JUDGMENT OF 21. 11. 1974 — CASE 1/74 GIRY v COMMISSION

In Case 1/74

THE COURT (Second Chamber) composed of: Mackenzie Stuart, president of Chamber, H. Kutscher and M. Sørensen (Rapporteur), judges, Advocate-General: A. Trabucchi Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts and arguments developed by the parties in the course of the written procedure may be summarized as follows:

I — Facts and procedure

1. The applicant was appointed an official of the Commission on 1 January 1961. He is at present a principal administrator in Grade A 4, on leave on personal grounds. The applicant had leave for the first time on personal grounds from 15 August 1966 to 14 August 1969. He was reinstated and then once again granted leave on personal grounds on 12 October 1970 to perform the duties of inter-regional adviser at the United Nations Conference on Trade and Development (UNCTAD). This leave was twice renewed, the last time until 11 October 1973. In December 1972 the applicant requested the Commission to advise him as to his possible financial rights in the event of his requesting the termination of his service under Article 2 (1) of Regulation No 2530/72 of the Council of 4 December 1972 introducing special and temporary measures applicable to the recruitment of officials of the European Communities in consequence of the accession of new Member States, and for the termination of service of officials of those Communities (OJ L 272 p. 1) The Commission refused to give the information on the grounds that ‘… the measures for the termination of service in consequence of the accession of new Member States do not apply to officials who are on leave on personal grounds and who, as a result, do not occupy a permanent post capable of being vacated’. By letter dated 22 January 1973 the applicant expressed ‘the greatest reservation’ on such an interpretation of the Regulation and stated that under Article 40 of the Staff Regulations he had to be ‘automatically reinstated on 12 October 1973, that is to say before the majority of the new appointments could be made’. On the same day he formally applied to have his service terminated under the Regulation. On 26 April 1973 Mr Borschette, a member of the Commission, wrote the applicant a letter in the following terms: ‘I regret to have to inform you that Regulation No 2530/72 does not apply to officials on leave on personal grounds. At its meeting on 13 February 1973 the Commission decided that the termination of the services of these officials accorded neither with the spirit nor with the letter of the said Regulation’. By letter likewise dated 26 April 1973 the applicant informed the Commission of his “intention to request (his) reinstatement with the Commission at the end of (his) leave on personal grounds on 12 October next”. He therefore requested to know the post which the Commission would offer him under Article 40 (4) (d) of the Staff Regulations. By letter dated 11 May 1973 the Commission acknowledged the applicant's letter and informed him that he would be told as early as possible of the first vacant post.

3. On 23 July 1973 the applicant lodged a complaint against the decision rejecting his application relating to the termination of his service. Referring to the grounds of the rejection of his application he stated to the Commission: On 27 November 1973 the Commission rejected this complaint and stated that it: A letter from the Secretary-General of the Commission to the Director-General of Personnel states the following as regards the two decisions:

‘I have just learned that at its meeting on 26 June last the Commission altered its view of the law on this point and applied this measure to three officials in the career bracket A 5/4 on leave on personal grounds.

I therefore ask the Commission to reconsider my request in the same way as it has done as regards the officials … (names of three officials are given);

I remind you that in my letter of 22 January last I drew the attention of the Directorate-General for Personnel and Administration to the fact that failing termination of service under Regulation 2530/72 I should automatically have to be reinstated on 12 October 1973 under Article 40.’

‘… could in this respect…, in the interests of the service accept or refuse the requests for termination of service made by officials. The Commission was acting under this power when it decided at the proper time not to grant your application.

Your complaint, which moreover was made after 30 June 1973, provides no ground of a nature to justify an alteration in the Commission's previous view… The Commission stresses moreover that … it has not granted any request for termination of service from an official who was already, like yourself, on leave on personal grounds at the time when the reduction of staff began. The cases of the three officials to whom you refer in your letter of 23 July 1973 are quite different from yours.

One of them Was hot at any time on leave on personal grounds. The two other officials were in active employment when they lodged their request for termination of service. Following the initial refusal of this request, they requested and obtained leave on personal grounds. Then shortly afterwards, at the final stage in the reduction of staff, this decision was annulled and replaced by a decision to terminate their services.’

‘I have the honour of informing you that the Commission, …, has decided …, to terminate the services of the following officials under Article 2 of the aforesaid Regulation:

Mr …, Mr … with effect from 1 May 1973.

The Commission has noted that the officials in question, who have been on leave on personal grounds since 1 May 1973, had applied before 31 January 1973 to have their services terminated. The decision of the Commission rejecting this application … is therefore annulled following the re-examination of the files in question carried out in the light of the criteria provided for in the first paragraph of Article 2 (2) of Regulation 2530/72.’

4. On 4 January 1974 the applicant filed the present application. By interlocutory application on 6 February 1974, the Commission raised an objection on the ground of inadmissibility. By order dated 20 March 1974 the Court (Second Chamber) added this objection to the issues. Upon hearing the report of the Judge-Rapporteur and the opinion of the Advocate-General, the Court decided to open the oral procedure without any preparatory inquiry.

II — Conclusions of the parties

The applicant claims that the Court should:

reject the objection of inadmissibility raised by the Commission,

annul the decision of the Commission of 26 April 1973 rejecting his request that his services be terminated,

annul the decision of the Commission dated 27 November rejecting his complaint of 23 July 1973,

annul the decision of the Commission, in so far as the attitude adopted by the Commission, as it appears from the extract from the minutes of the meeting of the Commission of 13 February 1973, constitutes a decision,

declare that the applicant fulfilled the conditions laid down in Regulation No 2530/72 and, accordingly, order the Commission to grant his request to have his services terminated and all the financial advantages associated therewith,

order the Commission to bear the costs of the application.

The Commission claims that the Court should:

dismiss the action as inadmissible or unfounded,

order the applicant to bear the costs.

III — Submissions and arguments of the parties

Admissibility

The Commission states that the application is inadmissible because it is directed against a decision rejecting a request which no longer existed at the time that the decision was taken, in view of the withdrawal of the request of 22 January 1973 evidenced by the applicant's letter of 26 April 1973. The decision of the Commission therefore did not constitute an act adversely affecting him within the meaning of Articles 90 and 91 of the Staff Regulations. The wording of the letter from the applicant dated 26 April 1973 was perfectly explicit and free from any ambiguity and his intention to be reinstated in the Commission after 30 June 1973 is clearly contrary to his previous request to have his services terminated.

The Commission states further that a communication of this kind is not required to preserve the rights recognized by Article 40 of the Staff Regulations. It points out that on 11 May 1973 it acknowledged receipt of the applicant's request to be reinstated and said that it would not fail to inform him in this connexion of the first appropriate vacancy. At that juncture it must have been obvious to the applicant that in the eyes of the Commission his request to have his services terminated no longer applied. This was the reason moreover that no new examination of the personal file of the applicant for the purpose of terminating his services under Regulation No 2530/72 was undertaken by the Commission.

The applicant replies that his letter dated 26 April 1973 was not a withdrawal of his request of 22 January 1973. Already in his letter dated 22 January he had given the Commission to understand that as from 12 October 1973 he should have a post of Grade A 4 in the Administration as was undoubtedly his due. In view ‘of certain hesitations’ on this question, it had been necessary once again to make the Commission understand that the actual reasons behind the Regulation altogether obtained in his own case. The object of the letter dated 26 April 1973 was to obtain a date to preserve his right to reinstatement as form 12 October if he did not obtain the benefit of Regulation No 2530/72. He did not request his reinstatement but referred to his absolute right to reinstatement as from 12 October 1973. In this respect the applicant also refers to the principle that in case of doubt inquiry should be made of the person concerned as to his exact intentions and to the principle of law that renunciations are not presumed.

The position of the applicant could at most have been an alternative request, the one possibility not excluding the other. Even accepting that the letter dated 26 April 1973 constituted in itself a formal request for reinstatement, it could only have been a request to take effect in the future. While awaiting the expiration of the period, the first request retained its full force. There was not the slightest indication in the letter dated 26 April that the request to have his services terminated was withdrawn.

