OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 29 JUNE 1972 (*1)

Mr President,

Members of the Court,

Like other proceedings brought before the Court in 1969, the case in which I have to give my opinion today concerns the application of Regulation No 259/68 of the Council of 29 February 1968 (OJ, English Special Edition 1968(I), p. 30). As you know, the special temporary provisions contained in Chapter II of this regulation were intended to enable the Commission to rationalize its departments and reduce the number of posts. To this end officials of the Commission were entitled to submit requests for the premature termination of their service on especially favourable terms. Before this regulation was implemented the President of the Commission had requested the officials concerned on 5 March 1968 to seek information about the financial consequences of termination of service from certain clearly designated officials.

This opportunity was used by the applicant in the present case, who entered the service of the Commission on 1 September 1959 and was finally classified in Grade 4/6. In answer to his request for information he received in April 1968 a document stating the periods during which the temporary allowance would be paid and in what sums. He was also informed of the amount of the full pension which he could expect to receive on reaching the age of 55 years. The applicant claims that this information made him decide to submit an application for the termination of his service on 13 April 1968 (that is, shortly before the expiry of the period fixed for that purpose). A letter from the Directorate-General for Personnel and Administration dated 21 June 1968 informed him that his application was accepted and his service was terminated with effect from 1 October 1968. However, after his retirement from the service, the applicant—like other officials—was informed by telegram dated 20 December 1968 that he was only entitled to a full pension as from the age of 60 years. He considered this to be an impermissible alteration of the promise made to him in April 1968. He accordingly reacted to this communication with a letter to the Directorate-General for Personnel and Administration dated 20 December 1968 in which he explained that, as he had based his application for termination of service in good faith on the accuracy of the information given to him, he could not accept this subsequent communication.

Unlike other officials, the applicant did not lodge a formal complaint under Article 90 of the Staff Regulations but wrote to the Directorate-General for Personnel and Administration on 4 February 1969 to seek information as to the time-limits for lodging an ‘objection’ (‘Einspruch’) to the notice of settlement. In addition, he addressed a letter to the President of the Commission (on 6 February 1969). The letter says that the communication concerning the commencement of payment of the full pension constitutes a modification of the terms of departure (Abgangsbedingungen) and accordingly seeks an amendment to the notice of settlement. A letter in the French language from the Directorate-General for Personnel and Administration dated 12 March 1969 explained the means of redress open to the applicant. Another letter from the same Directorate-General bearing the same date assured the applicant that, in reply to his request in the letter of 6 February 1969, an examination of the problem would be undertaken and that he would be informed of its outcome. This convinced the applicant that he should wait. It was only in a letter dated 17 November 1969 that he reminded the President of the Commission that a decision was still outstanding on the question of payment of the retirement pension as from the age of 55 years; on this point he was informed by a letter of 18 December 1969 from the private office of the President that all the facts necessary for a final settlement of the question were not yet available. At the same time the applicant also inquired orally about his case and received similarly stalling answer from officials of the Commission.

After he became aware that the Court had given judgment in a similar case in Case 23/69 he reminded the Directorate-General for Personnel and Administration in a letter dated 6 January 1971 of his earlier requests and expressed the opinion that this judgment enabled his case to be settled. He received no reply to this letter. He therefore decided on 7 May 1971 to lodge a formal complaint under Article 90 of the Staff Regulations against the notice of settlement of 13 January 1969. In this complaint he asked to be granted a full pension as from the age of 55 years or, in the alternative, that he be given the right to choose once more whether or not to opt for voluntary termination of service. As he also received no reply to this complaint he finally appealed to the Court on 25 August 1971. In his appeal claims that the Court should:

1.Annul the notice of settlement issued by the Commission on 13 January 1969 and fix his rights to the monthly allowance provided for in Article 5 of Regulation No 259/68 in accordance with the particulars provisionally set out in Dodument No 3476/IX/68-F-M Heinemann No 1538;

2.In the alternative, order the Commission of the European Communities to pay the applicant, from the time when he attains the age of 55 until he attains the age of 60, a monthly allowance equal to the retirement pension to which he would be regarded as entitled if the fourth subparagraph of Article 5(7) (of Regulation No 259/68) were applicable to him;

3.In the further alternative, reinstate the applicant in a post corresponding to his earlier position.

The Commission reacted to this by bringing an application under Article 91 of the Rules of Procedure, that is, it sought a ruling on the admissibility of the appeal without going into the substance of the case and the dismissal of the appeal in its entirety as inadmissible. The Chamber did not, however, grant the application but by order of 15 December 1971, reserved the question of admissibility for the final judgment. During the proceedings the Commission adhered to its opinion that the appeal was totally inadmissible. In the alternative it maintains that the appeal must be dismissed as unfounded.

I shall now consider the merits of these conclusions.

I must first deal with the principle head of the conclusions, which seeks to annul the notice of settlement of 13 January 1969 and to fix the temporary monthly allowance at the figures set out in the provisional statement of April 1968.

This head of the conclusions calls for some elucidation.

Contrary to the impression given by the terms in which it is formulated, it is not concerned with the temporary allowance which is payable for a specific period under Article 5(4) of Regulation No 259/68, but only with the question of entitlement to a retirement pension under the fourth subparagraph of Article 5(7) of the regulation. This is clear from the grounds of the appeal and it was expressly accepted by the applicant following an observation made by the Commission on this point.

Thus, the action now only concerns the question whether the applicant is entitled to a full pension as from the age of 55 years.

Having said this, I must deal first and foremost with the admissibility of the main head of the conclusions. This is necessary because admissibility is still trenuously denied by the Commission. In this connexion the Commission points out that the notice of settlement in question was issued as early as 13 January 1969. As no formal complaint against this notice was lodged before the expiry the prescribed period but only on 7 May 1971, the result must be that the appeal lodged on 25 August 1971 is out of time.

Having regard to what has been said in the account of the facts and to the established case-law of the Court, this conclusion is indeed difficult to refute. In particular, the relationship between two letters written by the applicant on 4 and 6 February 1969 make it clear that the request in the second letter for the amendment of the notice of settlement cannot be regarded as a complaint in the meaning of Article 90 of the Staff Regulations. After receiving on 12 March 1969 from the Directorate-General for Personnel and Administration the information he had sought concerning the means of redress open to him, the applicant did not react by lodging a formal complaint within the prescribed time-limit; it can therefore be said that nothing occurred to interrupt the period for lodging an appeal, which began to run on 13 January 1969.

However, the examination of the first head of the conclusions cannot be confined to these observations. The applicant is attempting, in various ways, to escape the unfavourable conclusion which I have just drawn. I must therefore go on to consider whether he can really succeed in doing this.

Thus the applicant refers in particular to the statements made in the two letters of 12 March 1969 from the Directorate-General for Personnel and Administration, as well as to other reactions from the Commission and its officials, some of which he obtained by telephone. He says that these statements and reactions allowed him to conclude that he was being requested to await the outcome of events and that it is consequently impossible for him to have lost his right to refer the matter to the Court. Of course, on the applicant's own admission, this does not mean that there was any agreement between the parties to the proceeding to extend the period for lodging an appeal (which, according to the relevant case-law, is not possible—cf., Case 10/67, Moulijn v Commission of the EEC [1969] ECR 147, Case 24/69, Nebe v Commission of the European Communities [1970] ECR 145, Case 40/71, Richez-Parise v the Commission of the European Communities [1972] ECR and Case 79/70, Helmut Müllers v Economic Social Committee of the EEC and EAEC, [1971] ECR 689). However, Mr Heinemann maintains that another conclusion may be drawn from the fact to which he refers. He considers that the combination of the two letters of 12 March 1969 modify the legal nature of the notice of settlement of 13 January 1969. Their effect in his view was to divest the notice of its binding nature, so that it was ‘reduced to the level’ of preliminary information or mere guidance and remained so until the Court determined whether it constituted a measure adversely affecting an official within the meaning of the Staff Regulations of Officials. The applicant maintains that this is borne out in particular by the fact that, at that time, the administration apparently had no interest in bringing legal proceedings.

However, if we consider whether the applicant's interpretation of the matters to which he refers is actually convincing and can justify the admissibility of the appeal, several points come inevitably to mind.

First, it appears impossible to accept the applicant's view that, at the time in question the administration had an interest in discouraging the applicant from bringing legal proceedings. As we know, several other officials had lodged formal complaints which, in all probability, would result in legal proceedings. It is therefore difficult to accept that it was so important for the administration of the Commission to avoid one more action. There is, therefore, nothing to show that the Commission's attitude towards the applicant over the binding nature of the notice of settlement was the one which he attributes to it.

Secondly, the objective meaning of the letters of 12 March 1969 is also inconsistent with the applicant's interpretation of them. I agree with the Commission that to divest the measure of its binding nature, this being a step having far-reaching consequences, can only be accepted if it is done unequivocally and if (in case such as the present) it is effective in relation to all those concerned by it. However, none of these conditions is satisfied. The truth is that one of the letters of 12 March 1969 merely states that the Commission is not in a position to give its opinion on whether the notice of settlement must be regarded as a measure adversely affecting an official within the meaning of Article 91 (1) of the Staff Regulations, since this question is the subject-matter of a case before the Court. In the other letter of the same date it is true that a promise was given to examine the problem raised, by the applicant but it is obvious that such an examination does not necessarily imply that the binding nature of the measure in dispute will be affected.

Finally, let me note (and this is perhaps the most important observation in the present context) that it is impossible to accept the admissibility of the appeal even if, supposing the premises advanced by the applicant were correct, the Commission's intention was to annul or to suspend the binding effect of the notice of settlement until the problem was resolved by a judicial decision. In fact, the clarification referred to by the applicant was provided by a judgment given on 28 May 1970, the operative part of which was published in the OJ of 4 July 1970. The applicant did not, moreover, as he alleges, become aware of this judgment only at the end of February 1971, but rather, as emerges from his letter of 6 January 1971, at the latest on the date of that letter. The least that can be said is that he could, and, in his position, should, have immediately sought to obtain the details which he did not yet know. Consequently, even if the period for lodging the appeal only began to run from that time, it is therefore clear that the formal complaint lodged on 7 March 1971, and, therefore, the appeal lodged on 25 August 1971, were out of time.

(bb)As, therefore, the arguments which I have just analysed cannot justify the admissibility of the appeal, I must consider whether it can be justified for example, by calling in aid the legal principle of restitutio in integrum on which the applicant also relies.

In this regard, as you are aware, Article 42 of the Protocol on the Statute of the Court of Justice of the EEC provides that ‘No right shall be prejudiced in consequence of the expiry of a time-limit if the party concerned proves the existence of unforeseeable circumstances or of force majeure’. The applicant believes that he can rely on this provision, on the ground that the conduct of the Commission and its officials described above had encouraged him not to lodge an appeal within the prescribed period.

However, in the final analysis this argument too is of no help to the applicant. I can say this without having to consider all the details of the provision in question, which has hitherto only been applied once by the Court (Case 25/65, judgment of 2 March 1967, Societá Industriale Metal-lurgica di Napoli (Simet) and Acciaierie e Ferriere di Roma (Feram) v High Authority of the ECSC, [1967] ECR 42), or even (as the denials made by the Commission make it necessary to do) to examine what was really said in the statements made by the Commission's officials to which the applicant has referred.

On this point two considerations appear to be decisive. First, it is clear from the judgment in Case 79/70 (judgment of 7 July 1971, Müllers v Economic and Social Committee of the EEC and EAEC [1971] ECR 696 et seq.) that even where an official has been misled by the administration he cannot lodge an appeal once the time for doing so has expired. Secondly, even if it were possible to bring into association in the present case the concept of fault (Verschulden) and the question whether the official concerned could have been expected to lodge an appeal, that is, even if his inadequate knowledge of the law were to be regarded as an ‘unforeseeable circumstance’, the decisive factor would still be that the applicant—as I have said—became aware of the true legal position in January 1971, or could have learned of it by exercising reasonable diligence. But then—and this is also implied in the legal principle of restitutio in integrum—he should without further delay have taken the step which he had failed to take within the required time, that is, lodge his appeal. As however, he waited until May 1971 before lodging his complaint and until August 1971 before instituting legal proceedings, the concept of institutio in integrum can be of no help to him.

Therefore, from whatever angle the facts are considered, it must inevitably be found that the prescribed time-limits have not been complied with. The first head of the applicant's conclusions must therefore be dismissed as inadmissible and there is no need to consider another objection put forward by the Commission, that is, the force of res judicata of the judgment of 28 May 1970 in Joined Cases 19, 20, 25 and 30/69 (Richez-Parise v Commission of the European Communities, [1970] ECR 325 et seq.).

In a second, alternative, head of conclusions the applicant requests you to order the Commission to pay him damages in the form, moreover, following the judgment in Case 23/69 ([1970] ECR 547), of the award of a full pension as from the age of 55 years.

This claim also calls for a preliminary examination of certain questions of admissibility which, according to the Commission, arise first in relation to the question of the observance of the time-limit for lodging the appeal and, secondly, out of the conclusion which I have just reached that the application for annulment is inadmissible.

As regards the period for bringing the appeal the Commission considers that a claim for damages may be seen in the letter sent by Mr Heinemann on 6 January 1971 to the Director-General for Personnel and Administration. It maintains that as no reply was given to this letter the claim contained therein must be deemed to have been rejected by implication on 6 March 1971. It concludes therefrom that the applicant should have brought proceedings against this rejection within a period of two months, that is, before 6 May 1971, and not, as was the case, only on 25 August 1971.

It is true that this reasoning appears attractive. In the final analysis, however, I doubt whether it is possible to go along with the Commission on this point. If we examine the letter of 6 January 1971, which was sent to the Director-General for Personnel and Administration and not to the Commission, we find that it merely states that in the meantime the Court had ‘given judgments which appear to enable the examination of the applicant's case’ to be concluded. Mr Heinemann continued by saying that he would be obliged if the administration would some to a decision on his case quickly. The letter thus contained no reference to Article 90 of the Staff Regulations. Another reason for concluding that the question was not formally referred to the Commission is that the applicant did not let it be known that he would institute legal proceedings if necessary.

In the light of the foregoing and taking into account the fact that the letter in question was the work of a person who was not versed in legal matters, it would be unduly severe to conclude that this letter caused time to begin to run, so as to prevent the applicant from instituting proceedings at a later date.

On the other hand, a second objection raised by the Commission gives rise to more delicate problems. It argues that according to the case-law it is not permitted to seek to attain, by means of a claim for damages, an objective the pursuit of which is no longer possible by means of an action for annulment because of failure to comply with the relevant time-limit. The Commission maintains that the present case discloses just such an impermissible circumvention of the action for annulment, since in the alternative head of the conclusions a claim is being pursued (for a full pension as from the age of 55 years) which, by reason of the expiry of the prescribed period, can no longer form the subject of a direct appeal against the notice of settlement of 13 January 1969.

However, if the facts are considered more closely, it can be seen that this objection is also invalid. The judgment in Case 59/65 (judgment of 15 December 1966, Schreckenberg v Commission of the EAEC, [1966] ECR 543), cited in support of its argument by the Commission, in fact concerned a case in which, having failed to seek the annulment of an allegedly unlawful measure, the official concerned nevertheless sought compensation for the loss caused by that very measure. It could therefore be said in that case that the official concerned was seeking to avoid the inadmissibility of the application for annulment, since the application founded on the liability of the administration referred to ‘the same unlawful measure’. This is not the situation in the present case. In order to justify the claim for damages in this case it is unnecessary to plead the illegality of the uncontested notice of settlement. The legality of the notice may even be assumed. In fact the alleged damage does not result from this notice, but rather (as in Case 23/69) from the delay in correcting the wrong information which prompted the applicant to leave the service, that is, from factors which were in existence in April 1968 or until the decision to terminate his service was adopted in June 1968. The impression that the claim constitutes an attempt to avoid an application for annulment is due solely to the fact that, in its judgment in Case 23/69, the First Chamber assessed the compensation in such a way as to be on all fours with a certain conceivable outcome of a judgment in favour of the applicant on an application for annulment. Had my proposals concerning the assessment of the damage been adopted at that time, this false impression could not have arisen.

I therefore consider that the principles established in the judgment in Case 59/65 ([ECR 543) do not, as regards the failure to seek the annulment of the notice of settlement of 13 January 1969, lead to the inescapable conclusion that the application founded on the liability of the administration is inadmissible. This being so, I also consider it unnecessary to go further into the debate which has arisen between the parties over the principles of Article 839 of the German Civil Code and with the question what features of that article might be of value for the purposes of Community law.

As regards the substance of the claim for damages, which, as I have said, is modelled on that contained in Case 23/69 and seeks the award of a full pension as from the age of 55 years, it seems clear that the further course of my examination is clearly prescribed by that case. Two factors were established by that decision. First, the existence of a wrongful act or omission, since it was expressly declared in the other proceedings that the Commission was guilty of a wrongful act or omission by failing to correct in good time the wrong information concerning pension rights which was communicated in April 1968. Secondly, the existence of damage; as in Case 23/69 it must be acknowledged that the applicant in this case suffers damage as a result of the termination of his service and the fact that between the ages of 55 and 60 the rules in force only allow him a reduced pension. The only problem which must be examined is that of the causal link, that is, the question whether the wrong information played a decisive role when the applicant was considering whether he should seek the voluntary termination of his service. In other words it is necessary to consider whether or not, with knowledge of the legal position, the applicant would have decided not to submit this request or to withdraw it.

As I have already pointed out in earlier cases, it is very difficult to answer subjective questions of this kind. It is, moreover, for this reason that the First Chamber was not content with the circumstantial evidence put forward by the parties in the present case in support of their arguments but ordered a witness to be heard in order to obtain clarification in this way of the applicant's real motives.

However, before considering the outcome of this measure of inquiry, I would like briefly to consider the circumstantial evidence pur forward by the parties in order to see what may be learned from this. The Commission attributes great weight to three elements in particular. First, the fact that, unlike the applicant in Case 23/69, Mr Heinemann did not immediately seek his reinstatement into the departments of the Commission on learning that this institutional had changed its opinion as to his pension rights. Secondly, the relative youth of the applicant who was only 50 years old when he terminated his service. Finally, the undisputed fact that the applicant wished to return to his calling as an architect which his duties at the Commission did not allow him to pursue satisfactorily, and that the favourable terms for departure offered by Regulation No 259/68 provided him with a good opportunity to fulfil this wish.

When we consider, therefore, whether in fact, as the Commission believes, these factors yield a sufficiently strong persumption that the applicant would have submitted his request even if he had been aware of the corrected information concerning his rights and that the wrong information originally provided therefore played no decisive role in his decision, we must take the following matters into consideration.

of the factors for evaluation and not as of decisive importance. Moreover, it must be observed that the applicant, who appears to be unversed in legal matters, could have believed that after the final termination of his service there could be no question of simply seeking reinstatement. However that may be, the fact remains that on 6 February 1969 he stated that the corrected information constituted a ‘fundamental modification of the terms of departure’ and that the conditions which had led him to terminate his service prematurely were no longer satisfied. It seems clear that subsequently, during the first months of 1969 (as emerges from the hearing of the witness) and at the beginning of 1970, he inquired about the possibilities of reinstatement into the departments of the Commission.

As regard the age of the applicant when he left the service, I have myself pointed out in my opinion on problems similar to those, in the present case, that this is a very important factor. On the other hand it is clear that it cannot be considered in isolation. In the applicant's case it is particularly necessary to take his family situation into account and the fact that he must provided for several children who, when he is 55 years old, will be aged between 18 and 22, and one will be only 13. In these circumstances, it may be accepted that he regarded as of decisive importance the prospect of receiving a full pension from the age of 55 which would enable him to continue to provide for the further education of his children. Finally, as regards the applicant's wish to return to return to his profession as an architect, it whould be said that he himself admits that this was an important factor in encouraging him to seek the voluntary termination of his service. However, we must not lose sight of the fact that the applicant's plans involved certain risks, since he intended to carry them out in a foreign country, which involved difficulties as regards obtaining a licence to practise and, subsequently, as regards establishing himself. Thus, from this point of view also it is reasonable to believe that the applicant attached decisive importance to the propect of benefiting from the guarantees offered by Community law in order to reduce as far as possible (particularly in the interests of his family) the risks inherent in this change in his employment situation, in other words, that he regarded the prospect of receiving a full pension from the age of 55 as of decisive significance. Whilst the applicant's argument is therefore not weakened by the circumstantial evidence which I have just considered (and, furthermore, it may be said in his favour that he never opted for the severance grant), it is the hearing of the witness which was ordered by the First Chamber which has made it possible to be sure of his motives in applying to terminate his service. The witness, who had been the applicant's immediate superior, informed us on that occasion that, as a result of his numerous contacts with the applicant before he submitted the application for early termination of service, he was aware of all the factors involved in his decision. The witness was able to inform us that the applicant regarded his family situation as the most important consideration, that the problem of the children formed the basis of all considerations and that, in his mind, these factors were linked to the award of a pension from the age of 55. According to the witness the applicant's wish to return to his profession as an architect was a substantial aconsideration solely because he believed he could count on receiving a full pension as from the age of 55. I consider it particularly important that, in answer to the specific question which I put to him, the witness stated that the applicant would not have submitted his request if he had been aware that he would not receive a full pension as from the age of 55. As a result, and in the light of the precise and detailed evidence given by the witness, the only conclusion to be drawn is that even thought at the relevant time, that is, before the Commission modified its legal point of view, there had been no discussion, supported by accurate figures which covered precisely the alternative: a pension as from the age of 55 or as from the age of 60 years, the witness considered that the wrong information on the settlement of pension rights was manifestly a decisive factor in the applicant's thinking which led him to seek the voluntary termination of his service. Furthermore, as the Commission has cast no doubt on the credibility of the witness, who is a Head of Division in its service, it would appear that the question of causality can only be answered in the sense advocated by the applicant. This means, however, that there is no obstacle to allowing the claim, as in Case 23/69, for damages in the form of a full pension as from the date when the applicant attains the age of 55 years.

At the same time this conclusion renders it unnecessary to deal with the applicant's other arguments, that is, to consider whether he would be entitled, in the alternative, to claim to be reinstated into the departments of the Commission, to decide what view to take of his argument that request to leave the service ought to be annulled on the ground that it was made as the result of a mistake and to consider the complaint that, at the least, the conduct of the Commission after 13 January 1969, which misled him into instituting legal proceedings, constitutes a wrongful act or omission.

My opinion may therefore be summarized as follows:

The principle claim made by Mr Heinemann in his application must be dismissed as inadmissible. His alternative claim for damages in admissible [and well-founded. The Commission of the European Communities must therefore be ordered to pay to the applicant from the time when he attains the age of 55 years until he attains the age of 60 years a monthly allowance equal to the pension rights to which he would be entitled if the fourth subparagraph of Article 5 (7) of Regulation No 259/68 were applicable to him. As the applicant may therefore be regarded as having succeeded in the essential part of his case, I consider it appropriate that the Commission should be ordered to pay the costs.

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Translated from the German.