C-148/73

1. Although an internal directive has not 2. Daily subsistence allowance is due to the character of a rule of law which an official who, to comply with the the administration is bound to obligation to reside in the place observe, it nevertheless sets forth a where he is employed, must remove rule of conduct indicating the practice to a residence other than that which to be followed, from which the he occupied previously, without administration may not depart however being able to give up this without giving reasons which have latter. led it to do so, since otherwise the principles of equality of treatment would be infringed.

In Case 148/73

Raymond Louwage and his wife Marie-Therese Louwage, nee Moriame, officials of the Commission of the European Communities, of 51 avenue des Mouflons, Overijse, represented by Victor Biel, advocate of the Cour Supé- rieure de Justice du Grand-Duche, 71, rue des Glacis, Luxembourg, in whose chambers they have chosen their address for service,

applicants, v

Commission of the European Communities, represented by its Legal Adviser, Joseph Griesmar, acting as agent, having chosen its address for service in

1 — Language of the Case: French.

Advocate-General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

The facts of the case, the subject matter but after having applied for a position of the applications and the views of the with the Commission of the EEC in parties may be summarized as follows: Brussels, he was engaged on 20 July 1965 on the auxiliary staff. On 1 October 1968 he was appointed probationary official with the single I — Facts and procedure Commission, and established on 1 April 1969. From Brussels he visited his family 1. The husband and wife applicants, at each weekend in Luxembourg. present officials of the Commission of the European Communities in Brussels, Wishing to 're-establish a true family formerly lived in Luxembourg where home', Mrs Louwage was seconded at Mrs Louwage had been engaged on 15 her request from the European July 1958 on the auxiliary staff of the Parliament to the Commission in secretariat of the Councils and on 1 Brussels for a period of six months as November 1958 as an established official from April 1971, which was renewed with the European Parliament. until she was established in April 1972. Mr Louwage was at first engaged in an As soon as his wife arrived in Brussels, independent profession in Luxembourg, Mr Louwage left the small flat which he

LOUWAGE v COMMISSION

On 30 November 1972 the had as yet started to move in and that applicants submitted a complaint under they had not received either the Article 90 of the Staff Regulations to the installation allowance or the daily Director-General of Administration subsistence allowance. And yet they were seeking the annulment of the decisions not 'able to live in the family home still contained in the note of 25 October, the maintained in Luxembourg' where they reimbursement of the removal expenses returned each weekend as did their son (24 600 BF) and the payment of the daily (a student in Liège) for whom they had subsistence allowance to Mrs Louwage, no facilities in Brussels. for whom Brussels had always been an The removal however took place on 27 uncertain residence, since the family January 1972 and the removal bill was home had in fact remained established in settled on 22 August 1972.

herself. In this note: of them at the rate for a 'single person'. — the administration refused any 4. Since there was no reply to this reimbursement of removal expenses complaint, the applicants lodged the until the remover had given an present appeal on 28 June 1973. explanation of the error in the The written procedure followed the invoice (he had in fact submitted an invoice for 40 600 BF which was normal course. On the report of the settled in the sum of 24 600 BF); Judge-Rapporteur, after hearing the Advocate-General, the Court (First — Mrs Louwage was recognized as Chamber) decided to proceed without a being entitled to an installation preparatory inquiry. allowance equal to the amount of her monthly basic salary at the date of her transfer and Mr Louwage as II — Conclusions of the similarly entitled subject to a

JUDGMENT OF 30. 1. 1974 — CASE 148/73

2. order the Commission 2. reject as inadmissible and in any case (a) to pay to Mrs Louwage a sum of unfounded the claim by Mr Louwage 24 600 BF — with interest at 4 % to an installation allowance equal to as from 22 August 1972 to date two months basic salary (the of payment — as removal applicant has abandoned this claim); expenses (the applicants subse­ 3. reject as unfounded the claim by Mrs quently did not pursue their Louwage to complete reimbursement claim to interest for delay); of the actual cost of removal from the (b) to pay to Mr Louwage the common home as well as the claim to amount of two months basic daily subsistence allowance for the salary as installation allowance period from 5 April 1971 to 27 (the applicant subsequently January 1972; abandoned the claim to the 4. reject as otiose and therefore second month); inadmissible the application to which (c) to pay to Mrs Louwage as daily she is entitled, but which the subsistence allowance for the defendant will show has recently been period from 5 April 1971, the effected and in any case before date of her taking up judgment; employment with the Commis­ 5. order the applicants to pay the costs sion in Brussels, to 27 January (in the rejoinder, the defendant leaves 1972, the date of her removal, the this to the discretion of the Court). amounts provided in the table in Article 10 of Annex VII;

LOUWAGE v COMMISSION

A decision of the Commission dated 17 very good reason (since it related to the March 1971, taking effect as from 5 defendant's responsibility for removal March 1968, stipulated that 'where an expenses not yet incurred) could not be official has been authorized to move but taken into account until the spouses, has not done so during the year having effected their common removal following his establishment ... he shall and thereby incurred a debt to the be entitled to daily subsistence allowance removal firm on behalf of their conjugal for an initial period of six months and community, sought to obtain from the thereafter from the seventh month for a defendant reimbursement of the minimum period of a further six months common funds paid to the removal firm to the extent of his notional removal in discharge of the common debt. expenses. Any over-payment shall be In view of the payment already made in recovered'. This wording is to be 1969 to Mr Louwage, the legal compared with the former Article 10 (3) administrator of the conjugal communi­ of Annex VII to the Staff Regulations in ty, it appears to the defendant that only force when Mr Louwage was 9 950 BF remains payable. established, which, as regards the official who did not effect his removal within The second applicant replies that the the year of his being established, limited defendant has no obligation to the the amount of his daily subsistence conjugal community constituted by the allowance to 'the total amount of applicants, but towards its agents. It is to payments to which he would have been Mrs Louwage that Article 9 of Annex entitled in the event of removal'. VII must be applied. Moreover the defendant could not recover against the The defendant considers that the daily community of property a sum which it subsistence allowance paid to Mr declared it would forgo as regards Mr Louwage from 1 April 1969 to 27 Louwage (letter of 31 July 1973). September 1969, i.e., as from the seventh month of the period during which he The defendant does not think that there

JUDGMENT OF 30. 1. 1974 — CASE 148/73

expenses (14 650 BF). On the other hand applicant, according to whom a transfer it has not abandoned the claim to deduct to Brussels was requested 'in order to from the amount of the real costs of re-establish a true family home'. removal, the amount of the notional The second applicant replies that the expenses (14 650 BF), not because they defendant has admitted that until April had been wrongly paid, but to avoid a 1971 the matrimonial home was in reimbursement greater in value than the Luxembourg. To satisfy the require­ liability arising from the same facts and ments of Article 20 of the Staff cause, on the basis of which there had Regulations the second applicant had already been a prior reimbursement in left the said home and had shown that the form of a fixed sum paid in advance. she was no longer able to live there. The second applicant disputes that the Second submission: infringement of matrimonial home was re-established in Article 10 of Annex VII to the Staff Brussels on her arrival there. Even if this Regulations were so it would have no effect on the

LOUWAGE v COMMISSION

remained in the same place. There was, small flat and to retain in addition their at the same time as the change of former flat in Luxembourg as a weekend residence of a person who came to live residence. If they had been able as from in another town with her husband, a April 1971 to establish their matrimonial simultaneous transfer of the home. Since home in the house at Overijse, in the home is the principal place of event that it had been finished, and to cohabitation, there can be only one. The move their furniture, the second second applicant began in April 1971 applicant would not have thought she and thereafter continued to live in her had a case to claim the daily subsistence home, which was the couple's small flat allowance under Article 10 of Annex in Brussels, for the former flat in VII, by reason of the fact that the Luxembourg simultaneously lost the removal of the common furniture would character of a home and became a already have taken place. secondary residence. The present claim for the second The object of Article 10 of Annex VII is applicant amounts to making the to enable the administration to accept defendant responsible for the fact that liability for necessary but temporary the house in Overijse was not habitable expenses of double residence arising for as from April 1971. an official from the fact that he is The oral hearing took place on 15 temporarily obliged to live alone in a November 1973. hotel or in a second flat at the place of his new post, whereas the rest of his The applicants were represented by family (wife and children) continue to Victor Biel, advocate at the Cour live in the place where he previously had Supérieure de Justice of the his post. It is clear that in this case the Grand-Duché of Luxembourg, and the official could show 'that he cannot Commission of the European Communi­ continue to reside in his own home'. ties by its Legal Adviser, Joseph But this is not the present case. Since Griesmar, acting as agent. April 1971 the home of the applicants The Advocate-General delivered his was no longer in Luxembourg. They opinion at the hearing on 5 December preferred to live for some months in a 1973.

4 The second applicant claims reimbursement of the whole of the expenses of removal of the common furniture, amounting to 24 600 BF.

5 The defendant relies on the principle that, while reimbursement of the removal expenses is due to the two spouses, they are not each entitled to the whole, and therefore admits liability only for an amount equal to the difference between the actual cost of the removal and the daily subsistence allowance that the first applicant received as a fixed payment in advance made because he had not moved within a year after taking up his duties.

6 The first applicant received, as daily subsistence allowance, from 1 April 1969, date from which his establishment took effect, to 27 September 1969, a sum of 36 000 BF, 14 650 BF of which the defendant regards as representing the notional removal expenses.

7 In support of this argument the defendant refers to the terms of an internal directive of the Commission of 17 March 1971 according to which as from 5 March 1968 'where an official has been authorized to move but has not done so during the year following his establishment ... he shall be entitled to daily subsistence allowance for an initial period of six months and there­ after from the seventh month for a maximum period of a further six months to the extent of the notional removal expenses'.

8 By a note dated 14 May 1969 the administration authorized the first applicant to effect his removal within a period of one year as from the date his establish­ ment took effect, i.e., before 1 April 1970.

LOUWAGE v COMMISSION

15 The daily subsistance allowance must therefore be calculated from this date.

16 It is only from 1 October 1969 that it would have been paid 'to the extent of the notional removal expenses'.

17 However it is not disputed that it has not been paid to the first applicant since 27 September 1969.

JUDGMENT OF 30. 1. 1974 — CASE 148/73

18 It is established therefore that the first applicant has never received any payment whatsoever as notional removal expenses.

19 As regards this claim the appeal succeeds.

25 The basis for daily subsistence allowance lies inter alia in the obligation on the part of the official to remove to a residence other than that which he occupied previously, without however being able to give up this latter.

LOUWAGE v COMMISSION

26 The defendant has not established that such was not the case.

27 The fact that this official at the place of her secondment rejoined her husband, himself an official, in a provisional residence is not decisive, since it is estab­ lished that their matrimonial home remained in Luxembourg.

28 So long, therefore, as the removal had not taken place, i.e., before 27 January 1972, the second applicant ought to have received the daily subsistence allowance within the limits provided for by the Staff Regulations.

29 Thus the appeal succeeds on the second claim.

THE COURT (First Chamber)

hereby:

1. Annuls the decision by which the Commission refused the applicants reimbursement of removal expenses amounting to 24 600 BF.

2. Annuls the decision by which the Commission refused to pay the second applicant daily subsistence allowance for the period between 5 April 1971 and 27 January 1972. 3. Orders the Commission to bear the whole of the costs of the

proceedings.

Donner Monaco Ó Dálaigh

1 — Translated from the German.