C-19/70

As a corollary to the discretion conferred under Article 50 since these could he in on the institutions by Article 29 (2) of the objective requirements of the service as well as in the assessment of the the Staff Regulations of Officials with regard to appointments to Grades A 1 officials' specific qualities in relation to and A 2, the appointing authority en­ such requirement. joys wide discretionary powers in so far The exercise of discretionary powers as retirement from service and dismissal which are so widely defined nevertheless of officials belonging to these grades are requires that the official concerning concerned. whom such a measure is contemplated should first have an opportunity of stat­ The Staff Regulations do not limit the ing his case on the factors which have reasons which may justify a retirement determined his retirement.

In Case No 19/70

Canzio Almini, a former official of the Commission of the European Communities, residing in Luxembourg, represented by Marcel Slusny and Henri Rolin, Advocates at the Cour d'appel, Brussels, with an address for service in Luxembourg at his private address, 48 boulevard Grande- Duchesse-Charlotte,

applicant,

v

Commission of the European Communities, represented by its Legal Adviser, Louis de la Fontaine, acting as Agent, with an address for service at the Chambers of its Legal Adviser, Émile Reuter, 4 boulevard Royal, defendant,

Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts ate-General for Personnel and Adminis­ tration of the Commission on 28 March Mr Canzio Almini entered the service of 1968. the High Authority of the European On 16 January 1969, the Assembly, the Coal and Steel Community on 14 June Council, the Commission, the Court of 1954 and there successively performed Justice and the Social and Economic the duties of Senior Administrative As­ Committees took a decision, implement­ sistant in the Marketing Division, Head ing the decision of the representatives of Clerk in the office dealing with the as­ Governments of the Member States of 8 sessment of the levy in the Production April 1965 on the provisional setting up Division, Assistant Private Secretary to of certain institutions and of certain ser­ a Member of the High Authority, Assis­ vices of the Community, to set up the tant Private Secretary and afterwards Office for Official Publications of the Principal Private Secretary to the Presi­ European Communities (OJ 1969, L 13- dent, Technical Adviser to the President 19). and finally Director of Personnel in the On 23 July 1969, the Commission, on Directorate-General for Administration the advice of the Management Commit­ and Finance. tee of the Office for Official Publications Within the framework of administrative decided as from 15 September 1969 and restructuring and rationalizing of ser­ until 1 January 1971 provisionally to vices upon the merger of the executives, entrust the management of the Office to Mr Almini was appointed to the post of Mr Reichling, Assistant Director-General Director of Publications in the Director­ for Personnel and Administration of the

tion, the Commission decided to post On the report of the Judge-Rapporteur Mr Almini with effect from 15 Septem­ and after hearing the views of the Ad­ ber 1969 as Principal Adviser to Mr vocate-General, the Court (Second Reichling to assist him in his duties as Chamber) decided to open the oral pro­ Assistant Director-General for Personnel cedure without any preparatory inquiry. and Administration. The oral submissions of the parties were Mr Almini was not notified of this de­ heard on 31 March 1971. The Advocate-General delivered his cision in writing but was verbally in­ formed thereof by a Member of the opinion on 9 June 1971. Commission and by the Assistant Direc­ tor-General for Personnel and Adminis­ III — Conclusions of the tration. parties On 22 October 1969 the Council, acting under Article 38 of the Staff Regulations, The applicant after having amended his seconded Mr Leclerc in the interests of earlier submissions, claims that on the the service to the Commission with effect substance of the case the Court should: from 15 September. (a) first, annul the Commission's decis­ On 14 January 1970 the Commission de­ ion of 11 February 1970 to retire cided to retire Mr Almini in the interests him. of the service under Article 50 of the Staff (b) so far as may be necessary, annul the Regulations and the supplementary pro­ Commission's decision of 23 July visions which might be applicable under 1969 transferring him from the Dir­ the former ECSC Staff Regulations. ectorate for Publications to the post Mr Almini was informed of this inten­ of Principal Adviser in the Director­ tion by a verbal communication from ate-General for Personnel and Ad­ the Director-General for Personnel and ministration in Luxembourg and pro­ Administration and by a letter of 20 visionally entrusting the management January 1970 from a Member of the of the Office for Publications to Mr Commission. Reichling, assisted by Mr Leclerc, an Mr Almini made his observations by official seconded from the Council. letter of 24 January 1970. (c) alternatively, declare the Commission On the 11 February 1970 the Commis­ responsible for the damage caused to sion decided to retire Mr Almini with the applicant by its wrongful acts or effect from 1 March 1970 in the interests omissions and accordingly order it to of the service and stated that it was not extend the compensation and pen­ possible to put him in another post cor­ sion allowed to the applicant under responding to «his category and grade. Article 42 of the former ECSC Staff Mr Almini was granted the right to Regulations so as to ensure him up compensation and pension determined in to the age of 65 an occupational in­ accordance with Article 42 of the former come equal to that which he would Staff Regulations of the ECSC of 28 have obtained had he retained his January 1956. post with the Communities, together On 18 February 1970 Mr Almini was with social security cover until his informed of this decision. death. Mr Almini left the Commission's service (d) order the Commission to pay the on 28 February 1970. costs of the proceedings.

The defendant contends that the Court tions to Mr Reichling with Mr Leclerc should: as assistant was at the time of the ap (a) declare the application inadmissible plicant's reply. This request is inadmis in so far as it asks for the annulment sible for two reasons: it was not set out of the Commission's decision of 23 in the originating application and was July 1969 by which the management not made within the period of three of the Office for Publications was months beginning with the date on which entrusted to Mr Reichling, with Mr the applicant received notice of the de Leclerc as his assistant. cision which he is contesting, the latter (b) in any event, dismiss the application having been published in the Staff Cour as wholly unfounded. ier of 28 August 1969; more specifically, (c) order the applicant to pay the costs. as regards the request for annulment of Mr Reichling's appointment, this is also IV — Submissions and argu inadmissible by reason of the fact that ments of the parties the applicant does not invoke any ground for annulment in support thereof. The submissions and arguments of the The applicant, after having taken note parties may be summarized as follows: of the fact that the Commission does not raise any objection to the admissibility A — Admissibility

taken. By reason of these special cir be held against him. In fact, in itself, the cumstances and notwithstanding the ab decision in question did not cause any sence of a written notification it must be serious harm; not until February 1970 admitted that the period for bringing an when he was refused appointment to any application started to run at the moment of the new directorates and retired did when the applicant had an effective and the decision of 23 July 1969 begin to complete knowledge of the decision and affect him adversely. that it therefore expired on 15 Decem

ALMINI v COMMISSION

Office. viser, to which the unanimity rule does Besides, at the time of the reorganiza not apply. tion in January 1970 of the Directorate- (d) The Commission did not use the General for Personnel and Administra necessary diligence in order to safeguard tion, the Commission, which in this field the applicant's legitimate career pros is fully competent to make its own de pects. Since July 1969 the Commission cisions, could have re-established the ap had at least five opportunities to assign plicant's position.

Considerations of 17/68 (Reinarz, [1969] ECR 61). The geographical allocation were in fact de Court has recognized the importance of cisive: since two of the three new direc an official's entitlement to career pros torates went to officials of Italian nat pects within the framework of Article ionality the applicant could not be ap 4 of Regulation No 259/68, which grants pointed to the third. the Commission an exceptionally wide The defendant in essence replies as fol discretion by requiring the administra

JUDGMENT OF 30. 6. 1971 — CASE 19/70

whatever to do with filling the post of ion to retire the applicant did not result Director of the Office for Publications from a reduction in the number of posts. and therefore all the expositions, which Moreover, to make the application of in any event are wholly subjective, as Article 50 of the Staff Regulations sub­ regards his alleged ability to fill this ject to the condition that the post which post are irrelevant. has become available shall not be filled

(b) Mr Leclerc is at present seconded to by way of promotion would be equival­ the Commission but remains Principal ent to adding to this provision a condi­ Adviser at the Council; this provisional tion of application not laid down by the assignment was not made for political Staff Regulations. reasons. Besides, the reasons which an There is a fundamental difference be­

ALMINI v COMMISSION

transferring him to a post of Principal and those he would have obtained and Adviser in the Directorate-General for would obtain if he had continued in Personnel and Administration must be normal employment up to the age of annulled since, contrary to Article 25 of sixty-five. the Staff Regulations, no reason for this The applicant states that he renounces decision was communicated to him. any claim to damages for non-material The defendant replies that since the case damage. is concerned with a decision to transfer The defendant points out that the appli­ an official, based on the interests of the cation for damages is only made as an service, it did not have to state the alternative in the event of this applica­ reasons on which it was based. tion for annulment of the decision to retire him being rejected. 3. The claim for damages In that case it is difficult to see how The applicant adheres to the view that this decision could constitute a wrongful the Commission was guilty of a wrong­ act or omission. ful act or omission and bears the re­ In any event no wrongful act or omis­ sponsibility for having by its equivoca­ sion can be established against the Com­ tion and delays placed the applicant in mission and consequently the alleged an impossible position in so far as his material damage cannot be imputed to it. career is concerned and for having caused Moreover the damage which an official him serious harm at an age when his affected by a measure of retirement in reclassification has become practically the interest of the service is deemed to impossible. suffer, is compensated by the benefit The material damage can be evaluated under Article 42 of the former ECSC at the difference between the financial Staff Regulations. The damage referred benefits which the applicant obtains and to by the applicant is not certain and will obtain by the application of Article cannot in any event under current con­ 42 of the former ECSC Staff Regulations ditions give rise to compensation.

5 In deliberations held on 14 January 1970 the Commission decided to retire him in the interests of the service under Article 50 of the Staff Regulations.

6 By letter of 20 January 1970, confirming a previous verbal notification, the Commission informed the applicant of this intention and asked him to make his views known before 26 January 1970.

7 After the applicant had made his comments by letter of 24 January 1970, the Commission on 11 February 1970 took the decision to retire the applicant in the interests of the service with effect from 1 March 1970, granting him the allowance and the pension laid down for such a case by the Staff Regulations.

8 Under the provisions of Article 50 of the Staff Regulations of Officials 'an official holding a post in Grades A 1 or A 2 may be retired in the interests of the service by decision of the appointing authority.

9 As a corollary to the discretion conferred on the institutions by Article 29 (2) as regards appointments at this level, the appointing authority enjoys wide discretionary powers in so far as retirement from the service and dismissal of officials belonging to these grades are concerned.

10 The Staff Regulations do not limit the reasons which may justify a retirement under Article 50, since these could lie in the objective requirements of the service as well as in the assessment of the officials' specific qualities in relation to such requirements.

15 Moreover, in contrast to the letter of 20 January 1970, the purport of which was to suggest objective service reasons, it can be seen from the minutes of the Commission's meeting of 11 February 1970 that the decision to retire him was finally taken by reason of an assessment of the applicant's personal ability in relation to the requirements of certain possible postings.

16 It therefore appears that in giving him by its letter of 20 January 1970, the opportunity of making his views known, the Commission did not give him an opportunity of commenting on the factors which in the final analysis seem decisive.

17 Taking into account all the circumstances, in particular the applicant's record, his seniority and his age at the time of the contested decision, the procedure adopted by the Commission did not have regard to the elementary safeguards which must be given to an official in case of abolition of his post under Article 50 of the Staff Regulations.

18 The Commission's decision of 11 February 1970 to retire the applicant must therefore be annulled.

19 It is not therefore necessary to examine the applicant's other arguments or to rule on the alternative conclusions.

Costs

1. Annuls the decision of 11 February 1970 by which the Commission of the European Communities retired the applicant;

2. Orders the Commission to pay the cost of the proceedings.

Trabucchi Pescatore Kutscher

Delivered in open court in Luxembourg on 30 June 1971.

A. Trabucchi A. Van Houtte

President of the Second Chamber Registrar

1 — Translated from the French.