1.

The application for the allowance of removal expenses is based on Article 9 of Annex VII to the Staff Regulations, which provides that the expenses incurred in respect of removal of furniture and personal effects shall be reimbursed to an official who is obliged to change his place of residence in order to comply with Article 20 of the Staff Regulations and who had not been reimbursed in respect of the same expenses from another source. It is not disputed that the applicants have incurred and paid expenses amounting to 24600 BF in the removal of the family possessions. A dispute arises only as to whether an amount of 14650 BF should be deducted from this sum, as the Commission seeks. The reason adduced for such a deduction is that part of the daily subsistence allowance paid to Mr Louwage after 1 April 1969 (viz. the amount mentioned) has to be regarded as notional removal expenses within the meaning of Article 10 (3) of Annex VII to the Staff Regulations and paragraph 4 of the internal directive issued by the Commission on 17 March 1971 relating to removal expenses and daily subsistence allowance. Moreover the Commission considered itself justified in making a deduction because the removal related to common family possessions. From this it deduced that the removal expenses had been borne by the conjugal community and therefore the claim to an allowance also belonged to this community. Therefore to avoid unjust enrichment the conjugal community must allow the notional removal expenses which it received to be taken into account. If the applicants are now of the opinion that the aforementioned note of the member of the Commission to Mr Louwage of 31 July 1973 implies that the Commission will not take into account these removal expenses, they are mistaken. All that is said in the note is that the amounts wrongfully received by Mr Louwage after 1 April 1969 will not be required to be refunded because the conditions of Article 85 of the Staff Regulations are not satisfied. According to the clear wording of the note this is only the amount which remains if the so-called national removal costs amounting to 14650 BF are deducted from the total amount of the daily subsistence allowance amounting to 36000 BF which had been paid. However the notional removal expenses are not described in the said note as having been paid wrongfully and consequently the remark made about the non-application of Article 85 of the Staff Regulations cannot apply to them. Going beyond that it seems to me questionable whether it could be said that the amount of 14650 BF could not be classed in the category of notional removal expenses, because a removal at that time was not possible for Mr Louwage. In this respect the first applicant relies on Article 10 (4) of Annex VII to the Staff Regulations according to which the application of the rule relating to notional removal expenses is excluded if in the opinion of the appointing authority the official was unable to remove. The applicant further relies on para. 8 of the aforesaid directive of the Commission. It may justifiably be queried, however, whether the conditions of these provisions (making of an application with supporting documents and express approval by the appointing authority) were fulfilled. In this connection there is only a letter of the first applicant of 6 May 1969 (it ought obviously to be 6 June 1969), in which conversation on 5 June 1969 is referred to and it is stated that he could not contemplate a removal during the course of 1969. This certainly thorny question may be left open, for the daily subsistence allowance paid to Mr Louwage cannot be regarded even partly as notional removal expenses. Mr Louwage was appointed a probationer on 1 October 1968 and established with effect from 1 April 1969. He received authorization to move in a note dated 14 May 1969 and delivered 28 May 1969. As regards the payment of daily subsistence allowance, Article 10 (3) of Annex VII of the Staff Regulations which were in force at the time governed such a case. It is there stated: ‘Where an official does not remove to the place where he is employed, although he is authorized to do so, his entitlement to daily subsistence allowance shall not exceed the total amount to which he would have been entitled if he had removed. The appointing authority shall in such case determine the maximum amount to which the official is entitled, applying Article 9 for the purpose of removal expenses.’ From this it could perhaps be taken that if a removal does not take place within a certain period after it has been authorized it has the consequence that the payment of daily subsistence allowance from a corresponding date can be regarded as the reimbursement of notional removal expenses. That would in the present case therefore, if perhaps a two month period were regarded as appropriate, be from 29 July 1969, but on the other hand in no event from 1 April 1969. In truth however even this interpretation appears scarcely defensible, for it must not be overlooked that it was expressly stated to Mr Louwage in the authorization for the removal that daily subsistence allowance would be paid to him in accordance with Article 10 of Annex VII up to the date of the actual removal and ‘en principe pour une période ne pouvant excéder quatre mois a compter de la date de la notification de l'autorisation de déménagement’. In the absence of reference to Article 10 (3) of Annex VII, which at the time was not defined in any implementing directive, this can only be understood as meaning that Mr Louwage would have in any case a period of four months for the removal and that in consequence the daily subsistence allowance paid during this period could only be considered as such and not as the reimbursement of notional removal expenses. If, as the Commission seeks to do, its internal directive of 17 March 1971 is applied to the case of Mr Louwage and this is done having regard to the fact that the directive was to take effect as from 5 March 1968, i.e. retrospectively, then the case is governed by paragraph 4 thereof in which it is provided that an official who has not effected his removal in the year after his establishment in spite of receiving authorization to do so shall be entitled to daily subsistence allowance for a period of 6 months and thereafter from the seventh month to the extent of the amount of the notional removal expenses. As regards the present case, it thus depends upon the establishment, as it is described in Article 34 of the Staff Regulations. Daily subsistence is due for a period of six months from this time on. Only from the seventh month does the provision apply that daily subsistence allowance shall be regarded as notional removal expenses and limited to a corresponding amount. Since Mr Louwage was established with effect from 1 April 1969 then according to the directive of the Commission in no case can the daily subsistence allowance be classfied as notional removal expenses as early as 1 April 1969. This could happen at the earliest from 1 October 1969, i.e. at a time when Mr Louwage obviously was no longer receiving daily subsistence allowance. Since Mr Louwage did not receive notional removal expenses, it can be left open whether such costs, which have been reimbursed to one of the spouse, must be taken into account on the subsequent removal of the family possessions by reason of the transfer of the other spouse if they relate to a community of goods. The claim for reimbursement of removal expenses amounting to 24600 BF is thus valid.