61969C0019
OPINION OF MR ADVOCATE-GENERAL ROEMER
DELIVERED ON 22 APRIL 1970 (
1
)
Mr President,
Members of the Court,
The principal concern of the five cases (Joined Cases 19, 20, 25 and 30/69) before us today is the determination of financial rights arising on termination of service under the provisions of Regulation No 259/68 of the Council of 29 February 1968. Four of the cases were joined for the purposes of procedure and a common judgment by an order of the Chamber of 1 October 1969. The fifth was not included on purely linguistic grounds. However since the linguistic problems do not affect the submission of the Advocate-General's opinion according to Article 29 (5) of the Rules of Procedure, there is nothing to prevent me from dealing with the five cases in a single opinion. In doing so, however, I shall not ignore the particularities of the individual cases.
Here, first of all, is what needs to be known of the facts of the cases. The applicants, born in the years 1920, 1921 and 1925, joined the service of the Commission of the European Economic Community at various times in 1958 and 1959. At the latest point they were officials in Category B, and classified in Grades B1, B2 and B3.
After publication in the Official Journal of the Communities of 4 March 1968 of Regulation No 259/68 of the Council, the special provisions in Chapter 2 of which were designed to enable the single Commission to reduce the number of its staff and rationalize its departments, the officials of the Commission were sent a circular on 5 March 1968 from their President referring to the provisions in Regulation No 259/68 and accompanied by a copy of the Official Journal of 4 March 1968. In particular the President explained that it was intended that measures terminating service should only be taken by the administration on its own intitiative with regard to A1, A2 and A3 officials. However, all officials in the Commission were in principle free to request termination of their service under Article 4 (3) of Regulation No 259/68. Those who wished to do so were to submit their requests before 6 April 1968. An announcement of 3 April 1968 extended this period to 18 April 1968. Lastly it was further stated in the circular that: ‘Information concerning pecuniary rights resulting from the application of these particular provisions may be obtained from the competent departments of the administration’. The competent departments in Brussels and in Luxembourg were precisely specified.
According to their uncontested statements this information was demanded by the applicants in Cases 19, 20, 25 and 30/69 at the end of March 1968 and by the applicant in Case 23/69 at the beginning of April 1968. They were given the information on duplicated sheets, with precise calculations. They set out the temporary allowances payable under Article 5 of Regulation No 259/68 and the amounts of the monthly pension which would mature on the expiry of the transitional period. It was stated that the pension would mature on completion of the beneficiary's 55th year, but no percentage reduction was provided for such as that in Article 9 of Annex VIII to the Staff Regulations in the event of payment of the pension before completion of the 60th year. On receipt of this information—so say the applicants—they submitted at various times (11, 21 and 26 March 1968 and 1 April and 18 April 1968) requests for termination of their service under Article 4 (3) of Regulation No 259/68.
Shortly before the expiry of the period for submitting requests, on 16 April 1968 to be exact, there appeared an announcement in the supplement to Staff Courier No 16 to which the Commission attaches great importance and which I would like therefore to quote in full here. It concerns the application of the special measures provided for in Article 5 et seq. of Regulation No 259/68 : ‘In view of the numerous requests received for information on the provisions of Article 5 et seq. of Regulation No 259/68 of the Council (pecuniary rights on termination of service) only those officials seriously considering making a request under Article 4 (3) of the abovementioned Regulation should have recourse to the departments designated for providing information and they should restrict their questions to essentials. Owing to the complexity of these provisions and the great number and variety of questions asked officials are reminded that the information is supplied purely by way of guidance and is not binding on the Commission.’
The administrative proceedings subsequently continued as follows: the applicants were informed by letter from the Director-General for Personnel and Administration on 29 May 1968 and 12 June 1968 respectively that the Commission had declared itseif prepared to accede to the requests submitted. At a later date the applicants would be sent a ‘tableau explicatif vous informant de vos droits pécuniaires’ (a table explaining your pecuniary rights). On 20 June 1968 the Commission issued decisions terminating the applicants' service with the Communities with effect from 1 October 1968; on her request and with the consent of the administration the applicant in Case 25/69 was allowed to leave the service on 22 July 1968. The abovementioned decisions were communicated to the applicants in a letter from the Director-General for Personnel and Administration of 21 June 1968. This letter, too, indicated that additional information on pecuniary rights following termination of service could be obtained from named colleagues of the Director-General on request. The letter also reminded the officials that those of them who had not yet completed 11 years of service on 20 June 1968 had until 31 December 1968 to declare whether they wished to opt for a severance grant under Article 12 of Annex VIII to the Staff Regulations or to preserve their future pension rights.
From this point on there are important differences in the course of the various proceedings so that I think it advisable to set out the facts separately for each individual case. As regards, first, the applicant in Case 19/69, she received a request in a letter from the Directorate-General for Personnel and Administration on 29 October 1968 to provide supplementary details required for calculating the monthly allowance to be paid under Article 5 of Regulation No 259/68. The applicant did so on 6 November 1968. Shortly before expiry of the period allowed for exercising the option under Article 6 (2) of Regulation No 259/68 the applicant also received, on 20 December 1968, a telegram from the Director-General for Personnel and Administration explaining that the applicant would only receive a full pension on completion of her 60th year. At that the applicant requested by letter of 23 December 1968 an extension of the period allowed for exercising the option; she also pointed out that the telegram might cause her ‘à réviser la décision de cesser mes fonctions’ (to reconsider my decision to leave the service). Next, on 13 January 1969, the Director-General for Personnel and Administration issued an ‘avis de liquidation des droits à l'indemnité prevue à l'article 5 du réglement no 259/68 du Conseil’ (‘notice concerning settlement of claims for the allowance provided for by Article 5 of Regulation No 259/68 of the Council’). This explained to the applicant, inter alia, that she could only claim the full pension on completion of her 60th year since upon the expiry of the period during which she was entitled to the allowance she was entitled to the allowance she would not have completed her 55th year. The applicant submitted a complaint under Article 90 of the Staff Regulations on 15 January 1969 and—since this remained unanswered—made an application to the Court of Justice on 23 April 1969.
On 29 October 1968 a request was also sent to the applicant in Case 20/69 for additional information needed in order to determine the monthly allowance. But in his case the ‘notice concerning settlement of claims for the allowance’ from the Director-General for Personnel and Administration was received as early as 4 December 1968. He too, was informed that the right to receive a full pension could only arise on completion of his 60th year. This caused the applicant to send a letter of complaint on 26 December 1968 to the Director-General for Personnel and Administration. Since the only reply which he received on 10 January 1969, with reference to his principal claim, was a decision to the effect that the Director-General for Personnel and Administration would define his position at a later date, he, too, submitted an application on 25 April 1969 to the Court of Justice.
The course followed by the procedure in Case 23/69 is similar to that in Case 19/69. The applicant responded immediately to the request for additional information in order to calculate the monthly allowance under Article 5 of Regulation No 259/68 sent to her in a letter from the Director-General for Personnel and Administration of 14 November 1968. On 20 December 1968 she, too, received a telegram from the Director-General for Personnel and Administration saying that the right to a full pension would not arise before she had reached the age of 60. The applicant protested against this statement in a letter sent to the Director-General for Personnel and Administration on the same day. She pointed out that her willingness to leave the service voluntarily, that is, the request she had made on 18 April 1968 was determined directly by the in-information which she had received at the time from the administration, according to which a full pension would be payable as from the completion of her 55th year. In view of the change in the administration's attitude in this matter she was bound to reserve the right to withdraw her request for voluntary termination of service. However, on 18 January 1969 a declaration of the Director-General for Personnel and Administration was issued explaining—as in the other cases—that a full pension could be claimed only upon the completion of the 60th year. Since this official, too, received no reply to a formal complaint dated 10 February 1969 she too appealed to the Court of Justice on 2 June 1969.
The applicant in Case 25/69 received her ‘notice concerning settlement of claims for the allowance’ from the Director-General for Personnel and Administration on 22 November 1968. The applicant submitted her objections to the statement contained therein that a full pension would only be granted upon the completion of her 60th year, in a letter of 2 January 1969 in which she also recalled her earlier repeated requests to be told the amount of the severance grant. When she was informed in a letter from the Director-General for Personnel and Administration of 15 January 1969 simply that he would define his position later on the question of the full pension (she received the calculation of the severance grant which she had requested in a letter of 21 January 1969), she repeated in a formal complaint of 15 February 1969 her objections to the statements concerning the reduction of pension contained in the declaration of 22 November 1968 and, as she received no reply, appealed to the Court of Justice on 13 June 1969.
Lastly it remains to be said in the case of the applicant in Case 30/69 that she, too, received first of all a request from the Director-General for Personnel and Administration on 13 November 1968 for answers to certain questions in order to enable the calculation to be made of the allowance provided for in Article 5 of Regulation No 259/68. She complied with the request. On 26 December 1968 the applicant wrote reminding the Director-General for Personnel and Administration of the information contained in the letter of 29 May 1968 and requesting an additional period in which to exercise the option provided for in Article 6 (2) of Regulation No 259/68 (that is, the choice between a lump sum and a future pension). On 27 January 1969 the applicant received the ‘notice concerning settlement of claims for the allowance’ from the Director-General for Personnel and Administration. It contained inter alia a statement to the effect that, since the applicant had renounced her right to a pension in a letter of 20 December 1968), she was entitled to a severence grant in accordance with Article 12 of Annex VIII to the Staff Regulations. It was also stated that in the event of a decision for a pension to be paid before completion of her sixtieth year a reduction in accordance with Article 9 of Annex VIII would be unavoidable. The applicant objected to this in a letter of 30 January 1969 and again in a formal complaint of 27 February 1969. She received no response to her request for payment of the full pension. She was merely informed in the letter from the Director-General for Personnel and Administration of 5 March 1969 that the revision of her position made in the letter of 30 January 1969 was accepted, so that it was assumed that she had not renounced her right to a pension within the period prescribed by Regulation No 259/68. There followed in this case, too, the introduction of legal proceedings on 26 June 1969.
What the various applicants seek from the Court of Justice is clear from the description of the facts.
All the applicants request in the first place the annulment of the declaration made by the Director-General for Personnel and Administration concerning claims to the monthly allowance under Article 5 of Regulation No 259/68, that is, for the annulment of the measures adopted on 22 November 1968, 4 December 1968, 13 January 1969, 18 January 1969 and 27 January 1969.
In addition to this they ask that the interpretation originally given of the pensions rules should be acknowledged as correct and that an order should be made that claims be settled in accordance with it (there is also the effect which the claim made in Case 23/69 should be understood to have, that ‘the applicant's claim to the monthly allowance under Article 5 of Regulation No 159/68 of the Council—meaning of course Regulation No 259/68—should be determined in accordance with the provisional calculation in Document No 3.46/IX/68—F/Frau Fiehn’).
Alternatively, the applicants in Cases 25 and 30/69 request the annulment of the decisions of 20 June 1968 and that the Commission be ordered to pay damages amounting to three years' salary. The alternative claims in Cases 19 and 20/69 are now formulated in the same way, although at first they asked that the Commission's decisions of 20 June 1968 be annulled and the applicants be reinstated.
The applicant in Case 23/69 likewise asks, in the alternative, for the Commission to be ordered to pay damages.
In addition to that, there is to be found in this case the alternative claim ‘that the applicant be restored to the position in which she would have been had she not submitted her request of 18 April 1968, and in particular that she be re-assigned to a comparable post in the departments of the Commission of the European Communities’.
The opinion expressed by the Commission in its pleadings is, as regards all the applications, that they should be dismissed in their entirety, that is, including the alternative claims, as inadmissible or unfounded.
Legal consideration
I — Questions of admissibility
Logically the first thing to be considered in our examination of the facts is the doubts and objections as to admissibility raised by the Commission during the proceedings (though with different emphases) or which should be raised by the Court of its own motion.
1. On the requests for annulment
The most important consideration here, of course, is the notices issued by the Director-General for Personnel and Administration of the Commission at various times to the applicants. More precisely, (some of the dates given in the applications are wrong) these are the notices of 22 November 1968, 4 December 1968, 13 January 1969, 18 January 1969 and 27 January 1969. Against these the applicants made—as I have said—firstly complaints through official channels and only afterwards did they appeal to the Court of Justice.
(a)
Thus the first question which arises is whether the limitation periods applicable were observed, that is, whether, counting from the date of communication of the notices, the complaints through official channels were submitted before the expiry of the period prescribed by Article 91 of the Staff Regulations, and whether consequently, as a result of the fact that the applicants did not receive express decisions in reply capable of being challenged, but were merely informed that a position would be adopted later, the applications themselves were made within the period prescribed by Article 91 of the Staff Regulations, counting from the date on which the appeals through official channels were submitted. In fact this question must be answered in the affirmative, as a relevant examination will clearly show. I would refer in particular to the dates mentioned in the description of the facts, and at this point say no more than that there is no reason to doubt the admissibility of the applications as regards the observance of the limitation periods.
(b)
A more difficult question on the other hand is whether the contested notices are in fact measures capable of being challenged within the meaning of Article 91 of the Staff Regulations. The Commission first denied this, principally on the ground that the notices—as their heading clearly shows—were simply designed to give an arithmetical calculation of the monthly allowance provided for in Article 5 of Regulation No 259/68, not to give a binding statement of future pension rights. In my opinion, however, this explanation will be difficult to accept. If one is guided by what was intended by the department issuing the notice, namely the Directorate-General for Personnel and Administration, to be the subject-matter of a decisive declaration, there can be no doubt that the dates on which the right to a full pension was to accrue also formed part of that subject-matter. This can be seen from the preciseness of the expressions used; but it is also borne out by the fact that earlier divergent statements made by the administration must have shown that a clarifying statement was needed, not least with regard to the interests of those concerned, who must be allowed to take advantage of their rights in good time. Of course grave doubts may still remain, in spite of these facts, as to the possibility of challenging the measures in question, but only in a different context. In my view the decisive point here is that the notices were issued solely by the Director-General for Personnel and Administration. Consequently the decisive question is, as has already been pointed out in other proceedings on several occasions, whether the Director-General for Personnel and Administration is the proper appointing authority in this matter. According to the relevant decision of the Commission of 6 July 1967 this question must be answered in the negative, precisely because none of the many instances of powers being delegated to the Director-General for Personnel and Administration is applicable in the present case. On the basis of such considerations the applications for annulment must accordingly be held inadmissible to the extent that they refer to the statements made about pensions contained in the said notices.
Yet even the Commission admits that this conclusion is not satisfactory (above all because it has itself a strong interest in clarifying promptly the questions in dispute). For this reason in its rejoinder it leaves judgment on the admissibility of the application to the discretion of the Court, and even allows that there are certain points in favour of admissibility. The Commission's representative, referring to some expressions used in the judgment in Case 32/68, pointed out that the Commission itself during its meeting of 24 and 25 June 1969 formally adopted the same interpretation concerning the time when pension payments were to begin, as was used in the notices, so that one might say that the proper appointing authority had, in fact, committed itself. I think this a very welcome adjustment of the Commission's viewpoint, even though I am of the opinion that the applications are not to be found admissible on those grounds. In reality the fact that the appointing authority committed itself on the issue in dispute several months after adopting the contested notices cannot retroactively make binding the notices issued by the Director-General and give them the character of measures open to challenge before the Court, contrary to the abovementioned general decision of the Commission of 6 July 1967. That is why other arguments must be used if it is desired to find the applications admissible, and more precisely arguments such as I have already recommended in my opinion in Case 32/68.1 think that the proper starting point is the fact that the applicants have already shown that they have a justifiable interest in the clarification of the problems which have arisen, particularly because if the interpretation of Article 5 of Regulation No 259/68 advocated by the Commission is accepted the question of compensation might arise in certain circumstances, by way of claims for damages. However, the application for annulment should not be seen as the only way in which the problems raised may be solved, for the Staff Regulations make it possible to bring an action for specific performance or—if the rights concerned are not yet enforceable—an action for a declaration of rights, since the issues here are basically concerned with pecuniary rights. I would refer in particular to my observations in the opinion I mentioned above and again recommend strongly that in the interests of all the parties this course be chosen.
It seems possible, therefore, on this view, for the objective pursued in the applications for annulment to open the way to clarification by the Court, and the only reasonable course of action would be to treat the applications for annulment as corresponding applications for a declaration.
(c)
The claim that the Commission was obliged to calculate pension rights on the basis of the original interpretation of Article 5 of Regulation No 259/68 drew the immediate objection that the Court of Justice is only competent to annul measures adopted by the administration and to award damages, but not to issue particular directions to the administration.
Once again in these proceedings I must strongly emphasize the error of this view. It has already been refuted in previous judgments (for example in Case 18/63, [1964] ECR 85). It is certainly out of place in proceedings where the Court has unlimited jurisdiction. But that is precisely the case here since the applications concern basically pecuniary rights, even if specific performance cannot be asked for because the rights áre not yet enforceable. At most we may agree with the Commission when it claims that it is impossible as yet to quantify the pension rights. This is because these are rights only enforceable in the future and it is perfectly possible that when they become so the rules applicable to them will be other than those at present in force. However, since the applicants are obviously not principally concerned with having their own particular pensions quantified but only with having certain legal principles clarified, the objection as to admissibility in the final analysis must fail. One may also leave aside for the moment the question whether judicial declarations concerning the issues raised should be made in the operative part of the judgment or only in its grounds.
As an important provisional conclusion one can thus state that, contrary to the earlier opinion of the Commission, it is possible to examine the main issue in the case now, that is to say, to determine when the right to a full pension arises under Article 5 of Regulation No 259/68.
2. On the alternative claims
Objections were also made as to the admissibility of the alternative claims. These also should be considered now, although essentially they require an answer only if the principal claims are rejected.
(a)
In Cases 25 and 30/69 and similarly also—after an amendment was made to their applications which I think quite unobjectionable—in Cases 19 and 20/69) the applicants, you recall, also asked for the annulment of the measures terminating their service taken on 20 July 1968 and for the Commission to be ordered to pay compensation should the original interpretation of the pensions provisions be rejected. The Commission thinks this inadmissible on the grounds that the periods allowed for introducing such claims for annulment expired long ago and were not kept open by having made complaints through official channels. That dates mentioned in the facts of the case would seem to show that the relevant time-limits were not, in fact, observed. However this is in the final analysis irrelevant to any assessment of the alternative claims. The true aim of the applicants is not at all the annulment of the measures terminating their service, as is shown from the general formulation of the principal claims and the amendment made to the alternative claims in Cases 19 and 20/69. For such an annulment would have the consequence of reinstating them in the service, thus making their claims for damages groundless. All the applicants really want is compensation, and it is purely in this context that they think a declaration that the measures terminating their service were unlawful is necessary. However, since Community law does not require the observance of any limitation period for making claims for damages the objection based on the expiry of the period accordingly cannot succeed.
Moreover—and this concerns the second objection made by the Commission in the present context—I would not discuss the alternative claims with reference to the procedural provisions in Article 38 (1) of our Rules of Procedure, that is to say, with reference to the requirement that the subject-matter of the dispute and a brief statement of the grounds on which the application is based be given. It must be admitted of course that the applications are not very helpful where the grounds of the alternative claims are concerned, particularly the explanation of their foundation in law. However, since the description of the facts on which the application is based and the general content of the complaints made show in what sense the applicants consider themselves to have been injured, it is my opinion that these points should not be subject to stricter criteria than in other comparable proceedings.
(b)
To continue with Case 23/69, there too it was first asked that the Court should order the Commission to reinstate the applicants in its service and only later was the claim for an award of compensation formulated, with the claim for reinstatement in the service added to it simply as an alternative. The Commission's doubts in this connexion concern firstly the admissibility of the amendment to the application, and then the admissibility of the claim for the reinstatement of the applicant, that is, the legality of the claim relating to the decision terminating her service.
But it seems to me that even to that extent the Commission's views cannot be endorsed. Firstly as regards the alleged amendment of the application the most important point is that in a case like the present, that is, conversion into a claim for damages, no problem as to observance of time-limits arises. For this reason alone one ought not to raise petty objections to the introduction of alternative claims for damages if, as can be admitted here, they seem to be appropriate. Besides that there is the fact that the applicant has already asked for her reinstatement in the service of the Commission in the application, that is to say, a result which may be regarded as a kind of restitutio in integrum. Looked at in this way the claim for compensation does not represent any totally new element to which the full force of the principle in Article 42 of our Rules of Procedure should be applied.
As regards the claim for reinstatement—which is maintained—the reservations concerning observance of the time-limit are not in my opinion well-founded because it is not the annulment of the measures terminating service which is sought but a declaration that they are void. This declaration should be made by resorting to the legal device of ‘Irrtumsanfechtung’ : the revocation of a voluntary declaration which the applicant alleges to have made in error with regard to her request for voluntary termination of service. If in fact the conditions for applying this device are fulfilled it can lead to the elimination of an element essential to the measure terminating the service—namely the request. This is how the applicant's argument that the measure terminating her service is void might be justified without there being any importance attached to the observance of a limitation period.
The result of all this is that one can say of the alternative conclusions, too, that there are no compelling reasons to prevent their content from being examined.
II — The substance of the case
1.
The first question which arises as regards the substance of the case, to which we now come, is whether the interpretation given in the notices of 22 November 1968, 4 December 1968, 13 January 1969, 18 January 1969 and 27 January 1969 of subparagraph 4 of Article 5 (7) of Regulation No 259/68 is valid, that is, the interpretation according to which a full pension can only be claimed if the person entitled to it has completed his 55th year upon the expiry of the period for which he is entitled to payments under Article 5, or whether the information supplied in March 1968, according to which a full pension is allowed on completion of the 55th year to all officials who have left the service under Regulation No 259/68, is valid.
The Commission bases its view mainly on the wording of the abovementioned provision which runs as follows : ‘At the end of such period the official shall be entitled to a pension without application of the reduction laid down in Article 9 of Annex VIH to the Staff Regulations, provided that he has reached the age of fifty-five’. A closer examination of the arguments which it elaborated on this point shows that we cannot but admit their soundness. The main point raised by the Commission, and rightly, is that the phrase referring to the age of 55 is in the form of a condition, and expressed in the past tense. If the general intention had been to allow a full pension as from the age of 55 years, the past tense would not have been used, referring as it does to the point at which the period of entitlement to the allowance expires, and the phrase would have begun with a time clause, such as the words ‘as soon as’ (sobald). Besides this clarification is to be found in the French and Italian texts in the words ‘à l'issue de cette période’‘al termine id questo periodo’. That shows unmistakably that the age condition must be fulfilled at the point of time referred to (upon the expiry of the period of entitlement to an allowance) (a point which is not shown quite so clearly in the German and Dutch texts with the phrases ‘nach Ablauf dieser Zeit’, ‘na afloop van deze periode’). The interpretation favoured by the Commission is, moreover, strengthened by other considerations. This can certainly not be said of the argument that had the intention been to make a general derogation from the rule in Article 77 of the Staff Regulations, according to which officials are only entitled to a full pension on completion of their sixtieth year, Article 5 of Regulation No 259/68 would have made express reference to that provision. But a supporting argument can be found in a comparison with the text of Article 9 of Annex VITI to the Staff Regulations. There too the words used are ‘provided that he is not less than fifty years of age’ and the context makes it clear that this can refer only to the date of termination of service, because otherwise the word preceding that phrase, ‘immediately’, has no meaning. I refer particularly to the wording of the provision cited and the detailed exegesis of it given by the Commission. The sense and purpose of the provision in Article 5 of Regulation No 259/68 can also be advanced to support the Commission's viewpoint although it should be said that the textual arguments certainly carry more weight. It may in fact have seemed particularly appropriate to the authors of Regulation No 259/68 to make provision for older officials who would only find new areas of employment with difficulty and therefore to introduce as a criterion the age at the time when the period of entitlement to an allowance expires.
The applicants, on the other hand, have been unable to produce any serious arguments for their theory. This is so especially with regard to the view set out in the applications made by the French applicants, that the earlier interpretation of Article 5 was the only one which was logical and reasonable. The applicant's view that the adoption of the interpretation favoured by the Commission ‘discriminated’ against them is certainly not convincing. ‘Discriminations’ of this kind are in fact a natural consequence of any body of rules which imposes time-limits concerning acquisition of particular advantages or lays down conditions concerning time. As regards the argument in Application No 23/69, that the German text of Regulation No 259/68 could have been worded more clearly in the direction of the interpretation held by the Commission (for instance with the words ‘sofern er inzwischen’ or ‘sofern er zu diesem Zeitpunkt… erreicht hat’), it cannot be denied that the text would have read more clearly in this form. But it is equally certam that even the present German version is sufficiently clear (not taking into account the requirement that Community law texts should be interpreted in the light of all the different language versions). Lastly, the applicants should also be told that their reference to the special nature of the conditions in question is as little decisive as the reference to the requirement that provisions permitting important inroads to be made into basic principles of the law concerning civil servants should be applied sparingly to those concerned. At most, such considerations may be useful in the case of ambiguous texts but not where the wording of a provision is as clear as that in Article 5 with which we are at present concerned.
Thus, both the wording and the sense and purpose of the fourth subparagraph of Article 5 (7) of Regulation No 259/68 compel us to conclude that the interpretation given in the contested notices must be held to be the correct one.
2.
However, the above conclusion does not yet make it certain that the interpretation established is binding in the case of the applicants. The applicants say that it is not, relying on the information communicated to them early in 1968, that is, on the principle that vested rights must be protected. Let us therefore see what we are to make of this point.
In this connexion we can of course pass quickly over the curious argument put forward by some of the applicants to the effect that the Commission has no power to amend rules issued by the Council. Obviously there has been no such modification here but merely an application of the rules contained in a Council regulation by the Commission, an application—as we have seen—which is justified on the basis of its wording.
As regards the argument properly called that of protection of vested rights, one must ascertain what exactly happened early in 1968 in connexion with the facts of this case, in order to decide whether these events justify speaking of binding measures giving rise to vested rights. As is known the officials of the Commission were informed in a circular from their President of 5 March 1968 that certain named officials were at their disposal to provide information on their pecuniary rights under Regulation No 259/68. Information was then supplied in March and in April 1968 by officials in Category B, and according to the applicants' statements also by Heads of Division in the Directorate-General for Personnel and Administration.
In my opinion the mere identity of the givers is enough to give reason for doubt as to the binding nature of this information. Admittedly these appeared to be officials from the Directorate-General for Personnel and Administration specializing in the law relating to officials. But that is not sufficient: it would only be binding if there were declarations made by the appropriate appointing authority. There is no indication that these existed, as there is no indication that the appropriate appointing authority had delegated to the officials giving the information the power to supply information legally binding in nature. The applicants' claim in this context that the information was given on the instructions of the Director-General for Personnel and Administration is not sufficient, for we know as a result of a series of earlier cases that this senior official does not have the powers of an appointing authority in the sphere of administration concerned here. I do not think sufficient, either, the fact that a report from the Director-General for Personnel and Administration to the Chefs de Cabinet of 24 July 1968 contained a statement concerning the pension question at issue here to the effect that the Commission had decided, on a proposal from the Directorate-General for Personnel and Administration, to adopt in its decisions the interpretation of Article 5 used in the spring of 1968. The important fact is that no such decision of the Commission is anywhere to be found, as distinct from what happened in June 1969. Apart from these observations the content and form of the information supplied also seems to show that it is hot binding. The written documents handed out to those concerned lack both heading and signature, as well as any reference to their legal basis, as are commonly found in binding decisions. Lastly, against the argument that the information given is binding reference must be made to the circular which was published in a supplement to the Staff Courier of 16 April 1968. There it was explained that in view of the ‘complexity of these provisions and the great number and variety of questions asked officials are reminded that the information supplied is solely a guide and is not binding on the Commission’. This makes it clear that the Commission did not wish to be bound in the spring of 1968, not only with regard to the figures supplied but also generally with regard to the content of the information.
If, however, all these circumstances, and not least the circumstance that ‘tableaux explicatifs’ (explanatory tables) were published in a letter from the Directorate-General for Personnel and Administration of 29 May 1968, militate against the conclusion that the information on pensions supplied by the officials named in the President's circular of 5 March 1968 was binding and created rights, then not only is it unnecessary to have recourse to the principles contained in Article 41 of Annex VIII to the Staff Regulations, to which the Commission has referred; it is likewise unnecessary to examine the principles governing recovation of unlawful acts of the administration creating individual rights in favour of officials. The arguments I have just dealt with—and this is the last conclusion—do not alter the fact that the applicants were rightly informed in December 1968 and January 1969 that a full pension could only be claimed by officials who, upon the expiry of the period for which they were entitled to an allowance under Article 5 of Regulation No 259/68, had already attained the age of fifty-five years.
3.
A third argument put forward only in Case 19, 25 and 30/69 also concerns the legality of the notices, but is not concerned with the validity of the declarations made concerning pensions. It is claimed—under the heading ‘procedural defects’—that the information necessary for exercising the option provided for in Article 6 of Regulation No 259/68 was not given the applicants until after 31 December 1968, that is to say, after expiry of the time allowed for exercising the option. It was thus impossible for them to choose between a severance grant and the payment of a pension in full knowledge of all the necessary details.
That is in fact correct, for the notices containing the necessary particulars were not communicated to the applicants until between 13 and 27 January 1969. It must also be acknowledged that the telegrams sent in December 1968 to some of the applicants did not contain any adequate information. However, I do think it doubtful that these circumstances can establish the illegality of the contested measures. When I say this I am not agreeing with the Commission's argument that there was no obligation concerning information on the right of option. But it must be admitted that even the failure to fulfil such a duty to provide information does not invalidate the information which, though communicated belatedly, was correct in substance. That would not help those affected. Therefore I think the only suitable sanction would be to allow the applicants, if they wish, to exercise their right of option again after 31 December 1968. I think the Commission seems prepared to do this, judging by the content of some of the documents on the file.
To conclude, I think that the argument which we have just discussed gives no grounds for annulling the contested notices.
4.
That being so, I must now examine the alternative conclusions put forward by all the applicants. As you know their principal demand is that the Commission be ordered to pay damages. The applicants'view is that the duty to compensate them arises from the fact that the Commission's administration supplied wrong information in the spring of 1968 on the interpretation of Regulation No 259/68. This persuaded the applicants to submit requests to have their service terminated in accordance with Article 4 of Regulation No 259/68. Had the content of the rules governing pensions in Article 5 been explained to them correctly at that time, they add, they would not have submitted their requests or would have withdrawn them. Thus they would have remained in the service of the Commission and would not have been exposed to the risk of being inadequately provided for after they had reached the age of fifty-five.
In examining these claims the following questions—as always in cases concerning the liability of an administration—must be investigated:
—
is the Commission guilty of a wrongful act or omission?
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was the Commission's conduct the cause of the alleged injury?
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what is the extent of the damage caused?
Let us look first at the question of a wrongful act or omission. On this point we must go back a little further. The sense and purpose of Regulation No 259/68 were, it is known, to allow the single Commission to reduce the number of its staff considerably following the merger of the executives. In that light the so-called ‘volontariat’ the voluntary departure from the service under Article 4, takes on a very special significance. It is obvious that this could considerably ease the task of rationalization and hasten its accomplishment, for all that was required was to take into account the interests of the service. It spared the Commission the necessity of making the thorough evaluation of the factors to be taken into account on compulsory retirements under Article 4 (2), and it also eliminated as a rule the risk of dispute involved in compulsory terminations of service. But naturally this result was only guaranteed where there was sufficient inducement for such voluntary requests to be made. In addition the legal consequences, in particular financial rights, must be made clear, for it was unreasonable to expect any official to put himself at risk in this matter. It is already clear from these considerations that under Chapter II of Regulation No 259/68 there is a principle to be applied, although its exact sphere of application may remain undefined. One must recognize—in the context of the duty of the administration to assist its officials, if it is wished to use this expression_—that the administration has a duty to give correct information on the legal effects of actions the adoption of which is expected to be of benefit to the administration. On this point the German law relating to civil servants may serve as an example, as I have already shown in other proceedings. It contains the general principle that the administration is bound to explain, if asked, before an official makes a legally binding statement, the legal consequences of that statement, and this is particularly so as regards requests which may alter the official's position in law. I would refer the Court in particular to the Kommentar zum Bundesbeamtengesetz by Plog-Wiedow, especially Note 7 to § 79 of that law, where you will also find references to cases decided by the highest courts concerning the duty to provide full and correct information. It seems particularly interesting in the present context to note that where this duty is not fulfilled the officials affected are entitled to claim damages. To my mind it is impossible to uphold the objection made by the defendant Commission to the adoption of this principle into the case-law of the European law concerning civil servants, that objection being that the great number of decisions involving the law relating to staff which it has to make at the request of officials makes it appear unreasonable, if not quite impracticable, to impose on it an obligation to provide explanations and advice beforehand as to legal consequences. In the present proceedings it is important that we are concerned with an exceptional situation in which decisions of great importance for a large number of officials had to be taken in order to accomplish a unique purpose of importance to the interests of the service. Bearing this position in mind I think it would be clearly both unreasonable and unjust to deny the existence of or limit the duty of the Commission to provide the officials concerned with reliable information. In fact even the circular from the President of 5 March 1968, which was approved by the Commission, seems to have assumed the existence of such a duty.
However, as we have seen, there then came the question, in connexion with the supply of information on the basis of this circular, of the legal errors regarding the rules concerning pensions, which gave rise to the present dispute. Following the line of deduction I have taken so far, this brings us to the question whether it is in fact possible for the Commission to be found not to be liable, and to protect it from being responsible for the consequences of the mistakes made with regard to the applicants. As you know, this is what the Commission is trying to do by referring to the ‘avertissement’ mentioned above published in a supplement to the Staff Courier of 16 April 1968. This, it says, pointed out that the information supplied was not binding and gave those concerned the opportunity to withdraw applications already made on the basis of the information previously supplied. However, I think it doubtful that the Commission had done thereby all that was required of it in order to avoid responsibility. One might in fact ask whether the notice given by the Staff Courier was appropriate or sufficient and whether this unofficial publication reached all the officials concerned. But there are even more important doubts to be raised. It could be said, for instance, that the scope, meaning and effect of the text which the Commission now says was merely a warning were not sufficiently clear or well-publicized. The opinion which appears to have been held at that time by the administration of the EEC Commission and by the officials interested in voluntary termination of service was that the rules concerning pension payments were to be interpreted in accordance with the information already supplied. Statements by a Head of Division are said to support this; also a report by the Director-General for Personnel and Administration of 24 July 1968 intended for the Chief Executive Assistants of the Members of the Commission and according to which the Commission had decided to act in accordance with the information given. This could easily give the impression that the publication of 16 April 1968 concerned only possible arithmetical errors. But there is also the following important point. According to what I think is the only correct interpretation of the Commission's duty to supply information, the Commission must now even allow questions to remain opem or conflicting interpretations to coexist, but must issue a binding definitive declaration clarifying the situation as quickly as possible. It was in fact already obliged to to so by the fact that it had, through the earlier statements issued by its administration on vital problems, aroused certain expectations which formed the basis for the assessments and decisions made by its officials. In my opinion the period up to 30 June 1968 (that is, the period during which the Commission was empowered by Regulation No 259/68 to adopt its measures) was sufficient to allow such clarification to be issued. If that was not the case then it should have taken the step of obtaining an extension of this period by decision of the Council. On the other hand I do not think it permissible under any circumstances to burden only those officials affected by Regulation No 259/68 with the consequences of uncertainty which arose in the administration of the Commission.
I shall summarize my view once more: given the fact that the body of rules concerned was one adopted on a proposal of the Commission and was intended to induce officials to volunteer to leave the service, there should not be the slightest doubt concerning the existence of a duty on the part of the Commission to provide a binding explanation of the salient points of these rules, before decisions were taken on requests to leave the service. Since the Commission failed to fulfil this duty, and on the basis of the circumstances which have come to light in the proceedings, one cannot but conclude that there was a wrongful act or omission on its part.
This conclusion brings us immediately to the question whether the conduct of the Commission was the cause of the injury suffered by the applicants. Here several aspects must be distinguished. First it cannot be held against the applicants that they themselves should have arrived at the correct interpretation of the fourth subparagraph of Article 5 (7) of Regulation No 259/68 and could have made their decision the basis of this, so that there was at least some contributory fault on their part which would compensate for the Commission's wrongful act or omission. This objection must be excluded in my opinion because the wording of Regulation No 259/68 is not completely clear. ‘It must be remembered, moreover, that within the Commission's administration, even as far as the Head of the Directorate-General for Personnel and Administration, an interpretation was for long accepted which agreed with the content of the information issued. In addition, a corresponding interpretation was adopted in relation to the similarly worded provision of Article 50 of the Staff Regulations and—as we heard in the proceedings—only withdrawn in the autumn of 1968. It thus appears natural for the applicants to have adopted the same view and made it one of their decisive considerations. Another question raises greater difficulties in this context. That is the question whether the pension provisions were in fact the prime motive for submitting requests under Article 4 of Regulation No 259/68 or whether the applicants decided to terminate their service voluntarily independently of that. Investigations of this nature, entering as they do upon subjective matters, are of course particularly delicate. In the present case the difficulties are aggravated by the fact that it is perfectly possible that the other considerable advantages under Regulation No 259/68 (the right to receive an allowance for a long period and the social security consequences) could also have amounted to an inducement to lodge a request for voluntary termination of service. However, it does seem that for at least three of the applicants the question can be answered in the affirmative. These are the applicants who had almost reached the age of 55 upon the expiry of the period for which they were entitled to receive the allowance under Article 5. For these their decision must have seemed obvious in view of that fact, and of the full pension which they could therefore expect to receive. For one of them, the applicant in Case 23/69, there is also the circumstance that she is not in good health, according to a certificate from the official doctor, so that she could certainly not have had the intention of leaving the service of the Commission in order to take up other employment. In these cases it is therefore clear where the interests of those concerned lay, so that as regards the question of causality there must be a strong presumption in favour of the applicants and perhaps doubts against the Commission. That the same applies in respect of the applicants in Cases 25 and 30/69, who upon the expiry of the period for which they were entitled to the allowance were only 48 or 49 years’ old, seems to me, however, highly questionable. Here oné must suppose that the intention was to end the service relationship with the Commission in order to take up other employment. It is therefore quite possible that in these cases the originally published version of the rules concerning pensions was not the deciding factor in making their requests to leave the service. That is why, following the Commission's viewpoint, it must be insisted that the causal connexion be clearly demonstrated, and accordingly I suggest that in these two cases the applicants be asked to provide proof accordingly.
Lastly there remains the third problem, that of finding the extent of the alleged damage and determining the amount of compensation accordingly. This is another extraordinarily delicate problem, because obviously no damage has actually occurred as yet. Only on attaining the age of 55 and in the event of a reduced pension being claimed will any damage arise. Thus the solution to the problem depends on whether the applicants reach that age or, in the event of an earlier death, whether the survivors can make claims. If we ask ourselves how to approach this problem we may definitely exclude the possibility of simply awarding for a period of five years a sum corresponding to the difference between the amount of the pension as originally published and the reduced pension calculated later. Apart from the fact that this would bring about a result unattainable by the principal claims, this kind of assessment of damages is in any case out of the question because at present it is impossible to give definite judgment on the size of the future pensions. With this in mind the applicant in Case 23/69 abandoned this method of calculation originally adopted by her, and declared that the damages were for the time unquantifiable. However, I think it equally out of the question to adopt the method suggested by the French applicants and allow them three years' salary as compensation. That is unthinkable if only because the sum would be several times the amount of the difference accumulated over five years calculated above, whereas the applicants cannot possibly claim more than the sum referred to in the information given in the spring of 1968. In the circumstances I can see no solution other than that of simply declaring that the Commission is liable in principle and of reserving the question of compensation for the future. According to the different circumstances there could be, for instance, a certain decrease in the reduction coefficient, or the time for payment of the unreduced pension to begin could be brought forward by a certain amount of time. This kind of solution would seem permissible in the context of the freedom of assessment of damages enjoyed by courts in claims for damages. It is also possible that once the existence of a wrongful act or omission on the part of administration has been established the problem may find a satisfactory solution by administrative means, thus enabling all parties to avoid having in the future to continue the proceedings before the Court.
5.
A further alternative claim concerns only Case 23/69. As you know this asked for ‘smart-money’ (Schmerzensgeld), that is payment of compensation for non-material damage.
I do not think there is much to be said on this. It must of course be admitted that the contested notice caused worry and anxiety to the applicant, because the expectations she was entitled to have had with regard to the pensions rules after the information given in the spring of 1968 were not fulfilled. It must also be conceded that applicants in other cases (43, 45 and 48/59, Rec. 1960, p. 957) have been awarded such damages for anxieties which could have been caused by an uncertain situation. But one must not forget the differences in the facts being judged there. That affair concerned the termination of a contractual relationship without any adequate provision being made, whilst the applicant in the present proceedings will receive an allowance for several years and later a pension. One might also take the view that any loss the applicant may have suffered can be suitably compensated for by a future ruling on compensation such as I have already outlined.
Accordingly I have no definite conclusion to make concerning the claim for non-material damages.
6.
In view of the result so far it seems unnecessary now to go into another alternative claim, put forward in Case 23/69 alone in the event of the claim founded on the Commission's liability being rejected. The applicant in this case insists, as you know, that in those circumstances she be reinstated in the service of the Commission. As grounds for this she claims that she can call in issue her request for the termination of her service on the ground of mistake and thus annul it, and therefore render the measure terminating her service void.
I would like to make just a brief remark on this highly interesting argument. The fact is that I think it highly doubtful whether its basis, that is to say the calling in issue of statements carrying consequences in law on the ground of mistake, can be accepted as part of European law. One does of course meet this possibility in German law under certain conditions (though it seems doubtful whether they are fulfilled in the present case) ; but in French law a simple mistake in making a statement does not have the same significance; there—in particular in the case-law of the Conseil d'État—the references are to lack of consent in particular in cases of duress. This makes it seem highly uncertain how a situation such as that in the present proceedings must be treated in European law. In any event it seems that the applicant was well advised on that account to withdraw her application for reinstatement in the course of the proceedings and to place the main emphasis of her case on the application for compensation.
III — Summary
From the wealth of material in the proceedings before us in these five cases I can now express the following opinion :
I consider the content of the claims concerning the notices admissible but unfounded. The fourth subparagraph of Article 5 (7) of Regulation No 259/68 must in fact be interpreted to the effect that only an official who has attained the age of fifty-five upon the expiry of the period for which he is entitled to receive an allowance can claim payment of a full pension.
As to the claims for damages, I would say that the applicants in Cases 25 and 30/69 have yet to bring proof that they submitted their requests for voluntary termination of service on the basis of the information concerning the provisions governing pensions. In the other cases, I conclude that the Commission's conduct on the question of pensions amounts to a wrongful act or omission, and gives rise to a duty to compensate. However it cannot yet be ordered to pay damages. This can only arise in the future and subject to the circumstances as they will then be.
The claim for an award of damages for non-material injury should be rejected as unfounded.
On the basis of this outcome of the cases it seems reasonable for the Commission to pay one half of the applicants' costs in those cases where judgment on their substance can be delivered.
(
1
)	Translated from the German.