4.

That being so, I must now examine the alternative conclusions put forward by all the applicants. As you know their principal demand is that the Commission be ordered to pay damages. The applicants'view is that the duty to compensate them arises from the fact that the Commission's administration supplied wrong information in the spring of 1968 on the interpretation of Regulation No 259/68. This persuaded the applicants to submit requests to have their service terminated in accordance with Article 4 of Regulation No 259/68. Had the content of the rules governing pensions in Article 5 been explained to them correctly at that time, they add, they would not have submitted their requests or would have withdrawn them. Thus they would have remained in the service of the Commission and would not have been exposed to the risk of being inadequately provided for after they had reached the age of fifty-five. In examining these claims the following questions—as always in cases concerning the liability of an administration—must be investigated: — is the Commission guilty of a wrongful act or omission? — was the Commission's conduct the cause of the alleged injury? — what is the extent of the damage caused? Let us look first at the question of a wrongful act or omission. On this point we must go back a little further. The sense and purpose of Regulation No 259/68 were, it is known, to allow the single Commission to reduce the number of its staff considerably following the merger of the executives. In that light the so-called ‘volontariat’ the voluntary departure from the service under Article 4, takes on a very special significance. It is obvious that this could considerably ease the task of rationalization and hasten its accomplishment, for all that was required was to take into account the interests of the service. It spared the Commission the necessity of making the thorough evaluation of the factors to be taken into account on compulsory retirements under Article 4 (2), and it also eliminated as a rule the risk of dispute involved in compulsory terminations of service. But naturally this result was only guaranteed where there was sufficient inducement for such voluntary requests to be made. In addition the legal consequences, in particular financial rights, must be made clear, for it was unreasonable to expect any official to put himself at risk in this matter. It is already clear from these considerations that under Chapter II of Regulation No 259/68 there is a principle to be applied, although its exact sphere of application may remain undefined. One must recognize—in the context of the duty of the administration to assist its officials, if it is wished to use this expression,—that the administration has a duty to give correct information on the legal effects of actions the adoption of which is expected to be of benefit to the administration. On this point the German law relating to civil servants may serve as an example, as I have already shown in other proceedings. It contains the general principle that the administration is bound to explain, if asked, before an official makes a legally binding statement, the legal consequences of that statement, and this is particularly so as regards requests which may alter the official's position in law. I would refer the Court in particular to the Kommentar zum Bundesbeamtengesetz by Plog-Wiedow, especially Note 7 to § 79 of that law, where you will also find references to cases decided by the highest courts concerning the duty to provide full and correct information. It seems particularly interesting in the present context to note that where this duty is not fulfilled the officials affected are entitled to claim damages. To my mind it is impossible to uphold the objection made by the defendant Commission to the adoption of this principle into the case-law of the European law concerning civil servants, that objection being that the great number of decisions involving the law relating to staff which it has to make at the request of officials makes it appear unreasonable, if not quite impracticable, to impose on it an obligation to provide explanations and advice beforehand as to legal consequences. In the present proceedings it is important that we are concerned with an exceptional situation in which decisions of great importance for a large number of officials had to be taken in order to accomplish a unique purpose of importance to the interests of the service. Bearing this position in mind I think it would be clearly both unreasonable and unjust to deny the existence of or limit the duty of the Commission to provide the officials concerned with reliable information. In fact even the circular from the President of 5 March 1968, which was approved by the Commission, seems to have assumed the existence of such a duty. However, as we have seen, there then came the question, in connexion with the supply of information on the basis of this circular, of the legal errors regarding the rules concerning pensions, which gave rise to the present dispute. Following the line of deduction I have taken so far, this brings us to the question whether it is in fact possible for the Commission to be found not to be liable, and to protect it from being responsible for the consequences of the mistakes made with regard to the applicants. As you know, this is what the Commission is trying to do by referring to the ‘avertissement’ mentioned above published in a supplement to the Staff Courier of 16 April 1968. This, it says, pointed out that the information supplied was not binding and gave those concerned the opportunity to withdraw applications already made on the basis of the information previously supplied. However, I think it doubtful that the Commission had done thereby all that was required of it in order to avoid responsibility. One might in fact ask whether the notice given by the Staff Courier was appropriate or sufficient and whether this unofficial publication reached all the officials concerned. But there are even more important doubts to be raised. It could be said, for instance, that the scope, meaning and effect of the text which the Commission now says was merely a warning were not sufficiently clear or well-publicized. The opinion which appears to have been held at that time by the administration of the EEC Commission and by the officials interested in voluntary termination of service was that the rules concerning pension payments were to be interpreted in accordance with the information already supplied. Statements by a Head of Division are said to support this; also a report by the Director-General for Personnel and Administration of 24 July 1968 intended for the Chief Executive Assistants of the Members of the Commission and according to which the Commission had decided to act in accordance with the information given. This could easily give the impression that the publication of 16 April 1968 concerned only possible arithmetical errors. But there is also the following important point. According to what I think is the only correct interpretation of the Commission's duty to supply information, the Commission must now even allow questions to remain opem or conflicting interpretations to coexist, but must issue a binding definitive declaration clarifying the situation as quickly as possible. It was in fact already obliged to to so by the fact that it had, through the earlier statements issued by its administration on vital problems, aroused certain expectations which formed the basis for the assessments and decisions made by its officials. In my opinion the period up to 30 June 1968 (that is, the period during which the Commission was empowered by Regulation No 259/68 to adopt its measures) was sufficient to allow such clarification to be issued. If that was not the case then it should have taken the step of obtaining an extension of this period by decision of the Council. On the other hand I do not think it permissible under any circumstances to burden only those officials affected by Regulation No 259/68 with the consequences of uncertainty which arose in the administration of the Commission. I shall summarize my view once more: given the fact that the body of rules concerned was one adopted on a proposal of the Commission and was intended to induce officials to volunteer to leave the service, there should not be the slightest doubt concerning the existence of a duty on the part of the Commission to provide a binding explanation of the salient points of these rules, before decisions were taken on requests to leave the service. Since the Commission failed to fulfil this duty, and on the basis of the circumstances which have come to light in the proceedings, one cannot but conclude that there was a wrongful act or omission on its part. This conclusion brings us immediately to the question whether the conduct of the Commission was the cause of the injury suffered by the applicants. Here several aspects must be distinguished. First it cannot be held against the applicants that they themselves should have arrived at the correct interpretation of the fourth subparagraph of Article 5 (7) of Regulation No 259/68 and could have made their decision the basis of this, so that there was at least some contributory fault on their part which would compensate for the Commission's wrongful act or omission. This objection must be excluded in my opinion because the wording of Regulation No 259/68 is not completely clear. ‘It must be remembered, moreover, that within the Commission's administration, even as far as the Head of the Directorate-General for Personnel and Administration, an interpretation was for long accepted which agreed with the content of the information issued. In addition, a corresponding interpretation was adopted in relation to the similarly worded provision of Article 50 of the Staff Regulations and—as we heard in the proceedings—only withdrawn in the autumn of 1968. It thus appears natural for the applicants to have adopted the same view and made it one of their decisive considerations. Another question raises greater difficulties in this context. That is the question whether the pension provisions were in fact the prime motive for submitting requests under Article 4 of Regulation No 259/68 or whether the applicants decided to terminate their service voluntarily independently of that. Investigations of this nature, entering as they do upon subjective matters, are of course particularly delicate. In the present case the difficulties are aggravated by the fact that it is perfectly possible that the other considerable advantages under Regulation No 259/68 (the right to receive an allowance for a long period and the social security consequences) could also have amounted to an inducement to lodge a request for voluntary termination of service. However, it does seem that for at least three of the applicants the question can be answered in the affirmative. These are the applicants who had almost reached the age of 55 upon the expiry of the period for which they were entitled to receive the allowance under Article 5. For these their decision must have seemed obvious in view of that fact, and of the full pension which they could therefore expect to receive. For one of them, the applicant in Case 23/69, there is also the circumstance that she is not in good health, according to a certificate from the official doctor, so that she could certainly not have had the intention of leaving the service of the Commission in order to take up other employment. In these cases it is therefore clear where the interests of those concerned lay, so that as regards the question of causality there must be a strong presumption in favour of the applicants and perhaps doubts against the Commission. That the same applies in respect of the applicants in Cases 25 and 30/69, who upon the expiry of the period for which they were entitled to the allowance were only 48 or 49 years’ old, seems to me, however, highly questionable. Here oné must suppose that the intention was to end the service relationship with the Commission in order to take up other employment. It is therefore quite possible that in these cases the originally published version of the rules concerning pensions was not the deciding factor in making their requests to leave the service. That is why, following the Commission's viewpoint, it must be insisted that the causal connexion be clearly demonstrated, and accordingly I suggest that in these two cases the applicants be asked to provide proof accordingly. Lastly there remains the third problem, that of finding the extent of the alleged damage and determining the amount of compensation accordingly. This is another extraordinarily delicate problem, because obviously no damage has actually occurred as yet. Only on attaining the age of 55 and in the event of a reduced pension being claimed will any damage arise. Thus the solution to the problem depends on whether the applicants reach that age or, in the event of an earlier death, whether the survivors can make claims. If we ask ourselves how to approach this problem we may definitely exclude the possibility of simply awarding for a period of five years a sum corresponding to the difference between the amount of the pension as originally published and the reduced pension calculated later. Apart from the fact that this would bring about a result unattainable by the principal claims, this kind of assessment of damages is in any case out of the question because at present it is impossible to give definite judgment on the size of the future pensions. With this in mind the applicant in Case 23/69 abandoned this method of calculation originally adopted by her, and declared that the damages were for the time unquantifiable. However, I think it equally out of the question to adopt the method suggested by the French applicants and allow them three years' salary as compensation. That is unthinkable if only because the sum would be several times the amount of the difference accumulated over five years calculated above, whereas the applicants cannot possibly claim more than the sum referred to in the information given in the spring of 1968. In the circumstances I can see no solution other than that of simply declaring that the Commission is liable in principle and of reserving the question of compensation for the future. According to the different circumstances there could be, for instance, a certain decrease in the reduction coefficient, or the time for payment of the unreduced pension to begin could be brought forward by a certain amount of time. This kind of solution would seem permissible in the context of the freedom of assessment of damages enjoyed by courts in claims for damages. It is also possible that once the existence of a wrongful act or omission on the part of administration has been established the problem may find a satisfactory solution by administrative means, thus enabling all parties to avoid having in the future to continue the proceedings before the Court.