Mr President, Members of the Court, the Case Before the Court Today
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OPINION OF MR ROEMER — CASE 42/69 OPINION OF MR ADVOCATE-GENERAL ROEMER DELIVERED ON 11 MARCH 19701 Mr President, ship of master and servant came to an end Members of the Court, on 30 September 1968 and that therefore the calculation must be effected on the basis The case before the Court today concerns of his salary at that date. This view was the application of the special provisions of intended to be conveyed in a letter from the Regulation No 259/68 of the Council of 29 Directorate General for Personnel and February 1968 which have already occupied Administration dated 25 June 1969, in the Court on several occasions and which which the applicant received details re were intended to allow the single Commis garding the calculation effected according sion to reduce the number of established to Article 12 of Annex VIII to the Staff posts and rationalize its services. The Regulations. The applicant is however of applicant in the present case was one ofthose the opinion that his service was terminated entitled to benefit under these provisions. only at the end of the first day of October On 14 March 1968, in accordance with 1968 and that therefore the calculation of Article 4 (3) of Regulation No 259/68, he the severance grant should be effected on submitted an application for his service to the basis of the salary to which he would be terminated, which the Commission have been entitled on 1 October 1968. He granted in principle by decision of 21 May therefore made an application to the Court 1968. Subsequently, the Commission fur on 23 September 1969, claiming the annul ther decided, on 20 June 1968, that the ment of the communication which he applicant's service would be terminated received from the Directorate General for with effect from 1 October 1968. The Personnel and Administration on 1 July applicant was informed of this decision in a 1969. letter from the Directorate General for Personnel and Administration dated 21 1. In deciding what ruling to give in this June 1968, which contained the following action the Court should first consider the words: 'La sopra-indicata decisione della question of admissibility, notwithstanding Commissione ... avrà effetto dal 1° ottobre the fact that the Commission has raised no 1968 ...' (The above-mentioned decision of objection on this issue. In this connexion the Commission shall take effect as from account must be taken above all of the 1 October 1968). This date is the cause ofthe nature of the contested measure. It has difficulties of the present case. On the basis already been emphasized in earlier cases of his previous career, as a result of which he that, in principle, in matters concerning the had attained the position ofhead of division law relating to officials only those measures in Grade A 3, the applicant was due for adopted by the appointing authority itself automatic advancement to the next step in can be contested. The appointing authority his grade on 1 October 1968, pursuant to for officials in Category A and the body Article 44 of the Staff Regulations, on competent to decide questions such as that condition that on that date he was still in which concerns us here is not the Director active employment with the Commission. General for Personnel and Administration, This fact is of importance inter alia for the who took the decision at issue in this case. calculation of his severance grant in ac This is clear from the general decision taken cordance with Article 6 of Regulation No by the Commission on 6 July 1967 pursuant 259/68 in conjunction with Article 12 of to Article 2 of the Staff Regulations for the Annex VIII to the Staff Regulations, since purpose ofdefining the appointing authority this is effected on the basis of the last basic and determining the extent of its powers. salary. As the Court is aware, the Com Strictly speaking therefore it would be mission is of the opinion that the relation- appropriate to conclude that the application 1 — Translated from the German. 166 CAFIERO ν COMMISSION for the annulment of the calculation con being of general application, is relevant only tained in the letter from the Director for the calculation of periods, that is to say General for Personnel and Administration the calculation of a specific number of days dated 25 June 1969 should be dismissed as which are to elapse after a given date, and inadmissible. It does not seem to me how before the expiration of which a certain ever that in the present case the matter at measure must be adopted. The situation issue should escape judicial review in this with which we are concerned does not way. We must not overlook the fact that correspond to these conditions, since here basically this case is concerned with a claim it is a matter of fixing the day upon which a for the enforcement of pecuniary rights certain decision was to take effect. This fact which arise by law under certain conditions should not be forgotten in considering the when the master and servant relationship statement contained in the letter from the is terminated. The Staff Regulations do not President of the Commission dated 22 May require that this claim should be preceded 1968, according to which the applicant was by an administrative procedure, in the sense to fulfil certain functions until the termina that a ruling may be sought from the Court tion of his service. This does not in fact only after the taking by the appointing constitute the fixing of a period within the authority of a definitive decision. meaning set out above but merely an It must therefore be recognized that, al indication of how the applicant was to though the appointing authority has not spend his time up to the moment when the made any final pronouncement, the examin decision terminating his service was to take ation of the questions raised does not effect. I am therefore convinced that there appear to be excluded and that the simplest can be no doubt on the question of the solution is to interpret the application for intention lying behind the fixing of the time annulment as an application for the pay at which the decision of 20 June 1968 was to ment of a sum of money or recognition of take effect. The only construction which can his right thereto. be put upon the words 'avrà effetto dal 1° ottobre 1968'in the letter of 21 June 1968 2. In assessing the matter at issue, to which from the Directorate General for Personnel I shall now turn after this brief preliminary and Administration is that the measure was survey, the Court is solely concerned to to take effect at the beginning of the stated ascertain when the applicant's service was day or, put in another way, at the end of the terminated. It will be clear from the answer previous day. This corresponds moreover to this question whether the relevant basis to general practice. It would have been very for calculation of his pecuniary rights is his unusual to terminate the service of an basic salary as at 30 September 1968 or as official at the end of the first day of a at 1 October 1968. calendar month. The Court will recall from the hearing that Nor can the applicant's argument be the principal basis of the applicant's case justified by reference to the Commission's is that, according to a generally accepted intention to accord certain advantages to principle, in calculating a period of time, departing officials. The applicant has in the dies ad quern is included in that period. mind here the provisions of Article 8 (3) In view of the fact that the date 1 October of Annex VII to the Staff Regulations, to 1968 was given in the relevant Commission the following effect: 'An official whose decision regarding the applicant's termina service is terminated in the course of a tion of service as the date on which this was calendar year ... shall, if he is in active to take effect, the applicant claims that employment in the service of an institution pursuant to the above-mentioned principle of the three European Communities for less it must be accepted that the decision took than nine months of that year, be entitled effect only on the expiry of 1 October 1968. only to part of the payment provided for in It can however readily be shown, in agree paragraph (1)' (that is to say a lump sum ment with the Commission, that this line payment in respect of travel expenses from of argument is mistaken. The principle the place where he is employed to his place relied upon by the applicant, so far from of origin). In this connexion the applicant 167 OPINION OF MR ROEMER — CASE 42/69 claims that the Commission in fact paid him which 1 October of every second year was the full lump sum payment for travel to be the date upon which he was to advance expenses in respect of 1968. However, it will to the next highest step, was never chal easily be seen that from the Commission's lenged by the applicant. In the present point of view such an action was possible context it alone is relevant. It would be a since, on the assumption that the applicant's mistake to take account of some such service was terminated on 30 September considerations of justice as those put for 1968, the nine months within the meaning ward by the applicant and to refer to an of Article 8 of Annex VII were completed earlier estimate of seniority for the purpose at the end of 30 September 1968.