JUDGMENT OF 20. 2. 1975 — CASE 38/74 GEERLINGS v COMMISSION

In Case 38/74

THE COURT (Second Chamber) composed of: A. J. Mackenzie Stuart, President of Chamber, H. Kutscher and M. Sørensen (Rapporteur), Judges, Advocate-General: A. Trabucchi Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and procedure

II — Submissions of the parties

III — Submissions and arguments of the parties

Law

Costs

I —. Facts and procedure

1. Mr M. W. Geerlings, of Dutch nationality, belongs to the scientific service of the European Communities. His last post was that of Head of the Radio-Chemical Division at the European Institute for Transuranium Elements at Karlsruhe.

2. By a letter of 10 September 1973, Mr Geerlings requested the application to him of a measure terminating his service pursuant to Regulation of the Council No 1543/73 of 4 June 1973 introducing special measures temporarily applicable to officials of the European Communities paid from research and investment funds (OJ L 155/1 of 11. 4. 1973).

3. As there no reply to the complaint submitted on 24 December 1973 by Mr Geerlings against this decision, the present appeal was lodged on 30 May 1974.

II —. Submissions of the parties

(i). dismiss the application as inadmissible in so far as it seeks a declaration that the Commission is under a duty to adopt a measure terminating the service of the applicant within the meaning of Regulation No 1543/73;

(ii). in any case dismiss the application as unfounded;

(iii). order the other party to pay the costs, in accordance with the relevant provisions.

III —. Submissions and arguments of the parties

1. The application seeks annulment of the refusal by the Commission to grant the applicant a measure terminating his service pursuant to Regulation No 1543/73 of the Council introducing special measures temporarily applicable to officials of the European Communities paid from research and investment funds.

2. Since 1 July 1969 the applicant, a scientific officer employed by Euratom, has been on leave on personal grounds within the meaning of Article 40 of the Staff Regulations of Officials.

3. On 10 December 1973, the Commission rejected his request for a measure terminating his service pursuant to Regulation No 1543/73 on the ground that, on 7 November 1973, it had decided that the regulation did not apply to officials who were on leave on personal grounds.

4. The applicant seeks annulment of this decision because it is based on an erroneous interpretation of the regulation by the Commission.

5. The applicant bases his case mainly on Article 40 (4) (d) of the Staff Regulations, which confers on an official on leave on personal grounds the right to be reinstated in the first post corresponding to his grade which falls vacant.

6. Under Article 2 of Regulation No 1543/73 the Commission is authorized to take measures for the termination of service of officials in order to deal with exceptional problems arising from the adoption of research programmes involving a reduction in the number of posts in the plan of staff paid from European Atomic Energy Community research and investment funds, and problems arising from the accession of new Member States to the European Communities.

7. The regulation is thus partly designed to resolve the problems created by the reduction in the number of posts.

8. As this is its object, the regulation cannot apply to individuals not actually occupying a post.

9. An official on leave on personal grounds does hot actually occupy a post and has no right to reinstatement unless there is a post vacant.

10. In these circumstances, the Commission has rightly interpreted Regulation No 1543/73 as not applying to officials who are on leave on personal grounds.

11. The applicant further contends that the repeated refusal of the Commission to reinstate him pursuant to Article 40 (4) of the Staff Regulations, combined with the refusal to apply to him a measure terminating his services under Regulation No 1543/73, is evidence of the Commission's unlawful intention to terminate his service while denying him the rights and privileges provided for under the Staff Regulations.

12. The Commission justified its rejections of the applicant's requests to be reinstated on the ground that the budget for research approved by the Council rules out any practical possibility of reinstating the scientific staff on the conclusion of leave on personal grounds, and on the ground that it was necessary to recognize the large number of supernumerary officials still employed as having, when appointment was made to a vacancy, priority over officials who were not in employment.

13. As support for the non-application of Article 40 (4) (d), these grounds cannot be criticized in law.

14. The applicant has not attempted to challenge the facts on which the grounds for these decisions are based.

15. It is, moreover, established that no measure for termination of service has been taken in respect of the applicant, so that he is still on leave on personal grounds, enjoying the rights which flow from that status.

16. In these circumstances, this submission cannot be upheld.

17. The application must therefore be dismissed.

18. The applicant has failed in his application.

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

20. However, under Article 70 of the said Rules, the institutions shall bear their own costs in the case of actions by officials and servants of the Communities.

On those grounds, THE COURT (Second Chamber) hereby:

1 Dismisses the application as unfounded.

2 Orders each of the parties to pay its own costs.

1 Article 2 of the Regulation provides as follows: 1. In order to deal with exceptional problems arising from the adoption of research programmes involving a reduction in the number of posts provided in the plan of staff paid from European Atomic Energy Community research and investment funds, and problems arising from the accession of new Member States to the European Communities, the Commission is hereby authorized until 31 December 1973 and within the limit of the number of posts affected, to take measures to terminate the service, within the meaning of Article 47 of the Staff Regulations, of those of its officials who are paid from research and investment funds, under the conditions laid down below. … … 2. The Commission shall determine which posts are to be affected by the measures provided for in paragraph 1. The Commission shall draw up a list of officials according to grade, affected by these measures after consulting the Joint Committee, which shall accord a hearing to the official when he so requests. It shall take into account the interests of the service and take into consideration the official's age, ability, efficiency, conduct in the service, family circumstances and seniority. … The Commission shall, where the interest of the service so permits, accord priority treatment to applications from officials who request termination of service under paragraph 1. When such an application is rejected, the rejection must indicate the reasons and be communicated in writing to the person concerned. …