C-126/75

Commission of the European Communities , represented by its Legal Adviser, Raymond Baeyens, acting as Agent, assisted by Denise Sorasio-Allo, a

member of the Legal Department, with an address for service in Luxembourg at the office of its Legal Adviser, Mario Cervino, Jean Monnet Building, Kirchberg, defendant,

Application for either the reinstatement of the applicant in accordance with

the Staff Regulations of Officials on theexpiry of his leave on personal

grounds, together with compensation for the damage by him as a suffered

result of his belated reinstatement or, in the event of his not being reinstated,

JUDGMENT OF 17. 10. 1977 — ­ JOINED CASES 126/75, 34 AND 92/76

JUDGMENT

Facts and issues

The facts of the case, the course of the him pursuant to Article 40 (4) (d) of the procedure, and the conclusions, Staff Regulations of Officials. submissions and arguments of the parties

may be summarized as follows: On 11 July 1973 the head of the

Establishment Division addressed a note

Nations (UN Conference on Trade and Court found that the Commission had Development — ­ 'UNCTAD'). been entitled to refuse to apply Regulation (EEC) No 2530/72 to him.

By letter of 22 January 1973 he The Court added: 'Under Article 40 of

requested a measure terminating his the Staff Regulations an official has the

service ("voluntary termination of service') right, on the expiry of his leave on

pursuant to Regulation (EEC) No personal grounds, to be reinstated in the 2530/72 of the Council of 4 December first post corresponding to his grade 1972 introducing special and temporary which falls vacant, provided that he measures applicable to the recruitment of satisfies the requirements for that post'. officials of the European Communities in consequence of the accession of new After the judgment, the applicant

Member States, and for the termination submitted, on 6 January 1975, a request of service of officials of those to the Commission for a decision within Communities (OJ, English Special themeaning of Article 90 (1) of the Staff Edition 1972 (1-8. 12. 1972), p. 11); he Regulations for his reinstatement with added that he must be automatically retroactive effect to 12 October 1973. In reinstated on the expiry of his leave on the request the applicant inter alia drew 12 October 1973. The Commission the Commissions attention to the

GIRY v COMMISSION

for his reinstatement and the annulment Whereas the provisions of Article 4 of

of all appointments to posts in Grade A 4 the Staff Regulations to the effect that no

or Career Bracket A 5/A 4 made since 12 appointment or promotion shall be made October 1973 in respect of which the for any purpose other than that of filling Commission was unable to prove that the a vacant post prevent the reinstatement

applicant did not possess the requisite decision from having retroactive effect; qualifications.

Whereas nevertheless it seems fair that

(Second Chamber) decided to join Cases Directorate-General for Regional Policy. 126/75 and 34/76 for the purposes of the

procedure. Article 2: The grading of Mr Robert Giry shall be determined as follows as at 12 In a letter of 1 May 1976 the October 1973: Commission invited the applicant to

resume duty in a post which was vacant Grade A 4 (with seniority from 1 January at the Directorate-General for Regional 1967) Policy. Reinstatement would take effect

on the day on which he returned to duty Step 6 (with seniority from 1 May 1973) and seniority would date from 12 October 1973. Article 3: The period from 12 October 1973 to 14 August 1976 shall, subject to The applicant's response to this was a contribution by the person concerned, letter dated 26 March 1976 in which he count for the purposes of the pension contested the legality of the offer of scheme.' reinstatement. This letter was followed by

further correspondence which did not letter result in any agreement. In the communicating the decision to the applicant he was invited to supply the Commission with a statement of his These events were by a formal followed earnings between 12 October 1973 and decision of the Commission of 29 July 15 August 1976 'in order to enable the 1976, the recitals to which were worded Commission to calculate financial any as follows: loss suffered as the result of the delay in reinstatement.' 'Whereas on 26 April 1973 Mr Robert

Giry requested to be reinstated in the The applicant did not resume duty at the service of the Commission on the expiry Commission. On 27 September 1976, he of this leave; lodged the application in Case 92/76, in which he sought, inter alia, the

notified to the persons concerned By order of 17 December 1976 the Court before 7 April 1975, be limited to the (Second Chamber) also joined Case 92/76 effects as against the applicant, to Joined Cases 126/75 and 34/76. whereas for appointments notified to

the persons concerned after 7 April 2. The written procedure followed the 1975 such nullity shall be complete normal course. and effective as against all persons; — Rule that the Commission had a duty The Court (Second Chamber), after under the Staff Regulations to hearing the views of the Advocate reinstate the applicant on 12 October General, decided to open the oral 1973; procedure on the substance of the case — Rule that in not complying with this without any preparatory inquiry. duty the Commission has committed an act of serious maladministration

and must in consequence indemnify II — Conclusions, submissions the applicant in respect of all damage and arguments of the suffered; parties —

Consequently order the Commission to pay the applicant:

The application in Case 126/75 (lodged (a) salary appropriate to Grade A 4, on 12 January 1976) Step 6, with all the allowances to which he was entitled, for 1. In that application the applicant eighteen months and twenty days claims that the Court should: corresponding to the period from — Rule that the implied decision of the 12 October 1973 to 30 April Commission rejecting the applicant's 1975, the date on which the

request for the restoration of his applicant should have advanced

2. He further asserts that the Commission According to the applicant, Article Calcu­ has wrongfully dismissed him. 40 (4) (d) of the Staff Regulations means lation of the damage suffered as a result that reinstatement on the expiry of leave must be based on the Commission's duty on personal grounds imposes a duty both to reinstate him in his grade, rights and on the official and on the Commission. salary with effect from 12 October 1973. The judgment of the Court in Case 1/74 This is the background against which the confirms this view. The article in sixth paragraph of the applicant's question makes no provision for the conclusions must be viewed. leave to be prolonged beyond two

extensions unless an official refuses the first post offered to him. With regard to subparagraph (d) of that paragraph, the applicant points out that

On expiry of the applicant's leave on the Annex IV to the Staff Regulations is personal grounds, there were a large mentioned in Articles 41 and 50, which number of posts vacant in Grade 4 or deal with the cases where the

Career Bracket A 5/A 4, for which the Commission is authorized to terminate

applicant was suitable — a number of an official's service unilaterally for them in the Directorate-General where reasons other than misconduct or

the applicant serving before his was incapacity. But Annex IV has a wider

an infringement of the applicant's rights The application in Case 34/76 (lodged on in the absence of proof by the 21 April 1976) Commission that in each case he did not

satisfy the requirements for the post and 1. The applicant claims that the Court that the official actually appointed should:

satisfied the requirements laid down in — Rule that the implied decision the vacancy notice. As those rejecting the complaint of 3 October appointments were neither brought to 1975 is null and void;

JUDGMENT OF 27. 10. 1977 — ­ JOINED CASES 126/75. 34 AND 92/76

— Rule that all appointments to posts of exists since its decision of 29 July 1976 Grade A 4 or Career Bracket A 5/A 4 concerning the reinstatement of the

made between 8 April 1975 and the applicant must be regarded as giving him date when this application was full satisfaction.

costs of this procedural issue; 2. In his complaint of 3 July 1975, registered on 7 July, the applicant Alternatively sought, inter alia, the annulment erga — Defer a decision until the final omnes of the appointments notified to judgment and. those concerned 'less than three months — In that case reserve the costs.

prior to the registration of this

application and all appointments which 2. The applicant states, first, that the

were notified to those concerned after application for a declaration that the such registration'. It is against the cases should not proceed to judgment is implied rejection of that request that the premature; because the applicant was on

applicant brought the application in Case leave, he was informed of the 126/75. Commission's decision of 29 July 1976

only by a telephone message from his By his complaint of 3 October 1975 the lawyer on 14 September 1976. The applicant requested the annulment 'of all application for a declaration that the appointments to a post in Grade A 4 or cases should not proceed to judgment Career Bracket A 5/A 4 notified to those was lodged on 25 August 1976; at the concerned between 7 July and 6 October time when the Commission was drawing 1975'. It was against the implied up that application it could not therefore rejection of this complaint by the have known whether the applicant was or Commission that the applicant lodged was not accepting his reinstatement. the application in Case 34/76.

126/75, the applicant now requests that October 1973 and, in consequence, legal interest on account of delay in declare that it is null and void.

payment be added to his salary.

2. The applicant states that the wording The applicant continues his conclusions of Article 40 of the Staff Regulations by claiming that the Commission should which applies to his reinstatement is that be ordered to pay to him: in force at the time when leave on — Damages of FB 1 500 000 to cover personal grounds was granted and not, the pecuniary damage suffered in therefore, the wording at present in force. relation to his career; He bases this argument on the fact that, and by letter of 18 November 1970, the

Director-General of Personnel and

— Damages of FB 1 000 000 for the Administration had explained to him non-material damage suffered by the that '... your administrative position is

applicant; governed by Article 40 of the Staff Regulations of Officials, a copy of which and is attached...'. In consequence this

conditions laid down in the last some damage by being deprived of the paragraph of Article 50; and services of one of its officials, but the

— The resettlement allowance provided blame for this falls entirely on the

under Article 6 of Annex VII to the Directorate-General of Personnel and

Staff Regulations. Administration.

JUDGMENT OF 27. 10. 1977 — ­ JOINED CASES 126/75, 34 AND 92/76

By its decision of 29 July 1976 the advancement of his career. In view of the Commission ceased to object to the dispute which has arisen, he has not

all damage suffered by the applicant. with the Staff Regulations he would, at the latest by June 1975, have received There are two reasons why the promotion to Grade A 3 and at the end

interpretation of Article 4 of the Staff of his career would have reached at least Regulations, contained in the third the last career step in Grade A 2. An recital to the decision, is wrong. In the actuarial calculation shows that the

first place, the present case is not material damage represented by the

concerned with either an appointment or difference in salary between the two

a promotion but with the assignment of career brackets is more than FB an official compulsorily reinstated in 1 500 000. If this is increased by the

accordance with Article 40. Moreover, on non-material damage from resulting 12 October 1973, there was a large undergrading, the total reaches

supplying references, deleting the second — Rule that any subsequent decision and third recitals, substituting 15 August taken by the Commission to reinstate 1976 for 12 October 1973 in Article 1 of the applicant, embodying provisions

the decision, and deleting Article 3. The comparable to those contained in the applicant requests the Court to annul the decision of 29 July 1976 and

decision if the Commission fails to accompanied if necessary by the amend it accordingly. payment of a differential allowance, must be considered to give full With respect to the material and satisfaction to the applicant;

non-material damage which the — Dismiss the applicants remaining applicant claims to have suffered, he conclusions as without foundation. states that in refusing his reinstatement, The Commission leaves it to the

the Commission prevented the wisdom of the Court to determine

GIRY v COMMISSION

extension to an official who wants it. The the applications were lodged but even

person concerned has a right to be more because those conclusions can be reinstated on the expiry of the leave considered only as an alternative request

granted to him but this is subject to two for compensation failing a reinstatement conditions: the existence of a vacant post which includes sufficient compensation

and the possession by the official of the for any damage suffered. In any event, requirements for the post. Until he is the applicants claims are without

reinstated, an official remains in the foundation, since the general principles

position of being on leave on personal of public service law make it impossible grounds even if there is a long period of for a salary to be paid to an official who

Commission emphasizes that it is for the With regard to the applicant's conclusion applicant to prove that he satisfied the

that the Commission was bound under requirements for the posts which he the Staff Regulations to reinstate the seeks to have annulled. The Commission applicant on 12 October 1973, the does not however dispute that the Commission contends that it was under applicant might have satisfied the

an obligation to reinstate the applicant in requirements for some the whole among the first vacancy for which he satisfied series of posts declared vacant since that

the requirements on the expiry of his date. What it does dispute, however, is leave on personal grounds. the legal basis of the claim, in the light both of its value for the applicant and of

With regard to the consequences to be the fact that it is out of proportion to the drawn from this statement of the aim pursued; the applicant would derive position the Commission distinguishes no advantage whatever from the

between two situations which the annulment of any of the appointments

Regulations, be accompanied by full relating to Cases 126/75 and 34/76 is compensation for any damage suffered. invalid for inadmissibility (judgment of the Court of 10 July 1975 in Joined

On the basis of the information available Cases 4 and 30/74, Scuppa v Commission to it, the Commission takes the view that [1975] ECR 919); the application was not the only damage suffered by the preceded by a complaint within the Article 91 (2) of the Staff applicant relates to the loss of normal meaning of advancement in his career. It takes the Regulations; the decision of 29 July 1976 was without effect since the person view that, in accordance with the whom it concerned refused to take judgment of the Court of 1 July 1976 in Case Commission advantage of it; and the applicant has no 58/75 Sergy v [1976] legal interest in bringing the action ECR 1139, a decision to reinstate him in because he has only to withhold his the terms of that of 29 July 1976 is consent to prevent the decision in sufficient to make good the whole of this question from having any binding effect. damage. As for the remainder of the The Commission emphasizes in this claim the Commission contends that the respect that it will be taking steps to applications nothing capable contain of withdraw the decision. The legal effect of proving that further damage occurred. such a withdrawal is the same as that of

annulment by the Court. Finally, the Commission points out that

the delays which ensued in reinstating The applicant's observations on the him after 1 March 1976, the date on of inadmissibility submitted by objection which the first offer was made to the the Commission in Case 92/76 (lodged on applicant, can no longer be blamed on 7 December 1976) the Commission.

withdrawn, at least until the objection of fit, to keep an official who has asked for inadmissibility in Case 92/76 is set aside. his reinstatement indefinitely on unpaid

Accordingly, Application 92/76 can if leave. Moreover, such an interpretation necessary take the place of that of 12 conflicts with the general principle of

January 1976. Therefore it must repeat law that no one may found an argument

the substance of the arguments and on his own wrong-doing.

conclusions of the latter application. The applicant agrees that the three cases

With regard to the alleged want of legal cover two possibilities: the Commission's interest, the applicant argues that the refusal to reinstate him or the fulfilment application was not brought against the of the conditions '

annulment of the decision of 29 July The applicant states that, if he obtains 1976 only because this is the only legal the annulment of the implied decisions means of obtaining an alteration in the rejecting the complaint, which constitute

conditions of reinstatement. wrongful dismissal, and a decision of the Court ruling that the Commission had In any case the decision of 29 July 1976 and still has the obligation to reinstate

does not have the significance given it by him with effect from 12 October 1973, the defence. In addition to the offer of he is prepared to consider the

the post it contains at least one decision compensation which he claimed in his which from then on was bound to harm application in Case 126/75 as an

the applicant. It laid down that he was to alternative to his in grade, reinstatement

be reinstated in a post in his category or rights and salary as from the expiry of his

In his view the interpretation placed by With regard to his application for the Commission on Article 40 (4) (d) of annulment of appointments, the

the Staff Regulations produces the absurd applicant recalls that the Commission result that the article prevents the recognized that the Personnel Directorate Commission from extending an official's ought to have included the applicant's

leave on personal grounds only if he asks file in the applications for posts in

JUDGMENT OF 27. 10. 1977 — ­ JOINED CASES 126/75, 34 AND 92/76

Career Bracket A 5/A 4 in Directorates With regard, again, to his entitlement to

General II, III, IV, VIII, XI and XVI. But salary, the applicant argues that Article the applicant's application form was not 55 of the Staff Regulations provides that included in the list of applications for an official shall be paid for being at all any post The applicant times at the disposal of his institution. If accordingly requests that these applications should the latter has no work for him this does now be considered under the supervision not deprive him of the right to receive

permits remuneration received for an terms and conditions on which the

outside activity to be deducted from this Commission made its offer.

salary. The position is different in the

case of family allowances, the The applicant adds that the post now

overlapping of which is prohibited under offered by the Commission is not the

Article 67 of the Staff Regulations. The first vacant post within the meaning of

personal grounds, was, by implication, renewed until his actual return to work at With regard to the steps taken by the

the Commission. applicant to secure his reinstatement the

GIRY v COMMISSION

Commission states that, apart from his Commission able to accept the existence

letter of 26 April 1973 and the requests of a contractual relationship in the

and complaints pursuant to Article 90 of position of an official governed by the

Community public service, as the Court The Commission's decision of 29 July declared in its judgment in Case 58/75, 1976 is correct. It did not necessarily Sergy. have to cover the Court's judgment in On the question of the application for Case 1/74 or the applicant's request for a damages, the Commission states that a decision of 6 January 1975 and his lawful decision cannot amount to a complaint of 3 July 1975; a decision of the competent cannot have its wrongful act and, in consequence, create authority a right to compensation. The decision of legal basis in an official's appeal through 29 July 1976 could only have resulted in official channels or, in this specific case, in the judgment of the Court which it compensating for the whole of any damage to the applicant and he has not cannot be the purpose of the decision to alleged any damage other than or carry out since it refers to a dispute additional to that inflicted on him by which has no connexion with the point that decision. governed by that decision and which, moreover, results in the dismissal of the The rejoinder in Joined Cases 126/75 applicant's claims. and 34/76 (lodged on 14 March 1977) The Commission claims that, by virtue of The Commission claims that the Court Article 3 of the decision, it correctly should: applied Article 83 (2) of the Staff — Rule that on the expiry of his leave Regulations and Article 3 of Annex VIII on personal grounds, the applicant thereto. ought to have been reinstated in the first vacancy provided that he As for the date of the applicant's satisfied the requirements for the reinstatement the Commission post; emphasizes that it is not in a position to — Rule that in order to regularize the take a decision which would reinstate the position in law it is for the defendant applicant as from 12 October 1973. to arrange for the reinstatement of

JUDGMENT OF 27. 10. 1977 — ­ JOINED CASES 126/75. 34 AND 92/76

The Commission contends that the forward his reinstatement as his main

applications of the applicant objective. concerning 'pecuniary damage suffered in respect of his 'non-material damage It points out that its offer to calculate the career'

and the suffered'

are inadmissible because they applicant's seniority as though he had were submitted only at the reply stage. been at work since 12 October 1973 cannot be extended to the period which

The Commission also regards as has elapsed since his refusal to accept

made to the applicant on 1 March 1976 With regard to appointments made since or by the decision of 29 July 1976 to 7 April 1975, the Commission contends reinstate him which, for want of actual that, even on the assumption that the acceptance by the person concerned, has Court sees fit to uphold the applicant's become ineffective. claims, it would be prevented from doing

The Commission states that it has never so by the vagueness of those claims and, since it could not annul any particular laid down as a condition precedent to the he appointment, the Court would have to applicant's reinstatement that must annul all of them. The absurd undertake to refrainfrom contesting the consequences of this approach suffices to arrangements made. Similarly, it states dismiss it out of hand. In this connexion that it is settled in case-law that a servant the Commission refers to French may be heard to impugn a measure, even administrative case-law which is to the if it has been taken at his request, and effect that the administration is obliged refers to the judgment in Case 58/75, to reinstate an official in his original post Sergy, in which the Court annulled in and to oust his successor only in the rare part a decision for reinstatement at the cases where the person concerned has a end of leave on personal grounds. right to a specific post, which does not

In any case it is impossible to settle the apply in the case of the applicant.

dispute even in part by a resumption of Finally the Commission points out, in work 'to preserve existing as the rights, this connexion, that, on the assumption applicant suggested, if only because the decisions that, by virtue of the of the formal decision for reinstatement must of Court, it is required to reinstate the necessity comprise a number of elements applicant with retroactive effect, this relating in particular to its effective date would mean, inter alia that the whole of and the determination of the applicant's the period which had elapsed would have seniority. to be taken into account in fixing seniority. Before considering the applicant's action

right to a salary. throughout that case he pressed to be reinstated; and that, with the minimum The Commission points out, assuming delay, he requested the Commission to the reinstatement of the applicant, that apply the judgment in Case 1/74. the individual chances of promotion of

an official in Grade A 4 who has at least Commenting on the Commission's seniority may be years'

two expressed as efforts to reinstate him, the applicant 1 in 29. The average chance of claims that, despite the decision of the promotion is therefore so small that it is Court in Case 1/74, the request for a impossible to take serious account of it decision and the applicant's subsequent in this case. complaint, it did nothing further to

Finally, the Commission contends that, reinstate him between 21 November if, in the circumstances, the applicant's 1974, the date of the Court's judgment, dismissal from the service of the and 1 March 1976. The efforts of the

Commission 'has taken place', as he says, Directorate-General for Personnel and

it is due to his own fault as a result of the Administration during the preceding refusal to accept the offer of 1 March Period were confined to two attempts, 1976. Because of this, the applicant both of which were abortive.

provided for in Article 12 of Annex VIII has not been applied; to the Staff Regulations. In any case the — The applicants file was not included

applicant has no right to the allowance among the applications for the posts

provided for in Annex IV to the Staff in Career Bracket A 5/A 4; and Regulations, which is available only in — The applicant's request of 6 January the case of retirement in the interests of 1975 for a decision and his the service applied to officials in Grade subsequent complaint of 3 July were A 1 or A 2by the same token, to or, filed away. make use any of the provisions in of

Article 50 of the Staff Regulations which Finally, the applicant asks whether the

are applicable in those circumstances. post to which the decision of 29 July With regard to the remaining claims, the 1976 refers really exists or whether it is a Commission refers to its previous fictitious post created in breach of the statements and to the submissions put in budgetary regulations. concerning the other heads of claim

which, in the way they were submitted On a point of law the applicant states

offer was made. and complaint, the Commission dismissed the applicant from its service; With regard to the applicant's claims for there is therefore no possibility of a compensation, that for pecuniary damage reinstatement unless the two implied suffered in connexion with his career and decisions of rejection have been that for non-material damage, the previously annulled either by the Court applicant points out that, in terms of of by the Commission. procedure, the application in Case 92/76 was separate from that in Case 126/75 The applicant is entitled to have the

and is not therefore limited by his period from 12 October 1973 to 14 conclusions in the latter case. In any August 1976 taken into account for the

event the applicant is entitled to put in purposes of the pension scheme without

additional conclusions to cover the new any contribution by him: during that development represented by the decision period the applicant was in active

of 29 July 1976. employment even though he was

prevented from performing his duties. The application for compensation for the Article 83 of the Staff Regulations pecuniary damage in connexion with his provides that an official's contribution to

crucial issue in this dispute is the date of

The non-material damage was incurred his reinstatement In a reference to this

by the applicant as a result of the loss of in his reply in Joined Cases 126/75 and

status which arose from the break in the 34/76, the applicant adds that the

advancement of his career, by worries 'competent authority'

for the purposes of

attention to this non-material damage in in Staff Regulations for a formal decision his request of 6 January 1975. of reinstatement adopted by the

Commission itself. Leave on personal

The Commission's decision of 29 July grounds is granted by the appointing 1976 cannot reinstate the applicant authority for a fixed period; accordingly, without covering his request dated 6 the initial decision simultaneously fixes

GIRY v COMMISSION

the date from which leave is granted and notified him every time his application

the date of reinstatement. was set aside and the period for a

Chapter 1 of Title III of the Staff on which to claim that the applicant's

Regulations, which covers the various rights have lapsed. In the case of officials

forms of recruitment, whereas leave on so appointed who received notification of

personal grounds comes under Chapter 2 their appointment before 7 April 1975, of Title III. any complaint regarding the irregularity of their appointment is time-barred. But it is not time-barred as against the The applicant contests the objection of applicant in that his reinstatement with inadmissibility raised by the Commission effect from 12 October 1973 was thereby in its rejoinder in Joined Cases 126/75 prevented. and 34/76 against the introduction, at the

reply stage of these cases, of claims for compensation in order to cover the With regard to the case-law of the

pecuniary damage suffered by the French Conseil d'État relating to the

period. only to a specifically designated post (Article 4 of the Staff Regulations) and he has a right to that post On the other With regard to the Commission's objections to the of the hand, with the solitary exception of admissibility applications for annulment of the teachers and members of the judicature, French officials are appointed to a grade appointments made more than three in a structure provided for by public months before the lodging of the service regulations. In the circumstances complaint 3 July 1975, that is to say, of it is clear that under French law, before 7 April 1975, the applicant argues reinstatement of an official in no that his application for annulment refers

way makes it necessary to annul not to the vacant posts but the decisions appointments made in the meantime. to appoint. The applicant's letter of 26 The situation is quite different in the April 1973, in which he requested his reinstatement for the first time after case of a Community official. expiry of his leave on personal grounds, constituted an application for all the With regard to the Commission's posts in Grade A 4 or Career Bracket argument that the applicant never

A 5/A 4 then vacant or which were to referred difficulty caused to him to any become so before his reinstatement, so by the comparatively long period during that the Commission ought to have which he was waiting for an offer of

JUDGMENT OF 27. 10. 1977 — ­ JOINED CASES 126/75, 34 AND 92/76

reinstatement, he states that, because of other officials who were in the same

the need to hold himself available for the position.

statements and adds that on 29 July 1976 it decided to assign an additional post in With regard to the Commission's Career Bracket A 5/A 4 to the argument that the applicant is not Directorate-General of Regional Policy entitled to the allowance provided for with the object of ensuring the under Annex IV to the Staff Regulations, applicant's reinstatement in his original which applies only to retirements in the

interests of the service in the case of department, where no vacancy was

available. officials in Grades A 1 and A 2, the

applicant states that Annex IV is of Furthermore the Commission states that much wider application than Article 50 15 August 1976 was chosen as the by itself. It is used as a provision to be effective date of the applicant's referred to not only in the case of reinstatement as being the earliest date Articles 41 and 50 but also for the which would enable the applicant to be measures for the termination of service of informed and to return to Brussels. staff adopted at the time of the merger of

the executives and of the enlargement of The Commission requests the Court to the Community. ignore the applicant's references to the

statements which he submitted in Cases The applicant emphasizes that all he is 126/75 and 34/76. asking for is the straightforward

GIRY v COMMISSION

Decision

1 The applications in the three joined cases are, essentially, intended to secure:

(a) recognition of the right of the applicant, who has been on leave on

personal grounds since 1970, to be reinstated with effect from 12 October 1973, the date on which his leave expired and, to this end, the annulment, first, of the Commission's decision of 29 July 1976, reinstating the applicant with effect from 15 August 1976 though with effect in respect of

seniority and pension from 12 October 1973, and, secondly, of the

3 In view of the close connexion between these objections and the submissions

on the substance relied on by the parties, consideration must first be given to the latter.

4 Article 40 (4) (d) of the Staff Regulations provides that, on the expiry of his leave, an official must be reinstated in the first post corresponding to his grade which falls vacant, provided that he satisfies the requirements for that post.

5 The applicant contends that the Commission has disregarded his rights under this provision by offering him reinstatement not in the first post which fell vacant in accordance with the requirements of the Staff Regulations but only in 1976, first by a letter of 1 March and then by the formal decision of 29

July.

JUDGMENT OF 27. 10. 1977 — ­ JOINED CASES 126/75, 34 AND 92/76

that the applicant can with certainty be said to have been in a position to

claim his rights under Article 40 (4) (d) of the Staff Regulations.

9 The doubt to which the applicant's attitude gave rise was finally removed only

by the letter which he addressed to the Commission on 6 January 1975

confirming his request for reinstatement.

10 It was therefore after the receipt of that letter, at the latest, that the

the reinstatement to be effective retroactively from 12 October 1973.

13 Whilst it is true that the decision fixes 15 August 1976 as the date from which the reinstatement takes effect, conditions are attached to it which, on

GIRY v COMMISSION

all essential points, are tantamount to giving it the retroactive effect sought by the applicant.

14 In fact the applicant's seniority in grade and step is fixed as though the

reinstatement had taken place on 12 October 1973.

18 The position is the same as regards the application for the annulment of the

appointments made since 12 October 1973 to posts in Grade A 4 or Career Bracket A 5/A 4.

19 With regard to the applications for compensation, it must first be determined whether the applicant's behaviour contributed to the damage which he claims to have suffered.

20 On this aspect it has been stated above that, during the period from 12 October 1973 to 21 November 1974, the date of the judgment of the Court in Case 1/74, the applicant,by persisting in his request for termination of service under the specially favourable conditions provided for in Regulation (EEC) No 2530/72, cast doubt on the seriousness of his request for reinstatement.

JUDGMENT OF 27. 10. 1977 — ­ JOINED CASES 126/75. 34 AND 92/76

21 Furthermore, the applicant's reply to the Commission's offer of 1 March 1976 and to the decision of 29 July 1976 was to contest the validity of those acts and to refuse to return to duty in the service of the Commission although it would have been permissible, and quite enough to protect his rights, for him to accept the post offered to him, without prejudice to his setting in motion the procedures provided for in the Staff Regulations in order to test the

24 The course of events, viewed as a whole, accordingly makes it clear that the

applicant's conduct helped so much to create and prolong the difficulties in the way of his reinstatement that the Commission cannot be held responsible for the non-material damage which the applicant claims to have suffered.

25 Nevertheless, during the intermediate period between the date on which in accordance with Article 40 of the Staff Regulations reinstatement became possible as a result of the applicant's request for reinstatement of 6 January 1975, and 1 March 1976, the date of the Commission's first offer, the

Commission failed to comply with the duty imposed upon it by Article 40 (4)

(d) of the Staff Regulations.

26 As far as this period is concerned therefore it must be determined whether, as the applicant claims, he has suffered pecuniary damage in connexion with the advancement of his career.

interests of the service.

31 These applications cannot be upheld since the applicant's service has not

been terminated pursuant to any of the provisions mentioned.

32 Accordingly, the applications made by the applicant must be rejected in their entirety.

33 In the circumstances, there is no need to consider the preliminary objections

raised by the Commission.

On those grounds,

THE COURT (Second Chamber)

hereby:

1. Dismisses the applications in the joined cases;

2. Orders each party to pay its own costs.

Sørensen Pescatore Mackenzie Stuart

1. The substance of the dispute between Mr Robert Giry and the The said provision lays down that an

Commission, which has given rise to the official granted, at his own request, 'must'

three Joined Cases 126/75, 34/76 and unpaid leave on personal grounds

92/76, is concerned with the following on its expiry 'be reinstated in the first question: if, despite the provisions of post corresponding to his grade which

Article 40 (4) (d) of the Staff Regulations falls vacant in his category or service, of Officials, an official has not, after the provided that he satisfies the require­

expiry of a period of leave, been ments for that post'.