Avis juridique important

61988J0137

European Court reports 1990 Page I-00369

Summary

Parties

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,

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

Grounds

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 .

10. As regards the Commission' s contention that it has discharged its duty under Article 155 of the EEC Treaty by bringing actions against the Kingdom of Belgium under Articles 169 and 171 of the Treaty, 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 .

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 .

Decision on costs

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 .

Operative part

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 .