OPINION OF MR ADVOCATE-GENERAL CAPOTORTI

DELIVERED ON 3 FEBRUARY 1977 (*1)

Mr President,

Members of the Court,

1.The subject-matter of my opinion is limited: it consists exclusively in the question of the admissibility of the application submitted on 8 June 1976 by Mr Andreas Reinarz against the Council and the Commission. As you will recall, the Second Chamber decided to consider first of all the objections of inadmissibility put forward by the defendants, without regard to the substance of the case, which the parties have not yet been required to debate. I must, however, summarize the circumstances in which the application arose and the claims submitted by Mr Reinarz.

The applicant had for a long period been an official of the Commission when Regulation No 2530/72 of the Council of 4 December 1972 was issued laying down inter alia special measures (and special financial incentives) for the termination of service of officials of the Community. On 1 May 1973, the service of Mr Reinarz was terminated pursuant to this regulation. Some time afterwards he went to reside in Canada where he is at present and accordingly requested that the allowance payable to him under Article 3 (1) of the said regulation, which was expressed in Belgian francs, should be paid to him in Canadian dollars (penultimate subparagraph of Article 3 (3)). This gave rise to the subject of the application, namely the question of the rate of exchange to be applied in converting the allowance expressed in Belgian francs into foreign currency.

The Community provisions are clear on this matter. The said Article 3 (3) provides in the last subparagraph that ‘allowances [paid in a currency other than Belgian francs] (*2) shall be paid on the basis of the values referred to in Article 63, third subparagraph, of the Staff Regulations’. The latter provision lays down that remuneration paid in a currency other than that of the country where the Community which he [the official] serves has its provisional seat shall be calculated on the basis of the par values accepted by the International Monetary Fund, which were in force on 1 January 1965. The competent officials of the Commission have naturally applied those provisions to Mr Reinarz.

On the other hand the applicant maintains that the conversion of the allowance into Canadian dollars must be effected ‘on the basis of the par value of the Belgian franc against the Canadian dollar at the time of payment’. He does so because the rules mentioned above are ‘entirely arbitrary, discriminatory and unfair’ and violate the principle of equality of treatment of officials; they must therefore be declared void or at least inapplicable to the applicant. There is also ‘a failure to adopt measures’ on the part of the Council since it has not adapted the weighting laid down for Belgium to the living conditions in Canada. The application accordingly concludes with the request that the last subparagraph of Article 3 of Regulation No 2530/72 together with the third subparagraph of Article 63 of the Staff Regulations should be declared void or at least inapplicable to the present case, and with a claim for compensation for damage suffered as a result of the application of the two provisions referred to.

Each of the two defendants submitted in the appropriate document an objection of inadmissibility pursuant to Article 91 (1) of the Rules of Procedure. In particular the Commission objected that the applicant failed to lodge a complaint within the meaning of Article 90 (2) of the Staff Regulations of Officials and that accordingly an appeal within the meaning of Article 91 (2) was inadmissible. The Council added that, whilst the applicant wished to base his case on Article 173 of the EEC Treaty, rather than Article 91 of the Staff Regulations of Officials, the conditions prescribed by the second paragraph of the former article do not obtain and that, furthermore, it is impossible to rely upon the second paragraph of Article 215 of the EEC Treaty both because the claim for compensation involves consideration of the validity or otherwise of the contested provisions and is thus connected with the application for annulment and because in any case the only means of redress available to an official is that in Articles 90 and 91 of the Staff Regulations, to the exclusion of an application based on Article 215 of the EEC Treaty.

Finally the inadmissibility of the application means that it is impossible to invoke the inapplicability of the regulation in question as provided for in Article 184 of the EEC Treaty.

2.Even although the applicant no longer has the status of an official of the Community, there is no doubt that his status as a former Community official is a condition precedent to the application and that the subject-matter of the application comes within the scope of the Staff Regulations. In this connexion it is worthy of note that, in its final recital of the preamble, the said Regulation No 2530/72 specifies that ‘special measures concerning the Staff Regulations of the European Communities should be adopted’. Consequently, the proper solution would have been for the applicant to avail himself of the procedure laid down in Article 179 of the Treaty of Rome and in Article 91 (1) of the Staff Regulations of Officials, observing, of course, the conditions laid down in Article 91 (2). This was not done and, in the statement lodged on 15 September 1976, the applicant concedes that he had not availed himself of the means of redress under the Staff Regulations referred to in Article 179 since he considered that the only remedy open to him was that referred to in Article 178 of the Treaty. I shall consider this view a little later. Nevertheless it remains henceforth established that, if the application is considered from the point of view of Article 179 of the EEC Treaty, it is inadmissible since it is not disputed that Mr Reinarz has failed to submit a complaint to the Commission within the meaning of Article 90 (2).

3.Articles 178 and the second paragraph of Article 215 of the Treaty are the basis upon which the applicant contends for the admissibility of his application. As the Court is aware these articles form the basis of its jurisdiction to take cognizance of disputes concerning compensation for damage on the ground of non-contractual liability. In the present case two questions must be resolved: whether, in the application, the applicant is in fact seeking to establish the non-contractual liability of the Community and, more generally, whether officials (or former officials) may be permitted to institute proceedings under Article 178 of the Treaty when the subject-matter of such proceedings falls within the scope of the Staff Regulations of Officials.

I consider that the first of these questions should be answered in the negative. On the applicant's own admission, the loss of which he complains originates not from the adoption of Regulation No 2530/72 but from its application to his own case: in the said statement of 15 September 1976 it is, in fact, declared that the proceedings instituted ‘relate to a loss which recurred only a considerable time after the entry into force of Regulation No 2530/72 which constitutes the cause of the loss’. Regulation No 2530/72 was applied to Mr Reinarz in the context of a relationship between him and the Community which was the direct result of the termination of his service. Even if such a relationship is to be defined in terms of the Staff Regulations and not in terms of contract, it seems to me clear that the scope of such a relationship differs from that of non-contractual liability: what really constitutes the subject-matter of the dispute is the way in which the Commission performs a duty arising from provisions in the nature of staff regulations, which corresponds to the former official's individual right to payment of the allowance.

The second question should also be answered in the negative. Whilst it is true that, pursuant to Article 179, the Court of Justice has jurisdiction in any dispute between the Community and its servants (that is to say, ‘within the limits and under the conditions laid down in the Staff Regulations or the Conditions of Employment’) it seems logical to infer from this that any dispute which is begun by a person who relies upon his status as a servant or former servant of the Community and which raises a problem to be resolved under the conditions applicable to servants of the Community must follow exclusively the procedure laid down in Article 179 and in Articles 91 and 92 of the Staff Regulations not only when the application is for the annulment of a measure but also when compensation for damage is claimed. The fact that reference is made in Article 91 (1) to disputes between the Community and any person to whom these Staff Regulations apply ‘regarding the legality of an act adversely affecting such a person’ does not preclude the right to submit applications for compensation for damage within the framework of the said Article 91. I refer specifically to claims for compensation which turn on the illegality of a Community measure, as in the present case. Since in the disputes mentioned in Article 179 the Court has unlimited jurisdiction it may in fact give a ruling in respect both of the validity of the contested measure and on compensation for damage jointly or as alternatives.

The Court of Justice has already had occasion to give a ruling on this point. In its judgment of 22 October 1975 in Case 9/75 Mayer Burckbardt v Commission ([1975] ECR 1171 et seq.) it was stated inter alia, in ground of judgment No 7, that ‘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’. Below, in ground of judgment No 10 of the same decision, it was stated that in the context of disputes between officials and the institutions, Articles 90 and 91 of the Staff Regulations make no distinction between actions for annulment and actions for damages.

Nor can it be validly objected that the Court of Justice, in its judgment of 5 April 1973 in Case 11/72, Luigi Giordano v Commission ([1973] ECR 417 et seq.), declared admissible an application by a former servant of the Commission pursuant to the second paragraph of Article 215 of the Treaty. As is clear from ground of judgment No 1 of that judgment this application was really for a declaration that the Community was liable because the Commission had supplied unfavourable information regarding the applicant to the Court thereby preventing him from obtaining a post at the Court of Justice. The damage for which compensation was claimed was that allegedly occasioned ‘by reason of the Commission's behaviour subsequent to the expiry of the [first] contract of employment’ (ground of judgment No 4). Thus, the person concerned was simply in the position of an applicant for a post with the Community. His former position as a temporary official was relevant in that it made it possible for the Commission to supply information to the Court. It is clear that, since the person concerned in that case had not obtained the post which he wanted (or participated in any competition which had been announced in accordance with the Staff Regulations), it was impossible to submit a claim for compensation within the framework of the Staff Regulations: the situation would have been different in the case of a claim for compensation linked, for example, to an allegation that the official had been unlawfully dismissed from his first post with the Commission.

The judgment of the Court of Justice of 15 December 1966 in Case 59/65, Schreckenberg v Commission ([1966] ECR 543) fully accords with the point of view which I have adopted. In that case an official of the EEC submitted an appeal for the annulment of a negative decision of the Commission and a claim for damages, both under Article 91 of the Staff Regulations. The Court declared that the first application was inadmissible and then ruled that the claim for compensation was also inadmissible, and declared: ‘Although a party may take action by means of a claim for compensation without being obliged by any provision of law to seek the annulment of the illegal measure which causes him damage, he may not by this means circumvent the inadmissibility of an application which concerns the same illegality and has the same financial end in view’.

4.It has now become pointless to consider whether the application is admissible under the second paragraph of Article 173 or Article 184 of the EEC Treaty. Indeed it seems to me that the considerations set out with regard to the exclusive nature of the jurisdiction laid down in Article 179 in respect of applications submitted by officials or former officials of the Community regarding their conditions of employment must suffice to rule out recourse to procedures other than those specified in the said articles. However, given the general nature of the provision whose annulment is sought in the present case (the last subparagraph of Article 3 (3) of Regulation No 2530/72) no ‘decision’ was addressed to the applicant and contested by him; it is equally certain that the regulation in question cannot be described as in the ‘form’ of a regulation and really of direct and individual concern to Mr Reinarz. Indeed the applicant himself has never maintained this. Finally, with regard to Article 184, this provision can be taken into consideration only on the footing that there are ‘proceedings in which a regulation of the Council or of the Commission is in issue’: the question of admissibility must, therefore, be considered in relation to the action instituting such proceedings and an unfavourable ruling in that action affects the particular subject-matter of Article 184.

5.I accordingly conclude by recommending that the Court should for the foregoing reasons declare inadmissible the application submitted by Mr Reinarz on 8 June 1976 against the Council and the Commission.

In accordance with Article 70 of the Rules of Procedure each party should bear its own costs.

(*1) Translated from the Italian.

2(Translator's note: the phrase in brackets does not appear in the English translation in the Official Journal.)