C-7/56

ALGERA v COMMON ASSEMBLY

10. Procedure — Application — Details required

The applicant is not bound to cite the provisions on which he relies; it is enough if the ap­ plication contains 'the facts and submissions on which the application is based' and 'the con­ clusions' (Protocol on the Statute of the Court of Justice, Article 22; Rules of Procedure of the Court, Article 29 (3)).

In Joined Cases 7/56 and 3 to 7/57

(1) DINEKE ALGERA

(2) GIACOMO CICCONARDI

Common Assembly of the European Coal and Steel Community , repre­ sented by Jean Coutard, Advocate at the Conseil d'Etat and the Cour de Cassa­ tion, Paris, acting as Agent, with an address for service in Luxembourg at its offices, 19a rue Beaumont,

defendant,

Application for the annulment of administrative decisions, and applications for damages,

THE COURT

composed of: CH. L. Hammes, President of Chamber, acting as President, P. J. S. Serrarens, President of Chamber, O. Riese, J. Rueff and A. Van Kleffens, Judges,

Advocate-General: M. Lagrange Registrar: A. Van Houtte

Declare it to be well founded, and find that 'Dismiss the application as inadmissible the decisions adopted were not lawfully and, in the alternative, as unfounded... adopted; with all the consequences that follow there­ from in law, in particular as regards the Annul the decisions adopted, with all the settlement of the fees, costs and any other consequences that follow therefrom in law.' expenses which may arise.'

According to the applicants, 2. Recital of the facts

The following facts, which are not disputed 'the decisions of 12 July and 15 October by the parties and which underlie these ap­ 1956' constitute the contested decisions. plications, emerge from the statements of the parties and from the documents which The defendant contends that the Court they have produced. should:

ALGERA v COMMON ASSEMBLY

The division of the staff of the Common Committee of Presidents noted that the Assembly into three categories; Staff Regulations which it had drawn up were 'definitively adopted' for all the insti­ The duties within each category (for exam­ tutions, with the exception of the Council ple, category II: 'executive and specialized of Ministers, which exception was due to clerical duties'); the fact that the President of the said Coun­ cil had stated that he had to consult his col­ The determination of the duties laid down leagues before giving his definitive agree­ within each category and each type of du­ ment.

which there appears for example: '2nd cate­ gory — specialized clerical duties — grade 4. After that meeting, late in the evening of 9A, assistant I — multilingual shorthand- 12 December 1955, the President of the typist'. Common Assembly, Mr Pella, sent orders to the servants of the Assembly, which, (c) '... the Bureau decides to give effect as apart from differences due in each case to from 1 January 1956 to the salary scale the post which the person concerned was to fixed by the Committee of Presidents fill, were identifical to the order sent to the on 9 May 1955' (minute, No 9). first applicant, which was worded as fol­ lows: (d) '... the Bureau decides that: in the con­ text of the reorganization of the Secre­ 'Having regard to Article 43 of the Rules of tariat of the Common Assembly..., the Procedure of the Common Assembly, appointments and promotions set out adopted by the Assembly at its session on below shall take effect on the date stat­ 10 January 1953, amended at its sessions on ed in the individual decisions or orders 16 January 1953 and 12 May 1954; which shall be communicated in good time by the President to each person Having regard to the provisions of the Rules concerned' (minute, No 12). of Internal Administration of the Assem­ bly, adopted by the Bureau at its meeting on Immediately afterwards, this decision sets 25 November 1955; out the list of all the servants of the Com­ mon Assembly showing the grade and step Having regard to the proceedings of the of each of them. In particular, the applicant Bureau on 25 November 1955; Miss Algera was classified as follows: Having regard to the written declaration of Grade 9A, step 3 (category II). Miss Algera dated 12 December 1955 to the effect that she wishes to benefit from the 3. At its meeting of 12 December 1955, the application of the Staff Regulations,

shall be appointed to the grade of assistant I,

shall take seniority equivalent to the third step.

4. Pending the total or partial implementation of the provisions of the Staff Regulations and the annexes thereto, and within the framework of the alterations consequent upon the entry into force of the Rules of Internal Administration, the articles of the contract and the Provisional Rules, which both lapse on 31 December 1955 and which are set out in an annex hereto, shall apply on a transitional basis.

The annex attached hereto forms an integral part of this order.

Luxembourg, 12 December 1955.

Signed: G. Pella President of the Common Assembly

were submitted to the Committee of Pres 8. The Delvaux Committee, on which the idents only for its opinion, the amendments Common Assembly was represented by its upon which the Committee has agreed do Vice-President, Mr Vanrullen, finished a not constitute decisions but only proposals first report at the beginning of May 1956. made to the institutions.' That report contained a certain number of concrete proposals for the uniform classifi Furthermore, the Committee instructed cation of a large number of posts within the the Heads of the administrations of the four Community 'in relation to which agree institutions of the Community to submit to ment had not been possible before the crea it before its next meeting a study enabling tion of this Committee'. The report further the differences between the correspondence noted, with regard to the defendant, that tables referred to in annex I to be es tablished, and to submit proposals to it with '.

. .; tions, so as to permit common Staff Regu lations for Community staff, the annexes thereto and the General Rules to enter into Asks the Common Assembly to inform the said Committee to inform the said Com force'. mittee, before 1 June 1956, of the nature 7. At its meeting in private on 15 March and period of validity of the transitional 1956, the Bureau of the Common Assembly measures by means of which it will have decided succeeded in eliminating the divergences between the remuneration of officials of the 'to agree to the request of the President of Common Assembly and that of officials of the High Authority with a view to drawing the other institutions; up, with the other institutions, as harmoni ous a table of posts as possible. This affirm Asks the Remuneration Harmonization ative answer to the President's request shall Committee to report to it, before 13 June in no way constitute an interpretation of 1956, on the consequences of its solutions.' Article 78 of the Treaty and must not entail any prejudice to the autonomy of the deci Before accepting this resolution, the Presi sions of the Bureau of the Assembly, if the dent of the Common Assembly stated he effort necessary to reach harmonization considered it important for note to be taken proves impossible.' that 'this resolution must not take for grant-

ed a position which the Common Assembly That arrangement shall last at most for two cannot yet definitively accept. In fact, such years, from 1 July 1956 to 30 June 1958, and definitive acceptance is conditional upon its shall under no circumstances have any re being possible to overcome the difficulties lation to the situation newly and definitive raised by the transitional measures, which ly fixed on 1 July 1956. is a condition which must be fulfilled if the The extension of this special treatment, adoption by the Assembly of its own Staff which is outside the ambit of the normal Regulations is to be avoided'. law, over a period of two years, is due to the fact that the present discordance can in

. . that they der In order to assess them, it makes certain ogated from the new terms of employment clearly defined assumptions, namely: instituted by the contract of 12 December 1955 which, apparently at least, and until it 1. That it is expedient and desirable to try is proved otherwise, definitively establishes to remedy the situation descibed by means the official concerned under the Staff Regu of a compromise agreement. . .; lations, and determines his grade, duties and salary. For this reason, those discor

. . It allows itself at performance of that contract shall be so ar most to express the hope that the said cases ranged as to be subject to two reservations: of 'insurmountable' difficulty will be re first, the definitive application of the Staff solved without recourse to any judicial Regulations shall be effected on 1 July body.' 1956, in accordance with the table of har monization of grades, duties and salaries, Item II B of the report takes note of the so without restrictions; secondly, the financial lutions proposed by the Assembly: discordances shall be eliminated by means

2. Officials employed under the contract of minutes of that meeting contain the follow 12 December 1955 who will suffer a de ing remark: crease in salary as a result of their definitive classification shall benefit from a special ar 'As regards the Common Assembly, it (the rangement rectifying certain features of Committee) takes note of the statement of that contract. the President of that institution to the effect

that he will put before the Bureau of the As identical terms; the text of the letter which sembly the proposals or suggestions sub was sent to the first applicant was as fol mitted by the Harmonization Committee lows: and will communicate by letter either his agreement or his proposals for amend 'Dear Madam, ments, after having contacted the officials By an order of 12 December 1955, you were of the Assembly for the purpose of seeking brought within the ambit of the Staff Regu a possible settlement by mutual agreement lations and appointed to the grade of assis as suggested by the Committee.' tant I. The Bureau of the Common Assembly pro

3. The Bureau has delegated all its admin sions of the Staff Regulations, will be effect istrative powers to Mr Vanrullen for the ed on the following terms: purpose of carrying out the task which is mentioned under (2).' 1. You will be appointed as an established official in category C, grade 11, step 8, 12. On 22 June 1956 there was a further with seniority in your step from 1 Jan meeting of the Bureau of the Common As

four institutions. He also stated that har compensatory allowance calculated in monization would be applied only with the accordance with the provisions of Arti agreement of the Bureau and the staff. If cle 60 of the Staff Regulations. such agreement could not be reached, the Bureau would have to examine the question 4. You will be granted the maximum addi of implementing its own Staff Regulations.' tional seniority provided for in Article 108 of the General Rules of the Commu During the days that followed, Mr Vanrull nity (pensions scheme). en and the Secretary-General of the Assem bly had talks to that end with a large propor In order to enable the Bureau of the Assem tion of the employees of the Secretariat. bly to take a decision as soon as possible, I shall take it that you accept the above pro

