C-140/77
ECLI:EU:C:1978:197
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JUDGMENT OF THE COURT (SECOND CHAMBER) OF 9 NOVEMBER 1978 1
Teunis Verhaaf v Commission of the European Communities
Case 140/77
1. Officials — Assignment to a post — Compliance with the interests of the service — Permissible to take into consideration the wishes of the persons concerned (Staff Regulations of Officials, Art. 7 (1))
2. Officials — Installation allowance — Purpose (Staff Regulations of Officials, Annex VII, Art. 5)
1. In providing that any appointment or functioning of the institution to transfer must be made solely in the enable an official to overcome his interests of the service, Article 7 of personal difficulties. the Staff Regulations does not prevent the competent authorities from taking 2. The specific and characteristic into account the personal wishes of purpose of an installation allowance is those concerned. The competent auth to enable an official to bear, in orities have the power, in the interests addition to removal expenses, the of good administration and, where inevitable expenses incurred through necessary, the duty, to take all integrating in new surroundings for an indeterminate but substantial temporary measures which are not likely to nave an adverse effect on the period of time.
In Case 140/77
Teunis Verhaaf, official of the Commission of the European Communities, residing at 41 Avenue Marie-Christine, Overijse, represented by Messrs Jacques Putzeys and Xavier Leurquin, Advocates at the Brussels Bar, with an address for service in Luxembourg at the offices of Mr Nickts, Huissier de Justice, 17 Boulevard Royal,
1 — Language of the Case: Dutch. applicant,
JUDGMENT OF 9. 11. 1978 — CASE 140/77
V
Commission of the European COMMUNITIES, represented by its Legal Adviser, Mr Raymond Baeyens, acting as Agent, with an address for service in Luxem bourg at the offices of its Legal Adviser, Mr Mario Cervino, Jean Monnet Building, Kirchberg Plateau, defendant,
APPLICATION for the annulment of decisions refusing an installation allowance and for an order that the Commission should pay that allowance together with interest at the legal rate,
THE COURT (Second Chamber),
composed of : Lord Mackenzie Stuart, President of Chamber, M. Sørensen and A. Touffait, Judges,
Advocate General: G. Reischl Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts and Issues
The facts and the arguments of the corresponds to his grade". Under the parties put forward during the written second subparagraph of Article 7 (1), an procedure may be summarized as official may apply for a transfer within follows: his institution.
Article 71 of the Staff Regulations provides that an official is entitled, as I — Facts and written procedure provided in Annex VII (rules on re muneration and reimbursement of Under the first subparagraph of Article 7 expenses), to reimbursement of expenses (1) of the Staff Regulations of Officials incurred by him on taking up of the European Communities, "The appointment, transfer or leaving the appointing authority shall, acting solely service. in the interests of the service and without regard to nationality, assign each official The provisions of Section 3 (A) of Annex by appointment or transfer to a post in VII, in other words those of Article 5 his category or service which thereof, relate to the installation
VERHAAF v COMMISSION
allowance. It follows from Article 5 (2) make my working life happier too. To that in the case of an established official achieve this I consider it necessary for who is entitled to the household me to return to Brussels — preferably allowance, an installation allowance within a short time". equal to two months' basic salary is paid The applicant was informed orally that to him when he is posted to a new place this fresh request for a change of posting of employment and is thereby called had been granted and he returned to upon to transfer his place of residence in Brussels on 17 May 1976.
His order to comply with Article 20 of the administrative status was regularized by Staff Regulations (in other words, to decision of the Director of Personnel of reside either in the place where he is 24 May 1976. His removal expenses employed or at no greater distance were reimbursed but the installation therefrom than is compatible with the allowance which he requested on 31 proper performance of his duties). Under May 1976 was refused by memorandum the second subparagraph of Article 5 (3), of 30 June 1976 from the Head of the installation allowance is paid on Division IX A 3 (Individual Rights and production of substantiating documents; Privileges).
