C-292/87
ECLI:EU:C:1988:281
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PIZZIOLO v COMMISSION
O P I N I O N O F ADVOCATE GENERAL SIR G O R D O N SLYNN delivered on 2 June 1988
My Lords, At the same time, the Court made it clear, in paragraph 13 of the judgment, that he must make reasonable efforts to mitigate his losses, if necessary by looking for alternative employment. In fact, Mr Pizziolo went to work in Italy for an Italian company, AGIP M r Pizziolo worked at the Joint Research Nucleare. From 1 January 1977 until 30 Centre in Karlsruhe in the Federal Republic September 1983 he was paid by the of Germany until 1 March 1970 when he Commission, in Italian lira, the difference was given leave on personal grounds, the between what he would have received, had period of leave to expire on 28 February he been reinstated on 1 January 1977, and 1971. At the end of that period he wanted what he received by way of salary from to be reinstated, but the Commission did AGIP Nucleare. The remuneration which not reinstate him. He came first to the he would have received from the Court to ask that he should be reinstated Community was treated as subject to the with effect from 1 March 1971, but the appropriate weighting in force in Italy. Court refused that application (Case 785/79 [1981] ECR 969).
On 24 September 1983, Mr Pizziolo informed the Commission that his employment with AGIP Nucleare would Instead, it asked for an expert's report as to come to an end on 30 September 1983. He whether Mr Pizziolo had the qualifications appears to have had no reply from the to fill inter alia another vacancy which had Commission until, on 24 February 1984, a been advertised under the reference telegram was sent to him which was C O M / 1 5 3 1 / 7 6 . The experts thought that subsequently confirmed by a letter of 27 he was qualified for that vacancy and Mr February. That telegram offered him rein- Pizziolo came back to the Court. On that statement in a post at the Joint Research occasion (Case 785/79 [1983] ECR 1343), Centre at Petten in the Netherlands. He was the Court found that he should have been told that he should take up that employment reinstated with effect from 1 January 1977. as soon as was reasonably possible. In fact The Court accordingly ordered the he took up the post as from 7 March 1984. Commission to reinstate him with effect from that date. It also ordered the Commission to pay to the applicant a sum of money equivalent to the net remuneration which he would have received up to the date of his actual reinstatement if From 1 October 1983 when he stopped he had been reinstated on 1 January 1977, working for AGIP Nucleare until 7 March subject to deduction of net earnings 1984, the Commission continued to pay him received in respect of that period from any the difference between what he would have other activity. earned from the Commission and what he
OPINION OF SIR GORDON SLYNN — CASE 292/87
would have earned had he continued to Although he may be entitled to criticize the work for AGIP Nucleare during that length of time which the Commission took period. The Commission took the stand that before finally offering him a post, the real it would have been reasonable for him to point in this case is whether he is entitled to continue working, in order to mitigate his full compensation for that period. losses, until he was actually offered employment and reinstated by the Commission.
He was not satisfied with that and so he In my view, not only was he bound, in brought the present action before the Court. accordance with paragraph 13 of the H e makes a number of claims for orders to Court's judgment of 1983, to seek alter- be made by the Court, but, in substance, native employment, but if he found they boil down to a claim first for the full employment reasonably suitable for him amount of compensation to be paid during with his qualifications, he was, in my view, the relevant period, that is, the whole salary bound to remain in it until such time as he which he would have received from the received an offer so long as the Commission Commission had he been reinstated; and did not unreasonably drag its feet. second, for an order that the payments made to him should be made in German marks with the weighting appropriate to the Federal Republic of Germany.
If he had waited until he received an offer The first point is obviously the major point. the Commission would have been bound to Mr Pizziolo's case is that he could not wait give him a reasonable period to give notice until 24 February 1984 to give notice to to AGIP Nucleare and to take up his post. AGIP Nucleare so that he was entitled to Nothing has been suggested to show that leave earlier having given notice and to wait there was anything wrong with the job that for the vacancy with the Commission. he was doing, which justified him in leaving because the job was unsuitable. It does not seem to me that a reasonable period had expired by the time when he gave his notice It is to be noted that it was not the of 24 September, in the light of the fact that Commission which specified the date when he was being fully compensated. he was to take up his new appointment. It was he who fixed the date of 7 March 1984 as being a convenient date for him to begin his new work. It does not seem to me, on the evidence which is before the Court, that it can be said with confidence that when he gave notice to AGIP Nucleare he knew I am not entirely satisfied that his of the particular vacancy which was complaints that the Commission took an subsequently offered to him. Certainly there over-long time, either, are fully justified. is no indication that anything had been said The Court did not order that he be rein- by the Commission to him that he would be stated immediately, it ordered that he be offered this vacancy, nor was he given any reinstated pursuant to Article 40 (4) (d) of indication as to when he was to start. the Staff Regulations. That inevitably
PIZZIOLO v COMMISSION
involved that the procedure laid down in the On the other hand, it seems to me that if Staff Regulations would be carried out, and my opinion on the first part of the case is what he had to be offered was the first post right and he fails on the first ground, he corresponding to his grade which fell vacant cannot, in any event, succeed on the second. in his category or service, provided that he If he did not mitigate his damage, if he did satisfied the requirements for that post. not act reasonably by leaving his job in Italy, it seems to me he cannot be compensated for any currency differences, any exchange differences or any weighting differences resulting from his personal decision to go to live in the Federal Accordingly, in my view, he is not entitled Republic of Germany. to say that he may have the whole of the salary which he would have had from the post which the Court ordered him to be reinstated in; he is only entitled to the difference between what he would have earned had he stayed with AGIP and what he would have received from the Commission.
He says, however, that apart from that, which he does not accept, he is entitled to be paid with the German weighting by The second claim, that he be paid in analogy with a number of provisions of the German marks with the weighting appro- Staff Regulations. He accepts that there is priate to the Federal Republic of Germany, nothing in Article 40 which assists him, so is based on his contention that after leaving he turns to a number of other articles. The his job in Italy he went to live in Bad first is Article 41, which is dealing with Herrenalb near to Karlsruhe. officials of the Community having a non-active status, persons who have become supernumerary by reason of reduction in the number of posts in their institution. He is clearly not directly one of those. He then relies on Article 63, which provides the The Commission does not accept, as a fact, appropriate remuneration and weighting for that he did live there during the relevant officials who are to be paid in the currency period. The Court has been provided with a of the country in which they perform their certificate of domicile relating to the date 18 duties. H e clearly was not a person October 1983. For my part, I would accept performing duties in such a country. Article that he did live in Germany during this 64 deals with officials' remuneration period. He apparently had a dwelling there expressed in Belgian francs, which is to be and there is no evidence provided by the weighted at the rate depending on living Commission to counter his claim, except the conditions in the various places of suggestion that his children were still at the employment. At that time, he was not in University of Bologna. That seems to me to employment by the Community, or, indeed, be a neutral factor, and I am prepared to as far as one knows, in any employment in approach the second part of the case on the Germany. Accordingly, those articles, basis that he did live where he says he lived. clearly, do not directly apply.
OPINION OF SIR GORDON SLYNN — CASE 292/87
He then says that, in addition to being able Court found that the applicant, who had to rely on those by analogy, he can rely on been employed in Italy, had gone back to the judgment of the Court in Case 156/78, Belgium, and was paid with the weighting the case of Newth v Commission [1979] appropriate to Italy, received considerably ECR 1941. In that case, an official was less than an official in a similar position discharged under Article 50 of the Staff who had worked in and retired in Belgium. Regulations, and he became entitled to be The Court found that discriminatory. paid an allowance on a reducing basis. The
In my opinion, none of these situations, either under the Staff Regulations or in the decision in Newth, really assists M r Pizziolo. I do not regard his position as being analogous to any of them. H e is a person in a special category who has been held entitled by the Court to compensation, and what he is to have is sufficient money to make up the difference between the salary he should have had and what he actually received or could reasonably have received. The Court did not make any order as to the way in which his compensation should be calculated, or by reference to what particular country. But it seems to me that, the parties having accepted, apparently without any dispute, that whilst he was employed in Italy he should be given the Italian weighting, it was perfectly appropriate for the Commission to continue to pay him the compensation on the same basis as he had been receiving it and on which, if he had fulfilled his obligation to mitigate his damages, he would have continued to receive it.
Accordingly, in my opinion, this second part of the claim also fails. I would, for my part, dismiss the application and order each party to bear its own costs under Article 70 of the Rules of Procedure.