Opinion of Mr Advocate General Darmon delivered on 31 May 1988. - Michele Canters v Commission of the European Communities. - Official - Foreign residence allowance. - Case 159/86.



European Court reports 1988 Page 04859



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . Can the administration limit the payment of a foreign residence allowance to take effect only from the date on which an official applies for it, even though the person concerned fulfilled the requisite conditions when the provisions creating the allowance entered into force? That in essence is the question which the Court must resolve in order to adjudicate on the application lodged by Michele Canters, an official of German nationality employed at the Ispra Centre in Italy . On 12 March 1985 Mr Canters applied for the foreign residence allowance which had been introduced with effect from 4 May 1978 . The administration granted him the allowance as from March 1985 but refused it for the previous period commencing in 1978 .

2 . Let us first consider the objection of inadmissibility raised by the defendant on the ground that the salary statements from May 1978 to February 1985, in which the foreign residence allowance was not included, are to be regarded as acts adversely affecting the applicant and that the prescribed period for bringing an action with respect to them has expired .

3 . Although the Court has held in certain circumstances that salary statements may constitute adverse measures,(1 ) they must clearly express a decision of the administration . ( 2 ) In the present case silence cannot be interpreted as constituting such a decision .

4 . Indeed, the Commission itself contends in its defence that it was unable to appreciate the applicant' s situation because he did not come forward . Accordingly, it is inconceivable that the salary statements could have embodied a decision - even an implicit decision - of the Commission concerning a situation of which, by its own admission, it was unaware .

5 . Furthermore, the Commission' s argument that its decision of 1 April 1986 rejecting the applicant' s complaint confirmed the previous decisions embodied in the salary statements likewise does not stand up to examination . The legal character of salary statements cannot depend upon the classification which the Commission deigns to assign to them subsequently .

6 . Therefore, whilst at the same time observing that the argument based on the principle nemo auditur relates in fact to the substance of the case, I propose that the Court reject the objection of inadmissibility raised by the Commission .

7 . With respect to the substance, it must be made clear at the outset that all the considerations put forward by the Commission concerning the particular situation of the applicant in Italy are irrelevant to the question whether he is entitled to the allowance at issue . The grant of that allowance is conditional merely upon the applicant' s possessing a nationality other than that of the State in which he is employed . That is an objective, ( 3 ) necessary and sufficient condition which Mr Canters fulfills .

8 . It also seems to me that the Commission, which appears to contend that the ratio legis of the allowance does not extend to situations like that of the applicant, has not responded to all the consequences of that analysis in so far as it does not challenge his entitlement after the date of his application .

9 . So on what legal basis can the Commission rely in support of its decision? When questioned on this subject at the hearing, it was unable to say which written rule or principle it purported to apply . I would point out, for my part, that the allowance in question constitutes an integral part of the remuneration which an official cannot waive pursuant to Article 62 of the Staff Regulations . Moreover, in the absence of any prescription period or any express provision indicating that the allowance is granted only from the date of an official' s application for it, an official is entitled to it provided that he fulfils the conditions laid down in the rules .

10 . The Commission refers to the judgment of the Court in Broe ( 4 ) in which it was stated that the situation of the administration, which has to concern itself with the circumstances of several thousand employees, cannot be compared to that of an official who has a personal interest in checking his monthly salary .

11 . However, that decision seems to me to have no relevance whatever to the present case . It concerned an action brought against an official for the recovery of sums unduly paid . But a solution adopted in a case where an official receives something to which he is not entitled cannot be pertinently transposed to a case in which he does not receive something to which he is entitled . One case relates to an official who retains an improper payment and establishes that he did so in good faith . The other case is concerned with securing the application of the rules with respect to the salary to which he is entitled by virtue of his appointment, pursuant to Article 62 of the Staff Regulations .

12 . Finally, still dwelling on the applicant' s failure to act, the Commission seems to me to overlook two important factors . On the one hand, the primary responsibility for administrative and financial management of staff matters attaches to the administration . On the other, comparison of nationality and place of employment is an elementary operation and the applicant quite rightly referred to the many facilities available to the administration to determine its staff' s personal circumstances in that respect .

13 . Furthermore, the Commission' s attempt to play down its own omission by invoking the period which the applicant allowed to elapse before making his claim cannot justify limitation of the payment of the foreign residence allowance . It is not permissible to rely on an appraisal inspired by expediency, based on the particular features of a case, in order to override rules which are distinguished by their lack of ambiguity and contain no provision requiring an official to make an application before becoming entitled to the allowance in question . In those circumstances, the right to the allowance arises on the day on which the person concerned fulfils the conditions laid down in the rules, which in this case is the day on which the foreign residence allowance came into operation .

14 . The Court cannot in this case adopt a course different from that which it followed in Houyoux and Geury, ( 5 ) in which it annulled a Commission decision refusing an accommodation allowance for a period preceding an official' s request for it to be paid even though, by contrast with the foreign residence allowance, the applicable rules expressly provided for verification by the appointing authority before the allowance was awarded .

15 . I therefore propose that the Court should :

Annul the Commission' s decision of 1 April 1985 withholding Mr Canter' s foreign residence allowance for the period from 4 May 1978 to March 1985;

Order the Commission to pay the costs .

(*) Translated from the French .

( 1 ) Judgment of 21 February 1974 in Case 15/73 Schots née Kortner and Others v Council and Commission (( 1974 )) ECR 177; judgment of 15 June 1976 in Case 1/76 Wack v Commission (( 1976 )) ECR 1017 .

( 2 ) Judgment of 2 July 1981 in Case 185/80 Garganese v Commission (( 1981 )) ECR 1785 .

( 3 ) Judgment of 16 October 1980 in Case 147/79 Hochstrass v Court of Justice (( 1980 )) ECR 3005, paragraph 13 .

( 4 ) Judgment of 11 July 1979 in Case 252/78 Broe v Commission (( 1979 )) ECR 2393 .

( 5 ) Judgment of 27 October 1987 in Joined Cases 176 and 177/86 (( 1987 )) ECR 4333 .