Judgment of the Court (Second Chamber) of 11 July 1968. - Fernand De Schacht v Council of the European Communities. - Case 3-68.



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Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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OFFICIAL - PRINCIPLE OF THE CONTINUITY OF THE CAREER OF A COMMUNITY OFFICIAL - TRANSFER FROM ONE SET OF COMMUNITY STAFF REGULATIONS TO ANOTHER - NO TERMINATION OF SERVICE

( STAFF REGULATIONS OF OFFICIALS OF THE ECSC, ANNEX VIII, ARTICLE 12(A ) AND ( B ); GENERAL STAFF REGULATIONS OF THE ECSC, ARTICLE 62(A ) AND ( B ))

Summary

THE PROVISIONS OF BOTH THE NEW STAFF REGULATIONS OF OFFICIALS OF THE ECSC ( ARTICLES 92 TO 105 ) AND THE EEC-EAEC STAFF REGULATIONS ( ESPECIALLY ARTICLES 2 AND 3 OF ANNEX VIII ) CONFIRM THE PRINCIPLE OF THE CONTINUITY OF THE CAREER OF A COMMUNITY OFFICIAL . CONSEQUENTLY, ARTICLE 62(A ) AND ( B ) OF THE FORMER GENERAL REGULATIONS OF THE ECSC AND ARTICLE 12(A ) AND ( B ) OF ANNEX VIII TO THE NEW STAFF REGULATIONS OF OFFICIALS OF THE ECSC ARE INAPPLICABLE WHEN THE RELATIONSHIP UNDER THE STAFF REGULATIONS WHICH BOUND THE PERSON CONCERNED TO THE ECSC HAS BEEN BROUGHT TO AN END BY THE VERY FACT OF HIS BECOMING SUBJECT TO THE STAFF REGULATIONS OF OFFICIALS OF THE EEC AND THE EAEC .

Parties

IN CASE 3/68

FERNAND DE SCHACHT, AN OFFICIAL IN THE SECRETARIAT-GENERAL OF THE COUNCIL OF THE EUROPEAN COMMUNITIES, RESIDING IN BRUSSELS, ASSISTED BY MICHEL VAN DOOSSELAERE, ADVOCATE OF THE COUR D'APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ROGER WOLTER, 142 RUE ADOLPHE-FISCHER,

APPLICANT,

V

COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ALEX BONN, ADVOCATE OF THE COUR SUPERIEURE DE JUSTICE OF THE GRAND DUCHY OF LUXEMBOURG, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID ALEX BONN, 22 COTE-D'EICH,

DEFENDANT,

Subject of the case

APPLICATION PRINCIPALLY FOR AN ORDER FOR THE DEFENDANT TO PAY TO THE APPLICANT THE SUMS MENTIONED IN ARTICLE 62(A ) AND ( B ) OF THE FORMER GENERAL REGULATIONS OF THE ECSC AND ARTICLE 12(A ) AND ( B ) OF ANNEX VIII TO THE STAFF REGULATIONS OF OFFICIALS OF THE ECSC OF 1 JANUARY 1962,

Grounds

P . 367

THE APPLICANT CONSIDERS THAT HE IS ENTITLED TO PAYMENT OF BOTH THE SUM STANDING TO THE CREDIT OF HIS ACCOUNT UNDER THE PROVIDENT SCHEME OF THE ECSC ON THE ENTRY INTO FORCE OF THE FORMER ECSC STAFF REGULATIONS AND THE AGGREGATE AMOUNT DEDUCTED FROM HIS SALARY IN RESPECT OF HIS PENSION CONTRIBUTIONS DURING THE PERIOD FOR WHICH HE WAS SUBJECT TO THE SAID STAFF REGULATIONS . IN SUPPORT OF HIS APPLICATION HE RELIES ON ARTICLE 62(A ) AND ( B ) OF THE GENERAL REGULATIONS AND ARTICLE 12(A ) AND ( B ) OF ANNEX VIII TO THE NEW ECSC STAFF REGULATIONS, BOTH OF WHICH PROVISIONS ARE OF ESSENTIALLY IDENTICAL SCOPE AND WHICH PROVIDE FOR PAYMENT OF THE ABOVEMENTIONED SUMS TO AN OFFICIAL WHO FULFILS CERTAIN CONDITIONS, ONE OF WHICH IS THAT HIS SERVICE HAS TERMINATED ' OTHERWISE THAN BY REASON OF DEATH OR INVALIDITY '. CONTRARY TO THE DEFENDANT'S VIEW, THE APPLICANT CLAIMS TO HAVE SATISFIED THAT REQUIREMENT, BY REASON OF THE FACT THAT UNDER THE VERY TERMS OF DECISION NO 101/62 OF THE SECRETARY-GENERAL OF THE COUNCILS, BY WHICH HE BECAME SUBJECT TO THE EEC-EAEC STAFF REGULATIONS, IT ' INVOLVES THE TERMINATION OF THE SERVICE OF THE PERSON CONCERNED AS AN ESTABLISHED OFFICIAL OF THE ECSC '.

THE SUBSTANCE OF THIS CLAIM MUST BE EXAMINED SEPARATELY ON THE BASIS OF EACH OF THE SETS OF STAFF REGULATIONS TO WHICH THE APPLICANT WAS SUCCESSIVELY SUBJECT, NAMELY FIRST THE FORMER ECSC STAFF REGULATIONS AND THE GENERAL REGULATIONS AND THEN THE EEC-EAEC STAFF REGULATIONS .

( 1 ) IN RESPECT OF THE FORMER ECSC STAFF REGULATIONS AND THE GENERAL REGULATIONS, IT IS NOT CONTESTED - NOR CAN IT BE - THAT, BY REASON OF HIS BECOMING SUBJECT TO THE EEC-EAEC STAFF REGULATIONS, THE APPLICANT'S SERVICE AS AN OFFICIAL OF THE ECSC TERMINATED ' OTHERWISE THAN BY REASON OF DEATH OR INVALIDITY ', IN THE WORDS OF ARTICLE 62 OF THE SAID GENERAL REGULATIONS . HOWEVER THE EXPRESSION ' WHOSE SERVICE TERMINATES ' MUST BE INTERPRETED IN THE LIGHT OF THE FORMER ECSC STAFF REGULATIONS, ON THE BASIS OF WHICH THE GENERAL REGULATIONS WERE ADOPTED .

ALTHOUGH ARTICLE 40 OF THOSE REGULATIONS, WHICH SETS OUT THE CASES OF ' TERMINATION OF SERVICE ', OBVIOUSLY COULD NOT REFER TO THE CASE OF THE PERSON CONCERNED BECOMING SUBJECT TO THE STAFF REGULATIONS OF OFFICIALS OF ANOTHER EUROPEAN COMMUNITY, THE APPLICANT CONSIDERS THAT SUCH AN EVENT IS TANTAMOUNT TO COMPULSORY REGISNATION, AS PROVIDED FOR BY ARTICLE 40 TOGETHER WITH ARTICLE 41(B ) OF THOSE REGULATIONS .

P . 368

UNDER THE TERMS OF ARTICLE 41(B ) A SERVANT COULD BE REQUIRED TO RESIGN IN A SERIES OF CIRCUMSTANCES DEFINED IN ARTICLES 27(1 ) AND ( 2 ), 17 AND 33 OF THE FORMER ECSC STAFF REGULATIONS . HOWEVER, NONE OF THOSE CIRCUMSTANCES COVERS THE APPLICANT'S POSITION OR IS EVEN REMOTELY ANALOGOUS TO IT . ON THE CONTRARY, TAKEN TOGETHER THOSE CIRCUMSTANCES REFER TO SITUATIONS IN WHICH THE INTEREST OF THE SERVICE CONFLICTS WITH AN OFFICIAL'S CONTINUED MEMBERSHIP OF THE STAFF, NOT ONLY OF THE ECSC BUT OF THE COMMUNITIES IN GENERAL .

THEREFORE THE PROVISIONS OF THE FORMER ECSC STAFF REGULATIONS AND THE GENERAL REGULATIONS DO NOT PERMIT OF A FINDING THAT THE APPLICATION IS WELL FOUNDED .

( 2 ) WITH REGARD TO THE EEC-EAEC STAFF REGULATIONS, IT IS APPROPRIATE TO TAKE AS A STARTING POINT ARTICLE 102(5 ) THEREOF, WHICH IS EXPRESSLY MENTIONED IN DECISION NO 101/62 AND WHICH COVERS THE APPLICANT'S CASE EXACTLY, THAT IS TO SAY, THE CASE OF ' A SERVANT WHO, BEFORE THESE STAFF REGULATIONS ENTERED INTO FORCE WAS AN ESTABLISHED OFFICIAL OF THE EUROPEAN COAL AND STEEL COMMUNITY AND HAS BEEN GRANTED LEAVE ON PERSONAL GROUNDS IN ONE OF THE INSTITUTIONS OF THAT COMMUNITY IN ORDER TO ENTER THE SERVICE OF AN INSTITUTION OF THE EUROPEAN ECONOMIC COMMUNITY OR OF THE EUROPEAN ATOMIC ENERGY COMMUNITY '.

UNDER THE TERMS OF THAT ARTICLE, ' THE PROVISIONS OF CHAPTER 1 OF TITLE VIII ' OF THE NEW ECSC STAFF REGULATIONS, THAT IS TO SAY, ARTICLES 92 TO 105 OF THOSE REGULATIONS, ' SHALL APPLY ' TO SUCH A SERVANT, ' PROVIDED THAT THIS DOES NOT CONFER ON HIM ADVANTAGES GREATER THAN THOSE WHICH HE WOULD HAVE ENJOYED IF HE HAD BEEN ESTABLISHED IN THE SAME GRADE ' UNDER THE NEW ECSC STAFF REGULATIONS . CHAPTER 1, ENTITLED ' TRANSITIONAL PROVISIONS ', COVERS PRECISELY THOSE OFFICIALS BECOMING SUBJECT TO THE NEW ECSC STAFF REGULATIONS AT A TIME WHEN THEY WERE SUBJECT TO THE FORMER STAFF REGULATIONS OF THAT COMMUNITY .

AS THE TRANSITIONAL PROVISIONS APPLICABLE TO SERVANTS IN THE APPLICANT'S POSITION HAVE BEEN THUS ASSIMILATED TO THOSE APPLYING TO THE ABOVEMENTIONED OFFICIALS, IT IS APPROPRIATE TO EXAMINE WHETHER, BY REASON ONLY OF HAVING TRANSFERRED FROM ONE SET OF STAFF REGULATIONS TO ANOTHER WHILE CONTINUING TO BELONG TO THE SAME COMMUNITY, SUCH OFFICIALS MAY BENEFIT FROM THE PROVISIONS OF ARTICLE 62(A ) AND ( B ) OF THE GENERAL REGULATIONS AND ARTICLE 12(A ) AND ( B ) OF ANNEX VIII TO THE NEW ECSC STAFF REGULATIONS . IN FACT, IF SUCH IS NOT THE CASE, THIS APPLICATION CANNOT BE WELL FOUNDED, AS IT FOLLOWS FROM ARTICLE 102(5 ) THAT THE APPLICANT MAY NOT CLAIM ADVANTAGES GREATER THAN THOSE ENJOYED BY THOSE OFFICIALS MENTIONED ABOVE .

IT FOLLOWS FROM THE CONSIDERATIONS SET OUT UNDER ( 1 ) ABOVE THAT ARTICLE 62 OF THE GENERAL REGULATIONS DOES NOT APPLY TO THE APPLICANT'S POSITION . THOSE CONSIDERATIONS APPLY EQUALLY IN RESPECT OF ARTICLE 12 OF ANNEX VIII TO THE NEW ECSC STAFF REGULATIONS, THE MEANING OF WHICH MOREOVER IS SPECIFIED BY THE HEADING ' SEVERANCE GRANT '. FURTHER, ARTICLES 92 TO 105 OF THE NEW ECSC STAFF REGULATIONS DO NOT REFER EITHER EXPRESSLY OR BY IMPLICATION TO ARTICLES 62 AND 12 ABOVEMENTIONED . ALTHOUGH ARTICLE 99(4 ) OF THOSE REGULATIONS REFERS TO ARTICLE 12 OF ANNEX VIII TO THOSE SAME REGULATIONS, IT APPEARS FROM THE FIRST THREE PARAGRAPHS OF ARTICLE 99 THAT IT ONLY REFERS TO OFFICIALS WHOSE SERVICE WITH THE ECSC COMES TO BE TERMINATED SUBSEQUENTLY TO THEIR BECOMING SUBJECT TO THE NEW STAFF REGULATIONS . FURTHERMORE, ARTICLE 99(4 ) CONTRADICTS THE APPLICANT'S ARGUMENT SINCE IT CONFIRMS THE PRINCIPLE OF THE CONTINUITY OF THE CAREER OF A COMMUNITY OFFICIAL BY PROVIDING THAT ' FOR THE CALCULATION OF THE SEVERANCE GRANT PROVIDED FOR IN ARTICLE 12 OF ANNEX VIII, THE PERIOD OF SERVICE ACTUALLY COMPLETED WITH THE THREE EUROPEAN COMMUNITIES BEFORE BECOMING SUBJECT TO THESE REGULATIONS SHALL BE TAKEN INTO ACCOUNT '. FURTHER, THIS PRINCIPLE IS REPEATEDLY CONFIRMED BY THE PROVISIONS OF ARTICLES 92 TO 105 OF THE NEW ECSC STAFF REGULATIONS, WHICH, AS HAS JUST BEEN STATED, ARE APPLICABLE TO THE APPLICANT . THUS ARTICLE 93 AUTOMATICALLY CONFERS THE STATUS OF OFFICIAL, WITHIN THE MEANING OF THOSE REGULATIONS, ON ANY OFFICIAL WITHIN THE MEANING OF THE FORMER ECSC STAFF REGULATIONS . ARTICLE 94, WHICH IS PARTICULARLY RELEVANT IN THIS CASE AS IT REFERS, INTER ALIA, TO THE PENSION SCHEME, PROVIDES THAT ' AN OFFICIAL INTEGRATED UNDER ARTICLE 93 SHALL RETAIN THE SENIORITY IN THE SERVICE ACQUIRED UP TO THE DATE ON WHICH THESE REGULATIONS ENTER INTO FORCE '.

P . 369

IN ADDITION, THE PROVISIONS OF THE EEC-EAEC STAFF REGULATIONS, WHICH HAVE BEEN APPLICABLE TO THE APPLICANT SINCE 1 JANUARY 1962, ARE ALSO BASED ON THE IDEA OF THE CONTINUITY OF A COMMUNITY CAREER . IN THIS CONNEXION, IT IS SUFFICIENT TO REFER TO ARTICLES 2 AND 3 OF ANNEX VIII TO THE SAID REGULATIONS, FROM WHICH IT APPEARS THAT FOR THE CALCULATION OF THE RETIREMENT PENSION ' THE PERIOD OF SERVICE AS AN OFFICIAL OF ONE OF THE INSTITUTIONS OF THE THREE EUROPEAN COMMUNITIES ' MUST BE TAKEN INTO ACCOUNT .

FINALLY, THE APPLICANT'S POSITION IS ACTUALLY THAT OF AN OFFICIAL WHO HAS ALWAYS BELONGED TO ONE AND THE SAME COMMUNITY INSTITUTION . IN FACT, ALTHOUGH AT THAT TIME THE COUNCILS OF THE EEC AND OF THE EAEC WERE LEGALLY DISTINCT FROM THE SPECIAL COUNCIL OF MINISTERS OF THE ECSC, NEVERTHELESS FROM THE BEGINNING THE THREE COUNCILS WERE GIVEN A COMMON INFRASTRUCTURE, DIRECTED BY ONE AND THE SAME SECRETARY - GENERAL, TO WHOM THE APPLICANT WAS ANSWERABLE BOTH BEFORE AND AFTER BECOMING SUBJECT TO THE EEC-EAEC STAFF REGULATIONS .

IT FOLLOWS FROM THE FOREGOING THAT IT IS NO MORE POSSIBLE TO FIND A BASIS FOR THE APPLICANT'S CLAIM IN THE PROVISIONS WHICH HAVE BEEN APPLICABLE TO HIM SINCE 1 JANUARY 1962 .

( 3 ) THE APPLICANT ALSO ALLEGES THAT THE DEFENDANT'S ARGUMENT CONFLICTS WITH THE GENERAL PRINCIPLES APPLICABLE TO EUROPEAN PUBLIC SERVICE WITH REGARD TO THE CALCULATION OF A RETIREMENT PENSION, AND THAT THOSE PRINCIPLES PROTECT THE RIGHT OF OFFICIALS IN POSITIONS COMPARABLE WITH THE APPLICANT'S TO DECIDE THEMSELVES WHETHER OR NOT, FOR THE CALCULATION OF THEIR RETIREMENT PENSION, THEY WISH TO RETAIN THE BENEFIT OF THEIR TOTAL PERIOD OF SERVICE . FOLLOWING THIS LINE OF THOUGHT, THE APPLICANT REFERS TO ARTICLES 52 AND 62(A ) AND ( B ) OF THE GENERAL REGULATIONS AND ARTICLES 4 AND 12 OF ANNEX VIII TO BOTH THE EEC-EAEC STAFF REGULATIONS AND THE NEW ECSC STAFF REGULATIONS .

P . 370

WITH REGARD TO THE SCOPE OF ARTICLES 62 AND 12 ABOVEMENTIONED, IT SUFFICES TO REFER TO THE CONSIDERATIONS SET OUT UNDER ( 1 ) AND ( 2 ) ABOVE . WITH REGARD TO ARTICLES 52 AND 4 ABOVEMENTIONED, THEY REFER TO OFFICIALS WHO AFTER LEAVING THE SERVICE OF THE COMMUNITIES ARE RE-EMPLOYED BY A SUBSEQUENT MEASURE DISTINCT FROM THAT TERMINATING THEIR ORIGINAL SERVICE . SUCH CASES ARE NOT COMPARABLE WITH THE APPLICANT'S POSITION IN WHICH THE RELATIONSHIP UNDER THE STAFF REGULATIONS WHICH BOUND HIM TO ONE OF THE COMMUNITIES HAS BEEN BROUGHT TO AN END BY THE VERY FACT OF HIS BECOMING SUBJECT TO THE STAFF REGULATIONS OF OFFICIALS OF THE OTHER COMMUNITIES .

( 4 ) FINALLY, THE APPLICANT WRONGLY CITES IN HIS SUPPORT THE JUDGMENT DELIVERED BY THE COURT IN JOINED CASES 27 AND 39/59 ( CAMPOLONGO, ( 1960 ) ECR 801 ET SEQ .). IN FACT IN THOSE CASES THE OFFICIAL CONCERNED WAS ENGAGED BY THE EUROPEAN INVESTMENT BANK WHICH IS NOT AN ' INSTITUTION ' WITHIN THE MEANING OF ARTICLE 4 OF THE TREATY ESTABLISHING THE EEC AND WHOSE STAFF IS THEREFORE NOT COVERED BY THE EEC-EAEC STAFF REGULATIONS, AS IS EVIDENCED BY ARTICLE 1 THEREOF .

IT FOLLOWS FROM ALL THE FOREGOING CONSIDERATIONS THAT THE PRESENT APPLICATION IS UNFOUNDED .

Decision on costs

( 5 ) THE APPLICANT HAS FAILED IN HIS APPLICATION . UNDER THE TERMS OF ARTICLE 69(2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER THE TERMS OF ARTICLE 70 OF THE SAID RULES IN PROCEEDINGS BY OFFICIALS AND SERVANTS OF THE COMMUNITIES AGAINST INSTITUTIONS, THE INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

Operative part

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION AS UNFOUNDED;

2 . ORDERS THE APPLICANT TO PAY THE COSTS OF THE PROCEEDINGS, WITH THE EXCEPTION OF THOSE INCURRED BY THE DEFENDANT .