Opinion of Mr Advocate-General Roemer

Mr President,

Members of the Court,

Like other proceedings brought before the Court in 1969, the case in which I have to give my opinion today concerns the application of Regulation No 259/68 of the Council of 29 February 1968 (OJ, English Special Edition 1968(I), p. 30). As you know, the special temporary provisions contained in Chapter II of this regulation were intended to enable the Commission to rationalize its departments and reduce the number of posts. To this end officials of the Commission were entitled to submit requests for the premature termination of their service on especially favourable terms. Before this regulation was implemented the President of the Commission had requested the officials concerned on 5 March 1968 to seek information about the financial consequences of termination of service from certain clearly designated officials.

This opportunity was used by the applicant in the present case, who entered the service of the Commission on 1 September 1959 and was finally classified in Grade 4/6. In answer to his request for information he received in April 1968 a document stating the periods during which the temporary allowance would= be paid and in what sums. He was also informed of the amount of the full pension which he could expect to receive on reaching the age of 55 years. The applicant claims that this information made him decide to submit an application for the termination of his service on 13 April 1968 (that is, shortly before the expiry of the period fixed for that purpose). A letter from the Directorate-General for Personnel and Administration dated 21 June 1968 informed him that his application was accepted and his service was terminated with effect from 1 October 1968. However, after his retirement from the service, the applicant—like other officials—was informed by telegram dated 20 December 1968 that he was only entitled to a full pension as from the age of 60 years. He considered this to be an impermissible alteration of the promise made to him in April 1968. He accordingly reacted to this communication with a letter to the Directorate-General for Personnel and Administration dated 20 December 1968 in which he explained that, as he had based his application for termination of service in good faith on the accuracy of the information given to him, he could not accept this subsequent communication. On 13 January 1969 the applicant received a notice of settlement from the Directorate-General for Personnel and Administration concerning the monthly allowance to which he was entitled under Article 5 of Regulation No 259/68. It was also clearly stated in this notice that the applicant was only entitled to a full pension as from the age of 60 years and that if he should claim a pension as from the age of 55 years it would be reduced by an amount which was clearly indicated in the notice.

Unlike other officials, the applicant did not lodge a formal complaint under Article 90 of the Staff Regulations but wrote to the Directorate-General for Personnel and Administration on 4 February 1969 to seek information as to the time-limits for lodging an objection (Einspruch) to the notice of settlement. In addition, he addressed a letter to the President of the Commission (on 6 February 1969). The letter says that the communication concerning the commencement of payment of the full pension constitutes a modification of the terms of departure (Abgangsbedingungen) and accordingly seeks an amendment to the notice of settlement. A letter in the French language from the Directorate-General for Personnel and Administration dated 12 March 1969 explained the means of redress open to the applicant. Another letter from the same Directorate-General bearing the same date assured the applicant that, in reply to his request in the letter of 6 February 1969, an examination of the problem would be undertaken and that he would be informed of its outcome. This convinced the applicant that he should wait. It was only in a letter dated 17 November 1969 that he reminded the President of the Commission that a decision was still outstanding on the question of payment of the retirement pension as from the age of 55 years; on this point he was informed by a letter of 18 December 1969 from the private office of the President that all the facts necessary for a final settlement of the question were not yet available. At the same time the applicant also inquired orally about his case and received similarly stalling answer from officials of the Commission.

After he became aware that the Court had given judgment in a similar case in Case 23/69 he reminded the Directorate-General for Personnel and Administration in a letter dated 6 January 1971 of his earlier requests and expressed the opinion that this judgment enabled his case to be settled. He received no reply to this letter. He therefore decided on 7 May 1971 to lodge a formal complaint under Article 90 of the Staff Regulations against the notice of settlement of 13 January 1969. In this complaint he asked to be granted a full pension as from the age of 55 years or, in the alternative, that he be given the right to choose once more whether or not to opt for voluntary termination of service. As he also received no reply to this complaint he finally appealed to the Court on 25 August 1971. In his appeal claims that the Court should:

The Commission reacted to this by bringing an application under Article 91 of the Rules of Procedure, that is, it sought a ruling on the admissibility of the appeal without going into the substance of the case and the dismissal of the appeal in its entirety as inadmissible. The Chamber did not, however, grant the application but by order of 15 December 1971, reserved the question of admissibility for the final judgment. During the proceedings the Commission adhered to its opinion that the appeal was totally inadmissible. In the alternative it maintains that the appeal must be dismissed as unfounded.

I shall now consider the merits of these conclusions.

1 Translated from the German.