Opinion of Mr Advocate-General Roemer

Mr President,

Members of the Court,

Mr Grasselli, the applicant in the present proceedings, entered the service of the High Authority of the European Coal and Steel Community on 5 October 1961; he had the status of an official in Grade A6 and was assigned to the Directorate-General for Steel. After the establishment of a single Executive he was employed in the same grade with the Directorate for Steel in Directorate-General III of the Single Commission. Following the entry into force of Regulation No 259/68, with which we are familiar from other proceedings and the purpose of which was to authorize the Commission in order … to rationalize its administration … to adopt measures terminating the service of officials, on 8 April 1968 Mr Grasselli was authorized by Article 4(3) of this regulation to request that his service be terminated. By a letter of 29 May 1968 the Directorate-General for Personnel and Administration informed him that the Commission was prepared to grant his request and that he would later receive an explanatory table informing him of his remuneration. A letter dated 21 June 1968 from the said Directorate-General notified him of the decision taken by the Commission on 20 June 1968 whereby his service was terminated as from 1 October 1968.

This letter at the same time invited Mr Grasselli to opt, on the one hand, between a pension and the immediate payment of an allowance and, on the other hand, if he should choose the pension, between the application of Article 5 of Regulation No 259/68 and that of Article 34 of the Staff Regulations of the European Coal and Steel Community which came into force on 1 July 1956. In order to assist him in his choice the Directorate-General for Personnel and Administration sent him with a memorandum on 16 September 1968 an explanatory table showing him the sums he might claim if he opted for the application of Article 5 of Regulation No 259/68 or for the application of Article 34 of the Staff Regulations of the European Coal and Steel Community. However Mr Grasselli did not agree with the figures in this table relating to the interpretation of Article 34. In particular, he considered that the administration was wrong in indicating that if he started to draw the pension before the age of 60, it would be subject to a reduction coefficient on the basis of his age and that, again in this event, the dependent child allowance would not be paid to him. On 27 September 1968, therefore, he submitted a complaint to the President of the Commission with the object of having the explanatory statement which had been sent to him revised as he suggested. On the same day he informed the Directorate-General for Personnel and Administration that he agreed that the termination of his service should be fixed at 1 October 1968 and that he had opted for his pension rights. But, with regard to the option made available to him by Article 7 of Regulation No 259/68, he added that he would postpone his decision until his complaint was settled. In reply to the said complaint, Mr Grasselli received (on 1 November 1968, according to him) a letter from the Directorate-General for Personnel and Administration dated 18 October 1968 declaring that, since the argument expounded in his complaint could not be accepted, the administration must maintain the position which it had adopted with regard to the explanatory statement. This is what decided Mr Grasselli to bring the matter before the Court; his appeal was received at the Court Registry on 16 December 1968 and in it he claims that:

Legal consideration

I — The problems of admissibility

It appears that in the Commission's opinion the application is inadmissible or at least that its admissibility is extremely doubtful. Let us begin by considering this first objection.

The Commission relies principally on the previous judgments in which the Court has given rulings concerning the concept of a decision in its plea that the contested measure (that is to say, the explanatory statement sent to the applicant with the memorandum of 16 September 1968) cannot be considered as a measure adversely affecting the applicant within the meaning of Article 91 of the Staff Regulations of Officials. It maintains that this measure has no legal effect, that it does not alter the legal situation and that on the contrary its intention is merely to provide information with regard to the interpretation of the Staff Regulations without binding the Commission. It states that two factors in particular indicate that the measure must be so classified: first, a notice published in the Commission's Staff Courier of 16 April 1968 which recalled the purely informatory nature of the information given and, secondly, the fact that the note was only signed by the Assistant Director-General for Personnel and Administration and that it was not in the name of the Commission.

Those arguments based on the concept or a decision are indeed irrefutable. In fact the Court has already stated several times (above all in its judgments relating to the ECSC Treaty) that with regard to this concept for there to be a decision the High Authority must unequivocally determine the position which it decides to adopt if certain conditions are fulfilled. For it to be considered as a decision, the terms of the measure must give a precise indication of the legal consequences which the administration intends to give to the conduct of the person to whom it is addressed and further that a measure constitutes a decision when it lays down a rule capable of application to a specific situation. It is particularly clear from the criteria thus emerging from case-law (and this has a general validity) that the important factor is the administration's will that it should be bound in a certain manner. It is, however, incontestable that there was no such will in the case of the measure with which we are concerned. The first factor which brings me to this conclusion is the abovementioned information which was published in the Staff Courier of 16 April 1968. With regard to the pecuniary consequences of the dismissal of officials pursuant to Regulation No 259/68, the Commission formally declared in this communication that its departments were prepared to supply information but that, in view of the complex nature of the provisions concerned together with the extent and diversity of the questions raised, this information must not be regarded as binding on the Commission. Consequently (as the defendant states) it is impossible to describe this information as constituting measures definitively affecting individual interests or that it could be regarded as an application of the law to a particular case, which application might indubitably be made in the form of declarations binding on the administration. With regard to claims to pensions, this application of the law is only made shortly before the persons concerned obtain their pension; in the present case this will only occur in 1972 shortly before the end of the indemnity period provided for in Article 34, and always on condition that the applicant has opted for a specific kind of pension (he had not yet made this choice when he received the memorandum of 16 September 1968). The second important factor is that this memorandum was only from the Assistant Director-General for Personnel and Administration and that it was not addressed to Mr Grasselli in the name of the Commission, the appointing authority, which alone was competent in this sphere. In this connexion I should like to recall a similar instance which we find at page 142, Rec. 1961 where the Court considered that a letter from the Director of the Market Division of the High Authority did not constitute a contestable act because it had not been signed in the name of the High Authority. All this undoubtedly precludes me from considering the communication in dispute as a decision and obliges me to declare that the conclusions for its annulment are inadmissible.

However I cannot break off my consideration of the admissibility of the application at this point. In fact it is not disputed that it would be extremely unsatisfactory to prevent all possibility of an immediate clarification of the problems which have been raised. In fact, in the system of Regulation No 259/68 the applicant is required to exercise his option now. Since the exercise of his option involves immediate effects, it is unreasonable to consider requiring the applicant to decide before he has obtained the necessary clarification. His interest in becoming immediately acquainted with the legal position cannot be disputed unless it is possible for him to go back on his choice, for example if he were unsuccessful in an application for annulment against the decision fixing his pension pursuant to Article 34 (that is to say, if the interpretation which he gives this passage were rejected) or else if the Commission altered its position in this respect. Nevertheless these are suppositions on which I cannot base my opinion even though it is doubtful whether the person concerned might subsequently obtain appropriate compensation if necessary by claiming damages.

This being so, I think that the solution must be found by the expedient of the following consideration. As you know, German administrative law recognizes the concept of the administration's duty of assistance towards officials in its service. This duty amounts to a real right which the official may plead in court. In particular the official is entitled to request advice and to obtain, before making a binding declaration, information supplied by the administration as to their legal consequences I see no difficulty in admitting that this institution also forms part of European administrative law bearing in mind the system which it sets up. If my point of view is accepted, there is no further difficulty in considering that the applicant exercised a right of this nature when on 27 September 1968 he requested the President of the Commission to recognize, that is to say, to make an authentic statement, that the interpretation of the Staff Regulations favoured by Grasselli was correct. What then occurred? Let us return to the statement of the facts: the person concerned received a letter from the Directorate-General for Personnel and Administration dated 18 October 1968 confirming the tenor of the memorandum of 16 September 1968. This reply was no doubt couched in terms which made it appear to be a declaration binding on the Administration. Nevertheless such was not the case, as the Commission tells us: it alleges that it must be admitted that the purely indicative nature of the information supplied on 16 April 1968 also extends to the reply in question, in other words that it was also given without binding the Commission. In fact there is at least one reason which prevents this letter being recognized as a contestable measure and that is that it too emanated not from the appointing authority, the competent body, but from the Directorate-General for Personnel and Administration. Since this is so, it merely remains under the system of the Staff Regulations of Officials to find that an implied decision of rejection was made on the expiry of the period of two months from the day when Mr Grasselli lodged his complaint. This rejection thus means that we are faced with a measure which may be contested within the meaning of Article 91(2) of the Staff Regulations of Officials thus making it possible to state that the application is admissible if a satisfactory interpretation is given to the conclusions, as the Court has already done in other cases. Moreover I would point out that the deductions which I have just made override the objections raised by the Commission with regard to the other recipients of the explanatory memorandum of 16 September 1968. In fact no period within which proceedings must be brought begins to run against them since no contestable measure was notified to them. It is thus possible for them subsequently to obtain other solutions through the Court, just as the Commission is not prevented, by its having given the information, from altering its position at any time.

Finally I should again state that we may also regard the application as admissible as an application for a declaratory ruling (and not as an application for an interpretation, as the Commission states). In fact Article 91 of the Staff Regulations of Officials refers not merely to appeals for annulment and to appeals against the administration's failure to act, but more generally to disputes of a financial character. There is nothing to hinder the view that this expression may refer to disputes relating to the pecuniary consequences of termination of service pursuant to Regulation No 259/68. A dispute of this nature does not necessarily occur within the framework of an application for pecuniary damages; there can be no question of this especially as the sum claimed is not yet payable and since the necessary option has not yet been exercised. In this case the method of recourse open to the person concerned is that of an application for a declaratory ruling (and in reality this is indeed how Mr Grasselli has drawn up his conclusions in the present case) that is to say, as an application the object of which is to have the Court define the meaning of one of the legal situations between which the applicant must choose. The sole condition required for such an application is the existence of a legal interest. It cannot be doubted that this condition is satisfied, the more so since if the applicant's interpretation of the provisions in question is correct, he would obtain a pecuniary advantage in opting for the application of Article 34.

I shall therefore sum up by declaring that the application must be recognized as being admissible, whether it is regarded as an application for a declaratory ruling or as an application for the annulment of an implied decision of rejection.

II — Substance

With regard to the substance of the case, the dispute turns, as I have already said, on the pecuniary consequences of termination of service pursuant to Article 4 of Regulation No 259/68, or more precisely as the applicant states in his declarations, on the determination of the consequences if he is not accorded either non-active status pursuant to the second subparagraph of Article 4(2) of Regulation No 259/68, or the allowance which Article 6 provides shall be paid to an official who renounces his pension rights (which was possible if the official had not completed eleven years in the service). Those consequences are in principle determined by Article 5 of Regulation No 259. Under the terms of this article, an official affected by a measure terminating his service is entitled, for a period of six months, to an allowance equal to his last remuneration, subsequently reduced by degrees until it finally amounts to 60 % of his basic salary for a period the length of which is determined on the basis of the age and length of service of the person concerned. Moreover when the person concerned reaches the age of 55, he becomes entitled to the pension without the application of the reduction provided for in Article 9 of Annex VIII to the Staff Regulations. Furthermore, the official is entitled to the dependent child allowance if he obtains the pension before he reaches the age of 60. Under the terms of Article 7 of Regulation No 259 officials covered before 1 January 1962 by the Staff Regulations of the European Coal and Steel Community (and the applicant is amongst those) are entitled (provided that they have not been established in Grade Al or A2) to request that their remuneration be determined in accordance with the provisions of Article 34 of the Staff Regulations of the European Coal and Steel Community and Article 50 of the Rules and Regulations of the European Coal and Steel Community. According to this system officials who are dismissed receive for two years compensation corresponding to the remuneration laid down in Article 47(1) of the Staff Regulations of the ECSC and for a subsequent period of two years an allowance amounting to half of this remuneration. After those four years they become entitled to the pension in calculating which Article 50 of the said Rules and Regulations provides that the number of years which the person concerned has actually served until his retirement shall be doubled.

The disputed point in the present case is whether, if the official opts for the system of Article 34, it is permissible to apply a reduction coefficient to the pension when he becomes entitled to it before the age of sixty and if so whether the person concerned is entitled to the dependent child allowance. The solution of the problem depends on the view taken: either if one takes the applicant's view that, even if Article 7 of Regulation No 259 is applied, the provisions of the fourth subparagraph of Article 5(7) and of Article 5(8) must be taken into consideration or one takes the contrary view maintained by the Commission. If it is assumed that the Commission's point of view must be adopted, the following results would obtain: if Article 5 is applied, at the end of his compensation period (that is to say, as from 1 December 1963), Mr Grasselli would be entitled to a pension amounting to BF 12327 (including the dependent child allowance), whilst if he were to opt for the application of Article 34 of the Staff Regulations of Officials of the European Coal and Steel Community, he could at the end of such period (which in this case would only amount to four years), that is to say, as from 1 October 1972, claim a pension of BF 11552 which would be increased to BF 15274 when (in 1976) he reaches the age of sixty. In an endeavour to decide which of those two views is correct we must examine separately the problem of the pension and that of the dependent child allowance.

