61971CJ0079_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 79/71
ALO HEINEMANN, QUALIFIED ARCHITECT, 29 AVENUE OCTAVE-MICHOT, 1640 RHODE-SAINT-GENESE, BRUSSELS, REPRESENTED BY H . J . RUEBER, ADVOCATE OF THE COLOGNE BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF NICOLAS DECKER, 34B IV RUE PHILIPPE-II, APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, JUERGEN UTERMANN, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBER OF EMILE REUTER, LEGAL ADVISER OF THE COMMISSION, 4 BOULEVARD ROYAL, DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE COMMISSION OF 13 JANUARY 1969 AND, IN THE ALTERNATIVE, FOR THE PAYMENT OF DAMAGES TO THE APPLICANT BY THIS INSTITUTION AND HIS REINSTATEMENT;
Grounds
1 BY AN APPLICATION RECEIVED AT THE REGISTRY ON 25 AUGUST 1971 THE APPLICANT BROUGHT AN ACTION FIRST, FOR THE ANNULMENT OF THE DECISION OF 13 JANUARY 1969 RELATING TO A " NOTICE CONCERNING THE SETTLEMENT OF CLAIMS FOR THE ALLOWANCE PROVIDED FOR IN ARTICLE 5 OF REGULATION NO 259/68 ", AND IN THE ALTERNATIVE, AN ORDER THAT THE COMMISSION OF THE EUROPEAN COMMUNITIES SHALL PAY HIM FROM HIS FIFTY-FIFTH YEAR UNTIL HE REACHES THE AGE OF 60 A MONTHLY ALLOWANCE EQUAL TO THE RETIREMENT PENSION WHICH WOULD BE AWARDED TO HIM IF THE FOURTH SUBPARAGRAPH OF ARTICLE 5 ( 7 ) WERE APPLICABLE TO HIM, AND, IN THE FURTHER ALTERNATIVE, HIS REINSTATEMENT IN A POST COMPARABLE TO HIS FORMER POST .
ON THE APPLICATION FOR THE ANNULMENT
ADMISSIBILITY
2 THE DEFENDANT HAS RAISED AN OBJECTION OF INADMISSIBILITY BASED ON THE FORCE OF RES JUDICATA OF THE COURT' S JUDGMENTS IN JOINED CASES 19, 20, 25 AND 30/69 AND IN CASE 23/69 AND THE FAILURE TO OBSERVE THE TIME-LIMITS LAID DOWN IN ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS .
3 THE NOTICE OF SETTLEMENT OF 13 JANUARY 1969 IS A MEASURE CAPABLE OF ADVERSELY AFFECTING THE APPLICANT AND MAY THEREFORE BE CONTESTED UNDER THE CONDITIONS LAID DOWN IN ARTICLES 90 AND 91 OF THE STAFF REGULATIONS . THE APPLICANT ONLY FILED A COMPLAINT WITHIN THE MEANING OF ARTICLE 90 OF THE STAFF REGULATIONS ON 7 MAY 1971, THAT IS, ALMOST TWO AND A HALF YEARS AFTER NOTIFICATION OF THE NOTICE OF 13 JANUARY 1969 .
4 THE APPLICANT MAINTAINS THAT BY THE TWO LETTERS DATED 12 MARCH 1969 THE DEFENDANT INTENDED TO SUSPEND THE VALIDITY OF THE NOTICE IN QUESTION UNTIL THE COURT GAVE JUDGMENT IN THE ABOVE-MENTIONED CASES . THEREFORE THE TIME-LIMIT LAID DOWN IN ARTICLE 91 OF THE STAFF REGULATIONS ONLY BEGAN TO RUN, ACCORDING TO THE APPLICANT, FROM THE MOMENT THE APPLICANT BECAME AWARE OF THESE JUDGMENTS, THAT IS, FROM THE END OF FEBRUARY 1971 .
5 THE APPLICANT' S ARGUMENT CANNOT BE ACCEPTED . THE ADMINISTRATION CAN ONLY SUSPEND THE VALIDITY OF A MEASURE WHICH IT HAS ADOPTED BY MEANS OF A STATEMENT WHICH CLEARLY AND UNEQUIVOCALLY SHOWS ITS INTENTION TO DO SO . NO SUCH STATEMENT WAS MADE IN THE PRESENT CASE . THEREFORE, AS THE APPLICATION FOR THE ANNULMENT OF THE NOTICE OF 13 JANUARY 1969 WAS NOT LODGED WITHIN THE TIME-LIMITS LAID DOWN IN ARTICLE 91 OF THE STAFF REGULATIONS IT IS INADMISSIBLE .
THE CLAIM FOR DAMAGES
ON ADMISSIBILITY
6 THE DEFENDANT MAINTAINS THAT THE APPLICATION FOR DAMAGES IS INADMISSIBLE ON THE GROUND THAT THE APPLICANT IS ATTEMPTING TO OBTAIN BY THIS MEANS THE SAME RESULT AS THAT SOUGHT BY THE INADMISSIBLE APPLICATION FOR ANNULMENT .
7 THE APPLICATION FOR DAMAGES IN AN INDEPENDENT LEGAL REMEDY, WHICH IS SUBJECT TO CERTAIN CONDITIONS ADAPTED TO ITS PURPOSE . IT DOES NOT SEEK TO HAVE A SPECIFIC DECISION SET ASIDE BUT TO MAKE GOOD THE DAMAGE CAUSED BY AN INSTITUTION IN THE EXERCISE OF ITS FUNCTIONS . THE CLAIM FOR DAMAGES IS BASED NOT ON THE UNLAWFUL NATURE OF THE NOTICE OF SETTLEMENT BUT ON THE WRONG INFORMATION PROVIDED BY THE DEFENDANT ON 5 MARCH 1968 AND ITS BELATED CORRECTION . IT CANNOT THEREFORE BE EQUATED WITH THE APPLICATION FOR ANNULMENT, EVEN THOUGH, AS FAR AS THE APPLICANT IS CONCERNED, THE FINANCIAL RESULT OF THE TWO ACTIONS IS THE SAME .
8 THEREFORE, AS THE CLAIM FOR DAMAGES IS NOT SUBJECT TO THE TIME-LIMITS LAID DOWN IN ARTICLE 91 OF THE STAFF REGULATIONS, IT MUST BE REGARDED AS ADMISSIBLE .
ON THE SUBSTANCE OF THE CASE
9 FOR THE APPLICATION TO BE WELL-FOUNDED IT MUST BE ESTABLISHED THAT THE DEFENDANT IS LIABLE FOR A WRONGFUL ACT OR OMISSION WHICH CAUSED THE APPLICANT A STILL SUBSISTING INJURY .
10 IT IS NOT CONTESTED THAT THE APPROPRIATE DEPARTMENTS SUPPLIED THE APPLICANT WITH INCORRECT INFORMATION CONCERNING THE RIGHTS WHICH HE WOULD BE ABLE TO ASSERT IN THE EVENT OF TERMINATION OF HIS SERVICE . NOR IS IT CONTESTED THAT THIS INFORMATION WAS SUPPLIED AS A CONSEQUENCE OF THE REQUEST BY THE COMMISSION TO THE OFFICIALS CONCERNED TO CONTACT THE RELEVANT DEPARTMENTS IN ORDER TO OBTAIN INFORMATION ON THE RIGHTS WHICH THEY WOULD HAVE SHOULD ARTICLE 4 OF REGULATION NO 259/68 BE APPLIED . IT IS ALSO NOT CONTESTED THAT THE DEPARTMENTS CONCERNED DISCOVERED EARLY IN APRIL 1968 THAT THEIR INTERPRETATION OF THE DISPUTED PROVISION IN ARTICLE 5 ON WHICH THEY HAD ACTED WAS, IF NOT INCORRECT, AT LEAST VERY MUCH OPEN TO QUESTION . THIS DISCOVERY WAS IN FACT THE MAIN REASON FOR THE PUBLICATION ON 16 APRIL 1968 OF A COMMUNICATION FROM THE COMMISSION REMINDING STAFF THAT THE INFORMATION GIVEN WAS SUPPLIED ONLY AS A GUIDE AND WITHOUT COMMITMENT .
11 APART FROM THE EXCEPTIONAL INSTANCE, THE ADOPTION OF AN INCORRECT INTERPRETATION DOES NOT IN ITSELF CONSTITUTE A WRONGFUL ACT . EVEN THE FACT THAT THE AUTHORITIES REQUEST THOSE CONCERNED TO OBTAIN INFORMATION FROM THE COMPETENT DEPARTMENTS DOES NOT NECESSARILY INVOLVE THOSE AUTHORITIES IN AN OBLIGATION TO GUARANTEE THE CORRECTNESS OF INFORMATION SUPPLIED AND THEREFORE MAKE THEM LIABLE FOR ANY INJURY WHICH MAY BE OCCASIONED BY INCORRECT INFORMATION .
12 HOWEVER, WHILE IT MAY BE POSSIBLE TO DOUBT THE EXISTENCE OF A WRONGFUL ACT OR OMISSION CONCERNING THE SUPPLY OF INCORRECT INFORMATION, THE SAME CANNOT BE SAID OF THE DEPARTMENTS' DELAY IN RECTIFYING THE INFORMATION . ALTHOUGH SUCH RECTIFICATION WAS POSSIBLE AS EARLY AS APRIL 1968 IT WAS DEFERRED WITHOUT ANY JUSTIFICATION UNTIL THE END OF 1968 . AN EXPRESS CORRECTION MADE SHORTLY AFTER 16 APRIL, THAT IS TO SAY, BEFORE THE TIME WHEN THOSE CONCERNED HAD TO MAKE THEIR DECISION, WOULD CERTAINLY HAVE ENABLED THE DEFENDANT TO AVOID ALL LIABILITY FOR THE CONSEQUENCES OF THE WRONG INFORMATION . THE FAILURE TO ISSUE SUCH A CORRECTION IS, ON THE OTHER HAND, A MATTER OF SUCH A NATURE AS TO RENDER THE COMMUNITIES LIABLE .
13 THE APPLICANT HAS MAINTAINED THAT HIS BELIEF THAT HE WOULD RECEIVE A FULL PENSION FROM THE AGE OF 55 YEARS HAD PLAYED SUCH AN IMPORTANT PART IN HIS DECISION TO SEEK RETIREMENT WITHIN THE CONTEXT OF THE VOLUNTARY TERMINATION OF SERVICE PROVIDED FOR BY ARTICLE 4 OF REGULATION NO 259/68 OF THE COUNCIL THAT HE WOULD HAVE DECIDED OTHERWISE HAD HE KNOWN THAT HE WOULD ONLY RECEIVE A FULL PENSION AS FROM THE AGE OF 60 .
IN PARTICULAR, AS HE HAD SIX DEPENDENT CHILDREN WHOSE STUDIES BY THE TIME HE REACHED THE AGE OF 55 YEARS IMPOSE A CONSIDERABLE BURDEN ON HIM, THE PROSPECT OF HAVING A REGULAR INCOME AVAILABLE AT THAT TIME WAS A DECISIVE FACTOR FOR HIM .
14 IT EMERGES FROM THE APPLICANT' S LETTER OF 6 FEBRUARY 1969 TO THE PRESIDENT OF THE COMMISSION AND, IN PARTICULAR, FROM THE EVIDENCE OF MR SORGE, THE APPLICANT' S IMMEDIATE SUPERIOR AT THE TIME WHEN HE DECIDED TO SEEK PREMATURE RETIREMENT, THAT THE PROSPECT OF A FULL PENSION TIPPED THE SCALES WHEN HE TOOK HIS DECISION . THE FACT THAT THE APPLICANT DID NOT EXPRESSLY SEEK REINSTATEMENT IN HIS LETTER OF 6 FEBRUARY 1969 CANNOT UPSET THIS CONCLUSION . AS THE CAUSAL LINK BETWEEN THE COMMISSION' S WRONGFUL ACT OR OMISSION AND THE DAMAGE SUFFERED BY THE APPLICANT HAS BEEN ESTABLISHED, HIS CLAIM FOR DAMAGES MUST BE REGARDED AS WELL-FOUNDED . IN THESE CIRCUMSTANCES, THE COMMISSION MUST BE ORDERED TO PAY TO THE APPLICANT AS FROM THE TIME WHEN HE ATTAINS THE AGE OF 55 YEARS UNTIL HE ATTAINS THE AGE OF 60 YEARS A MONTHLY ALLOWANCE EQUAL TO THE PENSION PAYMENTS TO WHICH HE WOULD HAVE BEEN ENTITLED IF THE FOURTH SUBPARAGRAPH OF ARTICLE 5 ( 7 ) OF REGULATION NO 259/68 HAD BEEN APPLICABLE TO HIM .
15 AS THE CLAIM FOR DAMAGES SUCCEEDS IT IS UNNECESSARY TO CONSIDER THE APPLICATION FOR REINSTATEMENT .
Decision on costs
16 THE APPLICANT HAS FAILED IN A PART OF HIS APPLICATION . HOWEVER, IT IS CLEAR FROM THE FOREGOING TAT THE APPEAL WAS BROUGHT AS THE RESULT OF A WRONGFUL ACT OR OMISSION ON THE PART OF THE DEFENDANT . THIS BEING SO, IN ACCORDANCE WITH ARTICLE 69 OF THE RULES OF PROCEDURE, THE DEFENDANT MUST BE ORDERED TO PAY THE COSTS OF THE ACTION .
Endorsements
ON THOSE GROUNDS,
UPON READING THE PLEADINGS;
UPON HEARING THE REPORT OF THE JUDGE-RAPPORTEUR;
UPON HEARING THE OPINION OF THE ADVOCATE-GENERAL;
HAVING REGARD TO THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EUROPEAN ECONOMIC COMMUNITY;
HAVING REGARD TO THE STAFF REGULATIONS OF OFFICIALS, ESPECIALLY ARTICLE 91;
HAVING REGARD TO REGULATION NO 259/68 OF THE COUNCIL, ESPECIALLY ARTICLE 5;
HAVING REGARD TO RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES;
Operative part
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION FOR THE ANNULMENT OF THE DECISION OF 13 JANUARY 1969 RELATING TO A " NOTICE CONCERNING THE SETTLEMENT OF CLAIMS FOR THE ALLOWANCE PROVIDED FOR IN ARTICLE 5 OF REGULATION NO 259/68 ";
2 . ORDERS THE COMMISSION OF THE EUROPEAN COMMUNITIES TO PAY TO THE APPLICANT, AS FROM THE TIME WHEN HE ATTAINS THE AGE OF 55 YEARS UNTIL HE ATTAINS THE AGE OF 60 YEARS, A MONTHLY ALLOWANCE EQUAL TO THE PENSION PAYMENTS TO WHICH HE WOULD HAVE BEEN ENTITLED IF THE FOURTH SUBPARAGRAPH OF ARTICLE 5 ( 7 ) OF REGULATION NO 259/68 HAD BEEN APPLICABLE TO HIM;
3 . ORDERS THE COMMISSION OF THE EUROPEAN COMMUNITIES TO PAY THE COSTS OF THE ACTION .