JUDGMENT OF 12. 7. 1957 — JOINED CASES 7/56 AND 3 TO 7/57

Yours, etc. transitional provisions of the Staff Regula­ tions. p.p. the President of the Common Assembly Under these circumstances, and in so far as you persist in the point of view expressed in signed: Emile Vanrullen your aforementioned letter, when the Staff Vice-President.' Regulations are implemented by the Bu­ reau of the Common Assembly, it will be 14. The following new classifications were possible to apply them to you only as a laid down for the applicants: temporary member of staff, subject to a one-year contract, renewable twice within Miss Algera the limits laid down by Article 2 (3) of the before: Category H Grade 9A Step 3 Staff Regulations. after: Category C Grade 11 Step 8 I ask you to inform me before 21 July whether these proposals meet with your Mr Cicconardi agreement. You will find enclosed a speci­ before: Category I Grade 3 Step 5 men contract.

All the applicants sent Mr Vanrullen a writ­ 15. Then, on 12 July 1956, Mr Vanrullen ten reply to this letter in which they unre­ sent further identical letters to those con­ servedly persisted in their previous point of cerned; the text of the letter which was sent view. to the first applicant was as follows: 16. At its meeting on 30 September and 1 'Dear Madam, October 1956, the Bureau of the Common By a letter of 7 July 1956 you informed me Assembly adopted the decisions: of your disagreement with the terms on which your establishment could be effected '1. To implement the common Staff Regu­ under the provisions of Article 2 (2) and the lations of the Community and the General

ALGERA v COMMON ASSEMBLY

Rules, with retroactive effect from 1 July 17. On 30 November 1956, the new Bureau 1956, with regard to those servants of the of the Common Assembly decided, 'whilst Common Assembly who have accepted Mr persisting in the contested decision', to Vanrullen's proposals. suspend application of them with regard to the applicants until the Court had given judgment; consequently, the applicants are 2. To inplement the annexes to the com­ at present still receiving the remuneration mon Staff Regulations, with effect from 1 to which they were entitled under the or­ July 1956, ... also with regard to the ser­ ders of 12 December 1955. vants referred to in (1) above. 3. Submissions made by the par­ ties in the application for an­ The Bureau decided as follows: nulment

JUDGMENT OF 12. 7. 1957 — JOINED CASES 7/56 AND 3 TO 7/57

Regulations, with the exception of those chronological account of the facts and con provisions concerning retirement pensions, siderations which led its departments to the applicants ought to have been able to adopt the measures the contradictory consider as definitive the legal status con aspects of which the applicants are attack ferred on them by the orders, with the ing. agreement of the Committee of Presidents. The provisions of the Treaty with regard to If, subsequently, the Committee did not the Staff Regulations are obscure and con feel bound by that agreement, that does not tradictory: whereas it may be inferred from constitute sufficient justification for a re Article 6 and the first subparagraph of Ar consideration of the applicants' legal status. ticle 78 (3) of the Treaty that the institutions The adminstration does have the right to are autonomous, the second subparagraph amend the Staff Regulations on grounds of of Article 78 (3) and Article 7 of the Con the requirements of the service, but it must vention on the Transitional Provisions con respect vested rights; even a measure grant fer powers upon the Committe of Presi ing illegal advantages to a servant could be dents with regard to staff matters.

ing points: fication of the orders of 12 December 1955 immediately created an inviolable legal si It is incorrect to say that the staff classifica tuation. tion decisions of December 1955 were The compensation which the Common As adopted 'with the agreement of the Com sembly offered to the applicants, in its letter mittee of the Four Presidents'. The Bureau of 27 June 1956, does not constitute ade of the Common Assembly never sought the quate compensation; it does not eliminate agreement of the Committee of Presidents the disadvantages with regard to career and or of the other institutions; what is more, it retirement rights, but merely prevents the did not mention such agreements. deterioration of their financial situation, In the autumn of 1955, the Common As and then only over a limited period. sembly found it necessary to link the re-or The applicants describe the contested ganization of its services to the application measures as demotion. For example, the of the Staff Regulations. As the staff con second applicant has moved from grade 3 to tracts expired on 31 December 1955, the grade 4 and thus from 'Administrative' du Assembly considered it important that ties to 'Advisory' duties; he thus becomes 'everything should be ready' by that time, 'the colleague of officials, who, hitherto, while at the same time being aware 'that the were his subordinates from the point of definitive text of the Staff Regulations view of rank'. The same remark applies in might not be drawn up by 31 December the case of the other applicants. 1955', such that both parties were running The defendant defends itself against the ex

ALGERA v COMMON ASSEMBLY

in their application gulations: for example, on the scale of salary steps and of the rules which were subse A. The applications are lodged only in the quently embodied in the last paragraph of alternative, since they concern damage the present Article 25 and the last paragraph which would result from the dismissal of of the present Article 26 of the Staff Regu the application for annulment. lations, which at the same time were worded as follows: 'The description of du B. Quite apart from the problem of the dis ties and powers shall be a matter for each in tribution of powers between the Committee stitution as regards its own staff and 'each of Presidents and the Common Assembly, institution shall be responsible for drawing it is none the less true that the change of at up the particular annex concerning its staff. titude on the part of the Assembly in rela The Bureau therefore took the view that it tion to the applicants caused them particu was for it 'to lay down a "job-description" larly serious damage.

classification. The case under discussion is career interests. That attitude caused the a unique case and it required a unique solu applicants 'discomfort and inconvenience' tion; therefore reliance cannot be placed and a state of extreme instability; this seri upon national case-law for the purpose of ous disturbance, 'which will have repercus solving it. sions on their future', has caused the appli Moreover, the Common Assembly makes cants suffering in both their private and reference to the judgments of the Court in working lives. Cases 1/55 Kergall v Common Assembly and The applicants would not have remained in 1/56 Bourgaux v Common Assembly. In the employment of the Common Assembly

(II) Arguments put forward by the Common C. The claim for compensation in respect Assembly in its statement of defence of non-material damage is also unfounded. No such damage exists, or if it does exist, it A. The applications are inadmissible. is the applicants' fault. If the applicants had accepted Mr Vanrullen's proposals, they It is not permissible 'to join two sets of pro would have maintained the same 'moral ceedings of different and contradictory status. Furthermore, they have to perform kinds', to lodge an application only in the the same duties as before. alternative and to present the Court of Jus Moreover, this is clearly a question of typi tice with the alternative of upholding one cal indirect damage, which is difficult, not application or the other. to say impossible, to assess. The applicants cannot rely upon the sev As to their assertion that they have refused enth paragraph of Article 34 of the Staff offers of employment outside the Commu Regulations, because in the event of the ap nity, the applicants have not produced any plication for annulment being dismissed, evidence. Furthermore, it was open to the they would have lost their rights under the applicants to remain in the service of the

The ing that the measures adopted by the Com consequence of the success of the applica mon Assembly were legitimate, and there tion for annulment would be that the Court fore that returning the applicants to the si would not have to decide the second appli tuation of officials on contract was also le cation. gitimate, and of the Court's dismissing the application for annulment. In that case, the B. Even if the Common Assembly had applicants were in error as to the legal situ been entitled to accede to the request for ation when they rejected the proposals, and harmonization made by the Committee of they should bear the consequences of their Presidents, which right is contested, it in no mistake. way follows therefrom that the applicants Following the decision of the Bureau of the cannot seek compensation for the damage Common Assembly to suspend implemen resulting for them from the fact that the tation of the contested measures until the Administration failed to honour the irre Court had given its decision, the applicants vocable undertakings entered into towards have been receiving a higher salary than them. The invalidity, if proved, of a deci their colleagues who accepted Mr Vanrull sion, which moreover was formulated in en's proposals. secret, cannot be relied upon against the ap There can be no question of 'demotion', plicants, who were entitled to consider that since the applicants are no longer servants decision as being regular.

C. The statements of the Common Assem and of the agent of the defendant are in bly on the question of the damage caused to order. the applicants are based upon a failure to re The written procedure followed the normal cognize the irrevocable nature of the rights course. The applications were served in ac conferred on the applicants by the orders of cordance with the procedure laid own; the 12 December 1955 and to recognize the fact statements of defence, the replies and the that the applicants have never waived those rejoinders were lodged before the expiry of rights. the time-limits prescribed, and were also re The allowances proposed to the applicants gularly served.

Rapporteur. The explanations put forward by the appli After the closure of the written procedure, cants concerning the foundation of their upon hearing the views of the Advocate- purported right to compensation are mis General and in full agreement with the pre taken: if the application for annulment is liminary reports drawn up by the Judge- dismissed, that means precisely that there is Rapporteur in accordance with Article 34 of no vested right. In this connexion, the the Rules of Procedure of the Court, the subtle distinction between the different le Court decided on 23 May 1957: vels of legal relationships, on the one hand between the institutions, and on the other To join the cases; between the Common Assembly and its servants, is of no value. To open the oral procedure without any pre It seems that the applicants continue to

At the admissible at the present stage of proceed request of the Judge-Rapporteur, the parties ings. Moreover, Article 40 concerns 'a fault jointly drew up a table of the salaries and ca of such a nature as to render the Commu reer and retirement prospects of the appli nity liable'. But a mistaken interpretation of cants before and after the harmonization the obscure provisions of Article 78 (3) of measures, as well as of the salaries etc. the Treaty cannot constitute a wrongful act which they would have had if they had ac or omission. cepted Mr Vanrullen's proposals. On 14 June 1957, the Advocate-General de

JUDGMENT OF 12. 7. 1957 — JOINED CASES 7/56 AND 3 TO 7/57

Law

A — Application for annulment 7/56

I — Admissibility

In their conclusions, the applicants claim that the Court should:

'...find that the decisions adopted were not lawfuly adopted; annul the decisions adopted with all the consequences that follow therefrom in law',

However, the following statement is to be found in the application: 'The decisions of 12 July 1956 and 15 October 1956 constitute the contested decisions'. Thus, ac­ cording to that clarification, the dispute concerns the letter of 12 July 1956 from Mr Vanrullen, the Vice-President of the Common Assembly, to the applicants, and Communication No 56/13 of 15 October 1956 from the Deputy Secretary- General to the staff of the Common Assembly. In this connexion, the Court finds that Mr Vanrullen's letter of 12 July 1956 does constitute a decision. That letter makes sufficiently clear the action which the Common Assembly intended to take in relation to the applicants' situation if they persisted in refusing to accept the proposals which had previously been made to them in Mr Vanrullen's letter of 27 June 1956. The applicants expressly persisted in that refusal. Mr Vanrullen was empowered to take that decision, since by its decision of 19 June 1956 the Bureau had 'delegated all its (...) powers' to him for the purpose of'resolving the problem of reclassification and the measures relating thereto, on the basis of the proposals made by the Delvaux Committee and adopted by the Committee of the Four Presidents at its meeting on 15 June 1956'. Furthermore, the decision contained in the letter was confirmed by the decision of the Bureau of the Assembly of 1 October 1956. It may be asked whether Communication No 56/13 of 15 October 1956 constitutes a decision in relation to the applicants or only a source of information from which they could infer that they would no longer receive the salary to which they were entitled under the orders of 12 December 1955. The decision of the Bureau of the Assembly not to apply the Staff Regulations to the applicants and not to grant them the salary provided for by the orders of 12 December 1955 was not expressly communicated to them. However, this behaviour on the part of the defendant cannot deprive the applicants of their right of appeal. For that reason, the Court also admits the Application directed against Commu­ nication No 56/13 of 15 October 1956, since it is only by that communication that the applicants were informed that Mr Vanrullen's proposals had been confirmed by the Bureau, which Communication No 56/12 expressed only indirectly. Thus,

The applications contest the withdrawal by the Assembly of the orders of 12 De­ cember 1955. The applicants argue that the said orders conferred upon them vest­ ed rights which could have been withdrawn only with their consent. Therefore it must be considered whether it is legally possible to withdraw such measures. First of all, an error of reasoning which is liable to lead in this connexion to a vi­ cious circle must be eliminated: it consists in asserting the existence of a vested right, and then inferring therefrom that that right cannot be revoked. In fact, if the right conferred by an administrative measure can be unilaterally revoked by the administration, then the simple fact is that it does not constitute a vested right. The orders of 12 December 1955 declare that the applicants are brought within the ambit of the Staff Regulations, appoint them to certain 'grades' and fix their rank at certain specified steps of seniority. If those orders are legal and valid in law, they constitute individual administrative measures giving rise to an individual right. The possibility of withdrawing such measures is a problem of administrative law, which is familiar in the case-law and learned writing of all the countries of the Community, but for the solution of which the Treaty does not contain any rules. Unless the Court is to deny justice it is therefore obliged to solve the problem by reference to the rules acknowledged by the legislation, the learned writing and the case-law of the member countries. It emerges from a comparative study of this problem of law that in the six Member States an administrative measure conferring individual rights on the person con­ cerned cannot in principle be withdrawn, if it is a lawful measure; in that case, since the individual right is vested, the need to safeguard confidence in the sta­ bility of the situation thus created prevails over the interests of an administration desirous of reversing its decision. This is true in particular of the appointment of an official. If, on the other hand, the administrative measure is illegal, revocation is possible under the law of all the Member States. The absence of an objective legal basis for the measure affects the individual right of the person concerned and justifies

