C-284/98

OPINION OH MR COSMAS — CASE C-284/98 P

O P I N I O N OF ADVOCATE GENERAL COSMAS delivered on 23 September 1999 *

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PARLIAMENT V BIEBER

be reinstated to a post of Adviser in Grade 8. On 26 May 1998, the Court of First A 3. On 8 March 1996 Mr Bieber accepted Instance delivered judgment as follows: the above post, requesting that the details first, it allowed the application for annul- of the resumption of his duties be deter- ment; secondly, it ordered the Parliament to mined by common agreement. The date on compensate Mr Bieber for the material which Mr Bieber was to take up his duties damage which he suffered as a result of not in that post was determined as 1 June being reinstated from 1 January 1995 in 1996. Grade A 3, step 6, to the post of Legal Adviser to the Parliament; thirdly, it deter- mined that the sum to be paid to Mr Bieber was the difference between the net remu- neration which he would have received 5. On 10 May 1996, Mr Bieber submitted between 1 January 1995 and 8 March a complaint against the implied rejection of 1996 and the total net income which he his abovementioned claim of 18 October received from other employment; fourthly, 1995 regarding reinstatement in the service that sum was to be increased by the amount and compensation. On 13 September 1996 corresponding to the loss resulting from the he was informed that his complaint had absence of automatic advancement in step, been rejected. and was to attract interest from 12 Decem- ber 1996 until it was paid to Mr Bieber; fifthly, the Parliament was ordered to restore Mr Bieber's pension rights in such a way as to compensate for the difference between the pension rights to which he 6. On 9 October 1996, Mr Bieber submit- would have been entitled if he had been ted a request for release, making it clear reinstated on 1 January 1995 and those to that he wished to terminate the perfor- which he was actually entitled; sixthly, the mance of his duties definitively from amounts resulting from the difference in 1 February 1997, and applied for early pension rights was to attract interest at retirement pursuant to Article 52 of the 4.5% from the date on which they were Staff Regulations. payable; lastly, the Parliament was ordered to pay the costs.

12. I believe however that, even if certain arguments in the appeal raise doubts as to their admissibility, the appeal is not inad- III— The relevant Community legislation missible in its entirety. The first ground of appeal relates to the interpretation of Article 40(1)(d) of the Staff Regulations and raises, at least in part, questions of law which should be examined by the Court. Similarly, the second ground of appeal calls 10. Article 40(4)(d) of the Staff Regula- into question certain issues of legal inter- tions provides that: pretation which must be dealt with by the appellate court.

'on the expiry of his leave an official must be reinstated in the first post corresponding B — Merits of the appeal to his grade which falls vacant in his category or service, provided that he satis- fies the requirements for that post. If he declines the post offered to him, he shall retain his right to reinstatement when the next vacancy corresponding to his grade (a) First ground of appeal occurs in his category or service, subject to the same proviso; if he declines a second time, he may be required to resign after the Joint Committee has been consulted. Until effectively reinstated he shall remain on 13. In this ground of appeal, the Parliament unpaid leave on personal grounds.' submits that there was no obligation to

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PARLIAMENT V BIEBER

More particularly, only if it were accepted that the position 21. The judgment in Giry, which is referred developed at first instance in paragraphs 36 to by the Parliament, concerned, moreover, to 43 of the contested judgment was based an exceptional case, in which an official upon a false premise of interpretation — who complained about his delayed rein- because, in the light of the judgment in statement, after the expiry of unpaid leave Giry, the competent Parliament authorities had immediately beforehand requested a were obliged to evaluate as a whole Mr measure terminating his service, and had Bieber's real wish to be reinstated in the challenged before the Court the Commis- Community administration before offering sion's refusal to accede to that request. him a vacant post — would the refusal by There was therefore a declared desire on the Court of First Instance to assess the the part of the official, which had been evidence put forward by the Parliament to expressed explicitly and in the appropriate show that Mr Bieber was not interested in form, to leave the service after the expiry of being reinstated in the service constitute an his leave, that is before the question arose error in the contested judgment which of his reinstatement in the Community could lead to its being set aside. administration. As the Court rightly deci- ded in Giry (paragraphs 6 to 9), that official's persistence in his request for termination of service was enough to cast doubt on the genuineness of his desire to

his leave. If it is decided that the official in requisite interest in being reinstated in the question satisfies the requirements for that Community administration. In the argu- post, the administration is obliged to make ments which it puts forward, the Parlia- him the relevant offer, without examining ment appears to consider that any means of

proof can be used in order to assess the the public interest, which consists in the subjective will of the official. That proper functioning of the Community approach is directly contrary to the princi- administration, is sufficiently served by ple of due procedure governing the law the checks which the administration carries relating to officials, in particular when an out as to whether an official who may be official has to take decisions of consider- reinstated satisfies the requirements for the able importance for the continuation of his post to be offered to him. If the adminis- career as an official. It is not by chance that tration's view is positive in that respect for Article 48 of the Staff Regulations provides the official, the harmonious functioning of that an official who wishes to resign 'shall the Community's administrative mechan- state unequivocally in writing his intention ism has been assured and is not put at risk to leave the service of the institution by the possibility that the official in ques- definitively.' Similarly, an official's wish to tion is not interested in filling the post be assigned to non-active service pursuant which he has been offered. For that reason, to Article 41 or not to be reinstated in the moreover, it was provided that if an official service after the expiry of leave on personal 'declines the post offered to him, he shall grounds pursuant to Article 40 could not retain his right to reinstatement when the be deduced from any kind of evidence such next vacancy corresponding to his grade as documents drafted by the administration occurs in his category or service, subject to exclusively for internal use or the evidence the same proviso.' 4 If the Community of his superior. Finally, the Community legislature had thought that an official's administration is not obliged to, nor can it, unwillingness to take the first post offered transform itself into an investigative body to him was likely to obstruct the Commu- in order to search out the true wishes of nity administrative mechanism, it would officials who are on leave, taking into not have given him the above right to refuse account as 'sufficient evidence' the fact the first offer. that an official is carrying out some aca- demic activity during the period of his leave or that it is conjectured that he will ask to leave the service definitively within a short period of time after he is reinstated in it.

delay in his reinstatement, in that he did 25. Consequently the first ground of appeal not express an interest in returning to his is unfounded and should be rejected. duties after the expiry of his leave. I shall return to that question when examining the second ground of appeal. On that point, the following observations suffice: the Court has stated that, in the case of the delayed reinstatement of an official who has pre- viously taken leave on personal grounds, that official is obliged to take any measures (b) Regarding the second ground of appeal necessary to limit the consequences of the delay in question, and that that obligation consists in particular in his duty to seek to make a living by looking for work outside the Community administration. 5 In my 26. In the second ground of appeal, the opinion it is not possible to argue for such Parliament challenges the contested judg- a wide interpretation of that case-law that ment in so far as it relates to the determi- it imposes indirectly upon an official who is nation of the damage which Mr Bieber on leave pursuant to Article 40 of the Staff claims to have suffered and to the determi- Regulations the need to make clear, on his nation of the period for which the Com- own initiative, his wish to place himself at munity is obliged to compensate him. the disposal of the administration after the expiry of his leave. The above approach would be tantamount to introducing a new extra legem condition into the application of Article 40(4)(d) of the Staff Regulations, in accordance with which, before the competent Community authorities decided to offer a post to an official whose leave had expired, that official would first be (i) The appellant's arguments obliged to demonstrate his interest in reinstatement in the service. As has been mentioned before, it clearly follows from the wording of the relevant provisions of the Staff Regulations that, as soon as the 27. The Parliament considers that the first vacant post becomes available which Court of First Instance erred in law because the official in question could fill, the it did not take into account or, perhaps, did competent authorities are obliged to offer not correctly apply the fundamental prin- him that post without the official having ciple by which an individual who suffers previously to take a specific step to make the harmful consequences of unlawful con- clear his willingness to place himself at the duct by a Community body is obliged to disposal of those authorities. mitigate the damage caused. According to the Parliament's line of argument, the Court of First Instance overlooked the fact that, by his conduct, Mr Bieber contributed to, if he did not provoke, the delay in his reinstatement in the service and therefore 5 — Case 785/79 Pizziob v Commission [1983] ECR 1343. he is exclusively responsible or jointly

