JUDGMENT OF 30. 1. 1974 — CASE 148/73 LOUWAGE v COMMISSION

In Case 148/73

THE COURT (First Chamber) composed of: A. M. Donner, President of Chamber, R. Monaco and C. Ó Dálaigh (Rapporteur), Judges, Advocate-General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

Substance

First submission: infringement of Article 9 of Annex VII to the Staff Regulations

Second submission: infringement of Article 10 of Annex VII to the Staff Regulations

Grounds of judgment

The first claim

The second claim

Costs

I —. Facts and procedure

1. The husband and wife applicants, at present officials of the Commission of the European Communities in Brussels, formerly lived in Luxembourg where Mrs Louwage had been engaged on 15 July 1958 on the auxiliary staff of the secretariat of the Councils and on 1 November 1958 as an established official with the European Parliament.

2. On 25 October 1972 Mrs Louwage received a note from the Directorate of Social Affairs, signed by the Head of the Individual Rights and Privileges Division, in reply to the steps which she had taken to recover the removal expenses, the payment of the daily subsistence allowance and the installation allowance due to her husband and herself. In this note:

3. On 30 November 1972 the applicants submitted a complaint under Article 90 of the Staff Regulations to the Director-General of Administration seeking the annulment of the decisions contained in the note of 25 October, the reimbursement of the removal expenses (24600 BF) and the payment of the daily subsistence allowance to Mrs Louwage, for whom Brussels had always been an uncertain residence, since the family home had in fact remained established in Luxembourg.

4. Since there was no reply to this complaint, the applicants lodged the present appeal on 28 June 1973.

II —. Conclusions of the parties

1. annul the note of 25 October 1972;

2. order the Commission

3. declare that Mr Louwage rightfully received the daily subsistence allowance between 1 April and 27 September 1969, that the administration is not entitled to require reimbursement from him of the said allowance, nor to recover it by deductions from his salary, and that the conditions for recovery of undue payment provided for in Article 85 of the Staff Regulations are not fulfilled (the applicant subsequently accepted the undertaking on the part of the appointing authority to abandon all claim to reimbursement);

4. order the Commission to pay the costs.

1. reject as otiose and inadmissible the application by Mr Louwage for annulment of the decision of 25 October 1972 relating to the recovery of part of the daily subsistence allowance paid to him prior to 27 September 1969 (the applicant has accepted this);

2. reject as inadmissible and in any case unfounded the claim by Mr Louwage to an installation allowance equal to two months basic salary (the applicant has abandoned this claim);

3. reject as unfounded the claim by Mrs Louwage to complete reimbursement of the actual cost of removal from the common home as well as the claim to daily subsistence allowance for the period from 5 April 1971 to 27 January 1972;

4. reject as otiose and therefore inadmissible the application to which she is entitled, but which the defendant will show has recently been effected and in any case before judgment;

5. order the applicants to pay the costs (in the rejoinder, the defendant leaves this to the discretion of the Court).

III —. Submissions and arguments of the parties

1. By an application filed on 29 June 1973, the applicants have asked the Court to annul the decisions contained in a note from the Head of the Individual Rights and Privileges Division of 25 October 1972, refusing to apply for their benefit the provisions of Articles 5, 9 and 10 of Annex VII to the Staff Regulations.

2. During the course of the proceedings the applicants abandoned certain claims and others have been satisfied.

3. The two points remaining in dispute concern the claims of the second applicant to obtain on the one hand a refund of the removal expenses involved in her transfer from the European Parliament in Luxembourg to the Commission in Brussels and on the other hand the payment of subsistence allowance for the period from 5 April 1971, the date of her first provisional secondment to the Commission, to 27 January 1972, date of her removal.

4. The second applicant claims reimbursement of the whole of the expenses of removal of the common furniture, amounting to 24600 BF.

5. The defendant relies on the principle that, while reimbursement of the removal expenses is due to the two spouses, they are not each entitled to the whole, and therefore admits liability only for an amount equal to the difference between the actual cost of the removal and the daily subsistence allowance that the first applicant received as a fixed payment in advance made because he had not moved within a year after taking up his duties.

6. The first applicant received, as daily subsistence allowance, from 1 April 1969, date from which his establishment took effect, to 27 September 1969, a sum of 36000 BF, 14650 BF of which the defendant regards as representing the notional removal expenses.

7. In support of this argument the defendant refers to the terms of an internal directive of the Commission of 17 March 1971 according to which as from 5 March 1968where an official has been authorized to move but has not done so during the year following his establishment … he shall be entitled to daily subsistence allowance for an initial period of six months and thereafter from the seventh month for a maximum period of a further six months to the extent of the notional removal expenses.

8. By a note dated 14 May 1969 the administration authorized the first applicant to effect his removal within a period of one year as from the date his establishment took effect, i.e., before 1 April 1970.

9. The daily subsistence allowance referred to in Article 10 of Annex VII to the Staff Regulations is paid to an official who is head of household for a period of 180 days.

10. The said note of 14 May 1969 limited this allowance in the case of the first applicant to four months from the notification of the authorization to move, i. e., to 27 September 1969.

11. The afore-mentioned terms of the internal directive of the Commission imply that the first plaintiff was entitled to daily subsistence allowance for a period of six months, i.e., from 1 April 1969 to 1 October 1969, then as from the seventh month, to the extent of the amount of the notional removal expenses.

12. Although an internal directive has not the character of a rule of law which the administration is always bound to observe, it nevertheless sets forth a rule of conduct indicating the practice to be followed, from which the administration may not depart without giving the reasons which have led it to do so, since otherwise the principles of equality of treatment would be infringed.

13. The date from which the calculation of the first period of six months must be made is that of the establishment of the official.

14. The first plaintiff was established with effect from 1 April 1969.

15. The daily subsistance allowance must therefore be calculated from this date.

16. It is only from 1 October 1969 that it would have been paid to the extent of the notional removal expenses.

17. However it is not disputed that it has not been paid to the first applicant since 27 September 1969.

18. It is established therefore that the first applicant has never received any payment whatsoever as notional removal expenses.

19. As regards this claim the appeal succeeds.

20. The second applicant maintains that under Article 10 of Annex VII to the Staff Regulations, as it stood at the time, she is entitled to the benefit of daily subsistence allowance for the period between the date of her first secondment to Brussels and that of her removal.

21. This Article provides that where an official furnishes evidence that he cannot continue to reside in his own home and has not removed to the place where he is employed, he shall be entitled for not more than twelve months to a daily subsistence allowance . ...

22. The administration disputes that in the case in question the second applicant could not continue to reside in her home, which, as from her arrival in Brussels, was re-established in the small flat into which she moved with her husband.

23. The second applicant replied that the matrimonial home remained in Luxembourg, since a removal of the common furniture to Brussels could not be envisaged so long as her position remained that of a secondment.

24. Moreover, in not granting the second applicant the authorization to remove which she had requested, the administration had confirmed that it had not yet taken a decision regarding her.

25. The basis for daily subsistence allowance lies inter alia in the obligation on the part of the official to remove to a residence other than that which he occupied previously, without however being able to give up this latter.

26. The defendant has not established that such was not the case.

27. The fact that this official at the place of her secondment rejoined her husband, himself an official, in a provisional residence is not decisive, since it is established that their matrimonial home remained in Luxembourg.

28. So long, therefore, as the removal had not taken place, i.e., before 27 January 1972, the second applicant ought to have received the daily subsistence allowance within the limits provided for by the Staff Regulations.

29. Thus the appeal succeeds on the second claim.

30. Under the terms of Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

31. The defendant has failed in its submissions and must therefore pay the costs.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Staff Regulations, especially Articles 9 and 10 of Annex VII; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Article 69; THE COURT (First Chamber) hereby:

1 Annuls the decision by which the Commission refused the applicants reimbursement of removal expenses amounting to 24600 BF.

2 Annuls the decision by which the Commission refused to pay the second applicant daily subsistence allowance for the period between 5 April 1971 and 27 January 1972.

3 Orders the Commission to bear the whole of the costs of the proceedings.