CELEX: 61968CC0003
Language: en
Date: 1968-06-25
Title: Opinion of Mr Advocate General Gand delivered on 25 June 1968. # Fernand De Schacht v Council of the European Communities. # Case 3-68.

OPINION OF MR ADVOCATE-GENERAL GAND
   DELIVERED ON 25 JUNE 1968 (
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      )
   
      Mr President,
   
      Members of the Court,
   The application made to you by Mr De Schacht at the beginning of this year comes a long time after the entry into force of the Staff Regulations of Officials of the EEC and EAEC in 1962.
   The applicant, a Belgian born in 1924, had been an official in Grade A1 in the Secretariat of the Council of the ECSC in Luxembourg since 15 November 1952. When the Treaties of Rome established a Council for each of the new Communities, there arose the problem of the recruitment of officials for those institutions which until the Treaty of 8 April 1965, while retaining their individual character, had a single Secretariat in common. You have seen from the file the various solutions which were adopted either successively or simultaneously during the transitional period in order to utilize the services of officials established under the ECSC Staff Regulations, the choice being to a large extent determined in each case by the person concerned as well as a comparison with the solutions adopted for their part by the new Commissions. The principal solutions were the following: posting to Brussels by means of transfer which left the official wholly subject to the Staff Regulations of the ECSC; leave on personal grounds allied to a ‘Brussels contract’; resignation, again accompanied by a ‘Brussels contract’.
   In order to determine Mr De Schacht's position, successive use was made of these various possibilities. The applicant seems first to have performed his duties in Brussels from 1958 without any decisions being taken altering his previous position. His posting to Brussels took effect from 1 September 1960 by means of a transfer in the interest of the service. Subsequently, at his request he was granted leave oh personal grounds for two years by a decision of the Secretary-General of the Special Council of Ministers of the ECSC, also with effect from 1 September 1960, thus rescinding the previous decision with retroactive effect. At the same time he held a so-called Brussels contract. Finally, after the publication of the Staff Regulations of Officials of the EEC and EAEC, a decision was taken on 11 July 1962, which is the distant origin of the dispute and on which you must rule.
   This decision establishes him in Grade Al, Step 5, as an official of the Communities; the preamble to the operative part of the measure leaves no doubt that that expression should be understood to refer to the EEC and the EAEC. According to Article 2 thereof, it involves the termination of the service of the person concerned as an established official of the ECSC, taking into account the application of Articles 102(5) and 103 of the Staff Regulations. It takes effect from 1 January 1962, that is to say, the date of the entry into force of both the EEC Staff Regulations and the new ECSC Staff Regulations.
   At the time Mr De Schacht did not perceive any consequence resulting from that decision, which transferred him from the former Staff Regulations to the EEC-EAEC Staff Regulations, as to the cancellation of the rights which he had been able to acquire under the ECSC system. He states in his application that on several occasions he discussed the position with the administration to no avail, but he makes no mention of these discussions in the memorandum sent by him on 30 August 1967 to the Secretary-General of the Council. On that date he merely sought the repayment of the sum standing to the credit of his account in the provident fund of the ECSC. On his request's being rejected on 30 October 1967, he repeats and extends it in the present application, the admissibility of which is not in dispute.
   
            1. 
         
         
            His line of argument is based on Article 62(a) and (b) of the General Regulations annexed to the Staff Regulations of Officials of the ECSC of 1956. This article provides that an official aged less than sixty years whose service terminates otherwise than by reason of death or invalidity and who is not entitled to a retirement pension shall be entitled on leaving the service to payment of the capitalized sum standing to the credit of his account in the provident fund of the staff of the Community and of the capitalized aggregate amount deducted from his salary in respect of his pension contributions.
            These provisions are repeated in Article 12 of Annex VIII to the new Staff Regulations of Officials of the ECSC of 1962, subject to the proviso that in that article they apply in cases of definitive termination of service (‘qui cesse définitivement ses fonctions’— ‘whose service terminates’).
            Mr De Schacht fulfils all these conditions; in particular — as stated in the decision of 11 July 1962—his service with the ECSC terminated on the previous 1 January. Further, Article 62 of the former General Regulations and Article 12 of Annex VIII to the new Staff Regulations have a general scope which regard to the condition of termination of service; they only exclude cases in which there is a risk of a plurality of benefits by the payment of the sums provided for by those articles as well as a death, invalidity or retirement pension. The argument in the decision of 30 October 1967 rejecting his request, to the effect that there was never at any time during the applicant's career ‘a break in the relationship under the Staff Regulations’, is therefore incorrect and irrelevant.
            In addition, the contested decision misconstrues the interpretation given to Article 62 by your judgment of 15 July 1960 in the Campolongo case (Rec. 1960, p. 795) which only permits the relevant institution to refuse repayment, of the sums paid into the provident fund in the case of an agreement for the unification or merger of provident and pension funds for all the Communities, which was not the case in either 1967 or 1960.
            Finally, the decision also misconstrues Article 52 of the General Regulations and Article 4 of Annex VIII to the new Staff Regulations. According to these articles, an official who after leaving the service of one of the institutions takes up active employment again with his institution or with another Community has the choice whether or not to request that, for the purpose of calculating his retirement pension rights, the whole of his period of service in the three European Communities be taken into account, subject to his repaying the sums paid to him under the ECSC scheme.
         
      
            2. 
         
         
            I do not consider that Mr De Schacht's argument can be accepted.
            In order to counter it, the Council of the Communities relies essentially on the fact that, by reason of the date on which the applicant was placed under the EEC-EAEC system, he was not able to take advantage of the provisions of Article 62 of the former General Regulations or of Article 12 of Annex VIII to the new ECSC Staff Regulations.
            I am not going to go over the whole of this line of argument again. What must first be emphasized is that, as Mr De Schacht was integrated as from 1 January 1962 as an official of the EEC and EAEC by a decision which was never contested, the Staff Regulations of those Communities were wholly applicable to him from that moment subject to the provisoes which I shall point to later. These Staff Regulations involve the principle of the continuity of an official's career in any institution or Community to which he may have belonged. Although Article 2 of Annex VIII to the EEC-EAEC Staff Regulations provides that a retirement pension shall be payable on the basis of the total number of years of pensionable service completed by the official, Article 3 specifies that for the purpose of that calculation the period of service as an official of one of the institutions of the three Communities shall be taken into account, provided that the servant concerned has paid his share of the pension contribution in respect of such periods of service.
            One must without doubt take into account here the provisions of Article 102(5) of the EEC Staff Regulations — the decision of 11 June 1962 expressly mentions this. These provisions refer precisely to this case, that is to say, that of an official of the ECSC first granted leave on personal grounds in order to serve in an institution of the other two Communities and integrated in those new Communities under the transitional provisions. They give the person concerned the benefit of the transitional provisions of the new ECSC Staff Regulations, namely the retention of certain advantages acquired under the former ECSC Staff Regulations, which the Council enumerated during the oral procedure and which are by no means negligible: in particular the double amount of the reinstallation allowance on termination of service, retention of a more advantageous scheme on the abolition of posts, and for servants who, like the applicant, were already classified in Grade Al or A2 under the former ECSC Staff Regulations, the application of the more favourable provisions of those former Regulations on being retired by the administration in the interest of the service.
            We may see here — without perhaps drawing such precise conclusions as the Council — that Article 99(4) of these transitional provisions specifies that for the calculation of the severance grant the periods of service which an official has actually completed with the three Communities before becoming subject to the new ECSC Staff Regulations are to be taken into account. It is at least evidence of the very general nature which for their part the authors of those Regulations wished to give to the concept of the continuity of a career.
            But it must also be said that these ECSC transitional provisions, which are applicable to officials integrated under the EEC-EAEC Staff Regulations by reference to Article 102(5), can only benefit the persons concerned to the extent to which they are compatible with their new conditions of service. This, contrary to what Mr De Schacht maintains, is why Article 98 of the new EAEC Staff Regulations, which authorizes an official on leave on personal grounds at the time of their entry into force to retain the advantage of such leave until its normal expiry, clearly cannot apply to his case, because as his leave was intended solely to enable him to take up service in the new Communities it lost all point as soon as Mr De Schacht became an established official of those Communities.
         
      
            3. 
         
         
            One may now examine Mr Le Schacht's claims in the light of all the provisions governing his status. The result seems to me to be the same whether he bases them on Article 62 of the General Regulations of 1956 or on Article 12 of Annex VIII to the Staff Regulations of 1962. In both cases these provisions taken together only appear to me to be capable of being applied when an official finally leaves not merely the institution to which he belongs but the Communities. This is what was stated in respect of the severance grant by your judgment in the Campolongo case, when you ruled that the ‘severance’ referred to in Article 62(1) of the General Regulations must ‘presumably be understood as meaning severance from the Community service’. And this becomes even clearer if one refers to Article 12 of Annex VIII which speaks of an official ‘whose service terminates’.
            This ‘severance’, which is the main question with regard to the articles in dispute, as you have interpreted it determines not only the severance grant properly so-called (subparagraph (c)) but also in principle the sums in the provident fund (subparagraphs (a) and (b)). It is only when an official breaks the ties binding him to one Community without immediately forming fresh ties with another that he is entitled to the benefit of these options. One then sees the limited scope to be attributed to the provision of Article 52 of the General Regulations of 1956, repeated in Article 4 of Annex VIII, on the choice open to an official who after leaving the service of an institution takes up active employment again: it presupposes that the person concerned has ceased to belong to ‘the services of the Communities’. This is the only logical reason justifying any derogation from the general principle of the continuity of a career and of the taking into account of all periods of service for calculating pensions.
            The interpretation appears to me to be confirmed by the provisions applicable to a seconded official (Article 8 of the ECSC Staff Regulations of 1962 and Article 8 of hte EEC-EAEC Staff Regulations). These articles provide that such an official may after six months apply to be transferred and, if consent is forthcoming, he shall be deemed to have served his entire service career in the Community in the institution to which he is transferred. But they go on to state that he shall not receive by virtue of such transfer any of the financial benefits which an official is entitled to receive on termination of service.
            Against this, Mr De Schlacht advances the solution adopted by your judgment in the Campolongo case for payment of the sums standing to the credit of that official's account in the provident fund. I do not dream for a moment of contesting that solution, but I do think that it is explained by the circumstances of the case — which were very different from those of the present case — and that the applicant is wrong in any event in attributing to it the force of a ‘leading case’. Mr Campolongo resigned from the ECSC to enter the service of the European Investment Bank, a body created, it is true, by the Treaty of Rome and whose Statute forms the subject-matter of a protocol annexed thereto, but which in no way constitutes an ‘institution’, within the proper meaning of the word, of the EEC. Consequently, its staff is completely unaffected by the Staff Regulations of Officials of the EEC and in particular by the pension scheme to which such officials are compulsorily subject, just as disputes between it and its staff do not fall within your jurisdiction. In those circumstances one cannot talk of the continuity of a career or of the taking into account of all years of service for the constitution of a single pension and it is understandable that you remarked at that time that the person concerned had become subject to a new social security scheme the details of which we are still unaware of. From this point of view, his position was no different from that of an official who left the Community to enter a private bank, and therefore has nothing in common with the position of Mr De Schacht who changed from an institution of one Community to another Community, but continued his previous career in his new post and is subject to an essentially identical pension scheme even though there is no agreement merging the provident funds (although the Joint Regulation of 10 July 1963 was concerned with laying down detailed rules for the payment of pensions for officials who had served part of their career with the ECSC, and the apportionment of the resulting financial burden between the ECSC pension funds and the budgets of the EEC and the EAEC).
            One last argument remains, to which Mr De Schacht repeatedly returned and which stems from the solution adopted in the case of one of his former colleagues in the Secretariat of the Council of the ECSC. This official, who changed to the service of the EEC Commission after a career similar to his, nevertheless obtained payment of the sums standing to the credit of his account in the provident fund. The file does not enable it to be established whether the applicant's allegations are correct, but I do not think that they supply any reason for calling for corroboration or further particulars. The only point submitted to you is in fact whether, by refusing Mr De Schacht payment of the sums standing to the credit of his account in the provident fund, the Council misconstrued the provisions of the Staff Regulations. This is purely a question of law and the answer depends on the interpretation to be given to the Staff Regulations and not on the application of them — rightly or wrongly — in other cases.
         
      I am of the opinion:
   
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            that Mr De Schacht's application should be dismissed;
         
      
            —
         
         
            that the applicant should bear the costs, subject to the provisions of Article 70 of the Rules of Procedure.
         
      (
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      )	Translated from the French.