C-79/71

3. Officials — Wrong information supplied by the administration — No wrongful act or omission

4. Officials — Wrong information from the administration — Belated correction — Wrong­ ful act or omission

1. The administration can only suspend 3. The adoption of an inaccurate inter­ the validity of a measure which it has pretation of a provision of the law adopted by means of a statement which governing officials does not constitute shows clearly and unequivocally its in itself a wrongful act. Even where the intention to do so. authorities request those concerned to obtain information from the competent 2. As an application for compensation departments, they are not necessarily constitutes an independent legal remedy, bound to guarantee the correctness of which is subject to certain conditions the information supplied. adapted to its purpose, it does not seek to have a specific decision set aside but 4. Delay on the part of the appointing to make good the damage caused by an authority in correcting wrong informa­ institution in the exercise of its func­ tion until after the time when those tions. For such an application to be concerned have to make a decision in well-founded it must be established that the matter constitutes a wrongful act or the defendant is liable for a wrongful omission which renders the Community act or omission which caused the liable for the consequences of the wrong application a still subsisting injury. information.

In Case 79/71

Alo Heinemann, qualified architect, 29 avenue Octave-Michot, 1640 Rhode- Saint-Genèse, Brussels, represented by H. J. Rüber, Advocate of the Cologne Bar,

THE COURT (First Chamber)

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

Advocate-General: K. Roemer

Registrar: A. Van Houtte

gives the following

JUDGMENT

On 13 April 1968 the applicant submitted By a letter dated the same day the Director- an application under Article 4 of Regula­ General for Personnel and Administration tion No 259/68. On 21 June 1968 the also replied to the applicant's letter to the Director-General for Personnel and Ad­ President of the Commission of 6 February ministration informed him of the Com­ 1969 by informing him for the relevant mission's decision to terminate his em­ departments of the Commission would ployment as from 1 October 1968, which closely study the problems which he was was adopted at the meeting of 20 June raising. 1968, and informed him that he could On 19 November 1969 the applicant wrote obtain additional information about his to the President of the Commission to financial rights from certain named officials. inform him of his concern that no decision As he did not feel it necessary, the applicant had been taken since his letter of 6 February sought no further information regarding 1969 and to request him once again to his financial rights. take the measures necessary to obtain a By a telegram dated 20 December 1968 the favourable decision. applicant was informed that his right to a A letter dated 18 December 1969 from the

JUDGMENT OF 13.7.1972 — CASE 79/71

The defendant maintains that this head is II — Conclusions of the parties inadmissible on two grounds: (a) First, it is inconsistent with the force of res judicata The applicant claims that the Court should: of the Court's judgments in Joined Cases 19, 20, 25 and 30/69 and in Case 23/69. As 1. annul the notice of settlement issued by the Court found that under the fourth

HEINEMANN v COMMISSION

based on the force of res judicata being The applicant rejects the defendant's at­ put forward to demonstrate the inadmis­ tempt to draw an artificial distinction sibility of the conclusion. between the two letters of 12 March 1969. The applicant states that he accepts the Both were signed by Mr Lamverto case-law of the Court which lays down Lambert, carried the same heading, were that the parties cannot conclude agree­ written on the same day and bore con­ ments extending the timelimits for bringing secutive reference numbers, that is, 2290 appeals set out in the Staff Regulations of and 2291. A careful examination shows that Officials, and maintains that it is reasonable they supplement each other and lead to the to conclude from the two letters of 12 result that if the Court of Justice considers March 1969 from the Director-General for in Joined Cases 19, 20, 25 and 30/69 and Personnel and Administration that the Case 23/69 that the notice of settlement administration had wished to suspend the constitutes an act adversely affecting an the validity of the notice of settlement official, Articles 90 and 91 of the Staff until the Court of Justice had given judg­ Regulations are applicable and that until ment in the above-mentioned cases. Such the judgments are given the effect of the an interpretation of the two letters of notice must be regarded as suspended. 12 March 1969 was confirmed by the officials of the Commission involved. The 2. The first head of the applicant's alterna­ tive conclusions only reasonable conclusion to be drawn from the Commission's conduct is that the The defendant observes that the applicant notice of settlement would remain a dead is attempting to obtain, by means of a

claim for damages, the same result as in the time-limit for bringing an appeal to the first head of his conclusions, which is pass. Moreover if, as the defendant main inadmissible on the ground of failure to tains, the judgments of the Court in observe the relevant time-limits. The de Joined Cases 19, 20, 25 and 30/69 and in fendant refers to the judgment of 15 Case 23/69 show that an action for the December 1966 in Case 59/65, Heinrich annulment of the notice of 13 January 1969 Schreckenberg v Commission of the EAEC must be dismissed by the Court as un ([1966) ECR 550 et seq.) and considers founded, the action for damages in the that such a method must be regarded as only remedy open to the applicant.

The ap plicant's argument that actions for damages 3. The second head of the applicant's are not subject to the time-limits laid down alternative conclusions in Article 91 of the Staff Regulations is not relevant to the question. The defendant considers that this head is The defendant again refers to the concept also inadmissible for the following reasons: underlying Article 839(3) of the German The applicant refers to an absence of Civil Code. If it were transposed into the consent in relation to his request of 13 context of the law governing the European April 1968 for voluntary termination of public service it would have to be con

to fail. A distinction must be drawn be ments of the Commission necessarily tween the principle and the alternative presupposes the annulment of the Com heads of the conclusions, since in the mission's decision of 21 June 1968 which former the applicant seeks a new state accepted the applicant's request for volun ment of account drawn up on the basis of tary termination of his service and brought a binding promise, whereas the latter arise his service to an end. Even if it is accepted

If it is considered that it was only possible The defendant's attempt to introduce the to appeal against the decision of 21 June basic concept of Article 839(3) of the 1968 from the moment when the applicant German Civil Code cannot be successful became aware of the grounds justifying the in the present case. This concept is in annulment of his request for voluntary applicable in cases in which it cannot be termination of his service, even the most claimed that the applicants have allowed favourable interpretation leads to the

inevitable conclusion that he has not Since, however, according to the case- observed the prescribed time-limit. law of the Court these binding promises The applicant rejects the Commission's are also unlawful, it is important to arguments and emphasizes that the con know whether the fact that they were sequence of the revocation of a statement unlawful prevented them being bind of intention made in error is that the ing. The applicant maintains that after decision to dismiss the applicant is void, weighting up the legitimate expecta with the result that he is still an official tions of the persons concerned and the of the Commission of the European Com

2. The first head of the applicant's alterna (a) the Court's interpretation in the above- tive conclusions mentioned cases of the fourth sub paragraph of Article 5(7) of Regula The applicant does not consider it necessary tion No 259/68 infringes the principle to deal in great detail with the question 'interpretatio contra stipulatorem’: such whether the Commission was guilty of a an obscurely-drafted provision cannot wrongful act or omission by giving in be put forward as the basis of the correct information and by rectifying it notice of settlement. only seven months after its inaccuracy

promise. A causal link exists between disputed since between the ages of 55 and the information given, the request for 60 years the applicant is deprived of the voluntary termination of service and pension which is the reason why he applied acceptance of the request; as regards for the early termination of his service. the applicant, the Commission under It is for this reason that he asks to be took to issue a subsequent statement treated as if the fourth subparagraph of of financial rights corresponding to the Article 5(7) of Regulation No 259/68 were information supplied. The promises applicable to him, that is, that he be were made by the competent authority, awarded an allowance. expressly designated by the appointing As regards the causal link, the applicant

JUDGMENT OF 13.7.1972 — CASE 79/71

mission. President of the Commission which When he requested the early termina again shows the importance which the tion of his service the applicant had applicant attached to a right to a full weighed in the balance the following pension as from the age of 55 years: two factors: first, the fact that Regula 'as I have six small dependent children tion No 259/68 offered him the pos the possibility of being entitled to the sibility of working as an independent retirement pension as from the age of architect, so that he would have the 55 was an important factor in my opportunity of engaging in creative decision to seek the termination of activity (no such opportunity would be my service under Regulation No available to him in the defendant's 259/68 of the Council'. service) and, secondly, the fact that he had six dependent children when made (e) His discussion with Mr Dieter Rogalla, it important for him to limit as far as Head of Division, at the end of the possible the risks he would take in spring of 1970, in which he asked when

The facts on which the applicant sufficient regular income at that time. relies to support his conclusions are also His decision would have been different the same as relied on in the above- if he had understood that he would mentioned cases. The defendant maintains only receive a full pension as from the that the applicant must show a causal age of 60 years. link to exist between the wrongful act or omission on the part of the Commission (b) His letter to the President of the Com and the damage suffered.

rectification of the information given have submitted his application. As he was by the Commission, clearly showed her misled over essential factors by a wrongful intention to go back on her request for act or omission on the part of the Com­ voluntary termination of service. mission he was entitled to seek the annul­ ment of his declaration of intention. He (b) Unlike Mrs Fiehn, Mr Heinemann, refers to German and French administra­ who was eight years younger, ter­ tive law which accept the concept of the minated his service with the intention action for annulment on grounds of of taking up other activities. The mistake, that is, where consent is lacking. applicant's statements show that his The defendant considers that such an wish to work as an independent action is only accepted in German ad­ architect was the determining factor in ministrative law. In French law actions his decision to seek the early termina­ for the annulment of applications to tion of his service. resign are limited to cases in which, for 3. The second head of the applicant's reasons of mental deficiency or coercion, alternative conclusions the decision has not been taken freely. To support this argument the defendant The applicant observes that the subject of refers to French juridical writings. The this head of the conclusions is a claim for Commission concludes that it is not pos­ damages in the form of restitution in kind, sible to accept a right to bring an action based upon an alternative application for for annulment on the ground of absence of annulment on the grounds of absence of consent into the law governing the Euro­ consent. He bases this conclusion on the pean public service. following arguments: he sought early re­ tirement from his duties on the basis of the 4. The claim for costs information provided by the defendant. As became apparent later, this information The applicant maintains that as the Com­ was incorrect. The decisive factor in his mission is responsible for the failure to decision was thus removed; if, when he apply to the present case the judgments of took his decision, the applicant had been the Court in Joined Cases 19, 20, 25 and aware of the correct interpretation of the 30/69 and in Case 23/69 it must bear the fourth subparagraph of Article 5(7) of costs of the action even if the application Regulation No 259/68 he would never is unsuccessful.

3 The notice of settlement of 13 January 1969 is a measure capable of adversely affecting the applicant and may therefore be contested under the conditions laid down in Articles 90 and 91 of the Staff Regulations. The applicant only filed a complaint within the meaning of Article 90 of the Staff Regulations on 7 May 1971, that is, almost two and a half years after notification of the notice of 13 January 1969.

4 The applicant maintains that by the two letters dated 12 March 1969 the defendant intended to suspend the validity of the notice in question until the Court gave judgment in the above-mentioned cases. Therefore the time-limit laid down in Article 91 of the Staff Regulations only began to run, according to the applicant, from the moment the applicant became aware of these judgments, that is, from the end of February 1971.

5 The applicant's argument cannot be accepted. The administration can only sus­ pend the validity of a measure which it has adopted by means of a statement which clearly and unequivocally shows its intention to do so. No such statement was made in the present case. Therefore, as the application for the annulment of the notice of 13 January 1969 was not lodged within the time-limits laid down in Article 91 of the Staff Regulations it is inadmissible.

The claim for damages

On admissibility

6 The defendant maintains that the application for damages is inadmissible on the ground that the applicant is attempting to obtain by this means the same result as that sought by the inadmissible application for annulment.

10 It is not contested that the appropriate departments supplied the applicant with incorrect information concerning the rights which he would be able to assert in the event of termination of his 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 relevant departments in order to obtain information on the rights which they would have should Article 4 of Regulation No 259/68 be applied. It is also not contested that the departments concerned discovered early in April 1968 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. 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.

11 Apart from the exceptional instance, the adoption of an incorrect interpretation does not in itself constitute 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 therefore make them liable for any injury which may be occasioned by incorrect information.

12 However, while it may be possible to doubt the existence of a wrongful act or omission concerning the supply of incorrect information, the same cannot be said of the departments' delay in rectifying the information. Although such recti­ fication was possible as early as April 1968 it was deferred without any justification until the end of 1968. An express correction made shortly after 16 April, that is to say, before the time when those concerned had to make their decision, would certainly have enabled the defendant to avoid all liability for the consequences of the wrong information. The failure to issue such a correction is, on the other hand, a matter of such a nature as to render the Communities liable.

14 It emerges from the applicant's letter of 6 February 1969 to the President of the Commission and, in particular, from the evidence of Mr Sorge, the applicant's immediate superior at the time when he decided to seek premature retirement, that the prospect of a full pension tipped the scales when he took his decision. The fact that the applicant did not expressly seek reinstatement in his letter of 6 February 1969 cannot upset this conclusion. As the causal link between the Commission's wrongful act or omission and the damage suffered by the applicant has been established, his claim for damages must be regarded as well-founded. In these circumstances, the Commission must be ordered to pay to the applicant as from the time when he attains the age of 55 years until he attains the age of 60 years a monthly allowance equal to the pension payments to which he would have been entitled if the fourth subparagraph of Article 5(7) of Regulation No 259/68 had been applicable to him.

15 As the claim for damages succeeds it is unnecessary to consider the application for reinstatement.

Costs

16 The applicant has failed in a part of his application. However, it is clear from the foregoing that the appeal was brought as the result of a wrongful act or omission on the part of the defendant. This being so, in accordance with Article 69 of the Rules of Procedure, the defendant must be ordered to pay the costs of the action.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the opinion of the Advocate-General; Having regard to the Protocol on the Statute of the Court of Justice of the Euro­ pean Economic Community; Having regard to the Staff Regulations of Officials, especially Article 91; Having regard to Regulation No 259/68 of the Council, especially Article 5; Having regard to Rules of Procedure of the Court of Justice of the European Communities;

Mertens de Wilmars Donner Monaco

Given in open court in Luxembourg on 13 July 1972.

A. Van Houtte J. Mertens de Wilmars

Registrar President of the First Chamber

OPINION OF MR ADVOCATE-GENERAL ROEMER DELIVERED ON 29 JUNE 1972 1

Mr President, requests for the premature termination of their service on especially favourable terms. Members of the Court, Before this regulation was implemented the Like other proceedings brought before the President of the Commission had requested Court in 1969, the case in which I have to the officials concerned on 5 March 1968 to give my opinion today concerns the ap­ seek information about the financial con­ plication of Regulation No 259/68 of the sequences of termination of service from Council of 29 February 1968 (OJ, English certain clearly designated officials. Special Edition 1968(I), p. 30). As you This opportunity was used by the applicant know, the special temporary provisions in the present case, who entered the service contained in Chapter II of this regulation of the Commission on 1 September 1959 were intended to enable the Commission to and was finally classified in Grade 4/6. In rationalize its departments and reduce the answer to his request for information he number of posts. To this end officials of received in April 1968 a document stating the Commission were entitled to submit the periods during which the temporary