JUDGMENT OF 14. 7. 1981 — CASE 145/80 MASCETTI v COMMISSION

In Case 145/80

THE COURT (Second Chamber) composed of: P. Pescatore, President of Chamber, O. Due and A. Chloros, Judges, Advocate General: F. Capotorti Registrar: H. A. Rühi, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the procedure, the conclusions and the submissions and arguments of the parties may be summarized as follows:

I — Facts and procedure

1. On 1 March 1961 the applicant was recruited as a member of the establishment staff, holding the post of principal secretary at the Ispra Joint Research Centre. She was absent from work from 18 November 1974 but the period until 14 December 1974 was, following further correspondence, set off against her remaining annual leave for 1974. After a warrant for the applicant's arrest was issued on the latter date for an alleged political offence, the Administration and Personnel Division of the Joint Research Centre notified her on 9 January 1975, pursuant to Article 60 of the Staff Regulations of Officials (applicable by analogy to members of the establishment staff) that her absence was unauthorized and suspended payment of her remuneration. By an application of 22 December 1974, submitted by the applicant's Counsel to the Joint Research Centre on 30 January 1975, the applicant requested unpaid leave on personal grounds in accordance with Article 40 of the Staff Regulations. On 20 February 1975 the Directorate of the Joint Research Centre rejected the application on the grounds that the reasons given by the applicant were not included among those on the basis of which leave on personal grounds might be granted. At the same time the applicant was invited to attend personally at Ispra to be heard there in accordance with Article 87 of the Staff Regulations with a view to the commencement of disciplinary proceedings. Such proceedings were never initiated. What happened was that the applicant first filed a complaint with the Commission against the refusal to grant leave and then, the complaint having been rejected, she brought an application before the Court. By its judgment of 16 December 1976 (Case 2/76 [1976] ECR 1975), the Court rejected the application on the twofold ground that in this area the administration has a very extensive power of appraisal and that the procedure of granting leave on personal grounds was not an appropriate means of resolving the problem in relation to the Staff Regulations in that case. By a letter of 23 March 1977 the Director of the Ispra Joint Research Centre invited the applicant to enter into a temporary servant's contract following the introduction of the new conditions of employment of personnel paid out of research appropriations, which had entered into force on 30 October 1976. The contract submitted to the applicant provided that, subject to “any other decision relating to (her) present absence from duty”, she would be assigned “to Category C, Grade 1, Step 7, with effect from 30 October 1976”. According to that letter, the applicant had a period of six months in which to accept the offer. She accepted within the stipulated period but stated that she was unable to go to Ispra to sign the contract. By a letter of 14 November 1977 the applicant requested inter alia that a clear ruling be given with regard both to the contractual aspect (signature of the proposed contract) and to remuneration. On 15 February 1978 the Director-General informed the applicant that she could enter into the contract as soon as she was in a position to report for work. On 15 November 1978 she was further informed that “the social security insurance premiums payable to the Istituto Nazionale della Previdenza Sociale and the Istituto Nazionale per l'Assicurazione contro le Malattie at Varese had been paid until 31 December 1974”. The applicant was acquitted on the charge concerning the above-mentioned offence by a judgment of 14 July 1978 and she resumed work at Ispra on 6 November 1978, even before the judgment became res judicata. After her return to Ispra a contract was offered to her which she signed on 30 November 1978, Article 3 thereof being worded as follows: The applicant contested this clause and on 26 March. 1979 she was told that the contract would be “redrafted to specify the Grade C 1/7 which had been offered (to her) in the note of 23 March 1977”. The contract which followed, signed by the applicant on 12 April 1979, backdated her seniority in the grade to 30 October 1976. However, her seniority in the new step dated from 1 November 1977. On 26 May 1979 the applicant lodged a written protest on this point and by a note of 11 July from the Administration and Personnel Division she was informed “that the competent authorities at head office had been approached for their opinion.” On 10 August 1979 the administration wrote the applicant a letter stating: Following a further note from the applicant, the Ispra administration sent her the relevant note from the Legal Department on 2 October 1979. On 7 November 1979 the applicant sent a letter to the head of the Administration and Personnel Division in which she requested : Having received no reply, on 13 June 1980 the applicant brought this action.

“The servant shall be assigned to Category C, Grade 1, Step 6. Seniority in the grade shall date from 1 December 1978. Seniority in the step shall date from 1 September 1977.”

“Further to my note of 11 July 1979 and in reply to your memo 12/136/79 of 25 May 1979 I regret to inform you that I cannot confirm your seniority in Step 7 of Grade C 1.

In fact, the Legal Department considers that the seniority in the step acquired as at 30 October 1976 could only start to run again from the effective resumption of your duty, that is to say in December 1978.”

“That (her) career record as a member of the establishment staff and as temporary servant be fully reinstated, without any break in continuity and with the benefit of all the two-yearly steps, as granted to (her) colleagues of the same category;

That the salary which had accrued during (her) absence and which was due (to her) following reinstatement of her career, as requested in the preceding paragraph, be paid (to her) in full;

That the insurance contributions payment of which had been arbitrarily suspended after 31 December 1974 [letter (from the Commission) of 15 November 1978] be paid in full;

That the shortfall of her severance grant to which (she) was entitled as member of the establishment staff and which had been calculated only up to 31 December 1974 should be paid (to her);

That (her) pension rights, which shoulds be based on the full duration of (her) service from the retroactive effective date of (her) temporary servant's contract, should not be reduced in any way.”

2. Referring in her application to her letter of 7 November 1979, the applicant claims that the Court should:

“Annul the decision whereby the Commission refused to regard the period of (her) enforced absence as a period of service for all purposes;

Declare that the Commission is bound to reinstate the applicant in her career and, consequently, to restore her financial rights, which have already been specified in the complaint.”

3. The Commission raised an objection of inadmissibility on the ground that the application was lodged out of time and submitted that the Court should : Dismiss the application as inadmissible, giving its decision on a procedural issue in accordance with Article 91 of the Rules of Procedure; Order the applicant to pay the costs.

4. In her reply to the objection of inadmissibility, the applicant submits that the Court should: Dismiss the objection of inadmissibility outright, and alternatively, deal with the question of admissibility at the same time as the substance of the case.

5. On hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court (Second Chamber) decided to open the oral procedure on the objection of inadmissibility without any preparatory inquiry.

II — Submissions and arguments of the parties on the admissibility of the application

1. The Commission takes the view that the act adversely affecting the applicant is the original contract communicated to her by letter in April 1979, which she signed on 12 April, and that she should have lodged her appeal against that act. In the first place, it maintains that the very fact of signature of the contract constitutes a form af acquiescence to the administrative decision expressed in the contract. If that argument cannot be upheld, the Commission contends that the applicant's letter of 26 May 1979 should then be regarded as a complaint as provided for in the Staff Regulations and consequently that the application should have been lodged no later than 26 December following the implied decision rejecting her complaint. It contends that the administration's letters of 10 August and 2 October 1979 did not constitute an explicit rejection and could not cause the periods to start to run afresh, since they were mere confirmations of the decision contained in the contract. Moreover it contends that the inadmissibility of the main head of claim in the application implies the inadmissibility of all the other heads, even if they were submitted on the basis of the unlimited jurisdiction of the Court and related to a dispute of a pecuniary nature, since the other heads are closely connected with the contested act, namely the contract. Quite apart from this view, the other heads or claim are still inadmissible for other reasons. The request that, for the purpose of calculating the pension, the period commencing upon the entry into force of the new system (March 1976) should be taken into account was submitted for the first time on 7 November 1979 and, not having been the subject of a formal complaint, is inadmissible. The requests for reinstatement of the applicant in her career, payment of remuneration and unpaid social security contributions are likewise inadmissible. With regard to the remuneration, suspension thereof was notified to the applicant by letter of 9 January 1975 and no objection or application to the Court was made in relation thereto. Furthermore, the applicant's letter of 14 November 1977 could not be regarded as anything other than a complaint, which was not followed by an application to the Court, and with regard to which the administration gave its decision in its letters of 15 February and 15 November 1978.

2. The applicant asserts in the first place that on resuming her duty on 6 November 1978 she found herself in the incongruous and unreal situation of a member of the establishment staff and that she was anxious to obtain formal confirmation of the post of temporary servant which had been offered to her and which she had accepted. She therefore had no choice other than to sign the first contract, while at the same time expressing her disapproval of its terms. Since she found the second contract was also unsatisfactory, she complained orally and gave her views in detail in the note of 26 May 1979, which gave rise to the decision contained in the letter of 10 August 1979. It was against that decision that the complaint of 7 November 1979 was lodged within the prescribed period. It is clear from these facts that, in the first place, it is meaningless to speak about acquiescence with regard to signature of the contracts. In the second place, it is incontestable that the administration acknowledged receipt of the observations made by the applicant after signature of the second contract, that it reserved its decision, consulted the Legal Department and notified the final result, namely the act adversely affecting the applicant, in the note of 10 August 1979. With regard to the inadmissibility of the other heads of claim, the applicant states that she raised these questions on several occasions but was unable to proceed with her claims because of her absence from Italy. Her claims cannot therefore be rejected as being out of time, having regard also to the fact that per position today is totally different from her position during the period 1974 to 1978: she is no longer an official accused of a political offence but an official who wishes to safeguard her rights after having been acquitted on all charges.

III — Oral procedure

At the sitting on 7 May 1981 the applicant, represented by C. Ribolzi, and the Commission, represented by O. Montako, acting as Agent, assisted by P. De Caterini, presented oral argument.

The Advocate General delivered his opinion on 18 June 1981.

Decision

1. By an application lodged at the Court Registry on 13 June 1980 Miss Maria Mascetti, a temporary servant at the Ispra Joint Research Centre (JNRC) brought an action seeking on the one hand annulment of the decision of the Commission refusing to regard the period of absence of the applicant between December 1974 and November 1978 as a period of employment for all purposes and on the other hand a declaration that the Commission is bound to reinstate her in her career and consequently to restore her financial rights, that is to say, to give her the benefit of all the two-yearly steps, salary and insurance contributions which became due during her absence and also the shortfall of her severance grant as a member of the establishment staff and, finally, not to reduce her pension rights in any way on the grounds of her absence.

2. The Commission having raised an objection of inadmissibility the Court resolved to decide on the admissibility of these claims without going into the substance of the case.

3. The absence of the applicant, who was at that time a member of the establishment staff at the Ispra Joint Research Centre was due to the fact that she left Italy to evade execution of a warrant issued for her arrest in connexion with prosecution for a political offence. In January 1975 the Commission, considering the applicant's absence to be unjustified, suspended payment of her salary, relying on Article 60 of the Staff Regulations of Officials which are applicable by analogy to members of the establishment staff. Nevertheless, in March 1977, following a change in the conditions of employment of other servants, which discontinued the classification of member of the establishment staff, a temporary servant's contract was offered to the applicant, assigning her to Category C, Grade 1, Step 7, with effect from 30 October 1976. The applicant accepted that offer but difficulties were encountered regarding conclusion of the contract which were the subject of an exchange of correspondence which extended into 1977 and 1978. The applicant stated that she was not in a position to attend at Ispra for signature of the contract; at the same time she claimed payment of the sums due to her by reason of the termination of her contract as a member of the establishment staff, and also payment of arrears of salary and social security contributions which had fallen due since her salary was suspended. For its part the administration notified the applicant that the contract could be entered into as soon as she was in a position to report for work and that the amounts claimed by her remained suspended.

4. After her acquittal by the Corte di Assise, Rome, by judgment of 14 July 1978, the applicant resumed work on 6 November 1978. On 30 November 1978 she signed a first temporary servant's contract which assigned her to Category C, Grade 1, Step 6, with seniority in her grade from 1 December 1978 and seniority in her step from 1 September 1977. She objected to those terms and the administration prepared a new contract. That contract, which was signed by the applicant in April 1979, back-dated her seniority in her grade to 30 October 1976 and specified assignment to Step 7, but only as from 1 November 1977. On 26 May 1979 the applicant objected in writing on the latter point. By a note from the Administration and Personnel Division of 11 July 1979 the applicant was informed that the competent authorities at the head office of the Commission had been approached for an opinion. Finally, by letter of 10 August 1979 the administration confirmed seniority in Step 7 as from 1 November 1977, making reference to the opinion from the Legal Department according to which seniority in step acquired as at 30 October 1976 could only start to run again as from the effective resumption of duty. A copy of that opinion was sent to the applicant by letter of 2 October 1979.

5. On 7 November 1979 the applicant sent the administration a further letter which contained all the claims at issue. Since no reply was given to that note, she brought the present action.

6. It appears from the foregoing that it is appropriate to distinguish, for an assessment of their admissibility, between the claim relating to seniority in the step referred to in the letter of 26 May and the other claims which were submitted for the first time within the framework of these proceedings in the letter of 7 November 1979.

7. With regard to the first claim, the Commission contends in the first place that by signing the second contract of employment without making any objection or reservation the applicant acquiesced in all the terms of the contract and consequently is precluded from contesting them subsequently.

8. That view cannot be upheld in this case, having regard to the history of this action and the applicant's very special position vis-à-vis the administration. When she signed the first contract the applicant, who had resumed her work without the benefit of any contract whatsoever, was extremely concerned to regularize her situation, even though she did not find the conditions of the contract offered wholly satisfactory. Likewise, the fact cannot be held against her that she signed the second contract which, in relation to the very point at issue, represented a significant improvement over the first one.

9. In the second place, the Commission argues that submission of the second contract to the applicant for signature constituted notification of a final decision on the part of the administration, which had taken into account her objections to the first contract. It is therefore from that date that the prescribed period for lodgment of a complaint should be reckoned. Even if the letter of 26 May 1979 were to be classed as a complaint, the legal action commenced on 13 June 1980 was out of time. The letter of 10 August 1979 was either a decision on that complaint or a mere act of confirmation which cannot cause the prescribed periods to start to run again.

10. These arguments must also be rejected in this case. The terms of the two contracts relating to the applicant's seniority are to be viewed against the background of a continuing discussion initiated by the first offer of a temporary servant's contract in March 1977 and followed by the applicant's letter of 26 May 1979 and also by the administration's note of 11 July 1979 which notified the applicant that an opinion was being sought from the competent authorities. Neither that note nor the subsequent letter of 10 August 1979 gave any indication whatsoever that the administration had classed the applicant's letter of 26 May 1979 as a complaint. In the circumstances the applicant was entitled to regard the letter of 10 August 1979, which was the first to give any reasons, as the administration's formal decision against which an objection ought to be lodged. In this regard the letter of 7 November 1979 qualifies as a complaint. Since that complaint and the application of 13 June 1980 were lodged within the prescribed periods, the application is admissible with regard to the claim relating to seniority in the step.

11. With regard to the other heads of claim referring to the payment of salary, pension rights, social security contributions and compensation for termination of the employment contract as a member of the establishment staff, the Commission stresses that all these claims were dealt with in decisions by the administration during the applicant's absence and that the applicant submitted no complaint or appeal against such decisions within the prescribed periods. The applicant states in reply that she was unable to proceed with her claims during her absence from Italy and that her subsequent acquittal should be regarded as a supervening event which changed her situation entirely.

12. In this regard it is appropriate to point out that, even if the acquittal constituted a supervening event capable of causing the prescribed periods to start to run afresh and the applicant were thus entitled to ask the appointing authority to reconsider her situation in the light of the new circumstances, it would nevertheless be incumbent upon her to make such a request as soon as possible and in any case within the three months following her resumption of duty. Since the applicant allowed a year to elapse before making the claims contained in her letter of 7 November 1979, it is clear that those claims were submitted out of time and therefore in so far as they are concerned the application must be dismissed as inadmissible.

On those grounds, THE COURT (Second Chamber) before giving judgment on the substance of the case, hereby:

1 Dismisses the objection of inadmissibility as regards the application regarding determination of the applicant's seniority and directs that the proceedings shall continue with regard to the substance of the action;

2 Dismisses the application as inadmissible with regard to the other issues;

3 Orders that the costs be reserved.