JUDGMENT OF 1. 7. 1976 - CASE 58/75 SERGY v COMMISSION

In Case 58/75

THE COURT (First Chamber) composed of: A. O'Keeffe, President, A.M. Donner and J. Mertens de Wilmars, Judges, Advocate-General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and procedure,

II — Conclusions of the parties

III — Submissions and arguments of the parties

1. Facts

2. Admissibility

3. The substance of the case

Law

Application for annulment

Admissibility

The substance of the case

The claim for damages

Admissibility

The substance of the case

Costs

I —. Facts and procedure,

II —. Conclusions of the parties

1. Declare the application to be well-founded;

2. Loss of chances of promotion:

3. Loss of remuneration:

(a). with regard to the applications for the amendment of the reinstatement decision of 10 September 1974 fix according to the rules of natural justice the date on which the applicant should have been reinstated and refer the case back for appropriate action by the Commission on the basis of a revision of the applicant's career, pension rights and remuneration;

(b). as regards the applications for orders for payment other than those concerning loss of remuneration, determine, accordingly, the proportion of the expenses incurred as a result of the delay in reinstatement which shall be borne by the defendant, if at all, and dismiss as unfounded the application referring to the loss of chances fo promotion;

(c). dismiss as unfounded the submissions and arguments of the applicant which seek that the Court shall note that he reserves the right to make a subsequent claim for compensation for the damage suffered as a result of being forced to give up his post in the French Administration;

III —. Submissions and arguments of the parties

1. Facts

2. Admissibility

(a). Inasmuch as the application seeks to have the applicant's reinstatement backdated to 1 July 1972, it constitutes an application for partial annulment of the decision. But it was quite impossible to make that decision retroactive since it is unlawful to fill a post for a period before the post has become vacant. Since the reinstatement decision was valid and could not, in law, have the effect which the applicant seeks to ascribe to it, it has caused him no damage, so that an application for annulment brought against that decision is inadmissible and, in consequence, any action brought for damages which contests the legality of that measure is also inadmissible.

(b). The letter of 30 May 1972, addressed by the applicant to the Commission at the end of his leave on personal grounds, must be treated as constituting a request within the meaning of Article 90 (1) of the Staff Regulations. Since that request elicited no express reply from the Commission within the period of 4 months provided for under Article 90 (1) of the Staff Regulations, it must be considered as the subject of an implied decision rejecting it against which a complaint ought to have been lodged within the three months. As this was not done, the applicant can no longer contest this decision or call it in question by an application for annulment or by an application for damages, both of which are out of time.

(c). In fact, the measures which were such as to affect the applicant adversely were the various decisions in which the appointing authority assigned to someone other than the applicant one of the vacant posts in which, according to the applicant, he ought to have been reinstated. These decisions of appointment and promotion receive the same wide publicity as the vacant posts of which the applicant is aware, which justifies the assumption that he was also aware of these decisions. On each occasion the applicant was, accordingly, in the position provided for at the end of the second subparagraph of Article 90 (2) of the Staff Regulations and therefore he could and should have lodged a complaint in the three months following the date on which he received notification of the measure. Since he failed to do so, any application against those measures is inadmissible as out of time. Furthermore, the applicant cannot seek to surmount the inadmissibility of any application for annulment by means of an application for damages.

3. The substance of the case

(1). With regard to loss of seniority, the applicant seeks compensation in kind by the fixing at 1 July 1972 the date on which the reinstatement takes effect, the fixing of seniority in Grade A 6 at 1 August 1971 and his classification on the date on which reinstatement takes effect in Step 1 of Grade A 6 with seniority from 15 March 1971.

(2). As regards the loss of chances of promotion, the applicant states that although there is nothing certain about promotion to a higher office, the loss of a chance of promotion constitutes a head of damage under which compensation may be claimed and, in the present case, covers the period from 1 March 1973 to 1 May 1975 and should be assessed at BF 70000.

(3). The loss of remuneration includes first the loss of salary, namely BF 667540, from 1 July 1972 to 31 August 1973, the date from which the applicant received his salary at the Directorate of Taxes at the French Ministry for Economic Affairs and Finance. In respect of the subsequent period it includes the difference between the French salary actually drawn from 1 September 1973 to 31 July 1974 and the European salary which he should have drawn during that period. This difference is BF 244641.

1. The applicant complains of the Commission's delay in reinstating him in a post in his category and grade at the end of leave on personal grounds which expired on 31 May 1972 and seeks compensation for the damage which he claims to have suffered as a result.

2. Despite its ambiguous terms, the application may be regarded as seeking, first, the partial annulment of the Commission's decision of 10 September 1974, reinstating the applicant in a post in his category and grade with effect from 15 August 1974 and, secondly, the award of damages under various heads.

3. The defendant contests the admissibility of the application on the ground that the contested decision is not the cause of the alleged damage, which was the result of earlier decisions by which, in disregard of the obligation to reinstate the applicant, vacancies which arose after his leave on personal grounds had ended were filled.

4. While complaining of the delay in reinstating him, the applicant does not contest the legality of the disputed decision in so far as it reinstates him, but only in so far as it fails to make certain provisions, especially as regards the date on which it takes effect and the backdating of seniority in grade and step, which would have cancelled the effects of that delay.

5. His interest in seeking annulment is the obligation which might as a result be imposed on the appointing authority to make the reinstatement subject to different and more favourable conditions.

6. The application is admissible.

7. It is apparent from the file that, in the circumstances described in the account of the facts given in the present judgment, when his leave on personal grounds ended on 31 May 1972 the applicant made himself available to the Commission for the purpose of being reinstated in a post corresponding to his category and grade in accordance with Article 40 (4) (d) of the Staff Regulations of Officials.

8. His reinstatement was only given effect by a decision of 10 September 1974 which, moreover, provides that it shall take effect on 15 August 1974 (Article 1) and that the applicant shall be classified in Grade A 6 with seniority as from 15 September 1973 and in Step 1 of that grade with seniority as from 1 May 1973.

9. The reason for the two lastmentioned dates is the fact that, when leave on personal grounds was granted to him the applicant had 11 months' seniority in Grade A 6 and 15 months' in Step 1 of that grade and that these two periods were incorporated in the decision by reference to the date on which his reinstatement took effect, 15 August 1974.

10. The applicant contests the selection of these dates and claims especially that the backdating of seniority should have been based not on the actual date of his reinstatement but the date on which, as required by Article 40 of the Staff Regulations, he was required to be reinstated.

11. Article 40 (4) (d) of the Staff Regulations in the version applicable at the date (1 June 1972) on which the applicant's leave on personal grounds ended provided that on the expiry of his leave an official must be reinstated in the first post corresponding to his grade which falls vacant in his category or service. If he declines the post offered to him, he shall retain his right to reinstatement when the next vacancy … occurs.

12. By Regulation No 1473/62 of the Council of 30 June 1972, which came into force on 1 July 1972, this provision was supplemented by the inclusion of the words provided that he satisfies the requirements for that post.

13. This addition is not, however, such as to alter the assessment of the defendant's conduct since all it does is to confirm a discretion which, in the interests of the service, the administrative authority has in any case to exercise.

14. During the oral procedure the defendant acknowledged that various posts capable of being filled by the applicant fell vacant shortly after the expiry of the leave on personal grounds.

15. In consequence, by failing to reinstate the applicant until more than two years had elapsed, the defendant is in breach of Article 40 (4) (d) of the Staff Regulations.

16. By bringing to an end, albeit belatedly, a situation which was contrary to the law, the defendant was under a duty to expunge, in so far as possible, the consequences of its illegal conduct.

17. Although the basic rule laid down in Article 4 of the Staff Regulations that a post shall be filled only if it is vacant prevents the decision of reinstatement from having retroactive effect, the situation could be restored to legality, at least in part, by antedating seniority in grade and step 11 and 15 months prior, not to the date when the applicant was reinstated but to the date when he should have been reinstated.

18. It is clear from the list of vacancies produced by the applicant that, although many posts in Grade A6/A7 have been filled since 1 July 1972 these posts were of a very different kind, so that it cannot be taken for granted that each of them corresponded to the applicant's abilities.

19. In these circumstances, in view both of the discretion vested in the administrative authority and of the right granted to an official to decline the first offer of reinstatement, it seems appropriate to accept that in the normal course of events the applicant should have been reinstated by 15 August 1972.

20. The defendant contends that the alleged delay is in part due to the wrongful omission of the applicant in failing to draw the authority's attention to the fact that he was not being reinstated within the normal time.

21. It will be necessary to examine whether this possibility is such as to affect the assessment of the claim for damages but, in the context of an application for annulment, there is no need to take it into account for the purposes of determining the normal date on which the defendant was required to comply with Article 40 of the Staff Regulations.

22. In these circumstances the defendant, in fixing, by the contested decision, the date of classification according to seniority in grade and step at respectively 15 September and 1 May 1973, was in breach of Article 40 of the Staff Regulations and of the rule requiring it to remedy so far as possible the consequences of a belated application of that provision.

23. The decision must, to that extent, be annulled and, for the purpose of giving effect to this judgment, it will be for the defendant to determine the applicant's seniority in grade and step and to calculate his pension as if the irregularity which has been found had not occurred.

24. The Court accordingly expects this seniority in grade and step to be fixed at, respectively, 11 and 15 months from 15 August 1972.

25. The applicant further seeks an order for the payment to him by the defendant, by way of compensation for the damage which he claims to have suffered as the consequence of the alleged delay, of various sums under the following headings.

26. In addition, the applicant reserves the right to obtain compensation for any damage which may be caused him owing to the fact that, because he was forced to give up his office in the French Administration without having arranged in advance for his secondment or resignation in order to comply with the offer of reinstatement in a Commission post, he was dismissed by the said administration; the legality of that dismissal is, however, the subject-matter of proceedings before the French administrative courts.

