Opinion of Mr advocate-general Gand

Mr President,

Members of the Court,

The application made to you by Mr De Schacht at the beginning of this year comes a long time after the entry into force of the Staff Regulations of Officials of the EEC and EAEC in 1962.

The applicant, a Belgian born in 1924, had been an official in Grade A1 in the Secretariat of the Council of the ECSC in Luxembourg since 15 November 1952. When the Treaties of Rome established a Council for each of the new Communities, there arose the problem of the recruitment of officials for those institutions which until the Treaty of 8 April 1965, while retaining their individual character, had a single Secretariat in common. You have seen from the file the various solutions which were adopted either successively or simultaneously during the transitional period in order to utilize the services of officials established under the ECSC Staff Regulations, the choice being to a large extent determined in each case by the person concerned as well as a comparison with the solutions adopted for their part by the new Commissions. The principal solutions were the following: posting to Brussels by means of transfer which left the official wholly subject to the Staff Regulations of the ECSC; leave on personal grounds allied to a Brussels contract; resignation, again accompanied by a Brussels contract.

In order to determine Mr De Schacht's position, successive use was made of these various possibilities. The applicant seems first to have performed his duties in Brussels from 1958 without any decisions being taken altering his previous position. His posting to Brussels took effect from 1 September 1960 by means of a transfer in the interest of the service. Subsequently, at his request he was granted leave oh personal grounds for two years by a decision of the Secretary-General of the Special Council of Ministers of the ECSC, also with effect from 1 September 1960, thus rescinding the previous decision with retroactive effect. At the same time he held a so-called Brussels contract. Finally, after the publication of the Staff Regulations of Officials of the EEC and EAEC, a decision was taken on 11 July 1962, which is the distant origin of the dispute and on which you must rule.

This decision establishes him in Grade Al, Step 5, as an official of the Communities; the preamble to the operative part of the measure leaves no doubt that that expression should be understood to refer to the EEC and the EAEC. According to Article 2 thereof, it involves the termination of the service of the person concerned as an established official of the ECSC, taking into account the application of Articles 102(5) and 103 of the Staff Regulations. It takes effect from 1 January 1962, that is to say, the date of the entry into force of both the EEC Staff Regulations and the new ECSC Staff Regulations.

At the time Mr De Schacht did not perceive any consequence resulting from that decision, which transferred him from the former Staff Regulations to the EEC-EAEC Staff Regulations, as to the cancellation of the rights which he had been able to acquire under the ECSC system. He states in his application that on several occasions he discussed the position with the administration to no avail, but he makes no mention of these discussions in the memorandum sent by him on 30 August 1967 to the Secretary-General of the Council. On that date he merely sought the repayment of the sum standing to the credit of his account in the provident fund of the ECSC. On his request's being rejected on 30 October 1967, he repeats and extends it in the present application, the admissibility of which is not in dispute.

1. His line of argument is based on Article 62(a) and (b) of the General Regulations annexed to the Staff Regulations of Officials of the ECSC of 1956. This article provides that an official aged less than sixty years whose service terminates otherwise than by reason of death or invalidity and who is not entitled to a retirement pension shall be entitled on leaving the service to payment of the capitalized sum standing to the credit of his account in the provident fund of the staff of the Community and of the capitalized aggregate amount deducted from his salary in respect of his pension contributions.

2. I do not consider that Mr De Schacht's argument can be accepted.

3. One may now examine Mr Le Schacht's claims in the light of all the provisions governing his status. The result seems to me to be the same whether he bases them on Article 62 of the General Regulations of 1956 or on Article 12 of Annex VIII to the Staff Regulations of 1962. In both cases these provisions taken together only appear to me to be capable of being applied when an official finally leaves not merely the institution to which he belongs but the Communities. This is what was stated in respect of the severance grant by your judgment in the Campolongo case, when you ruled that the severance referred to in Article 62(1) of the General Regulations must presumably be understood as meaning severance from the Community service. And this becomes even clearer if one refers to Article 12 of Annex VIII which speaks of an official whose service terminates.

I am of the opinion:

1 Translated from the French.