C-27/59

JUDGMENT OF 15.7.1960 — JOINED CASES 27 AND 39/59

an agreement implementing the unifica­ 5. A delay in the performance by the ad­ tion or merger of the provident and pen­ ministration of one of its obligations sion funds for the whole of the Commu­ does not, in the absence of any legal pro­ nities will it be possible to recognize the vision for default interest (interets mora­ right of the High Authority to safeguard toires) in Community law permit the the interests of the common fund. payment of such interest to an official.

In Cases 27/59 and 39/59

ALBERTO CAMPOLONGO , an official of the European Investment Bank in Brussels, assisted by Federico Pecoraro, Advocate of Florence, with an address for service in Luxembourg at the Chambers of Fernand Probst, 103 rue Ermesinde,

applicant, v

high Authority of the European Coal and Steel Community , represented by its Agent, Professor Giulio Pasetti, Legal Adviser to the High Authority, as­ sisted by Alberto Trabucchi, Professor of the University of Padua, Advocate of the Corte di Cassazione, with an address for service in Luxembourg at its offices, 2 place de Metz,

Registrar: A. Van Houtte

gives the following

ALBERTO CAMPOLONGO v HIGH AUTHORITY

JUDGMENT

Issues of fact and of law

5. By decision of 2 May 1958 the High Au II — Conclusions of the parties thority 'in view of the application' of the ap­ plicant 'granted' him leave on personal 1. Case 27/59 grounds. In his initiating application the applicant 6. On 11 February 1959 the applicant again seeks the annulment of the decision con­ tendered his resignation to the President of tained in the letter of 7 March 1959 of the the High Authority. President of the High Authority refusing to accept his resignation and to have the High 7. By a letter of 7 March 1959 the Director Authority ordered to pay the costs.

JUDGMENT OF 15.7.1960 —JOINED CASES 27 AND 39/59

In his reply he contends that the action from Luxembourg to Brussels for him­ should be declared admissible and, in so far self and his family; as is necessary, joined to Application No 39/59 which had been introduced sub­ (c) The capitalized amount of the sum to sequently. his credit with the Provident Fund;

The defendant contends principally that the (d) The capitalized amount of the sums de­ action should be declared to be inadmissible ducted from his salary in respect of and, in the alternative, as to the substance pension contributions; of the case that the Court should rule that (e) A severance grant amounting to one the application no longer served any pur­ and a half times his last monthly salary pose and that the applicant's request for the costs to be borne by the defendant should in respect of one year and six month's service; be rejected.

ALBERTO CAMPOLONGO v HIGH AUTHORITY

joinder. duced on 8 May is therefore belated and in admissible. The applicant does not take any formal position in respect of the argument of the The applicant claims that the objection of High Authority relating to the object of the admissibility raised by the High Authority application; the fact that the decision of 2 is without foundation for two reasons: July 1959 only gives him partial satisfaction proves nevertheless that he does not believe First, from a general point of view the appli that the application has lost its purpose; his cant is of the opinion that the period im request to have the two cases joined con posed by Article 33 of the ECSC Treaty can

vided. In this connexion he refers to the relating to the duration and termination of case-law of the Court of Justice of the contracts of employment. ECSC (Case 10/55, Mirossevich v High Authority, Rec. 1955-1956, p. 365). (a) Infringement and misapplication of Article 41 of the Staff Regulations Furthermore, the applicant points out that the Rules of Procedure of 3 March 1959 The applicant takes the view that a contract were only published in the Journal Officiel of employment of servants of the ECSC, as and only entered into force on 21 March; governed by the Staff Regulations of 28 therefore it was only on that date that the January 1956, is a contract of indeterminate special Rules of 21 February 1957 were duration. In such a contract each party has, abrogated (by Article 110 of the new Rules). at any time, the right to terminate the legal Consequently the period of two months link by a unilateral expression of intention; from the notification of the decision had al the expression of intention of the other par

