Opinion of Mr advocate general Capotorti

Mr President,

Members of the Court,

1. Case 142/79 in which I am now giving my opinion is concerned with the rights of an official of the Communities to the payment of the daily subsistence allowance and reimbursement of removal expenses. These rights are governed respectively by Articles 10 and 9 of Annex VII to the Staff Regulations. However, the question to be considered for the moment is only that of the admissibility of the application and therefore I shall not concern myself with its merits.

2. Since there are two heads of claim in the complaint and the action (the right to the daily subsistence allowance and the right to reimbursement of removal expenses) it is necessary to consider the question of admissibility in relation to each head of claim separately. I shall commence, therefore, with the claim for the daily subsistence allowance.

3. The second argument put forward by the defendant is essentially based, as we have seen, on the letter sent by the applicant on 21 February 1978 to the Head of the Management and Staff Regulations Department in which she stated that she had discovered in the fiche d'accompagnement [accompanying document], which had been drawn up when she was appointed an official, that the daily subsistence allowance had been withdrawn and observed that this is quite contrary to the offer of employment dated 9 December 1977. The fiche d'accompagnement to which the applicant refers (which must not be confused with the monthly salary statement with which we have so far been concerned) is a slip of paper containing a number of particulars concerning the legal and financial status of the official; it lists inter alia a certain number of allowances included in the salary and notes against each yes or no according to whether they are due or not to the person in question. In the present case the document relating to Mrs Geronimo bore the hand-written note non in the appropriate box against the item indemnités journalières (a photocopy of the document has been produced by the applicant's counsel at the request of this Court).

4. Let us assume, however, that it is not sought to treat either the monthly salary statement or the fiche d'accompagnement drawn up by the administration when an official takes up his employment as acts adversely affecting an official which must therefore be challenged by a complaint to the administration in due time. Even in that case the administration complaint must be regarded as out of time and the application for daily subsistence allowance inadmissible in so far as there was another position adopted by the administration which could and ought to have been challenged but which the applicant did not contest. I refer to the letter which the Head of the Management and Staff Regulations Department sent to Mrs Geronimo on 11 October 1978 and thus more than four months before the complaint was lodged. In that letter the head of the department informed the applicant that the Heads of the Administrative Services, meeting on 15 September 1978 in order to resolve on a uniform basis problems common to the three institutions regarding staff relations, had agreed that it is not possible to recognize that there is a change of residence following the appointment as an official (such change being a necessary prior condition to the grant of daily subsistence allowance) when the official is already established in the place where he is to be employed two months before being engaged. The writer of the letter concluded by saying that he regretted therefore not being able to give a favourable answer to her request (relating to the daily subsistence allowance).

5. To meet the objection that her claim is out of time the applicant cites the letter from the Director-General for Administration, Personnel and Finance of 27 November 1978, to which I have just referred, as an act adversely affecting her. I do not, however, see how it is possible to maintain that the letter in question represented the first decision taken by the Administration on the right claimed by Mrs Geronimo. In fact it was in the nature of a repetition of the previous positions which, as has been seen, were well known to the applicant. The Director-General confined himself to informing the President of the Staff Committee of the position already adopted by his department regarding the claims of Mrs Geronimo without introducing any new factor, in fact merely referring to the decision of the Head of the Management and Staff Regulations Division dated 11 October 1978. Moreover, the letter was not addressed to the applicant: that confirms its character as mere information concerning the policy already adopted by the Administration and by the same token contributes to refuting the view that it is in the nature of a decision.

6. Let us now pass on to consider the admissibility of the action as regards the second head relating to the reimbursement of removal expenses. Under Article 9 of Annex VII to the Staff Regulations the right to such reimbursement is given to an official who is obliged to change his place of residence to comply with the requirement to reside in the place of his employment.

7. For all the foregoing reasons I conclude by proposing that the Court should declare the action brought on 12 September 1979 by Mrs Patrizia Geronimo, née Fonti, against the European Parliament is inadmissible. Having regard to the nature of the dispute it seems to me fair that the parties should bear their own costs.

1 Translated from the Italian.