German law, on the other hand, does not set any time-limit for the exercise of the right of evocation, except where such a time-limit is laid down by a special pro­ vision. Thus Article 13 of the Bundesbeamtengesetz (Federal law governing Civil Servants) allows the withdrawal of an appointment only within a period of six months. However, it is generally acknowledged that unduly late withdrawal, oc­ curring considerably later than the date on which withdrawal could have been pro­ nounced, is contrary to the principle of good faith (Treu und Glauben). In this con­ nexion, case-law and learned writing found themselves also upon the concepts of waiver (Verzicht) and of forfeiture (Verwirkung) of the right of revocation. Italian law is particularly clear on the question. Any administrative measure which is vitiated by lack of competence, infringement of the law or abuse of powers (ec­ cesso di potere) may be annulled ex tunc by the administrative authority which issued it, irrespective of the individual rights to which it might have given rise. Such withdrawal may be declared at any time (in qualsiasi momento); thus there is no time-limit prescribed for withdrawal. However, according to learned writing and case-law, unduly late withdrawal can constitute abuse of powers; measures which have been in force for a long time (fatti avvenuti da lunga data) should be kept in force, even if they were contrary to the law, unless overriding reasons re­ quire their withdrawal in the public interest. Thus the revocability of an administrative measure vitiated by illegality is allowed in all Member States.

2. As regards the orders of 12 December 1955, this dispute raises the question, in relation to the provisions of the Treaty establishing the European Coal and Steel Community, whether the defendant could validly bring the applicants within the ambit of the Staff Regulations and determine their classification without the con­ sent or the opinion of the Committee of Presidents provided for in Article 78 of the Treaty, or whether it could do so only with the said consent or the said opinion. In these circumstances, it is not necessary to rule on the extent of the other powers which the said Committee holds under the Treaty, nor on its authority to draw up the Staff Regulations pursuant to the last paragraph of Article 7 of the Con­ vention on the Transitional Provisions.

JUDGMENT OF 12. 7. 1957 — JOINED CASES 7/56 AND 3 TO 7/57

idents authority of its own as regards the number of servants and their salary scales: those factors must be 'determined in advance' by the said Committee. That provision can be explained by the fact that only the Community has legal personality, and its institutions do not. From that springs the need to harmonize the life of the four institutions and to provide for financial and budgetary super­ vision, a task entrusted by Article 78 of the Treaty to the Committee of Presidents. It should be stressed that no other body has a power of preliminary supervision in financial matters.

(2) The second subparagraph of Article 78 (3) of the Treaty confers the power to determine the number of servants and their salary scales on the Committee of Presidents only to the extent to which they have not been fixed under another pro­ vision of the Treaty or of an implementing regulation. Such is not the case in this instance.

ALGERA v COMMON ASSEMBLY

nancial supervision, it implies that the powers of the Committee are not restricted to establishing a table or scale of salaries in the abstract. Indeed, in order for that power to be effective, the Committee must have authority to determine the salary laid down in abstracto for servants carrying out a particular function, the descrip­ tion of which ('job-description') is drawn up by each institution. If no such author­ ity existed, there would be nothing to prevent an institution from classifying all its servants in the highest step of the scale, and the supervision would be circum­ vented.

Furthermore, the provision speaks of the determination of the number of employ­ ees and of the scales of 'their' salaries, not of the scales of 'the' salaries. According to that interpretation, the second subparagraph of Article 78 (3) must be considered as giving rise to an implied power enabling financial supervision to be exercised over staff expenditure, in the same way as the third and fourth sub­ paragraphs, which provide for budgetary supervision, and the sixth subparagraph, which provides for accounting supervision. The prior determination of the number of servants is intended to prevent an un­ justified inflation of the numbers of officials of the institutions, while the deter­ mination of the scales of their salaries is to prevent the award of excessive salaries.

(b) According to another opinion, the theory of an implied power does not neces­ sarily lead to the conclusion that the Committee of Presidents should have a right of decision in the sense described above, since it also has other means of exercising effective supervision. No provision confers on the Committee of Presidents with a sufficient degree of precision any rights of decision exceeding the competence of a coordinating body. In particular, the duty of 'determining' the number of servants and their salary scales does not deprive the institutions of their administrative autonomy and can­ not confer on the presidents of the institutions, when meeting in the Committee of Presidents, powers which they do not possess in their capacity as presidents of those institutions.

(5) According to Article 31 of the Treaty, it is for the Court to ensure that in the interpretation and application of the Treaty, and of rules laid down for the imple­ mentation thereof, the law is observed. Therefore it is not bound either by the point of view adopted by the Committee of Presidents or by the wording of the Staff Regulations, if it appears that a choice between the two abovementioned ar­ guments is necessary to reach a decision in the present action. However, this action does not require the point to be decided. In the event, the classification applied to the applicants by the orders of 12 De­ cember 1955 proves to be unlawful according both to the first argument and to the second: according to the first argument, because the Common Assembly had not previously obtained the consent of the Committee of Presidents; according to the second argument, because the Common Assembly had not previously sub­ mitted the classification to the Committee of Presidents for its opinion, which it should also have done pursuant to the fourth paragraph of Article 2 of its Rules of Internal Administration as well as according to Article 43 (3) of its Rules of Procedure. The defendant has not sought to deny that it had never received or even requested before 12 December 1955 the agreement or the opinion of the Committee of Presidents. In those circumstances, it was not empowered to fix the classification of the ap­ plicants within the framework of the Staff Regulations, so that that part of the or­ ders of 12 December 1955 is unlawful.

In his opinion, the Advocate General declared that he was in favour of the view that the elements of the orders are indissociable, and relied upon Article 59 of the Staff Regulations which provides that 'servants may be established in any grade of a category or service referred to in Article 24 of the Staff Regulations'. Accord­ ing to him, 'since establishment entails the servants' renouncing the benefit of their contract, they are entitled, in order to be able to exercise their option with full knowledge of the facts, to be acquainted with the grade and the step in seni­ ority to which the administration is proposing to appoint them, and not only the decision of principle considering them eligible to become officials under the Staff Regulations...'.

JUDGMENT OF 12. 7. 1957 —JOINED CASES 7/56 AND 3 TO 7/57

Committee of Presidents. It must be inferred from the very fact that the Treaty arranged the powers in these two areas in different ways that the corresponding elements of the orders can, and indeed must, be dissociated for the purposes of the law.

Be that as it may, although it is true that to bring an official within the ambit of the Staff Regulations involves establishing him in a grade of a given category or service (Transitional Provisions, Article 59), it should also be pointed out that the Staff Regulations distinguish between the application of the Staff Regulations and classification (see for example Article 27, which speaks only of bringing officials within the ambit of the Staff Regulations, and Article 36, which provides for a re­ port recommending 'establishment'). Moreover, still further arguments are in favour of the dissociable nature of various elements of the orders. Thus, it would be inequitable to allow the Assembly to fail to respect the right to the benefit of the Staff Regulations which it had intended to confer on the appli­ cants, in the form of their appointment as established officials, simply because it had also made unlawful promises to them which it was not empowered to make. In the course of the oral procedure, the agent for the defendant gave an affirmative answer to the question whether the parties concerned would also have been in agreement with appointment accompanied by a lawful classification. It must be acknowledged that the will of the applicants is more difficult to interpret; but the Court takes the view that it is not possible, on the pretext of not ascribing to them an intention which they might not have made evident, to deprive them of the benefit of the application of the Staff Regulations, which had been validly granted. Moreover, the continued application to them of the Staff Regulations leaves them the opportunity of answering the abovementioned question in a practical manner: they may resign if they consider that the situation in which they are placed is not satisfactory.

sembly was concerned, so that its President, Mr Pella, was able to take the view that the Staff Regulations were definitively approved and would enter into force in the very near future, and that consequently he could bring officials who so wished within the ambit of the said Staff Regulations. However, doubts may arise from the fact that the true definitive text of the Staff Regulations was in fact drawn up only subsequently, on 28 January 1956, and that it was implemented by the Common Assembly only in October 1956, with retro­ active effect from 1 July 1956. In view of the fact that paragraph (4) of the orders of 12 December 1955 expressly refers to the subsequent entry into force of the Staff Regulations and the annexes thereto and that the applicants accepted any uncer­ tainty as to their contents, the Court interprets the applicants' declarations and the wording of the orders of 12 December 1955 as referring to the application of the future Staff Regulations, whatever their contents might be. Moreover, even if it were accepted that that application was of non-existent Staff Regulations and was therefore void and devoid of object, Mr Vanrullen's letter and the Common Assembly's refusal to bring the applicants within the ambit of the Staff Regulations should be annulled, because that decision disregards the ser­ vants' vested entitlement to be brought within the ambit of the Staff Regulations (judgment in Case 1/ 55, Kergall v Common Assembly). For, if the Court found that Mr Kergall was eligible to be brought within the ambit of the Staff Regulations, although no solemn, formal promise to that effect had ever been made to him and although the entry into force of the Staff Regulations was at that time less immi­ nent, a fortiori the applicants must be found to have a similar, and even a stronger, right to be brought within the ambit of the Staff Regulations.

lishment of a temporary contractual status, the latter being incompatible with the application of the Staff Regulations and the creation of a stable situation which was declared to have been acquired validly. On the other hand, the said commu­ nication is valid in so far as it implies the revocation of the classification and the salary pertaining thereto. Consequently, the Court allows the application in so far as the said decision re­ fuses to allow the applicants to remain within the ambit of the Staff Regulations and reimposes their former contract; on the other hand, the application against the refusal to grant them the salary referred to in the said orders is dismissed, for the reasons mentioned above under heading IV (2) (b) and (5) and under heading V. The defendant will have to fix the applicants' salaries afresh. In that connexion, formal note should be taken of the defendant's declaration, made at the hearing by its agent, that it undertakes to take the applicants back into its service on the general conditions currently applicable to its officials, an under­ taking which the Court interprets as meaning that those conditions imply that the same compensatory allowance will be paid in future as is granted to officials who accepted Mr Vanrullen's proposals.

VIII —Costs

In application of Article 60 (2) of its Rules of Procedure, the Court orders the de­ fendant to bear its own costs entirely and four-fifths of the applicants' costs in re­ spect of the application for annulment, and orders the applicants to bear one fifth of their own costs, since they were unsuccessful on one head of their application.

The applicants have not made clear the legal provisions on which they base their applications for damages. It appears that they are seeking the application by anal­ ogy of the provisions of the seventh paragraph of Article 34 of the Staff Regula­ tions which provides for the award of compensation in the event of the termina­ tion of employment 'owing to the requirements of the service', because the meas-

ALGERA v COMMON ASSEMBLY

ures adopted by the Common Assembly allegedly amount to a breach of the legal ties between the Assembly and its servants. In the rejoinder, the defendant argues that the applicants have not pleaded Article 40 of the Treaty (liability for a wrongful act or omission), that therefore that sub­ mission is inadmissible and that moreover a mistaken interpretation of the rather obscure text of Article 78 of the Treaty cannot constitute a wrongful act or omis­ sion.

In agreement with the Advocate General, the Court takes the view that the an­ swer can only be in the affirmative. The defendant knew that the Committee of Presidents was proposing to harmonize the salaries of servants of the different in­ stitutions performing comparable duties, and it had declared itself ready to par­ ticipate in that harmonization. In those circumstances the notification of the or­ ders of 12 December 1955, on the very day on which the Committee of Presidents, at a meeting in which the President of the Common Assembly was taking part, had unanimously acknowledged the need for that harmonization should not—even if it sprang from the desire to give the applicants a clearly defined sta­ tus— have been undertaken before the outcome of the attempted harmonization had become known. That premature and hasty notification constitutes a wrongful act or omission, in that it created a false situation under an appearance of legality. Furthermore, since the withdrawal of the application of the Staff Regulations was illegal, it also constitutes a wrongful act or omission, which according to Article 40 of the Treaty confers a right to reparation to make good the injury resulting from that measure. In the present action it is not necessary to decide the question whether a wrongful act or omission within the meaning of Article 40 of the Treaty presupposes fraud or at least culpable negligence, or whether any illegal behaviour—albeit uncon­ scious—on the part of an institution falls within the said concept. For even if re-

JUDGMENT OF 12. 7. 1957 —JOINED CASES 7/56 AND 3 TO 7/57

B. Non-material damage

However, the wrongful behaviour of the defendant, namely the unlawful with­ drawal of the application to the applicants of the Staff Regulations and the fact of having notified the orders of 12 December 1955 prematurely, which was to lead to their subsequent partial withdrawal, did cause the applicants non-material da­ mage.

(a) Placed in a situation to which they were suited by their professional merits and which offered them every appearance of stability and permanence, the applicants found themselves without any fault on their part confronted with the prospect of

ALGERA v COMMON ASSEMBLY

a dismissal which meant the end of a career which they could legitimately rely on. The shock caused by this action, the disturbance and uneasiness which resulted from it for those concerned, therefore caused the applicants non-material damage, for which they can claim compensation.

(b) On the other hand, the Court finds that a reduction in grade does not consti­ tute appreciable non-material damage and cannot prejudice the applicants' social standing.

THE COURT

hereby:

Declares the present applications admissible and,

JUDGMENT OF 12. 7. 1957 —JOINED CASES 7/56 AND 3 TO 7/57

I — On application for annulment 7/56

(1) Annuls the decisions contained in the letter sent to the applicants on 12 July 1956 by Mr Vanrullen, the Vice-President of the Common Assembly.

Orders the defendant to bear the costs.

Delivered in open court in Luxembourg on 12 July 1957.

Hammes Serrarens Riese

Rueff Van Kleffens

Ch. L. Hammes O. Riese President Judge-Rapporteur A. Van Houtte

Registrar