JUDGMENT OF 11. 7. 1968 — CASE 3/68 DE SCHACHT v COUNCIL

In Case 3/68

THE COURT (Second Chamber) composed of: W. Strauß (Rapporteur), President of Chamber, A. M. Donner (replacing A. Trabucchi) and P. Pescatore, Judges, Advocate-General: J. Gand Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

II — Conclusions of the parties

III — Submissions and arguments of the parties

IV — Procedure

Grounds of judgment

I —. Facts

(1). The applicant, who is at present an official in Grade Al in the Secretariat-General of the Council of the European Communities, entered the service of the Special Council of Ministers of the ECSC in 1952. He became subject to the first Staff Regulations of Officials of the ECSC (hereinafter referred to as the former ECSC Staff Regulations) with effect from 1 July 1956.

(2). He was transferred to Brussels from Luxembourg, his first posting, by decision of 11 October 1960, which took effect as from 1 September 1960.

(3). By a decision of 22 December 1961, based on Article 33 of the former ECSC Staff Regulations, the applicant was, at his request, given leave on personal grounds for a period of two years from 1 September 1960. From that date he was employed by the Councils of the EEC and EAEC as a servant of those Communities under a letter of engagement of the so-called Brussels contract type.

(4). By Decision No 101/62 of the Secretary-General of the Councils of the European Communities of 11 July 1962, the applicant was integrated in Grade Al, Step 5, as an official of the Communities, namely of the EEC and EAEC. This decision states that it involves the termination of the service of the person concerned as an established official of the European Coal and Steel Community, taking into account the application of Articles 102(5) and 103 of the Staff Regulations [of Officials of the EEC and EAEC] — hereinafter referred to as the EEC-EAEC Staff Regulations — and that it shall take effect as from 1 January 1962.

(5). By letter of 30 August 1967 addressed to the Secretary-General of the Council, the applicant requested reimbursement of the amount standing to his credit in the provident fund of the ECSC. This request was rejected by letter of 30 October 1967 from the Secretary-General.

(6). On 23 November 1967 the applicant wrote asking the Secretary-General to reconsider his decision in the matter. On failing to receive a reply, he made the present application which was lodged at the Court Registry on 29 Janary 1968.

II —. Conclusions of the parties

1. Establish and, in so far as is necessary, rule that Decision No 101/62 of the appointing authority involves the termination of the applicant's service as an official of the ECSC;

2. Therefore establish and, in so far as is necessary, rule that both the provisions of Article 62(a) and (b) of the former General Regulations of the ECSC and those of Article 12(a) and (b) of Annex VIII to the new ECSC Staff Regulations were applicable to the applicant;

3. Rule that the decision of 30 October 1967 of the appointing authority refusing to apply those provisions in favour of the applicant is null and void;

4. Consequently, rule that [the Council] shall be obliged to pay to the applicant the sums resulting from the application of the provisions referred to in paragraphs 2 and 3 above.

—. take note that the defendant does not intend to dispute the admissibility of the application;

—. rule that the application is unfounded and dismiss it;

—. make an order as to costs in accordance with the relevant provisions.

III —. Submissions and arguments of the parties

(a). Certain of those officials remained completely subject to those Staff Regulations; the Secretary-General merely changed their place of appointment.

(b). Certain other officials — including the applicant — were granted leave on personal grounds by the Secretary-General acting on behalf of the Council of the ECSC; in respect of the same period the Secretary General, acting this time on behalf of the Councils of the EEC and EAEC, entered into a so-called Brussels contract with them.

(c). Finally, certain officials whose place of origin had been Brussels deemed it preferable to resign as officials of the ECSC in order to become subject solely to the Brussels contract system.

(d). Following the entry into force of the EEC-EAEC Staff Regulations, the position of the officials referred to in (b) and (c) above was regularized in the following manner:

IV —. Procedure

(1). In respect of the former ECSC Staff Regulations and the General Regulations, it is not contested — nor can it be — that, by reason of his becoming subject to the EEC-EAEC Staff Regulations, the applicant's service as an official of the ECSC terminated otherwise than by reason of death or invalidity, in the words of Article 62 of the said General Regulations. However the expression whose service terminates must be interpreted in the light of the former ECSC Staff Regulations, on the basis of which the General Regulations were adopted.

(2). With regard to the EEC-EAEC Staff Regulations, it is appropriate to take as a starting point Article 102(5) thereof, which is expressly mentioned in Decision No 101/62 and which covers the applicant's case exactly, that is to say, the case of a servant who, before these Staff Regulations entered into force was an established official of the European Coal and Steel Community and has been granted leave on personal grounds in one of the institutions of that Community in order to enter the service of an institution of the European Economic Community or of the European Atomic Energy Community.

(3). The applicant also alleges that the defendant's argument conflicts with the general principles applicable to European public service with regard to the calculation of a retirement pension, and that those principles protect the right of officials in positions comparable with the applicant's to decide themselves whether or not, for the calculation of their retirement pension, they wish to retain the benefit of their total period of service. Following this line of thought, the applicant refers to Articles 52 and 62(a) and (b) of the General Regulations and Articles 4 and 12 of Annex VIII to both the EEC-EAEC Staff Regulations and the new ECSC Staff Regulations.

(4). Finally, the applicant wrongly cites in his support the judgment delivered by the Court in Joined Cases 27 and 39/59 (Campolongo, Rec. 1960, p. 801 et seq.). In fact in those cases the official concerned was engaged by the European Investment Bank which is not an institution within the meaning of Article 4 of the Treaty establishing the EEC and whose staff is therefore not covered by the EEC-EAEC Staff Regulations, as is evidenced by Article 1 thereof.

(5). The applicant has failed in his application. Under the terms of Article 69(2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs. However, under the terms of Article 70 of the said Rules in proceedings by officials and servants of the Communities against institutions, the institutions shall bear their own costs.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to Articles 4 and 179 of the Treaty establishing the EEC; Having regard to Article 152 of the Treaty establishing the EAEC; Having regard to the Protocols on the Statutes of the Court of Justice of the EEC and of the EAEC; Having regard to the former Staff Regulations of the ECSC, which entered into force on 1 July 1956, especially Articles 17, 27(1) and (2), 33, 40 and 41(B); Having regard to the former General Regulations of the ECSC, which entered into force on 1 July 1956, especially Articles 52 and 62(a) and (b); Having regard to the Staff Regulations of Officials of the ECSC, which entered into force on 1 January 1962, especially Articles 92 to 105 and Articles 4 and 12 of Annex VIII thereto; Having regard to Regulation No 31(EEC), 11(EAEC), of the Councils adopting the Staff Regulations of Officials and the Conditions of Employment of Other Servants of those Communities (Official Journal No 45 of 14 June 1962, p. 1385/62 et seq.), especially Articles 91 and 102(5) and Articles 2 to 4 and 12 of Annex VIII thereto; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69(2) and 70; THE COURT (Second Chamber) hereby:

1 Dismisses the application as unfounded;

2 Orders the applicant to pay the costs of the proceedings, with the exception of those incurred by the defendant.