JUDGMENT OF 13.7.1972 — CASE 79/71 HEINEMANN v COMMISSION
In Case 79/71
THE COURT (First Chamber) composed of J. Mertens de Wilmars, President, A. M. Donner (Rapporteur) and R. Monaco, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts and procedure
II — Conclusions of the parties
III — Submission and arguments of the parties
A — Admissibility
1. The principle head of the applicant's conclusions
2. The first head of the applicant's alternative conclusions
3. The second head of the applicant's alternative conclusions
B — The substance of the case
1. The principle head of the applicant's conclusions
2. The first head of the applicant's alternative conclusions
3. The second head of the applicant's alternative conclusions
4. The claim for costs
Grounds of judgment
On the application for the annulment
Admissibility
The claim for damages
On admissibility
On the substance of the case
Costs
I —. Facts and procedure
II —. Conclusions of the parties
1. annul the notice of settlement issued by the Commission of the European Communities on 13 January 1969 and fix his rights to the monthly allowance provided for in Article 5 of Regulation No 259/68 of the Council in accordance with the particulars provisionally set out in Document No 3476/IX/68-F-M-Heinemann, No 1538;
2. in the alternative, order the Commission of the European Communities to pay to the applicant from the time when he attains the age of 55 until he attains the age of 60 a monthly allowance equal to the retirement pension to which he would be regarded as entitled if the fourth subparagraph of Article 5(7) were applicable to him;
3. in the further alternative, reinstate the applicant in a post corresponding to his earlier employment;
4. order the Commission of the European Communities to pay the costs even if the applicant should be unsuccessful.
1. dismiss the appeal as inadmissible;
2. in the alternative, dismiss the appeal as unfounded;
3. order the applicant to pay the costs.
III —. Submission and arguments of the parties
A —. Admissibility
1. The principle head of the applicant's conclusions
2. The first head of the applicant's alternative conclusions
3. The second head of the applicant's alternative conclusions
B —. The substance of the case
1. The principle head of the applicant's conclusions
(a). the Court's interpretation in the above-mentioned cases of the fourth subparagraph of Article 5(7) of Regulation No 259/68 infringes the principle interpretatio contra stipulatorem: such an obscurely-drafted provision cannot be put forward as the basis of the notice of settlement.
(b). the Court's decision that the information given by the Commission constituted statements provided for the purposes of guidance and did not establish any rights cannot be accepted since, in the corpus of information and promises concerned the preponderant element was that of a binding promise. A causal link exists between the information given, the request for voluntary termination of service and acceptance of the request; as regards the applicant, the Commission undertook to issue a subsequent statement of financial rights corresponding to the information supplied. The promises were made by the competent authority, expressly designated by the appointing authority. No objections may be raised to form and content.
2. The first head of the applicant's alternative conclusions
(a). The evidence of persons with whom he discussed the advantages and disadvantages of the early termination of his service under the terms and conditions notified to him by the Commission.
(b). His letter to the President of the Commission of 6 February 1969 in which he reacted against the notice of settlement sent to him on 13 January 1969. His desire to be reinstated in the departments of the defendant institution is clearly shown in the terms of this letter: this substantially changes the conditions of my departure and I consider that the conditions which had led me to terminate my service prematurely are no longer satisfied.
(c). The evidence of Mr Sorge, with whom in February and at the beginning of March 1969 the applicant discussed the change in his position brought about by the notice of settlement. During these various discussions he expressed his intention to apply again for the post which he previously held and which, at that time, was still vacant.
(d). His letter of 19 November 1969 to the President of the Commission which again shows the importance which the applicant attached to a right to a full pension as from the age of 55 years: as I have six small dependent children the possibility of being entitled to the retirement pension as from the age of 55 was an important factor in my decision to seek the termination of my service under Regulation No 259/68 of the Council.
(e). His discussion with Mr Dieter Rogalla, Head of Division, at the end of the spring of 1970, in which he asked when he might be reinstated into the administration.
(a). The applicant did not clearly express his desire to be reinstated in the departments of the defendant institution in either his letter of 20 December 1968 or that of 4 February 1969, unlike Mrs Fiehn (the applicant in Case 23/69) who, immediately after the rectification of the information given by the Commission, clearly showed her intention to go back on her request for voluntary termination of service.
(b). Unlike Mrs Fiehn, Mr Heinemann, who was eight years younger, terminated his service with the intention of taking up other activities. The applicant's statements show that his wish to work as an independent architect was the determining factor in his decision to seek the early termination of his service.
3. The second head of the applicant's alternative conclusions
4. The claim for costs
1. By an application received at the Registry on 25 August 1971 the applicant brought an action, first, for the annulment of the decision of 13 January 1969 relating to a notice concerning the settlement of claims for the allowance provided for in Article 5 of Regulation No 259/68, and in the alternative, an order that the Commission of the European Communities shall pay him from his fifty-fifth year until he reaches the age of 60 a monthly allowance equal to the retirement pension which would be awarded to him if the fourth subparagraph of Article 5 (7) were applicable to him, and, in the further alternative, his reinstatement in a post comparable to his former post.
2. The defendant has raised an objection of inadmissibility based on the force of res judicata of the Court's judgments in Joined Cases 19, 20, 25 and 30/69 and in Case 23/69 and the failure to observe the time-limits laid down in Article 91 of the Staff Regulations of Officials.
3. The notice of settlement of 13 January 1969 is a measure capable of adversely affecting the applicant and may therefore be contested under the conditions laid down in Articles 90 and 91 of the Staff Regulations. The applicant only filed a complaint within the meaning of Article 90 of the Staff Regulations on 7 May 1971, that is, almost two and a half years after notification of the notice of 13 January 1969.
4. The applicant maintains that by the two letters dated 12 March 1969 the defendant intended to suspend the validity of the notice in question until the Court gave judgment in the above-mentioned cases. Therefore the time-limit laid down in Article 91 of the Staff Regulations only began to run, according to the applicant, from the moment the applicant became aware of these judgments, that is, from the end of February 1971.
5. The applicant's argument cannot be accepted. The administration can only suspend the validity of a measure which it has adopted by means of a statement which clearly and unequivocally shows its intention to do so. No such statement was made in the present case. Therefore, as the application for the annulment of the notice of 13 January 1969 was not lodged within the time-limits laid down in Article 91 of the Staff Regulations it is inadmissible.
6. The defendant maintains that the application for damages is inadmissible on the ground that the applicant is attempting to obtain by this means the same result as that sought by the inadmissible application for annulment.
7. The application for damages in an independent legal remedy, which is subject to certain conditions adapted to its purpose. It does not seek to have a specific decision set aside but to make good the damage caused by an institution in the exercise of its functions. The claim for damages is based not on the unlawful nature of the notice of settlement but on the wrong information provided by the defendant on 5 March 1968 and its belated correction. It cannot therefore be equated with the application for annulment, even though, as far as the applicant is concerned, the financial result of the two actions is the same.
8. Therefore, as the claim for damages is not subject to the time-limits laid down in Article 91 of the Staff Regulations, it must be regarded as admissible.
9. For the application to be well-founded it must be established that the defendant is liable for a wrongful act or omission which caused the applicant a still subsisting injury.
10. It is not contested that the appropriate departments supplied the applicant with incorrect information concerning the rights which he would be able to assert in the event of termination of his service. Nor is it contested that this information was supplied as a consequence of the request by the Commission to the officials concerned to contact the relevant departments in order to obtain information on the rights which they would have should Article 4 of Regulation No 259/68 be applied. It is also not contested that the departments concerned discovered early in April 1968 that their interpretation of the disputed provision in Article 5 on which they had acted was, if not incorrect, at least very much open to question. This discovery was in fact the main reason for the publication on 16 April 1968 of a communication from the Commission reminding staff that the information given was supplied only as a guide and without commitment.
11. Apart from the exceptional instance, the adoption of an incorrect interpretation does not in itself constitute a wrongful act. Even the fact that the authorities request those concerned to obtain information from the competent departments does not necessarily involve those authorities in an obligation to guarantee the correctness of information supplied and therefore make them liable for any injury which may be occasioned by incorrect information.
12. However, while it may be possible to doubt the existence of a wrongful act or omission concerning the supply of incorrect information, the same cannot be said of the departments' delay in rectifying the information. Although such rectification was possible as early as April 1968 it was deferred without any justification until the end of 1968. An express correction made shortly after 16 April, that is to say, before the time when those concerned had to make their decision, would certainly have enabled the defendant to avoid all liability for the consequences of the wrong information. The failure to issue such a correction is, on the other hand, a matter of such a nature as to render the Communities liable.
13. The applicant has maintained that his belief that he would receive a full pension from the age of 55 years had played such an important part in his decision to seek retirement within the context of the voluntary termination of service provided for by Article 4 of Regulation No 259/68 of the Council that he would have decided otherwise had he known that he would only receive a full pension as from the age of 60.
14. It emerges from the applicant's letter of 6 February 1969 to the President of the Commission and, in particular, from the evidence of Mr Sorge, the applicant's immediate superior at the time when he decided to seek premature retirement, that the prospect of a full pension tipped the scales when he took his decision. The fact that the applicant did not expressly seek reinstatement in his letter of 6 February 1969 cannot upset this conclusion. As the causal link between the Commission's wrongful act or omission and the damage suffered by the applicant has been established, his claim for damages must be regarded as well-founded. In these circumstances, the Commission must be ordered to pay to the applicant as from the time when he attains the age of 55 years until he attains the age of 60 years a monthly allowance equal to the pension payments to which he would have been entitled if the fourth subparagraph of Article 5(7) of Regulation No 259/68 had been applicable to him.
15. As the claim for damages succeeds it is unnecessary to consider the application for reinstatement.
16. The applicant has failed in a part of his application. However, it is clear from the foregoing that the appeal was brought as the result of a wrongful act or omission on the part of the defendant. This being so, in accordance with Article 69 of the Rules of Procedure, the defendant must be ordered to pay the costs of the action.
On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the opinion of the Advocate-General; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Staff Regulations of Officials, especially Article 91; Having regard to Regulation No 259/68 of the Council, especially Article 5; Having regard to Rules of Procedure of the Court of Justice of the European Communities; THE COURT (First Chamber) hereby:
1 Dismisses the application for the annulment of the decision of 13 January 1969 relating to a notice concerning the settlement of claims for the allowance provided for in Article 5 of Regulation No 259/68;
2 Orders the Commission of the European Communities to pay to the applicant, as from the time when he attains the age of 55 years until he attains the age of 60 years, a monthly allowance equal to the pension payments to which he would have been entitled if the fourth subparagraph of Article 5(7) of Regulation No 259/68 had been applicable to him;
3 Orders the Commission of the European Communities to pay the costs of the action.