OPINION OF MR ROEMER — JOINED CASES 19, 20, 25 AND 30/69 RICHEZ-PARISE v COMMISSION
Mr President,
Members of the Court,
The principal concern of the five cases (Joined Cases 19, 20, 25 and 30/69) before us today is the determination of financial rights arising on termination of service under the provisions of Regulation No 259/68 of the Council of 29 February 1968. Four of the cases were joined for the purposes of procedure and a common judgment by an order of the Chamber of 1 October 1969. The fifth was not included on purely linguistic grounds. However since the linguistic problems do not affect the submission of the Advocate-General's opinion according to Article 29 (5) of the Rules of Procedure, there is nothing to prevent me from dealing with the five cases in a single opinion. In doing so, however, I shall not ignore the particularities of the individual cases.
Here, first of all, is what needs to be known of the facts of the cases. The applicants, born in the years 1920, 1921 and 1925, joined the service of the Commission of the European Economic Community at various times in 1958 and 1959. At the latest point they were officials in Category B, and classified in Grades B1, B2 and B3.
After publication in the Official Journal of the Communities of 4 March 1968 of Regulation No 259/68 of the Council, the special provisions in Chapter 2 of which were designed to enable the single Commission to reduce the number of its staff and rationalize its departments, the officials of the Commission were sent a circular on 5 March 1968 from their President referring to the provisions in Regulation No 259/68 and accompanied by a copy of the Official Journal of 4 March 1968. In particular the President explained that it was intended that measures terminating service should only be taken by the administration on its own intitiative with regard to A1, A2 and A3 officials. However, all officials in the Commission were in principle free to request termination of their service under Article 4 (3) of Regulation No 259/68. Those who wished to do so were to submit their requests before 6 April 1968. An announcement of 3 April 1968 extended this period to 18 April 1968. Lastly it was further stated in the circular that: Information concerning pecuniary rights resulting from the application of these particular provisions may be obtained from the competent departments of the administration. The competent departments in Brussels and in Luxembourg were precisely specified.
According to their uncontested statements this information was demanded by the applicants in Cases 19, 20, 25 and 30/69 at the end of March 1968 and by the applicant in Case 23/69 at the beginning of April 1968. They were given the information on duplicated sheets, with precise calculations. They set out the temporary allowances payable under Article 5 of Regulation No 259/68 and the amounts of the monthly pension which would mature on the expiry of the transitional period. It was stated that the pension would mature on completion of the beneficiary's 55th year, but no percentage reduction was provided for such as that in Article 9 of Annex VIII to the Staff Regulations in the event of payment of the pension before completion of the 60th year. On receipt of this information—so say the applicants—they submitted at various times (11, 21 and 26 March 1968 and 1 April and 18 April 1968) requests for termination of their service under Article 4 (3) of Regulation No 259/68.
Shortly before the expiry of the period for submitting requests, on 16 April 1968 to be exact, there appeared an announcement in the supplement to Staff Courier No 16 to which the Commission attaches great importance and which I would like therefore to quote in full here. It concerns the application of the special measures provided for in Article 5 et seq. of Regulation No 259/68 : In view of the numerous requests received for information on the provisions of Article 5 et seq. of Regulation No 259/68 of the Council (pecuniary rights on termination of service) only those officials seriously considering making a request under Article 4 (3) of the abovementioned Regulation should have recourse to the departments designated for providing information and they should restrict their questions to essentials. Owing to the complexity of these provisions and the great number and variety of questions asked officials are reminded that the information is supplied purely by way of guidance and is not binding on the Commission.
