61959CJ0027_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASES 27/59 AND 39/59
ALBERTO CAMPOLONGO, AN OFFICIAL OF THE EUROPEAN INVESTMENT BANK IN BRUSSELS, ASSISTED BY FEDERICO PECORARO, ADVOCATE OF FLORENCE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF FERNAND PROBST, 103 RUE ERMESINDE, APPLICANT,
V
HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS AGENT, PROFESSOR GIULIO PASETTI, LEGAL ADVISER TO THE HIGH AUTHORITY, ASSISTED BY ALBERTO TRABUCCHI, PROFESSOR OF THE UNIVERSITY OF PADUA, ADVOCATE OF THE CORTE DI CASSAZIONE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ, DEFENDANT,
Subject of the case
APPLICATION, IN CASE 27/59, FOR THE ANNULMENT OF THE DECISION CONTAINED IN THE LETTER FROM THE PRESIDENT OF THE HIGH AUTHORITY OF 7 MARCH 1959 INFORMING THE APPLICANT THAT THE RESIGNATION WHICH HE HAD TENDERED COULD NOT BE ACCEPTED;
APPLICATION, IN CASE 39/59, FOR THE ANNULMENT OF THE DECISION OF 2 JULY 1959 FROM THE PRESIDENT OF THE HIGH AUTHORITY IN SO FAR AS IT CONCERNS THE EFFECTS OF THE RESIGNATION OF THE APPLICANT, ACCEPTED BY THAT DECISION, AND IN SO FAR AS IT DETERMINES THE ALLOWANCES ON TERMINATION OF SERVICE,
Grounds
P . 400
I - THE PROCEDURE
1 . THE INTERESTS OF A GOOD ADMINISTRATION OF JUSTICE WILL BE SERVED BY JOINING THE CASES REGISTERED UNDER NOS 27/59 AND 39/59 IN THE REGISTER OF THE COURT AND BY GIVING A DECISION ON THEM IN A SINGLE JUDGMENT .
THE PARTIES SOUGHT THIS STEP AND IN HIS OPINION THE ADVOCATE-GENERAL DID NOT OPPOSE IT . THUS THE PROVISIONS OF ARTICLE 43 OF THE RULES OF PROCEDURE HAVE BEEN SATISFIED .
2 . NO OBJECTION AS TO THE FORM OF EITHER OF THE TWO ACTIONS HAS BEEN RAISED BY THE PARTIES OR BY THE ADVOCATE-GENERAL . THEY ARE ALSO OPEN TO NO OBJECTION BY THE COURT OF ITS OWN MOTION .
II - THE APPLICATION FOR THE ANNULMENT OF THE DECISION CONTAINED IN THE LETTER OF 7 MARCH 1959 FROM THE PRESIDENT OF THE HIGH AUTHORITY ( CASE 27/59 )
1 . ADMISSIBILITY
THE APPLICANT MAINTAINS THAT THE PRESIDENT OF THE HIGH AUTHORITY WAS MISTAKEN IN REFUSING THE APPLICANT'S RESIGNATION SUBMITTED ON 11 FEBRUARY 1959 BY ITS DECISION OF 7 MARCH 1959 .
IT MUST AT THIS POINT BE STATED THAT SUBSEQUENTLY THE RESIGNATION WAS CONFIRMED BY THE DECISION OF THE PRESIDENT OF THE HIGH AUTHORITY DATED 2 JULY 1959 .
AS THE LATTER DECISION WAS TAKEN BEFORE THE HIGH AUTHORITY LODGED ITS STATEMENT OF DEFENCE ( 13 JULY 1959 ), THE HIGH AUTHORITY MERELY OBJECTS THAT THE APPLICANT'S REQUEST IS INADMISSIBLE ARGUING, ON THE ONE HAND, THAT IT IS OUT OF TIME AND, ON THE OTHER, THAT IT IS WITHOUT PURPOSE .
( A ) THE OBJECTION THAT THE APPLICATION IS OUT OF TIME
IT IS EVIDENT FROM THE DOCUMENTS IN THE CASE THAT THE CONTESTED DECISION WAS DATED 7 MARCH 1959 AND WAS NOTIFIED TO THE APPLICANT ON 9 MARCH .
P . 401
THE RULES OF PROCEDURE OF THE COURT OF 21 FEBRUARY 1957 FOR DISPUTES REFERRED TO IN ARTICLE 58 OF THE STAFF REGULATIONS PROVIDED A PERIOD OF TWO MONTHS FOR OFFICIALS TO BRING ACTIONS AGAINST THE ECSC .
AS THE APPLICATION WAS LODGED BY THE APPLIANT ON 8 MAY 1959 IT COMPLIED WITH THE PERIOD PRESCRIBED BY THIS PROVISION AS, BY VIRTUE OF A UNIVERSALLY ACCEPTED PRINCIPLE OF LAW, THE PERIOD ONLY STARTS TO RUN FROM THE TIME OF THE NOTIFICATION OF THE CONTESTED DECISION .
NEVERTHELESS, AS THE ABOVE-MENTIONED RULES WERE ABROGATED BY NEW RULES OF PROCEDURE OF 3 MARCH 1959 WHICH CONTAIN NO PROVISION RELATING TO PERIODS FOR THE INTRODUCTION OF ACTIONS CONCERNING DISPUTES BETWEEN OFFICIALS AND INSTITUTIONS, THE HIGH AUTHORITY MAINTAINS THAT AS THE ACTION SEEKS THE ANNULMENT OF A MEASURE THE PERIOD APPLICABLE IS ONE MONTH BY VIRTUE OF THE GENERAL LAW RELATING TO ANNULMENT WHICH IN ITS VIEW IS BASED ON ARTICLE 33 OF THE ECSC TREATY .
IN REJECTING THIS VIEW IT IS NOT HERE NECESSARY TO FOLLOW THE PRINCIPAL ARGUMENT OF THE APPLICANT MAINTAINING THAT IN THE ABSENCE OF ANY RELEVANT PROVISION NO TIME-LIMIT CAN EXIST IN THIS CASE .
IN FACT, THE RULES OF PROCEDURE OF 3 MARCH 1959, ARTICLE 110 OF WHICH ABROGATES THE RULES OF 1957, WERE ONLY PUBLISHED IN THE JOURNAL OFFICIEL ON 21 MARCH .
QUITE APART FROM THE EXTENSION OF TIME-LIMITS ON ACCOUNT OF DISTANCE THE RULES COULD NOT TAKE EFFECT BEFORE THIS DATE WHICH IS THE ONLY WAY OF COMPLYING WITH THE PRESUMPTION THAT PERSONS SUBJECT TO THE LAW HAVE KNOWLEDGE OF IT .
THEREFORE THE APPLICANT'S RIGHT OF ACTION, AT THE MOMENT WHICH IT AROSE, WAS GOVERNED BY THE RULES OF 1957 .
AS THE NEW RULES CONTAINED NO PROVISION AS TO TIME-LIMITS THEY CANNOT RETROACTIVELY HAVE THE EFFECT OF TACITLY SUBSTITUTING A GENERAL TEXT FOR PREVIOUS PROVISIONS GOVERNING ACTIONS BY OFFICIALS WHICH THE RULES OF 1957 DELIBERATELY DISTINGUISHED FROM THOSE REFERRED TO IN ARTICLE 33 OF THE TREATY BY PROVIDING A PARTICULAR PERIOD FOR THEM . THE ACTION WAS THEREFORE INTRODUCED IN GOOD TIME .
( B ) THE PURPOSE OF THE ACTION
IN THE COURSE OF THE PROCEEDINGS THE HIGH AUTHORITY GAVE SATISFACTION TO THE APPLICANT BY CONFIRMING THE RESIGNATION WHICH HE HAD SOUGHT ON 2 JULY . IT DOES NOT NECESSARILY FOLLOW THAT THERE IS NO PURPOSE TO BE SERVED BY EXAMINING THE FOUNDATION OF THE PRIOR REFUSAL . IN ANY CASE AN EXAMINATION OF THE ADMISSIBILITY OF THE ACTION MAY INFLUENCE THE DECISION TO BE TAKEN AS TO COSTS .
P . 402
FINALLY, HAVING ARGUED IN ITS STATEMENT OF DEFENCE THAT THE CASE HAD LOST ITS PURPOSE THE DEFENDANT NO LONGER RAISES THIS OBJECTION IN ITS REJOINDER .
2 . THE SUBSTANCE OF THE CASE
THE APPLICANT ARGUES THAT ARTICLE 41 OF THE STAFF REGULATIONS WHICH IS APPLICABLE TO HIM WAS INFRINGED AND MISAPPLIED BY ALLEGING THAT HIS RELATIONSHIP WITH THE HIGH AUTHORITY CONSTITUTED A CONTRACT OF EMPLOYMENT OF INDETERMINATE DURATION WHICH HE HAD A RIGHT TO TERMINATE BY A UNILATERAL DECLARATION OF INTENTION .
IN THIS RESPECT IT CAN BE STATED THAT THE LEGAL SITUATION OF THE APPLICANT, AN OFFICIAL OF THE HIGH AUTHORITY SUBJECT TO THE PROVISIONS OF THE STAFF REGULATIONS, IS NOT DERIVED FROM A CONTRACT CONCLUDED BETWEEN TWO PARTIES BUT WAS GOVERNED BY STATUTE AND REGULATION AND TO HIS BENEFIT AND HIS DETRIMENT IS GOVERNED BY THE GENERAL AND IMPERSONAL PROVISIONS OF THE STAFF REGULATIONS . ONLY AN INFRINGEMENT OF A PROVISION OF THE STAFF REGULATIONS OF THE COMMUNITY, IN THIS CASE ARTICLE 41, MAY GIVE HIM A RIGHT OF ACTION .
WITH RESPECT TO THIS ARTICLE THE APPLICANT HAD CERTAINLY IN HIS LETTER OF 11 FEBRUARY 1959 " STATED HIS UNEQUIVOCAL INTENTION TO TERMINATE ANY ACTIVITY IN THE INSTITUTION " AND THIS RESIGNATION WOULD IN NORMAL CIRCUMSTANCES GIVE RISE TO THE EFFECTS PROVIDED FOR BY ARTICLE 41 .
THE PLACING OF AN OFFICIAL ON LEAVE ON PERSONAL GROUNDS DOES NOT, IN PRINCIPLE, DEPRIVE HIM OF THE RIGHT, DURING THAT PERIOD, TO RESIGN WHEN HE WISHES ACCORDING TO THE RULES LAID DOWN IN THE ABOVEMENTIONED ARTICLE 41 .
THE HIGH AUTHORITY, HOWEVER, DENIES THAT THE APPLICANT IN THIS CASE HAD THAT RIGHT ON THE GROUNDS THAT, BY ACCEPTING HIS LEAVE ON PERSONAL GROUNDS, HE HAD RENOUNCED THE RIGHT TO RESIGN WHEN HE WISHED AND ACCEPTED HIS BEING MAINTAINED ON LEAVE ON PERSONAL GROUNDS UNTIL THE CONCLUSION BY THE HIGH AUTHORITY AND THE OTHER INSTITUTIONS OF THE EUROPEAN COMMUNITIES OR DEPENDENT INSTITUTIONS OF AN AGREEMENT GOVERNING THE SITUATION APPLICABLE TO OFFICIALS TRANSFERRING FROM ONE TO THE OTHER, OR UNTIL THE FINAL BREAKDOWN OF THE RELEVANT NEGOCIATIONS .
IN THIS RESPECT IT MUST HOWEVER BE POINTED OUT THAT NONE OF THE DOCUMENTS SUBMITTED IN THE PRESENT CASE CLEARLY AND EXPRESSLY ESTABLISHES OR PROVES THIS STATEMENT . IN PARTICULAR THE HIGH AUTHORITY, WHICH HAD THE LAST WORD IN THE CORRESPONDENCE BETWEEN THE PARTIES, IN ITS LETTER OF 2 MAY 1958 SIMPLY FIXED THE LENGTH OF THE LEAVE GRANTED TO THE APPLICANT AT TWO YEARS IN ACCORDANCE WITH THE GENERAL LAW IN SUCH MATTERS, AS ARTICLE 33 OF THE STAFF REGULATIONS GOVERNING SUCH A MEASURE HAD ALWAYS BEEN CITED WITHOUT ANY RESERVATION AND WITHOUT THE SLIGHTEST MENTION OF THE INTERPRETATION OF THE FACTS ADVOCATED BY THE HIGH AUTHORITY TODAY .
P . 403
PLACING THE APPLICANT ON LEAVE ON PERSONAL GROUNDS BY ITSELF HAS NOT DEPRIVED THE APPLICANT OF HIS RIGHT TO PRESENT HIS RESIGNATION AT ANY TIME . IN THE PRESENT CASE THE HIGH AUTHORITY WAS ONLY ABLE TO APPLY THE GENERAL LAW AS, IN THE DECISION CONTAINED IN ITS LETTER OF 2 MAY 1958 GRANTING THE APPLICANT LEAVE ON PERSONAL GROUNDS, IT FAILED TO PROVIDE A TERM BEFORE THE EXPIRY OF WHICH, BY REASON OF ITS NEGOTIATIONS WITH THE EUROPEAN INVESTMENT BANK, THE APPLICANT WAS UNABLE TO RESIGN AND, IN ADDITION, IN THE ABSENCE OF THE APPLICANT'S CONSENT, IN HIS LETTER OF 25 APRIL 1958 ACCEPTING THE LEAVE, TO SUCH A TERM AFFECTING THE RIGHTS ASSIGNED TO HIM BY THE STAFF REGULATIONS .
IN ADDITION THE PARTY RELYING ON DEROGATION FROM THE GENERAL LAW MUST BEAR THE BURDEN OF PROVING ITS EXISTENCE . THE HIGH AUTHORITY HAS FAILED TO SATISFY THIS BURDEN OF PROOF . CONSEQUENTLY THE APPLICANT WAS CORRECT IN SEEKING THE ANNULMENT OF THE DECISION OF THE PRESIDENT OF THE HIGH AUTHORITY DATED 7 MARCH 1959 REFUSING TO CONFIRM THE RESIGNATION SUBMITTED IN A LETTER OF 11 FEBRUARY 1959 . THE APPLICANT'S CONCLUSIONS SHOULD THEREFORE BE ACCEPTED AND THE COSTS SHOULD BE BORNE BY THE HIGH AUTHORITY .
III - THE APPLICATION FOR THE ANNULMENT OF THE DECISION CONTAINED IN THE LETTER OF 2 JULY 1959 OF THE PRESIDENT OF THE HIGH AUTHORITY ( CASE 39/59 ) 1 . THE SCOPE OF THE APPLICATION AND ITS ADMISSIBILITY IN HIS INITIATING APPLICATION DATED 30 JULY 1959 CONTESTING THE DECISION OF 2 JULY 1959, THE APPLICANT SEEKS THE ANNULMENT OF THIS DECISION ONLY " IN SO FAR AS IT CONCERNS THE EFFECTS OF THIS RESIGNATION AND DETERMINES THE ALLOWANCES ON TERMINATION OF SERVICE WITH ALL THE LEGAL CONSEQUENCES ... ". THE EXACT SCOPE IS ONLY SPECIFIED IN THE BODY OF THE APPLICATION BY REFERENCE TO THE DECISION OF THE HIGH AUTHORITY CONTAINED IN THE LETTER OF 2 JULY 1959 IN SO FAR AS IT FAILS TO DETERMINE THE DATE ON WHICH THE RESIGNATION TAKES EFFECT AND THAT IT DETERMINES THE ALLOWANCES ON TERMINATION OF SERVICE .
IN RESPECT OF THE ALLOWANCES THE APPLICATION RELATES IN GENERAL TERMS TO : ( A ) THE RESETTLEMENT ALLOWANCE, THE REIMBURSEMENT OF TRAVELLING EXPENSES ON THE OCCASION OF TERMINATION OF SERVICE AND THE REIMBURSEMENT OF REMOVAL EXPENSES ( ARTICLES 12, 13 AND 15 OF THE GENERAL REGULATIONS );
( B ) THE REIMBURSEMENT OF THE AMOUNT TO THE CREDIT OF THE APPLICANT IN THE PROVIDENT FUND, REIMBURSEMENT OF THE AMOUNT DEDUCTED FROM HIS SALARY IN RESPECT OF HIS PENSION AND THE SEVERANCE GRANT ( ARTICLE 62 OF THE GENERAL REGULATIONS ).
HOWEVER, IN HIS REPLY THE APPLICANT AMPLIFIED HIS DEMAND . HE FORMALLY REQUESTS THE COURT TO DETERMINE THE DATE ON WHICH HIS RESIGNATION SUBMITTED ON 11 FEBRUARY 1959 TAKES EFFECT AS THE HIGH AUTHORITY DID NOT DETERMINE THIS DATE IN ITS CONTESTED DECISION . IN ADDITION HE FORMALLY ASKS THE COURT TO RULE THAT THE HIGH AUTHORITY IS OBLIGED TO GRANT TO HIM :
( A ) A RESETTLEMENT ALLOWANCE EQUAL TO FOUR TIMES HIS LAST MONTHLY SALARY;
( B ) REIMBURSEMENT OF THE TRAVELLING EXPENSES FROM LUXEMBOURG TO BRUSSELS FOR HIMSELF AND HIS FAMILY;
( C ) THE CAPITALIZED AMOUNT OF THE SUM TO HIS CREDIT IN THE PROVIDENT FUND;
( D ) THE CAPITALIZED AMOUNT OF THE SUMS DEDUCTED FROM HIS SALARY IN RESPECT OF HIS PENSION CONTRIBUTIONS;
( E ) A SEVERANCE GRANT AMOUNTING TO ONE AND A HALF TIMES HIS LAST MONTHLY SALARY IN RESPECT OF ONE YEAR AND SIX MONTHS' SERVICE;
( F ) COMPENSATION FOR THE EIGHT-THIRTIETHS OF HIS ANNUAL LEAVE WHICH HE HAD NOT TAKEN BY 1 MAY 1958 AND REIMBURSEMENT OF TRAVELLING EXPENSES IN RESPECT OF SUCH LEAVE;
( G ) 5 PER CENT INTEREST, OR SUCH AMOUNT AS THE COURT DEEMS FIT, ON THE AMOUNTS PAYABLE IN RESPECT OF THE VARIOUS OBLIGATIONS SET OUT ABOVE AS FROM 12 MARCH 1959 OR, AT THE LATEST, FROM 11 MAY 1959 .
P . 404
IN RESPECT OF THIS AMPLIFICATION OF THE DEMAND, IT MUST BE EXAMINED WHETHER IT DOES NOT GO BEYOND THE CONCLUSIONS IN THE APPLICATION TO AN EXTENT WHICH IS CONTRARY TO THE PROVISIONS OF THE FIRST PARAGRAPH OF ARTICLE 38 OF THE RULES OF PROCEDURE AND OF ARTICLE 22 OF THE STATUTE OF THE COURT OF JUSTICE .
IN THIS RESPECT THE COURT ACCEPTS THAT BY REFERRING IN THE APPLICATION TO " THE ALLOWANCES ON TERMINATION OF SERVICE WITH ALL THE LEGAL CONSEQUENCES " THE APPLICANT SOUGHT AN EXAMINATION OF ALL THE PECUNIARY CONSEQUENCES OF HIS RESIGNATION WHICH WERE SPECIFIED AND EXPLAINED IN THE REPLY . THEY MUST THEREFORE BE EXAMINED SEPARATELY .
