C-32/69
ECLI:EU:C:1970:68
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JUDGMENT OF THE COURT (FIRST CHAMBER) 9 JULY 1970<apnote>1</apnote>
Fulvio Tortora v Commission of the European Communities
Case 32/69
Summary
1. Officials — Leave — Powers of organization of the administration — Harmonization of the interests of officials with administrative requirements (Staff Regulations of Officials of the European Communities, Article 57)
2. Officials — Termination of service — Annual leave not used up — Compensatory payment — Grant only in cases justified by the exigencies of the service (Staff Regulations of Officials of the European Communities, Annex V, Article 4)
1. In dealing with leave, an institution has service is being terminated uses up his powers of organization enabling it, in annual leave before his departure. each particular case, to harmonize the 2. An official is only entitled to the com legitimate interests of the official with pensation set out in the second para the requirements of effective functioning graph of Article 4 of Annex V to the of its activities and of sound adminis Staff Regulations in so far as the exi tration. With particular regard to this gencies of the service have prevented him harmonization, the institution has the from using up all his annual leave before right to ensure that an official whose he leaves the service.
In Case 32/69
Fulvio Tortora, a former official óf the European Coal and Steel Community, residing at 22, Via Badia San Salvatore, Rome, represented and assisted by Gaston Vogel, Advocate of the Luxembourg Bar, with an address for service in Luxem bourg at the Chambers of Robert Krieps, 12 avenue Marie-Thérèse,
applicant,
v
Commission of the European Communities, represented by its Legal Adviser,
1 — Language of the Case: French.
JUDGMENT OF 9. 7. 1970 — CASE 32/69
Louis de la Fontaine, acting as Agent, with an address for service in Luxembourg at the offices of Émile Reuter, Legal Adviser to the Commission, 4 boulevard Royal,
defendant,
Application for the annulment of the decision of the Commission of 30 April 1969 refusing the applicant compensation for the annual leave not used up when he left the service,
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
gives the following
JUDGMENT
Issues of fact and of law
I — Summary of facts and procedure private offices — at the disposal of its members for the month of July 1967, and On 4 December 1963 the applicant was to repost him as Principal Administrator engaged as a temporary servant by the High in the Directorate of Inspection as from 1 Authority of the ECSC to fill the post of August 1967. deputy principal private secretary to the As the merger of the Executives had taken President; on 11 November 1964 he was place, the Commission of the European appointed to Grade A4 (in the Directorate Communities decided to accept with effect of Inspection). from 1 October 1968 the applicant's request On 15 December 1965 he was made under Article 4 of Regulation No 259/68 principal private secretary and temporarily of the Council that his service be terminated. graded A2 whilst continuing to hold the A4 On 21 June 1968, in notifying him of this post in that Directorate. decision, the Director-General for Person As the President of the High Authority had nel and Administration requested him to resigned on 5 March 1967 and the merger take the leave which was due to him by the of Executives was imminent, the High date on which his notice took effect, unless Authority decided, in the course of its he was prevented from doing so for urgent meetings of 21 and 22 June 1967, to retain service reasons. the applicant — and the staff of the other In replying to a demand by the applicant for
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payment for the leave which was not used of Article 4 of Annex V, the compensa up when he finally left the service, the tion for the leave for 1967 to be calculated Directorate-General for Personnel and on the basis of the remuneration for Administration in a letter of 30 April 1969 Grade A2; wrote that, as no service reasons had pre vented him from using up all the leave — rule that the Commission of the Euro remaining due to him, there were in his pean Communities shall bear all the case no grounds justifying payment of the costs of the proceedings; compensation claimed. On 22 July 1969 the applicant brought the — otherwise permit the applicant to show present application. by all legal means, particularly:
2. Upon hearing the report of the Judge- (a) by producing official documents Rapporteur and the views of the Advocate- General the First Chamber of the Court that the carrying forward of leave which decided to open the oral proceedings with had not been used up in the years 1964, out holding any preparatory inquiry. 1965, 1966 and 1967 was on each The parties presented oral argument at the occasion accepted by the competent hearing on 13 May 1970. authorities; The Advocate-General delivered his opinion on 28 May 1970. (b) by expert opinion or else by witnesses
that even after the closing down of the II— Conclusions of the parties private office of the President of the High Authority, the applicant was not able to use up all the leave to which he was The applicant claims that the Court should: entitled becuase of the obvious require ments of the service; — declare that this application is admissible that putting the records of the private on the basis of Article 91 of the Staff office in order, and may other tasks Regulations of Officials of the European connected with the closing down of the Coal and Steel Community; private office on the one hand and the sudden departure of President Del Bo — rule that by virtue of the second para on the other hand, obliged the applicant graph of Article 4 of Annex V to the to remain in Luxembourg to ensure that Staff Regulations of Officials of the the department which had just been ECSC, the applicant has a right to closed down was properly wound up; compensation for all the leave which he that the Directorate of Inspection was had not used up when he left the service; aware of this extremely serious situation and from 1 August 1967 to 1 October — as a result, vary the decision of 30 April 1968 had not given Mr Tortora any other 1969 of the Directorate-General for general duties; Personnel and Administration of the Commission of the European Commu — make all other orders which are necessary nities rejecting his claim; by law;
— rule and adjudge that the Commission — suspend a decision as to costs. of the European Communities is under an obligation to pay the applicant The defendant contends that the Court compensation for 67 days' leave which should: had not been used up (32 days for 1967 and 35 days for 1968) in accordance with — dismiss the action as being without the abovementioned second paragraph foundation;
JUDGMENT OF 9. 7. 1970 — CASE 32/69
— order the applicant to pay the costs. offices at the disposal of its members for the month of July 1967 and to move these officials to the posts which they III — Submissions and arguments were to hold as from 1 August 1967. At of the parties the end of this time all the private offices had been able to complete all the work involved in closing them down, whereas The submissions and arguments of the according to the applicant the winding parties may be summarized as follows: up of the work of the President's private office kept him occupied until A — The principal argument 30 September 1968.
The applicant maintains that the decision — The Directorate of Inspection, the of 30 April 1969 refusing him compensation defendant claims, was never informed by for the leave which had not been used up, the applicant of the 'heavy burden of was a violation of the second paragraph work' arising from his former position of Article 4 of Annex V to the Staff Regu as head of private office and did not lations as in this case all the conditions for relieve him of 'all other general duties' the application of the article have been for the period from 1 August 1967 to fulfilled. 30 September 1968. The defendant points out that, because of the The defendant further maintains that the obvious connexion between leave and the requirements of the service, as confirmed request for compensation for all the leave by Article 55 of the Regulations: not used up in 1967, on the basis of the remuneration corresponding to Grade A2, — the administration may only refuse the lacks foundation. Quite apart from the fact leave requested by officials in so far as that as from 1 August 1967 the applicant this is made necessary by the require was paid on the basis of the remuneration ments of the service; corresponding to Grade A4, it should be noted that:
— an official, on the other hand, can neither claim the right of carrying forward to — the carrying forward of leave from one the following year leave in excess of the year to the next is done by incorporating amount prescribed by the Staff Regula the leave from the previous year into that tions, nor the right to compensation for of the following year, in such a way that leave which has not been used up where in this case it would no longer be possible the official is leaving the service unless to distinguish between the leave from 1967 carried forward to 1968 and the it was the requirements of the service which prevented him from taking his leave for 1968 itself; leave. — in accordance with the second paragraph of Article 4 of Annex V to the Staff In this case, after permitting the applicant to carry forward to 1968 the leave which had Regulations, the compensation for leave not been used up in the previous year, the has not been used up is calculated on the administration requested him in a letter basis of the monthly remuneration at of 21 June 1968 to use up completely the the time of leaving the service. leave remaining due to him before he left Finally it states that the number of days the service unless this was not possible of leave not used up by the applicant when because of urgent requirements of the he left the service amounts to 54 and not 67. service. There were no such reasons. In fact: The applicant replies: — As the mandate of its members had ended on 4 July 1967, the High Authority — It is common knowledge that the work decided to retain the staff of the private involved in winding up the private
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offices took much longer than the time position as principal private secretary stated by the defendant. In this case it to Mr Del Bo and re-assigned to his post was complicated by the resignation of the as from 1 August 1967, he could not President and by the size of his private properly continue to perform the same office. The Commission is invited to duties. give the exact dates on which the staff of the other private offices were given — Moreover as steps had been taken for new postings. his service to terminate, his name could not appear in the new detailed list of — The Commission is further invited to posts. As his normal service duties were produce the decision posting the appli thus suspended, the Commission was cant to a new post, other than that of justified in asking him to use up his leave principal private secretary because by before he left. law every official shall have a post.
The purely formal return to the offices of the — Because of the special nature of the Directorate of Inspection on 21 June situation the applicant was in, as from 1967 is not sufficient in this respect. July 1968, the Commission was more over within its rights in refusing him the — Refusal to grant annual leave can only compensation which he claimed. bejustified, in exceptional circumstances, by the requirements of the service and — The applicant does not comply with the even in this case the Staff Regulations conditions in the second paragraph of are careful to guarantee the official his Article 4 of Annex V. Whereas that rights by guaranteeing him that either article (cf. especially the Italian version) his leave will be carried forward or that presupposes that the official has used he will receive financial compensation. up at least part of his annual leave in the year in which he leaves the service, — As an official in active employment may the applicant did not take, a single day's carry forward his leave, an official who leave in 1968. has left the service has a right to a com pensatory payment provided that he has — Furthermore in accordance with a not used up all his annual leave when general principle in relation to leave, an he leaves the service. There is no official who does not use up his right to legislation nor any principle which leave without being able to show the provides that he may be deprived of this requirements of the service as the cause right by an administrative act, such as loses, if not all, then at least part of his an order to use up his leave before leaving leave. A distinction between an em the service. ployee in active employment and one who has left the service is in no way Finally the applicant states that the Com justified in this respect. mission cannot demand that he prove 'urgent requirements of the service' to Β — The alternative argument justify his presence in the office.
On the one hand it may be asked whether it is admissible As to the offers of proof made by the appli to make his presence in the office dependent cant in the alternative, the defendant replies: on 'urgent requirements', whilst on the other hand, as the Commission itselfjudged (a) the submission at (a) has no purpose as that the collaboration of the applicant was the carrying forward of leave which had necessary until 30 September 1968, its not been used up in the course of the contention contradicts its own judgment years 1964 to 1967 was duly authorized;
and its own decision.
The defendant replies: (b) the submission at (b):
— Since the applicant was relieved of his — is, as to its first paragraph inadmis-
JUDGMENT OF 9. 7. 1970 — CASE 32/69
sible in that it should have stated both an administrative and a budgetary that it was in 1968 that the applicant standpoint must correspond with the needs was prevented from using up his of the service and further offers to prove that leave. Moreover it is categorically the time-limit set for him in the letter of denied by his official superior who 21 June 1968 'did not allow him to arrange did not admit the existence of his leave in normal circumstances because, requirements of the service which on the one hand, the season was too far prevented Mr Tortora from using up advanced for him to arrange a trip to a his leave (Schedule 11 to the applica holiday resort, and, on the other hand, his tion); duties in connexion with the closing down of the private office were both a mental and — as to its second paragraph, is equally physical bar to his going'. inadmissible in that the claimant did The defendant maintains that this sub not state precisely the period during mission is inadmissible in that it is too which he was obliged to remain to vague to be taken into consideration and is deal with the work involved in quite irrelevant as leave cannot depend on closing down the President's private the possibility of arranging a trip to a holi office. In any event this could only day resort. be the period from 1 January 1968 to 30 September 1968, the leave for C — The procedural request 1967 having been carried forward to 1968; The applicant requests the Court to order that the passage in the statement of defence, — as to its second and third paragraphs beginning with the words 'It is difficult to is based on allegations which have see ...' and ending with the words a already been shown to be false. period of 15 months' should be struck out as casting aspersions upon his honour. The applicant reiterates, first that the proof The defendant argues that in that passage, of the 'needs' justifying the 'presence' of the in challenging the facts submitted by the official follows from the supposition that applicant, it did not go beyond its right the creation and maintenance of a post from of reply.
Grounds of judgment
1 By an application lodged on 22 July 1969, the applicant has asked the Court to annul the decision of 30 April 1969 which denied him compensation for leave which he had not used up and to order the Commission to pay, him this compen sation for 67 days' leave which he had not used up.
2 Under the terms of the second paragraph of Article 4 of Annex V to the Staff Regulations 'Where an official at the time of leaving the service has not used up all his annual leave, he shall be paid compensation equal to one-thirtieth of his monthly remuneration at the time of leaving the service for each day's leave due to him'.
3 The applicant was previously attached to the private office of Mr Del Bo and after he resigned as President of the High Authority on 5 March 1967, the applicant was responsible for the winding up of the work of the private office.
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4 Following the entry into force of the Treaty of 8 April 1965 setting up a Single Council and a Single Commission of the European Communities the closing down of all the private offices of the former High Authority was decided upon; however by a decision of 4 July 1967 the staff was retained at the disposal of the former members until 31 July 1967.
5 On 1 August 1967 the applicant was re-assigned to his post of Principal Ad ministrator in the Directorate of Inspection.
6 In April 1968 he asked for measures to be taken to terminate his service as provided by Regulation No 259/68 of the Council, his request being granted with effect from 1 October 1968.
7 On 21 June 1968, following the abovementioned request, the Commission requested him to take the leave to which he was still entitled, before 1 October 1968.
8 Nevertheless the applicant maintains that he remained engaged in winding up the work of the private office of President Del Bo until 30 September 1968 and that this had prevented him from taking the leave in question.
9 He thus claims that the refusal of the Commission to pay him compensation for the leave which had not been used up on that date unlawfully deprives him of the benefit of the second paragraph of the said Article 4.
10 Since under the first paragraph of Article 57 of the Staff Regulations, an in stitution is obliged to guarantee every official the right to annual leave, this right must be exercised with due regard to the interests of the service.
11 In dealing with leave, the institution has powers of organization enabling it, in each particular case, to harmonize the legitimate interests of the official with the requirements of effective functioning of its activities and of sound administration.
12 With particular regard to this harmonization, the institution has the right to ensure that an official whose service is being terminated, uses up his annual leave before his departure.
13 The first paragraph of Article 4 of Annex V to the Staff Regulations, relating to the carrying forward of leave not used up by an official who is still in active employ ment, confirms by implication that failure to use up annual leave must be regarded as exceptional.
JUDGMENT OF 9. 7. 1970 — CASE 32/69
14 Consequently an official is only entitled to the compensation set out in the second paragraph of Article 4 of the said Annex, in so far as the exigencies of the service have prevented him from using up all his annual leave, before he leaves the service.
15 It is clear that by 31 July 1967 all the other private offices had been able to complete the work involved in their closing down.
16 Whilst the winding up of the work of the private office of the President of the the High Authority may have taken longer than in the case of the other private offices, the applicant was in a position to start on it in March 1967 at the time when the President of the High Authority tendered his resignation and the closing down of his private office was already in prospect.
17 The applicant himself states that no specific task had been entrusted to him in the Directorate to which he had been re-assigned on 1 August 1967 and that he was able to devote himself to winding up the work of the private office as far as was necessary.
18 All the same having been subject to a measure terminating his service in the terms of Regulation No 259/68 of the Council effective as from 1 October 1968 and for which he had volunteered in April 1968, the applicant was, after this decision, in an exceptional situation in that his service was due to end shortly and in that he no longer had to deal with important long-term tasks.
19 In these circumstances it has not been established that his work could have prevented him from complying with the request sent to him on 21 June. 1968 to use, up before 1 October of that year the leave to which he was still entitled.
20 For these reasons there appears to be no point in accepting the offers of proof made by the applicant.
21 The applicant further maintains that when he received the request from the Director-General for Personnel and Administration to use up his leave it was no, longer possible for him to arrange a trip to a holiday resort.
22 Whilst the administration must take account of the actual possibilities open to an official when it requests him at short notice to use up the leave to which he is entitled, it cannot be accepted that it must also take into consideration each in dividual official's prospects with regard to resorts.
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23 Therefore it may be concluded that the request sent to the applicant in June 1968 to use up his leave before 1 October 1968 did not adversely affect his legitimate interests.
24 For these reasons the applicant has no right to compensation.
25 The application is without foundation and must be dismissed accordingly.
The procedural request
26 As a matter of procedure the applicant requests that the following passage should be struck out from the statement of defence as casting aspersions upon his honour: 'it is very difficult to see how the applicant... can properly maintain today that the work involved in closing down the private office of the President of the High Authority kept him until 30 September 1968 that is, for a period of 15 months'.
27 In expressing its doubts as to the necessity for extending the work of winding up the private office of the President of the High Authority over 15 months the defendant has in no way impunged the applicant's honour.
28 The procedural request is without justification and must therefore be dismissed.
Costs
29 The applicant has failed in his application.
30 Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.
31 However, Article 70 of the Rules of Procedure provides that, 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;
OPINION OF MR. ROEMER — CASE 32/69
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 Statutes of the Court of Justice; Having regard to the Staff Regulations of Officials of the European Communities, especially Articles 55 and 57 and Article 4 of Annex V; 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;
2. Orders each party to bear its own costs.
Monaco Donner Mertens de Wilmars
Delivered in open court in Luxembourg on 9 July 1970.
A. Van Houtte R. Monaco
Registrar President of the First Chamber
OPINION OF MR ADVOCATE-GENERAL ROEMER DELIVERED ON 28 MAY 1970<apnote>1</apnote>
Mr President, Commission in Grade A5. As from 10 Members of the Court, October 1963 he became a temporary servant (under Title II of the Conditions Today's proceedings are concerned with the of Employment of Other Servants of the conditions under which an official who has Communities) and was employed as left the service of the Communities may deputy principal private secretary to the obtain monetary compensation for leave President of the High Authority of the which he had not used up. The following European Coal and Steel Community. He is a brief introduction to the case. was made a permanent official of the High The applicant entered the service of the Authority by a decision of 15 April 1964, European Communities in April 1958 and taking effect as from 16 April 1964. In spite was at first an official of the Euratom of his continuing employment as deputy
1 — Translated from the German.