The administrative proceedings subsequently continued as follows: the applicants were informed by letter from the Director-General for Personnel and Administration on 29 May 1968 and 12 June 1968 respectively that the Commission had declared itseif prepared to accede to the requests submitted. At a later date the applicants would be sent a tableau explicatif vous informant de vos droits pécuniaires (a table explaining your pecuniary rights). On 20 June 1968 the Commission issued decisions terminating the applicants' service with the Communities with effect from 1 October 1968; on her request and with the consent of the administration the applicant in Case 25/69 was allowed to leave the service on 22 July 1968. The abovementioned decisions were communicated to the applicants in a letter from the Director-General for Personnel and Administration of 21 June 1968. This letter, too, indicated that additional information on pecuniary rights following termination of service could be obtained from named colleagues of the Director-General on request. The letter also reminded the officials that those of them who had not yet completed 11 years of service on 20 June 1968 had until 31 December 1968 to declare whether they wished to opt for a severance grant under Article 12 of Annex VIII to the Staff Regulations or to preserve their future pension rights.
From this point on there are important differences in the course of the various proceedings so that I think it advisable to set out the facts separately for each individual case. As regards, first, the applicant in Case 19/69, she received a request in a letter from the Directorate-General for Personnel and Administration on 29 October 1968 to provide supplementary details required for calculating the monthly allowance to be paid under Article 5 of Regulation No 259/68. The applicant did so on 6 November 1968. Shortly before expiry of the period allowed for exercising the option under Article 6 (2) of Regulation No 259/68 the applicant also received, on 20 December 1968, a telegram from the Director-General for Personnel and Administration explaining that the applicant would only receive a full pension on completion of her 60th year. At that the applicant requested by letter of 23 December 1968 an extension of the period allowed for exercising the option; she also pointed out that the telegram might cause her à réviser la décision de cesser mes fonctions (to reconsider my decision to leave the service). Next, on 13 January 1969, the Director-General for Personnel and Administration issued an avis de liquidation des droits à l'indemnité prevue à l'article 5 du réglement no 259/68 du Conseil (notice concerning settlement of claims for the allowance provided for by Article 5 of Regulation No 259/68 of the Council). This explained to the applicant, inter alia, that she could only claim the full pension on completion of her 60th year since upon the expiry of the period during which she was entitled to the allowance she was entitled to the allowance she would not have completed her 55th year. The applicant submitted a complaint under Article 90 of the Staff Regulations on 15 January 1969 and—since this remained unanswered—made an application to the Court of Justice on 23 April 1969.
On 29 October 1968 a request was also sent to the applicant in Case 20/69 for additional information needed in order to determine the monthly allowance. But in his case the notice concerning settlement of claims for the allowance from the Director-General for Personnel and Administration was received as early as 4 December 1968. He too, was informed that the right to receive a full pension could only arise on completion of his 60th year. This caused the applicant to send a letter of complaint on 26 December 1968 to the Director-General for Personnel and Administration. Since the only reply which he received on 10 January 1969, with reference to his principal claim, was a decision to the effect that the Director-General for Personnel and Administration would define his position at a later date, he, too, submitted an application on 25 April 1969 to the Court of Justice.
The course followed by the procedure in Case 23/69 is similar to that in Case 19/69. The applicant responded immediately to the request for additional information in order to calculate the monthly allowance under Article 5 of Regulation No 259/68 sent to her in a letter from the Director-General for Personnel and Administration of 14 November 1968. On 20 December 1968 she, too, received a telegram from the Director-General for Personnel and Administration saying that the right to a full pension would not arise before she had reached the age of 60. The applicant protested against this statement in a letter sent to the Director-General for Personnel and Administration on the same day. She pointed out that her willingness to leave the service voluntarily, that is, the request she had made on 18 April 1968 was determined directly by the in-information which she had received at the time from the administration, according to which a full pension would be payable as from the completion of her 55th year. In view of the change in the administration's attitude in this matter she was bound to reserve the right to withdraw her request for voluntary termination of service. However, on 18 January 1969 a declaration of the Director-General for Personnel and Administration was issued explaining—as in the other cases—that a full pension could be claimed only upon the completion of the 60th year. Since this official, too, received no reply to a formal complaint dated 10 February 1969 she too appealed to the Court of Justice on 2 June 1969.
The applicant in Case 25/69 received her notice concerning settlement of claims for the allowance from the Director-General for Personnel and Administration on 22 November 1968. The applicant submitted her objections to the statement contained therein that a full pension would only be granted upon the completion of her 60th year, in a letter of 2 January 1969 in which she also recalled her earlier repeated requests to be told the amount of the severance grant. When she was informed in a letter from the Director-General for Personnel and Administration of 15 January 1969 simply that he would define his position later on the question of the full pension (she received the calculation of the severance grant which she had requested in a letter of 21 January 1969), she repeated in a formal complaint of 15 February 1969 her objections to the statements concerning the reduction of pension contained in the declaration of 22 November 1968 and, as she received no reply, appealed to the Court of Justice on 13 June 1969.
Lastly it remains to be said in the case of the applicant in Case 30/69 that she, too, received first of all a request from the Director-General for Personnel and Administration on 13 November 1968 for answers to certain questions in order to enable the calculation to be made of the allowance provided for in Article 5 of Regulation No 259/68. She complied with the request. On 26 December 1968 the applicant wrote reminding the Director-General for Personnel and Administration of the information contained in the letter of 29 May 1968 and requesting an additional period in which to exercise the option provided for in Article 6 (2) of Regulation No 259/68 (that is, the choice between a lump sum and a future pension). On 27 January 1969 the applicant received the notice concerning settlement of claims for the allowance from the Director-General for Personnel and Administration. It contained inter alia a statement to the effect that, since the applicant had renounced her right to a pension in a letter of 20 December 1968), she was entitled to a severence grant in accordance with Article 12 of Annex VIII to the Staff Regulations. It was also stated that in the event of a decision for a pension to be paid before completion of her sixtieth year a reduction in accordance with Article 9 of Annex VIII would be unavoidable. The applicant objected to this in a letter of 30 January 1969 and again in a formal complaint of 27 February 1969. She received no response to her request for payment of the full pension. She was merely informed in the letter from the Director-General for Personnel and Administration of 5 March 1969 that the revision of her position made in the letter of 30 January 1969 was accepted, so that it was assumed that she had not renounced her right to a pension within the period prescribed by Regulation No 259/68. There followed in this case, too, the introduction of legal proceedings on 26 June 1969.
What the various applicants seek from the Court of Justice is clear from the description of the facts.
All the applicants request in the first place the annulment of the declaration made by the Director-General for Personnel and Administration concerning claims to the monthly allowance under Article 5 of Regulation No 259/68, that is, for the annulment of the measures adopted on 22 November 1968, 4 December 1968, 13 January 1969, 18 January 1969 and 27 January 1969.
In addition to this they ask that the interpretation originally given of the pensions rules should be acknowledged as correct and that an order should be made that claims be settled in accordance with it (there is also the effect which the claim made in Case 23/69 should be understood to have, that the applicant's claim to the monthly allowance under Article 5 of Regulation No 159/68 of the Council—meaning of course Regulation No 259/68—should be determined in accordance with the provisional calculation in Document No 3.46/IX/68—F/Frau Fiehn).
Alternatively, the applicants in Cases 25 and 30/69 request the annulment of the decisions of 20 June 1968 and that the Commission be ordered to pay damages amounting to three years' salary. The alternative claims in Cases 19 and 20/69 are now formulated in the same way, although at first they asked that the Commission's decisions of 20 June 1968 be annulled and the applicants be reinstated.
The applicant in Case 23/69 likewise asks, in the alternative, for the Commission to be ordered to pay damages.
In addition to that, there is to be found in this case the alternative claim that the applicant be restored to the position in which she would have been had she not submitted her request of 18 April 1968, and in particular that she be re-assigned to a comparable post in the departments of the Commission of the European Communities.
The opinion expressed by the Commission in its pleadings is, as regards all the applications, that they should be dismissed in their entirety, that is, including the alternative claims, as inadmissible or unfounded.
Legal consideration
I — Questions of admissibility
Logically the first thing to be considered in our examination of the facts is the doubts and objections as to admissibility raised by the Commission during the proceedings (though with different emphases) or which should be raised by the Court of its own motion.
1. On the requests for annulment
The most important consideration here, of course, is the notices issued by the Director-General for Personnel and Administration of the Commission at various times to the applicants. More precisely, (some of the dates given in the applications are wrong) these are the notices of 22 November 1968, 4 December 1968, 13 January 1969, 18 January 1969 and 27 January 1969. Against these the applicants made—as I have said—firstly complaints through official channels and only afterwards did they appeal to the Court of Justice.
2. On the alternative claims
Objections were also made as to the admissibility of the alternative claims. These also should be considered now, although essentially they require an answer only if the principal claims are rejected.
II — The substance of the case
1. The first question which arises as regards the substance of the case, to which we now come, is whether the interpretation given in the notices of 22 November 1968, 4 December 1968, 13 January 1969, 18 January 1969 and 27 January 1969 of subparagraph 4 of Article 5 (7) of Regulation No 259/68 is valid, that is, the interpretation according to which a full pension can only be claimed if the person entitled to it has completed his 55th year upon the expiry of the period for which he is entitled to payments under Article 5, or whether the information supplied in March 1968, according to which a full pension is allowed on completion of the 55th year to all officials who have left the service under Regulation No 259/68, is valid.
2. However, the above conclusion does not yet make it certain that the interpretation established is binding in the case of the applicants. The applicants say that it is not, relying on the information communicated to them early in 1968, that is, on the principle that vested rights must be protected. Let us therefore see what we are to make of this point.
3. A third argument put forward only in Case 19, 25 and 30/69 also concerns the legality of the notices, but is not concerned with the validity of the declarations made concerning pensions. It is claimed—under the heading procedural defects—that the information necessary for exercising the option provided for in Article 6 of Regulation No 259/68 was not given the applicants until after 31 December 1968, that is to say, after expiry of the time allowed for exercising the option. It was thus impossible for them to choose between a severance grant and the payment of a pension in full knowledge of all the necessary details.
4. That being so, I must now examine the alternative conclusions put forward by all the applicants. As you know their principal demand is that the Commission be ordered to pay damages. The applicants'view is that the duty to compensate them arises from the fact that the Commission's administration supplied wrong information in the spring of 1968 on the interpretation of Regulation No 259/68. This persuaded the applicants to submit requests to have their service terminated in accordance with Article 4 of Regulation No 259/68. Had the content of the rules governing pensions in Article 5 been explained to them correctly at that time, they add, they would not have submitted their requests or would have withdrawn them. Thus they would have remained in the service of the Commission and would not have been exposed to the risk of being inadequately provided for after they had reached the age of fifty-five.
5. A further alternative claim concerns only Case 23/69. As you know this asked for smart-money (Schmerzensgeld), that is payment of compensation for non-material damage.
6. In view of the result so far it seems unnecessary now to go into another alternative claim, put forward in Case 23/69 alone in the event of the claim founded on the Commission's liability being rejected. The applicant in this case insists, as you know, that in those circumstances she be reinstated in the service of the Commission. As grounds for this she claims that she can call in issue her request for the termination of her service on the ground of mistake and thus annul it, and therefore render the measure terminating her service void.
III — Summary
From the wealth of material in the proceedings before us in these five cases I can now express the following opinion :
I consider the content of the claims concerning the notices admissible but unfounded. The fourth subparagraph of Article 5 (7) of Regulation No 259/68 must in fact be interpreted to the effect that only an official who has attained the age of fifty-five upon the expiry of the period for which he is entitled to receive an allowance can claim payment of a full pension.
As to the claims for damages, I would say that the applicants in Cases 25 and 30/69 have yet to bring proof that they submitted their requests for voluntary termination of service on the basis of the information concerning the provisions governing pensions. In the other cases, I conclude that the Commission's conduct on the question of pensions amounts to a wrongful act or omission, and gives rise to a duty to compensate. However it cannot yet be ordered to pay damages. This can only arise in the future and subject to the circumstances as they will then be.
The claim for an award of damages for non-material injury should be rejected as unfounded.
On the basis of this outcome of the cases it seems reasonable for the Commission to pay one half of the applicants' costs in those cases where judgment on their substance can be delivered.
1 Translated from the German.