C-19/69

André Saudray, an official of the European Communities, residing at 17, rue de la Grange, Sainte-Marie-de-Ré (France),

25/69

Françoise Padieu, an official of the European Communities, residing at 2 bis, rue de la Pazoche, Tours (France),

30/69

Hanna Serman, an official of the European Communities, residing at 22, rue des Morillons, Paris,

represented by Jacques Mercier, Advocate at the Cour de Paris, with an address for service in Luxembourg at the Chambers of Georges Margue, 20 rue Philippe-II,

(1) In all four cases :

For a declaration restoring the interpretation originally adopted by the EEC of the pension rights provided for in Article 5 of Regulation No 259/68 of the Council of 29 February 1968 and for an order that the administration settle the applicants' claims in accordance with that interpretation ;

(2) In Cases 19/69 and 20/69:

Alternatively, and should the principal claim be rejected, for the annulment of the decisions of 20 June 1968 of the EEC terminating the service of the appli­ cants and accordingly for an order that they be reinstated in exactly the grades and posts which they held at the time of their departure from the service, together with all rights attaching thereto ;

In Cases 25/69 and 30/69:

Alternatively, and should the principal claim be rejected, for the annulment of the decisions of 20 June 1968 of the Commission of the EEC terminating the service of the applicants and accordingly for an order that the EEC pay the applicants by way of damages sums amounting to three years' salary in each case,

JUDGMENT

Issues of fact and of law

stipulates that: On 29 May 1968 the Director-General for 'At the end of such period the official shall Personnel and Administration informed be entitled to a pension without applica them by circular which, however, was tion of the reduction laid down in Article addressed to each applicant individually, 9 of Annex VIII to the Staff Regulations, that the Commission was prepared to meet provided that he has reached the age of their request, and stated that they would fifty-five.' subsequently receive a table explaining their Article 6 provides that an official affected by respective pecuniary rights. the measures provided for in Article 4 (1) On 21 June 1968 the Director-General, who has not completed 11 years' service acting under the powers delegated to him may irrevocably renounce his pension for the purpose, notified the applicants of rights, in which case he shall receive a the decisions adopted by the Commission in severance grant fixed under the conditions its meeting of 20 June terminating their em laid down in Article 12 of Annex VIII to the ployment by virtue of Article 4 of Regula

monthly allowances provided for by Article ministration' (there followed a list of the 5 (1) (b), a statement to the effect that their officials appointed to give such informa right to an unreduced pension would come tion). into effect at the age of 60. At the end of March 1968 the applicants With the exception of Mr Saudray, the

applicants submitted a written request to the — Restore the interpretation originally administration for the explanatory table adopted by the EEC concerning the mentioned in the letter of 29 May 1968, pension rights provided for by Article 5 which, they thought, should contain some of Regulation No 259/68 of the Council explanation in particular of the option of Ministers of 29 February 1968, and provided for in Article 6 of Regulation No order the administration to settle their 259/68. Only Mrs Padieu received, on 21 claims on the basis of that interpretation ; January 1969, such a table which included — In Cases 19/69 and 20/69 : the calculations for a possible serverance Alternatively, should the above claim be grant. Lastly, the four applicants are pre­ rejected, annul the decisions of 20 June sumed to have opted for the right to a pen­ 1968 of the Commission of the EEC sion since the time-limit fixed by Article 6 of terminating their service and accordingly Regulation No 259/68 expired on 31 Decem­ order their reinstatement in exactly the ber 1968. same grades and posts which they held at On 15 January 1969 (Mrs Richez-Parise), 26 the time of their departure from the December 1968 (Mr Saudray), 15 February service, together with all their rights 1969 (Mrs Padieu) and 27 February 1969 attaching thereto ; (Mrs Serman) respectively, the applicants — In Cases 25/69 and 30/69: submitted a complaint to the Director- General under Article 90 of the Staff Alternatively, should the above claim be Regulations seeking to be accorded the rejected, annul the decisions of 20 June 1968 of the Commission of the EEC to right to an unreduced pension at the age of 55. Mrs Richez-Parise and Mr Saudray pay the applicants by way of damages a further requested that in the absence of such sum equivalent to three years' salary in a decision the decision of the Commission of each case; 20 June 1968 should be annulled, which — Order the defendant to pay the costs. would thus result in their reinstatement. In view of the failure of the administration The defendant contends that the Court to reply within two months to their respec­ should : tive complaints the applicants submitted applications to the Court of Justice dated — In Cases 19/69 and 20/69 : respectively 21 April 1969 (Mrs Richez- (1) Dismiss the entire application as in­ Parise), 23 April 1969 (Mr Saudray), 10 admissible or unfounded; June 1969 (Mrs Padieu) and 24 June 1969 (Mrs Serman). (2) Order the applicants to pay the costs ; The written procedure followed the normal — In Cases 25/69 and 30/69 : course.

by way of damages for the injury they have precise date from which the right to a suffered a sum equivalent to three years' retirement pension accrues. These official salary in each case. communications are, in fact, decisions fixing the pension rights in principle, even though the actual settlement of such claims lies in the future. In asking the Court to III — Submissions and arguments of restore the interpretation of Article 5 the parties originally adopted by the Commission the applicants were not, therefore, encouraging the Court to go beyond the unlimited juris The submissions and arguments of the diction accorded to it by Article 91 of the parties may be summarized as follow:

sider this request, according to the defen of the conclusions ('and order the ad dant, in the context of the procedure pro ministration to settle their claims on the vided for by Article 91 of the Staff Regula basis of that interpretation') is inadmissible tions, bearing in mind that it would involve in that it asks the Court to issue instructions the Court's having to rule on the inter to the Commission of a kind which do not pretation of provisions which could not fall within the role and powers of the Court. have applied at the time to the case in Citing the judgment of the Court in Case

The defendant rights forming the subject-matter of the goes on to say that the complaints sub dispute'. mitted under Article 90 by applicants Mrs In their reply the applicants point out, in the Richez-Parise and Mr Saudray cannot first place, that the first sentence of the re-open the period for an appeal to the abovementioned notice is worded as Court, since the complaints were them follows : selves submitted out of time. 'This is to inform you of your pecuniary Apart from this the defendant claims that rights following the application of the applicants have not set out in their Article 5 of Regulation 259/68 of the applications the grounds on which they Council and of the provisions of the Staff rely in support of their request for the Regulations currently in force', annulment of the decision of the Commis and secondly that this notice gives the sion and therefore have failed to satisfy the

The substance of the case Concerning the above the defendant claims in particular that : The first head of the application — the words of the text itself show that for the provision to apply the age of 55 must 1. As grounds for the request for the annul­ be reached prior to completion of the ment of the 'notice concerning settlement of period of entitlement to the allowance ; claims for the allowance provided for in Article 5 of Regulation No 259/68 of the — the interpretation favoured by the appli­ Council' addressed to the applicants, the cants amounts in fact to substituting the latter rely on the argument of violation of formula '... when he has reached the age vested rights. of fifty-five' for the one actually adopted On this point the applicants claim that the by the provision in question: 'provided interpretation of the fourth subparagraph that he has reached the age of fifty-five' ; of Article 5 (7) of Regulation No 259/68 is none other than that originally adopted by — this is confirmed by a comparison between the words adopted by the pro­ the Commission. This is shown in par­ ticular by, on the one hand, the interpreta­ vision in question and those in, on the tion given to this provision by the depart­ one hand, the fifth paragraph of Article ments named by the President of the Com­ 50 of the Staff Regulations, and on the mission, and on the other hand by a report other hand, Article 9 of Annex VIII to the on the progress made in implementing Staff Regulations ; Regulation No 259/68 sent on 24 July 1968 — lastly, Article 5 (8) of Regulation 259/68 by the Director-General for Personnel and is meaningless unless the fourth sub­ Administration to the Chief Executive paragraph of paragraph (7) is interpreted Assistants, in which it is stated that, bearing according to the Commission's view ; in mind the doubts which had arisen con­ cerning the interpretation to be given to the — this is because the 'if at the beginning of fourth subparagraph of Article 5 (7) of this paragraph (8) implies that this is a con­ regulation, the Commission 'has decided to dition which will not always be fulfilled opt for an interpretation ... which makes it whereas the interpretation advocated by possible to give satisfaction to those affect­ the applicants would mean that the right ed'. to a pension would always be acquired It was, moreover, essentially the ex­ before the age of 60. ceptional financial advantages resulting from the pension rights in particular which In their reply the applicants contest the inter­ had made the applicants decide to volunteer pretation put forward by the defendant, for measures terminating their service. claiming principally :

