C-1/76

2. Officials — Appeals — Measure having an adverse effect — Expiry of the period for lodging an appeal — Confirmatory measure — Fresh period for lodging an appeal — Absence thereof (Staff Regulations of Officials, Articles 90 and 91)

1. The sending of the monthly salary 2. If the period for lodging an appeal has statement has the effect of starting the expired the confirmation of the time for appeal running, where it measure in question cannot result in clearly shows the decision taken with starting a fresh period to run in favour regard to remuneration. of the person concerned.

In Case 1/76

UTE WACK, an official of the Commission of the European Communities, residing at 59, boulevard Prince Felix, Luxembourg, represented by Victor Biel, Advocate of the Luxembourg Bar, with an address for service in Luxembourg at the Chambers of Mr Biel, 18 A rue des Glacis,

applicant, v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Joseph Griesmar, acting as Agent, with an address for service in Luxembourg at the office of its Legal Adviser, Mario Cervino, Bâtiment CFL, place de la Gare,

Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts, the procedure and the November 1974. The mother was given arguments of the parties put forward in custody of the children. the course of the written procedure may be summarized as follows: 2. On 5 September 1972 the applicant entered the service of the Commission as a probationer in Category C, Grade 4, I — Statement of facts employed at the Statistical Office in Luxembourg. She was established with 1. The applicant, of German national­ effect from 5 March 1973. At present ity, was born in Schmelz (Saarland) on 14 she is still employed at the Statistical December 1946. In March 1956 her Office. father entered the service of the High Authority in Luxembourg where he set up house with his family. After attending 3. By a letter dated 16 January 1975 the school in Luxembourg the applicant applicant asked the Administration what conditions she must fulfil as a German followed a course of vocational training there from September 1963 to July 1965. national in order to qualify for the From July 1965 to August she held a expatriation allowance referred to in Article 4 of Annex VII to the Staff number of posts, with some interruptions, in private undertakings in Regulations of Officials (hereinafter Luxembourg. In 1966 she married a referred to as 'the Staff Regulations') which is worded as follows: Luxembourg national whilst retaining her German nationality. She has two children born in 1971 and 1972. The 'An expatriation allowance shall be paid, said marriage was dissolved by divorce in equal to 16 % of the total amount of the

service on 5 September 1972, the condition of the said article with regard 2. In the application the applicant to residence could not be applied to her. particularly maintains as to the substance However, she did not fulfil the condition that she did not habitually reside in the laid down in the said article with regard Grand Duchy during the relevant period. to occupation. In a letter of 27 January She claims that she spent long periods at 1975 the applicant disputed the fact that her place of origin, Schmelz, in Germany she did not fulfil this latter condition. In and produces a certificate from the local its reply of 31 January 1975 the authority at Schmelz to the effect that Administration stated that it had she is registered as having her principal residence there. submitted the question to the Staff Regulations Division of the Commission As regards her occupation, there were so in Brussels. On 27 May 1975 the many interruptions that it cannot be applicant was notified by the considered as having been carried on Administration in Luxembourg that it habitually. There were interruptions was clear from a letter from the Staff amounting to eight and a half months Regulations Division that she did not and the last of these was definitive since fulfil the requirement set by the said she did not intend to resume work. article with regard to residence and that consequently she was not entitled to the The applicant claims that the application expatriation allowance. is admissible because she initiated

JUDGMENT OF 15. 6. 1976 — CASE 1/76

In accordance with Article 91 (2) her 3. By a statement lodged on 5 February application is thus inadmissible. 1976 the Commission, in accordance with Article 91 of the Rules of Procedure, 2. Since July 1972 when she received requested the Court to give a decision on the offer of employment the applicant a preliminary objection as to the knew that she would not receive the admissibility of the application, to allowance in question. She nevertheless declare the application inadmissible and agreed to be employed on those terms. to order the applicant to bear the

5. Having heard the report of the documents (salary statement and Judge-Rapporteur and the views of the personnel individual record sheet) Advocate-General the Court decided to constitutes notice, repeated on each open the oral procedure without a occasion, of the administrative decision preparatory inquiry. refusing the expatriation allowance.

3. Regulation No 558/73 of the applicant ought to have lodged a Council of 26 February 1973 (OJ 1973, L complaint with the defendant within 55, p. 1) repealed with effect from 1 July three months from receipt of the letter of 1972 the former Article 4 (3) of Annex 24 January 1975, that is to say before the VII to the Staff Regulations which was end of April 1975.

