61975J0126

IN JOINED CASES 126/75 , 34 AND 92/76 ,

ROBERT GIRY , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT 37 B CHEMIN DES COUDRIERS , GENEVA , REPRESENTED BY VICTOR BIEL , ADVOCATE , OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS AT 18A RUE DES GLACIS ,

APPLICANT ,

V COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , RAYMOND BAEYENS , ACTING AS AGENT , ASSISTED BY DENISE SORASIO-ALLO , A MEMBER OF THE LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR EITHER THE REINSTATEMENT OF THE APPLICANT IN ACCORDANCE WITH THE STAFF REGULATIONS OF OFFICIALS ON THE EXPIRY OF HIS LEAVE ON PERSONAL GROUNDS , TOGETHER WITH COMPENSATION FOR THE DAMAGE SUFFERED BY HIM AS A RESULT OF HIS BELATED REINSTATEMENT OR , IN THE EVENT OF HIS NOT BEING REINSTATED , COMPENSATION FOR THE DAMAGE SUFFERED BY HIM ON THAT ACCOUNT ,

1 THE APPLICATIONS IN THE THREE JOINED CASES ARE , ESSENTIALLY , INTENDED TO SECURE :

( A ) RECOGNITION OF THE RIGHT OF THE APPLICANT , WHO HAS BEEN ON LEAVE ON PERSONAL GROUNDS SINCE 1970 , TO BE REINSTATED WITH EFFECT FROM 12 OCTOBER 1973 , THE DATE ON WHICH HIS LEAVE EXPIRED AND , TO THIS END , THE ANNULMENT , FIRST , OF THE COMMISSION ' S DECISION OF 29 JULY 1976 , REINSTATING THE APPLICANT WITH EFFECT FROM 15 AUGUST 1976 THOUGH WITH EFFECT IN RESPECT OF SENIORITY AND PENSION FROM 12 OCTOBER 1973 , AND , SECONDLY , OF THE APPOINTMENTS MADE SINCE THAT DATE TO POSTS IN GRADE A 4 OR CAREER BRACKET A 5/A 4 FOR WHICH THE APPLICANT POSSESSED THE REQUISITE QUALIFICATIONS ;

( B ) PAYMENT OF THE SALARY WHICH THE APPLICANT WOULD HAVE RECEIVED IF HE HAD BEEN REINSTATED WITH EFFECT FROM 12 OCTOBER 1973 ; AND

( C ) COMPENSATION OF THE APPLICANT FOR THE PECUNIARY DAMAGE WHICH HE CLAIMS TO HAVE SUFFERED AS REGARDS HIS CAREER AND FOR NONMATERIAL DAMAGE , AND THE PAYMENT OF CERTAIN ALLOWANCES UNDER THE STAFF REGULATIONS .

2 THE DEFENDANT , THE COMMISSION , RAISED CERTAIN PRELIMINARY OBJECTIONS ON WHICH THE COURT RESERVED ITS DECISION FOR THE FINAL JUDGMENT .

3 IN VIEW OF THE CLOSE CONNEXION BETWEEN THESE OBJECTIONS AND THE SUBMISSIONS ON THE SUBSTANCE RELIED ON BY THE PARTIES , CONSIDERATION MUST FIRST BE GIVEN TO THE LATTER .

4 ARTICLE 40 ( 4 ) ( D ) OF THE STAFF REGULATIONS PROVIDES THAT , ON THE EXPIRY OF HIS LEAVE , AN OFFICIAL MUST BE REINSTATED IN THE FIRST POST CORRESPONDING TO HIS GRADE WHICH FALLS VACANT , PROVIDED THAT HE SATISFIES THE REQUIREMENTS FOR THAT POST .

5 THE APPLICANT CONTENDS THAT THE COMMISSION HAS DISREGARDED HIS RIGHTS UNDER THIS PROVISION BY OFFERING HIM REINSTATEMENT NOT IN THE FIRST POST WHICH FELL VACANT IN ACCORDANCE WITH THE REQUIREMENTS OF THE STAFF REGULATIONS BUT ONLY IN 1976 , FIRST BY A LETTER OF 1 MARCH AND THEN BY THE FORMAL DECISION OF 29 JULY .

6 HOWEVER , BEFORE THE EXPIRY OF HIS LEAVE , THE APPLICANT HAD REQUESTED A MEASURE TERMINATING HIS SERVICE PURSUANT TO REGULATION ( EEC ) NO 2530/72 OF THE COUNCIL AND THE REFUSAL OF THIS REQUEST BY THE COMMISSION WAS CONTESTED BY THE APPLICANT IN A PRELIMINARY COMPLAINT THROUGH OFFICIAL CHANNELS AND SUBSEQUENTLY BY APPLICATION TO THE COURT , WHICH THE COURT ( SECOND CHAMBER ) DISMISSED BY ITS JUDGMENT OF 21 NOVEMBER 1974 IN CASE 1/74 ( 1974 ) ECR 1269 .

7 ALTHOUGH IT WAS ACCOMPANIED BY A REQUEST FOR REINSTATEMENT , THE APPLICANT ' S PERSISTENCE IN HIS REQUEST FOR TERMINATION OF SERVICE WAS LIABLE TO CAST DOUBT ON THE GENUINENESS OF HIS DESIRE TO MAKE HIMSELF AVAILABLE TO THE COMMISSION .

8 IT WAS ONLY AS FROM 21 NOVEMBER 1974 , THE DATE OF THE JUDGMENT REFERRED TO , THAT THE APPLICANT CAN WITH CERTAINTY BE SAID TO HAVE BEEN IN A POSITION TO CLAIM HIS RIGHTS UNDER ARTICLE 40 ( 4 ) ( D ) OF THE STAFF REGULATIONS .

9 THE DOUBT TO WHICH THE APPLICANT ' S ATTITUDE GAVE RISE WAS FINALLY REMOVED ONLY BY THE LETTER WHICH HE ADDRESSED TO THE COMMISSION ON 6 JANUARY 1975 CONFIRMING HIS REQUEST FOR REINSTATEMENT .

10 IT WAS THEREFORE AFTER THE RECEIPT OF THAT LETTER , AT THE LATEST , THAT THE COMMISSION WAS UNDER A CLEAR DUTY TO REINSTATE THE APPLICANT ON THE FIRST OCCASION ON WHICH THE REQUIREMENTS OF ARTICLE 40 OF THE STAFF REGULATIONS WERE SATISFIED .

11 THE COMMISSION HAS NOT DISPUTED , DURING THE PROCEEDINGS , THAT THE PROPOSAL FOR REINSTATEMENT ADDRESSED TO THE APPLICANT BY THE LETTER OF 1 MARCH 1976 AND FORMALLY CONFIRMED BY THE DECISION OF 29 JULY 1976 WAS A BELATED ONE .

12 ON THE OTHER HAND THE APPLICANT REFUSED THE OFFER AND CONTESTED THE VALIDITY OF THE COMMISSION ' S DECISION , IN PARTICULAR BECAUSE IT MADE NO PROVISION FOR THE REINSTATEMENT TO BE EFFECTIVE RETROACTIVELY FROM 12 OCTOBER 1973 .

13 WHILST IT IS TRUE THAT THE DECISION FIXES 15 AUGUST 1976 AS THE DATE FROM WHICH THE REINSTATEMENT TAKES EFFECT , CONDITIONS ARE ATTACHED TO IT WHICH , ON ALL ESSENTIAL POINTS , ARE TANTAMOUNT TO GIVING IT THE RETROACTIVE EFFECT SOUGHT BY THE APPLICANT .

14 IN FACT THE APPLICANT ' S SENIORITY IN GRADE AND STEP IS FIXED AS THOUGH THE REINSTATEMENT HAD TAKEN PLACE ON 12 OCTOBER 1973 .

15 AS REGARDS THE PENSION SCHEME , THE PERIOD FROM 12 OCTOBER 1973 TO 14 AUGUST 1976 IS TO BE TAKEN INTO ACCOUNT SUBJECT TO A CONTRIBUTION FROM THE APPLICANT .

16 FINALLY , ON THE SUBJECT OF SALARY , THE APPLICANT WAS INVITED TO SUPPLY THE COMMISSION WITH A STATEMENT OF THE SALARY WHICH HE HAD RECEIVED DURING THE SAME PERIOD IN RESPECT OF HIS SERVICE WITH THE UNITED NATIONS , SO AS TO ENABLE THE COMMISSION TO CALCULATE ANY PECUNIARY DAMAGE SUFFERED AS A RESULT OF HIS BELATED REINSTATEMENT .

17 IT FOLLOWS THAT THE APPLICANT HAS NO LEGAL INTEREST IN SEEKING THE ANNULMENT OF THE DECISION OF 29 JULY 1976 AND THAT , IN CONSEQUENCE , HIS APPLICATION ON THIS SUBJECT MUST BE DISMISSED .

18 THE POSITION IS THE SAME AS REGARDS THE APPLICATION FOR THE ANNULMENT OF THE APPOINTMENTS MADE SINCE 12 OCTOBER 1973 TO POSTS IN GRADE A 4 OR CAREER BRACKET A 5/A 4 .

19 WITH REGARD TO THE APPLICATIONS FOR COMPENSATION , IT MUST FIRST BE DETERMINED WHETHER THE APPLICANT ' S BEHAVIOUR CONTRIBUTED TO THE DAMAGE WHICH HE CLAIMS TO HAVE SUFFERED .

20 ON THIS ASPECT IT HAS BEEN STATED ABOVE THAT , DURING THE PERIOD FROM 12 OCTOBER 1973 TO 21 NOVEMBER 1974 , THE DATE OF THE JUDGMENT OF THE COURT IN CASE 1/74 , THE APPLICANT , BY PERSISTING IN HIS REQUEST FOR TERMINATION OF SERVICE UNDER THE SPECIALLY FAVOURABLE CONDITIONS PROVIDED FOR IN REGULATION ( EEC ) NO 2530/72 , CAST DOUBT ON THE SERIOUSNESS OF HIS REQUEST FOR REINSTATEMENT .

21 FURTHERMORE , THE APPLICANT ' S REPLY TO THE COMMISSION ' S OFFER OF 1 MARCH 1976 AND TO THE DECISION OF 29 JULY 1976 WAS TO CONTEST THE VALIDITY OF THOSE ACTS AND TO REFUSE TO RETURN TO DUTY IN THE SERVICE OF THE COMMISSION ALTHOUGH IT WOULD HAVE BEEN PERMISSIBLE , AND QUITE ENOUGH TO PROTECT HIS RIGHTS , FOR HIM TO ACCEPT THE POST OFFERED TO HIM , WITHOUT PREJUDICE TO HIS SETTING IN MOTION THE PROCEDURES PROVIDED FOR IN THE STAFF REGULATIONS IN ORDER TO TEST THE LEGALITY OF THE ARRANGEMENTS FOR REINSTATEMENT .

22 IT IS TRUE THAT AT A LATER STAGE , NAMELY IN THE REPLY LODGED ON 19 JANUARY 1977 IN JOINED CASES 126/75 AND 34/76 , THE APPLICANT SUGGESTED , IN ORDER TO PRESERVE HIS RIGHTS , THAT THE COMMISSION SHOULD ALLOW HIM TO RETURN TO DUTY ON CONDITION THAT SUCH A RETURN DID NOT MEAN THAT HE ACCEPTED THE ARRANGEMENTS OR CONDITIONS ON THE BASIS OF WHICH THE COMMISSION HAD MADE ITS OFFER .

23 HOWEVER , SUCH A STATEMENT , MADE IN THE COURSE OF THE WRITTEN PROCEDURE IN AN ACTION BEFORE THE COURT , CANNOT TAKE THE PLACE OF AN ACCEPTANCE , WITHIN THE MEANING OF ARTICLE 40 ( 4 ) ( D ) OF THE STAFF REGULATIONS , OF THE POST OFFERED .

24 THE COURSE OF EVENTS , VIEWED AS A WHOLE , ACCORDINGLY MAKES IT CLEAR THAT THE APPLICANT ' S CONDUCT HELPED SO MUCH TO CREATE AND PROLONG THE DIFFICULTIES IN THE WAY OF HIS REINSTATEMENT THAT THE COMMISSION CANNOT BE HELD RESPONSIBLE FOR THE NON-MATERIAL DAMAGE WHICH THE APPLICANT CLAIMS TO HAVE SUFFERED .

25 NEVERTHELESS , DURING THE INTERMEDIATE PERIOD BETWEEN THE DATE ON WHICH IN ACCORDANCE WITH ARTICLE 40 OF THE STAFF REGULATIONS REINSTATEMENT BECAME POSSIBLE AS A RESULT OF THE APPLICANT ' S REQUEST FOR REINSTATEMENT OF 6 JANUARY 1975 , AND 1 MARCH 1976 , THE DATE OF THE COMMISSION ' S FIRST OFFER , THE COMMISSION FAILED TO COMPLY WITH THE DUTY IMPOSED UPON IT BY ARTICLE 40 ( 4 ) ( D ) OF THE STAFF REGULATIONS .

26 AS FAR AS THIS PERIOD IS CONCERNED THEREFORE IT MUST BE DETERMINED WHETHER , AS THE APPLICANT CLAIMS , HE HAS SUFFERED PECUNIARY DAMAGE IN CONNEXION WITH THE ADVANCEMENT OF HIS CAREER .

27 IT CANNOT BE DETERMINED WITH ANY CERTAINTY WHAT CHANCES THE APPLICANT WOULD HAVE HAD OF ADVANCEMENT IN HIS CAREER DURING THAT PERIOD .

28 GENERALLY SPEAKING , THE CHANCES OF ADVANCEMENT DURING SUCH A PERIOD ARE SO VAGUE AND HYPOTHETICAL THAT THEY DO NOT IN THEMSELVES JUSTIFY A FINDING THAT THE APPLICANT SUFFERED PECUNIARY DAMAGE UNDER THIS HEAD .

29 THE APPLICATIONS FOR COMPENSATION MUST THEREFORE BE REJECTED .

30 FINALLY THE APPLICANT HAS SOUGHT THE AWARD OF A SEVERANCE GRANT , AS PROVIDED FOR IN ARTICLE 12 OF ANNEX VIII TO THE STAFF REGULATIONS , AS WELL AS THE GRANT OF THE ALLOWANCES PROVIDED FOR IN ANNEX IV TO THE STAFF REGULATIONS IN THE EVENT OF BEING ASSIGNED NON-ACTIVE STATUS OR IN THE EVENT OF RETIREMENT IN THE INTERESTS OF THE SERVICE .

31 THESE APPLICATIONS CANNOT BE UPHELD SINCE THE APPLICANT ' S SERVICE HAS NOT BEEN TERMINATED PURSUANT TO ANY OF THE PROVISIONS MENTIONED .

32 ACCORDINGLY , THE APPLICATIONS MADE BY THE APPLICANT MUST BE REJECTED IN THEIR ENTIRETY .

33 IN THE CIRCUMSTANCES , THERE IS NO NEED TO CONSIDER THE PRELIMINARY OBJECTIONS RAISED BY THE COMMISSION .

COSTS

34 UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

35 THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .

36 HOWEVER , UNDER THE TERMS OF ARTICLE 70 OF THE SAID RULES , THE COSTS INCURRED BY THE INSTITUTIONS IN ACTIONS BROUGHT BY EMPLOYEES OF THE COMMUNITY ARE TO BE BORNE BY SUCH INSTITUTIONS .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATIONS IN THE JOINED CASES ;

2 . ORDERS EACH PARTY TO PAY ITS OWN COSTS .