1.

The application of 18 March 1982 initiating these proceedings consists of a number of claims made by Max Gutmann, a former official of the Commission of the European Communities, against that institution, seeking the annulment of a decision concerning the recovery of a resettlement allowance, and the repayment with interest of sums withheld. The facts may be summarized as follows: Mr Gutmann, an official of the Communities since 1956, retired on 3 December 1977 on reaching the age of 65. As he wished to move to Nice, his place of origin, on 21 April 1980 he asked the Commission to inform him of the amount of the resettlement allowance, the period within which he had to apply for the allowance and the documentation he had to produce. The Commission informed him that he would be paid an allowance of BFR 340720 against documentary evidence that he and his family had resettled at a place situated not less than 70 kilometres from the place where he had been employed, within three years of his retirement (and therefore before 2 December 1980). As the end of the three years approached, Mr Gutmann submitted (on 27 October 1980) a medical certificate stating that his wife was seriously ill, and requested more time to effect his resettlement and removal. He was granted an extension (to 31 December 1981), but only in respect of the removal. The Commission maintained that the Staff Regulations do not permit the extension of the prescribed period for resettlement after the termination of service. Mr Gutmann did not contest the decision. In a memorandum of 17 November 1980, he declared that he had moved from Luxembourg to Paris and produced a certificate of permanent residence certifying that he has resided in Paris since October 1980. On 9 December 1980 the Commission requested additional documentary evidence (such as a lease, or a telephone or electricity bill) in order to establish that, although no removal had taken place, Mr Gutmann and his family had actually resettled. By the same letter, the Commission notified Mr Gutmann that, pursuant to Article 82 of the Staff Regulations, as from December 1980 his pension would be calculated on the basis of the weighting fixed for France. Mr Gutmann complied with the Commission's request by submitting, on 19 December 1980, a telephone bill dated 14 August 1980 in respect of August and September 1980 and also some services provided in the preceding months. On the basis of that evidence, the Commission decided to pay the resettlement allowance (which was clone on 23 March 1981) and to apply to the pension the weighting for France. Subsequently, Mr Gutmann's pension for February 1980 was reduced by some BFR 20000 which represented the overpayment resulting from the application of the Luxembourg weighting to the monthly pension payments for December 1980 to February 1981. It was that deduction that provoked this dispute. That and the future reduction in his purchasing power brought about by the change of weighting induced Mr Gutmann to send a further letter to the Commission. That letter is decisive for the outcome of these proceedings and requires careful consideration. In it Mr Gutmann claimed in particular that the refusal to allow him more time, as he had previously requested, had “forced (him) to carry out a pretence of resettlement”. He then stated that the address in Paris referred to in the memorandum of 17 November was that of a flat owned by his two daughters and occupied by the elder daughter. Finally, he declared that he had continued to reside in Luxembourg with his wife and his younger daughter. On that basis he sought the annulment of the decision to apply the weighting fixed for France to his pension and the reimbursement of the sums deducted and asked that his correspondence be directed to Luxembourg. There followed a voluminous correspondence which culminated in Mr Gutmann submitting a complaint (21 May 1981) against the decision concerning the application of the weighting for France. The Commission gave way and on 16 June 1981 annulled the earlier decision (5 January 1981) and acceded to Mr Gutmann's claim to have his pension calculated on the basis of the weighting for Luxembourg and to have his correspondence sent to Luxembourg City. However, since the payment of the allowance had been obtained by means of false declarations, the Commission stated that it regarded it as an undue payment and notified Mr Gutmann of its intention to recover that amount on the basis of Article 85 of the Staff Regulations in conjunction with Article 46 of Annex VIII thereto. Mr Gutmann submitted a complaint through official channels against that part of the decision and when that complaint was rejected, initiated these proceedings on 18 March 1982. A few days later he died and the proceedings were continued by his daughters.