CASE OF NEIGEL v. FRANCE
Art. 6-1 inapplicable
John Freeland
7. On 4 July 1978 Miss Florence Neigel started working as an auxiliary shorthand typist for Biarritz Town Council (département of PyrénéesAtlantiques). She was appointed as a trainee on 1 March 1979 and given a permanent post on 1 March 1980. 8. In a decision of 21 February 1983 the mayor of Biarritz ("the mayor") granted a request by the applicant for one year’s leave of absence for personal reasons from 14 March 1983. 9. Miss Neigel applied for reinstatement with effect from 14 March 1984. On 25 November 1983 she was informed that her application had been refused by the mayor. On 17 December 1983 she sought renewal of her leave of absence for one year. The mayor granted her application in a decision of 21 December 1983. 10. On 7 December 1984 Miss Neigel applied for reinstatement on 14 March 1985. The mayor replied on 11 December 1984 as follows: "... As you are aware, reinstatement as of right is by way of appointment to one of the first three posts falling vacant where the leave of absence has not exceeded three years. The essential requirement, however, is that there should be a vacancy. As the posts of shorthand typist provided for in our establishment table are filled by permanent staff, it is not possible to reinstate you at present. If the situation remains unchanged on 14 March 1985, you will be technically reinstated and will be on leave of absence without pay until another solution is found. ..." 11. On 4 March 1985 Miss Neigel reapplied to the mayor for reinstatement. She argued that the regulations did not authorise him to "technically reinstate" her or to grant her a further year’s leave of absence. 12. On 14 March 1985 the mayor ordered that Miss Neigel be "technically" reinstated and continue to be "on leave of absence without pay". 13. On 14 June 1985 the applicant wrote to the mayor challenging the lawfulness of the measure taken and requesting her reinstatement and payment in full of her salary from 14 March 1985. The mayor replied on 20 June 1985 that reinstatement as of right was by way of appointment to one of the first three posts falling vacant and that in this instance only two appointments had been made to the same grade as the applicant. In a letter of 27 June 1985 Miss Neigel disputed the information given by the mayor. On 28 November 1985 she made a further application for reinstatement. On 3 December 1985 the mayor told the applicant that if she considered her situation (which, he said, was still the same) unlawful, it was open to her to apply to the administrative court. 14. On 4 March 1986 Miss Neigel applied for reinstatement on 14 March 1986. On 5 March 1986 the mayor notified her of his refusal. 15. On 16 June 1986 the applicant sent the mayor the following letter: "... Pursuant to your decision of 14 March 1985, you ‘technically’ reinstated me and you are aware that this situation is unlawful. I therefore request 1. my actual reinstatement; and 2. compensation in an amount corresponding to the salary I should have received since 14 March 1985. If you refuse my request, I shall bring proceedings in the administrative court to have the loss assessed in damages. ..." On 23 June 1986 the mayor made the following reply: "... As there has been no change in the staff of your grade working for the Council, I can only confirm what I said in my previous letters. I have no objection to your bringing this case before the administrative court. ..." 16. On 22 July 1986 Miss Neigel applied to the Pau Administrative Court to have the mayor’s decision confirming her "technical reinstatement" and her "leave of absence without pay" quashed and to obtain an order that he should pay her the salary she should have received from 14 March 1985 onwards. 17. The mayor filed pleadings on 25 September and 18 November 1986 and on 13 January and 27 February 1987. The applicant did likewise on 3 November and 12 December 1986 and on 5 February 1987. 18. Following a hearing on 31 March, the court delivered the following judgment on 7 April 1987: "... With regard to Miss Neigel’s technical reinstatement: On the conditions laid down by the mayor of Biarritz Miss Neigel’s reinstatement is a purely technical decision; that being so, it is null and void. It is therefore necessary to set aside the decision of 5 March 1986 in so far as it upholds the applicant’s technical reinstatement. With regard to Miss Neigel’s right to reinstatement: Under Article L. 415-59 of the Municipalities Code as in force when the impugned decision was taken, ‘A member of staff granted leave of absence at his own request shall be entitled to reinstatement by appointment to one of the first three posts falling vacant where the leave has not exceeded three years’... ... The applicant claimed that three posts she was suitably qualified for had fallen vacant and been filled during the period when she was requesting reinstatement and that two posts had been created. The mayor of Biarritz asserted that, on the contrary, the posts provided for in the establishment table were filled and that no permanent staff had been recruited since 1 March 1985. That being so, the parties disagreed as to the facts. It is therefore necessary to order that further inquiries into the facts should be made, firstly to enable the mayor of Biarritz to produce all the documents necessary to determine the position since 14 March 1985 regarding vacant posts and staff recruited in Miss Neigel’s grade, and secondly so that the total salary the applicant would have received from 14 March 1985 onwards can be calculated. ..." 19. The applicant filed pleadings on 30 June, 20 August and 5 October 1987. The mayor did likewise on 17 July and 23 September. 20. Through a member of parliament Miss Neigel asked the ombudsman to intervene and expedite the proceedings. The ombudsman replied on 22 October 1987 that judgment had been given on 20 October. 21. This judgment was served on the applicant on 10 November 1987. The court rejected her remaining submissions on the following ground: "... It is clear from an examination of the case file, and in particular of the table of posts of shorthand typist produced by the mayor of Biarritz, that eight posts are provided for in the budget, while seven posts are occupied by permanent staff, a number that has not changed since 14 March 1985. All the staff in question were taken on before 7 December 1984, when Miss Neigel applied to be reinstated. The fact that the post Miss Neigel occupied before she was granted leave of absence is vacant has no bearing on the lawfulness of the contested decision. Under these circumstances the applicant is not justified in maintaining that the rights she derived from her priority entitlement to be taken on again following her leave of absence have been infringed. Miss Neigel therefore cannot claim compensation corresponding to her total salary since 14 March 1985. ..." 22. On 18 May 1988 Miss Neigel appealed against the Pau Administrative Court’s two judgments to the Conseil d’Etat. She filed a supplementary pleading on 19 September 1988. 23. In a letter of 23 February 1989 Miss Neigel enquired of the secretary of the Third Section of the Judicial Division of the Conseil d’Etat about the proceedings. The secretary replied on 15 March 1989: "... the case file ... is currently in the hands of the lawyer for Biarritz Town Council for inspection and has been since the beginning of February, for two months. As soon as he returns it, it will be sent to your lawyer for your reply, for the same length of time. As soon as the written proceedings in preparation of the case for trial have been completed, I will submit your case file to the presiding judge. It is nevertheless likely that this case will not be heard until the end of the year at the earliest. ..." 24. Biarritz Town Council filed a pleading on 31 March 1989, to which Miss Neigel replied on 25 October 1989. 25. In a letter of 27 November 1989 the applicant made further enquiries of the secretary about the proceedings. The secretary replied on 4 December 1989 that, as soon as the preparation of the case for trial had been completed, he had submitted the case file to the presiding judge of the Third Section, who had allocated it to a reporting judge in September. 26. Biarritz Town Council filed a pleading on 12 February 1990. 27. On 20 February 1990 Miss Neigel sent the secretary a letter - to which she received no reply - expressing her concern at the time it was taking to deal with her case and asking if she should write to the presiding judge to make him aware that her situation called for an early judgment. 28. The applicant’s mother wrote to the secretary on 10 April 1990. She told him of the conflicting information her daughter had been given on the telephone by the registry - the case file had apparently not yet been transferred to the Government Commissioner (commissaire du gouvernement) - and requested details of the proceedings and of what further could be done to speed them up. The applicant’s mother wrote again as follows on 13 April 1990 after her daughter had received a copy of the latest pleading filed by Biarritz Town Council: "... Given that preparation of the case for trial ended in September 1989, [my daughter] cannot understand why the opposing side should produce a further pleading and why this should be admitted to the case file when it had been stated that once the preparation of the case was terminated, no new document could be added. ... I suppose that if the rules are to be applied, it would be simpler to withdraw this second pleading, which arrived undated more than six months after termination of the preparation of the case, and for only the evidence already in the file to be submitted to the Government Commissioner appointed to study it. ..." 29. The Conseil d’Etat held a hearing on 4 January 1991 and gave judgment on 21 January. It dismissed the appeal as follows: "... Firstly, under the ... provisions of Article L. 415-59 of the Municipalities Code, the mayor was not bound to reinstate Miss Neigel until the third vacancy arising after the end of her leave of absence. It appears from the evidence that between 14 March 1985 and 5 March 1986 only two vacancies arose that Miss Neigel was suitably qualified to fill. ... the mayor of Biarritz’s decision of 5 March 1986 whereby he refused Miss Neigel’s application for reinstatement was therefore not in breach of the provisions of Article L. 415-59 of the Municipalities Code. ... It is clear from all the foregoing that Miss Neigel is not justified in maintaining that the Pau Administrative Court, having ordered in a judgment of 7 April 1987 that further inquiries into the facts should be made (a measure which, contrary to what the applicant maintained, was not obstructive), was wrong in its judgment of 20 October 1987 to refuse her application to quash the decision of 5 March 1986. ..." 30. The provisions of the Municipalities Code that were applicable in the instant case - they were repealed by Law no. 84-53 of 26 January 1984 - were the following: "Leave of absence means that a member of staff is released from performing his normal duties and that, for the duration of such leave, his rights relating to promotion and retirement cease to accrue. ..." "Leave of absence shall be ordered in a decision by the mayor, either of his own motion or at the request of the person concerned." "Leave of absence may be granted at the request of a member of staff in the following circumstances only: ... 3. For personal reasons; in this case the leave may not exceed one year but shall be renewable for a further year. ..." "A member of staff granted leave of absence at his own request shall not be entitled to any remuneration. ..." "A member of staff granted leave of absence at his own request shall be entitled to reinstatement by way of appointment to one of the first three posts falling vacant where the leave has not exceeded three years." 31. A civil servant whose dismissal has been quashed as being unlawful is entitled to receive compensation for pecuniary damage, calculated on the basis of the salary lost (Conseil d’Etat, 7 April 1933, Deberles, Rec. 439).