Avis juridique important

61969J0023

European Court reports 1970 Page 00547 Danish special edition Page 00095 Greek special edition Page 00379 Portuguese special edition Page 00423

Summary

1 . IN PROCEEDINGS IN WHICH THE COURT HAS UNLIMITED JURISDICTION IT HAS THE POWER, EVEN IN THE ABSENCE OF PROPER CONCLUSIONS NOT ONLY TO ANNUL BUT ALSO TO ORDER OF ITS OWN MOTION THE PAYMENT OF COMPENSATION .

2 . WHERE AN APPEAL IS MADE AGAINST A DECISION TERMINATING THE SERVICE OF AN OFFICIAL TAKEN BY THE COMMISSION AT THE REQUEST OF THE APPLICANT, THE PERIOD FIXED BY ARTICLE 91 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS BEGINS TO RUN FROM THE TIME WHEN IT BECOMES EVIDENT THAT THE REQUEST WAS MADE UNDER THE INFLUENCE OF AN ERROR OCCASIONED BY A WRONGFUL ACT OR OMISSION ON THE PART OF THE COMMISSION AND THE OFFICIAL CONCERNED CAN CLAIM THAT THE DECISION ADVERSELY AFFECTED HIM .

3 . ANY MEASURE WHEREBY THE APPOINTING AUTHORITY STATES DEFINITIVELY AN OFFICIAL' S PECUNIARY RIGHTS AND DETERMINES THE AMOUNTS WHICH IT UNDERTAKES TO PAY THE OFFICIAL ON SPECIFIED DATES CONSTITUTES A MEASURE CAPABLE OF ADVERSELY AFFECTING THE OFFICIAL WITHIN THE MEANING OF ARTICLE 91 OF THE STAFF REGULATIONS .

4 . THE RIGHT TO A FULL PENSION UNDER ARTICLE 5 OF REGULATION NO 259/68 CAN ONLY VEST IN A FORMER OFFICIAL WHO, UPON THE EXPIRY OF THE PERIOD DURING WHICH HE IS ENTITLED TO THE ALLOWANCE, HAS ATTAINED THE AGE OF 55 .

5 . STATEMENTS SUPPLIED SOLELY BY WAY OF INFORMATION, ALBEIT BY THE COMPETENT DEPARTMENTS OF THE APPOINTING AUTHORITY, DO NOT CONSTITUTE MEASURES CREATING RIGHTS FOR THE ADDRESSEES .

6 . THE ADOPTION OF AN INACCURATE INTERPRETATION OF A PROVISION OF THE LAW GOVERNING OFFICIALS DOES NOT CONSTITUTE IN ITSELF A WRONGFUL ACT . EVEN WHERE THE AUTHORITIES REQUEST THOSE CONCERNED TO OBTAIN INFORMATION FROM THE COMPETENT DEPARTMENTS, THEY ARE NOT NECESSARILY BOUND TO GUARANTEE THE CORRECTNESS OF THE INFORMATION SUPPLIED .

7 . DELAY ON THE PART OF THE APPOINTING AUTHORITY IN CORRECTING WRONG INFORMATION UNTIL AFTER THE TIME WHEN THOSE CONCERNED HAVE TO MAKE A DECISION IN THE MATTER CONSTITUTES A WRONGFUL ACT OR OMISSION WHICH RENDERS THE COMMUNITY LIABLE FOR THE CONSEQUENCES OF THE WRONG INFORMATION .

Parties

IN CASE 23/69

ANNELIESE FIEHN, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT 87 SCHADOWSTRASSE, DUESSELDORF, REPRESENTED BY HANS-JOSEF RUEBER, ADVOCATE OF THE LANDGERICHT KOELN, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ANDRE ELVINGER, 84 GRAND-RUE, APPLICANT,

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER PIERRE LAMOUREUX, ACTING AS AGENT, ASSISTED BY JUERGEN UTERMANN, LEGAL ADVISER TO THE COMMISSION, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF EMILE REUTER, LEGAL ADVISER TO THE COMMISSION, 4 BOULEVARD ROYAL, DEFENDANT,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE COMMISSION OF 18 JANUARY 1969,

Grounds

1 IN AN APPLICATION LODGED AT THE REGISTRY ON 2 JUNE 1969 THE APPLICANT HAS ASKED THE COURT IN THE FIRST PLACE TO ANNUL THE DECISION OF 18 JANUARY 1969 RELATING TO A " NOTICE CONCERNING THE SETTLEMENT OF CLAIMS FOR THE ALLOWANCE PROVIDED FOR IN ARTICLE 5 OF REGULATION NO 259/68 " AND, AS A SUBSIDIARY MATTER, THAT SHE BE REINSTATED IN THE ADMINISTRATIVE POSITION WHICH SHE WOULD HAVE HELD HAD SHE NOT SUBMITTED HER REQUEST OF 18 APRIL 1968 FOR A MEASURE TO BE TAKEN TERMINATING HER SERVICE, AND IN PARTICULAR THAT SHE BE ASSIGNED TO A COMPARABLE POST IN THE DEPARTMENTS OF THE COMMISSION OF THE EUROPEAN COMMUNITIES .

THE APPLICATION FOR ANNULMENT

ADMISSIBILITY

2 THE COURT IS ASKED TO RESTORE THE INTERPRETATION ORIGINALLY ADOPTED BY THE COMMISSION OF THE EEC CONCERNING THE PENSION RIGHTS PROVIDED FOR BY ARTICLE 5 OF REGULATION NO 259/68, AND, AS A CONSEQUENCE, TO ANNUL THE " NOTICE CONCERNING THE SETTLEMENT OF CLAIMS FOR THE ALLOWANCE PROVIDED FOR IN ARTICLE 5 OF REGULATION NO 259/68 OF THE COUNCIL ", ADDRESSED TO THE APPLICANT .

3 WHILST IT IS TRUE, AS CLAIMED BY THE DEFENDANT, THAT ARTICLE 91 OF THE STAFF REGULATIONS DOES NOT PERMIT THE COURT TO RULE IN THE ABSTRACT ON THE INTERPRETATION TO BE GIVEN TO A PARTICULAR PROVISION IN THE STAFF REGULATIONS OF OFFICIALS, IN THE PRESENT CASE THE APPLICATION IS PRIMARILY DIRECTED AGAINST THE ABOVEMENTIONED NOTICE .

THIS NOTICE IS INTENDED TO STATE DEFINITIVELY THE PECUNIARY RIGHTS DERIVED BY THE APPLICANT UNDER THE PROVISIONS OF REGULATION NO 259/68 .

4 ACCORDINGLY, SINCE THIS IS AN ACT CAPABLE OF ADVERSELY AFFECTING THE APPLICANT, HER APPLICATION IS ADMISSIBLE .

THE SUBSTANCE OF THE CASE

5 THE APPLICANT CLAIMS THAT THE COMMISSION CONTRAVENED THE FOURTH SUBPARAGRAPH OF ARTICLE 5 ( 7 ) OF REGULATION NO 259/68 BY NOT GRANTING HER THE RIGHT TO A FULL PENSION WITH EFFECT FROM HER 55TH YEAR .

6 THE WORDING OF THE PROVISION IN QUESTION SHOWS CLEARLY THAT THE RIGHT TO A FULL PENSION CAN ONLY VEST IN A FORMER OFFICIAL WHO, UPON THE EXPIRY OF THE PERIOD DURING WHICH HE IS ENTITLED TO THE ALLOWANCE HAS ATTAINED THE AGE OF 55 .

7 THERE ARE MOREOVER, GOOD SOCIAL GROUNDS FOR THE DISPUTED RESTRICTION OF THE RIGHTS TO PENSION .

8 CONVERSELY, FORMER OFFICIALS FOR WHOM THE PERIOD DURING WHICH THEY ARE ENTITLED TO AN ALLOWANCE CEASES AT A LESS ADVANCED AGE AND WHO WILL GENERALLY BE YOUNGER AT THE TIME WHEN THEIR SERVICE TERMINATES, MAY BE PRESUMED CAPABLE OF FINDING DURING THE PERIOD IN WHICH THEY ARE ENTITLED TO AN ALLOWANCE A POST AND PROSPECTS SUFFICIENTLY STABLE FOR THEM NOT TO NEED A RIGHT TO AN EARLY PENSION .

9 THUS THE PROVISION IN QUESTION SEEMS TO ACCORD WITH THE SPIRIT AND GENERAL SCHEME OF THE RULES WHICH USUALLY GOVERN THE QUESTION, ALWAYS A DIFFICULT ONE, OF REDUCING STAFF .

10 THE APPLICANT FURTHER CLAIMS THAT THE CONTESTED MEASURE WAS ADOPTED WITHOUT REGARD FOR HER VESTED RIGHTS .

11 THIS STATEMENT WAS SUPPLIED SOLELY BY WAY OF INFORMATION AND WAS NOT CAPABLE OF DETERMINING RIGHTS WHICH THE APPLICANT WAS TO DERIVE FROM A GIVEN LEGAL SITUATION .

12 THE APPLICATION FOR ANNULMENT MUST THEREFORE BE REJECTED .

APPLICATION FOR COMPENSATION

ADMISSIBILITY

13 SHOULD THE APPLICATION FOR ANNULMENT BE REJECTED THE APPLICANT REQUESTS ALTERNATIVELY THAT SHE BE REINSTATED IN THE ADMINISTRATIVE POSITION SHE WOULD HAVE HELD HAD SHE NOT SUBMITTED ON 18 APRIL 1968 A REQUEST FOR TERMINATION OF SERVICE, AND IN PARTICULAR THAT SHE BE REINSTATED IN A COMPARABLE POST IN THE DEPARTMENTS OF THE COMMISSION .

14 THE DECISION CONTENDS THAT THIS REQUEST, WHICH MUST IMPLY ANNULMENT OF THE DECISION OF 20 JUNE 1968 TERMINATING HER EMPLOYMENT, IS INADMISSIBLE BECAUSE IT WAS SUBMITTED AFTER EXPIRY OF THE PERIOD SPECIFIED BY ARTICLE 91 OF THE STAFF REGULATIONS FOR LODGING AN APPLICATION FOR ANNULMENT .

15 THE DECISION TERMINATING THE APPLICANT' S SERVICE WAS TAKEN BY THE COMMISSION FOLLOWING HER REQUEST OF 18 APRIL 1968 .

16 NEXT, BY ASKING TO BE REINSTATED " IN A COMPARABLE POST " THE APPLICANT HAS SHOWN, BRIEFLY BUT, IN VIEW OF THE CIRCUMSTANCES, ADEQUATELY, THAT HER PRINCIPLE AIM IS TO OBTAIN COMPENSATION FOR THE DAMAGE SUFFERED BY HER OWING TO THE ERROR INTO WHICH SHE WAS LED .

17 SINCE THIS IS AN APPLICATION IN WHICH THE COURT HAS UNLIMITED JURISDICTION IT HAS THE POWER, EVEN IN THE ABSENCE OF PROPER CONCLUSIONS, NOT ONLY TO ANNUL BUT, IF NECESSARY, OF ITS OWN MOTION TO ORDER THE DEFENDANT TO PAY COMPENSATION FOR DAMAGE OCCASIONED BY THE DEFENDANT' S WRONGFUL ACT OR OMISSION .

THE SUBSTANCE OF THE CASE

18 FOR THE APPLICATION TO BE WELL FOUNDED IT MUST BE ESTABLISHED THAT THE DEFENDANT IS LIABLE FOR A WRONGFUL ACT OR OMISSION WHICH CAUSED THE APPLICANT A STILL SUBSISTING INJURY .

19 IT IS NOT CONTESTED THAT THE APPROPRIATE DEPARTMENTS SUPPLIED THE APPLICANT WITH INCORRECT INFORMATION CONCERNING THE RIGHTS WHICH SHE WOULD BE ABLE TO ASSERT IN THE EVENT OF TERMINATION OF HER SERVICE .

20 THE STATEMENTS SUBMITTED BY THE DEFENDANT' S REPRESENTATIVE IN THE COURSE OF THE ORAL PROCEDURE SHOW THAT THE DEPARTMENTS CONCERNED DISCOVERED EARLY IN APRIL THAT THEIR INTERPRETATION OF THE DISPUTED PROVISION IN ARTICLE 5 ON WHICH THEY HAD ACTED WAS, IF NOT INCORRECT, AT LEAST VERY MUCH OPEN TO QUESTION AND THAT IT WAS NOT ACCEPTED BY THE CORRESPONDING DEPARTMENTS IN THE ECSC AND THE EAEC .

21 APART FROM THE EXCEPTIONAL INSTANCE, THE ADOPTION OF AN INCORRECT INTERPRETATION DOES NOT CONSTITUTE IN ITSELF A WRONGFUL ACT .

22 HOWEVER, WHILE IT MAY BE POSSIBLE TO DOUBT THE EXISTENCE OF A WRONGFUL ACT CONCERNING THE SUPPLY OF INCORRECT INFORMATION, THE SAME CANNOT BE SAID OF THE DEPARTMENTS' DELAY IN RECTIFYING THE INFORMATION .

23 THE LETTER OF 20 DECEMBER 1968 FROM THE APPLICANT TO THE DIRECTOR-GENERAL FOR PERSONNEL AND ADMINISTRATION, AND HER COMPLAINT OF 10 FEBRUARY 1969 SHOW THAT HER REQUEST FOR TERMINATION OF SERVICE WAS A RESULT OF THE WRONG INFORMATION WHICH SHE HAD BEEN GIVEN AND WHICH WAS NOT RECTIFIED IN DUE TIME .

24 THE APPLICANT REQUESTS THAT THE DAMAGE WHICH SHE SUFFERED AS A RESULT OF THE COMMISSION' S WRONGFUL ACT SHOULD BE COMPENSATED FOR EITHER BY REINSTATING HER IN A POST COMPARABLE TO HER FORMER ONE, OR BY ORDERING THE COMMISSION TO PAY DAMAGES .

25 AN AWARD OF DAMAGES IS, IN THIS CASE, THE METHOD OF COMPENSATION BEST SUITED BOTH TO THE INTERESTS OF THE APPLICANT AND TO THE REQUIREMENTS OF THE SERVICE .

26 IN THE CIRCUMSTANCES THE COMMISSION SHOULD BE ORDERED TO PAY THE APPLICANT, WHEN SHE HAS ATTAINED THE AGE OF 55 AND UNTIL SHE HAS ATTAINED THE AGE OF 60, A MONTHLY ALLOWANCE EQUIVALENT TO THE PENSION PAYMENTS TO WHICH SHE WOULD HAVE BEEN ENTITLED IF THE PROVISION IN THE FOURTH SUBPARAGRAPH OF ARTICLE 5 ( 7 ) OF REGULATION NO 259/68 HAD BEEN APPLICABLE TO HER .

Decision on costs

27 THE APPLICANT HAS FAILED IN A PART OF HER APPLICATION .

28 HOWEVER, IT FOLLOWS FROM THE FOREGOING THAT THE APPLICATION WAS A RESULT OF A WRONGFUL ACT OR OMISSION ATTRIBUTABLE TO THE DEFENDANT .

29 IN THE CIRCUMSTANCES THE DEFENDANT MUST BE ORDERED TO PAY THE COSTS OF THE ACTION IN ACCORDANCE WITH ARTICLE 69 OF THE RULES OF PROCEDURE .

Operative part

THE COURT ( FIRST CHAMBER ) HEREBY :

1 . DISMISSES THE APPLICATION FOR THE ANNULMENT OF THE DECISION OF 18 JANUARY 1969 REGARDING A " NOTICE CONCERNING THE SETTLEMENT OF CLAIMS FOR THE ALLOWANCE PROVIDED FOR IN ARTICLE 5 OF REGULATION NO 259/68;

2 . ORDERS THE COMMISSION OF THE EUROPEAN COMMUNITIES TO PAY TO THE APPLICANT FROM THE TIME WHEN SHE ATTAINS THE AGE OF 55 AND UNTIL SHE ATTAINS THE AGE OF 60 A MONTHLY ALLOWANCE, EQUAL TO THE PENSION PAYMENTS TO WHICH SHE WOULD HAVE BEEN ENTITLED IF THE PROVISION IN THE FOURTH SUBPARAGRAPH OF ARTICLE 5 ( 7 ) OF REGULATION NO 259/68 HAD BEEN APPLICABLE TO HER;

3 . ORDER THE COMMISSION OF THE EUROPEAN COMMUNITIES TO PAY THE COSTS .