Judgment of the Court (Second Chamber) of 9 November 1978. - Teunis Verhaaf v Commission of the European Communities. - Case 140/77.



European Court reports 1978 Page 02117

Greek special edition Page 00635

Portuguese special edition Page 00693



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - ASSIGNMENT TO A POST - COMPLIANCE WITH THE INTERESTS OF THE SERVICE - PERMISSIBLE TO TAKE INTO CONSIDERATION THE WISHES OF THE PERSONS CONCERNED

( STAFF REGULATIONS OF OFFICIALS , ART . 7 ( 1 ))

2 . OFFICIALS - INSTALLATION ALLOWANCE - PURPOSE

( STAFF REGULATIONS OF OFFICIALS , ANNEX VII , ART . 5 )

Summary

1 . IN PROVIDING THAT ANY APPOINTMENT OR TRANSFER MUST BE MADE SOLELY IN THE INTERESTS OF THE SERVICE , ARTICLE 7 OF THE STAFF REGULATIONS DOES NOT PREVENT THE COMPETENT AUTHORITIES FROM TAKING INTO ACCOUNT THE PERSONAL WISHES OF THOSE CONCERNED . THE COMPETENT AUTHORITIES HAVE THE POWER , IN THE INTERESTS OF GOOD ADMINISTRATION AND , WHERE NECESSARY , THE DUTY , TO TAKE ALL TEMPORARY MEASURES WHICH ARE NOT LIKELY TO HAVE AN ADVERSE EFFECT ON THE FUNCTIONING OF THE INSTITUTION TO ENABLE AN OFFICIAL TO OVERCOME HIS PERSONAL DIFFICULTIES .

2 . THE SPECIFIC AND CHARACTERISTIC PURPOSE OF AN INSTALLATION ALLOWANCE IS TO ENABLE AN OFFICIAL TO BEAR , IN ADDITION TO REMOVAL EXPENSES , THE INEVITABLE EXPENSES INCURRED THROUGH INTEGRATING IN NEW SURROUNDINGS FOR AN INDETERMINATE BUT SUBSTANTIAL PERIOD OF TIME .

Parties

IN CASE 140/77

TEUNIS VERHAAF , OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT 41 AVENUE MARIE-CHRISTINE , OVERIJSE , REPRESENTED BY MESSRS JACQUES PUTZEYS AND XAVIER LEURQUIN , ADVOCATES AT THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF MR NICKTS , HUISSIER DE JUSTICE , 17 BOULEVARD ROYAL ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , MR RAYMOND BAEYENS , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF ITS LEGAL ADVISER , MR MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG PLATEAU ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF DECISIONS REFUSING AN INSTALLATION ALLOWANCE AND FOR AN ORDER THAT THE COMMISSION SHOULD PAY THAT ALLOWANCE TOGETHER WITH INTEREST AT THE LEGAL RATE ,

Grounds

1THE APPLICANT , A PRINCIPAL ADMINISTRATIVE ASSISTANT ( GRADE B 1 ) AT DIRECTORATE-GENERAL IX OF THE COMMISSION ( PERSONNEL AND ADMINISTRATION ) WHO , IN 1975 , WAS RESIDING WITH HIS FAMILY IN BRUSSELS , SUBMITTED AN URGENT REQUEST TO THE DIRECTOR OF PERSONNEL INDICATING THAT FOR PERSONAL REASONS HE WAS OBLIGED TO LEAVE BRUSSELS .

2AS A RESULT OF THAT REQUEST , THE DIRECTOR OF PERSONNEL POSTED THE APPLICANT , BY DECISION OF 11 NOVEMBER 1975 , TO THE JOINT RESEARCH CENTRE AT PETTEN IN THE NETHERLANDS FOR AN INITIAL PERIOD OF SIX MONTHS AS FROM 1 AUGUST 1975 .

3ON 24 JANUARY 1976 , ONCE MORE AT THE REQUEST OF THE APPLICANT , THAT POSTING WAS EXTENDED FOR A FURTHER PERIOD OF SIX MONTHS , IN OTHER WORDS FROM 1 FEBRUARY 1976 TO 31 JULY 1976 .

4BY MEMORANDUM OF 22 MARCH 1976 , THE APPLICANT INFORMED MR DELAUCHE , ASSISTANT TO THE DIRECTOR-GENERAL AT DIRECTORATE-GENERAL IX , THAT HE WISHED TO RETURN TO BRUSSELS ' ' IN VIEW OF THE FACT THAT MY PRIVATE CIRCUMSTANCES HAVE BECOME STABLE ' ' ADDING THAT ' ' I WOULD ASK YOU ONCE MORE TO TAKE ACTION TO MAKE MY WORKING LIFE HAPPIER TOO . TO ACHIEVE THIS I CONSIDER IT NECESSARY FOR ME TO RETURN TO BRUSSELS - PREFERABLY WITHIN A SHORT TIME ' ' .

5THE APPLICANT WAS INFORMED ORALLY THAT THIS FRESH REQUEST FOR A CHANGE OF POSTING HAD BEEN GRANTED AND HE RETURNED TO BRUSSELS ON 17 MAY 1976 .

6THIS CHANGE WAS CONFIRMED BY DECISION OF THE DIRECTOR OF PERSONNEL OF 24 MAY 1976 TERMINATING AS FROM 17 MAY 1976 THE APPLICANT ' S POSTING TO THE ESTABLISHMENT AT PETTEN .

7THE APPLICANT RECEIVED IN RESPECT OF HIS POSTING TO PETTEN , IN ADDITION TO REIMBURSEMENT OF HIS TRAVEL AND REMOVAL EXPENSES , APPROPRIATE DAILY SUBSISTENCE ALLOWANCES AND A FULL INSTALLATION ALLOWANCE .

8SO FAR AS HIS RETURN TO BRUSSELS WAS CONCERNED , THE APPLICANT ALSO RECEIVED TRAVEL AND REMOVAL EXPENSES BUT HIS REQUEST OF 23 SEPTEMBER 1976 FOR A SECOND INSTALLATION ALLOWANCE SUBMITTED UNDER ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS WAS REJECTED BY MEMORANDUM OF 21 JANUARY 1977 OF THE DIRECTOR OF PERSONNEL ALTHOUGH THE LATTER STATED THAT HE WAS NEVERTHELESS READY ' ' TO GIVE MY AGREEMENT THAT YOU SHOULD BE REIMBURSED FOR EXPENSES WHICH YOU HAVE ACTUALLY INCURRED IN RESPECT OF YOUR RETURN TO BRUSSELS UP TO THE FULL AMOUNT OF THE INSTALLATION ALLOWANCE , OF COURSE ' ' .

9IT FOLLOWS FROM THE FILE THAT NO ADEQUATE EVIDENCE WAS PRODUCED WITH REGARD TO THE INSTALLATION COSTS ACTUALLY INCURRED BY THE APPLICANT , WITH THE EXCEPTION OF CERTAIN MINOR EXPENSES .

10NEVERTHELESS , THE APPLICANT WHO , IN ACCORDANCE WITH HIS REPLY ' ' DOES NOT DENY THAT HIS POSTING TO PETTEN . . . WAS IN ACCORDANCE WITH HIS PERSONAL WISHES ' ' , INVOKES THE SECOND SUBPARAGRAPH OF ARTICLE 7 ( 1 ) OF THE STAFF REGULATIONS OF OFFICIALS WHICH PROVIDES THAT : ' ' THE APPOINTING AUTHORITY SHALL , ACTING SOLELY IN THE INTERESTS OF THE SERVICE . . ., ASSIGN EACH OFFICIAL BY APPOINTMENT OR TRANSFER TO A POST IN HIS CATEGORY ' ' , SO AS TO CLAIM THAT HIS TRANSFERS MUST BE CONSIDERED AS BEING SOLELY IN THE INTERESTS OF THE SERVICE , THE AUTOMATIC RESULT OF WHICH IS THAT HE IS ENTITLED TO THE INSTALLATION ALLOWANCE UNDER THE CONDITIONS LAID DOWN IN THE STAFF REGULATIONS WHEN HE RETURNS TO BRUSSELS .

11IN PROVIDING THAT ANY APPOINTMENT OR TRANSFER MUST BE MADE SOLELY IN THE INTERESTS OF THE SERVICE , ARTICLE 7 OF THE STAFF REGULATIONS DOES NOT PREVENT THE COMPETENT AUTHORITIES FROM TAKING INTO ACCOUNT THE PERSONAL WISHES OF THOSE CONCERNED .

12THE COMPETENT AUTHORITIES HAVE THE POWER , IN THE INTERESTS OF GOOD ADMINISTRATION AND , WHERE NECESSARY , THE DUTY , OF WHICH ARTICLE 24 IS ONLY AN EXAMPLE , TO TAKE ALL TEMPORARY MEASURES WHICH ARE NOT LIKELY TO HAVE AN ADVERSE EFFECT ON THE FUNCTIONING OF THE INSTITUTION TO ENABLE AN OFFICIAL TO OVERCOME HIS PERSONAL DIFFICULTIES .

13IT FOLLOWS CLEARLY FROM THE FILE THAT THE DIRECTOR OF PERSONNEL POSTED THE APPLICANT TO PETTEN IN AUGUST 1975 AND ALSO TO BRUSSELS IN MAY 1976 IN THE EXERCISE OF THAT POWER AND THAT THOSE POSTINGS WERE MADE ' ' IN THE INTERESTS OF THE SERVICE ' ' IN THE BROAD MEANING OF THE TERM .

14IT WOULD BE MOREOVER CONTRARY TO THE PRINCIPLE OF NATURAL JUSTICE TO PERMIT THE APPLICANT , WHO HAS BEEN GRANTED A TRANSFER AT HIS EXPRESS REQUEST AND FOR PERSONAL REASONS , TO DISREGARD THAT FACT AND TO ATTRIBUTE HIS TRANSFER SOLELY TO THE REQUIREMENTS OF HIS POST .

15IT IS NECESSARY THEREFORE TO APPLY THE PROVISIONS OF THE STAFF REGULATIONS AND IN PARTICULAR THOSE OF ANNEX VII THERETO WHICH RELATE TO THE INSTALLATION ALLOWANCE IN THE LIGHT OF THE PARTICULAR FEATURES OF THE APPLICANT ' S SITUATION .

16UNDER ARTICLE 71 OF THE STAFF REGULATIONS , AN OFFICIAL IS ENTITLED , AS PROVIDED IN ANNEX VII , TO REIMBURSEMENT OF EXPENSES INCURRED BY HIM INTER ALIA ON TRANSFER .

17THE PROVISIONS OF SECTION 3 OF ANNEX VII TO THE STAFF REGULATIONS ON REIMBURSEMENT OF EXPENSES PROVIDE IN PARTICULAR , HAVING REGARD TO CERTAIN SPECIFIC AND CHARACTERISTIC SITUATIONS , FOR THE PAYMENT OF A STANDARD ALLOWANCE , SUCH AS THE INSTALLATION ALLOWANCE , WHICH SIMPLIFIES THE TASK OF THE ADMINISTRATION BY EXCLUDING THE NEED FOR THE LATTER TO EXAMINE THE EXPENSES ACTUALLY INCURRED BY AN OFFICIAL .

18THE SPECIFIC AND CHARACTERISTIC PURPOSE OF AN INSTALLATION ALLOWANCE IS TO ENABLE AN OFFICIAL TO BEAR , IN ADDITION TO REMOVAL EXPENSES , THE INEVITABLE EXPENSES INCURRED THROUGH INTEGRATING IN NEW SURROUNDINGS FOR AN INDETERMINATE BUT SUBSTANTIAL PERIOD OF TIME .

19WITH THIS IN MIND ARTICLE 5 ( 5 ) PROVIDES THAT AN OFFICIAL WHO HAS RECEIVED AN INSTALLATION ALLOWANCE MUST REFUND PART OF THE ALLOWANCE IF HE VOLUNTARILY LEAVES THE SERVICE OF THE COMMUNITIES WITHIN TWO YEARS .

20IT FOLLOWS THAT THE APPLICANT , WHO AT HIS OWN REQUEST WAS TRANSFERRED TWICE DURING A RELATIVELY SHORT TIME IN SPECIAL CIRCUMSTANCES WHICH AROSE AS A RESULT OF FAMILY DIFFICULTIES , CANNOT CONTEST THE VALIDITY OF THE DECISION OF THE COMMISSION WHICH CONSIDERED THAT UNDER THE PRINCIPLES OF THE PROPER MANAGEMENT OF PUBLIC FUNDS HE CANNOT BE GRANTED A SECOND INSTALLATION ALLOWANCE CONSIDERABLY IN EXCESS OF THE EXPENSES WHICH HE ACTUALLY INCURRED .

21THE APPLICATION MUST THEREFORE BE DISMISSED .

Decision on costs

COSTS

22UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

23THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .

24HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE THE INSTITUTIONS SHALL BEAR THEIR OWN COSTS IN PROCEEDINGS BROUGHT AGAINST THEM BY SERVANTS OF THE COMMUNITIES .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION .

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .