JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

18 December 1997

Case T-222/95

Antonio Angelini

v

Commission of the European Communities

‛Officials — Change of place of employment — Return to the place of original employment — Installation allowance’

Full text in Italian II-1277

Application for:

annulment of the Commission's decisions refusing to pay the applicant an installation allowance on his return to his original place of employment following a period of employment outwith his institution.

Decision:

Annulment.

Abstract of the Judgment

The applicant, an official of the Commission employed at the Joint Research Centre, Ispra, was posted by decision of the Commission to the Iter Home Central Team, a non-Community body, in Garching (Germany) for the period 16 April 1993 to 31 December 1994. The applicant set up home with his wife in Garching, where he rented a furnished flat. For that purpose he received the daily subsistence allowance and the installation allowance provided for in Articles 5 and 10 of Annex VII to the Staff Regulations of Officials of the European Communities (Staff Regulations).

In January 1995 the applicant returned to Ispra, where he again set up home in his house. He requested the administration to pay him the allowances provided for in Articles 5 and 10 of Annex VII to the Staff Regulations by reason of his return to his original place of employment. The daily subsistence allowance was paid by the administrative services. By note of 17 May 1995 the applicant was informed of a Commission decision refusing to pay him the installation allowance.

The sole plea in law, alleging breach of Article 5(2) of Annex VII to the Staff Regulations

Recourse by the administration to a wrong legal basis constitutes an error of law, but such an error does not provide grounds for annulling the administrative decision in question where that choice, which is of a purely formal nature, has not had any decisive influence on the administration's assessment and therefore on the content of the contested decision. In the present case the choice of the legal basis for the applicant's temporary transfer to Garching did not have any decisive influence on the content of the contested decision (paragraphs 30 and 31).

See: C-268/94 Portugal v Council [1996] ECR I-6177, para. 79; T-75/95 Günzier Aluminium v Commission [1996] ECR II-497, para. 55

Since Article 5(1) of Annex VII provides for a flat-rate allowance, it follows that where it is established on the basis of the documents required by the second subparagraph of Article 5(3) that the official has settled at the place in question there is no requirement to show the existence of actual expenses (paragraphs 35 and 36).

See: 140/77 Verhaafv Commission [1978] ECR 2117, para. 20; Opinion of Advocate General Sir Gordon Slynn in 90/81 Burg v Court of Justice [1982] ECR 983, at 995; T-42/89 Yorck von Wartenburg v Parliament [1990] ECR II-31, para. 23; T-42/89 OPPO Parliament v Yorck von Wartenburg [1990] ECR II-299. para. 20; T-33/95 Lozano Palacios v Commission [1996] ECRSC II-1535, para. 62; T-74/95 Monteiro da Silva v Commission [1996] ECRSC II-1559, para. 62

Operative part:

The decision of the Commission, communicated by note of 17 May 1995, refusing payment to the applicant of the installation allowance is annulled.

The Commission is ordered to pay the applicant the amount of the allowance provided for in Article 5(3) of Annex VII to the Staff Regulations, together with interest at the rate of 8% per annum as from the date of the request.