C-33/71
ECLI:EU:C:1972:33
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JUDGMENT OF THE COURT (FIRST CHAMBER) 3 MAY 1972<apnote>1</apnote>
Wiebe de Haan v Commission of the European Communities
Case 33/71
Summary
Officials — Removal in the interests of the service — Expenses — Reimbursement — Conditions
(Staff Regulations of Officials of the European Communities, Annex VII, Article 9)
Article 9 of Annex VII to the Staff Regula ready changed in his place of residence tions aims to indemnify officials for actual pending his establishment or transfer must and necessary expenses following a removal not be excluded from the application in the interests of the service. thereof, such an interpretation is however only justified so as to prevent the official Although that provision must be inter from having to bear the expenses incurred preted widely and an official who has al- out of his salary.
In Case 33/71
Wiebe de Haan, an official of the Commission of the European Communities, residing at 13 Struikenlaan, Sint-Genesius-Rode, 1640 Brussels, represented by Marcel Slusny, Advocate at the Cour d'appel, Brussels, with an address for service in Luxembourg at the Chambers of Ernest Arendt, Advocate, 34b rue Philippe-II,
applicant,
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 offices of Emile Reuter, Legal Adviser to the Commission, 4 boulevard Royal,
defendant,
1 — Language of the Case: French.
JUDGMENT OF 3.5.1972 — CASE 33/71
Application for the reimbursement of the expenses of the removal by the applicant on 16 August 1968 from Ispra to Brussels,
THE COURT (First Chamber),
composed of: J. Mertens de Wilmars, President of Chamber, A. M. Donner (Rapporteur) and R. Monaco, Judges,
Advocate-General: K. Roemer
Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Summary of the facts and memorandum addressed to the Personnel procedure and Administration Division, informed the administration of the financial con The facts which form the basis of this sequences of the mistake it had made. action and the procedure may be sum During August the applicant was given marized as follows: permission to go to Brussels on mission until further notice, it being understood Since 1 June 1961 the applicant has been that the allowance which he would receive assigned to the offices of the EAEC at for mission expenses would be paid by the Ispra. By letter of 12 June 1968 the Directorate-General for Energy. Director-General for Personnel and Ad On 16 August 1968, the applicant moved ministration of the Commission of the from Ispra to Brussels. European Communities informed him By letter of 25 March 1970, the Director- that he was transferred to the Directorate- General for Personnel and Administration General for Energy in Brussels as from informed the applicant that if he had not 20 June 1968, the date on which his yet moved he was authorized to do so previous assignment ended. Following that because he would be permanently trans note, the applicant terminated a tenancy ferred to Brussels as from 1 April 1970. agreement for a house at Ispra and rented From 16 August 1968 to 1 April 1970, the a house at Sint-Genesius-Rode under a applicant received a sum in excess of lease dated 27 July 1968. Bfrs 350 000 as mission expenses. On By letter of 2 August 1968 the applicant 1 April 1970 the installation allowance was informed that the decision transferring was paid to the applicant. him to the Directorate-General for Energy By letter of 10 November 1970 addressed at Brussels had been made in error. to the Director of the Individual Rights On 5 August, the head of Personnel and Division, the applicant claimed reimburse Internal Administration at Ispra confirmed ment of the removal expenses laid down in to the applicant the communication made Article 9 of Annex VII to the Staff Regula to him on 2 August 1968 and requested tions of Officials of the European Com him to remain in Ispra until further notice. munities. On 8 August 1968 the applicant, in a By note of 13 January 1971, the Director
DE HAAN ν COMMISSION
