JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

27 October 1994

Case T-508/93

Giuseppe Mancini

v

Commission of the European Communities

‛Officials — Resumption of service with the Communities after a period of service with a national administration — Refusal to grant a resettlement allowance and daily subsistence allowance’

Full text in Italian II-761

Application for:

annulment of the Commission's decision refusing to pay the applicant the resettlement allowance and the daily subsistence allowance upon his return to the Joint Research Centre at Ispra after a period of service with the Italian national administration.

Decision:

Annulment.

Abstract of the Judgment

On 23 October 1990 the applicant, an official at the Joint Research Centre at Ispra near Varese, was seconded to the Italian Ministry of the Environment in Rome, and received an installation allowance and a daily subsistence allowance by virtue of his secondment.

During his service in Rome, the applicant rented a furnished apartment there and retained his accommodation in Varese without changing residence.

By a decision of 1 September 1992, the applicant was reinstated at the Joint Research Centre, whereupon he reoccupied his accommodation in Varese. In a memorandum of 19 November 1992, he sought payment of an installation allowance and a daily subsistence allowance, but his request was rejected on the ground that no change of residence had taken place and he had retained his accommodation in Varese.

The applicant lodged a complaint against the rejection of his request; the complaint was also rejected on the ground that the applicant had been ‘placed at the disposal ’ of the Italian administration ‘in the context of the exchange scheme for officials between the Commission and the public services of the Member States’.

The applicant's plea that the rules on the exchange scheme for officials do not apply

Admissibility

Although the applicant's plea, to the effect that the rules of 30 January 1984 on the secondment of Community officials to national administrations and international organizations under the exchange scheme do not apply in this case, was not raised until the hearing, the Court finds it admissible. It is undisputed that the applicant was at no time aware of those rules until they were cited by the defendant in reply to the Court's questions after the last document was lodged (paragraphs 33 and 34).

Substance

In that new plea, the applicant challenges in particular the statement of reasons given for the contested decisions rejecting his request (paragraph 35).

The purpose of the requirement that a decision adversely affecting an official should state the reasons on which it is based is to enable the Community judicature to review the legality of the contested decision and to provide the person concerned with sufficient details to enable him to ascertain whether the decision is well founded or whether it is vitiated by an error allowing its legality to be contested; moreover, the Court may examine of its own motion whether there has been a manifest disregard of that requirement (paragraph 36).

See: T-45/90 Speybrouck v Parliament [1992] ECR II-33. para. 89; T-5/92 Tallarico v Parliament [1993] ECR II-477, para. 35

Having regard to the legal context of this case, the Court finds the statement of reasons for the decisions rejecting the applicant's request to be defective in three respects (paragraph 37).

First, no reasons are stated in relation to the applicability or otherwise in the applicant's case of the rules referred to above, even though those rules take the form of detailed provisions, including financial ones, governing the secondment of Community officials (paragraphs 38 and 39).

Since the link between an official and his institution is based on the Staff Regulations and is not contractual in nature, the Court rejects the Commission's argument that the rules in question are not relevant because their legal basis is to be found in a contract between the administration and the official concerned, which is lacking in the present case (paragraph 42).

See: T-40/91 Ventura v Parliament [1992] ECR II-1697, para. 41

The question whether or not the rules in question apply to the applicant's case should have been considered by the appointing authority when making its decisions, yet the decisions rejecting the applicant's request make no mention of those rules whatsoever (paragraph 44).

Nor, secondly, are any reasons stated for the contested decisions in relation to the terms used in the basic decisions of 23 October 1990 and 1 September 1992 to describe the applicant's legal position, or in relation to the legal consequences to be drawn from them. The Court therefore considers that it is not in a position to determine how far due regard was paid to the terms of those decisions when the applicant's request was rejected, even though such terms may affect the legal assessment of the applicant's position and thus his entitlement to the allowances he has requested (paragraphs 45, 47 and 48).

Thirdly, the contested decisions themselves contain ambiguities as to the basic rules to be applied (paragraph 49).

The Court therefore annuls the decision refusing to pay the allowances requested, as expressly confirmed by the decision rejecting the applicant's complaint (paragraph 50).

In exercising the discretion conferred upon it by Article 176 of the EC Treaty, the defendant institution must comply both with the provisions of Community law and with the operative part and the grounds of the judgment, having regard in the present case to the fact that the Court has not been able to consider in greater detail the question of the legal basis of the rules, particularly since no objection of illegality was raised against them (paragraph 51).

See: T-84/91 Meskens v Parliament [1992] ECR II-2335, paras 73 and 74

Operative part:

The Commission's decision of 10 December 1992 rejecting the applicant's request for payment of a resettlement allowance and a daily subsistence allowance, and its decision of 23 June 1993 rejecting the applicant's complaint, are annulled.