Judgment of the Court (Second Chamber) of 5 February 1987. - P. Mouzourakis v European Parliament. - Officials - Complaint - Additional seniority in grade - Daily subsistence allowance. - Case 280/85.



European Court reports 1987 Page 00589



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

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1 . OFFICIALS - RECRUITMENT - CLASSIFICATION IN STEP - ADDITIONAL SENIORITY IN STEP - CRITERIA FOR GRANTING THEREOF - PREVIOUS EXPERIENCE - DISCRETION OF THE ADMINISTRATION

( STAFF REGULATIONS, ART . 32, SECOND PARAGRAPH )

2 . OFFICIALS - RECRUITMENT - CLASSIFICATION IN STEP - INTERNAL GUIDELINES OF AN INSTITUTION RELATING TO THE APPLICABLE CRITERIA - LEGAL EFFECTS

3 . OFFICIALS - REMUNERATION - DAILY SUBSISTENCE ALLOWANCE - PURPOSE

( STAFF REGULATIONS, ART . 20, AND ANNEX VII, ART . 10 )

Summary

1 . THE APPOINTING AUTHORITY HAS A DISCRETIONARY POWER IN CONNECTION WITH THE SECOND PARAGRAPH OF ARTICLE 32 OF THE STAFF REGULATIONS COVERING ALL ASPECTS OF POTENTIAL IMPORTANCE FOR THE RECOGNITION OF PREVIOUS EXPERIENCE, BOTH AS REGARDS THE NATURE AND DURATION OF SUCH EXPERIENCE AND AS REGARDS THE EXTENT TO WHICH IT MATCHES THE REQUIREMENTS OF THE POST TO BE FILLED .

2 . BY ADOPTING INTERNAL GUIDELINES RELATING TO THE CRITERIA APPLICABLE TO CLASSIFICATION ON RECRUITMENT THE ADMINISTRATION MAY IMPOSE ON ITSELF INDICATIVE RULES OF CONDUCT FROM WHICH IT MAY NOT DEPART WITHOUT OBJECTIVE JUSTIFICATION BUT WHICH MAY NOT DEPART FROM THE STAFF REGULATIONS .

3 . ARTICLE 20 OF THE STAFF REGULATIONS PROVIDES THAT OFFICIALS MUST RESIDE EITHER IN THE PLACE WHERE THEY ARE EMPLOYED OR AT NO GREATER DISTANCE THEREFROM THAN IS COMPATIBLE WITH THE PROPER PERFORMANCE OF THEIR DUTIES . ARTICLE 10 OF ANNEX VII TO THE STAFF REGULATIONS PROVIDES THAT WHERE AN OFFICIAL FURNISHES EVIDENCE THAT HE MUST CHANGE HIS PLACE OF RESIDENCE IN ORDER TO SATISFY THAT REQUIREMENT HE IS TO BE ENTITLED TO A DAILY SUBSISTENCE ALLOWANCE UNTIL THE DATE ON WHICH HE EFFECTS HIS REMOVAL . THAT ALLOWANCE, WHOSE DURATION MAY NOT EXCEED SPECIFIC LIMITS, IS INTENDED TO COMPENSATE THE OFFICIAL FOR THE EXPENSE AND INCONVENIENCE OCCASIONED BY THE NEED TO CHANGE RESIDENCE OR TO ESTABLISH PROVISIONAL RESIDENCE AT HIS PLACE OF EMPLOYMENT WHILE MAINTAINING, ALSO ON A PROVISIONAL BASIS, HIS RESIDENCE AT THE PLACE WHERE HE WAS RECRUITED OR PREVIOUSLY EMPLOYED .

Parties

IN CASE 280/85,

MR P . MOUZOURAKIS, AN OFFICIAL AT THE EUROPEAN PARLIAMENT, ASSISTED AND REPRESENTED BY V . BIEL OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER' S CHAMBERS, 18A RUE DES GLACIS,

APPLICANT,

V

EUROPEAN PARLIAMENT, REPRESENTED BY F . PASETTI BOMBARDELLA, JURISCONSULT, AND M . PETER, HEAD OF DIVISION, ACTING AS AGENTS, ASSISTED BY A . BONN OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER' S CHAMBERS, 22 COTE D' EICH,

DEFENDANT,

APPLICATION FOR THE ANNULMENT OF THE DECISION REJECTING A COMPLAINT BY WHICH THE APPLICANT SOUGHT ADDITIONAL SENIORITY IN HIS GRADE AND OF THE DECISION REFUSING TO GRANT THE APPLICANT A DAILY SUBSISTENCE ALLOWANCE,

THE COURT ( SECOND CHAMBER )

COMPOSED OF : T.F . O' HIGGINS ( PRESIDENT OF CHAMBER ), O . DUE AND K . BAHLMANN, JUDGES,

ADVOCATE GENERAL : J.L . DA CRUZ VILACA

REGISTRAR : S . HACKSPIEL, ADMINISTRATOR,

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 21 OCTOBER 1986,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 9 DECEMBER 1986, GIVES THE FOLLOWING

JUDGMENT

Grounds

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 16 SEPTEMBER 1985, PANAYOTIS MOUZOURAKIS, AN INTERPRETER IN GRADE L/A 7, STEP 1, AT THE EUROPEAN PARLIAMENT, BROUGHT AN ACTION SEEKING, ESSENTIALLY, ADDITIONAL SENIORITY IN HIS GRADE REFLECTING HIS EXPERIENCE PRIOR TO HIS RECRUITMENT AND THE PAYMENT OF A DAILY SUBSISTENCE ALLOWANCE UPON HIS BEING POSTED TO BRUSSELS .

2 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR THE FACTS OF THE CASE AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

THE CLAIM FOR ADDITIONAL SENIORITY

3 THE FIRST PARAGRAPH OF ARTICLE 32 OF THE STAFF REGULATIONS PROVIDES THAT AN OFFICIAL IS TO BE RECRUITED AT THE FIRST STEP IN HIS GRADE . THE SECOND PARAGRAPH OF ARTICLE 32 PROVIDES, HOWEVER, THAT THE APPOINTING AUTHORITY MAY, "TAKING ACCOUNT OF THE TRAINING AND SPECIAL EXPERIENCE FOR THE POST OF THE PERSON CONCERNED", ALLOW ADDITIONAL SENIORITY IN HIS GRADE . IN ITS CAPACITY AS APPOINTING AUTHORITY THE EUROPEAN PARLIAMENT HAS ADOPTED "INTERNAL GUIDELINES RELATING TO THE CRITERIA APPLICABLE TO CLASSIFICATION ON RECRUITMENT" WHICH PROVIDE THAT SUCH ADDITIONAL SENIORITY MUST BE JUSTIFIED BY SPECIAL EXPERIENCE "RELEVANT TO THE DUTIES ATTACHING TO THE POST TO BE FILLED" AND STIPULATE THAT FOR ADDITIONAL SENIORITY IN GRADES A 7 AND L/A 7 AT LEAST TWO YEARS' EXPERIENCE IS NEEDED .

4 THE APPLICANT ADMITS THAT AT THE TIME WHEN HE WAS RECRUITED HE DID NOT HAVE TWO YEARS' EXPERIENCE AS AN INTERPRETER . HOWEVER, HE ARGUES THAT ACCOUNT SHOULD ALSO BE TAKEN OF HIS TRAINING AND EXPERIENCE AS A PHYSICIST SINCE HIS KNOWLEDGE OF PHYSICS HAS BEEN OF GREAT HELP TO HIM WHEN INTERPRETING AT SCIENTIFIC AND TECHNICAL MEETINGS . FOR ITS PART, THE EUROPEAN PARLIAMENT CONTENDS THAT ONLY EXPERIENCE IN THE FIELD OF INTERPRETING CAN BE REGARDED AS SPECIALLY RELEVANT TO THE DUTIES ATTACHING TO THE APPLICANT' S POST .

5 THE COURT HAS CONSISTENTLY HELD ( SEE IN PARTICULAR THE JUDGMENT OF 1 DECEMBER 1983 IN CASE 190/82 BLOMEFIELD V COMMISSION (( 1983 )) ECR 3981, AND THE JUDGMENT OF 12 JULY 1984 IN CASE 17/83 ANGELIDIS V COMMISSION (( 1984 )) ECR 2907 ) THAT THE APPOINTING AUTHORITY MUST BE ALLOWED A DISCRETIONARY POWER COVERING ALL ASPECTS OF POTENTIAL IMPORTANCE FOR THE RECOGNITION OF PREVIOUS EXPERIENCE, BOTH AS REGARDS THE NATURE AND DURATION OF SUCH EXPERIENCE AND AS REGARDS THE EXTENT TO WHICH IT MATCHES THE REQUIREMENTS OF THE POST TO BE FILLED .

6 THE COURT HAS ALSO HELD ( SEE IN PARTICULAR THE JUDGMENT OF 30 JANUARY 1974 IN CASE 148/73 LOUWAGE V COMMISSION (( 1974 )) ECR 81, AND THE JUDGMENT IN BLOMEFIELD, CITED ABOVE ), THAT BY ADOPTING INTERNAL GUIDELINES THE ADMINISTRATION MAY IMPOSE ON ITSELF RULES OF CONDUCT INDICATING THE PRACTICE TO BE FOLLOWED FROM WHICH IT MAY NOT DEPART WITHOUT OBJECTIVE JUSTIFICATION BUT WHICH MAY NOT DEPART FROM THE STAFF REGULATIONS . AS FAR AS THAT POINT IS CONCERNED, IT SHOULD BE OBSERVED THAT THE PARLIAMENT' S GUIDELINES IN SO FAR AS THEY APPLY IN THIS CASE, IN NO WAY DEPART FROM THE PROVISIONS OF ARTICLE 32 OF THE STAFF REGULATIONS .

7 ADMITTEDLY, SCIENTIFIC EXPERIENCE, LIKE EXPERIENCE IN MANY OTHER FIELDS, MAY BE USEFUL FOR INTERPRETING AT SPECIALIZED MEETINGS . HOWEVER, IN THIS CASE, INVOLVING AN INTERPRETER' S POST IN A GENERAL DEPARTMENT, THE EUROPEAN PARLIAMENT DID NOT EXCEED THE LIMITS OF ITS DISCRETIONARY POWER IN TAKING THE VIEW THAT ONLY INTERPRETING EXPERIENCE COULD BE REGARDED AS "SPECIALLY RELEVANT TO THE DUTIES ATTACHING TO THE POST TO BE FILLED", AS IS LAID DOWN IN THE AFOREMENTIONED INTERNAL GUIDELINES .

8 IT FOLLOWS THAT THE APPLICANT' S CLAIM FOR ADDITIONAL SENIORITY TO BE GRANTED ON THE BASIS OF HIS EXPERIENCE IS UNFOUNDED .

THE CLAIM FOR A DAILY SUBSISTENCE ALLOWANCE

9 ARTICLE 20 OF THE STAFF REGULATIONS PROVIDES THAT OFFICIALS MUST RESIDE EITHER IN THE PLACE WHERE THEY ARE EMPLOYED OR AT NO GREATER DISTANCE THEREFROM THAN IS COMPATIBLE WITH THE PROPER PERFORMANCE OF THEIR DUTIES . ARTICLE 10 OF ANNEX VII TO THE STAFF REGULATIONS PROVIDES THAT WHERE AN OFFICIAL FURNISHES EVIDENCE THAT HE MUST CHANGE HIS PLACE OF RESIDENCE IN ORDER TO SATISFY THE REQUIREMENTS OF ARTICLE 20, HE IS TO BE ENTITLED TO A DAILY SUBSISTENCE ALLOWANCE UNTIL THE DATE ON WHICH HE EFFECTS HIS REMOVAL . THAT ALLOWANCE, WHOSE DURATION MAY NOT EXCEED SPECIFIC LIMITS, IS INTENDED TO COMPENSATE THE OFFICIAL FOR THE EXPENSE AND INCONVENIENCE OCCASIONED BY THE NEED TO CHANGE RESIDENCE OR TO ESTABLISH PROVISIONAL RESIDENCE AT HIS PLACE OF EMPLOYMENT WHILE MAINTAINING, ALSO ON A PROVISIONAL BASIS, HIS RESIDENCE AT THE PLACE WHERE HE WAS RECRUITED OR PREVIOUSLY EMPLOYED .

10 ACCORDING TO THE DOCUMENTS BEFORE THE COURT, AFTER PASSING A COMPETITION THE APPLICANT ACCEPTED THE PARLIAMENT' S OFFER OF A POST AS A PROBATIONARY INTERPRETER EMPLOYED AT LUXEMBOURG STARTING ON 1 OCTOBER 1983 . HOWEVER, IN HIS LETTER OF ACCEPTANCE HE EXPRESSED A PREFERENCE FOR A POSTING TO BRUSSELS WHERE HE LIVED WITH HIS WIFE, WHO WORKS AS AN OFFICIAL AT THE COUNCIL . HE WAS INITIALLY POSTED TO LUXEMBOURG WHERE HE WORKED FIRST AS A PROBATIONARY OFFICIAL AND LATER AS AN ESTABLISHED INTERPRETER, UNTIL 1 OCTOBER 1984, WHEN HE OBTAINED A TRANSFER TO BRUSSELS . DURING THE PERIODS IN WHICH HE WAS WORKING AT LUXEMBOURG HE MOVED INTO A FRIEND' S HOUSE THUS MAINTAINING HIS MATRIMONIAL HOME IN BRUSSELS . SINCE HE NEVER REMOVED FROM BRUSSELS TO LUXEMBOURG, HE RECEIVED A DAILY ALLOWANCE FOR THE MAXIMUM PERIOD PROVIDED FOR IN THE STAFF REGULATIONS, NAMELY 10 MONTHS .

11 IN VIEW OF THOSE CIRCUMSTANCES, THE APPLICANT' S CLAIM TO BE PAID A DAILY SUBSISTENCE ALLOWANCE FOR A SECOND TIME IS WITHOUT ANY JUSTIFICATION . SINCE HE MAINTAINED HIS RESIDENCE AT BRUSSELS, HE DID NOT HAVE TO CHANGE HIS RESIDENCE AS A RESULT OF HIS TRANSFER TO THAT PLACE OF EMPLOYMENT; INDEED, IT IS PHYSICALLY IMPOSSIBLE FOR HIM TO REMOVE TO THAT CITY . THE VERY WORDING OF ARTICLE 20 OF THE STAFF REGULATIONS SHOULD THEREFORE HAVE BEEN SUFFICIENT TO TELL HIM THAT HIS SITUATION WAS COMPLETELY OUTSIDE THE SCOPE OF THAT PROVISION .

12 MOREOVER, HIS CLAIM IS ALSO UNJUSTIFIED HAVING REGARD TO THE AIM OF THE DAILY SUBSISTENCE ALLOWANCE . THE APPLICANT HAS NOT BEEN ABLE TO INDICATE TO WHAT EXPENSE OR INCONVENIENCE HE WAS PUT BY REASON OF HIS TRANSFER TO BRUSSELS, WHICH HE HIMSELF SOUGHT IN ORDER TO MAINTAIN HIS HOME IN THAT CITY .

13 THE APPLICANT' S CLAIM FOR THE PAYMENT OF A DAILY SUBSISTENCE ALLOWANCE IS THEREFORE MANIFESTLY UNFOUNDED .

14 SINCE BOTH CLAIMS MUST BE DISMISSED AS UNFOUNDED, IT IS UNNECESSARY FOR THE COURT TO CONSIDER THE QUESTIONS OF ADMISSIBILITY RAISED BY THE PARLIAMENT .

Decision on costs

COSTS

15 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY MUST BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, THE INSTITUTIONS MUST BEAR THEIR OWN COSTS IN PROCEEDINGS COMMENCED BY EMPLOYEES OF THE COMMUNITIES . SINCE THE EUROPEAN PARLIAMENT EXPRESSLY ASKED THAT ARTICLE 70 SHOULD BE APPLIED, THERE IS NO NEED TO CONSIDER WHETHER, PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 69 ( 3 ), THE COURT SHOULD NEVERTHELESS ORDER THE APPLICANT TO PAY PART OF THE COSTS INCURRED BY THE PARLIAMENT .

Operative part

On those grounds,

THE COURT ( Second Chamber )

hereby :

( 1 ) Dismisses the application;

( 2 ) Orders the parties to pay their own costs .