C-11/63

JUDGMENT OF 19.3.64 — CASE 11/63

means of transport has been recog­ general departments of the admini­

nized as being in the interest of the stration, and not the immediate service. superior of an official.

(b) Very strict conditions of form and substance must be imposed for Reimbursement of travel expenses on declarations intended to establish the ordinary basis involves 'definite disadvantages'

the right entitlement to reimburse­ within the meaning ment at the rate per kilometre. of Article 17 (d) of the Staff Regula­ tions, when it plainly cannot cover

3. Ultimately, a decision with regard to the expenses actually incurred by the the method of reimbursement of party concerned, in using his own

V

High Authority of the European Coal and Steel Community­ , rep­

resented by its Legal Adviser, Pierre Lamoureux, acting as Agent, assisted by Mr Cyr Cambier of the Cour d'Appel, Brussels, with an address for

service in Luxembourg at its offices, 2 place de Metz, defendant,

Application for the payment of removal expenses and mission expenses,

THE COURT (First Chamber)

I — Fact attention of the applicant to the provi­

sions of Article 15 (a) (that is, of the

The facts may be summarized as fol ws: former Staff Regulations of the ECSC),

which stipulate that (removal expenses) 1. The applicant has been employed shall not exceed the amount of an

by the defendant since 1953. During the estimate approved in advance and for period with which the present applica­ this purpose not less than two estimates tion is concerned (1959 to 1962), he was shall be submitted to the Personnel a member of the inspection group, later Department'. On 15 June 1961, the

named 'Inspection Directorate', and in applicant informed the defendant that

kilometre'. In his application, the applicant claims that 2. In December 1960 at the latest, the the Court should:

applicant learned that the defendant rule that the claim made in this

intended to transfer him from Luxem­ application to the Court against the

bourg to Brussels. High Authority of the European Coal A decision to this effect was taken by the and Steel Community is admissible

President of the High Authority on 27 and consequently order the High

February 1961, which was to take effect Authority to pay the applicant the from 1 March 1961. However, the sums of 13800 Belgian francs, 4615 applicant was only given notice of this Belgian francs, 2918 Belgian francs, on 17 April 1961. 2943 Belgian francs and 16009 Belgian francs together with interest from the

In its of defence, the defendant statement reject the remaining conclusions of the contends that the Court should: applicant anddismiss his application as take note that the High Authority unfounde ; offers to pay in full and final settle­ order that the greater part of the

ment the sum of 12364 Belgian francs expenses incurred by the applicant

arising from the rectification of the before the High Authority served its accounts for missions undertaken by statement of defence on him and all

the applicant from 1 March to 17 April expenses incurred by him thereafter

1961; should be borne by the applicant.' declare that this payment shall be in In his reply to the question put by the settlement of all claims which the Court on 24 October 1963, the applicant applicant has in this case: declared that he wished to reduce the reject the remaining conclusions of claim of 2943 Belgian francs to 2942 the applicant and dismiss his application Belgian francs. as unfounde ; In reply to the written and oral questions order the applicant to pay the costs.' put by the Court, the applicant declared In his reply, the applicant modifies as that he wished to reduce his claims

follows the figures which appeared in his relating to mission expenses so that the original conclusions­: dispute no longer turns on whether for — the sum of 4615 Belgian francs is the missions in question he should be amended to 4246 Belgian francs; reimbursed on the basis of the rail fare — the sum of 16009 Belgian francs is or of the rate per kilometre. amended to 3645 Belgian francs; — the sum of 2918 Belgian francs is III — Submissions and arguments amended to 2968 Belgian francs; of the parties

course of the provided

In its rejoinder, the defendant contends that in advance of estimates from more than the Court should: two removal firms) only constitutes a

take note that the High Authority means of excessive claims. avoiding offers to pay in full and final settlement When the urgency of the removal, owing the sum of 12364 Belgian francs, already to the requirements of the service, renders

specifically mentioned in its statement it impossible for this procedure to be of defence, together with interest on that followed, the only consequence which

sum from the date on which the claim arises is that the check must be effected was lodged up to the date on which the by other means. statement of defence was served on the The applicant points out that, as is

applicant, and declare that this payment indeed admitted by the defendant, it shall be in settlement of all claims which was not until 17 April 1961 that he the applicant has in this case; knew of the decision to transfer him; he

furniture. reimbursement, on the basis of the rail

The defendant interprets the said Article fare, of the travel expenses between the 15 to mean that the administration is not place of employment and the centre of

obliged to reimburse the removal ex­ the region visited was obligatory.

