Judgment_paragraph 2. · Günter Bruckner v European Commission and Council of the European Union (799/79)

2.In its application for a decision on a preliminary objection, the Council contends that an application based on Article 91 of the Staff Regulations is admissible only if it complies with the rules laid down in Articles 90 and 91 of the Staff Regulations, which this application does not. First, the applicant has never submitted to the Council a complaint within the meaning of Article 90 (2). Secondly, the Council cannot be regarded as the appointing authority. Therefore Regulations Nos 3085 and 3086/78 do not amount to acts adversely affecting the applicant which may be challenged by way of the action provided for in Article 91. Nor can an action for a declaration that they are void be founded on Article 146 of the EAEC Treaty. Regulations Nos 3085 and 3086/78 apply to all Community officials whilst Regulation No 3087/78 applies to all officials employed in Italy. Therefore it may not be maintained that they are “decisions” addressed to the applicant or decisions which although in the form of a regulation are of “direct and individual concern” to him. In any case the application was out of time.The Council considers the applicant's claim concerning non-contractual liability likewise inadmissible and recalls that the criteria which have been laid down in the decisions of the Court (judgment of 20 October 1975 in Case 9/75 Meyer-Birckhardt [1975] ECR 1171) as regards actions for damages between the Communities and their servants justify its conclusion that the action for damages is inadmissible for the same reasons as those in the case of an action for annulment based on Article 91 of the Staff Regulations.As to the request for a declaration that the regulations are inapplicable the Council takes the view that an objection of illegality under Article 156 of the EAEC Treaty (Article 184 of the EEC Treaty) is not in itself sufficient to enable the Council to be sued solely on the ground that it is the institution which adopted the measure alleged to be unlawful. A declaration that a regulation is inapplicable consequent upon an objection of illegality is merely an incidental remedy the effects of which are limited. The Court has already stated that the annulment of an individual decision based on the finding that the general decisions on which it is based are defective affects the consequences of the general decision only in so far as the latter are given specific expression in the individual decision which has been annulled. Thus, in cases concerning the Staff Regulations the Court has annulled individual decisions pursuant to Article 184 without declaring that the provisions of the Staff Regulations of Officials which constituted their legal basis were themselves void (judgments of 7 June 1972 in Sabbatini née Bertoni, Case 20/71 [1972] ECR 345 and Chollet, née Bauduin, Case 32/71 [1972] ECR 363).