Avis juridique important

61961J0012

European Court reports French edition Page 00537 Dutch edition Page 00569 German edition Page 00587 Italian edition Page 00523 English special edition Page 00271 Danish special edition Page 00267 Greek special edition Page 00629 Portuguese special edition Page 00633

Summary

UNDER ARTICLE 246 ( 3 ) OF THE EEC TREATY AND ARTICLE 214 ( 3 ) OF THE EAEC TREATY THE CONDITIONS OF EMPLOYMENT APPLYING BETWEEN THE COMMUNITIES AND THEIR SERVANTS EMPLOYED ON A CONTRACTUAL BASIS UNDER THE SO-CALLED 'BRUSSELS RULES' DO NOT CREATE ANY DEFINITIVE LEGAL LINK BETWEEN THE PARTIES BEFORE THE ESTABLISHMENT OF THE STAFF REGULATIONS AND THE RULES REFERRED TO IN ARTICLE 212 OF THE EEC TREATY AND ARTICLE 186 OF THE EAEC TREATY . THE APPOINTING AUTHORITY IS THEREFORE NOT ABLE TO GIVE SERVANTS EMPLOYED UNDER THE 'BRUSSELS RULES' LEGALLY VALID GUARANTEES AS TO THE SUBSEQUENT APPLICATION OF THE PROVISIONS OF THE STAFF REGULATIONS TO THEM.

Parties

IN CASE 12/61 WILHELMUS SEVERINUS ANTONIE NANNES GORTER, RESIDING AT 17 VAN MONTFOORT LAAN, THE HAGUE, APPLICANT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ALEX BONN, 22 COTE D'EICH, LUXEMBOURG, ASSISTED BY Y . H . M . NIJGH, ADVOCATE AT THE HOGE RAAD OF THE NETHERLANDS V COUNCILS OF THE EUROPEAN ECONOMIC COMMUNITY AND THE EUROPEAN ATOMIC ENERGY COMMUNITY, TEMPORARILY ESTABLISHED IN BRUSSELS, DEFENDANTS, WITH AN ADDRESS FOR SERVICE AT THEIR SECRETARIAT, 3 RUE LUMIERE, LUXEMBOURG, REPRESENTED BY THEIR LEGAL ADVISER, RAFFAELLO FORNASIER, ACTING AS AGENT, ASSISTED BY JACQUES BASIYN, ADVOCATE AT THE COUR D'APPEL, BRUSSELS,

Subject of the case

APPLICATION FOR COMPENSATION FOR THE LOSS ALLEGEDLY SUFFERED BY THE APPLICANT OWING TO THE NEED TO RESIGN FROM HIS GRADE A 3 POST IN THE LEGAL DEPARTMENT OF THE SECRETARIAT OF THE COUNCILS,

Grounds

THE APPLICATION WAS BROUGHT IN THE PRESCRIBED FORM AND WITHIN THE PRESCRIBED TIME-LIMITS . THE DEFENDANTS HAVE RAISED NO OBJECTION AS TO THE ADMISSIBILITY OF THE APPLICATION . THE APPLICANT BASES HIS CLAIM FOR COMPENSATION, FIRST, ON ARTICLE 246 ( 3 ) OF THE EEC TREATY AND ARTICLE 214 ( 3 ) OF THE EAEC TREATY AND, SECONDLY, ON ARTICLE 42 OF THE STAFF REGULATIONS OF OFFICIALS OF THE ECSC IN CONJUNCTION WITH N . 8 OF THE DECISION OF 25 JANUARY 1958 ADOPTED BY THE COUNCILS OF THE EEC AND EAEC . THE CASE REFERRED TO IN THE ABOVE-MENTIONED ARTICLE 42 IS THAT OF RETIREMENT IN THE INTERESTS OF THE SERVICE, THAT IS, A MEASURE TAKEN BY THE APPOINTING AUTHORITY . HOWEVER, IN THE PRESENT CASE THE APPLICANT HIMSELF TENDERED HIS RESIGNATION . NEVERTHELESS, HE CLAIMS THAT HE WAS FORCED BY MORAL PRESSURE TO RESIGN BY REASON OF THE CONDUCT OF THE SECRETARY GENERAL OF THE COUNCILS AND HE THEREFORE ARGUES THAT IN LAW THE SITUATION LEADING TO THE TERMINATION OF HIS CONTRACT IS EQUIVALENT TO THE RETIREMENT IN THE INTERESTS OF THE SERVICE MENTIONED ABOVE . IT MUST FIRST BE EXAMINED WHETHER THE APPLICANT'S CONTENTION IS CORRECT . IN THE ABSENCE OF UNLAWFUL PRESSURE ON THE APPLICANT, THE ARGUMENT BASED ON ARTICLE 42 OF THE STAFF REGULATIONS OF OFFICIALS OF THE ECSC WOULD BE WITHOUT FOUNDATION, IRRESPECTIVE OF THE QUESTION WHETHER THIS PROVISION IS ALSO APPLICABLE TO OFFICIALS EMPLOYED UNDER THE 'BRUSSELS RULES' FOR CONTRACTS . THE FACT THAT THE SECRETARY-GENERAL OF THE COUNCILS DID NOT CONCEAL FROM THE APPLICANT THAT APPLICATION OF THE PROVISIONS OF THE STAFF REGULATIONS TO HIM WAS DOUBTFUL CANNOT BE REGARDED AS CONSTITUTING UNLAWFUL PRESSURE ON THE APPLICANT . UNDER ARTICLE 246 ( 3 ) OF THE EEC TREATY AND ARTICLE 214 ( 3 ) OF THE EAEC TREATY THE CONDITIONS OF EMPLOYMENT APPLYING BETWEEN THE COMMUNITIES AND THEIR SERVANTS EMPLOYED ON A CONTRACTUAL BASIS UNDER THE SO-CALLED 'BRUSSELS RULES' DO NOT CREATE ANY DEFINITIVE LEGAL LINK BETWEEN THE PARTIES BEFORE THE ESTABLISHMENT OF THE STAFF REGULATIONS AND THE RULES REFERRED TO IN ARTICLE 212 OF THE EEC TREATY AND ARTICLE 186 OF THE EAEC TREATY . IT IS FOR THE APPOINTING AUTHORITY TO ASSESS THE SKILLS AND ABILITIES OF OFFICIALS WITH A VIEW TO THE POSSIBLE APPLICATION OF THE PROVISIONS OF THE STAFF REGULATIONS TO THEM ON THE ENTRY INTO FORCE OF THOSE REGULATIONS . THEREFORE, AT THE PRESENT TIME THE APPOINTING AUTHORITY IS NOT ABLE TO GIVE TO SERVANTS EMPLOYED UNDER THE 'BRUSSELS RULES' LEGALLY VALID GUARANTEES AS TO THE SUBSEQUENT APPLICATION OF THE PROVISIONS OF THE STAFF REGULATIONS TO THEM . IN THESE CIRCUMSTANCES THE SECRETARY-GENERAL OF THE COUNCILS ACTED IN CONFORMITY WITH BOTH THE PROVISIONS IN FORCE AND THE PRINCIPLE OF GOOD FAITH IN, REFUSING ON THE ONE HAND, TO MAKE SUCH GUARANTEES TO THE APPLICANT AND, ON THE OTHER HAND, IN INFORMING HIM OF THE REASONS WHICH COULD, IN HIS OPINION, BE AN OBSTACLE TO THE SUBSEQUENT APPLICATION OF THE PROVISIONS OF THE STAFF REGULATIONS TO HIM . IN THE PRESENT CASE THERE IS NO NEED TO EXAMINE WHETHER THOSE REASONS WERE WELL FOUNDED . IN FACT, IN ORDER TO BRING THIS MATTER BEFORE THE COURT THE APPLICANT SHOULD HAVE WAITED EITHER FOR A DECISION OF DISMISSAL OR A DECISION REFUSING TO APPLY THE PROVISIONS OF THE STAFF REGULATIONS TO HIM . ON THE OTHER HAND, THE INFORMATION GIVEN TO THE APPLICANT BY THE SECRETARY GENERAL OF THE COUNCILS AND THE APPROACHES MADE BY HIM TO THE NETHERLANDS AUTHORITIES MAY BE REGARDED AS MEASURES IN FAVOUR OF THE APPLICANT WHO WAS THUS ENABLED TO TAKE SUCH MEASURES AS HE SAW FIT IN GOOD TIME AND IN FULL KNOWLEDGE OF THE REASONS . THE FACTS ALLEGED BY THE APPLICANT IN NO WAY PROVE THAT HIS RESIGNATION WAS TENDERED BECAUSE OF MORAL PRESSURE . ON THE CONTRARY, IT MUST BE HELD THAT THE APPLICANT FREELY CHOSE TO RESIGN IN ORDER TO TAKE ADVANTAGE OF THE POSSIBILITY OFFERED TO HIM BY THE NETHERLANDS GOVERNMENT TO RETURN TO ITS SERVICE . THE FACT THAT HE DECIDED TO FOLLOW THIS COURSE THROUGH FEAR OF SUBSEQUENT REFUSAL TO APPLY THE PROVISIONS OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES TO HIM WHEN THEY ENTERED INTO FORCE DOES NOT MEAN THAT HE DID NOT TAKE HIS DECISION FREELY, AS HE MOST PROBABLY THOUGHT THAT IT WAS IN HIS INTERESTS TO AVOID THE RISKS WHICH HE WOULD UNDERGO REMAINING IN THE SERVICE OF THE COUNCILS . THE APPLICANT'S CLAIM FOR COMPENSATION FOR THE INJURY WHICH HE CLAIMS TO HAVE SUFFERED FOLLOWING HIS RESIGNATION IS THEREFORE UNFOUNDED . IN HIS REPLY THE APPLICANT PUT FORWARD A SUBSIDIARY ARGUMENT WHICH EFFECTIVELY ACCUSES THE DEFENDANTS OF AN ADMINISTRATIVE ERROR OR A BREACH OF CONTRACT . THIS ALLEGATION IS ENTIRELY WITHOUT FOUNDATION FOR THE REASONS SET OUT ABOVE AND THE CLAIM FOR COMPENSATION MUST THEREFORE BE REJECTED WITHOUT HAVING ANY NEED TO EXAMINE THE FURTHER ARGUMENTS PUT FORWARD BY THE APPLICANT . THE CLAIM FOR REIMBURSEMENT OF CONTRIBUTIONS TO THE PROVIDENT FUND IS NOW WITHOUT PURPOSE AS THE APPLICANT HAS RECEIVED COMPLETE SATISFACTION IN THIS RESPECT .

Decision on costs

THE APPLICANT HAS FAILED IN HIS APPLICATION . HE SHALL THEREFORE BE ORDERED TO PAY THE COSTS . PURSUANT TO ARTICLE 70 OF THE RULES OF PROCEDURE OF THE COURT THE COSTS INCURRED BY THE COUNCILS SHALL BE BORNE BY THEM .

Operative part

THE COURT ( FIRST CHAMBER ) HEREBY 1 . DISMISSES APPLICATION 12/61; 2 . ORDERS THE APPLICANT TO BEAR HIS OWN COSTS WHILE THE COSTS INCURRED BY THE DEFENDANTS ARE TO BE BORNE BY THEM .