Judgment of the Court (Second Chamber) of 30 June 1971. - Canzio Almini v Commission of the European Communities. - Case 19-70.



European Court reports 1971 Page 00623

Danish special edition Page 00155

Greek special edition Page 00881

Portuguese special edition Page 00231



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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OFFICIALS - RETIREMENT - DISCRETIONARY POWERS OF THE ADMINISTRATION - EXTENT - DEFENCE OF THE INTERESTS OF THE OFFICIAL CONCERNED

( STAFF REGULATIONS OF OFFICIALS, ARTICLE 50 )

Summary

AS A COROLLARY TO THE DISCRETION CONFERRED ON THE INSTITUTIONS BY ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS WITH REGARD TO APPOINTMENTS TO GRADES A1 AND A2, THE APPOINTING AUTHORITY ENJOYS WIDE DISCRETIONARY POWERS IN SO FAR AS RETIREMENT FROM SERVICE AND DISMISSAL OF OFFICIALS BELONGING TO THESE GRADES ARE CONCERNED .

THE STAFF REGULATIONS DO NOT LIMIT THE REASONS WHICH MAY JUSTIFY A RETIREMENT UNDER ARTICLE 50 SINCE THESE COULD LIE IN THE OBJECTIVE REQUIREMENTS OF THE SERVICE AS WELL AS IN THE ASSESSMENT OF THE OFFICIALS' SPECIFIC QUALITIES IN RELATION TO SUCH REQUIREMENT .

THE EXERCISE OF DISCRETIONARY POWERS WHICH ARE SO WIDELY DEFINED NEVERTHELESS REQUIRES THAT THE OFFICIAL CONCERNING WHOM SUCH A MEASURE IS CONTEMPLATED SHOULD FIRST HAVE AN OPPORTUNITY OF STATING HIS CASE ON THE FACTORS WHICH HAVE DETERMINED HIS RETIREMENT .

Parties

IN CASE NO 19/70

CANZIO ALMINI, A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING IN LUXEMBOURG, REPRESENTED BY MARCEL SLUSNY AND HENRI ROLIN, ADVOCATES AT THE COUR D' APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT HIS PRIVATE ADDRESS, 48 BOULEVARD GRANDE-DUCHESSE-CHARLOTTE, APPLICANT,

V

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

Subject of the case

APPLICATION FOR THE ANNULMENT OF THREE DECISIONS, THE FIRST TWO OF 23 JULY 1969 AND THE THIRD OF 11 FEBRUARY 1970, BY WHICH THE COMMISSION RESPECTIVELY MADE PROVISIONAL APPOINTMENTS TO THE DIRECTORATE OF THE OFFICE FOR OFFICIAL PUBLICATIONS OF THE COMMUNITIES, TRANSFERRED MR ALMINI TO A POST AS PRINCIPAL ADVISER IN THE DIRECTORATE-GENERAL FOR PERSONNEL AND ADMINISTRATION AND DECIDED TO RETIRE HIM IN THE INTERESTS OF THE SERVICE, AND ALSO AN APPLICATION FOR THE AWARD OF DAMAGES,

Grounds

1 THE APPLICATION SEEKS IN THE FIRST PLACE THE ANNULMENT OF THE DECISION TAKEN BY THE COMMISSION ON 11 FEBRUARY 1970 UNDER ARTICLE 50 OF THE STAFF REGULATIONS TO RETIRE THE APPLICANT IN THE INTERESTS OF THE SERVICE .

2 THE APPLICANT, WHO ENTERED THE SERVICE OF THE HIGH AUTHORITY OF THE ECSC ON 14 JUNE 1954, HELD SEVERAL POSTS WITHIN THE EUROPEAN COAL AND STEEL COMMUNITY AND WAS ESTABLISHED IN GRADE A2 AS FROM 1 JANUARY 1962 .

3 WITHIN THE FRAMEWORK OF THE ADMINISTRATIVE RESTRUCTURING WHICH FOLLOWED THE MERGER OF THE EXECUTIVES, HE WAS ASSIGNED ON 28 MARCH 1968 TO THE POST OF DIRECTOR OF PUBLICATIONS WITH THE DIRECTORATE-GENERAL FOR PERSONNEL AND ADMINISTRATION OF THE COMMISSION OF THE EUROPEAN COMMUNITIES .

4 BY DECISION OF 23 JULY 1969 THE COMMISSION DECIDED TO DISCHARGE HIM FROM THIS POST AND TO ASSIGN HIM AS PRINCIPAL ADVISER TO THE ASSISTANT DIRECTOR-GENERAL FOR PERSONNEL AND ADMINISTRATION IN LUXEMBOURG .

5 IN DELIBERATIONS HELD ON 14 JANUARY 1970 THE COMMISSION DECIDED TO RETIRE HIM IN THE INTERESTS OF THE SERVICE UNDER ARTICLE 50 OF THE STAFF REGULATIONS .

6 BY LETTER OF 20 JANUARY 1970, CONFIRMING A PREVIOUS VERBAL NOTIFICATION, THE COMMISSION INFORMED THE APPLICANT OF THIS INTENTION AND ASKED HIM TO MAKE HIS VIEWS KNOWN BEFORE 26 JANUARY 1970 .

7 AFTER THE APPLICANT HAD MADE HIS COMMENTS BY LETTER OF 24 JANUARY 1970, THE COMMISSION ON 11 FEBRUARY 1970 TOOK THE DECISION TO RETIRE THE APPLICANT IN THE INTERESTS OF THE SERVICE WITH EFFECT FROM 1 MARCH 1970, GRANTING HIM THE ALLOWANCE AND THE PENSION LAID DOWN FOR SUCH A CASE BY THE STAFF REGULATIONS .

8 UNDER THE PROVISIONS OF ARTICLE 50 OF THE STAFF REGULATIONS OF OFFICIALS " AN OFFICIAL HOLDING A POST IN GRADES A1 OR A2 MAY BE RETIRED IN THE INTERESTS OF THE SERVICE BY DECISION OF THE APPOINTING AUTHORITY .

9 AS A COROLLARY TO THE DISCRETION CONFERRED ON THE INSTITUTIONS BY ARTICLE 29 ( 2 ) AS REGARDS APPOINTMENTS AT THIS LEVEL, THE APPOINTING AUTHORITY ENJOYS WIDE DISCRETIONARY POWERS IN SO FAR AS RETIREMENT FROM THE SERVICE AND DISMISSAL OF OFFICIALS BELONGING TO THESE GRADES ARE CONCERNED .

10 THE STAFF REGULATIONS DO NOT LIMIT THE REASONS WHICH MAY JUSTIFY A RETIREMENT UNDER ARTICLE 50, SINCE THESE COULD LIE IN THE OBJECTIVE REQUIREMENTS OF THE SERVICE AS WELL AS IN THE ASSESSMENT OF THE OFFICIALS' SPECIFIC QUALITIES IN RELATION TO SUCH REQUIREMENTS .

11 THE EXERCISE OF DISCRETIONARY POWERS WHICH ARE SO WIDELY DEFINED NEVERTHELESS REQUIRES THAT THE OFFICIAL CONCERNING WHOM SUCH A MEASURE IS CONTEMPLATED SHOULD FIRST HAVE AN OPPORTUNITY OF EFFECTIVELY DEFENDING HIS INTERESTS .

12 ON THIS POINT IT MUST FIRST BE SAID THAT THE APPLICANT WHO HAD GIVEN PROOF OF A COOPERATIVE ATTITUDE AT THE TIME WHEN HE WAS TRANSFERRED FROM THE POST OF DIRECTOR OF PUBLICATIONS TO THAT OF PRINCIPAL ADVISER, TO THE POINT OF ACCEPTING A DECISION THE FORM OF WHICH WAS OPEN TO CRITICISM, FOUND HIMSELF, AS A RESULT OF THE COMMISSION' S LETTER OF 20 JANUARY 1970, SUDDENLY FACED WITH THE PROSPECT OF BEING RETIRED AT SHORT NOTICE .

13 BY THIS LETTER HE WAS ASKED TO MAKE HIS COMMENTS WITHIN A PERIOD WHICH, TAKING INTO ACCOUNT THE DISTANCE, AMOUNTED AT THE MOST TO FOUR DAYS .

14 IN HIS REPLY OF 24 JANUARY, AFTER HAVING CONVEYED TO THE COMMISSION THAT HE FOUND IT DIFFICULT TO DEAL EFFECTIVELY WITH THE MATTER IN THE ABSENCE OF MORE PRECISE INFORMATION AS TO THE " REASONS OF PUBLIC INTEREST " UPON WHICH THE ACTION ENVISAGED IN RESPECT OF HIM WAS BASED, THE APPLICANT EMPHASIZED THAT A LESS PRECIPITATE COURSE OF ACTION MIGHT POSSIBLY ALLOW A FAVOURABLE SOLUTION TO BE FOUND FOR HIS CASE .

15 MOREOVER, IN CONTRAST TO THE LETTER OF 20 JANUARY 1970, THE PURPORT OF WHICH WAS TO SUGGEST OBJECTIVE SERVICE REASONS, IT CAN BE SEEN FROM THE MINUTES OF THE COMMISSION' S MEETING OF 11 FEBRUARY 1970 THAT THE DECISION TO RETIRE HIM WAS FINALLY TAKEN BY REASON OF AN ASSESSMENT OF THE APPLICANT' S PERSONAL ABILITY IN RELATION TO THE REQUIREMENTS OF CERTAIN POSSIBLE POSTINGS .

16 IT THEREFORE APPEARS THAT IN GIVING HIM BY ITS LETTER OF 20 JANUARY 1970, THE OPPORTUNITY OF MAKING HIS VIEWS KNOWN, THE COMMISSION DID NOT GIVE HIM AN OPPORTUNITY OF COMMENTING ON THE FACTORS WHICH IN THE FINAL ANALYSIS SEEM DECISIVE .

17 TAKING INTO ACCOUNT ALL THE CIRCUMSTANCES, IN PARTICULAR THE APPLICANT' S RECORD, HIS SENIORITY AND HIS AGE AT THE TIME OF THE CONTESTED DECISION, THE PROCEDURE ADOPTED BY THE COMMISSION DID NOT HAVE REGARD TO THE ELEMENTARY SAFEGUARDS WHICH MUST BE GIVEN TO AN OFFICIAL IN CASE OF ABOLITION OF HIS POST UNDER ARTICLE 50 OF THE STAFF REGULATIONS .

18 THE COMMISSION' S DECISION OF 11 FEBRUARY 1970 TO RETIRE THE APPLICANT MUST THEREFORE BE ANNULLED .

19 IT IS NOT THEREFORE NECESSARY TO EXAMINE THE APPLICANT' S OTHER ARGUMENTS OR TO RULE ON THE ALTERNATIVE CONCLUSIONS .

Decision on costs

20 UNDER THE FIRST SUBPARAGRAPH ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

21 THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS AND MUST ACCORDINGLY BE ORDERED TO PAY THE COSTS .

Operative part

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . ANNULS THE DECISION OF 11 FEBRUARY 1970 BY WHICH THE COMMISSION OF THE EUROPEAN COMMUNITIES RETIRED THE APPLICANT;

2 . ORDERS THE COMMISSION TO PAY THE COST OF THE PROCEEDINGS .