C-42/69
ECLI:EU:C:1970:23
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JUDGMENT OF THE COURT (FIRST CHAMBER) 14 APRIL 19701
Emilio Cafiero ν Commission of the European Communities
Case 42/69
Summary
Measures adopted by an institution — Entry into force — Date
Where an administrative measure states that it is to take effect as from a specific date, this means that it begins to take effect on that actual day.
In Case 42/69
Emilio Cafiero, an official of the Commission of the European Communities, residing at 147, Via A. Emo, Rome, assisted by Messrs Robert Krieps (Luxembourg Bar), Roberto Ascarelli and Virgilio Gaito (Rome Bar), with an address for service in Luxembourg at the Chambers of Mr Robert Krieps, 12, avenue Marie Thérèse,
applicant,
ν
Commission of the European Communities, represented by its Legal Adviser, Mr Luigi Boselli, acting as Agent, with an address for service in Luxembourg at the office of Mr Émile Reuter, Legal Adviser to the Commission, 4, boulevard Royal,
defendant,
Application for the annulment of a measure adopted by the Commission on 18 June 1969 and notified to Mr Cafiero by letter No 001352 of 25 June 1969 from the Directorate General for Personnel and Administration concerning payment of the severance grant to which he is entitled under Article 12 of Annex VIII to the Staff Regulations and Article 6 of Regulation No 259/68 of the Council,
1 — Language of the Case: Italian.
JUDGMENT OF 14. 4. 1970 — CASE 42/69
THE COURT (First Chamber)
composed of : R. Monaco, President of Chamber, A. M. Donner (Rapporteur) 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 On 20 September 1969 the applicant brought an action before the Court of Justice by The facts of the case and the course of the application lodged at the Court Registry procedure may be summarized as follows : on 23 September 1969. The applicant entered the service of the Since no reply was received within the EEC on 1 July 1959 and was appointed head prescribed time-limit, the Court, having of division in Grade A3, second step, with heard the report of the Judge-Rapporteur effect from 1 October 1962. and the opinion of the Advocate-General, On 14 March 1968 the applicant applied to decided to open the oral procedure without take advantage of a measure terminating any preparatory inquiry. his service pursuant to Article 4 of Regu The parties presented oral argument at the lation No 259/68 of the Council of 29 hearing on 17 February 1970. February 1968. Such a measure was The Advocate-General delivered his opinion adopted by the Commission on 21 May 1968 on 11 March 1970. and communicated to the applicant by letter of 22 May 1968, in which, moreover, it was stated that the applicant would be employed II — Conclusions of the parties as adviser to the Directorate General for Industrial Affairs until such time as the The applicant claims that the Court should: termination of his service took effect. — declare the disputed measure to be un By a further letter of 21 June 1968 the lawful, with all the legal consequences Commission informed the applicant that that this entails. the measure terminating his service would The defendant contends that the Court take effect on 1 October 1968. should : Finally, by letter of 25 June 1969 the — reject the action as unfounded; Directorate General for Personnel and — order the applicant to bear the costs of Administration notified the applicant of the proceedings. details regarding the final payment of the severance grant to which he was entitled pursuant to Article 12 of Annex VIII to the III — Submissions and arguments Staff Regulations and Article 6 of Regula of the parties tion No 259/68. This last measure is the subject-matter of the The submissions and arguments of the present case. parties may be summarized as follows :
CAFIERO ν COMMISSION
Admissibility of the action statement that the theory of the dies ad quem is universally accepted is open to doubt, The defendant does not challenge the and is moreover irrelevant in the context, admissibility of the action. this being a matter not of a time-limit but of the initial date of the entry into force of a The substance of the case decision. The applicant claims that the measure It is clear that the Commission, by stipu adopted by the Commission, which was lating that the applicant's service was to be communicated to him by letter of 25 June terminated with effect from 1 October 1968, 1968 and which purpoted to arrange pay intended to provide that on that date the ment of his severance grant, is unlawful in applicant would no longer be in the service that the calculations are based on a salary of the Communities.
The defendant ob attaching to Grade A 3, fourth step. serves moreover that the applicant has In support of this argument he makes the never claimed remuneration in respect of 1 following points: October 1968. — that, in his case, advancement to the fifth Furthermore, the applicant's statement step in his grade fell due on 1 October concerning travel expenses cannot support 1968; his argument, in view of the fact that the — that the fact that the Commission nine-month period mentioned in Article decided that he should terminate his 8 (3) of Annex VII to the Staff Regulations service with effect from 1 October 1968 expired on 30 September at 24.00 hours, so should be understood to mean that the that the Commission — assuming that such relationship of master and servant could was its intention — had no need, in order not be deemed to have been dissolved to ensure that departing officials would until the end of the first day of October; receive full payment of their travel expenses, — that in fact it is a universally accepted to fix the termination of their service at one legal concept that the dies ad quem must minute past midnight on 2 October. be calculated in toto ; It therefore follows that the applicant 's — that, moreover, this corresponds to the severance grant was rightly calculated on Commission's desire to offer officials the the basis of the salary attaching to Grade highest possible income after termination A 3, fourth step. of their service, which is also expressed, During the oral procedure, the applicant in a different respect, in the choice of the stated that in fact he performed his duties date of 1 October 1968, this being the first up to and including 1 October 1968, in day of 1968 on which, according to particular by signing several documents. Article 8 (3) of Annex VII to the Staff He further stated that in consequence of Regulations, an official whose service has this he was claiming, in addition to his been terminated is entitled to full initial conclusions, the remuneration re payment of travel expenses for return to lating to that day. his place of origin; The defendant alleged that since the appli — that, furthermore, Article 5 (1) of cant was no longer in the service he was no Regulation No 259/68 does not speak longer in a position to perform his duties of the last remuneration 'received', nor on 1 October and that, in any case, he
of the 'final' basic salary. received no instructions from his superiors According to the defendant, the applicant's for that day.
Grounds of judgment
1 By application of 20 September 1969 the applicant has brought an action against the measure adopted by the Commission on 18 June 1969 for the purpose of the
JUDGMENT OF 14. 4. 1970 — CASE 42/69
final settlement of the severance grant to which he was entitled pursuant to Article 12 of Annex VIII to the Staff Regulations and Article 6 of Regulation No 259/68 of the Council.
2 The action is essentially concerned with obtaining a ruling that the applicant's pecuniary rights, following the decision taken with regard to him concerning the termination of his service with effect from 1 October 1968, must be ascertained on the basis of the salary attaching to Grade A 3, fifth step, and not on the basis of the salary attaching to Grade A 3, fifth step, and not on the basis of the salary attaching to Grade A 3, fourth step, on the ground that the applicant was still in the service of the Communities during the day of 1 October 1968.
3 The applicant has not challenged the legality of the Commission's decision ter minating his service.
4 Moreover, it is not disputed that, on the one hand, the applicant had attained seniority corresponding to the fourth step in Grade A 3 as from 1 October 1966 and that, on the other hand, the Commission's decision terminating his service took effect as from 1 October 1968.
5 In pursuance of Article 44 of the Staff Regulations the applicant would have advanced to the fifth step in Grade A 3 on 1 October 1968 had he still been in the service of the Communities.
6 This case is therefore solely concerned with the question at what time the applicant's service is deemed to have been terminated.
7 Where an administrative measure, such as that which is the subject-matter of this case, states that it is to take effect as from a specific date, this means that it begins to take effect on that actual day.
8 Accordingly, as from 1 October 1968 the applicant was no longer in the service of the Communities.
9 Pursuant to Article 12 of Annex VIII to the Staff Regulations and Article 6 of Regulation No 259/68 severance grants are to be calculated on the basis of the last basic salary of the official whose service has been terminated.
10 It is clear from the foregoing that the applicant's last basic salary was that relating to the month of September 1968, that is to say a salary attaching to Grade A 3, fourth step.
11 The applicant's pecuniary rights were therefore rightly calculated on the basis of this salary.
CAFIERO ν COMMISSION
12 In these circumstances, the application must be rejected as unfounded.
Costs
13 The applicant has failed in his action.
According to Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.
However, pursuant to Article 70 of the said Rules, in actions brought by officials 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 ; Having regard to the Treaty establishing the European Economic Community; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Staff Regulations of Officials of the European Communities ; 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 the parties to bear their own costs.
Monaco Donner Mertens de Wilmars
Delivered in open court in Luxembourg on 14 April 1970.
A. Van Houtte R. Monaco
Registrar President of the First Chamber