Opinion of Mr Advocate-General Gand

Mr President,

Members of the Court,

The matter on which you have today to give judgment relates to the extent of the financial rights available to Mr Pasetti following the decision to terminate his services on the conditions laid down by Article 4 of Regulation No 259/68 of the Council.

In January 1956 the applicant entered the Legal Department of the High Authority. In the same year the Staff Regulations of the ECSC became applicable to him and he was established in Grade A3. Because of this, as in the case of holders of posts in Grades A1 and A2, he could at any moment be retired in the interests of the service (Article 42 of the Staff Regulations); in that event he was entitled to a temporary allowance, then to a pension calculated under more advantageous conditions than those conferred by Article 34 on officials accorded non-active status following a reduction in personnel involving the abolition of posts.

This system was amended by Article 50 of the Staff Regulations of Officials of the ECSC of 1962. Only those established in Grades A1 and A2 could in future be retired in the interests of the service and their pecuniary rights were approximated to those accorded by the new Staff Regulations to servants given non-active status whose position moreover appears less favourable than in 1956. Nevertheless, under Article 99 those officials in Grades A1 and A2 who were established before 1 January 1962 might in the case of their subsequent retirement opt for the benefit of provisions of Article 42 of the former Staff Regulations.

Following the merging of the administrations, Article 4 of Regulation No 259/68 of the Council authorized the Commission until 30 June 1968 to adopt measures terminating the service of officials in all grades, which I shall have to describe more precisely. Let me simply say that in general the financial scheme applied by Article 5 of the regulation to the servants thus dispensed with is not very different from that laid down by Article 50 of the Staff Regulations of 1962. But Article 7 makes a dual alteration to this system:

On 14 March 1968 Mr Pasetti requested that a measure terminating his service in accordance with Article 4(1) of the regulation should be adopted. This was effected by a decision of 21 May 1968, confirmed on 20 June, and by letter of 21 June he was asked to intimate his choice of the financial rights connected with the termination of his service.

This letter referred without further explanation to Article 7 of the regulation but it was sufficient to read that article to see that, apart from the application of Article 5 of the regulation, the sole possible option was that of Article 34 of the Staff Regulations of 1956 and not that of Article 42.

The applicant was not deceived; thus he asks you for the partial annulment of the decision of 21 May 1968, confirmed on 20 June, to the extent to which it prevents his pecuniary rights from being calculated on the basis of Article 42 of the Staff Regulations of 1956. No doubt this decision is only an implementation — and an exact implementation — of Article 7 of Regulation No 259/68, but the applicant considers this article to be illegal for two reasons: first, since it does not grant to the officials established in Grade A3 of the ECSC before 1 January 1962 the benefit of Article 42, it infringes their vested rights; secondly, by refusing them what is granted to the officials established in Grades A1 and A2 before the said date, it discriminates between them and violates the principle of impartial administration. If this argument is well founded, it necessarily entails the partial illegality of the individual decision concerning him.

The Commission and the Council, which is intervening to defend its regulation, regard Mr Pasetti's application as inadmissible or at all events unfounded.

But before broaching the subtle and full arguments expounded by the parties I think it would be helpful to take a closer look at Regulation No 259/68 and to compare the system which it sets up with those appearing in the Staff Regulations; this will perhaps allow us to return to the essential points of a discussion which has had a tendency to digress as the proceedings progressed.

The new system is peculiar to the Commission and is temporary; while it applies, that is until 30 June 1968, the authorities of that institution are preeluded from taking decisions regarding non-active status or retirement on the conditions laid down by the Staff Regulations.

It will be noted that, as in the system of non-active status provided for by the Staff Regulations, account may be taken, if the interests of the service allow, of officials' requests for a measure terminating their services. But it is not certain, on the basis of the provision (for this is perhaps not how it has been applied), that the volunteer may opt for non-active status. From all these factors it seems to me clear that Regulation No 259/68 sets up a system which taken as a whole cannot quite be expressed in terms of any of the methods of leaving the service provided for in the Staff Regulations and which may be explained by the temporary and exceptional requirements which had to be met. It had to rationalize its departments and reduce the number of posts; an attempt was made to construct a system giving both the Commission and its servants very varied oportunities according to the varying situations. From the point of view of the choice of the servants leaving the service, this system combines a discretion, unilateral but regulated selection and voluntary departure. From the point of view of the financial system provided for those servants it also affords a range of facilities wide enough to differ according to the age or seniority in service. This system forms an entity and must be evaluated as a whole.

II

In the light of those general observations I shall first of all consider the pleas of inadmissibility put forward by the Commission and the Council with regard to Mr Pasetti's application.

1. The Commission maintains first of all that the application is inadmissible because the contested measure cannot adversely affect the applicant. The applicant himself asked for his services to be terminated in accordance with Article 4(1) of Regulation No 259/68 of the Council and that provision lays down that the measures in question to be adopted in manner provided hereinafter, which is clarified in the succeeding articles, in particular with regard to their financial effects. Mr Pasetti therefore requested the application of all the provisions of the regulation and did not qualify his request with any reservation; the entire decision taken was what he wanted and the Commission invokes the maxim volenti non fit injuria.

2. Nor am I favourably inclined towards two other pleas of inadmissibility put forward by the Commission. One is based on the fact that, since the system made available to the applicant by Regulation No 259/68 is more favourable than the previous system, Mr Pasetti has no interest in contesting it. The other is that the measure set up by the regulation is distinct from the retirement provided for in the Staff Regulations and which alone conferred on the official the right to benefit from Article 42 of the Regulations of 1956. As the Commission itself admits, this line of argument is strictly related to the substance of the case. In fact a general and abstract appraisal cannot be made of the financial rights which the official derives from the application of a particular system; according to his age and seniority or other factors, a servant could indeed benefit from a particular system and it does not seem possible for this largely subjective factor to influence the admissibility of the application. On the other hand, the difference must be shown between the retirement of the Staff Regulations and the termination of service of Regulation No 259/68 in order to establish that Article 42 of the Staff Regulations of 1956 applies to the first of those measures and not to the second; whatever the view I have taken above, this is not evident at first sight.

3. The Council in intervening adopts another position in order to cast doubts on the admissibility of Mr Pasetti's application.

III

But is it well founded?

I should like to say from the outset that in my view the reply is in the negative.

1. The first ground of complaint is based on the infringement of the applicant's vested rights on the basis of Article 42 of the Staff Regulations of 1956. It has been presented in two slightly differing forms in the course of the proceedings.

2. The second ground of complaint is based on the difference in treatment accorded to the officials of the ECSC in Grade A3 established before 1962 in comparison with their fellows in Grades A1 and A2 satisfying the same conditions; this disparity violates the basic principle of impartial administration. As one can see, this ground of complaint is not very different from the preceding one and seems to me no better founded. I shall thus be very brief in this connexion.

I am of the opinion that:

1 Translated from the French.