OPINION OF MR ROEMER — CASE 32/69 TORTORA v COMMISSION

Mr President,

Members of the Court,

Today's proceedings are concerned with the conditions under which an official who has left the service of the Communities may obtain monetary compensation for leave which he had not used up. The following is a brief introduction to the case.

The applicant entered the service of the European Communities in April 1958 and was at first an official of the Euratom Commission in Grade A5. As from 10 October 1963 he became a temporary servant (under Title II of the Conditions of Employment of Other Servants of the Communities) and was employed as deputy principal private secretary to the President of the High Authority of the European Coal and Steel Community. He was made a permanent official of the High Authority by a decision of 15 April 1964, taking effect as from 16 April 1964. In spite of his continuing employment as deputy principal private secretary to the President of the High Authority at the corresponding salary (that applicable to Grade A3) he was allocated to a post of Principal Administrator in the Directorate of Inspection. This post was in Grade A5; later as holder of the post he was promoted to Grade A4 with retroactive effect from 16 April 1964. By a decision of 14 January 1966, taking effect from 16 November 1965, he was made principal private secretary to the President of the High Authority. Thenceforth his salary was that appropriate to Grade A2. He nevertheless retained his post in the Directorate of Inspection. On 5 March 1967 the President of the High Authority resigned. Thereafter the duties of the President were carried out by the Vice-President of the High Authority. Nevertheless the private office of the President remained in being under the control of the applicant. Together with the other private offices it was only closed down following the merger of the Executives, that is with the end of the mandate of the members of the High Authority on 5 July 1967. The High Authority had however decided on 14 June 1967, to retain the staff of the private offices at their current salaries, for the month of July 1967 and to put them at the disposal of the former members of the High Authority to enable the work of the private offices to be wound up. This applied to the applicant as well. In addition at its meeting on 21 and 22 June 1967 the High Authority further made the decision to release the applicant from his position of principal private secretary with effect from 1 August 1967, and to assign him to the department in which a post as Principal Administrator had been reserved for him with a Grade A4 salary, that is to say, in the Directorate of Inspection. The parties do not agree on the activities of the applicant from then on. In any event, the applicant maintains that he continued to be engaged in winding up the work of the private office of the former President of the High Authority. Following the publication of Regulation No 259/68 of the Council the applicant took advantage of the opportunity offered in Article 4 of Chapter 2 and applied for the termination of his service. This was granted by the Commission by a decision of 20 June 1968, taking effect from 1 October 1968. The applicant was informed of this in a letter from the Directorate-General for Personnel and Administration of 21 June 1968. For the purpose of these proceedings it is relevant to note that the letter contained a request to use up the leave remaining due to him before his notice took effect, unless urgent service reasons prevented this. The applicant did not comply with this request. However, after he had left the service, first on 27 November 1968 and again on 8 April 1969 he applied to the Personnel Department of the Commission claiming compensation, under the terms of Article 4 of Annex V to the Staff Regulations, for the total of 67 days leave for 1968 and earlier years which he had not been able to take before the termination of his service. His application was however unsuccessful. After referring to the request of 21 June 1968, sent to the applicant and to a statement by his superior on 19 February 1969 that no urgent service reasons had prevented him from going on leave, the Director-General for Personnel and Administration rejected the claim in a letter of 30 April 1969.

The applicant lodged an application at the Court on 22 July 1969 contesting the rejection of his claim. In accordance with his conclusions, we shall first examine whether a right to compensation for leave which has not been used up, actually exists. Should the occasion arise we must also decide for how many days leave compensation is payable and on which basic salary it should be calculated. Finally there is the application to have one sentence struck out of the defendant's reply because the applicant thinks that it casts aspersions on his honour.

My opinion in the case is as follows:

1 Translated from the German.