Opinion of Mr advocate-general Roemer

Mr President,

Members of the Court,

The proceedings which I am to discuss today are seen by the applicant as a continuation of an earlier case between the same parties (Case 17/68). I can therefore be brief in my summary of the facts.

As you know, the applicant was for a long time Head of the Transport Rates and Conditions Directorate of the Directorate General for Transport of the Commission of the EEC. On the merger of the executives of the three Communities the common Commission decided in the course of the restructuring of its departments to maintain only three of the four directorates concerned with transport. By a decision of 20 March 1968 three other officials were appointed heads of these three directorates. By a decision on the same date the Commission appointed the applicant to the post of Principal Adviser (in Grade A 2) in the Directorate General for Transport. Later, by a decision of 26 June 1968, the applicant's employment was terminated in accordance with Article 4 of Regulation No 259/68.

It was these two measures that the applicant contested in Case 17/68. His application met with success, for in the judgment of 6 May 1969 both the decision of 20 March 1968 on the appointment of the applicant to the post of Principal Adviser and the decision dismissing him from the service on 26 June were annulled.

The result of this was that the Commission was obliged to re-employ the applicant. According to the applicant this can only be done satisfactorily by appointing him to a director's post, preferably in the Directorate General for Transport. In fact on 1 October 1968 — as we already know from Case 17/68 — that Directorate General did lose a director who had reached retirement age so that a director's post became free. However, by a decision of the Commission of 15 January 1969 an A 3 official (a French national) was promoted to fill the post. When the applicant discovered this (according to him this happened in the oral pro ceedings for Case 17/68 on 25 February 1969), he protested by making a formal complaint to the Commission on 24 May 1969. In it he requested that the above-mentioned appointment to fill the post be annulled, naturally in the hope that he himself would be appointed to thé post. However, the Commission found a different solution for the applicant after the judgment of 6 May 1969. By a decision of 18 June 1969 it declared that the applicant was reinstated as an official with effect from 1 October 1968. But the applicant was not employed in a post as director, but again as a Principal Adviser in Grade A 2 in the Directorate General for Transport. Of this he was informed by a letter from the President of the Commission of 22 July 1969 received by him on 25 July 1969. At the same time he was informed that his complaint of 24 May 1969, requesting the annulment of the appointment of another official to the post of Director in the Directorate General for Transport, had, in the opinion of the Commission, lost its purpose.

It remains to be noted as to the facts of the case that the applicant on being reinstated claimed the fixed reimbursement of travel expenses within Brussels under Article 15 of Annex VII to the Staff Regulations for the period from 1 October 1968 to 30 July 1969, 10 months in all. Following the refusal of the financial controller to approve this on 19 June 1969, however, the Commission decided in the course of its meeting of 9 and 10 July 1969 not to accord this allowance. The result of the foregoing incidents was that Mr Reinarz brought an application before the Court of Justice on 26 September 1969, submitting to us the following claims:

A further claim that the Commission should be ordered to pay damages to the extent of one million Bfrs was dropped by the applicant in the course of the oral proceedings.

Let us proceed to examine these claims, all considered unfounded by the Commission, to see how they must be decided.

Legal Consideration

1. As I have already indicated, no objection was taken as to the admissibility of the application. Nor are there any indications that the Court should object of its own motion. This applies as regards observance of the time-limits fixed, as will be seen from a simple comparison of the dates: in this respect the important times are, of course, the dates on which the relevant documents came to the notice of the applicant or he was notified of them and the date on which the appeal through official channels was introduced. So far as doubts were raised as to the admissibility of certain submissions, I shall consider this in connexion with the examination of the relevant complaints. Now I can proceed directly, without further preliminary remarks, to examine the substance of the case.

2. First comes the claim for the annulment of the decision of 18 June 1969 appointing the applicant a Principal Adviser in the Directorate General for Transport. Two grounds were given for this in the application. The applicant claims that the issue of the contested decision did not correctly comply with the judgment of the Court of Justice of 6 May 1969. In addition to that the duties of a Principal Adviser are not equivalent to those of a director and therefore the applicant should not be appointed a Principal Adviser when earlier he had fulfilled the duties of a director.

3. In this second claim the applicant seeks the annulment of the decision of the Commission of 15 January 1969 appointing another official, by way of promotion, to one of the three posts of director in the Directorate General for Transport.

4. Finally the last claim concerns the applicant's entitlement to the fixed reimbursement of the expenses of travel within Brussels, to which he thinks he is entitled under Article 15 of Annex VII to the Staff Regulations for the ten months during which he was not in the service of the Commission. The applicant justifies his claim with the argument that the abovementioned provision is designed not merely to cover travel expenses actually incurred but rather to compensate for depreciation in the value of a private vehicle and to a certain extent to cover representation costs. Yet again, however, we must support the Commission's view against that of the applicant. Quite apart from certain technical differences to be found between the French text of the provision and the German version and on which the applicant lays great emphasis, I have not the slightest doubt that Article 15 of Annex VII to the Staff Regulations is concerned exclusively with reimbursement of expenses incurred, as is shown in any case by the heading under which it comes. If this is so the answer to the present question is quite simple. Once it can be shown that an official — like the applicant — has not been employed on active service for a considerable length of time, there can be as little question of giving him financial compensation, which amounts to nothing other than an allowance to cover the absence of a service vehicle, as of placing at his disposal a service car with retroactive effect. Nor can this be contradicted by the generous administrative practice of the Commission, according to which compensation under Article 15 is paid in the event of an absence from Brussels of several months' duration (for instance in the event of a holiday abroad or sickness leave). That is justified in view of the possibility in such cases that the relevant official could be called back to his place of employment for special reasons, thus involving journeys within the boundaries of the town where (the officials) are employed, as mentioned in Article 15. Such eventualities could not, however, arise in the case of an official whose active service had been terminated, not even retroactively after his resumption of service. This essential difference of fact must prevent the applicant from being able to rely on the administrative practice he refers to to support his claim.

5. Summary

My opinion on the claims still pursued is thus as follows :

Whilst the application is undoubtedly admissible it must be dismissed in its entirety as unfounded. This brings with it the consequence that the applicant himself must pay the costs of the proceedings.

1 Translated from the German.