ORDER OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

20 August 1998

Case T-132/97

Michael Collins

v

Committee of the Regions of the European Union

‛Probationary officials — Daily subsistence allowance — Period in respect of which granted — Action manifestly unfounded’

Full text in English II-1379

Application for:

annulment of a decision of the Committee of the Regions refusing to pay the applicant the daily subsistence allowance provided for in Article 10 of Annex VII to the Staff Regulations for the entire period of his probation plus one month.

Decision:

Application dismissed.

Abstract of the Order

The applicant entered the service of the Committee of the Regions on 1 March 1995, as a member of the temporary staff. On 3 April 1996 he was appointed a probationary official in the Legal Affairs Unit of the Directorate for Administration, Personnel, Finance and Legal Affairs and for the Registry, with effect from 16 April 1996. His probationary period came to an end on 15 January 1997.

By letter to the Committee of the Regions of 2 July 1996, the applicant complained that the Committee of the Regions had failed to apply Article 10 of Annex VII to the Staff Regulations of officials of the European Communities (‘the Staff Regulations’) by not granting him the daily subsistence allowance on his entry into service as a probationary official.

On 22 October 1996 the Committee of the Regions drew up a statement of the applicant's daily subsistence allowance entitlement as a probationary official, fixing the period in respect of which that allowance was granted at 120 days.

By letter of 9 January 1997 to the Committee of the Regions, citing as its subject-matter his complaint of 2 July 1996, the applicant pointed out that he had requested the application of Article 10 of Annex VII to the Staff Regulations with regard to payment of the daily subsistence allowance. He further asserted that, as a probationary official, he was entitled to the daily subsistence allowance for the whole of his probationary period plus one month.

By letter of 24 January 1997 the Committee of the Regions informed the applicant that his complaint had been rejected in so far as it sought payment of the daily subsistence allowance for the whole of his probationary period.

Law

Under Article 111 of the Rules of Procedure, where an action is manifestly unfounded in law, the Court may, by reasoned order, give a decision on the action without taking further steps in the proceedings. In the present case, the Court considers that it has sufficient information from the documents before it. There is therefore no need to open the oral procedure (paragraphs 9 and 10).

Article 10(1) of Annex VII to the Staff Regulations provides that where an official furnishes evidence that he must change his place of residence in order to satisfy the requirements of Article 20 of the Staff Regulations, he is to be entitled to a daily subsistence allowance, the amount and duration of which are specified as follows:

‘(a) in the case of an official who is not entitled to the household allowance: 120 days;

(b) in the case of an official who is entitled to the household allowance: 180 days or, if the official is a probationer, the period of probation plus one month’

The issue in the action is confined to the question whether the applicant was entitled, solely by reason of his status as a probationary official, to payment of the daily subsistence allowance for the whole of his probationary period plus one month, even though he was not entitled to the household allowance (paragraph 38).

It is clear from Article 10 of Annex VII to the Staff Regulations that the period in respect of which the daily subsistence allowance is granted depends, in the first place, solely on whether the recipient is entitled to the household allowance. If he is not, then point (a) of the provision at issue applies and the period is 120 days. Only if the recipient is entitled to the household allowance does point (b) apply, distinguishing, in the second place, between probationary officials and other officials. The latter are entitled to receive the daily subsistence allowance for a period of 180 days and the former for the duration of their period of probation plus one month (paragraph 39).

That interpretation is consistent with the purpose of Article 10 of Annex VII to the Staff Regulations. The objective of the daily subsistence allowance is, inter alia, to compensate for the expenses and inconvenience occasioned in particular by the precarious situation of a probationary official who is required to reside at his place of employment while maintaining, on a provisional basis, his previous residence.

See: 280/85 Mouzourakis v Parliament [1987] ECR 589, para. 9; T-137/95 Mozzaglia v Commission [1996] ECR-SC II-1657, para. 46

Whilst the situation is equally precarious for probationary officials who are entitled to the household allowance and those who are not, and whilst that precariousness continues until they become established, it is none the less much more difficult, and also more risky, for a probationary official having a household within the meaning of the Staff Regulations to transfer that entire household to his place of employment than it is for a probationary official not having a household, within the meaning of the Staff Regulations, to move. Since those in the latter category will experience fewer difficulties in changing their residence, the authors of the Staff Regulations did not consider that they were required to maintain their previous residence, on a provisional basis, throughout their probationary period (paragraph 42).

In view of the differences between the situation of probationary officials who are entitled to the household allowance and the situation of those who are not, the wording of the provision at issue is not incompatible with the principle of nondiscrimination (paragraph 44).

Consequently, the application must be dismissed as manifestly unfounded in law.

Operative part:

The action is dismissed as manifestly unfounded in law.

Probationary officials — Daily subsistence allowance — Period in respect of which granted— Case manifestly lacking any foundation (ORDER OF 20. 8. 1998 — CASET-132/97 - COLLINS v COMMITTEE OF THE REGIONS) II-1379