61982CJ0342_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 342/82,
HARTOG COHEN, A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, OF 51 AVENUE DES NERVIENS, BRUSSELS 1040, ASSISTED AND REPRESENTED BY EDMUND LEBRUN, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER, ADVOCATE, 83 BOULEVARD GRANDE-DUCHESSE-CHARLOTTE,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY JOHN FORMAN, A MEMBER OF THE LEGAL DEPARTMENT, ACTING AS AGENT, ASSISTED BY CLAUDE VERBRAEKEN, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO, A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR :
THE ANNULMENT OF THE DECISION OF 27 NOVEMBER 1981, INASMUCH AS THE INVALIDITY COMMITTEE HELD THAT THE APPLICANT ' S INVALIDITY DID NOT ARISE FROM A PUBLIC-SPIRITED ACT ;
THE ANNULMENT OF THE COMMISSION ' S DECISION OF 11 DECEMBER 1981 WHEREBY THE APPLICANT WAS AWARDED AN INVALIDITY PENSION UNDER THE THIRD PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS AND NOT UNDER THE SECOND PARAGRAPH THEREOF ;
THE ANNULMENT OF THE DECISION REJECTING THE COMPLAINT THEREON LODGED ON 10 MARCH 1982 ;
AN ORDER THAT THE COMMISSION SHOULD PAY THE APPLICANT THE INVALIDITY PENSION WITH RETROACTIVE EFFECT TO 1 JANUARY 1982, AT THE RATE LAID DOWN BY THE SECOND PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS,
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 24 DECEMBER 1982, HARTOG COHEN, A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, BROUGHT AN ACTION ESSENTIALLY FOR THE ANNULMENT OF THE INVALIDITY COMMITTEE ' S DECISION OF 27 NOVEMBER 1981 AND THE COMMISSION ' S DECISION OF 11 DECEMBER 1981 REFUSING HIM AN INVALIDITY PENSION UNDER THE SECOND PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS OF OFFICIALS, BUT GRANTING HIM SUCH A PENSION UNDER THE THIRD PARAGRAPH OF THAT ARTICLE .
2 THE FIRST PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS PROVIDES THAT OFFICIALS ARE ENTITLED TO AN INVALIDITY PENSION IN THE CASE OF TOTAL PERMANENT INVALIDITY ; THE SECOND AND THIRD PARAGRAPHS THEREOF STIPULATE AS FOLLOWS :
' ' WHERE THE INVALIDITY ARISES FROM AN ACCIDENT IN THE COURSE OF OR IN CONNECTION WITH THE PERFORMANCE OF HIS DUTIES, FROM AN OCCUPATIONAL DISEASE, FROM A PUBLIC-SPIRITED ACT OR FROM RISKING HIS LIFE TO SAVE ANOTHER HUMAN BEING, THE INVALIDITY PENSION SHALL BE 70% OF THE BASIC SALARY OF THE OFFICIAL .
WHERE THE INVALIDITY IS DUE TO SOME OTHER CAUSE, THE INVALIDITY PENSION SHALL BE EQUAL TO THE RETIREMENT PENSION TO WHICH THE OFFICIAL WOULD HAVE BEEN ENTITLED AT THE AGE OF 65 YEARS IF HE HAD REMAINED IN THE SERVICE UNTIL THAT AGE ' ' .
3 IT APPEARS FROM THE PAPERS BEFORE THE COURT THAT THE APPLICANT, WHO IS A NETHERLANDS NATIONAL BORN ON 17 DECEMBER 1917, WAS AN OFFICIAL AT THE COMMISSION FROM 1 JUNE 1970 AND THAT HIS LAST POST WAS IN GRADE L/A 4 AT THE DIRECTORATE GENERAL FOR PERSONNEL AND ADMINISTRATION .
4 ON 27 NOVEMBER 1981, AN INVALIDITY COMMITTEE, CONSTITUTED AT THE COMMISSION ' S INSTIGATION, CONCLUDED THAT THE APPLICANT ' S INVALIDITY AMOUNTED TO ' ' TOTAL PERMANENT INVALIDITY PREVENTING HIM FROM PERFORMING THE DUTIES CORRESPONDING TO A POST IN HIS CAREER BRACKET AND THAT, ON THAT GROUND, HE IS REQUIRED TO CEASE TO PERFORM HIS DUTIES AT THE COMMISSION ' ' . IN ADDITION, THE INVALIDITY COMMITTEE DECLARED THAT THE APPLICANT ' S INVALIDITY ' ' DOES NOT ARISE FROM AN ACCIDENT IN THE COURSE OF THE PERFORMANCE OF HIS DUTIES, FROM AN OCCUPATIONAL DISEASE, FROM A PUBLIC-SPIRITED ACT OR FROM HIS RISKING HIS LIFE TO SAVE ANOTHER HUMAN BEING ' ' .
5 ON 11 DECEMBER 1981, THE COMMISSION DECIDED, HAVING REGARD TO THE INVALIDITY COMMITTEE ' S CONCLUSIONS, TO GRANT THE APPLICANT AN INVALIDITY PENSION AWARDED UNDER THE THIRD PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS .
6 ON 10 MARCH 1982, THE APPLICANT LODGED A COMPLAINT UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS AGAINST THE DECISIONS OF THE INVALIDITY COMMITTEE AND THE COMMISSION OF 27 NOVEMBER AND 11 DECEMBER 1981 RESPECTIVELY . IN HIS COMPLAINT THE APPLICANT CLAIMED THAT HIS INVALIDITY WAS THE DIRECT CONSEQUENCE OF HIS ACTIVITIES IN THE NETHERLANDS RESISTANCE IN THE SECOND WORLD WAR AND, ACCORDINGLY, OF A PUBLIC-SPIRITED ACT ENTITLING HIM TO AN INVALIDITY PENSION AWARDED UNDER THE SECOND PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS .
7 THE APPLICANT ' S COMPLAINT WAS EXPRESSLY REJECTED BY A LETTER FROM THE COMMISSION DATED 5 OCTOBER 1982 . IN THAT LETTER, THE COMMISSION EMPHASIZED THAT THE MAIN QUESTION RAISED IN THE COMPLAINT WAS WHETHER, IN
ORDER TO CONFER ENTITLEMENT TO A PENSION UNDER THE SECOND PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS, THE PUBLIC-SPIRITED ACT MUST HAVE BEEN PERFORMED WHEN THE PERSON CONCERNED WAS IN THE SERVICE OF THE COMMUNITIES . THE COMMISSION ANSWERED THAT QUESTION IN THE AFFIRMATIVE AND THEN STATED THAT, IN THOSE CIRCUMSTANCES, IT WAS NOT NECESSARY TO REFER THE CASE BACK TO THE INVALIDITY COMMITTEE FOR RE-EXAMINATION .
8 THE APPLICANT THEN BROUGHT THIS ACTION, PRIMARILY FOR THE ANNULMENT OF THE DECISIONS OF THE INVALIDITY COMMITTEE AND THE COMMISSION OF 27 NOVEMBER AND 11 DECEMBER 1981 RESPECTIVELY AND FOR AN ORDER REQUIRING THE COMMISSION TO PAY, WITH RETROACTIVE EFFECT TO 1 JANUARY 1982, THE INVALIDITY PENSION AT THE RATE FIXED IN THE SECOND PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS . IN THE ALTERNATIVE, THE APPLICANT REQUESTS THE COURT TO DECLARE THAT THAT PARAGRAPH ALSO APPLIES WHERE A PUBLIC-SPIRITED ACT HAS BEEN PERFORMED PRIOR TO ENTRY INTO THE SERVICE OF THE COMMUNITIES . HE ALSO ASKS THE COURT TO ORDER THAT A FRESH INVALIDITY COMMITTEE BE CONVENED . FINALLY, IN THE FURTHER ALTERNATIVE, THE APPLICANT REQUESTS THE COURT, BEFORE DECIDING ON THE SUBSTANCE OF THE CASE, TO ORDER ALL MEASURES OF INQUIRY NECESSARY TO ESTABLISH WHETHER THE INVALIDITY COMMITTEE CONSIDERED THE QUESTION OF THE CAUSAL CONNECTION BETWEEN THE APPLICANT ' S INVALIDITY AND HIS ACTIVITIES IN THE NETHERLANDS RESISTANCE DURING THE WAR OF 1940 TO 1945 .
9 IN SUPPORT OF HIS CONCLUSIONS, THE APPLICANT MAINTAINS THAT THE DISPUTED DECISIONS DO NOT CONTAIN AN ADEQUATE STATEMENT OF THE REASONS ON WHICH THEY ARE BASED AND THAT THEY ARE VITIATED EITHER BY A MISTAKE OF FACT OR BY A MISTAKE OF LAW . THE APPLICANT EMPHASIZES IN PARTICULAR THAT IT IS NOT CLEAR FROM THE INVALIDITY COMMITTEE ' S DECISION THAT IT CONSIDERED THE QUESTION OF THE CAUSAL CONNECTION BETWEEN THE PUBLIC-SPIRITED ACT AND THE APPLICANT ' S INVALIDITY .
10 FOR THE PURPOSES OF A DECISION IN THESE PROCEEDINGS, IT IS FIRST NECESSARY TO SETTLE THE INITIAL QUESTION RAISED BY THE COMMISSION IN ITS REPLY TO THE APPLICANT ' S COMPLAINT, CONCERNING THE INTERPRETATION OF THE SECOND PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS . IF IT MUST BE CONCLUDED THAT, IN ORDER TO CONFER ENTITLEMENT TO A PENSION UNDER THAT PARAGRAPH, THE PUBLIC-SPIRITED ACT MUST HAVE BEEN PERFORMED AFTER THE OFFICIAL HAS ENTERED THE SERVICE OF THE COMMUNITIES, THE APPLICANT ' S ACTION WILL, IN ANY EVENT, BE UNFOUNDED .
11 IN THAT RESPECT THE APPLICANT EMPHASIZES THAT THE SECOND PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS DOES NOT SPECIFY THAT THE PUBLIC-SPIRITED ACT MUST HAVE BEEN PERFORMED WHEN THE OFFICIAL WAS IN THE SERVICE OF THE COMMUNITIES AND HE CONSIDERS THAT A RESTRICTIVE INTERPRETATION OF THAT NATURE MUST BE REJECTED . IN THE FIRST PLACE, HE CLAIMS, THE WORDING OF THE PROVISION IS CLEAR AND SHOULD NOT THEREFORE BE SUBJECTED TO INTERPRETATION . SECONDLY, THE SAME PROVISION SPECIFIES, IN RESPECT OF ACCIDENTS, THAT THEY MUST OCCUR IN THE COURSE OF OR IN CONNECTION WITH THE PERFORMANCE OF AN OFFICIAL ' S DUTIES . THUS, WHERE THE LEGISLATURE INTENDED TO LIMIT THE APPLICATION OF THE PROVISION IT DID SO EXPRESSLY, BUT MADE NO SUCH PROVISION IN RESPECT OF THE PUBLIC-SPIRITED ACT . IN ADDITION A RESTRICTIVE INTERPRETATION WOULD BE CONTRARY TO THE SPIRIT OF THE PROVISION AND UNJUST . THE PROVISION IS INTENDED TO REWARD CONDUCT DEMONSTRATING ADMIRABLE HUMAN QUALITIES AND THE MERITS OF SUCH CONDUCT DO NOT VARY ACCORDING TO THE DATE AT WHICH THE ACT IN QUESTION IS PERFORMED . FINALLY THE HARMFUL CONSEQUENCES OF THE ACT IN QUESTION CAME TO LIGHT WHILST THE APPLICANT WAS IN THE SERVICE OF THE COMMUNITIES .
12 IT SHOULD BE RECALLED THAT, UNTIL 1 JULY 1972, THE STAFF REGULATIONS MADE NO DISTINCTION BETWEEN THE VARIOUS CIRCUMSTANCES RESULTING IN THE TOTAL INVALIDITY OF AN OFFICIAL . UNTIL THAT DATE, THE INVALIDITY PENSION WAS AWARDED AT A SINGLE RATE AMOUNTING TO THE MAXIMUM RATE OF THE RETIREMENT PENSION . IT WAS ONLY BY REGULATION ( EURATOM, ECSC, EEC ) NO 1473/72 OF THE COUNCIL OF 30 JUNE 1972, WHICH AMENDED THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1972 ( III ), P . 703 ), THAT THAT RATE WAS REDUCED FOR THE NORMAL SITUATION TO THAT OF THE RETIREMENT PENSION TO WHICH THE OFFICIAL IN QUESTION WOULD HAVE BEEN ENTITLED AT THE AGE OF 65 IF HE HAD REMAINED IN THE SERVICE UNTIL THAT AGE ; THE MAXIMUM RATE WAS THEN RESERVED FOR EXCEPTIONAL CASES IN WHICH THE INVALIDITY RESULTED FROM SPECIFIED CIRCUMSTANCES .
13 IT IS THEREFORE NECESSARY TO REGARD THE SECOND PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS AS AN EXCEPTIONAL PROVISION, WHICH SUGGESTS THAT ANY EXTENSIVE INTERPRETATION MUST BE UNDERTAKEN ONLY WITH CAUTION . IN THOSE CIRCUMSTANCES, IT IS IMPOSSIBLE TO ACCEPT THE APPLICANT ' S VIEW THAT THE ABSENCE IN THAT PARAGRAPH OF AN INDICATION AS TO THE DATE AT WHICH THE PUBLIC-SPIRITED ACT MUST BE PERFORMED IS A SUFFICIENT ANSWER TO THE QUESTION OF INTERPRETATION RAISED .
14 MOREOVER THE APPLICANT ' S ARGUMENT BASED ON A CONCLUSION A CONTRARIO DRAWN FROM THE PROVISION CONCERNING ACCIDENTS AT WORK CANNOT BE ACCEPTED . ALTHOUGH THE PROVISION STIPULATES THAT THE ACCIDENT MUST HAVE OCCURRED IN THE
COURSE OF OR IN CONNECTION WITH THE PERFOMANCE OF AN OFFICIAL ' S DUTIES, THAT STIPULATION IS SOLELY INTENDED TO EXCLUDE ACCIDENTS OCCURRING IN PRIVATE LIFE .
15 IT IS THEREFORE NECESSARY TO EXAMINE THE BACKGROUND TO THE DISPUTED DECISION AND, IN PARTICULAR, THE OBJECTIVES PURSUED BY THE AMENDMENT ADOPTED IN 1972 .
16 IN THAT RESPECT, IT IS A MATTER OF REGRET THAT THE RECITALS IN THE PREAMBLE TO THE ABOVE-MENTIONED REGULATION NO 1473/72 DO NOT PROVIDE ANY INFORMATION ON THE SPECIFIC REASONS FOR THE VARIOUS AMENDMENTS ADOPTED, BUT MERELY REFER IN GENERAL TERMS TO EXPERIENCE GAINED . IN THE COURSE OF THE PROCEEDINGS, THE COMMISSION STATED THAT THE AMENDMENT OF THE PROVISIONS RELATING TO THE INVALIDITY PENSION WAS INTENDED TO PREVENT THE AWARD OF UNJUSTIFIED BENEFITS AND THAT STATEMENT WAS NOT CONTRADICTED BY THE APPLICANT .
17 IT IS CONSONANT WITH THAT OBJECTIVE TO INTERPRET THE NEW PROVISIONS AS EXCLUDING FROM THE FIELD OF APPLICATION OF THE SECOND PARAGRAPH EVENTS WHICH OCCURRED EXCLUSIVELY PRIOR TO THE OFFICIAL ' S ENTRY INTO THE SERVICE . MOREOVER, SUCH AN INTERPRETATION IN NO WAY CONFLICTS WITH THE INTEREST OF THE COMMUNITIES IN ENSURING THAT OFFICIALS SHALL NOT REFRAIN FROM PERFORMING SUCH ACTS THROUGH FEAR OF THE ECONOMIC CONSEQUENCES FOR THEM AND FOR THEIR FAMILIES .
18 NOR IS IT POSSIBLE TO ACCEPT THE APPLICANT ' S ARGUMENT TO THE EFFECT THAT THAT INTERPRETATION WOULD BE UNJUST AS REGARDS AN OFFICIAL WHO HAS PERFORMED SUCH AN ACT PRIOR TO HIS ENTRY INTO THE SERVICE . COMPENSATION FOR INVALIDITY RESULTING FROM PUBLIC-SPIRITED ACTS AND, IN PARTICULAR, IN TIME OF WAR IS, AS A GENERAL RULE, GOVERNED BY THE LEGISLATION OF MEMBER STATES . IN THIS INSTANCE, IT APPEARS FROM THE PAPERS BEFORE THE COURT THAT SINCE THE NETHERLANDS AUTHORITIES HAVE ACKNOWLEDGED THAT THERE IS A CAUSAL CONNECTION BETWEEN THE APPLICANT ' S INVALIDITY AND HIS ACTIVITIES IN THE NETHERLANDS RESISTANCE THEY HAVE IN FACT GRANTED HIM A SPECIAL PENSION ON THAT GROUND . IT WOULD BE DIFFICULT TO JUSTIFY AWARDING HIM A BENEFIT TO BE ADDED TO THE REWARD GRANTED UNDER THE NATIONAL LEGISLATION SOLELY ON THE BASIS OF HIS ENTRY INTO THE SERVICE OF THE COMMUNITIES 25 YEARS AFTER THE ACTIVITIES IN QUESTION .
19 IT FOLLOWS FROM ALL THOSE CONSIDERATIONS THAT THE SECOND PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS MUST BE INTERPRETED AS NOT CONFERRING ON AN OFFICIAL AN ENTITLEMENT TO AN INVALIDITY PENSION AT THE MAXIMUM RATE WHERE, AS IN THE APPLICANT ' S CASE, HIS TOTAL PERMANENT INVALIDITY ARISES FROM A PUBLIC-SPIRITED ACT PERFORMED PRIOR TO HIS ENTRY INTO THE SERVICE OF THE COMMUNITIES .
20 IT FOLLOWS THAT THE APPLICATION MUST BE DISMISSED AND THAT IT IS THEREFORE NOT NECESSARY TO ARRIVE AT A DECISION ON THE APPLICANT ' S OTHER SUBMISSIONS .
Decision on costs
COSTS
21 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THOSE RULES COSTS INCURRED BY THE INSTITUTIONS IN PROCEEEDINGS BY SERVANTS OF THE COMMUNITIES ARE TO BE BORNE BY THE INSTITUTIONS .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY
1 . DISMISSES THE APPLICATION ;
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .