61956CJ0007_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN JOINED CASES 7/56 AND 3 TO 7/57
( 1 ) DINEKE ALGERA ( 2 ) GIACOMO CICCONARDI ( 3 ) SIMONE COUTURAUD
( 4 ) IGNAZIO GENUARDI
( 5 ) FELICIE STEICHEN, ASSISTED BY PIERRE CHAREYRE, ADVOCATE AT THE CONSEIL D'ETAT AND THE COUR DE CASSATION, PARIS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ME MARGUE, 6 RUE ALPHONSE MUENCHEN, APPLICANTS,
V
COMMON ASSEMBLY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY JEAN COUTARD, ADVOCATE AT THE CONSEIL D'ETAT AND THE COUR DE CASSATION, PARIS, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 19A RUE BEAUMONT, DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF ADMINISTRATIVE DECISIONS, AND APPLICATIONS FOR DAMAGES,
Grounds
P . 54
A - APPLICATION FOR ANNULMENT 7/56
I - ADMISSIBILITY
IN THEIR CONCLUSIONS, THE APPLICANTS CLAIM THAT THE COURT SHOULD :
" ... FIND THAT THE DECISIONS ADOPTED WERE NOT LAWFULLY ADOPTED; ANNUL THE DECISIONS ADOPTED WITH ALL THE CONSEQUENCES THAT FOLLOW THEREFROM IN LAW ",
BUT THEY DO NOT SPECIFY WHICH DECISIONS ARE CONCERNED .
HOWEVER, THE FOLLOWING STATEMENT IS TO BE FOUND IN THE APPLICATION : " THE DECISIONS OF 12 JULY 1956 AND 15 OCTOBER 1956 CONSTITUTE THE CONTESTED DECISIONS ". THUS, ACCORDING TO THAT CLARIFICATION, THE DISPUTE CONCERNS THE LETTER OF 12 JULY 1956 FROM MR VANRULLEN, THE VICE-PRESIDENT OF THE COMMON ASSEMBLY, TO THE APPLICANTS, AND COMMUNICATION NO 56/13 OF 15 OCTOBER 1956 FROM THE DEPUTY SECRETARY-GENERAL TO THE STAFF OF THE COMMON ASSEMBLY .
IN THIS CONNEXION, THE COURT FINDS THAT MR VANRULLEN'S LETTER OF 12 JULY 1956 DOES CONSTITUTE A DECISION . THAT LETTER MAKES SUFFICIENTLY CLEAR THE ACTION WHICH THE COMMON ASSEMBLY INTENDED TO TAKE IN RELATION TO THE APPLICANTS' SITUATION IF THEY PERSISTED IN REFUSING TO ACCEPT THE PROPOSALS WHICH HAD PREVIOUSLY BEEN MADE TO THEM IN MR VANRULLEN'S LETTER OF 27 JUNE 1956 . THE APPLICANTS EXPRESSLY PERSISTED IN THAT REFUSAL .
MR VANRULLEN WAS EMPOWERED TO TAKE THAT DECISION, SINCE BY ITS DECISION OF 19 JUNE 1956 THE BUREAU HAD " DELEGATED ALL ITS (...) POWERS " TO HIM FOR THE PURPOSE OF " RESOLVING THE PROBLEM OF RECLASSIFICATION AND THE MEASURES RELATING THERETO, ON THE BASIS OF THE PROPOSALS MADE BY THE DELVAUX COMMITTEE AND ADOPTED BY THE COMMITTEE OF THE FOUR PRESIDENTS AT ITS MEETING ON 15 JUNE 1956 ". FURTHERMORE, THE DECISION CONTAINED IN THE LETTER WAS CONFIRMED BY THE DECISION OF THE BUREAU OF THE ASSEMBLY OF 1 OCTOBER 1956 .
IT MAY BE ASKED WHETHER COMMUNICATION NO 56/13 OF 15 OCTOBER 1956 CONSTITUTES A DECISION IN RELATION TO THE APPLICANTS OR ONLY A SOURCE OF INFORMATION FROM WHICH THEY COULD INFER THAT THEY WOULD NO LONGER RECEIVE THE SALARY TO WHICH THEY WERE ENTITLED UNDER THE ORDERS OF 12 DECEMBER 1955 . THE DECISION OF THE BUREAU OF THE ASSEMBLY NOT TO APPLY THE STAFF REGULATIONS TO THE APPLICANTS AND NOT TO GRANT THEM THE SALARY PROVIDED FOR BY THE ORDERS OF 12 DECEMBER 1955 WAS NOT EXPRESSLY COMMUNICATED TO THEM . HOWEVER, THIS BEHAVIOUR ON THE PART OF THE DEFENDANT CANNOT DEPRIVE THE APPLICANTS OF THEIR RIGHT OF APPEAL .
FOR THAT REASON, THE COURT ALSO ADMITS THE APPLICATION DIRECTED AGAINST COMMUNICATION NO 56/13 OF 15 OCTOBER 1956, SINCE IT IS ONLY BY THAT COMMUNICATION THAT THE APPLICANTS WERE INFORMED THAT MR VANRULLEN'S PROPOSALS HAD BEEN CONFIRMED BY THE BUREAU, WHICH COMMUNICATION NO 56/12 EXPRESSED ONLY INDIRECTLY . THUS, IN CLAIMING THE ANNULMENT OF THE " DECISION OF 15 OCTOBER 1956 ", THE APPLICANTS HAVE IN VIEW THE IMPLIED DECISION OF THE DEFENDANT NOT TO ALLOW THEM EITHER THE SALARY OR THE CLASSIFICATION WHICH HAD BEEN CONFERRED ON THEM BY THE ORDERS OF 12 DECEMBER 1955 .
THEREFORE BOTH HEADS OF THE APPLICATION ARE ADMISSIBLE .
II - THE JURISDICTION OF THE COURT
THE JURISDICTION OF THE COURT HAS NOT BEEN CHALLENGED BY EITHER PARTY, AND THERE ARE NO GROUNDS FOR THE COURT TO RAISE ANY OBJECTION OF ITS OWN MOTION .
III - THE REVOCABILITY OF ADMINISTRATIVE MEASURES GIVING RISE TO INDIVIDUAL RIGHTS
THE APPLICATIONS CONTEST THE WITHDRAWAL BY THE ASSEMBLY OF THE ORDERS OF 12 DECEMBER 1955 . THE APPLICANTS ARGUE THAT THE SAID ORDERS CONFERRED UPON THEM VESTED RIGHTS WHICH COULD HAVE BEEN WITHDRAWN ONLY WITH THEIR CONSENT . THEREFORE IT MUST BE CONSIDERED WHETHER IT IS LEGALLY POSSIBLE TO WITHDRAW SUCH MEASURES .
FIRST OF ALL, AN ERROR OF REASONING WHICH IS LIABLE TO LEAD IN THIS CONNEXION TO A VICIOUS CIRCLE MUST BE ELIMINATED : IT CONSISTS IN ASSERTING THE EXISTENCE OF A VESTED RIGHT, AND THEN INFERRING THEREFROM THAT THAT RIGHT CANNOT BE REVOKED . IN FACT, IF THE RIGHT CONFERRED BY AN ADMINISTRATIVE MEASURE CAN BE UNILATERALLY REVOKED BY THE ADMINISTRATION, THEN THE SIMPLE FACT IS THAT IT DOES NOT CONSTITUTE A VESTED RIGHT . THE ORDERS OF 12 DECEMBER 1955 DECLARE THAT THE APPLICANTS ARE BROUGHT WITHIN THE AMBIT OF THE STAFF REGULATIONS, APPOINT THEM TO CERTAIN " GRADES " AND FIX THEIR RANK AT CERTAIN STEPS OF SENIORITY .
IF THOSE ORDERS ARE LEGAL AND VALID IN LAW, THEY CONSTITUTE INDIVIDUAL ADMINISTRATIVE MEASURES GIVING RISE TO AN INDIVIDUAL RIGHT .
THE POSSIBILITY OF WITHDRAWING SUCH MEASURES IS A PROBLEM OF ADMINISTRATIVE LAW, WHICH IS FAMILIAR IN THE CASE-LAW AND LEARNED WRITING OF ALL THE COUNTRIES OF THE COMMUNITY, BUT FOR THE SOLUTION OF WHICH THE TREATY DOES NOT CONTAIN ANY RULES . UNLESS THE COURT IS TO DENY JUSTICE IT IS THEREFORE OBLIGED TO SOLVE THE PROBLEM BY REFERENCE TO THE RULES ACKNOWLEDGED BY THE LEGISLATION, THE LEARNED WRITING AND THE CASE-LAW OF THE MEMBER COUNTRIES .
IT EMERGES FROM A COMPARATIVE STUDY OF THIS PROBLEM OF LAW THAT IN THE SIX MEMBER STATES AN ADMINISTRATIVE MEASURE CONFERRING INDIVIDUAL RIGHTS ON THE PERSON CONCERNED CANNOT IN PRINCIPLE BE WITHDRAWN, IF IT IS A LAWFUL MEASURE; IN THAT CASE, SINCE THE INDIVIDUAL RIGHT IS VESTED, THE NEED TO SAFEGUARD CONFIDENCE IN THE STABILITY OF THE SITUATION THUS CREATED PREVAILS OVER THE INTERESTS OF AN ADMINISTRATION DESIROUS OF REVERSING ITS DECISION . THIS IS TRUE IN PARTICULAR OF THE APPOINTMENT OF AN OFFICIAL .
IF, ON THE OTHER HAND, THE ADMINISTRATIVE MEASURE IS ILLEGAL, REVOCATION IS POSSIBLE UNDER THE LAW OF ALL THE MEMBER STATES . THE ABSENCE OF AN OBJECTIVE LEGAL BASIS FOR THE MEASURE AFFECTS THE INDIVIDUAL RIGHT OF THE PERSON CONCERNED AND JUSTIFIES THE REVOCATION OF THE SAID MEASURE . IT SHOULD BE STRESSED THAT WHEREAS THIS PRINCIPLE IS GENERALLY ACKNOWLEDGED, ONLY THE CONDITIONS FOR ITS APPLICATION VARY .
P . 56
FRENCH LAW REQUIRES THAT THE WITHDRAWAL OF THE ILLEGAL MEASURE SHOULD BE PRONOUNCED BEFORE THE EXPIRY OF THE TIME-LIMIT FOR INSTITUTING LEGAL PROCEEDINGS AND, IF PROCEEDINGS HAVE BEEN INSTITUTED, BEFORE JUDGMENT IS DELIVERED; WITH CERTAIN SMALL DIFFERENCES, BELGIAN, LUXEMBOURG AND NETHERLANDS LAW SEEMS TO FOLLOW SIMILAR RULES .
GERMAN LAW, ON THE OTHER HAND, DOES NOT SET ANY TIME-LIMIT FOR THE EXERCISE OF THE RIGHT OF EVOCATION, EXCEPT WHERE SUCH A TIME-LIMIT IS LAID DOWN BY A SPECIAL PROVISION . THUS ARTICLE 13 OF THE BUNDESBEAMTENGESETZ ( FEDERAL LAW GOVERNING CIVIL SERVANTS ) ALLOWS THE WITHDRAWAL OF AN APPOINTMENT ONLY WITHIN A PERIOD OF SIX MONTHS . HOWEVER, IT IS GENERALLY ACKNOWLEDGED THAT UNDULY LATE WITHDRAWAL, OCCURRING CONSIDERABLY LATER THAN THE DATE ON WHICH WITHDRAWAL COULD HAVE BEEN PRONOUNCED, IS CONTRARY TO THE PRINCIPLE OF GOOD FAITH ( TREU UND GLAUBEN ). IN THIS CONNEXION, CASE-LAW AND LEARNED WRITING FOUND THEMSELVES ALSO UPON THE CONCEPTS OF WAIVER ( VERZICHT ) AND OF FORFEITURE ( VERWIRKUNG ) OF THE RIGHT OF REVOCATION .
ITALIAN LAW IS PARTICULARLY CLEAR ON THE QUESTION . ANY ADMINISTRATIVE MEASURE WHICH IS VITIATED BY LACK OF COMPETENCE, INFRINGEMENT OF THE LAW OR ABUSE OF POWERS ( ECCESSO DI POTERE ) MAY BE ANNULLED EX TUNC BY THE ADMINISTRATIVE AUTHORITY WHICH ISSUED IT, IRRESPECTIVE OF THE INDIVIDUAL RIGHTS TO WHICH IT MIGHT HAVE GIVEN RISE . SUCH WITHDRAWAL MAY BE DECLARED AT ANY TIME ( IN QUALSIASI MOMENTO ); THUS THERE IS NO TIME-LIMIT PRESCRIBED FOR WITHDRAWAL . HOWEVER, ACCORDING TO LEARNED WRITING AND CASE-LAW, UNDULY LATE WITHDRAWAL CAN CONSTITUTE ABUSE OF POWERS; MEASURES WHICH HAVE BEEN IN FORCE FOR A LONG TIME ( FATTI AVVENUTI DA LUNGA DATA ) SHOULD BE KEPT IN FORCE, EVEN IF THEY WERE CONTRARY TO THE LAW, UNLESS OVERRIDING REASONS REQUIRE THEIR WITHDRAWAL IN THE PUBLIC INTEREST .
THUS THE REVOCABILITY OF AN ADMINISTRATIVE MEASURE VITIATED BY ILLEGALITY IS ALLOWED IN ALL MEMBER STATES .
IN AGREEMENT WITH THE ADVOCATE-GENERAL'S OPINION, THE COURT ACCEPTS THE PRINCIPLE OF REVOCABILITY OF ILLEGAL MEASURES AT LEAST WITHIN A REASONABLE PERIOD OF TIME, SUCH AS THAT WITHIN WHICH THE DECISIONS IN QUESTION IN THE PRESENT DISPUTE OCCURRED .
IV - THE LEGALITY OF THE ORDERS OF 12 DECEMBER 1955
1 . IN RELATION TO THE RULES LAYING DOWN THE POWERS WITHIN THE COMMON ASSEMBLY, THE ORDERS OF 12 DECEMBER 1955 WERE ADOPTED VALIDLY : THEY WERE SIGNED BY THE PRESIDENT OF THE COMMON ASSEMBLY AND BY HIS SECRETARY GENERAL . THE PRESIDENT ACTED IN ACCORDANCE WITH THE DECISIONS OF THE BUREAU OF THE COMMON ASSEMBLY OF 25 NOVEMBER 1955 . THEREFORE THE ORDERS WERE ADOPTED VALIDLY PURSUANT TO THE PROVISIONS LAID DOWN IN THE RULES OF PROCEDURE OF THE COMMON ASSEMBLY ( JO NO 13 OF 9.6.1954, P . 402 ) - IN PARTICULAR IN ARTICLE 43 ( 3 ) THEREOF - AND IN THE RULES OF INTERNAL ADMINISTRATION OF THE COMMON ASSEMBLY OF 25 NOVEMBER 1955 - IN PARTICULAR IN ARTICLES 1, 2 AND 14 THEREOF .
P . 57
IF THE SECRETARIAT AND THE PRESIDENT OF THE COMMON ASSEMBLY HAD NOT CHOSEN THE APPROPRIATE MOMENT TO NOTIFY THE ORDERS TO THE PERSONS CONCERNED ( THE BUREAU HAD PROVIDED THAT THEY SHOULD BE NOTIFIED " IN GOOD TIME ") AND IF THE OBLIGATIONS LAID DOWN IN ARTICLE 43 ( 3 ) OF THE RULES OF PROCEDURE OF THE COMMON ASSEMBLY AND IN ARTICLE 2 ( 4 ) OF THE RULES OF INTERNAL ADMINISTRATION HAD NOT BEEN FULFILLED, THAT WOULD NOT HAVE PREJUDICED THE VALIDITY OF THE ORDERS OF 12 DECEMBER 1955, FROM THE POINT OF VIEW OF THE INTERNAL ORGANIZATION OF THE ASSEMBLY .
2 . AS REGARDS THE ORDERS OF 12 DECEMBER 1955, THIS DISPUTE RAISES THE QUESTION, IN RELATION TO THE PROVISIONS OF THE TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY, WHETHER THE DEFENDANT COULD VALIDLY BRING THE APPLICANTS WITHIN THE AMBIT OF THE STAFF REGULATIONS AND DETERMINE THEIR CLASSIFICATION WITHOUT THE CONSENT OR THE OPINION OF THE COMMITTEE OF PRESIDENTS PROVIDED FOR IN ARTICLE 78 OF THE TREATY, OR WHETHER IT COULD DO SO ONLY WITH THE SAID CONSENT OR THE SAID OPINION . IN THESE CIRCUMSTANCES, IT IS NOT NECESSARY TO RULE ON THE EXTENT OF THE OTHER POWERS WHICH THE SAID COMMITTEE HOLDS UNDER THE TREATY, NOR ON ITS AUTHORITY TO DRAW UP THE STAFF REGULATIONS PURSUANT TO THE LAST PARAGRAPH OF ARTICLE 7 OF THE CONVENTION ON THE TRANSITIONAL PROVISIONS .
( A ) THE APPLICATION OF THE STAFF REGULATIONS IS A MATTER FOR THE INSTITUTIONS, AND THE TREATY MAKES NO PROVISIONS FOR ANY PARTICIPATION BY THE COMMITTEE OF PRESIDENTS . IF THE ORDERS OF 12 DECEMBER 1955 DO INDEED BRING THE APPLICANTS WITHIN THE AMBIT OF THE STAFF REGULATIONS - A QUESTION WHICH WILL BE EXAMINED BELOW UNDER HEADING VI - THAT PART OF THE SAID ORDERS IS LEGAL AND VALID .
( B ) AS REGARDS THE CLASSIFICATION PROVIDED FOR IN THE ORDERS OF 12 DECEMBER 1955 THE SITUATION IS LESS CLEAR .
IT APPEARS FROM THE ORDERS OF 12 DECEMBER 1955 THAT THE APPLICANTS WERE APPOINTED TO CERTAIN GRADES AND WERE ASSIGNED RANK AT SPECIFIC STEPS OF SENIORITY . THAT ASSIGNMENT ENTAILS, AMONG OTHER EFFECTS, THAT OF FIXING THE SALARY OF THE APPLICANTS, AS EMERGES FROM THE WORDING OF THE DECISIONS ADOPTED BY THE BUREAU OF THE ASSEMBLY ON 25 NOVEMBER 1955 .
EXAMINATION OF THE PROBLEM AS TO WHETHER THE COMMON ASSEMBLY HAD AUTHORITY TO DETERMINE THE SALARY OF ITS OFFICIALS ON ITS OWN, OR WHETHER IT COULD DO SO ONLY WITH THE PARTICIPATION OF THE COMMITTEE OF PRESIDENTS PROVIDED FOR IN ARTICLE 78 OF THE TREATY, LEADS TO THE FOLLOWING CONSIDERATIONS :
( 1 ) THE INSTITUTIONS ARE AUTONOMOUS WITHIN THE LIMITS OF THEIR POWERS ( FOURTH PARAGRAPH OF ARTICLE 6 OF THE TREATY ). THUS, IN ITS JUDGMENT IN CASE 1/55 KERGALL V COMMON ASSEMBLY, THE COURT ACKNOWLEDGED THAT THE COMMON ASSEMBLY HAD AUTHORITY " TO ORGANIZE ITS SECRETARIAT AS IT WISHED AND IN THE INTERESTS OF THE SERVICE ". MOREOVER, THE SECOND SUBPARAGRAPH OF ARTICLE 78 ( 3 ) MERELY CREATES AN EXCEPTION TO THE RULE OF AUTONOMY LAID DOWN IN THE PREVIOUS SUBPARAGRAPH AND IS THEREFORE TO BE STRICTLY CONSTRUED .
HOWEVER, THAT DOES NOT PREVENT ARTICLE 78 ( 3 ) FROM GIVING THE COMMITTEE OF PRESIDENTS AUTHORITY OF ITS OWN AS REGARDS THE NUMBER OF SERVANTS AND THEIR SALARY SCALES : THOSE FACTORS MUST BE " DETERMINED IN ADVANCE " BY THE SAID COMMITTEE . THAT PROVISION CAN BE EXPLAINED BY THE FACT THAT ONLY THE COMMUNITY HAS LEGAL PERSONALITY, AND ITS INSTITUTIONS DO NOT . FROM THAT SPRINGS THE NEED TO HARMONIZE THE LIFE OF THE FOUR INSTITUTIONS AND TO PROVIDE FOR FINANCIAL AND BUDGETARY SUPERVISION, A TASK ENTRUSTED BY ARTICLE 78 OF THE TREATY TO THE COMMITTEE OF PRESIDENTS . IT SHOULD BE STRESSED THAT NO OTHER BODY HAS A POWER OF PRELIMINARY SUPERVISION IN FINANCIAL MATTERS .
P . 58
( 2 ) THE SECOND SUBPARAGRAPH OF ARTICLE 78 ( 3 ) OF THE TREATY CONFERS THE POWER TO DETERMINE THE NUMBER OF SERVANTS AND THEIR SALARY SCALES ON THE COMMITTEE OF PRESIDENTS ONLY TO THE EXTENT TO WHICH THEY HAVE NOT BEEN FIXED UNDER ANOTHER PROVISION OF THE TREATY OR OF AN IMPLEMENTING REGULATION . SUCH IS NOT THE CASE IN THIS INSTANCE .
THE SUPERVISION PROVIDED FOR BY THE TREATY WOULD BE INEFFECTIVE IF EACH OF THE INSTITUTIONS HAD POWER TO ISSUE INTERNAL REGULATIONS FIXING THE NUMBER OR THE SALARY SCALES OF ITS SERVANTS . SUCH AN INTERPRETATION WOULD LEAD TO AN ABSURD RESULT . THE INTERPOLATED CLAUSE OF THE SECOND SUBPARAGRAPH OF ARTICLE 78 ( 3 ) REFERS ONLY TO THOSE CASES FOR WHICH THE TREATY LAYS DOWN A SPECIAL METHOD FOR THE FIXING OF A SALARY AND TO THE EVENTUALITY OF AN IMPLEMENTING REGULATION BASED ON SUCH A PROVISION OF THE TREATY . ANY OTHER INTERPRETATION WOULD DEPRIVE ARTICLE 78 OF ITS CONTENT AND HENCE MUST BE REJECTED .
NOR CAN THE AUTONOMY OF THE COMMON ASSEMBLY, AS A PARLIAMENTARY ASSEMBLY, BE SAID TO CONFLICT WITH THE POWER CONFERRED ON THE COMMITTEE OF PRESIDENTS BY ARTICLE 78 OF THE TREATY . IN FACT, THAT ARTICLE APPLIES TO ALL THE INSTITUTIONS OF THE COMMUNITY WITHOUT DISTINCTION; THE FACT THAT THE COMMON ASSEMBLY HAS SPECIAL POWERS CHANGES NOTHING IN THAT RESPECT; ITS FUNCTIONAL AUTONOMY EXISTS ONLY WITHIN THE LIMITS OF ITS POWERS, AS LAID DOWN BY THE TREATY ( LAST PARAGRAPH OF ARTICLE 6 ).
( 3 ) THEREFORE, THE POWER ATTRIBUTED TO THE COMMITTEE OF PRESIDENTS BY ARTICLE 78 OF THE TREATY APPLIES IN THIS INSTANCE .
HOWEVER, TWO ARGUMENTS HAVE BEEN SUBMITTED TO THE COURT IN RELATION TO THE EXTENT OF THAT POWER .
( A ) ACCORDING TO THE FIRST ARGUMENT, IN ORDER TO CARRY OUT EFFECTIVE SUPERVISION, THE COMMITTEE OF PRESIDENTS MUST HAVE A RIGHT OF DECISION IN FINANCIAL MATTERS .
BOTH THE WORDING AND PURPOSE OF ARTICLE 78 HAVE BEEN PLEADED IN SUPPORT OF THIS ARGUMENT .
AS REGARDS THE WORDING, ARTICLE 78 ( 3 ) ENTRUSTS TO THE COMMITTEE OF PRESIDENTS THE TASK OF DETERMINING THE NUMBER OF SERVANTS AND THEIR SALARY SCALES, PRIOR TO THE DRAWING UP OF THE ESTIMATES . THE USE OF THE WORD " DETERMINE " IN THAT PROVISION CLEARLY INDICATES THE EXISTENCE OF A POWER OF DECISION .
AS REGARDS THE PURPOSE OF ARTICLE 78, WHICH IS OBVIOUSLY INTENDED TO ESTABLISH FINANCIAL SUPERVISION, IT IMPLIES THAT THE POWERS OF THE COMMITTEE ARE NOT RESTRICTED TO ESTABLISHING A TABLE OR SCALE OF SALARIES IN THE ABSTRACT . INDEED, IN ORDER FOR THAT POWER TO BE EFFECTIVE, THE COMMITTEE MUST HAVE AUTHORITY TO DETERMINE THE SALARY LAID DOWN IN ABSTRACTO FOR SERVANTS CARRYING OUT A PARTICULAR FUNCTION, THE DESCRIPTION OF WHICH ( " JOB-DESCRIPTION " ) IS DRAWN UP BY EACH INSTITUTION . IF NO SUCH AUTHORITY EXISTED, THERE WOULD BE NOTHING TO PREVENT AN INSTITUTION FROM CLASSIFYING ALL ITS SERVANTS IN THE HIGHEST STEP OF THE SCALE, AND THE SUPERVISION WOULD BE CIRCUMVENTED .
P . 59
FURTHERMORE, THE PROVISION SPEAKS OF THE DETERMINATION OF THE NUMBER OF EMPLOYEES AND OF THE SCALES OF " THEIR " SALARIES, NOT OF THE SCALES OF " THE " SALARIES .
ACCORDING TO THAT INTERPRETATION, THE SECOND SUBPARAGRAPH OF ARTICLE 78 ( 3 ) MUST BE CONSIDERED AS GIVING RISE TO AN IMPLIED POWER ENABLING FINANCIAL SUPERVISION TO BE EXERCISED OVER STAFF EXPENDITURE, IN THE SAME WAY AS THE THIRD AND FOURTH SUBPARAGRAPHS, WHICH PROVIDE FOR BUDGETARY SUPERVISION, AND THE SIXTH SUBPARAGRAPH, WHICH PROVIDES FOR ACCOUNTING SUPERVISION .
THE PRIOR DETERMINATION OF THE NUMBER OF SERVANTS IS INTENDED TO PREVENT AN UNJUSTIFIED INFLATION OF THE NUMBERS OF OFFICIALS OF THE INSTITUTIONS, WHILE THE DETERMINATION OF THE SCALES OF THEIR SALARIES IS TO PREVENT THE AWARD OF EXCESSIVE SALARIES .
( B ) ACCORDING TO ANOTHER OPINION, THE THEORY OF AN IMPLIED POWER DOES NOT NECESSARILY LEAD TO THE CONCLUSION THAT THE COMMITTEE OF PRESIDENTS SHOULD HAVE A RIGHT OF DECISION IN THE SENSE DESCRIBED ABOVE, SINCE IT ALSO HAS OTHER MEANS OF EXERCISING EFFECTIVE SUPERVISION .
NO PROVISION CONFERS ON THE COMMITTEE OF PRESIDENTS WITH A SUFFICIENT DEGREE OF PRECISION ANY RIGHTS OF DECISION EXCEEDING THE COMPETENCE OF A COORDINATING BODY . IN PARTICULAR, THE DUTY OF " DETERMINING " THE NUMBER OF SERVANTS AND THEIR SALARY SCALES DOES NOT DEPRIVE THE INSTITUTIONS OF THEIR ADMINISTRATIVE AUTONOMY AND CANNOT CONFER ON THE PRESIDENTS OF THE INSTITUTIONS, WHEN MEETING IN THE COMMITTEE OF PRESIDENTS, POWERS WHICH THEY DO NOT POSSESS IN THEIR CAPACITY AS PRESIDENTS OF THOSE INSTITUTIONS .
ACCORDING TO THIS ARGUMENT, THE COMMITTEE OF PRESIDENTS MUST BE INFORMED AND CONSULTED, BUT THE POWER OF DECISION IS RESERVED TO THE INSTITUTIONS, WHOSE GOOD FAITH HAS TO BE PRESUMED .
( 4 ) IT SEEMS THAT, ALTHOUGH IT DID NOT TAKE UP ANY DEFINITE POSITION, THE COMMITTEE OF PRESIDENTS ITSELF CONCURS RATHER IN THE SECOND OF THESE INTERPRETATIONS . THUS, AFTER DECIDING AT ITS MEETING OF 12 DECEMBER 1955 THAT AS REGARDS THE PROCEDURE TO BE FOLLOWED IN DRAWING UP THE ANNEXES " THE ADMINISTRATIONS OF THE INSTITUTIONS SHALL CONSULT EACH OTHER ", THE COMMITTEE STATES AT THE SAME TIME " THAT SUCH CONSULTATION SHALL BE DIRECTED TOWARDS HARMONIZING THE PROVISIONS, BUT THAT IT SHALL NOT PREJUDICE THE DISCRETIONARY NATURE OF THE ANNEXES ".
SIMILARLY, AT ITS MEETING OF 28 JANUARY 1956, THE COMMITTEE OF PRESIDENTS STATED : " SINCE THE ANNEXES TO THE STAFF REGULATIONS WERE SUBMITTED TO THE COMMITTEE OF PRESIDENTS ONLY FOR ITS OPINION, THE AMENDMENTS UPON WHICH THE COMMITTEE HAS AGREED DO NOT CONSTITUTE DECISIONS BUT ONLY PROPOSALS MADE TO THE INSTITUTIONS ".
P . 60
THE STAFF REGULATIONS ARE BASED ON THE SAME IDEAS : THEY PROVIDE ONLY THAT THE COMMITTEE SHOULD BE INFORMED OF THE NUMBER OF POSTS IN EACH GRADE, FIXED BY THE INSTITUTION ON THE BASIS OF THE COMPLEMENT DECIDED BY THE COMMITTEE OF PRESIDENTS ( SECOND PARAGRAPH OF ARTICLE 25 ); ARTICLE 62 OF THE STAFF REGULATIONS STATES THAT THE ANNEXES TO THE STAFF REGULATIONS " SHALL BE DRAWN UP BY EACH INSTITUTION ... AND SUBMITTED TO THE COMMITTEE OF PRESIDENTS FOR ITS OPINION BEFORE THEIR ENTRY INTO FORCE ". MOREOVER, THE FIRST PARAGRAPH OF ARTICLE 25 REFERS IN A QUITE GENERAL WAY TO ARTICLE 78 OF THE TREATY AS REGARDS THE TABLE OF CORRESPONDENCE BETWEEN GRADES AND POSTS .
ACCORDING TO THIS ARGUMENT, THEREFORE, THE COMMITTEE OF PRESIDENTS HAS ONLY TO BE CONSULTED AND GIVE ITS OPINION ON THE CLASSIFICATION OF SERVANTS, BUT DOES NOT HAVE ANY RIGHT OF DECISION OF ITS OWN, EXCEPT AS REGARDS THE NUMBER OF SERVANTS IN EACH INSTITUTION .
( 5 ) ACCORDING TO ARTICLE 31 OF THE TREATY, IT IS FOR THE COURT TO ENSURE THAT IN THE INTERPRETATION AND APPLICATION OF THE TREATY, AND OF RULES LAID DOWN FOR THE IMPLEMENTATION THEREOF, THE LAW IS OBSERVED . THEREFORE IT IS NOT BOUND EITHER BY THE POINT OF VIEW ADOPTED BY THE COMMITTEE OF PRESIDENTS OR BY THE WORDING OF THE STAFF REGULATIONS, IF IT APPEARS THAT A CHOICE BETWEEN THE TWO ABOVEMENTIONED ARGUMENTS IS NECESSARY TO REACH A DECISION IN THE PRESENT ACTION .
HOWEVER, THIS ACTION DOES NOT REQUIRE THE POINT TO BE DECIDED .
IN THE EVENT, THE CLASSIFICATION APPLIED TO THE APPLICANTS BY THE ORDERS OF 12 DECEMBER 1955 PROVES TO BE UNLAWFUL ACCORDING BOTH TO THE FIRST ARGUMENT AND TO THE SECOND : ACCORDING TO THE FIRST ARGUMENT, BECAUSE THE COMMON ASSEMBLY HAD NOT PREVIOUSLY OBTAINED THE CONSENT OF THE COMMITTEE OF PRESIDENTS; ACCORDING TO THE SECOND ARGUMENT, BECAUSE THE COMMON ASSEMBLY HAD NOT PREVIOUSLY SUBMITTED THE CLASSIFICATION TO THE COMMITTEE OF PRESIDENTS FOR ITS OPINION, WHICH IT SHOULD ALSO HAVE DONE PURSUANT TO THE FOURTH PARAGRAPH OF ARTICLE 2 OF ITS RULES OF INTERNAL ADMINISTRATION AS WELL AS ACCORDING TO ARTICLE 43 ( 3 ) OF ITS RULES OF PROCEDURE . THE DEFENDANT HAS NOT SOUGHT TO DENY THAT IT HAD NEVER RECEIVED OR EVEN REQUESTED BEFORE 12 DECEMBER 1955 THE AGREEMENT OR THE OPINION OF THE COMMITTEE OF PRESIDENTS .
IN THOSE CIRCUMSTANCES, IT WAS NOT EMPOWERED TO FIX THE CLASSIFICATION OF THE APPLICANTS WITHIN THE FRAMEWORK OF THE STAFF REGULATIONS, SO THAT THAT PART OF THE ORDERS OF 12 DECEMBER 1955 IS UNLAWFUL .
V - THE CONSEQUENCES OF THE UNLAWFUL NATURE OF THE PART OF THE ORDERS OF 12 DECEMBER 1955 CONTAINING THE CLASSIFICATION OF THE APPLICANTS
1 . COMPLETE NULLITY OR REVOCABILITY?
IN THE OPINION OF THE COURT, THE UNLAWFUL NATURE OF AN INDIVIDUAL ADMINISTRATIVE MEASURE ENTAILS ITS COMPLETE NULLITY ONLY IN CERTAIN CIRCUMSTANCES WHICH DO NOT OCCUR IN THE PRESENT ACTION . APART FROM THOSE EXCEPTIONAL CASES, THE THEORETICAL WRITING AND THE CASE-LAW OF THE MEMBER STATES ALLOW ONLY OF VOIDABILITY AND REVOCABILITY . THE ADOPTION OF AN ADMINISTRATIVE MEASURE CREATES A PRESUMPTION AS TO ITS VALIDITY . THAT VALIDITY CAN BE SET ASIDE ONLY BY MEANS OF ANNULMENT OR WITHDRAWAL, IN SO FAR AS THOSE MEASURES ARE PERMISSIBLE .
P . 61
2 . DOES THE REVOCABILITY OF THE ORDERS OF 12 DECEMBER 1955 EXTEND TO THE WHOLE OF THEIR CONTENTS OR ONLY TO THE UNLAWFUL PART?
IN HIS OPINION, THE ADVOCATE-GENERAL DECLARED THAT HE WAS IN FAVOUR OF THE VIEW THAT THE ELEMENTS OF THE ORDERS ARE INDISSOCIABLE, AND RELIED UPON ARTICLE 59 OF THE STAFF REGULATIONS WHICH PROVIDES THAT " SERVANTS MAY BE ESTABLISHED IN ANY GRADE OF A CATEGORY OR SERVICE REFERRED TO IN ARTICLE 24 OF THE STAFF REGULATIONS ". ACCORDING TO HIM, " SINCE ESTABLISHMENT ENTAILS THE SERVANTS " RENOUNCING THE BENEFIT OF THEIR CONTRACT, THEY ARE ENTITLED, IN ORDER TO BE ABLE TO EXERCISE THEIR OPTION WITH FULL KNOWLEDGE OF THE FACTS, TO BE ACQUAINTED WITH THE GRADE AND THE STEP IN SENIORITY TO WHICH THE ADMINISTRATION IS PROPOSING TO APPOINT THEM, AND NOT ONLY THE DECISION OF PRINCIPLE CONSIDERING THEM ELIGIBLE TO BECOME OFFICIALS UNDER THE STAFF REGULATIONS ... "
IT IS TRUE THAT EACH OF THE APPLICANTS DECLARED THAT HE AGREED TO BE BROUGHT WITHIN THE AMBIT OF THE STAFF REGULATIONS ON THE TERMS OFFERED TO HIM . HOWEVER, THE ESSENTIAL AND PREPONDERANT FACTOR IN THAT DECLARATION CONSISTS IN THE APPLICATION OF THE STAFF REGULATIONS, ENSURING THEM OF A STABLE POSITION WITH A RIGHT TO A RETIREMENT PENSION . AS TO SALARY, IT IS KNOWN THAT IT CAN SUBSEQUENTLY BE ALTERED BY WAY OF REGULATIONS, BUT ESTABLISHMENT UNDER THE STAFF REGULATIONS CANNOT BE AFFECTED THEREBY . ADOPTING THE INTERPRETATION FOLLOWED IN MOST MODERN LEGISLATIVE SYSTEMS, ACCORDING TO WHICH PARTIAL UNLAWFULNESS DOES NOT ENTAIL THE REVOCABILITY OF THE MEASURE IN ITS ENTIRETY, UNLESS THAT MEASURE IS DEPRIVED OF ITS RAISON D'ETRE IF THE UNLAWFUL PART IS REMOVED, THE COURT REJECTS THE ARGUMENT THAT THE VARIOUS ELEMENTS OF THE ORDERS ARE INDISSOCIABLE .
THIS DECISION IS ALSO JUSTIFIED BY THE FACT THAT IT HAS BEEN FOUND ABOVE ( UNDER HEADING III ) THAT ONLY UNLAWFUL ADMINISTRATIVE MEASURES ARE REVOCABLE, LAWFUL MEASURES REMAINING IRREVOCABLE . IN THE PRESENT CASE, THE ASSEMBLY WAS COMPETENT AS REGARDS THE APPLICATION OF THE STAFF REGULATIONS, SO THAT THE APPLICATION IS VALID AND IRREVOCABLE, WHEREAS THE CONFERRING OF THE GRADE AND THE CLASSIFICATION IN CERTAIN STEPS WAS UNLAWFUL AND REVOCABLE . IN THOSE CIRCUMSTANCES, THE APPLICATION OF THE STAFF REGULATIONS, WHICH WAS VALIDLY UNDERTAKEN, COULD NOT BE REVOKED .
THAT DECISION IS NOT CONTRARY TO THE PROVISIONS OF THE STAFF REGULATIONS . MOREOVER, THE COURT IS NOT HERE CONCERNED TO APPLY THE STAFF REGULATIONS, WHICH WERE NOT YET IN FORCE AT THE TIME OF THE NOTIFICATION OF THE ORDERS, BUT TO APPLY THE TREATY . ACCORDING TO THE TREATY, ADMISSION AS SUCH TO THE AMBIT OF THE STAFF REGULATIONS CAME WITHIN THE EXCLUSIVE JURISDICTION OF THE ASSEMBLY, WHEREAS THE LATTER WAS NOT EMPOWERED TO UNDERTAKE CLASSIFICATION WITHOUT THE PRIOR CONSENT OR OPINION OF THE COMMITTEE OF PRESIDENTS . IT MUST BE INFERRED FROM THE VERY FACT THAT THE TREATY ARRANGED THE POWERS IN THESE TWO AREAS IN DIFFERENT WAYS THAT THE CORRESPONDING ELEMENTS OF THE ORDERS CAN, AND INDEED MUST, BE DISSOCIATED FOR THE PURPOSES OF THE LAW .
P . 62
BE THAT AS IT MAY, ALTHOUGH IT IS TRUE THAT TO BRING AN OFFICIAL WITHIN THE AMBIT OF THE STAFF REGULATIONS INVOLVES ESTABLISHING HIM IN A GRADE OF A GIVEN CATEGORY OR SERVICE ( TRANSITIONAL PROVISIONS, ARTICLE 59 ), IT SHOULD ALSO BE POINTED OUT THAT THE STAFF REGULATIONS DISTINGUISH BETWEEN THE APPLICATION OF THE STAFF REGULATIONS AND CLASSIFICATION ( SEE FOR EXAMPLE ARTICLE 27, WHICH SPEAKS ONLY OF BRINGING OFFICIALS WITHIN THE AMBIT OF THE STAFF REGULATIONS, AND ARTICLE 36, WHICH PROVIDES FOR A REPORT RECOMMENDING " ESTABLISHMENT ").
MOREOVER, STILL FURTHER ARGUMENTS ARE IN FAVOUR OF THE DISSOCIABLE NATURE OF VARIOUS ELEMENTS OF THE ORDERS .
THUS, IT WOULD BE INEQUITABLE TO ALLOW THE ASSEMBLY TO FAIL TO RESPECT THE RIGHT TO THE BENEFIT OF THE STAFF REGULATIONS WHICH IT HAD INTENDED TO CONFER ON THE APPLICANTS, IN THE FORM OF THEIR APPOINTMENT AS ESTABLISHED OFFICIALS, SIMPLY BECAUSE IT HAD ALSO MADE UNLAWFUL PROMISES TO THEM WHICH IT WAS NOT EMPOWERED TO MAKE . IN THE COURSE OF THE ORAL PROCEDURE, THE AGENT FOR THE DEFENDANT GAVE AN AFFIRMATIVE ANSWER TO THE QUESTION WHETHER THE PARTIES CONCERNED WOULD ALSO HAVE BEEN IN AGREEMENT WITH APPOINTMENT ACCOMPANIED BY A LAWFUL CLASSIFICATION . IT MUST BE ACKNOWLEDGED THAT THE WILL OF THE APPLICANTS IS MORE DIFFICULT TO INTERPRET; BUT THE COURT TAKES THE VIEW THAT IT IS NOT POSSIBLE, ON THE PRETEXT OF NOT ASCRIBING TO THEM AN INTENTION WHICH THEY MIGHT NOT HAVE MADE EVIDENT, TO DEPRIVE THEM OF THE BENEFIT OF THE APPLICATION OF THE STAFF REGULATIONS, WHICH HAD BEEN VALIDLY GRANTED . MOREOVER, THE CONTINUED APPLICATION TO THEM OF THE STAFF REGULATIONS LEAVES THEM THE OPPORTUNITY OF ANSWERING THE ABOVEMENTIONED QUESTION IN A PRACTICAL MANNER : THEY MAY RESIGN IF THEY CONSIDER THAT THE SITUATION IN WHICH THEY ARE PLACED IS NOT SATISFACTORY .
VI
FOR THE PURPOSES OF THE PRECEDING PARAGRAPHS, IT HAS BEEN ACCEPTED THAT THE BRINGING OF THE APPLICANTS WITHIN THE AMBIT OF THE STAFF REGULATIONS WAS VALID AND IRREVOCABLE IF THE ORDERS OF 12 DECEMBER 1955 ACTUALLY CONTAINED SUCH A DECISION ( SEE HEADING IV, 2 ( A ) ABOVE ). ALTHOUGH THAT IS VERY PROBABLE, IT IS NOT CERTAIN .
THE CIRCUMSTANCES IN WHICH THE ORDERS OF 12 DECEMBER 1955 WERE NOTIFIED TO THE APPLICANTS MAKE IT QUITE CLEAR THAT THE DEFENDANT INTENDED TO ADMIT THE APPLICANTS TO A STABLE SITUATION UNDER THE STAFF REGULATIONS, AND THAT THE APPLICANTS AGREED TO THIS . THIS IS BORNE OUT BY THE WORDING OF THE ORDERS, WHICH UNRESERVEDLY EXTEND THE BENEFIT OF THE APPLICATION OF THE STAFF REGULATIONS, BY THE PRELIMINARY DECLARATIONS OF ACCEPTANCE OF THAT APPLICATION, SIGNED BY THE APPLICANTS, AS WELL AS BY THEIR ACKNOWLEDGEMENTS OF RECEIPT OF THE ORDERS . THE ORDERS WERE NOTIFIED ONLY AFTER THE COMMITTEE OF PRESIDENTS HAD, ON 12 DECEMBER 1955, DECIDED THAT THE STAFF REGULATIONS WERE " DEFINITIVELY ADOPTED ", AT ALL EVENTS AS FAR AS THE COMMON ASSEMBLY WAS CONCERNED, SO THAT ITS PRESIDENT, MR PELLA, WAS ABLE TO TAKE THE VIEW THAT THE STAFF REGULATIONS WERE DEFINITIVELY APPROVED AND WOULD ENTER INTO FORCE IN THE VERY NEAR FUTURE, AND THAT CONSEQUENTLY HE COULD BRING OFFICIALS WHO SO WISHED WITHIN THE AMBIT OF THE SAID STAFF REGULATIONS .
P . 63
HOWEVER, DOUBTS MAY ARISE FROM THE FACT THAT THE TRUE DEFINITIVE TEXT OF THE STAFF REGULATIONS WAS IN FACT DRAWN UP ONLY SUBSEQUENTLY, ON 28 JANUARY 1956, AND THAT IT WAS IMPLEMENTED BY THE COMMON ASSEMBLY ONLY IN OCTOBER 1956, WITH RETROACTIVE EFFECT FROM 1 JULY 1956 . IN VIEW OF THE FACT THAT PARAGRAPH ( 4 ) OF THE ORDERS OF 12 DECEMBER 1955 EXPRESSLY REFERS TO THE SUBSEQUENT ENTRY INTO FORCE OF THE STAFF REGULATIONS AND THE ANNEXES THERETO AND THAT THE APPLICANTS ACCEPTED ANY UNCERTAINTY AS TO THEIR CONTENTS, THE COURT INTERPRETS THE APPLICANTS'DECLARATIONS AND THE WORDING OF THE ORDERS OF 12 DECEMBER 1955 AS REFERRING TO THE APPLICATION OF THE FUTURE STAFF REGULATIONS, WHATEVER THEIR CONTENTS MIGHT BE .
MOREOVER, EVEN IF IT WERE ACCEPTED THAT THAT APPLICATION WAS OF NON-EXISTENT STAFF REGULATIONS AND WAS THEREFORE VOID AND DEVOID OF OBJECT, MR VANRULLEN'S LETTER AND THE COMMON ASSEMBLY'S REFUSAL TO BRING THE APPLICANTS WITHIN THE AMBIT OF THE STAFF REGULATIONS SHOULD BE ANNULLED, BECAUSE THAT DECISION DISREGARDS THE SERVANTS'VESTED ENTITLEMENT TO BE BROUGHT WITHIN THE AMBIT OF THE STAFF REGULATIONS ( JUDGMENT IN CASE 1/55, KERGALL V COMMON ASSEMBLY ). FOR, IF THE COURT FOUND THAT MR KERGALL WAS ELIGIBLE TO BE BROUGHT WITHIN THE AMBIT OF THE STAFF REGULATIONS, ALTHOUGH NO SOLEMN, FORMAL PROMISE TO THAT EFFECT HAD EVER BEEN MADE TO HIM AND ALTHOUGH THE ENTREY INTO FORCE OF THE STAFF REGULATIONS WAS AT THAT TIME LESS IMMINENT, A FORTIORI THE APPLICANTS MUST BE FOUND TO HAVE A SIMILAR, AND EVEN A STRONGER, RIGHT TO BE BROUGHT WITHIN THE AMBIT OF THE STAFF REGULATIONS .
VII
IN SO FAR AS THE DECISION CONTAINED IN MR VANRULLEN'S LETTER OF 12 JULY 1956 WITHDRAWS FROM THE APPLICANTS THE APPLICATION TO THEM OF THE STAFF REGULATIONS, IT MUST BE ANNULLED FOR THE REASONS SET OUT ABOVE .
FURTHERMORE, THE DECISION, CONTAINED IN THE SAME LETTER, TO REPLACE THE APPLICANTS UNDER THEIR FORMER CONTRACTS MUST ALSO BE ANNULLED, SINCE, WITHOUT FRESH EXPRESS CONSENT ON THEIR PART, THE CONTACT WHICH HAD COME TO AN END FOLLOWING THEIR RENUNCIATION, WHICH WAS ACCEPTED BY THE NOTIFICATION OF THE ORDERS OF 12 DECEMBER 1955, COULD NOT BE REVIVED, NOR COULD A FRESH CONTRACT BE IMPOSED ON THEM . THE COMMON ASSEMBLY WAS ENTITLED VALIDLY TO WITHDRAW THE CLASSIFICATION LAID DOWN IN THE SAID ORDERS, AND COULD ON ITS OWN INITIATIVE HAVE RECLASSIFIED THE APPLICANTS AT THE LEVEL RESULTING FROM THE HARMONIZATION MEASURES, ONCE IT HAD BEEN DETERMINED, BUT IT HAD NO RIGHT TO RE-IMPOSE THEIR FORMER CONTRACTUAL TERMS .
THEREFORE, THE COURT FINDS THAT THE FIRST HEAD OF THE APPLICATION, CLAIMING THE ANNULMENT OF THE DECISIONS CONTAINED IN MR VANRULLEN'S LETTER OF 12 JULY 1956, IS WELL FOUNDED .
COMMUNICATION NO 56/13 OF 15 OCTOBER 1956 MUST ALSO BE ANNULLED IN SO FAR AS IT IMPLIED WITHDRAWAL OF THE APPLICATION OF THE STAFF REGULATIONS AND THE RE-ESTABLISHMENT OF A TEMPORARY CONTRACTUAL STATUS, THE LATTER BEING INCOMPATIBLE WITH THE APPLICATION OF THE STAFF REGULATIONS AND THE CREATION OF A STABLE SITUATION WHICH WAS DECLARED TO HAVE BEEN ACQUIRED VALIDLY . ON THE OTHER HAND, THE SAID COMMUNICATION IS VALID IN SO FAR AS IT IMPLIES THE REVOCATION OF THE CLASSIFICATION AND THE SALARY PERTAINING THERETO .
P . 64
CONSEQUENTLY, THE COURT ALLOWS THE APPLICATION IN SO FAR AS THE SAID DECISION REFUSES TO ALLOW THE APPLICANTS TO REMAIN WITHIN THE AMBIT OF THE STAFF REGULATIONS AND REIMPOSES THEIR FORMER CONTRACT; ON THE OTHER HAND, THE APPLICATION AGAINST THE REFUSAL TO GRANT THEM THE SALARY REFERRED TO IN THE SAID ORDERS IS DISMISSED, FOR THE REASONS MENTIONED ABOVE UNDER HEADING IV ( 2 ) ( B ) AND ( 5 ) AND UNDER HEADING V . THE DEFENDANT WILL HAVE TO FIX THE APPLICANTS'SALARIES AFRESH .
IN THAT CONNEXION, FORMAL NOTE SHOULD BE TAKEN OF THE DEFENDANT'S DECLARATION, MADE AT THE HEARING BY ITS AGENT, THAT IT UNDERTAKES TO TAKE THE APPLICANTS BACK INTO ITS SERVICE ON THE GENERAL CONDITIONS CURRENTLY APPLICABLE TO ITS OFFICIALS, AN UNDERTAKING WHICH THE COURT INTERPRETS AS MEANING THAT THOSE CONDITIONS IMPLY THAT THE SAME COMPENSATORY ALLOWANCE WILL BE PAID IN FUTURE AS IS GRANTED TO OFFICIALS WHO ACCEPTED MR VANRULLEN'S PROPOSALS .
VIII - COSTS
IN APPLICATION OF ARTICLE 60 ( 2 ) OF ITS RULES OF PROCEDURE, THE COURT ORDERS THE DEFENDANT TO BEAR ITS OWN COSTS ENTIRELY AND FOUR-FIFTHS OF THE APPLICANTS'COSTS IN RESPECT OF THE APPLICATION FOR ANNULMENT, AND ORDERS THE APPLICANTS TO BEAR ONE FIFTH OF THEIR OWN COSTS, SINCE THEY WERE UNSUCCESSFUL ON ONE HEAD OF THEIR APPLICATION .
B - APPLICATIONS FOR DAMAGES 3 TO 7/57
I - ADMISSIBILITY
THERE IS NOTHING TO PREVENT AN APPLICANT, IN ONE AND THE SAME ACTION, FROM SUBMITTING CONCLUSIONS IN THE ALTERNATIVE IN CASE HIS PRINCIPAL CONCLUSIONS ARE REJECTED .
THEREFORE THE APPLICATIONS ARE ADMISSIBLE .
II - SUBSTANCE
1 . THE LEGAL BASIS OF LIABILITY
THE APPLICANTS HAVE NOT MADE CLEAR THE LEGAL PROVISIONS ON WHICH THEY BASE THEIR APPLICATIONS FOR DAMAGES . IT APPEARS THAT THEY ARE SEEKING THE APPLICATION BY ANALOGY OF THE PROVISIONS OF THE SEVENTH PARAGRAPH OF ARTICLE 34 OF THE STAFF REGULATIONS WHICH PROVIDES FOR THE AWARD OF COMPENSATION IN THE EVENT OF THE TERMINATION OF EMPLOYMENT " OWING TO THE REQUIREMENTS OF THE SERVICE ", BECAUSE THE MEASURES ADOPTED BY THE COMMON ASSEMBLY ALLEGEDLY AMOUNT TO A BREACH OF THE LEGAL TIES BETWEEN THE ASSEMBLY AND ITS SERVANTS .
P . 65
IN THE REJOINDER, THE DEFENDANT ARGUES THAT THE APPLICANTS HAVE NOT PLEADED ARTICLE 40 OF THE TREATY ( LIABILITY FOR A WRONGFUL ACT OR OMISSION ), THAT THEREFORE THAT SUBMISSION IS INADMISSIBLE AND THAT MOREOVER A MISTAKEN INTERPRETATION OF THE RATHER OBSCURE TEXT OF ARTICLE 78 OF THE TREATY CANNOT CONSTITUTE A WRONGFUL ACT OR OMISSION .
THE COURT FINDS THAT THERE IS IN THE PRESENT CASE NO LIABILITY IN CONTRACT, SINCE ON 12 DECEMBER 1955 THE NOTIFICATION OF THE ORDERS HAD REPLACED THE CONTRACTS BY THE APPLICATION OF THE STAFF REGULATIONS . THE SEVENTH PARAGRAPH OF ARTICLE 34 OF THE STAFF REGULATIONS IS NOT APPLICABLE IN THIS CASE BY ANALOGY, BECAUSE THE TIES BETWEEN THE ASSEMBLY AND THE APPLICANTS WERE NOT BROKEN .
ARTICLE 40 OF THE TREATY, ON THE OTHER HAND, CONSTITUTES THE LEGAL BASIS OF THE APPLICATIONS . IT IS TRUE THAT IT WAS NOT EXPRESSLY PLEADED BY THE APPLICANTS, BUT THE NATURE OF THE FACTS STATED BY THEM IN THEIR APPLICATIONS AND THEIR CONCLUSIONS JUSTIFIES ITS APPLICATION . THE STAFF REGULATIONS ( ARTICLE 22 ) AND THE RULES OF PROCEDURE OF THE COURT ( ARTICLE 29 ( 3 )) DO NOT REQUIRE THE APPLICANT TO CITE THE ARTICLES ON WHICH HE RELIES; IT IS SUFFICIENT THAT " THE FACTS, SUBMISSIONS AND CONCLUSIONS OF THE APPLICANT " SHOULD BE INCLUDED IN THE APPLICATION, A REQUIREMENT WHICH IS FULFILLED IN THE PRESENT CASE .
2 . IS THE COMMON ASSEMBLY GUILTY OF A WRONGFUL ACT OR OMISSION WITHIN THE MEANING OF ARTICLE 40 OF THE TREATY?
IN AGREEMENT WITH THE ADVOCATE GENERAL, THE COURT TAKES THE VIEW THAT THE ANSWER CAN ONLY BE IN THE AFFIRMATIVE . THE DEFENDANT KNEW THAT THE COMMITTEE OF PRESIDENTS WAS PROPOSING TO HARMONIZE THE SALARIES OF SERVANTS OF THE DIFFERENT INSTITUTIONS PERFORMING COMPARABLE DUTIES, AND IT HAD DECLARED ITSELF READY TO PARTICIPATE IN THAT HARMONIZATION . IN THOSE CIRCUMSTANCES THE NOTIFICATION OF THE ORDERS OF 12 DECEMBER 1955, ON THE VERY DAY ON WHICH THE COMMITTEE OF PRESIDENTS, AT A MEETING IN WHICH THE PRESIDENT OF THE COMMON ASSEMBLY WAS TAKING PART, HAD UNANIMOUSLY ACKNOWLEDGED THE NEED FOR THAT HARMONIZATION SHOULD NOT - EVEN IF IT SPRANG FROM THE DESIRE TO GIVE THE APPLICANTS A CLEARLY DEFINED STATUS - HAVE BEEN UNDERTAKEN BEFORE THE OUTCOME OF THE ATTEMPTED HARMONIZATION HAD BECOME KNOWN . THAT PREMATURE AND HASTY NOTIFICATION CONSTITUTES A WRONGFUL ACT OR OMISSION, IN THAT IT CREATED A FALSE SITUATION UNDER AN APPEARANCE OF LEGALITY . FURTHERMORE, SINCE THE WITHDRAWAL OF THE APPLICATION OF THE STAFF REGULATIONS WAS ILLEGAL, IT ALSO CONSTITUTES A WRONGFUL ACT OR OMISSION, WHICH ACCORDING TO ARTICLE 40 OF THE TREATY CONFERS A RIGHT TO REPARATION TO MAKE GOOD THE INJURY RESULTING FROM THAT MEASURE .
IN THE PRESENT ACTION IT IS NOT NECESSARY TO DECIDE THE QUESTION WHETHER A WRONGFUL ACT OR OMISSION WITHIN THE MEANING OF ARTICLE 40 OF THE TREATY PRESUPPOSES FRAUD OR AT LEAST CULPABLE NEGLIGENCE, OR WHETHER ANY ILLEGAL BEHAVIOUR - ALBEIT UNCONSCIOUS - ON THE PART OF AN INSTITUTION FALLS WITHIN THE SAID CONCEPT . FOR EVEN IF RELIANCE ON A MISTAKEN INTERPRETATION OF ARTICLE 78 OF THE TREATY DOES NOT NECESSARILY CONSTITUTE A WRONGFUL ACT OR OMISSION GIVING RISE TO LIABILITY, IN THIS INSTANCE SUCH WRONGFUL ACT OR OMISSION RESULTS FROM THE FACT THAT THE ASSEMBLY DID NOT SEEK EITHER THE CONSENT OR THE OPINION OF THE COMMITTEE OF PRESIDENTS, ALTHOUGH THAT DUTY WAS IMPOSED ON IT BOTH BY ARTICLE 43 OF ITS RULES OF PROCEDURE AND BY ARTICLE 2 ( 4 ) OF ITS RULES OF INTERNAL ADMINISTRATION . FURTHERMORE, THAT DUTY WAS STIPULATED IN ARTICLE 62 OF THE STAFF REGULATIONS, IN THE VERSION THEREOF ADOPTED ON 12 DECEMBER 1955 . FINALLY, THE COURT TAKES THE VIEW THAT THE TERGIVERSATIONS OF THE DEFENDANT WITH RESPECT TO THE APPLICANTS ALSO CONSTITUTE A WRONGFUL ACT OR OMISSION .
3 . THE DAMAGE RESULTING FROM THE WRONGFUL ACT OR OMISSIONS
A . MATERIAL DAMAGE
( A ) THE UNLAWFUL REVOCATION OF THE APPLICATION TO THEM OF THE STAFF REGULATIONS AND THE UNLAWFUL REIMPOSITION OF THEIR TEMPORARY CONTRACTS, WHICH ARE ANNULLED BY THIS JUDGMENT, DID NOT CAUSE THE APPLICANTS ANY PECUNIARY DAMAGE .
( B ) THE REVOCATION OF THEIR CLASSIFICATION DEPRIVES THEM OF THE RIGHT TO THE HIGHER SALARIES WHICH ARE PROVIDED FOR IN THE REVOKED ORDERS . HOWEVER, THAT FACT IS NOT THE CONSEQUENCE OF WRONGFUL ACTS OR OMISSIONS, SINCE THE REVOCATION OF THE CLASSIFICATION IS LAWFUL; CONSEQUENTLY, THE SAID DEPRIVATION DOES NOT CONFER ANY ENTITLEMENT TO COMPENSATION .
THIS CONCLUSION ALSO FOLLOWS FROM THE FINDING THAT THE APPLICANTS ARE NOT ENTITLED TO THE PRESERVATION OF AN UNLAWFUL SITUATION WHICH HAS BEEN VALIDLY WITHDRAWN .
( C ) IN THE WRITTEN PROCEDURE, THE APPLICANTS CLAIMED THAT THEY HAD REFUSED EXTERNAL OFFERS OF EMPLOYMENT, BECAUSE THEY PLACED RELIANCE UPON THE PROMISES OF THE COMMON ASSEMBLY . HOWEVER, NO EVIDENCE WAS PRODUCED OR EVEN OFFERED IN THAT CONNEXION . THEREFORE NO FINDING CAN BE MADE THAT THERE WAS ANY DAMAGE FROM THAT POINT OF VIEW .
THEREFORE IT IS NOT PROVED THAT THERE IS ANY PECUNIARY DAMAGE CAUSED BY WRONGFUL ACTS OR OMISSIONS ATTRIBUTABLE TO THE DEFENDANT .
B . NON-MATERIAL DAMAGE
HOWEVER, THE WRONGFUL BEHAVIOUR OF THE DEFENDANT, NAMELY THE UNLAWFUL WITHDRAWAL OF THE APPLICATION TO THE APPLICANTS OF THE STAFF REGULATIONS AND THE FACT OF HAVING NOTIFIED THE ORDERS OF 12 DECEMBER 1955 PREMATURELY, WHICH WAS TO LEAD TO THEIR SUBSEQUENT PARTIAL WITHDRAWAL, DID CAUSE THE APPLICANTS NON-MATERIAL DAMAGE .
( A ) PLACED IN A SITUATION TO WHICH THEY WERE SUITED BY THEIR PROFESSIONAL MERITS AND WHICH OFFERED THEM EVERY APPEARANCE OF STABILITY AND PERMANENCE, THE APPLICANTS FOUND THEMSELVES WITHOUT ANY FAULT ON THEIR PART CONFRONTED WITH THE PROSPECT OF A DISMISSAL WHICH MEANT THE END OF A CAREER WHICH THEY COULD LEGITIMATELY RELY ON . THE SHOCK CAUSED BY THIS ACTION, THE DISTURBANCE AND UNEASINESS WHICH RESULTED FROM IT FOR THOSE CONCERNED, THEREFORE CAUSED THE APPLICANTS NON-MATERIAL DAMAGE, FOR WHICH THEY CAN CLAIM COMPENSATION .
P . 67
( B ) ON THE OTHER HAND, THE COURT FINDS THAT A REDUCTION IN GRADE DOES NOT CONSTITUTE APPRECIABLE NON-MATERIAL DAMAGE AND CANNOT PREJUDICE THE APPLICANTS'SOCIAL STANDING .
( C ) AS TO THE AMOUNT WHICH SHOULD BE GRANTED IN COMPENSATION FOR THE NON-MATERIAL DAMAGE, IT MUST NOT BE FORGOTTEN THAT THE COMMON ASSEMBLY'S GESTURE IN GRANTING THEM THE MATERIAL BENEFIT OF THE ORDERS OF 12 DECEMBER 1955 UNTIL THE COURT HAS GIVEN ITS DECISION WAS ONLY THE RESULT OF THE COURT ACTION AND COULD NOT ELIMINATE APPREHENSION AS TO THE FUTURE .
IN THE LIGHT OF THESE CONSIDERATIONS, THE COURT SETS THE DAMAGES PAYABLE TO THE APPLICANTS AT 100 EPU UNITS OF ACCOUNT EACH .
Decision on costs
WITH REGARD TO THE COSTS, ACCOUNT SHOULD BE TAKEN OF THE FACT THAT FOLLOWING THE DECISION ON THE APPLICATION FOR ANNULMENT, THESE APPLICATIONS BECAME DEVOID OF OBJECT IN SO FAR AS DAMAGES WERE CLAIMED FOR WITHDRAWAL OF THE APPLICATION TO THE APPLICANTS OF THE STAFF REGULATIONS . HOWEVER, THAT RESULT IS THE CONSEQUENCE OF THE FACT THAT IN THE APPLICATION FOR ANNULMENT THE DEFENDANT WAS UNSUCCESSFUL ON THAT HEAD .
THEREFORE IT IS NO OBSTACLE TO THE DEFENDANT'S BEING ORDERED TO PAY THE COSTS IN THEIR ENTIRETY, IN ACCORDANCE WITH ARTICLE 60 ( 1 ) OF THE RULES OF PROCEDURE OF THE COURT .
Endorsements
UPON READING THE PLEADINGS;
UPON HEARING THE PARTIES;
UPON HEARING THE OPINION OF THE ADVOCATE-GENERAL;
HAVING REGARD TO ARTICLES 6, 31, 40 AND 78 OF THE TREATY, AND TO ARTICLE 7 OF THE CONVENTION ON THE TRANSITIONAL PROVISIONS;
HAVING REGARD TO THE RULES OF PROCEDURE OF THE COMMON ASSEMBLY AND TO ITS RULES OF INTERNAL ADMINISTRATION OF 25 NOVEMBER 1955;
HAVING REGARD TO THE STAFF REGULATIONS OF THE COMMUNITY;
HAVING REGARD TO THE PROTOCOL ON THE STATURE OF THE COURT;
HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT AND TO THE RULES OF THE COURT ON COSTS;
Operative part
THE COURT
HEREBY :
DECLARES THE PRESENT APPLICATIONS ADMISSIBLE AND,
I - ON APPLICATION FOR ANNULMENT 7/56
( 1 ) ANNULS THE DECISIONS CONTAINED IN THE LETTER SENT TO THE APPLICANTS ON 12 JULY 1956 BY MR VANRULLEN, THE VICE-PRESIDENT OF THE COMMON ASSEMBLY .
( 2 ) ANNULS THE DECISION OF THE BUREAU OF THE COMMON ASSEMBLY, IN SO FAR AS IT WITHDRAWS FROM THE APPLICANTS THE APPLICATION OF THE STAFF REGULATIONS .
( 3 ) DISMISSES THE APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE BUREAU OF THE COMMON ASSEMBLY IN SO FAR AS THAT DECISION WITHDRAWS FROM THE APPLICANTS THE GRADES AND RANKS WHICH HAD BEEN GRANTED TO THEM BY THE ORDERS OF 12 DECEMBER 1955 .
( 4 ) REMITS THE MATTER TO THE COMMON ASSEMBLY, IN SO FAR AS THE DECISIONS OF THE VICE-PRESIDENT, MR VANRULLEN, AND OF THE BUREAU OF THE COMMON ASSEMBLY HAVE BEEN ANNULLED .
( 5 ) ORDERS THAT THE APPLICANTS ARE ENTITLED TO THE REIMBURSEMENT OF FOUR-FIFTHS OF THEIR COSTS BY THE DEFENDANT, AND ORDERS THE DEFENDANT TO BEAR ITS OWN COSTS .
II - ON APPLICATIONS FOR DAMAGES 3 TO 7/57
ORDERS THE DEFENDANT TO PAY THE SUM OF 100 EPU UNITS OF ACCOUNT TO EACH OF THE APPLICANTS .
ORDERS THE DEFENDANT TO BEAR THE COSTS .