4. The defendant concludes from this wrongful act or omission deliberately that since the applicant's notice of the perpetrated by the administration act adversely affecting her dates from through its refusal to rectify the clear September 1972 (if not indeed from July error vitiating its measure. The disparity 1972) on the first view above (cf. point between the position of an official and that of the administration is thus not so III, 2) or possibly from March 1973 on the second view (cf. point III, 3) in pronounced as the applicant maintains. accordance with the Staff Regulations her complaint required to be lodged at the 7. The applicant, the defendant in the latest before the end of 1972 (on the first procedural issue, replies to the first view) or at the latest during the second objection of admissibility to the effect that she did not consider the offer of fortnight in June 1973 (on the second view). employment, first salary statement and the first personnel individual record

JUDGMENT OF 15. 6. 1976 —CASE 1/76

the letter of 16 January 1975 was not a expatriation allowance, and this was not request within the meaning of Article 90 done. It is futile for the defence to cite (1) of the Staff Regulations but was the judgments in the cases of Gunnella, merely a request for information. There Meganck and Schots (née Kortner) and is an established series of decisions of the Others: no new fact was present in those Court to the effect that a letter from an cases.

489). Consequently no decision was violate a number of principles of law; the adopted on 24 January 1975 and thus on principle error communis non facit ius; 27 May 1975 there was no confirmation the principle that the parties should be of an earlier decision but a first decision on an equal footing with regard to in the matter. time-limits, a principle recognized by the Furthermore, on the supposition that the Codes Napoleon; the principle of applicant's letter dated 16 January 1975 equality of time-limits founded on most must be considered as a request the head of the laws governing the public service; of the division was not competent to take the general principle that the parties a decision since this was reserved should be on an equal footing before the exclusively to the Commission according courts. They also infringe one of the to Catalogue C annexed to the decision basic concepts of English legislation and of the Commission on the exercise of the law: 'Equity will not suffer a wrong to be powers of the appointing authority without a remedy' and 'Effect is to be adopted in Brussels on 26 February 1971 given to both legal and equitable rights'. and published in Staff Courier No 156a of 31 March 1971.

WACK v COMMISSION

unsatisfactory because it is very difficult and the Commission, represented by its to provide evidence of the wrongful act Legal Adviser, Joseph Griesmar, acting as or omission deliberately perpetrated and Agent, presented oral argument at the of the clear error vitiating the measure. hearing on 6 May 1976.

The applicant, represented by Victor The Advocate-General delivered his Biel, Advocate of the Luxembourg Bar, opinion at the hearing on 26 May 1976.

Law

1 The application, which was lodged at the Court Registry on 2 January 1976, is for the annulment of a decision of the Commission of 15 October 1975 whereby the Commission refused to award the applicant the expatriation allowance under Article 4 (a) of Annex VII to the Staff Regulations of Officials.

2 By a statement on a procedural issue lodged on 5 February 1976 the defendant raised under Article 91 of the Rules of Procedure an objection of inadmissibility founded on the fact that the application had not been preceded within the period prescribed in Article 90 (2) of the Staff Regulations by a complaint through official channels directed against the act adversely affecting the applicant.

JUDGMENT OF 15. 6. 1976 — CASE 1/76

7 The subsequent letters of the Commission in reply to the requests submitted by the applicant merely confirmed the earlier decision and thus could not result in starting a fresh period to run in favour of the applicant.

8 The applicant nevertheless claims that her divorce, which took place on 13 November 1974, whereby she was given custody of her two children, constitutes a new fact which puts the question of the expatriation allowance on a new basis.

9 Whatever the effects which would flow in other circumstances from such a

new fact the argument cannot be accepted in the present case since the marital status of the applicant and the question whether she had dependent children were not at any time, before or after the divorce, taken into consideration by the Commission in justifying its refusal of the expatriation allowance.

10 It must thus be concluded that a complaint directed against the act adversely affecting the applicant was not submitted within the period laid down in the Staff Regulations and that the application is consequently inadmissible under Article 90 (2) thereof.

hereby:

1. Dismisses the application as inadmissible;

WACK v COMMISSION

2. Orders each party to bear its own costs.

Kutscher Pescatore Sørensen

Delivered in open court in Luxembourg on 15 June 1976.

The Court has conceded that in certain marriage to a Luxembourg national and to the fact that since she did not have the circumstances a mere accounting slip status of head of household she could not without any explanation does not benefit from this allowance. Subse­ constitute an act adversely affecting a person: this was the case both as regards quently, when the Court found the Staff a statement making a deduction because Regulations of Officials to be unlawful in of a payment which was not due this respect, the Administration founded its continued refusal on the fact that the (Judgment of 27 June 1973, Kuhl [1973] ECR 711) and of a salary statement applicant had during the five years whereby the Administration at a specific ending six months before she entered the point ceased to pay an allowance service habitually carried on her main theretofore granted (Judgment of 15 July occupation within the European territory 1970, Chuffart and others [1970] ECR of the State where her place of 641). I entirely endorse the observations employment was situated. In the ultimate delivered at the time by Mr analysis, the Administration appears to Advocate-General Gand in his opinion be relying on the fact that the applicant on that case ([1970] ECR at pp. 655 and lived permanently in Luxembourg 656). throughout this same period. Furthermore I consider that it would be Nevertheless in the present case the justified in relying on such a reason, in applicant could not have been unaware fact because it is true that the applicant

1 — Translated from the French.