4.

I now go on to consider the substance of Case 92/76 in so far, of course, as it involves conclusions other than the two which I have found to be inadmissible. In the fourth paragraph of his conclusions, the applicant seeks a declaration from the Court that the decision to reinstate him is ‘null and void’. It is however clear from the grounds of the application that the objections raised against the decision are concerned not with its substance, which relates to the opportunity granted to Mr Giry to resume work, but with some of the conditions attaching to the reinstatement. In view of the wish expressed on several occasions by the applicant to resume work with the Commission and of the fact that he has not claimed that the post offered him was not suitable having regard to his qualifications, the construction to be placed on the fourth paragraph of the conclusions is that the applicant really wanted to secure only an amendment of the decision in so far as recognition of the arrears of salary is concerned. For this purpose there is certainly no need for the decision to be declared void in its entirety but at most in part. Accordingly the main issue to be resolved is, as I said at the beginning, whether the applicant is entitled to be accorded reinstatement which is retroactive for all purposes and, in consequence, to be paid in full the remuneration which he would have received if he had been reinstated on the expiry of the period of leave. To express the issue in this way is, of course, to assume that the Commission's decision to reinstate Mr Giry was adopted after undue delay and that the Commission must accordingly be held liable for having infringed Article 40 (4) (d) of the Staff Regulations of Officials. I must emphasize that this vital assumption cannot be the subject of doubt; the Commission itself has recognized that it acted with undue delay. Nevertheless, as I mentioned earlier, the Commission relies upon Article 4 of the Staff Regulations in maintaining that it would have been legally impossible for it to reinstate Mr Giry retroactively. It is true that the judgment, cited earlier, of 1 July 1976 of the First Chamber of this Court in Case 58/75 (Sergy v Commission [1976] ECR 1141) found in favour of the contention, urged on that occasion by the Commission and embodied in the statement of reasons on which the contested decision of 26 July is based, that Article 4 of the Staff Regulations of Officials prevents a reinstatement measure from being back-dated since it would be unlawful to fill a post before it had become vacant. It should be borne in mind however that, in contrast to what happened in the case to which I have referred, Mr Giry has contested en bloc all the appointments made after the expiry of his period of leave to posts in Grade A 4 or career bracket A 5/A 4 in respect of which the Commission is unable to prove that the applicant was unsuitable. In this way he has followed the course which the Commission expressly indicated in the proceedings in the Sergy case (see ECR loc. cit. 1145) where it had objected that an action against a measure affecting a belated reinstatement and the related claim for compensation for damage suffered were inadmissible on the ground that any damage arose from the appointment of third parties to vacant posts to which the applicant might have had a claim and that, in consequence, he could have obtained satisfaction only by contesting those appointments. Actually I doubt whether the Commission derives any satisfaction from seeing its advice so closely followed. If in fact the application for annulment of all appointments subsequent to the expiry of the applicant's leave were to be upheld, this might seriously upset the organization and working of the departments of the defendant institution. For this reason, before consideration is given to the substance of the application, it should be determined whether the applicant's other conclusions do not make it possible to give him satisfaction within the limits of the rights which he is in fact entitled to assert against the Commission. In my opinion, the question should be answered in the affirmative. Even if all the contested appointments were to be annulled and the Commission were held to be under a duty to assign one of the posts thus made vacant to the applicant, without being any longer impeded by Article 4 of the Staff Regulations of Officials, the applicant would in this way obtain nothing more than he could obtain as damages whereas such a step would involve the serious inconvenience of upsetting the organization of the departments of the Commission to an extent wholly disproportionate to the objective sought by the applicant Some explanation of this statement is required. In the judgment, to which I have referred several times, in the Sergy case, the Court held that an official who had not rendered any services (even if this was a result not of his own wishes but was the fault of the administration) could not claim payment of arrears of salary but only compensation for the actual damage he had suffered through the loss of this salary as a result of the unlawful conduct of the administration. The connexion between entitlement to salary and actual performance of work had already been established, albeit in relation to different circumstances, by the Second Chamber of the Court in the judgment of 18 March 1975 in Joined Cases 44, 46 and 49/74 (Acton and Others v Commission [1975] ECR 383). The conclusion to be drawn from that judgment is that there can be no right to remuneration for days on strike, even when the institution has recognized the justice of the trade union demands which the strike was intended to support. The view subsequently adopted by the First Chamber of the Court in the Sergy judgment confirms the validity of that connexion, even in circumstances where the failure to perform work was involuntary and was the result of an illegality on the part of the institution. In the present case, therefore, there can be no question of any right of the applicant automatically to receive all arrears of salary even on the assumption that, as a result of the annulment of the appointments contested by him, there became vacant ex tunc a post to which he would have had the right to be appointed. In view of the foregoing considerations, the applicant's contention that reinstatement with retroactive effect would carry with it the right to salary for the period prior to actual return to work must be rejected. As I have already pointed out, however, when, despite his repeated requests, the Commission unduly delayed the applicant's reinstatement, it undoubtedly breached the rule referred to above in Article 40 (4) (d) of the Staff Regulations of Officials. In consequence, there must be a finding in favour of the seventh head of the conclusions in the application that the Commission should be recognized as being liable for any damage incurred by the applicant as a result of such delay. Mr Giry is therefore entitled to receive compensation. Clearly the damage suffered might coincide with the whole amount of remuneration which would have been payable to the applicant if he had been reinstated at the proper time. But this must in no circumstances result in the right to compensation for the damage caused by failure to receive salary during the period of delay being confused with the right to receive arrears of salary as such. Having made this clear I must however emphasize that the applicant has no legal interest, in this case, in securing the annulment of the appointments of third parties to posts in his grade or step which fell vacant after the expiry of his leave since the financial remedy which he seeks can equally well be achieved by a finding in favour of the application for damages. For this reason the claim which is the subject of the fifth head of the conclusions in the application should be rejected.