JUDGMENT OF 30. 6. 1971 — CASE 19/70 ALMINI v COMMISSION

In Case No 19/70

THE COURT (Second Chamber) composed of A. Trabucchi, President of Chamber, P. Pescatore (Rapporteur) and H. Kutscher, Judges, Advocate-General: A. Dutheillet de Lamothe Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

II — Procedure

III — Conclusions of the parties

IV — Submissions and arguments of the parties

A — Admissibility

B — Substance

1. The request for annulment of the decision to retire the applicant

2. The claim for annulment of the decision to transfer the applicant

3. The claim for damages

Grounds of judgment

Costs

I —. Facts

II —. Procedure

III —. Conclusions of the parties

(a). first, annul the Commission's decision of 11 February 1970 to retire him.

(b). so far as may be necessary, annul the Commission's decision of 23 July 1969 transferring him from the Directorate for Publications to the post of Principal Adviser in the Directorate-General for Personnel and Administration in Luxembourg and provisionally entrusting the management of the Office for Publications to Mr Reichling, assisted by Mr Leclerc, an official seconded from the Council.

(c). alternatively, declare the Commission responsible for the damage caused to the applicant by its wrongful acts or omissions and accordingly order it to extend the compensation and pension allowed to the applicant under Article 42 of the former ECSC Staff Regulations so as to ensure him up to the age of 65 an occupational income equal to that which he would have obtained had he retained his post with the Communities, together with social security cover until his death.

(d). order the Commission to pay the costs of the proceedings.

(a). declare the application inadmissible in so far as it asks for the annulment of the Commission's decision of 23 July 1969 by which the management of the Office for Publications was entrusted to Mr Reichling, with Mr Leclerc as his assistant.

(b). in any event, dismiss the application as wholly unfounded.

(c). order the applicant to pay the costs.

IV —. Submissions and arguments of the parties

A —. Admissibility

B —. Substance

1. The request for annulment of the decision to retire the applicant

(a). It was not taken in the interests of the service; the applicant who performed the duties of Director of Publications of the EEC was replaced by Mr Leclerc who during the whole of his service with the Council had never dealt with problems arising in publication or in publishing.

(b). It is vitiated by misuse of powers since it was taken in order to satisfy Mr Leclerc who, owing to his own and his wife's political activities in a French department bordering on the Grand Duchy of Luxembourg, had a personal interest in obtaining a transfer from Brussels to Luxembourg.

(c). The Commission had maintained that it had been unable to keep the applicant in the post of Director of the Office for Publications since there was an absence of unanimity within the Management Committee in his favour yet, as soon as the applicant was no longer in service, the A 2 post with the Office was declared vacant as a post of Principal Adviser, to which the unanimity rule does not apply.

(d). The Commission did not use the necessary diligence in order to safeguard the applicant's legitimate career prospects. Since July 1969 the Commission had at least five opportunities to assign the applicant to a post of Director for which he had the necessary qualifications; in respect of some of these posts the applicant could have offered much special experience acquired in the service of the Community.

(a). The applicant lost sight of the fact that the contested decision has nothing whatever to do with filling the post of Director of the Office for Publications and therefore all the expositions, which in any event are wholly subjective, as regards his alleged ability to fill this post are irrelevant.

(b). Mr Leclerc is at present seconded to the Commission but remains Principal Adviser at the Council; this provisional assignment was not made for political reasons. Besides, the reasons which an official may have for preferring one place of work to another are not such as to support a charge of misuse of powers on the part of the Commission in deciding to retire the applicant.

(c). There can be no question of keeping the applicant in the post of Director of the Office for Publications since he never exercised this function; furthermore his application for this post was not supported by the majority of the members of the Management Committee.

(d). As regards the five posts to which the applicant could have been appointed, it must be pointed out that, as regards the first post, the applicant, about whom no decision as to retirement was even yet being contemplated, did not apply for it and that as regards the four other posts of Director created within the framework of the reorganization of the Directorate-General for Personnel and Administration, there was an express finding that the applicant did not possess the skills required for them. In these circumstances the Commission had in the interests of the service been led to take the decision, in question in these proceedings, to retire the applicant; the alleged misuse of powers is in no way established.

2. The claim for annulment of the decision to transfer the applicant

3. The claim for damages

1. The application seeks in the first place the annulment of the decision taken by the Commission on 11 February 1970 under Article 50 of the Staff Regulations to retire the applicant in the interests of the service.

2. The applicant, who entered the service of the High Authority of the ECSC on 14 June 1954, held several posts within the European Coal and Steel Community and was established in Grade A 2 as from 1 January 1962.

3. Within the framework of the administrative restructuring which followed the merger of the executives, he was assigned on 28 March 1968 to the post of Director of Publications with the Directorate-General for Personnel and Administration of the Commission of the European Communities.

4. By decision of 23 July 1969 the Commission decided to discharge him from this post and to assign him as Principal Adviser to the Assistant Director-General for Personnel and Administration in Luxembourg.

5. In deliberations held on 14 January 1970 the Commission decided to retire him in the interests of the service under Article 50 of the Staff Regulations.

6. By letter of 20 January 1970, confirming a previous verbal notification, the Commission informed the applicant of this intention and asked him to make his views known before 26 January 1970.

7. After the applicant had made his comments by letter of 24 January 1970, the Commission on 11 February 1970 took the decision to retire the applicant in the interests of the service with effect from 1 March 1970, granting him the allowance and the pension laid down for such a case by the Staff Regulations.

8. Under the provisions of Article 50 of the Staff Regulations of Officials ‘an official holding a post in Grades A 1 or A 2 may be retired in the interests of the service by decision of the appointing authority.

9. As a corollary to the discretion conferred on the institutions by Article 29 (2) as regards appointments at this level, the appointing authority enjoys wide discretionary powers in so far as retirement from the service and dismissal of officials belonging to these grades are concerned.

10. The Staff Regulations do not limit the reasons which may justify a retirement under Article 50, since these could lie in the objective requirements of the service as well as in the assessment of the officials’ specific qualities in relation to such requirements.

11. The exercise of discretionary powers which are so widely defined nevertheless requires that the official concerning whom such a measure is contemplated should first have an opportunity of effectively defending his interests.

12. On this point it must first be said that the applicant who had given proof of a cooperative attitude at the time when he was transferred from the post of Director of Publications to that of Principal Adviser, to the point of accepting a decision the form of which was open to criticism, found himself, as a result of the Commission's letter of 20 January 1970, suddenly faced with the prospect of being retired at short notice.

13. By this letter he was asked to make his comments within a period which, taking into account the distance, amounted at the most to four days.

14. In his reply of 24 January, after having conveyed to the Commission that he found it difficult to deal effectively with the matter in the absence of more precise information as to the reasons of public interest upon which the action envisaged in respect of him was based, the applicant emphasized that a less precipitate course of action might possibly allow a favourable solution to be found for his case.

15. Moreover, in contrast to the letter of 20 January 1970, the purport of which was to suggest objective service reasons, it can be seen from the minutes of the Commission's meeting of 11 February 1970 that the decision to retire him was finally taken by reason of an assessment of the applicant's personal ability in relation to the requirements of certain possible postings.

16. It therefore appears that in giving him by its letter of 20 January 1970, the opportunity of making his views known, the Commission did not give him an opportunity of commenting on the factors which in the final analysis seem decisive.

17. Taking into account all the circumstances, in particular the applicant's record, his seniority and his age at the time of the contested decision, the procedure adopted by the Commission did not have regard to the elementary safeguards which must be given to an official in case of abolition of his post under Article 50 of the Staff Regulations.

18. The Commission's decision of 11 February 1970 to retire the applicant must therefore be annulled.

19. It is not therefore necessary to examine the applicant's other arguments or to rule on the alternative conclusions.

20. Under the first subparagraph Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered, to pay the costs.

21. The defendant has failed in its submissions and must accordingly be ordered to pay the 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 the Staff Regulations of Officials, especially Articles 29 and 50; Having regard to the Protocol on the Statute of the Court of Justice; Having regard to the Rules of Procedure; THE COURT (Second Chamber) hereby:

1 Annuls the decision of 11 February 1970 by which the Commission of the European Communities retired the applicant;

2 Orders the Commission to pay the cost of the proceedings.