CELEX: 61973CC0133
Language: en
Date: 1973-12-05
Title: Opinion of Mr Advocate General Reischl delivered on 5 December 1973. # Herbert Bruns v Commission of the European Communities. # Removal from the register. # Case 133-73.

OPINION OF MR ADVOCATE-GENERAL REISCHL
   DELIVERED ON 5 DECEMBER 1973 (
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      Mr President,
   
      members of the Court,
   In the proceedings which Mr Bruns has brought against the Commission the subject matter of the oral proceedings on 24 October was, in accordance with the Commission's application under Article 91 of the Rules of Procedure, limited to questions of admissibility of the action. In my opinion too I have therefore today only to deal with these points of procedure.
   Allow me to make some preliminary remarks on the facts of the case. In November 1958 Mr Bruns entered the service of the Commission. At first he was Head of the Staff Regulations Division in the Directorate-General of Personnel and Administration. As from November 1962 he was a Director in the Directorate-General for Internal Market, in Grade A2.
   On 25 August 1968 Mr Bruns requested that his services be terminated as from 1 October 1969. The Commission duly granted this application. Thereupon as from 1 October 1969 he became Chairman of the Board of Directors of an insurance company in the Federal Republic of Germany.
   As regards the formalities of terminating his service, there was at that time, having regard to the length of his service, no question under the provisions of the Staff Regulations then in force of paying a severance grant instead of a future claim to retirement pension — that much emerges from Article 77 of these Regulations, read in conjunction with Article 12 of Annex VIII. However, in the course of the negotiations on the revision of the Staff Regulations the Council of Ministers did on 26 June 1969 decide in this respect to permit deviations from the Staff Regulations. This decision provided inter alia that an official whose service terminates at the latest one month after the coming into force of the Regulations amending the Staff Regulations and who before 1 July 1969 fulfils the conditions referred to in Article 12a of Annex VIII (i.e. who has completed less than 11 years' service) may exercise the option provided for in this Article.
   After his attention had been drawn to this provision by an internal communication on the part of the Commission, since he clearly fulfilled the aforementioned conditions, Mr Bruns applied by a letter of 26 August 1969 addressed to the Directorate-General of Personnel and Administration for payment of the severance grant and this was done by the Administration. A final settlement took place by letter of 16 February 1970.
   Already in 1967 — this was stated without contradiction in the course of the oral proceedings — Mr Bruns had made an application to the Administration of the Commission for pension provision under the Staff Regulations, relying in this respect on Article 107 of the Staff Regulations, and on Article 11 of Annex VIII thereof. On this point it must be remembered that Article 107 provides for an official being credited with a number of years of service where he has been obliged by reason of his entering the service of the Commission to forfeit in whole or in part the pension rights which accrued to him in his country of origin. Article 11 (1) of Annex VIII to the Staff Regulations deals with the transfer of the actuarial equivalent of the retirement pension rights in the Community which he serves to the pension fund of the organization whose service the official entered after leaving the service of the Communities, and Article 11 (2) deals with the reverse case, viz. the transfer to the Communities of the actuarial equivalent of the retirement pension rights acquired before leaving the service of a national administration. Implementing provisions in relation to these provisions were made by the Commission on 2 July 1969 and were notified to the staff in the Courier du Personnel of 29 July 1969, whereupon — evidently because the first announcement was made during the holiday period — attention was again drawn to it in the Courier du Personnel of 6 October 1969. There it was further stated: ‘Requests, especially those for the application of Article 11 (1) and (2) of Annex VIII, shall in no way prejudice the applicant's final decision, which he shall only be obliged to take when the final result of the examination is available’. Mr Bruns claims that he only became aware of this after the termination of his service. At any rate, by letter of 14 August 1972 he wrote to the Commission and stated that he adhered to his previous request in relation to Article 107 of the Staff Regulations and Article 11 of Annex VIII. He further asked to be notified of the result of the examination and stated that until such time the severance grant was at the disposal of the Commission.
   The Directorate-General of Personnel and Administration replied by letter of 14 September 1971. This confirmed that Mr Bruns' requests were to hand and at the same time sent him fresh forms for him to respect his application. After he had handed in these requests Mr Bruns thereupon by letter of 21 February 1972 from the Director-General of Personnel and Administration received a detailed comment in relation to the provisions of the Staff Regulations already referred to and on his requests. He was further informed how the rates of pension which he had earned with the Communities, and in relation to which explanations had already previously been given to him, were to be amended.
   Relving on this notification, and after he had received by letter of 5 April 1972 additional information in reply to an enquiry of 20 March 1972 as to the rates of pension, the basic salary that was to form the basis of the retirement pension and possible supplements, Mr Bruns stated by letter of 9 April 1972 that he opted for retirement pension instead of the severance grant, and asked to be notified of the amount of the severance grant to be repaid by him. When after a considerable period of time he had heard nothing further from the Commission, he reminded them of the matter in a letter of 1 September 1972.
   When this letter also remained without a reply he addressed on 16 October 1972 a formal request to the Commission under Article 90 of the Staff Regulations. This asked the Commission to rule that he was entitled to a pension based on the years of service upon attaining the age of 60 and that the sum which without legal basis had been paid to him by way of severance grant ought to be repaid under Article 85 of the Staff Regulations. At the end of 1972 Mr Bruns repaid the severance grant to the Commission on his own initiative and on this point he stated by letter of 20 January 1973 that the last part of his application of 16 October 1972 accordingly no longer applied. By letters of 5 February and 13 February 1973 from the Directorate-General of Personnel and Administration he was thereupon informed that there was no obligation on him to repay the severance grant. Furthermore it was stated in relation to the letter of the Directorate-General of Personnel and Administration of 21 February 1972 that its purpose had merely been to supply information in relation to the completed questionnaires and not to provide him with an option.
   Since Mr Bruns did not receive a formal decision on his request of 16 October 1972, which under Article 90 of the Staff Regulations amounts to a decision rejecting the application, he submitted on 19 February 1973 a complaint to the Commission under Article 90 (2) of the Staff Regulations. Therein he again asked for confirmation that on the basis of his service with the Commission he was entitled on attainment of the age of 60 to a retirement pension calculated on his period of service.
   Thereupon he finally received by way of reply a letter of 19 March 1973 signed by a member of the Commission. There it is stated that the Commission had been correct in paying him a severance grant, the consequence being that. Mr Bruns could lay no further valid claim to a retirement pension. It went on to say that it was not possible to attack the application of 26 August 1969 on the grounds of error. In relation to the letter of 16 October 1972 it was further stated that this was not sufficient to keep open the period for bringing an action and that Mr Bruns in fact ought to have taken action at the latest three months after payment of the severance grant, alternatively after receiving the final account as to the severance grant.
   This resulted in Mr Bruns on 16 May 1973 commencing an action before the Court. In his action he makes the following claims:
   
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            to annul the decision of 19 March 1973;
         
      
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            to find that upon obtaining the age of 60 he is entitled to a retirement pension calculated on the basis of his service with the Commission and that the received by him in lieu of pension ought to be repaid;
         
      
            —
         
         
            to order the Commission to state the precise amount of the sums to be repaid.
         
      The Commission however adheres to its view that Mr Bruns can no longer now pursue such a claim by way of appeal. Accordingly it made the application previously referred to for a preliminary decision as to the admissibility of the appeal and a ruling that the appeal is inadmissible.
   In the course of the written proceedings the Commission developed in relation to its application the thesis that the applicant's application in 1969 for payment of the severance grant having been acceded to or, to be more precise, upon payment of the severance grant, on any account however upon the final accounting in Febraury 1970, there had been a final decision which included a decision that the applicant was not entitled to a retirement pension. This amounted to an act adversely affecting him within the meaning of the Staff Regulations. Accordingly he could at the time have appealed against this. Since he had not done so the applicant cannot be allowed in 1972 still to bring in appeal designed to establish an entitlement to retirement pension.
   A subsidiary argument on this point was developed in the course of the oral proceedings. As it is put by the Commission, proceeding from the assumption that the notification of the result of the consideration of the applicant's requests in Spring 1972 in relation to Article 107 of the Staff Regulations and Article 11 of Annex VIII of the Staff Regulations are relevant in law (in fact the Commission in principle takes the view that this notification is of no significance) the applicant's letter of 9 April 1972 must be regarded as a request within the meaning of the Staff Regulations. The relevanr time limits ought therefore at any rate to be calculated as from the date of this request. Since however at that time the time limits under the old Staff Regulations were still in force and since the applicant did not receive a reply to his request, this leads to the conclusion there was an implied rejection on 9 June 1972. This ought to have been either directly challenged within a period of two months or at any rate an administrative complaint ought to have been made before the expiry of this time limit. In fact neither was done. An administrative complaint was in fact only made on 16 October 1972 or — if one treats the applicant's letter of reminder previously referred to as relevant — then on 1 September 1972, i.e. after the expiry of the relevant time limit. Even looking at matters in this way, therefore, one cannot but treat the appeal as out of time.
   An important problem arises firstly from the fact that the applicant's application for a severance grant and the decision in relation thereto really have a definitive character even in relation to the rejection of claims to retirement pension.
   On this point however there is in my view room for justified doubts, based upon the fact that at that time there were also applications outstanding on the part of the applicant which related to a pension and were based on Article 107 of the Staff Regulations and Article 11 of Annex VIII to the Staff Regulations; they are further based on the fact that a general announcement of the Commission stated in relation to such applications that the applicants need only make a final decision when the total result of the consideration of applications was to hand. One can also hardly approve of the argument that all these applications were of practically no importance to the applicant. At least the transfer of the actuarial equivalent of his retirement pension rights against the Commission to the organization whose service the applicant entered after leaving the Community, i.e. the application of Article 11 of Annex VIII, might be relevant. In fact however, this need not be finally clarified within the framework of an examination as to admissibility. Rather is it relevant that the highest officials in the Directorate-General of Personnel and Administration also shared this point of view. This emerges from the letter of 14 September 1971 previously referred to, from the Director-General for Personnel and Administration, which reads: ‘I further share your opinion that a decision as between retirement pension, severance grant and transfer of an actuarial equivalent to an external pension fund can only be finally made when it is clear what are the individual possibilities and the total result. Upon receiving the enclosed questionnaires the Administration will therefore arrive at the appropriate conclusions and will inform you thereof’. A similar explanation was again given when notifying the result of the consideration, by letter from rhe Director-General for Personnel and Administration of 21 February 1972. As regards Article 11 (1) of Annex VIII this states that the initiation of this procedure requires above all the repayment to the Community of the severance grant already awarded. The letter continues: ‘The implementation of your claim to a retirement pension based on the period of service does however also involve the repayment to the Communities of the severance grant already granted to you … It will further be necessary for you to state specifically that you withdraw your application under Article 11 (1) of Annex VIII of the Staff Regulations for transfer of your claims to your new pension organization’. Finally, the end of the letter is of interest; this reads: ‘I hope by means of these comments adequately to have explained to you the different cases and possibilities so as to enable you to arrive at a decision as between repayment of the severance grant and opting for a retirement pension based on the period of service, repayment of the severance grant and opting to have your claims transferred to the insurance fund which is now competent, and finally, retention of the severance grant already allocated to you.’
   From this one can indeed conclude that the Commission's Administration also took the view that the applicant's option still remained open. Since moreover this is not an obviously inappropriate way of looking at the matter and since a correction (were this indeed to be possible) was only made by means of the letter of 13 February 1973, i.e. — as I shall soon demonstrate — too late in relation to the relevant events, one can only arrive at the following interim conclusion: There is no question of there having been already a definitive decision as to the applicant's claim to retirement pension, capable of being the subject of an appeal, in 1969 or 1970. In fact in the light of the top-level Administration's own statements, on which, on the basis of the principles of good faith, an official may rely, a final election by the applicant was only due in Spring 1972. One must therefore, in examining the admissibility of the appeal, start from that date.
   If this approach is adopted, the next question that arises — and here I come to the Commission's subsidiary argument — is whether the applicant's letter of 9 April 1972 ought to be regarded as a request within the meaning of the Staff Regulations, which would start time running. However, here too I have strong reservations in adopting the Commission's arguments.
   I consider it crucial in this respect that the applicant had to exercise an option in Spring 1972. Looked at correctly, this amounts to a unilateral decision. On the basis of the preceding notification by the Administration, the legal position as between the applicant and the Commission thereafter became finally settled; it had, if you like, become crystallized. To show that this is the correct view one can — as was done by the applicant — point to the Commission's announcement in the Courier du Personnel of October 1969, that is the fact that there is there a reference to a ‘final decision’ of the ‘applicant’. Nor is this view refuted by the fact that the applicant in his letter of 9 April 1972 expressed the request ‘to be notified of the precise amount in Belgian francs of the amount of the severance grant to be repaid’. It could after all equally well have been omitted, since all that remained to be done after the unilateral declaration on the part of the applicant of 9 April 1972 was pure administrative implementation.
   If however — as has been shown — the letter of 9 April 1972 is not to be regarded as a request within the meaning of Article 90 of the Staff Regulations, then there were at that point of time no time limits operative on the basis of that provision. Rather was it open to the applicant later on at any time, once he realized that the Administration was not respecting his decision and was not drawing the necessary conclusions therefrom, to press for a clarification of the legal situation by means of a simple application for a legal ruling. This he did on 16 October 1972 by the request he made under Article 90 of the Staff Regulations. At this point therefore there started the formal conflict with the Administration for the purpose of clarifying the matter in issue.
   Accordingly, the appeal is admissible if it was brought within the time limit calculated from that date.
   Under the provisions of the new Staff Regulations which already applied at that date, (cf. Article 87 of the Regulation of 30 June 1972 of the Council) there was first of all a four-months period running as from the submission of the request, at the end of which, assuming the Administration has remained inactive, this is construed as an implied rejection on the part of the Administration. There existed therefore as at 16 February 1973 an implied rejection. A formal complaint could be submitted against this within a period of three months and this was duly done by a document lodged by the applicant on 19 February 1973. In this case the Commission dealt with the matter in express terms, i.e. by the decision of 19 March 1973 and again Mr Bruns opposed it in good time, viz. before the expiration of a period of three months, by means of the appeal filed on 16 May 1973. There can therefore be no question of the proceedings before the Court having been instituted out of time.
   Since furthermore there can be no question of any reservations in relation to the manner in which the heads of claim in the appeal, referred to at the everything together, be said that the outset, are expressed, it must, taking appeal is admissible.
   I would therefore conclude by suggesting that the Commission's objection be dismissed and the appeal be declared clearly admissible. Since this decision does not however conclude the proceedings, since the President now has to set new time limits for their continuation, there will be no need for a decision as to costs at present. This aspect can be left to the final judgment, provided always that we reach this point and that, the questions of admissibility having been resolved, the proceedings do not terminate by the parties arriving at an agreement.
   (
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      )	Translated from the German.