C-12/61
ECLI:EU:C:1961:29
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JUDGMENT OF THE COURT (FIRST CHAMBER) 14 DECEMBER 1961 1
Wilhelmus Severinus Antonie Nannes Gorter
v Councils of the European Economic Community and of the European Atomic Energy Community
Case 12/61
Summary
Officials — Contractual basis — Period before the entry into force of the Staff Regulations — Contract of employment — Application of the provisions of the Staff Regula tions to the person concerned — Inability to give any guarantee (EEC Treaty, Article 246(3); EAEC Treaty, Article 214(3)).
Under Article 246(3) of the EEC Treaty Regulations and the rules referred to in and Article 214(3) of the EAEC Treaty the Article 212 of the EEC Treaty and Article conditions of employment applying between 186 of the EAEC Treaty. The appointing the Communities and their servants authority is therefore not able to give ser employed on a contractual basis under the vants employed under the 'Brussels Rules' so-called 'Brussels Rules' do not create any legally valid guarantees as to the subsequent definitive legal link between the parties application of the provisions of the Staff before the establishment of the Staff Regulations to them. 2
In Case 12/61
Wilhelmus Severinus Antonie Nannes Gorter, residing at 17 Van Montfoort Laan, The Hague,
applicant.
with an address for service in Luxembourg at the Chambers of Alex Bonn, 22 Côte d'Eich, Luxembourg, assisted by Y. H. M. Nijgh, Advocate at the Hoge Raad of the Netherlands
v
Councils of the European Economic Community and the European Atomic
Energy Community , temporarily established in Brussels,
defendants.
1 - Language of the Case: Dutch. 2 - Cf. paragraph 4, summary, judgment in Joined Cases 43, 45 and 48/59 (Rec. 1960, p. 937).
JUDGMENT OF 14. 12. 1961—CASE 12/61
with an address for service at their Secretariat, 3 Rue Lumière, Luxembourg, represented by their Legal Adviser, Raffaello Fornasier, acting as Agent, assisted by Jacques Basiyn, Advocate at the Cour d'Appel, Brussels,
Application for compensation for the loss allegedly suffered by the applicant owing to the need to resign from his Grade A 3 post in the Legal Department of the Secretariat of the Councils,
THE COURT (First Chamber)
composed of: O. Riese, President of the First. Chamber, L. Delvaux and N. Catalano (Rapporteur), Judges,
Advocate-General: M. Lagrange Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Summary of the facts The Secretary-General of the Councils in tervened with the Permanent Represen tative of the Netherlands to the two Euro The facts giving rise to the case may be sum marized as follows: pean Communities to suggest to the Netherlands Government that it reinstate Mr Gorter was employed in the Secretariat of the Councils of the European Com Mr Gorter in its own department. munities under a so-called 'Brussels Rules' After some time Mr Gorter himself asked
contract by a letter of 4 October 1958, with the Netherlands authorities to examine the
effect from 1 November 1958, and was possibility of his reinstatement in the national administration. assigned to the Legal Department (Grade 3, Category A). Mr Gorter who was a At the beginning of March 1961 a post Netherlands official, obtained extraordinary equivalent to the one which he had leave of one year from his country in order previously occupied was offered to Mr Gorter in the Netherlands. On 13 March to take up his post with the Communities. The work carried out by Mr Gorter was 1961 he sent to the Secretary-General of the Councils a letter in which he informed him held to be unsatisfactory by the Secretariat of this offer and continued: and the heads of the Legal Department and he was informed of his superiors' doubts as 'I refer you to the compensation provided to the possibility of giving him a permanent in Article 42 of the Staff Regulations of post in the Secretariat and of later applying the ECSC temporarily applicable to of the provisions of the Staff Regulations to ficials who are not established in the him. Communities. Nevertheless Mr Gorter did not tender his I calculate an amount of 36 times FB resignation. 30 345 for this allowance, giving a total
GORTER v COUNCIL
