C-219/78

Hans Michaelis, an honorary Director General of the Commission of the European Communities, residing in Cologne, represented by V. Biel, Advocate of the Luxembourg Bar, 18a Rue des Glacis, with an address for service in Luxembourg at the Chambers of the said V. Biel,

applicant,

v

Commission of the European Communities, represented by R. Baeyens, Principal Legal Adviser, acting as Agent, assisted by V. Wieme, Advocate of the Brussels Bar, with an address for service in Luxembourg at the office of M. Cervino, Legal Adviser to the Commission, Jean Monnet Building, Kirchberg,

defendant,

APPLICATION for the annulment of the partial rejection by the Commission of the complaint submitted by the applicant seeking the application to his retirement pension with effect from the date of his retirement of the weighting fixed for Belgium,

JUDGMENT

Facts and Issues

I — Facts and procedure The President of the Commission of the

European Communities notified the applicant by a letter of 22 March 1968 of his transfer to the post of Director General for General Research and 1. The applicant, Hans Michaelis, was Technology. born on 7 August 1914 in Duisburg and entered the service of the High Authority of the ECSC on 6 July 1953. By a decision of 15 October 1956 of the By a decision of the Commission of 3 President of the High Authority he was February 1971 the applicant was retired appointed an official in Category A, from his post as Director General in the Grade 3, Step 3. interests of the service pursuant to Article 50 of the Staff Regulations of Officials of the European Communities and placed at the disposal of the By a decision of 15 February 1963 signed Commission as a special adviser for the by the President of the Euratom period from 15 February to 1 September Commission the applicant was appointed 1971, after which date he was granted Director of the Economic Affairs the benefit of Article 42 of the Staff Division in Grade A 2, Step 4, with Regulations of Officials of the ECSC. effect from 1 January 1962.

From 1 September 1971 to 31 August By a decision of 13 July 1966 signed by 1974 the applicant, pursuant to Article the President of the Euratom 42 (retirement in the interests of the Commission the applicant was appointed service) of the Staff Regulations of with effect from 22 June 1966 Director Officials of the ECSC of 28 January General (Grade A 1, Step 4) of the 1956, received a monthly allowance Directorate General for Industrial and corresponding to his basic wage and Economic Affairs. family allowances.

In his declaration of 26 January 1976 concerning his family situation the 2. By a decision of 5 September 1974 applicant indicated as his place of of the Director of Personnel at the residence two addresses, Brussels and Commission the applicant's right to a Vallendar. retirement pension was recognized with effect from 1 September 1974. On the other hand the applicant, in his declaration of 29 January 1977, indicated as his sole place of residence The applicant, who had stated that he resided at Vallendar in the Federal his Brussels address, stating that Republic of Germany and had produced correspondence should be sent there. a certificate of residence to that effect, claimed payment of the resettlement By a letter of 11 September 1977 to the allowance provided for in Article 6 (4) of Head of Division IX A 4 the applicant Annex VII to the Staff Regulations. He requested that the Belgian weighting was refused that allowance. Mr Pratley, should be applied to the payment of his the head of division, explained in his retirement pension. letter of 20 June 1974 that that decision of refusal was based on the fact that the In a note of 22 September 1977 Mr applicant had not removed to Vallendar Pratley complied with that request with and that he had retained his home in effect from 1 September 1977. Brussels as a permanent adviser to the Commission. However, in his application the applicant claimed that he did not 3. By a letter of 26 September 1977 the receive that letter of 20 June 1974 before applicant requested that that weighting the month of August 1974. should be applied retroactively with effect from 1 September 1974. That retroactive application was refused by a By a letter of 22 July 1974 signed by Mr letter of 18 November 1977, bearing the Pratley the applicant was informed of all the factors to be taken into account in reference IX A 4 (77) D/6292.

(d) Order the Commission to bear The Court (Second Chamber), after the costs." hearing the Advocate General, decided to open the oral procedure without any preparatory inquiry. The Commission contends that the Court

should dismiss the application as unfounded and order the applicant to bear the costs. II — Conclusions of the parties

The applicant claims that the Court should: III — Submissions and argu- ments of the parties "1. Declare that this application is admissible as far as concerns its form

the weighting for Belgium with effect it is paid when evidence is provided of the from 1 September 1974 constitutes a resettlement of the official and his family form of unjustified enrichment. In this after the final termination of his service, connexion the applicant refers to Article provided that such resettlement takes 85 of the Staff Regulations concerning place at the latest three years after the recovery of undue payment and termination of his service. The provisions considers that it must also be possible for in this matter depend on Article 71 of officials to rely upon the right to the Staff Regulations which concerns the repayment provided for in that article. reimbursement of expenses incurred inter Finally, it is contradictory to maintain, as alia on leaving the service and have does the Commission, that the refusal to nothing to do with the pension grant the resettlement allowance to the arrangements laid down in Article 77 et applicant does not in itself establish that seq. of the Staff Regulations, the detailed the applicant had not returned to his rules for which are laid down in Annex

place of origin when in reality that VIII. refusal was based on the fact that the

applicant had maintained his home in Brussels.

