61981C0090
OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN
DELIVERED ON 11 FEBRUARY 1982
My Lords,
The applicant in this case, Mr Manfred Burg, is an official of the Court. He was first employed as a temporary agent with effect from 1 April 1977 and became an established official on 1 March 1978. In this action he claims that he is entitled to be paid an installation allowance pursuant to Article 5 of Annex VII of the Staff Regulations and interest on the amount payable from the time when it fell due up to the date of payment; he accordingly asks the Court to annul an express rejection, on 21 January 1981 by the President of the Court, of a complaint made by him against a decision of the Registrar dated 6 November 1980 refusing him the installation allowance.
Article 5(1) provides, so far as is relevant, as follows:
“An installation allowance equal to two months' basic salary in the case of an official who is entitled to the household allowance or to one month's basic salary in other cases shall be paid to an established official who qualifies for expatriation allowance or who furnishes evidence of having been obliged to change his place of residence in order to comply with Article 20 of the Staff Regulations.”
It is not disputed that Mr Burg qualified for an expatriation allowance.
Article 20 of the Staff Regulations provides that officials must reside either in the place where they are employed or at no greater distance therefrom than is compatible with the proper performance of their duties.
Article 5(3) of Annex VII provides:
“The installation allowance shall be paid on production of documents establishing the tact that the official, together with his family if he is entitled to the household allowance, has settled at the place where he is employed.”
At the time of his appointment in 1977, Mr Burg lived with his wife and daughter at Perl, which is on the German side of the Moselle, about 30 kilometres from the city of Luxembourg. On 8 November 1978 he submitted a claim for the payment of the installation allowance, enclosing a copy of an agreement dated 12 November 1978 for the letting of a room in Schengen, which is on the Luxembourg side of the Moselle and is connected to Perl by a bridge. The claim was turned down by the head of the Court's Personnel Department in a memorandum dated 20 December 1978. On 4 July 1979, Mr Burg wrote again, challenging the reasoning on which the rejection was based. The Registrar, who is charged with the application of the provisions of Annex VII, wrote to Mr Burg on 7 November 1979 saying that (i) the lease was not sufficient proof that he had in fact moved to Schengen and (ii) even if he could prove his change of residence, a move of some two kilometres could not be considered to be the “integration in new surroundings” which was required for the grant of the allowance. The Registrar was here using words to be found in the Court's decision in Case 140/77 Verhoa/v Commission [1978] ECR 2117 at paragraph 18.
On 13 November Mr Burg wrote to the Registrar rejecting his interpretation of the Staff Regulations and the Verhaaf case and asking him to reveal how far away from his home Mr Burg had to rent a room in order to qualify for the allowance. He referred to the fact that earlier (apparently from 2 January 1978) he had taken a flat at Trintange, which is 20 kilometres from Perl, in an attempt to satisfy the Personnel Department that he had moved, but he had had to give up his lease of that flat when the owner sold it, semble in Februar. 1978. The memorandum concludes with a request that the Registrar reply within a reasonable time so that a complaint could be served under Article 90 of the Staff Regulations. The Registrar replied on 29 November saying that, as no new element requiring Mr Burg's claim to be reexamined had emerged, he could only confirm his decision contained in the 7 November memorandum. On 3 December Mr Burg repeated his request to be told how far away from his home he had to move and the Registrar replied on 18 December saying that the allowance was granted not by reference to the distance between the place of origin and that of the residence relied on but only on proof that the official had in fact moved to his place of work.
On 3 September 1980, Mr Burg renewed his claim in a memorandum to which he annexed a copy of the same letting agreement which he had submitted almost two years before, one receipt, dated 26 September 1979, indicating that he had ordered a bed, two invoices showing the purchase of a bed and two duvets, and a copy of an entry made in his passport and that of his wife (apparently dated June and August 1980 respectively) saying that they had both moved to Schengen. The copy of the lease bore an addendum dated 1 May 1980 fixing the rent for two rooms. Of the invoices, one is dated 26 October (no year is stated) and, while it mentions Mr Burg's Schengen address, it also has “Perl” written on it in manuscript. The second is dated 4 July 1980 and indicates his address as Perl, not Schengen.
On 6 November the Registrar wrote to Mr Burg rejecting his claim on the ground that the allowance could be granted only on proof of transfer of the official's permanent residence from a place other than that of his employment and of his settlement in another place which could be considered his place of employment; Mr Burg's residence both before and after his appointment was within a radius of 30 kilometres of the city of Luxembourg and his residence at Schengen was only 2 kilometres from his original residence at Perl; it was therefore impossible to conclude that Mr Burg was now integrated in new surroundings and that he had settled in the place of his employment.
It was against this decision that Mr Burg lodged his complaint a few days afterwards. By a decision dated 19 January 1981 and communicated to Mr Burg under cover of a memorandum dated 21 January, the President of the Court rejected the complaint for. the following reasons: (i) it was directed against a decision confirming earlier decisions made in 1978 and 1979 against which no complaint had been made; (ii) in any event Mr Burg had not proved that he had in fact settled at the place of his employment. On 14 April 1981, within the time-limits fixed for doing so, Mr Burg lodged his application commencing this action.
At the hearing Counsel for Mr Burg said that, until November 1978, Mr Burg and his family had lived at Perl. The whole family then moved to Schengen although the room there was not in fact furnished until a year later and Mr Burg retained his house at Perl and continued to send his daughter to school in Germany.
The first point for consideration is whether the whole of the correspondence from November 1978 onwards was merely a discussion between the parties which only gave rise to a decision adversely affecting Mr Burg on 6 November 1980, as Counsel for Mr Burg contends, or whether that decision was nothing more than confirmation of an earlier decision.
The Court has on a number of occasions held that an act “adversely affecting” an official is one which directly affects his legal position in a way adverse to his claim. In my opinion, whatever the status of the correspondence which passed previously, the Registrar's memorandum of 7 November 1979 constituted a decision of such a nature and was therefore one against which Mr Burg could have submitted a complaint: it was made by the person responsible for the application of Annex VII and it rejected his claim to be paid the allowance. If he was in any doubt as to the precise status of the memorandum, the position was clarified beyond any reasonable doubt by the Registrar's memorandum of 29 November 1979, which referred to the earlier one as a decision not to grant the allowance. In his reply, dated 3 December 1979, Mr Burg seemed to accept that his claim had been rejected because he said he was prepared to rent another room in Luxembourg but, in order to avoid further difficulties, he wished to know where he had to move to in order to fulfil the conditions for obtaining the allowance.
Had the Registrar's decision of 7 November 1979 been based only on the lack of adequate proof of a change of residence, it would not in my view have been an obstacle to the presentation of another claim supported by further evidence (although, in the present case, I doubt whether the proof adduced by Mr Burg in his memorandum of 3 September 1980 was, in fact, sufficient to warrant a reconsideration of his claim). However, since the decision also rejected the claim on the ground that a move of 2 kilometres could not be considered integration in new surroundings, it constituted a decision on the legal validity of the claim. The Registrar's second decision of 6 November 1980 repeated this objection to the validity of the claim, if more fully, and can only be regarded as having confirmed his first decision. That first decision was, in my opinion, the act adversely affecting Mr Burg and, since he did not submit a complaint against it within time, his action must be rejected as being inadmissible.
If it had been admissible would it have been well-founded?
It is contended on behalf of Mr Burg that he is entitled to the installation allowance, simply because he qualifies for the expatriation allowance, under Article 5(1) of Annex VII. He is accordingly not required to produce evidence of having been obliged to change his place of residence in order to comply with Article 20 of the Staff Regulations; nor is he required to produce documents establishing the fact that he has “settled at the place where he is employed”, pursuant to Article 5(3) of Annex VII, before the installatie allowance is paid. This latter requirement applies only to those under the second limb of Article 5(1), and does not apply to those who qualify for the expatriation allowance. He argues that the installation allowance is to compensate those who have to settle into the new surroundings at their workplace and not necessarily at their place of residence. The fact that an official satisfies the requirements for the expatriation allowance in itself establishes the need to settle at the new workplace. Mr Burg's new workplace, Luxembourg, is far away from his former place of work, Frankfurt airport.
For the respondent, on the other hand, it is said that even though the applicant satisfies Article 5(1) (as to entitlement), he is not able to claim payment until he proves that he has settled at his workplace. Here the evidence does not show that he has set up home at Schengen, 2 kilometres from Perl, because of his appointment at the Court of Justice; nor can it be said that the fact of moving 2 kilometres shows that he has set up in new surroundings and taken up residence at his workplace. Article 5(3) requires that an official claiming an installation allowance should show that he has settled in new surroundings because of his service with the Court.
There is an apparent inconsistency between Article 5(3) of Annex VII and Article 20 of the Staff Regulations. To satisfy Article 20, an official may either reside “in the place where he is employed”or“at no greater distance therefrom as [sic] is compatible with the proper performance of his duties”. If he shows that he is obliged to change his place of residence to either of these places, he satisfies Article 5(1) which deals with entitlement. Yet the obligation to pay is said to arise only when he produces documents showing that he has settled at the place where he is employed. Ex facie, it is not enough if he produces documents to show that he has taken up residence at no greater distance from the place where he is employed than is compatible with the proper performance of his duties. This seems to me clearly a gap in the drafting and cannot have been intended. In Article 5(3) “settled at the place where he is employed” must be read as including “or at no greater distance therefrom than is compatible with the proper performance of his duties”. It is desirable, in order to avoid further arguments, that this, if intended, should be spelled out expressly in Article 5(3).
This does not, however, assist Mr Burg. It seems to me plain that officials who qualify for the expatriation allowance and officials who have to move to comply with Article 20 both have to show that they have “settled” at the place where they are employed or (as I think) at no greater distance therefrom than is compatible with the proper performance of their duties. The very name “installation allowance” implies that there has to be an “installation”. Reading the relevant regulations as a whole, it seems to me that as a matter of construction, it must be an “installation” by reason of the appointment. The definition of those who qualify for the expatriation allowance indicates that they do not have an habitual residence in the State where they are to work and that “installation” or establishment there in a real sense will be necessary. Those who do not qualify for the expatriation allowance must show, in order to obtain the installation allowance, that they were obliged to move to be at or near to their place of employment.
As the Court said in its judgment in Case 140/77 Verkauf v Commission“the specific and characteristic purpose of an installation allowance is to enable an official to bear, in addition to removal expenses, the inevitable expenses incurred through integrating in new surroundings for an indeterminate but substantial period of time”.
Even though an installation allowance is fixed by reference to salary rather than by reference to actual expenses, no doubt for reasons of administrative convenience, it is still to be paid in respect of expenses which are, or which it may be assumed will be, incurred on installation. The heading to Section 3, in which Article 5 appears, namely “Reimbursement of expenses”, indicates that this payment is not simply an automatic addition to pay but it is meant to cover expenses which are or which are expected to be incurred. The official does not have to itemize the amount of the expenses; he has to show that he moved to and settled in a new place, so that expenses are or are likely to be incurred before there arises any obligation to pay the allowance. (See by analogy what was said by the Court as to resettlement allowances in Joined Cases 27 and 39/59, Campolongo v High Authority [1960] ECR 391 at p. 405, fifth paragraph).
That such is the correa interpretation seems to me to be made clear by Article 71 of the Staff Regulations, which, coming under the heading “Expenses”, provides, inter alia, that “an official shall be entitled as provided for in Annex VII, to reimbursement of expenses incurred by him on taking up appointment” (emphasis added).
The evidence initially produced gave rise to v..ubts as to whether in a real sense the applicant did “settle” at Schengen. Assuming in his favour that he did, it seems impossible to regard this as integration in new surroundings within the meaning of the Court's judgment in Case 140/77. In any event the change of residence from one place to another 2 kilometres away cannot be accepted as having been made or made necessary in this case by reason of his appointment to the Court. In the first place nothing has been shown to explain the move other than his wish to qualify for the installation allowance; or at the very most for reasons of personal convenience. It seems to me that in this case the fact that this short move was only made well over a year after his employment by the Court began shows that it was not made necessary by his appointment to a post with the Court.
Suggestions were made at the hearing that the applicant was “pressured” into changing his residence. On investigation il became clear that there was no form of insistence or request that he should move in order to comply with Article 20 of the Staff Regulations, nor that any kind of improper pressure was exerted. It amounted to no more than a claim that he was told that, unless he made a real change of residence by reason of his appointment, the installation allowance would not be paid. There is nothing in this allegation to support his claim that he is entitled to the allowance.
In my opinion he has not shown that he is entitled to the allowance or that the respondent's refusal of the allowance was erroneous.
For these reasons it is my opinion that this application should be dismissed (i) as being inadmissible, or, if held by the Court to be admissible, (ii) as being unfounded. Each side should bear its own costs.