Court of Justice of the European Communities (including Court of First Instance Decisions)

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URL: http://www.bailii.org/eu/cases/EUECJ/1983/C21782.html
Cite as: [1983] EUECJ C-217/82

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61982J0217
Judgment of the Court (Third Chamber) of 1 December 1983.
Charles H.V. Depoortere v Commission of the European Communities.
Official - Convertible accounts.
Case 217/82.
European Court reports 1983 Page 04003

NON-CONTRACTUAL LIABILITY - CONDITIONS - ILLEGALITY - DAMAGE - CHAIN OF CAUSALITY
( EEC TREATY , ART . 215 , SECOND PARAGRAPH )

IN CASE 217/82
CHARLES H . V . DEPOORTERE , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT 5 RUE DES FLORALIES , 1200 BRUSSELS , REPRESENTED BY GUY DIEUDONNE OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF YVES PRUSSEN , ADVOCATE , 15 , COTE D ' EICH ,
APPLICANT ,
V
COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY AUKE HAAGSMA , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,
DEFENDANT ,

APPLICATION IN THE TERMS SET OUT IN THE APPLICANT ' S CONCLUSIONS ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 12 AUGUST 1982 , MR DEPOORTERE , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES IN GRADE A 4 , LODGED AN APPLICATION AGAINST THE COMMISSION IN CONNECTION WITH THE BELGO-LUXEMBOURG RULES RELATING TO EXCHANGE TRANSACTIONS AND , MORE ESPECIALLY , THE RULES ON SPECIAL FOREIGN CONVERTIBLE ACCOUNTS .

2 IT SHOULD BE RECALLED THAT THERE ARE TWO DISTINCT EXCHANGE MARKETS FOR THE BELGIAN AND LUXEMBOURG FRANC , NAMELY , ON THE ONE HAND , A REGULATED MARKET ON WHICH THE MARGINS OF FLUCTUATION IN RELATION TO OTHER CURRENCIES ARE MAINTAINED WITHIN CERTAIN LIMITS AS A RESULT OF THE INTERVENTION OF THE NATIONAL BANK OF BELGIUM , AND , ON THE OTHER HAND , A FREE MARKET ON WHICH THE RATE IS SUBJECT TO THE EFFECT OF SUPPLY AND DEMAND AND THERE IS NO INTERVENTION ON THE PART OF THE NATIONAL BANK OF BELGIUM . THE EXCHANGE RATES APPLICABLE ON THE TWO MARKETS THEREFORE DEVELOP SEPARATELY , AND THE RATE OF THE BELGIAN AND LUXEMBOURG FRANC ON THE REGULATED MARKET IS , AS A GENERAL RULE , HIGHER THAN THAT ON THE FREE MARKET . THE RELEVANT PROVISIONS ENUMERATE THE TRANSACTIONS AND THE CONDITIONS IN WHICH THE PURCHASE OR SALE OF THE CURRENCY MAY OR MUST BE CARRIED OUT , BOTH ON THE REGULATED MARKET AND ON THE FREE EXCHANGE MARKET .

3 CONSIDERING THAT THE AUTOMATIC APPLICATION OF THOSE PROVISIONS TO OFFICIALS OF THE COMMUNITIES WHO WERE NOT BELGIAN OR LUXEMBOURG NATIONALS WOULD NOT BE EQUITABLE , THE BELGIAN AND LUXEMBOURG AUTHORITIES IN THE COURSE OF THE 1960S SET UP A SPECIAL SYSTEM FOR THOSE OFFICIALS IN THE FORM OF SPECIAL CONVERTIBLE FOREIGN ACCOUNTS . THOSE ACCOUNTS ARE DISTINGUISHED , ON THE ONE HAND , BY THE FACT THAT ONLY THE SALARIES PAID BY THE COMMUNITIES AND SUMS TRANSFERRED FROM OTHER CONVERTIBLE ACCOUNTS MAY BE DEPOSITED IN SUCH ACCOUNTS AND , ON THE OTHER HAND , BY THE FACT THAT THEY PERMIT ALL EXCHANGE TRANSACTIONS TO BE EFFECTED ON THE REGULATED MARKET . HOWEVER , SUCH ACCOUNTS CANNOT BE OPENED FOR OFFICIALS OF THE COMMUNITIES WHO ARE BELGIAN OR LUXEMBOURG NATIONALS , WHO ARE PERMITTED TO OPEN ONLY NON-CONVERTIBLE ACCOUNTS WHICH GRANT ACCESS TO THE REGULATED MARKET FOR CERTAIN SPECIFIC TRANSACTIONS ONLY .