2 . THE EFFECTS OF THE RESIGNATION IN RESPECT OF THE VARIOUS HEADINGS OF THE APPLICATION FOR ALLOWANCES AND GRANTS
A - BEFORE ALL ELSE :
( A ) OFFICIAL NOTICE SHOULD BE GIVEN TO THE APPLICANT THAT THE HIGH AUTHORITY HAS STATED ITS AGREEMENT TO PAY HIM THE COMPENSATION FOR THE ANNUAL LEAVE WHICH HE HAD NOT TAKEN IN ACCORDANCE WITH ARTICLE 29 ( B ) OF THE GENERAL REGULATIONS OF THE COMMUNITY AND ALSO REIMBURSEMENT OF TRAVELLING EXPENSES FOR ANNUAL LEAVE IN ACCORDANCE WITH ARTICLE 14 ( A ) OF THE SAME RULES . THIS OFFER MUST BE REGARDED AS GIVING HIM SATISFACTION . ( B ) OFFICIAL NOTICE MUST BE GIVEN TO THE HIGH AUTHORITY THAT IN HIS REPLY THE APPLICANT, CONTRARY TO THE CLAIM SET OUT IN HIS APPLICATION, NO LONGER REQUESTS THE TRAVELLING EXPENSES TO BRUSSELS FROM HIS PLACE OF ORIGIN, NAMELY FLORENCE, BUT FROM THE PLACE OF HIS EMPLOYMENT, NAMELY LUXEMBOURG, AND THAT HE NO LONGER SEEKS REIMBURSEMENT OF HIS REMOVAL EXPENSES TO BRUSSELS AS, FINALLY, THIS AMOUNT WAS PAID TO HIM BY THE EUROPEAN INVESTMENT BANK . IT MUST THEREFORE BE RECOGNIZED THAT THE APPLICANT NO LONGER MAINTAINS THESE PARTS OF HIS APPLICATION . B - EXAMINATION OF THE REMAINDER OF THE APPLICATION LEADS THE COURT TO THE FOLLOWING CONSIDERATIONS AND DECISIONS :
( A ) THE APPLICANT REQUESTS THAT THE COURT ORDER A RESETTLEMENT ALLOWANCE IN ACCORDANCE WITH ARTICLE 12 ( A ) OF THE GENERAL REGULATIONS TO BE PAID TO HIM . IN THE TERMS OF THE ABOVEMENTIONED PROVISION THIS ALLOWANCE SHALL BE PAID TO AN OFFICIAL AFTER THE TERMINATION OF HIS SERVICE ON PRODUCTION OF EVIDENCE OF RESETTLEMENT .
THESE PROVISIONS MUST BE INTERPRETED IN THE LIGHT OF THE OPERATIONAL UNITY OF THE EUROPEAN COMMUNITIES AND ASSOCIATED INSTITUTIONS AND THIS CONCEPT RENDERS INADMISSIBLE THE AGGREGATION OF A SEVERANCE GRANT FROM ONE WITH AN ALLOWANCE ON ENTRY INTO SERVICE FROM ANOTHER .
IT IS TRUE THAT THESE ALLOWANCES ARE FLAT-RATE AMOUNTS . HOWEVER, THEY DO NOT REPRESENT A SUPPLEMENT TO THE REMUNERATION PAYABLE TO AN OFFICIAL BUT FIX BY MEANS OF AN ADVANCE ESTIMATE THE EQUIVALENT OF THE COSTS OF A SINGLE OPERATION, NAMELY THE TRANSFER OF THE RESIDENCE OF AN OFFICIAL FROM ONE PLACE TO ANOTHER .
AS THIS TRANSFER WAS ONLY CARRIED OUT ON A SINGLE OCCASION, PAYMENT IN RESPECT OF SUCH A MOVE BY THE HIGH AUTHORITY IS UNNECESSARY IN VIEW OF THE PAYMENT MADE FOR THE SAME REASON BY THE EUROPEAN INVESTMENT BANK . THIS HEAD OF THE APPLICATION CANNOT THEREFORE BE ACCEPTED . ( B ) WITH REGARD TO THE SEVERANCE GRANT SOUGHT BY THE APPLICANT ON THE BASIS OF ARTICLE 62 ( C ) OF THE GENERAL REGULATIONS, ANALOGOUS REASONING MUST BE APPLIED . THE " SEVERANCE " REFERRED TO IN THE FIRST SUBPARAGRAPH OF THIS ARTICLE MUST REASONABLY BE UNDERSTOOD AS MEANING SEVERANCE FROM THE COMMUNITY SERVICE AND THE ALLOWANCE ATTACHED TO THIS SEVERANCE MUST LOGICALLY BE REGARDED AS BEING COMPENSATION FOR THE LOSS OF EARNINGS OF THE SERVANT DURING THE TIME NORMALLY REQUIRED TO FIND A NEW POST . THIS INTERPRETATION OF THE INTENTION INSPIRING THE ADOPTION OF THIS PROVISION IS CORROBORATED BY THE FIRST SUBPARAGRAPH WHICH EXCLUDES FROM THIS ALLOWANCE ALL THOSE WHO ARE IN NO POSITION TO OBTAIN ANOTHER POST . THIS PART OF THE APPLICATION IS THEREFORE NOT JUSTIFIED AND MUST BE DISMISSED .
