C-36/69

2. Officials — Directors-General — Posts — Varied nature — Adaptability essential

3. Officials — Post — Acceptance — Abilities required — Lack thereof alleged by the person concerned — Termination of service — Compulsory retirement — Absence of any right to the benefit of these arrangements

1. Officials are entitled to rely on the rule he has accepted appointment does not of correspondence between grades and suit his abilities, this does not entitle posts. him to the benefit of the arrangements relating to termination of service or to 2. The administration is entitled to expect compulsory retirement since such ar­ that senior officials shall be sufficiently rangements can only be applied in the adaptable to fill posts of different kinds. interests of the service. 3. If an official finds that the post to which

In Case 26/69

Franco Peco, a former official of the Commission of the European Communities, represented and assisted by Francesco Lanza, Advocate, with an address for service in Luxembourg at the Chambers of Pierre-Paul Schleimer, 78 Grand' Rue,

applicant,

Application for:

(1) the annulment of the decision of the Commission of the European Commun­ ities of 4 June 1969 to the extent to which it applies to the applicant Article 48 of the Staff Regulations of Officials and denies him the benefit of Article 42 of the Staff Regulations of Officials of the ECSC in order to determine the pecuniary rights arising from the termination of his service;

(2) damages;

THE COURT (First Chamber)

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

Advocate-General: K. Roemer

new Directorate-General and was to deal the former Staff Regulations of Officials with problems in the steel industry. of the ECSC. In December 1967 a new Directorate- By a registered letter of 5 June 1969 — General, 'for Dissemination of Informa­ which constitutes the decision which is tion', was established and on 6 January 1968 partially contested — the Commission the applicant was appointed Director- declared that it rejected the complaints General thereof in the new detailed list of which were addressed to it. It added that it posts of the single administration. took note of the applicant's wish to resign On 27 March 1968 shortly before he was and that consequently it had decided to in fact to take up his new position, the grant his request and accept his resignation applicant applied for the vacant post of as from 10 June 1969. The Commission Director-General for Industrial Affairs but stated that it was consequently unable to was not appointed. take account of his request for retirement, On 16 April 1968 he requested that his as the pecuniary rights arising on voluntary service should be terminated within the resignation were governed by Article 12 of meaning of Article (1) 4 of Regulation Annex VII to the Staff Regulations. (EEC, Euratom, ECSC) No 259/68 of the After lodging the application the applicant Council of 29 February 1968 and renewed was appointed Vice-Chairman of the this request on 17 May 1968 with the claim Costruzioni Metallichi Finsider Company, that: 'The post of Director-General for Milan. Dissemination of Information requires This application was lodged on 4 August abilities, professional experience and train­ 1969. The written procedure followed the ing very different from mine'. normal course. On 13 June 1968 the President of the On hearing the report of the Judge- Commission replied that the Commission Rapporteur and the views of the Advocate- considered that it could not dispense with General, the Court decided to open the his services and that consequently it could oral procedure without any preparatory not accede to his request. inquiry. On 26 May 1969 the applicant sent a letter The parties presented oral argument at the to the Commission in which, after setting hearing on 4 March 1970. out his complaints against it and holding it The Advocate-General delivered his opinion responsible for the poor state of his health, on 6 May 1970. he wrote:

JUDGMENT OF 28. 5. 1970 — CASE 36/69

the Staff Regulations of Officials and grant lems concerning all the meetings when Mr Peco the nominal sum of 1 lira for the Mr Peco's administrative position was non-material damage he has suffered; discussed, from July 1967 to 4 June 1969; Order the defendant to pay the costs. The defendant contends that the Court (b) a copy of the letter dated 12 February should: 1969, sent by the Commissioner, Mr Collonna di Parliano, to Mr Mario (a) Dismiss Mr Franco Peco's application, Scelba, President of the European dated 4 August 1969, as unfounded; Parliament.

(b) order the applicant to bear the costs as provided for in Article 70 of the Rules III — Submissions and arguments of Procedure. oft he parties

Witness: Mr F. Hellwig, Vice-President of 1. The wrongful conduct of the Commission the Commission of the EEC. The right to call further witnesses is reserved. The applicant alleges that, on the rational­ ization of the departments at the time of the В — Order the Commission of the European merger of the executives, he was assigned Communities to produce: to the post of Director-General for Dis­ semination of Information, a post for which (a) a true copy of the ordinary and special he found that he lacked the appropriate minutes of the Commission and of the ability, experience and training. Working Party on Administrative Prob- The fact that he was given duties which he

PECO ν COMMISSION

injured. Although Article 7 of the Staff Secondly, in selecting him in December 1967 Regulations requires that the post to which and appointing him in March 1968 as a servant is assigned shall correspond to his Director-General for Dissemination of category and grade, it does not follow that Information, the Commission laboured officials have a particular right to fill a under the misconception that the applicant specific post. Moreover the case-law of the had applied for such a post, which the Court removes any possible doubt in this applicant offers to prove by witnesses and respect (Judgment of 6 May 1969 in by the correspondence exchanged by Mr Huybrechts ν Commission, Case 21/68, Scelba and Mr Colonna di Paliano.

versely affected his legal status. There can post for an official of the same nationality be no question of a 'reduction in status' as its previous holder. Another purely resulting from the abolition of the Direc geographical consideration, namely that the torate-General for Steel and his transfer to applicant was of the same nationality as the post of Director-General for Dissemina the Commissioner for Industrial Affairs, tion of Information. also prevented him from obtaining the post According to the defendant, the applicant's of Director-General for Industrial Affairs.

Fourthly, the letter of 15 June 1968 which ending all work'. There is thus a difference denied him the benefit of the system of between the subjective intention mentioned Article 4 of Regulation No 259/68 and by Article 48 of the Staff Regulations and retained him in his post, did not comply with the objective necessity mentioned by the the requirements with regard to a statement applicant. of reasons imposed by Article 25 of the Staff The applicant had not proffered his volun Regulations of Officials. tary resignation but declared that he was The defendant replies that in all those cases for just cause terminating the service it acted in the interests of the service. relationship binding him to the Commission. The decision to merge the Directorate- The defendant replies that the applicant General for Steel with the Directorate- knew perfectly well that only a voluntary General for Industrial Affairs was prompted resignation by the official could terminate by the need to rationalize the departments. the service relationship and that he had in This is also true with regard to the assign fact given this resignation. ment of the applicant to the Directorate- The wording of the letter of 26 May 1969 General for Dissemination of Information, is a faithful copy, almost word for word, which, moreover, took place with his full of the first paragraph of Article 48 of the consent, as is clear from the terms of his Staff Regulations. When he referred to the letter of 15 March 1969 to President Scelba necessity of leaving the service, the applicant and from the fact that he did not contest the merely referred to a subjective necessity appointment of Mr Toulemon as Director- arising from his state of health. General for Industrial Affairs.

The requests submitted by senior officials who applicant, moreover, in no way sought that had been previously integrated into the new his post be taken from him in the interests detailed list of posts. of the service. He could have done so and The defendant finally observes that the could have contested any decision refusing applicant has made no application for the this, but he merely stated unequivocally his annulment of any measures which he intention to leave the service. alleges are illegal and it concludes that no proof has been submitted either of the 3. The provisions governing the applicant's alleged misuse of powers or of a wrongful pecuniary rights act on the part of the Commission. The applicant maintains that his pecuniary

This can be proved in to distinguish between the unequivocal two ways : intention required by the Staff Regulations First, by analogy: the existence of a (Article 48) and in the letter of 26 May the situation preventing an official from con 'unequivocal declaration of the necessity of tinuing the service relationship is strongly

analogous to the situation provided for by States of the Community, the more so as Article 50 of the Staff Regulations. The the rights in question are not contrary to interests of the service which justify retire­ the aims pursued by the said Community. ment also serve to justify the severance of Furthermore the Staff Regulations do not the service relationship for just cause. give an exhaustive list of the rights of Further, an application of the general officials, since they are acknowledged to principle contained in Articles 5 and 7 of the have certain unwritten rights. Staff Regulations show that the applicant had been de facto reduced in status and this 4. The amount of the material and non- implies the right to obtain compensation material damages for material and non-material damage. With the aim of simplifying the Court's The applicant states that if the service task, the applicant maintains that his rights relationship had not been terminated in the to compensation for material injury would particular circumstances which he has set be satisfied if he were dealt with under out, there would have been nothing to pre­ Article 42 of the Staff Regulations of the vent his continuing his career as an official ECSC together with Articles 50 and 99 of until he reached the age of 65 years, that is the Staff Regulations of Officials. to say for another 18 years. The defendant replies that the applicant Throughout this period he would have been cannot claim to have applied to him rules able to enjoy all the benefits provided for relating to retirement in the interests of the European civil servants to obtain a pension service since such a measure may be taken calculated on a basis of 28 years of service. only by decision of the appointing authority His material damages might be assessed by and not at the instigation of the official. the difference between the salary under the Since the Staff Regulations draw a clear Staff Regulations and that which he distinction between these two measures they presently enjoys in Italy and which he will may not be confused, and the present case continue to enjoy for the remaining 18 years is indubitably concerned with resignation. of his career, to which should be added the Furthermore the applicant may not invoke difference existing between the two pension an alleged 'resignation for just cause' which schemes. The total difference is presently does not exist in Community law and is in the region of Lit. 4 000 000 per annum, provided for only in Article 2129 (sic.) without taking into account the increase in of the Italian Civil Code and moreover only taxation.

Grounds of judgment

1 The application seeks in the first place the partial annulment of the Commission's decision of 4 June 1969 accepting the applicant's resignation, to the extent to which that decision applies to him the pecuniary system relating to voluntary resignation.

2 Secondarily it seeks to have recognized that the applicant is also entitled 'as compensation for material damage suffered' to have his retirement pension deter­ mined on the basis of Articles 42 of the Staff Regulations of the ECSC and 50 and 99 of the Staff Regulations of Officials of the EC and that he should be granted as compensation for non-material damage the sum of 1 Italian lira.

3 The applicant was formerly Director-General for Steel with the ECSC and an official in Grade Al, and on the merger of the executives he was appointed Assistant Director-General with the Directorate-General for Industrial Affairs in the Commission.

4 After he had been appointed Director-General of the Directorate-General for Dissemination of Information on 20 March 1968, an appointment which he accepted, he applied on 27 March 1968, immediately prior to commencing his duties, for the post of Director-General for Industrial Affairs which had in the meantime fallen vacant but to which another official was promoted on 9 April 1968.

5 Since he considered that he did not have the qualifications for the post of Director- General to which he had been appointed he sought on 16 April to have his service terminated as provided for in Article 4(1) of Regulation No 259/68/EEC and then requested that he be retired in the interests of the service within the meaning of Article 50 of the Staff Regulations.

10 Both the application for annulment and that for damages are based on the alle­ gation of the illegal and wrongful conduct of the Commission.

11 This allegation must therefore be considered first.

12 In the first place the applicant claims that his nomination as Director-General for Dissemination of Information constitutes a de facto reduction in status, because this Directorate-General only performs 'essentially executive' duties so that by assigning him to that post the Commission infringed the rule of correspondence between grades and posts.

13 He further maintains that he was appointed to this post although he did not possess the necessary qualifications for it.

14 The post of Director-General for Dissemination of Information carries the grade of Al which corresponds to that of the applicant.

15 Although the difference in the powers of the various Directorates-General might justify a personal preference on the part of the applicant for another post, it does not however infringe the rule of correspondence between grades and posts on which officials are entitled to rely.

21 In this connexion it must be observed in the first place that the applicant did not contest at the time the Commission's decisions, refusing him, before his resignation, the benefit of those arrangements.

22 Furthermore if an official finds that the post to which he has accepted appointment does not suit the abilities which he considers himself to have, this does not entitle him to the benefit of one of those two special systems.

23 Since both the arrangements relating to termination of service and relating to compulsory retirement can only be granted in the interests of the service, the defendant, in the circumstances of the case, did not exceed the limits of its dis­ cretionary power in considering that the interests of the service did not justify granting the measures requested.

24 Furthermore the applicant has adduced no evidence in support of his statement that the defendant was guilty of a misuse of powers in his case.

25 Finally the circumstance that the reason for his resignation was the fact that he had been appointed — with his consent — to a post for which he considered himself poorly qualified, is not of such a nature as to call in question the voluntary character of his resignation.

26 The Commission was consequently entitled to regard the letter of 26 May 1969 as constituting a voluntary resignation and to apply to the applicant the appropriate pecuniary arrangements.

THE COURT (First Chamber)

hereby :

(1) Dismisses the application;

(2) Orders the parties to bear their own costs.

Delivered in open court in Luxembourg on 28 May 1970.

Monaco Donner Mertens de Wilmars