27. According to the defendant, the claim for damages is inadmissible because the decision of reinstatement is not illegal and, in consequence, cannot constitute a measure capable of engendering a claim for compensation.

28. It has already been established that the illegality attaching to the decision of reinstatement consists both in in the delay in taking the decision and in the failure to compensate for that delay.

29. This illegality is such as to cause damage to the applicant, so that the submission of inadmissibility must be dismissed.

30. The defendant further claims that two of the various heads of damage are inadmissible, specifically that relating to expenses incurred BF 144500 and that relating to the reservation arising from the applicant's dismissal by the French Minister of Finance, on the ground that, contrary to the requirements of Articles 90 and 91 of the Staff Regulations, no mention was made of those claims in the complaint addressed to the defendant on 9 December 1974.

31. Under Article 91 of the Staff Regulations an appeal to the Court of Justice shall lie only if the appointing authority has previously had a complaint submitted to it and the complaint has been rejected by a decision.

32. The object of that provision is to enable and encourage an amicable settlement of difference which has arisen between officials or servants and the administration; in order to comply with this requirement it is essential that the administration be in a position to know the complaints or requests of the person concerned.

33. On the other hand, it is not the purpose of that provision to bind strictly and absolutely the contentious stage of the proceedings, if any, provided that the claims submitted at that stage change neither the cause nor the subject-matter of the complaint.

34. This is particularly so when the administration, by remaining silent and having recourse to the procedure of implied rejection, has refused all consideration or discussion of the complaint.

35. Moreover, in his complaint, the applicant, after setting out his grounds for complaint, claimed that his belated reinstatement was causing him considerable damage the main constituents of which he went on to enumerate.

36. In these circumstances, the additional factors which are alleged to stem from the conduct for which the administration is criticized and to be directed to the question of compensation for the damage which the applicant claims to have suffered on that account may be submitted for consideration by the Court.

37. The measures which the defendant will have to take in order to give effect to this judgment, in so far as it partially annuls the decision of 10 September 1974, will only in part compensate for the damage suffered by the applicant.

38. It is therefore necessary to consider the various claims submitted for additional compensation.

39. Although, in the absence of any services rendered, the applicant cannot claim payment of arrears of salary, he is entitled to receive compensation for the actual damage he has suffered through the loss of this salary as a result of the unlawful conduct of the defendant.

40. In principle, the compensation payable on that account should be equal to the net emoluments to which he would have been entitled, subject however to deduction of the net earned income received for the same period while engaged in other employment.

41. At the same time, consideration must be given to the question whether, as the defendant maintains, the applicant is not, on account of his conduct, partially responsible for the damage suffered.

42. The parties disagree on the facts concerning the personal approaches which the applicant made with a view to his reinstatement after it became evident that this was taking time.

43. It is clear from the file that, at the end of his leave, on 30 May 1972, the applicant notified his wish to be reinstated; that, on 19 June 1972, the administration informed him that he would be notified of the first vacancy which would enable you to be reinstated; and that, nine months later, in April 1973, he replied within a reasonable time to a request for information which had been sent to him.

44. Nevertheless, it seems that during this latter period or shortly afterwards he took steps with a view to being re-engaged as an official in the French Ministry of Finance and that he was in fact re-engaged since he was remunerated as such from 1 September 1973.

45. It is not easy to understand why the applicant who, without doubt, had to take a number of official steps in order to secure his re-employment in the French administration, in which he had been employed before he entered the service of the Communities in 1964, did not take similar steps, traces of which would surely be bound to be in evidence, in order to expedite his reinstatement.

46. The absence during the whole of that period of any official request or protest indicates, at the very least, a lack of ordinary vigilance likely to help to prolong the delay of which he complains.

47. This fact must be taken into account in assessing the extent to which the defendant must make good the damage.

48. In these circumstances and in view of the redress provided by the finding of annulment, justice will be done by ordering the Community to pay to the applicant damages equal to the loss of net salary suffered from 15 August 1972 to 31 August 1973, together with legal interest, and by dismissing the remainder of the claim.

49. The figure, namely BF 667540, submitted by the applicant as representing loss of salary from 1 July 1972 to 31 August 1973, has not been contested by the defendant.

50. It must, however, be reduced by the equivalent of a month and a half's salary since the normal date for reinstatement has been fixed above at 15 August 1972.

51. The Commission must therefore be ordered to pay to the applicant the sum of BF 667540 minus 65754 = 601786 together with legal interest at 8 % from 9 December 1974, the date of the complaint lodged by the applicant.

52. Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs if they have been asked for in the successful party's pleading.

53. The defendant has not succeeded in its defence.

54. It must therefore be ordered to pay the costs.

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

1 Annuls the decision of the Commission of 10 September 1974 in so far as it lays down the dates from which the applicant's seniority in grade and step is to be reckoned;

2 Orders the Commission to pay to the applicant the sum of BF 601786 together with interest at 8 % from 9 December 1974;

3 Orders the defendant to bear the costs.