C-145/80
ECLI:EU:C:1981:176
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J U D G M E N T OF T H E C O U R T (SECOND CHAMBER) OF 14 JULY 1981 1
María Mascetti ν Commission of the European Communities
"Official — Absence from duty — Criminal proceedings"
Case 145/80
Officials — Applications — Act adversely affecting an official — Criteria — Statement of the grounds on which the act is based (StaffRegulations of Officials, Arts 90 and 91)
Within the framework of a continuing letter from the administration stating the discussion an official is entitled not to grounds on which that decision is based. regard an exchange of views as a for Only at that time does he become bound mal decision on the part of the to lodge a complaint within the period administration until he receives the first laid down by the Staff Regulations.
In Case 145/80
MARIA MASCETTI, an official of the European Communities, assisted and represented by C. Ribolzi, Advocate at the Milan Bar, with an address for service in Luxembourg at the Chambers of V. Biel, 18 A, Rue des Glacis, applicant, ν
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by O. Montalto, a member of its Legal Department, acting as Agent, assisted by P. De Caterini, Advocate at the Rome Bar, with an address for service in Luxembourg at the office of its Legal Adviser, M. Cervino, Jean Monnet Building, Kirchberg,
defendant, 1 — Language of the Case: Italian.
JUDGMENT OF 14. 7. 1981 — CASE 145/80
APPLICATION under Article 91 of the Staff Regulations of Officials and an objection by the defendant that it is inadmissible,
T H E C O U R T (Second Chamber)
composed of: P. Pescatore, President of Chamber, O. Due and A. Chloros, Judges,
Advocate General: F. Capotorti Registrar: H. A. Rühi, Principal Administrator
gives the following
JUDGMENT
Facts and Issues
The facts of the case, the course of the an alleged political offence, the procedure, the conclusions and the Administration and Personnel Division submissions and arguments of the parties of the Joint Research Centre notified her may be summarized as follows: on 9 January 1975, pursuant to Article 60 of the Staff Regulations of Officials (applicable by analogy to members of the establishment staff) that her absence was I — Facts and procedure unauthorized and suspended payment of her remuneration.
1. On 1 March 1961 the applicant was By an application of 22 December 1974, recruited as a member of the submitted by the applicant's Counsel to establishment staff, holding the post of the Joint Research Centre on 30 January principal secretary at the Ispra Joint 1975, the applicant requested unpaid Research Centre. She was absent from leave on personal grounds in accordance work from 18 November 1974 but the with Article 40 of the Staff Regulations. period until 14 December 1974 was, following further correspondence, set off On 20 February 1975 the Directorate of against her remaining annual leave for the Joint Research Centre rejected the 1974. After a warrant for the applicant's application on the grounds that the arrest was issued on the latter date for reasons given by the applicant were not
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included among those on the basis of ruling be given with regard both to the which leave on personal grounds might contractual aspect (signature of the be granted. At the same time the proposed contract) and to remuneration. applicant was invited to attend personally On 15 February 1978 the Director- at Ispra to be heard there in accordance General informed the applicant that she with Article 87 of the Staff Regulations could enter into the contract as soon as with a view to the commencement of she was in a position to report for work. disciplinary proceedings.
On 15 November 1978 she was further Such proceedings were never initiated. informed that "the social security What happened was that the applicant insurance premiums payable to the first filed a complaint with the Istituto Nazionale della Previdenza Commission against the refusal to grant Sociale and the Istituto Nazionale per leave and then, the complaint having l'Assicurazione contro le Malattie at been rejected, she brought an application Varese had been paid until 31 December before the Court. By its judgment of 16 1974". December 1976 (Case 2/76 [1976] ECR 1975), the Court rejected the application on the twofold ground that in this area The applicant was acquitted on the the administration has a very extensive charge concerning the above-mentioned power of appraisal and that the offence by a judgment of 14 July 1978 procedure of granting leave on personal and she resumed work at Ispra on 6 grounds was not an appropriate means November 1978, even before the of resolving the problem in relation to judgment became res judicata. the Staff Regulations in that case.
After her return to Ispra a contract was By a letter of 23 March 1977 the offered to her which she signed on 30 Director of the Ispra Joint Research November 1978, Article 3 thereof being Centre invited the applicant to enter into worded as follows: a temporary servant's contract following the introduction of the new conditions of employment of personnel paid out of " T h e servant shall be assigned to research appropriations, which had Category C, Grade 1, Step 6. Seniority entered into force on 30 October 1976. in the grade shall date from 1 December The contract submitted to the applicant 1978. Seniority in the step shall date provided that, subject to "any other from 1 September 1977." decision relating to (her) present absence from duty", she would be assigned " t o Category C, Grade 1, Step 7, with effect The applicant contested this clause and from 30 October 1976". According to on 26 March. 1979 she was told that the that letter, the applicant had a period of contract would be "redrafted to specify six months in which to accept the offer. the Grade C 1/7 which had been offered She accepted within the stipulated period (to her) in the note of 23 March 1977". but stated that she was unable to go to The contract which followed, signed by Ispra to sign the contract. the applicant on 12 April 1979, back dated her seniority in the grade to 30 October 1976. However, her seniority in By a letter of 14 November 1977 the the new step dated from 1 November applicant requested inter alia that a clear 1977.
JUDGMENT OF 14. 7. 1981 — CASE 145/80
On 26 May 1979 the applicant lodged a trarily suspended after 31 December written protest on this point and by a 1974 [letter (from the Commission) note of 11 July from the Administration of 15 November 1978] be paid in and Personnel Division she was informed full; "that the competent authorities at head office had been approached for their — That the shortfall of her severance opinion." grant to which (she) was entitled as member of the establishment staff On 10 August 1979 the administration and which had been calculated only wrote the applicant a letter stating: up to 31 December 1974 should be paid (to her); "Further to my note of 11 July 1979 and in reply to your memo 12/136/79 of 25 — That (her) pension rights, which May 1979 I regret to inform you that I shoulds be based on the full duration cannot confirm your seniority in Step 7 of (her) service from the retroactive of Grade C 1. effective date of (her) temporary servant's contract, should not be In fact, the Legal Department considers reduced in any way." that the seniority in the step acquired as at 30 October 1976 could only start to run again from the effective resumption Having received no reply, on 13 June of your duty, that is to say in December 1980 the applicant brought this action. 1978."
Following a further note from the 2. Referring in her application to her applicant, the Ispra administration sent letter of 7 November 1979, the applicant her the relevant note from the Legal claims that the Court should: Department on 2 October 1979. — "Annul the decision whereby the On 7 November 1979 the applicant sent Commission refused to regard the a letter to the head of the Administration period of (her) enforced absence as a and Personnel Division in which she period of service for all purposes; requested : — Declare that the Commission is — "That (her) career record as a bound to reinstate the applicant in member of the establishment staff her career and, consequently, to and as temporary servant be fully restore her financial rights, which reinstated, without any break in have already been specified in the continuity and with the benefit of all complaint." the two-yearly steps, as granted to (her) colleagues of the same category; 3. The Commission raised an objection of inadmissibility on the ground that the — That the salary which had accrued application was lodged out of time and during (her) absence and which was submitted that the Court should : due (to her) following reinstatement of her career, as requested in the — Dismiss the application as inad- preceding paragraph, be paid (to her) missible, giving its decision on a in full; procedural issue in accordance with Article 91 of the Rules of Procedure; — That the insurance contributions payment of which had been arbi- — Order the applicant to pay the costs.
