Judgment_paragraph 2 · Max Kögler v Court of Justice of the European Communities (C-82/98 P)

2The legal background and the facts giving rise to the dispute are set out in the contested order as follows:1 The applicant is a former Director of the Translation Directorate of the Court of Justice of the European Communities who was retired with effect from 1 December 1987. Following his retirement he has always lived in Konz, in Germany.2 Under Article 82(1) of the Staff Regulations of Officials of the European Communities (hereinafter “the Staff Regulations”), the pensions of former officials are to be weighted at the rate fixed for the country where the recipient proves he has his residence.3 After Germany was reunified, Berlin became the capital of Germany in October 1990.4 In Case T-536/93 Benzler v Commission [1994] ECRSC II-777 and Case T-64/92 Chavane de Dalmassy and Others v Commission [1994] ECRSC II-723 the Court of First Instance held that Article 6(2) of, first, Council Regulation (EEC, ECSC, Euratom) No 3834/91 of 19 December 1991 adapting, with effect from 1 July 1991, the remuneration and pensions of officials and other servants of the European Communities and the weightings affecting that remuneration and those pensions (OJ 1991 L 361, p. 13) and, secondly, Council Regulation (EEC, ECSC, Euratom) No 3761/92 of 21 December 1992 adapting, with effect from 1 July 1992, the remuneration and pensions of officials and other servants of the European Communities and the weightings affecting that remuneration and those pensions (OJ 1992 L 383, p. 1), in so far as they fixed a provisional weighting for Germany on the basis of the cost of living in Bonn, infringed the principle set out in Annex XI to the Staff Regulations that the weighting for each Member State should be fixed by reference to the cost of living in its capital, since Berlin had been the capital of Germany since 3 October 1990. Accordingly the Courtannulled the applicants' pay and pension slips in those cases as based on those regulations.5 The weightings, described in a footnote in the abovementioned regulations as “provisional figure” or stated to be applicable “without prejudice to the decisions which the Council may be required to adopt following a proposal from the Commission”, were not subsequently amended.6 Following the judgments referred to above, several meetings were held within the Council to determine the measures to be adopted in execution thereof. Then, on 19 December 1994, the Council adopted Regulation (ECSC, EC, Euratom) No 3161/94 adapting, as from 1 July 1994, the remuneration and pensions of officials and other servants of the European Communities and the weightings applying to that remuneration and those pensions (OJ 1994 L 335, p. 1). Article 6(1) of that regulation provides, with effect from 1 July 1994, for a general weighting for Germany based for the first time on Berlin and also for special weightings for Bonn, Karlsruhe and Munich.7 Subsequently, Council Regulation (EC, Euratom, ECSC) No 2963/95 of 18 December 1995, adapting, with effect from 1 July 1995, the remuneration and pensions of officials and other servants of the European Communities and the weightings affecting such remuneration and pensions (OJ 1995 L 310, p. 1), confirmed the fixing of a general weighting for Germany based on the cost of living in Berlin, with retroactive effect from 1 July 1995.8 Since the applicant considered that the Court should have applied to his pension slips for the period 1 July 1991 to 30 June 1994 the weightings based on the cost of living in Berlin rather than establishing them on the basis of the cost of living in Bonn, by a letter of 29 January 1996 he submitted a request under Article 90(1) of the Staff Regulations for his pension to be redetermined with retroactive effect.9 The applicant's request was rejected by decision of 12 March 1996 of the Registrar of the Court of Justice acting in his capacity as appointing authority.10 On 10 May 1996 the applicant submitted a complaint to the same effect to the Complaints Committee of the Court (hereinafter “the Committee”); he further requested that the Court should designate a date in the near future when the desired calculation would be made.11 That complaint was rejected on 1 July 1996 on the ground that it had been submitted out of time and was therefore inadmissible. The acts adversely affecting the applicant within the meaning of Article 90(2) of the Staff Regulations were in this instance the pensions slips for the period in question. Accordingly, the applicant allowed the periods for bringing staff actions to expire.’