JUDGMENT OF 14. 4. 1970 — CASE 42/69 CAFIERO v COMMISSION

In Case 42/69

THE COURT (First Chamber) composed of: R. Monaco, President of Chamber, A. M. Donner (Rapporteur) and J. Mertens de Wilmars, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of facts and procedure

The facts of the case and the course of the procedure may be summarized as follows: The applicant entered the service of the EEC on 1 July 1959 and was appointed head of division in Grade A3, second step, with effect from 1 October 1962.

On 14 March 1968 the applicant applied to take advantage of a measure terminating his service pursuant to Article 4 of Regulation No 259/68 of the Council of 29 February 1968. Such a measure was adopted by the Commission on 21 May 1968 and communicated to the applicant by letter of 22 May 1968, in which, moreover, it was stated that the applicant would be employed as adviser to the Directorate General for Industrial Affairs until such time as the termination of his service took effect.

By a further letter of 21 June 1968 the Commission informed the applicant that the measure terminating his service would take effect on 1 October 1968.

Finally, by letter of 25 June 1969 the Directorate General for Personnel and Administration notified the applicant of details regarding the final payment of the severance grant to which he was entitled pursuant to Article 12 of Annex VIII to the Staff Regulations and Article 6 of Regulation No 259/68.

This last measure is the subject-matter of the present case.

On 20 September 1969 the applicant brought an action before the Court of Justice by application lodged at the Court Registry on 23 September 1969.

Since no reply was received within the prescribed time-limit, the Court, having heard the report of the Judge-Rapporteur and the opinion of the Advocate-General, decided to open the oral procedure without any preparatory inquiry.

The parties presented oral argument at the hearing on 17 February 1970.

The Advocate-General delivered his opinion on 11 March 1970.

II — Conclusions of the parties

The applicant claims that the Court should:

declare the disputed measure to be unlawful, with all the legal consequences that this entails.

The defendant contends that the Court should :

reject the action as unfounded;

order the applicant to bear the costs of the proceedings.

III — Submissions and arguments of the parties

The submissions and arguments of the parties may be summarized as follows :

Admissibility of the action

The defendant does not challenge the admissibility of the action.

The substance of the case

The applicant claims that the measure adopted by the Commission, which was communicated to him by letter of 25 June 1968 and which purpoted to arrange payment of his severance grant, is unlawful in that the calculations are based on a salary attaching to Grade A 3, fourth step.

In support of this argument he makes the following points:

that, in his case, advancement to the fifth step in his grade fell due on 1 October 1968;

that the fact that the Commission decided that he should terminate his service with effect from 1 October 1968 should be understood to mean that the relationship of master and servant could not be deemed to have been dissolved until the end of the first day of October;

that in fact it is a universally accepted legal concept that the dies ad quem must be calculated in toto;

that, moreover, this corresponds to the Commission's desire to offer officials the highest possible income after termination of their service, which is also expressed, in a different respect, in the choice of the date of 1 October 1968, this being the first day of 1968 on which, according to Article 8 (3) of Annex VII to the Staff Regulations, an official whose service has been terminated is entitled to full payment of travel expenses for return to his place of origin;

that, furthermore, Article 5 (1) of Regulation No 259/68 does not speak of the last remuneration ‘received’, nor of the ‘final’ basic salary.

According to the defendant, the applicant's statement that the theory of the dies ad quem is universally accepted is open to doubt, and is moreover irrelevant in the context, this being a matter not of a time-limit but of the initial date of the entry into force of a decision.

It is clear that the Commission, by stipulating that the applicant's service was to be terminated with effect from 1 October 1968, intended to provide that on that date the applicant would no longer be in the service of the Communities. The defendant observes moreover that the applicant has never claimed remuneration in respect of 1 October 1968.

Furthermore, the applicant's statement concerning travel expenses cannot support his argument, in view of the fact that the nine-month period mentioned in Article 8 (3) of Annex VII to the Staff Regulations expired on 30 September at 24.00 hours, so that the Commission — assuming that such was its intention — had no need, in order to ensure that departing officials would receive full payment of their travel expenses, to fix the termination of their service at one minute past midnight on 2 October.

It therefore follows that the applicant 's severance grant was rightly calculated on the basis of the salary attaching to Grade A 3, fourth step.

During the oral procedure, the applicant stated that in fact he performed his duties up to and including 1 October 1968, in particular by signing several documents. He further stated that in consequence of this he was claiming, in addition to his initial conclusions, the remuneration relating to that day.

The defendant alleged that since the applicant was no longer in the service he was no longer in a position to perform his duties on 1 October and that, in any case, he received no instructions from his superiors for that day.

Grounds of judgment

1. By application of 20 September 1969 the applicant has brought an action against the measure adopted by the Commission on 18 June 1969 for the purpose of the final settlement of the severance grant to which he was entitled pursuant to Article 12 of Annex VIII to the Staff Regulations and Article 6 of Regulation No 259/68 of the Council.

2. The action is essentially concerned with obtaining a ruling that the applicant's pecuniary rights, following the decision taken with regard to him concerning the termination of his service with effect from 1 October 1968, must be ascertained on the basis of the salary attaching to Grade A 3, fifth step, and not on the basis of the salary attaching to Grade A 3, fifth step, and not on the basis of the salary attaching to Grade A 3, fourth step, on the ground that the applicant was still in the service of the Communities during the day of 1 October 1968.

3. The applicant has not challenged the legality of the Commission's decision terminating his service.

4. Moreover, it is not disputed that, on the one hand, the applicant had attained seniority corresponding to the fourth step in Grade A 3 as from 1 October 1966 and that, on the other hand, the Commission's decision terminating his service took effect as from 1 October 1968.

5. In pursuance of Article 44 of the Staff Regulations the applicant would have advanced to the fifth step in Grade A 3 on 1 October 1968 had he still been in the service of the Communities.

6. This case is therefore solely concerned with the question at what time the applicant's service is deemed to have been terminated.

7. Where an administrative measure, such as that which is the subject-matter of this case, states that it is to take effect as from a specific date, this means that it begins to take effect on that actual day.

8. Accordingly, as from 1 October 1968 the applicant was no longer in the service of the Communities.

9. Pursuant to Article 12 of Annex VIII to the Staff Regulations and Article 6 of Regulation No 259/68 severance grants are to be calculated on the basis of the last basic salary of the official whose service has been terminated.

10. It is clear from the foregoing that the applicant's last basic salary was that relating to the month of September 1968, that is to say a salary attaching to Grade A 3, fourth step.

11. The applicant's pecuniary rights were therefore rightly calculated on the basis of this salary.

12. In these circumstances, the application must be rejected as unfounded.

Costs

13. The applicant has failed in his action. According to Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs. However, pursuant to Article 70 of the said Rules, in actions brought by officials of the Communities institutions shall bear their own costs.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties ; Upon hearing the opinion of the Advocate-General ; Having regard to the Treaty establishing the European Economic Community; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Staff Regulations of Officials of the European Communities; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT (First Chamber) hereby:

1 . Dismisses the application;

2 . Orders the parties to bear their own costs.