C-15/60

JUDGMENT OF 1. 6 1961 CASE 15/60

absence of evidence to the contrary that tions wished to reject the concept of 'as any difference in wording involves a dif­ the crow flies'.

ference in scope if the new wording leads 7. In the absence of working documents to a different interpretation. clearly expressing the intention of the 6. the fact that the word 'radius' contained draftsmen of a provision, the Court can in Article 16 (b) of the Provisional Staff base itself only on the scope of the Regulations has been replaced in Article wording as it is and give it a meaning 47 (3) of the Staff Regulations of the based on a literal and logical interpreta­ ECSC by the word 'distance' clearly tion.

shows that the authors of the Regula­

In Case 15/60

Gabriel Simon , an official of the Court of Justice of the European Communities, represented by Pierre Fincoeur, Advocate of the Arlon (Belgium) Bar, with an ad­ dress for service in Luxembourg at 12 Avenue Pasteur,

composed of: N. Catalano (Rapporteur), President, O. Riese, L. Delvaux, J. Rueff and R. Rossi, Judges,

Advocate-General: K. Roemer

Registrar: H. J. Eversen, Deputy-Registrar

gives the following

SIMON v COURT

JUDGMENT

meaning of Article 2 (2) of the Staff Regula­ adopted a common interpretation for the tions'. future, new officials living at Arlon would Article 47 (3) of the said Regulations be regarded as resident. provides that a separation allowance shall With the general principle decided, the ques­ be granted 'to officials who before they took tion arose whether the separation allowance up their duties have lived continuously for already granted to certain officials on the more than six months in a place more than basis of the legal distance calculated by road 25 km from the place of employment'. This or railway ought to be maintained in favour provision replaced that of Article 16 (b) of of those benefiting. At its meeting on 20 Oc­ the Provisional Staff Regulations which tober 1959 the Committee of Presidents entered into force on 1 July 1953, according decided to submit the question to the Com­ to which the said allowance was granted to mittee of Common Interests. The latter con­ officials . . . 'who during the last three sidered the case of the two officials of the months preceding their taking up duties did Court, including the applicant, in respect of not live permanently in Luxembourg or which the problem arose, and on 16 March within a radius of 25 km thereof or who did 1960 expressed the opinion to the Commit­ not work there'. tee of Presidents that 'this question was set­ On 6 March 1958 the applicant applied to tled by adopting the distance as the crow the administration of the Court for the flies while respecting the vested rights of the grant of the separation allowance provided, two persons concerned'. for in Article 47 (3) of the Staff Regula­ To this end the Committee decided on 25

asked that the matter be dealt with Having regard to the general structure and equitably. spirit of the law, the concept of the separa­ By letter dated 21 September 1960 the tion allowance is linked with the concept of President of the Court confirmed to the ap­ the journey between the seat of the Com­ plicant the decision taken by the Committee munity and the place where its official lives of Presidents with regard to him. The deci­ and which the official must actually make sion contained in the letter of the President to return home or go to work. of the Court is the subject of the present ap­ Moreover, a comparison of Articles 47 (3) of plication which was lodged at the Registry the Staff Regulations and Article 16 (b) of on 19 October 1960. the Provisional Staff Regulations in force before the Staff Regulations were adopted II — Conclusions of the parties shows that the Provisional Regulations regarded as non-residents entitled to the The applicant claims that the Court should: separation allowance officials not living 'declare the present application admissi­ 'within a radius' of 25 km from the seat ble; whereas Article 47 (3) of the Staff Regula­ declare that the present application is tions regards as non-residents those who do well founded; not live 'at a distance' less than 25 km from

accordingly, annul the decision of the the seat. The omission of the word 'radius'

SIMON v COURT

cle. Under the terms of Article 62 of the provisions. Staff Regulations any amendment of the All this procedure, claims the defendant, has Staff Regulations must be made by the been observed in the present case, for the Committee of Presidents on a proposal from Committee of Presidents, on the one hand, one of the institutions and after consulting has taken note of the observations of the the other institutions including the Staff auditor in respect of the application of Arti Committee of each institution and where cle 47 (3) of the Staff Regulations and, on appropriate after receiving the opinion of the other, has instructed the Committee of the Committee on the General Regulations Common Interests to propose a uniform provided for in Article 46.

As a result a result the decision of the President of the the decision of 21 September 1960 of the Court of 21 September 1960 cannot be held President of the Court is likewise irregular to be irregular on the sole ground that it is in that it is aimed at applying in respect of based on that of 9 May 1960. the applicant a decision, that of the Com mittee of Presidents, which is incompatible The defendant then considers whether, by with Article 62 of the Staff Regulations. adopting the solution contained in its deci The defendant first of all analyses the posi sion of 9 May 1960, the Committee of Presi tion of the Committee of Presidents: dents has wrongly interpreted Article 47 (3) of the Staff Regulations.

of Presidents. The Treaty does not indicate and standard of living. By reason of this it is the competent authority for deciding ques wrong to claim that the concept of this al tions raised by the auditor's report, but the lowance is linked to that of the journey Commission has inferred from the fact that which the official has in fact made to return

official has removed to a place where he is a foreigner and not that of the journey which 3. The lack of competence of the President the official must make each day to get to his place of work or home. As a result it is of the Court ofJustice logical to conclude that the legal distance of Apart from the irregularity of the decision 25 km provided for by this article must be calculated as the crow flies, a conclusion of the Committee of Presidents the appli­ cant maintains in addition that the decision which has been adopted likewise by the of the President of the Court of 21 EEC and Euratom which have granted the allowance in question to staff not living September 1960 is irregular because it was ultra vires. within a radius of 70 km from the centre of Brussels. According to Article 16 of the Statute of the (b) The conclusions drawn by the applicant Court of Justice the Staff Regulations of the from a comparison of Article 16 (b) of the Court are laid down by the Court. Thus in Provisional Staff Regulations and Article 47 accordance with these provisions the Staff (3) of the Staff Regulations do not appear to Regulations laid down by the Committee of be well founded. In adopting the draft Presidents were adopted by the Court of regulations the Committee of Presidents had Justice by decision dated 1 March 1956 and at its eleventh meeting on 24 March 1955 took effect on 1 July 1956 (vide Staff taken the wording used by the said Article Regulations in fine). The applicant claims 16 (b) where the word used was 'radius'. that if this was the procedure for the adop­ When a new draft was submitted to it by the tion and implementation of the Staff President of the High Authority the Com­ Regulations within the Court of Justice it is mittee decided on 12 December 1955 obvious that the same procedure should have been followed in the present case (fourteenth meeting) to continue its work on the basis of this latter draft, Article 47 (3) of which is concerned with the adoption and which relating to the separation allowance implementation of 'a new interpretation' of was drafted in a different manner from that Article 47 (3) of the Staff Regulations adopted by the Committee in its previous within the Court. Since it is contrary to this draft. Not only had the word 'radius' been procedure, the decision by the President and replaced by the words 'at a distance not not by the Court adopting and applying the greater than ... km', but the wording had interpretation, which the Committee of been proposed in a positive instead of a Common Interests gave to the said article negative form. The Committee then com­ and which was followed by the Committee of Presidents, is unlawful. pleted this draft taking the principle of con­ tinuous residence for a certain time and the The defendant in answer to this complaint criterion of 25 km already contained in its says that all the institutions 'have im­ first draft. plemented' the decision of the Committee of

Lastly the applicant maintains that the deci­ 4. Infringement of vested rights sion taken is contrary to Article 60 (2) of the The applicant, after stressing that the act by Staff Regulations for it disregards the prin­ which he had been granted the separation ciple contained in this article that 'staff allowance, as an act emanating from the who, as a result of Article 47 (3) no longer competent authority and containing a cor­ receive the separation allowance, shall rect interpretation of Article 47 (3) of the receive monthly as a compensation al­ Staff Regulations, was legal, concludes that lowance the difference between the amount the act in question gave rise to a personal which they were receiving as non-residents right. It therefore follows that in accordance on the Staff Regulations' being first applied with the case-law of the Court in the case of to them and the amount of the residents' al­ Algera the benefit of the act in question lowance in Article 47 (3)'. could not in principle be withdrawn from The defendant deals with this argument him, for since the personal right was vested jointly with that of the alleged contractual the necessity of maintaining confidence in nature of the undertaking by the Court in the permanency of the situation thus granting the separation allowance and created prevails over the interest of the ad­ makes the same counter-arguments as in ministration seeking to reverse its decision. respect of the latter. Against this argument the defendant restricts itself to referring to the principles of the case-law established by the Court in IV — Procedure

tion in the present case of vested rights institutions of the Community or from in­ strictly so called. ternal committees, and in particular the In answer to the applicant's argument that, Committee of Common Interests relating to by adopting the Staff Regulations and the application of Article 47 (3) of the Staff agreeing to the payment of the separation Regulations', be produced. allowance to the applicant, the Court of In its observations lodged on 26 January Justice had validly concluded with the appli­ 1961 the defendant confirmed that a cant a tacit agreement which it could not scrupulous examination of the minutes of unilaterally cancel, the defendant says that the various meetings of the Committee of the decision of the Court of Justice of 11 Presidents between 24 March 1955 and 29 March 1958 by which the separation al­ March 1956 showed that to its knowledge lowance was granted to the applicant is in no case had raised again after 24 March the nature of a 'decision' and not of a 1955 the question of the calculation of the .

