Judgment of the Court (First Chamber) of 28 May 1970. - Franco Peco v Commission of the European Communities. - Case 36-69.



European Court reports 1970 Page 00361

Danish special edition Page 00061

Greek special edition Page 00323

Portuguese special edition Page 00365



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . OFFICIALS - GRADE AND POST - CORRESPONDENCE - RIGHTS OF SERVANTS

( STAFF REGULATIONS OF OFFICIALS OF THE EC, ARTICLES 5 AND 7 )

2 . OFFICIALS - DIRECTORS-GENERAL - POSTS - VARIED NATURE - ADAPTABILITY ESSENTIAL

3 . OFFICIALS - POST - ACCEPTANCE - ABILITIES REQUIRED - LACK THEREOF ALLEGED BY THE PERSON CONCERNED - TERMINATION OF SERVICE - COMPULSORY RETIREMENT - ABSENCE OF ANY RIGHT TO THE BENEFIT OF THESE ARRANGEMENTS

Summary

1 . OFFICIALS ARE ENTITLED TO RELY ON THE RULE OF CORRESPONDENCE BETWEEN GRADES AND POSTS .

2 . THE ADMINISTRATION IS ENTITLED TO EXPECT THAT SENIOR OFFICIALS SHALL BE SUFFICIENTLY ADAPTABLE TO FILL POSTS OF DIFFERENT KINDS .

3 . IF AN OFFICIAL FINDS THAT THE POST TO WHICH HE HAS ACCEPTED APPOINTMENT DOES NOT SUIT HIS ABILITIES, THIS DOES NOT ENTITLE HIM TO THE BENEFIT OF THE ARRANGEMENTS RELATING TO TERMINATION OF SERVICE OR TO COMPULSORY RETIREMENT SINCE SUCH ARRANGEMENTS CAN ONLY BE APPLIED IN THE INTERESTS OF THE SERVICE .

Parties

IN CASE 26/69

FRANCO PECO, A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED AND ASSISTED BY FRANCESCO LANZA, ADVOCATE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF PIERRE-PAUL SCHLEIMER, 78 GRAND' RUE, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, ARMANDO TOLEDANO-LAREDO, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF EMILE REUTER, ITS LEGAL ADVISER, 4, BOULEVARD ROYAL, DEFENDANT,

Subject of the case

APPLICATION FOR :

( 1 ) THE ANNULMENT OF THE DECISION OF THE COMMISSION OF THE EUROPEAN COMMUNITIES OF 4 JUNE 1969 TO THE EXTENT TO WHICH IT APPLIES TO THE APPLICANT ARTICLE 48 OF THE STAFF REGULATIONS OF OFFICIALS AND DENIES HIM THE BENEFIT OF ARTICLE 42 OF THE STAFF REGULATIONS OF OFFICIALS OF THE ECSC IN ORDER TO DETERMINE THE PECUNIARY RIGHTS ARISING FROM THE TERMINATION OF HIS SERVICE;

( 2 ) DAMAGES;

Grounds

1 THE APPLICATION SEEKS IN THE FIRST PLACE THE PARTIAL ANNULMENT OF THE COMMISSION' S DECISION OF 4 JUNE 1969 ACCEPTING THE APPLICANT' S RESIGNATION, TO THE EXTENT TO WHICH THAT DECISION APPLIES TO HIM THE PECUNIARY SYSTEM RELATING TO VOLUNTARY RESIGNATION .

2 SECONDARILY IT SEEKS TO HAVE RECOGNIZED THAT THE APPLICANT IS ALSO ENTITLED " AS COMPENSATION FOR MATERIAL DAMAGE SUFFERED " TO HAVE HIS RETIREMENT PENSION DETERMINED ON THE BASIS OF ARTICLES 42 OF THE STAFF REGULATIONS OF THE ECSC AND 50 AND 99 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EC AND THAT HE SHOULD BE GRANTED AS COMPENSATION FOR NON-MATERIAL DAMAGE THE SUM OF 1 ITALIAN LIRA .

3 THE APPLICANT WAS FORMERLY DIRECTOR-GENERAL FOR STEEL WITH THE ECSC AND AN OFFICIAL IN GRADE A 1, AND ON THE MERGER OF THE EXECUTIVES HE WAS APPOINTED ASSISTANT DIRECTOR-GENERAL WITH THE DIRECTORATE-GENERAL FOR INDUSTRIAL AFFAIRS IN THE COMMISSION .

