Judgment of the Court (Third Chamber) of 25 November 1982. - Victor Evens v Court of Auditors of the European Communities. - Official - Resettlement allowance. - Case 79/82.



European Court reports 1982 Page 04033



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - STAFF REGULATIONS - INTERPRETATION - METHODS - REFERENCE TO REPEALED RULES - UNACCEPTABLE METHOD OF INTERPRETATION

2 . OFFICIALS - REMUNERATION - RESETTLEMENT ALLOWANCE - CONDITIONS FOR GRANTS - OFFICIAL REJOINING HIS FAMILY - ALLOWANCE AT THE RATE OF TWO MONTHS ' BASIC SALARY NOT PAID TO THE OFFICIAL - LAWFULNESS

( STAFF REGULATIONS , ANNEX VII , ART . 6 )

Summary

1 . THE PROVISIONS OF THE STAFF REGULATIONS AT PRESENT IN FORCE MUST BE INTERPRETED WITH REGARD TO THEIR CONTEXT AND PURPOSE AND NOT IN THE LIGHT OF RULES WHICH HAVE BEEN REPEALED .

2 . ALTHOUGH ARTICLE 6 ( 1 ) OF ANNEX VII TO THE STAFF REGULATIONS GIVES THE RIGHT TO A RESETTLEMENT ALLOWANCE EQUAL TO TWO MONTHS ' BASIC SALARY TO AN OFFICIAL ENTITLED TO THE HOUSEHOLD ALLOWANCE AND DOES NOT MENTION ANY REQUIREMENT THAT THE OFFICIAL ' S FAMILY MUST RESETTLE , THE AMOUNT OF THE RESETTLEMENT EXPENSES WILL NEVERTHELESS GENERALLY BE HIGHER WHERE THERE IS A CHANGE IN THE PLACE OF RESIDENCE OF THE OFFICIAL AND HIS FAMILY THAN WHERE HE REJOINS HIS FAMILY .

IT IS THEREFORE CONSISTENT WITH THE PURPOSE OF ARTICLE 6 NOT TO GRANT THE RESETTLEMENT ALLOWANCE AT THE RATE OF TWO MONTHS ' BASIC SALARY TO AN OFFICIAL WHO HAS RECEIVED THE HOUSEHOLD ALLOWANCE AND WHO DOES NOT RESETTLE TOGETHER WITH HIS FAMILY .

IN CASE 79/82

Parties

VICTOR EVENS , A FORMER OFFICIAL OF THE COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES , RESIDING IN LIEGE , REPRESENTED BY MICHEL MERSCH AND PHILIPPE FRAIPONT , OF THE LIEGE BAR , AND VICTOR BIEL OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS , 18A RUE DES GLACIS ,

APPLICANT ,

V

COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS SECRETARY , JEAN-AIME STOLL , ACTING AS AGENT , ASSISTED BY ALEX BONN , OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS , 22 COTE D ' EICH ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE PAYMENT OF A RESETTLEMENT ALLOWANCE ,

Grounds

1 BY APPLICATION AT THE COURT REGISTRY ON 25 FEBRUARY 1982 VICTOR EVENS , A FORMER OFFICIAL OF THE COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES , BROUGHT AN ACTION FOR THE GRANT OF A RESETTLEMENT ALLOWANCE , FOLLOWING HIS RETIREMENT EQUAL TO TWO MONTHS OF HIS BASIC SALARY .

2 THE APPLICANT , WHO IS MARRIED AND THE FATHER OF TWO CHILDREN , BECAME AN OFFICIAL OF THE ASSEMBLY OF THE ECSC IN LUXEMBOURG IN 1953 . PURSUANT TO THE ECSC PROVISIONS THEN IN FORCE AN INSTALLATION ALLOWANCE EQUAL TO FOUR MONTHS ' SALARY WAS PAID TO HIM BECAUSE HE AND HIS FAMILY SETTLED IN LUXEMBOURG . WHEN IN 1967 HE WAS TRANSFERRED TO THE AUDIT BOARD IN BRUSSELS HE SETTLED WITH HIS FAMILY IN LIEGE AND RECEIVED AN INSTALLATION ALLOWANCE EQUAL TO TWO MONTHS ' BASIC SALARY . WHEN HE WAS TRANSFERRED TO THE COURT OF AUDITORS IN 1978 THE APPLICANT SETTLED IN LUXEMBOURG BUT HIS FAMILY CONTINUED TO LIVE IN LIEGE AND FOR THAT REASON HE ONLY RECEIVED AN INSTALLATION ALLOWANCE EQUAL TO ONE MONTH ' S BASIC SALARY .

3 THE APPLICANT WAS RETIRED WITH EFFECT FROM 1 JUNE 1981 . HE THEN WENT BACK TO LIVE WITH HIS FAMILY IN LIEGE . ON THAT OCCASION THE COURT OF AUDITORS GRANTED HIM A RESETTLEMENT ALLOWANCE EQUAL TO HIS BASIC SALARY FOR ONE MONTH . ON THE OTHER HAND IT REFUSED TO GRANT HIM A RESETTLEMENT ALLOWANCE EQUAL TO TWO MONTHS ' BASIC SALARY ON THE GROUND THAT HIS FAMILY WHICH HAD CONTINUED TO LIVE IN LIEGE HAD NOT HAD TO RESETTLE IN THAT CITY .

4 THE DIFFERENCE OF ONE MONTH ' S BASIC SALARY BETWEEN THE RESETTLEMENT ALLOWANCE CLAIMED BY THE APPLICANT AND THE SUM GRANTED BY WAY OF SUCH ALLOWANCE BY THE COURT OF AUDITORS IS THE ISSUE IN THE PRESENT CASE .

5 IN SUPPORT OF HIS ACTION THE APPLICANT CLAIMS THAT ACCORDING TO THE CLEAR WORDING OF ARTICLE 6 OF ANNEX VII TO THE STAFF REGULATIONS HE IS ENTITLED TO A RESETTLEMENT ALLOWANCE OF TWO MONTHS ' BASIC SALARY SINCE HE RECEIVED THE HOUSEHOLD ALLOWANCE AND HE HAS RESETTLED WITH HIS FAMILY IN LIEGE . THE APPLICANT REFERS MOREOVER TO THE TRANSITIONAL PROVISIONS OF REGULATION NO 259/68 OF THE COUNCIL OF 29 FEBRUARY 1968 , ARTICLE 99 ( 3 ) OF THE 1962 ECSC STAFF REGULATIONS AND TO ARTICLE 12 OF THE FORMER GENERAL REGULATIONS OF THE ECSC OF 1956 .

6 ACCORDING TO THE COURT OF AUDITORS THE PROVISION CONTAINED IN ARTICLE 5 ( 4 ) OF ANNEX VII MUST ALSO APPLY TO THE SITUATION COVERED BY ARTICLE 6 SO THAT THE RESETTLEMENT ALLOWANCE IS REDUCED TO ONE MONTH ' S BASIC SALARY IN A CASE SUCH AS THAT OF THE APPLICANT .

7 IT SHOULD BE OBSERVED IN THE FIRST PLACE THAT , AS THE COURT HELD IN ITS JUDGMENT OF 11 JULY 1974 IN CASE 10/74 BECKER V COMMISSION ( 1974 ) ECR 867 , THE SAFEGUARD CLAUSE CONTAINED IN ARTICLE 99 ( 3 ) OF THE 1962 STAFF REGULATIONS IN FAVOUR OF OFFICIALS WHO HAD PREVIOUSLY BEEN SUBJECT TO THE FORMER GENERAL REGULATIONS OF THE ECSC OF 1956 IS NO LONGER APPLICABLE SINCE THE PRESENT SALARIES REPRESENT MORE THAN DOUBLE THE SALARIES PRIOR TO 1962 AND AN OFFICIAL WHO TERMINATES HIS EMPLOYMENT AFTER THE ENTRY INTO FORCE OF THE NEW SYSTEM IS NO LONGER FINANCIALLY IN A LESS FAVOURABLE POSITION THAN IF HE HAD LEFT HIS EMPLOYMENT BEFORE THE ENTRY INTO FORCE OF THE NEW SYSTEM .

8 IT IS THEREFORE NECESSARY IN THE PRESENT CASE TO APPLY ARTICLE 6 OF ANNEX VII OF THE STAFF REGULATIONS IN SO FAR AS IT REFERS TO AN OFFICIAL WHO IS ENTITLED TO THE HOUSEHOLD ALLOWANCE .

9 ARTICLE 6 ( 1 ) PROVIDES THAT AN OFFICIAL SHALL BE ENTITLED ON TERMINATION OF SERVICE ' ' TO A RESETTLEMENT ALLOWANCE EQUAL TO TWO MONTHS ' BASIC SALARY IN THE CASE OF AN OFFICIAL WHO IS ENTITLED TO THE HOUSEHOLD ALLOWANCE ' ' AND DOES NOT MENTION ANY REQUIREMENT THAT THE OFFICIAL ' S FAMILY MUST RESETTLE . ON THE OTHER HAND ARTICLE 6 ( 4 ) PROVIDES THAT THE ALLOWANCE IS TO BE PAID ' ' AGAINST EVIDENCE THAT THE OFFICIAL AND HIS FAMILY . . . . HAVE RESETTLED ' ' . THE CASE OF AN OFFICIAL ENTITLED TO THE HOUSEHOLD ALLOWANCE WHO RESETTLES WITHOUT HIS FAMILY IS NOT EXPRESSLY PROVIDED FOR IN THE ARTICLE .

10 IN ORDER TO INTERPRET ARTICLE 6 IT IS NOT PERMISSIBLE , AS THE APPLICANT PROPOSES , TO RELY ON THE PROVISIONS OF ARTICLE 12 OF THE GENERAL REGULATIONS OF THE ECSC OF 1956 . THE PROVISIONS OF THE STAFF REGULATIONS AT PRESENT IN FORCE MUST BE INTERPRETED WITH REGARD TO THEIR CONTEXT AND PURPOSE AND NOT IN THE LIGHT OF RULES WHICH HAVE BEEN REPEALED .

11 IT IS APPARENT FROM ARTICLE 71 OF THE STAFF REGULATIONS AND FROM THE HEADING OF SECTION 3 OF ANNEX VII THERETO THAT ARTICLE 6 OF THAT ANNEX REFERS TO THE REIMBURSEMENT , ON A LUMP-SUM BASIS , OF EXPENSES WHICH ARE OCCASIONED BY THE RESETTLEMENT OF THE OFFICIAL AFTER THE TERMINATION OF HIS SERVICE AND WHICH ARE NOT COVERED BY THE REIMBURSEMENT OF REMOVAL EXPENSES REFERRED TO IN ARTICLE 9 OF ANNEX VII . THE AMOUNT OF THOSE EXPENSES WILL GENERALLY BE HIGHER IN THE CASE OF CHANGE OF THE PLACE OF RESIDENCE OF AN OFFICIAL AND HIS FAMILY THAN IN THE CASE OF AN OFFICIAL WHO REJOINS HIS FAMILY .

12 A LIKE DIFFERENCE IN THE EXPENSES TO BE REIMBURSED HAS BEEN TAKEN INTO ACCOUNT , AS REGARDS THE INSTALLATION ALLOWANCE TO BE PAID ON TAKING UP EMPLOYMENT , BY THE FIRST SENTENCE OF ARTICLE 5 ( 4 ) WHICH PROVIDES THAT THE OFFICIAL WHO IS ENTITLED TO THE HOUSEHOLD ALLOWANCE AND DOES NOT SETTLE WITH HIS FAMILY IS TO RECEIVE ONLY HALF THE ALLOWANCE TO WHICH HE WOULD OTHERWISE BE ENTITLED . SIMILARLY , IT IS CONSISTENT WITH THE PURPOSE OF ARTICLE 6 NOT TO GRANT THE RESETTLEMENT ALLOWANCE AT THE RATE OF TWO MONTHS ' BASIC SALARY TO AN OFFICIAL WHO DOES NOT RESETTLE WITH HIS FAMILY . THAT INTERPRETATION IS MOREOVER CONFIRMED BY THE WORDING OF ARTICLE 6 ( 4 ) WHICH EXPRESSLY REQUIRES EVIDENCE THAT THE OFFICIAL ' S FAMILY HAS RESETTLED .

13 SINCE IT IS COMMON GROUND THAT THE APPLICANT ' S FAMILY DID NOT CHANGE ITS PLACE OF RESIDENCE WITH HIM WHEN HE RESETTLED IN LIEGE THE COURT OF AUDITORS COULD NOT THEREFORE LAWFULLY ALLOW THE APPLICANT ' S CLAIM FOR THE GRANT OF A RESETTLEMENT ALLOWANCE EQUAL TO HIS BASIC SALARY FOR TWO MONTHS .

14 THE APPLICATION MUST THEREFORE BE DISMISSED .

Decision on costs

COSTS

15 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES , INSTITUTIONS ARE TO BEAR THEIR OWN COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .