European Commission v Council of the European Union.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2013:547
• Court: Court of Justice (European Union)
• Docket Number: C‑196/12
• Date: 12 September 2013
• Procedure Type: Recurso por omisión - inadmisible
• Celex Number: 62012CC0063

OPINION OF ADVOCATE GENERAL

BOT

delivered on 12 September 2013 ( 1 )

Case C‑63/12

European Commission

v

Council of the European Union

‛Action for annulment — Staff Regulations — Articles 64 and 65 — Articles 1, 3 and 10 of Annex XI — Annual adjustment of remuneration and pensions and the correction coefficients — Proposal for a regulation on adjustment according to the ‘normal’ method — Council decision not to adopt the proposal — Concept of a ‘challengeable act’ — Conditions for applying the exception clause’

Case C‑66/12

Council of the European Union

v

European Commission

‛Action for annulment — Action for failure to act — Staff Regulations — Articles 64 and 65 — Articles 1, 3 and 10 of Annex XI — Annual adjustment of remuneration and pensions and the correction coefficients — Proposal for a regulation on adjustment according to the ‘normal’ method — Action brought by the Council — Decision to bring proceedings before the Court — Majority rule applicable’

and

Case C‑196/12

European Commission

v

Council of the European Union

‛Action for failure to act — Staff Regulations — Articles 64 and 65 — Articles 1, 3 and 10 of Annex XI — Annual adjustment of remuneration and pensions and the correction coefficients — Proposal for a regulation on adjustment according to the ‘normal’ method — Council decision not to adopt the proposal — Failure to act’

Table of contents

I – Introduction

II – Relevant provisions of the Staff Regulations

III – Procedure before the Court

A – Case C‑63/12

B – Case C‑66/12

C – Case C‑196/12

IV – The actions in Cases C‑63/12 and C‑196/12

A – Admissibility of the actions

1. Observations of the main parties and of the interveners

2. My appraisal

a) Judicial review of conduct constituting a refusal on the part of an institution, body or agency of the European Union

i) An action for annulment under Article 263 TFEU censures unlawful action on the part of an institution

ii) An action for failure to act under Article 265 TFEU censures inaction on the part of an institution

iii) Refusal to adopt an act must be challenged by means of an action for annulment

b) Appraisal of the Council’s conduct

B – Whether the action in Case C‑63/12 is well founded

1. Observations of the main parties and of the interveners

a) Preliminary remarks

b) The arguments in support of the application

i) The Commission

– The refusal to adjust remuneration and pensions

– The refusal to adjust the correction coefficients

ii) The European Parliament

c) The arguments in support of the defence

i) The Council

– The refusal to adjust remuneration and pensions

– The refusal to adjust the correction coefficients

ii) The Member States

– The Czech Republic

– The Kingdom of Denmark

– The Federal Republic of Germany

– The Kingdom of Spain

– The Kingdom of the Netherlands

– The United Kingdom

2. My appraisal

a) The case-law of the Court concerning the role and respective powers of the Commission and the Council in the procedure for the adjustment of remuneration

b) Resolution of the conflict between the Commission and the Council over the existence of a ‘serious and sudden deterioration in the economic and social situation found within the European Union’

i) Analysis of the conditions for triggering the procedure laid down in Article 10 of Annex XI to the Staff Regulations

ii) Assessment of whether the pleas for annulment are well-founded

– The plea alleging misuse of powers

– The plea alleging a breach of the rule of law by the Council, which should not have considered that it was entitled not to adopt the proposal for a regulation

– The plea alleging infringement of the conditions for applying the exception clause as a result of inadequate and incorrect reasoning

V – The action in Case C‑66/12

A – Whether the action is well founded

1. Observations of the main parties and of the interveners

a) Ireland

b) The French Republic

2. My appraisal

B – Admissibility of the action

1. Observations of the main parties and of the interveners

2. My appraisal

VI – Costs

VII – Conclusion

I – Introduction

1. The issue of the annual adjustment of the remuneration of officials and other servants of the European Union, which forms the common subject-matter of the proceedings in Cases C‑63/12, C‑66/12 and C‑196/12, was examined recently by the Court and gave rise to the judgment of 24 November 2010 in Case C‑40/10 Commission v Council, ( 2 ) whereby the Court partially annulled Council Regulation (EU, Euratom) No 1296/2009 of 23 December 2009, ( 3 ) which had determined a remuneration adjustment percentage lower than that proposed by the European Commission.

2. However, the context in which the questions raised in these three actions arise is different, requiring a more extended analysis than in the earlier case. In addition, new and delicate questions arise concerning the admissibility of the actions.

3. The Staff Regulations of officials and other servants of the European Union are laid down in Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down the staff regulations of officials and the conditions of employment of other servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission, ( 4 ) as amended by Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004, ( 5 ) and by Regulation (EU, Euratom) No 1080/2010 of the European Parliament and of the Council of 24 November 2010. ( 6 )

4. Articles 1 and 3 of Annex XI to the Staff Regulations laid down the conditions under which, until 31 December 2012, the remuneration of those officials and other servants was automatically reviewed each year by the Council of the European Union, acting on a proposal from the Commission.

5. Article 10 of Annex XI to the Staff Regulations, however, introduced an ‘exception clause’ which allowed a derogation from that method of adjustment ‘[i]f there is a serious and sudden deterioration in the economic and social situation within the Union’. In such an event, it is for the Commission to submit ‘appropriate proposals’ to the Council, which will act in accordance with the ordinary legislative procedure.

6. On 17 December 2010 the Council, noting that ‘the latest financial and economic crises that have occurred within the [European Union] and that result in substantial fiscal adjustments and increased job uncertainty in several Member States create a serious and sudden deterioration of the economic and social situation within the [European Union]’, requested the Commission, in conformity with Article 241 TFEU, to submit to it, on the basis of Article 10 of Annex XI to the Staff Regulations and in the light of objective data supplied by the Commission, appropriate proposals in time for the European Parliament and the Council to examine and adopt them before the end of 2011. ( 7 )

7. The Commission having adopted on 13 July 2011 a report on that exception clause ( 8 ) concluding that there had been no serious and sudden deterioration in the economic and social situation within the Union, the Council challenged that conclusion and decided on 28 October 2011, by an ‘overwhelming’ majority of delegations, to make a further request to the Commission on the basis of Article 241 TFEU. Stating that it was ‘convinced that the financial and economic crisis currently taking place within the [European Union] and resulting in substantial fiscal adjustments in most Member States constitutes a serious and sudden deterioration of the economic and social situation within the [European Union]’, the Council, ‘[i]n this particular and exceptional context, and in the light of objective data reflecting the economic and social situation in autumn 2011’, requested the Commission to implement Article 10 of Annex XI to the Staff Regulations and to submit an appropriate remuneration adjustment proposal. ( 9 )

8. The Commission then submitted, on 24 November 2011, a communication providing further information, ( 10 ) in which it maintained that the conditions for applying the clause were not met, and submitted to the Council the same day a proposed adjustment in respect of the 2011 annual review, ( 11 ) with a view, first, to increasing remuneration and pensions by 1.7%, that rate resulting from the purely mechanical application of the calculation method set out in the Staff Regulations, and, secondly, to adjusting the correction coefficients [or ‘weightings’].

9. Taking the view that the Commission’s refusal to submit a proposal under Article 10 of Annex XI to the Staff Regulations was based on inadequate and erroneous grounds, the Council, in a ‘decision’ of 19 December 2011, ( 12 ) decided not to adopt the proposal for a regulation.

10. On 3 February 2012 the Commission brought an action, for annulment of that act, registered as Case C‑63/12.

11. At the same time as bringing that action for annulment, the Commission, which on 25 January 2012 had sent the Council a letter of formal notice, in the event that the latter’s attitude might be viewed as being inaction...