C-58/75

Application for compensation for the damage suffered by the applicant as a result of the Commission's failure to reinstate him in a post in his category on completion of leave on personal grounds,

THE COURT (First Chamber)

composed of: A. O'Keeffe, President, A.M. Donner and J. Mertens de Wilmars, Judges,

Advocate-General: G. Reischl

Registrar: A. Van Houtte

gives the following

The facts and the arguments developed his leave on personal grounds came to an by the parties during the written end, a dispute arose between the procedure may be summarized as applicant and the latter administration follows: about the conditions on which he could be released from his duties at the Ministry. The dispute resulted in his I — Facts and procedure, being recalled on the ground that he had left his post without permission. The The applicant, who is an official in applicant appealed against this decision Category A6 assigned to the before the competent French court. Directorate-General for Financial Control of the Commission, was at his On 9 December 1974, he submitted a request, granted leave on personal complaint to the Commission under grounds from 1 June 1969 to 31 May Article 90 (2) of the Staff Regulations of 1972 pursuant to Article 40 (1) of the Officials and this was registered on 10 Staff Regulations of Officials. December 1974. The object of the At the end of that leave he informed the complaint, which was 'against the Director-General of Administration in decision reinstating him', was to secure writing that with effect from 1 June 1972 the backdating to 1 July 1972 of the date on which his reinstatement took effect he was available to perform the duties corresponding to his grade. By letter of and the consequential revision of the 19 June 1972, the Director of Personnel applicant's career and the remuneration replied that he would, without fail, corresponding thereto and to obtain the inform him as soon as possible of 'the grant of certain allowances. The first vacant post which would enable you complaint was based on the infringement to be reinstated'. Nine months later, in a by the Commission of Article 40 of the second letter dated 27 March 1973 the Staff Regulations of Officials, which, Director of Personnel asked him to according to the applicant, requires return a document, described as a 'single reinstatement in the first post which falls application', 'in order to enable vacant in the applicant's category and consideration to be given to a post which grade. would make it possible to reinstate you'; the applicant did so by letter of 28 April As the Commission did not reply to the 1973. By letter of 22 May 1974, complaint for over four months, the confirmed by telegram of 28 May 1974, a applicant brought proceedings before the post of Administrator in career bracket Court against the implied decision A 7/A 6 was offered to and accepted by rejecting it. the applicant who resumed his duties on 15 August 1974. The application, dated 15 July 1975, was entered at the Court Registry on 7 July Meanwhile he had managed to be 1975.

seniority and calculate his pension as appropriate action by the set out above. Commission on the basis of a

2. Loss of chances of promotion: revision of the applicant's career, Order the Commission of the pension rights and remuneration; European Communities to pay the (b) as regards the applications for orders applicant the sum of BF 70 000; for payment other than those 3. Loss of remuneration: concerning loss of remuneration, (a) Loss of salary: determine, accordingly, the Order the Commission of the proportion of the expenses incurred European Comunities to pay the as a result of the delay in applicant the sum of BF 667 540; reinstatement which shall be borne (b) Difference in salary: by the defendant, if at all, and dismiss Order the Commission of the as unfounded the application European Communities to pay the referring to the loss of chances fo applicant the sum of BF 645 391; promotion; (c) Expenses incurred as a result of (c) dismiss as unfounded the submissions the delay in reinstatement: and arguments of the applicant Order the Commission of the which seek that the Court shall note

European Communities to pay that he reserves the right to make a him the sum of BF 144 500; subsequent claim for compensation (d) Take note that the applicant for the damage suffered as a result of reserves the right to make a being forced to give up his post in subsequent claim for the French Administration; compensation for the damage suffered as a result of being forced Order the applicant to pay the costs.

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complaint and is therefore admissible. Article 90 does not, incidentally, appear (b) The letter of 30 May 1972, to prescribe any specific period within an addressed by the applicant to the application for damages must be lodged. Commission at the end of his leave on personal grounds, must be treated as The Commission is, however, undecided constituting a request within the whether the reinstatement decision is meaning of Article 90 (1) of the Staff really the administrative measure upon Regulations. Since that request elicited which the present proceedings, whether no express reply from the Commission for annulment or for damages, turn, or within the period of 4 months provided whether earlier decisions in fact gave rise for under Article 90 (1) of the Staff to the damage of which the applicant Regulations, it must be considered as the complains. If the second alternative subject of an implied decision rejecting it applied, it ought to be impossible to against which a complaint ought to have avoid being time-barred by means of an been lodged within the three months. As application for damages based on this was not done, the applicant can no administrative measures which have longer contest this decision or call it in become definitive. In the Commission's question by an application for view, the real basis for the application is annulment or by an application for the successive assignment of other persons damages, both of which are out of time. to posts to which, on an objective assessment, the applicant could lay claim. (c) In fact, the measures which were These events took place between the date such as to affect the applicant adversely on which the leave on personal grounds were the various decisions in which the ended (30 May 1972) and his actual appointing authority assigned to reinstatement (15 August 1974), during someone other than the applicant one of

the vacant posts in which, according to consequence, rightly directed against the the applicant, he ought to have been content of the decision taken by the reinstated. These decisions of appointing authority in so far as the appointment and promotion receive the effective date of reinstatement, fixed as same wide publicity as the vacant posts 15 August 1974, takes no account of the of which the applicant is aware, which damage suffered by the applicant owing justifies the assumption that he was also to the infringement of Article 40 (d) of

notification of the measure. Since he before the Staff Regulations were failed to do so, any application against amended on 16 July 1972. Moreover, it those measures is inadmissible as out of was not in the applicant's interests for time. Furthermore, the applicant cannot him to insist on reinstatement seek to surmount the inadmissibility of irrespective of conditions. any application for annulment by means of an application for damages. As for the fact that he has not contested the appointments made in violation of Finally, on the question of damages, the his rights and of Article 40 of the Staff Commission raises an alternative and Regulations, the applicant points out fourth objection as to admissibility. In its that, as he did not, either during the view, the application for damages is, in leave on personal grounds or even after any event, inadmissible in respect of the its expiry, receive the internal conclusions seeking compensation (1) for publications of the Commission, it was expenses incurred as a result of the delay impossible for him to know what in reinstatement and (2) for having been vancancies and appointments there were. forced to give up his duties at the French It was only after his reinstatement that Ministry for Economic Affairs and he carried out certain checks in the Finance, because these heads of claim department responsible for notices of were not formulated in the complaint of competition and vacancy notices and was 9 December 1974, because they are able to ascertain the extent to which the independent of the application for Commission had infringed Article 40 (d) annulment, and because they are due to and to assess the damage suffered. the applicant's special circumstances and are not the consequence of his belated As regards the submission of reinstatement. inadmissibility raised in the alternative, the applicant observes, first, that it was In his reply, the applicant's answer to the physically impossible for the complaint first submission of inadmissibility based of 9 December 1974 to call in aid the on the impossibility of making the consequences of the French Ministerial reinstatement decision retroactive is that Order of 7 January 1975 against which, the Commission cannot argue as though incidentally, proceedings have been the post to which he was appointed by brought before the Tribunal the decision of 10 September 1974 was Administratif, Paris. Moreover, the Staff the first vacant post in the applicant's Regulations in no way insist upon a prior

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In the present case the applicant must have received notification of these notices an In its rejoinder, the Commission states decisions. His. claim for compensation is that, in contending that the reinstatement decision cannot constitute consequently timebarred and, therefore, inadmissible. Finally, as regards the a measure adversely affecting the alternative submission of inadmissibility, applicant, it does so on the basis of the Commission considers that no new general considerations relating to the claim (for damages or for annulment) filling of posts and not on an which was not formulated in the interpretation of Article 40 (d) of the complaint can be added at the time Staff Regulations. There is no need to do when the application is lodged.

The time which elapses between the end of the leave and actual the time when the complaint was lodged and that, therefore, it is extraneous to the reinstatement depends exclusively on the present application. existence of posts requiring to be filled. 3. The substance of the case The applicant ought to have based his The applicant contends that, by not application on any illegality attaching to reinstating him in the first vacant post, the assignment to other persons of the the Commission infringed one of his posts which he could have claimed. rights and caused him various damages Although it is true that officials on leave in connexion with (1) loss of seniority, (2) on personal grounds do not receive the loos of chances of promotion and (3) loss internal publications of the Commission, of remuneration. it is nevertheless strange that the applicant remained wholly unaware of (1) With regard to loss of seniority, the publicity about vacant posts. Decisions of applicant seeks compensation in kind by the Commission on the opening of the the fixing at 1 July 1972 the date on procedure for filling vacancies, whether which the reinstatement takes effect, the by vacancy or by notice of competition, fixing of seniority in Grade A 6 at 1 are in general terms and, inasmuch as August 1971 and his classification on the they are liable to have an adverse effect, date on which reinstatement takes effect should, in consequence, have been the in Step 1 of Grade A 6 with seniority subject-matter of a complaint within the from 15 March 1971.

applicant seeks compensation for the Regulations. Furthermore, when the non-material damage arising from the Administration asked him, on 27 March order to remove him from his post by 1973, to complete a form for the purpose the French Administration and for the of finding a post corresponding material damage arising from the to his qualifications, he merely returned amounts which he owes to that the form without comment and, when administration. the Directorate-General for Financial Control received the applicant's request The damage incurred can, however, only for reinstatement it had to make repeated be determined finally and with certainty requests for a reply. after the closure of the proceedings for annulment of the measures taken in his In assessing the damage, the Com­ case brought before the Tribunal mission suggests that this should be administratif, Paris. based on the date on which the applicant, on his own evidence, In its defence, the Commission replies established the Commission's failure to that the general principle of equivalence reinstate him and asked to be reinstated between benefits, which is the subject of in his original administration in France. special application in Article 40 of the Since the applicant was reinstated in his Staff Regulations, makes it impossible for original administration on 1 September the damage which the applicant may 1973, the Commission considers that he have suffered as the result of belated established that failure on or about 1

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not later than 1 September 1974. There Commission states, he was not required can, therefore, be no question of to make use of the procedure of compensation for any financial loss request/complaint/appeal laid down in suffered after 1 July 1973 and this still Articles 25 and 90 of the Staff leaves open for consideration the period Regulations when he established the from 1 June 1972 to 1 July 1973 when Administration's failure to act.

The claim based on and fifteen days, and not ten and a half damage suffered as a result of being months before being promoted to the forced to give up his duties in the French 'higher grade'. During that time, 206 Administration should also be dismissed posts in that career bracket were since the Commission cannot be blamed advertised. for the loss suffered and is in no way liable for it. The Commission is, in fact, under no legal obligation to the In its rejoinder the Commission applicant to ask the French contends that the applicant's letter of 30 Administration for his release and May 1972 must be examined, first, from it is not customary for national the point of view of admissibility and, administrations, including that of France, secondly, from the point of view of the to require such steps to be taken. quantum of financial loss actually

Administration. The applicant accepts factors and, for an official with the

Admissibility

3 The defendant contests the admissibility of the application on the ground that the contested decision is not the cause of the alleged damage, which was the result of earlier decisions by which, in disregard of the obligation to reinstate the applicant, vacancies which arose after his leave on personal grounds had ended were filled.

4 While complaining of the delay in reinstating him, the applicant does not contest the legality of the disputed decision in so far as it reinstates him, but only in so far as it fails to make certain provisions, especially as regards the date on which it takes effect and the backdating of seniority in grade and step, which would have cancelled the effects of that delay.

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5 His interest in seeking annulment is the obligation which might as a result be imposed on the appointing authority to make the reinstatement subject to different and more favourable conditions.

6 The application is admissible.

JUDGMENT OF 1. 7. 1976 - CASE 58/75

12 By Regulation No 1473/62 of the Council of 30 June 1972, which came into force on 1 July 1972, this provision was supplemented by the inclusion of the words 'provided that he satisfies the requirements for that post'.

13 This addition is not, however, such as to alter the assessment of the defendant's conduct since all it does is to confirm a discretion which, in the interests of the service, the administrative authority has in any case to exercise.

14 During the oral procedure the defendant acknowledged that various posts capable of being filled by the applicant fell vacant shortly after the expiry of the leave on personal grounds.

15 In consequence, by failing to reinstate the applicant until more than two years had elapsed, the defendant is in breach of Article 40 (4) (d) of the Staff Regulations.

16 By bringing to an end, albeit belatedly, a situation which was contrary to the law, the defendant was under a duty to expunge, in so far as possible, the consequences of its illegal conduct.

22 In these circumstances the defendant, in fixing, by the contested decision, the date of classification according to seniority in grade and step at respectively 15 September and 1 May 1973, was in breach of Article 40 of the Staff Regulations and of the rule requiring it to remedy so far as possible the consequences of a belated application of that provision.

23 The decision must, to that extent, be annulled and, for the purpose of giving effect to this judgment, it will be for the defendant to determine the applicant's seniority in grade and step and to calculate his pension as if the irregularity which has been found had not occurred.

24 The Court accordingly expects this seniority in grade and step to be fixed at, respectively, 11 and 15 months from 15 August 1972.

The claim for damages

25 The applicant further seeks an order for the payment to him by the defendant, by way of compensation for the damage which he claims to have suffered as the consequence of the alleged delay, of various sums under the following headings.

1. loss of salary from 1 July 1972 to 31 August 1973: BF 667 540

27 According to the defendant, the claim for damages is inadmissible because the decision of reinstatement is not illegal and, in consequence, cannot constitute a measure capable of engendering a claim for compensation.

28 It has already been established that the illegality attaching to the decision of reinstatement consists both in in the delay in taking the decision and in the failure to compensate for that delay.

29 This illegality is such as to cause damage to the applicant, so that the submission of inadmissibility must be dismissed.

30 The defendant further claims that two of the various heads of damage are inadmissible, specifically that relating to expenses incurred BF 144 500 and that relating to the reservation arising from the applicant's dismissal by the French Minister of Finance, on the ground that, contrary to the requirements of Articles 90 and 91 of the Staff Regulations, no mention was made of those claims in the complaint addressed to the defendant on 9 December 1974.

31 Under Article 91 of the Staff Regulations an appeal to the Court of Justice shall lie only if the appointing authority has previously had a complaint submitted to it and the complaint has been rejected by a decision.

32 The object of that provision is to enable and encourage an amicable settlement of difference which has arisen between officials or servants and the

the question of compensation for the damage which the applicant claims to have suffered on that account may be submitted for consideration by the Court.

The substance of the case

37 The measures which the defendant will have to take in order to give effect to this judgment, in so far as it partially annuls the decision of 10 September 1974, will only in part compensate for the damage suffered by the applicant.

38 It is therefore necessary to consider the various claims submitted for additional compensation.

39 Although, in the absence of any services rendered, the applicant cannot claim payment of arrears of salary, he is entitled to receive compensation for the actual damage he has suffered through the loss of this salary as a result of the unlawful conduct of the defendant.

40 In principle, the compensation payable on that account should be equal to the net emoluments to which he would have been entitled, subject however to deduction of the net earned income received for the same period while engaged in other employment.

46 The absence during the whole of that period of any official request or protest indicates, at the very least, a lack of ordinary vigilance likely to help to prolong the delay of which he complains.

47 This fact must be taken into account in assessing the extent to which the defendant must make good the damage.

48 In these circumstances and in view of the redress provided by the finding of annulment, justice will be done by ordering the Community to pay to the

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applicant damages equal to the loss of net salary suffered from 15 August 1972 to 31 August 1973, together with legal interest, and by dismissing the remainder of the claim.

49 The figure, namely BF 667 540, submitted by the applicant as representing loss of salary from 1 July 1972 to 31 August 1973, has not been contested by the defendant.

On those grounds,

THE COURT (First Chamber)

hereby:

1. Annuls the decision of the Commission of 10 September 1974 in so far as it lays down the dates from which the applicant's seniority in grade and step is to be reckoned;

OPINION OF MR REISCHL - CASE 58/75

2. Orders the Commission to pay to the applicant the sum of BF 601 786 together with interest at 8 % from 9 December 1974; 3. Orders the defendant to bear the costs.

Mr President, After the present applicant had worked Members of the Court, for some time in the Directorate-General for Financial Control as an official in Under Article 40 of the Staff Regulations Grade A 6 he was granted leave on an official may be granted unpaid leave personal grounds by several decisions on personal grounds. It is, however, between 1 June 1969 and 31 May 1972. provided that another person may be During his leave another person was appointed to the post occupied by the appointed to the post he occupied. official. Article 40 (4) (d) in the version Shortly before the end of his leave the which is contained in the regulation of applicant informed the Directorate 18 December 1961 and which is the General in a letter dated 30 May 1972 material one in this case provides: that as from 1 June 1972 he would again be available to the Commission. He was 'On the expiry of his leave an official not immediately reinstated, although must be reinstated in the first post during the period after the applicant's corresponding to his grade which falls leave terminated a whole series of A 6 vacant in his category or service ... posts became available and although the applicant, as he explained, continually Regulation No 1473/72 of 30 June 1972 contacted the Commission either added: personally or by telephone. In a letter from the Directorate-General for 'provided that he satisfies the Personnel and Administration of 27 requirements for that post.' March 1973 the applicant was simply

1 — Translated from the German.