Opinion of Mr Advocate General Cosmas delivered on 23 September 1999. - European Parliament v Roland Bieber. - Appeal - Officials - Leave on personal grounds - Reinstatement - Non-contractual liability of the Community - Determination of the period to be taken into account for calculating the damage suffered. - Case C-284/98 P.



European Court reports 2000 Page I-01527



Opinion of the Advocate-General

I - Introduction

1 In the present case, the Court is asked to rule on an appeal brought by the European Parliament (hereinafter `the Parliament') against the judgment of the Court of First Instance of the European Communities in Case T-205/96 Bieber v European Parliament. (1) In that judgment the Court of First Instance on the one hand annulled the implied decision of the Parliament rejecting Mr Bieber's application for reinstatement and compensation and, on the other hand, required the Parliament to compensate him for the material damage which he had suffered because of the delay in his reinstatement.

II - The factual and procedural framework

2 As is clear from paragraphs 2 to 19 of the contested judgment, Ronald Bieber, the claimant at first instance, had entered the service of the Parliament as an official in 1971, and was appointed head of division in Grade A 3 in 1981 and counsellor in the Legal Service in 1986. He requested and was granted unpaid leave on personal grounds from 15 November 1991 until 15 July 1992, in accordance with Article 40 of the Staff Regulations of the European Communities (hereinafter `the Staff Regulations'). That leave was subsequently extended to 15 November 1994.

3 Since he considered that the Parliament was acting unlawfully in not offering to reinstate him in the service at the end of his leave, Mr Bieber submitted a request on 18 October 1995 pursuant to Article 90(1) of the Staff Regulations to that end. He also requested compensation for the damage resulting from the delay in his reinstatement. By letter of 7 December 1995, the Secretary-General of the Parliament informed Mr Bieber that he proposed to reinstate him in the post of head of division responsible for the Secretariat of the Committee for Institutional Affairs. The Secretary-General made that offer subject to certain conditions. On 13 December 1995, following a discussion between Mr Bieber and the Secretary-General, it was decided not to proceed with that proposal.

4 In a letter of 21 February 1996, the Secretary-General of the Parliament proposed to Mr Bieber, as a first offer, that he be reinstated to a post of Adviser in Grade A 3. On 8 March 1996 Mr Bieber accepted the above post, requesting that the details of the resumption of his duties be determined by common agreement. The date on which Mr Bieber was to take up his duties in that post was determined as 1 June 1996.

5 On 10 May 1996, Mr Bieber submitted a complaint against the implied rejection of his above-mentioned claim of 18 October 1995 regarding reinstatement in the service and compensation. On 13 September 1996 he was informed that his complaint had been rejected.

6 On 9 October 1996, Mr Bieber submitted a request for release, making it clear that he wished to terminate the performance of his duties definitively from 1 February 1997, and applied for early retirement pursuant to Article 52 of the Staff Regulations.

7 On 12 December 1996, Mr Bieber applied to the Court of First Instance, seeking, first, the annulment of the Parliament's decision of 13 September 1996, in which it rejected his application for reinstatement in the service and for compensation for the damage which he suffered as a result of the failure on the part of the administration to offer him a new post at the first opportunity, and, second, that the Parliament be ordered to make good the material damage suffered as a result of his non-reinstatement at the first opportunity.

8 On 26 May 1998, the Court of First Instance delivered judgment as follows: first, it allowed the application for annulment; secondly, it ordered the Parliament to compensate Mr Bieber for the material damage which he suffered as a result of not being reinstated from 1 January 1995 in Grade A 3, step 6, to the post of Legal Adviser to the Parliament; thirdly, it determined that the sum to be paid to Mr Bieber was the difference between the net remuneration which he would have received between 1 January 1995 and 8 March 1996 and the total net income which he received from other employment; fourthly, that sum was to be increased by the amount corresponding to the loss resulting from the absence of automatic advancement in step, and was to attract interest from 12 December 1996 until it was paid to Mr Bieber; fifthly, the Parliament was ordered to restore Mr Bieber's pension rights in such a way as to compensate for the difference between the pension rights to which he would have been entitled if he had been reinstated on 1 January 1995 and those to which he was actually entitled; sixthly, the amounts resulting from the difference in pension rights was to attract interest at 4.5% from the date on which they were payable; lastly, the Parliament was ordered to pay the costs.

9 In its appeal, which was lodged on 24 July 1998, the Parliament asks the Court to: first, set aside the contested judgment or, in the alternative, annul points 2, 3 and 6 of the operative part of that judgment so as to reduce the period in respect of which it is ordered to compensate Mr Bieber to the period from 15 June 1995 to 13 December 1995; secondly, to recognise that the Parliament's contentions at first instance were well founded; thirdly, to rule on costs in accordance with the applicable provisions of the Rules of Procedure. For his part, Mr Bieber, in his pleadings, asks the Court to dismiss the appeal as manifestly inadmissible or, in the alternative, as unfounded, and to order the Parliament to pay all the costs.

III - The relevant Community legislation

10 Article 40(4)(d) of the Staff Regulations 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. If he declines the post offered to him, he shall retain his right to reinstatement when the next vacancy corresponding to his grade occurs in his category or service, subject to the same proviso; if he declines a second time, he may be required to resign after the Joint Committee has been consulted. Until effectively reinstated he shall remain on unpaid leave on personal grounds.'

A - Admissibility of the appeal

11 Mr Bieber submits that the appeal should be dismissed as manifestly inadmissible, either because the Parliament is simply repeating the arguments which it put forward at first instance, or because it is raising questions of fact which are not subject to review on appeal.

12 I believe however that, even if certain arguments in the appeal raise doubts as to their admissibility, the appeal is not inadmissible in its entirety. The first ground of appeal relates to the interpretation of Article 40(1)(d) of the Staff Regulations and raises, at least in part, questions of law which should be examined by the Court. Similarly, the second ground of appeal calls into question certain issues of legal interpretation which must be dealt with by the appellate court.

B - Merits of the appeal

(a) First ground of appeal

13 In this ground of appeal, the Parliament submits that there was no obligation to reinstate Mr Bieber in the service, on account of his conduct.

(i) The appellant's arguments

14 The Parliament submits that the Court of First Instance interpreted and applied the provisions of Article 40(4)(d) of the Staff Regulations wrongly and erroneously. According to the Parliament's line of argument, the Court of First Instance erroneously relied upon a literal interpretation of the provisions in question and concluded that the administration's obligation to reinstate an official whose leave has expired is conditional only on there being a vacant post for which the official in question satisfies the requirements (paragraph 36 of the contested judgment). On the basis of that interpretation, the Court of First Instance decided that the discretion of the relevant authorities on questions of reinstatement related only to the question whether the official satisfied the relevant requirements and did not extend to the advisability of reinstating him; the administration is not entitled to make his reinstatement dependent upon other additional conditions such as an indication of interest on the part of the official concerned or the fact that he is not exercising any other professional activity.

15 The Parliament considers that the reasoning of the Court of First Instance, as set out in paragraphs 36 to 43 of the contested judgment, is contrary to the purpose and the logic of the applicable rule, and inconsistent with the settled case-law of the Court of Justice. In particular, it submits that the Court of First Instance wrongly relies on its judgment in Giordani, (2) whilst at the same time it ignores the conclusions of the Court in Giry. (3) The Parliament maintains that it was not possible to apply the solution reached in Giordani to the dispute in question, because it related to a case in which the facts were fundamentally different from those in the case in point. In addition, in accordance with the judgment in Giry - at least as the Parliament understands it - the administration, when it is dealing with the possible reinstatement of an official who is on leave, is obliged to examine the conduct of that official in order to determine whether he really wishes to be reinstated in the service. If the conduct of the official concerned gives rise to doubts as to his willingness to place himself at the disposal of the service, the latter is not obliged to reinstate him into its ranks.

16 On the basis of the above, the Parliament subsequently seeks to demonstrate that the facts of the case in question are fundamentally similar to those in Giry, which should have led the Court of First Instance to apply the conclusions in that judgment to the case of Mr Bieber. The Parliament sets out the evidence on which it concludes that Mr Bieber's conduct gave rise to serious doubts as to his genuine desire to be reinstated in the service. In particular, it relies on the following evidence which was put forward at first instance: firstly, internal documents of the Parliament, from which it appears that Mr Bieber wanted of his own accord to be assigned to non-active service in accordance with Article 41 of the Staff Regulations; secondly, the evidence of the former Secretary-General and Director of Personnel of the Parliament that Mr Bieber gave the impression that he did not wish to return to the Community institutions but to pursue his university career. The above evidence was not taken into account at first instance and nor was witness evidence ordered; for that reason, the Parliament considers that the Court of First Instance committed a procedural error.

17 Furthermore, the Parliament criticises the Court of First Instance for assessing the facts of the case erroneously and incompletely, not only because it refused to take into account the above evidence, but also because it did not draw the correct conclusions from Mr Bieber's conduct after his reinstatement (maintenance of his status as a university lecturer; his exercising of outside activities without first obtaining leave from the service; conduct which gave the impression that he was performing his duties inadequately; his application to be assigned to non-active service only four months after his reinstatement; and finally, his application to resign definitively and take retirement). According to the Parliament, those factors constitute sufficient evidence of Mr Bieber's lack of a genuine desire to be reinstated in the service and confirm the impression which the Parliament had already been given when he obtained his leave.

18 In view of the above, the Parliament submits that the solution reached by the Court of First Instance in its contested judgment is wrong in law, because it ignores the need to take the public interest into account when an official is reinstated in the service; the public interest is undermined if the administration is obliged to reinstate an official in respect of whom serious doubts exist as to his genuine desire to contribute to the work of the Community institutions. Lastly, the Parliament refers to the general principles of law regarding non-contractual liability and particularly the principle according to which the person who has suffered damage is obliged to take all appropriate measures to mitigate the extent of the damage as much as possible. Consequently, the Court at First Instance was bound to examine the question whether Mr Bieber himself provoked or, by his conduct, contributed to the delay in his reinstatement from which his claim for compensation arises. In other words, the Court of First Instance was not in a position to pass judgment on the existence and extent of non-contractual liability without assessing the conduct of the person claiming compensation. For that reason, the Parliament considers that the contested judgment is wrong in law and should be set aside.

(ii) My opinion on the above arguments

19 I do not believe that it is possible to accept the Parliament's reasoning. It should be noted, first, that the line of argument put forward by the Parliament regarding the assessment of the facts and the examination of evidence in order to ascertain whether or not there were serious doubts as to Mr Bieber's desire or otherwise to be reinstated in the Community administration cannot be examined in the context of an appeal. Such an examination falls exclusively within the jurisdiction of the Court of First Instance. The arguments in question have a place in the appeal only in order to support the ground of appeal according to which the Court of First Instance wrongly interpreted the provisions of Article 40(4)(d) of the Staff Regulations. More particularly, only if it were accepted that the position developed at first instance in paragraphs 36 to 43 of the contested judgment was based upon a false premise of interpretation - because, in the light of the judgment in Giry, the competent Parliament authorities were obliged to evaluate as a whole Mr Bieber's real wish to be reinstated in the Community administration before offering him a vacant post - would the refusal by the Court of First Instance to assess the evidence put forward by the Parliament to show that Mr Bieber was not interested in being reinstated in the service constitute an error in the contested judgment which could lead to its being set aside.

20 I consider that the Court of First Instance did not err in law when it was called upon to interpret the relevant provisions of the Staff Regulations. It follows from the wording of Article 40(4)(d) of those Regulations that the discretion which the administration has when it is called upon to examine the reinstatement of an official who is on leave on personal grounds is limited to examination of the question whether he satisfies the requirements for the first post in his category or service corresponding to his grade which falls vacant immediately after the expiry of his leave. If it is decided that the official in question satisfies the requirements for that post, the administration is obliged to make him the relevant offer, without examining whether that official is really interested in the post. If the official is not disposed to occupy the post offered, he has the right to refuse it in accordance with Article 40(4)(d) of the Staff Regulations.

21 The judgment in Giry, which is referred to by the Parliament, concerned, moreover, an exceptional case, in which an official who complained about his delayed reinstatement, after the expiry of unpaid leave had immediately beforehand requested a measure terminating his service, and had challenged before the Court the Commission's refusal to accede to that request. There was therefore a declared desire on the part of the official, which had been expressed explicitly and in the appropriate form, to leave the service after the expiry of his leave, that is before the question arose of his reinstatement in the Community administration. As the Court rightly decided in Giry (paragraphs 6 to 9), that official's persistence in his request for termination of service was enough to cast doubt on the genuineness of his desire to make himself available to the Commission.

22 It would however be dangerous to accept - as the Parliament requests - that, in the light of the judgment in Giry, Community institutions have discretion to inquire, by an examination of any type of evidence or indication, into the state of mind of their officials who are on leave, in order to judge whether they have the requisite interest in being reinstated in the Community administration. In the arguments which it puts forward, the Parliament appears to consider that any means of proof can be used in order to assess the subjective will of the official. That approach is directly contrary to the principle of due procedure governing the law relating to officials, in particular when an official has to take decisions of considerable importance for the continuation of his career as an official. It is not by chance that Article 48 of the Staff Regulations provides that an official who wishes to resign `shall state unequivocally in writing his intention to leave the service of the institution definitively.' Similarly, an official's wish to be assigned to non-active service pursuant to Article 41 or not to be reinstated in the service after the expiry of leave on personal grounds pursuant to Article 40 could not be deduced from any kind of evidence such as documents drafted by the administration exclusively for internal use or the evidence of his superior. Finally, the Community administration is not obliged to, nor can it, transform itself into an investigative body in order to search out the true wishes of officials who are on leave, taking into account as `sufficient evidence' the fact that an official is carrying out some academic activity during the period of his leave or that it is conjectured that he will ask to leave the service definitively within a short period of time after he is reinstated in it.

23 Furthermore, it is worth pointing out that the Parliament wrongly cites the public interest in order to justify the need to ascertain Mr Bieber's real interest in being reinstated in its ranks as a precondition of his reinstatement. By the wording of Article 40(4)(d) of the Staff Regulations, the Community legislature made it clear that the public interest, which consists in the proper functioning of the Community administration, is sufficiently served by the checks which the administration carries out as to whether an official who may be reinstated satisfies the requirements for the post to be offered to him. If the administration's view is positive in that respect for the official, the harmonious functioning of the Community's administrative mechanism has been assured and is not put at risk by the possibility that the official in question is not interested in filling the post which he has been offered. For that reason, moreover, it was provided that if an official `declines the post offered to him, he shall retain his right to reinstatement when the next vacancy corresponding to his grade occurs in his category or service, subject to the same proviso.' (4) If the Community legislature had thought that an official's unwillingness to take the first post offered to him was likely to obstruct the Community administrative mechanism, it would not have given him the above right to refuse the first offer.

24 Also unfounded is the Parliament's argument that it follows from the general principle of the law of contractual liability, in accordance with which a person who has suffered damage is obliged to take every appropriate measure to limit its extent, that Mr Bieber's conduct as a whole should be examined in order to determine whether he himself provoked or contributed to the delay in his reinstatement, in that he did not express an interest in returning to his duties after the expiry of his leave. I shall return to that question when examining the second ground of appeal. On that point, the following observations suffice: the Court has stated that, in the case of the delayed reinstatement of an official who has previously taken leave on personal grounds, that official is obliged to take any measures necessary to limit the consequences of the delay in question, and that that obligation consists in particular in his duty to seek to make a living by looking for work outside the Community administration. (5) In my opinion it is not possible to argue for such a wide interpretation of that case-law that it imposes indirectly upon an official who is on leave pursuant to Article 40 of the Staff Regulations the need to make clear, on his own initiative, his wish to place himself at the disposal of the administration after the expiry of his leave. The above approach would be tantamount to introducing a new extra legem condition into the application of Article 40(4)(d) of the Staff Regulations, in accordance with which, before the competent Community authorities decided to offer a post to an official whose leave had expired, that official would first be obliged to demonstrate his interest in reinstatement in the service. As has been mentioned before, it clearly follows from the wording of the relevant provisions of the Staff Regulations that, as soon as the first vacant post becomes available which the official in question could fill, the competent authorities are obliged to offer him that post without the official having previously to take a specific step to make clear his willingness to place himself at the disposal of those authorities.

25 Consequently the first ground of appeal is unfounded and should be rejected.

(b) Regarding the second ground of appeal

26 In the second ground of appeal, the Parliament challenges the contested judgment in so far as it relates to the determination of the damage which Mr Bieber claims to have suffered and to the determination of the period for which the Community is obliged to compensate him.

(i) The appellant's arguments

27 The Parliament considers that the Court of First Instance erred in law because it did not take into account or, perhaps, did not correctly apply the fundamental principle by which an individual who suffers the harmful consequences of unlawful conduct by a Community body is obliged to mitigate the damage caused. According to the Parliament's line of argument, the Court of First Instance overlooked the fact that, by his conduct, Mr Bieber contributed to, if he did not provoke, the delay in his reinstatement in the service and therefore he is exclusively responsible or jointly responsible for the damage which he suffered as a result of that delay.

28 Specifically, the Parliament maintains that the Court of First Instance disregarded the following: on the one hand, the official in question had, in his letters of 21 February and 21 March 1995, expressed his preference to be reinstated in the service after 15 June 1995; consequently, even if it were accepted that the Parliament failed to reinstate him at the first opportunity into its ranks, the harmful consequences of that delay could not begin before the date which Mr Bieber had designated as that on which he would resume his service. On the other hand, the Parliament challenges the paragraph in the contested judgment in which it was held that the letter of 7 December 1995 (in which the Secretary-General of the Parliament informed Mr Bieber that he intended to offer him a post as a head of division), did not constitute a first offer of a post within the meaning of Article 40(4)(d) of the Staff Regulations. In that connection the Parliament puts forward four arguments: first, the letter in question of 7 December 1995 contains a clear offer of a specific post; second, it is clear from Mr Bieber's stance that he considered the letter in question to be an offer of a post within the meaning of the Staff Regulations; third, the fact that that offer of 7 December 1995 was later abandoned does not mean, in the Parliament's view, that Mr Bieber could not have accepted it, thereby limiting the duration of the harmful consequences which he suffered as a result of his delayed reinstatement; lastly, the Parliament contends that the Court of First Instance did not properly appreciate its arguments that Mr Bieber's attitude during his meeting with the Secretary-General of the Parliament on 13 December 1995 created the impression that the official had not suffered any damage as a result of his delayed reinstatement in the service.

(ii) My views on the above arguments

29 I would begin by recalling that the Court's review of judgments of the Court of First Instance in which the latter rules upon a claim for compensation based on the non-contractual liability of the Community is limited to the assessment of the legal correctness of the criteria and elements taken into account at first instance to establish and assess non-contractual liability. Any further calling into question of the assessment by the Court of First Instance as regards the method and extent of compensation for the damage relates to the findings of fact and falls outside the scope of review by the Court on appeal. (6) Moreover, `the Court of Justice has no more jurisdiction, on principle, to examine the evidence which the Court of First Instance accepted in support of those facts than to find the facts themselves. Since the evidence was duly obtained and the rules and general principles of law relating to the burden of proof were observed, as also were the rules of procedure in relation to the taking of evidence, it is for the Court of First Instance alone to assess the value which should be attached to the items of evidence produced to it.' (7)

30 As regards the case before the Court, it is clear from paragraphs 48 et seq. of the contested judgment that the Court of First Instance correctly defined the conditions for the recognition of the Community's non-contractual liability and correctly applied those criteria to the factual circumstances of the case before it. The Parliament puts forward the unfounded complaint that when the Court of First Instance defined the legal framework within which Mr Bieber's claim for compensation would be judged, it did not take into account, as it was obliged to do, the conclusions of the Court in the judgment in Giry, cited above. In accordance with that judgment, (8) when there is a question of compensating an official for delayed reinstatement following the expiry of his leave, it is important to examine whether the behaviour of the applicant for compensation contributed to the damage which he claims to have suffered. However, as has been stated above, (9) the solution which the Court reached in Giry concerned an exceptional case, in which the applicant for compensation had duly applied for definitive termination of his duties when the question arose of his reinstatement in the service; it was not possible to apply that solution to Mr Bieber's situation and the Court of First Instance rightly did not accept the arguments put forward by the Parliament that the official in question had, by his conduct, contributed to creation or extension of the harmful situation in respect of which he claimed compensation. The Court of First Instance did not ignore the fact - as the Parliament appears to imply - that in exceptional circumstances, such as those in the case of Giry, the conduct of the person claiming compensation carries weight in law as an element in the determination of the extent of the non-contractual liability of the Community. As the court solely competent to make an objective assessment of the factual circumstances, it held, however, that the Parliament's arguments relating to Mr Bieber's attitude when his leave expired were not capable of exonerating the Community of its civil liability or even of limiting the period material to the determination of compensation. In other words, the Court of First Instance did not commit any error of law.

31 Furthermore, I consider that the particular arguments put forward by the Parliament, relating to the material period of time in respect of which an obligation to compensate for damage exists, in part fall outside the scope of review in an appeal since they relate to the findings of fact.

32 As regards the point in time from which that period begins, evaluation of the contents of the letters of 21 February and 21 March 1995 from Mr Bieber to the Parliament is a purely factual question for the Court of First Instance alone to assess.

33 In addition, the Parliament's arguments relating to the determination of the point in time at which the administration's harmful conduct ended are not admissible in their entirety. The Parliament takes issue with the paragraphs in the contested judgment in which it was held that the letter which was sent by the Secretary-General of the Parliament on 7 December 1995 to Mr Bieber did not constitute a first offer of a post within the meaning of the Staff Regulations.

34 What should be considered an offer of a post in accordance with Article 40(4)(d) of the Staff Regulations is in fact a question of law which is subject to appellate review. On that point, it should be noted that the Court of First Instance, in paragraph 59 et seq. of the contested judgment, rightly accepted that it is not possible to regard as an `offer', fulfilling the conditions of the Staff Regulations, a vague declaration of intent by the public authority to give the person concerned a post, particularly when the offer in question is not free from terms and conditions.

35 Consequently, since the Court of First Instance correctly determined the criteria for interpretation when examining whether, on 7 December 1995, Mr Bieber had been offered a post in accordance with the provisions of the Staff Regulations, the contested judgment is correct from a legal point of view. The findings of fact of the Court of First Instance regarding the clarity of the letter of 7 December 1995, and the weight to be attributed to the other factual arguments put forward by the Parliament at first instance, are questions which may not be reviewed on appeal, and the arguments relating to them are inadmissible and must be dismissed.

36 Consequently, the second ground of appeal should also be dismissed in its entirety, partly because it is inadmissible, and partly because it is unfounded.

IV - Conclusion

37 In view of the foregoing, I would propose that the Court:

(1) dismiss this appeal in its entirety;

(2) order the appellant to pay the costs.

(1) - [1998] ECR II-723.

(2) - Case T-48/90 Giordani v Commission [1993] ECR II-721.

(3) - Case 126/75 Giry v Commission [1977] ECR 1937.

(4) - Article 40(4)(d) of the Staff Regulations.

(5) - Case 785/79 Pizziolo v Commission [1983] ECR 1343.

(6) - C-259/96 P Council v Nil [1998] ECR I-2915, paragraphs 25 and 32.

(7) - Case C-136/92 P Commission v Brazzelli Lualdi [1994] ECR I-1981, paragraph 66.

(8) - See, in particular, paragraph 19 et seq. of Case 126/75 Giry, cited in footnote 3.

(9) - See above, points 21 et seq.