CELEX: 62001CC0217
Language: en
Date: 2002-09-19
Title: Opinion of Mr Advocate General Tizzano delivered on 19 September 2002. # Michel Hendrickx v European Centre for the Development of Vocational Training (Cedefop). # Appeal - Officials - Resettlement Allowance - Action which has become devoid of purpose - No need to adjudicate. # Case C-217/01 P.

OPINION OF ADVOCATE GENERALTIZZANO delivered on 19 September 2002 (1)
         Case C-217/01 P Michel HendrickxvCedefop
            ((Appeal against a decision of the Court of First Instance – Staff regulations – Resettlement allowance – Action which has become devoid of purpose))
            
      
         
      1.  In these proceedings Mr Michel Hendrickx, an official of the Council of the European Union, asks the Court of Justice to set
      aside the order of the Court of First Instance (Fifth Chamber) of 12 March 2001 in Case T-298/00  
       Hendrickx  v  
       Cedefop  (not published in the ECR) (
      the contested order) and the decision of the Centre européen pour le développement de la formation professionnelle (
      Cedefop or  
      the Centre) which was unsuccessfully challenged in those proceedings.
      
      2.  By the contested order the Court of First Instance declared that the action brought by Mr Hendrickx to have set aside that
      decision of Cedefop rejecting his request for payment of a resettlement allowance which he had made upon his return to Brussels
      (Belgium) after having worked on a temporary contract for the Centre at Thessalonika (Greece) had become devoid of purpose.
       Legislative framework
      
      3.  Article 20 of the Staff Regulations of officials of the European Communities (
      the Staff Regulations) provides:An official shall reside in the place where he is employed or at no greater distance therefrom as [sic] is compatible with
      the proper performance of his duties.
      
      4.  Article 24 of the Conditions of employment of other servants of the European Communities (
      the Conditions of Employment) provides as follows: 
      1.  A member of the temporary staff engaged for a fixed period of not less than one year, or deemed by the authority referred
      to in the first paragraph of Article 6 to be engaged for an equivalent period if his contract is for an indefinite period,
      shall receive an installation allowance as provided in Article 5 of Annex VII to the Staff Regulations amounting, for an expected
      period of service of:
      
      
      ─
      not less than one year but less than two years, to one third of the rate laid down in Article 5 of Annex VII to the Staff
      Regulations  
      
      
      
      ─
      not less than two years but less than three years, to two thirds of the rate laid down in Article 5 of Annex VII to the Staff
      Regulations  
      
      
      
      ─
      three years or more, to three thirds of the rate laid down in Article 5 of Annex VII to the Staff Regulations.  
      
      
      2.  The resettlement allowance provided for in Article 6 of Annex VII to the Staff Regulations shall be granted to temporary staff
      who have completed four years' service. A servant who has completed more than one year's but less than four years' service
      shall receive a resettlement allowance proportionate to his length of service, incomplete years being disregarded.
      
      
      5.  Article 5 of Annex VII to the Staff Regulations provides: 
      1.  An installation allowance equal to two months' basic salary in the case of an official who is entitled to the household allowance
      or to one month's basic salary in other cases shall be paid to an established official who qualifies for expatriation allowance
      or who furnishes evidence of having been obliged to change his place of residence in order to comply with Article 20 of the
      Staff Regulations. ...The installation allowance shall be weighted at the rate fixed for the place where the official is employed....
      
      
      6.  Article 6 of Annex VII to the Staff Regulations provides: 
      1.  An established official who satisfies the requirements of Article 5(1) shall be entitled on termination of service to a resettlement
      allowance equal to two months' basic salary in the case of an official who is entitled to the household allowance or to one
      month's basic salary in other cases, provided that he has completed four years of the service and does not receive a similar
      allowance in his new employment. For the purpose of calculating his service, account shall be taken of years spent in any administrative status listed in Article 35
      of the Staff Regulations other than leave on personal grounds. ...The resettlement allowance shall be weighted at the rate fixed for the place where the official was last employed.
      
      
      7.  Under Article 85 of the Staff Regulations:  
      Any sum overpaid shall be recovered if the recipient was aware that there was no due reason for the payment or if the fact
      of the overpayment was patently such that he could not have been unaware of it.
      
      8.  Article 90 of the Staff Regulations provides: 
      1.  Any person to whom these Staff Regulations apply may submit to the appointing authority a request that it take a decision
      relating to him. The authority shall notify the person concerned of its reasoned decision within four months from the date
      on which the request was made. If at the end of that period no reply to the request has been received, this shall be deemed
      to constitute an implied decision rejecting it, against which a complaint may be lodged in accordance with the following paragraph.
      
      2.  Any person to whom these Staff Regulations apply may submit to the appointing authority a complaint against an act adversely
      affecting him, either where the said authority has taken a decision or where it has failed to adopt a measure prescribed by
      the Staff Regulations ... The period shall start to run:...
      
      
      ─
      on the date of expiry of the period prescribed for reply where the complaint concerns an implied decision rejecting a request
      as provided for in paragraph 1.  
      The authority shall notify the person concerned of its reasoned decision within four months from the date on which the complaint
      was lodged. If at the end of that period no reply to the complaint has been received, this shall be deemed to constitute an
      implied decision rejecting it, against which an appeal may be lodged under Article 91.
      
      
      9.  Next, Article 91 provides that: 
      1.  The Court of Justice of the European Communities shall have jurisdiction in any dispute between the Communities and any person
      to whom these Staff Regulations apply regarding the legality of an act adversely affecting such person within the meaning
      of Article 90(2).
      
      2.  An appeal to the Court of Justice of the European Communities shall lie only if:
      
      
      ─
      the appointing authority has previously had a complaint submitted to it pursuant to Article 90(2) within the period prescribed
      therein, and  
      
      
      
      ─
      the complaint has been rejected by express decisions or by implied decision.  
      ...
      
       Background and proceedings before the Court of First Instance
      
      10.  The facts giving rise to this action are adequately set out in paragraphs 2 to 10 of the contested order; I shall therefore
      note only some essential points, leaving the rest to be gleaned from the order.
      
      11.  Mr Hendrickx, an official of the Council resident in Brussels, was seconded at his own request to Cedefop, Thessalonika, to
      which he was transferred, working for a year and a half from 1 January 1997 under a contract as a member of the temporary
      staff. By reason of that transfer he was entitled to an installation allowance payable by Cedefop in accordance with Article 24(1)
      of the Conditions of Employment.
      
      12.  When that contract came to an end and after enjoying a period of leave, the applicant resumed service with the Council and
      returned to Brussels. On 22 July 1999 he informed the Director of Cedefop of his resettlement and made a request to the Centre's
      appointing authority for the payment of the relevant resettlement allowance.
      
      13.  On 22 November 1999, at the expiry of the period of four months prescribed by Article 90(1) of the Staff Regulations, Mr Hendrickx's
      request had to be regarded as having been impliedly refused. On 18 February 2000 he lodged a complaint against that implied
      refusal pursuant to Article 90(2) of the Staff Regulations. That complaint, in turn, was impliedly refused by the appointing
      authority, which took no decision within the prescribed period of four months. In consequence, on 18 September 2000, Mr Hendrickx
      brought an action before the Court of First Instance against this implied refusal (
      the contested decision).
      
      14.  On 14 November 2000 the Director of Cedefop took a new decision awarding the applicant the requested resettlement allowance
      in the sum of GRD 908 485 pursuant to Article 24(2) of the Conditions of Employment. By the same decision, but pursuant to
      Article 24(1) of the Conditions of Employment and Article 85 of the Staff Regulations, the Director of Cedefop required the
      recovery of a sum equal to GRD 1 213 572 which had been overpaid to the applicant by way of a resettlement allowance at the
      time he took up service in Thessalonika, since his service there turned out to be less than the period of four years upon
      which the allowance had initially been calculated. Balancing out therefore the amounts paid as debits and credits, the decision
      required Mr Hendrickx to pay the difference, an amount of GRD 305 087.
      
      15.  The decision was produced in the proceedings by Cedefop which asked the Court of First Instance to rule that the action had
      become devoid of purpose. Mr Hendrickx opposed that request and, arguing that the new decision in part replaced the contested
      one, sought leave to amend the form of order originally sought in the action.
      
      16.  By the contested order the Court of First Instance found that the decision of 14 November 2000 in fact gave the applicant
      what he was seeking to obtain by his action, as a result of which he had no legal interest in bringing proceedings, and consequently
      declared that the action had become devoid of purpose.
       The appeal before the Court of Justice
       The parties' submissions
      
      17.  In the present proceedings, with his appeal which, I must confess, does not fall into the error of excessive clarity, the
      appellant challenges the order of the Court of First Instance and brings two claims before the Court. The main one seeks the
      annulment of the contested order and leave to amend the heads of claim in the action at first instance to take account of
      the decision of the Director of Cedefop of 14 November 2000. The alternative, though in reality better seen as a further,
      separate claim, seeks a declaration from the Court that the abovementioned decision of Cedefop was adopted by an authority
      lacking competence, and therefore seeks to have the decision set aside, and an order that the defendant should pay the appellant
      BEF 361 292, by way of resettlement allowance, together with interest and the costs of the proceedings before both courts.
      
      18.  In support of his claims, the appellant submits that the Court of First Instance erred in law by ruling that the decision
      of 14 November 2000 accepted his request for a resettlement allowance without, however, ascertaining whether the amount given
      to him was that to which he was entitled. Moreover, in the appellant's view, before giving the disputed ruling, the Court
      of First Instance ought to have ascertained whether that decision was lawful, with regard to the recovery of the alleged overpayment
      to Mr Hendrickx and the corresponding setting off.
      19.  
      
      As a
         
       second claim,  
      in the alternative, but clearly in support of the first claim described by the appellant as the principal claim, he alleges an error of law
      on the part of the Court of First Instance in refusing to allow him to amend his heads of claim to take account of the new
      decision. The latter, he argues, merely confirms the contested decision and therefore, according to the case-law, 
      
         			(2)
         		 replaces it thereby constituting the new matter, which, in accordance with Article 42(2) of the Rules of Procedure, may allow
      the party to make consequential changes to his heads of claim and pleas in law. The appellant claims in particular that he
      ought to be allowed to argue that the decision of 14 November 2000 prejudices his rights under Article 20 of the Staff Regulations,
      Articles 5 and 6 of Annex VII thereto, and also under Article 24(2) of the Conditions of Employment in respect both of the
      fixing of the resettlement allowance and of the recovery of the overpayment of the installation allowance.
      
      
      
      
      
      20.  As has been seen, Mr Hendrickx claims  
      in the alternative (though he describes it as the  
      principal claim) that the President of Cedefop lacked competence to adopt the decision of 14 November 2000. In essence, he argues that, once
      the administrative complaint under Article 90(2) had been made, that body was no longer competent to determine a request made
      in accordance with Article 90(1).
      
      21.  First and foremost, Cedefop counters that Mr Hendrickx does not have a legal interest in bringing proceedings, given that
      the decision of 14 November 2000 accepted his requests in their entirety. The appeal is therefore inadmissible.
      
      22.  As to the substance, and in the alternative, the action is in any event unfounded. In contrast to the position maintained
      by Mr Hendrickx, the decision of 14 November 2000 was taken by a competent authority. The fact that the appellant had made
      a complaint in accordance with Article 90(2) of the Staff Regulations against the implied refusal of his request for a resettlement
      allowance does not strip the President of Cedefop of competence to rule on that request under Article 90(1) of the regulations.
      Moreover, he made his decision only after the administrative procedure had been exhausted, inasmuch as the appeal had been
      impliedly dismissed by the competent committee within the Centre.
      
      23.  As to the appellant's application to adjust his heads of claim to the decision of 14 November 2000, Cedefop contends that
      the case-law cited by the appellant is not applicable in this case, given that the decision is not only not confirmatory of
      the contested one, but it also in fact accords to the appellant precisely the allowance which the latter decision refused
      him. Moreover, it contains two further decisions whose subject-matter is quite distinct from that of the contested decision
      since they relate, in the first case, to the recovery of the sum overpaid to the appellant by way of installation allowance
      and, in the second case, to the setting off of the reciprocal credit and debit amounts existing between the two parties. For
      the Court of First Instance to have allowed the appellant to extend the subject-matter of the dispute to encompass the new
      decisions just referred to would have meant permitting him to avoid the obligation of making a prior complaint under Article 90(2)
      of the Staff Regulations. For this reason too, therefore, Cedefop asks that the appeal be declared unfounded. 
       Assessment
       Introduction
      
      24.  Notwithstanding the ambiguities of the appeal which have been pointed out, I shall examine the  
      principal plea and  
      alternative plea separately.
      
      25.  So as to attempt to bring some small degree of order to the intricate disentangling of the arguments, I think it opportune
      to note that in my view the decision of the Director of Cedefop of 14 November 2000 is to be seen as a complex act. It consists
      as a matter of fact of three distinct decisions: a decision on the resettlement allowance, paying credit claimed as such by
      the appellant from Cedefop; a decision on the installation allowance and the recovery of the overpayment of  that allowance;
      a decision on the setting off of reciprocal debits and credits between the parties, as determined by that decision.
       The  
      principal plea
      
      26.  I note that the appellant seeks as his  
      principal claim the setting aside of the contested order, on the basis that it did not allow him to amend his pleadings to take account of
      the  
      new decision which replaced the decision forming the subject-matter of the Court of First Instance's decision, both in respect
      of the part of the decision relating to the resettlement allowance and of the part relating to the installation allowance
      and the consequential setting off. Within the principal claim, therefore, two parts may be distinguished, which call for separate
      consideration which I shall deal with in order.
       (a) The part relating to the installation allowance
      
      27.  As to this head of claim, I would point out at the outset that I am not at all convinced by Cedefop's argument that, given
      that the order takes formal note of a decision favourable to the appellant (the decision specifically awarding him the resettlement
      allowance), the appellant no longer has a legal interest in challenging it, for he is not an unsuccessful party within the
      meaning of Article 49 (now Article 56) of the EC Statute of the Court of Justice. 
      
         			(3)
         		 It seems to me, in fact, that the possibility that the allowance in question was assessed incorrectly, causing loss to the
      appellant, may give rise to his having an interest in bringing proceedings. This is, moreover, precisely what appears to emerge
      from the generic and confused complaint about a violation of rights which the appellant seems to make against the decision
      which forms the basis of the order (see paragraph 19 above).
      
      28.  Nor do I find convincing Cedefop's further argument that, in respect of the allowance in question, the decision of 14 November
      2000 does not constitute a new factor enabling the appellant ─ in accordance with Community case-law ─ to amend his pleadings, 
      
         			(4)
         		 because it is hard to deny that the decision of 14 November 2000 constitutes a  
      new factor. Having said that, however, I consider that it is not necessary to dwell on that point since, in my view, the contested order
      is justified by the fact that the declaration that the action had become devoid of purpose is the necessary consequence of
      the manner in which the applicant had conducted the proceedings at first instance.
      
      29.  Indeed, on that occasion, Mr Hendrickx was given the opportunity of making observations on Cedefop's decision of 14 November
      2000 and on the consequent objection of the defendant that the action had become devoid of purpose. Nevertheless, he confined
      himself to opposing, without giving any reasons, the making of the order taking formal note that the action had become devoid
      of purpose. Rather, Mr Hendrickx was primarily concerned with requesting the Court of First Instance for leave to amend his
      pleadings without however offering reasons for that request or at the very least indicating the amendments he intended to
      make to his pleadings. It is apparent from the case-file that Mr Hendrickx did not argue on that occasion that his rights
      had been infringed, nor did he dispute the competence of the authority which took the new decision.
      
      30.  However, I must note that in accordance with Article 38(1) of the Rules of Procedure of the Court of Justice, the subject-matter
      of the proceedings is to be stated in the application; Article 42(2) of those rules lays down that no new pleas may be introduced,
      save in the exceptional circumstances provided for therein, in which matters of law or fact which come to light in the course
      of the procedure justify a derogation from that prohibition. The party intending to make use of this exceptional opportunity
      must, moreover, put forward its new pleas in law at the same time as it lodges its application for them to be admitted: this
      is, indeed, the only possible construction of the content of the last subparagraph of Article 42(2), which states that  
      [t]he decision on the admissibility of the plea shall be reserved for the final judgment. Since, in the circumstances of this case, Mr Hendrickx never indicated before the Court of First Instance what new pleas
      he sought to introduce, his request clearly had to be held to be irregular and devoid of purpose. As such, it could not fittingly
      serve to broaden the subject-matter of the proceedings, because the latter cannot go beyond the applications and pleadings
      which the parties have put before the Court.
      
      31.  In such a situation it is quite clear that the Court of First Instance could not have allowed the proceedings to continue,
      giving the appellant leave (even supposing the conditions to have been satisfied) to amend his original pleadings in a sense
      of which he had given no further details, in relation to an unforeseen act which not only granted him what he had asked for
      but to which, in addition, he took care not to make specific objections. 
      
      32.  I conclude that this appeal, in so far as it contends that the Court of First Instance erred in law in not allowing the appellant
      to amend his pleadings to take account of the unexpected decision granting him the resettlement allowance, is manifestly unfounded.
      
      (b) The part relating to recovery of the overpayment
      
      33.  I now turn to the request for the contested order to be set aside inasmuch as it did not allow the appellant to amend his
      pleadings to take account of the decision on the recovery of the overpayment by way of installation allowance contained in
      the decision of 14 November 2000. It seems to me that this part of the appeal has in reality the effect of broadening the
      subject-matter of the proceedings in a way which is irregular and wrongful.
      
      34.  The appellant seeks to argue before the Court that the decision on the overpayment of the installation allowance was unlawful,
      without there being evidence of that argument's having been made before the Court of First Instance. In particular, no evidence
      whatsoever is to be found in the document in which the appellant made submissions in relation to the defendant's argument
      that the action had become devoid of purpose and requested leave to amend his original pleadings.
      
      35.  Therefore, to allow Mr Hendrickx now to amend his pleadings in the manner indicated would entail the result pointed out in
      recent Community case-law:  
      to allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before
      the Court of First Instance would be to allow it to bring before the Court, whose jurisdiction in appeals is limited, a case
      of wider ambit than that which came before the Court of First Instance. 
      
         			(5)
         		
      36.  What we find, therefore, in this situation, unlike that previously examined, is not just that the appeal is unfounded: it
      is a case of manifest inadmissibility which must be declared so by the Court of its own motion.
      
      37.  I conclude therefore that this appeal, in so far as it challenges the contested order for not having given the appellant leave
      to amend his pleadings to take into account the decision of 14 November 2000 relating to the recovery of overpayment of the
      installation allowance, must be declared manifestly inadmissible.
       As to the competence of the Director of Cedefop
      
      38.  Finally, as regards the claim made by the appellant in the alternative ─ but based on that which the appellant himself describes
      as the  
      principal claim ─ for a declaration that the decision of 14 November 2000 was taken by an authority lacking competence, I would observe only
      that it was raised for the first time when challenging the order of the Court of First Instance. This claim too must therefore
      be rejected as manifestly inadmissible.
       Costs
      
      39.  In accordance with Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they
      have been applied for in the successful party's pleadings. As the defendant has applied for costs and as Article 70, which
      provides that the institutions are to bear their own costs in proceedings between the Communities and their servants, cannot
      be relied upon in this type of case, since, in accordance with Article 122 of those rules, it applies only to appeals brought
      by the institutions, I propose that Mr Hendrickx should be ordered to pay the costs of the proceedings before this Court.
        Conclusion
      
      40.  In the light of the foregoing, I propose that the Court should dismiss the appeal against the order of the Court of First
      Instance as in part manifestly inadmissible and in part manifestly unfounded, and order the appellant to pay the costs incurred
      by Cedefop in the proceedings before this Court.
      
       1 –
         
           Original language: Italian.
      
      2 –
         
         In particular, the appellant refers to Case 14/81  
             Alpha Steel  v  
             Commission  [1982] ECR 749, paragraph 8; Case 103/85  
             Stahlwerke Peine-Salzgitter  v  
             Commission  [1988] ECR 4131 paragraph 11; and Case T-23/96  
             De Persio  v  
             Commission  [1998] ECR-SC I-A-483 and ECR II-1413, paragraphs 32 to 34. 
         
      
      3 –
         
         According to which, I note,  
            [an] appeal [against final decisions of the Court of First Instance] may be brought by any party which has been unsuccessful,
            in whole or in part, in its submissions. 
         
      
      4 –
         
         See, in addition to  
             Alpha Steel  v  
             Commission , paragraph 8, Joined Cases 351/85 and 360/85  
             Fabrique de fer de Charleroi and Dillinger Hüttenwerke  v  
             Commission  [1987] ECR 3639, paragraphs 10 and 11, and  
             Stahlwerke Peine-Salzgitter  v  
             Commission , paragraph 11.
         
      
      5 –
         
         See Case C-274/00 P  
             Simon  v  
             Commission  [2002] ECR I-5999, paragraph 39. To the same effect, see also, Case C-136/92 P  
             Commission  v  
             Brazzelli Lualdi and Others  [1994] ECR I-1981, paragraph 59; Case C-7/95 P  
             John Deere  v  
             Commission  [1998] ECR I-3111, paragraph 62; and Case C-321/99 P  
             ARAP and Others  v  
             Commission  [2002] ECR I-4287, paragraph 112.