Judgment of the Court (First Chamber) of 2 July 1981. - Cosimo Garganese v Commission of the European Communities. - Officials: Expatriation allowance. - Case 185/80.
European Court reports 1981 Page 01785
Summary
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Keywords
1 . OFFICIALS - APPLICATIONS TO THE COURT - ACT ADVERSELY AFFECTING AN OFFICIAL - CONCEPT - SALARY STATEMENT NOT MENTIONING EXPATRIATION ALLOWANCE - EXCLUSION
( STAFF REGULATIONS OF OFFICIALS , ARTS 90 AND 91 )
2 . OFFICIALS - LEAVE FOR MILITARY SERVICE - PERFORMANCE OF COMPULSORY MILITARY SERVICE - RETENTION OF RIGHTS UNDER STAFF REGULATIONS
( STAFF REGULATIONS OF OFFICIALS , ART . 42 )
3 . OFFICIALS - REMUNERATION - EXPATRIATION ALLOWANCE - CONDITIONS FOR GRANT - HABITUAL RESIDENCE OUTSIDE THE MEMBER STATE TO WHICH OFFICIAL POSTED - PERFORMANCE OF COMPULSORY MILITARY SERVICE - INTERRUPTION OF PERIOD OF RESIDENCE - WHETHER PERMISSIBLE
( STAFF REGULATIONS OF OFFICIALS , ART . 69 ; ANNEX VII , ART . 4 ( 1 ) ( B )
Summary
1 . A LEGAL MEASURE SUFFICIENT IN ITSELF IS CONSTITUTED BY A DECISION OF THE ADMINISTRATION WHICH CONTAINS A REASONED RESPONSE TO THE REQUEST OF AN OFFICIAL RELATING TO THE GRANT OF THE EXPATRIATION ALLOWANCE , WHICH IN NO WAY REFERS TO AN ALLEGED PREVIOUS EXPRESS OR IMPLIED DECISION REFUSING TO GRANT THE ALLOWANCE CLAIMED BY THE PERSON CONCERNED . IN VIEW OF SUCH A MEASURE , THE ABSENCE FROM THE MONTHLY SALARY SLIP OF A STATEMENT REGARDING THE ALLOWANCE IN QUESTION CANNOT BE ASSIMILATED TO A DECISION UNDER THE STAFF REGULATIONS ( REFUSING THAT ALLOWANCE ) CAPABLE OF CAUSING THE TIME FOR LODGING AN APPEAL REFERRED TO BY ARTICLES 90 AND 91 OF THOSE REGULATIONS TO START TO RUN .
2 . IT IS CLEAR FROM ARTICLE 42 OF THE STAFF REGULATIONS THAT THE LATTER DO NOT ALLOW AN OFFICIAL , AS THE RESULT OF HIS PERFORMING COMPULSORY MILITARY SERVICE , TO LOSE RIGHTS WHICH HE WOULD BE ABLE TO CLAIM IN THE ABSENCE OF SUCH SERVICE AND THEREBY PRECLUDE THE POSSIBILITY THAT THE DUTY TO PERFORM MILITARY SERVICE MAY PROVIDE A GROUND FOR UNEQUAL TREATMENT OF OFFICIALS DEPENDING ON WHETHER OR NOT THEY ARE REQUIRED TO PERFORM SUCH SERVICE OR ON WHETHER OR NOT THEY MAY BENEFIT FROM PROVISIONS EXEMPTING THEM FROM IT .
3 . IT IS IMPOSSIBLE TO REGARD THE PERFORMANCE OF COMPULSORY MILITARY SERVICE AS A VALID REASON FOR INTERRUPTING THE PERIOD OF HABITUAL RESIDENCE REFERRED TO BY ARTICLE 4 ( 1 ) ( B ) OF ANNEX VII TO THE STAFF REGULATIONS . A PERSON COVERED BY THAT PROVISION WHO , BEFORE ENTERING THE SERVICE OF A COMMUNITY INSTITUTION , WAS OBLIGED TO LEAVE HIS HABITUAL RESIDENCE IN ORDER TO FULFIL HIS NATIONAL MILITARY DUTIES IS ENTITLED TO HAVE THE PERIOD THUS SPENT IN THE ARMED FORCES TAKEN INTO ACCOUNT FOR THE PURPOSE OF ESTABLISHING HIS ENTITLEMENT TO THE EXPATRIATION ALLOWANCE PROVIDED FOR BY ARTICLE 69 OF THE STAFF REGULATIONS .