C-23/69

defendant,

Application for the annulment of the decision of the Commission of 18 January 1969,

THE COURT (First Chamber)

composed of R. Monaco, President of Chamber (Rapporteur), A. M. Donner and J. Mertens de Wilmars, Judges,

Advocate-General: K. Roemer

Registrar: A. Van Houtte

I — Facts and procedure On 18 April 1968 the applicant submitted a request that a measure be taken terminating 1. Article 4 (2) of Regulation No 259/68 her services and the request was accepted of the Council authorized the Commission by the Commission in the course of its until 30 June 1968 to adopt measures meeting on 20 June 1968, to become effective terminating the service of officials, in order on 1 October 1968. to rationalize its departments or to meet On 20 December 1968 the Director-General requirements resulting from a reduction in for Personnel and Administration sent the the number of posts. applicant a telegram worded as follows: Paragraph (3) adds that if the interests of 'You will become entitled to receive a the service permit, the Commission shall full pension at the age of 60 and not 55, take into account an official's request that as you were earlier informed provisionally such a measure be taken with regard to him. Stop You may still renounce this right Article 5 of the Regulation provides that an in order to obtain the severence grant official affected by a measure terminating Stop Telephone Brussels 350040 Ext. 2032 his service is entitled to an allowance for a or 733052', fixed period, and states in the fourth sub to which the applicant replied by letter the paragraph of paragraph (7) that: same day. At the end of such period the official By a letter of 18 January 1968 the Director- shall be entitled to a pension without General for Personnel and Administration application of the reduction laid down sent her a 'Notice of settlement' containing in Article 9 of Annex VIII to the Staff particulars of the monthly allowances Regulations, provided that he has provided for Article 5 (1) of Regulation reached the age of fifty-five.' No 259/68 and stating that her right to a Article 6 provides further that an official full pension would take effect from the age who has not completed 11 years service may of 60. irrevocably renounce his pension rights and On 10 February 1969 the applicant sub opt for payment of a fixed allowance. mitted a complaint under Article 90 of the In a staff memorandum of 5 March 1968 Staff Regulations (Schedule 12 to the the President of the Commission drew the application) 'against the decision of 20 attention of its officials to these provisions December 1968 issued in the form of the

competent departments of the administra On 2 June 1969 she brought the present tion. application. When the applicant asked for information on her financial rights in the event of the 2. After hearing the report of the Judge- abovementioned being applied to her, the Rapporteur and the views of the Advocate- Commission's offices sent her early in April General, the Court (First Chamber) decided 1968 a statement containing, inter alia, to open the oral procedure without any calculations concerning the retirement preparatory inquiry.

JUDGMENT OF 9. 7. 1970 — CASE 23/69

The Advocate-General delivered his opinion Admissibility at the hearing on 22 April 1970. The defendant objects that the application is inadmissible as regards: II — Conclusions of the parties (a) The first head of the conclusions

— rule against the application by rejecting it in its entirety as inadmissible or (b) The second head of the conclusions unfounded; The defendant maintains that these con­ — order the applicant to pay the costs. clusions should be rejected for lack of any interest on the part of the applicant. They question the amount of the monthly III — Submissions and arguments allowance provided for by Article 5 of of the parties Regulation No 259/68, whereas all the arguments in the application relate to a dispute concerning the information con­ The submissions and arguments of the tained in the letter of 18 January 1969 on the parties may be summarized as follows: applicant's future and contingent pension

FIEHN ν COMMISSION

After confirming the arguments which it put The applicant replies that the sense and forward in its statement in defence the purpose of this head of the conclusions is defendant, points out that the applicant's to point out clearly that her rights should conclusions as set out in her statement in be determined in accordance with the first reply do not correspond to those appearing statement submitted to her. in the original application. Furthermore, these conclusions have noth ing to do with an application for an inter The substance of the case pretation nor do they relate to contingent and future rights, since they are directed to A — The main conclusions the question at what age the right to a full

already reached when the period for which The defendant claims that the third head the official is entitled to receive the allow of the conclusions is inadmissible in so far ance ends is contrary to the grammatical and as the applicant asks the Court to issue logical interpretation of the wording and directions to the Commission, a measure ignores the interconnexion between the which does not lie within its functions and provision and the ratio legis of the scheme powers. of which it forms a part. Even if it is accepted that this head of the This provision has introduced special conclusions is badly formulated and is in measures whereby the right to a full fact directed towards obtaining the annul pension is to accrue once the person ment of the decision of 20 June 1968 entitled reaches the age of 55, as even the terminating the applicant's service it is still title of Chapter II of Regulation No 259/68 inadmissible for the time-limit for appeal shows. has expired and cannot be revived on the It would therefore be wrong to interpret the strength of the complaint submitted on 10 disputed provision by way of analogy with February 1969. the fifth paragraph of Article 50 of the

Staff Regulations of Officials, for those in the conditional ('If . . . the official is provisions have a different purpose and are entitled to receive a pension before the of a different nature. age of 60 . . .') implies in fact that not Moreover Regulation No 259/68 was always, nor in every individual case, adopted on a proposal of the Commission does the fourth subparagraph of para so that the latter should have seen to it that graph (7) entitle an official to receive a its provisions were worded sufficiently pension before the age of 60; clearly for the officials affected to be in no doubt as to the extent and nature of their — by the fifth paragraph of Article 50 of the

question. The provision poses a condition, an exception to the ordinary rule in mind that is to say, that the age of 55 should be and adds that even if the Court recognizes reached prior to the end of the period for that it is not absolutely clear that its which the official is entitled to receive an wording has the meaning which the allowance. Bearing in mind the form of its applicant gives it, the defendant is never drafting it is impossible to see in it as the theless liable on the principles of interpretatio applicant claims to see, the imposition of a contra stipulatorem. time-limit ('when he has reached the age Moreover the letter addressed to Mr Faniel,

. .' is directly con Commission, it was subject to scrutiny by nected with the event in question the the European Parliament and definitively official's leaving the service in Article 9 drawn up by the Council. It goes on to of Annex VIII to the Staff Regulations observe that Council Regulations do not and the end of the period for which he is fall within the sphere of the law of nations entitled to receive the allowance in the but of administrative law. The applicant's fourth subparagraph of Article 5 (7) of reliance on the principle of interpretatio Regulation No 259/68; contra stipulatorem is therefore misguided as that principle relates to public international

FIEHN ν COMMISSION

Article 50 of the Staff Regulations as given — lastly, that she could not have connected in that letter. In any case there must be the information already given to her, doubt as to the procedural propriety of the which was binding on the authority applicant's citing in Court a personal letter which gave it, with a mere announcement addressed to a former official. in the Staff Courier.

at the beginning of April 1968. vested rights for, She states that it was this information, requested by her in accordance with the — in the first place there was here no staff memorandum of 5 March 1968, which initial legal decision creating subjective persuaded her to submit her request for rights and later withdrawn, for the voluntary termination of service. estimate supplied early in April 1968 was According to the principle of good faith as not a decision, but merely information recognized also in the case-law of the Court, given by the Commission without any the Commission is bound by this informa tion and must therefore act in accordance guarantee of its correctness.

of 16 April 1968 to the Staff Courier which were not addressed to the officials alerted officials to the fact that the informa concerned (the document produced in tion already supplied had been given Schedule III to the application is un merely as a guide and was not binding on signed) and it was only at their express the Commission. Even apart from the date request that they were sent to them; on which this supplement appeared (two days prior to the expiry of the time-limit — secondly, there was no decision with for submitting requests), it should be noted : drawing it, since the letter of 18 January 1969 does not amount to a decision as to — that the Commission should have made sure that it reached all the officials who payment of a pension but gives informa tion on the scope of a legal provision. had sought information by the last day on which it was open to them to take It would have been better for the applicant action; to have exercised the utmost discretion when she submitted her request for voluntary — that at the time the applicant received termination of service and waited for it to be it she had already submitted her request; accepted, particularly in view of the pre vailing atmosphere of great uncertainty and — that in any case the applicant thought anxiety amongst the Commission's staff herself already sufficiently informed and during the months when the decisions had therefore no occasion to seek implementing Regulation No 259/68 were additional information; being drawn up.

Several factors were present which should pension rights at the moment are merely have prevented her from placing complete future and contingent) ; its interpretation blind confidence in the information she had can be definitively determined in the last been able to obtain from the administration, resort only by the Court of Justice; particularly: — according to Article 41 of Annex VIII — the publication of the supplement to the to the Staff Regulations pension rights Staff Courier of 16 April 1968, which was are always subject to modification. quite clearly connected with the informa tion already supplied by the adminis The applicant objects that Article 41 of

The saw fit; accusation made against her of pleading a blind faith all too sanctimoniously is one — the letter of 12 June 1968 informing the which should rather be applied to the applicant that the Commission was Commission which, at its meeting of 25 June prepared to grant her request and that 1969, held that its own conduct had been she would receive later a statement ex inequitable and decided that the damage plaining her financial rights. The an suffered by its former officials should be nouncement of this second statement to compensated in full. come, especially in view of the notice Lastly, as to the notice in the supplement to published on 16 April 1968, should have the Staff Courier of 16 April 1968 it should alerted the applicant, the more so since, be noted that at that date no other informa as she was employed in the administra tion had been given on the point at issue, tion, it was easy for her to obtain even though requested on two or three information at any time.

Article 5 (7) of Regulation No 259/68; The Commission's interpretation therefore — the Commission cannot guarantee to meets a social need, whereas that put interpret a text which will only become forward by the applicant would amount to applicable several years hence (any unjustified generosity.

No vested right can be established on the have been in had the request not been made. basis of the incorrect and illegal interpre In addition to this the wrongful conduct on tation of a legal provision. the part of the Commission caused her both The defendant goes on to recall in relation material and non-material damage for to the effect of the statement of April 1968 which she should be compensated. the judgment of the Court in Case 32/68 The material damage results from the fact which shows, in its opinion, that the Com that if the defendant had acted correctly mission was right not to guarantee the the applicant would either have been information which it supplied. entitled to a greater pension from the age It denies the existence of any 'general of 55 or, in any event, would have received opinion' held by members of the Commis between the ages of 55 and 60 payments of sion to the effect mentioned by the applicant, the same amount as the full pension.

and improper. It had merely considered particular to bear this out: the possibility of its having incurred liability for any damage which it might have — the legal and administrative difficulties caused to the officials concerned. inherent in reorganizing its departments and in implementing Regulation No Β — The subsidiary conclusions 259/68, with which the Commission had to cope before the date (30 June 1968) The applicant claims that she submitted her set by the Council; request for voluntary termination of service on the basis of the information supplied at — the gap which occurred between the date the time by the Commission, and that there on which the applicant submitted her fore her request was mistakenly made under request (18 April 1968) and the date on the influence of an error attributable to the which this was accepted (20 June 1968); wrongful conduct of the Commission. — the warning given by the Commission That is why in her letter of 20 December in the staff memorandum of 16 April 1968 and in her complaint of 10 February 1968 regarding the purely advisory nature 1969 she reserved the right to claim, as she of the information already supplied; does also in the present proceedings, that her request is void according to the general — the fact that the applicant seems in fact principle of lack of consent which, together to have been aware of the existence with that of reliance on good faith, is well within the Commission of an interpreta known in German administrative law.

JUDGMENT OF 9. 7. 1970 — CASE 23/69

French administrative law on the material damage is incorrect since none contrary holds, that when notice is given could occur until she reached the age by an official and accepted by the of 55, and since she would suffer it administration neither act is void unless gradually as her age increased to 60; the notice was given under duress or under the influence of a mental condition — the alleged non-material damage is due such as to render invalid or non-existent solely to the applicant's own mistake in the consent of the person giving it : this not taking into account a number of was not the case here. points of fact and law, particularly the staff memorandum of 16 April 1968 and Lastly the defendant remarks that: the provisions of Article 41 of Annex VIII to the Staff Regulations. — the applicant's method of calculating the

Grounds of judgment

1 In an application lodged at the Registry on 2 June 1969 the applicant has asked the Court in the first place to annul the decision of 18 January 1969 relating to a 'Notice concerning the settlement of claims for the allowance provided for in Article 5 of Regulation No 259/68' and, as a subsidiary matter, that she be rein­ stated in the administrative position which she would have held had she not sub­ mitted her request of 18 April 1968 for a measure to be taken terminating her service, and in particular that she be assigned to a comparable post in the depart­ ments of the Commission of the European Communities.

The application for annulment

Admissibility

The substance of the case

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

She argues 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 and the period during which he is entitled to the allowance has ceased.

6 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.

Those who, like the applicant 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.

7 There are moreover, good social grounds for the disputed restriction of the rights to pension.

The interpretation adopted by the contested decision is therefore correct.

10 The applicant further claims that the contested measure was adopted without regard for her vested rights.

In this context she makes reference to the statements of her possible pecuniary rights, supplied by the competent departments of the Commission of the EEC during the month of April 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.

11 This statement was supplied solely by way of information and was not capable of determining rights which the applicant was to derive from a given legal situation.

It is not, therefore, possible to concede that the statement has the character of a measure creating rights for the addressee.

The appointing authority, being obliged to apply Regulation No 259/68 in defining the applicant's pecuniary rights, could not apply the incorrect interpretation adopted in that statement once it had become aware of the more accurate inter­ pretation.

natively that she be reinstated in the administrative position she would have held had she not submitted on 18 April 1968 a request for termination of service, and in particular that she be reinstated in a comparable post in the departments of the Commission.

She claims that her request to take advantage of the scheme for terminating employment was made under the influence of an error as to an essential fact—the date on which she would become entitled to receive a pension—occasioned by the wrong information supplied by the Commission.

14 The defendant contends that this request, which must imply annulment of the decision of 20 June 1968 terminating her employment, is inadmissible because it was submitted after expiry of the period specified by Article 91 of the Staff Regula­ tions for lodging an application for annulment.

15 The decision terminating the applicant's service was taken by the Commission following her request of 18 April 1968.

Accordingly, the period for bringing an action against the said decision can only begin to run from the time when it became evident that the request of 18 April 1968, which was the basis for the adoption of the decision in question, was made under the influence of an error occasioned by a wrongful act or omission on the part of the Commission.

This is a matter which can only be settled by examining the substance of the case, and therefore the application cannot be dismissed as being made out of time.

19 It is not contested that the appropriate departments supplied the applicant with incorrect information concerning the rights which she would be able to assert in the event of termination of her service.

Nor is it contested that this information was supplied as a consequence of the request by the Commission to the officials, concerned to contact the competent departments in order to obtain information on the rights which they would have should Article 4 of Regulation No 259/68 be applied.

20 The statements submitted by the defendant's representative in the course of the oral procedure show that the departments concerned discovered early in April that their interpretation of the disputed provision in Article 5 on which they had acted 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.

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.

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

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.

23 The letter of 20 December 1968 from the applicant to the Director-General for Personnel and Administration, and her complaint of 10 February 1969 show that her request for termination of service was a result of the wrong information which she had been given and which was not rectified in due time.

Moreover, the fact that in the abovementioned letter and complaint she asked, in the alternative, to be reinstated in the service of the Commission lends support to the conclusion that the prospect of a right to receive a full pension from the age of 55 was a deciding factor in her decision to request the application of Article 4 of Regulation No 259/68.

24 The applicant requests that the damage which she suffered as a result of the Com­ mission's wrongful act should be compensated for either by reinstating her in a post comparable to her former one, or by ordering the Commission to pay damages.

25 An award of damages is, in this case, the method of compensation best suited both to the interests of the applicant and to the requirements of the service.

The damage lies principally in the fact that, contrary to what she had reasonably foreseen, the applicant will be obliged at the age of 55 to choose between a reduced pension from that time on and a full pension when she attains the age of 60 but, in the latter case, without entitlement to any payment during the intermediate period.

26 In the circumstances the Commission should be ordered to pay the applicant, when she has attained the age of 55 and until she has attained the age of 60, a monthly allowance equivalent to the pension payments to which she would have

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; 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 the application for the annulment of the decision of 18 January 1969 regarding a 'Notice concerning the settlement of claims for the allow­ ance provided for in Article 5 of Regulation No 259/68';

FIEHN ν COMMISSION

OPINION OF MR ADVOCATE-GENERAL ROEMER

(See Joined Cases 19, 20, 25 and 30/69, p. 342)