61974CJ0038_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 38/74
MAURITS WILLEM GEERLINGS, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES ON LEAVE ON PERSONAL GROUNDS, REPRESENTED BY F . SALOMONSON, ADVOCATE AT DORDRECHT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT, 34 B RUE PHILLIPPE II, APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, J . H . J . BOURGEOIS, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, P . LAMOUREUX, 4 BOULEVARD ROYAL,
DEFENDANT,
Subject of the case
APPLICATION FOR ANNULMENT OF THE REFUSAL BY THE COMMISSION TO GRANT THE APPLICANT A MEASURE TERMINATING HIS SERVICE AS PROVIDED FOR UNDER REGULATION NO 1543/73 .
Grounds
1 THE APPLICATION SEEKS ANNULMENT OF THE REFUSAL BY THE COMMISSION TO GRANT THE APPLICANT A MEASURE TERMINATING HIS SERVICE PURSUANT TO REGULATION NO 1543/73 OF THE COUNCIL INTRODUCING SPECIAL MEASURES TEMPORARILY APPLICABLE TO OFFICIALS OF THE EUROPEAN COMMUNITIES PAID FROM RESEARCH AND INVESTMENT FUNDS .
2 SINCE 1 JULY 1969 THE APPLICANT, A SCIENTIFIC OFFICER EMPLOYED BY EURATOM, HAS BEEN ON LEAVE ON PERSONAL GROUNDS WITHIN THE MEANING OF ARTICLE 40 OF THE STAFF REGULATIONS OF OFFICIALS .
3 ON 10 DECEMBER 1973, THE COMMISSION REJECTED HIS REQUEST FOR A MEASURE TERMINATING HIS SERVICE PURSUANT TO REGULATION NO 1543/73 ON THE GROUND THAT, ON 7 NOVEMBER 1973, IT HAD DECIDED THAT THE REGULATION DID NOT APPLY TO OFFICIALS WHO WERE ON LEAVE ON PERSONAL GROUNDS .
4 THE APPLICANT SEEKS ANNULMENT OF THIS DECISION BECAUSE IT IS BASED ON AN ERRONEOUS INTERPRETATION OF THE REGULATION BY THE COMMISSION .
5 THE APPLICANT BASES HIS CASE MAINLY ON ARTICLE 40 ( 4 ) ( D ) OF THE STAFF REGULATIONS, WHICH CONFERS ON AN OFFICIAL ON LEAVE ON PERSONAL GROUNDS THE RIGHT TO BE REINSTATED IN THE FIRST POST CORRESPONDING TO HIS GRADE WHICH FALLS VACANT .
6 UNDER ARTICLE 2 OF REGULATION NO 1543/73 THE COMMISSION IS AUTHORIZED TO TAKE MEASURES FOR THE TERMINATION OF SERVICE OF OFFICIALS 'IN ORDER TO DEAL WITH EXCEPTIONAL PROBLEMS ARISING FROM THE ADOPTION OF RESEARCH PROGRAMMES INVOLVING A REDUCTION IN THE NUMBER OF POSTS IN THE PLAN OF STAFF PAID FROM EUROPEAN ATOMIC ENERGY COMMUNITY RESEARCH AND INVESTMENT FUNDS, AND PROBLEMS ARISING FROM THE ACCESSION OF NEW MEMBER STATES TO THE EUROPEAN COMMUNITIES '.
7 THE REGULATION IS THUS PARTLY DESIGNED TO RESOLVE THE PROBLEMS CREATED BY THE REDUCTION IN THE NUMBER OF POSTS .
8 AS THIS IS ITS OBJECT, THE REGULATION CANNOT APPLY TO INDIVIDUALS NOT ACTUALLY OCCUPYING A POST .
9 AN OFFICIAL ON LEAVE ON PERSONAL GROUNDS DOES NOT ACTUALLY OCCUPY A POST AND HAS NO RIGHT TO REINSTATEMENT UNLESS THERE IS A POST VACANT .
10 IN THESE CIRCUMSTANCES, THE COMMISSION HAS RIGHTLY INTERPRETED REGULATION NO 1543/73 AS NOT APPLYING TO OFFICIALS WHO ARE ON LEAVE ON PERSONAL GROUNDS .
11 THE APPLICANT FURTHER CONTENDS THAT THE REPEATED REFUSAL OF THE COMMISSION TO REINSTATE HIM PURSUANT TO ARTICLE 40 ( 4 ) OF THE STAFF REGULATIONS, COMBINED WITH THE REFUSAL TO APPLY TO HIM A MEASURE TERMINATING HIS SERVICES UNDER REGULATION NO 1543/73, IS EVIDENCE OF THE COMMISSION'S UNLAWFUL INTENTION TO TERMINATE HIS SERVICE WHILE DENYING HIM THE RIGHTS AND PREVILEGES PROVIDED FOR UNDER THE STAFF REGULATIONS .
12 THE COMMISSION JUSTIFIED ITS REJECTIONS OF THE APPLICANT'S REQUESTS TO BE REINSTATED ON THE GROUND THAT THE BUDGET FOR RESEARCH APPROVED BY THE COUNCIL RULES OUT ANY PRACTICAL POSSIBILITY OF REINSTATING THE SCIENTIFIC STAFF ON THE CONCLUSION OF LEAVE ON PERSONAL GROUNDS, AND ON THE GROUND THAT IT WAS NECESSARY TO RECOGNIZE THE LARGE NUMBER OF SUPERNUMERARY OFFICIALS STILL EMPLOYED AS HAVING, WHEN APPOINTMENT WAS MADE TO A VACANCY, PRIORITY OVER OFFICIALS WHO WERE NOT IN EMPLOYMENT .
13 AS SUPPORT FOR THE NON-APPLICATION OF ARTICLE 40 ( 4 ) ( D ), THESE GROUNDS CANNOT BE CRITICIZED IN LAW .
14 THE APPLICANT HAS NOT ATTEMPTED TO CHALLENGE THE FACTS ON WHICH THE GROUNDS FOR THESE DECISIONS ARE BASED .
15 IT IS, MOREOVER, ESTABLISHED THAT NO MEASURE FOR TERMINATION OF SERVICE HAS BEEN TAKEN IN RESPECT OF THE APPLICANT, SO THAT HE IS STILL ON LEAVE ON PERSONAL GROUNDS, ENJOYING THE RIGHTS WHICH FLOW FROM THAT STATUS .
16 IN THESE CIRCUMSTANCES, THIS SUBMISSION CANNOT BE UPHELD .
17 THE APPLICATION MUST THEREFORE BE DISMISSED .
Decision on costs
18 THE APPLICANT HAS FAILED IN HIS APPLICATION .
19 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
20 HOWEVER, UNDER ARTICLE 70 OF THE SAID RULES, THE INSTITUTIONS SHALL BEAR THEIR OWN COSTS IN THE CASE OF ACTIONS BY OFFICIALS AND SERVANTS OF THE COMMUNITIES .
Operative part
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION AS UNFOUNDED .
2 . ORDERS EACH OF THE PARTIES TO PAY ITS OWN COSTS .