OPINION OF MR ROEMER — CASE 42/69 CAFIERO v COMMISSION

Mr President,

Members of the Court,

The case before the Court today concerns the application of the special provisions of Regulation No 259/68 of the Council of 29 February 1968 which have already occupied the Court on several occasions and which were intended to allow the single Commission to reduce the number of established posts and rationalize its services. The applicant in the present case was one of those entitled to benefit under these provisions. On 14 March 1968, in accordance with Article 4 (3) of Regulation No 259/68, he submitted an application for his service to be terminated, which the Commission granted in principle by decision of 21 May 1968. Subsequently, the Commission further decided, on 20 June 1968, that the applicant's service would be terminated with effect from 1 October 1968. The applicant was informed of this decision in a letter from the Directorate General for Personnel and Administration dated 21 June 1968, which contained the following words: La sopra-indicata decisione della Commissione … avrà effetto dal 1o ottobre 1968 … (The above-mentioned decision of the Commission shall take effect as from 1 October 1968). This date is the cause of the difficulties of the present case. On the basis of his previous career, as a result of which he had attained the position of head of division in Grade A 3, the applicant was due for automatic advancement to the next step in his grade on 1 October 1968, pursuant to Article 44 of the Staff Regulations, on condition that on that date he was still in active employment with the Commission. This fact is of importance inter alia for the calculation of his severance grant in accordance with Article 6 of Regulation No 259/68 in conjunction with Article 12 of Annex VIII to the Staff Regulations, since this is effected on the basis of the last basic salary. As the Court is aware, the Commission is of the opinion that the relationship of master and servant came to an end on 30 September 1968 and that therefore the calculation must be effected on the basis of his salary at that date. This view was intended to be conveyed in a letter from the Directorate General for Personnel and Administration dated 25 June 1969, in which the applicant received details regarding the calculation effected according to Article 12 of Annex VIII to the Staff Regulations. The applicant is however of the opinion that his service was terminated only at the end of the first day of October 1968 and that therefore the calculation of the severance grant should be effected on the basis of the salary to which he would have been entitled on 1 October 1968. He therefore made an application to the Court on 23 September 1969, claiming the annulment of the communication which he received from the Directorate General for Personnel and Administration on 1 July 1969.

1. In deciding what ruling to give in this action the Court should first consider the question of admissibility, notwithstanding the fact that the Commission has raised no objection on this issue. In this connexion account must be taken above all of the nature of the contested measure. It has already been emphasized in earlier cases that, in principle, in matters concerning the law relating to officials only those measures adopted by the appointing authority itself can be contested. The appointing authority for officials in Category A and the body competent to decide questions such as that which concerns us here is not the Director General for Personnel and Administration, who took the decision at issue in this case. This is clear from the general decision taken by the Commission on 6 July 1967 pursuant to Article 2 of the Staff Regulations for the purpose of defining the appointing authority and determining the extent of its powers. Strictly speaking therefore it would be appropriate to conclude that the application for the annulment of the calculation contained in the letter from the Director General for Personnel and Administration dated 25 June 1969 should be dismissed as inadmissible. It does not seem to me however that in the present case the matter at issue should escape judicial review in this way. We must not overlook the fact that basically this case is concerned with a claim for the enforcement of pecuniary rights which arise by law under certain conditions when the master and servant relationship is terminated. The Staff Regulations do not require that this claim should be preceded by an administrative procedure, in the sense that a ruling may be sought from the Court only after the taking by the appointing authority of a definitive decision.

2. In assessing the matter at issue, to which I shall now turn after this brief preliminary survey, the Court is solely concerned to ascertain when the applicant's service was terminated. It will be clear from the answer to this question whether the relevant basis for calculation of his pecuniary rights is his basic salary as at 30 September 1968 or as at 1 October 1968.

3. My opinion may accordingly be summarized as follows :

1 Translated from the German.