Substance

In his application, the applicant considers the arguments by the Commission against his request to have his services terminated.

He states first of all that the Commission has wrongly sought to justify the rejection of his request by alleging that Regulation No 2530/72 does not apply to officials on leave on personal gronds. The wording of the Regulation contains no provision from which such a refusal might be inferred. The spirit of the Regulation appears from its purpose, which was to free certain posts in order to enable them to be filled by nationals of the new Member States. For the Commission it was therefore a question of having posts available which it could allot to the new arrivals. It no longer had the applicant's post available after he had indicated his intention of returning, and in this event and, in the interest of the service itself, the Commission should have been glad of the applicant's request to give up his post and opt to have his services terminated.

Consideration of this question becomes less important by reason of the fact that the Commission itself decided, in two cases at least, to grant the requests of officials on leave on personal grounds to have their services terminated. The fact that these two officials went on leave on personal grounds after making their request to have their services terminated is irrelevant.

In the applicant's opinion the reasons for the decision of 26 April 1973 have not the slightest foundation in law.

The Commission had the power in the interests of the service to refuse the requests to have their services terminated. If the Commission had been guided by this ground, as it maintains in its letter rejecting the complaint, it should immediately have said so instead of sheltering behind the quite different reason mentioned in the decision of 26 April 1973. It does not suffice to hold up a vague consideration of the interest of the service. The applicant enquires what interest it could be. If the Commission was refusing to allow a worker of recognized ability to leave, this would be flattering to the applicant, but difficult to reconcile with the fact that the Commission has not yet offered a post to the applicant in accordance with Article 40 (4) of the Staff Regulations. Finally, the Commission had to show that between the decision of 26 April 1973 and 30 June 1973 it had reconsidered the request in the light of the criteria to which it referred in its decision of 27 November 1973.

In its statement of defence the Commission maintains that the clear and unambiguous provisions of Regulation No 2530/72 do not give any right to officials to have their services terminated and therefore no reason has to be given for the refusal to grant such a request. This opinion is confirmed by the difference between the wording of Article 2 of Regulation No 2530/72 and the comparable wording of Regulation No 1543/73 of the Council of 4 June 1973 (OJ L 155, p. 1).

Since it is a matter of exercising a discretion accorded solely to the institution in question, the refusal to grant an official's request to have his services terminated is no cause for complaint, for even if he fulfils the conditions for the grant of such a request, the refusal does not infringe his rights. Censure by the Court should be limited to consideration of the ways and means which have led the institution to exercise the discretion which gives rise to the refusal.

The Commission then states that, apart from the strict wording of the Regulation, consideration of all its provisions, the reasons given in the preamble and the general structure shows that the intention of the legislature was not to extend the special and temporary measures for the termination of service to officials on leave on personal grounds. The ratio legis of the Regulation clearly militates in favour of this interpretation. It clearly announces its objective: the freeing of posts actually occupied in order to meet requirements resulting from the accession to the European Communities of new Member States.

In this respect the Commission refers to the last paragraph of the preamble of the Regulation and to Article 2 (1) thereof.

To take these special measures in respect of officials on leave on personal grounds would obviously be pointless in the interests of the service, for such a measure could not meet the basic objective of the provisions of the Regulation. Another person may be appointed to the post occupied by an official on leave on personal grounds. Thus the official no longer has any right to the post which he had left on taking such leave; he is no longer established in that post. From this time on, to grant his request to have services terminated would not result in freeing a post and would therefore not meet the requirements which are at the origin of the Regulation. It therefore appears permissible to fill the gap in the text (which makes no express mention of officials ‘on leave on personal grounds’) by referring to its obvious spirit, which leads to the inference that the word ‘official’ in the text refers solely to ‘officials established in a post’.

The Commission considers that the applicant has relied on a false interpretation of Article 40 of the Staff Regulations. It states in this respect that the right to reinstatement is subject to certain conditions and relates to a ‘… post corresponding to his grade … in his category or service …’. The conditions are that such a post must be available and that he satisfies the requirements for that post.

As regards the allegations by the applicant relating to the grant of the requests by two other officials to have their services terminated, the Commission states that their circumstances were different from those of the applicant. It refers to the explanations given in its letter dated 27 November 1973 and adds that the decision to grant the requests of these officials to have their services terminated was not contrary to Regulation No 2530/72, for it was possible for this to be accompanied by a decision retrospectively annulling the grant of leave on personal grounds, so that the persons concerned could be regarded as never having been, in law, on leave on personal grounds. The very short time between the first refusal and the subsequent decision made it possible to re-establish the position. Since the applicant has been on leave on personal grounds since October 1970, such a solution was obviously ruled out in his case.

The Commission then replies to the applicant's question as to ‘which interest of the service’ it had relied upon in its decision of 27 November 1973. It maintains that this interest was to free posts. In other words the interest of the service is understood as requiring the freeing of posts occupied. Since the applicant did not occupy a post during the period in which the Commission was authorized to terminate services, his particular case could in no way meet the criteria of the interest of the service, understood in this sense. This was the case both in April 1973, when the applicant was informed that his request was refused, and in November 1973 when this refusal was confirmed and the ground of interest of service was formally referred to in reply to his complaint.

In so far as the applicant claims that the Court should order the Commission to terminate his services as requested, the Commission observes that the unlimited jurisdiction, under the express provisions of Article 91 (1) of the Staff Regulations, relates to ‘disputes of a financial character’.

In the present case the matter is one within the exclusive jurisdiction of the institution in relation to its officials. To issue such an order is not the function nor within the jurisdiction of the Court as laid down by the Treaties and annexes.

In his reply, the applicant indicates evidence that on 13 October 1973, the day after his leave ended, there were at least a hundred posts in Grade A 4 to be filled by the Commission. As regards his ability, the applicant refers to a note on his career and experience.

The applicant states moreover that the terms of the Regulation are a long way from giving the Commission the discretionary power which it claims. He refers in particular to Article 2 (3) of the Regulation according to which ‘… the institution shall take into account requests of officials that their service be terminated …’. In rejecting such a request the institution adversely affects the applicant, which it cannot do without good reason. If the Court is unable to support this reason, it should annul the refusal of the applicant's request.

The applicant maintains that the Commission was led astray by the objectives of the Regulation, which was certainly to enable the recruitment of nationals of the new Member States. It had exceeded the objective to be attained by taking into consideration only the posts actually filled and completely neglecting the main point of the whole Regulation, that is a simple budgetary consideration. In other words, the institutions could have available only posts which were already budgeted for, and it was therefore obvious that as from 12 October there must be a post budgeted for the applicant.

The applicant concludes that the Commission has not justified its argument that only an official ‘established in a post’ could be entitled to have his services terminated.

The important point in the present case is that the applicant was entitled to have the Commission offer him, as an absolute priority the first vacant post as from the day his leave ended. In this sense he was entitled to a post which was available within the budget. In this respect he refers to a directive published in the Staff Courier No 103 of 27 February 1970 according to which reinstatement of the official on leave on personal grounds is possible ‘even after the procedure for filling the said post has been put into motion’.

The applicant states that Article 2 of Regulation No 2530/72 has only the single concept of official. It is an official who asks for his services to be terminated and this request must be given priority. The Regulation has only a single ground for refusal: ‘the interests of the service’, and it is apparent that this concept, in Article 2 (3) is not the same as that in Article 2 (1).

As regards the discrimination arising from the fact that the Commission granted the request of two other officials on leave on personal grounds to have their services terminated, the applicant states that there is no question of a retrospective withdrawal of the leave on personal grounds in the aforementioned letter from the Secretary-General to the Director-General of Personnel. The positions of these officials was identical to his. Moreover the two officials in question were at the beginning of leave on personal grounds. For a year at least they would have had no right to have their services terminated. The applicant's case merited more attention since he was approaching the end of his leave without any possibility of its extension.

The applicant states that the Commission seems to want to maintain the refusal to terminate his services and at the same time not fulfil its obligation to reinstate him in accordance with Article 40 of the Staff Regulations. The attitude of the Commission puts the applicant in an unenviable position. Although he had no offer of reinstatement, he could nevertheless not take an engagement with UNCTAD. Only at the end of October 1973, faced with the difficulty of settling his case normally, did he inform UNCTAD that he could continue to work for it for some months at least. He had in fact obtained an extension of 12 months for his post with UNCTAD. He states further that the project for which he was recruited for UNCTAD was for three years, which enabled him to be reinstated in the Commission at the end of his leave.

In its rejoinder, the Commission considers that the indication of evidence by the applicant relating to the number of posts of A 4 to be filled and his note on his career and experience is irrelevant to the application. It states that the application relates only to the refusal to grant the applicant's request to have his services terminated in accordance with Regulation No 2530/72.

The Commission challenges the applicant's argument according to which the word ‘post’ must be understood as meaning ‘post which has been budgeted for’ and that in requesting to have his services terminated he thus offered his institution the possibility of freeing a post which, otherwise, would have been ‘frozen’ in his personal interest. Even supposing it were possible to recognize the Regulation as having a ‘budgetary’ character, it would be impossible to draw the inference that a post, regarded solely as a ‘post which had been budgeted for’, is open to every official on leave on personal grounds during or at the end of his leave.

This argument would lead to absurdity, for if an institution had to recognize every official on leave on personal grounds as having a kind of ‘budgetary servitude’ over a post among the total number of posts relating to his grade and category and temporarily unfilled, it would follow that the institution was obliged to regard a number of posts equal to the number of officials in this position as ‘frozen’.

The Commission refers also to Article 40 (4) (c) of the Staff Regulations, which provides that ‘another person may be appointed to the post occupied by the official’.

The official in active employment who asks to have his services terminated does not offer his ‘post’ to his institution: he gives it the possibility of marking a post actually occupied vacant, so that it is possible to make it available within the meaning of Article 1 (1) of Regulation No 2530/72.

The Commission states finally that it must not be forgotten that the period for terminating services ended on 30 June 1973 and that the applicant's leave did not end until 12 October 1973.

The parties were heard on 19 September 1974.

The applicant was represented by Victor Biel, advocate of the Cour supérieure de Justice at Luxembourg, and the Commission of the European Communities by its Legal Adviser Th. F. Cusack, acting as agent.

The Advocate-General delivered his opinion on 10 October 1974.

Law

1. The application is for the annulment of the refusal by the Commission to terminate the applicant's service under Regulation No 2530/72 of the Council introducing special and temporary measures applicable to the recruitment of officials of the European Communities in consequence of the accession of new Member States, and for the termination of service of officials of those Communities.

Admissibility

2. According to the Commission the application is inadmissible since it is directed against a decision rejecting a request which was no longer being made at the time the decision was taken.

3. The Commission considers the letter from the applicant dated 26 April 1973, in which he informed the Commission of his ‘intention to request (his) reinstatement with the Commission at the end of (his) leave on personal grounds on 12 October next’, as a withdrawal of his request dated 22 January 1973 to have his service terminated under Regulation No 2530/72.

4. The decision rejecting this request does not therefore constitute an act adversely affecting him within the meaning of Articles 90 and 91 of the Staff Regulations.

5. The applicant has not expressly withdrawn his formal request to have his service terminated.

6. His letter dated 26 April 1973 could be regarded as withdrawal of his request to have his service terminated only if it was of a nature to lead to the certain conclusion that the applicant, showing a desire contrary to that previously expressed, wished to withdraw his first request.

7. The wording of the letter and the circumstances in which it was sent to the Commission do not justify such a conclusion.

8. This finding is confirmed by the fact that the Commission, in its reply to the applicant's complaint, did not mention any such implicit withdrawal of his request.

9. The application is therefore admissible.

On the substance

10. The applicant pleads that the decision refusing to terminate his service should be annulled because the grounds of this decision are not valid in law.

11. The Commission has sought to justify its refusal to terminate the service on the ground that Regulation No 2530/72 does not apply to officials on leave on personal grounds.

12. In the grounds of its decision dated 26 April 1973 the Commission referred to the fact that at its meeting on 13 February 1973 it had formally decided to take the attitude that the termination of he services of officials on leave on personal grounds accorded neither with the spirit nor with the letter of Regulation No 2530/72 and that the provisions of the Regulation were therefore not applicable to such officials.

13. Article 2 (1) of the Regulation provides that until 30 June 1973, the institutions of the Communities are authorized, in the interests of the service, to adopt for their officials in Grades A 1 to A 5 measures terminating the service of officials, and the third paragraph provides that if the interests of the service permit, the institution shall take into account the requests of officials that their service be terminated.

14. The Commission essentially bases its interpretation of the Regulation on its purpose, which was to free posts actually occupied in order to provide for the necessities arising from the accession of the new Member States to the Communities.

15. Under Article 40 of the Staff Regulations an official has the right, on the expiry of his leave on personal grounds, to be reinstated in the first post corresponding to his grade which falls vacant, provided that he satisfies the requirements for that post.

16. Although it cannot therefore be maintained that the purpose of the Regulation is incompatible in every case with its application to officials on leave on personal grounds, nevertheless as a rule the Regulation was intended to apply to officials who actually held a post.

17. Although the Commission was not bound by the Regulation to adopt the general criterion which it had defined at its meeting on 13 February 1973, it was nevertheless open to it to lay down this criterion in the exercise of its discretionary power under the Regulation.

18. By reason of this the application of this criterion in the applicant's case has not adversely affected his interests in. a way which can lead to the annulment of the decision.

19. The applicant maintains further that the decision must be annulled because the Commission has violated, at his expense, the general principle of non-discrimination by terminating the services of two officals who, at the time, were, as he was, on leave on personal grounds.

20. It is clear that the Commission must apply the general principle which has been validly laid down to all the officials who are on leave on personal grounds.

21. It is however established that the two officials to whom the applicant refers were not on leave on personal grounds at the time they applied to have their services terminated and it was only after their request was first refused that the two officials requested to be granted leave on personal grounds.

22. In these circumstances a reconsideration of the first refusal cannot be regarded as a derogation from the general criterion laid down by the Commission and even less as constituting discrimination against the applicant.

23. The application must therefore be rejected as unfounded.

Costs

24. The applicant has failed in his action.

25. Under the terms of Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

26. However, under the terms of Article 70 of the said Rules, 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 action as unfounded;

2 Orders each party to bear its own costs.

1 Article 2 of the Regulation provides:‘1. Until 30 June 1973, the Institutions of the Communities are authorized, in the interests of the service and in order to meet requirements resulting from the accession to the European Communities of new Member States, to adopt for their officials in Grades A 1 to A 5 inclusive measures terminating the service of officials, as provided for in Article 47 of the Staff Regulations, under the conditions provided hereinafter. … 2. Where an institution intends to take the measures provided for in paragraph 1 in respect of officials other than A 1 and A 2, it shall, without prejudice to paragraph 3, draw up a list of the officials to be affected by such measures in each grade, after consulting the Joint Committee, taking into account the officials' ability, efficiency, conduct in the service, family circumstances and seniority. … 3. If the interests of the service permit, the institution shall take into account the requests of officials that their service be terminated under paragraph 1. …’

2 The following is an extract from the minutes of the meeting of the Commission on 13 February 1973:“The Commission was informed by Mr Borschette of requests that their services be terminated from officials in the Language Service, an official paid out of research funds and officials on leave on personal grounds. The Commission decided to take the attitude that the possible termination of the services of officials belonging to the above classes of officials accords neither with the spirit nor with the letter of Regulation 2350/72 and that the provisions of the Regulation are therefore not applicable to such officials. The Commission instructs the Directorate-General for Personnel and Administration, under the authority of Mr Borschette, to write a letter of refusal to these “applicants” and to give the reasons therefor. The wording of this letter shall be approved by the Legal Department”.

3 Translator's Note: ‘par priorité’ has not been translated in the English version of Article 2 (3) of Regulation No 2530/72.