4 AFTER HE HAD BEEN APPOINTED DIRECTOR-GENERAL OF THE DIRECTORATE-GENERAL FOR DISSEMINATION OF INFORMATION ON 20 MARCH 1968, AN APPOINTMENT WHICH HE ACCEPTED, HE APPLIED ON 27 MARCH 1968, IMMEDIATELY PRIOR TO COMMENCING HIS DUTIES, FOR THE POST OF DIRECTOR-GENERAL FOR INDUSTRIAL AFFAIRS WHICH HAD IN THE MEANTIME FALLEN VACANT BUT TO WHICH ANOTHER OFFICIAL WAS PROMOTED ON 9 APRIL 1968 .

5 SINCE HE CONSIDERED THAT HE DID NOT HAVE THE QUALIFICATIONS FOR THE POST OF DIRECTOR-GENERAL TO WHICH HE HAD BEEN APPOINTED HE SOUGHT ON 16 APRIL TO HAVE HIS SERVICE TERMINATED AS PROVIDED FOR IN ARTICLE 4 ( 1 ) OF REGULATION NO 259/68/EEC AND THEN REQUESTED THAT HE BE RETIRED IN THE INTERESTS OF THE SERVICE WITHIN THE MEANING OF ARTICLE 50 OF THE STAFF REGULATIONS .

6 THE DEFENDANT CONSIDERED THAT THE APPLICANT WAS CAPABLE OF PERFORMING HIS DUTIES AND REFUSED TO GRANT THOSE REQUESTS .

7 ON 26 MAY 1969 THE APPLICANT, RELYING ON HIS POOR STATE OF HEALTH, WHICH WAS ATTESTED BY MEDICAL CERTIFICATES AND WHICH HE ATTRIBUTED TO THE ADVERSE CONDITIONS UNDER WHICH HE WAS PERFORMING DUTIES FOR WHICH HE FELT HIMSELF TO BE UNQUALIFIED, WROTE TO THE COMMISSION IN THE FOLLOWING TERMS : " SINCE THE COMMISSION IN FACT FORCES ME TO DO SO, IT ONLY REMAINS FOR ME TO TAKE THE INITIATIVE AND MAKE PLAIN WITHOUT FURTHER DELAY MY FORMAL CONSENT TO THE SEVERANCE OF MY SERVICE RELATIONSHIP WITH THE EUROPEAN COMMUNITIES, AND TO STATE UNEQUIVOCALLY THE NECESSITY OF LEAVING THE SERVICE OF THE INSTITUTION DEFINITIVELY ".

8 HE ADDED THAT THE TERMINATION OF HIS SERVICE RELATIONSHIP WAS DUE TO A WRONGFUL ACT ON THE PART OF THE COMMISSION AND UNDER THOSE CIRCUMSTANCES HE CLAIMED THE BENEFIT OF THE PECUNIARY SYSTEM RELATING TO RETIREMENT IN THE INTERESTS OF THE SERVICE .

9 BY THE CONTESTED DECISION THE DEFENDANT ACCEPTED THE APPLICANT' S RESIGNATION BUT REFUSED TO APPLY TO HIM THE SYSTEM RELATING TO RETIREMENT IN THE INTERESTS OF THE SERVICE, STATING THAT THE FINANCIAL SYSTEM APPLICABLE TO HIM WAS THAT RELATING TO VOLUNTARY RETIREMENT .

10 BOTH THE APPLICATION FOR ANNULMENT AND THAT FOR DAMAGES ARE BASED ON THE ALLEGATION OF THE ILLEGAL AND WRONGFUL CONDUCT OF THE COMMISSION .

11 THIS ALLEGATION MUST THEREFORE BE CONSIDERED FIRST .

12 IN THE FIRST PLACE THE APPLICANT CLAIMS THAT HIS NOMINATION AS DIRECTOR-GENERAL FOR DISSEMINATION OF INFORMATION CONSTITUTES A DE FACTO REDUCTION IN STATUS, BECAUSE THIS DIRECTORATE-GENERAL ONLY PERFORMS " ESSENTIALLY EXECUTIVE " DUTIES SO THAT BY ASSIGNING HIM TO THAT POST THE COMMISSION INFRINGED THE RULE OF CORRESPONDENCE BETWEEN GRADES AND POSTS .

13 HE FURTHER MAINTAINS THAT HE WAS APPOINTED TO THIS POST ALTHOUGH HE DID NOT POSSESS THE NECESSARY QUALIFICATIONS FOR IT .

14 THE POST OF DIRECTOR-GENERAL FOR DISSEMINATION OF INFORMATION CARRIES THE GRADE OF A 1 WHICH CORRESPONDS TO THAT OF THE APPLICANT .

15 ALTHOUGH THE DIFFERENCE IN THE POWERS OF THE VARIOUS DIRECTORATES-GENERAL MIGHT JUSTIFY A PERSONAL PREFERENCE ON THE PART OF THE APPLICANT FOR ANOTHER POST, IT DOES NOT HOWEVER INFRINGE THE RULE OF CORRESPONDENCE BETWEEN GRADES AND POSTS ON WHICH OFFICIALS ARE ENTITLED TO RELY .

16 FURTHERMORE THE APPLICANT HAD ACCEPTED HIS APPOINTMENT WITHOUT THE SLIGHTEST RESERVATION AND IT WAS ONLY AFTER HIS APPLICATION FOR THE POST OF DIRECTORATE-GENERAL FOR INDUSTRIAL AFFAIRS WAS REJECTED THAT HE CONSIDERED THAT THE POST WHICH HE OCCUPIED DID NOT CORRESPOND TO HIS ABILITIES .

17 FURTHERMORE THE COMMISSION IS ENTITLED TO EXPECT THAT SENIOR OFFICIALS SHALL BE SUFFICIENTLY ADAPTABLE TO FILL POSTS OF DIFFERENT KINDS .

18 IT WAS ALL THE MORE IN THE APPLICANT' S CASE SINCE THE ACTIVITIES OF DIRECTOR-GENERAL FOR DISSEMINATION OF INFORMATION WERE APPROPRIATE TO HIS UNIVERSITY EDUCATION .

19 IN APPOINTING HIM TO THIS POST THE DEFENDANT HAS NEITHER INFRINGED ANY PROVISION OF THE STAFF REGULATIONS NOR COMMITTED A WRONGFUL ACT INVOLVING ITS LIABILITY .

20 NOR DOES ITS REFUSAL TO ACCEDE TO THE APPLICANT' S WISH TO BENEFIT FROM ARRANGEMENTS RELATING TO TERMINATION OF SERVICE OR OF COMPULSORY RETIREMENT CONSTITUTE AN ILLEGALITY OR WRONGFUL ACT .

21 IN THIS CONNEXION IT MUST BE OBSERVED IN THE FIRST PLACE THAT THE APPLICANT DID NOT CONTEST AT THE TIME THE COMMISSION' S DECISIONS, REFUSING HIM, BEFORE HIS RESIGNATION, THE BENEFIT OF THOSE ARRANGEMENTS .

22 FURTHERMORE IF AN OFFICIAL FINDS THAT THE POST TO WHICH HE HAS ACCEPTED APPOINTMENT DOES NOT SUIT THE ABILITIES WHICH HE CONSIDERS HIMSELF TO HAVE, THIS DOES NOT ENTITLE HIM TO THE BENEFIT OF ONE OF THOSE TWO SPECIAL SYSTEMS .

23 SINCE BOTH THE ARRANGEMENTS RELATING TO TERMINATION OF SERVICE AND RELATING TO COMPULSORY RETIREMENT CAN ONLY BE GRANTED IN THE INTERESTS OF THE SERVICE, THE DEFENDANT, IN THE CIRCUMSTANCES OF THE CASE, DID NOT EXCEED THE LIMITS OF ITS DISCRETIONARY POWER IN CONSIDERING THAT THE INTERESTS OF THE SERVICE DID NOT JUSTIFY GRANTING THE MEASURES REQUESTED .

24 FURTHERMORE THE APPLICANT HAS ADDUCED NO EVIDENCE IN SUPPORT OF HIS STATEMENT THAT THE DEFENDANT WAS GUILTY OF A MISUSE OF POWERS IN HIS CASE .

25 FINALLY THE CIRCUMSTANCE THAT THE REASON FOR HIS RESIGNATION WAS THE FACT THAT HE HAD BEEN APPOINTED - WITH HIS CONSENT - TO A POST FOR WHICH HE CONSIDERED HIMSELF POORLY QUALIFIED, IS NOT OF SUCH A NATURE AS TO CALL IN QUESTION THE VOLUNTARY CHARACTER OF HIS RESIGNATION .

26 THE COMMISSION WAS CONSEQUENTLY ENTITLED TO REGARD THE LETTER OF 26 MAY 1969 AS CONSTITUTING A VOLUNTARY RESIGNATION AND TO APPLY TO THE APPLICANT THE APPROPRIATE PECUNIARY ARRANGEMENTS .

27 IT CONSEQUENTLY APPEARS THAT THE APPLICATION IS UNFOUNDED AND MUST BE DISMISSED IN ITS ENTIRETY .

Decision on costs

28 UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . THE APPLICANT HAS FAILED IN HIS SUBMISSIONS . HOWEVER UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN ACTIONS BY OFFICIALS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

Operative part

THE COURT ( FIRST CHAMBER )

HEREBY :

( 1 ) DISMISSES THE APPLICATION;

( 2 ) ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .