THE DISPUTE ARISING FROM THE REJECTION OF HIS COMPLAINT BEFORE THE COURT OF JUSTICE, THE APPLICANT SUBMITTED TO THE COMMISSION A FRESH REQUEST FOR AN AWARD OF DAMAGES, WHICH FOLLOWING AN IMPLIED REJECTION AND A COMPLAINT, WHICH WAS EXPRESSLY REJECTED ON 7 NOVEMBER 1974, GAVE RISE TO THE PRESENT ACTION FOR DAMAGES .

4 ACCORDING TO THE APPLICANT THE COMMISSION'S FAILURE TO INSTITUTE PROCEEDINGS AGAINST THE FEDERAL REPUBLIC IN THE MATTER OF THE JUDGMENT GIVEN BY THE BUNDESVERWALTUNGSGERICHT ON 24 FEBRUARY 1972 IS THE CAUSE OF THE DAMAGE FOR WHICH HE IS SEEKING COMPENSATION, CORRESPONDING TO THE REDUCTION IN HIS GERMAN RETIREMENT PENSION MADE UNDER THE NATIONAL LEGISLATION IN DISPUTE . HE CLAIMS IN THIS RESPECT THAT THE PROVISIONS OF THE GERMAN LEGISLATION WHICH AFFECT HIS POSITION ARE INCOMPATIBLE WITH COMMUNITY LAW AND THAT A PRELIMINARY RULING FROM THE COURT OF JUSTICE ON THE INTERPRETATION OF THE STAFF REGULATIONS OF OFFICIALS WOULD, IF IT HAD BEEN SOUGHT, HAVE ENABLED THE GERMAN COURTS TO FIND IN FAVOUR OF THE EXISTENCE OF THE ALLEGED INCOMPATIBILITY .

5 ACCORDING TO THE COMMISSION THE APPLICATION IS INADMISSIBLE BOTH IN THE EVENT OF ITS BEING FOUNDED UPON ARTICLE 179 OF THE TREATY AND ON THE STAFF REGULATIONS OF OFFICIALS AND IN THE EVENT OF ITS BEING BASED ON ARTICLE 215 OF THE TREATY .

6 IN SUPPORT OF HIS APPLICATION THE APPLICANT HAS RELIED UPON ARTICLES 178 AND 215 OF THE TREATY AND ARTICLE 179 THEREOF AND ON THE STAFF REGULATIONS OF OFFICIALS .

IT IS THEREFORE NECESSARY TO ASCERTAIN, FOR THE PURPOSE OF DECIDING THE ADMISSIBILITY OF THE APPLICATION, THE PROVISIONS UPON WHICH THE LATTER SHOULD BE BASED .

7 ACCORDING TO ARTICLE 179 OF THE TREATY THE COURT OF JUSTICE HAS JURISDICTION IN ANY DISPUTE BETWEEN THE COMMUNITY AND ITS SERVANTS WITHIN THE LIMITS AND UNDER THE CONDITIONS LAID DOWN IN THE STAFF REGULATIONS OR THE CONDITIONS OF EMPLOYMENT . UNDER ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS SUCH DISPUTES INCLUDE THOSE OF A FINANCIAL CHARACTER, IN WHICH, MOREOVER, THE COURT OF JUSTICE IS GIVEN UNLIMITED JURISDICTION . ACCORDINGLY, A DISPUTE BETWEEN AN OFFICIAL AND THE INSTITUTION TO WHICH HE IS OR WAS ANSWERABLE CONCERNING COMPENSATION FOR DAMAGE IS PURSUED, WHERE IT ORIGINATES IN THE RELATIONSHIP OF EMPLOYMENT BETWEEN THE PERSON CONCERNED AND THE INSTITUTION, UNDER ARTICLE 179 OF THE TREATY AND ARTICLES 90 AND 91 OF THE STAFF REGULATIONS AND, AS REGARDS IN PARTICULAR THE QUESTION OF ITS ADMISSIBILITY, LIES OUTSIDE THE SPHERE OF APPLICATION OF ARTICLES 178 AND 215 OF THE TREATY AND OF ARTICLE 43 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EEC .

8 THE APPLICANT HAS BASED HIS APPLICATION IN PARTICULAR UPON AN INFRINGEMENT BY THE COMMISSION OF ARTICLE 24 OF THE STAFF REGULATIONS ON THE PROTECTION DUE BY INSTITUTIONS TO OFFICIALS . FURTHERMORE, BY SUBMITTING A REQUEST AND A COMPLAINT THE APPLICANT HAS HIMSELF FOLLOWED THE PROCEDURE OUTLINED IN ARTICLES 90 AND 91 . THE ADMISSIBILITY OF THE ACTION MUST THEREFORE BE CONSIDERED IN THE LIGHT OF THOSE PROVISIONS .

9 IN THIS CONNEXION THE COMMISSION CLAIMS THAT THE PRESENT APPLICATION IS INADMISSIBLE BECAUSE THE APPLICANT HAS FAILED TO BRING AN APPEAL BEFORE THE COURT WITHIN THE PERIOD OF THREE MONTHS LAID DOWN IN ARTICLE 91 ( 3 ) OF THE STAFF REGULATIONS AGAINST THE REJECTION, BY LETTER FROM THE COMMISSION OF 7 FEBRUARY 1974, OF HIS FIRST COMPLAINT OF 1 OCTOBER 1973 AND THAT HE CANNOT, BY MEANS OF THE PRESENT ACTION FOR DAMAGES, MAKE GOOD THIS OMISSION .

THE APPLICANT REPLIES THAT IN RELATION TO THE ACTION FOR ANNULMENT, THE ACTION FOR DAMAGES IS AN INDEPENDENT TYPE OF ACTION SUBJECT TO SPECIFIC CONDITIONS AS TO ADMISSIBILITY, FROM WHICH IT FOLLOWS THAT HIS ACTION, WHICH WAS BROUGHT WITHIN A PERIOD OF THREE MONTHS FOLLOWING THE REJECTION OF HIS COMPLAINT CONCERNING THE REFUSAL TO GRANT HIM COMPENSATION, IS ADMISSIBLE .

10 ALTHOUGH THE ACTION FOR ANNULMENT AND THE ACTION FOR DAMAGES ARE INDEED DISTINCT TYPES OF ACTION, IT IS NONE THE LESS THE CASE THAT, WITHIN THE CONTEXT OF DISPUTES BETWEEN OFFICIALS AND THE INSTITUTIONS, ARTICLES 90 AND 91 OF THE STAFF REGULATIONS MAKE NO DISTINCTION BETWEEN THEM AS REGARDS BOTH THE ADMINISTRATIVE AND THE CONTENTIOUS PROCEDURES TO WHICH THEY MAY GIVE RISE .

IN THIS CONNEXION IT IS OF SIGNIFICANCE THAT BOTH ARTICLE 178 OF THE TREATY AND ARTICLES 90 AND 91 OF THE STAFF REGULATIONS REFRAIN FROM DEFINING THE NATURE OF THE ACTION AVAILABLE IN THE EVENT OF REJECTION OF A COMPLAINT THROUGH ADMINISTRATIVE CHANNELS .

ACCORDING TO ARTICLE 91, IN PROCEEDINGS RELATING TO THE LEGALITY OF AN ACT ADVERSELY AFFECTING THE APPLICANT, THE COURT HAS JURISDICTION, WHATEVER THE NATURE OF THE ACTION .

11 THEREFORE, AS FROM THE DATE OF REJECTION OF HIS COMPLAINT OF 1 OCTOBER 1973 BY LETTER OF THE COMMISSION OF 7 FEBRUARY 1974, THE APPLICANT COULD, WITHIN THE PERIOD OF THREE MONTHS, HAVE BROUGHT BEFORE THE COURT AN ACTION CONCERNING THE LEGALITY OF AN ACT ADVERSELY AFFECTING HIM, AND THE FINANCIAL CONSEQUENCES WHICH MIGHT HAVE ARISEN THEREFROM .

IT SHOULD BE NOTED THAT THE APPLICANT HAS BASED HIS RIGHT TO COMPENSATION PRECISELY UPON THE ILLEGALITY OF THE REJECTION OF HIS COMPLAINT, THEREBY ACKNOWLEDGING THAT A FINDING OF THE ILLEGALITY OF THAT REJECTION COMBINED WITH HIS CLAIM FOR DAMAGES FORM THE SUBJECT-MATTER OF THE ACTION .

HE WAS AT LIBERTY, IN VIEW OF THE INDEPENDENCE OF THE DIFFERENT TYPES OF ACTION, TO CHOOSE EITHER ONE OR THE OTHER, OR BOTH TOGETHER, BUT HE HAD IN ANY EVENT TO BRING HIS ACTION WITHIN THE PERIOD OF THREE MONTHS AFTER THE REJECTION OF HIS COMPLAINT OF 1 OCTOBER 1973 .

12 THE APPLICATION OF 22 JANUARY 1975, REGISTERED ON 31 JANUARY 1975, WAS REGISTERED AFTER THE EXPIRY OF THAT PERIOD .

13 FOR THE SAKE OF COMPLETENESS IT SHOULD BE NOTED THAT EVEN IF THE ACTION COULD BE BASED UPON ARTICLE 215 OF THE TREATY AND AVOIDED THE PROCEDURAL RULES CONTAINED IN ARTICLE 90 AND 91 OF THE STAFF REGULATIONS IT WOULD NEVERTHELESS BE OUT OF TIME, SINCE IT WAS BROUGHT AFTER THE EXPIRY OF THE PERIOD PRESCRIBED IN ARTICLE 43 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EEC .

IN FACT, SINCE THE CLAIM FOR DAMAGES SUBMITTED TO THE INSTITUTION WAS REGISTERED WITH IT ON 30 APRIL 1974, AND SINCE THE INSTITUTION HAD NOT DEFINED ITS POSITION WITHIN THE PERIOD OF TWO MONTHS LAID DOWN IN THE SECOND PARAGRAPH OF ARTICLE 175, THE ACTION SHOULD HAVE BEEN BROUGHT WITHIN A FURTHER PERIOD OF TWO MONTHS, WHICH WAS NOT DONE .

EVEN IF THE COMPLAINT RELATING TO THE REJECTION OF THE CLAIM FOR COMPENSATION, WHICH WAS REGISTERED ON 9 SEPTEMBER 1974 AND REJECTED IN ITS TURN ON 7 NOVEMBER 1974, WERE CONSIDERED TO CONSTITUTE THE APPLICATION REFERRED TO IN ARTICLE 43 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EEC, THE POSITION REMAINS THE SAME .

14 ACCORDINGLY, THE APPLICATION MUST BE DISMISSED AS INADMISSIBLE .

15 THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .

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

HOWEVER, ACCORDING TO ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS COMMENCED BY AN OFFICIAL OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .