61979C0142
OPINION OF MR ADVOCATE GENERAL CAPOTORTI
DELIVERED ON 24 APRIL 1980 (
1
)
Mr President,
Members of the Court,
1.
Case 142/79 in which I am now giving my opinion is concerned with the rights of an official of the Communities to the payment of the daily subsistence allowance and reimbursement of removal expenses. These rights are governed respectively by Articles 10 and 9 of Annex VII to the Staff Regulations. However, the question to be considered for the moment is only that of the admissibility of the application and therefore I shall not concern myself with its merits.
First of all it is appropriate to summarize the facts.
Mrs Patrizia Geronimo (née Fonti) worked for the European Parliament as an auxiliary from 5 October 1976 to the end of 1977. During that period she received the daily subsistance allowance for about a year (more precisely from the beginning of her employment until 24 October 1977) pursuant to Article 69 of the Conditions of Employment of Other Servants of the European Communities which refers to the said Article 10 of Annex VII to the Staff Regulations. Subsequently, after being successful in a competition, she was appointed as a probationer official, still with the European Parliament, as from 1 January 1978 and assigned to Category C, Grade 3, Step 3. Although the offer of employment mentioned the payment of the daily subsistence allowance (for a period of not more than 180 days) among the benefits to which she would be entitled after appointment, Mrs Geronimo did not receive that allowance. After seeking clarification of the matter in a letter dated 21 February 1978 addressed to the Head of the Management and Staff Regulations Department and after making a specific claim in another letter dated 24 July, she received on 11 October an answer in the negative and this was confirmed by the Director-General for Administration, Personnel and Finance in a letter, dated 27 November 1978, sent to the President of the Staff Committee who had intervened on behalf of Mrs Geronimo. In the latter exchange of correspondence the question of the applicant's right to reimbursement of removal expenses was also raised. On 20 February 1979 Mrs Geronimo made a complaint to the administration (within the meaning of Article 90 (2) of the Staff Regulations). Since there was no answer to that complaint the present proceedings were brought on 12 September 1979.
The defendant institution has objected that the action is inadmissible on the ground that the prior complaint to the administration was out of time. The Court has decided to rule on that objection before deciding the merits of the case.
2.
Since there are two heads of claim in the complaint and the action (the right to the daily subsistence allowance and the right to reimbursement of removal expenses) it is necessary to consider the question of admissibility in relation to each head of claim separately. I shall commence, therefore, with the claim for the daily subsistence allowance.
As you know, according to the second indent of the said Article 90 (2) of the Staff Regulations a complaint against an act affecting a specified person must be made within three months of the date of notification of the decision to the person concerned or the date on which he received such notification.
To establish in the present case whether the complaint was submitted in time it is necessary to identify the act adversely affecting Mrs Geronimo and to ascertain when it was notified to her or when she received such notification. The parties are at issue on this matter. The applicant maintains that she was notified of the unfavourable decision only by the letter dated 27 November 1978 from the Director-General for Administration, Personnel and Finance in which the President of the Staff Committee was informed that the applicant had no right to the daily subsistence allowance or to the reimbursement of removal expenses. On the other hand the defendant institution maintains that in the first place the applicant was informed of the unfavourable decision in respect of the daily subsistence allowance by means of the explanatory note which accompanies the payment of the monthly salary (pay slip) and this was first sent to Mrs Geronimo after her establishment in January 1978. In the second place the defendant states that the form drawn up by the administration for each official on taking up employment also contains particulars of the allowances contained in the salary; the applicant was aware of that form at least from February 1978 for she refers to that date in her letter sent on 21 February 1978 to the Head of the Management and Staff Regulations Department. Finally, the defendant observes, further in the alternative, that the applicant was clearly informed of the refusal by means of the letter sent to her on 11 October 1978 by the Head of the Management and Staff Regulations Department.
These three contentions in the submissions of the European Parliament deserve to be considered in the order in which they have been put forward. As regards the first it seems proper to recall that according to the case-law of this Court the monthly salary statement may constitute an act adversely affecting an official where the salary statement clearly shows the decision taken concerning that part of the remuneration which is the subject of the dispute (see the Judgment of 21 February 1974 in Joined Cases 15 to 33, 52, 53, 57 to 109, 116, 117, 123, 132 and 135 to 137/73 Schots née Korttier ν Contici/, Commission and Parliament [1974] ECR 177).
The salary statement which was given to the members of staff of the Parliament (including, presumably, Mrs Geronimo) in the period with which we are concerned, that is the year 1978, was a statement having on its face particulars to identify the official (items 1 to 5) and the various components of the salary with the amounts relating thereto (items 6 to 19). The necessary explanations were printed on the back to enable the reader to understand the significance of each item. The various items of remuneration referred to in the statement were in fact of a permanent nature such as the salary, household allowance, dependent child allowance, flat-rate education allowance, expatriation allowance and so forth and thus they did not include the daily subsistence allowance which is of a temporary nature, but in cases in which the latter was due a separate, specific slip containing particulars of the allowance (the amount and period for which it was payable) was included with the salary statement. All this information has been supplied to the Court by the agent of the European Parliament by letter dated 25 March 1980 to which copies of the documents in question were annexed.
Having regard to that I think that the fact that Mrs Geronimo was given the salary statement without the separate slip relating to the daily subsistence allowance was sufficient to make her aware that the latter allowance was not being granted to her and thus to put her in a position to make a complaint if she thought she should.
This point of view is based on the fact that the salary statement contained particulars of all the items making up the salary and showed the amounts whose sum, after deducting tax and insurance which were also shown, logically had to correspond to the total salary; thus the absence of the daily subsistence allowance could mean only that the administration had decided not to grant that allowance. Further, the fact that the offer of employment made by the Administration by letter dated 9 December 1977 and signed by the Director-General for Administration, Personnel and Finance also mentioned the daily subsistence allowance (for a period of up to 180 days) among the items of remuneration which the applicant would receive should have induced her to check carefully the items of remuneration against the salary Statement to determine whether that salary contained all the items mentioned in the offer including the daily subsistence allowance.
If this argument is accepted the head of claim relating to the daily subsistence allowance is certainly inadmissible since the complaint to the administration dated 20 February 1979 is more than a year after the act adversely affecting the applicant which goes back to January 1978.
3.
The second argument put forward by the defendant is essentially based, as we have seen, on the letter sent by the applicant on 21 February 1978 to the Head of the Management and Staff Regulations Department in which she stated that she had discovered in the “fiche d'accompagnement” [accompanying document], which had been drawn up when she was appointed an official, “that the daily subsistence allowance had been withdrawn” and observed that this “is quite contrary to the offer of employment dated 9 December 1977”. The “fiche d'accompagnement” to which the applicant refers (which must not be confused with the monthly salary statement with which we have so far been concerned) is a slip of paper containing a number of particulars concerning the legal and financial status of the official; it lists inter alia a certain number of allowances included in the salary and notes against each “yes” or “no” according to whether they are due or not to the person in question. In the present case the document relating to Mrs Geronimo bore the hand-written note “non” in the appropriate box against the item “indemnités journalières” (a photocopy of the document has been produced by the applicant's counsel at the request of this Court).
Although the slip in question is an internal document of the administration and is not intended to be shown to the official, it has considerable importance in our case because it clearly expresses the intention of the administration to refuse to pay the daily subsistence allowance.
Since she had an opportunity of acquainting herself with that document the applicant was aware of the unfavourable decision by the administration concerning her. Obviously the information was unofficial, but it is nevertheless relevant since it meets the provision of the second indent of the first subparagraph of Article 90 (2) of the Staff Regulations which has already been cited. Under that provision notification of a decision affecting a specified person and actual knowledge of it, however acquired, are placed on the same level for the purposes of the date from which the period for lodging a complaint to the administration begins to run.
It does not seem to me that that argument can validly be met by the claim that the decision of the administration to refuse the daily subsistence allowance as reflected in the “fiche d'accompagnement” is defective for failure to state the grounds on which it is based (second paragraph of Article 25 of the Staff Regulations) and for that reason cannot constitute the act adversely affecting the official which must be challenged. In my opinion, in order for an act to be open to challenge it suffices that it should exist and represent a position taken by the administration identifiable as a legal act, but it is not necessary that such an act should be free from defect: the purpose of the administrative complaint is in fact to assert a defect in an act and thus to have the act annulled. Moreover, it is significant from this point of view that in the case-law of this Court the statement accompanying the payment of the monthly salary has been regarded as an act adversely affecting an official and open to challenge: that is to say a document which, even when it contains a clear. position adopted by the administration, certainly does not in any way show the grounds on which it is based.
If therefore in the present case the time when the applicant had knowledge of the “fiche d'accompagnement” (February 1978) is taken as the date from which the three months for lodging a complaint begin to run, the only possible finding is that the complaint made approximately one year later (20 February 1979) is out of time. The result is that viewed from this aspect too, the application to the Court in relation to the daily subsistence allowance must be regarded as inadmissible.
4.
Let us assume, however, that it is not sought to treat either the monthly salary statement or the “fiche d'accompagnement” drawn up by the administration when an official takes up his employment as acts adversely affecting an official which must therefore be challenged by a complaint to the administration in due time. Even in that case the administration complaint must be regarded as out of time and the application for daily subsistence allowance inadmissible in so far as there was another position adopted by the administration which could and ought to have been challenged but which the applicant did not contest. I refer to the letter which the Head of the Management and Staff Regulations Department sent to Mrs Geronimo on 11 October 1978 and thus more than four months before the complaint was lodged. In that letter the head of the department informed the applicant that the Heads of the Administrative Services, meeting on 15 September 1978 in order to resolve on a uniform basis problems common to the three institutions regarding staff relations, had agreed that it is not possible to recognize that there is a change of residence following the appointment as an official (such change being a necessary prior condition to the grant of daily subsistence allowance) when the official is already established in the place where he is to be employed two months before being engaged. The writer of the letter concluded by saying that he regretted “therefore not being able to give a favourable answer” to her request (relating to the daily subsistence allowance).
In my opinion the document in question constitutes a clear adoption of a position stating the grounds on which it is based (by means of the reference to the opinion of the Heads of the Administrative Services) and thus certainly an act which ought to have been the subject of a complaint to the administration to avoid any subsequent legal proceedings being inadmissible. The applicant has objected that the letter would constitute a decision by a body which has no competence in the matter and thus a position which is not relevant as regards the periods under Article 90 of the Staff Regulations. I am, however, of the opinion that the act in question is not ultra vires and in any case even if it were that would be irrelevant as regards the expiry of the above-mentioned period.
Concerning the allegation that the measure was ultra vires I note in general terms that each institution has a wide discretion regarding its own organization and the allocation for that purpose of internal functions (subject, of course, to such limits as are laid down by provisions of the Treaty or secondary legislation). As regards the administration of the European Parliament, powers relating to staff management which the Staff Regulations attribute to the appointing authority are exercised by the Bureau, and by the President, acting on a proposal from the Secretary-General, in relation to certain aspects of the legal status of officials of Category A (and to a very limited extent as regards all officials) and by the Secretary-General in all other cases. In turn the Secretary-General is authorized to delegate certain executive powers to the Director-General for Administration. That is all on the basis of the decisions of the Bureau of 12 December 1962 and 16 December 1976, the texts of which are annexed to the file on the case. The specific powers of the Head of the Management and Staff Regulations Division have their origin in the documents produced by the agent for the European Parliament at the request of the Court. It is shown that the head of that division has authority in matters relating to personal rights only in cases “in which the power of decision has not been given expressly to the Appointing Authority” because it is a question “only of recognizing the existence of objective situations”.
I think the position adopted by the Head of the Management and Staff Regulations Division in the said letter of 11 October 1978 comes within the scope of those cases. That body confined itself in fact to finding that the objective conditions on which the right to the daily subsistence allowances is based were not fulfilled. It must therefore be held that the decision to refuse to pay the applicant the daily subsistence allowance was taken by a competent body.
Moreover, even if there were doubts on that issue there can be no question regarding the validity of the decision contained in the letter of 11 October 1978 since the position subsequently taken by the Director-General for Administration, Personnel and Finance upholding the position adopted by the Head of the Division is equivalent to confirmation having effect ex tunc. I refer to the letter of the Director-General dated 27 November 1978 addressed to the President of the Staff Committee in which it was not only stated, with regard (inter alia) to Mrs Geronimo's application for the daily subsistence allowance, that that application could not be granted, but it was also said that the applicant had “already been officially notified of the refusal with the reasons on which it was based duly stated” meaning by refusal the position adopted in the said letter dated 11 October 1978 from the Head of Division.
Allow me finally to add that in any case if the Head of the Management and Staff Regulations Division had acted ultra vires it would in no way have affected the period for bringing an action for the reasons which I have set out above concerning the defect arising from the absence of grounds referred to by the applicant in regard to the “fiche d'accompagnement”.
5.
To meet the objection that her claim is out of time the applicant cites the letter from the Director-General for Administration, Personnel and Finance of 27 November 1978, to which I have just referred, as an act adversely affecting her. I do not, however, see how it is possible to maintain that the letter in question represented the first decision taken by the Administration on the right claimed by Mrs Geronimo. In fact it was in the nature of a repetition of the previous positions which, as has been seen, were well known to the applicant. The Director-General confined himself to informing the President of the Staff Committee of the position already adopted by his department regarding the claims of Mrs Geronimo without introducing any new factor, in fact merely referring to the decision of the Head of the Management and Staff Regulations Division dated 11 October 1978. Moreover, the letter was not addressed to the applicant: that confirms its character as mere information concerning the policy already adopted by the Administration and by the same token contributes to refuting the view that it is in the nature of a decision.
It is therefore in vain that the applicant seeks to show that her complaint was in time by taking the letter from the Director-General as the date from which time begins to run. That argument is without foundation. On the other hand the objection to admissibility appears supported, as we have seen, by more than one valid argument.
6.
Let us now pass on to consider the admissibility of the action as regards the second head relating to the reimbursement of removal expenses. Under Article 9 of Annex VII to the Staff Regulations the right to such reimbursement is given to an official who is obliged to change his place of residence to comply with the requirement to reside in the place of his employment.
In this respect, I note first of all that it is not apparent from the documents produced or otherwise that the applicant ever started the procedure for reimbursement of removal expenses before making the complaint to the administration. That procedure, as the said rule provides, involves the submission to the appropriate department of at least two estimates and the subsequent approval by the department of one of the estimates. The applicant's advocate has, however, recognized that Mrs Geronimo has never until now requested reimbursement of removal expenses. In these circumstances I am of the opinion that as regards that head of claim there is no adverse act by the Administration which the applicant could have challenged. Consequently there is no purpose to that head in the complaint put forward by Mrs Geronimo on 20 February 1979 and the subsequent application to the Court must be regarded as inadmissible in so far as it is connected with a complaint which had no purpose.
In fact before the complaint was made only the letter sent on 6 November 1978 by the President of the Staff Committee to the Director-General for Administration, Personnel and Finance and the latter's reply of 27 November 1978 referred to the removal expenses. The first mentioned, but did not specify, the difficulties which the applicant had encountered in obtaining payment of the “indemnité de déménagement” [literally “removal allowance”] while the second included the “reimbursement of removal expenses” in the heading together with the daily subsistence allowance. According to the applicant that document involves a decision to refuse reimbursement of removal expenses. It seems to me, however, that the wording of the letter gives rise to many doubts: in spite of the above-mentioned wording of the heading, the first sentence, in which the applicant's claims are referred to, uses the expression “the right in question” (“le droit dont sous objet”) in which the use of the singular is significant. In setting out the answer on the merits the penultimate sentence simply confirmed the refusal by the Head of the Management and Staff Regulations Division, which, as we know, related only to the daily subsistence allowance. In any event the objection remains valid that in the absence of any request for reimbursement any attitude adopted by the Administration merely amounts to a declaration of intent without any effect.
In the course of the oral procedure the applicant's advocate stated that the claim in question sought a declaration from the Court in which the applicant must be regarded as having a legal interest to dispel the doubt that the Administration might deny the right to reimbursement of removal expenses in the future. In my opinion, however, the admissibility of an application for a declaration in staff cases must statisfy not only the general criterion of there being a legal interest in bringing an action but also the principles which govern such actions. It is well known that the Staff Regulations provide a system of consecutive stages always characterized in the initial phase by a complaint to the administration which can be made only against specific acts of the Administration which adversely affect rights of officials. In the absence of such adverse acts the official cannot make an application to the Court simply to remove the uncertainty regarding the existence of a right. Since in the present case there is no act of the Administration which has adversely affected the applicant, therefore, the head of claim in the application to the Court relating to removal expenses is inadmissible. It does not come within the scheme of remedies governed by Articles 90 and 91 of the Staff Regulations.
7.
For all the foregoing reasons I conclude by proposing that the Court should declare the action brought on 12 September 1979 by Mrs Patrizia Geronimo, née Fonti, against the European Parliament is inadmissible. Having regard to the nature of the dispute it seems to me fair that the parties should bear their own costs.
(
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)	Translated from the Italian.