C-20/68

JUDGMENT OF THE COURT (FIRST CHAMBER) 2 JULY 19691

Giulio Pasetti-Bombardella

v Commission of the European Communities supported by the Council of the European Communities

Case 20/68

Summary

1. Officials — Administrative measure adopted at the request of an official — Illegality of the measure — Remedy of the person concerned — Admissibility

1 — Language of the Case: Italian.

JUDGMENT OF 2. 7. 1969 — CASE 20/68

Supported by

Council of the European Communities, represented by its Legal Adviser, Raffaello Fornasier,

intervener,

Application for the partial annulment of the decision of 21 May 1968, which became definitive on 20 June 1968, to the extent to which that decision pre­ cludes the calculation of the applicant's pecuniary rights, as a result of the termination of his service under Regulation No 259/68, on the basis of Article 42 of the Staff Regulations of Officials of the ECSC of 1956,

I — Summary of the facts on whom non-active status was con­ and procedure ferred. New Staff Regulations, which entered The applicant entered the service of the into force on 1 January 1962, amend High Authority of the ECSC in 1956 Article 50 of the foregoing Regulations and was established in Grade A3 on 1 to the effect that in future only officials July 1956 when the Staff Regulations of holding posts in Grades A1 or A2 may Officials of the ECSC entered into force. be retired in the interests of the service In addition to a general system tor con- —officials holding a post in Grade A3 ferring non-active status, governed by are not covered—and the pecuniary con­ Article 34 of the said Staff Regulations, sequences of this retirement were in Article 42 thereof provided that officials future to be comparable with those re- holding posts in Grades A1, A2 and A3 sulting from non-active status. could be retired in the interests of the Nevertheless under Article 99(2) of the service and in such case received an al­ new Staff Regulations, officials in Grades lowance and retirement, terms defined A1 and A2 who were established before in the same article, which were more 1 January 1962 and who were retired favourable than those granted to persons in the course of their employment con-

PASETTI v COMMISSION

21 May 1968 (Schedule I to the appli A — The applicant claims that the Court cation), confirmed by the decision of 20 should: June 1968. — declare Article 7 of Regulation No By letter ot 21 June 1968 (Schedule 3 259/68 inapplicable owing to the to the application), the applicant was re- abovementioned defects and partially quested to intimate whether he wished annul the decision following the de to exercise the option provided for in liberations which have been con

Grades Al and A2 established before In his application, on 30 August 1968, 1 January 1962; the applicant takes the view that he is — order the defendant to pay the costs. entitled to the benefit of the system B — The defendant contends that the under Article 42 of the Staff Regulations Court should: of 1956, and requests the annulment of — declare the application inadmissible; the decisions of 21 May and 20 June 1968 — in anv event dismiss it as unfounded; to the extent to which they preclude — order the applicant to pay the costs this right, and requests a ruling that of the proceedings in accordance with Article 7 of Regulation No 259/68 is the provisions of Article 70 of the

JUDGMENT OF 2. 7. 1969 — CASE 20/68

C — The intervener contends that the form printed by the defendant on which Court should: it was impossible to add reservations. — dismiss as unfounded the applicant's Finally, since the actual measure ter­ application to have the provisions of minating his duties had not been taken Article 7 of Regulation No 259/68 at the moment of signing the said form, declared inapplicable. the administration could not guard itself against an application to the Court by the anticipated accession of the person III — Submissions and argu­ concerned to a future measure. ments of the parties The applicant then states that the argu­ ment based on the difference between A — Admissibility the system of termination of service pro­ The defendant maintains that the ap­ vided for in Regulation No 259/68 and plication is inadmissible because the con­ that of retirement relates to the sub-

lar system set up by Regulation No ing granted the benefit, which he claims 259/68 in order to meet temporary ex­ of the provisions as to retirement pro­ ceptional circumstances. It concludes vided for in the Staff Regulations of from this that the applicant consequendy 1956. was not entitled to the advantages pro­ The applicant replies that he does not vided for by Article 42 of the Staff ask the Court to apply to him certain Regulations of 1956 on retirement. The provisions relating to officials in Grades defendant nevertheless admits that the A1 and A2 but only to annul the con­ application would only be inadmissible tested decisions. The Administration on this basis if a clear difference be­ would then have to conform to the tween the two systems were apparent. judgment and recognize the applicant's The applicant replies that although he vested rights by granting him certain signed the request for the termination rights in accordance with Article 42 of of his service he did not seek the finan­ the Staff Regulations of 1956 or by cial injury arising from an illegal sys­ giving him a corresponding allowance. tem and that he had never renounced B — Substance his right to make an application by ac­ quiescence in the measure complained 1 — Infringement of rights acquired on of. According to the applicant there can the basis of Article 42 of the Staff be no question of renunciation of the Regulations right to appeal from the fact that the voluntary request had to be written on a (a) The applicant alleges that the con-

PASETTI v COMMISSION

1962. According to him, Article 7 is the Staff Regulations of 1956, all the illegal because, as well as those in Grades facts creating the right must have Al and A2, the officials in the Grade taken place during the currency of A3 established, like the applicant, be that legislation. The right to pecuni fore 1 January 1962 have a vested right ary benefits, which is based on the to have the pecuniary consequences of termination of employment, only their retirement calculated on the basis comes into effect when the termina of Article 42 of the Staff Regulations tion takes place.

tude fails to observe the specific recog It states, for the sake of argument, nition by the provision of the inviol that if in the present case there had ability of those rights deriving from the been an infringement of vested rights, Regulations of 1956. this would result from the amend Consequently, if it were unreasonable ments made to the Staff Regulations that the Staff Regulations of 1962 should of 1956 by the Community author maintain for the officials in Grade A3 ities who, under the Treaty estab the pecuniary consequences of retirement lishing the ECSC and the Treaty (since the administration was no longer merging the administrations, had empowered to take such a measure with powers with regard to the Staff regard to them), Regulation No 259/68, Regulations of Officials comparable by affirming with regard to officials in to those enjoyed by the legislature Grade A3 the power to pronounce in in all Member States with regard to the context of 'termination of service' a national officials. measure identical to retirement, should According to the defendant, the appli again have made Article 42 of the Staff cant is mistaken in considering the Regulations of 1956 applicable to officials power granted to officials in Grades A1 established in Grade 3 before 1962 who and A2 to opt for the system of cal had a vested right in the system per culation provided for by Article 42 of taining to that article. the Staff Regulations of 1956 as recog-

nizing a vested right for those officials. — Their effects, since they all involve In the present case, the authority draw the immediate tennination of the ing up Staff Regulations limited itself master and servant relationship; this for reasons of good administration, to termination is immediate in the case mamtaining for the officials established of Regulation No 259/68, since the in Grades A1 and A2 before 1 January regulation lays down a clear dis 1962, as it had done with regard to all tinction between non-active status other categories of officials, the right to and termination of service as pro avail themselves of the system of allow vided for in Article 4; ances and of pensions guaranteed them — Their aim, since both are adopted in before the entry into force of Regula the interests of the service; tion No 259/68 if this earlier system — Their criteria as to the proportion of appears to be more advantageous than the allowance. that set up by the said regulation. Furthermore, the reference in Article According to the intervenor the appli

lature, by virtue of its discretionary is a new system different from that of power, took account of the legitimate retirement. It observes the following dif hopes of officials in this sphere, and to ferences: the extent to which it considered it ex — With regard to the effects, it observes pedient, of their mere expectations. that the termination of the relation The Council in particular considered it ship of service is a necessary and equitable to reserve the benefits of immediate consequence independent Article 42 of the Staff Regulations of of the will of the person concerned 1956 exclusively for officials in Grades in the retirement, whilst in the sys A1 and A2 whilst refusing them to the tem of Regulation No 259/68 the ter officials in Grade A3 who, since the mination of the relationship of ser Staff Regulations of 1962, enjoyed in vice depends, at least for the officials creased stability of employment. in Grade A3 and below, on the will (b) The applicant considers that he has of the person concerned who may acquired a right under the system pro initially volunteer for retirement and vided for by Article 42 of the Staff above all may choose between ter Regulations of 1956 on retirement, and mination of service and a measure is of the opinion that the measure adop granting non-active status (the second ted with regard to him under Article 4 subparagraph of Article 4(2)).

PASETTI v COMMISSION

2. Disparity of treatment violating the person has opted for non-active status. principle of impartial administration — With regard to the aim, the defendant The applicant maintains that Article 7 notes that the interest of the service of Regulation No 259/68 on which the is a characteristic, not only of meas contested measure is based is further ures taken under the abovementioned illegal because it discriminates between systems, but of any other measure the various officials established before 1 of the administration.

In advantages to the system of non-active the defendant's view it is doubtful status, in particular a choice for the whether the problem of impartiality pre official between non-active status and sents itself in the same terms as regards termination of service and making it the adoption of legal rules by the legis possible to avoid both by accepting trans lature and the implementation of those fer to a post corresponding to the career rules. It adds that the fact of having ac bracket immediately below that applic corded only to officials established be able to his grade and the grant of in fore 1962 in Grades A1 and A2 the creased allowances. power to' avail themselves of Article 42

of the Staff Regulations of 1956 'is justi­ ences between the guarantees given to fied if account is taken of the fact that, officials in the various grades, which in in the absence of that power, the Staff the view of the Council explain the dif­ Regulations of 1962 would have brought ferentiation established between officials only the officials established before 1962 in Grades Al and A2 and the others, in Grades A1 and A2, to the exclusion officials who left the service voluntarily of those in Grades A3, under a less under Regulation No 259/68 did not, favourable system than that which they however, benefit from these guarantees. enjoyed previously under the Staff Regu­ In fact, the request to leave voluntarily is lations of 1956 and they would have con­ incompatible both with the guarantees tinued under this less favourable system provided for in Article 4(2) of the regu­ under Regulation No 259/68. lation and with the option offered be­ According to the intervener, when the tween non-active status and terrnination Council drew up Article 7 of Regulation of service; this is clear from the wording No 259/68 it took into account not the of Article 4(3) of the said regulation vested rights claimed but certain expec­ which does not provide for notification tations; how this was done falls within to the 'volunteer' of the period within the discretion of the legislature. The which the option must be declared; this inequality of treatment resides in the assumes that such an option is not open different system set up by the Staff to him. It is therefore proved that at Regulations of 1962 and is justified by least the volunters in Grade A3 have the difference in treatment accorded to the same expectation as the officials in the officials regarding guarantees under Grades A1 and A2; identical treatment Regulation No 259/68. Those guarantees must therefore correspond to an identi­ are not illusory as the applicant has cal situation. benefited from them. The applicant concludes in general that The applicant replies that if the adminis­ the contested decisions must be annulled tration decided to respect expectations, because they are automatically defective which it was not bound to do, it must by reason of the illegality of Article 7 respect them for all who had the same of Regulation No 259/68, against which expectations. He adds that although it he has raised the objection of illegality is theoretically possible to find differ­ in the conclusions set forth above.

4 This argument, which derives from a comparison of the two systems, pertains to the substance of the dispute.

5 Finally, according to the intervener, the application is inadmissible because the applicant has no interest in having Article 7 of Regulation No 259/68 declared inapplicable to the present case, since he has lost the benefit of the provisions concerning non-active status without, however, obtaining the benefit of those relating to retirement.

6 If Article 7(2) of Regulation No 259/68 were declared illegal and inapplic­ able to the applicant, the execution of the judgment would oblige the ad­ ministration to take a new decision taking into account the rights which the illegal provisions had failed to observe. The applicant has consequently an interest in his action.

7 From all these factors it is clear that the application is admissible in its entirety.

II — Substance

8 The applicant alleges that Article 7 of Regulation No 259/68 on which the contested measure is based is illegal because it infringes the right of officials in Grade A3 established before 1 January 1962 to have the pecuniary con­ sequences of the terrnination of their services calculated on the basis of Article 42 of the Staff Regulations of 1956.

13 Moreover officials in Grade A3 and below affected by such a measure may request non-active status, which leaves open the possibility of returning to the service. Finally officials are authorized to request on their own initiative a measure terminating their service, which is precisely what the applicant did.

14 It is clear from these factors that Regulation No 259/68 set up a system for the removal of officials which has no equivalent amongst the methods of leaving the service provided for in the Staff Regulations and which may be explained by the temporary and exceptional requirements which had to be met. For this very reason the applicant cannot have recourse to those other methods of leaving the service to deduce from them rights in his own case.

15 The applicant states alternatively that even if Article 7 of Regulation No 259/68 does not infringe vested rights it is none the less illegal in that it creates a discrimination between the various officials established before 1 January 1962, in particular by allowing officials in Grades Al and A2 to opt for the financial scheme of Article 42 of the Staff Regulations of 1956, whilst refusing the same right to officials in Grade A3 who were nevertheless initially covered by the said Article 42.

16 The financial scheme following termination of service was governed by Article 5 of Regulation No 259/68, but Article 7 of that regulation mitigates the position by allowing officials in all categories who were established before 1 January 1962 and who are affected by that measure to opt on leaving the service for the scheme of allowances and pensions secured for them by the Staff Regulations of 1962 if that scheme were to seem to them preferable to that of Article 5.

19 It is clear from all these factors that the Council has not introduced dis­ crimination but has only taken into account the different positions under the Staff Regulations of different categories of officials. The submission is there­ fore unfounded.

Costs

20/21 The applicant has failed in his application. Under Article 69(2) of the Rules of Procedure the unsucessful party shall be ordered to pay the costs. Never­ theless, under Article 70 of the said Rules, in proceedings commenced by servants of the Communities, institutions shall bear their own costs.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General;

OPINION OF MR GAND — CASE 20/68

Delivered in open court in Luxembourg on 2 July 1969.

A. Van Houtte J. Mertens de Wilmars Registrar President of the First Chamber

OPINION OF MR ADVOCATE-GENERAL GAND

DELIVERED ON 18 JUNE 19691

Mr President, plicable to him and he was established Members of the Court, in Grade A3. Because of this, as in the case of holders of posts in Grades A1 The matter on which you have today and A2, he could at any moment be to give judgment relates to the extent retired in the interests of the service of the financial rights available to Mr (Article 42 of the Staff Regulations); in Pasetti following the decision to termin­ that event he was entitled to a temporary ate his services on the conditions laid allowance, then to a pension calculated down by Article 4 of Regulation No under more advantageous conditions than 259/68 of the Council. those conferred by Article 34 on officials In January 1956 the applicant entered accorded non-active status following a the Legal Department of the High reduction in personnel involving the Authority. In the same year the Staff abolition of posts. Regulations of the ECSC became ap­ This system was amended by Article 50

1 — Translated from the French.