CELEX: 61973CC0177
Language: en
Date: 1974-07-04
Title: Joined opinion of Mr Advocate General Mayras delivered on 4 July 1974. # Andreas Reinarz v Commission of the European Communities. # Joined cases 177-73 and 5-74. # Franz Becker v Commission of the European Communities. # Case 10-74.

OPINION OF MR ADVOCATE-GENERAL MAYRAS
   DELIVERED ON 4 JULY 1974 (
         1
      )
   
      Mr President,
   
      Members of the Court,
   I — Facts
   Messrs Reinarz and Becker (Joined Cases 177/73 and 5/74 and Case 10/74) are both former officials of the European Coal and Steel Comunity and took up their duties respectively in 1952 and 1953.
   At first they came under, the. first Staff Regulations of this Community, which came into force in 1956, and subsequently they were brought under the Regulations issued by the Council in 1962 and regraded, the former in Grade A 2 and the latter in Grade A 4.
   They continued to perform their duties in 1968, but with the single Commission in Brussels.
   In consequence of the accession of new Member States the Council introduced, by Regulation No 2530/72 of 4 December 1972, special measures for the termination of service of officials, on the one hand to permit the recruitment of nationals of these new Member States and on the other hand at the same time to facilitate the departure, before retirement, of officials in Grades A 1 to A 5 on undoubtedly favourable terms.
   At their request Messrs Reinarz and Becker benefited from this scheme and were allowed to terminate their service on 30 April and 1 May 1973 respectively.
   Both could on leaving properly claim the resettlement allowance provided for originally by Article 12 of the General Regulations annexed to the 1956 Staff Regulations and continued with different terms by the 1962 and then the 1968 Regulations, on condition inter alia that they produced evidence showing that after termination of their service they had resettled in a district more than 70 km from their place of employment.
   They are in dispute with the Commission with regard to the amount of this allowance.
   The appeals filed by these two former officials, subject to the questions of admissibility raised by those of Mr Reinarz, have the same object. They claim, by the joint application of Article 99 (3) of the 1962 Regulations and Article 12 of the former 1956 General Regulations of the European Coal and Steel Community, the right to a resettlement allowance equal to four months of their last salary in active employment, whereas the present Staff Regulations of the European Communities (Article 6 of Annex VII), which are identical on this point with the corresponding provision of the 1962 Regulations, limit the amount of resettlement allowance due to an official who is head of household to two months' basic salary payable on termination of service.
   The question raised by each of these appeals is the interpretation of Article 99 (3) of the 1962 Regulations, which, under the heading of the Transitional Provisions, provides:
   ‘By way of derogation from the provisions of Article 6 of Annex VII, the amount of the resettlement allowance payable to an official integrated under Article 93 who terminates his service after these Regulations enter into force. shall not be less than the amount which the official would have received under Article 12 of the former General Regulations of the European Coal and Steel Community.’
   However, before giving my opinion on this question, I must examine the demurrer to the claims of Mr Reinarz put forward by the Commission.
   II — Admissibility of the Appeals 177/73 and 5/74
   Mr Reinarz did not await the retirement measure terminating his service on 1 May 1973 before enquiring of the Director-General of Personnel the terms on which from his point of view the amount of the resettlement allowance should be calculated. Without formally applying for the benefit of this allowance he thus raised on 30 March the question of the interpretation of the provisions in question, maintaining that his amount should equal four months of his basic salary.
   In its note of 10 May 1973 the Commission replied as follows:
   ‘… The sole object of Article 99 (3) of the ECSC Staff Regulations previously in force is to guarantee to officials who formerly came under those Regulations the advantages which they would have received had the termination of their service occurred before 1 January 1962. The Staff Regulations which would have been applicable to them at that time also involved the application of certain salary scales, such as were in force until 31 December 1961…’.
   In other words the Administration invoked against him an interpretation according to which the benefit of the provisions of Article 12 of the former General Regulations were linked with the salary scales obtaining before the 1962 Regulations came into force; thus a former official of the Coal and Steel Community could claim a resettlement allowance equal to four months of his salary only on the basis of the salary determined in accordance with those salary scales.
   The applicant saw in this note a decision adversely affecting him and made a complaint on 30 June 1973 to the President of the Commission.
   On 26 October 1973 in the absence of a specific reply he lodged a first appeal against the implied decision resulting from the silence of the Administration.
   The Commission invokes against this first appeal its premature nature with regard to the conditions laid down by Article 91 (2) of the Regulations.
   It is correct that, even accepting that the period of four months laid down by this provision, at the expiration of which the lack of reply to a complaint through the immediate superior is equivalent to an implied decision, had begun to run as from 30 June 1973, the day the complaint was made, no such decision would have arisen before 1 November, that is to say after the appeal in question was lodged. The appeal was therefore obviously premature and I agree with the Commission that as such it was inadmissible. I invite you therefore to reject it on this ground.
   On 30 January 1974 Mr Reinarz lodged a new appeal with the same claims as the previous one. At this date the implied decision rejecting it had obviously arisen; this second appeal was itself lodged within the period laid down for lodging appeals to the Court under Article 91 of the Regulations; as a result its admissibility is not, on this point at least, open to question.
   However, the defendant raises a new objection of inadmissibility against it.
   It pleads, first, a lack of present interest on the part of the applicant in claiming the benefit of the resettlement allowance, when at the time he sumitted his application he had not yet left his former home; it maintains, further, that the letter from the Director of Personnel dated 10 May 1973 which is at the origin of the proceedings is simply a reply to a request for information; it was thus a preparatory act for a possible later decision, and cannot by reason of this be regarded as an act adversely affecting the applicant.
   On the first point I cannot follow the Commission's reasoning. It is accepted that every official who effectively terminates his service is entitled to apply for the resettlement allowance as soon as he leaves the service, even although he has not yet left his home at the place where he was employed, but only intends to do so. In the present case, moreover, it appears from the evidence in the file that Mr Reinarz has actually left his home to establish himself henceforth in Canada.
   The condition of actual removal of the home applies only at the time of payment of the resettlement allowance.
   On the other hand, it appears clearly from the very terms of the letter sent on 30 March 1973 by the applicant to the Director-General of Personnel that he was not requesting at that time the benefit of the resettlement allowance, but was restricting himself to putting forward an interpretation of the clauses in force which would establish his eventual right to an allowance equal to four months of salary. He concluded with the following sentence: ‘I should be grateful if your final interpretation could be of a more authoritative nature’.
   He was therefore only requesting the Commission to adopt a certain legal position, while reserving his right, in the event of a favourable reply being given, to reply on this reply to claim the benefit of the resettlement allowance on the terms which he alleged were right. I am therefore led to think that the contentious procedure could not have been set in motion by the reply from the Administration, which is certainly not an enforceable decision.
   In these circumstances, strictly you must reject the second appeal by Mr Reinarz as inadmissible.
   However, on the substance, that is to say on the question of the interpretation of Article 99 (3), an examination of the Becker Case will lead me to propose to you the rejection of the claims.
   Can you not therefore decide the Reinarz Case in the same circumstances and thus save a Judgment on inadmissibility and likewise reject the claims of Appeal No 5/74 on the merits? It is a solution which I shall recommend to the discretion of the Court. It would have the advantage of putting a definite end to the proceedings between Mr Reinarz and the Commission and thus preventing him, in the face of a Judgment on inadmissibility, from thinking he could challenge the decision by which the Administration paid the amount of his resettlement allowance, and thus lodge a third appeal.
   III — Examination of the substance
   For my part I would give the same answer to the claims of each of the applicants, for not only do their conclusions have a similar object, but their arguments are based on the same conception of ‘vested rights’.
   As former officials of the European Coal and Steel Community who have both been subject to the 1965 Regulations, they consider that when, as from 1 January 1962, the new Staff Regulations of this Community were applied to them, they preserved their right to the benefits to which they were entitled under the previous Regulations, by the express provisions of Articles 92 and 99 of the new Regulations.
   They maintain in particular that they have preserved the benefit of the system of resettlement allowance originally provided for by Article 12 of the 1956 General Regulations, which laid down the amount of this allowance at four months' basic salary.
   Although they do not dispute that under the 1962 Regulations the amount has been reduced to two months' salary, the new provisions applicable to staff who enter the service after the new Regulations came into force, in their view, are not applicable against former officials of the Coal and Steel Community to whom the system of the previous Regulations was applicable.
   This argument clashes with a principle which your case law has constantly applied, and which depends on the nature of the legal relationship between the official and the Community authority.
   This relationship depends on the Regulations; it is one of status and is not basically contractual.
   The Administration is therefore on the one hand entitled at any time to amend the provisions of the Regulations in any way which it considers in accordance with the interest of the service, provided at least that it regulates only for the future without giving the decisions it makes by way of Regulations a retroactive effect; on the other hand officials cannot claim vested rights save in the event where the facts giving rise to the right arose under the particular Regulations before the amendment decided upon by the Community authority.
   The application of these legal rules to the present appeals raises, in my opinion, no difficulty.
   The system of resettlement allowance, a factor in the Regulations, could legally be amended, as was the case in 1962, without adversely affecting the rights of active officials. Only those who had terminated their service before the new Regulations came into force, and who had by reason of this individually acquired a right to the resettlement allowance calculated in accordance with the provisions of Article 12 of the former General Regulations, could claim such a right.
   On the other hand, the provisions of the new Regulations, and in particular the amended scheme of resettlement allowance, both as regards the calculation of its amount and as regards the conditions of entitlement, were applied to such as Messrs Reinarz and Becker who had been integrated and had continued in employment.
   If the Council had not as a provisional measure issued the provisions comprised in Article 99 (3), there is no doubt in my mind that, had the applicants terminated their service some days or some weeks after the new Regulations came into force, they would have legally been able to claim only a resettlement allowance calculated according to the new rules of Article 6 of Annex VII, that is to say an amount equal to two months of their basic salary.
   What was the object of this Article 99 (3)?
   Not, as the applicants contend, to maintain for the benefit of former officials of the ECSC an unconditional right to an allowance equal to four months' salary, but only to provide for a transitional system more favourable to such staff than the immediate and harsh application of the new Regulations would have been. For this purpose, Article 99 expressly provided that the amount of the allowance which would be paid to them could not be less than that which they would have received under the former Article 12.
   This wording does not imply, as regards the persons concerned, the maintenance of the full right under the former system in all its aspects, but constitutes simply a safeguard clause.
   In the case where, having regard to the new salary scales in force as from 1 January 1962, the amount of the allowance equal to two months' basic salary is ‘less than the amount equal to four months’ salary of the same grade calculated on the basis of the former salary scales, it permits the official concerned to have the benefit of the more advantageous settlement.
   But Article 99 (3) certainly does not permit — and it has never had this object — the accumulation of the advantages of the two successive schemes under the Regulations, that is to say to retain the basis of calculation from the former Article 12 of the General Regulations, that is four months' salary, and to take at the same time from the new Regulations the amount of the salary resulting from the new salary scales;
   Such an interpretation, apart from the fact that it is obvously ruled out by the very wording of Article 99, would seriously undermine the principle of equality between officials to whom the same Regulations apply.
   The transitional provision was in truth calculated to have an effect only so long as the salaries under the new salary-scales had not attained double the salaries in force before 1 January 1962.
   On the other hand, from the time when the new salaries, in consequence of the annual revisions as a result of the increased cost of living and the progressive enhancement of the officials' purchasing power, represent more than double the salaries prior to 1962, it is obvious that the safeguard clause could no longer be reasonably applied.
   Since this time the administrative practice constantly followed by the Community institutions (High Authority and Commission of the European Communities) has been on these lines, without to my knowledge the interpretation of Article 99 (3) of which I approve having been disputed, save in one case, by the several hundred officials at least to whom it has been applied.
   It is true this practice on its own could not be a source of law, and if the Administration had acted in an illegal fashion and not in accordance with the Regulations, the fact that there had been no appeal would not be sufficient cause to accept the argument of the Administration.
   But, as I have said, its interpretation appears to me to be in accordance both with the letter and with the objective of Article 99 (3).
   I can only propose, therefore, that you should adopt this interpretation.
   Finally, my opinion is:
   
            1.
         
         
            that the appeal lodged by Mr Reinarz, No 177/73, should be rejected as inadmissible;
         
      
            2.
         
         
            that appeals No 5/74 lodged by Mr Reinarz and No 10/74 lodged by Mr Becker should be rejected as unfounded;
         
      
            3.
         
         
            that each party should bear his own costs.
         
      (
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      )	Translated from the French.