Court of Justice of the European Communities (including Court of First Instance Decisions)

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1 . OFFICIALS - ADMINISTRATIVE MEASURE ADOPTED AT THE REQUEST OF AN OFFICIAL - ILLEGALITY OF THE MEASURE - REMEDY OF THE PERSON CONCERNED - ADMISSIBILITY
2 . OFFICIALS - RATIONALIZATION OF DEPARTMENTS FOLLOWING THE MERGER TREATY - SCHEME FOR REMOVAL OF OFFICIALS - SUCH SCHEME CANNOT BE EQUATED WITH THE OTHER METHODS OF TERMINATION OF SERVICE PROVIDED FOR BY THE STAFF REGULATIONS - THOSE METHODS MAY NOT BE RELIED UPON AGAINST THE SYSTEM SPECIALLY PROVIDED FOR

1 . IF A DISPUTED MEASURE CONTAINS A DEFECT OF SUCH A NATURE AS TO RENDER IT ILLEGAL, IT MUST BE POSSIBLE TO MAKE AN APPLICATION AGAINST IT EVEN THOUGH THE MEASURE IS ADOPTED AT THE REQUEST OF THE OFFICIAL CONCERNED .
2 . REGULATION NO 259/68 SET UP A SYSTEM FOR THE REMOVAL OF OFFICIALS WHICH HAS NO EQUIVALENT AMONGST THE METHODS OF LEAVING THE SERVICE PROVIDED FOR IN THE STAFF REGULATIONS AND WHICH MAY BE EXPLAINED BY THE TEMPORARY AND EXCEPTIONAL REQUIREMENTS WHICH HAD TO BE MET FOLLOWING THE MERGING OF THE ADMINISTRATIONS . IT IS NOT PERMISSIBLE THEREFORE TO HAVE RECOURSE TO THOSE OTHER METHODS OF LEAVING THE SERVICE TO DEDUCE RIGHTS THEREFROM .

IN CASE 20/68
GIULIO PASETTI-BOMBARDELLA, PROFESSOR, RESIDING AT VENICE, ITALY, REPRESENTED AND ASSISTED BY PROFESSOR FELICIANO BENVENUTI, ADVOCATE OF THE VENICE BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, ADVOCATE, 34B RUE PHILIPPE-II,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, ARMANDO TOLEDANO-LAREDO, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF EMILE REUTER, LEGAL ADVISER TO THE COMMISSION, 4 BOULEVARD ROYAL,
DEFENDANT,
SUPPORTED BY
COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, RAFFAELLO FORNASIER,
INTERVENER,

APPLICATION FOR THE PARTIAL ANNULMENT OF THE DECISION OF 21 MAY 1968, WHICH BECAME DEFINITIVE ON 20 JUNE 1968, TO THE EXTENT TO WHICH THAT DECISION PRECLUDES THE CALCULATION OF THE APPLICANT'S PECUNIARY RIGHTS, AS A RESULT OF THE TERMINATION OF HIS SERVICE UNDER REGULATION NO 259/68, ON THE BASIS OF ARTICLE 42 OF THE STAFF REGULATIONS OF OFFICIALS OF THE ECSC OF 1956,

I - ADMISSIBILITY
1 . THE DEFENDANT CONTENDS THAT THE APPLICATION IS INADMISSIBLE, POINTING OUT THAT THE CONTESTED MEASURE DOES NOT ADVERSELY AFFECT THE APPLICANT, WHO HIMSELF REQUESTED THE MEASURE TERMINATING HIS SERVICES AND THE APPLICATION OF THE SYSTEM WHICH IS THE COROLLARY THEREOF . THIS REQUEST DEPRIVES HIM OF ALL RIGHT TO MAKE AN APPLICATION AGAINST THE CONTESTED DECISION .
2 IF THE DISPUTED MEASURE CONTAINS A DEFECT OF SUCH A NATURE AS TO RENDER IT ILLEGAL, IT MUST BE POSSIBLE TO MAKE AN APPLICATION AGAINST IT EVEN THOUGH THE MEASURE IS ADOPTED AT THE REQUEST OF THE OFFICIAL CONCERNED . THIS OBJECTION CANNOT THEREFORE BE SUSTAINED .
3 FURTHERMORE, THE DEFENDANT CONSIDERS THE APPLICATION TO BE INADMISSIBLE BECAUSE THE TERMINATION OF SERVICE WAS " CLEARLY " DIFFERENT FROM RETIREMENT, AND CONSEQUENTLY THE APPLICANT MAY NOT RELY ON ARTICLE 42 OF THE STAFF REGULATIONS OF 1956 TO DETERMINE THE RIGHTS WHICH HE DERIVES FROM A MEASURE TERMINATING HIS SERVICES ADOPTED IN ACCORDANCE WITH ARTICLE 4 OF REGULATION NO 259/68 .
4 THIS ARGUMENT, WHICH DERIVES FROM A COMPARISON OF THE TWO SYSTEMS, PERTAINS TO THE SUBSTANCE OF THE DISPUTE .
5 FINALLY, ACCORDING TO THE INTERVENER, THE APPLICATION IS INADMISSIBLE BECAUSE THE APPLICANT HAS NO INTEREST IN HAVING ARTICLE 7 OF REGULATION NO 259/68 DECLARED INAPPLICABLE TO THE PRESENT CASE, SINCE HE HAS LOST THE BENEFIT OF THE PROVISIONS CONCERNING NON-ACTIVE STATUS WITHOUT, HOWEVER, OBTAINING THE BENEFIT OF THOSE RELATING TO RETIREMENT .
6 IF ARTICLE 7(2 ) OF REGULATION NO 259/68 WERE DECLARED ILLEGAL AND INAPPLICABLE TO THE APPLICANT, THE EXECUTION OF THE JUDGMENT WOULD OBLIGE THE ADMINISTRATION TO TAKE A NEW DECISION TAKING INTO ACCOUNT THE RIGHTS WHICH THE ILLEGAL PROVISIONS HAD FAILED TO OBSERVE . THE APPLICANT HAS CONSEQUENTLY AN INTEREST IN HIS ACTION .
7 FROM ALL THESE FACTORS IT IS CLEAR THAT THE APPLICATION IS ADMISSIBLE IN ITS ENTIRETY .
II - SUBSTANCE
8 THE APPLICANT ALLEGES THAT ARTICLE 7 OF REGULATION NO 259/68 ON WHICH THE CONTESTED MEASURE IS BASED IS ILLEGAL BECAUSE IT INFRINGES THE RIGHT OF OFFICIALS IN GRADE A3 ESTABLISHED BEFORE 1 JANUARY 1962 TO HAVE THE PECUNIARY CONSEQUENCES OF THE TERMINATION OF THEIR SERVICES CALCULATED ON THE BASIS OF ARTICLE 42 OF THE STAFF REGULATIONS OF 1956 .
9 IN HIS VIEW THE MEASURE TERMINATING HIS SERVICES IN FACT CONSTITUTES A RETIREMENT WITHIN THE MEANING OF ARTICLE 42 OF THE STAFF REGULATIONS OF 1956 AND OF ARTICLE 50 OF THE STAFF REGULATIONS OF 1962 . HE DEDUCES FROM THIS THAT OFFICIALS IN GRADE A3 ARE AGAIN SUBJECT TO THE SYSTEM OF RETIREMENT WHICH HAD CEASED TO BE APPLICABLE TO THEM IN 1962 AND THAT CONSEQUENTLY THOSE WHO WERE ESTABLISHED BEFORE 1 JANUARY 1962 HAVE OBTAINED A RENEWAL OF THE LEGAL BASIS FOR THE CALCULATION OF THE PECUNIARY CONSEQUENCES OF THAT MEASURE IN ACCORDANCE WITH ARTICLE 42 WHICH MUST OPERATE IN THEIR FAVOUR .
10 IF THIS POINT OF VIEW IS PRESUMED TO BE CORRECT, IT REQUIRES IN ANY EVENT THAT THE TERMINATION OF SERVICE GOVERNED BY ARTICLES 4 ET SEQ . OF REGULATION NO 259/68 SHOULD CONSTITUTE RETIREMENT OR THAT IT MAY BE TREATED AS ENTIRELY EQUIVALENT TO RETIREMENT .
11 THIS IS NOT SO . FIRST OF ALL THE NEW SYSTEM IS TEMPORARY AND, UNDER THE TERMS OF ARTICLE 4(5 ) OF THE SAID REGULATION, AS LONG AS IT IS APPLICABLE IT PRECLUDES THE COMMISSION FROM TAKING DECISIONS AS TO NON-ACTIVE STATUS OR RETIREMENT ON THE CONDITIONS LAID DOWN IN THE STAFF REGULATIONS . SECONDLY, TERMINATION OF SERVICE CONCERNS OFFICIALS IN ALL GRADES, ALTHOUGH THE CONDITIONS UNDER WHICH IT MAY BE ADOPTED MAY DIFFER .
12 ALTHOUGH THE TERMINATION OF THE SERVICE OF OFFICIALS IN GRADES A1 AND A2 AT FIRST SIGHT RESEMBLES RETIREMENT, IT IS NONE THE LESS DIFFERENT IN THAT IT MAY ONLY BE ADOPTED IN THE CONTEXT OF A REDUCTION OF THE NUMBER OF POSTS AVAILABLE IN THE DETAILED LIST OF POSTS . WITH REGARD TO OTHER OFFICIALS AND PARTICULARLY THOSE IN GRADE A3, THE SYSTEM ESTABLISHED BY REGULATION NO 259/68 FURTHER DIFFERS FROM RETIREMENT BY GIVING GUARANTEES SUCH AS THAT OF THE INTERVENTION OF THE JOINT COMMITTEE AND BY ESTABLISHING CRITERIA OF ASSESSMENT IN THE SELECTION OF SERVANTS TO WHOM THE SAID MEASURE IS APPLIED .
13 MOREOVER OFFICIALS IN GRADE A3 AND BELOW AFFECTED BY SUCH A MEASURE MAY REQUEST NON-ACTIVE STATUS, WHICH LEAVES OPEN THE POSSIBILITY OF RETURNING TO THE SERVICE . FINALLY OFFICIALS ARE AUTHORIZED TO REQUEST ON THEIR OWN INITIATIVE A MEASURE TERMINATING THEIR SERVICE, WHICH IS PRECISELY WHAT THE APPLICANT DID .
14 IT IS CLEAR FROM THESE FACTORS THAT REGULATION NO 259/68 SET UP A SYSTEM FOR THE REMOVAL OF OFFICIALS WHICH HAS NO EQUIVALENT AMONGST THE METHODS OF LEAVING THE SERVICE PROVIDED FOR IN THE STAFF REGULATIONS AND WHICH MAY BE EXPLAINED BY THE TEMPORARY AND EXCEPTIONAL REQUIREMENTS WHICH HAD TO BE MET . FOR THIS VERY REASON THE APPLICANT CANNOT HAVE RECOURSE TO THOSE OTHER METHODS OF LEAVING THE SERVICE TO DEDUCE FROM THEM RIGHTS IN HIS OWN CASE .
15 THE APPLICANT STATES ALTERNATIVELY THAT EVEN IF ARTICLE 7 OF REGULATION NO 259/68 DOES NOT INFRINGE VESTED RIGHTS IT IS NONE THE LESS ILLEGAL IN THAT IT CREATES A DISCRIMINATION BETWEEN THE VARIOUS OFFICIALS ESTABLISHED BEFORE 1 JANUARY 1962, IN PARTICULAR BY ALLOWING OFFICIALS IN GRADES A1 AND A2 TO OPT FOR THE FINANCIAL SCHEME OF ARTICLE 42 OF THE STAFF REGULATIONS OF 1956, WHILST REFUSING THE SAME RIGHT TO OFFICIALS IN GRADE A3 WHO WERE NEVERTHELESS INITIALLY COVERED BY THE SAID ARTICLE 42 .
16 THE FINANCIAL SCHEME FOLLOWING TERMINATION OF SERVICE WAS GOVERNED BY ARTICLE 5 OF REGULATION NO 259/68, BUT ARTICLE 7 OF THAT REGULATION MITIGATES THE POSITION BY ALLOWING OFFICIALS IN ALL CATEGORIES WHO WERE ESTABLISHED BEFORE 1 JANUARY 1962 AND WHO ARE AFFECTED BY THAT MEASURE TO OPT ON LEAVING THE SERVICE FOR THE SCHEME OF ALLOWANCES AND PENSIONS SECURED FOR THEM BY THE STAFF REGULATIONS OF 1962 IF THAT SCHEME WERE TO SEEM TO THEM PREFERABLE TO THAT OF ARTICLE 5 .
17 FAR FROM BEING DISCRIMINATORY, THIS OPINION GIVES EQUALLY TO ALL OFFICIALS THE SAME CHOICE BETWEEN THE SCHEME OF ALLOWANCES PROVIDED FOR THEM BY REGULATION NO 259/68 AND THE SCHEME WHICH THEY MIGHT CHOOSE IF THEY LEFT THE SERVICE PURSUANT TO THE STAFF REGULATIONS OF 1962 . IT GRANTS THIS PARTICULARLY TO OFFICIALS OF THE ECSC HOLDING GRADES A1 AND A2 WHO WERE ESTABLISHED BEFORE 1962 AND WHO UNDER ARTICLE 99 OF THE STAFF REGULATIONS OF 1962 WERE ENTITLED ON RETIREMENT TO RELY ON THE SCHEME OF ARTICLE 42 OF THE STAFF REGULATIONS OF 1956 . IT ALSO GRANTS THIS TO OFFICIALS OF THE ECSC IN GRADES A3 AND BELOW WHO WERE ESTABLISHED BEFORE 1962 AND WHO, UNDER ARTICLE 99 OF THE STAFF REGULATIONS OF 1962, WERE ENTITLED TO RELY ON THE SCHEME OF ARTICLE 34 IN THE EVENT OF BEING ASSIGNED NON-ACTIVE STATUS .
18 THOSE LATTER OFFICIALS NEVERTHELESS COULD NOT HOPE TO HAVE THE SAME RIGHT AS THAT GRANTED TO OFFICIALS IN GRADES A1 AND A2 SINCE THE STAFF REGULATIONS OF 1962 NO LONGER PROVIDED WITH REGARD TO THEM EITHER FOR RETIREMENT OR FOR THE FINANCIAL SCHEME FOLLOWING THEREON . IN ACCORDING DIFFERENT TREATMENT TO SITUATIONS WHICH ARE NOT COMPARABLE THE REGULATION HAS NOT INTRODUCED A DISCRIMINATION . ON THE CONTRARY, IF THE REGULATION HAD ACCORDED TO OFFICIALS IN GRADE A3 THE RIGHT CLAIMED BY THE APPLICANT IT WOULD HAVE DISCRIMINATED AGAINST OFFICIALS IN GRADES A1 AND A2 WHO, WHILST HAVING THE SAME FINANCIAL TREATMENT, WOULD HAVE HAD REDUCED GUARANTEES, AND AGAINST OTHER OFFICIALS BELOW GRADE A3 IN SERVICE BEFORE 1962 WHO, WHILST HAVING THE SAME GUARANTEES, WOULD HAVE HAD A LESS FAVOURABLE FINANCIAL SCHEME .
19 IT IS CLEAR FROM ALL THESE FACTORS THAT THE COUNCIL HAS NOT INTRODUCED DISCRIMINATION BUT HAS ONLY TAKEN INTO ACCOUNT THE DIFFERENT POSITIONS UNDER THE STAFF REGULATIONS OF DIFFERENT CATEGORIES OF OFFICIALS . THE SUBMISSION IS THEREFORE UNFOUNDED .

20/21 THE APPLICANT HAS FAILED IN HIS APPLICATION . UNDER ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . NEVERTHELESS, UNDER ARTICLE 70 OF THE SAID RULES, IN PROCEEDINGS COMMENCED BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION AS UNFOUNDED;
2 . ORDERS BOTH PARTIES TO BEAR THEIR OWN COSTS .