Opinion of Mr Advocate General Tesauro

Mr President,

Members of the Court,

1. Following the inauguration of the Court of First Instance, the action brought on 16 May 1988 by Mrs Schneemann and several hundred of her colleagues against the Commission, on which I am giving my Opinion today, is one of the last staff cases that the Court will have to consider on matters of fact as well as of law. I do not feel, however, that our task will be particularly arduous. The problems raised by the applicants for consideration by the Court are essentially matters of law. Moreover, the facts of the case are well known since they were largely the subject of two other actions which the Court has already disposed of: Case 137/80 Commission v Belgium and Case 383/85 Commission v Belgium.

2. Accordingly, I propose to consider the respective positions of the parties immediately without setting out the facts, for which I refer you to the Report for the Hearing.

3. The applicants maintain that the Commission has failed in its duty to safeguard their interests by refusing to grant them the technical and financial assistance which they requested in order to bring proceedings before the Belgian courts and, if necessary, before this Court in order to resolve the problem of the transfer of pension rights acquired under the Belgian scheme to the Community scheme.

4. The defendant contests that claim and contends, essentially, that it has discharged its obligations deriving from its duty to safeguard the interests of its officials.

5. The dispute once again originates from the failure of Belgium to fulfil the obligation incumbent on all the Member States to give effect to Article 11(2) of Annex VIII of the Staff Regulations, enabling pension rights acquired by Community officials before entering the service of the Communities to be transferred. Having had the opportunity to give my views on the illegality of that failure in my Opinion delivered on 20 September 1989 in the second action brought by the Commission against Belgium (Case 383/85), it is unnecessary for me to cover the same ground again — particularly since the issue in this case is the conduct of the Commission, not that of Belgium.

6. However, two clarifications are required at the outset.

7. In the first place, I do not consider that the question whether, as a matter of principle, the measures requested by the applicants fall within the scope of Article 24 of the Staff Regulations, is the point at issue in this case. The Commission itself expressly stated in its reply to the applicants' complaint:

8. In the second place, the Commission has been at pains to emphasize, in both its written and oral submissions, that the obligation to provide assistance is, by virtue of its nature and scope, an obligation to use all due diligence and not an obligation to achieve specific results. From that premiss, to which I have no difficulty in subscribing, the Commission draws a conclusion which I am unable to share, in that it contends that the result sought by the applicants, namely the adoption of a formal law which allows transfer to the Communities of the pension rights previously acquired, is one which falls outside the scope of the Commission's powers.

9. Having made those preliminary remarks, I shall now consider the present case. The question that the Court must answer is essentially whether or not the Commission has discharged its duty of assistance towards the applicants. I would point out that in an earlier decision the Court developed a concept of the general obligation to provide assistance which goes beyond the bounds set by Article 24 (judgment of 11 July 1974 in Case 53/72 Guillot [1974] ECR 791), emphasizing in particular that there must be a balance between the rights and obligations of officials. In the same way, it has been pointed out that that obligation is the result of the natural balance between officials' obligation of loyalty and the institutions' obligation to provide protection (see in particular Rogalla, Fonction publique européenne, 1982, p. 253).

10. I should like to add a few words to give a better idea — in general terms — of the scope of the institutions' duty to provide assistance to officials and safeguard their interests. It is common ground that that obligation is an obligation to use all due diligence and that in choosing how to do so the institutions enjoy a degree of discretion — although the exercise of that discretion may be reviewed by the Court. It also seems to me to be clear that the scope of the duty to provide assistance and to safeguard interests differs according to the seriousness and the nature of the injury to which the official has been exposed.

11. In resisting the claims made by the applicants, the Commission refers in the first place to the proceedings instituted by it under Articles 169 and 171 of the Treaty. I cannot agree with this first defence submission. In deciding whether or not, in the present case, the defendant has discharged its duty of assistance and protection, I do not think that account can be taken of actions brought by the Commission on the basis, first, of Article 169 and then of Article 171 of the Treaty. The action before the Court under Article 169 constitutes one of the Commission's institutional prerogatives and is associated with its general task under Article 155. The case-law of the Court in that regard has highlighted the discretion enjoyed by the Commission in choosing when to bring an action, and also the fact that the remedy is objective in character. Likewise, the Court has repeatedly stated that Commission officials cannot institute proceedings against the Commission to make it take action under Article 169 of the Treaty in order to bring to an end alleged infringements of Community law (see judgment of 1 March 1966 in Case 48/65 Liittike v Commission [1966] ECR 19, and the Opinion of Mr Advocate General VerLoren van Themaat in Case 28/83 Forcheri v Commission [1984] ECR 1425, judgment of 15 May 1984).

12. Another argument raised at the hearing seems to me to militate against the attempt to bring actions by the Commission under Article 169 within the scope of fulfilment of the duty to provide assistance. Any other Community institutions requested by their officials to provide assistance in connection with an infringement by a Member State of the duties imposed on it by the Staff Regulations would not enjoy equality with the Commission since recourse to Article 169 is not available to them. Moreover, that has become apparent in the present proceedings. We know that the Council, in order to fulfil its duty under Article 24 of the Staff Regulations, has decided to grant the technical and financial assistance requested of it by its officials who seek the transfer of their pension rights.

13. We must therefore consider whether, apart from its use of the procedure under Article 169, the Commission has discharged its duties under Article 24 of the Staff Regulations.

14. As the Commission itself acknowledged at the hearing, although it has a discretion as to the means to be applied in discharging its duty of assistance, it is for the Court to decide whether, in choosing such means, the institution erred in such a manner as to vitiate its decision, for example by making a manifest error or by stepping outside the limits of its discretionary powers.

15. The Commission has put forward three arguments to justify its refusal to provide assistance.

16. In the first place it contends that its recourse to the procedure under Articles 169 and 171 makes the provision of the requested assistance superfluous. For the reasons I have given earlier (parts 11 and 12) I do not consider that argument acceptable.

17. In the second place, the Commission states that, having already given technical assistance to an official, it considered it unnecessary to grant assistance to the applicants.

18. This brings us to the nub of the problem.

19. In reply, the defendant contends, in general terms, that notwithstanding its refusal to provide technical assistance, it remained within the reasonable limits which the Court has laid down for the duty to provide assistance.

20. At the hearing, the applicants placed emphasis on their absolute need to be assisted by the administration. Since, in order to bring a proper action before the national court, they are obliged to indicate in their statement of claim the amount of the accrued pension rights under the Belgian scheme which they wish to be transferred to the Community scheme, they claim that the relevant calculations, which are of a complex actuarial nature, called for the cooperation of the Commission's staff, which was denied them.

21. I must observe that, despite the request for clarification made three times at the hearing, the Commission has confined itself to repeating the argument which forms the main premiss of its reasoning, namely that recourse to fresh proceedings, different from those instituted by Mr Michel, would not have yielded any new result or, to use the Commission's words, would not have changed the general landscape.

22. I consider that argument unacceptable. The Commission virtually refused to take a position — beyond engaging in petitio principu — before this Court as to whether the applicants' view that the actuarial calculations are beyond the capabilities of individual plaintiffs and call for the cooperation of the Commission's staff was well founded. Thus, the Court is prevented from carrying out its review of the reasons which guided the defendant in the exercise of its discretionary power.

23. On the basis of the foregoing considerations, I am of the opinion that the Commission did not sufficiently explain to the Court its reasons for refusing to provide technical assistance. It is clear that where an institution enjoys discretionary powers, the authority which exercises them must be in a position to explain to the Court the circumstances and the reasons which inspired its exercise thereof. It is only compliance with that obligation that renders possible the essential actio finium regundorum between the legitimate exercise of a discretionary power and an abuse thereof for which a penalty may be imposed.

24. The Commission's explanation for its refusal is unacceptable, in my opinion, for a further reason. The action brought before the Belgian courts by Mr Michel, with technical and financial assistance from the Commission, would, if upheld, be of benefit only to him because the judgment would not take effect erga omnes. It follows that the applicants in the present case have a clear interest in bringing legal proceedings irrespective of the outcome of the action brought by Mr Michel. It is thus inappropriate for the Commission to contend that its provision of assistance in one individual case entirely discharges its obligation to provide assistance to its officials.

25. Before examining the third argument put forward by the Commission I think it is appropriate to gather the threads of the considerations developed so far.

26. It has become apparent in the first place that the decision whether the duty to provide assistance and protection has been discharged in this case must:

27. We have also seen that in order to enable the officials concerned to assess the advisability of bringing an action before the national courts or before this court and to obtain information enabling them to determine the amount of their claim, the Commission should have provided the technical assistance requested of it.

28. We now come to the third argument relied on by the Commission, which is essentially that proceedings before the national court would be ineffective.

29. That argument raises problems of two kinds. One, which I shall consider first, is that of the consistency of the defendant's reasoning. The other is a methodological problem.

30. I must say that I am extremely confused when I hear the Commission state, on the one hand, that it has discharged its duty to safeguard the interests of its officials by providing the requested assistance to Mr Michel and, on the other, that the similar actions planned by the other officials are pointless because Article 11(2) of Annex VIII to the Staff Regulations is not self-sufficient.

31. The second problem raised by the Commission's defence is methodological in character.

32. In response to the applicants' claim that recourse to the Belgian courts would make it possible to rectify the situation by securing enforcement of the obligations imposed by the Staff Regulations, the Commission contended that:

33. Discussion of that point seems to me to be inappropriate and largely irrelevant. It is certainly not the task of this Court to engage in a debate which is to take place before the national courts, deciding in the abstract what might be the outcome of proceedings before the national court, considering whether the view taken by one court might remain an isolated case or be followed by similar pronouncements, or whether successive decisions might evolve.

34. To conclude this examination of the three arguments put forward by the Commission to justify its refusal to grant assistance, I must therefore state that none of them stands up to critical analysis. In those circumstances, since it is not disputed that the applicants were right to invoke Article 24 of the Staff Regulations, that there is an objective need for technical assistance to enable the applicants to decide whether it is advisable to bring an action before the national courts or before this Court, and, if it is, whether in fact to do so, and that the Commission has not explained to the Court its reasons for its refusal, the conclusion seems inevitable that the Commission's conduct has been improper. It must therefore be found that the defendant has not fulfilled its obligation to provide assistance to its officials.

1 Original language Italian.

2 judgment of 20 October 1981 [1981) ECR 2393

3 judgment of 3 October 1989 [1989] ECR 3069