C-10/74

JUDGMENT OF THE COURT (SECOND CHAMBER) OF 11 JULY 1974 1

Franz Becker

v Commission of the European Communities

Case 10/74

Summary

Officials — Transitional provisions — Transition from the former ECSC General Regulations to the ECSC Staff Regulations — Resettlement allowance — Calculation (ECSC Staff Regulations, Article 99 (3))

Application for annulment of the defendant's implied rejection of the appli­ cant's claim to be granted resettlement allowance equal to four months of his final salary,

1 — Language of the Case: French.

JUDGMENT OF 11. 7. 1974 — CASE 10/74

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

BECKER v COMMISSION

Since he considered that he had not fully thus the right to the full application of received his entitlement, the applicant the former Article 12 of the ECSC lodged a complaint on 20 August 1973 General Regulations, that is, resettlement claiming that the resettlement allowance allowance of four months for heads of should be paid on the basis not of two household. months but of four months of his final This safeguard clause is the simple salary under Article 99 (3) of the 1962 application of the principle of vested ECSC Staff Regulations referring to rights. Article 12 of the former ECSC General Regulations. In the 1962 Regulations the resettlement allowance was reduced by half in respect Not having received any reply, the of all those who could not claim the plaintiff lodged an appeal which was advantage of officials and their filed at the Registry on 11 February 1974. dependents 'to whom the provisions of the former ECSC Staff Regulations After hearing the report of the applied before 1 January 1962'. (Article Judge-Rapporteur and the opinion of the 92 Staff Regulations.) Advocate-General, the Second Chamber decided to proceed without any The former Article 12 (d) of the ECSC preparatory inquiry. General Regulations provided that the resettlement allowance should be calculated on the basis of the marital II — Conclusions of the status and the salary of the official at the parties date of termination of service or decease. The right acquired by the former The applicant claimed that the Court employee does not therefore comprise should: only a number of months but also the 1. Declare that the implied decision salary at the end of his service. Article 99 rejecting the applicant's complaint is (3) refers to Article 12 of the former void and of no effect; Regulations as a whole and therefore also to subparagraph (d) which governed 2. Order the Commission to pay the the question of the salary to be taken applicant resettlement allowance into account in the calculation of the equal to four months of his final allowance, that is the salary on the salary; termination of service.

ECSC General Regulations. It was when the official left the service. Any intended to avoid anyone seeking to other interpretation would take away apply the restrictions in Annex VII of from former employees a large part of the new Regulations, that is a reduction what had been granted to them before by half. The wording is perhaps not very 1962. The High Authority had not felicitously chosen, but it is consistent thought in the past that the advantage of with the general tendency to safeguard four or two months' end of service every kind of vested rights. salary was an exorbitant advantage Former ECSC employees who were having regard to the conditions from entitled under the former Regulations to 1952 to 1961, which were fundamentally the separation allowance retained their different from the present conditions, privileges.

officials. The reason for Article 99 (3) cannot request payment of the was the desire to ensure that those who resettlement allowance in advance does were faced with a reduction in their not prevent the extent of the right being salary at least had their resettlement known to the official well beforehand, allowance maintained at the level of this amount being twice or four times his their salary under the former final salary. Regulations and therefore under its Article 99 (3) refers to the former salary scale. Article 99 (3) is therefore Article 12 as a whole.

The former Article 12 did not refer to salary scales, but only to a salary in force at the time Quod abundat non vitiat of termination of service.

under the former Article 12. This present salary scale) which would have amount was not related to a salary scale; to be paid to the official. it was four times the final salary, In support of this interpretation the whether reference is made to the former defendant refers to the fact that the Article 12 (d) of the ECSC General actual wording of Article 99 (3) of the Regulations or the new Article 6 (3) of 1962 ECSC Regulations is limited to

under Article 12 of the former General the new general rule in the event of their Regulations could not in any event have leaving after 1 January 1962, in relation exceeded four months' salary calculated to the amount which would have been on the basis of the salary scale in force paid immediately before that date, that is only until 31 December 1961. four times the end of service salary as at 31 December 1961. The defendant interprets the scheme laid down by Article 99 (3) as follows: If the intention of the draftsmen of the 1962 ECSC Staff Regulations had been Although as a general rule the that the allowance of four months' resettlement allowance is equal to only salary due to employees referred to in two months' salary calculated according Article 99 (3) should be calculated on to the salary scale in force at the date of the basis of the new salary scale, there termination of service, nevertheless in a would have been no reason for them to case where four months' salary have employed the phrase 'may not be calculated according to the former salary less' which conjures up an idea of scale could, in respect of an employee comparison and checking which employed by an institution of the ECSC necessarily has to be carried out. before 1 January 1962 who left it after This interpretation of Article 99 (3) has that date, amount to a higher allowance, this latter amount would be for this regard to: employee the minimum amount (and at — The desire shown by the draftsmen the same time the maximum, in this of the 1962 Regulations not to case) of his entitlement, and this in prejudice old employees through the derogation from the provisions of the amendment of the Regulations new Staff Regulations, a derogation reducing by half the number of which is itself dictated by a desire to months taken into account in safeguard relatively established rights. determining the resettlement allow

JUDGMENT OF 11. 7. 1974 — CASE 10/74

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. (c) and keeping it in force.

If today there is still cause to refer to the advantages, which could not arise either under the old system or under former Article 12, having regard to the current one. Article 99 (3) of the 1962 ECSC Regulations, still in force, it is only in so Article 99 (3) of the ECSC Regulations, far as Article 12 establishes the rules for which is the only context in which the paying the allowance. It is thus basically old Article 12 survives, is a provision a question of Article 12 (a), which concerning, not the conditions for provides that the allowance is four entitlement to resettlement allowance, months for an official who is head of but the payment of the amount of this household and two months for an allowance. As regards the minimum official who is not so. The former rule distance from the place of his former; applies only in so far as it derogates, employment at which the official must from the present general rule. resettle to be able to claim the Not having survived as such in the resettlement allowance, it is clear that present rule, the former Article 12 (d) this distance must be 70 km under does not, properly speaking, establish Article 6 (4), Annex VII of the new vested rights in favour of former ECSC Regulations and not 25 km under Article officials who took up duties before 12 (e) of the former General 1 January 1962 and who are currently Regulations. leaving the service. At present they have Under Article 6, Annex VII which does the same right to have their allowance not readopt the provisions of the former paid on the basis of the last salary which Article 12 (f) under which 'the was paid to them: they have this right declaration of resettlement must be however not as a vested right but solely notified in writing within one year of under the wording of Article 6 (3) of termination of service', this formality is Annex VII to the present Regulations no longer required of former ECSC which is included in a system under the officials, even those recruited before Regulations which lays down differently 1 January 1962. the conditions of payment of the In the case where the official dies the allowance. allowance may be paid to his widow or The derogation in Article 6 (1) of Annex 'to the dependants within the meaning of VII to the Regulations provided for in

BECKER v COMMISSION

The official The general rule is a single entity, and cannot on principle be entitled at the one of its features is the taking into time of his resettlement to have the account of a number of monthly salaries amount of his benefit calculated solely limited to two. If it were accepted that on the basis of rules which were Article 99 (3) allowed the grant of an previously in force but which have allowance equal to four months' salary ceased to be so. on the basis of the current salary scale According to the Commission, writers the result would be to 'give employees and national case law agree on this point more extensive rights than those they and as Mr Advocate-General Roemer had under the system which is revoked', has stressed in his Opinion in Boursin v which limited the allowance to four High Authority (Case 102/63, Rec. months' salary on the basis of the old 1964, p. 1394) it is right to refer to the salary scale. national laws relating to public office and their principles for the solution of actual legal problems relating to the Staff Regulations of the Communities. IV — Oral procedure There is no entitlement to the benefits The parties were heard at the hearing on recognized by the Regulations except in 20 June 1974. so far as all the facts giving rise to the The applicant was represented by Victor right occurred while the Regulations were in force. 'This argument .

JUDGMENT OF 11. 7. 1974 — CASE 10/74

Law

1 The appeal filed at the Registry on 11 February 1974 seeks the annulment of the implied decision rejecting the complaint made by the applicant on 20 August 1973 that his resettlement allowance should be paid on the basis of four months of his final basic salary.

2 Article 99 (3) of the ECSC Staff Regulations, which comes under Title VIII concerned with transitional and final provisions, provides that the amount of the resettlement allowance due to established officials under the old ECSC Staff Regulations who terminate their service after the new Regulations come into force shall not be less than the amount which the persons concerned would have received under the provisions of Article 12 of the former ECSC General Regulations.

3 A transitional provision issued on the transition to a less generous system does not normally seek to give employees greater rights than they would have had under the system which is revoked.

4 Such a provision cannot therefore be interpreted as allowing a combination of the more favourable method of calculation of one system with the more favourable salary scale of another.

9 The applicant has failed in his appeal.

10 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party must bear the costs.

11 Nevertheless, under Article 70 of the Rules of Procedure, in actions by staff of the Communities the institutions shall bear their own costs.

On those grounds,

THE COURT (Second Chamber)

hereby: