Judgment of the Court (First Chamber) of 9 July 1970. - Fulvio Tortora v Commission of the European Communities. - Case 32-69.



European Court reports 1970 Page 00593

Danish special edition Page 00099

Greek special edition Page 00387

Portuguese special edition Page 00431



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

++++

1 . OFFICIALS - LEAVE - POWERS OF ORGANIZATION OF THE ADMINISTRATION - HARMONIZATION OF THE INTERESTS OF OFFICIALS WITH ADMINISTRATIVE REQUIREMENTS

( STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES, ARTICLE 57 )

2 . OFFICIALS - TERMINATION OF SERVICE - ANNUAL LEAVE NOT USED UP - COMPENSATORY PAYMENT - GRANT ONLY IN CASES JUSTIFIED BY THE EXIGENCIES OF THE SERVICE

( STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES, ANNEX V, ARTICLE 4 )

Summary

1 . IN DEALING WITH LEAVE, AN INSTITUTION HAS POWERS OF ORGANIZATION ENABLING IT, IN EACH PARTICULAR CASE, TO HARMONIZE THE LEGITIMATE INTERESTS OF THE OFFICIAL WITH THE REQUIREMENTS OF EFFECTIVE FUNCTIONING OF ITS ACTIVITIES AND OF SOUND ADMINISTRATION . WITH PARTICULAR REGARD TO THIS HARMONIZATION, THE INSTITUTION HAS THE RIGHT TO ENSURE THAT AN OFFICIAL WHOSE SERVICE IS BEING TERMINATED USES UP HIS ANNUAL LEAVE BEFORE HIS DEPARTURE .

2 . AN OFFICIAL IS ONLY ENTITLED TO THE COMPENSATION SET OUT IN THE SECOND PARAGRAPH OF ARTICLE 4 OF ANNEX V TO THE STAFF REGULATIONS IN SO FAR AS THE EXIGENCIES OF THE SERVICE HAVE PREVENTED HIM FROM USING UP ALL HIS ANNUAL LEAVE BEFORE HE LEAVES THE SERVICE .

Parties

IN CASE 32/69

FULVIO TORTORA, A FORMER OFFICIAL OF THE EUROPEAN COAL AND STEEL COMMUNITY, RESIDING AT 22, VIA BADIA SAN SALVATORE, ROME, REPRESENTED AND ASSISTED BY GASTON VOGEL, ADVOCATE OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ROBERT KRIEPS, 12 AVENUE MARIE-THERESE, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, LOUIS DE LA FONTAINE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF EMILE REUTER, LEGAL ADVISER TO THE COMMISSION, 4 BOULEVARD ROYAL, DEFENDANT,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE COMMISSION OF 30 APRIL 1969 REFUSING THE APPLICANT COMPENSATION FOR THE ANNUAL LEAVE NOT USED UP WHEN HE LEFT THE SERVICE,

Grounds

1 BY AN APPLICATION LODGED ON 22 JULY 1969, THE APPLICANT HAS ASKED THE COURT TO ANNUL THE DECISION OF 30 APRIL 1969 WHICH DENIED HIM COMPENSATION FOR LEAVE WHICH HE HAD NOT USED UP AND TO ORDER THE COMMISSION TO PAY HIM THIS COMPENSATION FOR 67 DAYS' LEAVE WHICH HE HAD NOT USED UP .

2 UNDER THE TERMS OF THE SECOND PARAGRAPH OF ARTICLE 4 OF ANNEX V TO THE STAFF REGULATIONS " WHERE AN OFFICIAL AT THE TIME OF LEAVING THE SERVICE HAS NOT USED UP ALL HIS ANNUAL LEAVE, HE SHALL BE PAID COMPENSATION EQUAL TO ONE-THIRTIETH OF HIS MONTHLY REMUNERATION AT THE TIME OF LEAVING THE SERVICE FOR EACH DAY' S LEAVE DUE TO HIM ".

3 THE APPLICANT WAS PREVIOUSLY ATTACHED TO THE PRIVATE OFFICE OF MR DEL BO AND AFTER HE RESIGNED AS PRESIDENT OF THE HIGH AUTHORITY ON 5 MARCH 1967, THE APPLICANT WAS RESPONSIBLE FOR THE WINDING UP OF THE WORK OF THE PRIVATE OFFICE .

4 FOLLOWING THE ENTRY INTO FORCE OF THE TREATY OF 8 APRIL 1965 SETTING UP A SINGLE COUNCIL AND A SINGLE COMMISSION OF THE EUROPEAN COMMUNITIES THE CLOSING DOWN OF ALL THE PRIVATE OFFICES OF THE FORMER HIGH AUTHORITY WAS DECIDED UPON; HOWEVER BY A DECISION OF 4 JULY 1967 THE STAFF WAS RETAINED AT THE DISPOSAL OF THE FORMER MEMBERS UNTIL 31 JULY 1967 .

5 ON 1 AUGUST 1967 THE APPLICANT WAS RE-ASSIGNED TO HIS POST OF PRINCIPAL ADMINISTRATOR IN THE DIRECTORATE OF INSPECTION .

6 IN APRIL 1968 HE ASKED FOR MEASURES TO BE TAKEN TO TERMINATE HIS SERVICE AS PROVIDED BY REGULATION NO 259/68 OF THE COUNCIL, HIS REQUEST BEING GRANTED WITH EFFECT FROM 1 OCTOBER 1968 .

7 ON 21 JUNE 1968, FOLLOWING THE ABOVEMENTIONED REQUEST, THE COMMISSION REQUESTED HIM TO TAKE THE LEAVE TO WHICH HE WAS STILL ENTITLED, BEFORE 1 OCTOBER 1968 .

8 NEVERTHELESS THE APPLICANT MAINTAINS THAT HE REMAINED ENGAGED IN WINDING UP THE WORK OF THE PRIVATE OFFICE OF PRESIDENT DEL BO UNTIL 30 SEPTEMBER 1968 AND THAT THIS HAD PREVENTED HIM FROM TAKING THE LEAVE IN QUESTION .

9 HE THUS CLAIMS THAT THE REFUSAL OF THE COMMISSION TO PAY HIM COMPENSATION FOR THE LEAVE WHICH HAD NOT BEEN USED UP ON THAT DATE UNLAWFULLY DEPRIVES HIM OF THE BENEFIT OF THE SECOND PARAGRAPH OF THE SAID ARTICLE 4 .

10 SINCE UNDER THE FIRST PARAGRAPH OF ARTICLE 57 OF THE STAFF REGULATIONS, AN INSTITUTION IS OBLIGED TO GUARANTEE EVERY OFFICIAL THE RIGHT TO ANNUAL LEAVE, THIS RIGHT MUST BE EXERCISED WITH DUE REGARD TO THE INTERESTS OF THE SERVICE .

11 IN DEALING WITH LEAVE, THE INSTITUTION HAS POWERS OF ORGANIZATION ENABLING IT, IN EACH PARTICULAR CASE, TO HARMONIZE THE LEGITIMATE INTERESTS OF THE OFFICIAL WITH THE REQUIREMENTS OF EFFECTIVE FUNCTIONING OF ITS ACTIVITIES AND OF SOUND ADMINISTRATION .

12 WITH PARTICULAR REGARD TO THIS HARMONIZATION, THE INSTITUTION HAS THE RIGHT TO ENSURE THAT AN OFFICIAL WHOSE SERVICE IS BEING TERMINATED, USES UP HIS ANNUAL LEAVE BEFORE HIS DEPARTURE .

13 THE FIRST PARAGRAPH OF ARTICLE 4 OF ANNEX V TO THE STAFF REGULATIONS, RELATING TO THE CARRYING FORWARD OF LEAVE NOT USED UP BY AN OFFICIAL WHO IS STILL IN ACTIVE EMPLOYMENT, CONFIRMS BY IMPLICATION THAT FAILURE TO USE UP ANNUAL LEAVE MUST BE REGARDED AS EXCEPTIONAL .

14 CONSEQUENTLY AN OFFICIAL IS ONLY ENTITLED TO THE COMPENSATION SET OUT IN THE SECOND PARAGRAPH OF ARTICLE 4 OF THE SAID ANNEX, IN SO FAR AS THE EXIGENCIES OF THE SERVICE HAVE PREVENTED HIM FROM USING UP ALL HIS ANNUAL LEAVE, BEFORE HE LEAVES THE SERVICE .

15 IT IS CLEAR THAT BY 31 JULY 1967 ALL THE OTHER PRIVATE OFFICES HAD BEEN ABLE TO COMPLETE THE WORK INVOLVED IN THEIR CLOSING DOWN .

16 WHILST THE WINDING UP OF THE WORK OF THE PRIVATE OFFICE OF THE PRESIDENT OF THE HIGH AUTHORITY MAY HAVE TAKEN LONGER THAN IN THE CASE OF THE OTHER PRIVATE OFFICES, THE APPLICANT WAS IN A POSITION TO START ON IT IN MARCH 1967 AT THE TIME WHEN THE PRESIDENT OF THE HIGH AUTHORITY TENDERED HIS RESIGNATION AND THE CLOSING DOWN OF HIS PRIVATE OFFICE WAS ALREADY IN PROSPECT .

17 THE APPLICANT HIMSELF STATES THAT NO SPECIFIC TASK HAD BEEN ENTRUSTED TO HIM IN THE DIRECTORATE TO WHICH HE HAD BEEN RE-ASSIGNED ON 1 AUGUST 1967 AND THAT HE WAS ABLE TO DEVOTE HIMSELF TO WINDING UP THE WORK OF THE PRIVATE OFFICE AS FAR AS WAS NECESSARY .

18 ALL THE SAME HAVING BEEN SUBJECT TO A MEASURE TERMINATING HIS SERVICE IN THE TERMS OF REGULATION NO 259/68 OF THE COUNCIL EFFECTIVE AS FROM 1 OCTOBER 1968 AND FOR WHICH HE HAD VOLUNTEERED IN APRIL 1968, THE APPLICANT WAS, AFTER THIS DECISION, IN AN EXCEPTIONAL SITUATION IN THAT HIS SERVICE WAS DUE TO END SHORTLY AND IN THAT HE NO LONGER HAD TO DEAL WITH IMPORTANT LONG-TERM TASKS .

19 IN THESE CIRCUMSTANCES IT HAS NOT BEEN ESTABLISHED THAT HIS WORK COULD HAVE PREVENTED HIM FROM COMPLYING WITH THE REQUEST SENT TO HIM ON 21 JUNE 1968 TO USE UP BEFORE 1 OCTOBER OF THAT YEAR THE LEAVE TO WHICH HE WAS STILL ENTITLED .

20 FOR THESE REASONS THERE APPEARS TO BE NO POINT IN ACCEPTING THE OFFERS OF PROOF MADE BY THE APPLICANT .

21 THE APPLICANT FURTHER MAINTAINS THAT WHEN HE RECEIVED THE REQUEST FROM THE DIRECTOR-GENERAL FOR PERSONNEL AND ADMINISTRATION TO USE UP HIS LEAVE IT WAS NO LONGER POSSIBLE FOR HIM TO ARRANGE A TRIP TO A HOLIDAY RESORT .

22 WHILST THE ADMINISTRATION MUST TAKE ACCOUNT OF THE ACTUAL POSSIBILITIES OPEN TO AN OFFICIAL WHEN IT REQUESTS HIM AT SHORT NOTICE TO USE UP THE LEAVE TO WHICH HE IS ENTITLED, IT CANNOT BE ACCEPTED THAT IT MUST ALSO TAKE INTO CONSIDERATION EACH INDIVIDUAL OFFICIAL' S PROSPECTS WITH REGARD TO RESORTS .

23 THEREFORE IT MAY BE CONCLUDED THAT THE REQUEST SENT TO THE APPLICANT IN JUNE 1968 TO USE UP HIS LEAVE BEFORE 1 OCTOBER 1968 DID NOT ADVERSELY AFFECT HIS LEGITIMATE INTERESTS .

24 FOR THESE REASONS THE APPLICANT HAS NO RIGHT TO COMPENSATION .

25 THE APPLICATION IS WITHOUT FOUNDATION AND MUST BE DISMISSED ACCORDINGLY .

THE PROCEDURAL REQUEST

26 AS A MATTER OF PROCEDURE THE APPLICANT REQUESTS THAT THE FOLLOWING PASSAGE SHOULD BE STRUCK OUT FROM THE STATEMENT OF DEFENCE AS CASTING ASPERSIONS UPON HIS HONOUR : " IT IS VERY DIFFICULT TO SEE HOW THE APPLICANT ... CAN PROPERLY MAINTAIN TODAY THAT THE WORK INVOLVED IN CLOSING DOWN THE PRIVATE OFFICE OF THE PRESIDENT OF THE HIGH AUTHORITY KEEP HIM UNTIL 30 SEPTEMBER 1968 THAT IS, FOR A PERIOD OF 15 MONTHS ".

27 IN EXPRESSING ITS DOUBTS AS TO THE NECESSITY FOR EXTENDING THE WORK OF WINDING UP THE PRIVATE OFFICE OF THE PRESIDENT OF THE HIGH AUTHORITY OVER 15 MONTHS THE DEFENDANT HAS IN NO WAY IMPUNGED THE APPLICANT' S HONOUR .

28 THE PROCEDURAL REQUEST IS WITHOUT JUSTIFICATION AND MUST THEREFORE BE DISMISSED .

Decision on costs

29 THE APPLICANT HAS FAILED IN HIS APPLICATION .

30 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

31 HOWEVER, ARTICLE 70 OF THE RULES OF PROCEDURE PROVIDES THAT, IN PROCEEDINGS COMMENCED BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

Operative part

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION;

2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .