JUDGMENT OF 9. 11. 1978 — CASE 140/77 VERHAAF v COMMISSION

In Case 140/77

THE COURT (Second Chamber), composed of: Lord Mackenzie Stuart, President of Chamber, M. Sørensen and A. Touffait, Judges, Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

IV — Oral procedure

Decision

Costs

I —. Facts and written procedure

II —. Conclusions of the parties

1. Annul the implied decision rejecting his administrative complaint of 20 April 1977;

2. Annul the decision of the Director of Personnel of 21 January 1977 to the extent to which it refuses the grant of a standard installation allowance;

3. Rule that the applicant is entitled to receive the abovementioned installation allowance as from the date on which he settled in Overijse;

4. Order the defendant to pay the above-mentioned installation allowance;

5. Rule that the conduct of the defendant has moreover caused the applicant material damage the amount of which the Court will fix at a sum equal to the interest at the legal rate calculated on the amount of the installation allowance from the date on which that allowance should have been paid until the date on which it is actually paid;

6. Order the defendant to pay the costs of the action, including lawyer's fees.

III —. Submissions and arguments of the parties

IV —. Oral procedure

1. The applicant, a Principal Administrative Assistant (Grade B 1) at Directorate-General LX of the Commission (Personnel and Administration) who, in 1975, was residing with his family in Brussels, submitted an urgent request to the Director of Personnel indicating that for personal reasons he was obliged to leave Brussels.

2. As a result of that request, the Director of Personnel posted the applicant, by decision of 11 November 1975, to the Joint Research Centre at Petten in the Netherlands for an initial period of six months as from 1 August 1975.

3. On 24 January 1976, once more at the request of the applicant, that posting was extended for a further period of six months, in other words from 1 February 1976 to 31 July 1976.

4. By memorandum of 22 March 1976, the applicant informed Mr Delauche, Assistant to the Director-General at Directorate-General IX, that he wished to return to Brussels in view of the fact that my private circumstances have become stable adding that I would ask you once more to take action to make my working life happier too. To achieve this I consider it necessary for me to return to Brussels — preferably within a short time.

5. The applicant was informed orally that this fresh request for a change of posting had been granted and he returned to Brussels on 17 May 1976.

6. This change was confirmed by decision of the Director of Personnel of 24 May 1976 terminating as from 17 May 1976 the applicant's posting to the establishment at Petten.

7. The applicant received in respect of his posting to Petten, in addition to reimbursement of his travel and removal expenses, appropriate daily subsistence allowances and a full installation allowance.

8. So far as his return to Brussels was concerned, the applicant also received travel and removal expenses but his request of 23 September 1976 for a second installation allowance submitted under Article 90 (1) of the Staff Regulations was rejected by memorandum of 21 January 1977 of the Director of Personnel although the latter stated that he was nevertheless ready to give my agreement that you should be reimbursed for expenses which you have actually incurred in respect of your return to Brussels up to the full amount of the installation allowance, of course.

9. It follows from the file that no adequate evidence was produced with regard to the installation costs actually incurred by the applicant, with the exception of certain minor expenses.

10. Nevertheless, the applicant who, in accordance with his reply does not deny that his posting to Petten … was in accordance with his personal wishes, invokes the second subparagraph of Article 7 (1) of the Staff Regulations of Officials which provides that: The appointing authority shall, acting solely in the interests of the service …, assign each official by appointment or transfer to a post in his category, so as to claim that his transfers must be considered as being solely in the interests of the service, the automatic result of which is that he is entitled to the installation allowance under the conditions laid down in the Staff Regulations when he returns to Brussels.

11. In providing that any appointment or transfer must be made solely in the interests of the service, Article 7 of the Staff Regulations does not prevent the competent authorities from taking into account the personal wishes of those concerned.

12. The competent authorities have the power, in the interests of good administration and, where necessary, the duty, of which Article 24 is only an example, to take all temporary measures which are not likely to have an adverse effect on the functioning of the institution to enable an official to overcome his personal difficulties.

13. It follows clearly from the file that the Director of Personnel posted the applicant to Petten in August 1975 and also to Brussels in May 1976 in the exercise of that power and that those postings were made in the interests of the service in the broad meaning of the term.

14. It would be moreover contrary to the principle of natural justice to permit the applicant, who has been granted a transfer at his express request and for personal reasons, to disregard that fact and to attribute his transfer solely to the requirements of his post.

15. It is necessary therefore to apply the provisions of the Staff Regulations and in particular those of Annex VII thereto which relate to the installation allowance in the light of the particular features of the applicant's situation.

16. Under Article 71 of the Staff Regulations, an official is entitled, as provided in Annex VII, to reimbursement of expenses incurred by him inter alia on transfer.

17. The provisions of Section 3 of Annex VII to the Staff Regulations on reimbursement of expenses provide in particular, having regard to certain specific and characteristic situations, for the payment of a standard allowance, such as the installation allowance, which simplifies the task of the administration by excluding the need for the latter to examine the expenses actually incurred by an official.

18. The specific and characteristic purpose of an installation allowance is to enable an official to bear, in addition to removal expenses, the inevitable expenses incurred through integrating in new surroundings for an indeterminate but substantial period of time.

19. With this in mind Article 5 (5) provides that an official who has received an installation allowance must refund part of the allowance if he voluntarily leaves the service of the Communities within two years.

20. It follows that the applicant, who at his own request was transferred twice during a relatively short time in special circumstances which arose as a result of family difficulties, cannot contest the validity of the decision of the Commission which considered that under the principles of the proper management of public funds he cannot be granted a second installation allowance considerably in excess of the expenses which he actually incurred.

21. The application must therefore be dismissed.

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

23. The applicant has failed in his submissions.

24. However, under Article 70 of the Rules of Procedure the institutions shall bear their own costs in proceedings brought against them by servants of the Communities.

On those grounds, THE COURT (Second Chamber) hereby:

1 Dismisses the application.

2 Orders the parties to bear their own costs.