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4. In her reply to the objection of confirmations of the decision contained inadmissibility, the applicant submits that in the contract. the Court should: Moreover it contends that the — Dismiss the objection of inad inadmissibility of the main head of claim missibility outright, and in the application implies the inadmis sibility of all the other heads, even if they — alternatively, deal with the question were submitted on the basis of the of admissibility at the same time as unlimited jurisdiction of the Court and the substance of the case. related to a dispute of a pecuniary nature, since the other heads are closely 5. On hearing the report of the Judge- connected with the contested act, namely Rapporteur and the views of the the contract. Advocate General, the Court (Second Quite apart from this view, the other Chamber) decided to open the oral heads or claim are still inadmissible for procedure on the objection of other reasons. inadmissibility without any preparatory inquiry. The request that, for the purpose of calculating the pension, the period commencing upon the entry into force of II — Submissions and arguments the new system (March 1976) should be of the parties on the taken into account was submitted for the a d m i s s i b i l i t y of t h e a p p l i first time on 7 November 1979 and, not cation having been the subject of a formal complaint, is inadmissible. 1. The Commission takes the view that The requests for reinstatement of the the act adversely affecting the applicant applicant in her career, payment of is the original contract communicated to remuneration and unpaid social security her by letter in April 1979, which she contributions are likewise inadmissible. signed on 12 April, and that she should With regard to the remuneration, have lodged her appeal against that act. suspension thereof was notified to the applicant by letter of 9 January 1975 and In the first place, it maintains that the no objection or application to the Court very fact of signature of the contract was made in relation thereto. Fur constitutes a form af acquiescence to the thermore, the applicant's letter of 14 administrative decision expressed in the November 1977 could not be regarded contract. If that argument cannot be as anything other than a complaint, upheld, the Commission contends that which was not followed by an the applicant's letter of 26 May 1979 application to the Court, and with regard should then be regarded as a complaint to which the administration gave its as provided for in the Staff Regulations decision in its letters of 15 February and and consequently that the application 15 November 1978. should have been lodged no later than 26 December following the implied decision rejecting her complaint. 2. The applicant asserts in the first place that on resuming her duty on 6 It contends that the administration's November 1978 she found herself in the letters of 10 August and 2 October 1979 incongruous and unreal situation of a did not constitute an explicit rejection member of the establishment staff and and could not cause the periods to start that she was anxious to obtain formal to run afresh, since they were mere confirmation of the post of temporary
JUDGMENT OF 14. 7. 1981 — CASE 145/80
servant which had been offered to her With regard to the inadmissibility of the and which she had accepted. other heads of claim, the applicant states that she raised these questions on several She therefore had no choice other than occasions but was unable to proceed to sign the first contract, while at the with her claims because of her absence same time expressing her disapproval of from Italy. Her claims cannot therefore its terms. Since she found the second be rejected as being out of time, having contract was also unsatisfactory, she regard also to the fact that per position complained orally and gave her views in today is totally different from her detail in the note of 26 May 1979, which position during the period 1974 to 1978: gave rise to the decision contained in the she is no longer an official accused of a letter of 10 August 1979. It was against political offence but an official who that decision that the complaint of 7 wishes to safeguard her rights after November 1979 was lodged within the having been acquitted on all charges. prescribed period.
It is clear from these facts that, in the first place, it is meaningless to speak about acquiescence with regard to III — Oral p r o c e d u r e signature of the contracts.
In the second place, it is incontestable At the sitting on 7 May 1981 the that the administration acknowledged applicant, represented by C. Ribolzi, and receipt of the observations made by the the Commission, represented by O. applicant after signature of the second Montako, acting as Agent, assisted by contract, that it reserved its decision, P. De Caterini, presented oral argument. consulted the Legal Department and notified the final result, namely the act adversely affecting the applicant, in the The Advocate General delivered his note of 10 August 1979. opinion on 18 June 1981.
Decision
1 By an application lodged at the C o u r t Registry o n 13 J u n e 1980 Miss M a r i a Mascetti, a t e m p o r a r y servant at the Ispra Joint Research C e n t r e ( J N R C ) b r o u g h t an action seeking on the o n e h a n d a n n u l m e n t of the decision of the Commission refusing to regard the period of absence of the applicant between D e c e m b e r 1974 and N o v e m b e r 1978 as a period of e m p l o y m e n t for all purposes a n d o n the other h a n d a declaration t h a t the Commission is b o u n d to reinstate her in her career and consequently to restore her financial rights, t h a t is t o say, t o give her the benefit of all the t w o - y e a r l y steps, salary
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and insurance contributions which became due during her absence and also the shortfall of her severance grant as a member of the establishment staff and, finally, not to reduce her pension rights in any way on the grounds of her absence.
2 The Commission having raised an objection of inadmissibility the Court resolved to decide on the admissibility of these claims without going into the substance of the case.
3 The absence of the applicant, who was at that time a member of the establishment staff at the Ispra Joint Research Centre was due to the fact that she left Italy to evade execution of a warrant issued for her arrest in connexion with prosecution for a political offence. In January 1975 the Commission, considering the applicant's absence to be unjustified, suspended payment of her salary, relying on Article 60 of the Staff Regulations of Officials which are applicable by analogy to members of the establishment staff. Nevertheless, in March 1977, following a change in the conditions of employment of other servants, which discontinued the classification of member of the establishment staff, a temporary servant's contract was offered to the applicant, assigning her to Category C, Grade 1, Step 7, with effect from 30 October 1976. The applicant accepted that offer but difficulties were encountered regarding conclusion of the contract which were the subject of an exchange of correspondence which extended into 1977 and 1978. The applicant stated that she was not in a position to attend at Ispra for signature of the contract; at the same time she claimed payment of the sums due to her by reason of the termination of her contract as a member of the establishment staff, and also payment of arrears of salary and social security contributions which had fallen due since her salary was suspended. For its part the administration notified the applicant that the contract could be entered into as soon as she was in a position to report for work and that the amounts claimed by her remained suspended.
4 After her acquittal by the Corte di Assise, Rome, by judgment of 14 July 1978, the applicant resumed work on 6 November 1978. O n 30 November 1978 she signed a first temporary servant's contract which assigned her to Category C, Grade 1, Step 6, with seniority in her grade from 1 December
JUDGMENT OF 14. 7. 1981 — CASE 145/80
1978 and seniority in her step from 1 September 1977. She objected to those terms and the administration prepared a new contract. That contract, which was signed by the applicant in April 1979, back-dated her seniority in her grade to 30 October 1976 and specified assignment to Step 7, but only as from 1 November 1977. On 26 May 1979 the applicant objected in writing on the latter point. By a note from the Administration and Personnel Division of 11 July 1979 the applicant was informed that the competent authorities at the head office of the Commission had been approached for an opinion. Finally, by letter of 10 August 1979 the administration confirmed seniority in Step 7 as from 1 November 1977, making reference to the opinion from the Legal Department according to which seniority in step acquired as at 30 October 1976 could only start to run again as from the effective resumption of duty. A copy of that opinion was sent to the applicant by letter of 2 October 1979.
5 On 7 November 1979 the applicant sent the administration a further letter which contained all the claims at issue. Since no reply was given to that note, she brought the present action.
6 It appears from the foregoing that it is appropriate to distinguish, for an assessment of their admissibility, between the claim relating to seniority in the step referred to in the letter of 26 May and the other claims which were submitted for the first time within the framework of these proceedings in the letter of 7 November 1979.
7 With regard to the first claim, the Commission contends in the first place that by signing the second contract of employment without making any objection or reservation the applicant acquiesced in all the terms of the contract and consequently is precluded from contesting them subsequently.
8 That view cannot be upheld in this case, having regard to the history of this action and the applicant's very special position vis-à-vis the administration. When she signed the first contract the applicant, who had resumed her work without the benefit of any contract whatsoever, was extremely concerned to
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regularize her situation, even though she did not find the conditions of the contract offered wholly satisfactory. Likewise, the fact cannot be held against her that she signed the second contract which, in relation to the very point at issue, represented a significant improvement over the first one.
9 In the second place, the Commission argues that submission of the second contract to the applicant for signature constituted notification of a final decision on the part of the administration, which had taken into account her objections to the first contract. It is therefore from that date that the pre scribed period for lodgment of a complaint should be reckoned. Even if the letter of 26 May 1979 were to be classed as a complaint, the legal action commenced on 13 June 1980 was out of time. The letter of 10 August 1979 was either a decision on that complaint or a mere act of confirmation which cannot cause the prescribed periods to start to run again.
10 These arguments must also be rejected in this case. The terms of the two contracts relating to the applicant's seniority are to be viewed against the background of a continuing discussion initiated by the first offer of a temporary servant's contract in March 1977 and followed by the applicant's letter of 26 May 1979 and also by the administration's note of 11 July 1979 which notified the applicant that an opinion was being sought from the competent authorities. Neither that note nor the subsequent letter of 10 August 1979 gave any indication whatsoever that the administration had classed the applicant's letter of 26 May 1979 as a complaint. In the circum stances the applicant was entitled to regard the letter of 10 August 1979, which was the first to give any reasons, as the administration's formal decision against which an objection ought to be lodged. In this regard the letter of 7 November 1979 qualifies as a complaint. Since that complaint and the application of 13 June 1980 were lodged within the prescribed periods, the application is admissible with regard to the claim relating to seniority in the step.
JUDGMENT OF 14. 7. 1981 — CASE 145/80
1 1 With regard to the other heads of claim referring to the payment of salary, pension rights, social security contributions and compensation for termi- nation of the employment contract as a member of the establishment staff, the Commission stresses that all these claims were dealt with in decisions by the administration during the applicant's absence and that the applicant submitted no complaint or appeal against such decisions within the pre- scribed periods. The applicant states in reply that she was unable to proceed with her claims during her absence from Italy and that her subsequent acquittal should be regarded as a supervening event which changed her situation entirely.
12 In this regard it is appropriate to point out that, even if the acquittal constituted a supervening event capable of causing the prescribed periods to start to run afresh and the applicant were thus entitled to ask the appointing authority to reconsider her situation in the light of the new circumstances, it would nevertheless be incumbent upon her to make such a request as soon as possible and in any case within the three months following her resumption of duty. Since the applicant allowed a year to elapse before making the claims contained in her letter of 7 November 1979, it is clear that those claims were submitted out of time and therefore in so far as they are concerned the application must be dismissed as inadmissible.
On those grounds,
T H E C O U R T (Second Chamber)
before giving judgment on the substance of the case,
hereby:
1. Dismisses the objection of inadmissibility as regards the application regarding determination of the applicant's seniority and directs that the proceedings shall continue with regard to the substance of the action;
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2. Dismisses the application as inadmissible with regard to the other issues;
3. Orders that the costs be reserved.
Pescatore Due Chloros
Delivered in o p e n c o u r t in L u x e m b o u r g o n 14 July 1981.
A. V a n H o u t t e P. P e s c a t o r e Registrar President of the Second Chamber
OPINION OF MR ADVOCATE GENERAL CAPOTORTI DELIVERED ON 18 JUNE 1981 1
Mr President, The applicant, Miss Maria Mascetti, who Members of the Court, had been employed by the Ispra Joint Research Centre since 1961 as a member of the establishment staff, left the service 1. The application originating this case on 18 November 1974 because criminal is divided into a series of claims relating proceedings had been started against her essentially to classification, payment of by the Italian judicial authorities for an arrears of remuneration, recognition of alleged political offence and she sought pension rights and regularization of the to evade execution of a warrant which position with regard to insurance, made had been issued for her arrest. The by a servant against the Commission. For administration took the view that her the moment, however, it is solely a absence was legitimate for the period question of deciding whether the from 18 November to 14 December objections of inadmissibility raised by the 1974, in view of her remaining annual defendant are well founded; accordingly leave entitlement for 1974; but with it is with that problem that I shall respect to the period from 14 December concern myself in this opinion. 1974 onwards it regarded the absence as unjustified and therefore (by a letter of 9 January 1975) it suspended payment of It is appropriate to start by summarizing remuneration. In a letter sent to the the facts or the case. Establishment Directorate on 30 January
1 — Translated from the Italian.