Opinion of Mr Advocate-General Roemer

Mr President,

Members of the Court,

The applicant in the case with which I shall deal today entered the service of the High Authority of the European Coal and Steel Community on 1 February 1960, after a lengthy career in the Italian steel industry. There he was initially given Grade A2, and headed the Directorate of Markets within the Directorate-General for Steel. After the departure of the Director of that Directorate-General, the applicant was promoted to Grade Al and entrusted with the leadership of the Directorate-General. When in July 1967 pursuant to the Merger Treaty of 8 April 1965 a single Commission wás established for the three Communities, the problem of the reorganization of their administrative structure immediately arose. Twenty-four Directorates-General were then established and their directors nominated. No longer was provision made for a special Directorate-General for Steel, and it became a Directorate within the Directorate-General for Industrial Affairs. When the posts of directors-general were allocated, none fell to the applicant. With the same grade he became first of all Assistant Director-General for Industrial Affairs, entrusted in particular with steel problems. On 22 December 1967 the Commission subsequently decided to create a further Directorate-General concerned with the dissemination of information under the Euratom Treaty. The applicant learned of this from a letter from the President of the Commission of 6 January 1968 which informed him at the same time that provision was being made to appoint the applicant Director of this Directorate-General. His official appointment to this post followed in a decision of 20 March 1968 with effect from 28 March 1968, and the applicant was notified of this by a letter of 22 March 1968. It was however evident that this decision was not calculated to satisfy the applicant. About the same time, more precisely on 27 March 1968, he in fact applied for the advertised post of Director-General for Industrial Affairs which had in the meantime fallen vacant. Another official was however assigned to this post by way of promotion, by a decision of 9 April 1968. This led the applicant on 17 April 1968 to request the termination of his service relationship in accordance with Article 4 of the well-known Regulation No 259/68 of the Council. But in this, too, he was unsuccessful: by a letter from the President of 13 June 1968 the applicant was informed that the Commission could not dispense with his services and the request he had made was thus rejected. Even before this, that is by a letter of 17 May 1968, the applicant had approached the President of the Commission and, referring to the special requirements of the post to which he had been assigned, and to which his capacities, experience and training did not correspond, had repeated the application which he had made under Article 4 of Regulation No 259/68. Likewise, before the express rejection of the applicant's request of which he knew in advance, he submitted a complaint to the Commission wherein he requested that Article 50 of the Staff Regulations of Officials be applied to him, and consequently his retirement in the interests of the service. On 10 October 1968 the applicant addressed a letter of complaint to the President wherein he continued to insist that he be released from his duties in accordance with Article 50 of the Staff Regulations of Officials. Further contacts with members of the Commission followed and on 3 February 1969 the Vice-President of the Commission, Mr Levi Sandri, addressed a letter to the applicant pointing out that the latter could perfectly well perform the duties assigned to him and that on the other hand the application of Article 50 a few months after such assignment appeared extraordinarily difficult. From March 1969 the applicant stayed in Italy because of illness. As he endeavours to prove by a medical certificate dated 21 April 1969, this illness is said to have been caused by the conditions of service which he criticized. In March 1969 he also approached the President of the European Parliament in order to acquaint the latter with his problems. The differences then appear to have reached a head in May 1969. In particular, the doctor treating the applicant is said to have declared that the latter, who in the meantime had almost recovered, would suffer a relapse if his conditions of work remained unchanged. The applicant therefore wrote a letter to the Commission on 26 May 1969 in which, after repeated complaints about the development of his career and after indicating that he had since become ill as a result of the assignment to him of unfamiliar duties, he declared that he felt himself compelled to tender his resignation and a date for this should be fixed as soon as possible; furthermore, since the Commission was at fault, his pecuniary rights must be calculated in accordance with Article 42 of the former Staff Regulations of Officials of the ECSC, that is, the provision which governed retirement in the interests of the service and which continues to be applicable under Article 99 of the Staff Regulations of Officials of the ECSC. This led the Commission to take very quickly the decision which gave rise to the present dispute. In fact the Commission decided on 4 June 1969 to accept the applicant's resignation in accordance with Article 48 of the Staff Regulations of Officials, with'effect from 10 June 1969. It did not, however, prescribe that Article 50 of the Staff Regulations of Officials, in conjunction with Article 42 of the Staff Regulations of Officials of the ECSC, should apply to his pecuniary rights; instead they were to be governed by Article 12 of Annex VIII to the Staff Regulations of Officials which means that in view of his years of service he could only claim a severance grant. These decisions were notified to the applicant in a letter from Vice-President Barre of 5 June 1969. As he did not concur in the settlement adopted, the applicant brought the matter before the Court of Justice on 4 August 1969, having apparently taken up a post in the Italian steel industry with effect from 1 July 1969. In his application he stated expressly that he did not oppose the decision terminating his service as such or the date fixed for termination. He does, however, contest the application of Article 48 of the Staff Regulations of Officials which governs resignation upon request and the determination of his financial claims in accordance with Article 12 of Annex VIII to the Staff Regulations. He is convinced that he may claim the application of Article 42 of the former Staff Regulations of the ECSC, if only in the form of damages. In this way the damages arising from the difference between his earlier and his present incomes would be made good. It is to this end that he formulated his claims for annulment, a declaration and damages, as also his request that the Commission should be ordered to pay in addition 1 lira for non-material damage. Let us now consider whether these claims, which the Commission maintains are entirely unfounded, can succeed.

Legal consideration

I — Admissibility

No objections with regard to admissibility were submitted. They do not require to be raised by the Court of its own motion, neither in connexion with observance of the time-limit — this follows from a comparison of the dates in question — nor with the fact that the decision taken on 4 June 1969 is only partly contested. We can thus turn directly to the question whether the claim is well founded.

II — Substance

As you know, the main argument as to whether the applicant's claims are well founded is to the effect that he did not voluntarily terminate his service under Article 48 of the Staff Regulations, but rather that he was forced to take this step through his conditions of work which had even brought on illness. It is thus possible to speak of termination of the service relationship for just cause or because of a wrongful act or omission on the part of the administration, for which express provision indeed exists under Italian law. In this connexion the applicant refers to Article 2119 of the Italian Civil Code (recesso per giusta causa) (resignation for just cause) which, in accordance with Article 2129 also applies to employees of public bodies (prestatori di lavoro dipendenti da enti pubblici), and in Law No 604 of 15 July 1966, under Article 1, service relationships existing between public bodies (enti pubblici) and employees may be terminated by the latter for just cause (giusta causa). In Community law in such cases there must at least be applied the principle that termination of service relationships must be on the most favourable conditions possible, that is, by applying by analogy, not formally, Article 50 of the Staff Regulations of Officials, or — in the case of ECSC officials — Article 42 of the former Staff Regulations of Officials of the ECSC. In addition account must be taken of the failure to observe the principles contained in Articles 5 and 7 of the Staff Regulations, according to which grades and duties must correspond, in that the applicant has been de facto reduced in status by the abolition of the Directorate-General for Steel of which he was formerly head. Furthermore the statement of reasons for the decision to dismiss him must be objected to as inadequate. Finally, the applicant is entitled at least to compensation for the material and non-material damage, a claim which could be satisfied with his consent by the application of Article 42 of the former Staff Regulations of Officials of the ECSC.

The Commission is indeed correct when it objects initially to this line of argument that under the provisions of the Staff Regulations of Officials in force Community law only recognizes the voluntary termination of a service relationship under Article 48 on the basis of an unequivocal statement of his intention by the official in question which can be succeeded — where the conditions are met — only by a settlement under Article 12 of Annex VIII to the Staff Regulations of Officials. But equally pertinent is the applicant's argument that although the term resignation (dimissione) and wording which corresponds to some extent to Article 48, appear in his application, he in fact submitted more than a simple request to resign. In fact in his letter of 26 May 1969 to the President of the Commission the applicant referred to the change in the conditions of his service, which had even had adverse effects on his health, and going on from there he spoke of a wrongful act on the part of the Commission and of the necessity (necessità) to terminate his service relationship, which, as he had likewise declared in the said letter, justified the application of Article 50 of the Staff Regulations of Officials or of the former Staff Regulations of Officials of the ECSC. Therefore, leaving out of account the wording of Article 48 of the Staff Regulations of Officials, we must consider how this matter is to be judged from the point of view of the law governing the public service.

III — Summary

Without the necessity of considering the applicant's offers of proof I can therefore formulate the following opinion :

The Commission was right in acquiescing in the applicant's unequivocally stated wish to leave the service and to take a decision to this effect. Since it cannot be said that the applicant's tender of resignation was occasioned either by a wrongful act or omission or through compulsion the Commission was justified in applying Article 48 of the Staff Regulations of Officials and, with regard to the calculation of his pecuniary rights, Article 12 of Annex VIII to those Regulations. The application which has been made must thus be dismissed as unfounded and with the further consequence that the applicant must bear the costs incurred by him in the proceedings.

1 Translated from the German.