2.

In a second, alternative, head of conclusions the applicant requests you to order the Commission to pay him damages in the form, moreover, following the judgment in Case 23/69 ([1970] ECR 547), of the award of a full pension as from the age of 55 years. (a) This claim also calls for a preliminary examination of certain questions of admissibility which, according to the Commission, arise first in relation to the question of the observance of the time-limit for lodging the appeal and, secondly, out of the conclusion which I have just reached that the application for annulment is inadmissible. (aa) As regards the period for bringing the appeal the Commission considers that a claim for damages may be seen in the letter sent by Mr Heinemann on 6 January 1971 to the Director-General for Personnel and Administration. It maintains that as no reply was given to this letter the claim contained therein must be deemed to have been rejected by implication on 6 March 1971. It concludes therefrom that the applicant should have brought proceedings against this rejection within a period of two months, that is, before 6 May 1971, and not, as was the case, only on 25 August 1971. It is true that this reasoning appears attractive. In the final analysis, however, I doubt whether it is possible to go along with the Commission on this point. If we examine the letter of 6 January 1971, which was sent to the Director-General for Personnel and Administration and not to the Commission, we find that it merely states that in the meantime the Court had ‘given judgments which appear to enable the examination of the applicant's case’ to be concluded. Mr Heinemann continued by saying that he would be obliged if the administration would some to a decision on his case quickly. The letter thus contained no reference to Article 90 of the Staff Regulations. Another reason for concluding that the question was not formally referred to the Commission is that the applicant did not let it be known that he would institute legal proceedings if necessary. In the light of the foregoing and taking into account the fact that the letter in question was the work of a person who was not versed in legal matters, it would be unduly severe to conclude that this letter caused time to begin to run, so as to prevent the applicant from instituting proceedings at a later date. (bb) On the other hand, a second objection raised by the Commission gives rise to more delicate problems. It argues that according to the case-law it is not permitted to seek to attain, by means of a claim for damages, an objective the pursuit of which is no longer possible by means of an action for annulment because of failure to comply with the relevant time-limit. The Commission maintains that the present case discloses just such an impermissible circumvention of the action for annulment, since in the alternative head of the conclusions a claim is being pursued (for a full pension as from the age of 55 years) which, by reason of the expiry of the prescribed period, can no longer form the subject of a direct appeal against the notice of settlement of 13 January 1969. However, if the facts are considered more closely, it can be seen that this objection is also invalid. The judgment in Case 59/65 (judgment of 15 December 1966, Schreckenberg v Commission of the EAEC, [1966] ECR 543), cited in support of its argument by the Commission, in fact concerned a case in which, having failed to seek the annulment of an allegedly unlawful measure, the official concerned nevertheless sought compensation for the loss caused by that very measure. It could therefore be said in that case that the official concerned was seeking to avoid the inadmissibility of the application for annulment, since the application founded on the liability of the administration referred to ‘the same unlawful measure’. This is not the situation in the present case. In order to justify the claim for damages in this case it is unnecessary to plead the illegality of the uncontested notice of settlement. The legality of the notice may even be assumed. In fact the alleged damage does not result from this notice, but rather (as in Case 23/69) from the delay in correcting the wrong information which prompted the applicant to leave the service, that is, from factors which were in existence in April 1968 or until the decision to terminate his service was adopted in June 1968. The impression that the claim constitutes an attempt to avoid an application for annulment is due solely to the fact that, in its judgment in Case 23/69, the First Chamber assessed the compensation in such a way as to be on all fours with a certain conceivable outcome of a judgment in favour of the applicant on an application for annulment. Had my proposals concerning the assessment of the damage been adopted at that time, this false impression could not have arisen. I therefore consider that the principles established in the judgment in Case 59/65 ([ECR 543) do not, as regards the failure to seek the annulment of the notice of settlement of 13 January 1969, lead to the inescapable conclusion that the application founded on the liability of the administration is inadmissible. This being so, I also consider it unnecessary to go further into the debate which has arisen between the parties over the principles of Article 839 of the German Civil Code and with the question what features of that article might be of value for the purposes of Community law. (b) As regards the substance of the claim for damages, which, as I have said, is modelled on that contained in Case 23/69 and seeks the award of a full pension as from the age of 55 years, it seems clear that the further course of my examination is clearly prescribed by that case. Two factors were established by that decision. First, the existence of a wrongful act or omission, since it was expressly declared in the other proceedings that the Commission was guilty of a wrongful act or omission by failing to correct in good time the wrong information concerning pension rights which was communicated in April 1968. Secondly, the existence of damage; as in Case 23/69 it must be acknowledged that the applicant in this case suffers damage as a result of the termination of his service and the fact that between the ages of 55 and 60 the rules in force only allow him a reduced pension. The only problem which must be examined is that of the causal link, that is, the question whether the wrong information played a decisive role when the applicant was considering whether he should seek the voluntary termination of his service. In other words it is necessary to consider whether or not, with knowledge of the legal position, the applicant would have decided not to submit this request or to withdraw it. As I have already pointed out in earlier cases, it is very difficult to answer subjective questions of this kind. It is, moreover, for this reason that the First Chamber was not content with the circumstantial evidence put forward by the parties in the present case in support of their arguments but ordered a witness to be heard in order to obtain clarification in this way of the applicant's real motives. However, before considering the outcome of this measure of inquiry, I would like briefly to consider the circumstantial evidence pur forward by the parties in order to see what may be learned from this. The Commission attributes great weight to three elements in particular. First, the fact that, unlike the applicant in Case 23/69, Mr Heinemann did not immediately seek his reinstatement into the departments of the Commission on learning that this institutional had changed its opinion as to his pension rights. Secondly, the relative youth of the applicant who was only 50 years old when he terminated his service. Finally, the undisputed fact that the applicant wished to return to his calling as an architect which his duties at the Commission did not allow him to pursue satisfactorily, and that the favourable terms for departure offered by Regulation No 259/68 provided him with a good opportunity to fulfil this wish. When we consider, therefore, whether in fact, as the Commission believes, these factors yield a sufficiently strong persumption that the applicant would have submitted his request even if he had been aware of the corrected information concerning his rights and that the wrong information originally provided therefore played no decisive role in his decision, we must take the following matters into consideration. It is true that, unlike other officials, the applicant did not seek reinstatement into the Commission departments either in December 1968 or when he received the notice of settlement. However, it is also true that in the judgments delivered in similar cases this was regarded only as one of the factors for evaluation and not as of decisive importance. Moreover, it must be observed that the applicant, who appears to be unversed in legal matters, could have believed that after the final termination of his service there could be no question of simply seeking reinstatement. However that may be, the fact remains that on 6 February 1969 he stated that the corrected information constituted a ‘fundamental modification of the terms of departure’ and that the conditions which had led him to terminate his service prematurely were no longer satisfied. It seems clear that subsequently, during the first months of 1969 (as emerges from the hearing of the witness) and at the beginning of 1970, he inquired about the possibilities of reinstatement into the departments of the Commission. As regard the age of the applicant when he left the service, I have myself pointed out in my opinion on problems similar to those, in the present case, that this is a very important factor. On the other hand it is clear that it cannot be considered in isolation. In the applicant's case it is particularly necessary to take his family situation into account and the fact that he must provided for several children who, when he is 55 years old, will be aged between 18 and 22, and one will be only 13. In these circumstances, it may be accepted that he regarded as of decisive importance the prospect of receiving a full pension from the age of 55 which would enable him to continue to provide for the further education of his children. Finally, as regards the applicant's wish to return to return to his profession as an architect, it whould be said that he himself admits that this was an important factor in encouraging him to seek the voluntary termination of his service. However, we must not lose sight of the fact that the applicant's plans involved certain risks, since he intended to carry them out in a foreign country, which involved difficulties as regards obtaining a licence to practise and, subsequently, as regards establishing himself. Thus, from this point of view also it is reasonable to believe that the applicant attached decisive importance to the propect of benefiting from the guarantees offered by Community law in order to reduce as far as possible (particularly in the interests of his family) the risks inherent in this change in his employment situation, in other words, that he regarded the prospect of receiving a full pension from the age of 55 as of decisive significance. Whilst the applicant's argument is therefore not weakened by the circumstantial evidence which I have just considered (and, furthermore, it may be said in his favour that he never opted for the severance grant), it is the hearing of the witness which was ordered by the First Chamber which has made it possible to be sure of his motives in applying to terminate his service. The witness, who had been the applicant's immediate superior, informed us on that occasion that, as a result of his numerous contacts with the applicant before he submitted the application for early termination of service, he was aware of all the factors involved in his decision. The witness was able to inform us that the applicant regarded his family situation as the most important consideration, that the problem of the children formed the basis of all considerations and that, in his mind, these factors were linked to the award of a pension from the age of 55. According to the witness the applicant's wish to return to his profession as an architect was a substantial aconsideration solely because he believed he could count on receiving a full pension as from the age of 55. I consider it particularly important that, in answer to the specific question which I put to him, the witness stated that the applicant would not have submitted his request if he had been aware that he would not receive a full pension as from the age of 55. As a result, and in the light of the precise and detailed evidence given by the witness, the only conclusion to be drawn is that even thought at the relevant time, that is, before the Commission modified its legal point of view, there had been no discussion, supported by accurate figures which covered precisely the alternative: a pension as from the age of 55 or as from the age of 60 years, the witness considered that the wrong information on the settlement of pension rights was manifestly a decisive factor in the applicant's thinking which led him to seek the voluntary termination of his service. Furthermore, as the Commission has cast no doubt on the credibility of the witness, who is a Head of Division in its service, it would appear that the question of causality can only be answered in the sense advocated by the applicant. This means, however, that there is no obstacle to allowing the claim, as in Case 23/69, for damages in the form of a full pension as from the date when the applicant attains the age of 55 years. At the same time this conclusion renders it unnecessary to deal with the applicant's other arguments, that is, to consider whether he would be entitled, in the alternative, to claim to be reinstated into the departments of the Commission, to decide what view to take of his argument that request to leave the service ought to be annulled on the ground that it was made as the result of a mistake and to consider the complaint that, at the least, the conduct of the Commission after 13 January 1969, which misled him into instituting legal proceedings, constitutes a wrongful act or omission.