C-137/79

JUDGMENT OF 11. 7. 1980 — CASE 137/79 KOHLL v COMMISSION

CELEX: 61979CJ0137
Datum: 1980-07-11
Källa: eur-lex.europa.eu

THE COURT (First Chamber) composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges, Advocate General: H. Mayras Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

1. The relevant Community rules

2. Facts

II — Conclusions of the parties

Primarily

In the alternative

In thefinther alternative

In any event

Ill — Submissions and arguments of the parties

A — Submission relating to the infringement of Article 97 (4) of the former Staff Regulations of Officials of the ECSC

B — Submission relating to the Commission's liability for a wrongful act

Decision

Submission relating to the infringement of the fourth paragraph of Article 97 of the former Staff Regulations of the ECSC

Submission relating to the Commission's liability for a wrongful act

Costs

I —. Facts and written procedure

1. The relevant Community rules

3. The amount of ... the separation allowance granted to servants who before taking up their duties resided continuously for more than six months in a place more than 25 kilometres from the seat; ...

(a). Officials who fulfil the conditions laid down in Article 47 (3) of the Staff Regulations are entitled to a separation allowance equal to 20% of their basic salary ...

(b). Officials who as a result of a new posting take up residence less than 25 kilometres from the place where they resided before their entry into the service lose the right to the allowance provided for in paragraph (a);...

1. An expatriation allowance shall be paid equal to 16% of the total amount of the basic salary plus household allowance and the dependent child allowance paid to the official,

2. Facts

II —. Conclusions of the parties

(a). Declare that according to the staff rules applicable to persons reengaged under the Staff Regulations of Officials of the ECSC, he is entitled to continuation of the local allowance;

(b). In that case, annul the decision rejecting his complaint and uphold the decision of 20 April 1978;

(a). To the extent to which the decision of 20 April 1978 is not upheld as being vitiated by error, declare that the Commission is liable for the administrative mistake and must provide compensation therefor;

(b). Fix the damages payable to the applicant at Lir 5250000 with interest according to law;

(c). In so far as neccessary, allow the applicant to prove by the evidence of expert witnesses the damage resulting from the loss of the allowance and the loss incurred on the sale price of his house at Tervuren;

Ill —. Submissions and arguments of the parties

A —. Submission relating to the infringement of Article 97 (4) of the former Staff Regulations of Officials of the ECSC

1. The applicant claims that under Article 97 (4) of the former Staff Regulations of Officials of the ECSC his entitlement to receive the expatriation allowance ought to have been allowed when he was transferred to Luxembourg with effect from 1 October 1978. In the case of an official who has been established pursuant to Article 93 of the ECSC Staff Regulations of 1962, a change in his place of employment preserves his entitlement to the allowance, even if he no longer fulfils the conditions laid down in Article 4 of Annex VII to the Staff Regulations. He must, however, have been entitled to receive the separation allowance under the former Staff Regulations of Officials of the ECSC. That requirement was satisfied as from the date of Mr Kohll's transfer to Brussels notwithstanding that whilst he was working in Luxembourg he did not meet the requirement as to distance. Secondly the person concerned must establish his residence 25 kilometres from his place of origin. This the applicant did, Ehnen being more than 25 kilometres from Dudelange.

2. The Commission replies that the applicant is not entitled to benefit from the transitional provisions in the fourth paragraph of Article 97. At no time during his first period of service in Luxembourg, which was governed by the ECSC Staff Regulations of 1956, was he able to draw the separation allowance because his place of residence at that time, Dudelange, was less than 25 kilometres from the institution in Luxembourg.

3. In his reply the applicant claims that the last requirement laid down in the fourth paragraph of Article 97, namely ... if the former Staff Regulations of Officials of the European Coal and Steel Community entitled him to the separation allowance, should not be understood as meaning actual enjoyment of a right but entitlement thereto. Such a right would have been present were it not for the condition attached to it, namely, previous residence at a distance of more than 25 kilometres from the seat of the institution. But, according to the fourth paragraph of Article 97, any change in the place of employment gives officials established under the terms of Article 93 of the ECSC Regulations a fresh entitlement to receive the allowance.

