C-47/70

JUDGMENT OF THE COURT (SECOND CHAMBER) 17 MARCH 19711

Heinrich Kschwendt

ν Commission of the European Communities

Case 47/70

Summary

Officials — Applications — Clear inadmissibility — Costs which one party unreason­ ably causes the other to incur — Article 70 of the Rules of Procedure — Inapplic­ ability (Rules of Procedure, Articles 69 and 70)

Application at the present stage of the proceedings, for a decision as to the admissibility of the application lodged by the applicant for the annulment of the implied decision of the Commission rejecting his claim of 30 April 1970 for payment of daily subsistence allowances and of notional removal expenses in accordance with Article 10 (1) and (3) of Annex VII to the Staff Regulations and with Article 25 (1) and (3) of the Conditions of Employment of Other Servants,

1 — Language of the Case : French.

JUDGMENT OF 17. 3. 1971 — CASE 47/70

THE COURT (Second Chamber)

composed of: A. Trabucchi, President of Chamber, P. Pescatore (Rapporteur) and H. Kutscher, Judges,

Advocate-General: A. Dutheillet de Lamothe Registrar: A. Van Houtte

I — Facts ly, he was asked to pay back the daily subsistence allowances 'overpaid'. By contract of 20 September 1965 Mr On 26 July 1966 Mr Kschwendt ad­ Heinrich Kschwendt was appointed by dressed a complaint to the Director- the Commission of the ECSC as a General for Personnel and Administration temporary scientific officer and assigned of the Commission. The Head of the to the Joint Nuclear Research Centre Personnel and Internal Adrninistration (hereinafter referred to as the Centre'), Branch of the Ispra Centre informed Ispra. him on 5 October 1966 that he could When he took up his appointment, his not be granted the daily subsistence place of origin within the meaning of allowance because on taking up his ap­ Article 7 (3) of Annex VII to the Staff pointment he was living 'at the home Regulations was determined as being set up by his wife' and that his appoint­ Graz (Austria). ment did not cause him to be separated Mr Kschwendt received until 31 January from his family which alone could justify 1966 the daily subsistence allowance pro­ payment of this allowance but, on the vided by Article 10 (1) of Annex VII other hand, his actual removal expenses to the Staff Regulations and Article could be reimbursed. 25 (1) of the Conditions of Employment On 5 December 1966, Mr Kschwendt of Other Servants for an official or asked the Personnel and Internal Ad­ temporary servant who furnishes evid­ ministration Branch if he was entitled to ence that he can no longer reside at his receive reimbursement of notional re­ original place of residence and who has moval expenses, in accordance with not moved to his place of employment. Article 10 (3) of Annex VII to the Staff On 27 June 1966 the Head of the Staff Regulations (Article 25 (3) of the Con­ and Internal Administration Branch of the ditions of Employment of Other Ser­ Ispra Centre informed Mr Kschwendt vants) and in accordance with Circular that he did not fulfil the conditions No 16 of the Commission of 16 Sep­ either for payment of the daily subsis­ tember 1965. tence allowance or for repayment of This request was rejected on 9 January actual or notional removal expenses 1967 by memorandum of the Head of since before his appointment he had the Personnel and Internal Administra­ been residing 'at the home' of his wife, tion Branch confirming his opinion that at his place of employment; consequent- when he was appointed Mr Kschwendt

was residing with his wife at his place II — Procedure of employment. On 30 January 1970 Mr Kschwendt, The application originating the proceed who had become an established official ings was registered at the Court Regis with effect from 1 April 1968, reminded try on 6 August 1970 the Personnel Branch at Ispra of a letter By document lodged on 10 October of 7 March 1967 in which he had 1970, the Commission applied to the asked them, in particular, to inform him Court, in accordance with Article 91 of whether his place of recruitment was the Rules of Procedure, for a decision Graz or Ispra. on the admissibility of the application On 20 March 1970, the Head of the without dealing with the substance of Personnel and Internal Administration the case and for a declaration that the Branch informed Mr Kschwendt that application was inadmissible. his case had been the subject of further In his observations submitted on 6 detailed examination following which his November 1970, the applicant asked the attention was drawn to the folowing Court principally to reserve its decision points: for the final judgment, alternatively, to dismiss the objection of inadmissibility (a) on the basis of information supplied and, in either case, to prescribe new by Mr Kschwendt himself his resi time-limits for the further steps in the

The Advocate-General delivered his claim payment for the notional re opinion on the admissibility of the moval expenses either. application on 3 February 1971. By letter of 30 April 1970, registered on 5 May, Mr Kschwendt, acting in ac III — Submissions and argu cordance with Article 90 of the Staff ments of the parties Regulations, formally requested the ap on the admissibility pointing authority of his institution to of the application revoke its refusal to recognize Graz as his place of residence at the time of his The submissions and arguments of the appointment and to pay him the daily parties on the admissibility of the subsistence allowance and the notional application may be summarized as removal expenses. follows: Since he did not receive a reply from The defendant, the applicant with regard the Commission, Mr Kschwendt lodged to the preliminary objection, maintains the present application for the annul that the application is inadmissible be ment of the implied decision rejecting cause it is directed against a decision re his request. jecting a request which confirms previous

decisions which were not themselves the Graz as the applicant's place of residence subject of the application lodged within on his appointment does not even con the time-limits laid down by Article 91 stitute a new ground and it would not in of the Staff Regulations of Officials. any case suffice to cause a period for The implied decision contested in this lodging an appeal, which has expired, to application is in fact essentially a simple start to run afresh. The determination of confirmation of the decision of 27 June the place of origin of the official on the 1966, 5 October 1966 and 9 January taking up of his appointment relates only 1967. to travel expenses; in relation to the (a) The decision of 27 June 1966 was conditions for the granting of the daily the subject of a complaint lodged under subsistence allowance a different concept Article 90 of the Staff Regulations on 26 is applicable, that of no longer being able July 1966; this complaint was rejected to reside at his place of residence and, in on 5 October 1966 by a confirmatory this connexion, neither the reasoning of decision which the applicant did not the administration nor the facts have contest by lodging an application to the changed; there is neither a new fact nor Court within three months of notifica

decision. According to established case accepted. law, the rejection of a complaint by a The Staff Regulations provide for an decision confirming a previous decision is approach to be made to the author of not an act adversely affecting an official the act complained of (recours gracieux) or other servant within the meaning of in addition to an approach submitted Article 91 of the Staff Regulations. through the immediate superior of that (b) The fact that the administration, official (recours hiérarchique). Article 91

KSCHWENDT v COMMISSION

plaint through official channels made by jection, is a purely confirmatory measure the applicant within the meaning of which is not capable of adversely affect Article 90, it must be stated that, by ing an official, is very questionable. writing once more to the applicant before (b) In any case, the applicant points out the expiry of the period for lodging an that before the express decision rejecting appeal to the Court, the administration his complaint of 20 March 1970 can continued the discussion of the questions constitute confirmation of a previous im at issue on a local administrative level plied rejection, the administration must and this caused the measure of 5 previously have had submitted to it a October 1966 to lose its formal nature complaint within the meaning of Article and therefore prevented it from starting 90 of the Staff Regulations; but this was the period for lodging an appeal to the

5 October 1966 is also wrongly de of the administration to clarify its atti scribed by the Commission as a de tude by means of a lengthy discussion cision; it does not in fact constitute of the reasons: it contains new points of any action on the part of the appoint fact and law: the new point of fact was ing authority. the opinion of the Director-General, — The applicant's letter of 7 March which the applicant had not known until 1967 merely posed a certain number then; the new points of law consist in of questions; it was therefore neither the further arguments that the adminis a request nor a complaint within the tration puts forward both as regards the meaning of Article 90 of the Staff new determination of the applicant's Regulations. place of residence when he was appoin — The first and sole complaint within ted and as regards the refusal to reim the meaning of Article 90 submitted burse the removal expenses.

5 On 27 June 1966, the Head of the Personnel and Internal Administration Branch of the Ispra Centre informed the applicant by memorandum that he did not fulfil the conditions either for payment of the daily subsistence allow­ ance or for repayment of actual or notional removal expenses since before his appointment he had been living at the home of his wife, herself an official of the Ispra Centre, at the place where he was subsequently employed.

6 According to a detailed account contained in this memorandum, the daily subsistence allowances paid from 23 September 1965 to 31 January 1966 were set off against other allowances owed to the applicant and his wife and the applicant was given the choice of either immediately repaying the balance or having it deducted when he was established.

7 In fact, this balance was deducted when the remainder of the installation allowance was paid following the applicant's establishment.

8 It follows from the above that on 27 June 1966 the Community administra­ tion took a decision relating to the applicant against which the latter was entitled to appeal under Article 91 of the Staff Regulations.

KSCHWENDT v COMMISSION

9 At that time, the applicant had the choice of either lodging a direct appeal to the Court under Article 91 of the Staff Regulations or of submitting to the appointing authority, under Article 90 of the same Staff Regulations a com­ plaint against the decision taken with regard to him.

16 For this reason, if the complaint of 26 July 1966 was not validly submitted the period for lodging an appeal which began to run with the decision of 27 June 1966 expired in accordance with Article 91 (2) after three months, whereas if the complaint of 26 July 1966 were to be considered as having been duly submitted the period for lodging an appeal expired in accordance with the second subparagraph of Article 91 (2) at the latest four months after this complaint was submitted.

17 It follows from the above that, in any event the period for lodging an appeal expired at the latest towards the end of 1966.

JUDGMENT OF 17. 3. 1971 — CASE 47/70

18 The communication from the Head of Personnel and Internal Administration Branch of the Ispra Centre of 20 March 1970—the same authority which was allegedly not competent and which took the initial decision—did not have the effect of conferring a new right of appeal since it was a decision which merely confirmed a situation which the memorandum of 27 June 1966 had rendered incontestable.

19 The application must therefore be dismissed as inadmissible.

Costs

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 Officials, especially Articles 90 and 91 and Articles 7 (3) and 10 (1) and (3) of Annex VII; Having regard to the Conditions of Employment of Other Servants of the Communities, especially Article 25 (1) and (3); Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;

KSCHWENDT v COMMISSION

THE COURT (Second Chamber)

hereby:

1. Dismisses the application as inadmissible;