28. Specifically, the Parliament maintains (ii) My views on the above arguments that the Court of First Instance disregarded the following: on the one hand, the official in question had, in his letters of 21 Febru- ary and 21 March 1995, expressed his preference to be reinstated in the service 29. I would begin by recalling that the after 15 June 1995; consequently, even if it Court's review of judgments of the Court of were accepted that the Parliament failed to First Instance in which the latter rules upon reinstate him at the first opportunity into a claim for compensation based on the non- its ranks, the harmful consequences of that contractual liability of the Community is delay could not begin before the date which limited to the assessment of the legal Mr Bieber had designated as that on which correctness of the criteria and elements he would resume his service. On the other taken into account at first instance to hand, the Parliament challenges the para- establish and assess non-contractual liabi- graph in the contested judgment in which it lity. Any further calling into question of the was held that the letter of 7 December assessment by the Court of First Instance as 1995 (in which the Secretary-General of the regards the method and extent of compen- Parliament informed Mr Bieber that he sation for the damage relates to the findings intended to offer him a post as a head of of fact and falls outside the scope of review division), did not constitute a first offer of a by the Court on appeal. 6Moreover, 'the post within the meaning of Article 40(4)(d) Court of Justice has no more jurisdiction, of the Staff Regulations. In that connection on principle, to examine the evidence the Parliament puts forward four argu- which the Court of First Instance accepted ments: first, the letter in question of in support of those facts than to find the 7 December 1995 contains a clear offer of facts themselves. Since the evidence was a specific post; second, it is clear from Mr duly obtained and the rules and general Bieber's stance that he considered the letter principles of law relating to the burden of in question to be an offer of a post within proof were observed, as also were the rules the meaning of the Staff Regulations; third, of procedure in relation to the taking of the fact that that offer of 7 December 1995 evidence, it is for the Court of First Instance was later abandoned does not mean, in the alone to assess the value which should be Parliament's view, that Mr Bieber could not attached to the items of evidence produced have accepted it, thereby limiting the toit.' 7 duration of the harmful consequences which he suffered as a result of his delayed reinstatement; lastly, the Parliament con- 6 — C-259/96 P Council v Nil [1998] ECR I-2915, paragraphs tends that the Court of First Instance did 25 and 32. not properly appreciate its arguments that 7—Case C-136/92 P Commission v Brazzelli Lualdi [1994] ECR I-1981, paragraph 66.

30. As regards the case before the Court, it liability of the Community. As the court is clear from paragraphs 48 et seq. of the solely competent to make an objective contested judgment that the Court of First assessment of the factual circumstances, it Instance correctly defined the conditions held, however, that the Parliament's argu- for the recognition of the Community's ments relating to Mr Bieber's attitude when non-contractual liability and correctly his leave expired were not capable of applied those criteria to the factual circum- exonerating the Community of its civil stances of the case before it. The Parliament liability or even of limiting the period puts forward the unfounded complaint that material to the determination of compensa- when the Court of First Instance defined tion. In other words, the Court of First the legal framework within which Mr Instance did not commit any error of law. Bieber's claim for compensation would be judged, it did not take into account, as it was obliged to do, the conclusions of the Court in the judgment in Giry, cited above. In accordance with that judgment, 8when there is a question of compensating an 31. Furthermore, I consider that the parti- official for delayed reinstatement following cular arguments put forward by the Parlia- the expiry of his leave, it is important to ment, relating to the material period of examine whether the behaviour of the time in respect of which an obligation to applicant for compensation contributed to compensate for damage exists, in part fall the damage which he claims to have outside the scope of review in an appeal

The Court of First Instance did not ignore the fact — as the Parliament appears to imply — that in exceptional circumstances, such as those in the case of Giry, the conduct of the 33. In addition, the Parliament's arguments person claiming compensation carries relating to the determination of the point in weight in law as an element in the determi- time at which the administration's harmful nation of the extent of the non-contractual conduct ended are not admissible in their entirety.

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did not constitute a first offer of a post 35. Consequently, since the Court of First within the meaning of the Staff Regula- Instance correctly determined the criteria tions. for interpretation when examining whether, on 7 December 1995, Mr Bieber had been offered a post in accordance with the provisions of the Staff Regulations, the contested judgment is correct from a legal point of view. The findings of fact of the Court of First Instance regarding the clarity of the letter of 7 December 1995, and the 34. What should be considered an offer of weight to be attributed to the other factual a post in accordance with Article 40(4)(d) arguments put forward by the Parliament of the Staff Regulations is in fact a question at first instance, are questions which may of law which is subject to appellate review. not be reviewed on appeal, and the argu- On that point, it should be noted that the ments relating to them are inadmissible and Court of First Instance, in paragraph 59 et must be dismissed. seq. of the contested judgment, rightly accepted that it is not possible to regard as an 'offer', fulfilling the conditions of the Staff Regulations, a vague declaration of intent by the public authority to give the 36. Consequently, the second ground of person concerned a post, particularly when appeal should also be dismissed in its the offer in question is not free from terms entirety, partly because it is inadmissible, and conditions. and partly because it is unfounded.

IV — Conclusion

37. In view of the foregoing, I would propose that the Court: