C-56/72

An official memorandum addressed to of the withdrawal of that allowance, an official stating that the provisions constitutes an act adversely affecting him applicable do not permit the within the meaning of Article 91 of the maintenance of an allowance which he Staff Regulations. has hitherto received, and notifying him

In Case 56/72

GODELIEVE GOETH-VAN DER SCHUEREN, official of the Commission of the European Communities, represented by Victor Biel, advocate at the Cour Supérieure de Justice at Luxembourg, having chosen her address for service at Luxembourg in the chambers of the said advocate, 71 rue des Glacis,

applicant,

v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its legal adviser Pierre Lamoureux, acting as agent, having chosen its address for service at the offices of its legal adviser Emile Reuter, 4 Boulevard Royal, defendant,

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure The amount which you have continued to receive on account of this allowance The facts and procedure may be in October and November will be summarized as follows: recovered in four instalments from your next payments of salary.' 1. The applicant, of Belgian national­ ity, is an official of the Commission and The applicant, by letter dated 22 December 1971, requested the Head of carries out her duties in Luxembourg. Division to re-examine her case, bearing On 1 October 1971, she married the Austrian national Mr Goeth who is in in mind that her husband, being obliged every year to renew the work permit to private employment and resident in Luxembourg. be granted by the Grand Ducal authorities, was only provisionally 2. On 28 October 1971, the Head of settled in Luxembourg; therefore the the Personnel Division of the conditions envisaged by Article 4 (3) of Directorate-General for Personnel and Annex VII of the Staff Regulations for Administration of the Commission the withdrawal of the allowance in addressed a memorandum to the question were not fulfilled. applicant in the following terms: By memorandum dated 14 January 1972 the Head of Division rejected this 'Following your marriage on 1 October argument and confirmed his previous 1971, your right to the expatriation position. allowance has been re-examined. According to the certificate of residence By memorandum dated 5 April 1972, addressed to the President of the which you submitted to us it appears that your husband has lived in Commission and lodged with the Commission's General Secretariat on 6 Luxembourg since 25 September 1964. The conditions$$$ del 4 laid down in 4Article April, the applicant submitted a formal 4 (3) of Annex VII of the Regulations complaint seeking to retain the accordingly do not allow you to retain expatriation allowance. The Commission the expatriation allowance after your did not reply to this memorandum. marriage and steps will be taken to 3. By judgments dated 7 June 1972 withdraw it as from 1 October 1971. (Cases 20/71 Mrs Bertoni-Sabbatini v

European Parliament; 32/71 Mrs your situation is comparable to that on Bauduin-Chollet v Commission), the which the Court of Justice pronounced; Court (Second Chamber) held that in as a result your expatriation allowance making the continuance of the said is restored as from 1 July next. This allowance dependent, in case of an regularization does not, however, in any official marrying a person not complying way prejudge the answer that will be with the conditions for the grant of this given to your complaint under Article 90 allowance, upon acquiring the status of of the Regulations'. 'head of household' as defined by Article

The of the Commission informed its officials Advocate-General presented his opinion that as a result of the judgment in Case at the hearing on 13 December 1972. 20/71, 'the administrative heads of the European Institutions decided on the 16th of this month to apply the implications of this judgment to all II — Submissions of the women officials in a position similar to parties that of Mrs Bertoni regarding the provisions of Article 4 (3) of Annex VII The applicant submits that the Court of the Staff Regulations.

JUDGMENT OF 8. 2. 1973 — CASE 56/72

retrospectively from the date when The memorandum of 28 October was the illegal measure was first limited to stating that the expatriation applied, that is 1 October 1971; allowance could not be continued and that the overpayment would be (c) order the defendant to bear all the recovered; 'very vague graunds' were costs and expenses of the cited which were subsequently recog­ proceedings;' nized as illegal by the abovementioned The Commission submits that the judgments of the Court. It did not application be dismissed as inadmissible contain any element likely to draw the and that the applicant be ordered to bear applicant's attention to its possibly the costs; decisive character; in particular, it did not use the expressions 'decide' or 'decision'. In the States of the Community, the smallest decisions include a mention of their decisive III — Pleas and arguments character. of the parties The term 'decision' was only used for The pleas and arguments of the parties the first time by the memorandum of 14 may be summarized as follows: January 1972. Subsequently to this note, the applicant presented in due time, first The Commission considers that the her complaint of 5 April and then the application is inadmissible as being out present application. of time. To contest the decision of 28 October 1971 in good time, consistently In the case of the Court finding that the memorandum of 28 October 1971 with the constant decisions of the Court, the applicant would have had to submit, constituted a decision, the question would arise whether the Head of within a period of three months counting from the notification, either a Division was competent to take it. direct application or a complaint Article 2 of the Regulations, it is true, followed by an application formulated provides that 'each institution shall within the set period. The time for determine who within it shall exercise

was not bound to sign per Service by Articles... 4 of Annex VII procuratorem. (of the Regulations) — expatriation allowance (special cases) . . .' As a result The Commission ought to produce all the Head of Division was in this case the documents necessary to establish an acting within his powers in taking the answer to these questions. decision of 28 October 1971. This Besides, even supposing that there was a decision, from the fact of its having regular delegation, the Head of Division ordered the withdrawal of part of the was not competent to take an illegal applicant's emoluments, constituted an decision. It follows from the judgment in act adversely affecting the applicant. The Case 20/71 cited above, that the alleged applicant's salary slips, similarly decision of 28 October 1971 rested on a produced, make it clear that the provision of the Regulations recognized expatriation allowance has not been paid as illegal. since 15 November 1971. On pain of In the case of the Court not accepting being ruled out of time, the applicant the applicant's arguments, the Commis­ ought to have presented a complaint or sion ought nevertheless to bear the costs an application by mid-February 1972 at of the case because it encouraged the the latest. The letter of 22 December applicant's mistake. If the memorandum 1971 did not constitute a complaint; it of 28 October 1971 constituted a was addressed to the Head of Division, decision, the Head of Division ought whereas by the terms of Article 2 of the logically to have considered the general decision of 26 February 1971 applicant's letter of 22 December 1971 as mentioned above, 'the Commission shall a complaint and to have passed it to the exercise the powers conferred on the competent authority; the applicant appointing authority by the Regulations, would thus have understood the concerning staff in categories A, B, C situation and acted accordingly. and D and the Language Service by Ar­ ticles . . . 90 — decision on request or At the hearing the Commission produced a copy of its 'Internal complaint' . The application is, in any Information Bulletin — Staff Courier' case, inadmissible even if this letter must be considered as a complaint, since in No 156 bis, dated 31 March 1971, this case, having regard to the time limits containing its decision of 26 February 1971 'relating to the exercise of powers set by Article 91 of the Regulations, the granted by the Staff Regulations to the application ought to have been presented in April 1972 at the latest. appointing authority, etc.'. It cites Article 7 of this decision, under the terms of The applicant replies that a complaint which 'the Heads of Division of the can equally be introduced through the Directorate-General of Personnel and official's immediate superior, that is Administration shall exercise within their addressed directly to the author of the respective spheres of competence the act to which it relates. She denies that powers granted to the appointing there was delegation of the power of authority concerning staff in categories decision on the question of withdrawal A, B, C and D and in the Language of the expatriation allowance.

4 It asserts that the memorandum of the Head of the Personnel Division dated 28 October 1971 stating that the applicant no longer fulfils the conditions for the grant of the expatriation allowance, as well as the actual withdrawal of this allowance, shown for the first time in the salary slip of 15 November 1971, constituted acts adversely affecting the applicant within the meaning of Article 91 of the Staff Regulations, so that the applicant, under pain of being ruled out of time, ought to have presented a complaint or an ap­ plication in February 1972 at the latest.

5 However, she failed to do this, the letter of 22 December 1971, addressed to the Head of Division and not to the appointing authority, not being suscep­ tible of constituting a complaint.

6 On the other hand, supposing it to have constituted a complaint, the applicant would have had to file, in April 1972 at the latest, an application contesting the implied decision of refusal which would then have resulted from the two months' silence on this letter observed by the Commission.

7 The preliminary objection must be judged in the light of Articles 90 and 91 of the Staff Regulations as they appeared at the time of the measures in dispute — hereinafter called 'former Article 90' and 'former Article 91' — that is without taking account of the modifications introduced by Articles 38 and 39 of Council Regulation No 1473/72 (Euratom, ECSC, EEC) of 30 June 1972 (OJ L 160, p. 1) and taking effect only on 1 July 1972, under the terms of Article 90 of this Regulation.

8 The memorandum of 28 October 1971 constituted an act adversely affecting the applicant within the meaning of former Article 91 (1) of the Regulations.

14 Whilst it was open to her, by virtue of former Article 90 of the Regulations, to file a complaint at any time with the appointing authority, as she did by her letter of 5 April 1972, such a complaint could not confer on her a new right of action.

15 Finally, the memorandum of the Head of Division of 14 January 1972, being simply a confirmation of the decision of 28 October 1971, cannot be taken into consideration when calculating the relevant time limits.

16 The action, being out of time, must therefore be dismissed as inadmissible.

JUDGMENT OF 8. 2. 1973 — CASE 56/72

Costs

17 The applicant has failed in her action.

1. Dismisses the action as inadmissible;

2. Orders each party to bear its own costs.

Pescatore Monaco Kutscher

Delivered in open court in Luxembourg on 8 February 1973.

A. Van Houtte P. Pescatore

Registrar President of the Second Chamber