Judgment of the Court (Second Chamber) of 21 November 1974. - Robert Giry v Commission of the European Communities. - Case 1-74.



European Court reports 1974 Page 01269

Greek special edition Page 00509

Portuguese special edition Page 00535



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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OFFICIALS - COMPULSORY RETIREMENT IN THE INTEREST OF THE SERVICE - APPLICATION TO OFFICIALS ON LEAVE ON PERSONAL GROUNDS - REFUSAL BY THE ADMINISTRATION - ADMISSIBILITY

( REGULATION NO 2530/72 OF THE COUNCIL, ARTICLE 2 ( 1 ))

Summary

EVEN THOUGH THE PURPOSE OF REGULATION NO 2530/72 IS NOT INCOMPATIBLE IN EVERY CASE WITH ITS APPLICATION TO OFFICIALS ON LEAVE ON PERSONAL GROUNDS, NEVERTHELESS AS A RULE THE REGULATION WAS INTENDED TO APPLY TO OFFICIALS WHO ACTUALLY HELD A POST .

IT WAS THEREFORE OPEN TO THE COMMISSION TO REFUSE TO APPLY REGULATION NO 2530/72 TO OFFICIALS ON LEAVE ON PERSONAL GROUNDS .

Parties

IN CASE 1/74

ROBERT GIRY, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, ON LEAVE ON PERSONAL GROUNDS, REPRESENTED BY V . BIEL, ADVOCATE AT THE COUR SUPERIEURE DE JUSTICE OF THE GRAND DUCHY OF LUXEMBOURG, WITH AN ADDRESS FOR SERVICE AT THE CHAMBERS OF V . BIEL, 71, RUE DES GLACIS, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, TH . F . CUSACK, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, P . LAMOUREUX, 4, BOULEVARD ROYAL, DEFENDANT,

Subject of the case

APPLICATION FOR ANNULMENT OF THE REFUSAL BY THE COMMISSION TO TERMINATE THE APPLICANT'S SERVICE UNDER REGULATION NO 2530/72,

Grounds

1 THE APPLICATION IS FOR THE ANNULMENT OF THE REFUSAL BY THE COMMISSION TO TERMINATE THE APPLICANT' S SERVICE UNDER REGULATION NO 2530/72 OF THE COUNCIL INTRODUCING SPECIAL AND TEMPORARY MEASURES APPLICABLE TO THE RECRUITMENT OF OFFICIALS OF THE EUROPEAN COMMUNITIES IN CONSEQUENCE OF THE ACCESSION OF NEW MEMBER STATES, AND FOR THE TERMINATION OF SERVICE OF OFFICIALS OF THOSE COMMUNITIES .

ADMISSIBILITY

2 ACCORDING TO THE COMMISSION THE APPLICATION IS INADMISSIBLE SINCE IT IS DIRECTED AGAINST A DECISION REJECTING A REQUEST WHICH WAS NO LONGER BEING MADE AT THE TIME THE DECISION WAS TAKEN .

3 THE COMMISSION CONSIDERS THE LETTER FROM THE APPLICANT DATED 26 APRIL 1973, IN WHICH HE INFORMED THE COMMISSION OF HIS " INTENTION TO REQUEST ( HIS ) REINSTATEMENT WITH THE COMMISSION AT THE END OF ( HIS ) LEAVE ON PERSONAL GROUNDS ON 12 OCTOBER NEXT ", AS A WITHDRAWAL OF HIS REQUEST DATED 22 JANUARY 1973 TO HAVE HIS SERVICE TERMINATED UNDER REGULATION NO 2530/72 .

4 THE DECISION REJECTING THIS REQUEST DOES NOT THEREFORE CONSTITUTE AN ACT ADVERSELY AFFECTING HIM WITHIN THE MEANING OF ARTICLES 90 AND 91 OF THE STAFF REGULATIONS .

5 THE APPLICANT HAS NOT EXPRESSLY WITHDRAWN HIS FORMAL REQUEST TO HAVE HIS SERVICE TERMINATED .

6 HIS LETTER DATED 26 APRIL 1973 COULD BE REGARDED AS WITHDRAWAL OF HIS REQUEST TO HAVE HIS SERVICE TERMINATED ONLY IF IT WAS OF A NATURE TO LEAD TO THE CERTAIN CONCLUSION THAT THE APPLICANT, SHOWING A DESIRE CONTRARY TO THAT PREVIOUSLY EXPRESSED, WISHED TO WITHDRAW HIS FIRST REQUEST .

7 THE WORDING OF THE LETTER AND THE CIRCUMSTANCES IN WHICH IT WAS SENT TO THE COMMISSION DO NOT JUSTIFY SUCH A CONCLUSION .

8 THIS FINDING IS CONFIRMED BY THE FACT THAT THE COMMISSION, IN ITS REPLY TO THE APPLICANT' S COMPLAINT, DID NOT MENTION ANY SUCH IMPLICIT WITHDRAWAL OF HIS REQUEST .

9 THE APPLICATION IS THEREFORE ADMISSIBLE .

ON THE SUBSTANCE

10 THE APPLICANT PLEADS THAT THE DECISION REFUSING TO TERMINATE HIS SERVICE SHOULD BE ANNULLED BECAUSE THE GROUNDS OF THIS DECISION ARE NOT VALID IN LAW .

11 THE COMMISSION HAS SOUGHT TO JUSTIFY ITS REFUSAL TO TERMINATE THE SERVICE ON THE GROUND THAT REGULATION NO 2530/72 DOES NOT APPLY TO OFFICIALS ON LEAVE ON PERSONAL GROUNDS .

12 IN THE GROUNDS OF ITS DECISION DATED 26 APRIL 1973 THE COMMISSION REFERRED TO THE FACT THAT AT ITS MEETING ON 13 FEBRUARY 1973 IT HAD FORMALLY DECIDED TO TAKE THE ATTITUDE THAT THE TERMINATION OF THE SERVICES OF OFFICIALS ON LEAVE ON PERSONAL GROUNDS ACCORDED NEITHER WITH THE SPIRIT NOR WITH THE LETTER OF REGULATION NO 2530/72 AND THAT THE PROVISIONS OF THE REGULATION WERE THEREFORE NOT APPLICABLE TO SUCH OFFICIALS .

13 ARTICLE 2 ( 1 ) OF THE REGULATION PROVIDES THAT UNTIL 30 JUNE 1973, THE INSTITUTIONS OF THE COMMUNITIES ARE AUTHORIZED, IN THE INTERESTS OF THE SERVICE, TO ADOPT FOR THEIR OFFICIALS IN GRADES A 1 TO A 5 MEASURES TERMINATING THE SERVICE OF OFFICIALS, AND THE THIRD PARAGRAPH PROVIDES THAT IF THE INTERESTS OF THE SERVICE PERMIT, THE INSTITUTION SHALL TAKE INTO ACCOUNT THE REQUESTS OF OFFICIALS THAT THEIR SERVICE BE TERMINATED .

14 THE COMMISSION ESSENTIALLY BASES ITS INTERPRETATION OF THE REGULATION ON ITS PURPOSE, WHICH WAS TO FREE POSTS ACTUALLY OCCUPIED IN ORDER TO PROVIDE FOR THE NECESSITIES ARISING FROM THE ACCESSION OF THE NEW MEMBER STATES TO THE COMMUNITIES .

15 UNDER ARTICLE 40 OF THE STAFF REGULATIONS AN OFFICIAL HAS THE RIGHT, ON THE EXPIRY OF HIS LEAVE ON PERSONAL GROUNDS, TO BE REINSTATED IN THE FIRST POST CORRESPONDING TO HIS GRADE WHICH FALLS VACANT, PROVIDED THAT HE SATISFIES THE REQUIREMENTS FOR THAT POST .

16 ALTHOUGH IT CANNOT THEREFORE BE MAINTAINED THAT THE PURPOSE OF THE REGULATION IS INCOMPATIBLE IN EVERY CASE WITH ITS APPLICATION TO OFFICIALS ON LEAVE ON PERSONAL GROUNDS, NEVERTHELESS AS A RULE THE REGULATION WAS INTENDED TO APPLY TO OFFICIALS WHO ACTUALLY HELD A POST .

17 ALTHOUGH THE COMMISSION WAS NOT BOUND BY THE REGULATION TO ADOPT THE GENERAL CRITERION WHICH IT HAD DEFINED AT ITS MEETING ON 13 FEBRUARY 1973, IT WAS NEVERTHELESS OPEN TO IT TO LAY DOWN THIS CRITERION IN THE EXERCISE OF ITS DISCRETIONARY POWER UNDER THE REGULATION .

18 BY REASON OF THIS THE APPLICATION OF THIS CRITERION IN THE APPLICANT' S CASE HAS NOT ADVERSELY AFFECTED HIS INTERESTS IN A WAY WHICH CAN LEAD TO THE ANNULMENT OF THE DECISION .

19 THE APPLICANT MAINTAINS FURTHER THAT THE DECISION MUST BE ANNULLED BECAUSE THE COMMISSION HAS VIOLATED, AT HIS EXPENSE, THE GENERAL PRINCIPLE OF NON-DISCRIMINATION BY TERMINATING THE SERVICES OF TWO OFFICIALS WHO, AT THE TIME, WERE, AS HE WAS, ON LEAVE ON PERSONAL GROUNDS .

20 IT IS CLEAR THAT THE COMMISSION MUST APPLY THE GENERAL PRINCIPLE WHICH HAS BEEN VALIDLY LAID DOWN TO ALL THE OFFICIALS WHO ARE ON LEAVE ON PERSONAL GROUNDS .

21 IT IS HOWEVER ESTABLISHED THAT THE TWO OFFICIALS TO WHOM THE APPLICANT REFERS WERE NOT ON LEAVE ON PERSONAL GROUNDS AT THE TIME THEY APPLIED TO HAVE THEIR SERVICES TERMINATED AND IT WAS ONLY AFTER THEIR REQUEST WAS FIRST REFUSED THAT THE TWO OFFICIALS REQUESTED TO BE GRANTED LEAVE ON PERSONAL GROUNDS .

22 IN THESE CIRCUMSTANCES A RECONSIDERATION OF THE FIRST REFUSAL CANNOT BE REGARDED AS A DEROGATION FROM THE GENERAL CRITERION LAID DOWN BY THE COMMISSION AND EVEN LESS AS CONSTITUTING DISCRIMINATION AGAINST THE APPLICANT .

23 THE APPLICATION MUST THEREFORE BE REJECTED AS UNFOUNDED .

Decision on costs

24 THE APPLICANT HAS FAILED IN HIS ACTION .

25 UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

26 HOWEVER, UNDER THE TERMS OF ARTICLE 70 OF THE SAID RULES, COSTS INCURRED BY THE INSTITUTIONS IN ACTIONS BROUGHT BY EMPLOYEES OF THE COMMUNITY ARE TO BE BORNE BY SUCH INSTITUTIONS .

Operative part

ON THOSE GROUNDS,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE ACTION AS UNFOUNDED;

2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .