Opinion of Mr advocate-general Capotorti

Mr President,

Members of the Court,

1. The substance of the dispute between Mr Robert Giry and the Commission, which has given rise to the three Joined Cases 126/75, 34/76 and 92/76, is concerned with the following question: if, despite the provisions of Article 40 (4) (d) of the Staff Regulations of Officials, an official has not, after the expiry of a period of leave, been reinstated in the post within the prescribed time, is he to be recognized as having the right to be reinstated retroactively (or from the date when the leave expired) for all purposes, in particular as regards the payment of salary?

2. The applicant was engaged on 1 January 1961 as Principal Administrator in Grade A 4 at the Commission. At his own request he was granted leave on personal grounds with effect from 12 October 1970 in accordance with Article 40 of the Staff Regulations of Officials. This leave expired on 11 October 1973. On 22 January 1973 the applicant requested the application to him of Regulation (EEC) No 2530/72 of the Council, which provided for special, favourable conditions for the termination of service of officials on the occasion of the accession of new Member States to the Community but three months later, while the request was still pending, he informed the Commission that he wished to be reinstated on the conclusion of his leave, that is to say, as from 12 October 1973. He therefore asked to be informed what post would be offered to him in accordance with Article 40 (4) (d) of the Staff Regulations of Officials.

3. In its statement of 25 August 1976 the Commission raised the objection that there was no cause of action on the ground that the first two actions by Mr Giry had lost their purpose as the result of the said decision of 29 July 1976 to reinstate him.

4. I now go on to consider the substance of Case 92/76 in so far, of course, as it involves conclusions other than the two which I have found to be inadmissible.

5. Mr Giry is therefore entitled to call upon the Commission to compensate him for the damage caused him by the infringement of Article 40 (4) (d) of the Staff Regulations. It remains to be seen whether he is or is not entitled, on this ground, to receive a sum equal to the whole amount of the salary which he would have received if he had been reinstated on the expiry of his leave.

6. Consideration must now be given to the question whether, over and above the compensation referred to above, the applicant is entitled to further damages.

7. In the light of the opinion which I have expressed concerning the action brought against the decision of 29 July 1976, it is now possible to determine the effect of that decision on the two actions which preceded it as a result of the implied refusal to reinstate the applicant and which gave rise to Cases 126/75 and 34/76.

8. As regards the decision on costs, allowance must be made for the fact that it was the unwarranted delay on the part of the Commission which gave rise to Application 126/75. Application 34/76 was a protective one and its submission is due to the continuation of the delay rather than the reasons put forward by the Commission in the Sergy case, to which I have referred. Finally, in Case 92/76, the applicant was justified in a not inconsiderable number of his conclusions.

I conclude therefore with the recommendation that the Court should, in accordance with the principles described above, order the Commission to compensate the applicant for:

Finally I recommend that the defendant be ordered to bear the costs of all three actions.

1 Translated from the Italian.