Parties
Grounds
Operative part

Parties

In Case T‑456/07,

European Commission, represented by J.-F. Pasquier and D. Martin, acting as Agents,

applicant,

v

Translation Centre for the Bodies of the European Union (CdT), represented initially by G. Vandersanden and subsequently by L. Levi, lawyers,

defendant,

APPLICATION for the annulment of the alleged decision by which the CdT refused to pay into the general budget, in respect of the financial years 1998 to 2005, employer’s contributions to the Community pension scheme,

THE GENERAL COURT (Third Chamber),

composed of J. Azizi, President, E. Cremona and S. Frimodt Nielsen (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Order

Grounds

Legal context

Community pension scheme

1. Article 83 of the Staff Regulations of Officials of the European Communities both in the version in force before 1 May 2004 (‘the old Staff Regulations’) and that in force since that date (‘the new Staff Regulations’) provides as follows:

‘1. Benefits paid under this pension scheme shall be charged to the budget of the Communities. Member States shall jointly guarantee payment of such benefits in accordance with the scale laid down for financing such expenditure.

...

2. Officials shall contribute one third of the cost of financing this pension scheme. …’

2. Article 83a(2), as inserted in the new Staff Regulations, provides as follows:

‘Agencies which do not receive a subsidy from the general budget of the European Union shall pay into that budget the entire amount of the contributions needed to finance the scheme.’

Financial Legislation

3. Article 72(2) of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1; ‘the Financial Regulation’), which took effect on 1 May 2003, enables the institutions to establish credits for amounts to which they consider themselves entitled. That provision states:

‘The institution may formally establish an amount as being receivable from persons other than States by means of a decision which shall be enforceable within the meaning of Article 256 … EC … .’

Provisions applicable to the CdT

Provisions applicable throughout the period in dispute

4. The Centre for Translation for the Bodies of the European Union (‘CdT’) is an agency established by Council Regulation (EC) No 2965/94 of 28 November 1994 setting up a Translation Centre for bodies of the European Union (OJ 1994 L 314, p. 1). The CdT is endowed with legal personality (Article 3 of Regulation No 2965/94) and has an independent budget. Its task is to provide translation services for the bodies listed in Article 2 of Regulation No 2965/94 and, as appropriate, to the institutions. It also participates in the Interinstitutional Committee on Translation. It is established in Luxembourg (Luxembourg).

5. Article 9 of Regulation No 2965/94 is worded thus:

‘1. The [CdT] shall be under the authority of a Director appointed by the Management Board on a proposal from the Commission for a period of five years; the appointment shall be renewable.

2. The Director shall be the legal representative of the [CdT]. He or she shall be responsible for:

– the proper preparation and implementation of the work programme and of the decisions taken by the Management Board,

– day-to-day administration,

– the performance of the tasks assigned to the [CdT],

– the implementation of the budget,

– all staff matters, and

– the preparation of the Management Board meetings.

3. The Director shall be accountable to the Management Board.’

6. Article 17 of Regulation No 2965/94 provides that the CdT’s staff are to be subject to the rules and regulations applying to officials and other servants of the European Communities.

7. Regulation No 2965/94 has been amended twice. First, with effect from 17 November 1995, by Council Regulation (EC) No 2610/95 of 30 October 1995 (OJ 1995 L 268, p. 1). Secondly, with effect from 1 October 2003, by Council Regulation (EC) No 1645/2003 of 18 June 2003 (OJ 2003 L 245, p. 13).

Provisions applicable to the years 1998 to 2002

8. In its version applicable to financial years 1998 to 2002, resulting from Regulation No 2610/95, Article 10 of Regulation No 2965/94 was worded thus:

‘1. Estimates shall be drawn up of all the [CdT’s] revenue and expenditure for each financial year, which shall correspond to the calendar year, and shall be entered in the [CdT’s] budget.

2(a) The revenue and expenditure shown in the [CdT’s] budget shall be in balance.

(b) Subject to the provisions set out in subparagraph (c) concerning the start-up period, the revenue shall come from the payments made by the agencies and offices serviced by the [CdT] and the institutions and bodies with which collaboration has been agreed in return for work performed by it.

(c) In the start-up period, which shall not exceed three financial years:

– the offices and agencies, institutions and bodies serviced by the [CdT] shall at the start of a financial year make a lump sum contribution from their budgets which is based on the best possible information and which will be adapted in the light of the actual work performed,

– a contribution may be made from the general budget of the European Communities to the [CdT] to ensure its operation.

3. The expenditure of the [CdT] shall include staff remuneration, administrative and infrastructure expenses and operation costs.’

9. The rules relating to the approval and implementation of the CdT’s budget, as applicable from 1998 to 2002, were laid down by Articles 13 to 15 of Regulation No 2965/94, in its version resulting from Regulation No 2610/95. Under those provisions the Director was responsible for preparing and implementing the budget, whereas approval of the budget and the discharge of the Director for its implementation was the responsibility of the Management Board.

Provisions applicable to the years 2003 to 2005

10. In its version applicable to the financial years 2003 to 2005, resulting from Regulation No 1645/2003, Article 10 of Regulation No 2965/94 was worded thus:

1. ‘Estimates shall be drawn up of all the [CdT’s] revenue and expenditure for each financial year, which shall correspond to the calendar year, and shall be entered in the [CdT’s] budget.

2(a) The revenue and the expenditure shown in the [CdT’s] budget shall be in balance.

(b) The [CdT’s] revenue shall comprise payments made by the bodies for which the [CdT] works and by the institutions and organs with which collaboration has been agreed in return for work performed by it, including interinstitutional activities, and a Community subsidy.

3. The expenditure of the [CdT] shall include staff remuneration, administrative and infrastructure expenses and operation costs.’

11. The rules relating to the approval and implementation of the CdT’s budget, applicable from 2003 to 2005, were laid down by Articles 13 to 15 of Regulation No 2965/94, in its version resulting from Regulation No 1645/2003. The latter provisions do not affect the Director’s powers. They provide, on the other hand, for the European Parliament and the Council of the European Union to fix the amount of the Community subsidy provided for by Article 10(2) of Regulation No 2965/94, as amended, and to give a discharge to the Director in respect of the implementation of the CdT’s budget. Subject to that, the powers of the Management Board remain the same.

Facts

Requests for payment to the general budget of a contribution to the Community pension scheme in respect of the financial years 1998 to 2005

12. By note from the Director General of the Personnel and Administration Directorate General (‘the Personnel and Administration DG’) of 1 July 1998 (‘the note of 1 July 1998’), the Commission of the European Communities requested the European Agency for the Evaluation of Medical Products (‘EMEA’), the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (‘OHIM’) and the Community Plant Variety Office (‘CPVO’) to pay to the Community budget employer’s contributions to the Community pension scheme.

13. The note of 1 July 1998 stated as follows:

‘The decentralised agencies pay to the Commission monthly the amounts of their staff’s contributions to the Community pension scheme. Some of those agencies, including yours, are intended to be wholly or partly self-financing. In order to maintain a balanced budget and respect the logic of the pension scheme …, it is therefore appropriate that those agencies pay to the scheme an employer’s contribution corresponding to double the staff’s contribution weighted by reference to the rate of self-financing of each agency.

That practice is implicit in the regulations establishing the agencies …

Consequently, I would be grateful if you would have payment made to the Commission, in accordance with the procedure laid down for the payment of staff’s contributions, of the amount corresponding to the “employer’s” contribution of your agency to financing the pension scheme, which the Commission will allocate in accordance with the appropriate provisions.

Those payments should be effected retrospectively from the year in which your agency began to receive its own resources, together with interest at an appropriate rate.’

14. The note of 1 July 1998 was sent to the Director of the CdT on 6 August 1998 by fax sent by the Head of the Pensions and Relations with Former Officials Unit of the Commission’s Personnel and Administration DG. In that fax, it was stated that the note of 1st July 1998 was, in fact, also intended for the CdT which was ‘consequently kindly requested to consider it’.

15. On 19 August 1998, the Director of the CdT replied to the Head of the Pensions and Relations with Former Officials Unit of the Commission’s Personnel and Administration DG that it was willing to consider that request but would like the Commission to indicate to it the ‘legal basis for the [CdT] of the suggested practice’.

16. On 9 February 2000, the CdT requested the Commission’s view on its position, according to which the employer’s contribution to the Community pension scheme was to be borne by the Community’s general budget.

17. By note of 16 March 2000, the Head of the Pensions and Relations with Former Officials Unit of the Commission’s Personnel and Administration DG stated that the CdT was to be regarded as a self-financing agency since its establishment and that, as a result, it must, since then, pay to the general budget the employer’s contribution to the Community pension scheme.

