61979CJ0103_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 103/79
ANDREW M . MOAT, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING IN BRUSSELS, REPRESENTED BY JACQUES PUTZEYS AND XAVIER LEURQUIN, ADVOCATES AT THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR NICKTS, HUISSIER, 17 BOULEVARD ROYAL,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ALAIN VAN SOLINGE, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, ASSISTED BY DANIEL JACOB, ADVOCATE AT 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 ANNULMENT OF THE EXPRESS DECISION REJECTING THE APPLICANT ' S REQUEST RELATING TO THE GRANT OF THE EDUCATION ALLOWANCE AND FOR DAMAGES,
Grounds
1 THE ACTION BROUGHT BY AN APPLICATION OF 21 JUNE 1979 IS FOR A DECLARATION THAT THE APPLICANT IS ENTITLED TO THE EDUCATION ALLOWANCE UP TO THE DOUBLED MAXIMUM, WITHIN THE MEANING OF THE THIRD PARAGRAPH OF ARTICLE 3 OF ANNEX VII TO THE STAFF REGULATIONS, WHILE HIS DAUGHTER ATTENDS LEITH ' S SCHOOL OF FOOD AND WINE, A TECHNICAL TRAINING ESTABLISHMENT IN LONDON SPECIALIZING IN COOKERY . THE APPLICANT CLAIMS THAT THE COURT SHOULD ANNUL THE DECISION OF 6 OCTOBER 1978 REFUSING HIS REQUEST FOR THIS ALLOWANCE AND ALSO THE DECISION OF 26 MARCH 1979 REJECTING HIS COMPLAINT AGAINST THAT REFUSAL .
2 THE APPLICANT IS A BRITISH NATIONAL AND AN OFFICIAL OF THE COMMISSION WHO IS SERVING IN BRUSSELS . HIS DAUGHTER TOOK THE TECHNICAL TRAINING COURSE RUN BY LEITH ' S SCHOOL OF FOOD AND WINE IN HER MOTHER TONGUE DURING THE 1976-1977 SCHOOL YEAR . IT IS COMMON GROUND THAT THE APPLICANT FULFILS THE REQUISITE CONDITIONS TO BE ENTITLED TO THE EDUCATION ALLOWANCE .
3 THE COMMISSION HAS MADE TWO PLEAS THAT THE ACTION IS INADMISSIBLE BASED RESPECTIVELY ON NON-COMPLIANCE WITH TIME-LIMITS AND LACK OF LEGAL INTEREST IN THE PROCEEDINGS . IT CONTENDS IN ADDITION THAT THE ACTION IS UNFOUNDED .
ADMISSIBILITY
4 THE COURT ' S FILE SHOWS THAT THE APPLICANT SUBMITTED A REQUEST ON 7 MARCH 1977 FOR THE DOUBLING OF THE EDUCATION ALLOWANCE . THE AIM OF THE REQUEST, WHICH WAS BASED ON THE APPLICANT ' S DAUGHTER ' S HAVING ENROLLED AT LEITH ' S SCHOOL OF FOOD AND WINE IN LONDON, WAS TO SHOW THAT THE TRAINING PROVIDED BY THAT ESTABLISHMENT WAS CLASSIFIED AS ' ' HIGHER EDUCATION ' '
WITHIN THE MEANING OF THE SECOND INDENT OF THE THIRD PARAGRAPH OF ARTICLE 3 OF ANNEX VII TO THE STAFF REGULATIONS . THIS REQUEST FOR THE DOUBLING OF THE EDUCATION ALLOWANCE WAS REFUSED ON 19 JULY 1977 BY A LETTER OF THE HEAD OF THE INDIVIDUAL RIGHTS AND PRIVILEGES DIVISION ON THE GROUND THAT THE EDUCATION IN QUESTION CANNOT BE REGARDED AS ' ' HIGHER EDUCATION ' ' .
5 THE COMMISSION REJECTED THE COMPLAINT AGAINST THAT REFUSAL ON 27 FEBRUARY 1978 . IN THAT COMPLAINT THE APPLICANT REQUESTED THE COMMISSION TO ADMIT THAT HE WAS ENTITLED TO THE DOUBLED MAXIMUM EITHER ON THE BASIS OF ARTICLE 5 OF THE GENERAL IMPLEMENTING PROVISIONS FOR GRANTING THE EDUCATION ALLOWANCE ADOPTED BY THE COMMISSION ( ESTABLISHMENT OF HIGHER EDUCATION ) OR ON THE BASIS OF ARTICLE 4 OF THOSE PROVISIONS ( PRIMARY AND SECONDARY SCHOOLS ).
6 THE APPLICANT SUBMITTED ON 16 JUNE 1978 ANOTHER REQUEST FOR THE DOUBLED MAXIMUM STATING THAT THERE WAS NO EDUCATIONAL ESTABLISHMENT WORKING IN ENGLISH EITHER IN BRUSSELS, WHICH WAS HIS PLACE OF EMPLOYMENT, OR WITHIN 50 KM OF THAT CITY, COMPARABLE TO THE ESTABLISHMENT ATTENDED BY HIS DAUGHTER IN LONDON AND THAT CONSEQUENTLY THE FIRST INDENT OF THE THIRD PARAGRAPH OF ANNEX VII TO THE STAFF REGULATIONS, AS WORDED AT THAT TIME, APPLIED . THAT PROVISION PROVIDED THAT THE MAXIMUM EDUCATION ALLOWANCE SHALL BE DOUBLE FOR ' ' AN OFFICIAL WHOSE PLACE OF EMPLOYMENT IS AT LEAST 50 KM FROM A EUROPEAN SCHOOL OR AN EDUCATIONAL ESTABLISHMENT WORKING IN HIS LANGUAGE, PROVIDED THAT THE CHILD ACTUALLY ATTENDS AN EDUCATIONAL ESTABLISHMENT AT LEAST 50 KM FROM THE PLACE OF EMPLOYMENT ' ' .
7 THIS FRESH REQUEST WAS REJECTED BY A LETTER FROM THE HEAD OF THE INDIVIDUAL RIGHTS AND PRIVILEGES DIVISION DATED 6 OCTOBER 1978 IN WHICH THE LATTER EMPHASIZED THAT THE CONDITIONS WHICH HAVE TO BE FULFILLED FOR THE APPLICATION OF THE FIRST INDENT OF THE THIRD PARAGRAPH OF ARTICLE 3 OF ANNEX VII WERE NOT PRESENT IN THIS CASE . THE APPLICANT RECEIVED A LETTER DATED 26 MARCH 1979 FROM THE DIRECTOR-GENERAL FOR PERSONNEL AND ADMINISTRATION IN ANSWER TO HIS
COMPLAINT OF 8 DECEMBER 1978 AGAINST THIS FRESH REFUSAL STATING THAT, SINCE THE COMPLAINT WAS IDENTICAL TO THE PRECEDING ONE, IT COULD NOT BE COUNTENANCED AND THAT FURTHERMORE THE ARGUMENTS PUT FORWARD HAD ALREADY BEEN CONSIDERED BY THE DEPARTMENTS OF THE COMMISSION BUT WERE NOT CONSIDERED TO JUSTIFY THE DOUBLED MAXIMUM .
8 THE COMMISSION TAKES THE VIEW THAT IN THESE CIRCUMSTANCES THE ACTION DIRECTED AGAINST THE DECISIONS OF 6 OCTOBER 1978 AND 26 MARCH 1979 IS OUT OF TIME . IT POINTS OUT THAT THE REAL OBJECT OF THE ACTION IS THE ANNULMENT OF THE DECISIONS WHICH REJECTED THE FIRST REQUEST AND THE FIRST COMPLAINT . CONSEQUENTLY THE CONTESTED DECISIONS MERELY CONFIRM THE DECISIONS TAKEN PREVIOUSLY .
9 THE APPLICANT IS OF THE OPINION THAT THE CONTESTED DECISIONS CANNOT BE REGARDED AT ALL AS CONFIRMATORY DECISIONS . THE TWO SUCCESSIVE REQUESTS AND ALSO THE COMPLAINTS WHICH FOLLOWED THEM WERE BASED ON DIFFERENT LEGAL SUBMISSIONS . FURTHERMORE, THE SECOND REQUEST WAS THE SUBJECT OF A SEPARATE EXAMINATION BY THE COMMISSION ' S DEPARTMENTS AS A RESULT OF A VOLUNTARY REOPENING OF THE MATTER BY THE ADMINISTRATIVE AUTHORITY .
10 THE APPLICANT ' S ARGUMENTS ARE NOT WELL FOUNDED . THE FIRST OF THE APPLICANT ' S COMPLAINTS WAS NOT BASED ONLY ON THE ARGUMENT THAT THE TRAINING PROVIDED BY LEITH ' S SCHOOL OF FOOD AND WINE WAS ' ' HIGHER EDUCATION ' '
BUT REFERRED ALSO TO THE POSSIBILITY OF THE COMMISSION ' S GRANTING UP TO THE DOUBLED ALLOWANCE ON THE BASIS OF OTHER LEGAL ARGUMENTS . IN HIS SECOND COMPLAINT THE APPLICANT MERELY DEVELOPED THE SAME LEGAL ARGUMENTS WITHOUT PUTTING FORWARD ANY FRESH FACTS .
11 IN THESE CIRCUMSTANCES THE LETTERS OF THE COMMISSION IN REPLY TO THE APPLICANT ' S SECOND REQUEST AND HIS SECOND COMPLAINT MERELY CONFIRMED THE EARLIER DECISIONS AND THUS COULD NOT RESULT IN STARTING A FRESH PERIOD TO RUN IN FAVOUR OF THE APPLICANT .
12 THE RESULT OF THESE CONSIDERATIONS IS THAT, SINCE THE APPLICANT ' S COMPLAINT AGAINST THE REFUSAL TO GRANT HIM THE EDUCATION ALLOWANCE UP TO THE DOUBLED MAXIMUM WAS REJECTED ON 27 FEBRUARY 1978, THE ACTION BROUGHT BY THE APPLICANT ON 21 JUNE 1979 MUST BE HELD TO BE OUT OF TIME .
13 THE ACTION MUST THEREFORE BE DISMISSED AS INADMISSIBLE .
Decision on costs
14 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .
Operative part
ON THOSE GROUNDS
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION AS INADMISSIBLE .
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .