2.

In letters of 14 June 1970 and 13 December 1971, the applicant had requested to be reinstated in employment pursuant to Article 40 of the Staff Regulations. The Commission rejected both requests on the ground that the research budget approved by the Council had removed any real possibility of reinstating scientific staff at the end of a period of leave on personal grounds. The Commission pointed out that there were a number of scientific officers on the staff who were to all intents and purposes supernumerary and who must, if an appointment had to be made to a vacancy in the scientific section, be recognized as having priority over officials such as Mr Geerlings, who were not at that time in the service. The applicant contends that this rejection cannot be justified in view of the right conferred by Article 40 (4) (d) on an official of being, on expiry of his leave, reinstated in the first post corresponding to his grade which falls vacant in his category or service. The applicant contends that as, moreover, the post he previously occupied has never been filled and as it still appears in the staff complements table, the Commission had no right to refuse to restore him to active employment. The object of the application for annulment is, however, not the refusal of reinstatement but the Commission's rejection, by letter of 10 December 1973, of the applicant's request to be allowed to take advantage of a measure terminating his service pursuant to Article 2 of Regulation No 1543/73 of the Council, and of the special financial benefits associated therewith; the applicant's claim for a direct order to the Commission to apply Regulation No 1543/73 to him must be re-cast in that sense. The regulation introduced special measures temporarily applicable to officials of the European Communities paid from research and investments funds ‘in order to deal with exceptional problems arising from the adoption of research programmes involving a reduction in the number of posts provided in the plan of staff’ paid for out of such funds, to enable “officials affected by such measures to overcome the serious financial difficulties resulting from loss of employment”. This regulation does not therefore have the same purpose as that, of Regulation No 2530/72 which, as we saw in a previous case (Giry v Commission, 1/74), was designed to make room for nationals of the new Member States by encouraging the vacation of posts occupied by officials paid out of credits under Title 1 of the section of the budget relating to the Commission. Regulation No 1543/73, on which the applicant relies, was basically intended to be applied to officials who became supernumerary. If the applicant had remained in employment, he would probably have been able to take advantage of it but, as he was on leave, the Commission objected that it could not apply the regulation to him, an attitude which, as we have already seen, the institution took up in respect of Regulation No 2530/72. Though, in its judgment of 21 November 1974 in Giry, this Chamber decided that Regulation No 2530/72 was in principle intended to apply to officials who actually held a post at the material time, it did not completely rule out the possibility that it might apply to officials on leave on personal grounds. The Advocate-General expressed the same view. In the present case, however, which deals with a different regulation, the same Advocate-General is unable to regard it as applicable, even in exceptional cases, to officials who do not actually occupy a post. One could, though not as a general rule, envisage the possibility that, because they would have been entitled to be reinstated in a post which was available and actually due to be filled, officials on leave could also take advantage of Regulation No 2530/72 in view of the fact that, in such circumstances, the post could not have been reserved for an official from one of the new Member States. Because, however, the regulation with which we are now dealing was essentially concerned with a different objective, viz. a reduction in the number of supernumerary posts, it could not conceivably have been applied to an official who was not actually filling one of the posts which were due to be abolished. It is, of course, conceivable that, in the case of a post intended for another official, an official on leave has a prior right to it and that it may therefore be consistent with its objects to apply Regulation No 2530/72 to that official in such a way that the post is assigned differently; in the present case, however, we are concerned with a regulation designed not to enable a different appointment to be made but to ensure the definite abolition of the posts which the regulation helps to make vacant, and the possibility that an official on leave might have the right to occupy one of the posts involved cannot even arise. Nor, therefore, would there be any justification for allowing an official who had left his Community post sometime previously to continue his career elsewhere to avail himself of the advantages of Regulation No 1543/73 which, to enable them to “overcome the serious financial difficulties resulting from loss of employment” were provided exclusively for the benefit of officials who lose their present employment as a result of reduction in the number of posts in the staff plan. Against this background, there is no need for me to go over the various considerations which I referred to in the Giry case relating to the use made by the Commission of the power generally to limit the scope of the special rules on voluntary resignation in the interests, as it saw them, of the service; in the context of Regulation No 2530/72, these considerations justify the non-application of these special legislative provisions to officials who, at the time they submitted application for termination of their employment, no longer occupied a post.