— that the applicants' interpretation of explanatory table informing him of his pecuniary rights, which shows clearly Article 5 ignores the opening phrase of that in the view of the Commission the the provision 'at the end of such period' : information supplied at the end of March could not be considered as decisions; — they ignore the social considerations which led to the adoption of a provision, the aim of which is to help older officials — the fact that in the report of 24 July 1968 who have earned their living with the on the progress of the implementation of Communities at least up to the age of 55 Regulation No 259/68, a report of which and who, in view of their age, would have the applicants have shown they were extreme difficulty in finding fresh em­ aware, there is mention of doubt con­ ployment; cerning the interpretation of the regula­ tion.

— the instance in 1967 referred to was the result of an error which was corected by a Lastly the defendant points out that whilst it is true that the deciding motives which led subsequent decision; the applicants to volunteer cannot be sub­ — the interpretation given by the applicants ject to scrutiny, the advantages offered by to the use of the word 'if' in paragraph Regulation No 259/68 are not limited to a (8) makes this part of the provision special allowances, sickness benefits and the totally superfluous. like. In their reply the applicants maintain their (b) Vested rights position, claiming in particular :

The defendant claims in the first place that — that whilst there is no denying that the

— Article 41 of Annex VIII to the Staff — the criticism that the position adopted by Regulations is without relevance to the the Commission amounts to a modifica­ present dispute for its first paragraph tion of the Staff Regulations and thus relates to errors or omissions made in encroaches on the powers of the Council calculating the amount of pension not displays an ignorance of the system of those concerning principles, and its Community law and confuses modifica­ second paragraph implies that pensions tion of an interpretation with a textual are to be paid first and modified or with­ amendment; drawn afterwards; — if Article 41 of Annex VIII to the Staff — the applicants have at no time claimed Regulations permits pensions already that the statements of account given to awarded to be rectified, then a fortiori them at the end of March had the status decisions may be taken not to pay of a decision, only that they amounted to pensions not yet calculated or awarded. information which could be relied on because it was supplied by the competent In the course of the oral procedure the departments expressly named for the parties repeated and elaborated the argu­ purpose by the Commission, informa­ ments already set out. in their respective tion which was a deciding factor in the pleadings. Thus it was that the applicants applicants' decision to volunteer to have claimed that, even if it could be accepted their employment terminated; that the administration is not bound to give officials, whom it presents with an option, — the defendant cannot rely on the guaranteed information on the consequen­ warning in the Staff Courier, because ces of that option, it cannot be disputed that that warning was not notified individu­ once it has in fact done so, it cannot, on ally to the officials concerned. changing its views later, interfere with the vested rights of those who have in the mean­ In a first section of its rejoinder the defen­ time exercised that option on the basis of the dant repudiates the suggestion that the information. The administration cannot be Commission's conduct was at fault. It allowed to exempt itself from the observan­ attempted to supply officials with the ce of this rule by arguing that a text which it necessary information whilst at the same has at least helped to draw up is obscure. time alerting them to the fact that the information was issued merely as a guide. 2. Formal defect If the officials thought the information not sufficiently certain they had only to refrain In their applications the applicants in Cases from requesting a measure terminating their 19/69, 25/69 and 30/69 assert further that employment. the Commission acted in such a way as to Moreover the insistence that the choice of prevent the proper application of Regula­ options with all the consequences attaching tion No 259/68. This is because, not having thereto should be made completely clear received the notices concerning settlement and definite ignores the fact that the alter- of claims until the month of January 1969,

they were not in a position to exercise the In any case the decisions were perfectly option granted to them by Article 6 of the legal. said regulation in full possession of the facts Similarly the claims for damages should be until after expiry of the limitation period (on rejected. 31 December 1968). That, they claim, is In their reply the applicants state that the contrary to the general rule of administra annulment of the decisions of 20 June 1968 tive law that a public administration cannot is only requested as a means of repairing the seek to make one of its officials exercise a damage done and that they are not being right accorded him by law without first challenged in themselves. giving him full information on its conse The defendant declares itself puzzled as to quences. the meaning, extent and validity of the According to the defendant there is no such second head of the conclusions and claims general rule of administrative law, on which in its rejoinder: in any case the applicants rely without adducing any evidence.

which they make. The Commission did in because the Commission has not been fact do so but only after so long a delay that guilty of any fault such as to make it the applicants found themselves precluded liable in law; in particular the fact that it by expiry of the limitation period from gave through its departments wrong in exercising the option provided for in formation involves no liability on the Article 6. part of the Commission and, therefore, In its rejoinder the defendant reiterates its the Community, once an express remin arguments, and maintains that it was under der had been issued to the effect that the no obligation to supply the information information was solely a guide;

No express grounds were given for this head — in any event the claim is premature since of the conclusions in the application. no injury can occur until the applicants In its statement of defence the defendant attain the age of 55 ; claimed that the application was inadmis­ sible owing to the failure to state expressly — finally, the alleged injuries are entirely the grounds or arguments supporting it. due to the negligence of the applicants

RICHEZ-PARISE ν COMMISSION

who failed to take into account the cir­ in particular those of Article 41 of Annex cumstances and the written provisions, VIII to the Staff Regulations.

Grounds of judgment

1 The applicants submitted applications, lodged at the Registry on 21 April 1969, 23 April 1969, 10 June 1969 and 24 June 1969, seeking in the first place the annul­ ment of the 'Notices concerning settlement of claims for the allowance provided for in Article 5 of Regulation No 259/63 and, alternatively, an order that the Com­ munities make good the damage caused by their wrongful act or omission.

The application for annulment

JUDGMENT OF 28. 5. 1970 — JOINED CASES 19, 20, 25 AND 30/69

The substance of the case

7 The applicants claim that the Commission contravened the fourth subparagraph of Article 5 (7) of Regulation No 259/68 by not granting them the right to a full pension with effect from their 55th year.

8 They argue that this provision accords to every former official who has been the subject of a measure terminating his service and who has been in receipt of the allowance provided for in Article 5, the right to a full pension once he has attained the age of 55 years and the period during which he is entitled to the allowance has ceased.

9 The wording of the provision in question shows clearly that the right to a full pension can only vest in a former official who, upon the expiry of the period during which he is entitled to the allowance, has attained the age of 55.

10 Those who, like the applicants, will not yet have attained that age at the end of the period during which they are entitled to the allowance, cannot benefit from this provision.

of the rules which usually govern the question, always a difficult one, of reducing staff.

16 The interpretation adopted by the contested decisions is therefore correct.

17 The applicants further claim that the contested measures were adopted without regard for their vested rights.

18 In this context they make reference to the statements of their possible pecuniary rights, supplied by the competent departments of the Commission of the EEC during the month of March 1968, which were based on an interpretation of the disputed provision according to which the right to a full pension accrues to all former officials in receipt of the allowances, once they have reached the age of 55 years and the period of entitlement to the allowance has ended.

19 These statements were supplied solely by way of information and were not capable of determining rights which the applicants were to derive from a given legal situation.

го It is not therefore, possible to concede that the statements have the character of measures creating rights for the addressees.

JUDGMENT OF 28. 5. 1970 — JOINED CASES 19, 20, 25 AND 30/69

founded on the infringement of Article 5, the applicants in Cases 19/69 and 20/69 have asked that the decisions terminating their services be annulled, because they only requested such measures on the basis of the error into which they were led by the wrong information supplied by the Commission's own departments.

25 The applicants in Cases 25/69 and 30/69 do not seek to be reinstated but ask that the Commission be ordered to pay them a sum equivalent to three years of their last salary.

26 In their reply the applicants in Cases 19/69 and 20/69 withdrew their request for annulment and joined the other applicants in requesting that the Commission be ordered to pay them a like sum by way of damages.

27 The defendant has submitted that these requests are inadmissible on the ground that they are out of time and insufficiently supported by express arguments.

28 A perusal of the pleadings reveals, though with a minimum of clarity, that what the applications in fact are seeking is an order against the Communities, by virtue of their liability for a wrongful act or omission, to make good the damage caused to the applicants by the said act or omission.

RICHEZ-PARISE ν COMMISSION

departments in order to obtain information on the rights which they would have should Article 4 of Regulation No 259/68 be applied.

34 The observations submitted by the defendant in the course of the oral procedure show that the departments concerned discovered early in April that their interpre­ tation of the disputed provision in Article 5 was, if not incorrect, at least very much open to question and that it was not accepted by the corresponding departments in the ECSC and the EAEC.

35 This discovery was in fact the main reason for the publication on 16 April 1968 of a communication from the Commission reminding staff that the information given was supplied only as a guide and without commitment.

36 Apart from the exceptional instance, the adoption of an incorrect interpretation does not constitute in itself a wrongful act.

37 Even the fact that the authorities request those concerned to obtain information from the competent departments does not necessarily involve those authorities in an obligation to guarantee the correctness of information supplied and does not therefore make them liable for any injury which may be occasioned by incorrect information.

43 The applicants have failed, however, to adduce sufficient evidence to establish that their requests for termination of service were based on the wrong information supplied to them and not corrected in good time.

44 Moreover, the fact that they have all waived a request for reinstatement in the departments of the Commission reinforces the conviction that the prospect of a right to an unreduced pension from the age of 55 was not a deciding factor in their decision to request the application of Article 4 of Regulation No 259/68.

45 On the other hand it would be reasonable to assume that, under the impression that they would receive a full pension from the age of 55, the applicants did not take into consideration the possibility of renouncing their pension rights under Article 6 of Regulation No 259/68 in order to benefit from the grant provided for by that article.

46 Since the period for requesting the application of Article 6 has expired the appli­ cants are no longer in a position to take advantage of it should they prefer it to the scheme laid down in Article 5 as interpreted by this judgment.

47 The damage they may have suffered by virtue of this fact will be most effectively made good by restoring them to the situation in which they would otherwise have been.

48 As compensation for the injury which they have suffered, it is therefore appropriate to allow them a fresh limitation period and to rule that for them the period laid down in Article 6 shall be deemed to run from the date of this judgment.

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaties establishing the European Communities; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Staff Regulations of Officials of the European Communities, in particular Article 91 ; Having regard to Regulation No 259/68, especially Articles 5 and 6; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,

THE COURT (First Chamber)

hereby:

1. Dismisses as unfounded the applications directed against the 'Notice con­ cerning settlement of claims for the allowance provided for in Article 5 of Regulation No 259/68 of the Council' addressed to the applicants;

2. Orders that with regard to the applicants the period laid down in Article 6 of Regulation No 259/68 shall be deemed to run from the date of the present judgment;

3. Orders the defendant to pay the costs.