OPINION OF MR ADVOCATE-GENERAL TRABUCCHI

DELIVERED ON 12 MARCH 1975 (*1)

Mr President,

Members of the Court,

1.After having, for over four years, carried out the duties of Head of the ‘Social Structures and Land Tenure’ Division in the Directorate-General for Agriculture of the Commission, the applicant, in consequence of the reorganization of departments associated with the enlargement of the Community, was, on 16 May 1973, the subject of a transfer order under which he was entrusted with responsibility in the same Directorate for the division concerned with ‘tobacco, hops, potatoes and other specialized crops’. He considered himself as having suffered non-material damage as a result of this decision and, in view of certain prior developments and of the circumstances in which it was adopted, he lodged a complaint on 18 June 1973.

Shortly after submission of the complaint through administrative channels, since the closing date for a request to be treated under Council Regulation No 2530/72 was approaching, the official submitted the appropriate request, making it subject to any revocation of the decision to transfer him or the outcome of an application to the Court in the event of his complaint being rejected. If, therefore, through action by the administration or by the Court, the transfer decision was annulled, the request for treatment under the regulation must be regarded as having lapsed.

By decision of 27 June 1973, the Commission granted, with effect from the following 1 July, the request for the regulation to be applied to him.

As there was still no reply from the Commission to the complaint against the transfer decision, Dr Scuppa, in a letter dated 6 October 1973 referred to the connexion between the appeal through administrative channels of 18 June and the request for treatment under the regulation, and asked the Commission to bring the first procedure, which was still pending, to a conclusion with an express decision, because, in his view, this was necessary to give the requisite finality to the decision on voluntary discharge. In the claims set out in his second appeal through administrative channels he particularly requested the Commission to adopt a decision which gave a clear indication of acceptance of the conditions on which he had submitted his request under the regulation and thereby indicated the provisional character of the decision of 27 June 1973 granting his request. He also asked the Commission to indicate formally its readiness to adopt the decisions required by the content and nature of the said request for voluntary discharge, bearing in mind the conditions on which he had submitted it.

The implied decision rejecting his complaint through administrative channels on 18 June, consequent upon the absence of a reply from the Commission, was challenged on 15 January 1974 in the application submitted in Case 4/74.

The implied decision rejecting his complaint of 6 October, consequent upon the absence of a reply from the Commission, was challenged in Case 30/74.

An objection as to admissibility in Case 4/74 was raised by the defendant on the ground that the applicant had not established a legal interest; this was joined to the substance and the two cases were joined for the purposes of the written and oral procedure.

By express direction of the Court, discussion of the substance of Case 4/74 has for the time being been excluded from the oral proceedings.

2.The main purpose of the claims in Case 30/74 is to obtain annulment of the implied decision rejecting the complaint of 6 October in which the applicant asked the Commission to acknowledge formally that the decision on voluntary discharge must be regarded as conditioned by the reservations contained in the request which led to it If I had to follow the applicant along that path I should have to accept as illegal both the request for voluntary discharge, because it was conditional, and, in consequence, the decision of the Commission of 27 June 1973 to grant it.

It is, indeed, clear that the condition attached to the request by the applicant was a vital one. It is also beyond doubt that the competent authority could not, on the basis of a conditional request, adopt a measure whose effectiveness was dependent upon whether or not the contingency to which it was subject took place. Only if the condition had been an inessential qualification of the application would it have been possible to apply the Sabine rule: vitiatur sed non vitiat. If it was of the essence, it would not be possible either to grant the request without taking account of the real intentions of the applicant, in all their ramifications, or to conceive of an act of a public authority being conditional on establishing the truth or otherwise of an unknown factor; it follows inevitably from these circumstances that the decision of 27 June was invalid.

In order to preserve the validity of the measure, it would be of no avail to point to the fact that, under the relevant rules, termination of service could also have been officially imposed. There can be no doubt that, in the present case, the Commission took a decision to grant a request and the legality of the measure adopted by the administration could not be upheld on the basis of premises different from those referred to in the body of the measure itself. As, however, this does not involve a defect on grounds of public policy of which the Court can take judicial notice, I do not believe that, in the absence of a specific request based on this ground from the individual concerned, the Court can declare the provision for termination of service to be null and void.

Moreover, it must be borne in mind that, while basing his case on grounds which are closely connected with the condition he attached to the request for voluntary discharge, the applicant in no way questions the validity of the request itself. From his point of view, the irregularity of the decision concerning termination of service arises solely from the fact that the Commission did not make its decision subject to conditions on the lines he wanted. On that basis, the objection must be rejected because, as has been seen, it was impossible for the Commission to make its decision subject to conditions attached by the person to whom it was addressed.

The decision which I recommend, which is not to annul the measure for voluntary discharge, is also justified on the practical ground that a decision to do so would meet the wishes of neither of the two parties in the action. It would not meet those of the official, who would be reinstated in the service but without any prospect of getting back those duties and finding that kind of human relationship the loss of which led him to seek the termination of his employment at the Commission and on account of which he placed his claim for pecuniary damages before that for annulment of the decision for release. Nor, for obvious reasons, would it suit the Commission.

3.Apart from the alleged irregularity of the decision to terminate his service because the Commission did not make the decision subject to the condition desired by the applicant, the latter, to demonstrate the illegality of the decision, relied on another argument closely linked with the alleged illegality of the transfer decision contested in Case 4/74, viz., its alleged character as, in essence, a disciplinary measure.

In reality, the applicant continues to complain, in each of these cases, of the transfer decision and of the fact that the invidious position in which he was deliberately placed as a result of it decided him to leave Community employment. But it is one thing to claim possible damage for the loss which flows from termination of employment; it is another to contend that the decision adopted by the Commission to discharge him at his own request can be regarded as a disciplinary measure. Clearly no serious consideration can be given to a suggestion of this kind. It is equally reckless to suggest that the decision ought to be regarded as having been adopted on grounds which conflict with the interests of the service.

Once it is established that, though found to be tainted by illegality, the decision of 27 June continues to be valid, the only remaining issue to be considered in connexion with Application 30/74 is that of damages. The applicant states that he suffered loss through being put in the position of having to leave the service of the Community because of the decision to transfer him which, being a sort of punishment in disguise, caused him non-material damage. Even on the assumption, however, that the decision to transfer him had really been in the nature of a punishment, I must point out that, after having, on account of it, just set in motion the procedure of an appeal through administrative channels, giving him an opportunity, which he subsequently seized, to follow this up with an appeal to the Court, there was no need for him to leave the service of the Commission with such haste. He did so of his own free will because he believed that his interests were better served by taking advantage of the particularly favourable terms offered him before a certain date. In any case, therefore, it would be manifestly impossible to uphold his claim to be paid compensation on a basis which would entitle him to receive the whole of the salary he would have had if he had remained in the service.

The application in Case 30/74 must, therefore, be dismissed in its entirety.

As regards the claims in the application in Case 4/74, which were originally the principal ones, it should be noted that, because, as we have seen, the decision of 27 June continues to be valid, the applicant was thereafter in the position of having been discharged ‘at his own request’ and had no longer an interest in obtaining annulment of the decision to transfer him. His application for it is, therefore, inadmissible.

On the application for damages, it is clear that once it is established that there is no real relationship of cause and effect between the transfer decision and the termination of his service, this necessarily precludes any possibility of recognizing the applicant as having suffered any material loss as a result of the decision to transfer him.

All that now remains, then, is the application for compensation for non-material loss. The allegation of non-material loss and the claim for damages therefor was expressly made in the complaints submitted through administrative channels against the transfer decision and there is no doubt that, in exercise of its powers under the ‘pleine juridiction’ conferred on it under Article 91 (1) of the Staff Regulations, this Court can, in the light of the factual circumstances, and quite irrespective of annulment of the act which caused the loss, review the conduct of the Commission in order to ascertain whether it was such as to cause non-material loss to the applicant and give rise to corresponding liability on the part of the Community.

Nor could it be objected that subsequent termination of the applicant's service relationship with the Community closed this channel of appeal, since the loss claimed related to the period of the said service relationship, was intimately bound up with it, and was therefore a loss he suffered as an official.

The fact that the action for annulment of the act which is alleged to have been the cause of the loss is inadmissible does not, in my view, of itself affect the admissibility of the claim for damages. In circumstances where the claim is independent of the annulment in the sense that it does not constitute a means of escape from absolute rules (e.g. from compliance with the time-limits for an appeal) and where it is impossible to dismiss a priori the possibility that the loss alleged was sustained (as I have done in respect of the material loss alleged to have been caused by the transfer decision); or where, more generally, there is no particular connexion between the application for annulment and the application for damages which would prevent the latter from standing on its own, the inadmissibility of the former does not mean that the latter is also inadmissible. This is consistent, moreover, even if only by analogy, with the clear distinction drawn in a wider context by the full Court between an action for annulment and an action for damages (see the judgment in Case 5/71, Zuckerfabrik Schöppenstedt, Rec. 1971, p. 283 and in Case 43/72, Merkur [1973] ECR 1069), and adopted by a Chamber in the case of actions by officials in Case 79/71, Heinemann, (Rec. 1972, p. 589, para. 7 of judgment).

The precedents established by the two Chambers on the subject of actions brought by officials do not, so far as I am aware, contain any specific ruling at variance with the foregoing.

It is true that in several cases one or other Chamber has ruled against the admissibility of an official's application for compensation because of the inadmissibility of an application for annulment of the act which was asserted to be the cause of the alleged loss. But it is clear from a study of each of the judgments involved that no automatic connexion was ever drawn between the inadmissibility of an application for compensation and the inadmissibility of the application for annulment as a matter of principle, but solely on its being established either:

1.that the disputed act was not of such a nature as to be capable of doing harm; establishing this was enough to defeat the admissibility both of the application for annulment and of that for compensation, as in the judgment in Joined Cases 109/63 and 13/64, Charles Muller [1964] ECR 663 and the judgment in Joined Cases 27 and 30/64 [1965] ECR 481; or

2.that there was in fact a specific connexion between the two applications, as was found in the judgment in Case 59/65, Schreckenberg [1966] ECR 543, where the object of the application for damages was solely to make it possible to achieve a result similar to annulment. Once the application had been declared inadmissible there was, therefore, every justification for making the other part of the application suffer the same fate because, though apparently an application for compensation, it was not, in fact, sufficiently independent of the application for annulment. A similar principle was applied in the judgment in Case 4/67, Collignon, (Rec. 1967, p. 439)

in which the application for annulment was inadmissible as being out of time, and it was held that, owing to the close connexion between the two applications, this involved also the inadmissibility of the application for damages; the applicant could have avoided the loss complained of by appealing in tíme against the act which caused it and could not, therefore, circumvent the expiry of the time-limit for appeal by commencing a new action under the guise of an application for damages. The judgment in Case 53/70, Vinck, (Rec. 1971, p. 608) was on identical lines.

In the present case, even if it were held to be impossible to treat the application for annulment in Case 4/74 as merely subsidiary to the application for damages, as the applicant claims, I cannot, on any view, find any reason why the inadmissibility, now established, of the application for annulment should also involve the inadmissibility of the application for damages for any non-material loss. A transfer decision is not in itself a harmful act. But, without first going into the substance of the case, it is impossible to say that in given circumstances it cannot be harmful, at least on the non-material level alone. Though, on losing his status as an official, the applicant no longer has any interest in obtaining the annulment of the transfer decision, he nevertheless continues to have an interest in obtaining compensation in another form for the non-material loss which the decision unlawfully caused him. To refuse to protect a former official's interest in so doing would tend to restrict the protection which this Court must provide in the fullest possible measure for individual rights. It would also strangely restrict the exercise of the powers conferred on the Court under the ‘pleine juridiction’ in Article 91 of the Staff Regulations and which are as capable of being exercised in the case of an application for damages as in any other context. On the other hand, to fall back on the ordinary procedure for compensation on the basis of Article 215 of the Treaty would lead to unwarranted formality, and this would conflict with the pattern of the Court's decisions and the way in which it works. Moreover the Court would find itself burdened in plenary session with questions which could be more conveniently decided by a Chamber, as questions relating to employment.

Since, by express direction of the Court, the substance of Application 4/74 has not yet been the subject of oral argument, provision should be made for the oral procedure to be reopened in order to give the parties an opportunity to submit their arguments solely on the point in abeyance.

As for the remainder, for the reasons explained above, I recommend that the various claims in the two actions be dismissed; pending the outcome on the points still outstanding in Application 4/74, the decision on costs in Case 30/74 is governed by Articles 69 (2) and 70 of the Rules of Procedure.

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(1) Translated from the Italian.