C-137/88

3. The applicants maintain that the 6. However, two clarifications are required Commission has failed in its duty to at the outset. safeguard their interests by refusing to grant them the technical and financial assistance * Original language Italian. 1 — judgment of 20 October 1981 [1981) ECR 2393 7. In the first place, I do not consider that 2 — judgment of 3 October 1989 [1989] ECR 3069 the question whether, as a matter of

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principle, the measures requested by the am unable to share, in that it contends that applicants fall within the scope of Article 24 the result sought by the applicants, namely of the Staff Regulations, is the point at issue the adoption of a formal law which allows in this case. The Commission itself expressly transfer to the Communities of the pension stated in its reply to the applicants' rights previously acquired, is one which falls complaint: outside the scope of the Commission's powers.

(ii) but it contends — and this aspect will be What the applicants seek from the considered in greater detail later — that Commission is technical and financial in the present case it has satisfied the assistance in order to bring the matter obligation imposed on it by that article; before the national courts. Far from being that view is, however, contested by the an attempt to put the obligation to provide applicants. assistance to improper use, that request seems to me to fall within the natural bounds of the provision of ways and means of attaining a specified objective. It is The dispute thus relates to the limits of the true — and here I concur entirely with the duty to provide assistance or protection. Commission — that the ultimate objective pursued falls outside the Commission's control, although the question might 8. In the second place, the Commission has perhaps be asked why the Commission, been at pains to emphasize, in both its which is a party to a bilateral contract with written and oral submissions, that the obli- the officials entitled to the transfer of rights, gation to provide assistance is, by virtue of did not consider itself under a duty, by its nature and scope, an obligation to use all virtue of its obligation to safeguard its due diligence and not an obligation to officials' interests, to pay the pensions as if achieve specific results. From that premiss, Belgium had already fulfilled its obligations, to which I have no difficulty in subscribing, reserving the right to obtain reimbursement the Commission draws a conclusion which I by recourse to amounts owed to the Belgian

Government. But the situation which I have also seems to me to be clear that the scope described, regarding the means necessary to of the duty to provide assistance and to achieve an aim which falls outside the safeguard interests differs according to the powers of the giver of the assistance, is seriousness and the nature of the injury to common to other cases that come within the which the official has been exposed. scope of Article 24. For example, the Commission certainly cannot guarantee a priori that there will be a finding against the defendant or that compensation will be awarded in the case of injury to or defa- Let me explain. The Court has consistently mation of an official to whom assistance is held that a duty to provide assistance arises given under Article 24. in the case of a dispute between officials in consequence of which the institution is called on to carry out an inquiry and take the requisite measures. However, it seems undeniable that in such circumstances the duty of care and protection is more tenuous 9. Having made those preliminary remarks, than in other, more serious cases. That I shall now consider the present case. The applies particularly since the intervention of question that the Court must answer is the institution is necessary not only in order essentially whether or not the Commission to discharge the duty of assistance but has discharged its duty of assistance towards also — perhaps to a greater degree — to the applicants. I would point out that in an uphold the interests of the service and to earlier decision the Court developed a ensure sound administration (see in concept of the general obligation to provide particular, judgment of 14 June 1979 in assistance which goes beyond the bounds set Case 18/78 Mrs V. v Commission [1979] by Article 24 (judgment of 11 July 1974 in ECR 2093 and my Opinion in Case 224/87 Case 53/72 Guillot [1974] ECR 791), Koutchoumoff [1989] ECR 99, 104, emphasizing in particular that there must be judgment of 26 January 1989). a balance between the rights and obligations of officials. In the same way, it has been pointed out that that obligation is the result of the natural balance between officials' obligation of loyalty and the institutions' The position is different where the injury obligation to provide protection (see in comes from outside, in which case the duty particular Rogalla, Fonction publique euro- to safeguard interests, which, as we have péenne, 1982, p. 253). seen, is the quid pro quo for the official's loyalty, goes further.

11. In resisting the claims made by the applicants, the Commission refers in the first 12. Another argument raised at the hearing place to the proceedings instituted by it seems to me to militate against the attempt under Articles 169 and 171 of the Treaty. I to bring actions by the Commission under cannot agree with this first defence Article 169 within the scope of fulfilment of submission. In deciding whether or not, in the duty to provide assistance. Any other the present case, the defendant has Community institutions requested by their discharged its duty of assistance and officials to provide assistance in connection protection, I do not think that account can with an infringement by a Member State of be taken of actions brought by the the duties imposed on it by the Staff Regu- Commission on the basis, first, of Article lations would not enjoy equality with the 169 and then of Article 171 of the Treaty. Commission since recourse to Article 169 is The action before the Court under Article not available to them. Moreover, that has 169 constitutes one of the Commission's become apparent in the present proceedings. institutional prerogatives and is associated We know that the Council, in order to fulfil with its general task under Article 155. The its duty under Article 24 of the Staff Regu- case-law of the Court in that regard has lations, has decided to grant the technical highlighted the discretion enjoyed by the and financial assistance requested of it by its Commission in choosing when to bring an officials who seek the transfer of their action, and also the fact that the remedy is pension rights. objective in character. Likewise, the Court has repeatedly stated that Commission officials cannot institute proceedings against the Commission to make it take action under Article 169 of the Treaty in order to bring to an end alleged infringements of 13. We must therefore consider whether, Community law (see judgment of 1 March apart from its use of the procedure under 1966 in Case 48/65 Liittike v Commission Article 169, the Commission has discharged [1966] ECR 19, and the Opinion of Mr its duties under Article 24 of the Staff Advocate General VerLoren van Themaat in Regulations. Case 28/83 Forcheri v Commission [1984] ECR 1425, judgment of 15 May 1984).