2. The object of the application does not mean that the authority's decision affects the validity of the termination of the In its defence submissions the defendant contractual bond but merely its effects, maintains that the application has lost its which the decision suspends or delays in

the fact by fixing a date on which the resig­ nation would take effect. The fact that the It merely maintains that in his letter of 25 applicant was on leave on personal grounds April 1958 the applicant agreed to be placed until 30 April 1960 denied even the High on leave on personal grounds for two years Authority the opportunity of relying on the and only to submit his final resignation requirements of the service as a reason for when the consequences of his transfer to delaying the date on which the resignation another institution had been regularized. In took effect within the period provided by view of this agreement his offer of resigna­ the Staff Regulations. tion of 11 February 1959, which was con­ trary to the provisional situation reached by (b) Infringement of the general principles common agreement, had to be regarded as of law relating to the duration and ter­ a proposal which the High Authority was at mination of the contract of employ­ liberty to accept or refuse; the refusal of the ment resignation at a time when agreement with the Bank still seemed possible was therefore The applicant states that it is universally ac­ proper and legitimate. cepted that a contract of employment can­ not be of indeterminate duration binding The applicant denies that there existed any the employee for the whole of his lifetime. agreement between himself and the High Authority which might justify refusal of his A contract of employment of indeterminate resignation and he states that the contested duration, the effects of which depend on decision does not refer to any such agree­ the consent of the employer alone, consti­ ment.

paragraphs of Article 41 (A) of the Staff In addition he states that he agreeed to his Regulations of the ECSC state that the leave on personal grounds subject to certain decision of the appointing authority confir reservations, that the High Authority uni ming the resignation must be taken within laterally determined his leave at two years one month from the letter of resignation; and finally that acceptance of the leave was the resignation takes effect from the date subject to the condition, which has not been specified by the authority but cannot be fulfilled, of an arrangement between the

at the latest. For the latter date the maxi the first argument that the applicant has no mum period of three months for the effect legal interest; the applicant was on leave on iveness of the resignation must be justified personal grounds and the termination of by the requirements of the service but in the this situation produces certain necessary present case this is not possible as, at the consequences. time of his resignation, the applicant was on leave on personal grounds, which excludes In reply the applicant justifies his interest, any activity and therefore any requirements on the one hand, by the fact that in Case of the service. 27/59 it was possible that his action would be excluded for failure to have Application No 39/59 relate to the problem of the time The defendant replies that although the contested decision does not fix the date on when his resignation took effect and, on the other hand, by the fact that the interest pay which the applicant's resignation takes effect, which is equivalent to fixing the date able in the case of belated payment of the al as 2 July 1959, that is, the date on which the lowances provided for on the termination of a contract of employment runs from the decision was taken, this is the direct con moment when the contract terminates.

For the subsequent 11 February 1959 could only take effect period there exists the acknowledgement of with the agreement of the High Authority. the High Authority in the contested letter.

It believes that the rules provided for offi­ Therefore, the alleged absence of provision cials who finally leave the Community may does not exist and the General Regulations not, because of this unity, be applied to of­ must be applied to the present case. ficials who merely transfer to another insti­ tution of the Communities. The applicant contests that the hypothesis of the transfer of an official to the service of The Staff Regulations and the General another European Community was not Regulations were established at a time when foreseeable at the time when the Staff there existed only one European Commu­ Regulations and the General Regulations nity and where transfer to another had not were drafted. been envisaged. The only hypothesis pos­ sible at that time was the transfer from one He states that the Bank, which is a separate institution to another within the ECSC. legal entity, is not an institution of the new The fact that the rules relating to the ter­ European Communities. mination of a contract of employment are not applicable to such a case appears to the The defendant replies that Article 61 does High Authority to be evident. not bear the meaning attributed to it by the applicant since, having regard to the time of The absence of a general regulation govern­ its adoption, it only concerns organizations ing relations between the three Communi­ which are completely different from the ties, in particular with regard to their offi­ Community of the Six (Organization for cials, cannot in the opinion of the High Au­ European Economic Cooperation, Council thority justify the extension of the rules of Europe etc.). provided for resignation to cases of the transfer of an official within one general On the other hand it states that the Invest­ organization on a European level which is ment Bank, which was established by the in essence a single unit although it is com­ EEC Treaty and falls within the jurisdiction posed of separate legal entities. of the Court, is, in respect of its functioning, linked to the European Economic Commu­ The applicant, on the other hand, maintains nity. that the High Authority is mistaken in be­ lieving that it can justify its refusal to apply (a) Infringement of Articles 12, 13, 15 and the provisions of the General Regulations 62 of the General Staff Regulations of on the basis of the argument that they only the Community apply to officials who definitively leave the ECSC, to the exclusion of those transferring The applicant takes the view that the provi­ to the service of another European institu­ sions of the General Regulations which tion. govern the resettlement allowance (Article 12 (a)), travelling expenses (Article 13 In fact the General Regulations make pro­ (a)(2)), removal expenses (Article 15 (b)) vision for the latter case. Article 61 runs as and the severance grant (Article 62) make follows: no distinction between officials who simply terminate their duties and those who term­ 'An official who leaves the service of the inate them in order to transfer to the service

In his reply the applicant adds that in com­ (b) Infringement of the general principles plying with his request to annul the passage of law relating to the termination of of the contested decision relating to finan­ contracts of employment and payment cial benefits the Court should determine to of the corresponding allowances what pecuniary benefits he is entitled. He sets out therein the benefits which he The applicant maintains that in the case of claims; repatriation allowance amounting contracts for an indeterminate duration to four months' salary, reimbursement of severance grants are payable independently travelling expenses between Luxembourg of the allowances which the worker may re­ and Brussels, payment of the amount to his ceive in respect of his new post and that the credit in the Provident Fund. He states that refusal of the allowance provided for in Ar­ he does not seek the reimbursement of ticle 12 and the reimbursement provided for removal expenses. in Article 15 of the Regulatiqns for the rea­ son that the applicant would receive com­ The defendant argues that compliance with parable allowances in his new post is with­ the applicant's demands would involve out legal foundation. sanctioning a misuse of a right; in the pres­ ent case the applicant seeks the benefit of The defendant, relying on the arguments set provisions which were laid down for a com­ out under (a) supra, argues that the appli­ pletely different eventuality. cant's contention is without foundation in particular because a basic precondition, the On proceeding to examine these demands, termination of the contract of employment, the High Authority points out that the pay­ is absent. ment of the resettlement allowance and tra­ velling expenses and removal expenses does not take account of reality and could The applicant maintains that, on the con­ trary, the letter of 2 July 1959 contains a even result in double payment which is cer­ simple acceptance of his resignation leaving tainly not acceptable; moreover, the re- aside the proposed settlement of financial settlement allowance is subject to the re­ problems. Furthermore, the High Authori­ quirement of a minimum period of service. ty produced the letter in Case 27/59 in order In respect of the severance grant sought by to show that that case had no purpose, as the applicant, the High Authority takes the the letter in practice annulled the previous view that the possibility of immediately and decision of refusal and thus recognized that successively liquidating the capital accu­ the contract of employment had been ter­ mulated for the purposes of the Provident minated.

The parties sought this step and in his opinion the Advocate-General did not op­ pose it. Thus the provisions of Article 43 of the Rules of Procedure have been satisfied.

2. No objection as to the form of either of the two actions has been raised by the parties or by the Advocate-General. They are also open to no objection by the Court of its own motion.

II — The application for the annulment of the decision contained in the letter of 7 March 1959 from the President of the High Authority (Case 27/59)

1. Admissibility

The applicant maintains that the President of the High Authority was mistaken in refusing the applicant's resignation submitted on 11 February 1959 by its de­ cision of 7 March 1959.

It must at this point be stated that subsequently the resignation was confirmed by the decision of the President of the High Authority dated 2 July 1959.

Nevertheless, as the above-mentioned rules were abrogated by new Rules of Procedure of 3 March 1959 which contain no provision relating to periods for the introduction of actions concerning disputes between officials and institutions, the High Authority maintains that as the action seeks the annulment of a measure the period applicable is one month by virtue of the general law relating to annul­ ment which in its view is based on Article 33 of the ECSC Treaty.

In rejecting this view it is not here necessary to follow the principal argument of the applicant maintaining that in the absence of any relevant provision no time- limit can exist in this case.

In fact, the Rules of Procedure of 3 March 1959, Article 110 of which abrogates the rules of 1957, were only published in the Journal Officiel on 21 March.

Quite apart from the extension of time-limits on account of distance the rules could not take effect before this date which is the only way of complying with the presumption that persons subject to the law have knowledge of it.

Therefore the applicant's right of action, at the moment which it arose, was gov­ erned by the rules of 1957.

As the new rules contained no provision as to time-limits they cannot retroactive­ ly have the effect of tacitly substituting a general text for previous provisions governing actions by officials which the rules of 1957 deliberately distinguished from those referred to in Article 33 of the Treaty by providing a particular period for them. The action was therefore introduced in good time.

In this respect it can be stated that the legal situation of the applicant, an official of the High Authority subject to the provisions of the Staff Regulations, is not de­ rived from a contract concluded between two parties but was governed by statute and regulation and to his benefit and his detriment is governed by the general and impersonal provisions of the Staff Regulations. Only an infringement of a provi­ sion of the Staff Regulations of the Community, in this case Article 41, may give him a right of action.

With respect to this article the applicant had certainly in his letter of 11 February 1959 'stated his unequivocal intention to terminate any activity in the institution' and this resignation would in normal circumstances give rise to the effects provided for by Article 41.

The placing of an official on leave on personal grounds does not, in principle, de­ prive him of the right, during that period, to resign when he wishes according to the rules laid down in the abovementioned Article 41.

The High Authority, however, denies that the applicant in this case had that right on the grounds that, by accepting his leave on personal grounds, he had renounced the right to resign when he wished and accepted his being maintained on leave on personal grounds until the conclusion by the High Authority and the other in­ stitutions of the European Communities or dependent institutions of an agree­ ment governing the situation applicable to officials transferring from one to the other, or until the final breakdown of the relevant negotiations.

III — The application for the annulment of the decision contained in the letter of 2 July 1959 of the President of the High Authority (Case 39/59)

1. The scope of theapplication and its admissibility

In his initiating application dated 30 July 1959 contesting the decision of 2 July 1959, the applicant seeks the annulment of this decision only 'in so far as it con­ cerns the effects of this resignation and determines the allowances on termination of service with all the legal consequences ...'. The exact scope is only specified in the body of the application by reference to the decision of the High Authority con­ tained in the letter of 2 July 1959 in so far as it fails to determine the date on which the resignation takes effect and that it determines the allowances on termination of service.

In respect of the allowances the application relates in general terms to:

(a) The resettlement allowance, the reimbursement of travelling expenses on the occasion of termination of service and the reimbursement of removal ex­ penses (Articles 12, 13 and 15 of the General Regulations);

(b) The reimbursement of the amount to the credit of the applicant in the Pro­ vident Fund, reimbursement of the amount deducted from his salary in respect of his pension and the severance grant (Article 62 of the General Regulations).

(d) The capitalized amount of the sums deducted from his salary in respect of his pension contributions;

(e) A severance grant amounting to one and a half times his last monthly salary in respect of one year and six months' service;

(f) Compensation for the eight-thirtieths of his annual leave which he had not taken by 1 May 1958 and reimbursement of travelling expenses in respect of such leave;

(g) 5% interest, or such amount as the Court deems fit, on the amounts payable in respect of the various obligations set out above as from 12 March 1959 or, at the latest, from 11 May 1959.

In respect of this amplification of the demand, it must be examined whether it does not go beyond the conclusions in the application to an extent which is con­ trary to the provisions of the first paragraph of Article 38 of the Rules of Procedure and of Article 22 of the Statute of the Court of Justice.

In this respect the Court accepts that by referring in the application to 'the allow­ ances on termination of service with all the legal consequences' the applicant sought an examination of all the pecuniary consequences of his resignation which were specified and explained in the reply. They must therefore be examined separately.

B — Examination of the remainder of the application leads the Court to the fol­ lowing considerations and decisions:

(a) The applicant requests that the Court order a resettlement allowance in accor­ dance with Article 12 (a) of the General Regulations to be paid to him. In the terms of the abovementioned provision this allowance shall be paid to an official after the termination of his service on production of evidence of resettlement.

These provisions must be interpreted in the light of the operational unity of the European Communities and associated institutions and this concept renders in­ admissible the aggregation of a severance grant from one with an allowance on entry into service from another.

It is true that these allowances are flat-rate amounts. However, they do not repres­ ent a supplement to the remuneration payable to an official but fix by means of an advance estimate the equivalent of the costs of a single operation, namely the transfer of the residence of an official from one place to another.

As this transfer was only carried out on a single occasion, payment in respect of such a move by the High Authority is unnecessary in view of the payment made for the same reason by the European Investment Bank. This head of the applica­ tion cannot therefore be accepted.

(b) With regard to the severance grant sought by the applicant on the basis of Ar­ ticle 62 (c) of the General Regulations, analogous reasoning must be applied. The 'severance' referred to in the first subparagraph of this article must reasonably be understood as meaning severance from the Community service and the allowance attached to this severance must logically be regarded as being compensation for the loss of earnings of the servant during the time normally required to find a new post. This interpretation of the intention inspiring the adoption of this provision is corroborated by the first subparagraph which excludes from this allowance all

In entering the service of the European Investment Bank the applicant enters a new social security scheme, the organization of which either does not oblige him to make an initial payment to take account of his years of service with the High Authority, or does oblige him to pay the appropriate sum to the Bank's own funds.

In either case the High Authority cannot refuse payment of the reserve fund established for the benefit of the applicant.

Either the Bank is generous for reasons which are not comprehensible and bene­ volently covers, without payment of arrears to the fund, the years prior to its ap­ pointment of the applicant or else the applicant is obliged to pay the amount and for this purpose needs the sums which he claims.

In any event, in each case the transaction is res inter alios acta in respect of the High Authority.

It is only in the hypothetical case of an agreement unifying or merging provident

ALBERTO CAMPOLONGO v HIGH AUTHORITY

In the present case, even in the absence of any other action on the part of the ap­ plicant, the initiating application can be regarded as notification but as Commu­ nity law makes no provision for legal determination of interest in respect of delay in settlement the application must be rejected.

As for compensatory interest, it arises, it is true, as damages for failure to fulfil an obligation without prior notice being given. Nevertheless, its imposition is de­ pendent on damage which, in the present case, the applicant has failed to establish or even allege or offer to prove.

This part of the application must therefore be dismissed as being without foun­ dation.

3. The consequences of the resignation and the date of its taking effect

In the light of the abovementioned considerations the question of the date on which the resignation offered by the applicant on 11 February 1959 takes effect

JUDGMENT OF 15.7.1960 —JOINED CASES 27 AND 39/59

On those grounds,

Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Protocol on the Statute of the Court of Justice of the Euro­ pean Coal and Steel Community; Having regard to the Staff Regulations of the European Coal and Steel Commu­ nity, in particular Articles 2, 33, 41 and 58; Having regard to the General Staff Regulations of the European Coal and Steel Community, especially Articles 12, 13, 14, 15, 29, 47, 61, 62 and 91; Having regard to the Rules of Procedure of the Court of Justice of the European Coal and Steel Community of 21 February 1957 for disputes referred to in Article 58 of the Staff Regulations of the European Coal and Steel Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,

THE COURT (Second Chamber)

hereby:

1. Joins the actions introduced by Alberto Campolongo under Nos 27/59 and 39/59 for the purposes of the present judgment;

ALBERTO CAMPOLONGO v HIGH AUTHORITY

7. Dismisses the applicant's application for payment of a resettlement al­ lowance in accordance with Article 12 (a) of the General Staff Regula­ tions of the Community;

8. Dismisses the applicant's application for a severance grant in accor­ dance with Article 62 (c) of the General Staff Regulations of the Com­ munity;

9. Dismisses the applicant's application for reimbursement of travelling expenses for himself and his family from Luxembourg to Brussels;

10. Orders the High Authority to pay to the applicant the amount which, at the time of termination of his service, was standing to his credit in the Provident Fund of staff of the European Coal and Steel Community plus compound interest at the rate set out in Article 91 of the General Staff Regulations of the European Coal and Steel Community;

11. Orders the High Authority to pay to the applicant the amount of the

OPINION OF MR ROEMER — JOINED CASES 27 AND 39/59

Rossi Donner Hammes

Delivered in open court in Luxembourg on 15 July 1960.

A. Van Houtte R. Rossi Registrar President of the Second Chamber

OPINION OF MR ADVOCATE-GENERAL ROEMER DELIVERED ON 10 MAY 1960 1

Summary

I. Introduction 411

1 — Translated from the German.