61980CJ0185_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 185/80
COSIMO GARGANESE, A TEMPORARY SERVANT OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, EMPLOYED AT THE JOINT RESEARCH CENTRE AT ISPRA, REPRESENTED BY ERNEST ARENDT, ASSISTED BY DOMINIQUE MAIDANI, BOTH OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT HIS CHAMBERS, 34 RUE PHILIPPE II,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY J . DELMOLY, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, ASSISTED BY R . ANDERSEN OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, MARIO CERVINO, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF THE COMMISSION ' S DECISION OF 23 JUNE 1980 REFUSING TO PAY MR GARGANESE THE EXPATRIATION ALLOWANCE AND FOR AN ORDER THAT THE COMMISSION PAY HIM THAT ALLOWANCE AS FROM 3 SEPTEMBER 1979, THE DATE ON WHICH HE ENTERED THE SERVICE,
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 4 SEPTEMBER 1980, COSIMO GARGANESE, A TEMPORARY SERVANT OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, EMPLOYED AT THE JOINT RESEARCH CENTRE AT ISPRA ( ITALY ), BROUGHT AN ACTION FOR THE ANNULMENT OF THE COMMISSION ' S DECISION OF 23 JUNE 1980 REFUSING TO PAY HIM THE EXPATRIATION ALLOWANCE AND FOR AN ORDER THAT THE COMMISSION PAY HIM THAT ALLOWANCE AS FROM 3 SEPTEMBER 1979, THE DATE OF HIS ENTRY INTO SERVICE . HE ALSO CLAIMS THAT THE COMMISSION SHOULD BE ORDERED TO PAY HIM DEFAULT INTEREST AT 6 % PER ANNUM CALCULATED ON THE ARREARS OF EXPATRIATION ALLOWANCE ' ' FROM THE VARIOUS DATES ON WHICH PAYMENT FELL DUE TO THE DATE OF PAYMENT ' ' .
2 MR GARGANESE, AN ITALIAN NATIONAL BORN IN ITALY, HAS RESIDED IN THE GRAND DUCHY OF LUXEMBOURG SINCE 18 MAY 1962 . ON 5 MAY 1970 HE WENT TO ITALY TO PERFORM HIS MILITARY SERVICE, WHICH LASTED UNTIL 15 APRIL 1972 . HE RETURNED TO LUXEMBOURG IMMEDIATELY THEREAFTER AND WAS CONTINUOUSLY RESIDENT IN THAT COUNTRY FOR APPROXIMATELY SEVEN YEARS . ON 1 JUNE 1979 HE SIGNED A CONTRACT WITH THE COMMISSION UNDER WHICH HE WAS ENGAGED AS A TEMPORARY SERVANT IN GRADE C 3 AND WAS POSTED TO THE JOINT RESEARCH CENTRE AT ISPRA ( ITALY ), WHERE HE TOOK UP HIS DUTIES ON 3 SEPTEMBER 1979 .
3 MR GARGANESE NOTICED THAT HIS FIRST SALARY SLIP FOR THE MONTHS OF SEPTEMBER AND OCTOBER 1979 DID NOT MENTION THE EXPATRIATION ALLOWANCE TO WHICH HE CONSIDERED HIMSELF ENTITLED UNDER ARTICLE 4 ( 1 ) ( B ) OF ANNEX VII TO THE STAFF REGULATIONS OF OFFICIALS IN CONJUNCTION WITH ARTICLES 19 AND 20 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES AND, BY A MEMORANDUM DATED 11 NOVEMBER 1979, HE REQUESTED THAT HE BE PAID THAT ALLOWANCE .
4 AS THAT STEP WAS UNSUCCESSFUL, MR GARGANESE SUBMITTED A REQUEST ON 30 JANUARY 1980 UNDER ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS . IN THE ABSENCE OF ANY REPLY FROM THE ADMINISTRATION WITHIN THE PRESCRIBED PERIOD OF FOUR MONTHS, HE LODGED A COMPLAINT ON 1 JULY 1980 AGAINST THE IMPLIED REJECTION OF HIS REQUEST BY THE COMMISSION . ON 10 JULY 1980 MR GARGANESE WAS
NOTIFIED OF A DECISION DATED 23 JUNE 1980, WHEREBY THE COMMISSION REJECTED HIS CLAIM THAT HE SHOULD RECEIVE THE EXPATRIATION ALLOWANCE . HE CLAIMS THAT THAT DECISION SHOULD BE ANNULLED .
ADMISSIBILITY
5 THE COMMISSION FIRST RAISES AN OBJECTION OF INADMISSIBILITY AGAINST THE APPLICATION ON THE GROUND THAT THE APPLICANT DID NOT COMPLY WITH THE PERIOD FOR LODGING A COMPLAINT LAID DOWN BY ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS . IT CONTENDS THAT ITS DECISION OF 23 JUNE 1980 MERELY CONFIRMS AN IMPLIED DECISION REFUSING THE EXPATRIATION ALLOWANCE WHICH WAS APPARENT FROM THE SALARY SLIP FOR THE MONTHS OF SEPTEMBER AND OCTOBER 1979 . IT IS ESTABLISHED THAT THAT SALARY SLIP CAME TO MR GARGANESE ' S NOTICE NOT LATER THAN 11 OCTOBER 1979 . THE COMMISSION CLAIMS THAT THE APPLICANT SHOULD HAVE SUBMITTED A COMPLAINT AGAINST THE IMPLIED DECISION REFUSING PAYMENT WITHIN A PERIOD OF THREE MONTHS COMMENCING ON THE ABOVE-MENTIONED DATE . SINCE HE DID NOT DO SO, HE FORFEITED HIS RIGHT OF ACTION .
6 THE ARGUMENT PUT FORWARD BY THE COMMISSION CANNOT BE ACCEPTED .
7 THE COMMISSION ' S DECISION OF 23 JUNE 1980 CONSTITUTES A LEGAL MEASURE WHICH, CONTAINING THE COMMISSION ' S RESPONSE TO MR GARGANESE ' S REQUEST FOR THE GRANT OF THE EXPATRIATION ALLOWANCE, IS SUFFICIENT IN ITSELF AND IN NO WAY REFERS TO AN ALLEGED PREVIOUS EXPRESS OR IMPLIED DECISION REFUSING TO GRANT THE ALLOWANCE CLAIMED BY THE APPLICANT . IN VIEW OF SUCH A MEASURE, THE ABSENCE FROM THE MONTHLY SALARY SLIP OF A STATEMENT REGARDING THE ALLOWANCE CANNOT BE ASSIMILATED TO A DECISION UNDER THE STAFF REGULATIONS CAPABLE OF CAUSING THE TIME FOR LODGING AN APPEAL MENTIONED IN ARTICLES 90 AND 91 TO START TO RUN .
8 THAT CONCLUSION IS EVEN MORE COMPELLING SINCE IT IS CLEAR FROM THE FILE ON THE CASE, AND MORE PARTICULARLY FROM THE MEMORANDUM OF 28 JANUARY 1980 SENT BY THE APPLICANT ' S SUPERIOR TO THE SITE DIRECTOR AT ISPRA, THAT THE COMMISSION ' S DEPARTMENTS THEMSELVES DID NOT CONSIDER, AFTER THE ABOVE-MENTIONED SALARY SLIP HAD BEEN TRANSMITTED, THAT A DECISION HAD BEEN TAKEN ON THAT DATE AS TO WHETHER OR NOT MR GARGANESE WAS ENTITLED TO THE ALLOWANCE . SIMILARLY, IT IS CLEAR FROM A LETTER SENT ON 23 FEBRUARY 1980 TO MR GARGANESE BY THE ABOVE-MENTIONED DIRECTOR THAT THE OPINION OF THE COMPETENT AUTHORITIES AT THE SEAT OF THE INSTITUTION ON MR GARGANESE ' S
POSSIBLE ENTITLEMENT TO THE GRANT OF THE ALLOWANCE WAS STILL PENDING AT THAT DATE AND THAT, CONSEQUENTLY, HIS CASE HAD NOT YET BEEN THE SUBJECT OF A DECISION BY THE COMMISSION .
9 IN VIEW OF THE FOREGOING CONSIDERATIONS THE DECISION OF 23 JUNE 1980, WHICH WAS NOTIFIED TO THE APPLICANT ON 10 JULY 1980, MUST THEREFORE BE CONSIDERED AS CONSTITUTING THE REPLY UNDER ARTICLE 91 ( 2 ) OF THE STAFF REGULATIONS TO THE COMPLAINT LODGED BY THE APPLICANT ON 1 JULY 1980 .
10 UNDER THE FIRST INDENT OF ARTICLE 91 ( 3 ) OF THE STAFF REGULATIONS AN APPEAL MAY BE LODGED WITHIN THREE MONTHS FROM THE DATE OF NOTIFICATION TO THE COMPLAINANT . THE PRESENT APPLICATION, WHICH WAS LODGED ON 4 SEPTEMBER 1980, MUST THEREFORE BE DECLARED ADMISSIBLE .
SUBSTANCE
11 AS THE COURT HAS ALREADY STATED IN A CONSISTENT LINE OF DECISIONS, IT IS CLEAR FROM THE GENERAL SCHEME OF ARTICLE 4 OF ANNEX VII TO THE STAFF REGULATIONS THAT IT LAYS DOWN AS THE PARAMOUNT CONSIDERATION FOR DETERMINING AN OFFICIAL ' S ENTITLEMENT TO THE EXPATRIATION ALLOWANCE HIS HABITUAL RESIDENCE BEFORE ENTERING THE SERVICE, BECAUSE THE ALLOWANCE IS INTENDED TO COMPENSATE OFFICIALS FOR THE EXTRA EXPENSE AND INCONVENIENCE OF TAKING UP EMPLOYMENT WITH THE COMMUNITIES AND BEING THEREBY OBLIGED TO CHANGE THEIR RESIDENCE .
12 UNDER ARTICLE 4 ( 1 ) ( B ) CITED ABOVE, OFFICIALS WHO ARE OR HAVE BEEN NATIONALS OF THE STATE IN WHOSE TERRITORY THE PLACE WHERE THEY ARE EMPLOYED IS SITUATED ARE ENTITLED TO THE EXPATRIATION ALLOWANCE IF ' ' DURING THE TEN YEARS ENDING AT THE DATE OF THEIR ENTERING THE SERVICE ( THEY ) HABITUALLY RESIDED OUTSIDE THE EUROPEAN TERRITORY OF THAT STATE FOR REASONS OTHER THAN THE PERFORMANCE OF DUTIES IN THE SERVICE OF A STATE OR OF AN INTERNATIONAL ORGANIZATION ' ' .
13 HAVING REGARD TO THOSE PROVISIONS AND TO THE CIRCUMSTANCES OF THE CASE, IT IS THEREFORE NECESSARY TO CONSIDER WHETHER MR GARGANESE, WHO IS A NATIONAL OF THE STATE IN WHICH THE PLACE WHERE HE IS EMPLOYED IS SITUATED, SATISFIES THE
CONDITION OF HABITUAL RESIDENCE OUTSIDE THAT STATE DURING THE TEN YEARS PRECEDING HIS ENTERING THE SERVICE OF THE COMMUNITIES .
14 IN THE COMMISSION ' S VIEW THAT CONDITION IS NOT FULFILLED IN THIS CASE BECAUSE MR GARGANESE INTERRUPTED HIS PERIOD OF RESIDENCE IN THE GRAND DUCHY OF LUXEMBOURG BY A PERIOD OF MILITARY SERVICE WHICH HE PERFORMED IN ITALY FROM 5 MAY 1970 TO 15 APRIL 1972 . IT CONCLUDES THAT AS A RESULT OF THAT INTERRUPTION THE REQUIRED PERIOD OF TEN YEARS '
RESIDENCE BEGAN TO RUN AFRESH AS FROM 15 APRIL 1972, SO THAT ON THE DATE ON WHICH MR GARGANESE TOOK UP HIS DUTIES, THAT IS TO SAY ON 3 SEPTEMBER 1979, HE DID NOT SATISFY THE REQUIREMENT LAID DOWN BY ARTICLE 4 ( 1 ) ( B ) OF ANNEX VII TO THE STAFF REGULATIONS .
15 SUCH AN ARGUMENT IN THE FIRST PLACE FAILS TO RECOGNIZE THAT IN THE MEMBER STATE OF WHICH MR GARGANESE IS A NATIONAL MILITARY SERVICE FULFILS AN OBLIGATION PERTAINING TO A PERSON ' S VERY STATUS AS A NATIONAL . THE POSSIBILITY WHICH EXISTS IN CERTAIN CASES AND ON CERTAIN CONDITIONS OF OBTAINING EXEMPTION FROM MILITARY SERVICE IS NOT SUCH AS TO DETRACT FROM THE COMPULSORY NATURE OF SUCH SERVICE .
16 IT MUST ALSO BE EMPHASIZED THAT UNDER THE NATIONAL LAW OF THE MEMBER STATES IN WHICH MILITARY SERVICE IS COMPULSORY, THE PLACE WHERE SUCH SERVICE IS PERFORMED DOES NOT ALTER THE HABITUAL RESIDENCE OF THE CONSCRIPT .
17 FINALLY IT IS CLEAR FROM ARTICLE 42 OF THE STAFF REGULATIONS CONCERNING ' ' LEAVE FOR MILITARY SERVICE ' '
THAT AN OFFICIAL WHO IS CALLED UP FOR MILITARY SERVICE OR FOR RESERVE TRAINING OR RECALLED TO SERVE IN THE ARMED FORCES CONTINUES TO BENEFIT THROUGHOUT HIS ENTIRE PERIOD OF SERVICE FROM THE PROVISIONS CONCERNING HIS POSITION UNDER THE STAFF REGULATIONS AND HIS CAREER AND, IN CERTAIN CASES, EVEN RETAINS HIS RIGHT TO RECEIVE HIS SALARY SUBJECT TO DEDUCTION OF AN AMOUNT EQUAL TO HIS SERVICE PAY . IT FOLLOWS FROM THAT PROVISION THAT THE STAFF REGULATIONS THEMSELVES DO NOT ALLOW AN OFFICIAL, AS A RESULT OF HIS PERFORMING COMPULSORY MILITARY SERVICE, TO LOSE RIGHTS WHICH HE WOULD BE ABLE TO CLAIM IN THE ABSENCE OF SUCH SERVICE AND THEREBY PRECLUDE THE POSSIBILITY THAT THE DUTY TO PERFORM MILITARY SERVICE MAY PROVIDE A GROUND FOR UNEQUAL TREATMENT OF OFFICIALS DEPENDING ON WHETHER OR NOT THEY ARE REQUIRED TO PERFORM SUCH SERVICE OR ON WHETHER OR NOT THEY MAY BENEFIT FROM PROVISIONS EXEMPTING THEM FROM IT .
18 IN VIEW OF THOSE CONSIDERATIONS IT IS THEREFORE IMPOSSIBLE TO REGARD THE PERFORMANCE OF COMPULSORY MILITARY SERVICE AS A VALID REASON FOR INTERRUPTING THE PERIOD OF HABITUAL RESIDENCE REFERRED TO BY ARTICLE 4 ( 1 ) ( B ) OF ANNEX VII TO THE STAFF REGULATIONS . A PERSON COVERED BY THAT PROVISION WHO, BEFORE ENTERING THE SERVICE OF A COMMUNITY INSTITUTION, WAS OBLIGED TO LEAVE HIS HABITUAL RESIDENCE IN ORDER TO FULFIL HIS NATIONAL MILITARY DUTIES, IS ENTITLED TO HAVE THE PERIOD THUS SPENT IN THE ARMED FORCES TAKEN INTO ACCOUNT FOR THE PURPOSE OF ESTABLISHING HIS ENTITLEMENT TO THE EXPATRIATION ALLOWANCE PROVIDED FOR BY ARTICLE 69 OF THE STAFF REGULATIONS . FOR THOSE REASONS, THE APPLICATION MUST BE DECLARED WELL FOUNDED .
DEFAULT INTEREST
19 IN HIS APPLICATION THE APPLICANT HAS CLAIMED THAT THE COMMISSION SHOULD BE ORDERED TO PAY HIM DEFAULT INTEREST ON THE ARREARS OF EXPATRIATION ALLOWANCE . SINCE THE APPLICATION IS WELL FOUNDED, THAT CLAIM MUST BE UPHELD .
20 HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE, IT IS FAIR TO PLACE THE APPLICANT IN THE POSITION IN WHICH HE WOULD HAVE BEEN IF THE ALLOWANCE WHICH MUST NOW BE PAID TO HIM HAD BEEN PAID IN ACCORDANCE WITH THE RELEVANT PROVISIONS, OR IN OTHER WORDS, IN DUE TIME .
21 DEFAULT INTEREST MUST THEREFORE BE AWARDED TO THE APPLICANT AT 6 % PER ANNUM, AS CLAIMED AS FROM THE VARIOUS DATES ON WHICH PAYMENT FELL DUE, ON THE AMOUNTS TO WHICH HE IS ENTITLED .
Decision on costs
22 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING .
23 SINCE THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS, IT MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . ANNULS THE COMMISSION ' S DECISION OF 23 JUNE 1980 REFUSING TO PAY THE EXPATRIATION ALLOWANCE AND ORDERS THE DEFENDANT TO PAY THE APPLICANT THE EXPATRIATION ALLOWANCE IN ACCORDANCE WITH ARTICLE 4 ( 1 ) ( B ) OF ANNEX VII TO THE STAFF REGULATIONS AS FROM 3 SEPTEMBER 1979 ;
2 . ORDERS THE DEFENDANT TO PAY DEFAULT INTEREST AT 6 % PER ANNUM ON THE ARREARS OF EXPATRIATION ALLOWANCE, THAT INTEREST TO BE CALCULATED AS FROM THE VARIOUS DATES ON WHICH PAYMENT FELL DUE TO THE DATE OF PAYMENT ;
3 . ORDERS THE DEFENDANT TO PAY THE COSTS .