C-3/68

JUDGMENT OF THE COURT (SECOND CHAMBER) 11 JULY 19681

Fernand De Schacht v Council of the European Communities

Case 3/68

Summary

Official — Principle of the continuity of the career of a Community official — Transfer from one set of Community Staff Regulations to another — No termination of service (Staff Regulations of Officials of the ECSC, Annex VIII, Article 12(a) and (b); General Staff Regulations of the ECSC, Article 62(a) and (b))

The provisions of both the new Staff Regu­ and Article 12(a) and (b) of Annex VIII to lations of Officials of the ECSC (Articles 92 the new Staff Regulations of Officials of the to 105) and the EEC-EAEC Staff Regula­ ECSC are inapplicable when the relation­ tions (especially Articles 2 and 3 of Annex ship under the Staff Regulations which VIII) confirm the principle of the continuity bound the person concerned to the ECSC of the career of a Community official. Con­ has been brought to an end by the very fact sequently, Article 62(a) and (b) of the of his becoming subject to the Staff Regula­ former General Regulations of the ECSC tions of Officials of the EEC and the EAEC.

Application principally for an order for the defendant to pay to the applicant the

1 — Language of the Case: French.

361.

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sums mentioned in Article 62(a) and (b) of the former General Regulations of the ECSC and Article 12(a) and (b) of Annex VIII to the Staff Regulations of Officials of the ECSC of 1 January 1962,

THE COURT (Second Chamber)

I — Facts official of the Communities, namely of the EEC and EAEC. This decision states that it The facts may be summarized as follows: 'involves the termination of the service of (1) The applicant, who is at present an the person concerned as an established official in Grade Al in the Secretariat- official of the European Coal and Steel General of the Council of the European Community, taking into account the appli­ Communities, entered the service of the cation of Articles 102(5) and 103 of the Staff Special Council of Ministers of the ECSC in Regulations [of Officials of the EEC and 1952. He became subject to the first Staff EAEC]'—hereinafter referred to as 'the Regulations of Officials of the ECSC EEC-EAEC Staff Regulations'—and that it (hereinafter referred to as 'the former 'shall take effect as from 1 January 1962'. ECSC Staff Regulations') with effect from (5) By letter of 30 August 1967 addressed to 1 July 1956. the Secretary-General of the Council, the (2) He was transferred to Brussels from applicant requested reimbursement of the Luxembourg, his first posting, by decision amount standing to his credit in the provi­ of 11 October 1960, which took effect as dent fund of the ECSC. This request was from 1 September 1960. rejected by letter of 30 October 1967 from (3) By a decision of 22 December 1961, the Secretary-General. based on Article 33 of the former ECSC (6) On 23 November 1967 the applicant Staff Regulations, the applicant was, at his wrote asking the Secretary-General to request, given leave on personal grounds for reconsider his decision in the matter. On a period of two years from 1 September failing to receive a reply, he made the 1960. From that date he was employed by present application which was lodged at the the Councils of the EEC and EAEC as a Court Registry on 29 Janary 1968. servant of those Communities under a letter of engagement of the so-called 'Brussels II — Conclusions of the parties contract' type. (4) By Decision No 101/62 of the Secretary- The applicant claims that the Court should: General of the Councils of the European '1. Establish and, in so far as is necessary, Communities of 11 July 1962, the applicant rule that Decision No 101/62 of the ap­ was integrated in Grade Al, Step 5, as an pointing authority involves the termina-

tion of the applicant's service as an in respect of his pension contributions. official of the ECSC; The applicant considers that he fulfils all 2. Therefore establish and, in so far as is those conditions; in particular, as provided necessary, rule that both the provisions for by Decision No 101/62, he ceased to be of Article 62(a) and (b) of the former an official of the ECSC on 1 January 1962. General Regulations of the ECSC and It follows from the abovementioned con those of Article 12(a) and (b) of Annex ditions that they apply to every event ter VIII to the new ECSC Staff Regulations minating service and exclude only certain were applicable to the applicant; expressly-mentioned cases in which there is

That judgment recognized the right of an official The defendant contends that the Court in a situation comparable with that of the should: applicant to benefit from the provisions of '— take note that the defendant does not Article 62(a) and (b) of the General Regula intend to dispute the admissibility of the tions, stating that 'it is only in the hypothe application; tical case of an agreement unifying or — rule that the application is unfounded merging provident and pension funds for all and dismiss it; the Communities that it will be possible to — make an order as to costs in accordance recognize' the right of the institutions to with the relevant provisions.' safeguard the interests of such a common fund; in fact, no such agreement has been III — Submissions and arguments of concluded. the parties The application of the provisions referred to would not prejudice the interests of the The submissions and arguments of the defendant, as it would remain free, in the parties may be summarized as follows: subsequent calculation of the applicant's The applicant relies on Article 62(a) and (b) pension, to take into account only the years of the former General Regulations of the of service completed after 1 January 1962. ECSC—which supplement the former Staff Finally, the applicant alleges that the con Regulations of the ECSC and are herein tested decision infringes the general prin after referred to as 'the General Regula ciples applicable to European public tions'—and Article 12 of Annex VIII to the service relating to the calculation of the Staff Regulations of Officials of the ECSC retirement pension of officials who, having (hereinafter referred to as 'the new ECSC left the service of one of the institutions, Staff Regulations') which entered into force have been re-employed in that institution or

JUDGMENT OF 11. 7. 168 — CASE 3/68

Communities. In this case, the applicant — The officials referred to in (c) above was deprived of this option. were established under the EEC- The dafendant first of all sets out the different EAEC Staff Regulations under the formulae used by the Secretary-General same conditions as a servant recruit­ —who was entrusted in January 1958 with ed from outside the institutions. the task of organizing the Secretariat of the They did not therefore obtain the Councils of the EEC and EAEC—when advantages of the transitional pro­ employing officials established under the visions of the new ECSC Staff former ECSC Staff Regulations: Regulations.

He cannot any longer ECSC; in respect of the same period the rely on the advantages of the new ECSC Secretary General, acting this time on Staff Regulations under which he was never behalf of the Councils of the EEC and integrated. EAEC, entered into a so-called 'Brus With particular reference to Article 62 of sels' contract with them. the General Regulations, the 'termination Owing to this formula, it was possible, of services' on which the applicant relies is a where necessary, to grant the persons concept defined in Article 40 of the former concerned a higher remuneration than ECSC Staff Regulations.

In this case, reason of the fact that the persons con the latter can no longer be entertained, as cerned had resided in Luxembourg the person concerned did not 'state un before their employment by the new equivocally in writing his intention to leave Communities. the service of the institution definitively'. (c) Finally, certain officials whose place of In sum, there was no termination of service origin had been Brussels deemed it pre within the meaning of Article 62. The same ferable to resign as officials of the ECSC results obtain with regard to Article 12 of in order to become subject solely to the Annex VIII to the new ECSC Staff Regula 'Brussels' contract system. tions. (d) Following the entry into force of the In order to counter the argument that the EEC-EAEC Staff Regulations, the above mentioned provisions have a general position of the officials referred to in scope, in the sense that they are always (b) and (c) above was regularized in the applicable in the absence of any of the following manner: exceptional cases for which they provide, the defendant states that: — The officials referred to in (b) were integrated as officials of the EEC and — the General Regulations were unable to EAEC; by reason of such integration provide for the applicant's case, as at that their service as officials of the ECSC time there was only one Community; terminated but the transitional pro — however, such a case was envisaged by visions of the new ECSC Staff Regu Article 102(5) of the EEC-EAEC Staff lations were applicable to them. Regulations, which refers to Articles 92

to 105 of the new ECSC Staff Regula in certain cases it chose the method of tions; resignation, whereas in the applicant's — regard should be had, from among those case it preferred the solution of leave on provisions, to Article 99(4) which inclu personal grounds. des the principle of the continuity of a The applicant's integration under the EEC- career in different Communities. This EAEC Staff Regulations, in the same way as provision is not limited to the severance resignation, involved a break in the con grant properly so-called. It refers to tinuity of service under the ECSC Staff Article 12 of Annex VIII to the same Regulations, which had existed up to the Regulations, which also deals with the moment of integration. reimbursement of the sum standing to The position of officials of the ECSC on the credit of the person concerned in the leave on personal grounds is governed, inter pension fund. alia, by Articles 92 to 105 of the new ECSC Staff Regulations, to which Article 102(5) of Mr Campolongo's case was different, as that the EEC-EAEC Staff Regulations refers as official actually resigned from the service of the ECSC. provided for by Decision No 101/62.

Staff Regulations. From the fact that the refer to the position on the transition from administration did not follow this method, the former ECSC Staff Regulations to the 'it can only be concluded that by its Decision EEC-EAEC Staff Regulations. All the No 101/62 of 11 July 1962 it intended to same, the applicant did not exercise ,-the achieve a break in the continuity of service 'option' to which he claimed to be entitled; under the ECSC Staff Regulations in the

Moreover, the particular: administration itself is responsible in the — that he was not given leave on personal absence of formal resignation. grounds straight away, but that the first In the case of another senior official, the measure taken concerning him at the administration accepted his resignation time of his move to Brussels was his and, on agreeing to its taking effect from transfer, carried out under the former 1 January 1962, itself ended the relationship ECSC Staff Regulations; under the Staff Regulations, which it — that in 1960, for the purpose of clearly claims has not happened in the applicant's settling his position, he suggested several case. In reality, however, the respective solutions to the administration, including situations of that official and the applicant leave on personal grounds and resigna are comparable. tion; these suggestions were rejected in Resignation does not depend on the will of accordance with the policy generally the official alone; it may only result from an adopted at the time by the administra administrative measure.

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1 January 1962. During the interval between circumstances and at the official's request. these two dates, the applicant had the The decision of 11 July 1962 does not con option of presenting his resignation and stitute a 'sort of compulsory resignation sui consequently of claiming the benefit of generis'. It merely recognized the termina Article 62(a) and (b) of the General Regula tion of service with the ECSC automatically tions. resulting from integration under the EEC- The defendant is wrong in referring to EAEC Staff Regulations. Article 99(4) of the new ECSC Staff Regula The judgment in the Campolongo case was

sels. The fact that it tried several methods in the Special Council of Ministers of the order to attain this does not provide ground ECSC established under the former Staff for criticism on the part of the persons con Regulations of that Community, from the cerned. various administrative solutions adopted at The decision of 22 December 1961 annulled that time (simple transfer; leave on personal with retroactive effect the decision of trans grounds; resignation). fer of 11 October 1960, which cannot there fore play any part in this case.

control. On hearing the report of the Judge-Rappor The applicant would have been entitled to teur and the views of the Advocate-General, present his resignation, despite the un the Court (Second Chamber) decided to favourable attitude of the administration; open the oral procedure without any pre that he did not so so was without doubt in paratory inquiry. order not to lose rights already acquired. At the request of the Court (Second Cham Likewise, the different solution adopted in ber), however, the defendant produced at the case of other officials stems from the the hearing on 27 May 1968 certain docu freedom of choice exercised by them. ments referred to in the reply. It cannot be said that leave on personal The parties presented oral argument at the

The substance of this claim must be examined separately on the basis of each of the sets of Staff Regulations to which the applicant was successively subject, namely first the former ECSC Staff Regulations and the General Regulations and then the EEC-EAEC Staff Regulations.

(1) In respect of the former ECSC Staff Regulations and the General Regulations, it is not contested—nor can it be—that, by reason of his becoming subject to the EEC-EAEC Staff Regulations, the applicant's service as an official of the ECSC terminated 'otherwise than by reason of death or invalidity', in the words of Article 62 of the said General Regulations. However the expression 'whose service terminates' must be interpreted in the light of the former ECSC Staff Regulations, on the basis of which the General Regulations were adopted.

Although Article 40 of those Regulations, which sets out the cases of 'termination of service', obviously could not refer to the case of the person concerned becoming subject to the Staff Regulations of Officials of another European Community, the applicant considers that such an event is tantamount to compulsory resignation, as provided for by Article 40 together with Article 41(B) of those Regulations.

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Under the terms of Article 41(B) a servant could be required to resign in a series of circumstances defined in Articles 27(1) and (2), 17 and 33 of the former ECSC Staff Regulations. However, none of those circumstances covers the applicant's position or is even remotely analogous to it. On the contrary, taken together those circumstances refer to situations in which the interest of the service conflicts with

It follows from the considerations set out under (1) above that Article 62 of the General Regulations does not apply to the applicant's position. Those consider­ ations apply equally in respect of Article 12 of Annex VIII to the new ECSC Staff Regulations, the meaning of which moreover is specified by the heading 'Severance Grant'. Further, Articles 92 to 105 of the new ECSC Staff Regulations

DE SCHACHT v COUNCIL

do not refer either expressly or by implication to Articles 62 and 12 abovemen­ tioned. Although Article 99(4) of those Regulations refers to Article 12 of Annex VIII to those same Regulations, it appears from the first three paragraphs of Article 99 that it only refers to officials whose service with the ECSC comes to be terminated subsequently to their becoming subject to the new Staff Regulations. Furthermore, Article 99(4) contradicts the applicant's argument since it confirms the principle of the continuity of the career of a Community official by providing that 'for the calculation of the severance grant provided for in Article 12 of Annex VIII, the period of service actually completed with the three European Communities before becoming subject to these Regulations shall be taken into account'. Further, this principle is repeatedly confirmed by the provisions of Articles 92 to 105 of the new ECSC Staff Regulations, which, as has just been stated, are applicable to the applicant. Thus Article 93 automatically confers the status of official, within the meaning of those Regulations, on any official within the meaning of the former ECSC Staff Regulations. Article 94, which is particularly relevant in this case as it refers, inter alia, to the pension scheme, provides that 'an official integrated under Article 93 shall retain the seniority in the service acquired up to the date on which these Regulations enter into force'.

JUDGMENT OF 11. 7. 1968 — CASE 3/68

their total period of service. Following this line of thought, the applicant refers to Articles 52 and 62(a) and (b) of the General Regulations and Articles 4 and 12 of Annex VIII to both the EEC-EAEC Staff Regulations and the new ECSC Staff Regulations.

With regard to the scope of Articles 62 and 12 abovementioned, it suffices to refer to the considerations set out under (1) and (2) above. With regard to Articles 52 and 4 abovementioned, they refer to officials who after leaving the service of the Communities are re-employed by a subsequent measure distinct from that termin­ ating their original service. Such cases are not comparable with the applicant's position in which the relationship under the Staff Regulations which bound him to one of the Communities has been brought to an end by the very fact of his becoming subject to the Staff Regulations of Officials of the other Communities.

(4) Finally, the applicant wrongly cites in his support the judgment delivered by the Court in Joined Cases 27 and 39/59 (Campolongo, Rec. 1960, p. 801 et seq.). In fact in those cases the official concerned was engaged by the European Invest­ ment Bank which is not an 'institution' within the meaning of Article 4 of the Treaty establishing the EEC and whose staff is therefore not covered by the EEC-EAEC Staff Regulations, as is evidenced by Article 1 thereof.

It follows from all the foregoing considerations that the present application is unfounded.

(5) The applicant has failed in his application. Under the terms of Article 69(2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs. However, under the terms of Article 70 of the said Rules in proceedings by officials and servants of the Communities against institutions, the institutions shall bear their own costs.

1. Dismisses the application as unfounded;

2. Orders the applicant to pay the costs of the proceedings, with the exception of those incurred by the defendant.

Strauß Donner Pescatore

Delivered in open court in Luxembourg on 11 July 1968.,

A. Van Houtte W. Strauß

Registrar President of the Second Chamber