61977CJ0054_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 54/77
ANTOON HERPELS, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDENT IN VOSSEM, ASSISTED AND REPRESENTED BY JACQUES PUTZEYS AND XAVIER LEURQUIN, ADVOCATES OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES NICKTS, HUISSIER, 17 BOULEVARD ROYAL,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, JOSEPH GRIESMAR, ACTING AS AGENT, ASSISTED BY MADAME DENISE SORASIO-ALLO, A MEMBER OF ITS LEGAL DEPARTMENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO, LEGAL ADVISER TO THE COMMISSION, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE COMMISSION OF 18 JANUARY 1977 REJECTING THE COMPLAINTS MADE BY THE APPLICANT ON 12 APRIL AND 30 JUNE 1976, FOR AN ORDER THAT THE COMMISSION SHOULD ACKNOWLEDGE THE APPLICANT ' S ENTITLEMENT TO THE EXPATRIATION ALLOWANCE AS FROM 1 JANUARY 1976 AND PAY THE SAME, AND FOR THE PAYMENT OF COMPENSATION TO THE APPLICANT FOR THE MATERIAL DAMAGE SUFFERED,
Grounds
1BY APPLICATION LODGED AT THE COURT ON 26 APRIL 1977 THE APPLICANT BROUGHT AN ACTION BEFORE THE COURT UNDER ARTICLE 91 ( 3 ) OF THE STAFF REGULATIONS FOR ( 1 ) THE ANNULMENT OF THE REFUSAL TO CONTINUE PAYMENT OF THE EXPATRIATION ALLOWANCE AND ( 2 ) AN ORDER THAT THE COMMUNITY SHOULD PROVIDE COMPENSATION FOR THE MATERIAL DAMAGE WHICH THE APPLICANT SUFFERED AS A RESULT OF HAVING TO SEEK ADVICE TO CLARIFY HIS LEGAL POSITION .
2THE APPLICANT, WHO IS OF BELGIAN NATIONALITY, ENTERED THE SERVICE OF THE HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY IN LUXEMBOURG ON 18 SEPTEMBER 1961 AND FROM THAT DATE RECEIVED A SEPARATION ALLOWANCE WHICH WAS SUBSEQUENTLY TERMED AN EXPATRIATION ALLOWANCE UNDER THE CONSOLIDATED STAFF REGULATIONS .
3AFTER BEING TRANSFERRED IN JUNE 1968 FROM LUXEMBOURG TO BRUSSELS HE CONTINUED TO RECEIVE THE EXPATRIATION ALLOWANCE .
4AFTER A GENERAL INVESTIGATION THE DIRECTORATE GENERAL CONCERNED CONSIDERED THAT THE SAID ALLOWANCE WAS BEING PAID IRREGULARLY SINCE THE TRANSFER OF THE APPLICANT TO BRUSSELS AND AS FROM 1 JANUARY 1976 IT REFUSED TO CONTINUE PAYMENT THEREOF .
5THE APPLICANT SUBMITTED A FIRST COMPLAINT WITHIN THE MEANING OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS WHICH WAS REGISTERED ON 12 APRIL 1976 .
6MEANWHILE, BY LETTER DATED 8 APRIL 1976, THE DIRECTOR GENERAL CONCERNED HAD INFORMED THE APPLICANT THAT AFTER CONSIDERATION OF THE MATTER HE WAS CONFIRMING THE ORIGINAL DECISION TO WITHDRAW THE ALLOWANCE BUT HAD DECIDED TO GRANT HIM A DIFFERENTIAL ALLOWANCE AD PERSONAM INTENDED TO OFFSET THE LOSS OF THE EXPATRIATION ALLOWANCE UNTIL IT WAS ABSORBED BY FUTURE INCREASES IN SALARY .
7THEREUPON THE APPLICANT ON 28 JUNE 1976 SUBMITTED A FRESH COMPLAINT REQUESTING THE ANNULMENT OF THAT DECISION OF THE DIRECTOR GENERAL .
8IN REPLY TO THOSE COMPLAINTS THE COMMISSION ITSELF BY LETTER DATED 27 JANUARY 1977 CONFIRMED THE DECISIONS TAKEN AND STATED THAT THE DIFFERENTIAL ALLOWANCE WOULD BE EXTINGUISHED ONLY AS A RESULT OF SALARY INCREASES AND NOT BY INCREASES IN REMUNERATION CAUSED BY AN INCREASE IN THE APPLICANT ' S FAMILY RESPONSIBILITIES .
ADMISSIBILITY
9THE COMMISSION CLAIMS THAT THE APPLICATION FOR ANNULMENT IS OUT OF TIME SINCE THE APPLICANT ' S FIRST COMPLAINT WAS REGISTERED ON 12 APRIL 1976, WITH THE RESULT THAT IN THE ABSENCE OF A SPECIFIC REPLY WITHIN THREE MONTHS THE APPLICANT COULD BRING AN APPLICATION UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS AGAINST THE IMPLIED REJECTION OF HIS COMPLAINT UP TO 12 NOVEMBER 1976 .
10IT IS ACCORDINGLY ALLEGED THAT THE APPLICATION LODGED ON 27 APRIL 1977 IS INADMISSIBLE .
11IN TAKING THIS VIEW THE COMMISSION OVERLOOKS THE FACT THAT THE ORIGINAL DECISION OF JANUARY 1976 WAS SUBSTANTIALLY AMENDED, FIRST BY THE LETTER OF 8 APRIL 1976 FROM THE DIRECTOR GENERAL GRANTING THE APPLICANT A DIFFERENTIAL ALLOWANCE AND THEN BY THE REPLY FROM THE COMMISSION SETTING OUT THE CONDITIONS ON WHICH THAT ALLOWANCE WOULD ABATE .
12IT IS TRUE THAT THE COMMISSION CLAIMS THAT THE DECISION TO WITHDRAW THE EXPATRIATION ALLOWANCE MUST CLEARLY BE DISTINGUISHED FROM THAT GRANTING A DIFFERENTIAL ALLOWANCE AND THAT IT IS ONLY THE FORMER OF THOSE TWO DECISIONS WHICH IS THE SUBJECT-MATTER OF THE ACTION .
13HOWEVER, THE TWO DECISIONS ARE CLOSELY CONNECTED AND SHOW THAT THE DECISION TO WITHDRAW THE EXPATRIATION ALLOWANCE WAS REPEATEDLY RECONSIDERED, IF NOT AS REGARDS ITS JUSTIFICATION IN LAW AT LEAST AS REGARDS ITS CONSEQUENCES WITH REGARD TO NATURAL JUSTICE .
14ACCORDINGLY, THE LETTER FROM THE COMMISSION RECEIVED BY THE APPLICANT ON 27 JANUARY 1977 CANNOT BE REGARDED AS A MERE CONFIRMATION OF THE PREVIOUS DECISIONS BUT RATHER AS THE DEFINITIVE OUTCOME OF A RECONSIDERATION OF HIS POSITION .
15THE APPLICATION DIRECTED AGAINST THE DECISION CONTAINED IN THAT LETTER IS THEREFORE ADMISSIBLE .
16THE COMMISSION ALSO CLAIMS THAT THE APPLICATION IS INADMISSIBLE AS REGARDS THE CLAIM FOR DAMAGES BECAUSE IT WAS NOT THE SUBJECT OF A COMPLAINT THROUGH OFFICIAL CHANNELS .
17IT APPEARS FROM THE APPLICATION THAT THIS CLAIM WAS MADE SOLELY TO COVER THE EVENTUALITY OF THE CONTESTED REFUSAL ' S BEING ANNULLED, SO THAT THERE WAS NO NEED ALREADY TO MENTION IT EXPRESSLY IN THE COMPLAINTS WHICH THE APPLICANT SUBMITTED TO THE DEFENDANT .
18MOREOVER, IT IS IMPORTANT THAT THE COURT SHOULD BE ABLE TO GIVE A RULING ON SUCH CLAIMS .
19IT IS RIGHT THEREFORE TO ADMIT THE CLAIM FOR DAMAGES .
SUBSTANCE
APPLICATION FOR ANNULMENT
20ACCORDING TO THE PROVISIONS OF THE STAFF REGULATIONS IN FORCE THE EXPATRIATION ALLOWANCE SHALL BE PAID TO OFFICIALS ' ' WHO ARE NOT AND HAVE NEVER BEEN NATIONALS OF THE STATE IN WHOSE EUROPEAN TERRITORY THE PLACE WHERE THEY ARE EMPLOYED IS SITUATED ' '
OR WHO ARE IN A SIMILAR POSITION .
21HOWEVER, ARTICLE 106 OF THE STAFF REGULATIONS PROVIDES : ' ' ANY OFFICIAL IN RECEIPT OF A SEPARATION ALLOWANCE BEFORE THESE STAFF REGULATIONS WERE APPLIED WHO DOES NOT QUALIFY FOR AN EXPATRIATION ALLOWANCE UNDER ARTICLE 4 OF ANNEX VII SHALL BE ALLOWED THE SAME AMOUNT AS THAT WHICH HE WOULD HAVE RECEIVED BY WAY OF SEPARATION ALLOWANCE UNDER THE SCALE OF REMUNERATION EXISTING BEFORE THESE STAFF REGULATIONS ENTERED INTO FORCE . ' '
22THE CONDITIONS FOR THE GRANT OF THE ABOVE-MENTIONED SEPARATION ALLOWANCE, WHICH WAS PROVIDED FOR BY THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COAL AND STEEL COMMUNITY, DIFFER FROM THOSE OF THE EXPATRIATION ALLOWANCE MAINLY IN THE FACT THAT PERSONS WERE ENTITLED THERETO ' ' WHO BEFORE TAKING UP THEIR DUTIES RESIDED CONTINUOUSLY FOR MORE THAN SIX MONTHS IN A PLACE MORE THAN 25 KILOMETRES FROM THE SEAT ' '
( ARTICLE 47 ( 3 ) OF THE STAFF REGULATIONS ).
23ARTICLE 9 ( B ) OF THE GENERAL REGULATIONS ADOPTED PURSUANT TO THE STAFF REGULATIONS, WHICH TOOK EFFECT ON THE SAME DAY, PROVIDED : ' ' OFFICIALS WHO AS A RESULT OF A NEW POSTING TAKE UP RESIDENCE LESS THAN 25 KILOMETRES FROM THE PLACE WHERE THEY RESIDED BEFORE THEIR ENTRY INTO THE SERVICE LOSE THE RIGHT TO THE ALLOWANCE ' ' .
24THE APPLICANT CONSIDERS THAT THE WITHDRAWAL OF THE EXPATRIATION ALLOWANCE CONTRAVENES THOSE PROVISIONS, IN PARTICULAR BY REASON OF THE FACT THAT IT IS BASED ON THE SUPPOSITION THAT HIS PLACE OF RESIDENCE BEFORE HE ENTERED THE SERVICE OF THE EUROPEAN COAL AND STEEL COMMUNITY WAS BRUSSELS, WHEREAS IT IS SAID TO APPEAR CLEARLY FROM HIS PERSONAL FILE THAT AS FROM THE TIME WHEN HE ENTERED THAT SERVICE HE GAVE AS HIS ' ' PLACE OF ORIGIN ' '
THE MUNICIPALITY OF WEVELGEM, WHICH IS MORE THAN 25 KILOMETRES FROM HIS PLACE OF EMPLOYMENT AND THE PLACE WHERE HE NOW RESIDES .
25SOME DAYS BEFORE HIS RECRUITMENT BY THE HIGH AUTHORITY HE HAD AGAIN ESTABLISHED HIS BELGIAN RESIDENCE AT WEVELGEM, THE PLACE OF RESIDENCE OF HIS PARENTS, AND INFORMED THE APPROPRIATE DEPARTMENT OF THE HIGH AUTHORITY THAT THAT MUNICIPALITY SHOULD BE REGARDED AS HIS PLACE OF ORIGIN .
26ACCORDINGLY HE ALLEGES THAT HIS PLACE OF RESIDENCE WHEN HE ENTERED THE SERVICE WAS WEVELGEM AND NOT BRUSSELS, SO THAT THE SAID ARTICLE 9 ( B ) DOES NOT APPLY TO HIM .
27ARTICLE 9 ( B ), HOWEVER, MUST BE INTERPRETED IN ITS CONTEXT .
28AS HAS BEEN POINTED OUT, ARTICLE 47 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COAL AND STEEL COMMUNITY REFERS TO OFFICIALS WHO BEFORE THEY TOOK UP THEIR DUTIES RESIDED CONTINUOUSLY FOR MORE THAN SIX MONTHS IN A PLACE MORE THAN 25 KILOMETRES FROM THE SEAT OF THE COMMUNITY .
29ACCORDINGLY, THE WORDS ' ' PLACE WHERE THEY RESIDED BEFORE THEIR ENTRY INTO THE SERVICE ' '
CONTAINED IN ARTICLE 9 OF THE GENERAL REGULATIONS MUST BE UNDERSTOOD TO REFER TO THE PLACE WHERE THE PERSON CONCERNED WAS LIVING PERMANENTLY AND WHERE HE WAS PREVIOUSLY EMPLOYED .
30THE FACT THAT THE APPLICANT, JUST BEFORE HIS ENTRY INTO THE SERVICE, REMOVED HIS BELGIAN RESIDENCE TO THE PLACE WHERE HIS PARENTS WERE LIVING AND GAVE THAT LOCALITY AS HIS ' ' PLACE OF ORIGIN ' '
DID NOT HAVE THE EFFECT OF ALTERING THE PLACE WHERE HE WAS RESIDING WITHIN THE MEANING OF THE SAID ARTICLE 9 .
31IN THE RULES IN FORCE AT THE TIME, AS IN THE PRESENT REGULATIONS, ' ' PLACE OF ORIGIN ' '
IS A TERM OF ART HAVING A FUNCTION DIFFERENT TO THAT OF THE CONCEPT EMPLOYED IN ARTICLE 47 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COAL AND STEEL COMMUNITY AND ARTICLE 9 OF THE GENERAL REGULATIONS ; IT INDICATES THE PLACE WHICH IS RELEVANT FOR DETERMINING THE ANNUAL OR BIANNUAL EXPENSES OF TRAVEL FROM THE PLACE WHERE THE OFFICIAL IS EMPLOYED TO HIS PLACE OF ORIGIN, A MATTER WHICH IS AT PRESENT GOVERNED BY ARTICLES 7 AND 8 OF ANNEX VII TO THE STAFF REGULATIONS .
32ARTICLE 7 ( 3 ) PROVIDES : ' ' AN OFFICIAL ' S PLACE OF ORIGIN SHALL BE DETERMINED WHEN HE TAKES UP HIS APPOINTMENT, ACCOUNT BEING TAKEN OF WHERE HE WAS RECRUITED OR THE CENTRE OF HIS INTERESTS ' ', WORDS WHICH CLEARLY SHOW THAT THAT CONCEPT IS DIFFERENT FROM THAT OF THE ' ' PLACE WHERE THEY RESIDED BEFORE THEIR ENTRY INTO THE SERVICE ' ' .
33IT FOLLOWS THAT THE APPLICANT MUST BE REGARDED AS HAVING SATISFIED THE CONDITION CONTAINED IN ARTICLE 9 ( B ) OF THE GENERAL REGULATIONS AND THAT THE SUBMISSION OF ILLEGALITY MUST THEREFORE BE DISMISSED .
34THE APPLICANT ' S SECOND SUBMISSION IS THAT THE CONTESTED DECISION INFRINGED A VESTED RIGHT SINCE THE SEPARATION ALLOWANCE HAD CONTINUED TO BE PAID SINCE 1968 .
35HIS THIRD SUBMISSION ALLEGES FRUSTRATION OF LEGITIMATE EXPECTATION .
36HE CLAIMS THAT AFTER A LAPSE OF SEVEN AND A HALF YEARS THE COMMISSION CANNOT ' ' WRONGFULLY DISTURB TO ITS OWN ADVANTAGE A PREDETERMINED BALANCE OF INTERESTS TO RECTIFY AN ALLEGED ERROR BY ITS DEPARTMENTS ' ' .
37THESE TWO SUBMISSIONS COINCIDE AND CAN THEREFORE BE CONSIDERED TOGETHER .
38ALTHOUGH THE RETROACTIVE WITHDRAWAL OF A WRONGFUL OR ERRONEOUS DECISION IS GENERALLY SUBJECT TO VERY STRICT CONDITIONS, ON THE OTHER HAND THE REVOCATION OF SUCH A DECISION AS REGARDS THE FUTURE IS ALWAYS POSSIBLE .
39IN ANY EVENT, UNDER THE LAW RELATING TO THE PUBLIC SERVICE THE IRREGULAR GRANT OR CONTINUED PAYMENT OF ELEMENTS OF REMUNERATION CANNOT CREATE VESTED RIGHTS SUCH AS TO PREVENT REVOCATION .
40ARTICLE 85 OF THE STAFF REGULATIONS ON THE RECOVERY OF UNDUE PAYMENT CONFIRMS THIS DISTINCTION BY MAKING RECOVERY SUBJECT TO WELL-DEFINED CONDITIONS WHILE RECOGNIZING BY IMPLICATION THAT UNDUE PAYMENTS MAY BE STOPPED .
41OFFICIALS, WHO ARE DEEMED TO HAVE KNOWLEDGE OF THAT PROVISION, CANNOT RELY ON LEGITIMATE EXPECTATION IN THIS RESPECT .
42THE APPLICANT ' S SUBMISSIONS CANNOT THEREFORE BE UPHELD AND HIS APPLICATION FOR ANNULMENT MUST BE DISMISSED .
CLAIM FOR DAMAGES
43THE APPLICANT CLAIMS THAT ' ' BY REASON OF THE WITHDRAWAL . . .
OF THE ALLOWANCE ' '
HE HAD TO CONSULT A LAWYER TO CLARIFY HIS LEGAL POSITION AND THUS INCURRED LEGAL EXPENSES .
44THE APPLICANT CLAIMS THAT THOSE SUMS SHOULD BE REIMBURSED TO HIM AND THAT THE COMMISSION SHOULD THEREFORE BE ORDERED TO PAY DAMAGES WHICH HE ASSESSES AT 15 000 FRANCS .
45THE COSTS OF CONSULTING A LAWYER AT THE STAGE OF A COMPLAINT THROUGH OFFICIAL CHANNELS MUST BE DISTINGUISHED FROM LAWYER ' S FEES INCURRED AS A RESULT OF CONTENTIOUS PROCEEDINGS .
46THE STAGE OF THE PROCEDURE PRIOR TO LITIGATION WHICH IS GOVERNED BY ARTICLE 90 OF THE STAFF REGULATIONS IS AN EXCHANGE BETWEEN THE OFFICIAL UNASSISTED BY A LAWYER AND THE ADMINISTRATION .
47NO FORM IS PRESCRIBED FOR COMPLAINTS WHICH MUST, AS THE COURT HAS OFTEN STATED, BE INTERPRETED AND UNDERSTOOD BY THE ADMINISTRATION WITH ALL THE CARE THAT A LARGE AND WELL-EQUIPPED ORGANIZATION OWES TO THOSE HAVING DEALINGS WITH IT, INCLUDING MEMBERS OF ITS STAFF .
48ALTHOUGH IT IS NOT POSSIBLE TO PROHIBIT THE SEEKING OF LEGAL ADVICE BY THOSE CONCERNED EVEN AT THAT STAGE, IT IS THEIR OWN DECISION AND THE INSTITUTION CONCERNED CANNOT BE HELD LIABLE FOR THE CONSEQUENCES .
49ACCORDINGLY, THERE IS NO CAUSAL LINK BETWEEN THE ALLEGED DAMAGE AND THE ACTION OF THE COMMISSION .
50THE APPLICATION MUST THEREFORE NOT ONLY BE DISMISSED BUT PERHAPS REGARDED AS WITHOUT ANY LEGAL JUSTIFICATION AND THEREFORE VEXATIOUS AND THIS MUST BE BORNE IN MIND IN CONNEXION WITH THE ORDER AS TO COSTS .
Decision on costs
COSTS
51ARTICLE 70 OF THE RULES OF PROCEDURE PROVIDES THAT WITHOUT PREJUDICE TO THE SECOND SUBPARAGRAPH OF ARTICLE 69 ( 3 ) OF THOSE RULES, IN PROCEEDINGS COMMENCED BY AN OFFICIAL OF AN INSTITUTION AGAINST THE INSTITUTION THE LATTER SHALL BEAR ITS OWN COSTS .
52THE SECOND SUBPARAGRAPH OF ARTICLE 69 ( 3 ) PROVIDES : ' ' THE COURT MAY ORDER EVEN A SUCCESSFUL PARTY TO PAY COSTS WHICH THE COURT CONSIDERS THAT PARTY TO HAVE UNREASONABLY OR VEXATIOUSLY CAUSED THE OPPOSITE PARTY TO INCUR ' ' .
53AS HAS BEEN FOUND, THE CLAIM FOR REPARATION OF THE DAMAGE WHICH THE APPLICANT IS SAID TO HAVE SUFFERED BY HAVING TO CONSULT A LAWYER TO CLARIFY HIS LEGAL POSITION IN ORDER TO LODGE A COMPLAINT MAY BE REGARDED AS VEXATIOUS .
54IT WOULD THEREFORE BE RIGHT TO ORDER THE APPLICANT TO BEAR THE COSTS RESULTING FROM THAT CLAIM BECAUSE IT MUST BE STRESSED THAT SUCH CLAIMS, WHILE LACKING ANY JUSTIFICATION, NEVERTHELESS PLACE A BURDEN BOTH ON THE DEFENDANT AND ON THE COURT IN REFUTING THEM AND SHOULD BE DISCOURAGED .
55HOWEVER, IT MUST BE BORNE IN MIND ALSO THAT THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS OF INADMISSIBILITY .
56IN THE CIRCUMSTANCES OF THE CASE IT IS NEVERTHELESS PROPER TO ORDER EACH PARTY TO BEAR ITS OWN COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION ;
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .