Judgment of the Court (Second Chamber) of 5 May 1983. - Adriano Pizziolo v Commission of the European Communities. - Reinstatement after leave on personal grounds. - Case 785/79.



European Court reports 1983 Page 01343



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - LEAVE ON PERSONAL GROUNDS - EXPIRY - REINSTATEMENT - NO SUITABLE POST OFFERED - CONSEQUENCES - DATE ON WHICH REINSTATEMENT ACTUALLY TAKES EFFECT - DUTY OF INSTITUTION TO RECONSTRUCT CAREER OF PERSON CONCERNED - NONE

( STAFF REGULATIONS OF OFFICIALS , ART . 40 ( 4 ) ( D ))

2.OFFICIALS - LEAVE ON PERSONAL GROUNDS - EXPIRY - UNLAWFUL FAILURE TO REINSTATE - CONSEQUENCES - DUTY OF ADMINISTRATION TO PAY COMPENSATION - CONDITIONS - PECUNIARY DAMAGE - DEFINITE NATURE - EVALUATION - CRITERIA

( STAFF REGULATIONS OF OFFICIALS , ART . 40 ( 4 ) ( D ))

Summary

1 . WHEN IT IS DEMONSTRATED THAT AN INSTITUTION SHOULD HAVE OFFERED A POST TO AN OFFICIAL WITH A VIEW TO REINSTATING HIM PURSUANT TO ARTICLE 40 ( 4 ) ( D ) OF THE STAFF REGULATIONS , THE REINSTATEMENT OF THE PERSON CONCERNED MUST ACTUALLY TAKE EFFECT , AS REGARDS SENIORITY IN GRADE AND STEP AND FOR PENSION PURPOSES , FROM THE DATE ON WHICH IT WOULD HAVE BEEN POSSIBLE TO REINSTATE HIM , HAD THE INSTITUTION IN QUESTION OFFERED HIM THE POST .

ON THE OTHER HAND , THE INSTITUTION MAY NOT BE ORDERED TO RECONSTRUCT THE CAREER OF THE PERSON CONCERNED , ON THE GROUNDS THAT IT CANNOT BE DETERMINED WITH ANY CERTAINTY WHAT CHANCES HE WOULD HAVE HAD OF ADVANCEMENT IF HE HAD BEEN REINSTATED AT THE PROPER TIME .

2.OFFICIALS WHO , OWING TO THE UNLAWFUL CONDUCT OF AN INSTITUTION , HAVE NOT BEEN REINSTATED UPON THE EXPIRY OF THEIR LEAVE ON PERSONAL GROUNDS ARE ENTITLED TO RECEIVE COMPENSATION FOR THE ACTUAL DAMAGE THEY HAVE SUFFERED THROUGH THE LOSS OF THEIR SALARIES , AND , IN PRINCIPLE , THE COMPENSATION PAYABLE ON THAT ACCOUNT MUST BE EQUAL TO THE NET REMUNERATION TO WHICH THEY WOULD HAVE BEEN ENTITLED , SUBJECT TO DEDUCTION OF THE NET EARNED INCOME RECEIVED FOR THE SAME PERIOD WHILE ENGAGED IN OTHER EMPLOYMENT , WITH THE PROVISO THAT THE PERSONS CONCERNED MUST MAKE REASONABLE EFFORTS TO MITIGATE THEIR LOSSES , IF NECESSARY BY LOOKING FOR ALTERNATIVE EMPLOYMENT .

ON THE OTHER HAND , THE INSTITUTION MAY NOT BE ORDERED TO COMPENSATE FOR THE LOSS ALLEGEDLY SUFFERED BY AN OFFICIAL IN THE DEVELOPMENT OF HIS CAREER , SINCE HIS CHANCES OF ADVANCEMENT IF HE HAD BEEN REINSTATED AT THE PROPER TIME ARE SO VAGUE AND HYPOTHETICAL THAT THEY DO NOT IN THEMSELVES JUSTIFY A FINDING THAT HE SUFFERED PECUNIARY DAMAGE UNDER THIS HEAD .

Parties

IN CASE 785/79

ADRIANO PIZZIOLO , A SCIENTIFIC OFFICER WITH THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING IN BOLOGNA , REPRESENTED BY EDMOND LEBRUN OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER , 83 BOULEVARD GRANDE-DUCHESSE-CHARLOTTE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS PRINCIPAL LEGAL ADVISER , RAYMOND BAEYENS , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , ORESTE MONTALTO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE REINSTATEMENT OF THE APPLICANT AND FOR AN ORDER THAT THE COMMISSION SHOULD PAY COMPENSATION FOR THE DAMAGE SUFFERED BY HIM AS A RESULT OF THE DELAY IN REINSTATEMENT AND SHOULD RECONSTRUCT HIS CAREER ,

Grounds

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 24 OCTOBER 1979 , MR PIZZIOLO , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES ON LEAVE ON PERSONAL GROUNDS , BROUGHT AN ACTION SEEKING , PRINCIPALLY , A DECLARATION THAT THE COMMISSION SHOULD HAVE REINSTATED HIM PURSUANT TO ARTICLE 40 ( 4 ) ( D ) OF THE STAFF REGULATIONS , WHEN HIS LEAVE EXPIRED , NAMELY 1 MARCH 1971 , AND AN ORDER OF THE COURT THAT THE COMMISSION SHOULD REINSTATE HIM IN THE FIRST POST CORRESPONDING TO HIS GRADE FALLING VACANT IN HIS CATEGORY , WITH EFFECT FROM THAT DATE . IN THE ALTERNATIVE , HE REQUESTS THAT BEFORE FINAL JUDGMENT IS GIVEN , THE COURT SHOULD ORDER AN EXPERT ' S REPORT AS TO HIS SUITABILITY FOR THE POSTS MENTIONED BY HIM WHICH BECAME VACANT AFTER THAT DATE .

2 IN HIS APPLICATION , THE APPLICANT FURTHER ASKS THAT THE COMMISSION BE ORDERED TO COMPENSATE HIM FOR DAMAGE SUFFERED BY HIM AS A RESULT OF HIS LOSS OF SALARY , AND TO RECONSTRUCT HIS CAREER AS FROM THE DATE ON WHICH HE SHOULD HAVE BEEN REINSTATED OR , FAILING THAT , TO COMPENSATE HIM FOR THE LOSS SUFFERED IN THE DEVELOPMENT OF HIS CAREER .

3 THE APPLICANT WAS GRANTED LEAVE ON PERSONAL GROUNDS FROM 1 MARCH 1970 TO 28 FEBRUARY 1971 . PRIOR THERETO HE HAD BEEN ASSIGNED TO THE CERAMICS AND METALLURGY DEPARTMENT OF THE JOINT RESEARCH CENTRE IN KARLSRUHE , AS AN OFFICIAL IN GRADE A 6 ON THE SCIENTIFIC STAFF . THE APPLICANT DID NOT REQUEST ANY EXTENSION OF HIS LEAVE BUT AS YET HE HAS NOT BEEN REINSTATED .

4 BY AN INTERLOCUTORY JUDGMENT OF 2 APRIL 1981 (( 1981 ) ECR 969 ), THE COURT ( SECOND CHAMBER ) REJECTED THE APPLICANT ' S CLAIM TO BE REINSTATED WITH EFFECT FROM 1 MARCH 1971 . THE COURT DID , HOWEVER , DIRECT THAT AN EXPERT ' S REPORT BE OBTAINED ON THE QUESTION WHETHER THE APPLICANT HAD THE REQUIRED QUALIFICATIONS AND NECESSARY ABILITIES TO CARRY OUT THE DUTIES REFERRED TO IN VACANCY NOTICES NOS COM/515/73 , 531/74 , 507/75 , 1530/75 , 1513/76 AND 1531/76 .

5 IN A REPORT SUBMITTED ON 29 NOVEMBER 1982 , THE EXPERTS APPOINTED BY THE COURT CONCLUDED THAT MR PIZZIOLO DID NOT HAVE THE QUALIFICATIONS REQUIRED BY SOME OF THE ABOVE-MENTIONED VACANCY NOTICES , BUT THAT HE ' ' MIGHT BE SUITABLE ' ' FOR THE POST REFERRED TO IN VACANCY NOTICE NO COM/1531/76 , ' ' IF AVAILABLE ' ' .

CLAIMS FOR REINSTATEMENT

6 AS MATTERS STAND FOLLOWING THE INTERLOCUTORY JUDGMENT OF 2 APRIL 1981 AND FOLLOWING DELIVERY OF THE EXPERTS ' REPORT , THE APPLICANT IS CLAIMING THAT THE COURT SHOULD DECLARE THAT THE COMMISSION SHOULD HAVE REINSTATED HIM IN THE POST WHICH WAS THE SUBJECT OF VACANCY NOTICE NO COM/1531/76 , AND ORDER THE COMMISSION TO REINSTATE HIM IN THE FIRST VACANCY IN HIS CATEGORY CORRESPONDING TO HIS GRADE , WITH EFFECT , FOR PURPOSES OF SENIORITY IN GRADE AND STEP AND OF THE PENSION SCHEME , FROM THE DATE ON WHICH HE SHOULD HAVE BEEN REINSTATED .

7 THE REINSTATEMENT OF OFFICIALS TAKING LEAVE ON PERSONAL GROUNDS IS GOVERNED BY ARICLE 40 ( 4 ) ( D ) OF THE STAFF REGULATIONS , WHICH PROVIDES THAT :

' ' ON THE EXPIRY OF HIS LEAVE AN OFFICIAL MUST BE REINSTATED IN THE FIRST POST CORRESPONDING TO HIS GRADE WHICH FALLS VACANT IN HIS CATEGORY OR SERVICE , PROVIDED THAT HE SATISFIES THE REQUIREMENTS FOR THAT POST . . . ' ' .

8 IT IS COMMON GROUND THAT THE POST WHICH WAS THE SUBJECT OF VACANCY NOTICE NO 1531/76 WAS IN THE APPLICANT ' S CATEGORY AND THAT IT CORRESPONDED TO HIS GRADE . IT WAS A POST AS SCIENTIFIC OFFICER , GRADED A 8-A 5 . BEFORE BEING GRANTED LEAVE ON PERSONAL GROUNDS , THE APPLICANT HAD BEEN A SCIENTIFIC OFFICER IN GRADE A 6 . THE COMMISSION HAS NOT DENIED THAT , IN THE LIGHT OF THE EXPERTS ' REPORT , THE APPLICANT SHOULD BE CONSIDERED TO HAVE SATISFIED THE REQUIREMENTS FOR THAT POST .

9 THE DOUBT EXPRESSED BY THE EXPERTS AS TO THE AVAILABILITY OF THE POST IS DUE TO THE FACT THAT THE VACANCY NOTICE WAS WITHDRAWN FOLLOWING AN AMENDMENT TO THE PROVISIONS CONCERNING OFFICIALS AND OTHER EMPLOYEES OF THE COMMUNITIES , THE OBJECT OF WHICH HAD BEEN TO REPLACE BY A SYSTEM OF TEMPORARY CONTRACTS THE SYSTEM WHEREBY STAFF PAID FROM RESEARCH APPROPRIATIONS WERE APPOINTED AS OFFICIALS . IN REPLY TO THAT ARGUMENT ON BEHALF OF THE COMMISSION , HOWEVER , THE COURT STATED IN ITS INTERLOCUTORY JUDGMENT OF 2 APRIL 1981 THAT THE APPLICANT , AS AN OFFICIAL ON LEAVE ON PERSONAL GROUNDS , HAD A PRIORITY RIGHT TO BE REINSTATED IN THE POST IN QUESTION AND THAT THAT PRIORITY RIGHT HAD TO OVERRIDE THE AMENDMENT .

10 IT FOLLOWS THAT THE COMMISSION SHOULD HAVE OFFERED THE APPLICANT THE POST WHICH WAS THE SUBJECT OF VACANCY NOTICE NO COM/1531/76 , WITH A VIEW TO REINSTATING HIM PURSUANT TO ARTICLE 40 ( 4 ) ( D ) OF THE STAFF REGULATIONS AND THAT , CONSEQUENTLY , THE REINSTATEMENT OF THE APPLICANT MUST ACTUALLY TAKE EFFECT , AS REGARDS SENIORITY IN GRADE AND STEP AND FOR PENSION PURPOSES , FROM THE DATE ON WHICH IT WOULD HAVE BEEN POSSIBLE TO REINSTATE HIM , HAD THE COMMISSION OFFERED HIM THE POST . SINCE THE CLOSING DATE FOR APPLICATIONS FOR THE POST WAS 10 DECEMBER 1976 , THE DATE FROM WHICH THE APPLICANT COULD HAVE BEEN REINSTATED SHOULD BE SET AT 1 JANUARY 1977 .

CLAIM FOR COMPENSATION

11 THE APPLICANT CLAIMS THAT THE COMMISSION SHOULD BE ORDERED TO COMPENSATE HIM FOR DAMAGE SUFFERED BY HIM AS A RESULT OF HIS LOSS OF SALARY BETWEEN THE DATE ON WHICH HE SHOULD HAVE BEEN REINSTATED AND THE DATE OF HIS ACTUAL REINSTATEMENT OR , AT LEAST , THE DATE OF FINAL JUDGMENT , THE COMPENSATION BEARING INTEREST AT THE RATE OF 8% .

12 IT APPEARS FROM THE CASE-LAW OF THE COURT AND , IN PARTICULAR , FROM THE JUDGMENT OF 1 JULY 1976 ( CASE 58/75 SERGY V COMMISSION ( 1976 ) ECR 1139 ) THAT OFFICIALS WHO , OWING TO THE UNLAWFUL CONDUCT OF THE INSTITUTION , HAVE NOT BEEN REINSTATED UPON THE EXPIRY OF THEIR LEAVE ON PERSONAL GROUNDS ARE ENTITLED TO RECEIVE COMPENSATION FOR THE ACTUAL DAMAGE THEY HAVE SUFFERED THROUGH THE LOSS OF THEIR SALARIES , AND THAT , IN PRINCIPLE , THE COMPENSATION PAYABLE ON THAT ACCOUNT MUST BE EQUAL TO THE NET REMUNERATION TO WHICH THEY WOULD HAVE BEEN ENTITLED , SUBJECT TO DEDUCTION OF THE NET EARNED INCOME RECEIVED FOR THE SAME PERIOD WHILE ENGAGED IN OTHER EMPLOYMENT .

13 CONSEQUENTLY THE COMMISSION SHOULD BE ORDERED TO PAY TO THE APPLICANT A SUM EQUIVALENT TO THE NET REMUNERATION WHICH HE WOULD HAVE RECEIVED IF HE HAD BEEN REINSTATED ON 1 JANUARY 1977 , CALCULATED UNTIL HIS ACTUAL REINSTATEMENT , SUBJECT TO DEDUCTION OF NET EARNED INCOME RECEIVED FOR THE SAME PERIOD WHILE HE WAS ENGAGED IN OTHER EMPLOYMENT . IT SHOULD , NONETHELESS , BE EMPHASIZED THAT THE APPLICANT MUST MAKE REASONABLE EFFORTS TO MITIGATE HIS LOSSES , IF NECESSARY BY LOOKING FOR ALTERNATIVE EMPLOYMENT .

14 THE SUM TO BE PAID BY THE COMMISSION IS TO BE SUPPLEMENTED BY INTEREST WHICH SHOULD BE FIXED AT 6% AS FROM 3 APRIL 1979 , BEING THE DATE ON WHICH THE APPLICANT SUBMITTED HIS COMPLAINT UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS , OR AS FROM THE DATE ON WHICH THE REMUNERATION BECAME PAYABLE IF THAT IS LATER .

CLAIM FOR RECONSTRUCTION OF THE APPLICANT ' S CAREER

15 THE APPLICANT CLAIMS LASTLY THAT THE COMMISSION SHOULD BE ORDERED TO RECONSTRUCT HIS CAREER FROM THE DATE ON WHICH HE SHOULD HAVE BEEN REINSTATED OR , FAILING THAT , TO COMPENSATE HIM FOR THE LOSS SUFFERED IN THE DEVELOPMENT OF HIS CAREER , WHICH HE EVALUATES AT BFR 150 000 PLUS INTEREST .

16 THAT CLAIM CANNOT BE UPHELD . IT CANNOT BE DETERMINED WITH ANY CERTAINTY WHAT CHANCES THE APPLICANT WOULD HAVE HAD OF ADVANCEMENT IF HE HAD BEEN REINSTATED AT THE PROPER TIME . THOSE CHANCES ARE SO VAGUE AND HYPOTHETICAL THAT THEY DO NOT IN THEMSELVES JUSTIFY A FINDING THAT THE APPLICANT SUFFERED PECUNIARY DAMAGE UNDER THIS HEAD .

Decision on costs

COSTS

17 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .

18 SINCE THE COMMISSION HAS FAILED IN ALMOST ALL ITS ARGUMENTS , IT SHOULD BE ORDERED TO PAY THE COSTS , INCLUDING THOSE CONNECTED WITH THE PROCEEDINGS CULMINATING IN THE INTERLOCUTORY JUDGMENT OF 2 APRIL 1981 .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . ORDERS THE COMMISSION TO REINSTATE THE APPLICANT PURSUANT TO ARTICLE 40 ( 4 ) ( D ) OF THE STAFF REGULATIONS OF OFFICIALS WITH EFFECT , FOR THE PURPOSES OF SENIORITY IN GRADE AND STEP AND OF THE PENSION SCHEME , FROM 1 JANUARY 1977 ;

2 . ORDER THE COMMISSION TO PAY TO THE APPLICANT THE SUM OF MONEY EQUIVALENT TO THE NET REMUNERATION WHICH HE WOULD HAVE RECEIVED UP TO THE DATE OF HIS ACTUAL REINSTATEMENT IF HE HAD BEEN REINSTATED ON 1 JANUARY 1977 , SUBJECT TO DEDUCTION OF NET EARNINGS RECEIVED IN RESPECT OF THAT PERIOD FROM ANY OTHER ACTIVITY ; THE SUM PAYABLE BY THE COMMISSION IS TO BE SUPPLEMENTED BY INTEREST AT 6% AS FROM 3 APRIL 1979 OR AS FROM THE DATE ON WHICH THE REMUNERATION BECAME PAYABLE IF THAT IS LATER ;

3 . DISMISSES THE APPLICANT ' S CLAIM FOR RECONSTRUCTION OF HIS CAREER OR COMPENSATION FOR LOSS SUFFERED IN THAT RESPECT ;

4 . ORDERS THE COMMISSION TO PAY THE COSTS .