P . 406
( C ) THE APPLICANT FURTHER SEEKS REIMBURSEMENT OF TRAVELLING EXPENSES FOR HIS FAMILY FROM LUXEMBOURG TO BRUSSELS AS ONLY THE COST OF HIS OWN TRANSPORT WAS PAID BY THE EUROPAN INVESTMENT BANK . IN THIS RESPECT ARTICLE 13 ( A ) ( 2 ) OF THE GENERAL REGULATIONS PROVIDES THAT ON THE TERMINATION OF HIS SERVICE AN OFFICIAL IS ENTITLED TO REIMBURSEMENT OF HIS TRAVEL EXPENSES FROM THE PLACE WHERE HE WAS EMPLOYED TO HIS PLACE OF ORIGIN WHICH, UNDER SUBPARAGRAPH ( F ) OF THAT ARTICLE, IS DETERMINED WHEN THE OFFICIAL TAKES UP HIS APPOINTMENT, ACCOUNT BEING TAKEN OF THE PLACE FROM WHICH THE PERSON CONCERNED COMES OR THE CENTRE OF HIS INTERESTS . THE GENERAL REGULATIONS THEREFORE ONLY PROVIDE FOR THE REIMBURSEMENT OF THE TRAVELLING EXPENSES FOR THE RETURN OF THE OFFICIAL FROM THE PLACE OF EMPLOYMENT TO HIS PLACE OF ORIGIN, THAT IS IN THE PRESENT CASE, FROM LUXEMBOURG TO FLORENCE . THE APPLICANT SOUGHT THIS REIMBURSEMENT IN THE APPLICATION BUT RENOUNCED THIS CLAIM IN HIS REPLY AND NOW MERELY SEEKS REIMBURSEMENT OF TRAVELLING EXPENSES FROM LUXEMBOURG TO BRUSSELS . ACCORDINGLY IT CAN BE RULES THAT THIS PART OF THE APPLICATION HAS NO LEGAL JUSTIFICATION .
( D ) AS REGARDS THE CAPITALIZED SUM TO THE CREDIT OF THE APPLICANT'S ACCOUNT UNDER THE PROVIDENCE SCHEME, THAT IS TO SAY, THE PAYMENTS OF THE INSTITUTION AND THE CAPITALIZED AMOUNT OF THE SUMS DEDUCTED FROM HIS SALARY, THUS THE SUMS PAID BY THE PERSON CONCERNED IN RESPECT OF HIS PENSION CONTRIBUTIONS, IT CAN BE STATED THAT ARTICLE 62 ( A ) AND ( B ) OF THE GENERAL REGULATIONS PROVIDES FOR THE REIMBURSEMENT OF THESE SUMS WHICH CONSTITUTE A FUND FOR THE SOCIAL SECURITY OF OFFICIALS ON THE TERMINATION OF SERVICE .
IN ENTERING THE SERVICE OF THE EUROPEAN INVESTMENT BANK THE APPLIANT ENTERS A NEW SOCIAL SECURITY SCHEME, THE ORGANIZATION OF WHICH EITHER DOES NOT OBLIGE HIM TO MAKE AN INITIAL PAYMENT TO TAKE ACCOUNT OF HIS YEARS OF SERVICE WITH THE HIGH AUTHORITY, OR DOES OBLIGE HIM TO PAY THE APPROPRIATE SUM TO THE BANK'S OWN FUNDS .
IN EITHER CASE THE HIGH AUTHORITY CANNOT REFUSE PAYMENT OF THE RESERVE FUND ESTABLISHED FOR THE BENEFIT OF THE APPLICANT .
EITHER THE BANK IS GENEROUS FOR REASONS WHICH ARE NOT COMPREHENSIBLE AND BENEVOLENTLY COVERS, WITHOUT PAYMENT OF ARREARS TO THE FUND, THE YEARS PRIOR TO ITS APPOINTMENT OF THE APPLICANT OR ELSE THE APPLICANT IS OBLIGED TO PAY THE AMOUNT AND FOR THIS PURPOSE NEEDS THE SUMS WHICH HE CLAIMS .
IN ANY EVENT, IN EACH CASE THE TRANSACTION IS RES INTER ALIOS ACTA IN RESPECT OF THE HIGH AUTHORITY . IT IS ONLY IN THE HYPOTHETICAL CASE OF AN AGREEMENT UNIFYING OR MERGING PROVIDENT AND PENSION FUNDS FOR ALL THE COMMUNITIES THAT IT WILL BE POSSIBLE TO RECOGNIZE THE RIGHT OF THE HIGH AUTHORITY TO SAFEGUARD THE INTERESTS OF SUCH A COMMON FUND, ALTHOUGH IT MAY BE ASKED WHY IT MUST BE THE HIGH AUTHORITY WHICH SHOULD TAKE THE INITIATIVE .
P . 407
APART FROM THE ABSENCE OF ANY HASTE ON THE PART OF THE INSTITUTIONS TO HARMONIZE THEIR ORGANIZATIONS, THERE DOES NOT APPEAR TO BE SUFFICIENT LEGAL FOUNDATION FOR THE NECESSITY OR UTILITY OF THE UNDERTAKING WHICH THE HIGH AUTHORITY SEEKS FROM THE APPLICANT AS A PRE-CONDITION FOR HANDING OVER THE FUND .
IN FACT, IF IN THE FUTURE THE HIGH AUTHORITY BECOMES A MEMBER OF A COMMON SOCIAL SECURITY FUND OF THE COMMUNITIES, IT WILL ALWAYS BE ABLE TO MAKE THE ADMISSION OF THE APPLICANT OR THE EXTENT OF HIS PENSION RIGHTS DEPENDENT ON PAYMENT TO THE COMMON FUND OF AN ADEQUATE AMOUNT UNDER THE CONDITIONS WHICH IT HAS ENVISAGED .
THIS PART OF THE APPLICANT'S DEMAND IS THEREFORE WELL FOUNDED .
( E ) AS TO THE PAYMENT OF INTEREST FROM 12 MARCH OR FROM 12 MAY WHICH THE APPLICANT CLAIMS ON THE SUMS SOUGHT BY HIM THE FOLLOWING DISTINCTION SHOULD BE DRAWN :
IF THE APPLICANT SEEKS INTEREST IN RESPECT OF THE DELAY IN SETTLEMENT THIS IN PRINCIPLE CONSTITUTES A LEGAL EVALUATION AND DETERMINATION OF THE LOSS SUFFERED BY REASON OF THE DELAY IN COMPLYING WITH AN OBLIGATION SUBJECT TO THE PRE-CONDITION OF PRIOR NOTICE HAVING BEEN GIVEN .
IN THE PRESENT CASE, EVEN IN THE ABSENCE OF ANY OTHER ACTION ON THE PART OF THE APPLICANT, THE INITIATING APPLICATION CAN BE REGARDED AS NOTIFICATION BUT AS COMMUNITY LAW MAKES NO PROVISION FOR LEGAL DETERMINATION OF INTEREST IN RESPECT OF DELAY IN SETTLEMENT THE APPLICATION MUST BE REJECTED .
AS FOR COMPENSATORY INTEREST, IT ARISES, IT IS TRUE, AS DAMAGES FOR FAILURE TO FULFIL AN OBLIGATION WITHOUT PRIOR NOTICE BEING GIVEN . NEVERTHELESS, ITS IMPOSITION IS DEPENDENT ON DAMAGE WHICH, IN THE PRESENT CASE, THE APPLICANT HAS FAILED TO ESTABLISH OR EVEN ALLEGE OR OFFER TO PROVE .
THIS PART OF THE APPLICATION MUST THEREFORE BE DISMISSED AS BEING WITHOUT FOUNDATION .
3 . THE CONSEQUENCES OF THE RESIGNATION AND THE DATE OF ITS TAKING EFFECT .
IN THE LIGHT OF THE ABOVEMENTIONED CONSIDERATIONS THE QUESTION OF THE DATE ON WHICH THE RESIGNATION OFFERED BY THE APPLICANT ON 11 FEBRUARY 1959 TAKES EFFECT IS NOT OF REAL AND IMMEDIATE IMPORTANCE AS IT HAS NO EFFECT ON THE HEADS OF THE APPLICATION IN RESPECT OF WHICH JUDGMENT HAS BEEN GIVEN IN FAVOUR OF THE APPLICANT .
P . 408
THIS PART OF THE APPLICATION MUST THEREFORE BE SET ASIDE AS INADMISSIBLE .
Decision on costs
PURSUANT TO ARTICLE 70 OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE, THE COSTS INCURRED BY THE HIGH AUTHORITY SHALL BE BORNE BY IT .
AS REGARDS THE COSTS INCURRED BY THE APPLICANT, IN VIEW OF THE FACT THAT THE APPLICANT WAS SUCCESSFUL IN CASE 27/59, THE HIGH AUTHORITY MUST BE ORDERED TO PAY THE COSTS INCURRED BY HIM IN ACCORDANCE WITH ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE .
IN CASE 39/59, AS THE PARTIES EACH WERE UNSUCCESSFUL IN RESPECT OF CERTAIN OF THEIR ARGUMENTS COSTS SHALL BE APPORTIONED IN APPLICATION OF ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE .
Endorsements
ON THOSE GROUNDS,
UPON HEARING THE REPORT OF THE JUDGE-RAPPORTEUR;
UPON HEARING THE PARTIES;
UPON HEARING THE OPINION OF THE ADVOCATE-GENERAL;
HAVING REGARD TO THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EUROPEAN COAL AND STEEL COMMUNITY;
HAVING REGARD TO THE STAFF REGULATIONS OF THE EUROPEAN COAL AND STEEL COMMUNITY, IN PARTICULAR ARTICLES 2, 33, 41 AND 58;
HAVING REGARD TO THE GENERAL STAFF REGULATIONS OF THE EUROPAN COAL AND STEEL COMMUNITY, ESPECIALLY ARTICLES 12, 13, 14, 15, 29, 47, 61, 62 AND 91;
HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COAL AND STEEL COMMUNITY OF 21 FEBRUARY 1957 FOR DISPUTES REFERRED TO IN ARTICLE 58 OF THE STAFF REGULATIONS OF THE EUROPEAN COAL AND STEEL COMMUNITY;
HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES,
Operative part
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . JOINS THE ACTIONS INTRODUCED BY ALBERTO CAMPOLONGO UNDER NOS 27/59 AND 39/59 FOR THE PURPOSES OF THE PRESENT JUDGMENT;
2 . ANNULS THE DECISION CONTAINED IN THE LETTER OF 7 MARCH 1959 OF THE PRESIDENT OF THE HIGH AUTHORITY INFORMING ALBERTO CAMPOLONGO THAT HIS RESIGNATION COULD NOT BE ACCEPTED;
3 . GIVES THE APPLICANT FORMAL NOTICE THAT THE HIGH AUTHORITY HAS STATED IN THE COURSE OF THE PROCEEDINGS THAT IT IS PREPARED TO PAY TO HIM IN ACCORDANCE WITH ARTICLE 29 ( E ) OF THE GENERAL STAFF REGULATIONS OF THE COMMUNITY, AS COMPENSATION FOR ANNUAL LEAVE WHICH WAS NOT TAKEN AT THE TIME OF TERMINATION OF HIS SERVICE, AN AMOUNT EQUAL TO EIGHT-THIRTIETHS OF HIS EMOLUMENTS AT THE TIME OF THE TERMINATION OF HIS SERVICE .
4 . GIVES THE APPLICANT FORMAL NOTICE THAT THE HIGH AUTHORITY HAS STATED THAT IT IS PREPARED TO REIMBURSE TO HIM, IN APPLICATION OF ARTICLE 14 ( A ) OF THE GENERAL STAFF REGULATIONS OF THE COMMUNITY, TRAVELLING EXPENSES FOR ANNUAL LEAVE FOR HIMSELF AND HIS FAMILY FROM LUXEMBOURG TO FLORENCE; 5 . GIVES THE HIGH AUTHORITY FORMAL NOTICE THAT IN THE COURSE OF THE PROCEEDINGS THE APPLICANT HAS RENOUNCED HIS CLAIM TO TRAVELLING EXPENSES FROM LUXEMBOURG TO FLORENCE FOR HIMSELF AND HIS FAMILY ON THE BASIS OF ARTICLE 13 ( A ) ( 2 ) OF THE GENERAL STAFF REGULATIONS OF ARTICLE 13 ( A ) ( 2 ) OF THE GENERAL STAFF REGULATIONS OF THE COMMUNITY;
6 . GIVES THE HIGH AUTHORITY FORMAL NOTICE THAT THE APPLICANT HAS RENOUNCED HIS CLAIM TO REIMBURSEMENT OF REMOVAL EXPENSES FROM LUXEMBOURG TO BRUSSELS;
7 . DISMISSES THE APPLICANT'S APPLICATION FOR PAYMENT OF A RESETTLEMENT ALLOWANCE IN ACCORDANCE WITH ARTICLE 12 ( A ) OF THE GENERAL STAFF REGULATIONS OF THE COMMUNITY;
8 . DISMISSES THE APPLIANT'S APPLICATION FOR A SEVERANCE GRANT IN ACCORDANCE WITH ARTICLE 62 ( C ) OF THE GENERAL STAFF REGULATIONS OF THE COMMUNITY;
9 . DISMISSES THE APPLICANT'S APPLICATION FOR REIMBURSEMENT OF TRAVELLING EXPENSES FOR HIMSELF AND HIS FAMILY FROM LUXEMBOURG TO BRUSSELS;
10 . ORDERS THE HIGH AUTHORITY TO PAY TO THE APPLICANT THE AMOUNT WHICH, AT THE TIME OF TERMINATION OF HIS SERVICE, WAS STANDING TO HIS CREDIT IN THE PROVIDENT FUND OF STAFF OF THE EUROPEAN COAL AND STEEL COMMUNITY PLUS COMPOUND INTEREST AT THE RATE SET OUT IN ARTICLE 91 OF THE GENERAL STAFF REGULATIONS OF THE EUROPEAN COAL AND STEEL COMMUNITY;
11 . ORDERS THE HIGH AUTHORITY TO PAY TO THE APPLICANT THE AMOUNT OF THE SUMS DEDUCTED FROM HIS REMUNERATION IN RESPECT OF HIS PENSION CONTRIBUTIONS PLUS COMPOUND INTEREST AT THE RATE SET OUT IN ARTICLE 91 OF THE GENERAL STAFF REGULATIONS OF THE EUROPEAN COAL AND STEEL COMMUNITY AFTER DEDUCTION OF ANY CHARGES WHICH MAY HAVE BEEN MADE ON THESE SUMS;
12 . DISMISSES THE APPLICANT'S APPLICATION FOR THE PAYMENT OF INTEREST;
13 . DISMISSES THE APPLICANT'S APPLICATION FOR THE DATE ON WHICH HIS RESIGNATION TAKES EFFECT TO BE FIXED;
14 . ORDERS THE HIGH AUTHORITY TO REIMBURSE TO THE APPLICANT THE COSTS INCURRED BY HIM IN CASE 27/59;
ORDERS THE HIGH AUTHORITY TO REIMBURSE TO THE APPLICANT ONE THIRD OF THE COSTS INCURRED BY HIM IN CASE 39/59;
ORDERS THE HIGH AUTHORITY TO BEAR ITS OWN COSTS .