OPINION OF MR ADVOCATE-GENERAL CAPOTORTI
DELIVERED ON 6 OCTOBER 1977 ( 1 )
Mr President,
Members of the Court,
1.
The substance of the dispute between Mr Robert Giry and the Commission, which has given rise to the three Joined Cases 126/75, 34/76 and 92/76, is concerned with the following question: if, despite the provisions of Article 40 (4) (d) of the Staff Regulations of Officials, an official has not, after the expiry of a period of leave, been reinstated in the post within the prescribed time, is he to be recognized as having the right to be reinstated retroactively (or from the date when the leave expired) for all purposes, in particular as regards the payment of salary?
The said provision lays down that an official granted, at his own request, unpaid leave on personal grounds ‘must’ on its expiry ‘be reinstated in the first post corresponding to his grade which falls vacant in his category or service, provided that he satisfies the requirements for that post’.
Viewed in the light of the material facts in these cases, the question set out above may be couched in more specific terms, namely, can the official claim, as arrears of remuneration or at least as compensation for damage, the whole of the salary which he would have received if he had been taken back into the service as soon as the leave expired, regardless of the fact that he may have received other remuneration for different work performed outside the Community institutions during the time when his reinstatement was delayed?
Before I go into the substance of these questions a brief reference must be made to the circumstances underlying the present cases.
2.
The applicant was engaged on 1 January 1961 as Principal Administrator in Grade A 4 at the Commission. At his own request he was granted leave on personal grounds with effect from 12 October 1970 in accordance with Article 40 of the Staff Regulations of Officials. This leave expired on 11 October 1973. On 22 January 1973 the applicant requested the application to him of Regulation (EEC) No 2530/72 of the Council, which provided for special, favourable conditions for the termination of service of officials on the occasion of the accession of new Member States to the Community but three months later, while the request was still pending, he informed the Commission that he wished to be reinstated on the conclusion of his leave, that is to say, as from 12 October 1973. He therefore asked to be informed what post would be offered to him in accordance with Article 40 (4) (d) of the Staff Regulations of Officials.
The Commission subsequently refused to grant the applicant the privileges of Regulation (EEC) No 2530/72 on the ground that it was not applicable to officials on personal leave. He brought proceedings before this Court against the decision refusing his application but the action was dismissed by the judgment of 21 November 1974 [1974] ECR 1269.
During the whole of this period, although the division of the Commission responsible for recruitment, appointments and promotions had on 11 July 1973 received a note from the head of the Establishment Division asking that the applicant should be treated as a candidate for the posts available in career bracket A 5/A 4, it did nothing to fulfil the obligation to reinstate which, under Article 40, is imposed on the institution on the expiry of the period of leave on personal grounds, the precise terms of which the Court took the opportunity of repeating in the aforesaid judgment (see paragraph 15 of the decision).
On 6 January 1975, shortly after publication of the said decision, the applicant submitted a request to the Commission under Article 90 (1) of the Staff Regulations that it should take a decision concerning him, with the object of securing his reinstatement back-dated to 12 October 1973. Subsequently, on 3 July, the applicant lodged a complaint against the Commisssion's failure to reply. In the continued absence of a reply, he brought an action before the Court on 19 December 1975(Case 126/75) for his reinstatement and, in addition, annulment of all the appointments to posts in Grade A 4 or career bracket A 5/A 4 made since 12 October 1973 in respect of which the defendant was unable to prove that he did not possess the requisite qualifications. An application to the same effect was submitted by Mr Giry in the subsequent action on 21 April 1976 initiating Case 34/76 in relation to all the appointments made in Grade A 4 or career bracket A 5/A 4 between 8 April 1975 and 21 April 1976.
Finally, by letter of 1 March 1976, the Commission invited Mr Giry to return to work and to occupy a supernumerary post established at the Directorate-General for Regional Policy. With a view to compensating the applicant for the delay in dealing with the question of his reinstatement, the Commission's proposal provided that the period between 12 October 1973 and the day on which he resumed work should count for the purposes of determining his seniority in grade and step; however, according to the Commission, the reinstatement had in all other respects to take effect from the day on which he actually resumed work.
By letter of 12 March 1976, the applicant declined the offer and reiterated the request designed to ensure that his reinstatement should take effect for all purposes from 12 October 1973. I do not consider it necessary to dwell on the numerous questions relating to form and substance raised in the 37 paragraphs of which this letter is composed. In effect the applicant was seeking, for the whole period between the end of leave on personal grounds and the date of his actual return to work, the whole of the remuneration appropriate to the grade and step which the Commission, for the purposes of his seniority in his career bracket, had stated that it was prepared to grant him retroactively.
In another letter dated 1 June 1976, the Agent of the Commission empowered to represent it in Cases 126/75 and 34/76 stated that acceptance of the post which the Commission had offered to the applicant for the purposes of his reinstatement would not have prevented Mr Giry from continuing to press the claims contained in the conclusions in those proceedings before the Court.
In face of Mr Giry's persistence in his attitude (see the letter from the applicant's lawyer dated 2 July 1976, Annex 21 to the observations on the objection of inadmissibility of Application 92/76) the Commission, on 29 July 1976, adopted a formal decision to reinstate the applicant. In the recitals to the decision it was stated inter alia that the provisions in Article 4 of the Staff Regulations that ‘no appointment or promotion shall be made for any purpose other than that of filling a vacant post’ stood in the way of a decision to reinstate him with retroactive effect. The Commission nevertheless considered that it would be fair to carry the date of seniority in grade and step back to the date in which the settlement should have taken place. It accordingly provided for the applicant's reinstatement with effect from 15 August 1976 in a Grade A 4 post at the Directorate-General for Regional Policy and for the applicant to be recognized as having the same seniority in grade and step as he would have had if he had returned to work on 12 October 1973. Finally, the decision provided for the period 12 October 1973 — 14 August 1976 to be taken into account for the purposes of the pension scheme subject to payment of the appropriate contributions by the applicant.
In a letter communicating this decision to Mr Giry he was invited to supply the Commission with details of the remuneration which he had received outside the Community between 12 October 1973 and 15 August 1976‘in order to enable the Commission to calculate any financial loss suffered as the result of the delay in reinstatement’.
On 27 September 1976 the applicant brought a third action against this decision (Case 92/76) in which he sought, in addition to annulment of the decision, an order that the Commission should pay him his remuneration and the appropriate allowances together with legal interest on arrears, from 12 October 1973 until the date of judgment He further sought damages of FB 1500000 for loss of the chance of moving up into a higher grade in the period between 12 October 1973 and his return to work and damages of FB 1000000 for the non-material damage suffered. The applicant also renewed his claim for annulment of all the appointments to Grade A 4 posts in career bracket A 5/A 4 made by the Commission since 12 October 1973.
3.
In its statement of 25 August 1976 the Commission raised the objection that there was no cause of action on the ground that the first two actions by Mr Giry had lost their purpose as the result of the said decision of 29 July 1976 to reinstate him.
By order of 21 September 1976 the Court decided to reserve its decision for the final judgment.
When the third action began (Case 92/76), the defendant (by a document dated 3 November 1976) raised other procedural objections and claimed that it was inadmissible on the following grounds:
(a)
it constituted a mere repetition of the conclusions already submitted in Applications 126/75 and 34/76;
(b)
the applicant had failed to submit the complaint provided for under Article 92 (2) of the Staff Regulations of Officials, which is a condition precedent to proceedings;
(c)
he had no legal interest in proceedings since the contested decision was without legal consequence unless accepted by the person to whom it was addressed.
By order of 17 December 1976 the Court decided to reserve its decision on this matter also for the final judgment.
As regards the objection that there is no cause of action, it must be recognized that the adoption of the decision to reinstate Mr Giry could not fail to have some effect on the claims previously made by the applicant in Applications 126/75 and 34/76 in that they remove the basis of those claims, at least in part. But an assessment of the effects of that decision can be completed only after its nature and scope have been considered in detail, and this involves going into the substance of Application 92/76, in which the decision itself was contested.
Again, as regards the first of the three objections of inadmissibility raised against the application initiating proceedings in Case 92/76, the first thing to be noted is that the reinstatement decision constituted a fresh development of some importance in the situation which gave rise to Applications 126/75 and 34/76. It was through that decision that, for the first time, the Commission made a post available to the applicant and laid down both the date of his reinstatement and the consequences connected therewith for the purposes of the grant of seniority for the period which had elapsed since 12 October 1973.
It is for this reason that although the decision to reinstate the applicant did not grant him everything which he had asked for, it does, in my view, constitute a measure revoking the earlier implied decisions rejecting his request.
In view of this new development, the fact that the conclusions in the application contesting the aforesaid decision are largely the same as the conclusions in the previous applications does not alter the fact that, in the new situation, the claims advanced by Mr Giry are different from the previous ones.
After the revocation of the refusal to reinstate him, Mr Giry need have done no more than change the conclusions of his previous applications rather than bring fresh proceedings. But he cannot be denied the right to make his own choice from among the various procedural courses available, even if it is not the most expeditious. It must, moreover, be recognized that the applicant, who was claiming that the decision was unlawful so long as the reinstatement was not fully retroactive, might take the view that the best course was to proceed by action for annulment.
This, in my view, suffices to invalidate the first of the three abovementioned objections of inadmissibility.
As regards the second objection, in which the Commission charges Mr Giry with not having submitted a complaint against the decision of 29 July 1976, I believe that regard must be paid to the close connexion existing between that decision and the complaint submitted by the applicant on 13 July 1975 against the implied decision rejecting his application for reinstatement. If it is true that the said decision constituted a withdrawal of the previous implied decision rejecting the complaint of 13 July 1975, it amounts to a fresh and different reply to the complaint. I consider therefore that, inasmuch as it does not satisfy in full the previous requests of the applicant, he can contest it without the need to go once more through the procedure of a preliminary complaint provided for under Article 90 of the Staff Regulations. This is also consistent with the principle of avoiding unnecessary proceedings.
In consequence the second ground advanced by the defendant to contest the admissibility of the action must also be rejected.
To deal, finally, with the third ground of inadmissibility, which is concerned with the alleged lack of legal interest, I must point out that, regardless of its acceptance or otherwise by the person concerned, the contested decision constitutes a formal and final ruling by the Commission on the subject of the conditions under which the applicant would be reinstated. Failing timely action to contest it, he would run the risk of no longer being able to challenge the definition of his rights as laid down in the decision of 19 July 1976, even on the assumption of a fresh offer from the Commission. The Court held in a similar case that an official's interest in contesting the decision reinstating him after a period of leave on personal grounds ‘is the obligation which might as a result be imposed on the appointing authority to make the reinstatement subject to different and more favourable conditions’ (judgment of 1 July 1976 in Case 58/75, Sergy v Commission [1976] ECR at p. 1148, paragraphs 4 to 6 of the decision).
Thus, from this last point of view too, the defendant's objection of inadmissibility appears to be unfounded.
On the other hand, there can be no doubt about the manifest inadmissibility, for other reasons, of the second and third conclusions in Application 92/76 for the annulment of the implied decision refusing reinstatement and of the decision expressly rejecting the complaint lodged by the applicant against that decision respectively. The revocation of those decisions by the Commission on the vital subject of Mr Giry's reinstatement (which, as has already been pointed out, was implied in the decision of 29 July 1976) means that those applications no longer have any purpose. Secondly, in view of the date of Application 92/76, the conclusions concerned are clearly out of time.
4.
I now go on to consider the substance of Case 92/76 in so far, of course, as it involves conclusions other than the two which I have found to be inadmissible.
In the fourth paragraph of his conclusions, the applicant seeks a declaration from the Court that the decision to reinstate him is ‘null and void’. It is however clear from the grounds of the application that the objections raised against the decision are concerned not with its substance, which relates to the opportunity granted to Mr Giry to resume work, but with some of the conditions attaching to the reinstatement.
In view of the wish expressed on several occasions by the applicant to resume work with the Commission and of the fact that he has not claimed that the post offered him was not suitable having regard to his qualifications, the construction to be placed on the fourth paragraph of the conclusions is that the applicant really wanted to secure only an amendment of the decision in so far as recognition of the arrears of salary is concerned. For this purpose there is certainly no need for the decision to be declared void in its entirety but at most in part.
Accordingly the main issue to be resolved is, as I said at the beginning, whether the applicant is entitled to be accorded reinstatement which is retroactive for all purposes and, in consequence, to be paid in full the remuneration which he would have received if he had been reinstated on the expiry of the period of leave.
To express the issue in this way is, of course, to assume that the Commission's decision to reinstate Mr Giry was adopted after undue delay and that the Commission must accordingly be held liable for having infringed Article 40 (4) (d) of the Staff Regulations of Officials. I must emphasize that this vital assumption cannot be the subject of doubt; the Commission itself has recognized that it acted with undue delay.
Nevertheless, as I mentioned earlier, the Commission relies upon Article 4 of the Staff Regulations in maintaining that it would have been legally impossible for it to reinstate Mr Giry retroactively. It is true that the judgment, cited earlier, of 1 July 1976 of the First Chamber of this Court in Case 58/75 (Sergy v Commission [1976] ECR 1141) found in favour of the contention, urged on that occasion by the Commission and embodied in the statement of reasons on which the contested decision of 26 July is based, that Article 4 of the Staff Regulations of Officials prevents a reinstatement measure from being back-dated since it would be unlawful to fill a post before it had become vacant. It should be borne in mind however that, in contrast to what happened in the case to which I have referred, Mr Giry has contested en bloc all the appointments made after the expiry of his period of leave to posts in Grade A 4 or career bracket A 5/A 4 in respect of which the Commission is unable to prove that the applicant was unsuitable. In this way he has followed the course which the Commission expressly indicated in the proceedings in the Sergy case (see ECR loc. cit. 1145) where it had objected that an action against a measure affecting a belated reinstatement and the related claim for compensation for damage suffered were inadmissible on the ground that any damage arose from the appointment of third parties to vacant posts to which the applicant might have had a claim and that, in consequence, he could have obtained satisfaction only by contesting those appointments.
Actually I doubt whether the Commission derives any satisfaction from seeing its advice so closely followed. If in fact the application for annulment of all appointments subsequent to the expiry of the applicant's leave were to be upheld, this might seriously upset the organization and working of the departments of the defendant institution. For this reason, before consideration is given to the substance of the application, it should be determined whether the applicant's other conclusions do not make it possible to give him satisfaction within the limits of the rights which he is in fact entitled to assert against the Commission.
In my opinion, the question should be answered in the affirmative. Even if all the contested appointments were to be annulled and the Commission were held to be under a duty to assign one of the posts thus made vacant to the applicant, without being any longer impeded by Article 4 of the Staff Regulations of Officials, the applicant would in this way obtain nothing more than he could obtain as damages whereas such a step would involve the serious inconvenience of upsetting the organization of the departments of the Commission to an extent wholly disproportionate to the objective sought by the applicant
Some explanation of this statement is required. In the judgment, to which I have referred several times, in the Sergy case, the Court held that an official who had not rendered any services (even if this was a result not of his own wishes but was the fault of the administration) could not claim payment of arrears of salary but only compensation for the actual damage he had suffered through the loss of this salary as a result of the unlawful conduct of the administration.
The connexion between entitlement to salary and actual performance of work had already been established, albeit in relation to different circumstances, by the Second Chamber of the Court in the judgment of 18 March 1975 in Joined Cases 44, 46 and 49/74 (Acton and Others v Commission [1975] ECR 383). The conclusion to be drawn from that judgment is that there can be no right to remuneration for days on strike, even when the institution has recognized the justice of the trade union demands which the strike was intended to support.
The view subsequently adopted by the First Chamber of the Court in the Sergy judgment confirms the validity of that connexion, even in circumstances where the failure to perform work was involuntary and was the result of an illegality on the part of the institution. In the present case, therefore, there can be no question of any right of the applicant automatically to receive all arrears of salary even on the assumption that, as a result of the annulment of the appointments contested by him, there became vacant ex tunc a post to which he would have had the right to be appointed.
In view of the foregoing considerations, the applicant's contention that reinstatement with retroactive effect would carry with it the right to salary for the period prior to actual return to work must be rejected. As I have already pointed out, however, when, despite his repeated requests, the Commission unduly delayed the applicant's reinstatement, it undoubtedly breached the rule referred to above in Article 40 (4) (d) of the Staff Regulations of Officials. In consequence, there must be a finding in favour of the seventh head of the conclusions in the application that the Commission should be recognized as being liable for any damage incurred by the applicant as a result of such delay. Mr Giry is therefore entitled to receive compensation.
Clearly the damage suffered might coincide with the whole amount of remuneration which would have been payable to the applicant if he had been reinstated at the proper time. But this must in no circumstances result in the right to compensation for the damage caused by failure to receive salary during the period of delay being confused with the right to receive arrears of salary as such. Having made this clear I must however emphasize that the applicant has no legal interest, in this case, in securing the annulment of the appointments of third parties to posts in his grade or step which fell vacant after the expiry of his leave since the financial remedy which he seeks can equally well be achieved by a finding in favour of the application for damages.
For this reason the claim which is the subject of the fifth head of the conclusions in the application should be rejected.
5.
Mr Giry is therefore entitled to call upon the Commission to compensate him for the damage caused him by the infringement of Article 40 (4) (d) of the Staff Regulations. It remains to be seen whether he is or is not entitled, on this ground, to receive a sum equal to the whole amount of the salary which he would have received if he had been reinstated on the expiry of his leave.
In this connexion, too, regard must be paid to the precedent established by the judgment referred to above in the Sergy case, in which, after recognizing that an official whose reinstatement was delayed was entitled to receive compensation for the actual damage suffered through loss of salary during the period of the delay, the Court declared: ‘In principle, the compensation payable on that account should be equal to the net emoluments to which he would have been entitled, subject however to deduction of the net earned income received for the same period while engaged in other employment’ [1967] ECR 1153, paragraphs 39 and 40 of the decision. This principle is clearly in accordance with the requirements of fairness and because of this I believe it should be confirmed. Out of respect for an elementary principle of law, the same course should be followed in the case of the principle, also applied by this Court, that the compensation to be paid to the official may be reduced to the extent to which, by his own conduct, the person concerned is in part responsible for the damage incurred.
It follows from the foregoing that, in the case with which we are concerned, what the applicant is entitled to receive is the difference between the net earnings received for non-Community work performed during the period of delay and the remuneration to which he would have been entitled if he had been reinstated at the proper time, entirely on the assumption, of course, that the Community emoluments are greater than the emoluments actually received elsewhere in that period.
In the calculation of any such damage, another factor which must be taken into account is the acquisition of rights affecting pension in so far as the applicant may have suffered loss as the result of differences, unfavourable to him, between the Community pension scheme and the pension scheme of which he was a member during the period in question.
So far, I have considered the period during which the reinstatement was wrongfully delayed as being the period commencing on 12 October 1973, which was the day after the expiry of the leave on personal grounds granted to Mr Giry. However, the duty of the Commission to reinstate the applicant after the expiry of the period of leave came into being only when the first post in his career bracket, corresponding to his duties, fell vacant, provided that he satisfied the requirements therefor. We do not know whether there was a post of this kind available in the departments of the Commission on the date when the period of leave actually expired. That this was so may be assumed from the fact that the Commission granted the applicant the seniority in grade which he would have had if he had returned to work on 12 October 1973. However that may be, the question has no practical importance since the Commission itself declared its willingness to take into account also, for the grant of a differential allowance capable of making good any loss of earnings by the applicant, the whole of the period from the date referred to until the applicant was given the opportunity to resume work at the Commission (15 August 1976).
The onus is of course upon him to supply documentary evidence of this damage, in accordance moreover with the request addressed to him by the Director-General of Personnel and Administration in the letter of 3 August 1976 which accompanied the contested decision of 29 July concerning his reinstatement.
On the other hand, in the case of the period subsequent to the date on which the applicant could have resumed work, which was 15 August 1976, he is, in my opinion, not entitled either to compensation for damage or to additional seniority in the service since there can be no doubt that after the decision to reinstate him he could in fact have resumed work, although this does not affect the right to contest the decision of the Commission in so far as it lays down the conditions for reinstatement. Nor in my view can account be taken of the ‘proposal’ submitted out of time by Mr Giry on 19 January 1977 for a return to work ‘to preserve his rights’ — a proposal which does not affect the application for annulment in its entirety of the Commission's decision. The applicant has only himself to blame for any damage suffered from 15 August 1976 onwards as the result of the further delay in the resumption of his work at the Commission.
6.
Consideration must now be given to the question whether, over and above the compensation referred to above, the applicant is entitled to further damages.
Mr Giry has asked for damages amounting to FB 1500000 as compensation for the damage which he claims to have suffered in terms of career prospects. I must point out that, as the result of the grant of seniority as from 12 October 1973, the only damage which the applicant could have suffered under this head is in having been deprived during the period of delay of any chance of moving up into the higher grade as the result of promotion or internal competition. The Commission maintains that, from a purely statistical standpoint, the applicant would have had, for each year of service, one chance in 29 of obtaining promotion to the higher grade. There is, however, no means of ascertaining what the applicant's actual chances would have been.
In Case 58/75 (Sergy), referred to earlier, the applicant also sought damages as compensation for the loss of chances of promotion as the result of delay in his reinstatement. The Court did not allow this claim, having found that the applicant had been somewhat negligent in seeking his reinstatement. In the present case, however, it seems that the applicant cannot be charged with any negligence in this respect, at least before 15 August 1976. He applied in time for his reinstatement — on 26 April 1973, that is to say, several months before expiry of his period of leave. The long period of silence which followed, until 6 January 1975, is explained by the fact that, during the period 4 January 1974 to 21 November 1974, proceedings were pending in the case brought by the applicant against the Commission's refusal to terminate his employment under the terms of the special regulation No 2530/72 (relating to so-called voluntary termination of service). Once the Court had dismissed that action, the applicant was assiduous in seeking a resumption of his dudes at the Commission and continued to be so until 15 August 1976.
In view of the impossibility of making a factual assessment of the career prospects which the applicant lost as the result of culpable delay on the part of the Commission, the claim for compensation must be considered from the viewpoint of the frustration associated with the prospect of losing chances of promotion and, consequently, in terms of the other claim advanced by the applicant to be compensated for the non-material damage which he claims to have suffered as a result of the Commission's unwarranted behaviour. On this latter aspect the decision of 26 July 1976 to reinstate him has itself already provided some reparation. Nevertheless, in view of the considerable length of the period in which the Commission persisted in its unjustified failure to reply to the applicant regarding his claim to return to work and of the inevitable psychological consequences of this uncertainty, I consider that the Commission ought to be ordered to pay the applicant as non-material damages something more than a purely token sum to an amount which I prefer to leave to the wisdom of the Court. When damages are assessed, weight should I think be given to the quality of the applicant's work, objective evidence of which is available from the periodic reports made on him at the Commission. It is conceivable that the better the quality of his work and of his attitude to it, the greater his career prospects and consequently his feeling of frustration and, again, the non-material damage. In this connexion it is worth noting that the reports provided for in Article 43 of the Staff Regulations concerning the applicant's ability, efficiency and conduct in the service, which appear in his personal file put in by the Commission, contained the comment ‘excellent’ concerning the applicant's ability, efficiency and sense of responsibility and ‘good’ concerning the other aspects of his conduct in the service.
I ought to add that only the period 12 October 1973 to 15 August 1976 should, for the reasons I have described, be taken into account in the assessment of the non-material damage.
It is unnecessary to add that a finding that the reinstatement decision is valid necessarily means the rejection, for lack of the requisite legal conditions, of the conclusions relating to the award of the grants for termination of service referred to in Annex IV and Article 12 of Annex VIII to the Staff Regulations and hence also of the resettlement allowance provided for in Article 6 of Annex VII.
7.
In the light of the opinion which I have expressed concerning the action brought against the decision of 29 July 1976, it is now possible to determine the effect of that decision on the two actions which preceded it as a result of the implied refusal to reinstate the applicant and which gave rise to Cases 126/75 and 34/76.
Clearly, the reinstatement offered to the applicant in the said decision at once removes any basis for the first two heads of the conclusions in the application in Case 126/75 for annulment of the implied decision refusing reinstatement. As has already been stated and as the applicant himself admits, this decision must be regarded as involving the revocation of the implied decision previously taken by the Commission to refuse the applicant's request for reinstatement. In view of this the action against that implied decision no longer has any purpose despite the fact that, for the reasons set out earlier, its illegality was beyond dispute.
As regards the remainder, the conclusions in Case 126/75 are the same as those in Case 92/76 and the comments already made regarding the latter apply. Again, as regards the proceedings initiated in Case 34/76 for annulment of all the appointments to posts in Grade A 4 or career bracket A 5/A 4 made by the Commission since 12 October 1973, I need only refer to the comments made regarding the corresponding conclusions contained in Application 92/76 to show that the applicant has no legal interest in securing the annulment.
In consequence, the various conclusions which are the subject of the two actions referred to must be dismissed with the exception of the claim for damages set out in the fifth head of the conclusions in Application 126/75 which is, in any case, subsumed in the corresponding claim, referring however to a longer period, set out in the seventh head of the conclusions in Application 92/76, on which I commented earlier.
8.
As regards the decision on costs, allowance must be made for the fact that it was the unwarranted delay on the part of the Commission which gave rise to Application 126/75. Application 34/76 was a protective one and its submission is due to the continuation of the delay rather than the reasons put forward by the Commission in the Sergy case, to which I have referred. Finally, in Case 92/76, the applicant was justified in a not inconsiderable number of his conclusions.
For the foregoing reasons and especially because an illegality on the pan of the Commission gave rise to this long drawn-out dispute, I believe that the Commission should bear the whole of the applicant's costs.
I conclude therefore with the recommendation that the Court should, in accordance with the principles described above, order the Commission to compensate the applicant for:
(a)
the damage arising from failure, in the period 12 October 1973 to 15 August 1976, to receive the salary to which he would have been entitled if he had been reinstated at the Commission on the expiry of his period of leave, the damage to be assessed at a sum representing the difference between such salary and any other remuneration received by the applicant for work performed outside the Commission during that period; and
(b)
non-material damage arising from the said delay, account being also taken of the loss of chances of promotion during that period, the amount of the damages to be assessed by the Court.
Finally I recommend that the defendant be ordered to bear the costs of all three actions.
( 1 ) Translated from the Italian.
Full & Egal Universal Law Academy