C-56/75

THE COURT (First Chamber)

composed of: A. O'Keeffe, President of Chamber, J. Mertens de Wilmars and F. Capotorti, Judges,

Advocate-General: G. Reischl

Registrar: A. Van Houtte

gives the following

JUDGMENT

August 1974, Mr Elz asked for his — against the Commission's refusal of remuneration to be paid regularly to the 27 August 1974 or, to the extent Banque Internationale à Luxembourg necessary, against the implied refusal (with which he was negotiating for an resulting from the failure to reply to allocation of credit). By a note of 27 his complaint of 26 November 1974; August 1974 the Administration replied — against the wrongful act or omission that it could not agree to this request and committed by the Commission in that payment of his remuneration in transmitting to the applicant the writ Luxembourg in Luxembourg francs was of 26 September 1974. in this instance contrary to the provisions of Article 17 of Annex VII to the Staff 4. Upon hearing the report of the Judge-Rapporteur and the views of the Regulations. Following this decision Mr Advocate-General, the Court decided to Elz obtained an allocation of credit at open the oral procedure without any another banking institution in Brussels. preparatory inquiry. 2. By a summons transmitted to the After the closure of the written Commission through diplomatic procedure, the applicant submitted channels on 16 September 1974 the documents concerning the rates of applicant was required to appear before interest applied at the time, in his the Justice de Paix, Uccle, in proceedings case, by the Banque Internationale à against him by the lessors of the flat Luxembourg and by the Société Générale which he occupied in Uccle. de Banque in Brussels, as well as a copy of the judgment by default of 25 October This summons was not in due form and 1974 and of the appeal of 2 October therefore the applicant was summoned 1975. on a second occasion, on 26 September 1974, to appear on 10 October 1974. This writ of summons, which was also II — Conclusions of the parties transmitted through diplomatic channels to the Commission, was transmitted by The applicant claims that the Court should: the Commission to the applicant on 4 '1. Declare void and of no effect the November 1974. On 25 October 1974 a judgment by default was delivered against express rejection of the applicant's the applicant The objection against this request for the continued payment in judgment was rejected and on 2 October the Grand Duchy of Luxembourg of 1975 the applicant lodged an appeal. his salary and of all supplementary payments; 3. On 26 November 1974 the applicant 2. Rule that the opposite party shall be lodged a complaint within the meaning bound to make this payment to such of Article 90 (2) of the Staff Regulations Luxembourg bank as the applicant against the Commission's rejection of his shall name; request of 22 August 1974, in order to 3. To the extent necessary, declare void obtain a ruling as to the loss suffered by and of no effect the implied rejection

resulting from the failure of the August 1974 ignores his vested rights, opposite party to give any reply to constitutes a misuse of powers and/or the applicant's complaint of 27 procedure in his respect and is based on November 1974; an erroneous interpretation of Article 17 4. By way of damages in respect of this (1) of Annex VII to the Staff Regulations. refusal and its consequences, order the opposite party to pay to the In fact that provision only has a dual applicant the sum of BF 30 000 in purpose: respect of the difference in interest — on the one hand, to spare the rates, subject to the right to adjust Administration varied and costly this sum during the course of the procedures with regard to the proceedings, and the sum of BF payment of remuneration; 13 500 in respect of increased costs, — on the other hand, to avoid the and the sum of BF 1 in respect of transfer of currency from the place non-material damage; where the European institutions have 5. Rule that the opposite party was their seat to other countries, which guilty of a wrongful act or omission would involve distortions of the in connexion with the transmission monetary policies of those countries. of the procedural documents concerning the action between the applicant and his former lessor over In the present instance the payment of flat No 25, avenue Winston Churchill the remuneration due to the applicant in at Uccle, Brussels; the Grand Duchy of Luxembourg would 6. On this ground order the opposite not involve costly procedures, nor would party to pay to the applicant the sum it produce distortion as between the two of BF 1 by way of damages; countries concerned, especially because 7. Order the oppositie party to pay the of the 'special position of the costs of the action.' Luxembourg currency with regard to Belgian currency and the relations The defendant contends that the Court existing between the two countries in the should: Belgo-Luxembourg Economic Union'. 'As regards the first head of the application: dismiss it as being without The applicant further argues that because of the contested decision he was not able foundation; to make use of a substantial personal As regards the second head of the credit, granted to him by the Banque application: Internationale à Luxembourg on (a) principally, declare the claim for BF 1 condition that his remuneration would

The defendant recognizes that as from extraneous to the text and which cannot his transfer to Brussels and until the date be accepted in the absence of provision of the contested decision the applicant by the legislature. By withdrawing the had obtained the agreement of the advantage at issue the Commission is Administration that his remuneration therefore merely conforming to strict should continue to be paid to him in legality and is in no way misusing its Luxembourg francs at a bank in the powers. Moreover, the last objection is

It revocation of an illegal measure cannot continued for reasons which are not constitute a wrongful act or omission. easily explained until the summer of Secondly, the applicant has produced no 1974 since, due to an omission, the evidence either of the existence of the competent departments were not alleged damage or of its entity. Finally, informed that the applicant had removed since only 'direct' damage can be taken to his new place of employment as from into consideration in appropriate cases, 1971. The Commission remained the evidence supplied in the application unaware of this situation until it received does not establish a direct relationship the request submitted by the applicant in between the abovementioned refusal and August 1974. the applicant's inability to obtain the desired cash credit by having his This being so there can be no question remuneration transferred to the Banque in the present case of 'vested rights'. In Internationale à Luxembourg, although it fact, the applicant only benefited from an is paid and banked in Belgium. instance of tolerance contra legem which as such cannot give rise to vested rights. The applicant replies that, far from

institution. This applies all the more Regulations, taking account of the where the institution discovers that the particular relationship existing between reasons which justified tolerance contra Belgium and the Grand Duchy of legem no longer exist and that Luxembourg and the practice followed consequently it must put an end to such by institutions which do not undertake tolerance. On the other hand, it is payment by credit transfer. generally accepted that no illegal act can create vested rights. The applicant goes on to deal with the problem of the possibility of revocation The contested measure is in conformity of administrative measures.

JUDGMENT OF 24. 6. 1976 — CASE 56/75

individual administrative measures, he contradicts the rule, which enjoys a fair makes particular reference to the national measure of acceptance, according to laws of various Member States from which with regard to wrongful damage it which it follows that the revocation of an is sufficient that there was a wrongful act administrative measure, although in the antecedent chain of events for that possible within a reasonable delay or act to be regarded as giving rise to the within the time-limit for bringing legal damage. proceedings or if exercised in good faith, must be belated if, as in the present case, In its rejoinder the defendant it occurs 6 years after the adoption of the emphasizes the purely benevolent measure. motives which gave rise to the advantage granted to the applicant between 1968 In the present case the revocation is so and 1974. In addition, since it is belated that the infringement of Article accepted that the revocation of the 17 (1) referred to above thus committed contested measure would be justified by the Commission can only be both in the case of an error of fact and in explained by malevolence constituting the case of an error of law in the misuse of powers. The applicant believes application of Article 17 (1) of Annex VII that 'sufficient circumstantial evidence' to the Staff Regulations revocation is all exists in support of his view, but in this the more legitimate when tolerance respect he relies on the wisdom of the contra legem is at the basis of the prior Court. situation.

ELZ v COMMISSION

employed or at no greater distance Finally, the defendant reiterates its view therefrom as is compatible with the that in the present circumstances it is not proper performance of his duties — self-evident that there existed no more caused the legislature to provide that advantageous alternative solution for the an official must be paid in the applicant than that of the loan from the currency of the country of his place Banque Copine. Moreover, it cannot bear of employment or of a neighbouring responsibility for damage which, if it did place in which he resides; in fact exist, could have been, avoided by — If it were to be followed, the the applicant if he had not prematurely applicant's point of view would put an end to his still incomplete introduce discrimination against negotiations with the Banque officials who are of neither Belgian Internationale à Luxembourg (cf. nor Luxembourg nationality. Annexes to the rejoinder).

JUDGMENT OF 24. 6. 1976 — CASE 56/75

and may there receive in person the only function properly if the institution documents addressed to him or is at least were to show diligence in performing it, on formal leave. It is true that on the first not only with regard to officials who are occasion in exceptional circumstances at their posts but also as regards officials the Commission agreed on 20 September who, for various reasons, are absent. If in 1974 to send an official to the applicant's spite of this diligence the document private residence with a legal document. cannot be given in person to the official However, on the one hand the letter to whom it is addressed, the institution from the Belgian Ministry of 16 could either return it immediately to the September 1974. transmitting this Ministry for Foreign Affairs in order to document to him was marked 'Urgent' enable the court to take notice that there and on the other hand at that time the has been no notification or it could person concerned could still have been inform the official by all possible means. regarded as being on sick leave. This was However, the conduct of the not the case when the Commission Commission in the present case was both received the letter from the Belgian irresponsible and inconsistent. With Ministry dated 26 September 1974 since respect to the first writ (of 16 September the document in question did not appear 1974) the Commission, whilst noting to be of an urgent nature and the person that the applicant was not at work, sent to whom it was addressed was absent an official to his private residence in from his post without authorization and order to hand the writ to him in person.

On the other hand, with respect to the in fees, on the other hand, amounts to second writ (of 26 September 1974) the certain damage, but as in the other cases Commission states that it did no more it is not possible at present to assess it. than telephone to the applicant's office on a number of occasions without Wishing to exercise 'tact both in relation however inquiring as to the reasons for to his employer and his counsel' the his absence. applicant finally seeks token damages of BF 1, and in the event of the Court's The defendant cannot successfully rely recognizing his rights he renounces the on the fact that the second writ, unlike possibility of subsequently claiming the the first, was not marked 'Urgent'. All costs of the objection and the award to judicial documents bear on the sealed cover the costs of the proceedings. envelope the words 'Pro justitia —

Although one of the medical as the applicant was at his post after the certificates which was subsequently expiry of the period of leave set out in produced by the applicant might the medical certificate (on 13 October retroactively regularize such a situation, the fact remains that until that certificate 1974) it must be asked why the writ of summons was delivered to him only on 4 was submitted the applicant's absence November 1974. had to be regarded as unauthorized from the time when he should normally have

lease. Nevertheless, since it subsequently Commission under an obligation appeared that this transfer did not release identical to that imposed on the bailiffs the tenant from his obligations the themselves. Further, the defendant states applicant paid the sums sought and that it has no knowledge of the existence therefore the only problem remaining to of the alleged circulars mentioned by the be solved is that of the validity of the applicant and it confirms the arguments writ in question and of the applicant's set out in the statement of defence as to obligation to bear the costs involved. the extent of its duty to ensure the transmission of legal documents and as As regards the costs of the objection and to the responsibilities in this respect of the allowance to cover those of the officials who are absent without proceedings it is not yet known whether authorization.

foundation of that judgment since he had real and have not been directly caused by in the meantime paid the sums at issue a wrongful act or omission on the part of and, on the other hand, his objection was the Commission, that damage cannot in overruled by a judgment of 25 June the present case justify the applicant's 1975. In these circumstances the damage legal interest in bringing proceedings. caused by the incurring of judicial costs The defendant thus concludes that: involved in such an objection should be borne by the person concerned himself. (a) principally, the action for There is no direct and necessary causal compensation is inadmissible as the link between those costs and the applicant has no certain and real wrongful act or omission with which the legal interest in taking proceedings; Commission is charged since the costs (b) in the alternative, the action is without foundation as the were caused by the harzardous or at least irresponsible step taken by the applicant Commission committed no wrongful act or omission and because the in lodging an objection. alleged damage is neither certain nor real and because there exists no direct The applicant has stated that he has appealed against the judgment and necessary chain of causality dismissing his objection. There are two between it and the alleged wrongful possibilities: either the court with which act or omission on the part of the Commission. the appeal has been lodged will overturn the judgment, and in this case the applicant will be shown to have been IV — Oral procedure right to lodge an objection, if only to recover the costs, or the appeal will be At the hearing on 6 May 1976 the parties rejected, and in this case it will be submitted oral observations. established once again that the applicant acted irresponsibly in lodging an The Advocate-General delivered his

3 In his complaint the applicant further sought the payment of damages for the non-material and material damage which he claimed to have suffered because of the two alleged irregularities.

4 The competent administrative authority did not reply to this complaint within the period laid down in the Staff Regulations and the applicant therefore brought an appeal in accordance with Article 91 of the Staff Regulations.

5 In view of the subject-matter of the complaint, the fact that the application is in two parts, one directed against the refusal of the Commission to pay the applicant's remuneration to a bank established in the Grand Duchy of Luxembourg and the other directed against the allegedly wrongful failure of the Commission to transmit as quickly as possible to the applicant the judicial document addressed to him, is justified by the desire to ensure the link which Article 91 (2) of the Staff Regulations establishes between an appeal and the complaint from which it arises and which must precede it.

6 Such a circumstance is not such as to render the application in the present case inadmissible.

7 The applicant argues first that the Commission's refusal to continue to pay his remuneration to a banking institution established in a Member State other than that of his place of employment is based on an erroneous interpretation of Article 17 (1) of Annex VII to the Staff Regulations.

8 In addition he argues that that provision forms no obstacle to the payment to a bank established in the Grand Duchy of Luxembourg of the emoluments of officials of Belgian and Luxembourg nationality posted to Brussels because of the position of Luxembourg currency in relation to Belgian currency in the context of the Belgo-Luxembourg Economic Union, which is not to be affected by the Treaty pursuant to Article 233 thereof.

14 Thus these provisions exclude the possibility of a regular transfer which covers all the remuneration payable to an official.

15 It follows that the exceptions which may be made to the principle set out in Article 17 (1) cannot permit an official to have his emoluments paid by the institution which he serves in a Member State other than that where he is

employed since such payment entails the regular transfer of all the sums paid to the official.

16 Thus the refusal given by the Commission in its decision of 27 August 1974 is the result of a correct application of Article 17 of Annex VII to the Staff Regulations.

ELZ v COMMISSION

17 In these circumstances the applicant cannot claim the future continuation of the benefit of the means of payment in question.

22 Indeed, while it is true that the Belgo-Luxembourg Economic Union involves particular circumstances with regard to currency for the two associated countries it can however not be accepted that the possibility of derogating from Article 17 (1) of Annex VII to the Staff Regulations in favour of Community officials of Belgian or Luxembourg nationality is one of the indispensable conditions for the existence and functioning of the Union which may not be prejudiced by the Treaty.

23 For these reasons the application must be dismissed for lack of foundation in so far as it seeks the annulment of the Commission decision of 27 August 1974 and the payment of damages in respect of that decision.

JUDGMENT OF 24. 6. 1976 — CASE 56/75

24 The applicant further objects that the Commission committed a wrongful act or omission by transmitting to him only on 4 November 1974 a judicial document of 26 September 1974 which summoned him to appear before the Juge de Paix, Uccle, on 10 October 1974.

25 This belated transmission is said to have caused the applicant non-material and material damage for which he seeks compensation.

26 It is generally accepted that where civil law proceedings are commenced against officials of the Commission documents or legal notices addressed to officials are frequently transmitted to the Commission through the Ministry for Foreign Affairs so that the Commission may pass them on to the persons concerned.

32 Furthermore, the department concerned, which had not been informed of the submission of a medical certificate on 10 October 1974, which certificate was dated 7 October and stated that the applicant's incapacity for work was to be prolonged until the 13th of that month, returned the legal document in question to the Belgian Ministry for Foreign Affairs on 10 October 1974.

33 By a letter of 24 October which reached the Commission on the following day the Belgian Ministry for Foreign Affairs again requested the Commission to take the steps necessary to transmit to the applicant the writ of summons in question.

34 This writ was finally served on the applicant on 4 November 1974 as the department responsible for delivering the legal document was only belatedly informed of the submission of the abovementioned medical certificate.

35 Whilst it is true that there is no provision of Community law which imposes on the Commission responsibility for transmission of legal documents addressed to its officials which are transmitted to it by the Belgian national authorities, nevertheless once it has agreed to undertake such transmission the Commission must make every effort to ensure that the document in question is delivered as soon as possible to the person to whom it is addressed or, if such delivery is not possible, that it is returned to the national authorities in sufficient time to allow them to examine other methods of delivery.

36 The fact that at the time when the legal document is to be delivered to him the official is absent from work without authorization may justify the application of disciplinary measures required in the context of the Staff Regulations but it cannot release the Commission from the duty to make every effort to deliver the legal document entrusted to it to the official concerned, where necessary by sending the document to the private residence of the person concerned or to any other address notified, to it by the latter.

Costs

42 Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

43 The applicant has failed in his application.

44 However, under Article 70 of the Rules of Procedure, in proceedings instituted by servants of the Communities, institutions shall bear their own costs.

On those grounds,

THE COURT (First Chamber)

A. Van Houtte A. O'Keeffe

Registrar President of the First Chamber

OPINION OF MR ADVOCATE-GENERAL REISCHL

DELIVERED ON 3 JUNE 19761

Mr President, residence which had previously been in Members of the Court, Luxembourg to Brussels.

The proceedings on which I am today By a request submitted to the giving my opinion concern the question Commission on 22 August 1974 the whether an official of the Commission, applicant sought to have his who is employed in Brussels, can require remuneration paid to another that his remuneration be paid to a bank Luxembourg bank. He did this in view of in Luxembourg. In addition, a claim for the fact that he had been granted a damages is being made against the personal credit by this bank on condition Commission for belated transmission of that the remuneration payable to him a writ of summons for a civil action in should be paid to the bank giving credit, which the applicant in the present that is that the applicant should give to proceedings was involved. the Commission an appropriate irrevocable payment order to this effect The following preliminary observations which could only be withdrawn with the are to be made as to the facts of the case. agreement of the bank. However by a reply of 27 August 1974 this request was The applicant was for a long time rejected. This was justified by reference employed as an official of the to the fact that the bank in Luxembourg Commission in Luxembourg. In October to which the remuneration of the 1968 he was transferred to Brussels. applicant had been paid until then under Nevertheless the Commission at his a standing arrangement had not given request continued to pay his the appropriate clearance. In fact the remuneration to a bank in Luxembourg. clearance from this bank of 9 August This went on after October 1971 when 1974 was not received by the the applicant transferred his family Commission until 3 September 1974. In