3.

I shall therefore examine, firstly, whether the argument of the defendant that Regulation No 2530/72 of the Council could not apply to officials who, at the time of presenting their request, were on leave on personal grounds, is correct. Article 2 of the Regulation, in authorizing the Institutions of the Communities to adopt in respect of their officials measures terminating their service, refers to Article 47 of the Staff Regulations, which sets out the different causes of termination of service. The defendant sees in this general reference to Article 47 a reference to the specific case, included among those envisaged under this Article, of retirement in the interests of the service, which applies solely to officials who actually hold a post, and thus not to officials on leave. Regulation No 2530/72 establishes, however, an entirely special set of rules for retirement which had to be applied to a great number of officials in order to meet exceptional and temporary requirements. The argument taken from the terms of Article 2 of the Regulation and based on its reference to Article 47 of the Staff Regulations does not have the significance which the defendant seeks to give it. The Regulation governing the scheme of retirement in the interests of the service is not only special, but also complete, and there was therefore no need for these measures to fall within the normal rules under the Staff Regulations. The reference to Article 47, which is made in general terms, serves simply to particularize the expression termination of service by equating it, as regards its effects on the employment relationship, with that already provided for in the Staff Regulations. This reference does not therefore imply a reference to the conditions prescribed by the Staff Regulations for the application of Article 47 in respect of retirement in the interests of the service. In view of the fundamental objective of the special temporary scheme established by the Council Regulation for the purpose of satisfying, in the most suitable manner, the ‘requirements resulting from the accession to the European Communities of new Member States’, namely the need to vacate a certain number of posts conveniently distributed between the various grades and services for nationals of the new Member States, the defendant feels justified in inferring from this that the scheme is inapplicable to officials on leave since their termination of service would not anyway have had the effect of vacating a permanent post and, therefore, would not have been such as to meet the requirements for which the Regulation was adopted. On the other hand, it does not seem that one is forced to admit, in absolute terms, that the application of the scheme of termination of service to an official who is on leave can never be consistent with the purpose of the Regulation. While it is indeed true that an official on leave does not actually occupy a post, it is also true that he is entitled to occupy the first vacant post which corresponds to his grade and his training. It is also necessary to bear in mind the fact that, although Regulation No 2530/72 could not be applied after 30 June, nevertheless the Institutions were not obliged to allot all the posts which fell vacant through terminations of service by the same date. One can therefore imagine that if a period of leave expired shortly after 30 June 1973, the official in question would have been entitled, on request, to occupy one of the posts made available even by application of the above Regulation, thereby frustrating the objective for which the vacancy was created. In such a case, the application to the official of Regulation No 2530/72 would not have appeared incompatible with the objectives sought by this Regulation. Nevertheless, even though one can conceive of particular cases where the application of the Regulation even to officials on leave could have been compatible with its objectives, it is certain that, as a general rule, the Regulation was intended to be applied to officials occupying a permanent post. Within the sphere of discretion conferred on it by the Regulation, the Commission was therefore free to adopt the general criterion, which it had determined in the session of 13 February 1973, whereby the Regulation was not to apply to officials on leave. By this decision, the Commission in particular defined the framework in which its departments were to examine requests submitted by those concerned. If, accordingly, the argument now advanced by the defendant, based on a narrow interpretation of Regulation No 2530/72, may appear to be too strict, nevertheless, there was nothing to prevent the Commission from limiting its sphere of discretion in the application of this Regulation in accordance with practical requirements relating to the interests of the service. As, in fact, I have already pointed, out, this Regulation did not confer on officials individually (with the exception of those who had attained 60 years of age) any right to benefit from a measure for termination of service. It conferred, instead, a very wide discretion on the administration in selecting the officials to whom this measure was to apply. Even the duty placed on the institution to take into account in priority ( 2 ) the requests of officials that the provision for termination of service be applied to them was expressly stated to be subject to the interests of the service. The possibility that in respect of its staff the administration may limit the discretionary power which it holds is not, moreover, unknown in domestic law.