There is therefore little point in endeav- ouring, as does the applicant, to combine in the present case the attitudes of the administration with regard to the granting of a resettlement allowance, on the one hand, and the application of the The Commission claims, in its statement weighting for a specified country under of defence, that in matters of pensions the retirement pension arrangements, on the determination of pension rights the other. Furthermore, the foregoing effected by the administration is largely constitute two separate complaints based on the information supplied and submitted by the applicant and the the choice made by the retired official. appointing authority adopted different In fact Article 40 of Annex VIII to the solutions in each case.

According to the Commission the rectification of his pension rights at any applicant, who was a director general time, and also therefore retroactively. and has remained throughout a university professor, could not have been unaware of the provisions of the Staff Regulations which affected the determi- nation of his pension rights, the more so since those provisions were pointed out The Commission in its rejoinder claims to him in the letter of 22 July 1974 from that the fact that the administration the Head of Division IX A 4 and since, with regard to the questionnaire considered that the applicant had not furnished sufficient evidence of his completed by the applicant on 1 August resettlement in Vallendar does not rule 1974, the detailed statement of the calcu- lation of his pension, drawn up on the out the possibility that he may have intended to establish his home there for basis of the information furnished by him, was duly communicated to him on the purposes of Article 82 of the Staff 5 November 1974. Regulations whilst retaining a place of residence and an address for cor-

respondence in Brussels. In those circumstances there is no foundation in

fact or in law for the applicant's argument that the refusal of the administration to grant the resettlement allowance necessarily implies acceptance of a place of residence in Belgium and should have been followed by the The applicant in his reply claims that, application of the Belgian weighting in pursuant to Article 41 of Annex VIII to spite of the fact that the person the Staff Regulations, the only condition concerned chose to establish his home in prescribed for having pension rights the Federal Republic of Germany. calculated afresh is that there has been an error or omission. It is clear that in

1977 gave Brussels as his address. application to his pension of the Belgian weighting and the payment thereof in German marks at the favourable rate laid Finally, the Commission observes that down in the Staff Regulations. the ground of action based on the principle of unjustified enrichment is unfounded. By way of a detailed IV — Oral procedure example the Commission shows that in the present case the application to the The parties presented oral argument at pension of the weighting in force for the hearing on 13 September 1979. Germany with payment in German marks at the rate laid down by the Staff Regulations provided the person The Advocate General delivered his concerned with a net pension the value opinion at the sitting on 11 October of which corresponds to that of the 1979.

Decision

1 The application, which was received at the Court Registry on 2 October 1978, claims the annulment of the partial rejection by the Commission of the complaint submitted on 6 December 1977 by the applicant seeking the application with retroactive effect for the period until 1 January 1977 of the weighting for Belgium to his retirement pension.

2 The applicant, an honorary director general at the Commission, retired with effect from 1 September 1974. Upon being requested to furnish all the infor- mation necessary for determining his pension rights he completed on 1 August 1974 a questionnaire in which he certified inter alia that his place of residence was Vallendar in the Federal Republic of Germany. Instead of giving the date from which that choice was to take effect, as was required by the questionnaire, he merely mentioned that "the exact time ... is under discussion with the Director of Personnel IX A 4". The applicant intended thereby to refer to a claim for payment of an allowance in respect of his

6 The applicant initiated the present proceedings in order to establish his right to the retroactive application for the period from 1 September 1974 to 31 December 1976 of the weighting fixed for Belgium. The application is based on the second subparagraph of Article 82 (1) of the Staff Regulations, which provides that pensions shall be weighted for the country of the Communities

HANS MICHAELIS COMMISSION

where the person entitled to the pension declares his home to be, and on Article 41 of Annex VIII to the Staff Regualtions which provides that "The amount of pension may at any time be calculated afresh if there has been error or omission of any kind".

7 According to the applicant the administration has erred in applying the weighting fixed for the Federal Republic of Germany. Having regard to the grounds upon which it relied in rejecting his claim for the resettlement allowance the defendant institution could not have been unaware of the fact

that the applicant had retained his home in Brussels, to which furthermore it continued to address correspondence to him. That error by the administration led to unjustified enrichment on its part which entitles the applicant to claim payment of the sums improperly retained by it. The applicant claims that this solution must prevail by analogy with that provided in favour of the administration by Article 85 of the Staff Regulations which authorizes it to claim, on certain conditions but without any limit as to time, the reimbursement of sums unduly paid to officials.

9 It must accordingly be found, without its being necessary to consider the question of the admissibility of the application, that the latter must in any case be dismissed as manifestly unfounded.

Costs

10 Pursuant to Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to bear the costs. Nevertheless, pursuant to Article 70 of the Rules of Procedure the institutions shall bear the costs which they have incurred in proceedings commenced against them by officials of the Communities.

On those grounds,

THE COURT (Second Chamber)

hereby: