Chehab Razzouk and Abbas Beydoun v European Commission (75/82, 117/82)

1. Case 75/82

As regards the claim for an orphan's pension on behalf of Michel Razzouk, the Commission contends, in its defence, that it is pointless because such a pension was granted as from 1 May 1981. In its rejoinder, the Commission points out that the applicant has not contested its initial observation on that subject.The Commission is of the opinion that in contesting the decision of 25 November 1981, which expressly rejected the..., complaint lodged by the applicant pursuant to Article 90 (2) of the Staff Regulations against the decision of 3 July 1981 rejecting his claim of 3 April 1981 for a survivor's pension as a result of the death of his wife, the applicant has contested an act which cannot in itself be contested. The Commission cites on this point the judgments of the Court of 28 May 1980 (Joined Cases 33 and 75/79 Kuhner v Commission [1980] ECR 1677) and of 9 December 1982 (Case 191/81 Plug v Commission [1982] ECR 4229).The Commission points out however that on other occasions the Court has been more liberal, taking the view that the essential element was that the complaint and the application had been lodged within the prescribed time-limits, as is the case here. That being so, the Court was prepared to interpret the application directed formally against the rejection of the complaint as being also directed against the decision which gave rise to the complaint. The Commission cites in this connection the judgment of the Court of 21 May 1981 (Case 156/80, Morbelli v Commission [1981] ECR 1357) and the opinions of the Advocates General in Case 806/79 (Geriti v Commission, [1980] ECR 3531) and Case 186/80 (Suss v Commission, [1981] ECR 2058).The Commission does not draw any definitive conclusions from the foregoing observations on admissibility, but it observes that it would be inclined to interpret the application as being implicitly directed against its initial decision.Finally, the Commission observes that the alternative claim for reimbursement of the pension contributions paid by the applicant's wife during her working life is in fact a new claim which had not been the subject of a complaint before the lodging of the application. The Commission cites the judgments of 9 March 1978 (Case 54/77, Hcrpels v Commission [1978] ECR 585) and of 20 November 1980 (Case 806/79, Gérin v Commission, [1980] ECR 3515), in which the Court was particularly liberal, and, while being favourably disposed towards the admissibility of Mr Razzouk's application, it leaves this point to the wisdom of the Court.The applicant contends that his claim for the annulment of the Commission's decision of 25 November 1981 implies the annulment of the decision of 3 July 1981 because the former expressly confirmed the latter.As regards the claim for reimbursement of the pension contributions, this is not, in the applicant's view, a new claim because the pension contributions constitute the consideration for the pension rights which form the subject-matter of the principal claim. If the Court does not grant him a widower's pension, the Commission will have unjustly enriched itself and it is thus perfectly normal to seek compensation for this as an alternative to the pension.