C-177/73

2. Officials — Acts adversely affecting — Meaning (Staff Regulations, Article 25, Article 90 and Article 91) 3. Officials — Transitional Provisions — Transition from the former ECSC General Regulations to the ECSC Staff Regulations — Resettlement allowance — Calcu­ lation

(Staff Regulations, ECSC, Article 99 (3))

1. On application to terminate his transition to a less generous system service an official has an interest in does not normally seek to give requesting a definite decision as to the employees greater rights than they amount of the resettlement allowance. would have had under the system which is revoked. Article 99 (3) 2. Only those acts capable of directly cannot therefore be interpreted as affecting a precise legal situation can allowing a combination of the more be regarded as adversely affecting an favourable method of calculation of official. one system with the more favourable 3. A transitional provision issued on the salary scale of another.

In Joined Cases 177/73 and 5/74

ANDREAS REINARZ, a former official of the Commission of the European Com­ munities, assisted and represented by A. J. Hammerstein, advocate at the Arrondissementsrechtbank, Maastricht, with an address for service in Luxem­ bourg at the Chamber of F. Jansen, huissier, 21 rue Aldringen,

applicant and defendant in the procedural issue in Case 5/74

THE COURT (Second Chamber)

composed of: M. Sørensen, President of Chamber, H. Kutscher and A. J. Mackenzie Stuart (Rapporteur), Judges,

Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

1 of Title VIII of the Staff Regulations of In its note of 10 May 1973 the Officials of the ECSC. Commission replied as follows: The applicant has, on the basis of this '. . . the sole object of Article 99 (3) of provision, the right to claim the the ECSC Staff Regulations previously in application in his favour of 'the force is to guarantee to officials who Transitional and Final Provisions of the formerly came under those Regulations Staff Regulations of Officials of the the advantages which they would have ECSC', which entered into force on 1. 1. received had the termination of their 1962. service occurred before 1 January 1962. Article 99 (3) of these provisions The Staff Regulations which would have provides that 'the amount of the been applicable to them at that time also resettlement allowance payable to an involved the application of certain salary

salary. On 30 March 1973 the applicant sent the following note to the Director of Having received no reply, he lodged Personnel: application 177/73, entered in the Court Register on 26 October 1973. 'Following a telephone conversation with Mr Ondini concerning the interpretation In its statement of defence, the of Article 12 of the Staff Regulations of Commission put forward a formal Officials of the ECSC I have again objection of inadmissibility for disregard examined the texts relevant to this of the conditions laid down in Article 91 problem in addition to the interpretations (2) of the Staff Regulations of Officials. given by your departments on other At the time when the application was occasions. made the complaint through the I believe that the term "4 months' basic immediate superior had not yet been the salary" which occurs in Chapter IV of subject of an implied decision of the ECSC Staff Regulations can only rejection even taking as the starting date reasonably be that applied by your the alleged date of despatch of the departments for the -purpose of the complaint through the immediate provisional calculation of the rights superior. which former officials of the ECSC may In order to overcome this objection the possibly claim on the basis of Article 34 applicant brought on 30 January 1974 a of the ECSC Staff Regulations. new action (5/74), this time not open to I should like to know whether there is objection on the basis of time limits. some misunderstanding here. In my By an order of the same date the Court opinion this problem will be of import (Second Chamber) joined the two ance to a large number of officials. actions for the purposes of oral and For this reason I should be grateful if written procedure and of Judgment. your final interpretation could be of a In an interlocutory application received more authoritative nature.' at the Court Registry on 6 March 1974 On 1 May 1973 the applicant was retired the Commission raised an objection of in the interests of the serivice. inadmissibility against Application 5/74.

On hearing the report of the Admissibility Judge-Rapporteur and the opinion of the In Case 177/73 the Commission submits Advocate-General, the Second Chamber that at the time when the action was decided to open the oral procedure brought, 26 October 1973, the complaint without any preparatory inquiry. through the immediate superior had not yet been the subject of either an express or an implied decision of rejection. Even if the alleged date of despatch of the II — Conclusions of the complaint through the immediate parties superior is taken as the starting date the result would be that according to the In Case 177/73 the applicant claimed terms of the last subparagraph of Article that the Court should: 90 (2) of the Staff Regulations the 1. Annul, or at least declare void the implied decision of rejection would have been taken on 1 November 1973. The Commission's implied decision of action is therefore premature. Article 91 rejection of the complaint made by the applicant on 30 June 1973 and, to (3) imposes a strict obligation not to file the extent necessary, the undated a premature appeal to the Court decision of the Commission contained although an exception is made for cases in the letter of the Director of of emergency provided for in Article 91 (4). Personnel of 10 May 1973; The Commission therefore asked the 2. Decide that the applicant is entitled applicant to make a choice between from the date of termination of continuing Case 177/73, setting aside the service to a resettlement allowance objection of inadmissibility, or 'bringing equal to 4 times his final basic salary; a fresh action, this time not open to objection on the basis of admissi­ 3. Order the Commission to pay the costs incurred by the applicant. bility,' ... 'within the relevant period of three months from the date (17 The defendant contends that the Court November 1973) when the implied should: decision of rejection would have been taken in accordance with the Staff 1. Reject the application as inadmissible; Regulations'. or alternatively The applicant, whilst recognizing that in 2. Reject it as unfounded; any event the action was prematurely brought, takes the view that the fact that 3. Order the applicant to pay the costs. the defendant was subsequently deemed

to have taken a decision of rejection, been in an unfavourable position with which was expressly confirmed with a regard to procedure and his interests statement of reasons in the statement of would have adversely affected to no defence, makes the application admiss avail. ible. On the other hand, in the event of a Secondly the applicant takes the view decision in favour of the applicant, the that the attitude adopted by the costs of the appeal would have been defendant in putting forward this charged to the applicant. submission only in its rejoinder in Case 177/73 invalidates such submission. In the rejoinder in Case 177/73 and the interlocutory application in Case 5/74, The point of view adopted today by the the defendant puts forward a fresh defendant contradicts the one recognized submission of inadmissibility. It by it in its statement of defence. maintains that the applicant has no legal The applicant could not have laid interest, present and in being, and that himself open to the risk of allowing the he is referring to the Court an act which, defendant possibly to object against him, as it is limited to providing the applicant at a later stage, if he had not made a with mere administrative information complaint within the prescribed period, regarding the content of a merely that he was bound by a decision of the hypothetical decision, does not constitute Commission. an act which presently and indubitably adversely affects the person concerned. This submission is based on the IV — The substance of the assumption that the applicant, having

— Grasselli v Commission (32/68, Rec. allowance to a sum of less than half 4 1969, p. 505). months' basic salary. The defendant also relies on national The doubling of the scales of salary case law and legal theory. applicable on 31 December 1961 took The applicant in his defence with regard place simultaneously with a correspond to the objection of inadmissibility states ing increase in installation expenses. It that in the meantime he has left his place would therefore be logical to apply of residence to settle in Canada. If the Article 99 (3) of the transitional applicant had been required to refer the provisions, taking as the point of matter to the Court only after his departure the applicant's final basic departure for Canada he would have salary.

The applicant believes that the attitude amount which he would have received of the authors of the provisions in under Article 12 of the General question was conditioned solely by a Regulations of the Community (ECSC). concern to have regard to vested rights. Article 12 fixes this allowance on the The applicant stresses that the wording basis of 4 months' salary. The amount of the provisions in question refers which would have been payable under clearly to Article 47 (4) of the Staff Article 12 of the former General Regulations of the ECSC. Regulations would not in any event have exceeded 4 months' salary, calculated on The applicant takes the view that to discover the exact interpretation of the basis of the salary scale in force only

question. The applicant feels that a could, in respect of an employee certain lack of clarity in the wording of employed by an institution of the ECSC Article 99 (3) cannot be interpreted to before 1 January 1962 who left it after his disadvantage because, taken as a that date, amount to a higher allowance, whole and in conjunction with each this latter amount would be for this other, the transitional provisions in any employee the minimum amount (and at case give the impression that they are the same time the maximum, in this intended to secure and to preserve intact case) of his entitlement, and this in vested rights and claims. derogation from the provisions of the The applicant therefore believes that it new Staff Regulations — a derogation would be contrary to the principle of which is itself dictated by a desire to execution in good faith to interpret safeguard established rights. Article 99 (3) as an exceptional provision In the opposite case, where two months' which must be interpreted in the most salary calculated on the basis of the restrictive manner rather than as a present salary scale, would amount to transitional provision the aim of which is more than 4 months' salary calculated to confirm for the future an already on the basis of the salary scale in force vested right. on 31 December 1961, the general rule The applicant's view is that even in the would apply and it would be the higher absence of a transitional scheme of the amount (2 months according to the kind envisaged by Article 99 (3), he present scale) which would have to be would have preserved his right to an paid to the official. allowance equal to 4 times his final In support of this interpretation the monthly salary; he has never waived, and defendant refers to the fact that the cannot be deemed to have waived a

REINARZ v COMMISSION

January 1962. reducing by half the number of months taken into account in In the case where the official dies the determining the resettlement allow allowance may be paid to his widow or ance. 'to the dependants within the meaning of Article 2' of Annex VII, whereas under — The balance of the alteration of the the former Article 12 (c) the resettlement salary scale and the stricter definition allowance was provided for the widow, which they have given to the rules or if there was none, 'to dependent governing resettlement allowance. children' only. — The reasonable concern not to grant For these reasons the defendant old employees an additional considers that Article 6 of Annex VII of advantage which would have arisen the present Regulations has complete from the calculation of the allowance authority as regards the conditions of on the basis not only of the number entitlement to resettlement allowance. of months formerly and still granted There is no provision in Article 99 (3) but in addition on the basis of the referring to the former Article 12 (f) and new salary scale. keeping it in force. — The principle illustrated by Article Since it is a question only of the 102 (5) of the Regulations at present payment of the allowance, the defendant in force, which entails that rights considers that Article 99 (3) of the 1962 acquired under the system of the ECSC Regulations has introduced simply former Regulations may not lead, by a relative and not an absolute derogation a combination of the old and new from the provisions of Article 6 of provisions, to the grant of excessive Annex VII to the present Regulations.

It is thus concerning, not the conditions for basically a question of Article 12 (a), entitlement to resettlement allowance, which provides that the allowance is but the payment of the amount of this four months for an official who is head allowance. As regards the minimum of household and two months for an

official who is not so. The former rule previously in force but which have applies only insofar as it derogates from ceased to be so. the present general rule. According to the Commission, writers Not having survived as such in the and national case law agree on this point, and as Mr Advocate-General present rule, the former Article 12 (d) does not, properly speaking, establish Roemer has stressed in his Opinion in vested rights in favour of former ECSC Boursin v High Authority (Case 102/63, officials who took up duties before 1 Rec. 1964, p. 1394) it is right to refer to January 1962 and who are currently the national laws relating to public office

. . is the Regulations which lays down differently logical consequence of the notion that the conditions of payment of the the official is not in a contractual allowance. position but in one governed by Regulations, for the Staff Regulations The derogation in Article 6 (1) of Annex are true Regulations which can always VII to the Regulations provided for in be amended by the competent authority' Article 99 (3) must in any case be Mr Advocate-General Gand in Pasetti v interpreted strictly: it can only be limited Commission (Case 20/68, Rec. 1969, p. to referring to the conditions of payment 251). of the allowance such as they were in A transitional provision issued on

former rules were in force. The official basis of the old salary scale. cannot on principle be entitled at the There was no oral procedure since the time of his resettlement to have the parties declined to be heard orally. amount of his benefit calculated solely The Advocate-General delivered his on the basis of rules which were opinion on 4 July 1974.

4 In Case 177/73 the Commission has raised a defence of inadmissibility based on the premature nature of the appeal, taking into account the fact that at the time the appeal was filed there had as yet been no express or implied decision on the departmental complaint.

5 The second paragraph of Article 91 (2) of the Staff Regulations provides that an appeal shall lie only if the complaint has been rejected by express decision or by implied decision.

6 Article 91 (4) provides for a single derogation from paragraph 2 in the case of an appeal accompanied by an application for a stay of execution of the contested act.

JUDGMENT OF 11. 7. 1974 — JOINED CASES 177/73 AND 5/74

7 Since this derogation does not apply to the present case Appeal 177/73 is inadmissible.

8 In an interlocutory application the Commission raised with regard to Appeal 5/74 a defence of inadmissibility based in the first place on the lack of interest on the part of the applicant in claiming payment of a resettlement allowance since the applicant was not as yet resettled.

15 By letter dated 30 March, which refers to this telephone conversation, the applicant, while mentioning his claim to a resettlement allowance equal to four times his basic salary, requested a 'more authoritative' interpretation of the said provisions.

REINARZ v COMMISSION

16 This shows clearly that he wanted a definite decision on which proceedings, both administrative and contentious, could be based.

17 The applicant left the service on 1 May 1973 and the Director of Personnel replied on 10 May 1973 rejecting his claim.

18 The decision of the Director-General of 10 May 1973 was consequently aimed at determining the rights which the applicant had in a particular legal situation.

19 In these circumstances the decision contained in the letter of 10 May 1973 rejecting the applicant's claim of 30 March 1973 constituted an act adversely affecting him within the meaning of Article 90 (2) of the Staff Regulations.

24 Article 99 (3), in providing expressly that the amount of the allowance paid to an official shall not be less than that which he would have received under Article 12 of the former Regulations, was intended to prevent an official who terminates his service after the new system has come into force from finding himself financially in a less favourable position than he would have had if he had left the service before the new system came into force.

25 Having regard to the new salary scales in force since 1 January 1962, when the amount of the allowance equal to two months' basic salary is less than the amount equal to four months' basic salary at the same grade calculated on the basis of the old salary scales, this provision enables the official concerned to enjoy the more favourable terms.

26 As soon as the new salary scales double the salaries prior to 1962, this safe­ guard clause is no longer applicable.

27 The appeal in Case 5/74 must therefore be rejected as unfounded.

Costs

28 The applicant has failed in his appeal.

1. Dismisses appeal 177/73 as inadmissible;

2. Dismisses appeal 5/74 as unfounded;

3. Orders each party to bear its own costs.

Sørensen Kutscher Mackenzie Stuart

Delivered in open court in Luxembourg on 11 July 1974.

A. Van Houtte M. Sørensen