61988J0137

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1.Officials - Administration' s obligation to provide assistance - Scope

( Staff Regulations of Officials, Art . 24 )

2.Officials - Actions - Jurisdiction of the Court - Limits

( EEC Treaty, Art . 179 )

1.Whilst it is true that in order to discharge its obligation to provide assistance under Article 24 of the Staff Regulations, the administration enjoys a discretion, subject to review by the Court, regarding the choice of ways and means, that obligation is particularly pressing with respect to complex litigation concerning pension rights, since the Commission has for a considerable period been aware of the reasons for the requests for technical and financial assistance made by officials in order bring such actions against a Member State as may be appropriate to settle the problem of the transfer of pension rights acquired by them under a pension scheme of that State .

Any Commission decision rejecting such requests must therefore be annulled .

2.In proceedings brought by officials under Article 179 of the EEC Treaty, it is not for the Court to decide whether the Commission has properly fulfilled its duty of supervision under, inter alia, Article 155 of the EEC Treaty .

In Case C-137/88

Marijke Schneemann and 408 other officials of the Commission of the European Communities, represented by Jean-Noeel Louis, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Yvette Hamilius, 10 boulevard Royal,

applicants,

v

Commission of the European Communities, represented by Sean Van Raepenbusch, a member of its Legal Department, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of its Legal Department, Wagner Centre, Kirchberg,

defendant,

APPLICATION for the annulment of the Commission' s decision to refuse the applicants its financial and technical assistance in the dispute between them and the Belgian State concerning the transfer of pension rights acquired under a Belgian pension scheme,

THE COURT ( Second Chamber )

composed of : O . Due, acting as President of Chamber, F . A . Schockweiler ( President of Chamber ) and G . F . Mancini, Judge,

Advocate General : G . Tesauro

Registrar : J.-G . Giraud

having regard to the Report for the Hearing and further to the hearing on 26 September 1989,

after hearing the Opinion of the Advocate General delivered at the sitting on 21 November 1989,

gives the following

Judgment

1 By application lodged at the Court Registry on 16 May 1988, Marijke Schneemann, an official of the Commission of the European Communities ( hereinafter referred to as "the Commission "), and 408 other officials of the Commission brought an action under Article 91 of the Staff Regulations of Officials of the European Communities ( hereinafter referred to as "the Staff Regulations ") for annulment of the Commission' s decision of 13 July 1987 rejecting their request under Article 90(1 ) of the Staff Regulations for "technical and financial assistance to bring any proceedings before the Belgian courts and tribunals and, if necessary, before the Court of Justice of the European Communities for the purpose of settling the problem of transferring pension rights acquired under a Belgian pension scheme ".

2 In support of their application the applicants claim that, by adopting the contested decision, the Commission infringed, first, Article 24 of the Staff Regulations and, secondly, the general principle of equality as between officials . They seek annulment of the contested decision and an order that the Commission provide them with the assistance requested by them .

3 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

4 It should first be recalled that, by its judgment of 20 October 1981 in Case 137/80 Commission v Kingdom of Belgium (( 1981 )) ECR 2393, the Court declared that, by refusing to adopt the measures necessary for the transfer to the Community pension scheme of sums due to be repaid under the Belgian pension scheme or the actuarial equivalent of retirement pension rights acquired thereunder, as provided for by Article 11(2 ) of Annex VIII to the Staff Regulations of Officials of the European Communities, the Kingdom of Belgium had failed to fulfil its obligations under the EEC Treaty . Furthermore, by its judgment of 3 October 1989 in Case 383/85 Commission v Kingdom of Belgium (( 1989 )) ECR 3069, the Court declared that, by failing to comply with the judgment of the Court of 20 October 1981, the Kingdom of Belgium had failed to fulfil its obligations under the EEC Treaty .

5 In support of their submission concerning infringement of Article 24 of the Staff Regulations, the applicants claim that the conditions for the application of that article are satisfied and that, in view of the Belgian State' s persistent default, only an action before the national courts - which are required to apply the Staff Regulations in so far as, like any regulation, they constitute a measure having direct effect in national law - will enable them to secure the transfer of their pension rights .

6 The Commission submits, in the first place, that the obligation to provide assistance imposed by Article 24 of the Staff Regulations is an obligation to use all due diligence and that the choice of the appropriate measures to adopt in discharging the duty of assistance is a matter for its discretion .

7 The Commission then contends that Article 24 of the Staff Regulations has not been infringed . It states in the first place that it brought actions against the Kingdom of Belgium under Articles 169 and 171 of the EEC Treaty, thus performing its supervisory duty under Article 155 of the EEC Treaty and, secondly, that it gave technical and financial assistance to a former official of the Communities who brought actions before the Belgian courts in order to secure transfer of his pension rights . Finally, the Commission rejects the view that only an order enforceable before the Belgian courts is capable of bringing about the transfer of pension rights which is sought .