18. By note of 11 April 2000, the person in charge of the General Administration, Finance and Personnel Department of the CdT informed the Commission that, in the view of the CdT’s Board of Management, the position expressed in the note of 16 March 2000 was based on incomplete and inconsistent reasoning and was devoid of any legal basis. The Commission was again invited to state the legal basis on which its claim was founded, so that the Board of Management might envisage giving it a favourable response.

19. By note of 16 May 2000, the Head of the Pensions and Relations with Former Officials Unit of the Commission’s Personnel and Administration DG confirmed the position previously expressed according to which the CdT was liable for a contribution representing two thirds of the financing of the Community pension scheme. The Commission was of the view that the CdT was ‘clearly self‑financing’ being remunerated in consideration for supplies of services, but the question whether the obligation to pay the ‘employer’s share’ rested on the CdT during the start-up period referred to in Article 10(2)(c) of Regulation No 2965/94 in its version then in force (see paragraph 8 above), could be discussed.

20. By note of 21 June 2000, the person in charge of the General Administration, Finance and Personnel Department of the CdT stated again that payment could not be made of an ‘employer’s contribution’ unless the Commission produced the legal basis for its claim. In that note, it was also stated that the Commission’s claim appeared to be contrary to Article 83(1) of the old Staff Regulations, in terms of which ‘[b]enefits paid under this pension scheme shall be charged to the budget of the Communities’. Therefore, an indication of a clear legal basis seemed to be necessary ‘in order to avoid any challenge on the part [of] the financial controller [of the CdT] and of the Court of Auditors [of the European Communities]’.

21. On 27 October 2000, the Board of Management of the CdT decided to make provision in the agency’s accounts for a reserve representing the amount of the contribution claimed by the Commission since the year 1998. However, before making payment of the corresponding sum, it again requested the Commission to clarify on what legal basis it relied in claiming that payment.

22. In a note of 24 October 2000, intended to prepare for an inter-services meeting and sent for information to the CdT, the Director General of the Personnel and Administration DG of the Commission stated as follows:

‘[The old] Staff Regulations, originally, provided for the operation of a pension scheme for staff subject to the Staff Regulations whose employer drew its resources exclusively from the budget of the [Communities].

The [old] Staff Regulations … did not provide expressly for the financing of the pension scheme by an employer which is not financed by the budget of the [Communities]. However, one can legitimately ask whether the budget [of the Communities] should finance a part of the staff expenses – here pensions – of such an organisation.

For its part, the regulation establishing the CdT did not provide expressly for the payment of that contribution to the scheme, but provided that the CdT could be subsidised by the budget [of the Communities] only during the first three years of its existence, indicating therefore implicitly self-financing thereafter.

It would therefore be illogical that a self-financing agency requires subsidising by the budget [of the Communities] of the part of its staff costs corresponding just to pensions, whereas the rest of its staff costs are charged on its budget.

Consequently, and although there is no express reference either in the [old] Staff Regulations or in Regulation [No 2965/94], it seems logical that the CdT pay, as employer, a contribution to the budget [of the Communities] to discharge its liabilities in respect of pensions and transfer them to the budget [of the Communities].

The circumstances are identical to those of two self-financing agencies (OHIM and CPVO) which led them to pay to the budget [of the Communities] the employer’s contribution to the pension scheme (double that of employees), so that the scheme would take responsibility – in the long term – for the corresponding pension costs.

The problem arises from the fact that the CdT considers that the current legal basis is not binding. The Commission’s Legal Service has confirmed that, on the strictly legal level, it must be concluded that there is no provision which could expressly require the agencies to pay to the general budget their “employer’s” contribution, and the mere reference in a revenue heading of the budget seemed to be insufficient.

The discussion should therefore be directed towards the establishment of an appropriate legal basis to impose such an obligation, and one can rely only on the Staff Regulations themselves and/or the regulation establishing the CdT.

An amendment [of the old] Staff Regulations can, admittedly, be envisaged and could be made in the course of measures in preparation … However, an amendment of Regulation [No 2956/94] is also highly desirable and could be sufficient, in order to confirm that that agency is wholly self‑financing including for its staff costs, which would give an express legal basis for the payment of the CdT’s contribution to the budget [of the Communities].’

23. By note of 16 March 2001, the Director of the CdT informed the Director General of the Commission’s Personnel and Administration DG that he shared the reservations set forth in the note of 24 October 2000 as regards the existence of a legal basis capable of founding the Commission’s claim and suggested that a draft agreement be drawn up by the Commission.

24. By note of 11 October 2001, the Director General of the Commission’s Personnel and Administration DG sent a draft agreement to the CdT. Article 1 of that draft provided that the Commission would guarantee the payment of the pensions due to officials and other staff of the CdT. Article 2 stipulated, in particular, that the CdT must pay monthly to the budget of the European Union a contribution representing the entirety of the amount needed to cover the actuarial valuation of the pension rights acquired by its staff, with effect from 1 January 1998.

25. On 26 October 2001, the Board of Management of the CdT decided not to proceed with that draft agreement.

26. By note of 17 May 2005, the Director General of the Commission’s Personnel and Administration DG requested the CdT, on the basis of Article 83a(2) of the new Staff Regulations (see paragraph 2 above), to pay the sums corresponding to the employer’s contribution to the Community pension scheme in respect of the year 2005, namely a sum of EUR 1.52 million. In addition, in respect of the financial years 1998 to 2004, the CdT was requested to pay the sums already provided for, that is an amount before actualisation of EUR 6 million. Consequently, the CdT was informed that orders for payment would be issued by the Commission’s services responsible for the management and payment of individual entitlements.

27. By note of 26 August 2005, the acting Director of the CdT denied that it was a self-financing agency. In that regard, the CdT maintained that Article 10(2)(b) of Regulation No 2965/94, in its version applicable with effect from 2003, provided that it should receive a Community subsidy (see paragraph 10 above) and that it was subject to the provisions of the financial regulation applicable to agencies financed by the general budget. In addition, the CdT pointed out that it could not comply with the Commission’s claim in respect of the financial years 1998 to 2004, since the Commission had itself accepted that no legal basis justified it. The Commission was therefore requested to suspend any proceedings for recovery of the disputed debts.

28. By note of 7 March 2006, the Director General of the Translation Directorate General, in his capacity as President of the Board of Management of the CdT, gave his view on a proposal of the CdT that the dispute be submitted to an independent expert. It is clear from that note, which was sent to the acting Director of the CdT, that the Commission’s services had no objection to the CdT receiving an independent legal opinion, but they considered that such an opinion could not bind the Commission, since the dispute could be brought, should it persist, only before the Community Courts.

The contested act

29. On 21 March 2006, the Director General of the Personnel and Administration DG sent a note to the acting Director of the CdT. In that note, the Commission confirmed its claim for payment to the general budget of the employer’s contribution to the Community pension scheme in respect of the years 1998 to 2005 and requested the CdT to inform it of its reasoned position on that question within one month.

30. By note of 7 April 2006 (‘the contested act’), the acting Director of the CdT sent to the Director General of the Personnel and Administration DG an opinion adopted on the 22 March 2006 by the CdT’s Board of Management (‘the opinion of 22 March 2006’).

31. In that opinion, the CdT’s Board of Management stated that, after taking into consideration a summary drawn up on 10 January 2006 by the Director General of the Commission’s Translation Directorate General, an opinion drawn up on 7 March 2006 by the person in charge of the Legal Affairs Section of the CdT as well as a note drawn up by a law professor, it considered that it was not liable for payment of ‘employer’s contributions’ to the Community pension scheme. Nonetheless, it invited the Commission to agree, with a view to finding a definitive solution to that question, to refer it to arbitration.

Procedure and forms of order sought by the parties

32. The Commission brought the present action by application lodged at the Registry of the Court of Justice on 15 June 2006.

33. By order of 11 December 2007, the Court of Justice referred the case to the General Court.

34. The Commission claims that the Court should:

– annul the contested act;

– order the CdT to pay the costs.

35. The CdT contends that the Court should:

– dismiss the action as inadmissible or, alternatively, as unfounded;

– order the Commission to pay the costs.

Law

36. Under the terms of Article 111 of its Rules of Procedure, when an action is clearly inadmissible the General Court may, without taking further steps in the proceedings, give its decision by reasoned order.

37. In this instance, the Court considers that it has sufficient information from the documents in the case file to give a ruling without taking further steps in the proceedings.

38. As its primary argument, the CdT raises two pleas of inadmissibility of the present action. The first alleges that the contested act is not a measure which produces binding legal effects or one capable of affecting the Commission’s interests by bringing about a distinct change in its legal position. The second plea of inadmissibility raised by the CdT alleges that it is not one of the institutions listed in Article 230 EC, the legality of whose acts is subject to review by the General Court.

39. It is appropriate, first of all, to examine the first plea of inadmissibility.

Arguments of the parties

40. The CdT claims that the contested act, which consists of the sending of the opinion of 22 March 2006, cannot be challenged by an action for annulment, since Article 230 EC expressly excludes opinions from the scope of the review of legality for which it provides.

41. The CdT also invokes the case-law according to which, first, only measures which produce binding legal effects and are capable of affecting the interests of the applicants by bringing about a distinct change in their legal position constitute measures challengeable by an action for annulment under Article 230 EC and, secondly, to ascertain whether a measure produces such effects, it is necessary to look to its substance.

42. It claims that the contested act is not a decision and does not produce any binding legal effect. The opinion of 22 March 2006 contains an assessment of the question whether or not the CdT is a subsidised agency and addresses to the Commission an invitation to suspend proceedings for the recovery of the disputed debts and to submit to an arbitration, which the Commission has never formally refused in any letter addressed to the CdT. The opinion is therefore a simple taking of a position, which is not a decision, accompanied by an invitation to a subsequent negotiation with a view to finding an acceptable solution for the two parties. The CdT has never formally opposed the Commission’s claim, but has confined itself to wishing to obtain some clarifications on the part of that institution.

43. As regards the contested act, it is simply the action of sending the opinion of 22 March 2006 which does not contain any assessment on its effect.

44. The mere fact that the contested act is a reply to a claim, contained in the note from the Director General of the Personnel and Administration DG of 21 March 2006 and addressed to the acting Director of the CdT, cannot be sufficient to characterise it as a decision challengeable by an action under Article 230 EC.

45. In addition, since the Commission accepts that it cannot rely on a binding legal basis capable of founding an obligation for the CdT to pay an employer’s contribution to the Community pension scheme, the CdT submits that the reply given to a simple invitation from the Commission to pay does not constitute a decision either. Indeed, the question whether or not a statement of opinion emanating from an institution constitutes a decision challengeable by action depends, in the CdT’s submission, on the question whether the author of the contested act acted on the basis of a legal provision conferring on that author a decision‑making power and whether the act in question is capable of producing legal effects.

46. Furthermore, merely pointing out that the CdT is a partially subsidised agency cannot, in itself, affect the Commission’s interests by bringing about a distinct change in its legal position.

47. Finally, the CdT submits that it is the Commission’s actions, namely the recovery of the disputed debts by set-off and the bringing of an action for annulment, which are capable of affecting its interests by changing its legal position. The Commission, as the CdT submits, rather than bringing an action for annulment of an act devoid of legal effect, should have adopted a decision producing binding legal effects, the legality of which it could have challenged.

48. The Commission argues that, in order to determine whether an act may be the subject of a challenge in an action under Article 230 EC, it is the substance of the act in question and the intention of its author which should be taken into account. According to settled case-law, the form in which an act or decision is adopted is in principle irrelevant to the right to challenge that act or decision by way of an application for annulment.

49. The contested act replies to a request from the Director General of the Personnel and Administration DG seeking to ‘obtain from the [CdT’s] Board of Management a formal reasoned position on the payment of the employer’s part of the [CdT’s] pension contribution to the general budget since the financial year 1998’. It should therefore be regarded, in its substance and intention, as expressing the CdT’s position on the payment to the general budget of the employer’s contribution to the Community pension scheme.

50. The Commission maintains that it is a clear taking of a position and that the note of the acting Director General of the CdT enclosing that opinion constitutes an act challengeable under Article 230 EC.

51. In the Commission’s submission, the contested act’s nature as a decision also clearly appears from the context in which it occurred. Since the year 2000, the CdT has, in effect, always refused, unlike OHIM and the CPVO, to pay the employer’s contribution to the Community pension scheme. Moreover, the Commission refused any arbitration in a note of 7 March 2006 (see paragraph 28 above). In those circumstances, the CdT’s assertions that the contested act consists of an invitation to a subsequent discussion and a suggestion of arbitration are artificial.

Findings of the Court

52. According to settled case-law, only measures which produce binding legal effects and are capable of affecting the interests of third parties by bringing about a distinct change in their legal position constitute measures challengeable by an action for annulment (see, to that effect, Case T-260/04 Cestas v Commission [2008] ECR II-701, paragraph 67 and the case-law cited).

53. In addition, in order to ascertain whether a measure the annulment of which is sought is open to challenge, by an action for annulment, it is necessary to look to its substance as the form in which it is cast is, in principle, immaterial (see Cestas v Commission, paragraph 68 and the case-law cited).

54. Only an act by which its author reaches an unequivocal and definitive position, in a form enabling its nature to be identified, constitutes a decision challengeable by an action for annulment, provided, however, that the decision is not the confirmation of a prior act (see, to that effect, Case 44/81 Germany and Bundesanstalt für Arbeit v Commission [1982] ECR 1855, paragraph 12). In cases where the contested act is merely confirmatory, an action is admissible only if the act confirmed is challenged within the prescribed time-limits (see Case T‑227/95 AssiDomän Kraft Products and Others v Commission [1997] ECR II‑1185, paragraph 29 and the case-law cited). Thus, where an applicant lets the time-limit for bringing an action against a decision unequivocally laying down a measure with legal effects affecting his interests and binding on him expire, he cannot start time running again by asking the author of the measure in question to reconsider its decision and bringing an action against the refusal confirming the decision previously taken (see Case T-514/93 Cobrecaf and Others v Commission [1995] ECR II-621, paragraph 44 and the case-law cited).

55. By contrast, a written expression of opinion or a simple statement of intention cannot constitute a decision challengeable by an action for annulment, since it cannot produce legal effects or is not intended to produce such effects (see, to that effect, Case 133/79 Sucrimex and Westzucker v Commissio n [1980] ECR 1299, paragraphs 15 to 19, and Case 114/86 United Kingdom v Commission [1988] ECR 5289, paragraphs 12 to 15).

56. It has been held, moreover, as regards actions for annulment brought by individuals, that a letter sent in response to a request made by the addressee does not necessarily constitute a decision enabling that addressee to bring an action for annulment (see, to that effect, Case C‑25/92 Miethke v Parliament [1993] ECR I‑473, paragraph 10).

57. It is in the light of those principles that it must be determined whether the contested act is challengeable by an action for annulment, which the CdT denies on the ground that the contested act is not a decision and produces no binding legal effect.

58. First of all, it follows from the case-law (see paragraph 53 above) that only the substance of the contested act matters, and not, in principle, its form. Indeed, the form in which an act is adopted cannot change its nature (see Cas e T-3/93 Air France v Commission [1994] ECR II‑121, paragraph 57 and the case-law cited) and is not, therefore, decisive. None the less, the General Court may take into consideration the form in which acts, the annulment of which is sought, are adopted inasmuch as it could help to enable their nature to be identified (see, to that effect, Germany and Bundesanstalt für Arbeit v Commission , paragraph 12).

59. It is appropriate therefore to ascertain, at the outset, whether the contested act, by its substance, first, is capable of producing legal effects because of its author’s powers (see, to that effect, Miethke v Parliament , paragraphs 15 and 16) and, second, actually gives rise to such effects.

60. First, it follows from the division of powers between the CdT’s Director and its Board of Management, established by Articles 9 and 13 to 15 of Regulation No 2965/94 (see paragraphs 5, 9 and 11 above), that the decision of principle relating to the payment of CdT’s contribution to the Community pension scheme falls within the Board of Management’s powers. It, as the Commission correctly submits, was therefore capable of adopting a decision capable of affecting the legal position of a third party, namely the Community’s financial interests.

61. Secondly, the contested act consists in a simple note covering the sending of the opinion of 22 March 2006. Although, as the Commission claims, it is a reply to the Commission’s invitation to take a position on the principle of payment of a contribution to the financing of the Community pension scheme by the CdT, that note is, by itself, devoid of legal effect. Nonetheless, it cannot be ruled out that the act transmitted, itself, affects the interests of the Commission by changing its legal position. It is therefore appropriate to examine the substance of the opinion of 22 March 2006.

62. In that regard, that document is entitled ‘Opinion’ which, as the CdT points out, implies, as a rule, that such an act cannot be subject to review as regards its legality. None the less, since it is to the act’s substance and not its form that we must look (see paragraphs 53 and 58 above), the mere fact that it is entitled ‘Opinion’ cannot lead to the conclusion, for that reason alone, that the action is inadmissible. On the other hand, that title has to be taken into account, without attaching to it decisive importance, in order to determine, for the purposes of interpreting the content of the act, whether it is a decision.

63. In that opinion, the CdT’s Board of Management, in particular, stated as follows:

‘The [CdT’s] Board of Management has noted with interest various documents sent to it concerning the rules applying to the payment of employer’s contributions to the Community pension scheme for the staff of the [CdT] …

According to [two] opinions, it seems that the [CdT], one of whose duties is participating in the Inter-Institutional Commission for Translation and Interpretation and which receives, in that respect, a subsidy from the general budget of the [Union] is certainly a subsidised agency, whereas the Commission does not share that view. Consequently, the [CdT’s] Board of Management considers that the [CdT] is not liable for the payment of employer’s pensions under the Community pension scheme.’

64. In the circumstances of this case, the last sentence of the quotation in paragraph 63 above does not constitute a definitive taking of position in the nature of a decision within the meaning of the case-law cited in paragraph 54 above.

65. In fact, and although the Commission could, on the basis of Article 72(2) of Regulation No 1605/2002, have adopted a decision obliging the CdT to pay the sums for which it considered that agency liable, the Commission’s services confined themselves to requesting, on several occasions, the CdT to pay, voluntarily, a contribution to the financing of the Community pension scheme in respect of the financial years 1998 to 2005. In reply to those requests, the CdT asked the Commission’s services, on numerous occasions, what legal basis was capable of justifying the payment of the contribution in question (see paragraphs 15, 18, 20, 23 and 27 above).

66. In that context, in the opinion of 22 March 2006, the CdT’s Board of Management confined itself to informing the Commission that it considered that the Commission had not given a satisfactory reply to its repeated requests that the Commission specify the legal basis on which it relied to claim that payment. In addition, the opinion of 22 March 2006 concludes with an invitation to pursue discussions and with a suggested procedure to settle the dispute. In those circumstances, the CdT’s Board of Management’s position was not definitive and could not entail binding legal effects capable of affecting the interests of third parties by bringing about a distinct change in their legal position.

67. It is appropriate also to observe that, even assuming that the position taken in the opinion of 22 March 2006 could be regarded, on the contrary, as entailing such legal effects, the CdT’s Board of Management had already, on 11 April 2000 (see paragraph 18 above), then on 27 October 2000 (see paragraph 21 above), and on 26 October 2001 (see paragraph 25 above), in similar unequivocal terms, denied being liable for any employer’s contributions to the Community pension scheme. In those circumstances, the opinion of 22 March 2006 was purely confirmatory by reference to earlier positions taken by the CdT’s Board of Management. However, since those positions were not challenged within the period prescribed for bringing an action for annulment, the present action is inadmissible by virtue of the case-law referred to in paragraph 54 above.

68. Secondly, none of the Commission’s arguments can establish that the action is admissible.

69. First, it is true that the contested act is a reply to a request, sent by the Director General of the Personnel and Administration DG (see paragraph 29 above), seeking to obtain from the CdT’s Board of Management its ‘formal reasoned position’ on the payment of the employer’s contribution to the Community pension scheme in respect of the financial years 1998 to 2005. However, any communication emanating from a Community agency in reply to a request formulated by its addressee does not necessarily constitute a decision challengeable by an action for annulment (see, to that effect, Miethke v Parliament , paragraph 10).

70. Secondly, the fact that, in the context in which it occurred, the invitation contained in the opinion of 22 March 2006 to pursue negotiations with the Commission and to jointly submit to arbitration is, according to the Commission, artificial does not mean that the suggestion can be taken as purely dilatory. Indeed, as was observed in paragraph 65 above, it was open to the Commission to adopt a decision binding the CdT to pay the contributions for which the Commission considered that agency was liable. In that case, the CdT would have been the addressee of a decision changing its legal position, against which it could, if it had considered it was justified, bring an action for annulment.

71. It follows from the foregoing that the first plea of inadmissibility must be upheld. Therefore, without it being necessary to consider the CdT’s second plea of inadmissibility, the present action must be dismissed as manifestly inadmissible.

Costs

72. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful and the CdT has applied for costs, the Commission must be ordered to pay the costs.

Operative part

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby orders:

1. The action is dismissed as manifestly inadmissible;

2. The European Commission is to pay the costs.

Luxembourg, 12 February 2010.