61979J0108

1 . PROCEDURE - PERIOD PRESCRIBED FOR BRINGING ACTIONS - MANDATORY REQUIREMENT - COURT TO CONSIDER OF ITS OWN MOTION

2 . OFFICIALS - PROCEEDINGS - PERIODS PRESCRIBED - DATE WHEN PERIOD BEGINS TO RUN - NOTIFICATION OF DECISION ADOPTED IN REPLY TO COMPLAINT - ONUS OF PROOF OF NOTIFICATION

( STAFF REGULATIONS OF OFFICIALS , ART . 91 ( 3 ))

3 . OFFICIALS - PROCEEDINGS - PREPARATORY ACTS - DECISIONS RECORDING REFUSAL OF POSTS OFFERED AT END OF LEAVE ON PERSONAL GROUNDS - ILLEGALITY RELIED ON IN CONNEXION WITH APPLICATION DIRECTED AGAINST DECISION RELATING TO COMPULSORY RESIGNATION

( STAFF REGULATIONS OF OFFICIALS , ARTS 40 ( 4 ) ( D ) AND 91 )

4 . OFFICIALS - LEAVE ON PERSONAL GROUNDS - REINSTATEMENT - ADMINISTRATION ' S OFFER OF EMPLOYMENT SUBJECT TO REASONABLE TIME-LIMIT FOR TAKING UP DUTY - REFUSAL OF POST OFFERED - CRITERIA

( STAFF REGULATIONS OF OFFICIALS , ART . 40 ( 4 ) ( D ))

1 . SINCE OBSERVANCE OF THE PERIODS PRESCRIBED FOR BRINGING ACTIONS IS A MANDATORY REQUIREMENT IT IS FOR THE COURT TO ASCERTAIN , EVEN OF ITS OWN MOTION , WHETHER IT HAS BEEN COMPLIED WITH .

2 . THE ONUS OF PROVING NOTIFICATION OF A DECISION ADOPTED IN REPLY TO A COMPLAINT WITHIN THE MEANING OF THE FIRST INDENT OF ARTICLE 91 ( 3 ) OF THE STAFF REGULATIONS OF OFFICIALS AND OF THE DATE OF SUCH NOTIFICATION LIES ON THE DEFENDANT INSTITUTION .

3 . IT FOLLOWS FROM ARTICLE 40 ( 4 ) ( D ) OF THE STAFF REGULATIONS THAT DECISIONS RECORDING THE SUCCESSIVE REFUSALS OF AN OFFICIAL TO ACCEPT THE POSTS OFFERED TO HIM AT THE END OF HIS LEAVE ON PERSONAL GROUNDS ARE ONLY DECISIONS PREPARATORY TO THE DECISION REQUIRING THE APPLICANT TO RESIGN , SO THAT THE POSSIBILITY THAT THEY MAY BE ILLEGAL MAY BE RELIED ON IN AN ACTION BROUGHT AGAINST SUCH RESIGNATION .

4 . WHEN A VACANT POST IN AN ADMINISTRATION IS FILLED REGARD MUST BE HAD TO THE EXIGENCIES OF THE PUBLIC SERVICE RATHER THAN TO THE PERSONAL CONVENIENCE OF OFFICIALS . CONSEQUENTLY WHEN THE COMPETENT AUTHORITY , IN PURSUANCE OF ARTICLE 40 ( 4 ) ( D ) OF THE STAFF REGULATIONS , OFFERS A POST TO AN OFFICIAL , ALLOWING HIM A REASONABLE TIME WITHIN WHICH TO TAKE UP DUTY , HIS REFUSAL OR FAILURE TO TAKE THE POST UP ON THE DATE WHICH HAS BEEN FIXED MAY BE TREATED AS A REFUSAL , WHICH IS NOT INCONSISTENT WITH A PURELY FORMAL ACCEPTANCE OF THE POST WHICH IS NOT SUBSEQUENTLY PUT INTO EFFECT .

IN CASE 108/79

SALVATORE BELFIORE , OF 41 CIRRINCIONE , PALERMO , REPRESENTED BY G . VANDERSANDEN , OF THE BRUSSELS BAR , 341 AVENUE LOUISE , BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT , ADVOCATE , 34 RUE PHILIPPE II ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY DENISE SORASIO , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY ROBERT ANDERSEN , OF THE BRUSSELS BAR , 214 AVENUE MONTJOIE , BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , M . CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF THE COMMISSION ' S DECISION OF 12 JUNE 1978 REQUIRING THE APPLICANT TO RESIGN ,

1 THE APPLICATION WHICH THE APPLICANT , A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES IN GRADE A 7 , LODGED ON 4 JULY 1979 IS FOR THE ANNULMENT OF THE COMMISSION ' S DECISION OF 12 JUNE 1978 REQUIRING HIM TO RESIGN .

2 THE CONTESTED DECISION IS BASED ON ARTICLE 40 ( 4 ) ( D ) OF THE STAFF REGULATIONS OF OFFICIALS UNDER WHICH AN OFFICIAL WHO , ON THE EXPIRY OF LEAVE ON PERSONAL GROUNDS , HAS TWICE DECLINED THE POST WHICH HE HAS BEEN OFFERED WITH A VIEW TO HIS REINSTATEMENT , MAY BE REQUIRED TO RESIGN AFTER THE JOINT COMMITTEE HAS BEEN CONSULTED .

ADMISSIBILITY

3 BEFORE A DECISION IS GIVEN ON THE SUBSTANCE OF THE CASE IT IS NECESSARY TO CONSIDER WHETHER THE ACTION MUST NOT BE HELD TO BE INADMISSIBLE BECAUSE IT HAS BEEN BROUGHT OUTSIDE THE PERIOD LAID DOWN BY ARTICLE 91 ( 3 ) OF THE STAFF REGULATIONS . SINCE OBSERVANCE OF THE PERIODS PRESCRIBED FOR BRINGING ACTIONS IS A MANDATORY REQUIREMENT IT IS FOR THE COURT TO ASCERTAIN , EVEN OF ITS OWN MOTION , WHETHER IT HAS BEEN COMPLIED WITH .

4 THE DECISION OF 12 JUNE 1978 BY WHICH THE APPLICANT WAS REQUIRED TO RESIGN WAS NOTIFIED TO HIM IN A LETTER SENT BY POST ON 15 JUNE 1978 TO HIS ADDRESS : 14 VIA O . SOZZI , PALERMO . AGAINST THAT DECISION HE LODGED A COMPLAINT DATED 11 SEPTEMBER 1978 WHICH WAS REGISTERED AT THE SECRETARIAT OF THE COMMISSION ON 9 OCTOBER 1978 . THE COMPLAINT WAS REJECTED - AFTER THE EXPIRY OF THE PERIOD OF FOUR MONTHS IMPOSED ON THE COMPETENT AUTHORITY BY ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS - BY A LETTER DATED 12 FEBRUARY 1979 AND SENT BY POST TO THE APPLICANT AT THE ABOVE-MENTIONED ADDRESS .

THE ACTION FOR ANNULMENT WAS BROUGHT ON 4 JULY 1979 , THAT IS TO SAY NEARLY FIVE MONTHS AFTER THE DATE WHEN THE COMPLAINT WAS REJECTED , ALTHOUGH UNDER ARTICLE 91 OF THE STAFF REGULATIONS IT MUST BE COMMENCED WITHIN THE PERIOD OF THREE MONTHS BEGINNING ON THE DATE OF NOTIFICATION OF THE DECISION TAKEN IN RESPONSE TO THE COMPLAINT .

5 ON THIS POINT THE APPLICANT POINTS OUT THAT HE DID NOT RECEIVE THE LETTER IN QUESTION UNTIL 5 APRIL 1979 AND HE ATTRIBUTES THIS DELAY TO THE NEGLIGENCE OF THE COMMISSION WHICH SENT THIS LETTER TO AN ADDRESS AT WHICH HE WAS NO LONGER LIVING WHEN IT COULD AND SHOULD HAVE KNOWN HIS NEW ADDRESS , 41 VIA CIRRINCIONE , PALERMO . HE STATES THAT HE WAS NOT THEREFORE NOTIFIED UNTIL 5 APRIL 1979 WITH THE RESULT THAT THE ACTION HAS BEEN BROUGHT WITHIN THE PRESCRIBED PERIOD AND IS ADMISSIBLE .

THE APPLICANT , IN SUPPORT OF THIS REASONING , POINTS OUT THAT HIS COMPLAINT OF 11 SEPTEMBER 1978 WAS SENT BY REGISTERED LETTER WITH A FORM FOR ACKNOWLEDGEMENT OF RECEIPT WHICH MENTIONED HIS NEW ADDRESS AND THAT THAT ADDRESS WAS ALSO ENDORSED ON THE BACK OF THE ENVELOPE OF THE LETTER .

6 THE FACTS RELIED ON BY THE APPLICANT DO NOT ESTABLISH THE EXISTENCE OF THE NEGLIGENCE ALLEGED . ACKNOWLEDGEMENTS OF RECEIPT OF A REGISTERED LETTER ARE NOT IN FACT LEFT BY THE POSTAL AUTHORITIES IN THE HANDS OF THE ADDRESSEE AND AN ADMINISTRATION WHICH RECEIVES EACH DAY A LARGE NUMBER OF POSTAL COMMUNICATIONS IS NOT UNDER A DUTY TO EXAMINE EACH TIME THE BACKS OF THE ENVELOPES WITH A VIEW TO CHECKING WHETHER THE SENDER HAS NOT CHANGED THE ADDRESS PREVIOUSLY NOTIFIED . IT WAS ONLY BY A LETTER OF 5 FEBRUARY 1979 WHICH REACHED THE COMMISSION ON 13 FEBRUARY 1979 , THAT IS TO SAY THE DAY AFTER THE DESPATCH OF THE LETTER REJECTING THE COMPLAINT , THAT THE APPLICANT GAVE ONE OF THE COMMISSION ' S DEPARTMENTS HIS NEW ADDRESS AND ASKED THAT ANY FUTURE CORRESPONDENCE SHOULD BE SENT TO HIM THERE .

7 HOWEVER IT IS NECESSARY TO POINT OUT THAT THE COMMISSION DESPATCHED THE LETTER OF 12 FEBRUARY 1979 WITHOUT TAKING THE PRECAUTION OF HAVING IT REGISTERED OR ARRANGING TO HAVE IT ACCOMPANIED BY A FORM FOR ACKNOWLEDGEMENT OF RECEIPT , EVEN THOUGH IT HAD TAKEN BOTH THOSE STEPS WHEN IT SENT PREVIOUS MESSAGES TO THE APPLICANT . IN THESE CIRCUMSTANCES AND TAKING INTO ACCOUNT THE FACT THAT THE ONUS OF PROVING NOTIFICATION AND THE DATE THEREOF LIES ON THE COMMISSION , IT MUST BE DECLARED THAT THE LATTER HAS PLACED ITSELF IN A POSITION IN WHICH IT CANNOT ADDUCE CONCLUSIVE EVIDENCE ON THIS POINT AND THAT , IN THE CASE OF NOTIFICATION OF SUCH AN IMPORTANT DECISION AS COMPULSORY RESIGNATION , THE APPLICANT IS ENTITLED TO THE BENEFIT OF THE SLIGHT DOUBT AS TO THE DATE WHEN THE PERIOD PRESCRIBED FOR BRINGING THE ACTION BEGAN TO RUN .

8 THE COMMISSION RELIES ON A FURTHER GROUND IN SUPPORT OF THE INADMISSIBILITY OF THE CLAIM , NAMELY THAT THE CONTESTED DECISION IS ONLY THE CONSEQUENCE OF THE TWO PRECEDING DECISIONS BY WHICH THE COMPETENT AUTHORITY RECORDED ITS FINDING UNDER ARTICLE 40 ( 4 ) ( D ) OF THE STAFF REGULATIONS , THAT THE APPLICANT HAD DECLINED TO ACCEPT THE FIRST AND SECOND POST OFFERED TO HIM WITH A VIEW TO HIS REINSTATEMENT AT THE END OF HIS LEAVE ON PERSONAL GROUNDS . SINCE THE APPLICANT DID NOT LODGE A COMPLAINT OR BRING AN ACTION AGAINST THOSE DECISIONS , THE DEFENDANT CLAIMS THAT THEY SHOULD BE REGARDED AS DEFINITIVE AND THE POSSIBILITY THAT THEY MIGHT BE ILLEGAL MAY NO LONGER BE RELIED ON TO SUPPORT AN APPLICATION FOR THE ANNULMENT OF HIS COMPULSORY RESIGNATION .

9 THIS CLAIM MUST BE REJECTED . UNDER ARTICLE 40 ( 4 ) ( D ) OF THE STAFF REGULATIONS AN OFFICIAL WHO , ON THE EXPIRY OF LEAVE ON PERSONAL GROUNDS , TWICE DECLINES POSTS OFFERED TO HIM MAY BE REQUIRED TO RESIGN . CONSEQUENTLY , THE DOCUMENTS RECORDING THESE REFUSALS - IN SO FAR AS THEIR SCOPE IS OTHER THAN PURELY DECLARATORY - ARE ONLY DECISIONS PREPARATORY TO THE DECISION REQUIRING THE APPLICANT TO RESIGN , SO THAT THE POSSIBILITY THAT THEY MAY BE ILLEGAL MAY BE RELIED ON IN AN ACTION BROUGHT AGAINST SUCH RESIGNATION .

10 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE APPLICATION MUST BE HELD TO BE ADMISSIBLE .

THE SUBSTANCE

11 ACCORDING TO ARTICLE 40 ( 4 ) ( D ) OF THE STAFF REGULATIONS OF OFFICIALS :

' ' ON THE EXPIRY OF HIS LEAVE AN OFFICIAL MUST BE REINSTATED IN THE FIRST POST CORRESPONDING TO HIS GRADE WHICH FALLS VACANT IN HIS CATEGORY OR SERVICE , PROVIDED THAT HE SATISFIES 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 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 UNPAID LEAVE ON PERSONAL GROUNDS . ' '

12 THE CONTESTED DECISION , AFTER DRAWING ATTENTION TO THE LETTERS EXCHANGED AND THE INTERVIEWS BETWEEN THE APPLICANT AND THE ADMINISTRATION WITH A VIEW TO HIS REINSTATEMENT AFTER THE EXPIRY OF HIS LEAVE ON PERSONAL GROUNDS , RECITES THAT WITH REGARD TO THE FIRST OFFER OF A POST THE APPLICANT ' ' WITHOUT DECLINING THE POST OFFERED TO HIM , MADE HIS ACCEPTANCE SUBJECT TO UNACCEPTABLE CONDITIONS OF SUCH A NATURE THAT THE SAID ACCEPTANCE WAS VALUELESS AND MUST BE REGARDED AS A REFUSAL ' ' AND THAT WITH REGARD TO THE SECOND OFFER OF A POST ' ' HE DID NOT APPEAR ON THE DATE APPOINTED FOR THE RESUMPTION OF HIS DUTIES , WHICH HAD BEEN FIXED FOLLOWING AN EXTENSION OF THE TIME-LIMIT GRANTED AT HIS REQUEST ' ' AND ' ' THAT THIS FACT HAS BEEN TREATED AS A REFUSAL OF THE SECOND POST OFFERED HIM WITH A VIEW TO HIS REINSTATEMENT ' ' .

13 ACCORDING TO THE APPLICANT THAT DECISION IS VITIATED BY A MISTAKE OF LAW AND INFRINGES ARTICLE 40 ( 4 ) ( B ) IN AS MUCH AS THE COMMISSION WRONGLY TOOK THE VIEW THAT HE HAD DECLINED THE POSTS OFFERED TO HIM , WHEN IN FACT , AFTER HE HAD ACCEPTED THEM , HE MERELY APPLIED IN EACH CASE FOR THE DATE WHEN HE WAS TO TAKE UP HIS DUTIES AGAIN TO BE ADJOURNED , AND THE FACT THAT HE FOUND IT IMPOSSIBLE TO RESUME WORK ON THE DATE FIXED BY THE COMMISSION CANNOT BE ASSIMILATED TO A REFUSAL OF THE POST .

14 THIS SUBMISSION MUST BE REJECTED . THE COURT FILE SHOWS THAT THE COMMISSION FIRST OFFERED THE APPLICANT A POST BY A LETTER DATED 1 OCTOBER 1975 AND ASKED HIM TO FIX A DATE ' ' AS SOON AS POSSIBLE ' ' FOR TAKING UP HIS DUTIES AGAIN . THE APPLICANT SUGGESTED THE MONTH OF JUNE 1976 , THAT IS , A PERIOD OF EIGHT MONTHS , AND THE COMMISSION WAS FULLY JUSTIFIED , HAVING REGARD TO THE EXIGENCIES OF THE SERVICE , IN REFUSING TO AGREE TO A PERIOD WHICH COULD UNDER NO CIRCUMSTANCES BE REGARDED AS REASONABLE AND BONA FIDE . THE COMMISSION FIXED THE DATE OF RESUMPTION OF DUTY AS 1 FEBRUARY 1976 ( FOUR MONTHS ) BUT HE REFUSED TO RESUME WORK ON THAT DATE . ON 16 SEPTEMBER 1976 THE COMMISSION OFFERED HIM A SECOND POST AND FIXED THE DATE FOR STARTING WORK AT 3 NOVEMBER 1976 . THE APPLICANT ACCEPTED THE POST BUT ASKED TO BE ALLOWED TO NEGOTIATE WITH REGARD TO THE DATE OF HIS RETURN . THE COMMISSION , SHOWING GREAT CONSIDERATION , ACCEDED TO THIS REQUEST AND AFTER THE APPLICANT HAD ARRANGED FOR POSTPONEMENT OF A FIRST INTERVIEW HE AGREED TO TAKE UP HIS DUTIES AGAIN ON 1 DECEMBER 1976 . ON 30 NOVEMBER 1976 HE SENT A TELEGRAM STATING THAT ' ' UNFORESEEN CIRCUMSTANCES ' ' PREVENTED HIM FROM LEAVING .

15 WHEN A VACANT POST IN AN ADMINISTRATION IS FILLED REGARD MUST BE HAD TO THE EXIGENCIES OF THE PUBLIC SERVICE RATHER THAN TO THE PERSONAL CONVENIENCE OF OFFICIALS . CONSEQUENTLY IF THE TIME-LIMITS WHICH THE OFFICIAL CONCERNED IS ALLOWED ARE REASONABLE , WHICH THEY CLEARLY WERE IN THIS CASE , HIS REFUSAL OR FAILURE TO TAKE UP A POST ON THE DATE WHICH HAS BEEN FIXED MAY RIGHTLY BE TREATED BY THE COMPETENT AUTHORITY AS A REFUSAL , WHICH IS NOT INCONSISTENT WITH A PURELY FORMAL ACCEPTANCE OF THE POST WHICH IS NOT SUBSEQUENTLY PUT INTO EFFECT .

16 THAT APPLIES ALL THE MORE IN THE APPLICANT ' S CASE , BECAUSE THE FAMILY REASONS RELIED ON A POSTERIORI TO JUSTIFY HIS ATTITUDE , EVEN IF THEY WERE SHOWN TO BE GENUINE , AS IN FACT THEY HAVE NOT BEEN , WERE NOT OF SUCH A KIND AS TO PREVENT HIS TAKING UP THE POST WITHIN THE PRESCRIBED PERIOD .

17 THE COMMISSION HAS THEREFORE PROPERLY APPLIED ARTICLE 40 ( 4 ) ( D ) OF THE STAFF REGULATIONS OF OFFICIALS IN FORMING THE OPINION THAT THE APPLICANT ' S CONDUCT WAS TANTAMOUNT TO DECLINING A POST TWICE WHICH , ACCORDING TO THE SAID PROVISION , JUSTIFIES HIS COMPULSORY RESIGNATION .

18 IT FOLLOWS FROM THESE CONSIDERATIONS THAT THE APPLICATION IS UNFOUNDED AND MUST BE DISMISSED .

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

HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES INSTITUTIONS ARE TO BEAR THEIR OWN COSTS , WITHOUT PREJUDICE TO THE SECOND PARAGRAPH OF ARTICLE 69 ( 3 ) OF THE RULES .

HAVING REGARD TO THE CIRCUMSTANCES OF THIS CASE THE COURT IS OF THE OPINION THAT THE ACTION IN RESPECT OF WHICH THE COMMISSION HAS HAD TO INCUR COSTS IS VEXATIOUS AND THAT THEY MUST BE BORNE BY THE APPLICANT . THE APPLICANT MUST THEREFORE BE ORDERED TO PAY THE WHOLE OF THE COSTS .

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE APPLICANT TO PAY THE WHOLE OF THE COSTS .