8 It must first be observed that in the present case the conditions for the application of Article 24 of the Staff Regulations are fulfilled, a fact not denied by the Commission . It is the applicants' status as officials which has given rise to the applications for the transfer of pension rights which have always been refused by the Belgian authorities .

9 Whilst it is true that in order to discharge its obligation to provide assistance the administration of the European Communities enjoys a discretion, subject to review by the Court, regarding the choice of ways and means, it must be pointed out that, in the present case, that obligation is particularly pressing because, first, the Commission has for a considerable period been aware of the reasons for the requests for assistance and, secondly, litigation in the matter of pension rights is complex . It unavoidably involves actuarial calculations which cannot be carried out by an individual official who has neither the information nor the means necessary for that purpose or for evaluation of the results to be taken into consideration .

10 As regards the Commission' s contention that it has discharged its duty under Article 155 of the EEC Treaty by bringing actions based on Articles 169 and 171 of the Treaty against the Kingdom of Belgium, it must be emphasized that, in proceedings brought by officials under Article 179 of the EEC Treaty, it is not for the Court to decide whether the Commission has properly fulfilled its duty of supervision under, inter alia, Article 155 of the EEC Treaty ( see the judgment of 15 March 1984 in Case 28/83 Forcheri v Commission (( 1984 )) ECR 1425, paragraph 12 ).

11 With regard more particularly to the Commission' s argument that it is necessary, in order to decide whether the submission that the Commission has infringed Article 24 of the Staff Regulations is founded, to take account of the proceedings which it brought against the Kingdom of Belgium for failure to fulfil its obligations under the Treaty, it must be observed that the Treaty entrusts to the Commission, to the exclusion of the other Community institutions, the right of action provided for in Article 169 of the EEC Treaty . To accept the Commission' s argument would be tantamount to varying the purview of Article 24, in response to identical requests for assistance, depending on whether they were made by officials of the Commission or those of an institution not vested with the right to institute proceedings under Article 169 of the EEC Treaty . Such a result would be incompatible with the principle of equal treatment of officials and, consequently, the Commission' s argument in that respect must be rejected .

12 As regards the argument that the Commission has satisfied its duty of assistance under Article 24 of the Staff Regulations by giving financial and technical assistance to a former official, it must be noted first that the decision which the former official, assisted by the Commission, may expect from the national court will be effective only as regards the parties to those proceedings and will not benefit the other officials and, secondly, that any actuarial calculations of pension rights made for the purpose of assisting that former official cannot be applied generally and used without distinction for all the persons entitled to the transfer of pension rights . Moreover, those very complex calculations require the active cooperation of specialized departments within the Community administration, so that the officials concerned can decide whether it would be to their advantage to institute legal proceedings .

13 With respect to the Commission' s arguments concerning the uncertain outcome of any proceedings brought before the national courts by the applicants in the present case and the difficulties which they might experience in securing the enforcement of judicial decisions in their favour, it need merely be stated that the obligation to provide assistance imposed by Article 24 of the Staff Regulations cannot be influenced by conjectures as to the results of such legal proceedings as might be brought . It must also be observed that the Commission gave technical and financial assistance to a former official without knowing for certain what the outcome of the proceedings in question might be .

14 It follows that none of the arguments relied on by the Commission to justify its withholding technical and financial assistance from the applicants is well founded and therefore the Commission' s decision rejecting the applicants' request for assistance under Article 24 of the Staff Regulations must be annulled .

15 In view of the foregoing, the applicants' second submission has become devoid of purpose .

16 Finally, it must be stated that, as the Court has consistently held ( see, most recently, its judgment of 13 December 1989 in Case 100/88 Oyowe and Traore v Commission (( 1989 )) ECR 4285 ), the Court has no jurisdiction to issue injunctions to the administration when carrying out the review of legality entrusted to it by Article 91 of the Staff Regulations, and that the obligations incumbent on the administration can derive only from the annulment, under Article 176 of the EEC treaty, of a measure adopted by it . The claim that the Court should order the Commission to provide the requested assistance must therefore be dismissed as inadmissible .

Costs

17 Under Article 69(2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party' s pleading . Since the Commission has failed in its submissions, it must be ordered to pay the costs .

On those grounds,

THE COURT ( Second Chamber )

hereby

( 1)Annuls the Commission' s decision of 13 July 1987 rejecting the applicants' request for assistance under Article 24 of the Staff Regulations;

( 2)Orders the Commission to pay the costs .