4 IN ACCORDANCE WITH THE RULES SET OUT ABOVE , THE SALARY OF THE APPLICANT , WHO IS OF BELGIAN NATIONALITY , WAS PAID BY THE COMMISSION INTO A NON-CONVERTIBLE ACCOUNT WHICH HE HAD DESIGNATED FOR THAT PURPOSE . CONSIDERING THAT THE COMMISSION HAD THEREBY ' ' FAILED TO RESPECT HIS LEGITIMATE INTEREST IN THE MATTER OF THE PAYMENT OF SUMS OWED TO HIM , BECAUSE IT HAD NOT ADOPTED AT THE PROPER TIME THE MEASURES REQUIRED BY THE FACTS AND BY LAW ' ' , HE SUBMITTED ON 17 NOVEMBER 1981 A COMPLAINT IN ACCORDANCE WITH ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS .

5 THAT COMPLAINT WAS REJECTED BY DECISION OF THE COMMISSION OF 18 MAY 1982 , AND THE APPLICANT THEN LODGED THIS APPLICATION BY WHICH HE IN SUBSTANCE SEEKS TO OBTAIN , ON THE ONE HAND , THE PAYMENT OF HIS SALARY INTO A SPECIAL FOREIGN CONVERTIBLE ACCOUNT AND , ON THE OTHER HAND , THE PAYMENT OF THE SUMS OF WHICH HE HAS BEEN DEPRIVED SINCE FEBRUARY 1981 AS A RESULT OF THE PAYMENT OF HIS SALARY INTO A NON-CONVERTIBLE ACCOUNT .

6 AS REGARDS THE PART OF THE APPLICATION CLAIMING PAYMENT OF SALARY INTO A CONVERTIBLE ACCOUNT , IT SHOULD BE REMEMBERED THAT , ACCORDING TO ARTICLES 90 ( 2 ) AND 91 ( 1 ) OF THE STAFF REGULATIONS OF OFFICIALS THE COURT HAS JURISDICTION IN DISPUTES BETWEEN THE COMMUNITIES AND ANY PERSON TO WHOM THE STAFF REGULATIONS APPLY REGARDING THE LEGALITY OF AN ACT ADVERSELY AFFECTING SUCH PERSONS , EITHER WHERE THE INSTITUTION CONCERNED HAS TAKEN A DECISION OR WHERE IT HAS FAILED TO ADOPT A MEASURE PRESCRIBED BY THE STAFF REGULATIONS . IN ADDITION , ACCORDING TO ARTICLE 91 ( 2 ) OF THE STAFF REGULATIONS , AN APPEAL SHALL LIE ONLY IF IT IS LODGED FOLLOWING THE EXPRESS OR IMPLIED REJECTION OF A COMPLAINT , WHICH , WHERE IT IS DIRECTED AGAINST A FAILURE TO ADOPT A MEASURE , MUST HAVE BEEN PRECEDED BY A REQUEST TO THE APPOINTING AUTHORITY THAT IT TAKE A DECISION , WITHIN THE MEANING OF ARTICLE 90 ( 1 ).

7 THOSE CONDITIONS ARE NOT FULFILLED IN THIS CASE . IN FACT , THE APPLICANT HAS BY NO MEANS INDICATED , EITHER IN HIS APPLICATION OR DURING THE SUBSEQUENT PROCEEDINGS BEFORE THE COURT , WHAT , IN HIS CONTENTION , THE ACT ADVERSELY AFFECTING HIM CONSISTS IN , NOR HAS HE FIRST REQUESTED THE APPOINTING AUTHORITY TO TAKE A DECISION RELATING TO HIM .

8 THAT PART OF THE APPLICATION MUST THEREFORE BE DISMISSED AS INADMISSIBLE .

9 IN RELATION TO THE PART OF THE APPLICATION CLAIMING PAYMENT TO THE APPLICANT OF THE SUMS OF WHICH HE CLAIMS HE HAS BEEN DEPRIVED , THE APPLICANT STATED DURING THE PROCEEDINGS THAT THAT CLAIM WAS TO BE REGARDED AS A CLAIM FOR DAMAGES UNDER THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY .

10 AS THE COURT HAS REPEATEDLY DECIDED , IN PARTICULAR IN THE JUDGMENTS OF 2 JULY 1974 IN CASE 153/73 , HOLTZ & WILLEMSEN V COUNCIL AND COMMISSION , ( 1974 ) ECR 675 , AND OF 4 MARCH 1980 IN CASE 49/79 , POOL V COUNCIL ( 1980 ) ECR 569 , THE COMMUNITY ' S NON-CONTRACTUAL LIABILITY DEPENDS UPON THE COINCIDENCE OF A SET OF CONDITIONS AS REGARDS THE UNLAWFULNESS OF THE ACTS ALLEGED AGAINST THE INSTITUTIONS , THE FACT OF DAMAGE , AND THE EXISTENCE OF A DIRECT LINK IN THE CHAIN OF CAUSALITY BETWEEN THE WRONGFUL ACT AND THE DAMAGE COMPLAINED OF .

11 THE APPLICANT HAS STATED THAT THE SUMS OF WHICH HE HAS BEEN DEPRIVED , WHICH HE QUANTIFIES AT BFR 125 500 , CORRESPOND TO THE SUM RESULTING FROM THE APPLICATION TO EACH MONTHLY PAYMENT OF REMUNERATION FROM FEBRUARY 1981 OF THE EXCHANGE PREMIUM , THAT IS TO SAY THE DIFFERENCE , EXPRESSED AS A PERCENTAGE , BETWEEN THE SELLING RATE FOR CURRENCY ON THE REGULATED MARKET AND THE BUYING RATE FOR THAT CURRENCY ON THE FREE MARKET . HOWEVER , THAT LOSS , EVEN IF IT WERE ESTABLISHED , IS THE RESULT OF THE FACT THAT IT IS IMPOSSIBLE FOR THE APPLICANT TO OPEN A CONVERTIBLE ACCOUNT GIVING HIM ACCESS TO THE REGULATED MARKET FOR ALL EXCHANGE TRANSACTIONS . HOWEVER , THAT STATE OF AFFAIRS ARISES FROM THE BELGO-LUXEMBOURG LEGISLATION ON EXCHANGE TRANSACTIONS AND DOES NOT ORIGINATE IN ANY SPECIFIC MEASURE OR FAILURE TO ADOPT SUCH A MEASURE WHICH MAY BE ATTRIBUTED TO THE COMMISSION .

12 IN THOSE CIRCUMSTANCES , THE APPLICANT HAS NOT ESTABLISHED THE EXISTENCE OF A CHAIN OF CAUSALITY BETWEEN UNLAWFUL CONDUCT ON THE PART OF THE COMMISSION AND THE DAMAGE COMPLAINED OF , SO THAT THIS PART OF THE APPLICATION MUST ALSO BE DISMISSED .

COSTS
13 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING .

14 HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , COSTS INCURRED BY THE INSTITUTIONS IN APPLICATIONS BY SERVANTS OF THE COMMUNITIES ARE TO BE BORNE BY THE INSTITUTIONS THEMSELVES .

ON THOSE GROUNDS ,
THE COURT ( THIRD CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .