JUDGMENT OF 1. 6 1961 CASE 15/60 SIMON v COURT

In Case 15/60

THE COURT composed of: N. Catalano (Rapporteur), President, O. Riese, L. Delvaux, J. Rueff and R. Rossi, Judges, Advocate-General: K. Roemer Registrar: H. J. Eversen, Deputy-Registrar

gives the following

JUDGMENT

Issues of fact and of law

I — Statement of the facts

II — Conclusions of the parties

III — Submissions and arguments of the parties

1. Admissibility

2. Substance

3. The lack of competence of the President of the Court of Justice

4. Infringement of vested rights

5. Infringement of Article 60 (2) of the Staff Regulations

IV — Procedure

Grounds of judgment

A — Admissibility

B — Substance

I

II

Costs

I —. Statement of the facts

1. The applicant was engaged by the Court as a stencil typist by letter of engagement dated 9 July 1953 and signed by him on 13 July 1953. By decision of the Court dated 17 July 1956 the provisions of the Staff Regulations of the Community were applied to him as an established official within the meaning of Article 2 (2) of the Staff Regulations.

2. In his report relating to the sixth financial period the auditor, having observed that the High Authority had, as opposed to the Court of Justice, decided to calculate the distance prescribed in Article 47 (3) of the Staff Regulations as the crow flies, drew the attention of the institutions concerned to the necessity of removing any lack of harmony in the matter and of choosing a criterion for uniform calculation.

3. This proposal was adopted by the Committee of Presidents at its meeting on 9 May 1960 and the Registrar of the Court informed the applicant by letter dated 8 July 1960 of the conditions on which his separation allowance would be absorbed. In reply to this notification the applicant sent a letter dated 22 July 1960 to the President of the Court in which he contested the legality of the decision taken with regard to him and asked that the matter be dealt with equitably.

II —. Conclusions of the parties

III —. Submissions and arguments of the parties

1. Admissibility

2. Substance

(a). With regard to the structure and spirit of the law it must be borne in mind that the separation allowance is intended to constitute additional salary for officials for whom the taking up of their duties with the Community involves a change in their mode and standard of living. By reason of this it is wrong to claim that the concept of this allowance is linked to that of the journey which the official has in fact made to return to his country of origin; this is all the more so in that, according to the terms of Article 9 of the Staff Regulations, officials must reside either in the place where they are employed or the immediate neighbourhood. The separation allowance with which Article 47 (3) of the Staff Regulations is concerned is basically intended to allow the official who, by reason of his taking up employment with the Community, has had to leave his original home and settle in a different place to overcome the difficulties involved in his expatriation. This, moreover, explains why the draft Staff Regulations of the EEC and Euratom have replaced the words separation allowance by expatriation allowance. The provision of Article 47 (3) is therefore based on the notion that the official has removed to a place where he is a foreigner and not that of the journey which the official must make each day to get to his place of work or home. As a result it is logical to conclude that the legal distance of 25 km provided for by this article must be calculated as the crow flies, a conclusion which has been adopted likewise by the EEC and Euratom which have granted the allowance in question to staff not living within a radius of 70 km from the centre of Brussels.

(b). The conclusions drawn by the applicant from a comparison of Article 16 (b) of the Provisional Staff Regulations and Article 47 (3) of the Staff Regulations do not appear to be well founded. In adopting the draft regulations the Committee of Presidents had at its eleventh meeting on 24 March 1955 taken the wording used by the said Article 16 (b) where the word used was radius. When a new draft was submitted to it by the President of the High Authority the Committee decided on 12 December 1955 (fourteenth meeting) to continue its work on the basis of this latter draft, Article 47 (3) of which relating to the separation allowance was drafted in a different manner from that adopted by the Committee in its previous draft. Not only had the word radius been replaced by the words at a distance not greater than … km, but the wording had been proposed in a positive instead of a negative form. The Committee then completed this draft taking the principle of continuous residence for a certain time and the criterion of 25 km already contained in its first draft.

3. The lack of competence of the President of the Court of Justice

4. Infringement of vested rights

5. Infringement of Article 60 (2) of the Staff Regulations

IV —. Procedure

A —. Admissibility

B —. Substance

1. The applicant's first complaint is that the Committee of the four Presidents has infringed Article 62 of the Staff Regulations because it has replaced Article 47 (3) of those Regulations by a provision of a completely different scope without complying with the formalities provided for in Article 62.

2. The applicant's second complaint is that the President of the Court of Justice was not competent to take the contested decision.

3. The applicant's third complaint is that the President of the Court has infringed a vested right.

4. Finally, the applicant claims an infringement of Article 60 (2) of the Staff Regulations which provides for the grant of a compensatory allowance to staff who by reason of Article 47 (3) no longer enjoy the separation allowance.

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to Article 58 of the Staff Regulations of the European Community of Coal and Steel; Having regard to Articles 47 (3), 60 (5) and 62 of the said Regulations; Having regard to the Protocols on the Statute of the Court of Justice of the ECSC, the EEC and Euratom; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Article 69, THE COURT hereby:

1 Annuls the decision of the President of the Court of Justice of the European Communities withdrawing the separation allowance granted to the applicant;

2 Orders the defendant to bear the costs.