Judgment of the Court (second chamber) 27 October 1977 Robert Giry v Commission of the European Communities
In Joined Cases 126/75, 34 and 92/76,
THE COURT (Second Chamber), composed of: M. Sørensen, President of Chamber, P. Pescatore and Lord Mackenzie Stuart, Judges, Advocate-General: F. Capotorti Registrar: A. Van Houtte
give the following
JUDGMENT
Facts and issues
I — Facts and procedure
II — Conclusions, submissions and arguments of the parties
The application in Case 126/75 (lodged on 12 January 1976)
The Commission's application for a declaration that Joined Cases 126/75 and 34/76 should not proceed to judgment (lodged on 25 August 1976)
The applicant's observations on the application for a declaration that the cases should not proceed to judgment (lodged on 17 September 1976)
The application in Case 92/76 (lodged on 27 September 1976)
The defence in Joined Cases 126/75 and 34/76 (lodged on 25 October 1976)
The objection of inadmissibility submitted by the Commission in Case 92/76 (lodged on 3 November 1976)
The applicant's observations on the objection of inadmissibility submitted by the Commission in Case 92/76 (lodged on 7 December 1976)
The reply in Joined Cases 126/75 and 34/76 (lodged on 19 January 1977)
Defence in Case 92/76 (lodged on 31 January 1977)
The rejoinder in Joined Cases 126/75 and 34/76 (lodged on 14 March 1977)
The reply in Case 92/76 (lodged on 31 March 1977)
The rejoinder in Case 92/76 (lodged on 2 May 1977)
III — Oral procedure
Decision
Costs
I —. Facts and procedure
1. The applicant, who was appointed as a Principal Administrator in Grade A 4 in the service of the Commission on 1 January 1961, was granted leave on personal grounds with effect from 12 October 1970, which was extended until 11 October 1973. During and even subsequent to this leave he occupied posts in the service of the United Nations (UN Conference on Trade and Development — UNCTAD).
2. The written procedure followed the normal course.
II —. Conclusions, submissions and arguments of the parties
1. In that application the applicant claims that the Court should:
2. According to the applicant, Article 40 (4) (d) of the Staff Regulations means that reinstatement on the expiry of leave on personal grounds imposes a duty both on the official and on the Commission. The judgment of the Court in Case 1/74 confirms this view. The article in question makes no provision for the leave to be prolonged beyond two extensions unless an official refuses the first post offered to him.
1. The Commission claims that the Court should:
2. The Commission contends that the purpose of these applications no longer exists since its decision of 29 July 1976 concerning the reinstatement of the applicant must be regarded as giving him full satisfaction.
1. The applicant contends that the Court should:
2. The applicant states, first, that the application for a declaration that the cases should not proceed to judgment is premature; because the applicant was on leave, he was informed of the Commission's decision of 29 July 1976 only by a telephone message from his lawyer on 14 September 1976. The application for a declaration that the cases should not proceed to judgment was lodged on 25 August 1976; at the time when the Commission was drawing up that application it could not therefore have known whether the applicant was or was not accepting his reinstatement.
1. The applicant repeats the first five paragraphs of his conclusions in Case 126/75 and that relating to costs, except that in the case of the third paragraph of those conclusions he claims that the appointments in question were made in breach of Article 4 of the Staff Regulations. With respect to subparagraphs (a) and (b) of the sixth paragraph of his conclusions in Case 126/75, the applicant now requests that legal interest on account of delay in payment be added to his salary.
2. The applicant states that the wording of Article 40 of the Staff Regulations which applies to his reinstatement is that in force at the time when leave on personal grounds was granted and not, therefore, the wording at present in force. He bases this argument on the fact that, by letter of 18 November 1970, the Director-General of Personnel and Administration had explained to him that … your administrative position is governed by Article 40 of the Staff Regulations of Officials, a copy of which is attached…. In consequence this wording has contractual force and its subsequent amendment cannot be invoked against the applicant.
1. The Commission claims that the Court should:
2. The Commission does not dispute that it was late in applying Article 40 (4) (d) of the Staff Regulations.
1. The Commission claims that the Court should:
2. The Commission first asks the Court to ignore all references to the correspondence exchanged and the contacts made in the course of attempts at conciliation between the applicant's lawyer and the officers of the Commission and to refrain from taking any notice of any document relating to them produced by the applicant at any stage of the proceedings.
1. The applicant claims that the Court should:
1. The applicant repeats the conclusions which he put forward in Case 92/76 with the exception of that referring to the annulment of the decision of 29 July 1976 and that referring to the severance grant.
III —. Oral procedure
1. The applications in the three joined cases are, essentially, intended to secure:
2. The defendant, the Commission, raised certain preliminary objections on which the Court reserved its decision for the final judgment.
3. In view of the close connexion between these objections and the submissions on the substance relied on by the parties, consideration must first be given to the latter.
4. Article 40 (4) (d) of the Staff Regulations provides that, on the expiry of his leave, an official must be reinstated in the first post corresponding to his grade which falls vacant, provided that he satisfies the requirements for that post.
5. The applicant contends that the Commission has disregarded his rights under this provision by offering him reinstatement not in the first post which fell vacant in accordance with the requirements of the Staff Regulations but only in 1976, first by a letter of 1 March and then by the formal decision of 29 July.
6. However, before the expiry of his leave, the applicant had requested a measure terminating his service pursuant to Regulation (EEC) No 2530/72 of the Council and the refusal of this request by the Commission was contested by the applicant in a preliminary complaint through official channels and subsequently by application to the Court, which the Court (Second Chamber) dismissed by its judgment of 21 November 1974 in Case 1/74 [1974] ECR 1269.
7. Although it was accompanied by a request for reinstatement, the applicant's persistence in his request for termination of service was liable to cast doubt on the genuineness of his desire to make himself available to the Commission.
8. It was only as from 21 November 1974, the date of the judgment referred to, that the applicant can with certainty be said to have been in a position to claim his rights under Article 40 (4) (d) of the Staff Regulations.
9. The doubt to which the applicant's attitude gave rise was finally removed only by the letter which he addressed to the Commission on 6 January 1975 confirming his request for reinstatement.
10. It was therefore after the receipt of that letter, at the latest, that the Commission was under a clear duty to reinstate the applicant on the first occasion on which the requirements of Article 40 of the Staff Regulations were satisfied.
11. The Commission has not disputed, during the proceedings, that the proposal for reinstatement addressed to the applicant by the letter of 1 March 1976 and formally confirmed by the decision of 29 July 1976 was a belated one.
12. On the other hand the applicant refused the offer and contested the validity of the Commission's decision, in particular because it made no provision for the reinstatement to be effective retroactively from 12 October 1973.
13. Whilst it is true that the decision fixes 15 August 1976 as the date from which the reinstatement takes effect, conditions are attached to it which, on all essential points, are tantamount to giving it the retroactive effect sought by the applicant.
14. In fact the applicant's seniority in grade and step is fixed as though the reinstatement had taken place on 12 October 1973.
15. As regards the pension scheme, the period from 12 October 1973 to 14 August 1976 is to be taken into account subject to a contribution from the applicant
16. Finally, on the subject of salary, the applicant was invited to supply the Commission with a statement of the salary which he had received during the same period in respect of his service with the United Nations, so as to enable the Commission to calculate any pecuniary damage suffered as a result of his belated reinstatement.
17. It follows that the applicant has no legal interest in seeking the annulment of the decision of 29 July 1976 and that, in consequence, his application on this subject must be dismissed.
18. The position is the same as regards the application for the annulment of the appointments made since 12 October 1973 to posts in Grade A 4 or Career Bracket A 5/A 4.
19. With regard to the applications for compensation, it must first be determined whether the applicant's behaviour contributed to the damage which he claims to have suffered.
20. On this aspect it has been stated above that, during the period from 12 October 1973 to 21 November 1974, the date of the judgment of the Court in Case 1/74, the applicant, by persisting in his request for termination of service under the specially favourable conditions provided for in Regulation (EEC) No 2530/72, cast doubt on the seriousness of his request for reinstatement.
21. Furthermore, the applicant's reply to the Commission's offer of 1 March 1976 and to the decision of 29 July 1976 was to contest the validity of those acts and to refuse to return to duty in the service of the Commission although it would have been permissible, and quite enough to protect his rights, for him to accept the post offered to him, without prejudice to his setting in motion the procedures provided for in the Staff Regulations in order to test the legality of the arrangements for reinstatement.
22. It is true that at a later stage, namely in the reply lodged on 19 January 1977 in Joined Cases 126/75 and 34/76, the applicant suggested, in order to preserve his rights, that the Commission should allow him to return to duty on condition that such a return did not mean that he accepted the arrangements or conditions on the basis of which the Commission had made its offer.
23. However, such a statement, made in the course of the written procedure in an action before the Court, cannot take the place of an acceptance, within the meaning of Article 40 (4) (d) of the Staff Regulations, of the post offered.
24. The course of events, viewed as a whole, accordingly makes it clear that the applicant's conduct helped so much to create and prolong the difficulties in the way of his reinstatement that the Commission cannot be held responsible for the non-material damage which the applicant claims to have suffered.
25. Nevertheless, during the intermediate period between the date on which in accordance with Article 40 of the Staff Regulations reinstatement became possible as a result of the applicant's request for reinstatement of 6 January 1975, and 1 March 1976, the date of the Commission's first offer, the Commission failed to comply with the duty imposed upon it by Article 40 (4) (d) of the Staff Regulations.
26. As far as this period is concerned therefore it must be determined whether, as the applicant claims, he has suffered pecuniary damage in connexion with the advancement of his career.
27. It cannot be determined with any certainty what chances the applicant would have had of advancement in his career during that period.
28. Generally speaking, the chances of advancement during such a period are so vague and hypothetical that they do not in themselves justify a finding that the applicant suffered pecuniary damage under this head.
29. The applications for compensation must therefore be rejected.
30. Finally the applicant has sought the award of a severance grant, as provided for in Article 12 of Annex VIII to the Staff Regulations, as well as the grant of the allowances provided for in Annex IV to the Staff Regulations in the event of being assigned non-active status or in the event of retirement in the interests of the service.
31. These applications cannot be upheld since the applicant's service has not been terminated pursuant to any of the provisions mentioned.
32. Accordingly, the applications made by the applicant must be rejected in their entirety.
33. In the circumstances, there is no need to consider the preliminary objections raised by the Commission.
34. Under the terms of Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.
35. The applicant has failed in his submissions.
36. However, under the terms of Article 70 of the said rules, the costs incurred by the institutions in actions brought by employees of the Community are to be borne by such institutions.
On those grounds, THE COURT (Second Chamber) hereby:
1 Dismisses the applications in the joined cases;
2 Orders each party to pay its own costs.
1 Language of the Case: French.