JUDGMENT OF 1. 6. 1961-CASE 15/60

distance in the application of the allowance in respect of the necessity and expedience of for residence or separation. The defendant the production of the documents asked by found no reference either to the subject- the applicant, the defendant stressed the in­ matter of the present proceedings on con­ convenience to which such production could sidering the working documents submitted give rise. for the attention of the Committee of Presi­ At the hearing on 16 February 1961 the dents relating to the Staff Regulations and Court, after hearing the report of the originating from the various bodies con­ Judge-Rapporteur and the views of the sulted. Advocate-General, decided not to order While submitting to the Court's discretion production of the aforesaid documents.

The application is based on four complaints:

1. The applicant's first complaint is that the Committee of the four Presidents has infringed Article 62 of the Staff Regulations because it has replaced Article 47 (3) of those Regulations by a provision of a completely different scope without comply­ ing with the formalities provided for in Article 62.

In support of his argument the applicant asserts that Article 47 (3) of the Staff Regulations cannot be interpreted in the way which the contested decision has done.

The first part of this complaint is without foundation for there is nothing to lead to the conclusion that the Committee of Presidents intended to amend the wording of Article 47 (3).

The Committee of Presidents has limited itself to interpreting the wording.

SIMON v COURT

Even considered in this light the complaint is not well founded for it is clear that the President of the Court (and even, more precisely, the Registrar subject to review by the President) was competent to apply Article 47 (3).

The President of the Court cannot be denied the competence and the duty to in­ terpret the wording which he is called upon to apply subject to review by the Court of the correctness of this interpretation.

3. The applicant's third complaint is that the President of the Court has infringed a vested right.

The decision granting the separation allowance to the applicant has not been revoked retroactively but only amended in respect of the future. Further the al­ lowance has been maintained ad personam until the amount of the allowance is ab­ sorbed by subsequent advancements.

If the administrative authority becomes aware that a certain allowance has been granted as a result of a wrong interpretation of a legal provision it has the power to amend the previous decision.

Even if in certain cases in view of vested rights withdrawal on grounds of unlaw­ fulness does not have a retroactive effect it always takes effect from the present.

II

It remains to be considered whether the interpretation of Article 47 (3) given by the Committee of Presidents and confirmed by the President of the Court is correct.

The defendant maintains that the wording of this article which has replaced Article 16 (b) of the Provisional Staff Regulations had been proposed by the High Authority which both under the Provisional Staff Regulations and the Staff Regulations has always applied the criterion of 'as the crow flies'.

This fact is alleged to show that the intention of the authors of the provision was not to amend the system as clearly appearing from the previous wording and 'that the disappearance of the word "radius" is not the result of a formal decision but only the simplification of the drafting'.

This argument is not supported by any document capable of showing that the inten­ tion to amend the system previously established must be ruled out.

On the other hand, the difference in wording between the two articles is itself an argument capable of leading to the presumption that the authors of the new provi­ sion intended to amend the former criterion, since in the absence of evidence to the contrary it must be assumed that any difference in wording involves a difference in the scope if the new wording leads to a different interpretation.

In the absence of working documents clearly expressing the intention of the draftsmen of a provision, the Court can base itself only on the scope of the wording as it is and give it a meaning based on a literal and logical interpretation.

Finally, the argument that the criterion of calculation as the crow flies has always been applied both under the Provisional Staff Regulations and the Staff Regula­ tions is weakened by the fact that the criterion was not applied by the Court when at the request of those concened it applied Article 47 (3).

It must also be observed that Article 47 (3) does not prescribe precisely the method of calculating the distance (by road or rail or the shortest of these two ways).

If the drafting is defective there is nothing to prevent selecting by means of in­ terpretation the most reasonable criterion, that is to say, that of the shortest dis­ tance either by road or by rail of a normal journey.

In these circumstances, while recognizing that the drafting of Article 47 (3) may at first sight lend itself to a double interpretation, the Court must find that the in­ terpretation given by the Committee of Presidents and the President of the Court is not in accord with the scope of this provision.

The decision by which the previous decision was revoked is unlawful and must therefore be annulled.

hereby:

1. Annuls the decision of the President of the Court of Justice of the European Communities withdrawing the separation allowance granted to the applicant;

2. Orders the defendant to bear the costs.

Delivered in open court in Luxembourg on 1 June 1961.

Catalano Riese Delvaux

Rueff Rossi