C-12/87

HEYL v COMMISSION

OPINION OF MR ADVOCATE GENERAL LENZ delivered on 9 March 1988 *

* Translated from the German.

OPINION OF MR LENZ —CASE 12/87

postponed to a later date but stated that she (2) order the defendant to reinstate her in herself would make contact. the first post corresponding to her grade which falls vacant in her category or service with effect from 5 January 1979 both in regard to seniority and grade and step and in regard to the pension 5. Almost two years later, on 28 May 1984, scheme; she was asked by the Commission in Ispra whether she wished to be reinstated in Ispra or somewhere else. She replied that rein­ statement in Ispra was no longer possible for her. On 15 October 1984 the second (3) order the defendant to pay her sums offer of employment (at Ispra) was made to equivalent to the remuneration which her to which she replied, on 28 October she would have received between 5 1984, that she no longer wished to be January 1979 and the actual date of her employed at Ispra and that she was in direct reinstatement less her net earned income contact with the Personnel Department in during that period, with interest at 8% Luxembourg. In the course of animated calculated from the day on which she correspondence about the validity of the should have been reinstated; two offers, the applicant stated in December 1984 (16 December) that because of her health it had become doubtful whether she would be fit for employment. (4) order the defendant to pay the costs.

6. By letter dated 4 June 1986 the applicant 8. The defendant contends that the Court was informed that the procedure for should dismiss the application. compulsory resignation was to be initiated. By letters dated 1 July and 6 September 1985 she objected to that step. On 25 March 1986, after hearing the views of the 9. Reference is made to the Report for the Joint Committee (14 November 1986), the Hearing for the rest of the facts and the appointing authority required the applicant arguments of the parties. to resign. On 18 June 1986 she lodged a complaint alleging inter alia that she had never refused the second offer and also that she had never been heard in the proceedings relating to her compulsory resignation. B — Assessment

11. The appointing authority thus has a discretion to require an official to resign if two valid offers of employment have been 13. The question therefore arises whether made to him and he rejects both of them. the offer was 'declined' by the applicant, The second paragraph of Article 49 of the within the meaning of Article 40 (4) (d) of Staff Regulations, which governs the Staff Regulations. Since the applicant compulsory resignation, requires the did not expressly indicate her acceptance or appointing authority, in addition to refusal, her answer must be deduced from consulting the Joint Committee, to hear the her conduct and in particular from the views of the official: correspondence produced.

15. Consequently, the administration rightly interpreted the applicant's silence as a refusal on her part. From the purely theor­ etical point of view, it is indeed possible, as 17. On 15 October 1984 a second offer of a matter of law, to accept an offer even employment was made to the applicant and without expressly declaring acceptance. was again for a post at Ispra. The validity of However, that does not release the acceptor that offer, however, is open to challenge in from the obligation to make his acceptance two respects. First, there is the question known in some way to the outside world. A whether the post offered corresponded to decision not to declare one's acceptance the applicant's career bracket and grade. cannot have the effect of dispensing with Secondly, it is questionable whether an offer the need to express one's intention to of employment at Ispra could have been accept. For if one wished to renounce the validly made at that time and whether the expression, in any form whatever, of one's Commission was not bound by its duty to intention to be legally bound, there would have regard to the applicant's interest and be attributed to legally indifferent conduct by the legitimate expectation which its own legal consequences which, in certain circum­ previous conduct had created to offer a post stances, would create legal relationships in Luxembourg. Finally, the applicant against the potential acceptor's will. objects that the post had already been advertised for 17 months before it was offered to her.

19. The offer of employment at Ispra made 20. The applicant gave her marriage to a in October 1984 could, however, be Luxembourger as a reason for reinstatement regarded as having been made in bad faith in Luxembourg. From that point of view as because it was known to the defendant since well, the defendant's duty to have regard to February 1982 that the applicant wished to her interests obliged it to consider rein­ be reinstated in Luxembourg. In principle, statement in Luxembourg. an official has a right to be reinstated only in the place of his or her employment and in the directorate-general to which he was attached. That does not, however, mean that every possibility of being reinstated in another place of employment is excluded. 21. Such requirements can, however, be Through its conduct the defendant made it considered only to the extent that they can appear that the legal position was that the in fact be met. According to the undisputed applicant was free to choose the place of her statements of the defendant's representative, reinstatement. For example, already in its no C 1 posts were available for staff in the letter of 3 April 1979 (Annex 8 to the period from 1982 to 1984 originally from application) it volunteered the advice that other places of employment. The defendant because of the limited number of vacancies cannot therefore be criticized for not having at other research centres the applicant offered a C 1 post in Luxembourg. should apply to the competent departments in Brussels and Luxembourg. In the standard letter of 18 March 1981 (Annex 9 to the application) it enquires whether the application for reinstatement relates only to Ispra or to other places of employment and 22. Moreover, any legal obligation arising whether notices of vacancies in other places out of the employer's duty to have regard to of employment of the Commission should the interests of its staff cannot be considered be sent. In the letter of 8 March 1982 separately from the official's conduct. As the (Annex 13 to the application) the applicant Court has often held, ' that duty reflects the was requested by the defendant to apply directly to the Commission in Luxembourg. 1 — Sec lhe judgment of 23 October 1986 in Case 321/85 Even in the letter of 28 May 1984 (Annex Hartmut Schwiering v Court of Auditors [1986] ECR 3199, parigraph 18; judgment of 28 May 1980 in Joined Cases 16 to the application) the applicant was 33 and 75/79 Richard Kuhner v Commission [1980] ECR again asked whether her application applied 1677, paragraph 22, and the judgment of 9 December 1982 in Case 191/81 Onno Plug v Commission [1982] ECR to reinstatement only in Ispra or to another 4229, paragraph 21.

balance between the mutual rights and be assumed that she should have accepted duties which the Staff Regulations have the offer within a period of two weeks. In created between the authorities and civil the mean time she had been informed servants. several times, in particular in the first offer and in the letter of 15 October 1984, of the possible consequences of a refusal. By the time she received the offer it must have been clear to the applicant that she no longer had a choice about the place of employment. In 23. The applicant first expressed her wish to spite of that, she did not accept the offer be reinstated in Luxembourg in February within the stipulated period. She simply 1982. The defendant's personnel department stated in her letter of 28 October 1984 in Luxembourg contacted the applicant by ' ... je n'envisage plus d'être réintégrée à telegram on 1 April 1982 to discuss an offer Ispra'. There followed correspondence of a post. In a telephone conversation of 2 about the validity of the offers in which the April 1982 the applicant stated that rein­ defendant repeatedly pointed out that it statement in Luxembourg was impossible in regarded them as valid and as having been the immediate future because of her definitely declined. In none of the letters did husband's employment. She expressed her the applicant state that she was willing defi­ interest in eventually being reinstated at the nitely to accept the offers. beginning of 1983, but said she would contact the Commission herself. In fact she did not do so, so that the situation for the administration was as follows; the relevant place of employment was Ispra. It was however known there that the applicant wished to be transferred to Luxembourg. In 25. In Case 108/79 2the Court held that a Luxembourg, on the other hand, the infor­ purely formal acceptance of a post which is mation was that resumption of employment not subsequently put into effect is to be was not to be considered until further notice treated as a refusal of the offer under so the matter was left in abeyance just as the Article 40 (4) of the Staff Regulations. applicant wished. When after two years the When a vacant post is filled, regard must be defendant took the initiative to obtain clari­ had to the exigencies of the public service fication as to whether the applicant still rather than to the personal convenience of wished to be reinstated no objection could officials. be raised to that step. Although the applicant replied that she no longer wished to be reinstated in Ispra, she did not state definitely that she wished to be reinstated in Luxembourg. In those circumstances, it was quite legitimate to put an end to the uncer­ tainty by making a second offer. The second offer of 15 October 1984 was therefore 26. The applicant considered that the properly made. second offer could not be valid since it was made to her 17 months after the notice of vacancy was published. That argument might support her case if she had accepted the offer without delay. As is known,

however, the applicant was no longer could not prevent the defendant from interested in returning to Ispra when the pursuing the procedure. vacancy was published on 29 April 1983. The date when the offer was published cannot therefore create rights in favour of the applicant. 29. Although the applicant had challenged the validity of the offers after the second offer was made, even at that stage, in which she apparently assumed that it was still possible for her to be reinstated, she 27. The applicant's reaction to the second informed the administration that it was offer is quite clear and unambiguous: she doubtful on account of her health, whether did not wish to be reinstated at Ispra. she could take up even part-time Subsequent efforts to challenge the validity employment (letter of 16 December 1984, of the offers do not alter that position. It Annex 23 to the application). The fact that may therefore be assumed that the applicant she had given advance notice of her absence declined both offers within the meaning of for four months without leaving an address Article 40 (4) of the Staff Regulations. The where she could be reached cannot have an conditions for the defendant to initiate the adverse effect for the defendant. In the procedure for compulsory retirement were event of lengthy absence it was the thus satisfied. applicant's responsibility to ensure that her mail was forwarded to her. Since even after the second offer the applicant continued her ambiguous and contradictory conduct, the initiation of the procedure for compulsory resignation was not irregular. 28. By letter dated 4 June 1986 the applicant was informed that the adminis­ tration would initiate the procedure for compulsory retirement. The applicant contended that the time chosen was in bad 4 faith. It is true that she had informed the 30. In Joined Cases 126/75, 34 and 92/76, administration that she would be absent in which the Court had to rule upon the from home from April until August 1985. alleged misconduct of the appointing Nevertheless, there can be no objection to authority owing to its delay in reinstating the time when the procedure was initiated. the applicant, the Court held that the For several years the applicant had left the defendant had not acted wrongly since the defendant in doubt as to whether she applicant's conduct had contributed to the wished to be reinstated in the defendant's uncertainty and therefore there was doubt employment and, if so, whether on a as to whether he really wished to be rein­ part-time or full-time basis and at which stated. place of employment. It can be assumed that it was in the applicant's obvious interests to leave the legal position in abeyance and not to make the offers earlier. Once both offers were declined and thus the legal conditions 31. Thus, in so far as there can be no for compulsory resignation were satisfied, objection to the time when the procedure the applicant's lengthy absence from home 4 — See the judgment of 17 October 1977 in Joined Cases 126/75, 34 and 92/76 Robert Giry v Commission [1977] 3 — See paragraph 22 above. ECR 1937.

was initiated, all that remains to consider is 2. The claim for damages the applicants' submission that she was not given a hearing. As is apparent from the documents which the applicant herself produced, she submitted observations on the procedure for compulsory resignation by 33. Besides the application for annulment, letter dated 1 July 1985 as well as by letter the applicant has also brought a claim for dated 6 September 1985. The requirement damages, the admissibility of which is open to hear the views of the person concerned is to doubt. As the Court is aware, a staff an expression of the legal principle of the action must be preceded by an adminis right to be heard. In the defendant's letter trative complaint under Articles 90 and 91 of 4 June 1985 the defendant was told all of the Staff Regulations, which is intended the essential facts and she was expressly on the one hand to facilitate an amicable requested to submit her observations under settlement and on the other hand to.define Article 49 (2) of the Staff Regulations. the issue. Even though a wide interpretation Only the fact that she was not once again of the administrative complaint is necessary given an opportunity to submit her obser in the official's interests, no new issue can vations after the Joint Committee had given be raised in the proceedings before the its opinion could be considered an Court. infringement of Article 49 (2) of the Staff Regulations.

32. It does not matter that the request to irregularity of the decision. The claim for submit observations did not originate from damages had already been made in the 6 the appointing authority, that is Mr Dinkes- complaint, although not in all its details. pieler, the Director-General, but from the Since that was not the case in this instance, Head of the Administration. Her objections the claim for damages is, in my view, inad were on the file and could be taken into missible because it was not preceded by a account when the decision was taken. Thus, complaint. since none of the applicant's procedural rights were infringed, the decision of 25 October 1986 was lawful.

HEYL v COMMISSION

no unlawful conduct on the defendant's impression was not rebutted by the part. The defendant's first offer to the applicant — that when there was no post applicant in February 1982 may well have available immediately after the expiry of her been belated since the defendant announced leave on personal grounds, the delay in her readiness to be reinstated on the expiry making an offer was entirely in the of her leave on personal grounds. However, applicant's interests since it prevented her it must be concluded in this regard, from legal position from being prejudiced by a the statements made by the defendant's definite offer. representative at the hearing, that there was no C 1 post available at Ispra in the period 36. The lawfulness of the defendant's from 1979 to 1981. Moreover, the conduct subsequent conduct has already been of the applicant herself cannot be disre­ considered and established in connection garded. The Court has held, in the Sergy with the claim for annulment, so that it and Pizziolo cases 7 for example, that the must finally be concluded that the claim for official's conduct is relevant in judging the damages must also be rejected in the duties of the administrative authorities. For absence of unlawful conduct on the part of two years the applicant did not appear to be the defendant. concerned about obtaining a post. Only at the defendant's initiative in 1981 did she 37. Under Article 69 (2) of the Rules of state that she was interested in delayed rein­ Procedure, the unsuccessful party is to be statement. The applicant's representative ordered to pay the costs. However, under admitted at the hearing that the parties were Article 70 of the Rules of Procedure, the ad idem in their conduct up to 1984. It institutions have to bear their own costs in therefore appears prima facie — and this staff cases.