C-108/79

JUDGMENT OF 5. 6. 1980 — CASE 108/79

had to the exigencies of the public time within which to take up duty, his service rather than to the personal refusal or failure to take the post up convenience of officials. Consequently on the date which has been fixed may when the competent authority, in be treated as a refusal, which is not pursuance of Article 40 (4) (d) of the inconsistent with a purely formal Staff Regulations, offers a post to an acceptance of the post which is not official, allowing him a reasonable subsequently put into effect.

In Case 108/79

SALVATORE BELFIORE, of 41 Cirrincione, Palermo, represented by G. Vander- sanden, of the Brussels Bar, 341 Avenue Louise, Brussels, with an address for service in Luxembourg at the Chambers of E. Arendt, Advocate, 34 Rue Philippe II, applicant,

ν

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Denise Sorasio, a member of its Legal Department, acting as Agent, assisted by Robert Andersen, of the Brussels Bar, 214 Avenue Montjoie, Brussels, with an address for service in Luxembourg at the office of its Legal Adviser, M. Cervino, Jean Monnet Building, Kirchberg, defendant,

JUDGMENT

Facts and Issues

The facts of the case and the arguments On 17 November 1975 the Director- put forward by the parties in the course General of Personnel and Administration of the written procedure may be informed the applicant that he could not summarized as follows: hold the post vacant for so long and suggested that the applicant should take up his duties again on 1 February 1976. He added that, if the applicant did not I — F a c t s and w r i t t e n p r o c e d u r e reply before 30 November 1975, the Commission would regard its offer as having been refused and that that was "declining the first post offered" within The applicant, Salvatore Rosario the meaning of Article 40 (4) (d) of the Belfiore, an Italian national, was Staff Regulations. employed on 10 January 1972 as an Administrator in Grade A 7 Step 2 of the Directorate-General for Personnel and Administration, Personnel Directorate, in In a letter of 24 November 1975 the the Individual Rights and Privileges applicant refused to accept the suggested Division at Brussels and was established date and denied that his conduct could on 10 July 1972 at the end of his be compared to "declining the first post probationary period. offered". The Commission adhered to its point of view.

On 9 December 1976, as the applicant parties. Both parties were also invited to had still not appeared, the Director- give an explanation of any delay in General of Personnel and Administration bringing the action. gave him notice in writing that consideration was being given to initiating in his case the procedure for II — C o n c l u s i o n s of t h e p a r t i e s compulsory resignation as provided for in Article 40 in fine of the Staff Regu- lations. The applicant claims that the Court should On 20 October 1977 Mr Tugendhat, a Member of the Commission, informed (a) Annul the Commission's decision of the applicant that the Joint Committee 12 June 1978 requiring him to had concurred in the proposal that he resign, should be required to resign; he fixed 3 November as the date when the (b) Order the Commission to pay the applicant was to be heard by the costs. Director-General of Personnel and Administration. After several sudden changes the applicant was finally heard The defendant contends that the Court on 22 March 1978 by the Director of should Personnel and, on 12 June 1978, the appointing authority decided to require (a) Dismiss the application as the applicant to resign and notified him inadmissible and in any event as of that decision by a letter dated 15 June unfounded; 1978. (c) Order the applicant to pay the costs. On 11 September 1968 the applicant submitted a complaint within the meaning of Article 90 (2) of the Staff Regulations against the decision III — Submissions and argu- requiring him to resign. The complaint m e n t s of the p a r t i e s was rejected by a letter from Mr Tugendhat dated 12 February 1979. On A — Admissibility 31 May 1979 the applicant reported to the Commission that he had received that letter only on 5 April 1979 and he The applicant submits in his application put forward further arguments against that the application is admissible because the decision which had been taken and it was lodged within three months after asked that his case be reconsidered. By receipt by him of the letter of 12 an application lodged at the Court February 1979 notifying him of the Registry on 4 July 1979 the applicant Commission's decision rejecting his brought this action for the annulment of complaint. the decision requiring him to resign. The defendant contends in its defence On hearing the report of the Judge- that the application is inadmissible. It Rapporteur and the views of the submits that the applicant has not Advocate General the Court (Third submitted a complaint under Article 90 Chamber) decided to open the oral (2) of the Staff Regulations, or a fortiori procedure without holding a preparatory lodged an application at the Court of inquiry. It nevertheless requested the Justice against the decisions notified by Commission to produce the originals of the letters of 29 December 1975 and certain letters exchanged between the 9 December 1976 in which the

Since these decisions have become final their legality can no longer be called in The defendant in its rejoinder submits question either within the framework of that, although compulsory resignation is a complaint through official channels conditional on a preliminary finding by against the decision requiring him to the competent authority that the official resign of 12 June 1978 or of an has refused to accept two offers of application for the annulment of that employment, it does not follow that the decision. The application is based solely decisions recording these refusals cannot on the illegality allegedly committed by be the subject of a complaint and thus the Commission in the belief that it had of an application for annulment to find that there had been two refusals independently of the decision for within the meaning of Article 40 in fine compulsory resignation. In this of the Staff Regulations. connexion it is sufficient that they are acts capable of adversely affecting an official. That is in fact the position since, The applicant in his reply states that the following the finding that the first offer letters of 29 December 1975 and of 7 has been refused, the appointing December 1976 are, in the context of the authority may, if a second offer is procedure prescribed by Article 40 (4) refused, initiate the procedure for (d) of the Staff Regulations, only the compulsory resignation at any time. necessary acts preparatory to the Consequently the official has an existing initiation of the procedure for and immediate interest in preventing compulsory resignation as laid down by these conditions from arising. Article 49 of the Staff Regulations. Such acts do not in themselves constitute the damage which the applicant has suffered and they are not definitive because the The fact that Article 49 of the Staff initiation of the procedure for Regulations refers to Article 40 thereof is compulsory resignation is a matter for moreover irrelevant since its only the discretion of the appointing purpose is to state the circumstances in authority. As long as such a procedure which the decision for compulsory has not been set in motion the resignation may be taken. appointing authority is free to make the person concerned fresh offers of employment. It is only to the extent to which it decides to have recourse to the The defendant maintains that the procedure for compulsory resignation delayed receipt by the applicant of the that it takes a decision adversely letter of 12 February 1979 requiring him affecting an official which might be to resign is due to his negligence, for he challenged. notified his change of address only by a letter which the defendant received on 13 February 1979 without apparently Furthermore the fact that Article 49 of making any arrangements to have his the Staff Regulations, which governs the mail redirected to his new address.

Β — The substance lations twice, on the one hand, by failing for two years to inform him of the first vacant post which might have suited him 1. The application and, on the other hand, by initiating the procedure for compulsory resignation without the applicant's refusing to accept According to the applicant, although the the posts offered him. appointing authority has a discretion when applying Article 40 (4) (d) it is advisable to consider whether the (b) Mistake of fact decision has not been vitiated by a wrong interpretation (mistake of law) or by a misapplication (mistake of fact) of this According to the applicant the well legal provision and whether it has not established case-law on the civil service been vitiated by misuse of powers. law of such Member States as are acquainted with compulsory resignation lays down that the administrative In this case the Commission's decision is authority cannot merely in these cases vitiated at one and the same time by give a general statement of the grounds mistake of law, mistake of fact and by upon which its decisions are founded but misuse of powers. must base its decisions on legally admissible grounds arising out of the decision itself or of the administration's (a) Mistake of law file (Belgian Conseil d'État, 10 October 1978, No 19.177, Wastiels, R.A.C.E., 1978, p. 1011). Having regard to the The applicant stresses that he has at no expressly stated willingness of the time refused to resume work in the applicant to accept the posts offered, the service; on the contrary he specifically defendant, before considering whether and repeatedly expressed his firm and there had been any refusal, ought to definite intention to rejoin the have examined the genuineness of the Commission whereas the Commission on explanations put forward by the its part for nearly two years (1 January applicant and it could not then have 1974 to 1 October 1975) failed to carry decided without further ado that the out its obligation to afford him the explanations relied on were inaccurate or opportunity to be reinstated in a post in unjustified. The applicant quotes, in this his category and grade. His attitude to connexion, the judgment of the Belgian the two offers of employment ultimately Conseil d'État of 20 October 1966, No made to him on 1 October 1975 and 12.035, Bracke, R.A.C.E., 1966, p. 838. 16 September 1976 can in no way be compared to a refusal within the meaning of Article 40, because each time However, the contested decision does he expressly accepted the post offered not even refer to the existence of any and was merely prevented from resuming explanation put forward by the applicant his duties within the periods which the and a fortiori does not proceed to defendant's administration purported to examine its validity. impose on him.

(c) Misuse of powers According to the defendant, although By requiring him to resign without the applicant did not formally refuse the producing evidence that he had refused two posts offered to him, the conditions the posts which he had been offered the accompanying his acceptance as regards defendant used its powers for purposes the date at which he was to resume his other than those for which they were duties were such that his reinstatement in intended. It has in fact removed the the post offered became impossible applicant from the service without having taking account of the objective complied with the procedures and legal requirements of the service, whereas, on rules to which such a penalty must by its the other hand, the periods originally very nature conform. provided for, which were to begin with in themselves reasonable, had been extended having regard to the personal 2. The defence circumstances which the applicant mentioned.

According to the defendant there has been no mistake of law, mistake of fact or misuse of powers. (b) Mistake of fact

(a) Mistake of law Under this head the defendant points out first that there are good reasons for not placing a decision requiring an official to Although it is true that the Commission resign provided for by Article 40 (4) (d) as from 1 January 1974, the date when and a disciplinary measure on the same

JUDGMENT OF 5. 6. 1980 — CASE 108/79

footing. Compulsory resignation is only account to the extent to which it tallies the exercise of the right which the with the exigencies of the service. appointing authority is acknowledged to have to break the legal link created by the appointment of the official when, on With regard to the first post offered to the expiry of leave on personal grounds, the applicant the defendant considers he twice declines a post permitting him that in any case it gave him a reasonable to be reinstated. period which was extended several times.

As far as concerns the applicant's 3. Reply criticism of the fact that the defendant regarded his conduct as a refusal the latter replies that its action in doing so The applicant in his reply answers the was in no way wrongful but entirely Commission's arguments in the following justified. The reinstatement of officials at way: the end of leave on personal grounds has not been provided for solely in the interest of the official himself but also, (a) Mistake of law and even primarily, in the interests of the service. The granting of leave on personal grounds is an exceptional He first points out that where, because measure limited in time and an official of the Commission's concern to reinstate is normally in active employment. officials in the department where they Consequently it is for the administrative originally worked, the reinstatement authority to fix the reinstatement period period is extended, as in this case, by in accordance with the exigencies of the nearly two years there is nothing to stop service and not for the official to do so the Commission from informing the having regard to his personal con- official concerned of the position. Fur- venience, which must only be taken into thermore this attitude is incompatible

BELFIORE ν COMMISSION

JUDGMENT OF 5. 6. 1980 — CASE 108/79

decision requiring him to resign. It and 1 October 1975, when he received follows that it used the power conferred the first offer of a post, is evidence of upon it by Article 40 (4) (d) of the Staff "lack of ordinary vigilance" on his part Regulations with a view to bringing to (judgment of 1 July 1976 in Case 58/75, an end the performace of his duties by a Jacques Henri Sergy ν Commission of the decision to remove him from the service. European Communities [1976] ECR 1139). The applicant's lack of interest in some 30 vacancy notices in his career bracket which he received between 21 July 1976 and 6 September 1976 is also 4. Rejoinder evidence that he was in no hurry to be reinstated, as moreover are his successive applications for an extension of the time- limits as well as the general and changing (a) Mistake of law nature of the personal and family reasons he put forward for these purposes.

BELFIORE ν COMMISSION

evidence in support of his attitude. But as circumstances preventing his departure it happened he preferred to keep silent. and did not even give an explanation later. (b) Mistake of fact It is impossible to maintain seriously in such circumstances that it was for the Because of the particularism of the law defendant to take the initiative in asking of the Member States in this field which the applicant why he did not present the defendant illustrates by comparing himself for work on 1 December 1976 or the French and Italian civil service law, it on the following days and in checking denies that there is a general legal the veracity as well as the relevance of principle, common to the Member his reasons. States, that it should itself have taken the initiative in making certain that the (c) Misuse of powers applicant did not have a good excuse for The defendant stresses again that the his absence. applicant merely states that there has The defendant is, on the contrary, of the been misuse of powers without opinion that it has shown the greatest producing a scintilla of evidence. consideration for the applicant and his personal situation, especially as regards the second offer of a post. After the IV — Oral procedure defendant had agreed to bring forward the original date when the applicant was The applicant, represented by A. Van- to take up his duties again from 3 Nov­ dencasteele of the Brussels Bar, and the ember to 1 December 1976 and after the Commission of the European Communi­ applicant had signified that he accepted ties, represented by Denise Sorasio, a that date and had been warned that he member of its Legal Department, assisted would not be allowed a further extension by R. Andersen of the Brussels Bar, except in the event of unforeseeable presented oral argument at the sitting on circumstances or of force majeure duly 6 March 1980. Following the request of established, he merely sent, on the day the Court the parties produced the before the date fixed for his originals and the envelopes of certain reinstatement, a telegram in which he letters which had passed between them. simply referred, without giving any The Advocate General delivered his further particulars, to unforeseen opinion at the sitting on 24 April 1980.

4 The decision of 12 June 1978 by which the applicant was required to resign was notified to him in a letter sent by post on 15 June 1978 to his address: 14 Via O. Sozzi, Palermo. Against that decision he lodged a complaint dated 11 September 1978 which was registered at the Secretariat of the Commission on 9 October 1978. The complaint was rejected — after the expiry of the period of four months imposed on the competent authority by Article 90 (2) of the Staff Regulations — by a letter dated 12 February 1979 and sent by post to the applicant at the above-mentioned address.

The action for annulment was brought on 4 July 1979, that is to say nearly five months after the date when the complaint was rejected, although under Article 91 of the Staff Regulations it must be commenced within the period of three months beginning on the date of notification of the decision taken in response to the complaint.

5 On this point the applicant points out that he did not receive the letter in question until 5 April 1979 and he attributes this delay to the negligence of the Commission which sent this letter to an address at which he was no longer living when it could and should have known his new address, 41 Via Cirrincione, Palermo. He states that he was not therefore notified until 5 April 1979 with the result that the action has been brought within the prescribed period and is admissible.

The applicant, in support of this reasoning, points out that his complaint of 11 September 1978 was sent by registered letter with a form for acknowledgement of receipt which mentioned his new address and that that address was also endorsed on the back of the envelope of the letter.

8 The Commission relies on a further ground in support of the inadmissibility of the claim, namely that the contested decision is only the consequence of the two preceding decisions by which the competent authority recorded its finding under Article 40 (4) (d) of the Staff Regulations, that the applicant had declined to accept the first and second post offered to him with a view to his reinstatement at the end of his leave on personal grounds. Since the applicant did not lodge a complaint or bring an action against those decisions, the defendant claims that they should be regarded as definitive and the possibility that they might be illegal may no longer be relied on to support an application for the annulment of his compulsory resignation.

9 This claim must be rejected. Under Article 40 (4) (d) of the Staff Regulations an official who, on the expiry of leave on personal grounds, twice declines posts offered to him may be required to resign. Consequently, the documents

JUDGMENT OF 5. 6. 1980 — CASE 108/79

recording these refusals — in so far as their scope is other than purely declaratory — are only decisions preparatory to the decision requiring the applicant to resign, so that the possibility that they may be illegal may be relied on in an action brought against such resignation.

10 It follows from the foregoing considerations that the application must be held to be admissible.

The substance

1 4 This submission must be rejected. The Court file shows that the Commission first offered the applicant a post by a letter dated 1 October 1975 and asked him to fix a date "as soon as possible" for taking up his duties again. The applicant suggested the month of June 1976, that is, a period of eight months, and the Commission was fully justified, having regard to the exigencies of the service, in refusing to agree to a period which could under no circumstances be regarded as reasonable and bonafide. The Commission fixed the date of resumption of duty as 1 February 1976 (four months) but he refused to resume work on that date. On 16 September 1976 the Commission offered him a second post and fixed the date for starting work at 3 November 1976. The applicant accepted the post but asked to be allowed to negotiate with regard to the date of his return. The Commission, showing great consideration, acceded to this request and after the applicant had arranged for postponement of a first interview he agreed to take up his duties again on 1 December 1976. On 30 November 1976 he sent a telegram stating that "unforeseen circumstances" prevented him from leaving.

15 When a vacant post in an administration is filled regard must be had to the exigencies of the public service rather than to the personal convenience of officials. Consequently if the time-limits which the official concerned is allowed are reasonable, which they clearly were in this case, his refusal or failure to take up a post on the date which has been fixed may rightly be treated by the competent authority as a refusal, which is not inconsistent with a purely formal acceptance of the post which is not subsequently put into effect.

However, under Article 70 of the Rules of Procedure, in proceedings by servants of the Communities institutions are to bear their own costs, without prejudice to the second paragraph of Article 69 (3) of the rules.

Having regard to the circumstances of this case the Court is of the opinion that the action in respect of which the Commission has had to incur costs is vexatious and that they must be borne by the applicant. The applicant must therefore be ordered to pay the whole of the costs.

On those grounds,

T H E COURT (Third Chamber)

hereby:

1. Dismisses the application;

Mr President, attributes that delay solely to the Members of the Court, negligence of the defendant institution. The latter sent it to him at his former address even though, according to Mr Belfiore, it was or ought to have been The opinion which I deliver in this case aware that he had changed his residence. will be extremely short, because Mr Belfiore's application appears to me to be manifestly inadmissible since it was Having regard to the facts of this case lodged out of time. this assertion appears to be very much open to question. Mr Belfiore only informed the Commission officially of Whereas the express decision of the his change of address by a letter of 5 Commission rejecting the applicant's February 1979 registered by the complaint is dated 12 February 1979 the administration on 13 February 1979, that application now before the Court was is to say the day after that on which the not lodged until 4 July 1979. It is decision rejecting his complaint was sent therefore well outside the time-limit of to him. Consequently that letter cannot three months prescribed by Article 91 of be taken into consideration. the Staff Regulations. Before that the applicant, according to his own statements, merely wrote his It is true that Mr Belfiore maintains that new address on the back of the he did not receive the decision of 12 envelopes containing his letters of 11 February until 5 April and that he September 1978 and 23 October 1978. I — Translated from the French.