C-1/74

In Case 1/74

ROBERT GIRY, an official of the Commission of the European Communities, on leave on personal grounds, represented by V. Biel, advocate at the Cour supérieure de Justice of the Grand Duchy of Luxembourg, with an address for service at the chambers of V. Biel, 71 rue des Glacis,

applicant,

v

COMMISSION OF THE EUROPEAN COMUNITES, represented by its legal adviser, Th. F. Cusack, acting as agent, with an address for service in Luxembourg at the office of its legal adviser, P. Lamoureux, 4, boulevard Royal,

defendant,

gives the following

JUDGMENT

Facts

The facts and arguments developed by of 4 December 1972 introducing special the parties in the course of the written and temporary measures applicable to procedure may be summarized as the recruitment of officials of the follows: European Communities in consequence of the accession of new Member States, I — Facts and procedure and for the termination of service of officials of those Communities (OJ L 1. The applicant was appointed an 272 p. 1) 1 official of the Commission on 1 January 1961. He is at present a principal 1 — Article 2 of the Regulation provides: administrator in Grade A 4, on leave on '1. Until 30 June 1973, the Institutions of the personal grounds. Communities are authorized, in the interests of the service and in order to meet require­ The applicant had leave for the first time ments resulting from the accession to the on personal grounds from 15 August European Communities of new Member States, to adopt for their officials in Grades 1966 to 14 August 1969. He was A 1 to A 5 inclusive measures terminating the reinstated and then once again granted service of officials, as provided for in Article 47 of the Staff Regulations, under the con­ leave on personal grounds on 12 ditions provided hereinafter. October 1970 to perform the duties of 2. where an institution intends to take the inter-regional adviser at the United measures provided for in paragraph 1 in Nations Conference on Trade and respect of officials other than A 1 and A 2, Development (UNCTAD). This leave it shall, without prejudice to paragraph 3, draw up a list of the officials to be affected was twice renewed, the last time until 11 by such measures in each grade, after con­ October 1973. sulting the Joint Committee, taking into ac­ count the officials' ability, efficiency, conduct In December 1972 the applicant re­ in the service, family circumstances and quested the Commission to advise him seniority.

The Commission refused to give the the end of (his) leave on personal information on the grounds that '. . . the grounds on 12 October next'.' He measures for the termination of service therefore requested to know the post in consequence of the accession of new which the Commission would offer him Member States do not apply to officials under Article 40 (4) (d) of the Staff who are on leave on personal grounds Regulations. and who, as a result, do not occupy a By letter dated 11 May 1973 the permanent post capable of being Commission acknowledged the appli vacated'. cant's letter and informed him that he By letter dated 22 January 1973 the would be told as early as possible of the applicant expressed 'the greatest first vacant post. reservation' on such an interpretation of the Regulation and stated that under 3. On 23 July 1973 the applicant Article 40 of the Staff Regulations he lodged a complaint against the decision had to be 'automatically reinstated on 12 rejecting his application relating to the October 1973, that is to say before the termination of his service. Referring to majority of the new appointments could the grounds of the rejection of his

. . 1973 1 the Commission decided that the (names of three officials are given); termination of the services of these I remind you that in my letter of 22 officials accorded neither with the spirit nor with the letter of the said January last I drew the attention of the Directorate-General for Personnel and Regulation. Administration to the fact that failing By letter likewise dated 26 April 1973 termination of service under Regulation the applicant informed the Commission 2530/72 I should automatically have to of his 'intention to request (his) be reinstated on 12 October 1973 under reinstatement with the Commission at Article 40.' On 27 November 1973 the Commission 1 — The following is an extract from the minutes of the meeting of the Commission on 13 February rejected this complaint and stated that it:

. . The Commission stresses reasons therefor. The wording of this letter shall be approved by the Legal Department'. moreover that . . . it has not granted any

request for termination of service from Upon hearing the report of the an official who was already, like Judge-Rapporteur and the opinion of the yourself, on leave on personal grounds Advocate-General, the Court decided to at the time when the reduction of staff open the oral procedure without any began. The cases of the three officials to preparatory inquiry. whom you refer in your letter of 23 July 1973 are quite different from yours. One of them Was hot at any time on leave on personal grounds. The two other officials were in active employment II — Conclusions of the when they lodged their request for parties termination of service. Following the initial refusal of this request, they The applicant claims that the Court requested and obtained leave on should: personal grounds. Then shortly afterwards, at the final stage in the — reject the objection of inadmissibility reduction of staff, this decision was raised by the Commission, annulled and replaced by a decision to terminate their services.' — annul the decision of the Commission of 26 April 1973 A letter from the Secretary-General of rejecting his request that his services the Commission to the Director-General be terminated, of Personnel states the following as regards the two decisions: — annul the decision of the 'I have the honour of informing you that Commission dated 27 November the Commission, ..., has decided ..., to rejecting his complaint of 23 July terminate the services of the following 1973, officials under Article 2 of the aforesaid — annul the decision of the Com­ Regulation: mission, in so far as the attitude Mr ..., Mr ... with effect from 1 May adopted by the Commission, as it 1973. appears from the extract from the The Commission has noted that the minutes of the meeting of the officials in question, who have been on Commission of 13 February 1973, leave on personal grounds since 1 May constitutes a decision, 1973, had applied before 31 January 1973 to have their services terminated. — declare that the applicant fulfilled the The decision of the Commission conditions laid down in Regulation rejecting this application ... is therefore No 2530/72 and, accordingly, order annulled following the re-examination of the Commission to grant his request the files in question carried out in the to have his services terminated and light of the criteria provided for in the all the financial advantages associ­ first paragraph of Article 2 (2) of ated therewith, Regulation 2530/72.' — order the Commission to bear the 4. On 4 January 1974 the applicant costs of the application. filed the present application. The Commission claims that the Court By interlocutory application on 6 should: February 1974, the Commission raised an objection on the ground of — dismiss the action as inadmissible or inadmissibility. By order dated 20 March unfounded, 1974 the Court (Second Chamber) added this objection to the issues. — order the applicant to bear the costs.

III — Su b m i s s i o n s and argu due. In view 'of certain hesitations' on ments of the parties this question, it had been necessary once again to make the Commission under stand that the actual reasons behind the Admissibility Regulation altogether obtained in his The Commission states that the own case. The object of the letter dated application is inadmissible because it is 26 April 1973 was to obtain a date to directed against a decision rejecting a preserve his right to reinstatement as request which no longer existed at the form 12 October if he did not obtain the time that the decision was taken, in view benefit of Regulation No 2530/72.

Regulations. The wording of the letter to the principle of law that renunciations from the applicant dated 26 April 1973 are not presumed. was perfectly explicit and free from any The position of the applicant could at ambiguity and his intention to be most have been an alternative request, reinstated in the Commission after 30 the one possibility not excluding the June 1973 is clearly contrary to his other. Even accepting that the letter previous request to have his services dated 26 April 1973 constituted in itself terminated. a formal request for reinstatement, it The Commission states further that a could only have been a request to take communication of this kind is not effect in the future. While awaiting the required to preserve the rights expiration of the period, the first request recognized by Article 40 of the Staff retained its full force.

For the Administration as was undoubtedly his Commission it was therefore a question

of having posts available which it could unambiguous provisions of Regulation allot to the new arrivals. It no longer No 2530/72 do not give any right to had the applicant's post available after officials to have their services terminated he had indicated his intention of and therefore no reason has to be given returning, and in this event and, in the for the refusal to grant such a request. interest of the service itself, the This opinion is confirmed by the Commission should have been glad of difference between the wording of the applicant's request to give up his Article 2 of Regulation No 2530/72 and post and opt to have his services the comparable wording of Regulation

Censure by the Court should be In the applicant's opinion the reasons for limited to consideration of the ways and means which have led the institution to the decision of 26 April 1973 have not the slightest foundation in law. exercise the discretion which gives rise to the refusal. The Commission had the power in the interests of the service to refuse the The Commission then states that, apart requests to have their services from the strict wording of the terminated. If the Commission had been Regulation, consideration of all its guided by this ground, as it maintains in provisions, the reasons given in the its letter rejecting the complaint, it preamble and the general structure shows that the intention of the should immediately have said so instead of sheltering behind the quite different legislature was not to extend the special reason mentioned in the decision of 26 and temporary measures for the termination of service to officials on

Commission has not yet offered a post to the applicant in accordance with In this respect the Commission refers to Article 40 (4) of the Staff Regulations. the last paragraph of the preamble of the Finally, the Commission had to show Regulation and to Article 2 (1) thereof. that between the decision of 26 April To take these special measures in respect 1973 and 30 June 1973 it had of officials on leave on personal grounds reconsidered the request in the light of would obviously be pointless in the the criteria to which it referred in its interests of the service, for such a

GIRY v COMMISSION

appointed to the post occupied by an solution was obviously ruled out in his official on leave on personal grounds. case.

requests by two other officials to have In the present case the matter is one their services terminated, the Com­ within the exclusive jurisdiction of the mission states that their circumstances institution in relation to its officials. To were different from those of the applicant. issue such an order is not the function It refers to the explanations given in its nor within the jurisdiction of the Court letter dated 27 November 1973 and adds as laid down by the Treaties and that the decision to grant the requests of annexes. these officials to have their services terminated was not contrary to In his reply, the applicant indicates Regulation No 2530/72, for it was evidence that on 13 October 1973, the possible for this to be accompanied by a day after his leave ended, there were at decision retrospectively annulling the least a hundred posts in Grade A 4 to be grant of leave on personal grounds, so filled by the Commission. As regards his that the persons concerned could be ability, the applicant refers to a note on regarded as never having been, in law, his career and experience. on leave on personal grounds. The very The applicant states moreover that the short time between the first refusal and terms of the Regulation are a long way the subsequent decision made it possible from giving the Commission the to re-establish the position. Since the discretionary power which it claims. He applicant has been on leave on personal refers in particular to Article 2 (3) of the grounds since October 1970, such a Regulation according to which '.. . the

institution shall take into account given priority. The Regulation has only requests of officials that their service be a single ground for refusal: 'the interests terminated . . .'. In rejecting such a of the service', and it is apparent that request the institution adversely affects this concept, in Article 2 (3) is not the the applicant, which it cannot do same as that in Article 2 (1). without good reason. If the Court is As regards the discrimination arising unable to support this reason, it should from the fact that the Commission annul the refusal of the applicant's granted the request of two other officials request. on leave on personal grounds to have The applicant maintains that the their services terminated, the applicant Commission was led astray by the states that there is no question of a objectives of the Regulation, which was retrospective withdrawal of the leave on certainly to enable the recruitment of personal grounds in the aforementioned nationals of the new Member States. It letter from the Secretary-General to the had exceeded the objective to be attained Director-General of Personnel.

The The important point in the present case attitude of the Commission puts the is that the applicant was entitled to have applicant in an unenviable position. the Commission offer him, as an Although he had no offer of absolute priority 1 the first vacant reinstatement, he could nevertheless not post as from the day his leave ended. take an engagement with UNCTAD. In this sense he was entitled to a post Only at the end of October 1973, faced which was available within the budget. with the difficulty of settling his case In this respect he refers to a directive normally, did he inform UNCTAD that he could continue to work for it for published in the Staff Courier No 103

GIRY v COMMISSION

to the application. It states that the equal to the number of officials in this application relates only to the refusal to position as 'frozen'. grant the applicant's request to have his The Commission refers also to Article 40 services terminated in accordance with (4) (c) of the Staff Regulations, which Regulation No 2530/72. provides that 'another person may be The Commission challenges the appointed to the post occupied by the applicant's argument according to which official'. the word 'post' must be understood as The official in active employment who meaning 'post which has been budgeted asks to have his services terminated does for' and that in requesting to have his not offer his 'post' to his institution: he services terminated he thus offered his gives it the possibility of marking a post institution the possibility of freeing a actually occupied vacant, so that it is post which, otherwise, would have been possible to make it available within the 'frozen' in his personal interest. Even meaning of Article 1 (1) of Regulation supposing it were possible to recognize No 2530/72. the Regulation as having a 'budgetary' The Commission states finally that it character, it would be impossible to must not be forgotten that the period for draw the inference that a post, regarded terminating services ended on 30 June solely as a 'post which had been 1973 and that the applicant's leave did budgeted for', is open to every official not end until 12 October 1973. on leave on personal grounds during or at the end of his leave. The parties were heard on 19 September 1974. This argument would lead to absurdity, for if an institution had to recognize The applicant was represented by Victor every official on leave on personal Biel, advocate of the Cour supérieure de grounds as having a kind of 'budgetary Justice at Luxembourg, and the servitude' over a post among the total Commission of the European Communi­ number of posts relating to his grade ties by its Legal Adviser Th. F. Cusack, and category and temporarily unfilled, it acting as agent. would follow that the institution was The Advocate-General delivered his obliged to regard a number of posts opinion on 10 October 1974.

4 The decision rejecting this request does not therefore constitute an act adversely affecting him within the meaning of Articles 90 and 91 of the Staff Regulations.

5 The applicant has not expressly withdrawn his formal request to have his service terminated.

6 His letter dated 26 April 1973 could be regarded as withdrawal of his request to have his service terminated only if it was of a nature to lead to the certain conclusion that the applicant, showing a desire contrary to that previously expressed, wished to withdraw his first request.

7 The wording of the letter and the circumstances in which it was sent to the Commission do not justify such a conclusion.

8 This finding is confirmed by the fact that the Commission, in its reply to the applicant's complaint, did not mention any such implicit withdrawal of his request.

9 The application is therefore admissible.

14 The Commission essentially bases its interpretation of the Regulation on its purpose, which was to free posts actually occupied in order to provide for the necessities arising from the accession of the new Member States to the Communities.

15 Under Article 40 of the Staff Regulations an official has the right, on the expiry of his leave on personal grounds, to be reinstated in the first post corresponding to his grade which falls vacant, provided that he satisfies the requirements for that post.

16 Although it cannot therefore be maintained that the purpose of the Regulation is incompatible in every case with its application to officials on leave on personal grounds, nevertheless as a rule the Regulation was intended to apply to officials who actually held a post.

JUDGMENT OF 21. 11. 1974 — CASE 1/74

17 Although the Commission was not bound by the Regulation to adopt the general criterion which it had defined at its meeting on 13 February 1973, it was nevertheless open to it to lay down this criterion in the exercise of its discretionary power under the Regulation.

18 By reason of this the application of this criterion in the applicant's case has not adversely affected his interests in. a way which can lead to the annulment of the decision.

24 The applicant has failed in his action.

GIRY v COMMISSION

25 Under the terms of Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

26 However, under the terms of Article 70 of the said Rules, costs incurred by the institutions in actions brought by employees of the Community are to be borne by such institutions.

On those grounds,

THE COURT (Second Chamber)

Registrar President of the Second Chamber

OPINION OF MR ADVOCATE-GENERAL TRABUCCHI

DELIVERED ON 10 OCTOBER 1974 1

Mr President, Regulation No 2530/72 of the Council Members of the Court, of 4 December 1972, there is a pre­ liminary question of admissibility. The 1. In this case, which concerns the defendant has in fact claimed that the Commission's refusal to consider the action for the annulment of the request of one of its officials for the Commissions's refusal to terminate termination of his service under service must be considered inadmissible

1 — Translated from the Italian.