1. The problem of the pension

2. The problem of the defendant child allowance

Let me say at the outset that this is also true with regard to the problem of the dependent child allowance. As you know, the Commission considers that this allowance is only to be granted to an official starting to draw his pension before the age of sixty within the framework of the special system of Article 5, to the exclusion of cases in which the person concerned opts for the application of Article 34. Indeed the applicant is correct in objecting that the provisions mentioned by Article 7 (that is to say, Article 34 of the former Staff Regulations of the ECSC and Article 50 of the Rules and Regulations) are irrelevant to the question of the dependent child allowance. Nevertheless, the problem cannot be solved on the basis of so superficial an analysis; the question can only be settled on the basis of findings arising from a consideration of the system of Regulation No 259/68. As I have already shown, it is clear from this consideration that the option is only between the special system of Article 5 (paragraph 8 of which entitles the official who has not reached the age of sixty to the dependent child allowance) and the system of Article 7 supplemented by the general system. But since within the general system (that is to say, under Article 81 of the Staff Regulations of Officials) the dependent child allowance is only granted to officials entitled to receive a pension before the age of sixty this rule must also apply to officials who do not opt for the application of the special system.

Moreover in tins case too, such an interpretation is confirmed by an argument based on the wording of Article 5; paragraph 8 thereof, a provision conferring on the official entitled to receive a pension before the age of sixty entitlement to the disputed allowance, expressly makes this advantage subject to the condition that in application of these provisions the official concerned should have become entitled to the pension before that age. There can be no doubt that the expression these provisions refers solely to those of Article 5, and not to the whole of Chapter II, including Article 7. As the Commission rightly emphasizes, this follows from the order of the various paragraphs of Article 5. In fact, paragraph 8 appears as the logical succession to the preceding paragraph which speaks of the pension to which the official shall be entitled, without the application of the reduction coefficient, provided that he has reached the age of fifty-five. On the other hand, if the official must give up the advantage provided for in the fourth subparagraph of Article 5(7), when he opts for the application of Article 7 it is illogical also to exclude in this case the application of Article 5(8).

Finally, it is futile to try to weaken this conclusion by claiming that paragraphs 9 and 10 of Article 5 seem to have a general scope with regard to officials dismissed, that in other words those provisions are applicable even if the transitional allowance and the pension rights are determined on the basis of Article 7. In fact, as the Commission has shown us, those two paragraphs lay down provisions which merely repeat certain of the general principles of the Staff Regulations. This is particularly true in the case of paragraph 9 the content of which corresponds exactly to that of Article 6 of Annex VII to the Staff Regulations of Officials. Similarly, it is clear that the general rule regarding the allowance for seniority provided for cases where Articles 41 and 50 of the Staff Regulations of Officials apply (and paragraph 10 also refers to this allowance) must also apply to cases of dismissal within the framework of Article 4 of Regulation No 259/68. This amounts to saying that the provisions are connected with the special system set up by Article 5(1) to (8), that they are not basic components of this special system and consequently that they may be applied even if the official opts for Article 7. Consequently it is certain that, although their insertion at the end of Article 5 is perhaps imperfect from the point of view of draftsmanship, it cannot in any event militate in favour of the applicant's argument.

III — I shall now sum up the outcome of my examination.

The point of view adopted by the Commission in the interpretation of Regulation No 259/68 appears to me correct. Consequently, if an official starts to draw his pension before reaching the age of sixty it is neither possible to pay it without applying the reduction coefficient nor again to confer on the person concerned the right to the dependent child allowance, since within the framework of the special system set up by Article 5 of Regulation No 259/68 those advantages were excluded if the person concerned opted for the application of Article 34 of the former Staff Regulations of Officials of the European Coal and Steel Community and for Article 50 of the Rules and Regulations of that Community.

Consequently, even if you were to take the view that the application is admissible, you should in any event dismiss it as unfounded.

In those circumstances the applicant, pursuant to Articles 69 and 70 of the Rules of Procedure, must bear his own costs.

1 Translated from the French.

2 Joined Casees 1 and 14/57 (Sociétés des Usines à Tubes de la Sarre v High Authority of the ECSC), judgment of 3 December 1957, Rec. 1957, p. 222, French version; Case 8/55 (Fédération Charbonnière de Belgique v High Authority of the ECSC), judgment of 16 July 1956, Rec. 1955-1956, p. 225, French version.

3 Joined Cases 7/56 and 3 to 7/57; judgment of 12 July 1957, Rec. 1957, p. 111, French Version.

4 Joined Cases 1 and 14/57, Rec. 1957, loc. cit.

5 Judgment of 22 March 1961 in Joined Cases 42 and 49/59 (SNUPAT), Rec. 1961, p. 142, French edition.

6 Cf. Kommentar zum Bundesbeamtengesetz by Plog-Wiedow, Note 7, paragraph 79.