penses when the official does not observe Following the amendment of the Staff the prescribed procedure. Even suppos­ Regulations, made by decision of the ing, contrary to this argument, that in Committee of Chairmen of the ECSC on particular cases exceptions were ad­ 21 November 1960, that provision was

missible in favour of officials, this is not revoked and approval of the reimburse­

the case here; the applicant had had ment at the rate per kilometre was made

removal. the applicant admits, Mr Burgert by no

means found in all instances of dispute in 2. Mission expenses favour of reimbursement in accordance with the rate per kilometre; on several A — In general occasions he either made no mention of this or indicated that the rail fare should

The applicant claims that the provisions be applied. in force did not state expressly which authority should decide whether the B — Data of various journeys conditions for reimbursement at the

rate per kilometre were satisfied, nor The documents relating to the missions how the decision should be taken. in question (travel orders, accounts, However he is plainly of the opinion that correspondence between the parties, the decision should be taken by the etc.) have been entered on the file. lead of the Inspection Directorate, in Furthermore, the defendant has sub­

this case Mr Burgert. mitted a statement showing the details When Mr Burgert inserted (as occurred of each of these missions, and in particu­

in all the cases concerned in the present lar the amounts, on the one hand paid or

In his application, the applicant fixed the Moreover, reimbursement at the rate

difference between the amount to which per kilometre would only give an

he was entitled and the amount which amount of 2920 Belgian francs, since the had in fact been paid to him at 4615 calculations must be based on distances Belgian francs. stated on official road maps.

T he defendant replied at the outset that, on the basis of the applicant's method of (c) Missions undertaken between 1

calculation, the figure of 4625 Belgian March and 17 April 1961 (claim for francs was obtained. However, if the 16009 Belgian francs, reduced in the applicant's argument was well-founded, reply to 3645 Belgian francs) he was only entitled to the sum of 4266 Belgian francs (4625 less 359) since in his The claim for 16009 Belgian francs is calculations he did not take into account accounted for in particular by the fact a reimbursement of 359 Belgian francs that before the application was made the

effected under account number 1696D. defendant had considered that, as the In his reply, the applicant disputes the transfer of the applicant to Brussels had information relating to the 359 Belgian taken effect on 1 March 1961, Brussels francs, at the same time reducing his and not Luxembourg should be con­

regard to mission 7276L, undertaken

The missions (tour return journeys after 17 April, only the single journey between Luxembourg and Brussels) from Luxembourg to Brussels, and not 'return'

were undertaken at a time when strikes the from Brussels to Luxem­

made it impossible to use the railway. bourg be reimbursed, since the should

The parties are agreed that the figure applicant had at that time been notified

of 2918 Belgian francs, quoted in the of the fact that Brussels was his new

mission undertaken from 2 to 6 April Advocate-General, the Court (First 1962. Chamber) decided not to make any The amendment of 2943 to 2942 takes preparatory inquiry. into account an error of calculation. However, on 24 October 1963, it sub­

mitted certain questions to the parties to

IV — Procedure which they replied in writing. The hearing took place in open court on The procedure followed the normal 7 November 1963. course. The Advocate-General presented his Upon hearing the report of the Judge- opinion at the hearing on 5 December Rapporteur and the opinion of the 1963.

Grounds of judgment

I — Removal expenses

1. Under the terms of the first, second and third sentences of Article 15 (a) of the former Staff Regulations of the ECSC of 1 July 1956, in the version

2. The literal interpretation of the provision quoted above does not give

any definite answer. Its first sentence appears to accord an official an

unconditional right. On the other hand the second sentence appears to

exclude that right in cases where the official does not submit the estimates in

advance. Therefore the interpretation must be based on the meaning and

aim of that provision.

have undertaken has in fact taken place, what services the carrier has per­

formed quantitatively and qualitatively (volume of material to be removed,

etc.) and whether the price required seems reasonable having regard to those services.

3. By letter of 16 June 1961, the applicant declared to the administration of the High Authority, 'I have requested written confirmation of the quota­

tions submitted to me in December 1960 by carriers in Luxembourg and Brussels. As you will see, I have in the end taken the lowest estimate. These documents will be sent to you as soon as I receive them'.

However, the applicant subsequently produced only the following docu­ ments­ :

30 May 1961, although, according to information supplied by the

applicant himself, the removal had already taken place on 22 April 1961.

Clearly, these documents did not make it possible for the High Authority to arrive at the findings which, in accordance with the general principles

set forth above, constitute a condition precedent to any reimbursement of

removal expenses.

Consequently, the applicant's claim must be dismissed.

(b) In the opinion of the applicant, the statement 'own car' inserted in his travel orders is sufficient by itself to entitle him to the rate per kilometre.

At the period in dispute the reimbursement of mission expenses was governed under the Staff Regulations by various provisions adopted successively, in particular by Articles 17 (d) and 13 (d) of the original version of the Staff Regulations of the ECSC of 1 July 1956, Article 17 (d), already referred to, in the version adopted by the Committee of Chairmen on 21 November 1960 and Article 12 (1) to (4), of Annex VII to the Staff Regulations of officials of the ECSC presently in force.

All these provisions state, literally or in substance, that an official 'may be authorized to use his own car on a given mission provided that the duration of the mission is not thereby increased' and that reimbursement of travel expenses shall in that case be calculated in principle in accordance with the rail fare and only in exceptional cases on another basis.

Therefore a clear distinction must be made between authorization to use a

private car and the payment of an allowance at a rate per kilometre.

Whilst the above-mentioned authorization only establishes that there is no objection to an official's using his own car, the grant of a rate per kilometre presupposes on the other hand that the use of that means of transport must be recognized as being in the interest of the service.

2. Examination of the different missions

The examination of these missions will be based on the detailed information

appearing in a statement of the missions in question, which is dealt with in point(a) of the reply of the High Authority of 31 October 1963 to the written questions of the Court and which the applicant has not disputed (see below: 'statement').

According to this statement, the missions which must be examined are those appearing under Nos 1, 5 to 16, 18 and 19, and another mission carried out from 2 to 6 or 7 April 1962.

On the other hand, the missions mentioned under Nos 2, 3 and 4 should not be taken into consideration as they no longer form part of the subject matter of the dispute for the reasons set out under 1 (a) above.

The same obtains for mission No 17, for which the sum claimed by the applicant and that tendered or paid by the High Authority agree.

states in particular:

LEPAPE V HIGH AUTHORITY

'The Administration is of the opinion that the nature of these missions in fact generally requires considerable travel about a central point in the same industrial region, for which the use of a car would prove most useful.

It considers however that the use of the official's own car, for the outward and return journey to the principal centre at which the mission is to be performed, is not, in the majority of cases, in the direct interest of the service.'

It provides furthermore that journeys between the place of employment and the centre at which the mission is to be performed shall be reimbursed on the

basis of the rail fare, whereas in the case of other journeys it is provided that hired cars or private cars shall be used ('with prior authorization').

ment and one or more large towns with good rail connexions. However

certainly be interpreted as authorizing the reimburse­ such provisions must

ment at the rate per kilometre, in such cases, only in special situations and on the basis of detailed evidence.

That interpretation also arises from the fact that the Staff Regulations, which only provide by way of exception for reimbursement on any basis other than that of the rail fare, take precedence over the said 'opinion'.

The missions appearing in the statement under Nos 1, 7, 8 and 9 involve

exclusively travel between the place of employment (Luxembourg) and

admitted as sufficient evidence.

Having regard to the foregoing, the claims of the applicant relating to these missions are unfounded.

(c) The missions listed under Nos 5 and 6 of the statement related to an (Luxem­ outward and return journey between the place of employment bourg) and Brussels and, moreover, outward and return journeys between Brussels and The Hague and journeys within the industrial regions of which Brussels is the centre.

The dispute relates exclusively to the outward and return journeys between Brussels and The Hague, as the High Authority has reimbursed the other journeys at the rate per kilometre.

It is necessary, however, to consider whether the claims of the applicant are

founded, because it would be illogical, for a given mission, to reimburse one part of the expenses in accordance with the rail fare and another on the

convenience, he was free to do so.

tie ought however to have taken into account, in his estimate of the expenses, the fact that the total of the reimbursement of the travel expenses resulted

from the application of two different systems of calculation, in accordance

with the authorization received.

Consequently, the applicant's claim with regard to these missions is also

unfounded.

According to the applicant's declaration set out at 1 (a) above, such questions are excluded from the dispute.

Consequently, it must be assumed that the applicant has reduced the sum claimed to 2920 Belgian francs.

(b) There are at issue four double journeys between Luxembourg and Brussels for which the applicant was obliged to use his private car because of the strike on the Belgian railways.

The High Authority states in particular that the use of a private car has no causal connexion with the strike, since the applicant habitually undertook most of his journeys on mission by car.

That objection disregards the fact that in the present case a causal connexion

existed between the strike and the necessity of using the private car.

mission in special circumstances'.

In this case, it was impossible to use the railway. Nor did the High Authority

claim that the interest of the service required the use of an aeroplane instead

of private cars.

The reimbursement of the rail fare only, that is to say, 578 Belgian francs for a journey kilometres, being 1.31 Belgian francs per kilometre of 440

covered, gives rise to 'definite disadvantages', since that sum plainly could

that it is based on the principle that the amount to be reimbursed must not be less than the expenses actually incurred.

'opinion' The should thus be interpreted in the light of that principle.

Apart from the rail fare, the provisions applicable in this case only provided,

as the basis of reimbursement for cases involving the use of a private car, the rate of 3 Belgian francs for each kilometre covered by car.

It emerges from these factors that the applicant's claim relating to the payment of 2920 Belgian francs is well founded.

Moreover, the High Authority owes the applicant interest at the rate of 4.5% from the date on which the application was made up to the date of payment.

With regard to the interest due on the sum of 12364 Belgian francs, the

High Authority has stated that it is prepared to pay it only until the date on

which the statement of defence was served on the applicant.

In accordance with the general principles of law, however, this period must run until the sum due has in fact been paid.

(b) With regard to the journey appearing in the statement under No 16,

the dispute between the parties turns in addition on the question whether

These journeys must be examined in accordance with Article 17 (d) of the former Staff Regulations of the ECSC and in particular the last sentence, 'opinion'

quoted at B above, together with the of the administrative com­

mittee of the High Authority of 20 February 1961, approved by the President

of the High Authority.

That 'opino ':

— fixes the rate per kilometre at 3 Belgian francs;

distance covered)'.

(d) Consequently, one of the conditions for reimbursement at the rate per kilometre was the finding that reimbursement in accordance with the rail

fare clearly covered only a part of the actual mission expenses.

That finding had to be made by the general department of the administra­

tion in order to avoid discrimination between the officials of the High

Authority.

Therefore the applicant's claim on this point is unfounded.

(e) In accordance with the above-mentioned provisions, another condi­

tion for reimbursement at the rate per kilometre was that the immediate

superior of the servant concerned certifies with reasons on the travel order

the need, for reasons of service, to use a private car.

With regard to the entry appearing in No 15 of the statement, the travel order bears the following remark, 'Mr Lepape must use his car on the basis of 3 Belgian francs per kilometre to retain full freedom to visit collieries to be

stance must be imposed for declarations intended to establish the right to

reimbursement at the rate per kilometre —

an arrangement which the

Regulations expressly describe as an exception.

For this reason, the applicant's claim on this point is unfounded.

Having regard to the foregoing, the claim relating to the payment of a sum of 3645 Belgian francs must be dismissed.

The destinations were Antwerp, Rotterdam, Luxembourg and Liege, together with the industrial region in the neighbourhood of Liege.

The immediate superior of the applicant entered on the travel orders for the first two journeys: 'Mr Lepape is authorized to use his private car and is

entitled to a kilometre allowance of 3 Belgian francs per kilometre'.

The travel order provided for the third journey on mission contains only the entry initialled by the immediate superior 'own car, 3 Belgian francs per kilometre'.

'opinion'

Contrary to the of 20 February 1961, these entries do not establish the need to use a private car.

III — Costs

Under Article 70 of the Rules of Procedure, in disputes between the Com­

munity and its officials, the institution concerned shall bear its own costs.

The applicant has succeeded in only a small part of his claim.

Account must be taken, however, of the tact that he has been obliged to make

an application in order to obtain recognition of his rights.

Community; Having regard to the Protocol on the Statute of the Court of Justice of the European Coal and Steel Community, especially Article 32;

Having regard to the Staff Regulations of the European Coal and Steel C­ ommunity of 1 July 1956, especially­ :

—

Articles 13 (d) and 17 (d) in the original version; —

Articles 15 (a) and 17 (d) in the version emerging from the decisions of the Committee of Chairmen of 21 November 1960, which entered into force on 1 D­ecember ber­ 1 960;60­ ;

Having regard to the Staff Regulations of officials of the European Coal and Steel Community of 1 January 1962, especially Annex VII, Article 12 (1) and (4):

1. (a) Takes note of the High Authority's offer to pay to the

applicant, in full and final settlement, the sum of 12364 Belgian francs, which, according to the information provided

by the High Authority, results from the amendments to the accounts of the mission expenses for the journeys on mission

undertaken by the applicant between 1 March and 17 April 1961;

(b) Orders the High Authority to pay to the applicant, on the amount mentioned in subparagraph (a) above, interest at the rate of 4.5% from the date on which the application was made up to the date on which the sum due is actually paid;

2. Orders the High Authority to pay to the applicant the sum of 2920 Belgian francs together with interest at 4.5% from the date on which the application was made up to the date of

H. J. Eversen A. Trabucchi

Assistant Registrar President of the First Chamber For the Registrar