61979CJ0142_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 142/79
PATRIZIA GERONIMO ( NEE FONTI ), OFFICIAL OF THE EUROPEAN PARLIAMENT, RESIDING IN STRASSEN, REPRESENTED BY VICTOR BIEL, OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS AT 18A RUE DES GLACIS,
APPLICANT,
V
EUROPEAN PARLIAMENT, REPRESENTED BY FRANCESCO PASETTI-BOMBARDELLA, DIRECTOR-GENERAL FOR ADMINISTRATION, PERSONNEL AND FINANCE, ACTING AS AGENT, ASSISTED BY ALEX BONN AND PIERRE PRUM, OF THE LUXEMBOURG BAR WITH
AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ALEX BONN, 22 COTE D ' EICH,
DEFENDANT,
Subject of the case
APPLICATION BY THE EUROPEAN PARLIAMENT AT THE PRELIMINARY STAGE OF THE PROCEEDINGS FOR AN ORDER THAT THE ACTION BROUGHT BY MRS GERONIMO FOR RECOGNITION OF HER RIGHT TO THE DAILY SUBSISTENCE ALLOWANCE AND REIM-
BURSEMENT OF REMOVAL EXPENSES IS INADMISSIBLE,
Grounds
1 BY AN ACTION BROUGHT ON 13 SEPTEMBER 1979 THE APPLICANT, AN OFFICIAL AT THE EUROPEAN PARLIAMENT, CLAIMS THAT THE COURT SHOULD ANNUL, PURSUANT TO ARTICLE 91 OF THE STAFF REGULATIONS, A DECISION REFUSING TO PAY THE ' ' DAILY SUBSISTENCE ALLOWANCE ' '
PROVIDED FOR IN ARTICLE 10 OF ANNEX VII TO THE STAFF REGULATIONS AND REIMBURSEMENT OF REMOVAL EXPENSES TO WHICH SHE IS ENTITLED UNDER ARTICLE 9 OF THE SAME ANNEX .
2 IN A SEPARATE DOCUMENT LODGED UNDER ARTICLE 91 OF THE RULES OF PROCEDURE THE PARLIAMENT OBJECTED TO ADMISSIBILITY BY REASON, ON THE ONE HAND, OF THE LATE NATURE OF THE COMPLAINT ORIGINATING THE APPLICATION AND, ON THE OTHER, OF THE ABSENCE OF A DECISION RELATING TO REMOVAL COSTS, AS THE APPLICANT HAD NOT SUBMITTED ANY REQUEST IN RELATION THERETO . THE COURT DECIDED TO OPEN THE ORAL PROCEDURE ON THE OBJECTION ALONE .
3 IT IS APPARENT FROM THE FILE THAT THE APPLICANT, WHO PREVIOUSLY LIVED IN ROME, WORKED FOR THE EUROPEAN PARLIAMENT AS A MEMBER OF THE AUXILIARY STAFF FROM 25 OCTOBER 1976 TO THE END OF 1977 . SHE RECEIVED BY REASON OF THE CHANGE OF HER PLACE OF RESIDENCE THE DAILY SUBSISTENCE ALLOWANCE FOR THE PERIOD EXTENDING FROM THE BEGINNING OF HER EMPLOYMENT UNTIL 24 OCTOBER 1977 UNDER ARTICLE 69 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS WHICH REFERS TO ARTICLE 10 OF ANNEX VII TO THE STAFF REGULATIONS .
4 AFTER BEING SUCCESSFUL IN A COMPETITION HELD BY THE PARLIAMENT THE APPLICANT WAS OFFERED A POST SUBJECT TO THE STAFF REGULATIONS AS A SHORTHAND-TYPIST FROM 1 JANUARY 1978 . IN THE LETTER OF APPOINTMENT OF 9 DECEMBER 1977 SIGNED BY THE DIRECTOR-GENERAL OF THE ADMINISTRATION IT WAS STATED THAT SHE WOULD RECEIVE IN ADDITION TO HER SALARY, A DAILY SUBSISTENCE ALLOWANCE OF BFR 560 FROM THE FIRST TO THE FIFTEENTH DAY REDUCED TO BFR 280 FROM THE SIXTEENTH DAY FOR A TOTAL PERIOD OF UP TO 180 DAYS ON THE TERMS AND WITHIN THE LIMITS SPECIFIED IN ARTICLE 10 OF ANNEX VII TO THE STAFF REGULATIONS .
5 IT IS AGREED THAT THAT ALLOWANCE WAS NOT PAID TO THE APPLICANT . BY LETTER DATED 21 FEBRUARY 1978 THE APPLICANT DREW THE ATTENTION OF THE HEAD OF THE MANAGEMENT AND STAFF REGULATIONS DEPARTMENT TO THAT OMISSION REMINDING HIM OF THE ASSURANCE WHICH HAD BEEN GIVEN IN THE LETTER OF APPOINTMENT . ON 1 MARCH 1978 THE HEAD OF THE MANAGEMENT AND STAFF REGULATIONS DEPARTMENT ACKNOWLEDGED RECEIPT OF THE LETTER AND INFORMED THE APPLICANT THAT IN VIEW OF THE DIFFICULTIES WHICH IT RAISED HER CASE HAD BEEN SUBMITTED FOR CONSIDERATION BY THE PREPARATORY COMMITTEE FOR MEETINGS OF HEADS OF ADMINISTRATIVE SERVICES . HE ADDED THAT IN THE MEANTIME THE CASE WOULD REMAIN OPEN AND THAT THE APPLICANT WOULD BE KEPT INFORMED OF DEVELOPMENTS IN RELATION TO HER APPLICATION .
6 BY LETTER DATED 11 OCTOBER 1978 THE HEAD OF THE MANAGEMENT AND STAFF REGULATIONS DEPARTMENT INFORMED THE APPLICANT THAT AT THEIR MEETING ON 15 SEPTEMBER 1978 THE HEADS OF ADMINISTRATIVE SERVICES HAD REACHED AN ADVERSE OPINION REGARDING HER CASE AND THAT AS A RESULT HE REGRETTED THAT HER REQUEST COULD NOT BE GRANTED . A COPY OF THE RESOLUTION ADOPTED AT THE MEETING OF THE HEADS OF ADMINISTRATIVE SERVICES WAS ENCLOSED WITH THAT LETTER .
7 AS A RESULT THE APPLICANT ADDRESSED HERSELF TO THE PRESIDENT OF THE STAFF COMMITTEE WHO REPEATEDLY APPROACHED THE DIRECTOR-GENERAL OF
ADMINISTRATION TO SETTLE THE CASE IN THE APPLICANT ' S FAVOUR . IT WAS IN ONE OF HIS LETTERS, DATED 6 NOVEMBER 1978, THAT THE PRESIDENT OF THE STAFF COMMITTEE FOR THE FIRST TIME REFERRED TO THE REIMBURSEMENT OF REMOVAL EXPENSES APART FROM THE QUESTION OF THE DAILY SUBSISTENCE ALLOWANCE .
8 BY LETTER DATED 27 NOVEMBER 1978 THE DIRECTOR-GENERAL OF ADMINISTRATION INFORMED THE PRESIDENT OF THE STAFF COMMITTEE THAT THE APPLICANT ' S FILE HAD SEVERAL TIMES BEEN CAREFULLY CONSIDERED BY HIS DEPARTMENT WHICH HAD TAKEN THE TROUBLE, BEFORE GIVING A FINAL ANSWER TO THE APPLICANT, TO SUBMIT HER CASE TO THE PREPARATORY COMMITTEE AND TO THE MEETING OF THE HEADS OF ADMINISTRATIVE SERVICES . HE ADDED THAT UNFORTUNATELY BOTH OF THOSE BODIES HAD ALSO REACHED AN ADVERSE OPINION, THAT THE APPLICANT HAD BEEN KEPT INFORMED AT THE VARIOUS STAGES OF THE PROCEEDINGS AND THAT FINALLY SHE HAD BEEN OFFICIALLY NOTIFIED OF THE REFUSAL WITH THE GROUNDS THEREFOR .
9 IN ANSWER TO A FRESH PROTEST FROM THE PRESIDENT OF THE STAFF COMMITTEE THE DIRECTOR-GENERAL OF ADMINISTRATION, BY LETTER DATED 11 DECEMBER 1978, CONFIRMED ONCE AGAIN THE ATTITUDE OF THE ADMINISTRATION AND RECALLED THAT WHERE THERE IS A DIFFERENCE OF OPINION EVERY OFFICIAL IS ENTITLED TO MAKE A COMPLAINT AND BRING AN ACTION AS PROVIDED FOR IN ARTICLES 90 AND 91 OF THE STAFF REGULATIONS .
10 ON 20 FEBRUARY 1979 THE APPLICANT SENT THE SECRETARY-GENERAL OF THE EUROPEAN PARLIAMENT A FORMAL COMPLAINT UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS ON THE GROUND THAT THE ADMINISTRATION WAS NOT GRANTING HER, FOLLOWING HER APPOINTMENT AS AN OFFICIAL, EITHER THE DAILY SUBSISTENCE ALLOWANCE OR REIMBURSEMENT OF HER REMOVAL EXPENSES .
11 WHEN THE ADMINISTRATION DID NOT ANSWER THAT COMPLAINT THE APPLICANT BROUGHT THE MATTER BEFORE THE COURT IN THE ABOVE-MENTIONED CIRCUMSTANCES .
12 IN ORDER TO CONSIDER WHETHER THE OBJECTION RAISED BY THE EUROPEAN PARLIAMENT IS WELL FOUNDED IT IS RIGHT TO CONSIDER THE ADMISSIBILITY OF THE ACTION WITH REGARD TO THE CLAIM RELATING TO THE DAILY SUBSISTENCE ALLOWANCE SEPARATELY FROM THAT RELATING TO REMOVAL EXPENSES .
CLAIM FOR THE DAILY SUBSISTENCE ALLOWANCE
13 ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS PROVIDES THAT ANY PERSON TO WHOM THOSE STAFF REGULATIONS APPLY MAY SUBMIT TO THE APPOINTING AUTHORITY A COMPLAINT AGAINST AN ACT ADVERSELY AFFECTING HIM . THE COMPLAINT MUST BE MADE TO THE APPOINTING AUTHORITY WITHIN THREE MONTHS WHICH RUNS FROM THE DATE OF NOTIFICATION OF THE DECISION TO THE PERSON CONCERNED, BUT IN NO CASE LATER THAN THE DATE ON WHICH THE LATTER RECEIVED SUCH NOTIFICATION .
14 THE PARTIES DISAGREE AS TO THE ACT ADVERSELY AFFECTING THE APPLICANT . THE APPLICANT TAKES THE VIEW THAT IT IS CONSTITUTED BY THE ANSWER SENT ON 27 NOVEMBER 1978 BY THE DIRECTOR-GENERAL OF ADMINISTRATION TO THE PRESIDENT OF THE STAFF COMMITTEE FOLLOWING THE INTERVENTION OF THE LATTER ON BEHALF OF THE APPLICANT . THE FORMAL COMPLAINT DATED 20 FEBRUARY 1979 WAS, ACCORDING TO THE APPLICANT, THEREFORE MADE IN TIME .
15 THE ADMINISTRATION OF THE EUROPEAN PARLIAMENT CONSIDERS THAT THE LETTER DATED 27 NOVEMBER 1978 HAS NO OTHER PURPORT THAN TO REFER TO AND EXPLAIN A PREVIOUS DECISION WHICH, ACCORDING TO THE CONTEXT, COULD ONLY BE THE LETTER SENT ON 11 OCTOBER 1978 TO THE APPLICANT HERSELF FOLLOWING THE RESOLUTION AT THE MEETING OF THE HEADS OF ADMINISTRATIVE SERVICES . IN RELATION TO THAT DECISION THE FORMAL COMPLAINT OF 20 FEBRUARY 1979 WAS MADE THEREFORE AFTER THE EXPIRY OF THE PERIOD LAID DOWN BY ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS .
16 THE COURT CONSIDERS THAT THE COMPLAINT BY THE APPLICANT WAS INDEED MADE OUT OF TIME .
17 IT IS APPARENT FROM THE LETTER SENT ON 21 FEBRUARY 1978 BY THE APPLICANT HERSELF TO THE HEAD OF THE MANAGEMENT AND STAFF REGULATIONS DEPARTMENT THAT SHE HAD CERTAINLY NOTICED FROM THE BEGINNING OF THE PAYMENT OF HER MONTHLY SALARY THAT, CONTRARY TO THE ASSURANCE GIVEN IN THE LETTER OFFERING HER EMPLOYMENT, THE DAILY SUBSISTENCE ALLOWANCE HAD NOT BEEN GRANTED TO HER . IN ANSWER TO HER REQUEST FOR EXPLANATION THE APPLICANT WAS INFORMED IMMEDIATELY ON 1 MARCH 1978 THAT HER FILE WAS BEING EXAMINED BY THE ADMINISTRATION AND THAT HER CASE WOULD IN THE MEANTIME REMAIN OPEN .
18 BY LETTER DATED 11 OCTOBER 1978 THE HEAD OF THE MANAGEMENT AND STAFF REGULATIONS DEPARTMENT FINALLY INFORMED THE APPLICANT THAT IT WAS IMPOSSIBLE FOR THE ADMINISTRATION TO GIVE A FAVOURABLE REPLY TO HER REQUEST FOR THE DAILY SUBSISTENCE ALLOWANCE . THE EXTRACT FROM THE DELIBERATIONS OF THE HEADS OF ADMINISTRATIVE SERVICES ENCLOSED WITH THAT LETTER ALLOWED THE APPLICANT TO RECOGNIZE THAT THE REFUSAL BY THE ADMINISTRATION WAS BASED ON TWO CIRCUMSTANCES : ON THE ONE HAND THE FACT THAT SHE HAD ALREADY RECEIVED THE DAILY SUBSISTENCE ALLOWANCE FOR ONE YEAR AS A MEMBER OF THE AUXILIARY STAFF DURING THE PERIOD PRIOR TO HER APPOINTMENT AS AN OFFICIAL ; ON THE OTHER THE FACT THAT THERE WAS NO REMOVAL WHEN SHE WAS APPOINTED SO THAT SHE DID NOT SATISFY THE CONDITION OF A CHANGE OF RESIDENCE LAID DOWN IN ARTICLE 10 OF ANNEX VII TO THE STAFF REGULATIONS .
19 IN THOSE CIRCUMSTANCES IT IS BEYOND QUESTION THAT THE LETTER DATED 11 OCTOBER 1978 CONSTITUTES, IN THE PRESENT CASE, THE ' ' ACT ADVERSELY AFFECTING ' '
THE OFFICIAL WITHIN THE MEANING OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS . IT IS THEREFORE THAT ACT WHICH CAUSED TO START TO RUN THE PERIOD OF THREE MONTHS FOR LODGING COMPLAINTS CONTAINED IN THE SAID PROVISIONS SINCE THE APPLICANT, BY THE SAID ACT, WAS INFORMED OF A DECISION PUT FORWARD AS FINAL .
20 FOR ITS PART THE LETTER DATED 27 NOVEMBER 1978 AND SIGNED BY THE DIRECTOR-GENERAL OF ADMINISTRATION CAN BY NO MEANS BE REGARDED AS BEING OF SUCH A NATURE . ON THE ONE HAND THAT LETTER IS NOT ADDRESSED TO THE APPLICANT BUT TO A THIRD PARTY WHO WAS TAKING STEPS ON HER BEHALF . FURTHER THAT LETTER, LIKE THAT OF 11 DECEMBER 1978, HAD NO PURPOSE OTHER THAN TO EXPLAIN A PREVIOUS DECISION WHICH, IT IS SAID, HAD BEEN OFFICIALLY NOTIFIED TO THE APPLICANT HERSELF . IT MUST BE STRESSED THAT IN THE LETTER DATED 11 DECEMBER 1978, WRITTEN WHEN THE PERIOD FOR COMPLAINT AGAINST THE DECISION DATED 11 OCTOBER 1978 HAD NOT YET EXPIRED, THE ADMINISTRATION HAD EVEN TAKEN THE TROUBLE EXPRESSLY TO DRAW THE ATTENTION OF THE PRESIDENT OF THE STAFF COMMITTEE TO THE POSSIBILITIES OF COMPLAINT AND ACTION WHICH THE APPLICANT HAD UNDER ARTICLES 90 AND 91 OF THE STAFF REGULATIONS .
21 IT FOLLOWS FROM THE FOREGOING THAT THE FIRST CLAIM IN THE APPLICATION MUST BE DECLARED INADMISSIBLE SINCE NO COMPLAINT WAS MADE TO THE APPOINTING AUTHORITY WITHIN THE PERIOD PROVIDED FOR IN ARTICLE 90 ( 2 ).
CLAIM REGARDING REMOVAL EXPENSES
22 IN HER COMPLAINT MADE ON 20 FEBRUARY 1979 THE APPLICANT ALSO ALLEGES THAT THE ADMINISTRATION DENIED HER THE RIGHT TO REIMBURSEMENT OF REMOVAL EXPENSES .
23 IT MUST BE RECALLED IN THIS RESPECT THAT ACCORDING TO ARTICLE 9 OF ANNEX VII TO THE STAFF REGULATIONS THE ALLOWANCE ON REMOVAL TAKES THE FORM OF REIMBURSEMENT OF EXPENSES ACTUALLY INCURRED AND THAT SUCH REIMBURSEMENT CAN BE MADE ONLY SUBJECT TO THE LIMIT OF AN ESTIMATE PREVIOUSLY APPROVED BY THE ADMINISTRATION . IT IS ESTABLISHED THAT NONE OF THE CONDITIONS LAID DOWN BY THAT PROVISION HAS BEEN SATISFIED BY THE APPLICANT AND THAT THE ADMINISTRATION HAS RECEIVED NO REQUEST REGARDING THIS MATTER IN ACCORDANCE WITH THE STAFF REGULATIONS .
24
IT ACCORDINGLY APPEARS THAT IN THIS RESPECT THE ACTION HAS NO PURPOSE .
25
IT FOLLOWS FROM THE FOREGOING THAT THE ACTION IS INADMISSIBLE AS A WHOLE .
Decision on costs
26 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
27 NEVERTHELESS UNDER ARTICLE 70 OF THE RULES OF PROCEDURE IN STAFF CASES THE INSTITUTIONS SHALL BEAR THEIR OWN COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION AS INADMISSIBLE ;
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .