JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

26 May 1998

Case T-205/96

Roland Bieber

v

European Parliament

‛Officials — Belated reinstatement — Liability — Damage’

Full text in French II-723

Application for:

first, annulment of the implied decision rejecting the applicant's request of 18 October 1995 to be reinstated following the conclusion of his period of leave on personal grounds and compensation for the damage allegedly resulting from his non-reinstatement and, second, compensation for the damage allegedly caused by the delay in his reinstatement.

Decision:

Annulment of the implied decision rejecting the applicant's request. Order that the Parliament pay damages.

Abstract of the Judgment

The applicant, who entered the service of the European Parliament in 1971 and was appointed head of division in Grade A 3 in 1981 and counsellor in the Legal Service in 1986, was granted leave on personal grounds (leave) from 15 November 1991 to 15 July 1992. This leave was subsequently extended to 15 November 1994.

The applicant received no offer of reinstatement upon expiry of his leave and on 18 October 1995 he submitted a request pursuant to Article 90(1) of the Staff Regulations of Officials of the European Communities (Staff Regulations) to be reinstated and for compensation for the damage resulting from his non-reinstatement.

By letter of 7 December 1995 the Secretary-General of the Parliament informed the applicant that he intended to reinstate him to the post of head of division responsible for the secretariat of the Committee for Institutional Affairs, subject to certain conditions. Following an interview between the Secretary-General and the applicant on 13 December 1995 it was decided not to proceed with that plan.

By letter of 21 February 1996 the Secretary-General proposed, by way of first offer, that the applicant be reinstated to a post of Adviser in Grade A3. On 8 March 1996 the applicant accepted the post and requested that the detailed arrangements relating to his return to duty and, in particular, the date on which he was to take up his post should be determined by common agreement. The date was determined as 1 June 1996.

On 10 May 1996 the applicant submitted a complaint against the implied rejection of his claim for compensation of 18 October 1995; on 13 September 1996 he was informed by the President of the Parliament that his claim had been rejected.

On 9 October 1996 the applicant submitted a request for release and stated that he wished to terminate his service on 1 February 1997. He subsequently applied for early retirement as provided for in Article 52 of the Staff Regulations.

The claims seeking annulment

It follows from the wording of Article 40(4)(d) of the Staff Regulations that the obligation on the administration to reinstate an official on the expiry of his leave is subject to no condition other than that of a vacant post for which the official satisfies the requirements.

Apart, therefore, from a vacant post and the fulfilment of the requirements for that post by the person concerned, reinstatement does not depend an any additional condition such as an indication of interest on the part of the official concerned or whether he works or not during his leave. Consequently, the discretion of the authorities concerned with reinstatement relates only to the assessment of the actual abilities of the official eligible for reinstatement, which must be effected with reference to the posts which he is capable of holding, and does not extend to the advisability of reinstating him. That rule, moreover, is expressly referred to by the Secretary-General of the Parliament in a memorandum of 1 March 1987 in which he points out that reinstatement takes priority over any other method of filling a post, provided that the official to be reinstated satisfies the requirements of the post in question (paragraphs 36 and 37).

See: T-48/90 Giordani v Commission [1993] ECR II-721, para. 50

In meeting its obligation to reinstate the official concerned to the first appropriate vacant post, the appointing authority can only take the official's wishes into account where that post must be held in a place of employment other than that in which the official was employed before being granted leave (paragraph 38).

See: T-19/97 Richter v Commission [1997] ECRSC II-1019, paras 51 to 54

Even supposing that in the present case the Parliament had doubts as to the applicant's genuine intention of being reinstated, it was none the less required to offer him a post for which he satisfied the requirements on the first occasion on which such a post became vacant. If the applicant did not wish to be reinstated he was entitled to refuse that post. Should he refuse a second time he might be required to resign. It follows that the failure to offer the applicant the post in question constitutes an infringement of Article 40(4) (d) of the Staff Regulations and that the contested decision must therefore be annulled (paragraphs 39 and 43).

Claims for compensation

Non-contractual liability on the part of the Community supposes that the applicant proves the illegality of the allegedly wrongful act committed by the Community institution, the actual damage suffered and the existence of a causal link between the act and the damage which is alleged to have been suffered (paragraph 48).

See: T-3/92 Latham B Commission [1994] ECRSC II-83, para. 63; T-589/93 Ryan-Sheridan v EFILWC [1996] ECRSC II-77, para. 141

The Parliament committed an illegality by not reinstating the applicant in the first vacant post corresponding to his abilities. Such an illegality constitutes a fault causing the applicant damage in respect of which he is entitled to claim compensation.

The compensation payable to an official for loss of income resulting from his belated reinstatement is in principle equal to the net remuneration to which he would have been entitled less the net income received in respect of other employment during the same period. The starting point of the period to be taken into account for the purpose of calculating the compensation is the date on which the first post whose requirements he satisfied became vacant, not the date on which he wished to be reinstated. The end of the period to be taken into account corresponds to the date on which the applicant accepted the post offered, not the date on which he actually resumed his duties, since in the present case the loss of income which the applicant suffered between the latter two dates is attributable to his agreement to defer resuming his duties until the later date (paragraphs 50, 52, 57 and 63).

See: 785/79 Pizziolo v Commission [1983] ECR 1343, para. 12; 58/75 Sergy v Commission [1976] ECR 1139, para. 40

The evaluation of the harm suffered by the applicant must take account of the automatic promotion in step within his grade to which he would have been entitled and the pension rights which would have been accorded to him had he been reinstated in the first vacant post whose requirements he satisfied.

As regards interest, on account for delay, since the applicant has neither claimed nor shown that he suffered financial loss in the form of interest on borrowings as a result of the belated payment, the harm caused by the delay is equivalent to the failure to benefit represented by the income he would have received from investing the amounts payable had they been made available to him immediately upon becoming payable.

Since only actual and certain loss can found a claim for compensation, it is necessary, for the purpose of evaluating that failure to benefit, to refer to an investment on which the financial return is virtually certain (paragraphs 66 and 67).

See: T-478/93 Wafer Zoo v Commission [1995] ECR II-1479, para. 49

In that regard, in the exercise of its unlimited jurisdiction under Article 91(1) of the Staff Regulations, the Court considers it necessary to refer to the rate applicable to a blue-chip investment, which corresponds to a rate of 4.5% per annum.

Operative part:

The implied decision rejecting the claim for reinstatement and compensation submitted by the applicant on 18 October 1995 is annulled.

The Parliament is ordered to compensate the applicant for the material damage which he suffered as a result of not being reinstated on 1 January 1995 to Grade A 3, step 6, to the post of Legal Adviser to the Parliament which was the object of Vacancy Notice No 7580 of 5 December 1994.

The amount to be paid to the applicant by way of compensation for his loss of income is equivalent to 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.

That sum will be increased by the amount corresponding to the loss resulting from the absence of automatic advancement in step.

The total amounts defined in paragraphs 3 and 4 above will attract interest at 4.5% per annum from 12 December 1996 until the date on which it is paid to the applicant.

The Parliament is ordered to restore the applicant's pension rights in such a way as to compensate for the difference between the 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.

The amounts due under paragraph 6 above shall attract interest at 4.5% from the date on which they were payable.

To enable the amount of compensation payable to the applicant by the respondent to be determined: (a) the parties will forward to the Court, within three months from delivery of this judgment, their common agreement, first, on the amount of compensation thus payable to the applicant and, second, on the restoration of lus pension rights and the interest payable in respect thereof; (b) failing such agreement, the parties will forward to the Court, within the same period, their detailed claims, stating the precise reasons why they dispute the other party's proposal.