OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN

DELIVERED ON 24 FEBRUARY 1983

My Lords,

Mr Pizziolo, as an official of the Commission of the European Communities, was granted leave of absence on personal grounds from 1 March 1970 to 28 February 1971. He did not request an extension of that leave, but has not yet been reinstated, since the Commission took the view that he did not satisfy the requirements for any of the posts corresponding to his grade which have fallen vacant in his categoiy or service since 1 March 1971. In these proceedings Mr Pizziolo seeks a declaration that the Commission should have reinstated him on the date of the expiry of his leave, or at least as soon as a vacancy occurred in any of a number of specified posts which were advertised thereafter. He seeks an award of damages, for the Commission's failure to reinstate him, with interest; an order annulling the Commission's implied decision to reject his complaint; and an order that the Commission should reconstitute his career. Subject to one matter to which I refer later, the facts of the case are set out in detail in the opinion of Mr Advocate General Warner dated 26 February 1981 and in the judgment of the Court dated 2 April 1981, [1981] ECR 969, and I do not repeat them.

By its decision dated 2 April 1981 the Court dismissed Mr Pizziolo's claim to be reinstated witli effect from 1 March 1971 on the ground that it had not been shown that at the time when the leave granted to the applicant expired, there existed vacant posts in which the Commission could have reinstated him. There remained his claim in respect of a number of other posts for which vacancy notices had been published between 1973 and 1976 (namely COM/515/73, 531/74, 507/75, 1530/75, 1513/76 and 1531/76). The dispute between the parties was as to whether he satisfied the requirements for the posts. Because of the technical nature of the particulars relied on by the parties, the Court directed that an expert's report should be obtained on the question whether Mr Pizziolo had the required qualifications and necessaiy abilities to cany out the duties contemplated by those vacancy notices. Vacancy Notice No 1531/76 had in fact been annulled following a change of procedure, pursuant to which only temporary employees were to be recruited, but the Court held that the priority of Mr Pizziolo's right to be reinstated overrode this change, so that Vacancy Notice No 1531/76 fell to be considered by the experts.

In accordance with further directions made by the Court in that decision, the parties submitted to the Court the names of two experts. Those two agreed upon a third expert to complete the panel. By an order dated 30 November 1981 the Court directed those three experts to prepare a report. On 16 November 1982 the experts reported that in their unanimous opinion Mr Pizziolo could be considered suitable to be appointed to the post contemplated by Vacancy Notice No 1531/76 “if available” (“qualora fosse disponibile”).

The experts found that he was not qualified for the posts referred to in Vacancy Notices 515/73, 1530/75 and 1513/76 (or in three others not specified in the Court's order) and, said nothing about Vacancy Notices Nos 531/74 and 507/75.

From the words used by the experts there may be some doubt as to whether they meant to qualify their conclusion by imposing the condition that the post should be available, or that Mr Pizziolo should be available. It seems to me that they meant the former, since the experts concluded that the only post matching Mr Pizziolo's eminent but specialized qualifications is one described in the Vacancy Notice No 1531/76, which was subsequently annulled. For the reasons given in paragraphs 15 and 16 of its decision dated 2 April 1981, however, the Court decided that the annulment of that vacancy notice cannot affect Mr Pizziolo's entitlement to rely upon his right to be appointed to the post described therein. It follows that the post should be treated as one “available” to Mr Pizziolo.

If on the other hand the experts meant to add the condition that Mr Pizziolo was available at the material time, it is sufficient to observe that on the evidence before the Court Mr Pizziolo manifested his wish to accept a new post in advance of the publication of Vacancy Notice No 1531/76 and no evidence has been adduced to suggest that he was not available to accept that post. Indeed, when applying for his leave of absence in 1969, and in the intervening period before 1976, Mr Pizziolo evinced a desire to return to the Commission on its expiry.

Counsel for the Commission said he regretted the brevity of the report, the insufficiency of the reasoning in it and particularly the absence of adequate explanations for the conclusion that Mr Pizziolo was suitable to fill a post advertised as requiring an advanced knowledge of physics, given that he is a chemist, specializing in high temperature solid-state ceramics. He informed the Court that the candidate who had been appointed on a temporary basis to fill the post advertised in Vacancy Notice No 1531/76 has now been transferred elsewhere, and the Commission finds itself in great difficulty in obtaining posts for scientists who have taken leave of absence on personal grounds. He told the Court that there were at least 20 others in the position of Mr Pizziolo, a fact which does not appear to have been made clear earlier.

Nonetheless, counsel for the Commission made it plain that even if disappointed with the experts' report, the Commission did not wish to put in issue either the content of the report or the qualifications of the experts.

As I understand it, the Court is not necessarily bound by the findings of a report of experts obtained under Article 49 of the Rules of Procedure, but where the experts have been appointed in order to report on technical matters lying outside the Court's expertise, and where no valid challenge is made to the report, it seems right that the experts' findings should be accepted in ordinary circumstances even though inferences may be drawn from the report by the Court itself.

Vacancy notice No 1531/76 gave the required qualifications for the post advertised therein,

(i) a knowledge at university level demonstrated by a degree, of physics, chemistry or material science;

(ii) a detailed knowledge of solid-state physics in the field of hightemperature kinetics;

(iii) experience of high temperatures, secondary vacuums and the spectroscopy of radiation.

Since the panel of experts, whose impartiality and competence have not been challenged by the Commission, have reached the unanimous conclusion that Mr Pizziolo's qualifications were such as to fit him to be appointed to the post described in Vacancy Notice No 1531/76 and to discharge the responsibilities that it entailed, a conclusion which, in my view, has not been effectively challenged, it seems to me that the report should be accepted in this case. I do not consider that the report should be rejected, or that what I understand the Court's earlier decision to be should be modified, at this stage because of the fact that 20 other people may be in the same position. Furthermore, as I understand it, the applicant does not contend that the failure to consider the two earlier vacancy notices of 1974 and 1975 affects the position, unless the experts' report on Vacancy Notice No 1531/76 is rejected. In the light of this I would disregard that failure.

Accordingly it follows that the post described in Vacancy Notice No 1531/76 was one to which Mr Pizziolo was entitled to be reinstated, in accordance with Article 40 (4) (d) of the Staff Regulations.

It remains necessary to fix the date at which Mr Pizziolo was entitled to be reinstated in that post. It appears from the wording of Article 40 (4) (d) of the Staff Regulations that the entitlement to be reinstated arises when the post “falls vacant”. Nothing in the relevant vacancy notice indicates at what date the post fell vacant, and no evidence has been produced to the Court on this issue.

A number of possible dates, which could easily be ascertained, suggest themselves — e.g., the date of the notice or, as Mr Advocate General Warner suggested in his opinion in this case, the closing date for applications, which in this case was 10 December 1976. Unless it is shown when the post fell vacant, it seems to me that it is more appropriate to take a date more likely to be that on which the person appointed would have taken up his duties after the application had been considered. A reasonable period to take in this case would, it seems to me, be one month, and I would accordingly take 10 January 1977 as the date when the duty to reinstate Mr Pizziolo is to be taken as having arisen.

Mr Pizziolo is, therefore, entitled to a declaration that the Commission should have reinstated him on that date. The Commission's obligation to reinstate him is a continuing one: he is still entitled to be reinstated.

For the purpose of assessing the damages to which Mr Pizziolo is entitled, it seems to me appropriate to apply the principle that the compensation payable is a sum equal to the net emoluments to which the applicant would have been entitled, subject to a deduction of the net earned income received for the same period while engaged in other employment (Case 58/75 Sergy v Commission [1976] ECR 1139 at p. 1153). The Court has not been supplied with details of the salary that Mr Pizziolo would have earned, had he been reinstated in the post described in Vacancy Notice No 1531/76, nor of the emoluments which he has earned in alternative employment since 10 January 1977. In these circumstances it is for the parties and their legal advisers to seek to quantify and agree the damage. For the purpose of calculating the salary to which Mr Pizziolo would have been entitled, had he been reinstated, the parties should, in my view, include any increments that would have been awarded to Mr Pizziolo by reason of seniority and should assess his pension entitlement as if he had been reinstated (see the Sergy case at p. 1151). On the other hand, it should, in my view, leave out of account any expatriation allowance that would have been paid to Mr Pizziolo, since such allowances are designed to compensate officials for the additional cost of living abroad in Community employment, and Mr Pizziolo has not been put to these expenses. (See the report of Case 175/80 Titherv Commission [1981] ECR 2345 at p. 2369 and the sources cited there.) Although it has not been suggested that Mr Pizziolo failed to find alternative employment at any time after 10 January 1977, still less that he bears responsibility for any such failure, it is as well to add that he is under a duty to mitigate his loss by seeking alternative work. Accordingly, there must be deducted from the sum representing the emoluments which Mr Pizziolo would have received, not only the amount that he actually earned in alternative employment after 10 January 1977, but also any sum that he could reasonably be expected to have earned in any period after that date when he was unemployed by reason of his failure to exercise due diligence in seeking work (see the Sergy case at p. 1154).

I consider that damages calculated in accordance with the foregoing criteria should be paid up to the date of the applicant's reinstatement. Such an award would ensure that the applicant receives, without the necessity for initiating a further action, a sum “equal to the net emoluments to which he would have been entitled” (see the Sergy case at p. 1153). I agree with Mr Advocate General Warner that interest should be paid from the date when Mr Pizziolo first requested to be reinstated (that is 23 October 1978), or from the date on which payment of an instalment of the salary became due, whichever is the later. In recent decisions of this Court ordering Community institutions to pay to officials (or their survivors) damages to compensate them for loss of emoluments or benefits that ought to have been paid at an earlier date, the Court has on some occasions ordered those institutions to pay interest at the rate of 6% and in some cases at the rate of 8%. In decisions prior to the date of Mr Advocate General Warner's opinion in this case, on 26 February 1981, the rate normally awarded was 8% (see the Sergy case loc. cit.; Case 115/76 Leonardini v Commission [1978] ECR 735 at p. 750; Joined Cases 63 and 64/79 Boizardv Commission [1980] ECR 2975 at p. 2991; Case 40/79 Mrs P. v Commission [1981] ECR 361 át p. 375, although the rate was put at 6% in one case decided in 1978, namely, Case 114/77 Jacquemart v Commission [1978] ECR 1697 at p. 1709). More recent decisions, however, put the rate of interest at 6%: see Case 185/80 Garganese v Commission [1981] ECR 1785 at p. 1796; Case 103/81 Chaumont-Barthelv Parliament [1982] ECR 1003 at p. 1011 and Case 9/81 Williams v Court of Auditors,6 October 1982, at paragraph 28. From these it appears that the current practice is to set the rate of interest at 6%.

On the other hand, I agree with Mi-Advocate General Warner that Mr Pizziolo is not entitled to additional damages to compensate him for the loss of career prospects, since such a loss is too speculative: see Joined Cases 126/75, 34 and 92/76 Gny v Commission [1977] ECR 1937 at pp. 1958-9. Equally, he is not entitled to an order annulling the Commission's implied refusal to reinstate him, for such a decision “only confirms the act or failure to act to which the complainant takes exception and is not, by itself, a decision which may be challenged”: see Joined Cases 33 and 75/79 Kühner v Commission [1980] ECR 1677 at p. 1694. In accordance with Article 69 (2) of the Court's Rules of Procedure, Mr Pizziolo is entitled to his costs.

For these reasons I am of the opinion that the applicant was entitled to be reinstated in the post described in Vacancy Notice No 1531/76 on 10 January 1977 and continues to be so entitled, and that the Commission should pay him damages to be assessed by the parties by taking from the total of the net emoluments to which he would have been entitled had he been reinstated on that date in his former grade the net sum which he has or should reasonably have earned since 10 January 1977, together with interest on the difference at the rate of 6%. He should also have his costs of these proceedings.