Report for the Hearing delivered in Case 12/87

I — Facts and procedure

The applicant, who was an official in Grade C 1 at the Joint Research Centre at Ispra, had, at her request of 5 December 1975, been on leave on personal grounds for one year from 5 January 1976 pursuant to a Commission decision of 20 January 1976. The leave on personal grounds was extended twice, each time for one year, until 5 January 1979. By letter dated 19 February 1979, the applicant confirmed that she wished to be reinstated as a member of the Commission's staff. On 14 April 1981 she confirmed her request to be reinstated, preferably at Ispra, following a letter from the Commission of 18 March informing her that so far, that is between 1979 and 1981, there had been no suitable vacancies for her reinstatement.

On 4 February 1982 Mr Hannaert, the Head of the Personnel and Administration Division at Ispra, proposed to the applicant a post corresponding to her qualifications in the Department for Applied Sciences and Technology in which she would be responsible, under the supervision of the head of the in-service training office, for varied administrative work in relation to trainees, grant-holders and scientific visitors. He stated that the proposal was a first offer of employment within the meaning of Article 40 (4) (d) of the Staff Regulations. On 15 February 1982 the applicant acknowledged receipt of the offer and informed the Commission that, for family reasons, she would be interested in reinstatement at Luxembourg rather than at Ispra.

On 8 March 1982 Mr Hannaert replied that it was not possible to reserve the vacancy at Ispra for the applicant's transfer to Luxembourg and advised her to apply directly to the Commission's personnel division in Luxembourg. Following an exchange of letters between the applicant and the Commission in Luxembourg, Mr Hannaert asked the applicant once again, on 28 May 1984, about her intentions with regard to reinstatement. On 14 June 1984 the applicant replied that she no longer contemplated being reinstated at Ispra.

On 15 October 1984 Mr Hannaert proposed to the applicant a principal secretary's post in Grade C 1 vacant at the Joint Research Centre at Ispra and stated that it was a second offer within the meaning of Article 40 (4) (d) of the Staff Regulations. On 28 October 1984 the applicant confirmed once again that she contemplated reinstatement solely in Luxembourg and that the proposal to reinstate her at Ispra did not accord with her wishes.

In a letter dated 4 June 1985 Mr Hannaert informed the applicant that the Commission contemplated initiating the procedure for compulsory resignation under Articles 49 and 40 (4) (d) of the Staff Regulations and requested her to submit her observations before the matter was referred to the Joint Committee. On 1 July 1985 the applicant protested against the commencement of the procedure for compulsory resignation.

On 25 March 1986 the Director-General of the Joint Research Centre required the applicant to resign with effect from 1 April 1986. In the decision the Commission observed that by letters dated 4 February 1982 and 15 October 1984 a post in her category corresponding to her grade had been offered to the applicant for the purpose of her reinstatement and that by her replies dated 15 February 1982 and 28 October 1984 the applicant had refused the offers.

On 18 June 1986 the applicant lodged a complaint against that decision under Article 90 (2) of the Staff Regulations.

On 21 January 1987, having received no answer to the complaint, the applicant brought the present action.

II — Conclusions of the parties

The applicant claims that the Court should annul:

and that it should order the defendant:

The Commission contends that the Court should:

III — Submissions and arguments of the parties

In support of her application, the applicant submits that there has been an infringement of the second paragraph of Article 49 and Article 40 (4) (d) of the Staff Regulations and that the administration has failed to observe the principle of good faith and its duty to have regard to officials' interests.

In the first place the applicant submits that, contrary to the second paragraph of Article 49 of the Staff Regulations, her views were never heard by the Director-General of the Joint Research Centre.

The exchange of correspondence with Mr Hannaert did not satisfy the requirement of that provision of the Staff Regulations because the applicant had no opportunity of making observations on the Joint Committee's opinion with regard to her. The applicant states that the Staff Regulations provide for the person concerned to be heard because the draftsmen considered that the general principle of respect for the rights of the defence made it necessary to ensure the regularity of the procedure of compulsory resignation and to protect the official against any arbitrariness so that the official concerned would know all the factors on which the administration had based its opinion and would be able to challenge that decision if he considered it unfounded.

In the second place the applicant considers that there was an infringement of Article 40 (4) (d) of the Staff Regulations in several respects.

She infers from the lack of an offer of employment between 5 January 1979 and 4 February 1982 that the administration did not offer to reinstate her, as it ought to have done, in the first vacant post. It is impossible that no grade C 1 post fell vacant in the Commission during a period of more than three years.

The applicant maintains that the offer of a post made on 4 February 1982 had not been validly maintained by the Commission since the applicant intended, after her reinstatement at Ispra, to request to be transferred to Luxembourg. For that reason it was not open to the administration to treat the offer as having been refused.

The applicant claims that the offer of a post made on 15 October 1984 in no way met the criteria of Article 40 (4) (d) of the Staff Regulations in that it did not correspond to her grade or abilities. The applicant also maintains that she did not refuse the post but only asked certain questions in order to be able to take a final decision.

In the third place the applicant bases her complaints of infringement of the principle of good faith on various obvious contradictions on the part of the administration.

The Commission's contention that the list of requests for reinstatement is automatically consulted every time there is a vacancy at the Ispra establishment is contradicted by the fact that the Commission's offer of 15 October 1984 related to a post declared vacant the previous year. The Commission's argument that Article 40 (4) (d) of the Staff Regulations does not give an official on leave on personal grounds a right to choose the place of reinstatement cannot be relied on in good faith if the Commission's practice contradicts it. According to the aforementioned provision, whatever the place of employment, the administration must offer all vacant posts to the officials concerned in so far as they are duly qualified. In the present case, however, the practice was quite different as is apparent from the correspondence asking the applicant about the place of reinstatement.

With regard to the applicant's reaction to the offer of a post of 15 October 1984, she alleges that her subsequent letters cannot be interpreted as a refusal. They are only legitimate queries regarding the various administrative implications of the offer.

Finally, the applicant is of the opinion that the Commission failed to fulfil its duty to have regard to her interests.

Since she had married a Luxembourg national while on leave, she had legitimately asked to be reinstated in Luxembourg and this request was accepted by implication, for Mr Hannaert suggested that she should contact the Commission in Luxembourg. In those circumstances, since compulsory retirement is only an option, even in the case of a refusal of two valid offers of employment, the administration obviously failed to fulfil its duty to have regard to her intersts. The applicant also submits that when on 14 June 1984 she confirmed her willingness to be reinstated in Luxembourg, the administration ought to have checked whether there was a vacancy in Luxembourg before once again offering her a post in Ispra. The Commission's attitude in interpreting the applicant's legitimate queries as a refusal of employment must also be regarded as a failure to observe the duty to consider her interests.

In conclusion, the applicant considers that she should have been reinstated on 5 January 1979 and that her reinstatement should take effect from that date.

Alternatively, the applicant reserves the right to prove that a number of vacancies meeting the conditions of Article 40 (4) (d) of the Staff Regulations were not offered to her. Before a decision is reached in the case the defendant should be ordered to made available to the applicant all the vacancy notices published by the Commission since 5 January 1979.

The applicant considers that the claim for compensation is based on the case-law of the Court according to which officials who by reason of an institution's wrongful conduct have not been reinstated on the expiry of their leave on personal grounds may obtain compensation for the actual damage they have suffered.

The Commission submits that the decision to seek the applicant's compulsory resignation was reached in accordance with the procedure provided for in the second paragraph of Article 49 of the Staff Regulations; her refusal to accept in good time the second post offered to her was regarded as the second refusal of reinstatement and justified her compulsory resignation pursuant to Article 40 (4) (d) of the Staff Regulations. The Commission admits that it is true that the applicant never expressly refused this second offer but she refrained from accepting it in good time.

The defendant considers that the applicant's claim for damages for failure to reinstate her is inadmissible. The applicant's complaint seeks only the annulment of the compulsory resignation. Under Article 91 (2) of the Staff Regulations, an appeal lies only if the appointing authority has previously received a complaint and that complaint has been rejected by express or implied decision. The claim for damages is a separate issue from the decision relating to compulsory resignation in so far as it concerns the Commission's alleged previous failure to reinstate the applicant in January 1979.

The Commission states that in any event the claim for damages is unfounded. The case-law of the Court has accepted such reinstatement only as compensation for actual damage which an official on leave on personal grounds has suffered by reason of the wrongful and unlawful conduct of the administration which has prevented him from being reinstated in active employment when desired. It has to be observed that in the present case it was not the Commission which failed to make offers of reinstatement in good time to the applicant but the latter who refused to take up employment. The suspension of her career during the relevant period is the consequence under the Staff Regulations of the applicant's conduct for which the Commission is not required to compensate by means of retroactive reinstatement.

1 Language of the Case: French.