it is necessary to establish that the official, together with his family, has On 23 September 1976 the applicant settled at the place where he is requested the Commission, under Article employed. 90 (1) of the Staff Regulations, to take a decision on the grant to him of the instal At the request of the applicant, a lation allowance as a result of his Principal Administrative Assistant (Grade removal from Petten to Overijse, near B 1) at Directorate-General IX Brussels. The Director of Personnel (Personneland Administration) of the replied to this request in a memorandum Commission, indicating that he was of 21 January 1977 in which, having obliged to leave Brussels for personal
specified that: "The Staff Regulations reasons, the Director of Personnel mention no period or time-limit so far as posted him, by decision of 11 November the grant of the installation allowance is 1975, to the Joint Research Centre at concerned" and that the decision Petten in the Netherlands for an initial refusing it "seems to be in accordance period of six months as from 1 August with the spirit of the provisions of the 1975. On 24 January 1976, once again at Staff Regulations and with the the request of the applicant, that posting requirements of the management of was extended for a further period of six public funds", he concluded:
"I am months, in other words from 1 February however willing to give my agreement 1976 to 31 July 1976. The applicant received inter alia a full installation that you should be reimbursed for the expenses which you have actually allowance (equal to two months' basic incurred in respect of your return to salary), which he was paid on 26 Brussels up to the full amount of the February 1976. installation allowance". By memorandum of 22 March 1976, the It follows from an exchange of applicant informed Mr Delauche, Assistant to the Director-General at memoranda between the applicant and the Director of Personnel that the latter Directorate-General DC, that he wished to return to Brussels since his work at considered that adequate evidence was Petten gave him little satisfaction and his not produced with regard to the difficulties had disappeared. "In view of expenses actually borne by the applicant when he settled in Overijse. the fact that my private circumstances have become stable," he wrote, "I would As the complaint lodged by the applicant ask you once more to take action to on 20 April 1977 pursuant to Article 90
JUDGMENT OF 9. 11. 1978 — CASE 140/77
(2) of the Staff Regulations and directed regards both the application for against the decision of 21 January 1977 annulment and the claim for had not produced any reply, the damages, and order the applicant to applicant lodged this application on 19 pay the costs. November 1977.
The written procedure followed the normal course. III — Submissions and argu ments of the parties After hearing the report of the Judge- Rapporteur and the views of the The applicant specifies that his request Advocate General, the Court (Second for the grant of an installation allowance Chamber) decided to open the oral was finally rejected by the decision procedure without instituting a contained in the memorandum from the preparatory inquiry. Director of Personnel of 21 January 1977. The second purpose of the application is the annulment of that II — Conclusions of the parties decision to the extent to which it refuses to grant the applicant an installation The applicant claims that the Court allowance under Article 5 of Annex VII should: to the Staff Regulations. 1. Annul the implied decision rejecting The implied rejection by the Commission his administrative complaint of 20 of the complaint of 20 April 1977 April 1977; requesting the annulment of the above- 2. Annul the decision of the Director of mentioned decision to the extent to Personnel of 21 January 1977 to the which that decision refuses to grant the extent to which it refuses the grant of installation allowance is the first purpose a standard installation allowance; of the application for annulment. 3. Rule that the applicant is entitled to The applicant claims that he changed his receive the abovementioned instal place of residence from Petten to lation allowance as from the date on Oversijse because of his new posting to which he settled in Overijse; Brussels and the related duty referred to 4. Order the defendant to pay the above- in Article 20 of the Staff Regulations to mentioned installation allowance; reside at no greater distance from Brussels than is compatible with the 5. Rule that the conduct of the proper performance of his duties. By defendant has moreover caused the refusing by means of the contested applicant material damage the amount decisions to grant him the standard instal of which the Court will fix at a sum lation allowance, the Commission has equal to the interest at the legal rate infringed the provisions of Article 5 (2) calculated on the amount of the instal and (3) of Annex VII. lation allowance from the date on which that allowance should have The applicant was legitimately able to been paid until the date on which it is expect that he would obtain his instal lation allowance from the date on which actually paid; he settled in Overijse. In any case he 6. Order the defendant to pay the costs suffers material damage objectively of the action, including lawyer's fees. expressed by the loss of interest at the legal rate calculated on the amount of The Commission contends that the Court the allowance from the date on which should: that allowance should have been paid by — Dismiss the application as unfounded the Commission until the date on which on both heads, in other words as it is actually paid, in execution of the
VERHAAF v COMMISSION
judgment annulling the contested supported by the provision of the Staff decisions. Regulations. Quite on the contrary, The Commission observes that Article 7 supposing that the Commission's (1) of the Staff Regulations provides that reasoning were followed, certain an official is assigned to a post by the transfers would be made irregularly for reasons extraneous "to the smooth appointing authority solely in the interests of the service. Although an functioning of the service within the official may apply to be transferred Community", in other words for reasons within his institution, the decision contrary to the interests of the service. necessary for this purpose must also be Such a statement would be contrary to justified by the interests of the service; the provisions of Article 7 of the Staff moreover, that decision should normally Regulations. be final, at least in the sense that the Once this principle has been length of the new posting is not linked to acknowledged the applicant can only be personal or family circumstances which requested to produce evidence that he are extraneous to the smooth functioning has actually settled in Overijse and of the service within the Community. cannot be requested to supply evidence In the present case there is no doubt that of the expenses which he has actually incurred. the decisions of 11 September 1975, 24 January and 24 May 1976 relating to the Replying to the objection raised by the absolutely temporary posting of the Commission of an alleged misuse of applicant to Petten were all taken by the rights, the applicant emphasizes that Director of Personnel at the express none of the specific characteristics of a request of the applicant. misuse of rights is present in this case. In The Head of Division IX A 3 and the particular, the right to the installation Director of Personnel refused, the allowance has not been misused since it
former by memorandum of 30 June 1976 relates precisely to this case, in other and the latter by memorandum of 21 words to the expenses incurred by an January 1977, to pay the applicant a official who is obliged to transfer his second full installation allowance in place of residence to the place of his new respect of a period of less than one year, posting. because of the temporary nature and the The Commission rejoins, so far as the limited length of the posting which had, facts are concerned, that the real reason moreover, been made at his own request. for the temporary posting of the On the other hand, he has been applicant must be sought on the one reimbursed for all the other expenses hand in the application which he made which he actually incurred. to that effect and, on the other, in the Even if it were possible to acknowledge very general duty of the administration that any "temporary" posting must auto to give its officials help and assistance matically give rise to the payment of an (Fürsorgepflicht) to the extent to which installation allowance whatever the and in so far as this is not contrary to actual circumstances of the specific case, "the interests of the service". in the present case this would manifestly As follows clearly from the applicant's constitute a misuse of rights. personal file, his posting to Petten was of The applicant replies that the a completely temporary nature; it was Commission's argument according to moreover terminated by decision of the which st posting granting a request for Director of Personnel of 24 May 1976 at transfer by the persons concerned does the request of the applicant before the not automatically entitle them to an expiry of the stipulated period. The installation allowance is in no way applicant had informed the adminis-
JUDGMENT OF 9. 11. 1978 — CASE 140/77
tration that in the meantime his personal material circumstances of the present and family situation in Brussels had case. In fact it considers that it is not "become stable" and that his removal to permissible for an official in favour of Petten was therefore no longer whom the administration, in reliance necessary. upon a very liberal application of the With regard to the law, the Commission principle of the Fürsorgepflicht des observes that the application is essentially Dienstherrn (employer's duty of for the annulment of the decision of 21 assistance), took an assisting measure by January 1977 of the Director of posting him temporarily to Petten upon Personnel refusing the request for the his request (and with his post), should be installation allowance submitted in granted two successive installation accordance with Article 90 (1) of the allowances in a period of less than one Staff Regulations. On the other hand, year. the claim for damages has no proper purpose since it is intended precisely to obtain an order that the Commission IV — Oral procedure should pay that same allowance together with interest. The applicant, represented by Mr X. In its defence the Commission raised the Leurquin, and the Commission of the objection of misuse of rights in the alter European Communities, represented by native and in so far as it was however its Agent, Mr R. Baeyens, presented oral necessary to grant an installation argument at the hearing on 13 July 1978. allowance automatically under Article 5 (3) to (5) of Annex VII to the Staff Regu The Advocate General delivered his lations in respect of the successive opinion at the hearing on 12 October postings regardless of the particular 1978.
Decision
1 The applicant, a Principal Administrative Assistant (Grade B 1) at Direc torate-General LX of the Commission (Personnel and Administration) who, in 1975, was residing with his family in Brussels, submitted an urgent request to the Director of Personnel indicating that for personal reasons he was obliged to leave Brussels.
2 As a result of that request, the Director of Personnel posted the applicant, by decision of 11 November 1975, to the Joint Research Centre at Petten in the Netherlands for an initial period of six months as from 1 August 1975.
3 On 24 January 1976, once more at the request of the applicant, that posting was extended for a further period of six months, in other words from 1 February 1976 to 31 July 1976.
VERHAAF v COMMISSION
4 By memorandum of 22 March 1976, the applicant informed Mr Delauche, Assistant to the Director-General at Directorate-General IX, that he wished to return to Brussels "in view of the fact that my private circumstances have become stable" adding that "I would ask you once more to take action to make my working life happier too. To achieve this I consider it necessary for me to return to Brussels — preferably within a short time".
5 The applicant was informed orally that this fresh request for a change of posting had been granted and he returned to Brussels on 17 May 1976.
6 This change was confirmed by decision of the Director of Personnel of 24 May 1976 terminating as from 17 May 1976 the applicant's posting to the establishment at Petten.
7 The applicant received in respect of his posting to Petten, in addition to reimbursement of his travel and removal expenses, appropriate daily subsistence allowances and a full installation allowance.
8 So far as his return to Brussels was concerned, the applicant also received travel and removal expenses but his request of 23 September 1976 for a second installation allowance submitted under Article 90 (1) of the Staff Regulations was rejected by memorandum of 21 January 1977 of the Director of Personnel although the latter stated that he was nevertheless ready "to give my agreement that you should be reimbursed for expenses which you have actually incurred in respect of your return to Brussels up to the full amount of the installation allowance, of course".
9 It follows from the file that no adequate evidence was produced with regard to the installation costs actually incurred by the applicant, with the exception of certain minor expenses.
is Nevertheless, the applicant who, in accordance with his reply "does not deny that his posting to Petten . . . was in accordance with his personal wishes", invokes the second subparagraph of Article 7 (1) of the Staff Regulations of Officials which provides that: "The appointing authority shall, acting solely in the interests of the service . . ., assign each official by appointment or transfer to a post in his category", so as to claim that his transfers must be considered as being solely in the interests of the service, the automatic result of which is that he is entitled to the installation allowance under the conditions laid down in the Staff Regulations when he returns to Brussels.
JUDGMENT OF 9. 11. 1978 — CASE 140/77
11 In providing that any appointment or transfer must be made solely in the interests of the service, Article 7 of the Staff Regulations does not prevent the competent authorities from taking into account the personal wishes of those concerned.
12 The competent authorities have the power, in the interests of good administration and, where necessary, the duty, of which Article 24 is only an example, to take all temporary measures which are not likely to have an adverse effect on the functioning of the institution to enable an official to overcome his personal difficulties.
13 It follows clearly from the file that the Director of Personnel posted the applicant to Petten in August 1975 and also to Brussels in May 1976 in the exercise of that power and that those postings were made "in the interests of the service" in the broad meaning of the term.
14 It would be moreover contrary to the principle of natural justice to permit the applicant, who has been granted a transfer at his express request and for personal reasons, to disregard that fact and to attribute his transfer solely to the requirements of his post.
15 It is necessary therefore to apply the provisions of the Staff Regulations and in particular those of Annex VII thereto which relate to the installation allowance in the light of the particular features of the applicant's situation.
16 Under Article 71 of the Staff Regulations, an official is entitled, as provided in Annex VII, to reimbursement of expenses incurred by him inter alia on transfer.
17 The provisions of Section 3 of Annex VII to the Staff Regulations on reimbursement of expenses provide in particular, having regard to certain specific and characteristic situations, for the payment of a standard allowance, such as the installation allowance, which simplifies the task of the administration by excluding the need for the latter to examine the expenses actually incurred by an official.
18 The specific and characteristic purpose of an installation allowance is to enable an official to bear, in addition to removal expenses, the inevitable
VERHAAF v COMMISSION
expenses incurred through integrating in new surroundings for an indeterminate but substantial period of time.
19 With this in mind Article 5 (5) provides that an official who has received an installation allowance must refund part of the allowance if he voluntarily leaves the service of the Communities within two years.
20 It follows that the applicant, who at his own request was transferred twice during a relatively short time in special circumstances which arose as a result of family difficulties, cannot contest the validity of the decision of the Commission which considered that under the principles of the proper management of public funds he cannot be granted a second installation allowance considerably in excess of the expenses which he actually incurred.
21 The application must therefore be dismissed.
Costs
22 Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.
23 The applicant has failed in his submissions.
24 However, under Article 70 of the Rules of Procedure the institutions shall bear their own costs in proceedings brought against them by servants of the Communities.
OPINION OF MR REISCHL — CASE 140/77
On those grounds,
THE COURT (Second Chamber)
hereby:
1. Dismisses the application.
2. Orders the parties to bear their own costs.
Mackenzie Stuart Sørensen Touffait
Delivered in open court in Luxembourg on 9 November 1978.
A. Van Houtte A. J. Mackenzie Stuart Registrar President of the Second Chamber
OPINION OF MR ADVOCATE GENERAL REISCHL DELIVERED ON 12 OCTOBER 1978 1
Mr President, evidence of having been obliged to Members of the Court, change his place of residence in order to comply with Article 20 of the Staff Regu The proceedings on which I am lations. delivering my opinion today concern a claim for an installation allowance which is provided for as follows in Article 5 of An installation allowance of the same Annex VII to the Staff Regulations of amount shall be paid to any official who Officials: I shall only quote the portions is transferred to a new place of which are of interest in this case: employment and is thereby obliged to "All installation allowance equal to two change his place of employment and is months' basic salary in the case of an thereby obliged to change his place of official who is entitled to the household residence in order to comply with Article allowance . .. shall be paid to an 20 of the Staff Regulations. established official ... who furnishes
1 — Translated from the German.