decide whether, in choosing such means, the 20. At the hearing, the applicants placed institution erred in such a manner as to emphasis on their absolute need to be vitiate its decision, for example by making a assisted by the administration. Since, in manifest error or by stepping outside the order to bring a proper action before the limits of its discretionary powers. national court, they are obliged to indicate in their statement of claim the amount of the accrued pension rights under the Belgian scheme which they wish to be transferred to 15. The Commission has put forward three the Community scheme, they claim that the arguments to justify its refusal to provide relevant calculations, which are of a assistance. complex actuarial nature, called for the cooperation of the Commission's staff, which was denied them. 16. In the first place it contends that its recourse to the procedure under Articles 169 and 171 makes the provision of the 21. I must observe that, despite the request requested assistance superfluous. For the for clarification made three times at the reasons I have given earlier (parts 11 and hearing, the Commission has confined itself 12) I do not consider that argument to repeating the argument which forms the acceptable. main premiss of its reasoning, namely that recourse to fresh proceedings, different from those instituted by Mr Michel, would not have yielded any new result or, to use 17. In the second place, the Commission the Commission's words, 'would not have states that, having already given technical changed the general landscape'. assistance to an official, it considered it unnecessary to grant assistance to the applicants. 22. I consider that argument unacceptable. The Commission virtually refused to take a position — beyond engaging in petitio 18. This brings us to the nub of the principu — before this Court as to whether problem. the applicants' view that the actuarial calcu- lations are beyond the capabilities of indi- vidual plaintiffs and call for the cooperation of the Commission's staff was well founded. The applicants maintain that, without Thus, the Court is prevented from carrying technical assistance from the Commission to out its review of the reasons which guided quantify such claim as they might make the defendant in the exercise of its discre- before the national courts, they are abso- tionary power. lutely precluded from ultimately enforcing their rights. I would add that those calculations, which constitute the substance of the technical 19. In reply, the defendant contends, in assistance requested, would have served general terms, that notwithstanding its another purpose: that of enabling each of refusal to provide technical assistance, it the individual applicants to decide, in full remained within the 'reasonable limits' knowledge of the facts, whether or not it which the Court has laid down for the duty would be appropriate to bring an action to provide assistance. before the national courts. The wording of

(i) disregard the Commission's recourse to 24. The Commission's explanation for its its institutional right of action under refusal is unacceptable, in my opinion, for a Articles 169 and 171; and further reason. The action brought before the Belgian courts by Mr Michel, with technical and financial assistance from the Commission, would, if upheld, be of benefit (ii) take account of the seriousness of the only to him because the judgment would unlawful conduct on the part of the not take effect erga omnes. It follows that Belgian Government in failing to fulfil the applicants in the present case have a its obligations under the Staff Regu- clear interest in bringing legal proceedings lations. irrespective of the outcome of the action brought by Mr Michel. It is thus inappro- priate for the Commission to contend that its provision of assistance in one individual 27. We have also seen that in order to case entirely discharges its obligation to enable the officials concerned to assess the provide assistance to its officials. advisability of bringing an action before the national courts or before this court and to obtain information enabling them to determine the amount of their claim, the That is so because either, in making that Commission should have provided the statement, the Commission is referring not technical assistance requested of it.

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That conclusion follows from the November 1989, the situation is different Commission's inability to state its reasons from that which prevailed when technical for refusing to assist its officials. and financial assistance was given to Mr Michel, it is forgetting that the failure to act of which it is accused dates back to 1987 and cannot be appraised on the basis of At this stage, the Commission's exercise of what is happening today. the discretionary power vested in it thus appears vitiated by an inadequate statement of reasons (failure to explain its refusal) and by an error (the contention that the grant of What seems to me to be of greater technical assistance to one official releases it importance is the contradictory nature of from any further provision of assistance, the reasons given by the Commission. even though individual actions are involved in all cases).

I do not wish to dwell over-long on the explanation which the Commission gave at the hearing and which I consider to be inap- 31. The second problem raised by the propriate. When it contends that at the Commission's defence is methodological in present time, that is to say in October and character.

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11(2)—judgment of 14 June 1990 in Case Article 24 of the Staff Regulations, that C-37/89 Weiser v CNBF [1990] ECR there is an objective need for technical I-2395 — did not fail to emphasize the assistance to enable the applicants to decide 'direct applicability of Anicie 11(2) of Annex whether it is advisable to bring an action VIII to the Staff Regulations'. In that way, before the national courts or before this the Commission, far from denouncing Court, and, if it is, whether in fact to do so, actions before the national courts as inef- and that the Commission has not explained fective, shared the view that it was appro- to the Court its reasons for its refusal, the priate and useful to bring such actions, conclusion seems inevitable that the agreeing, inter alia, on the merits of the Commission's conduct has been improper. It case, even though it was not involved from must therefore be found that the defendant the technical and financial point of view. has not fulfilled its obligation to provide assistance to its officials. 34. To conclude this examination of the three arguments put forward by the As I do not think that it would be Commission to justify its refusal to grant acceptable for the Commission to assistance, I must therefore state that none discriminate as between its officials, I of them stands up to critical analysis. In consider that both technical and financial those circumstances, since it is not disputed assistance should be provided, like that that the applicants were right to invoke provided by the Council in fact.