7.

According to the applicant there has been a further breach of Article 82 of the Staff Regulations: the Commission is said to have applied to the pension the weighting for Germany even though it knew that the applicant had never transferred his home from Brussels to Vallendar. In my view this complaint disregards the clear wording of the second subparagraph of Article 82 (1) of the Staff Regulations. As the Court is aware that prohibition lays down that pensions shall be weighted in the manner provided for the country of the Communities ‘where the person entitled to the pension declares his home to be’. The wording employed (‘… declares his home to be’) shows that the Community legislature intended in this matter to give precedence to the choice of the person concerned. That tendency is in accordance with other provisions on pensions contained in Annex VIII; reference may be made to the third paragraph of Article 45 which provides that ‘beneficiaries may elect to have their pensions paid in the currency either of their country of origin or of their country of residence or of the country where the institution to which the official belonged has its seat’. I would add that Article 82 (1) is all the more logical in that it is not unusual for a person entitled to a pension to continue to maintain his home in the city where he worked as a Community official and at the same time to maintain another house in the country which is the scene of his new activities: this is precisely what happened in the present case. In a situation of this nature it is entirely proper that the choice of the home which is relevant for these purposes should be made by the person concerned. Nevertheless I do not wish to go so far as to maintain that the declaration of the person concerned for the purposes of Article 82 continues to be decisive in determining the weighting even where the objective situation is at variance with the declaration when, that is, the person concerned has not established his home in the country stated. In fact Article 43 requires persons entitled to a pension to furnish such written proof as may be required and to ‘inform the institution … of any facts liable to affect their entitlement’. There are accordingly two possibilities: either the person entitled to a pension provides such information or the administration learns by other means that his home is not in the place stated. The administration is in a position to act if, and from the moment when, such information is provided; in that case it appears reasonable to recognize, having regard to the obligation imposed on individuals, a duty on the administration to act on the basis of such information, all the more so since fresh information regarding the home amounts to a new statement of choice. However, and precisely for that reason, the new information must have effect solely ex nunc; if this were not so it would cancel the effect of the first declaration and would mean that the person entitled to a pension has an unrestricted right to obtain a review of the weighting initially fixed for him. Whilst, on the other hand, in the absence of such information, the administration is required to establish a discrepancy between the declaration of the person entitled to the pension and the actual situation, it is always empowered under Article 41 of the annex to the Staff Regulations to calculate the pension afresh, but in implementation of that discretionary power which, as I have stated, is conferred on it within the framework of Article 41. The above remarks serve to clarify the provisions in view of which the applicant's complaints must be considered. In substance my view is that when the administration has learnt indirectly of the fact that the actual home of the person entitled to a pension is not in accordance with his declaration it is empowered but not obliged to make the necessary adjustments and any delay or omission in this matter does not give grounds for complaint by the person concerned. The latter, in addition to the ordinary grounds for an application, can only call for the weighting to be calculated afresh ex nunc by informing the institution, in pursuance of Article 43, that he has established his home in a different country. It may nevertheless be doubted that in the present case the administration had knowledge of the fact that the applicant had his home in Belgium rather than the Federal Republic. The essential argument advanced to establish that it had that knowledge is as follows: the Commission, by a decision of 20 June 1974, rejected Mr Michaelis's request for the resettlement allowance (referred to in Article 6 of Annex VII to the Staff Regulations) on the ground of his failure to provide due evidence that he had settled with his family in the Federal Republic; furthermore, the Director of Personnel stated in the said decision that the applicant was still resident in Brussels. This argument assumes that the conditions for granting the resettlement allowance are identical with those for fixing the weighting; this view cannot be upheld. Whilst, as we have seen, Article 82 of the Staff Regulations in fact takes the declaration of the person concerned that he has established his home in a certain country as' the basis for fixing the weighting, Article 6 of Annex VII makes the grant of the allowance conditional on actual removal from the place where the official was employed to a different place and indeed paragraph (4) provides that the allowance ‘shall be paid against evidence that the official and his family … have resettled’ at a place other than that where the official was employed. There is accordingly no contradiction between a decision of the administration taking the view that insufficient evidence has been provided of the resettlement of the family and the conduct of such administration which persists in considering relevant, for the purposes of determining the weighting, a previous declaration as to the location of the home even if such declaration refers to the same place where the person entitled to a pension claimed he had resettled with his family, albeit he was unable to prove it. The consideration which was set out above concerning the possibility of there being two places of residence, only one of which is the family home, applies to this case. Accordingly it does not seem to me possible to state on the basis indicated above that in the present case the administration could be sure that the applicant's declaration concerning his home did not correspond to the actual situation. The other evidence adduced by the applicant for his view that the administration was always aware that he had not in fact removed from Belgium does not persuade me to depart from the conclusions I have now reached. The declaration which the applicant made to the Commission on 26 January 1976 concerning his family situation is not very persuasive; in fact it contained two addresses, one in Brussels and another in Vallendar, and thus manifestly could not clarify the situation. Only the later declaration of 29 January 1977, which contained only the Brussels address, put an end to the ambiguity. The Commission was thus justified in taking it into account and applying the Belgian weighting with retroactive effect from 1 January 1977. Similarly, it does not seem to me of particular significance that the applicant worked for the Commission as an adviser almost without interruption from 29 September 1971 to 31 October 1976 with the task of making a study of European policy concerning supplies of raw materials. Indeed it is not clear that that task required him to stay throughout in Brussels. On the other hand, in the same period the applicant, having claimed the resettlement allowance, submitted to the Commission two residence certificates issued by the police authorities of Vallendar dated 7 October 1971 and 27 March 1974 respectively (cf. the Commission's rejoinder, p. 4). It should finally be recalled that Mr Michaelis has for some time occupied a teaching post at the University of Cologne, in which city the pension is paid to him.