JUDGMENT OF 22. 5. 1980 — CASE 142/79 FONTI v PARLIAMENT

In Case 142/79

THE COURT (Second Chamber) composed of: A. Touffait, President of Chamber, P. Pescatore and O. Due, Judges, Advocate General: F. Capotorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts

II — Written procedure

III — Submissions and arguments of the parties during the written procedure with regard to the admissibility of the action

A — Daily subsistence allowance

B — Removal expenses

A — Daily subsistence allowance

B — Removal expenses

IV — Oral procedure

Decision

Claim for the daily subsistence allowance

Claim regarding removal expenses

Costs

I —. Facts

II —. Written procedure

III —. Submissions and arguments of the parties during the written procedure with regard to the admissibility of the action

A —. Daily subsistence allowance

(a). The measure adversely affecting Mrs Geronimo is the letter of 11 October 1978 signed by the Head of the Management and Staff Regulations Department informing her of the adverse opinion of the Heads of Administrative Services and consequently of the rejection of her request. She ought to have submitted a complaint against that measure to the Appointing Authority in accordance with Article 90 (2) of the Staff Regulations. The period for doing so, three months from the date of notification of the decision to the person concerned, expired on 11 January 1979.

(b). The letter from the Head of the Management and Staff Regulations Department of 11 October 1978 has all the characteristics of an administrative decision: it refers to Mrs Geronimo's application, states that it had been investigated and sets out the result with the reasons therefor. The reasons were expressed in the very terms of the opinion of the Heads of Administrative Services who on considering the particular case which had been submitted to them found that the condition laid down by the Staff Regulations was not satisfied.

(c). The letter from the Director-General for Administration, Personnel and Finance of 11 December 1978 is in no way the first decision in respect of the applicant.

B —. Removal expenses

(a). The applicant has never asked for removal expenses and no decision has been taken with regard thereto.

(b). The letter from the President of the Staff Committee to the Director-General dated 6 November 1978 certainly included removal expenses, but in fact it related only to the daily subsistence allowance which was the only one claimed by the applicant. The subsequent correspondence also deals which the same subject even if in his letter of 4 December 1978 the President of the Staff Committee included in the heading both the installation allowance and reimbursement of removal expenses. In any event the President of the Staff Committee only intervened on behalf of the applicant and did not act as her attorney.

(c). In the event of the applicant maintaining that a request by her was unnecessary because according to Internal Directive No 75/78 of 29 October 1978 written authority for removal should have been issued to her upon her establishment, it should be stated that having received no such authorization by the end of her probationary period or at the latest with the letter dated 29 September 1978 informing her of the establishment, the applicant ought to have regarded such omission as a failure to adopt a measure prescribed by the Staff Regulations within the meaning of Article 90 (2). Accordingly a complaint ought to have been lodged within a period of three months, that is to say at the latest by 29 December 1978. Since it was not lodged until 20 February 1979 the complaint was out of time and the application is therefore inadmissible.

A —. Daily subsistence allowance

(a). The letter dated 21 February 1978 to the Head of the Management and Staff Regulations Department could be regarded at the most as only a request for an explanation. It was intended to draw attention to the rights of the applicant and it was addressed to its recipient in his capacity, not as appointing authority, but only as head of her department.

(b). The letter dated 11 October 1978 from the Head of the Management and Staff Regulations Department informed the applicant of the position adopted by the Heads of Administrative Services but not of the refusal of her request.

(c). The letter dated 11 October 1978 cannot for several reasons be regarded as a decision.

(d). The true decision is contained in the letter from the Director-General dated 17 November 1978. Therefore the complaint is not out of time since it was made within three months.

B —. Removal expenses

(a). It is true that an application for reimbursement of removal expenses was never submitted, but the applicant should not be reproached for having asked for the installation allowance without at the same time seeking reimbursement of removal expenses since the two allowances are neither linked nor even connected.

(b). It is doubtful whether Internal Directive No 75/78 applies to the applicant's case. The question also arises whether such directive can supplant the provision of the Staff Regulations according to which the removal must take place within the year following the expiry of the probationary period.

(c). As to the fact that the applicant did not make a complaint in accordance with Article 90 (2) of the Staff Regulations within three months after finding that she had not received written authority to effect her removal, it should be observed that disregard of an internal directive cannot constitute failure to take a measure required by the Staff Regulations.

(d). The applicant discovered only as a result of the information given to her on 11 October 1978 by her head of department that the reimbursement of her removal expenses was in doubt. Before the letter from the Director-General dated 27 November 1978 the applicant had not been informed of any refusal to pay her removal expenses. There can therefore be no question of the application being out of time.

(e). As regards the objection that the applicant has never submitted a request for reimbursement of removal expenses and that no decision therefore has been taken with regard thereto, it should be observed that every request for the daily subsistence allowance involves removal by reason of the fact that there is a change of residence. Moreover the alleged decision of the Heads of Administrative Services contained by implication a refusal to reimburse removal expenses.

IV —. Oral procedure

1. By an action brought on 13 September 1979 the applicant, an official at the European Parliament, claims that the Court should annul, pursuant to Article 91 of the Staff Regulations, a decision refusing to pay the daily subsistence allowance provided for in Article 10 of Annex VII to the Staff Regulations and reimbursement of removal expenses to which she is entitled under Article 9 of the same Annex.

2. In a separate document lodged under Article 91 of the Rules of Procedure the Parliament objected to admissibility by reason, on the one hand, of the late nature of the complaint originating the application and, on the other, of the absence of a decision relating to removal costs, as the applicant had not submitted any request in relation thereto. The Court decided to open the oral procedure on the objection alone.

3. It is apparent from the file that the applicant, who previously lived in Rome, worked for the European Parliament as a member of the auxiliary staff from 25 October 1976 to the end of 1977. She received by reason of the change of her place of residence the daily subsistence allowance for the period extending from the beginning of her employment until 24 October 1977 under Article 69 of the Conditions of Employment of Other Servants which refers to Article 10 of Annex VII to the Staff Regulations.

4. After being successful in a competition held by the Parliament the applicant was offered a post subject to the Staff Regulations as a shorthand-typist from 1 January 1978. In the letter of appointment of 9 December 1977 signed by the Director-General of the Administration it was stated that she would receive in addition to her salary, a daily subsistence allowance of Bfr 560 from the first to the fifteenth day reduced to Bfr 280 from the sixteenth day for a total period of up to 180 days on the terms and within the limits specified in Article 10 of Annex VII to the Staff Regulations.

5. It is agreed that that allowance was not paid to the applicant. By letter dated 21 February 1978 the applicant drew the attention of the Head of the Management and Staff Regulations Department to that omission reminding him of the assurance which had been given in the letter of appointment. On 1 March 1978 the Head of the Management and Staff Regulations Department acknowledged receipt of the letter and informed the applicant that in view of the difficulties which it raised her case had been submitted for consideration by the Preparatory Committee for Meetings of Heads of Administrative Services. He added that in the meantime the case would remain open and that the applicant would be kept informed of developments in relation to her application.

6. By letter dated 11 October 1978 the Head of the Management and Staff Regulations Department informed the applicant that at their meeting on 15 September 1978 the Heads of Administrative Services had reached an adverse opinion regarding her case and that as a result he regretted that her request could not be granted. A copy of the resolution adopted at the meeting of the Heads of Administrative Services was enclosed with that letter.

7. As a result the applicant addressed herself to the President of the Staff Committee who repeatedly approached the Director-General of Administration to settle the case in the applicant's favour. It was in one of his letters, dated 6 November 1978, that the President of the Staff Committee for the first time referred to the reimbursement of removal expenses apart from the question of the daily subsistence allowance.

8. By letter dated 27 November 1978 the Director-General of Administration informed the President of the Staff Committee that the applicant's file had several times been carefully considered by his department which had taken the trouble, before giving a final answer to the applicant, to submit her case to the Preparatory Committee and to the meeting of the Heads of Administrative Services. He added that unfortunately both of those bodies had also reached an adverse opinion, that the applicant had been kept informed at the various stages of the proceedings and that finally she had been officially notified of the refusal with the grounds therefor.

9. In answer to a fresh protest from the President of the Staff Committee the Director-General of Administration, by letter dated 11 December 1978, confirmed once again the attitude of the administration and recalled that where there is a difference of opinion every official is entitled to make a complaint and bring an action as provided for in Articles 90 and 91 of the Staff Regulations.

10. On 20 February 1979 the applicant sent the Secretary-General of the European Parliament a formal complaint under Article 90 (2) of the Staff Regulations on the ground that the administration was not granting her, following her appointment as an official, either the daily subsistence allowance or reimbursement of her removal expenses.

11. When the administration did not answer that complaint the applicant brought the matter before the Court in the above-mentioned circumstances.

12. In order to consider whether the objection raised by the European Parliament is well founded it is right to consider the admissibility of the action with regard to the claim relating to the daily subsistence allowance separately from that relating to removal expenses.

13. Article 90 (2) of the Staff Regulations provides that any person to whom those Staff Regulations apply may submit to the appointing authority a complaint against an act adversely affecting him. The complaint must be made to the appointing authority within three months which runs from the date of notification of the decision to the person concerned, but in no case later than the date on which the latter received such notification.

14. The parties disagree as to the act adversely affecting the applicant. The applicant takes the view that it is constituted by the answer sent on 27 November 1978 by the Director-General of Administration to the President of the Staff Committee following the intervention of the latter on behalf of the applicant. The formal complaint dated 20 February 1979 was, according to the applicant, therefore made in time.

15. The administration of the European Parliament considers that the letter dated 27 November 1978 has no other purport than to refer to and explain a previous decision which, according to the context, could only be the letter sent on 11 October 1978 to the applicant herself following the resolution at the meeting of the Heads of Administrative Services. In relation to that decision the formal complaint of 20 February 1979 was made therefore after the expiry of the period laid down by Article 90 (2) of the Staff Regulations.

16. The Court considers that the complaint by the applicant was indeed made out of time.

17. It is apparent from the letter sent on 21 February 1978 by the applicant herself to the Head of the Management and Staff Regulations Department that she had certainly noticed from the beginning of the payment of her monthly salary that, contrary to the assurance given in the letter offering her employment, the daily subsistence allowance had not been granted to her. In answer to her request for explanation the applicant was informed immediately on 1 March 1978 that her file was being examined by the administration and that her case would in the meantime remain open.

18. By letter dated 11 October 1978 the Head of the Management and Staff Regulations Department finally informed the applicant that it was impossible for the administration to give a favourable reply to her request for the daily subsistence allowance. The extract from the. deliberations of the Heads of Administrative Services enclosed with that letter allowed the applicant to recognize that the refusal by the administration was based on two circumstances: on the one hand the fact that she had already received the daily subsistence allowance for one year as a member of the auxiliary staff during the period prior to her appointment as an official; on the other the fact that there was no removal when she was appointed so that she did not satisfy the condition of a change of residence laid down in Article 10 of Annex VII to the Staff Regulations.

19. In those circumstances it is beyond question that the letter dated 11 October 1978 constitutes, in the present case, the act adversely affecting the official within the meaning of Article 90 (2) of the Staff Regulations. It is therefore that act which caused to start to run the period of three months for lodging complaints contained in the said provisions since the applicant, by the said act, was informed of a decision put forward as final.

20. For its part the letter dated 27 November 1978 and signed by the Director-General of Administration can by no means be regarded as being of such a nature. On the one hand that letter is not addressed to the applicant but to a third party who was taking steps on her behalf. Further that letter, like that of 11 December 1978, had no purpose other than to explain a previous decision which, it is said, had been officially notified to the applicant herself. It must be stressed that in the letter dated 11 December 1978, written when the period for complaint against the decision dated 11 October 1978 had not yet expired, the administration had even taken the trouble expressly to draw the attention of the President of the Staff Committee to the possibilities of complaint and action which the applicant had under Articles 90 and 91 of the Staff Regulations.

21. It follows from the foregoing that the first claim in the application must be declared inadmissible since no complaint was made to the appointing authority within the period provided for in Article 90 (2).

22. In her complaint made on 20 February 1979 the applicant also alleges that the administration denied her the right to reimbursement of removal expenses.

23. It must be recalled in this respect that according to Article 9 of Annex VII to the Staff Regulations the allowance on removal takes the form of reimbursement of expenses actually incurred and that such reimbursement can be made only subject to the limit of an estimate previously approved by the administration. It is established that none of the conditions laid down by that provision has been satisfied by the applicant and that the administration has received no request regarding this matter in accordance with the Staff Regulations.

24. It accordingly appears that in this respect the action has no purpose.

25. It follows from the foregoing that the action is inadmissible as a whole.

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

27. Nevertheless under Article 70 of the Rules of Procedure in staff cases the institutions shall bear their own costs.

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

1 Dismisses the application as inadmissible;

2 Orders the parties to bear their own costs.