C-60/69

JUDGMENT OF THE COURT (SECOND CHAMBER) 15 JULY 1970<apnote>1</apnote>

Charles Chuffart, Jean Jaeger and Jean Janssen v Commission of the European Communities

Joined Cases 60, 61 and 62/69

Summary

Officials — Receipt before the entry into force of the Staff Regulations of 1962 of separation allowance provided for by the ECSC Staff Regulations — Expatriation allowance — Failure to qualify therefor — Right to an amount equivalent to the separation allowance — Persons entitled (ECSC Staff Regulations of Officials of 1962, Article 97)

The sole purpose of the first paragraph of 4 of Annex VII to the Staff Regulations of Article 97 of the ECSC Staff Regulations of 1962, the amount which they would have Officials of 1962 is to maintain for the received by way of separation allowance benefit of officials who received a separation under the former system. The said first allowance under the ECSC Staff Regula­ paragraph is thus not applicable to officials tions of Officials of 1956, without qualifying who, having received the expatriation for an expatriation allowance under Article allowance, no longer qualify therefore.

1 — Language of the Case: French.

JUDGMENT OF 15. 7. 1970 — JOINED CASES 60, 61 AND 62/69

V

Commission of the EUROPEAN COMMUNITIES, represented by its Legal Adviser, Louis de la Fontaine, acting as Agent, with an address for service in Luxembourg at the office of its Legal Adviser, Émile Reuter, 4 boulevard Royal,

defendant,

Applications for:

Registrar; A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts ECSC Staff Regulations') were applied to them on their entry into force on 1 July 1956 The facts may be summarized as follows: they were granted the separation allowance provided for in those Staff Regulations and 1. The applicants, who are Belgian nation­ the 'General Community Regulations' als, entered the service of the High Author­ (hereinafter referred to as the 'General ity of the ECSC in 1954 (Mr Chuffart) and Regulations') which form an integral part 1953 (Mr Jaeger and Mr Janssen). At that of the first ECSC Staff Regulations. time they were resident in Luxembourg. As from 1 January 1962 this allowance was When the ECSC Staff Regulations of replaced, as regards the applicants, by the Officials (hereinafter referred to as the 'first expatriation allowance provided for in the

CHUFFART ν COMMISSION

20 October: Mr Chuffart and Mr Jans 2. In an official communication published sen] at the latest'; in Staff Courier No 14 of 11 March 1968, the Commission brought to the notice of — 'under the provisions of the Staff Regula officials the list of departments which were tions (fourth paragraph of Article 97 [of to be established in Brussels and Luxem the second ECSC Staff Regulations]), bourg. you will no longer receive the expatria A further official communication from the tion allowance. However, you will con Commission which appeared in the Staff tinue to receive this allowance [until the Courier (Supplement to No 15 of 26 March dates indicated in the preceding indent], 1968) reminded officials that: unless you move house before the date'. 'In accordance with Article 4 of Annex VII to the Staff Regulations<apnote>1</apnote> , entitlement 5. By letters dated 12 July and 12 August 1968 addressed to the Director-General for to the expatriation allowance is subject to Personnel and Administration at the Com conditions of nationality and habitual residence. Under these provisions Belgian mission, Mr Janssen and Mr Jaeger respect officials transferred from Luxembourg to ively stated: Brussels and Luxembourg officials trans ferred from Brussels to Luxembourg lose — that they were unable to agree with the interpretation of the fourth paragraph of the right to this allowance.

. allowance by satisfying the requirements therefor.' By letters dated 6 August (Mr Janssen) and 3. By letters dated 28 May (Mr Jaeger) and 6 September 1968 (Mr Jaeger) the Director- 12 June (Mr Chuffart and Mr Janssen), the General in question replied that: 'It is not defendant informed the applicants of its possible for you to continue to receive the decision to appoint them to certain new expatriation allowance'. posts, 'in the context of measures of ad ministrative reorganization and rational

1 — This term refers to the Staff Regulations of Officials of the European Communities laid down by Regulation (EEC, Euratom, ECSC) No 259/68 of the Council (OJ L56 of 4.3.1968, p. 1) hereafter referred to as the 'com­ bined Staff Regulations'.

JUDGMENT OF 15. 7. 1970 — JOINED CASES 60, 61 AND 62/69

or from 1 November 1968 (Mr Janssen), — leaves the question of the admissibility of which in fact occurred. the application to the wisdom of the Court of Justice; 7. By a joint letter dated 17 June 1969 ad­ dressed to the President of the Commission, — contends that if the application were to making express reference to Article 90 of be found to be admissible the Court of the EEC-EAEC Staff Regulations, the ap­ Justice should dismiss it in its entirety as plicants: unfounded; and at all events;

— declared, stating their reasons, that the — contends that the applicant should be discontinuance of the expatriation allow­ ordered to pay the costs. ance represented 'a mistaken application of the provisions of the Staff Regula­ In their replies, the applicants restate the tions'; conclusions set out in their applications, apart from the phrase 'exceptional damage', — requested that Article 106 of the EEC- which is replaced by the expression 'material EAEC Staff Regulations be applied to and non-material damage'. them 'as from the date of our posting to In its rejoinders, the defendant restates the Brussels' and that they be paid the conclusions formulated in its defence to amount 'which they received by way of each application. separation allowance on 1 January 1962'.

of the Court, the defendant questions missibility is doubtful only to the extent to whether the applications are admissible, on which the applications concern the allow the ground that they are out of time. In ance provided for by the first paragraph of particular, it wonders whether the concept Article 97. of legal certainty did not require the officials concerned to introducea complaint through 2 — The substance official channels at the latest on the expiry of the third month following payment of the A — The requests for the grant of the reduced remuneration, and possibly to allowance in question follow it by an action for failure to act

Regulations. — the present applications are based on a In its defence the defendant interprets the new request. In fact, they are based first paragraph of Article 97 to mean that, solely on the first paragraph of Article 97 in order to receive the amount in compensa of the second ECSC Staff Regulations, tion for the separation allowance provided whereas the measures and actions to for by that provision, the applicants must which the defendant refers in order to qualify for the grant of that allowance under question the admissibility of the applica the first ECSC Staff Regulations and the tions were based on the fourth paragraph General Regulations 'having regard to of the same article; (their) present place of residence and to (their) present place of employment'. — the applicants are entitled to refer to a Under the terms of Article 9 (b) of the new factor authorizing them to reopen General Regulations, for an official to

applies to the applicants. Article 97 of the second ECSC Staff Regula tions and Article 106 of the EEC-EAEC The defendant replies that according to the Staff Regulations is to continue to allow the established case-law of the Court, although officials referred to therein to qualify for the the request or complaint referred to in former separation allowance, the require Article 90 of the Staff Regulations may be ments for which were less strict than those submitted at any time, it can only extend the laid down for the expatriation allowance in period for lodging an appeal before the the new Staff Regulations.

JUDGMENT OF 15. 7. 1970 — JOINED CASES 60, 61 AND 62/69

The authors of the comes from an area outside Brussels, various Staff Regulations have always taken even if it is more than 70 km from Brus care that the transfer from one system of sels, who was appointed after 1 January Staff Regulations to another should not 1960 under the system [laid down in the adversely affect existing situations. EEC-EAEC Staff Regulations], who was Therefore, to be able to invoke the applica posted first to Luxembourg and whose tion of the first paragraph of Article 97 of place of employment was subsequently the second ECSC Staff Regulations, it is transferred from Luxembourg to Brus

under the so-called "Brussels" system (that existing before the entry into force — for example, while he is unable to claim of the EEC-Euratom Staff Regulations) an expatriation allowance, a Luxem who was posted first to Luxembourg and bourg official who is recruited from an whose place of employment was subse area situated more than 25 km from the quently transferred from Luxembourg to city of Luxembourg and who continues Brussels, loses the benefit of the expatria to reside there, benefits from the con tion allowance but may still take ad tinued payment of the amount in com vantage of the more liberal conditions set pensation for the former separation out in the former "Brussels" system (place allowance ; on the other hand, a colleague of origin situated more than 70 km from from the same country, recruited in the place where, as a result of his transfer, Luxembourg to perform duties in Brus he has established his new residence) in sels and transferred to Luxembourg order to claim payment of the amount of following the merger of the executive his former separation allowance.' bodies, no longer receives any allowance In their replies the applicants state that their as from that moment.

In partic place of residence more than 25 km from ular, they put forward the following con Brussels. siderations: The aim of the provisions in the Staff The first paragraph of Article 97 and Article Regulations which governed successively 106 are not intended to recreate artificially the separation allowance and the expatria- the conditions for granting the former

separation allowance, but provide for the transferred after 1 January 1962 to the award of an amount equal to that allowance, country of which they are nationals. which cannot be modified in the future, to Although Article 106 provides for trans those who qualify therefor. The defendant ferred officials to receive only the frozen is confusing the respective conditions of amount of the former separation allowance application of the first and fourth para while the fourth paragraph of Article 97 graphs of Article 97, although the difference enables those transferred officials referred in wording existing between these two to therein to receive the expatriation allow provisions confirms that the applicants' ance, this favourable treatment of former argument is well-founded. The reference in ECSC officials is explained by the fact that the first paragraph to the first ECSC Staff they had already been governed by Staff Regulations was made 'for the sole purpose Regulations before 1 January 1962. of calculating the amount to be paid in com The result of all these points is that, in the

Therefore, in cerned be situated more than 25 km from view of the fact that a single body of Staff his new place of employment. For this pur Regulations now exists, these two provi pose it appears necessary to analyse first sions must be interpreted in the same way. Article 106 of the EEC-EAEC Staff Regula In fact, the applicants fulfil the conditions tions, as it is practically identical to the first required for the application of Article 106. paragraph of Article 97 of the second In its rejoinders, the defendant puts forward, ECSC Staff Regulations. in particular, the following points: Article 106 applies only to an official who, It is true that, considered in isolation, the as a result of a transfer, is placed in a first paragraph of Article 97 of the second position in which under the conditions of ECSC Staff Regulations appears also to employment in force before 1962, he would refer to officials who were already in em have benefited from the separation allow ployment before 1962 and who, since ance; thus it applies to an official whose 1 January 1962, have been or will be trans

. . which he would have received', As special rules form exceptions to general but rather the phrase 'the amount which rules it must be accepted that in spite of its he was receiving'. Similarly, it would not apparently more liberal wording the above have been necessary to add 'under the mentioned first paragraph applies solely to scale of remuneration existing before officials whose place of employment has not these Staff Regulations entered into changed. On the other hand, in the absence force'. of any provision creating an exception cor responding to the fourth paragraph of — The sole purpose of transitional provi Article 97, Article 106 of the EEC-EAEC sions such as those in question is to grant Staff Regulations also refers to officials servants the benefit of the earlier rules, to

the extent to which they were more The criticism contained in the applicants' favourable than the new rules. The ar example of the two Luxembourg officials is gument put forward by the applicants directed at the Staff Regulations themselves. amounts to accepting that 'all servants in It is not true that the applicants would employment before 1962 who benefited, receive the separation allowance if they had be it only for a few weeks, from the settled more than 25 km from Brussels. separation allowance, are entitled to the Neither the former High Authority nor the extraordinary advantage of retaining the Commission has ever interpreted the phrase benefit of that allowance without even 'have been caused' which appears in Article fulfilling the already extremely liberal 9 of the General Regulations to mean that conditions under the scheme in force it is enough for an official to take a delibera until 1 January 1962'. te decision, which is not required on grounds of his employment, to settle in an area more A similar interpretation applies to the first than 25 km from his place of employment in paragraph of Article 97. order to be able to claim the separation As regards the fourth paragraph of Article allowance. Such an official has in fact placed 97, the institutions have always interpreted himself voluntarily in a position regarded this to mean that if a servant recruited under by the Staff Regulations as disadvan the ECSC Staff Regulations continues after tageous. his transfer to qualify for the separation Articles 97 and 106 only concern the allowance under the first ECSC Staff 'amount which he would have received by Regulations (distance of more than 25 km way of separation allowance' and not the between the place of recruitment and the allowance itself, but this is explained by the new place of employment), he is entitled to fact that the allowance as such no longer the expatriation allowance.

In fact, they claim to have been force on that date provide, in the matter of placed 'abruptly' and without warning in a separation or expatriation allowances, for psychological and financial situation of the possibility of an official's 'taking root' particular difficulty. as the result of prolonged residence in one In its defence, the defendant replies that as it place, nor of his being 'uprooted' as a result has correctly applied the Staff Regulations it of prolonged absence from his place of is responsible for no wrongful act or omis

origin. This principle is also to be found in wording of the Staff Regulations and who the first paragraph of Article 4 of Annex VIE received, within the prescribed period, com to the combined Staff Regulations. munications of both a collective and an

individual nature concerning the way in — from the fact that, returning to Brussels which those Regulations would be applied after 14 or 15 years' absence, the appli to their cases. cants had to face problems arising from In their replies, the applicants maintain that their transfer: complete disruption of even if the Court were to dismiss the appli their former manner and way of life at the cation for annulment, they are entitled to age of 45 or 51 years, the fact that ac complain of a wrongful act or omission on commodation is more expensive then in the part of the defendant. Officials are Luxembourg, etc. entitled to expect the administrative author ity to draw up its Staff Regulations for the In its replies the defendant raises the ques purpose of protecting their individual tion whether, in their rejoinders, the appli rights. cants have not submitted a new request In order to know whether they were to be which is inadmissible at the present stage of posted to the departments established in the proceedings. They state therein for the Brussels the applicants had to wait for the first time that a wrongful act or omission memoranda of 28 May or 12 June 1968. existed even if the implied decision in In addition, Mr Jaeger and Mr Janssen dispute was lawful. The defendant states refer to certain circumstances which con that it leaves this point to the wisdom of the cern the departments to which they were Court. answerable at that time and conclude that The criticisms made by the applicants are in they were unable to be certain until the last fact directed to the authors of the Staff minute that they were being posted to Regulations. Brussels and not to Luxembourg. The uncertainty preceding the decision to The applicants complain of a lack of in post the applicants to Brussels was not in formation' and a 'failure to protect their itself sufficiently serious to give rise to a legitimate expectation'.

ance'. On 15 October 1968 the defendant Brussels. deducted, in a single operation, a sum amounting to three months' expatriation The applicants' position is no less favour allowance (BF 27 771 or BF 34 191). able than that of many other officials, in The defendant's attitude resulted in both particular officials who originated in Brus material loss corresponding to the amount sels and who, having always been resident of the frozen separation allowance which in that city, have never received any allow the applicants were refused as from 1 August ance. In particular, if the applicants com plain of being 'uprooted' from Luxembourg or 1 November 1968, and non-material loss. The latter resulted from the sudden reduc it must be concluded that for many years

JUDGMENT OF 15. 7. 1970 — JOINED CASES 60, 61 AND 62/69

Grounds of judgment

1 By applications lodged on 16 October 1969 the applicants, who lost the benefit of the expatriation allowance following a change in their place of employment, requested the Court to annul the implied decisions by which the Commission refused to award them the sum which they would have received by way of separation allowance under the first paragraph of Article 97 of the second ECSC Staff Regula­ tions.

2 In addition, they have claimed compensation for the damage which they allegedly suffered as the result of a wrongful act or omission on the part of the Commission.

I — Admissibility

3 The defendant raises the question whether the applications are inadmissible on the ground that they were submitted outside the prescribed time-limit.

9 On the other hand, the present applications seek to obtain for the applicants the amount which they would have received by way of the former separation allowance, in accordance with Article 106 of the EEC-EAEC Staff Regulations and the first paragraph of Article 97 of the second ECSC Staff Regulations.

10 Thus, the present applications do not concern the measures taken by the Com­ mission in 1968.

11 The applications are thus admissible.

II — Substance

1 — The first two heads of claim

12 Under the first two heads of claim in their applications the applicants are seeking, first, the annulment of the implied decision rejecting their request for the award of the amount which they would have received by way of separation allowance, and secondly, a ruling that they may claim payment of this amount and an order for it to be paid by the defendant.

18 Thus they were never in the situation referred to in the transitional provision contained in the first paragraph of Article 97.

19 Accordingly, the first two heads of claim in the application must be dismissed as unfounded.

2 — The third head of claim

20 Under the third head of claim in their applications, the applicants request the Court to 'rule that as a result of acts and omissions on the part of the opposite party, [they] suffered exceptional damage, the amount of which should be deter­ mined impartially by the Court'.

21 This request is based on the conditions under which the applicants' expatriation allowance was discontinued.

22 The legal justification for this disadvantage is to be found in the first decisions taken by the Commission under the fourth paragraph of Article 97 of the second ECSC Staff Regulations, which became definitive when no appeal was submitted within the period laid down.

26 The applicants have failed in their submissions.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General ; Having regard to the Staff Regulations of the ECSC which came into force on 1 July 1956; Having regard to the General Regulations of the ECSC which came into force on the same date, especially Article 9 (b) ; Having regard to the ECSC Staff Regulations of Officials which came into force on 1 January 1962, especially Articles 93 and 97; Having regard to the EEC and EAEC Staff Regulations of Officials which came into force on 1 January 1962, especially Article 106; Having regard to Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down, in particular, the Staff Regulations of Officials of the European Communities (OJ L 56 of 4. 3. 1968, p. 1); Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69 and 70,

THE COURT (Second Chamber)

hereby:

1. Dismisses the applications;