61969CJ0023_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 23/69
ANNELIESE FIEHN, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT 87 SCHADOWSTRASSE, DUESSELDORF, REPRESENTED BY HANS-JOSEF RUEBER, ADVOCATE OF THE LANDGERICHT KOELN, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ANDRE ELVINGER, 84 GRAND-RUE, APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER PIERRE LAMOUREUX, ACTING AS AGENT, ASSISTED BY JUERGEN UTERMANN, LEGAL ADVISER TO THE COMMISSION, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF EMILE REUTER, LEGAL ADVISER TO THE COMMISSION, 4 BOULEVARD ROYAL, DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE COMMISSION OF 18 JANUARY 1969,
Grounds
1 IN AN APPLICATION LODGED AT THE REGISTRY ON 2 JUNE 1969 THE APPLICANT HAS ASKED THE COURT IN THE FIRST PLACE TO ANNUL THE DECISION OF 18 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, AS A SUBSIDIARY MATTER, THAT SHE BE REINSTATED IN THE ADMINISTRATIVE POSITION WHICH SHE WOULD HAVE HELD HAD SHE NOT SUBMITTED HER REQUEST OF 18 APRIL 1968 FOR A MEASURE TO BE TAKEN TERMINATING HER SERVICE, AND IN PARTICULAR THAT SHE BE ASSIGNED TO A COMPARABLE POST IN THE DEPARTMENTS OF THE COMMISSION OF THE EUROPEAN COMMUNITIES .
THE APPLICATION FOR ANNULMENT
ADMISSIBILITY
2 THE COURT IS ASKED TO RESTORE THE INTERPRETATION ORIGINALLY ADOPTED BY THE COMMISSION OF THE EEC CONCERNING THE PENSION RIGHTS PROVIDED FOR BY ARTICLE 5 OF REGULATION NO 259/68, AND, AS A CONSEQUENCE, TO ANNUL THE " NOTICE CONCERNING THE SETTLEMENT OF CLAIMS FOR THE ALLOWANCE PROVIDED FOR IN ARTICLE 5 OF REGULATION NO 259/68 OF THE COUNCIL ", ADDRESSED TO THE APPLICANT .
3 WHILST IT IS TRUE, AS CLAIMED BY THE DEFENDANT, THAT ARTICLE 91 OF THE STAFF REGULATIONS DOES NOT PERMIT THE COURT TO RULE IN THE ABSTRACT ON THE INTERPRETATION TO BE GIVEN TO A PARTICULAR PROVISION IN THE STAFF REGULATIONS OF OFFICIALS, IN THE PRESENT CASE THE APPLICATION IS PRIMARILY DIRECTED AGAINST THE ABOVEMENTIONED NOTICE .
THIS NOTICE IS INTENDED TO STATE DEFINITIVELY THE PECUNIARY RIGHTS DERIVED BY THE APPLICANT UNDER THE PROVISIONS OF REGULATION NO 259/68 .
FROM ITS WORDING IT IS EVIDENT THAT THE APPOINTING AUTHORITY INTENDED BY THIS NOTICE TO FIX THE AMOUNTS WHICH IT UNDERTAKES TO PAY THE APPLICANT ON SPECIFIED DATES .
4 ACCORDINGLY, SINCE THIS IS AN ACT CAPABLE OF ADVERSELY AFFECTING THE APPLICANT, HER APPLICATION IS ADMISSIBLE .
THE SUBSTANCE OF THE CASE
5 THE APPLICANT CLAIMS THAT THE COMMISSION CONTRAVENED THE FOURTH SUBPARAGRAPH OF ARTICLE 5 ( 7 ) OF REGULATION NO 259/68 BY NOT GRANTING HER THE RIGHT TO A FULL PENSION WITH EFFECT FROM HER 55TH YEAR .
SHE ARGUES THAT THIS PROVISION ACCORDS TO EVERY FORMER OFFICIAL WHO HAS BEEN THE SUBJECT OF A MEASURE TERMINATING HIS SERVICE AND WHO HAS BEEN IN RECEIPT OF THE ALLOWANCE PROVIDED FOR IN ARTICLE 5, THE RIGHT TO A FULL PENSION ONCE HE HAS ATTAINED THE AGE OF 55 AND THE PERIOD DURING WHICH HE IS ENTITLED TO THE ALLOWANCE HAS CEASED .
6 THE WORDING OF THE PROVISION IN QUESTION SHOWS CLEARLY THAT THE RIGHT TO A FULL PENSION CAN ONLY VEST IN A FORMER OFFICIAL WHO, UPON THE EXPIRY OF THE PERIOD DURING WHICH HE IS ENTITLED TO THE ALLOWANCE HAS ATTAINED THE AGE OF 55 .
THOSE WHO, LIKE THE APPLICANT WILL NOT YET HAVE ATTAINED THAT AGE AT THE END OF THE PERIOD DURING WHICH THEY ARE ENTITLED TO THE ALLOWANCE, CANNOT BENEFIT FROM THIS PROVISION .
7 THERE ARE MOREOVER, GOOD SOCIAL GROUNDS FOR THE DISPUTED RESTRICTION OF THE RIGHTS TO PENSION .
THE REASON FOR THIS PROVISION IS OBVIOUSLY THE FACT THAT IT IS GENERALLY EXTREMELY DIFFICULT FOR OLDER PERSONS TO FIND EMPLOYMENT EQUIVALENT TO THAT WHICH THEY HAD AT THE TIME WHEN THEIR CAREER WAS INTERRUPTED .
IT IS THEREFORE REASONABLE TO GRANT TO FORMER OFFICIALS WHO, WHEN THEIR ALLOWANCE CEASES, HAVE ALREADY ATTAINED THE AGE OF 55, AND WILL THEREFORE FIND IT DIFFICULT TO OBTAIN OTHER INCOME EQUIVALENT TO THE LAPSED ALLOWANCE, THE RIGHT TO AN EARLY PENSION .
8 CONVERSELY, FORMER OFFICIALS FOR WHOM THE PERIOD DURING WHICH THEY ARE ENTITLED TO AN ALLOWANCE CEASES AT A LESS ADVANCED AGE AND WHO WILL GENERALLY BE YOUNGER AT THE TIME WHEN THEIR SERVICE TERMINATES, MAY BE PRESUMED CAPABLE OF FINDING DURING THE PERIOD IN WHICH THEY ARE ENTITLED TO AN ALLOWANCE A POST AND PROSPECTS SUFFICIENTLY STABLE FOR THEM NOT TO NEED A RIGHT TO AN EARLY PENSION .
9 THUS THE PROVISION IN QUESTION SEEMS TO ACCORD WITH THE SPIRIT AND GENERAL SCHEME OF THE RULES WHICH USUALLY GOVERN THE QUESTION, ALWAYS A DIFFICULT ONE, OF REDUCING STAFF .
THE INTERPRETATION ADOPTED BY THE CONTESTED DECISION IS THEREFORE CORRECT .
10 THE APPLICANT FURTHER CLAIMS THAT THE CONTESTED MEASURE WAS ADOPTED WITHOUT REGARD FOR HER VESTED RIGHTS .
IN THIS CONTEXT SHE MAKES REFERENCE TO THE STATEMENTS OF HER POSSIBLE PECUNIARY RIGHTS, SUPPLIED BY THE COMPETENT DEPARTMENTS OF THE COMMISSION OF THE EEC DURING THE MONTH OF APRIL 1968, WHICH WERE BASED ON AN INTERPRETATION OF THE DISPUTED PROVISION ACCORDING TO WHICH THE RIGHT TO A FULL PENSION ACCRUES TO ALL FORMER OFFICIALS IN RECEIPT OF THE ALLOWANCES, ONCE THEY HAVE REACHED THE AGE OF 55 YEARS AND THE PERIOD OF ENTITLEMENT TO THE ALLOWANCE HAS ENDED .
11 THIS STATEMENT WAS SUPPLIED SOLELY BY WAY OF INFORMATION AND WAS NOT CAPABLE OF DETERMINING RIGHTS WHICH THE APPLICANT WAS TO DERIVE FROM A GIVEN LEGAL SITUATION .
IT IS NOT, THEREFORE, POSSIBLE TO CONCEDE THAT THE STATEMENT HAS THE CHARACTER OF A MEASURE CREATING RIGHTS FOR THE ADDRESSEE .
THE APPOINTING AUTHORITY, BEING OBLIGED TO APPLY REGULATION NO 259/68 IN DEFINING THE APPLICANT' S PECUNIARY RIGHTS, COULD NOT APPLY THE INCORRECT INTERPRETATION ADOPTED IN THAT STATEMENT ONCE IT HAD BECOME AWARE OF THE MORE ACCURATE INTERPRETATION .
THE ARGUMENT BASED ON A SUPPOSED VIOLATION OF VESTED RIGHTS IS THEREFORE UNFOUNDED .
12 THE APPLICATION FOR ANNULMENT MUST THEREFORE BE REJECTED .
APPLICATION FOR COMPENSATION
ADMISSIBILITY
13 SHOULD THE APPLICATION FOR ANNULMENT BE REJECTED THE APPLICANT REQUESTS ALTERNATIVELY THAT SHE BE REINSTATED IN THE ADMINISTRATIVE POSITION SHE WOULD HAVE HELD HAD SHE NOT SUBMITTED ON 18 APRIL 1968 A REQUEST FOR TERMINATION OF SERVICE, AND IN PARTICULAR THAT SHE BE REINSTATED IN A COMPARABLE POST IN THE DEPARTMENTS OF THE COMMISSION .
SHE CLAIMS THAT HER REQUEST TO TAKE ADVANTAGE OF THE SCHEME FOR TERMINATING EMPLOYMENT WAS MADE UNDER THE INFLUENCE OF AN ERROR AS TO AN ESSENTIAL FACT - THE DATE ON WHICH SHE WOULD BECOME ENTITLED TO RECEIVE A PENSION - OCCASIONED BY THE WRONG INFORMATION SUPPLIED BY THE COMMISSION .
14 THE DECISION CONTENDS THAT THIS REQUEST, WHICH MUST IMPLY ANNULMENT OF THE DECISION OF 20 JUNE 1968 TERMINATING HER EMPLOYMENT, IS INADMISSIBLE BECAUSE IT WAS SUBMITTED AFTER EXPIRY OF THE PERIOD SPECIFIED BY ARTICLE 91 OF THE STAFF REGULATIONS FOR LODGING AN APPLICATION FOR ANNULMENT .
15 THE DECISION TERMINATING THE APPLICANT' S SERVICE WAS TAKEN BY THE COMMISSION FOLLOWING HER REQUEST OF 18 APRIL 1968 .
ACCORDINGLY, THE PERIOD FOR BRINGING AN ACTION AGAINST THE SAID DECISION CAN ONLY BEGIN TO RUN FROM THE TIME WHEN IT BECAME EVIDENT THAT THE REQUEST OF 18 APRIL 1968, WHICH WAS THE BASIS FOR THE ADOPTION OF THE DECISION IN QUESTION, WAS MADE UNDER THE INFLUENCE OF AN ERROR OCCASIONED BY A WRONGFUL ACT OR OMISSION ON THE PART OF THE COMMISSION .
THIS IS A MATTER WHICH CAN ONLY BE SETTLED BY EXAMINING THE SUBSTANCE OF THE CASE, AND THEREFORE THE APPLICATION CANNOT BE DISMISSED AS BEING MADE OUT OF TIME .
16 NEXT, BY ASKING TO BE REINSTATED " IN A COMPARABLE POST " THE APPLICANT HAS SHOWN, BRIEFLY BUT, IN VIEW OF THE CIRCUMSTANCES, ADEQUATELY, THAT HER PRINCIPLE AIM IS TO OBTAIN COMPENSATION FOR THE DAMAGE SUFFERED BY HER OWING TO THE ERROR INTO WHICH SHE WAS LED .
IN HER REPLY SHE DEFINED HER REQUEST BY ASKING ALTERNATIVELY THAT THE COMMISSION BE ORDERED TO PAY HER A SUM EQUIVALENT TO THAT WHICH SHE WOULD HAVE RECEIVED HAD HER PENSION BEEN GRANTED TO HER IN FULL FOR THE PERIOD BETWEEN THE AGES OF 55 AND 60 YEARS .
17 SINCE THIS IS AN APPLICATION IN WHICH THE COURT HAS UNLIMITED JURISDICTION IT HAS THE POWER, EVEN IN THE ABSENCE OF PROPER CONCLUSIONS, NOT ONLY TO ANNUL BUT, IF NECESSARY, OF ITS OWN MOTION TO ORDER THE DEFENDANT TO PAY COMPENSATION FOR DAMAGE OCCASIONED BY THE DEFENDANT' S WRONGFUL ACT OR OMISSION .
THE SUBSTANCE OF THE CASE
18 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 .
19 IT IS NOT CONTESTED THAT THE APPROPRIATE DEPARTMENTS SUPPLIED THE APPLICANT WITH INCORRECT INFORMATION CONCERNING THE RIGHTS WHICH SHE WOULD BE ABLE TO ASSERT IN THE EVENT OF TERMINATION OF HER 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 COMPETENT DEPARTMENTS IN ORDER TO OBTAIN INFORMATION ON THE RIGHTS WHICH THEY WOULD HAVE SHOULD ARTICLE 4 OF REGULATION NO 259/68 BE APPLIED .
20 THE STATEMENTS SUBMITTED BY THE DEFENDANT' S REPRESENTATIVE IN THE COURSE OF THE ORAL PROCEDURE SHOW THAT THE DEPARTMENTS CONCERNED DISCOVERED EARLY IN APRIL 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 AND THAT IT WAS NOT ACCEPTED BY THE CORRESPONDING DEPARTMENTS IN THE ECSC AND THE EAEC .
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 .
21 APART FROM THE EXCEPTIONAL INSTANCE, THE ADOPTION OF AN INCORRECT INTERPRETATION DOES NOT CONSTITUTE IN ITSELF 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 DOES NOT THEREFORE MAKE THEM LIABLE FOR ANY INJURY WHICH MAY BE OCCASIONED BY INCORRECT INFORMATION .
22 HOWEVER, WHILE IT MAY BE POSSIBLE TO DOUBT THE EXISTENCE OF A WRONGFUL ACT 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 .
WHILST IT WOULD HAVE BEEN SIMPLE BY MEANS OF A GENERAL ANNOUNCEMENT OR AN INDIVIDUAL NOTICE TO RECTIFY AN ERROR OF INTERPRETATION WHICH WAS CAPABLE OF INVALIDATING A WHOLE GROUP OF STATEMENTS, THE COMMUNICATION ISSUED IN APRIL 1968 GIVES THE IMPRESSION THAT IT CONCERNS SOLELY POSSIBLE ARITHMETICAL OR SIMILAR ERRORS DIFFICULT TO IDENTIFY AND WHICH COULD HAVE BEEN DUE TO THE SPEED WITH WHICH THE SEPARATE STATEMENTS WERE DRAWN UP .
A CORRECTION MADE SHORTLY BEFORE OR 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 .
23 THE LETTER OF 20 DECEMBER 1968 FROM THE APPLICANT TO THE DIRECTOR-GENERAL FOR PERSONNEL AND ADMINISTRATION, AND HER COMPLAINT OF 10 FEBRUARY 1969 SHOW THAT HER REQUEST FOR TERMINATION OF SERVICE WAS A RESULT OF THE WRONG INFORMATION WHICH SHE HAD BEEN GIVEN AND WHICH WAS NOT RECTIFIED IN DUE TIME .
MOREOVER, THE FACT THAT IN THE ABOVEMENTIONED LETTER AND COMPLAINT SHE ASKED, IN THE ALTERNATIVE, TO BE REINSTATED IN THE SERVICE OF THE COMMISSION LENDS SUPPORT TO THE CONCLUSION THAT THE PROSPECT OF A RIGHT TO RECEIVE A FULL PENSION FROM THE AGE OF 55 WAS A DECIDING FACTOR IN HER DECISION TO REQUEST THE APPLICATION OF ARTICLE 4 OF REGULATION NO 259/68 .
24 THE APPLICANT REQUESTS THAT THE DAMAGE WHICH SHE SUFFERED AS A RESULT OF THE COMMISSION' S WRONGFUL ACT SHOULD BE COMPENSATED FOR EITHER BY REINSTATING HER IN A POST COMPARABLE TO HER FORMER ONE, OR BY ORDERING THE COMMISSION TO PAY DAMAGES .
25 AN AWARD OF DAMAGES IS, IN THIS CASE, THE METHOD OF COMPENSATION BEST SUITED BOTH TO THE INTERESTS OF THE APPLICANT AND TO THE REQUIREMENTS OF THE SERVICE .
THE DAMAGE LIES PRINCIPALLY IN THE FACT THAT, CONTRARY TO WHAT SHE HAD REASONABLY FORESEEN, THE APPLICANT WILL BE OBLIGED AT THE AGE OF 55 TO CHOOSE BETWEEN A REDUCED PENSION FROM THAT TIME ON AND A FULL PENSION WHEN SHE ATTAINS THE AGE OF 60 BUT, IN THE LATTER CASE, WITHOUT ENTITLEMENT TO ANY PAYMENT DURING THE INTERMEDIATE PERIOD .
26 IN THE CIRCUMSTANCES THE COMMISSION SHOULD BE ORDERED TO PAY THE APPLICANT, WHEN SHE HAS ATTAINED THE AGE OF 55 AND UNTIL SHE HAS ATTAINED THE AGE OF 60, A MONTHLY ALLOWANCE EQUIVALENT TO THE PENSION PAYMENTS TO WHICH SHE WOULD HAVE BEEN ENTITLED IF THE PROVISION IN THE FOURTH SUBPARAGRAPH OF ARTICLE 5 ( 7 ) OF REGULATION NO 259/68 HAD BEEN APPLICABLE TO HER .
Decision on costs
27 THE APPLICANT HAS FAILED IN A PART OF HER APPLICATION .
28 HOWEVER, IT FOLLOWS FROM THE FOREGOING THAT THE APPLICATION WAS A RESULT OF A WRONGFUL ACT OR OMISSION ATTRIBUTABLE TO THE DEFENDANT .
29 IN THE CIRCUMSTANCES THE DEFENDANT MUST BE ORDERED TO PAY THE COSTS OF THE ACTION IN ACCORDANCE WITH ARTICLE 69 OF THE RULES OF PROCEDURE .
Endorsements
ON THOSE GROUNDS,
UPON READING THE PLEADINGS;
UPON HEARING THE REPORT OF THE JUDGE-RAPPORTEUR;
UPON HEARING THE PARTIES;
UPON HEARING THE OPINION OF THE ADVOCATE-GENERAL;
HAVING REGARD TO THE TREATIES ESTABLISHING THE EUROPEAN COMMUNITIES;
HAVING REGARD TO THE PROTOCOLS ON THE STATUTE OF THE COURT OF JUSTICE;
HAVING REGARD TO THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES, IN PARTICULAR ARTICLE 91;
HAVING REGARD TO REGULATION NO 259/68, ESPECIALLY ARTICLES 5 AND 6;
HAVING REGARD TO THE 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 18 JANUARY 1969 REGARDING 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 FROM THE TIME WHEN SHE ATTAINS THE AGE OF 55 AND UNTIL SHE ATTAINS THE AGE OF 60 A MONTHLY ALLOWANCE, EQUAL TO THE PENSION PAYMENTS TO WHICH SHE WOULD HAVE BEEN ENTITLED IF THE PROVISION IN THE FOURTH SUBPARAGRAPH OF ARTICLE 5 ( 7 ) OF REGULATION NO 259/68 HAD BEEN APPLICABLE TO HER;
3 . ORDER THE COMMISSION OF THE EUROPEAN COMMUNITIES TO PAY THE COSTS .