Judgment of the Court (First Chamber) of 3 May 1972. - Wiebe de Haan v Commission of the European Communities. - Case 33-71.



European Court reports 1972 Page 00255

Danish special edition Page 00073

Portuguese special edition Page 00085



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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OFFICIALS - REMOVAL IN THE INTERESTS OF THE SERVICE - EXPENSES - REIMBURSEMENT - CONDITIONS

( STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES, ANNEX VII, ARTICLE 9 )

Summary

ARTICLE 9 OF ANNEX VII TO THE STAFF REGULATIONS AIMS TO INDEMNIFY OFFICIALS FOR ACTUAL AND NECESSARY EXPENSES FOLLOWING A REMOVAL IN THE INTERESTS OF THE SERVICE .

ALTHOUGH THAT PROVISION MUST BE INTERPRETED WIDELY AND AN OFFICIAL WHO HAS ALREADY CHANGED HIS PLACE OF RESIDENCE PENDING HIS ESTABLISHMENT OR TRANSFER MUST NOT BE EXCLUDED FROM THE APPLICATION THEREOF, SUCH AN INTERPRETATION IS HOWEVER ONLY JUSTIFIED SO AS TO PREVENT THE OFFICIAL FROM HAVING TO BEAR THE EXPENSES INCURRED OUT OF HIS SALARY .

Parties

IN CASE 33/71

WIEBE DE HAAN, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT 13 STRUIKENLAAN, SINT-GENESIUS-RODE, 1640 BRUSSELS, REPRESENTED BY MARCEL SLUSNY, ADVOCATE AT THE COUR D' APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, ADVOCATE, 34B RUE PHILIPPE-II, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, LOUIS DE LA FONTAINE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF EMILE REUTER, LEGAL ADVISER TO THE COMMISSION, 4 BOULEVARD ROYAL,

DEFENDANT,

Subject of the case

APPLICATION FOR THE REIMBURSEMENT OF THE EXPENSES OF THE REMOVAL BY THE APPLICANT ON 16 AUGUST 1968 FROM ISPRA TO BRUSSELS,

Grounds

1 BY APPLICATION LODGED AT THE REGISTRY ON 29 JUNE 1971, THE APPLICANT HAS BROUGHT BEFORE THE COURT AN APPLICATION DIRECTED AGAINST THE IMPLIED REFUSAL BY THE COMMISSION OF THE EUROPEAN COMMUNITIES TO REIMBURSE HIM REMOVAL EXPENSES UNDER ARTICLE 9 OF ANNEX VII TO THE STAFF REGULATIONS .

2 THE APPLICATION IS PRIMARILY FOR THE ANNULMENT OF THE CONTESTED REFUSAL AND FOR AN ORDER THAT THE COMMISSION PAY THE APPLICANT THE SUM OF BFRS 80 000 .

3 ALTERNATIVELY, THE APPLICATION IS FOR AN ORDER THAT THE COMMUNITY, REPRESENTED BY THE COMMISSION, PAY THE SAME SUM AS DAMAGES FOR THE WRONGFUL ACT OF ITS DEPARTMENTS IN TRANSFERRING THE APPLICANT ON 12 JUNE 1968 TO A DIRECTORATE-GENERAL OF THE EAEC, WITH RESIDENCE IN BRUSSELS, AND THEN REVOKING THAT TRANSFER ON 20 AUGUST 1968 WHEN THE APPLICANT HAD MEANWHILE RENTED A HOUSE IN THE GREATER BRUSSELS AREA .

4 FINALLY, IN THE COURSE OF THE PROCEEDINGS, THE APPLICANT CLAIMED THE SAME SUM ON THE GROUND OF UNJUST ENRICHMENT .

THE PRIMARY CLAIM

5 IT APPEARS FROM THE FILE PUT BEFORE THE COURT THAT THE TRANSFER OF THE APPLICANT TO DIRECTORATE - GENERAL XVII, OF WHICH HE WAS NOTIFIED ON 12 JUNE 1968, WAS IN FACT REVOKED ON 2 AUGUST 1968 ON ADMINISTRATIVE GROUNDS .

6 HOWEVER, IN VIEW IN PARTICULAR OF THE ARRANGEMENTS ALREADY MADE BY THE APPLICANT WITH REGARD TO HIS RESIDENCE, THE LATTER WAS SECONDED FROM ISPRA TO BRUSSELS ON MISSION PENDING SUBSEQUENT REGULARIZATION IN ORDER TO PERFORM THERE IN THAT ADMINISTRATIVE POSITION THE DUTIES ALLOTTED TO HIM .

7 THE APPLICANT TOOK UP RESIDENCE IN BRUSSELS FROM AUGUST 1968 AND HAD HIS FURNITURE AND PERSONAL EFFECTS MOVED THERE .

8 THROUGHOUT THE PERIOD OF HIS SECONDMENT HE RECEIVED DAILY SUBSISTENCE ALLOWANCES GRANTED UNDER ARTICLES 11 AND 13 OF ANNEX VII TO THE STAFF REGULATIONS TO STAFF TRAVELLING ON MISSION .

9 ALTOGETHER HE RECEIVED MORE THAN BFRS 300 000 ON THAT ACCOUNT .

10 AS FROM 1 APRIL 1970, HE WAS PERMANENTLY TRANSFERRED TO DIRECTORATE-GENERAL XVII AND REQUESTED AT THAT TIME REIMBURSEMENT OF THE EXPENSES OF HIS REMOVAL IN 1968 ON THE BASIS OF ARTICLE 9 OF ANNEX VII .

11 ARTICLE 20 OF THE STAFF REGULATIONS PROVIDES THAT AN OFFICIAL SHALL RESIDE EITHER IN THE PLACE WHERE HE IS EMPLOYED OR AT NO GREATER DISTANCE THEREFROM AS IS COMPATIBLE WITH THE PROPER PERFORMANCE OF HIS DUTIES .

12 ARTICLE 9 OF ANNEX VII TO THOSE REGULATIONS PRESCRIBES THAT THE EXPENSES INCURRED IN RESPECT OF REMOVAL OF FURNITURE AND PERSONAL EFFECTS SHALL BE REIMBURSED TO AN OFFICIAL WHO IS OBLIGED TO CHANGE HIS PLACE OF RESIDENCE IN ORDER TO COMPLY WITH THE SAID ARTICLE 20 AND WHO HAS NOT BEEN REIMBURSED IN RESPECT OF THE SAME EXPENSES FROM ANOTHER SOURCE .

13 THE APPLICANT WAS REFUSED THAT REIMBURSEMENT BECAUSE HE HAD BEEN LIVING IN THE GREATER BRUSSELS AREA SINCE AUGUST 1968 SO THAT THE REMOVAL IN QUESTION COULD NOT BE CONSIDERED AS BEING THE RESULT OF THE TRANSFER WHICH TOOK PLACE IN 1970 .

14 SINCE THE REMOVAL IN 1968 CANNOT BE THE RESULT OF A TRANSFER WHICH WAS DECIDED ON IN 1970, IT CANNOT BE CONSIDERED AS THE RESULT OF OBLIGATIONS ARISING OUT OF THAT TRANSFER .

15 HOWEVER, THE APPLICANT CLAIMS THAT THAT REMOVAL MUST BE CONSIDERED ON THE GROUNDS OF NATURAL JUSTICE AS CLOSELY LINKED TO HIS TRANSFER SINCE THE LATTER ONLY AMOUNTED TO THE REGULARIZATION OF MISTAKES CONCERNING HIM MADE IN 1968, SO THAT THE EXPENSES INCURRED IN 1968 MUST STILL BE REIMBURSED ON THE OCCASION OF HIS OFFICIAL TRANSFER IN 1970 .

16 THE GROUNDS OF NATURAL JUSTICE RELIED UPON BY THE APPLICANT DO NOT JUSTIFY THE INTERPRETATION WHICH HE SUGGESTS .

17 ARTICLE 9 OF ANNEX VII TO THE STAFF REGULATIONS AIMS TO INDEMNIFY OFFICIALS FOR ACTUAL AND NECESSARY EXPENSES FOLLOWING A TRANSFER IN THE INTERESTS OF THE SERVICE AS APPEARS FROM THE REQUIREMENT OF THE PRODUCTION OF AN ESTIMATE FOR APPROVAL BY THE ADMINISTRATION AND FROM THE CONDITION THAT THE OFFICIAL IS NOT REIMBURSED IN RESPECT OF THE SAME EXPENSES FROM ANOTHER SOURCE .

18 ALTHOUGH THAT PROVISION MUST BE INTERPRETED WIDELY AN OFFICIAL WHO HAS ALREADY CHANGED HIS PLACE OF RESIDENCE PENDING HIS ESTABLISHMENT OR TRANSFER MUST NOT BE EXCLUDED FROM THE APPLICATION THEREOF, SUCH AN INTERPRETATION IS HOWEVER ONLY JUSTIFIED SO AS TO PREVENT THE OFFICIAL FROM HAVING TO BEAR THE COSTS INCURRED OUT OF HIS SALARY .

19 THIS IS NOT SO IN THE PRESENT CASE, SINCE THE APPLICANT BECAUSE OF THE PARTICULAR CIRCUMSTANCES OF HIS REMOVAL TO BRUSSELS, HAS FOR A LONG PERIOD RECEIVED SPECIAL ALLOWANCES THE AMOUNT OF WHICH GREATLY EXCEEDS THE EXPENSES INCURRED IN RESPECT OF HIS REMOVAL .

20 THEREFORE THE COMMISSION, THE DEFENDANT, WAS JUSTIFIED IN RELYING UPON THE PROVISIONS OF ARTICLE 9 OF ANNEX VII AND IN REFUSING THE REIMBURSEMENT REQUESTED .

21 THEREFORE THE PRIMARY CLAIM IS UNFOUNDED .

THE ALTERNATIVE CLAIM

22 THE CLAIM WOULD ONLY BE JUSTIFIED IF IT WERE PROVED THAT THE ALLEGED WRONGFUL ACT OR OMISSION ON THE PART OF THE COMMUNITY HAD CAUSED ACTUAL LOSS TO THE APPLICANT .

23 HOWEVER, IT FOLLOWS FROM THE ABOVEMENTIONED CONSIDERATIONS THAT, BECAUSE OF THE PARTICULARLY GENEROUS ADMINISTRATIVE ARRANGEMENT MADE IN HIS CASE, THE APPLICANT HAS NOT SUFFERED ANY LOSS .

24 UNDER THESE CIRCUMSTANCES, THE ARGUMENTS WHICH THE APPLICANT CLAIMS TO BASE ON THE UNJUST ENRICHMENT BY THE COMMISSION REBOUND UPON HIM, SINCE THE ACTUAL EXPENSES WHICH HE HAD TO BEAR WERE MORE THAN COMPENSATED FOR BY THE GRANT OF FLAT-RATE ALLOWANCES UNRELATED TO SUCH EXPENSES .

25 MOREOVER, IT IS NECESSARY TO POINT OUT TO THE APPLICANT THE IRRELEVANCE OF HIS ARGUMENTS BASED ON A COMPARISON WITH THE ALLOWANCES RECEIVED BY COLLEAGUES RESIDING AT ISPRA WHO WERE ALSO SECONDED ON MISSION TO DIRECTORATE-GENERAL XVII FROM 1968 AND WERE PERMANENTLY TRANSFERRED THERE AT THE SAME TIME AS THE APPLICANT .

26 IN FACT, BOTH THE MISSION EXPENSES RECEIVED BY THOSE COLLEAGUES AND THE REIMBURSEMENT OF EXPENSES INCURRED WITH REGARD TO THEIR REMOVAL IN 1970 CORRESPOND TO EXPENSES ACTUALLY BORNE, SO THAT THOSE ALLOWANCES WERE OWED THEM BOTH IN LAW AND IN JUSTICE .

27 THEREFORE THE ALTERNATIVE CLAIM MUST ALSO BE DISMISSED .

Decision on costs

28 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

29 THE APPLICANT HAS FAILED IN HIS ARGUMENTS .

30 HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, INSTITUTIONS SHALL BEAR THEIR OWN COSTS IN PROCEEDINGS COMMENCED AGAINST THEM BY SERVANTS OF THE COMMUNITIES .

Operative part

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION AS UNFOUNDED;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .