Judgment — ECLI:EU:T:2002:178
Date: 2002-07-09
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Leave on personal grounds;Termination of service
Procedure: Staff cases - unfounded;Action for damages - unfounded

SUMMARY — CASE T-70/01 
Summary 
1. Officials — Compulsory resignation - Principle of the right to a fair hearing -
Obligation to hear the official concerned - Scope - Obligation to hear the official 
concerned before the Joint Committee delivers its opinion - None 
(Staff Regulations, Art. 49, second para.) 
2. Officials — Leave on personal grounds - Reinstatement - Administration's offer 
of post subject to reasonable time within which to take up duty — Concept of 
reasonable time 
(Staff Regulations, Art. 40(4) (d)) 
3. Officials - Leave on personal grounds - Reinstatement - Administration's 
obligation to offer the official a post — Offer relating to a specific vacancy — 
Refusal of post offered on two occasions — Compulsory resignation 
(Staff Regulations, Art. 40(4) (d)) 
1. The obligation laid down in the second paragraph of Article 49 of the Staff 
Regulations to hear the official concerned before the reasoned decision requiring 
resignation is taken by the appointing authority is an embodiment of the principle 
of the right to a fair hearing. 
Since the stage at which the hearing of the official concerned must take place, 
namely, before or after the Joint Committee delivers its opinion, is not laid down 
by the second paragraph of Article 49 of the Staff Regulations, that provision must 
be construed as intending to ensure the most effective possible observance of the 
right of the official concerned to a fair hearing. The purpose of the provision is to 
give him an opportunity to express his views at the vital stages of the procedure 
concerned. In that regard, the right of the official concerned to a fair hearing is 
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AIMONE v COURT OF JUSTICE 
observed most effectively when he is in a position to express his views with full 
knowledge of all the facts and circumstances which are at the disposal of the 
appointing authority and, in particular, on the content of the Joint Committee's 
opinion. 
Since the relevant decision under the second paragraph of Article 49 is taken by the 
appointing authority and not by the Joint Committee, an additional opportunity to 
submit observations before the matter is referred to the Joint Committee cannot be 
considered necessary for the protection of the right of the official concerned to a fair 
hearing where he has the opportunity to submit observations on that opinion to that 
authority. 
(see paras 34-37) 
See: Opinion of Advocate General Lenz in 12/87 Heyl v Commission [1988] ECR 2943, 
2949, point 32; T-169/95 Quijano v Commission [1997] ECR-SCI-A-91 and II-273, para. 
44; T-211/98 F v Commission [2000] ECR-SC I-A-107 and II-471, para. 28 
2. 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 offers a post to an official at the end 
of his leave on personal grounds, in accordance with Article 40(4)(d) of the Staff 
Regulations, allowing him a reasonable time within which to take up duty, his 
refusal or failure to take up the post on the date which has been fixed is to be 
treated as a refusal, which is not inconsistent with a purely formal acceptance of the 
post which is not subsequently put into effect. 
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SUMMARY — CASE T-70/01 
The concept of reasonable time in the context of Article 40(4)(d) of the Staff 
Regulations must be assessed objectively taking account of the need to reconcile, on 
the one hand, the administration's obligation to make two offers of reinstatement to 
the official, in particular in a post corresponding to his grade which falls vacant in 
his category or service, and, on the other hand, the fact that there is no obligation 
on the part of the institution to leave open a vacant post in order to suit the 
convenience of the official. Whether or not the time allowed by the administration 
for reinstatement in public office is reasonable depends on the particular 
circumstances of the case. Consequently, a relatively short time could be regarded 
as reasonable if it is justified in the context of the previous relations between the 
institution and the official. 
(see paras 55-56) 
3. Article 40(4)(d) of the Staff Regulations does not provide for the possibility for 
the administration to make an offer of reinstatement in the general sense, but 
provides for reinstatement of an official in a vacant post corresponding to his grade 
and to his category or service, provided that he satisfies the requirements for that 
post. It follows that, pursuant to that provision, the institution is required to offer 
the official a specific vacancy in such a post. If an official declines the post offered 
to him, he retains 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, the applicant may be required to resign in accordance with 
the procedure laid down by Article 40(4)(d) of the Staff Regulations. An official 
cannot simultaneously claim that he is prepared, in principle, to be reinstated and 
refuse the vacant post offered. 
(see para. 63) 
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