JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

11 June 1996

Case T-111/94

Giovanni Ouzounoff Popoff

v

Commission of the European Communities

‛Officials — Transfers of part of pay in the currency of a Member State other than the country where the institution has its seat — Inadmissibility’

Full text in Spanish II-819

Application for:

annulment of the decision rejecting the applicant's complaint relating to the transfer of part of his pay to a building loan savings account in DKR, a declaration that he is entitled to such a transfer, and compensation.

Decision:

Application dismissed.

Abstract of the Judgment

Legislation and facts

Article 17(2)(b) of Annex VII to the Staff Regulations of Officials of the European Communities states that an official may regularly have part of his emoluments transferred through the institution which he serves, provided that the transfers ‘are intended to cover expenditure arising in particular out of commitments proved to have been regularly undertaken by the official outside the country where the institution has its seat or outside the country where he carries out his duties’.

Article 2 of the Rules laying down the procedure for transfer of part of an official's emoluments (‘the Rules’) provides that life and invalidity insurance premiums and payments to building societies in connection with certain real estate transactions constitute expenditure justifying a transfer pursuant to Article 17(2)(b) of Annex VII to the Staff Regulations.

The applicant, a Commission official employed in Brussels, opened a building loan savings account with the Banco Español de Crédito (‘Banesto’) in Brussels in order for the Commission to pay DKR 5000 into it every month. The applicant lodged a copy of the agreement with the Directorate-General for Personnel and Administration of the Commission (DG IX). From February 1992 onwards the Commission paid into that account each month the sum of DKR 5000 multiplied by the weighting for Denmark.

On 13 October 1992 and 21 January 1993 the applicant amended his agreement with Banesto, increasing the amount to be transferred from DKR 5000 to DKR 9800 and from DKR 9800 to DKR 20000 respectively. He claims to have notified DG IX of those amendments by forwarding copies of the supplementary agreements.

On 20 August 1993 the applicant lodged a complaint under Article 90(2) of the Staff Regulations against the rejection of his two ‘requests’ for the sum to be transferred to be increased to DKR 9800 and DKR 20000 respectively. The appointing authority's failure to reply within the four-month period laid down by Article 90(2) of the Staff Regulations is deemed to constitute an implied decision rejecting the complaint. The authority expressly rejected the complaint by a decision of 30 March 1994.

Admissibility

The claim for annulment of the implied decision rejecting the complaint

In the absence of an act adversely affecting the official concerned, the pre-litigation procedure introduced by Article 90 of the Staff Regulations is a two-stage procedure. Under Article 90(1), any person to whom the Staff Regulations apply may submit to the appointing authority a request that it take a decision relating to him. In the event of an unfavourable reply or in the absence of a decision, the official may submit a complaint to the appointing authority, challenging the express or implied decision of the latter, in accordance with Article 90(2).

See: T-17/90, T-28/91 and T-17/92 Cainara Alloisio and Others v Commission [1993] ECR II-841, para. 45; T-27/92 Camera-Lampitelliand Others v Commission [1993] ECR II-873, para. 26

The parties agree that the applicant never formally applied to the Commission in writing for the transfer, pursuant to Article 17 of Annex VII to the Staff Regulations, of DKR 9800 and DKR 20000 respectively. The applicant seems, however, to claim that sending to DG IX copies of the supplementary building loan agreements can be treated as a request within the meaning of Article 90(1) of the Staff Regulations.

The Court notes that the request referred to in Article 90 of the Staff Regulations must ask the appointing authority to take a decision relating to the official concerned. The purpose of the request must be set out sufficiently clearly for the authority involved to be able to decide with full knowledge of the facts. In view of those requirements, the Court holds that even though the applicant had lodged copies of the supplementary agreements with DG IX, lodging such documents could not in itself be regarded as a request within the meaning of Article 90(1) of the Staff Regulations. The supplementary agreements entered into by the applicant and a bank do not specifically ask the appointing authority to take a decision relating to the applicant.

See: 23/74 Kuster v Parliament [1975] ECR 353, para. 11

The fact that the Commission had previously taken the action sought after the applicant had simply lodged a copy of the building loan agreement cannot exempt the applicant from following the pre-litigation procedure laid down by Article 90 of the Staff Regulations. Similarly, the applicant cannot be assisted by alleging that some officials have obtained increases in the amount of transfers in DKR after lodging with DG IX only a copy of the supplementary building loan agreement. It is clear that an official who considers himself entitled to a particular benefit under the Staff Regulations will initially contact the competent department in the administration in order to obtain the relevant benefit. For transfers within the meaning of Article 17 of Annex VII to the Staff Regulations, the first paragraph of Article 6 of the Rules even provides that such requests are to be submitted in writing. However, if the administration takes no action on a request pursuant to the first paragraph of Article 6 of the Rules, the official seeking a transfer or an increase in the amount of a transfer already granted to him will be obliged, in the absence of an act adversely affecting him, to submit through his immediate superior a formal request within the meaning of Article 90(1) of the Staff Regulations asking the appointing authority to take a decision relating to him.

In this case, the Court finds that the administration took no action after the applicant had lodged copies of the supplementary building loan agreements that he had entered into with Banesto. In the absence of an act adversely affecting him, therefore, the applicant should have preceded his complaint by a request within the meaning of Article 90(1) of the Staff Regulations. As he did not make such a request, he has not followed the proper two-stage pre-litigation procedure. The claim for annulment of the implied decision rejecting the complaint must therefore be rejected as inadmissible.

The claim for annulment of the express decision rejecting the complaint

The express decision rejecting the complaint merely confirms the implied decision, the claim for annulment against which has already been set out in this case. According to settled case-law, claims for annulment of confirmatory acts are inadmissible.

See: 166/86 and 220/86 Irish Cementy v Commission [1988] ECR 6473. para. 16; T-4/90 Lestelle v Commission [1990] ECR II-689, paras 24 to 27; T-64/92 Chavane de Dalmassy and Others v Commission [1994] ECRSC II-723, para. 25

The claim for a declaration that the applicant is entitled to the monthly transfers sought

It is not for the Court to issue directions to the institutions or to act in their stead. This claim is likewise inadmissible.

See: T-19/90 Von Hoessle v Court of Auditors [1991] ECR II-615, para. 30; T-53/92 Viette de Stachelski v Commission [1993] ECR II-35, para. 21; Camera-Lampitelli and Others v Commission, cited above, para. 25

The claim for compensation

The action for compensation is based on the loss resulting from the act whose annulment is sought, namely the alleged refusal by the Commission in its implied decision rejecting the complaint to transfer part of the applicant's pay into his building loan savings account in DKR. The claim for compensation is therefore directly linked to the claim for annulment. Since the latter claim is inadmissible, so is the former.

See: 346/87 Bossi v Commission [1989] ECR 303, para. 31; T-82/91 Latham v Commission [1994] ECRSC II-61, para. 34

Operative part:

The application is dismissed as inadmissible.