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

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Officials - Leave on personal grounds - Reinstatement - Place of employment not in accordance with the family interests of the official - Infringement of duty to have regard to officials' interests - None
( Staff Regulations, Art . 40 ( 4 ) ( d ) )

The administration' s duty to have regard to officials' interests does not give an official on leave on personal grounds the right to be reinstated in a vacant post at a particular place of employment according to his personal interests . His reinstatement in the first post corresponding to his grade which falls vacant in his category or service is to be effected with regard to the criteria set out in Article 40 ( 4 ) ( d ) of the Staff Regulations . While it is true that the Appointing Authority may be bound, when exercising the discretionary powers conferred upon it by that provision, to take account of important family interests, such interests cannot, however, constitute the decisive factor .

In Case 12/87
Erica Zeyen ( née Heyl ), a former official of the Commission of the European Communities, represented by J.-N . Louis, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Y . Hamilius, 11 boulevard Royal,
applicant,
v
Commission of the European Communities, represented by its Legal Adviser, P . Kalbe, acting as Agent, with an address for service in Luxembourg at the office of G . Kremlis, a member of its Legal Department, Jean Monnet Building, Kirchberg,
defendant,
APPLICATION for the annulment of the Commission' s decision of 25 March 1986 requiring the applicant to resign with effect from 1 April 1986 and for an order that the applicant be reinstated in a post of her category and grade with effect from 5 January 1979 and for the payment of sums equivalent to the remuneration which she would have received by virtue of such reinstatement,
THE COURT ( Second Chamber )
composed of : O . Due, President of Chamber, K . Bahlmann and T . F . O' Higgins, Judges,
Advocate General : C . O . Lenz
Registrar : D . Louterman, Administrator
having regard to the Report for the Hearing and further to the hearing on 9 February 1988,
after hearing the Opinion of the Advocate General delivered at the sitting on 9 March 1988
gives the following
Judgment

1 By an application lodged with the Court Registry on 21 January 1987, Erica Zeyen ( née Heyl ), an official of the Commission, brought an action for the annulment of the Commission' s decision of 25 March 1986 requiring her to resign with effect from 1 April 1986 and an order requiring the Commission to reinstate her with effect from 5 January 1979 and to pay her sums equivalent to the remuneration which she would have received from that date .
2 Mrs Zeyen, an official in Grade C 1 at the Joint Research Centre at Ispra, was on leave on personal grounds from 5 January 1976 to 5 January 1979 . By a letter of 19 February 1979, she expressed her desire to be reinstated as a member of the Commission' s staff .
3 On 4 February 1982, the administration of the establishment at Ispra offered Mrs Zeyen a post in the Department for Applied Sciences and Technology . By a letter of 15 February 1982, Mrs Zeyen informed the Commission that, for family reasons, she was interested in being reinstated at Luxembourg rather than at Ispra; the Commission advised her to contact the Personnel Division in Luxembourg directly .
4 On 15 October 1984, the Commission offered her a principal secretary' s post in Grade C 1 vacant at the Joint Research Centre at Ispra, stressing that it was a second offer within the meaning of Article 40 ( 4 ) ( d ) of the Staff Regulations . On 28 October 1984, Mrs Zeyen confirmed that she contemplated reinstatement solely in Luxembourg and that reinstatement at Ispra was contrary to her wishes .
5 On 25 March 1986, the Director-General of the Joint Research Centre at Ispra decided to require Mrs Zeyen to resign with effect from 1 April 1986 . In that decision it was stated that, by letters of 4 February 1982 and 15 October 1984, the Commission had offered Mrs Zeyen a post in her category corresponding to her grade for the purpose of her reinstatement and that by her letters dated 15 February 1982 and 28 October 1984 she had refused those offers of employment .
6 On 18 June 1986, Mrs Zeyen lodged a complaint against that decision under Article 90 ( 2 ) of the Staff Regulations . As that complaint was not answered, she brought the present action, in support of which she claims that there has been an infringement of the second paragraph of Article 49 and Article 40 ( 4 ) ( d ) of the Staff Regulations and that the administration has failed to observe the principle of good faith and its duty to have regard to officials' interests .
7 Reference is made to the Report for the Hearing for a fuller account of the legal background to the dispute, the facts of the case and the arguments of the parties, which are mentioned hereinafter only in so far as is necessary for the reasoning of the Court .
8 With regard to the application for annulment, it should be observed that, according to Article 49 of the Staff Regulations, an official may be required to resign in the case provided for in Article 40 ( 4 ) ( d ) of the Staff Regulations, that is to say if he declines a second offer of employment after the expiry of leave on personal grounds .
9 The applicant does not contest the validity of the first offer of employment of 4 February 1982 but considers that it was withdrawn by the Commission in view of the Ispra administration' s statements regarding the possibility of reinstatement at Luxembourg and, consequently, that the offer was not declined within the meaning of Article 40 ( 4 ) ( d ) of the Staff Regulations .
10 The Commission considers that the letter of 15 February 1982 by which the applicant expressed her desire to be reinstated at Luxembourg rather than at Ispra constitutes a refusal of that first offer of employment .
11 In that connection it should be observed first of all that the fact that the administration at the Ispra centre suggested that the applicant should ask the Commission in Luxembourg about the availability of posts with a view to possibly being reinstated in the Grand-Duchy cannot be regarded as constituting an annulment of the first offer of employment . It appears from the Commission' s letter of 8 March 1982 that it was not possible to reserve the vacancy at Ispra for transfer to Luxembourg .
12 Secondly, it should be noted that the Community administration' s duty to have regard to an official' s interests does not give that official a right to be reinstated at a particular place of employment in accordance with his or her personal interests . The official is to be reinstated in the first post corresponding to his grade which falls vacant in his category on the basis of the criteria set out in Article 40 ( 4 ) ( d ). While it is true that the Appointing Authority may be under a duty to take account of important family interests when exercising its discretionary powers under the abovementioned provision, it must none the less be made clear that such family interests cannot constitute the sole decisive factor, having regard to Article 40 ( 4 ) ( d ), which states that the official is to be reinstated in the first post which falls vacant .
13 It must therefore be held that the first offer of employment was valid . As the applicant did not accept that offer of employment, it must be concluded that she declined it .
14 The applicant then claims that the second offer of employment of 15 October 1984 in no way met the criteria set out in Article 40 ( 4 ) ( d ) of the Staff Regulations inasmuch as the post offered corresponded neither to her grade nor to her abilities .
15 The Commission maintains that this second offer of reinstatement was also declined by the applicant, thus justifying her compulsory resignation . The Commission observes that, although the applicant did not expressly decline this last offer made to her, she nevertheless did not accept it in good time .
16 As far as this issue is concerned, it must be stressed that the second offer of employment expressly referred to a post in Career Bracket C 5/C 4 as described in the vacancy notice appended to the letter of 15 October 1984 . The applicant was, however, entitled to be reinstated in a post in Grade C 1 . In view of the reference to the vacancy notice relating to a post in Career Bracket C 5/C 4, the Commission' s letter in no way established that the post offered corresponded to the applicant' s grade and abilities, as required by Article 40 ( 4 ) ( d ) of the Staff Regulations .
17 With regard to the Commission' s argument that it was planned to attach to the post offered responsibilities corresponding to the applicant' s grade and abilities, it must be observed that the Commission failed to inform the applicant in good time, in accordance with the requirements of the aforementioned provision, that the post offered met all the criteria of equivalence set out in Article 40 ( 4 ) ( d ) of the Staff Regulations . In view of that omission, it must be held that the Commission did not make a second valid offer of employment and, consequently, that the conditions required for the applicant' s compulsory resignation were not fulfilled .
18 The appeal against the Commission' s decision of 25 March 1986 is thus well founded inasmuch as the second offer of employment was irregular .
19 The applicant' s request to be reinstated with retroactive effect from 5 January 1979 and her claim in damages for the payment of sums equivalent to the remuneration which she would have received from 5 January 1979 had she been reinstated from that date are inadmissible inasmuch as those claims neither explicitly nor implicitly formed part of the subject-matter of the complaint procedure under Articles 90 and 91 of the Staff Regulations .

Costs
20 Under Article 69 ( 2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs . However, under Article 70 of those rules, the institutions are to bear their own costs in proceedings brought by officials of the Communities . As the applicant has been only partly successful, she must bear half her own costs .

On those grounds,
THE COURT ( Second Chamber )
hereby :
( 1 ) Annuls the Commission' s decision of 25 March 1986 requiring the applicant to resign;
( 2 ) Dismisses the remainder of the application as inadmissible;
( 3 ) Orders the Commission to pay its own costs and half of those of the applicant .