1 THE APPLICANTS SUBMITTED APPLICATIONS, LODGED AT THE REGISTRY ON 21 APRIL 1969, 23 APRIL 1969, 10 JUNE 1969 AND 24 JUNE 1969, SEEKING IN THE FIRST PLACE THE ANNULMENT OF THE " NOTICES CONCERNING SETTLEMENT OF CLAIMS FOR THE ALLOWANCE PROVIDED FOR IN ARTICLE 5 OF REGULATION NO 259/63 AND, ALTERNATIVELY, AN ORDER THAT THE COMMUNITIES MAKE GOOD THE DAMAGE CAUSED BY THEIR WRONGFUL ACT OR OMISSION . THE APPLICATION FOR ANNULMENT ADMISSIBILITY
2 THE COURT IS ASKED TO RESTORE THE INTERPRETATION ORIGINALLY ADOPTED BY THE COMMISSION OF THE EEC CONCERNING THE PENSION RIGHTS PROVIDED FOR BY ARTICLE 5 OF REGULATION NO 259/68, AND, AS A CONSEQUENCE, TO ANNUL THE " NOTICES CONCERNING THE SETTLEMENT OF CLAIMS FOR THE ALLOWANCE PROVIDED FOR IN ARTICLE 5 OF REGULATION NO 259/68 OF THE COUNCIL ", ADDRESSED TO THE APPLICANTS .
3 WHILST IT IS TRUE, AS CLAIMED BY THE DEFENDANT, THAT ARTICLE 91 OF THE STAFF REGULATIONS DOES NOT PERMIT THE COURT TO RULE IN THE ABSTRACT ON THE INTERPRETATION TO BE GIVEN TO A PARTICULAR PROVISION OF THE STAFF REGULATIONS OF OFFICIALS, IN THE PRESENT CASE THE APPLICATION IS PRIMARILY DIRECTED AGAINST THE ABOVEMENTIONED NOTICES .
4 THESE NOTICES ARE INTENDED TO STATE DEFINITIVELY THE PECUNIARY RIGHTS DERIVED BY THE RESPECTIVE APPLICANTS UNDER THE PROVISIONS OF REGULATION NO 259/68 .
5 FROM THEIR WORDING IT IS EVIDENT THAT THE APPOINTING AUTHORITY INTENDED BY THESE NOTICES TO FIX THE AMOUNTS WHICH IT UNDERTAKES TO PAY TO THE APPLICANTS ON SPECIFIED DATES .
6 ACCORDINGLY, SINCE THESE ARE ACTS CAPABLE OF ADVERSELY AFFECTING THE APPLICANTS, THEIR APPLICATIONS ARE ADMISSIBLE . THE SUBSTANCE OF THE CASE
7 THE APPLICANTS CLAIM THAT THE COMMISSION CONTRAVENED THE FOURTH SUBPARAGRAPH OF ARTICLE 5 ( 7 ) OF REGULATION NO 259/68 BY NOT GRANTING THEM THE RIGHT TO A FULL PENSION WITH EFFECT FROM THEIR 55TH YEAR .
8 THEY ARGUE THAT THIS PROVISION ACCORDS TO EVERY FORMER OFFICIAL WHO HAS BEEN THE SUBJECT OF A MEASURE TERMINATING HIS SERVICE AND WHO HAS BEEN IN RECEIPT OF THE ALLOWANCE PROVIDED FOR IN ARTICLE 5, THE RIGHT TO A FULL PENSION ONCE HE HAS ATTAINED THE AGE OF 55 YEARS AND THE PERIOD DURING WHICH HE IS ENTITLED TO THE ALLOWANCE HAS CEASED .
9 THE WORDING OF THE PROVISION IN QUESTION SHOWS CLEARLY THAT THE RIGHT TO A FULL PENSION CAN ONLY VEST IN A FORMER OFFICIAL WHO, UPON THE EXPIRY OF THE PERIOD DURING WHICH HE IS ENTITLED TO THE ALLOWANCE, HAS ATTAINED THE AGE OF 55 .
10 THOSE WHO, LIKE THE APPLICANTS, WILL NOT YET HAVE ATTAINED THAT AGE AT THE END OF THE PERIOD DURING WHICH THEY ARE ENTITLED TO THE ALLOWANCE, CANNOT BENEFIT FROM THIS PROVISION .
11 THERE ARE, MOREOVER, GOOD SOCIAL GROUNDS FOR THE DISPUTED RESTRICTION OF THE RIGHT TO A PENSION .
12 THE REASON FOR THIS PROVISION IS OBVIOUSLY THE FACT THAT IT IS GENERALLY EXTREMELY DIFFICULT FOR OLDER PERSONS TO FIND FRESH EMPLOYMENT EQUIVALENT TO THAT WHICH THEY HAD AT THE TIME WHEN THEIR CAREER WAS INTERRUPTED .
13 IT IS THEREFORE REASONABLE TO GRANT TO FORMER OFFICIALS WHO, WHEN THEIR ALLOWANCE CEASES, HAVE ALREADY ATTAINED THE AGE OF 55 AND WILL THEREFORE FIND IT DIFFICULT TO OBTAIN OTHER INCOME EQUIVALENT TO THE LAPSED ALLOWANCE, THE RIGHT TO AN EARLY PENSION .
14 CONVERSELY, FORMER OFFICIALS FOR WHOM THE PERIOD DURING WHICH THEY ARE ENTITLED TO AN ALLOWANCE CEASES AT A LESS ADVANCED AGE AND WHO WILL GENERALLY BE YOUNGER AT THE TIME WHEN THEIR SERVICE TERMINATES, MAY BE PRESUMED CAPABLE OF FINDING DURING THE PERIOD IN WHICH THEY ARE ENTITLED TO AN ALLOWANCE A POST AND PROSPECTS SUFFICIENTLY STABLE FOR THEM NOT TO NEED A RIGHT TO AN EARLY PENSION .
15 THUS THE PROVISION IN QUESTION SEEMS TO ACCORD WITH THE SPIRIT AND GENERAL SCHEME OF THE RULES WHICH USUALLY GOVERN THE QUESTION, ALWAYS A DIFFICULT ONE, OF REDUCING STAFF .
16 THE INTERPRETATION ADOPTED BY THE CONTESTED DECISIONS IS THEREFORE CORRECT .
17 THE APPLICANTS FURTHER CLAIM THAT THE CONTESTED MEASURES WERE ADOPTED WITHOUT REGARD FOR THEIR VESTED RIGHTS .
18 IN THIS CONTEXT THEY MAKE REFERENCE TO THE STATEMENTS OF THEIR POSSIBLE PECUNIARY RIGHTS, SUPPLIED BY THE COMPETENT DEPARTMENTS OF THE COMMISSION OF THE EEC DURING THE MONTH OF MARCH 1968, WHICH WERE BASED ON AN INTERPRETATION OF THE DISPUTED PROVISION ACCORDING TO WHICH THE RIGHT TO A FULL PENSION ACCRUES TO ALL FORMER OFFICIALS IN RECEIPT OF THE ALLOWANCES, ONCE THEY HAVE REACHED THE AGE OF 55 YEARS AND THE PERIOD OF ENTITLEMENT TO THE ALLOWANCE HAS ENDED .
19 THESE STATEMENTS WERE SUPPLIED SOLELY BY WAY OF INFORMATION AND WERE NOT CAPABLE OF DETERMINING RIGHTS WHICH THE APPLICANTS WERE TO DERIVE FROM A GIVEN LEGAL SITUATION .
20 IT IS NOT THEREFORE, POSSIBLE TO CONCEDE THAT THE STATEMENTS HAVE THE CHARACTER OF MEASURES CREATING RIGHTS FOR THE ADDRESSEES .
21 THE APPOINTING AUTHORITY, BEING OBLIGED TO APPLY REGULATION NO 259/68 IN DEFINING THE APPLICANTS' PECUNIARY RIGHTS, COULD NOT APPLY THE INCORRECT INTERPRETATION ADOPTED IN THOSE STATEMENTS ONCE IT HAD BECOME AWARE OF THE MORE ACCURATE INTERPRETATION .
22 THE ARGUMENT BASED ON A SUPPOSED VIOLATION OF VESTED RIGHTS IS THEREFORE UNFOUNDED .
23 THE APPLICATION FOR ANNULMENT MUST THEREFORE BE DISMISSED . APPLICATION FOR DAMAGES ADMISSIBILITY
24 IN AN ALTERNATIVE CLAIM, SUBMITTED IN THE EVENT OF THE REJECTION OF THEIR APPLICATIONS FOUNDED ON THE INFRINGEMENT OF ARTICLE 5, THE APPLICANTS IN CASES 19/69 AND 20/69 HAVE ASKED THAT THE DECISIONS TERMINATING THEIR SERVICES BE ANNULLED, BECAUSE THEY ONLY REQUESTED SUCH MEASURES ON THE BASIS OF THE ERROR INTO WHICH THEY WERE LED BY THE WRONG INFORMATION SUPPLIED BY THE COMMISSION' S OWN DEPARTMENTS .
25 THE APPLICANTS IN CASES 25/69 AND 30/69 DO NOT SEEK TO BE REINSTATED BUT ASK THAT THE COMMISSION BE ORDERED TO PAY THEM A SUM EQUIVALENT TO THREE YEARS OF THEIR LAST SALARY .
26 IN THEIR REPLY THE APPLICANTS IN CASES 19/69 AND 20/69 WITHDREW THEIR REQUEST FOR ANNULMENT AND JOINED THE OTHER APPLICANTS IN REQUESTING THAT THE COMMISSION BE ORDERED TO PAY THEM A LIKE SUM BY WAY OF DAMAGES .
27 THE DEFENDANT HAS SUBMITTED THAT THESE REQUESTS ARE INADMISSIBLE ON THE GROUND THAT THEY ARE OUT OF TIME AND INSUFFICIENTLY SUPPORTED BY EXPRESS ARGUMENTS .
28 A PERUSAL OF THE PLEADINGS REVEALS, THOUGH WITH A MINIMUM OF CLARITY, THAT WHAT THE APPLICATIONS IN FACT ARE SEEKING IS AN ORDER AGAINST THE COMMUNITIES, BY VIRTUE OF THEIR LIABILITY FOR A WRONGFUL ACT OR OMISSION, TO MAKE GOOD THE DAMAGE CAUSED TO THE APPLICANTS BY THE SAID ACT OR OMISSION .
29 AN APPLICATION TO THAT EFFECT IS NOT SUBJECT TO THE LIMITATION PERIODS PRESCRIBED BY ARTICLE 91 .
30 THE DEFENDANT' S OBJECTION MUST THEREFORE BE REJECTED . THE SUBSTANCE OF THE CASE
31 FOR THE APPLICATION TO BE WELL FOUNDED IT MUST BE ESTABLISHED THAT THE DEFENDANT IS LIABLE FOR A WRONGFUL ACT OR OMISSION WHICH CAUSED THE APPLICANTS A STILL SUBSISTING INJURY .
32 IT IS NOT CONTESTED THAT THE APPROPRIATE DEPARTMENTS SUPPLIED THE APPLICANTS WITH INCORRECT INFORMATION CONCERNING THE RIGHTS WHICH THEY WOULD BE ABLE TO ASSERT IN THE EVENT OF TERMINATION OF THEIR SERVICE .
33 NOR IS IT CONTESTED THAT THIS INFORMATION WAS SUPPLIED AS A CONSEQUENCE OF THE REQUEST BY THE COMMISSION TO THE OFFICIALS CONCERNED TO CONTACT THE COMPETENT DEPARTMENTS IN ORDER TO OBTAIN INFORMATION ON THE RIGHTS WHICH THEY WOULD HAVE SHOULD ARTICLE 4 OF REGULATION NO 259/68 BE APPLIED .
34 THE OBSERVATIONS SUBMITTED BY THE DEFENDANT IN THE COURSE OF THE ORAL PROCEDURE SHOW THAT THE DEPARTMENTS CONCERNED DISCOVERED EARLY IN APRIL THAT THEIR INTERPRETATION OF THE DISPUTED PROVISION IN ARTICLE 5 WAS, IF NOT INCORRECT, AT LEAST VERY MUCH OPEN TO QUESTION AND THAT IT WAS NOT ACCEPTED BY THE CORRESPONDING DEPARTMENTS IN THE ECSC AND THE EAEC .
35 THIS DISCOVERY WAS IN FACT THE MAIN REASON FOR THE PUBLICATION ON 16 APRIL 1968 OF A COMMUNICATION FROM THE COMMISSION REMINDING STAFF THAT THE INFORMATION GIVEN WAS SUPPLIED ONLY AS A GUIDE AND WITHOUT COMMITMENT .
36 APART FROM THE EXCEPTIONAL INSTANCE, THE ADOPTION OF AN INCORRECT INTERPRETATION DOES NOT CONSTITUTE IN ITSELF A WRONGFUL ACT .
37 EVEN THE FACT THAT THE AUTHORITIES REQUEST THOSE CONCERNED TO OBTAIN INFORMATION FROM THE COMPETENT DEPARTMENTS DOES NOT NECESSARILY INVOLVE THOSE AUTHORITIES IN AN OBLIGATION TO GUARANTEE THE CORRECTNESS OF INFORMATION SUPPLIED AND DOES NOT THEREFORE MAKE THEM LIABLE FOR ANY INJURY WHICH MAY BE OCCASIONED BY INCORRECT INFORMATION .
38 HOWEVER, WHILST IT MAY BE POSSIBLE TO DOUBT THE EXISTENCE OF A WRONGFUL ACT CONCERNING THE SUPPLY OF INCORRECT INFORMATION, THE SAME CANNOT BE SAID OF THE DEPARTMENTS' DELAY IN RECTIFYING THE INFORMATION .
39 ALTHOUGH SUCH RECTIFICATION WAS POSSIBLE AS EARLY AS APRIL 1968 IT WAS DEFERRED WITHOUT ANY JUSTIFICATION UNTIL THE END OF 1968 .
40 WHILST IT WOULD HAVE BEEN SIMPLE BY MEANS OF A GENERAL ANNOUNCEMENT OR AN INDIVIDUAL NOTICE TO RECTIFY AN ERROR OF INTERPRETATION WHICH WAS CAPABLE OF INVALIDATING A WHOLE GROUP OF STATEMENTS, THE COMMUNICATION ISSUED IN APRIL 1968 GIVES THE IMPRESSION THAT IT CONCERNS SOLELY POSSIBLE ARITHMETICAL OR SIMILAR ERRORS, DIFFICULT TO IDENTIFY AND WHICH COULD HAVE BEEN DUE TO THE SPEED WITH WHICH THE SEPARATE STATEMENTS WERE DRAWN UP .
41 A CORRECTION MADE SHORTLY BEFORE OR AFTER 16 APRIL, THAT IS TO SAY, BEFORE THE TIME WHEN THOSE CONCERNED HAD TO MAKE THEIR DECISION, WOULD HAVE CERTAINLY ENABLED THE DEFENDANT TO AVOID ALL LIABILITY FOR THE CONSEQUENCES OF THE WRONG INFORMATION .
42 THE FAILURE TO MAKE SUCH A CORRECTION IS, ON THE OTHER HAND, A MATTER OF SUCH A NATURE AS TO RENDER THE COMMUNITIES LIABLE .
43 THE APPLICANTS HAVE FAILED, HOWEVER, TO ADDUCE SUFFICIENT EVIDENCE TO ESTABLISH THAT THEIR REQUESTS FOR TERMINATION OF SERVICE WERE BASED ON THE WRONG INFORMATION SUPPLIED TO THEM AND NOT CORRECTED IN GOOD TIME .
44 MOREOVER, THE FACT THAT THEY HAVE ALL WAIVED A REQUEST FOR REINSTATEMENT IN THE DEPARTMENTS OF THE COMMISSION REINFORCES THE CONVICTION THAT THE PROSPECT OF A RIGHT TO AN UNREDUCED PENSION FROM THE AGE OF 55 WAS NOT A DECIDING FACTOR IN THEIR DECISION TO REQUEST THE APPLICATION OF ARTICLE 4 OF REGULATION NO 259/68 .
45 ON THE OTHER HAND IT WOULD BE REASONABLE TO ASSUME THAT, UNDER THE IMPRESSION THAT THEY WOULD RECEIVE A FULL PENSION FROM THE AGE OF 55, THE APPLICANTS DID NOT TAKE INTO CONSIDERATION THE POSSIBILITY OF RENOUNCING THEIR PENSION RIGHTS UNDER ARTICLE 6 OF REGULATION NO 259/68 IN ORDER TO BENEFIT FROM THE GRANT PROVIDED FOR BY THAT ARTICLE .
46 SINCE THE PERIOD FOR REQUESTING THE APPLICATION OF ARTICLE 6 HAS EXPIRED THE APPLICANTS ARE NO LONGER IN A POSITION TO TAKE ADVANTAGE OF IT SHOULD THEY PREFER IT TO THE SCHEME LAID DOWN IN ARTICLE 5 AS INTERPRETED BY THIS JUDGMENT .
47 THE DAMAGE THEY MAY HAVE SUFFERED BY VIRTUE OF THIS FACT WILL BE MOST EFFECTIVELY MADE GOOD BY RESTORING THEM TO THE SITUATION IN WHICH THEY WOULD OTHERWISE HAVE BEEN .
48 AS COMPENSATION FOR THE INJURY WHICH THEY HAVE SUFFERED, IT IS THEREFORE APPROPRIATE TO ALLOW THEM A FRESH LIMITATION PERIOD AND TO RULE THAT FOR THEM THE PERIOD LAID DOWN IN ARTICLE 6 SHALL BE DEEMED TO RUN FROM THE DATE OF THIS JUDGMENT .