of FB 1 092 420 if my duties cease on 1 cils that he had accepted the offer of a post May 1971. made by the Netherlands Government and The allowance in place of the retirement that he was therefore tendering his resigna pension on the basis of the principles con tion, to take effect from 1 May. In addition, tained in the same article is, according to he observed that he had accepted this offer my calculations, approximately 30 in view of the fact that on March 17 1961 (months)x3x2 168, (my own monthly the Secretary-General of the Councils had contribution), giving a total of FB formally declared his intention of ter 195 120. minating his duties but that subsequently on The resettlement costs under the second 21 March the Secretary-General had paragraph of Article 12(b) of the General refused to release him from his duties im Rules amount to FB 60 690. The grand mediately. Consequently he alleged that the total is FB 1 348 230.' Secretary-General had forced him into a dif In conclusion, Mr Gorter asked for a rapid ficult situation or had taken advantage of reply as the Netherlands Government had the situation, contrary to the general princi asked him to reply to its offer as quickly as ples of proper administration. possible. In a letter of 22 April 1961 the Secretary- Discussions followed, following which an General of the Councils informed Mr allowance equal to three months' salary was Gorter that he had taken note of his letter of
offered to the applicant, as the Secretary- resignation and that he would take all steps General of the Councils decided that such possible to pay the sums due to him under compensation was in conformity with the the rules in force at the time. rules set out in the case-law of the Court. Meanwhile, by an action dated 17 April However, relying on the decision taken on 1961 and entered in the Registry of the 25 January 1958 by the Councils of the Court of Justice on the 20 April, Mr Gorter Communities, in particular provision No 6 brought Application No 12/61 before the (Rectius No 8), Mr Gorter considered that Court.
the nature of his duties justified a higher allowance.
Nevertheless, he accepted his reinstatement in the Netherlands administration. II — Conclusions of the parties Finally, on 21 March 1961 the Secretary- General of the Councils informed the appli In his application the applicant 'respectfully cant that: asks the Court of Justice of the European (a) the experience of the two and a half Communities to rule that in the present case years of service seemed to show that it he is entitled to compensation from the was no longer probable that he would be defendant Communities, to fix such com able to adapt to the work of the pensation at FB 1 348 230, or at any less Secretariat and that in any case it was amount which the Court sees fit, and to not possible to give him any guarantee of order the defendants to pay the costs'. having the provisions of the Staff In his reply, he reduced his claim concern Regulations applied to him; ing his pension rights by FB 130 040 which (b) he had no intention of compensating for he had meanwhile received from the any alleged loss but was prepared to en Secretariat and 'as to the rest ... he persists visage an administrative arrangement to in his conclusions'.
enable him, as far as this was compatible The defendants contend that 'the Court of with the provisions in force, to leave the Justice should rule that the applicant's re Secretariat in circumstances to his quest is without foundation both as to the benefit. main and the subsidiary request, conse By letter of 30 March 1961 Mr Gorter in quently reject the action and order the formed the Secretary-General of the Coun applicant to pay the costs'.
JUDGMENT OF 14. 12. 1961—CASE 12/61
III — Submissions and argu made his resignation inevitable. ments of the parties The defendants reply that, in a legal con text, the problem is whether Mr Gorter was The submissions and arguments of the par subject to pressure in order for them to ob ties may be summarized as follows: tain his resignation. The facts alleged in no A — The causes of the injury way prove that such pressure existed. Moreover, if there had been pressure, it 1. The applicant states that his personal would be necessary to prove further that situation had become extremely difficult. In this had a decisive influence.
It is possible support of this he puts in evidence a number that Mr Gorter deduced from certain con of facts: versations and attitudes — which, the work given to him was not of sufficient moreover, he reports in a tendentious quantity to allow of judgment of his skills manner — that they sought to leave him no and in some cases had even been withdrawn alternative but to resign, whereas in fact no from him; more was done than to inform him that his the attitude of Mr Mégret, one of the two failure to adapt to the duties of the heads of the Legal Department was entirely Secretariat meant that it was impossible to 'negative' towards the applicant; give him any guarantee that he would have the Secretary-General only obtained infor the provisions of the Staff Regulations mation as to the skills of the applicant from applied to him and that it should moreover Mr Mégret and placed full reliance on this; be pointed out that such a guarantee could moreover he had almost never 'heard the not in fact have been given in any valid way applicant'; legally. insufficient account was taken of the appli The initiative taken by the Secretary- cant's work; nevertheless the applicant had General with the Netherlands authorities is given evidence of his qualifications for the no more than an action in favour of the post and linguistic knowledge in carrying applicant and is not undeniable proof of the out the work given to him. intention to dismiss him: there is no link of The defendants emphasize the applicant's cause and effect between the two events. tendency to bring the debate down to a per sonal level and they point out that the B — The right to compensation Secretary-General heard the opinions of 1. The applicant argues that he has a right both the directors of the Legal Department to compensation because: as to the ability of the applicant and that The administration's conduct towards him both directors were in agreement. is contrary to the general principles of Moreover, the allegations made against the proper administration; this is sufficiently Secretary-General and Mr Mégret are based shown by the facts set out above. on an individual conception of the The administration's conduct is not in 'good hierarchical system and the organization of faith'; This means that, where there exist no work within an administrative department. reasoned criticisms given by their superior,
2. The applicant states that he was in fact officials employed on a contractual basis forced to resign. The interview granted to may expect to be integrated as soon as the the applicant on 21 March 1961 by the Staff Regulations are brought into force, Secretary-General and the initiative which since for some years they have relinquished he took with the Netherlands authorities to their posts in their national administration obtain the reinstatement of the applicant in and their reinstatement in that administra his national administration led the applicant tion may be confronted with serious factual to conclude that his days as an official of the and legal difficulties; the purpose of the Communities were numbered. provision that contracts concluded between The facts set out above and the atmosphere the administration and officials before the in which the applicant was forced to work entry into force of the Staff Regulations can
GORTER v COUNCIL
only be of limited duration is to be in be interpreted as providing security for terpreted as avoiding the situation of purely officials. contractual provisions remaining in force Article 42 of the Staff Regulations of Of after the adoption of the Staff Regulations. ficials of the European Coal and Steel Com It must not be interpreted as authorizing the munity, applicable to the applicant because Communities to put an end arbitrarily to of his grade, specifically provides for his posts assigned by contract. right to compensation and also regulates it; The facts set out above may equally well be the Staff Regulations are applicable to non- infringements of the principle of good faith, integrated officials of the Community by or of the general principles of administrative virtue of the decision of 25 January 1958 law or of the contract of employment itself. adopted by the Councils of the Communities The defendants reply that the first sentence (No. 8). This provision could have been of Article 246(3) of the Treaty establishing applied to the applicant from 13 to 21 the European Economic Community (the March 1961, since at that time there was first sentence of Article 214(3) of the Treaty nothing to prevent removal from his post in establishing the European Atomic Energy the interests of the service.
Community) and the very wording of the The defendants reply: contract concluded with the applicant in the Article 246 of the EEC Treaty cannot be in terms of the letter sent to him by the terpreted as though officials employed on a Secretary-General on 4 October 1959 contractual basis do in fact receive the should be borne in mind; in addition, they benefits of the Staff Regulations; such a refer to the judgments of 16 December 1960 conclusion would be unacceptable. (Case 44/59, Fiddelaar v Commission of the Article 42 of the Staff Regulations of Of European Economic Community, Rec. ficials of the ECSC is in any event in 1960, p. 1077) and of 15 July 1960 (Joined applicable, whether directly or by analogy, Cases 43, 45 and 48/59, Eva Von to an official in the position of the applicant. Lachmüller, Bernard Peuvrier and Roger The Councils' decision referred to by the Ehrhardt v Commission of the European applicant is not intended to make the whole Economic Community, Rec. 1960, P. 933). of the Staff Regulations of the ECSC Moreover, the Secretary General could not applicable to servants employed on a con disregard the opinion to be given by the tractual basis but to provide a scale for the 'Establishment Board' provided for in Arti competent authorities to enable them, while cle 90(1) (c) of the draft of the Staff Regula awaiting the establishment of the Staff tions, when it could not be presumed at all Regulations of the EEC and EAEC, to fix that the opinion of that board would the amounts of salaries, allowances and pen necessarily be favourable to the applicant. sions for servants employed on a contractual The administration cannot be accused of basis.
having acted in bad faith or of having failed To assign any other scope to the decision in to observe the rules of administrative law in question would infringe Article 246 of the respect of the applicant because he was not EEC Treaty (Article 214 of the EAEC able to become integrated in the Secretariat; Treaty) which expressly excludes security of moreover, he himself realised this and final employment prior to the adoption of Staff ly handed in his resignation. Regulations. In particular, it must be 2. The applicant relies on provisions which pointed out that the provisions of Article 42 in his opinion provide for his right of com are intended to compensate for the loss of pensation: employment for officials who did in fact The first sentence of Article 246(3) of the have the right to security by virtue of their Treaty establishing the European Economic position under the Staff Regulations. The Community (the first sentence of Article Secretariat, which in practice referred to the 214(3) of the Treaty establishing the provisions in force of the ECSC, European Atomic Energy Community) must nevertheless never disregarded the fact that
JUDGMENT OF 14. 12. 1961—CASE 12/61
the provisions of the Staff Regulations of reinstated in his original administration in a the ECSC, which are specifically based on post equivalent to that which he had the rule of security of employment, could previously occupied; therefore the only loss not be transposed in their entirety for the he had suffered was the possibility of benefit of staff of the EEC and EAEC Com remaining in the employment of the Com munities employed on a contractual basis munities and he has therefore suffered no who do not have such stability as specifically injury. provided for by the Treaties of Rome. The basis of the action brought by the appli cant is a resignation, the consequences of which must be borne by the applicant; there C —Assessment of the injury is no link of cause and effect between this In his application the applicant seeks com resignation and possible compensation for pensation of FB 1 348 230. dismissal. This claim relies on the circumstances Article 42 of the Staff Regulations of Of already set out by Mr Gorter in his letter of ficials of the ECSC cannot be applied to an 13 March 1961 quoted in the summary of official employed on a contractual basis by the facts. the EEC; moreover, Article 12 (b) of the In his reply the applicant deducts from the General Rules of the ECSC is not applicable amount of his claim FB 130 040 which he to servants employed on a contractual basis had in the meantime received from the by the EEC, as the applicant is not a tem Secretariat in settlement of his pension porary official; finally, a claim based on this rights; nevertheless he states that this only provision is contradictory to the claim covers half of the contributions paid to the brought under Article 42 of the Staff Provident Fund by the administration. Regulations. In the course of the oral procedure the ap plicant stated that in the meantime he had been given complete satisfaction in this IV — Procedure respect. The defendants recall that Mr Gorter was The procedure followed the normal course.
Grounds of judgment
The application was brought in the prescribed form and within the prescribed time-limits.
The defendants have raised no objection as to the admissibility of the application.
The applicant bases his claim for compensation, first, on Article 246(3) of the EEC Treaty and Article 214(3) of the EAEC Treaty and, secondly, on Article 42 of the Staff Regulations of Officials of the ECSC in conjunction with No 8 of the decision of 25 January 1958 adopted by the Councils of the EEC and EAEC.
The case referred to in the above-mentioned Article 42 is that of retirement in the
interests of the service, that is, a measure taken by the appointing authority.
However, in the present case the applicant himself tendered his resignation. Nevertheless, he claims that he was forced by moral pressure to resign by reason of
GORT ER v COUNCIL
the conduct of the Secretary General of the Councils and he therefore argues that in law the situation leading to the termination of his contract is equivalent to the retirement in the interests of the service mentioned above.
It must first be examined whether the applicant's contention is correct.
In the absence of unlawful pressure on the applicant, the argument based on Article 42 of the Staff Regulations of Officials of the ECSC would be without foundation, irrespective of the question whether this provision is also applicable to officials employed under the 'Brussels Rules' for contracts.
The fact that the Secretary-General of the Councils did not conceal from the appli cant that application of the provisions of the Staff Regulations to him was doubtful cannot be regarded as constituting unlawful pressure on the applicant.
Under Article 246(3) of the EEC Treaty and Article 214(3) of the EAEC Treaty the conditions of employment applying between the Communities and their servants employed on a contractual basis under the so-called 'Brussels Rules' do not create any definitive legal link between the parties before the establishment of the Staff Regulations and the rules referred to in Article 212 of the EEC Treaty and Article 186 of the EAEC Treaty.
It is for the appointing authority to assess the skills and abilities of officials with a view to the possible application of the provisions of the Staff Regulations to them on the entry into force of those Regulations.
Therefore, at the present time the appointing authority is not able to give to ser vants employed under the 'Brussels Rules' legally valid guarantees as to the subse quent application of the provisions of the Staff Regulations to them.
In these circumstances the Secretary-General of the Councils acted in conformity with both the provisions in force and the principle of good faith in, refusing on the one hand, to make such guarantees to the applicant and, on the other hand, in in forming him of the reasons which could, in his opinion, be an obstacle to the subse quent application of the provisions of the Staff Regulations to him.
In the present case there is no need to examine whether those reasons were well founded. In fact, in order to bring this matter before the Court the applicant should have waited either for a decision of dismissal or a decision refusing to apply the provisions of the Staff Regulations to him.
On the other hand, the information given to the applicant by the Secretary General of the Councils and the approaches made by him to the Netherlands authorities
JUDGMENT OF 14. 12. 1961—CASE 12/61
may be regarded as measures in favour of the applicant who was thus enabled to take such measures as he saw fit in good time and in full knowledge of the reasons.
The facts alleged by the applicant in no way prove that his resignation was tendered because of moral pressure.
On the contrary, it must be held that the applicant freely chose to resign in order to take advantage of the possibility offered to him by the Netherlands Government to return to its service.
The fact that he decided to follow this course through fear of subsequent refusal to apply the provisions of the Staff Regulations of Officials of the European Com munities to him when they entered into force does not mean that he did not take his decision freely, as he most probably thought that it was in his interests to avoid the risks which he would undergo remaining in the service of the Councils.
The applicant's claim for compensation for the injury which he claims to have suf fered following his resignation is therefore unfounded.
In his reply the applicant put forward a subsidiary argument which effectively ac cuses the defendants of an administrative error or a breach of contract.
This allegation is entirely without foundation for the reasons set out above, and the claim for compensation must therefore be rejected without having any need to ex amine the further arguments put forward by the applicant.
The claim for reimbursement of contributions to the Provident Fund is now
without purpose as the applicant has received complete satisfaction in this respect.
Costs
The applicant has failed in his application.
He shall therefore be ordered to pay the costs.
Pursuant to Article 70 of the Rules of Procedure of the Court the costs incurred by the Councils shall be borne by them.
On those grounds,
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur;
GORTER v COUNCIL
Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Protocols on the Statute of the Court of Justice of the Euro pean Economic Community and of the European Atomic Energy Community; Having regard to Articles 179, 212, 215 and 246(3) of the Treaty establishing the EEC and Articles 152, 186, 188 and 214(3) of the Treaty establishing the EAEC; Having regard to Article 42 of the Staff Regulations of Officials of the ECSC; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,
THE COURT (First Chamber)
hereby
1. Dismisses Application 12/61;
2. Orders the applicant to bear his own costs while the costs incurred by the defendants are to be borne by them.
O. Riese L. Delvaux N. Catalano
Delivered in open court in Luxembourg on 14 December 1961.
A. Van Houtte O. Riese
Registrar President of the First Chamber
OPINION OF MR ADVOCATE-GENERAL LAGRANGE
DELIVERED ON 23 NOVEMBER 19611
Mr President, He was employed in the Legal Department. Members of the Court, The work carried out by the applicant was held to be unsatisfactory by the Secretariat This action appears to be extremely simple. and the heads of the Legal Department, in Mr Gorter, a Netherlands official, was particular by one of them of French employed at the Secretariat of the Councils nationality. of the Communities under the so-called Following approaches made by the 'Brussels Rules' by a letter of 4 October Secretary General of the Councils and later 1958, with effect from 1 November 1958. an application made by Mr Gorter himself 1 — Translated from the French.