Opinion of Mr Advocate-General Trabucchi

Mr President,

Members of the Court,

1. In this case, which concerns the Commission's refusal to consider the request of one of its officials for the termination of his service under Regulation No 2530/72 of the Council of 4 December 1972, there is a preliminary question of admissibility. The defendant has in fact claimed that the action for the annulment of the Commissions's refusal to terminate service must be considered inadmissible since the request for termination of service no longer existed at the time when the Commission had decided to reject it.

2. Moving on to discuss the merits, here also we must base the whole discussion on recalling a fundamental point to which the arguments deduced hinc inde must be referred in order to establish their value and significance.

3. I shall therefore examine, firstly, whether the argument of the defendant that Regulation No 2530/72 of the Council could not apply to officials who, at the time of presenting their request, were on leave on personal grounds, is correct.

4. In view of the above, even that which I have presented as a possible error in law in the reasoning of the refusal may be regarded in another light. Even though it is not quite correct to state that the Regulation prevented the Commission from considering the request for termination of service presented by an official on leave, such a prohibition could in any case ensue from the. said general decision adopted by the Commission itself for the purpose of defining the criteria for the implementation of the Regulation on the basis of the interests of the service.

5. If the Commission was free to lay down criteria which amounted, in the main, to limits on its discretionary power in respect of the implementation of the Regulation in question, it was nevertheless bound, in applying the general criteria which it established, to act in a nondiscriminatory manner. The applicant considers however that the Commission infringed, to his detriment, this general principle of non-discrimination by applying the provisions of the Regulation to two officials at a time when, like the applicant, they were on leave on personal grounds. The defendant raises the defence that, at the time when these two officials presented their requests to benefit under the Regulation they were in active employment, and their leave on personal grounds commenced only later, following rejection of their requests for termination of service. This consideration adopted by the defendant, which is linked with the situation existing at the time when the request is presented, should serve, in principle, to bring its behaviour into line with the restrictive interpretation of the Council Regulation, and at any rate with the general restrictive criterion defined for its application, excluding any official who is on leave. This consideration cannot, however, change the real position resulting from the way in which events actually turned out: the Regulation relating to termination of service under special preferential conditions was applied to two officials who, at the time, did not occupy a permanent post. If one considers that the purpose of the Regulation is the crucial consideration for its application, then it is impossible to see the difference, as regards satisfying that purpose, between the position of two officials who, even though they still occupied a post at the time they presented their requests for termination of service, nevertheless, following rejection of these requests, chose to go on leave, and the position of an official who was already on leave.

1 Translated from the Italian.

2 Translator's note: con priorità has not been translated in the English version of Article 2 (3) of Regulation No 2530/72.