of the Individual Rights Division informed when he had already rented a house him that he was not entitled to reimburse in the suburbs of Brussels, that the ment of removal expenses. decision was erroneous; By letter of 1 March 1971 registered at the (b) Order the opposite party to pay Secretariat of the Commission on 16 damages assessed at Bfrs 80 000, March 1971, the applicant sent the ap subject to increase in the course of pointing authority an application for the proceedings; reimbursement of removal expenses. Con sidering that the period of two months laid 3. In any case down in Article 91 (2) of the Staff Regula — Order the opposite party to pay the tions of Officials started to run on 16 May costs of the action. 1971, the applicant brought the matter before the Court by application lodged at The defendant contented that the Court the Registry on 29 June 1971. should :
The written procedure followed the normal course. The Court (First Chamber) after (a) Declare the application to be wholly hearing the report of the Judge-Rapporteur unfounded; and the views of the Advocate-General, (b) Order the applicant to pay the costs. decided to open the oral procedure without any preparatory inquiry. III — Submissions and arguments The parties presented oral argument at the of the parties hearing on 3 February 1972. The Advocate-General delivered his The submissions and arguments of the opinion at the hearing on 21 March 1972. parties may be summarized as follows :
(a) The primary claim II — Conclusions of the parties The applicant maintains that Article 9 of The applicant claimed that the Court Annex VII to the Staff Regulations does should : not in any way imply that an official must have prior authorization by the administra 1. Primarily tion to move, but merely that the (a) Rule that the implied rejection by reimbursement of removal expenses by the the Commission of the European latter will not exceed the amount of an Communities of his complaint estimate approved in advance. The sole though official channels of 1 March objective of Article 9 of Annex VII to the 1971 is null and void; Staff Regulations is in fact to prevent the institution in question from having to (b) In exercise of its unlimited jurisdic reimburse removal expenses of too great tion in contentious matters, order an amount. The applicant complied with the opposite party to pay to the that provision by delivering to the Com applicant the sum of Bfrs 80 000 mission two estimates, the lower of which in application of Article 9 of Annex he himself chose. Since he had terminated VU to the Staff Regulations, subject his lease in Ispra and had rented a house to increase in the course of the in Sint-Genesius-Rode on 28 July 1968, proceedings ; he was unable to await a possible decision by the Commission. 2. Alternatively The opinion of the Commission that (a) Rule that the opposite party is previous approval of an estimate is the responsible for the mistake made by necessary condition for obtaining re its administration in transferring imbursement cannot be accepted in view of the applicant to Brussels on 12 June the objective of that provision. The appli 1968 as from 20 June 1968 and in cant is therefore entitled to claim re informing him on 2 August 1968, imbursement of the removal expenses as
JUDGMENT OF 3.5.1972 — CASE 33/71
from the date of his permanent transfer to lease in Ispra which led to legal proceed Brussels, that is, 1 April 1970. ings with his landlord. The costs incurred in According to the defendant, Article 9 of that case amounted to approximately Annex VII to the Staff Regulations makes Lit. 550 000. the right to reimbursement of removal The defendant states that it cannot be expenses conditional upon the need to made liable for the fact that the landlord move so as to enable the official in question did not fulfil his obligations towards the to reside at his place of employment, in applicant. Moreover, the alleged losses accordance with the provisions of Article are amply compensated for by the mission 20 of the Staff Regulations.
Since the expenses which the applicant received applicant's place of employment was during the period from 16 August 1968 Ispra at the date of the move, he only to 31 March 1970 when he already resided moved for his personal convenience and in Brussels. at his own risk and not in order to comply The applicant replies that the allowance for with the duty laid down in Article 20 of mission expenses is a flat-rate amount the Staff Regulations. Accordingly, Article which is paid to an official regardless of 9 of the same annex expressly prohibits the the actual expenses which he incurs.
His applicant's claim. installation in Brussels whilst awaiting his The applicant claims that a number of transfer does not affect the validity of that officials at Ispra who were also on mis allowance. Moreover, the defendant itself sion in Brussels for a considerable time is responsible for the continuance of the obtained payment of their removal ex uncertain situation in which the applicant penses. Moreover, it is difficult to explain found himself during that period. why the installation allowance laid down Finally, the applicant observes that his in Article 5(2) of Annex VII to the Staff application is not based exclusively on the Regulations was in fact granted to the infringement of Article 9 of Annex VII applicant whilst the removal allowance to the Staff Regulations and on the wrong was refused him. ful act or omission on the part of the The defendant replies that the position of administration but that it can also be the officials mentioned by the applicant based upon unjust enrichment. differs from his own since their removals The defendant contests the admissibility only took place after their transfer to of the latter ground of claim because it was Brussels, that is, after the end of their not put forward in the originating applica period on mission. tion. A mere allusion in the application During the oral procedure, the defendant cannot be considered as the statement of observed that during the period from the grounds on which the application is 16 August 1968 to 1 April 1970, the based as required by the Rules of Proce applicant was entrusted with the same dure. In addition the ground of claim is duties as those which he would have to unfounded since the Commission, by take up if the administration had not refusing to reimburse the removal ex revoked the decision communicated to the penses, merely applied Article 9 of Annex applicant by letter of 12 June 1968. The VII to the Staff Regulations.
The applicant performance of those duties necessitated cannot therefore prove financial loss occasional short stays by the applicant in corresponding to the alleged gain by the Ispra. Commission. During the oral procedure, the applicant (b) The alternative claim once more maintained that the plea of unjust enrichment was already put for The applicant maintains that as a result ward, if only informally, in the application. of a mistake made by the administration As for the question whether the actual he suffered damages amounting to the concept of unjust enrichment has been removal expenses, that is, Bfrs 80 000. accepted by the Court, the applicant Those damages are due to the difficulties deduces from the judgment of 11 July which he encountered in terminating his 1968 in Case 26/67, Danvin v Commission
DE HAAN ν COMMISSION
([1968] ECR 315 et seq.) that the Court has, existence of that concept in Community at least by implication, acknowledged the law.
Grounds of judgment
1 By application lodged at the registry on 29 June 1971, the applicant has brought before the Court an application directed against the implied refusal by the Com mission of the European Communities to reimburse him removal expenses under Article 9 of Annex VII to the Staff Regulations.
2 The application is primarily for the annulment of the contested refusal and for an order that the Commission pay the applicant the sum of Bfrs 80 000.
3 Alternatively, the application is for an order that the Community, represented by the Commission, pay the same sum as damages for the wrongful act of its depart ments in transferring the applicant on 12 June 1968 to a Directorate-General of the EAEC, with residence in Brussels, and then revoking that transfer on 20 August 1968 when the applicant had meanwhile rented a house in the greater Brussels area.
4 Finally, in the course of the proceedings, the applicant claimed the same sum on the ground of unjust enrichment.
The primary claim
5 It appears from the file put before the Court that the transfer of the applicant to Directorate-General XVII, of which he was notified on 12 June 1968, was in fact revoked on 2 August 1968 on administrative grounds.
6 However, in view in particular of the arrangements already made by the applicant with regard to his residence, the latter was seconded from Ispra to Brussels on mission pending subsequent regularization in order to perform there in that ad ministrative position the duties allotted to him.
7 The applicant took up residence in Brussels from August 1968 and had his furniture and personal effects moved there.
8 Throughout the period of his secondment he received daily subsistence allowances granted under Articles 11 and 13 of Annex VII to the Staff Regulations to staff travelling on mission.
9 Altogether he received more than Bfrs 300 000 on that account.
JUDGMENT OF 3.5.1972 — CASE 33/71
10 As from 1 April 1970, he was permanently transferred to Directorate-General XVII and requested at that time reimbursement of the expenses of his removal in 1968 on the basis of Article 9 of Annex VII.
11 Article 20 of the Staff Regulations provides that an official shall reside either in the place where he is employed or at no greater distance therefrom as is compatible with the proper performance of his duties.
12 Article 9 of Annex VII to those Regulations prescribes that the expenses incurred in respect of removal of furniture and personal effects shall be reimbursed to an official who is obliged to change his place of residence in order to comply with the said Article 20 and who has not been reimbursed in respect of the same ex penses from another source.
13 The applicant was refused that reimbursement because he had been living in the greater Brussels area since August 1968 so that the removal in question could not be considered as being the result of the transfer which took place in 1970.
14 Since the removal in 1968 cannot be the result of a transfer which was decided on
in 1970, it cannot be considered as the result of obligations arising out of that transfer.
15 However, the applicant claims that that removal must be considered on the grounds of natural justice as closely linked to his transfer since the latter only amounted to the regularization of mistakes concerning him made in 1968, so that the expenses incurred in 1968 must still be reimbursed on the occasion of his official transfer in 1970.
16 The grounds of natural justice relied upon by the applicant do not justify the interpretation which he suggests.
17 Article 9 of Annex VII to the Staff Regulations aims to indemnify officials for actual and necessary expenses following a transfer in the interests of the service as appears from the requirement of the production of an estimate for approval by the administration and from the condition that the official is not reimbursed in
respect of the same expenses from another source.
18 Although that provision must be interpreted widely and official who has already changed his place of residence pending his establishment or transfer must not be excluded from the application thereof, such an interpretation is however only justified so as to prevent the official from having to bear the costs incurred out of his salary.
19 This is not so in the present case, since the applicant, because of the particular
DE HAAN ν COMMISSION
circumstances of his removal to Brussels, has for a long period received special allowances the amount of which greatly exceeds the expenses incurred in respect of his removal.
20 Therefore the Commission, the defendant, was justified in relying upon the provisions of Article 9 of Annex VII and in refusing the reimbursement requested.
21 Therefore the primary claim is unfounded.
The alternative claim
22 The claim would only be justified if it were proved that the alleged wrongful act or omission on the part of the Community had caused actual loss to the applicant.
23 However, it follows from the abovementioned considerations that, because of the particularly generous administrative arrangement made in his case, the applicant has not suffered any loss.
24 Under these circumstances, the arguments which the applicant claims to base on the unjust enrichment by the Commission rebound upon him, since the actual expenses which he had to bear were more than compensated for by the grant of flat-rate allowances unrelated to such expenses.
25 Moreover, it is necessary to point out to the applicant the irrelevance of his argu ments based on a comparison with the allowances received by colleagues residing at Ispra who were also seconded on mission to Directorate-General XVII from 1968 and were permanently transferred there at the same time as the applicant.
26 In fact, both the mission expenses received by those colleagues and the reimburse ment of expenses incurred with regard to their removal in 1970 correspond to expenses actually borne, so that those allowances were owed them both in law and in justice.
27 Therefore the alternative claim must also be dismissed.
Costs
28 Under Article 69(2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.
29 The applicant has failed in his arguments.
OPINION OF MR ROEMER — CASE 33/71
30 However, under Article 70 of the Rules of Procedure, institutions shall bear their own costs in proceedings commenced against them by servants of the Communities.
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 Article 20 and Articles 9, 11 and 13 of Annex VII; Having regard to the Protocol on the Statute of the Court of Justice; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,
THE COURT (First Chamber)
hereby :
1. Dismisses the application as unfounded;
2. Orders the parties to bear their own costs.
Mertens de Wilmars Donner Monaco
Delivered in open court in Luxembourg on 3 May 1972.
A. Van Houtte J. Mertens de Wilmars
Registrar President of the First Chamber
OPINION OF MR ADVOCATE-GENERAL ROEMER DELIVERED ON 21 MARCH 1972<apnote>1</apnote>
Mr President, Centre at Ispra as a scientific officer of the Members of the Court, European Atomic Energy Community. By letter of 12 June 1968 from the Direc The applicant in the case on which I shall torate-General for Personnel and Admin deliver my opinion today worked for istration he was informed that, within the many years at the Joint Nuclear Research context of the change in its organization
1 — Translated from the German.