4. In its rejoinder the Commissiołi replies that there is no entitlement to a right unless the conditions for its enjoyment have been met. Mr Kohll cannot argue that Article 47 (3) of the ECSC Staff Regulations of 1956 entitled him to the separation allowance prior to 1962 for he never received it. The advantage conferred by the fourth paragraph of Article 97 may therefore only be claimed by officials who actually received the allowance, as is confirmed by the wording which has been used: entitled him to the separation allowance and not had entitled him.

B —. Submission relating to the Commission's liability for a wrongful act

1. By way of introduction, the applicant observes that, according to Articles 6 and 9 of the Decision of the Commission of 5 October 1977 relating to the exercise of the powers conferred on the appointing authority by the Staff Regulations of Officials, any decision concerning the application of the fourth paragraph of Article 97 of the former Staff Regulations of the ECSC or the application of Article 4 of Annex VII is a matter for the Head of the Division or the Head of a specialized department within the Directorate-General for Personnel and Administration. Mr Pratley is the Head of the specialized Individual Rights and Privileges Division.

2. The defendant replies that the note from Mr Pratley bears none of the features which have been identified by the Court as constituting a decision (cf. Case 54/65, Forges de Châtillon, [1966] ECR 185). The author of that note is not the authority competent to adopt a decision concerning the grant of an allowance to an official posted to Luxembourg: the decision of the Commission of 5 October 1977 shows in fact that that authority is Mr Schwering, Head of the Personnel Division in Luxembourg. The note cannot have any legal effect whatsoever as it relates to a purely hypothetical situation. It does not represent the termination of an internal procedure. It does not employ the word decision and the form in which it is drafted is not such as to give the impression that it had that nature.

3. In his reply to the Commission's argument concerning the note from Mr Pratley, the applicant cites the judgment in Case 54/77 (Herpels [1978] ECR 585) according to which the subject-matter of complaints must be interpreted and understood by the administration with all the care that a large and well-equipped organization owes to those having dealings with it, including members of its staff. He fails to see how it may be inferred from the wording of Article 6 of the decision of the Commission of 5 October 1977 that the authority competent in the matter was the head of division in Luxembourg and not in Brussels. Moreover, the note in question does not relate to a hypothetical situation for the request was made in relation to a specific situation. Nor can there be any question of the termination of an internal procedure in the course of normal relations between staff and administration. Finally, to argue that the note from Mr Pratley does not employ the word decision is, to say the least, a technical point.

4. In its rejoinder the defendant distinguishes a request made by an official under Article 90 (1) of the regulations asking the appointing authority to adopt a decision with respect to him from a simple request for information. The letter to Mr Pratley clearly belongs to the second category of request.

1. By an application dated 28 August 1979 the applicant, a Luxembourg national assigned to the Personnel Division of the Commission in Luxembourg, requests the annulment of the decision of 29 June 1979 rejecting the complaint he had submitted on 19 February 1979 seeking continuance of the expatriation allowance which was paid to him whilst he was posted to Brussels and, in the alternative, an order that the Commission should compensate him for damage consisting in, on the one hand, the loss of that allowance for the 25 years which have to elapse before his retirement (that is to say, a sum of Lfr 3750000) and, on the other hand, the loss he claims to have suffered in selling his house in Tervuren (Belgium) at a price of Lfr 1500000 below its true value.

2. Prior to his entry into the service of the High Authority of the ECSC on 1 October 1954 the applicant resided at Dudelange, that is to say, at a distance of less than 25 kilometres from his place of employment, Luxembourg.

3. Thus he was never entitled to the separation allowance granted under Article 47 of the ECSC Staff Regulations of 1956 to officials who before taking up their duties resided continuously for more than six months in a place more than 25 kilometres from the seat of the institution.

4. When, after being posted in 1968 to the Directorate-General for Personnel and Administration in Brussels, the applicant disclosed his intention of returning to Luxembourg he asked for information from the Head of the Individual Rights and Privileges Division in Brussels as to whether he could continue to draw the expatriation allowance in the event of his being transferred. In a letter of 20 April 1978 he received the following reply:

5. Having applied for a post in Luxembourg, the applicant was transferred to that city by a decision of the Head of the Personnel Division in Luxembourg as from 1 October 1978. He was granted the expatriation allowance for the month of October 1978, repayment of which was claimed from him under Article 85 of the Staff Regulations, but which was later refunded to him on the ground that the conditions for the application of Article 85 had not been met. Finally, in a note of 12 February 1979 the Head of the Personnel Division informed the applicant that he was not entitled to the expatriation allowance.

6. On his return to Luxembourg the applicant established his place of residence in Ehnen, which is more than 25 kilometres from where he resided prior to his entry into the service (Dudelange). He accordingly advances a first argument which proceeds upon an infringement of the fourth paragraph of Article 97 of the Staff Regulations of Officials of the ECSC of 1962 containing transitional provisions which remained applicable by virtue of the final paragraph of Article 2 of Regulation No 259/68 and which provide:

7. According to the applicant, he was entitled under that provision to receive the separation allowance from the date of his transfer to Brussels in 1968, even though as long as he was employed in Luxembourg he did not meet the requirement as to the distance of 25 kilometres from the seat of his institution. In order for him to have been entitled to the allowance it was thus sufficient for him to establish his place of residence at 25 kilometres from his place of origin.

8. However, the effect of the transitional provisions in the fourth paragraph of Article 97 of the ECSC Regulations of 1962 is that the applicant may not rely on those provisions since he never qualified for the separation allowance under the regulations of 1956 because the place where he resided prior to his entry into the service of the ECSC was less than 25 kilometres from his place of employment, Luxembourg, and he thus did not satisfy the condition laid down by Article 47 of the 1956 Staff Regulations.

9. The applicant bases an argument a contrario on the rule laid down in Article 9 (b) of the General Regulations of the ECSC which provided that Officials who as a result of a new posting take up residence less than 25 kilometres from the place where they resided before their entry into the service lose the right to the allowance .... However, although, in fact, his new place of residence in the Grand Duchy, Ehnen, is more than 25 kilometres from that where he resided prior to his entry into the service, Dudelange, the applicant has not established that it was his posting to the Personnel Division in Luxembourg that caused him to establish his new place of residence at a distance of more than 25 kilometres from his original residence.

10. The applicant's argument based on freedom in the selection of a place of residence cannot be upheld since the administration does not infringe that right by making the grant of the expatriation allowance subject to a minimum distance requirement.

11. The first submission is therefore unfounded.

12. The applicant claims that if the Head of the Individual Rights and Privileges Division of Brussels made a mistake in informing him, by note of 20 April 1978, that, in the event of his being transferred to Luxembourg, he could continue to draw the expatriation allowance it is the defendant who ought to bear the consequences in accordance with Article 91 of the Staff Regulations. The causal link has been established, he claims, by the fact that, had the reply to the question of retaining the expatriation allowance been in doubt, he would have abandoned the idea of leaving Brussels.

13. The Commission is of the opinion that the note in question does not bear any of the features identified by the Court as constituting a decision. In particular, the author of the note was not the authority competent to take a decision concerning the grant of an allowance to an official posted to Luxembourg.

14. It must be borne in mind that, as the Court has already stated in its decisions of 28 May 1979 (Joined Cases 19, 20, 25 and 30/69, Ricbez-Parise, [1970] ECR 325) and 9 July 1970 (Case 23/69, Rehn, [1970] ECR 547), apart from the exceptional instance, the adoption of an incorrect interpretation does not constitute in itself a wrongful act.

15. In that respect it is appropriate to stress that, in the present case, the incorrect interpretation was supplied in reply to a hypothetical question. In addition, the relevant texts were available to the applicant who was thus in a position to inform himself as to the correct interpretation of the provisions. In these circumstances the fact that the Head of the Individual Rights and Privileges Division in Brussels supplied incorrect information as to the interpretation of the relevant provisions does not make the Commission liable.

16. The submission relating to Article 215 of the Treaty is thus unfounded.

17. As a result the application must be dismissed.

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

19. The Commission is not under any liability. However, as the incorrect information which was supplied regarding the interpretation of the provisions concerning the expatriation allowance gave rise to the present application, the Court considers it equitable to order the Commission to pay the costs of the proceedings.

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

1 Dismisses the application;

2 Orders the Commission to pay the costs.