C-38/74

In Case 38/74

MAURITS WILLEM GEERLINGS, an official of the Commission of the European Communities on leave on personal grounds, represented by F. Salomonson, advocate at Dordrecht, with an address for service in Luxembourg at the chambers of E. Arendt, 34 b rue Phillippe II,

applicant,

v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, J. H. J. Bourgeois, acting as agent, with an address for service in Luxembourg at the office of its Legal Adviser, P. Lamoureux, 4 boulevard Royal,

defendant,

Advocate-General: A. Trabucchi

Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts and arguments developed by investment funds (OJ L 155/1 of 11. 4. the parties in the course of the written 1973). 1 procedure may be summarized as 1 — Article 2 of the Regulation provides as follows: follows: 1. In order to deal with exceptional problems arising from the adoption of research programmes involving a reduction in the number of posts provided in the plan of staff paid from European Atomic Energy Community research and invest- I — Facts and procedure ment funds, and problems arising from the accession of new Member States to the European Communities, the Commission is hereby author- ized until 31 December 1973 and within the limit 1. Mr M. W. Geerlings, of Dutch of the number of posts affected, to take measures nationality, belongs to the scientific to terminate the service, within the meaning of service of the European Communities. Article 47 of the Staff Regulations, of those of its officials who are paid from research and His last post was that of Head of the investment funds, under the conditions laid Radio-Chemical Division at the down below.

This request was rejected by the III — Submissions and argu- Commission in a decision communicated ments of the parties to Mr Geerlings by letter of 10 December 1973 on the ground that it In his application, the applicant points had, on 7 November 1973, decided that out that he asked for leave on personal the regulation did not apply to officials grounds on the advice of the Director- who were on leave on personal grounds. General of Personnel and Administration. The funds provided for the scientific 3. As there no reply to the complaint research programme had been with- submitted on 24 December 1973 by Mr drawn or at least so reduced that he Geerlings against this decision, the would no longer have had any work and present appeal was lodged on 30 May his functions would have had to be 1974. regarded as redundant. The procedure followed the normal Contrary to his clearly expressed wish, course. his leave was twice extended by the Commission. On two occassions, in June On the report of the Judge-Rapporteur, 1970 and September 1971, he asked to after hearing the Advocate-General, the Court (Second Chamber) decided to be reinstated but his requests were rejected on the ground that the open the oral procedure without any Commission had insufficient funds preliminary inquiry. available to enable the post to be filled.

JUDGMENT OF 20. 2. 1975 — CASE 38/74

grounds. In taking this decision the Regulations. What matters is that the Commission changed the regulation. The applicant is in that administrative applicant draws attention to Article 2 position and not why and how he got and particularly to the provision that the there. In the Commission's view, Commission shall, where the interest of therefore, it is unnecessary to go into the the service so permits, accord priority facts set out by the applicant on these treatment to applications from officials two questions. who request termination of service.

The avoid being idle, of seeking temporary decision cannot alter Regulation No employment elsewhere, he should, in 1543/73 and was not intended to do so. contrast to officials who are content to The Commission has never been in any twiddle their thumbs, be penalized doubt that Regulation No 1543/73, in through being unable to take advantage common with Regulation No 2530/72, of the provisions governing termination. which are identical on this point, is not applicable to officials on leave on In its statement of defence, the personal grounds. Commission points out that one of the applicant's claims is that the Court This conclusion emerges both from the should declare 'that the Commission has wording of the regulation and from the a duty to adopt a measure terminating object of the release system.

post. jurisdiction only in disputes of a financial character, but the settled case-law of the In both cases, the authority which takes Court has established that, even in the the initiative in the matter is the

The Commission also states that, given to decide which posts should in this way the purpose of the regulation, namely, to be released. However, this has no create vacancies, it is difficult to see how application whatever in the present case. it can apply to an official taking The applicant had in fact been sent on leave because there were no funds to advantage of leave on personal grounds. In this administration situation the enable him to continue carrying out his duties. If he had continued to 'twiddle official is not occupying any post; a measure terminating his services would his thumbs' he would, without further in no way release a post which has an ado, have been directly covered by incumbent. Regulation No 1543/73. The only difference is that the Commission As the applicant cannot, while on leave secured in 1969 what it would otherwise on personal grounds, be the subject of a have obtained only in 1973. The measure implementing Regulation No extremely theoretical argument of the 1543/73, his allegations of misuse of Commission would only make sense if in powers, based on a combination of the fact it had been able to add that 'if it defendant's refusal to apply the depended upon us, the applicant's post termination arrangements to him and of would have still been occupied'. the fact that he has not yet been reinstated, are wholly unfounded. Secondly, the applicant considers the Furthermore, the Commission vigorously question whether, in practice, there is any substantial difference between the denies that it intended to bring the situation in which the official is the applicant's employment to an end. 'prime mover' and that in which it is the In his reply, the applicant states that he Commission. The fourth paragraph of always believed that, in asking for leave Article 2 (2) makes it clear that the on personal grounds, all he was doing difference is less than the Commission was set the termination procedure in thinks. In practice, there is in both cases motion. agreement, for all intents and purposes, In his view, Regulation No 1543/73 between the official and the Commission

the curtailment of the research because of the budgetary repercussions, programme, his post became redundant. to add a post to another unit. Nevertheless, the competent authorities The Commission adds that the post to refused to apply Article 41 of the Staff which the applicant was assigned before Regulations. Regulations enabling the being sent on leave on personal grounds applicant's position and the irregular can be regarded as supernumerary as a actions taken in respect of his post to be consequence of the restrictions placed on legalized were finally put into operation the research programme. It is for the in 1973. The applicant emphasizes that same reason that this post did not he has suffered substantial financial loss. remain 'vacant': the budgetary entry on In its rejoinder, the Commission which it depended was used for a post in maintains that the reason for the another unit at the Karlsruhe Institute. administrative position in which the applicant finds himself and the way in On the main issue the Commission again which he reached it are not relevant. underlines the importance of the However, to prevent any misunderstan- reference, in Article 2 of Regulation No ding on the subject the Commission 1543/73, to Article 47 of the Staff offers the following clarification. In 1969 Regulations of Officials. The only point of the reference is to make the definition the applicant decided to terminate his service with Euratom. The Commission of the measure clearer. Its only purpose is to make clear that 'retirement in the could have compelled him to choose between the two normal and obvious interests of the service' may be granted alternatives, remaining in his post or only in respect of officials actually resigning, but it showed a sympathetic occupying a post. Thus interpreted, the attitude to his desire to do other work wording of Article 2 (1) of Regulation outside Euratom without resigning. No 1543/73 is perfectly consistent with the objective pursued by the regulation, The Commission emphasizes, moreover, that it took steps to find other namely, to render vacant posts occupied by officials in active employment. employment for officials assigned to a post under programmes for which The oral observations of the parties were insufficient funds were available. It made at the hearing on 12 December endeavoured to reserve posts which had 1974.

2 Since 1 July 1969 the applicant, a scientific officer employed by Euratom, has been on leave on personal grounds within the meaning of Article 40 of the Staff Regulations of Officials.

3 On 10 December 1973, the Commission rejected his request for a measure terminating his service pursuant to Regulation No 1543/73 on the ground that, on 7 November 1973, it had decided that the regulation did not apply to officials who were on leave on personal grounds.

4 The applicant seeks annulment of this decision because it is based on an erroneous interpretation of the regulation by the Commission.

5 The applicant bases his case mainly on Article 40 (4) (d) of the Staff Regulations, which confers on an official on leave on personal grounds the right to be reinstated in the first post corresponding to his grade which falls vacant.

6 Under Article 2 of Regulation No 1543/73 the Commission is authorized to take measures for the termination of service of officials 'in order to deal with

exceptional problems arising from the adoption of research programmes involving a reduction in the number of posts in the plan of staff paid from European Atomic Energy Community research and investment funds, and problems arising from the accession of new Member States to the European Communities'.

12 The Commission justified its rejections of the applicant's requests to be reinstated on the ground that the budget for research approved by the Council rules out any practical possibility of reinstating the scientific staff on the conclusion of leave on personal grounds, and on the ground that it was necessary to recognize the large number of supernumerary officials still employed as having, when appointment was made to a vacancy, priority over officials who were not in employment.

13 As support for the non-application of Article 40 (4) (d), these grounds cannot be criticized in law.

14 The applicant has not attempted to challenge the facts on which the grounds for these decisions are based.

15 It is, moreover, established that no measure for termination of service has been taken in respect of the applicant, so that he is still on leave on personal grounds, enjoying the rights which flow from that status.

16 In these circumstances, this submission cannot be upheld.

17 The application must therefore be dismissed.

THE COURT (Second Chamber)

hereby:

1. Dismisses the application as unfounded.

2. Orders each of the parties to pay its own costs.

Mackenzie Stuart Kutscher Sørensen

Delivered in open court in Luxembourg on 20 February 1975.