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Judgment of the Court (Second Chamber) of 14 July 1983. - Maria Mascetti v Commission of the European Communities. - Official - Reinstatement in career following absence - Interest in bringing an action. - Case 145/80. European Court reports 1983 Page 02343

Parties Subject of the case Grounds Decision on costs Operative part

IN CASE 145/80

MARIA MASCETTI , AN OFFICIAL OF THE EUROPEAN COMMUNITIES , ASSISTED AND REPRESENTED BY C . RIBOLZI OF THE MILAN BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF V . BIEL , 18 A RUE DES GLACIS ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY O . MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY P . DE CATERINI OF THE ROME BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , M . CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

CONCERNING , AT THE PRESENT STAGE OF THE PROCEEDINGS , THE REINSTATEMENT OF THE APPLICANT IN HER CAREER AS REGARDS HER SENIORITY IN STEP ,

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 13 JUNE 1980 , MISS MARIA MASCETTI , A TEMPORARY SERVANT AT THE ISPRA JOINT RESEARCH CENTRE BROUGHT AN ACTION SEEKING , IN THE FIRST PLACE , ANNULMENT OF THE DECISION OF THE COMMISSION REFUSING TO REGARD THE PERIOD OF ABSENCE OF THE APPLICANT BETWEEN DECEMBER 1974 AND NOVEMBER 1978 AS A PERIOD OF EMPLOYMENT FOR ALL PURPOSES AND , SECONDLY , A DECLARATION THAT THE COMMISSION IS BOUND TO REINSTATE HER IN HER CAREER AND CONSEQUENTLY TO RESTORE HER FINANCIAL RIGHTS , THAT IS TO SAY TO GIVE HER THE BENEFIT OF ALL THE TWO-YEARLY STEPS , SALARY AND INSURANCE CONTRIBUTIONS WHICH BECAME DUE DURING HER ABSENCE AND ALSO THE SHORTFALL OF HER SEVERANCE GRANT AS A MEMBER OF THE ESTABLISHMENT STAFF AND , FINALLY , NOT TO REDUCE HER PENSION RIGHTS IN ANY WAY ON THE GROUND OF HER ABSENCE .

2 THE ABSENCE OF THE APPLICANT , WHO WAS AT THAT TIME A MEMBER OF THE ESTABLISHMENT STAFF AT THE ISPRA JOINT RESEARCH CENTRE AND WAS CLASSIFIED AS FROM 1 OCTOBER 1973 IN STEP 6 OF THE GRADE CORRESPONDING TO C 1 , WAS DUE TO THE FACT THAT SHE LEFT ITALY TO EVADE EXECUTION OF A WARRANT ISSUED FOR HER ARREST IN CONNECTION WITH CRIMINAL PROCEEDINGS . IN JANUARY 1975 THE COMMISSION , CONSIDERING THE APPLICANT ' S ABSENCE TO BE UNAUTHORIZED , SUSPENDED PAYMENT OF HER SALARY , RELYING ON ARTICLE 60 OF THE STAFF REGULATIONS OF OFFICIALS WHICH IS APPLICABLE BY ANALOGY TO MEMBERS OF THE ESTABLISHMENT STAFF . HOWEVER , IN MARCH 1977 , FOLLOWING A CHANGE IN THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS , WHICH DISCONTINUED THE CLASSIFICATION OF MEMBERS OF THE ESTABLISHMENT STAFF , A TEMPORARY SERVANT ' S CONTRACT WAS OFFERED TO THE APPLICANT , ASSIGNING HER TO CATEGORY C , GRADE 1 , STEP 7 , WITH EFFECT FROM 30 OCTOBER 1976 . THE APPLICANT ACCEPTED THAT OFFER BUT STATED THAT SHE WAS UNABLE TO GO TO ISPRA TO SIGN THE CONTRACT . FOR ITS PART THE ADMINISTRATION NOTIFIED THE APPLICANT THAT THE CONTRACT COULD BE ENTERED INTO AS SOON AS SHE WAS IN A POSITION TO REPORT FOR WORK .

3 FOLLOWING HER ACQUITTAL BY THE CORTE DI ASSISE , ROME , BY JUDGMENT OF 14 JULY 1978 , THE APPLICANT RESUMED WORK TOWARDS THE END OF 1978 . ON 30 NOVEMBER 1978 SHE SIGNED A FIRST TEMPORARY SERVANT ' S CONTRACT WHICH ASSIGNED HER TO CATEGORY C , GRADE 1 , STEP 6 , WITH SENIORITY IN HER GRADE FROM 1 DECEMBER 1978 AND SENIORITY IN HER STEP FROM 1 SEPTEMBER 1977 . FOR THE CALCULATION OF HER SENIORITY , THE CONTRACT THUS LEFT OUT OF ACCOUNT HER ENTIRE PERIOD OF ABSENCE . SHE OBJECTED TO THOSE TERMS AND THE ADMINISTRATION PREPARED A NEW CONTRACT WHICH WAS SIGNED BY THE APPLICANT IN APRIL 1979 . THAT CONTRACT BACKDATED HER SENIORITY IN THE GRADE TO 30 OCTOBER 1976 AND ASSIGNED HER TO STEP 7 AS FROM 1 NOVEMBER 1977 . ON 26 MAY 1979 THE APPLICANT OBJECTED IN WRITING TO THAT CLASSIFICATION , BUT BY LETTER OF 10 AUGUST 1979 THE ADMINISTRATION CONFIRMED HER SENIORITY IN THE STEP AS SPECIFIED IN THE LATTER CONTRACT , IN WHICH ACCOUNT HAD BEEN TAKEN OF THE PERIOD OF ABSENCE PRIOR TO THE DATE ON WHICH THE CONDITIONS APPLICABLE TO MEMBERS OF THE ESTABLISHMENT STAFF WERE SUPERSEDED .

4 ON 7 NOVEMBER 1979 THE APPLICANT SENT THE ADMINISTRATION A FURTHER LETTER WHICH CONTAINED ALL THE CLAIMS AT ISSUE . SINCE THAT LETTER EVOKED NO REPLY , SHE BROUGHT THE PRESENT ACTION .

5 IN ITS INTERLOCUTORY JUDGMENT OF 14 JULY 1981 ( CASE 145/80 ( 1981 ) ECR 1975 ), THE COURT DECLARED THAT THE ACTION WAS ADMISSIBLE WITH REGARD TO THE CLAIM RELATING TO SENIORITY IN THE STEP . WITH REGARD TO THE OTHER HEADS OF CLAIM RELATING TO THE PAYMENT OF SALARY , PENSION RIGHTS , SOCIAL SECURITY CONTRIBUTIONS AND COMPENSATION FOR TERMINATION OF THE EMPLOYMENT CONTRACT AS A MEMBER OF THE ESTABLISHMENT STAFF , THE COURT HELD THAT SINCE THE APPLICANT HAD ALLOWED A YEAR TO ELAPSE BEFORE MAKING THE CLAIMS CONTAINED IN HER LETTER OF 7 NOVEMBER 1979 , IT WAS CLEAR THAT THOSE CLAIMS HAD BEEN SUBMITTED OUT OF TIME . IN SO FAR AS THOSE CLAIMS WERE CONCERNED THEREFORE , THE COURT DISMISSED THE APPLICATION AS INADMISSIBLE .

6 IN THE LIGHT OF THAT JUDGMENT , THE COMMISSION OFFERED TO INSERT AN ADDITIONAL TERM IN THE APPLICANT ' S CONTRACT CLASSIFYING HER IN STEP 8 AS FROM 1 DECEMBER 1978 , THE DATE ON WHICH SHE ACTUALLY RESUMED HER DUTIES . THAT PROPOSAL WAS REJECTED BY THE APPLICANT WHO THEREFORE DECIDED TO CONTINUE THE PROCEEDINGS .

7 IN ITS DEFENCE , THE COMMISSION CONSIDERED THE IMPORTANCE OF SENIORITY IN THE STEP WITH REGARD TO THE APPLICANT ' S PRESENT AND FUTURE POSITION . SINCE STEP 8 IS THE FINAL STEP IN GRADE 1 OF CATEGORY C , THE EFFECT OF BACKDATING THE APPLICANT ' S SENIORITY IN THAT STEP TO THE DATE ON WHICH SHE ACTUALLY RESUMED HER DUTIES IS TO ACCORD TO HER THE HIGHEST SALARY IN THAT CATEGORY . THE PROMOTION PROCEDURE TAKES ACCOUNT OF SENIORITY IN THE SERVICE AND IN THE GRADE BUT NEVER OF SENIORITY IN THE STEP . SENIORITY IN STEP 8 OF GRADE 1 OF CATEGORY C IS OF NO IMPORTANCE FOR THE PURPOSES OF CLASSIFICATION IN CATEGORY B IN THE EVENT OF THE APPLICANT ' S BEING TRANSFERRED TO CATEGORY B . FURTHERMORE , HER PENSION RIGHTS AND HER ENTITLEMENT TO OTHER SOCIAL SECURITY BENEFITS ARE BASED SOLELY ON THE ACTUAL LENGTH OF SERVICE AND ON THE CONTRIBUTIONS PAID . EVEN UNDER THE SPECIAL CONDITIONS TRIED OUT IN THE PAST WITH A VIEW TO FACILITATING THE RESIGNATION OF OFFICIALS , SENIORITY IN THE STEP WAS NEVER TAKEN INTO CONSIDERATION . ACCORDINGLY , THE APPLICANT HAS NO MATERIAL INTEREST IN BEING CLASSIFIED IN STEP 8 BEFORE THE DATE PROPOSED BY THE COMMISSION . FOR THAT REASON , THE COMMISSION REQUESTS THE COURT TO DECLARE THAT THE APPLICATION IS DEVOID OF PURPOSE SINCE THE APPLICANT NO LONGER HAS AN INTEREST IN PURSUING THE PROCEEDINGS AND TO DECLARE THAT IT IS UNNECESSARY TO GIVE A DECISION ON THE POINTS AT ISSUE .

8 THE APPLICANT CLAIMS REINSTATEMENT IN HER CAREER WITHOUT ANY BREAK IN CONTINUITY AS REGARDS SENIORITY IN THE SERVICE . SHE POINTS OUT THAT , IN VIEW OF HER SENIORITY AS FROM 1 OCTOBER 1973 , REFERRED TO ABOVE , SHE SHOULD BE CLASSIFIED IN STEP 7 AS FROM 1 OCTOBER 1975 AND IN STEP 8 AS FROM 1 OCTOBER 1977 . FURTHERMORE , SHE EXPRESSED THE HOPE THAT THE COURT WOULD RECOGNIZE IN PART HER FINANCIAL ENTITLEMENTS , WHICH ARE INSEPARABLE FROM RECOGNITION OF HER SENIORITY .

9 IN SUPPORT OF HER CLAIM , THE APPLICANT MAINTAINS THAT , IN ITS INTERLOCUTORY JUDGMENT , THE COURT DECLARED HER APPLICATION FOR REINSTATEMENT IN HER CAREER AND FOR A PROPER ASSESSMENT OF HER SENIORITY IN THE SERVICE TO BE ADMISSIBLE . CONSEQUENTLY , THE DISPUTE DOES NOT RELATE EXCLUSIVELY TO SENIORITY IN THE STEP AND IN THE GRADE BUT RATHER TO SENIORITY IN THE SERVICE , A FACTOR WHICH IS OF UNDENIABLE IMPORTANCE AS REGARDS HER CAREER , EVEN THOUGH IT HAS NO IMMEDIATE FINANCIAL CONSEQUENCES . TO JUSTIFY THE HOPE EXPRESSED BY THE APPLICANT REGARDING HER FINANCIAL ENTITLEMENTS , SHE CONTENDS THAT HER LETTER OF 7 NOVEMBER 1979 CAN IN NO WAY BE CONSIDERED TO BE OUT OF TIME SINCE THE OBJECTION LODGED BY HER ON 26 MAY 1979 AGAINST HER CLASSIFICATION IN THE STEP IN REALITY EXTENDED TO ALL THE FINANCIAL CONSEQUENCES OF THAT CLASSIFICATION . MOREOVER , THE JUDGMENT OF 14 JULY 1978 BY WHICH THE APPLICANT WAS ACQUITTED DID NOT BECOME FINAL UNTIL AFTER THE APPLICANT HAD SUBMITTED HER APPLICATION IN NOVEMBER 1979 . FINALLY , THE COMMISSION DID NOT AT ANY STAGE ADOPT AN EXPRESS DECISION IN RELATION TO THE MAJORITY OF THE APPLICANT ' S COMPLAINTS . IN THE LIGHT OF ALL THE ABOVE CIRCUMSTANCES , THE APPLICANT CLAIMS THAT SHE HAS A SUFFICIENT MATERIAL INTEREST IN CONTINUING THE PROCEEDINGS .

10 THE APPLICANT ' S REASONING CANNOT BE ACCEPTED . IN ITS INTERLOCUTORY JUDGMENT THE COURT CATEGORICALLY DECLARED THAT EVERY CLAIM OTHER THAN THAT CONCERNING SENIORITY IN THE STEP WAS INADMISSIBLE AND THE APPLICANT HAS NOT SOUGHT TO RELY UPON ANY FACT NOT ALREADY DISCLOSED BEFORE THAT JUDGMENT WAS GIVEN WHICH MIGHT BE OF SUCH A NATURE AS TO JUSTIFY ANY REVIEW THEREOF .

11 FURTHERMORE , THE COMMISSION HAS SHOWN , WITHOUT BEING EFFECTIVELY CONTRADICTED BY THE APPLICANT , THAT THE BACKDATING OF HER CLASSIFICATION IN STEP 8 OF GRADE C 1 BEYOND THE DATE PROPOSED BY THE COMMISSION WOULD NOT CONFER ANY REAL ADVANTAGE ON HER , EITHER IN FINANCIAL TERMS OR WITH REGARD TO HER FUTURE CAREER .

12 IN THOSE CIRCUMSTANCES , THE APPLICANT ' S CLAIMS ARE DEVOID OF PURPOSE AND IT IS THEREFORE UNNECESSARY FOR THE COURT TO GIVE A DECISION THEREON .

COSTS

13 UNDER ARTICLE 69 ( 5 ) OF THE RULES OF PROCEDURE , WHERE A CASE DOES NOT PROCEED TO JUDGMENT THE COSTS ARE TO BE IN THE DISCRETION OF THE COURT .

14 HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES , THE INSTITUTIONS ARE TO BEAR THEIR OWN COSTS .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DECLARES THAT IT IS UNNECESSARY TO GIVE A DECISION ON THE POINTS AT ISSUE .

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .