C-137/79

In Case 137/79

JEAN KOHLL, an official of the Commission of the European Communities, residing at Rue Keeker, Ehnen (Grand Duchy of Luxembourg), represented by Victor Biel of the Luxembourg Bar, with an address for service in Luxembourg at the Chambers of the said Mr Biel, 18 A Rue des Glacis, applicant, 1 — Language of the Case: French.

JUDGMENT OF 11. 7. 1980 — CASE 137/79

V

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Joseph Griesmar, acting as Agent, assisted by Daniel Jacob of the Brussels Bar, with an address for service in Luxembourg at the office of its Legal Adviser, Mario Cervino, Jean Monnet Building, Kirchberg, defendant, APPLICATION regarding claims set out below,

T H E COURT (First Chamber)

1. The relevant Community rules 3. The amount of . . . the separation allowance granted to servants who before taking up their duties resided Article 47 of the Staff Regulations of continuously for more than six Officials of the European Coal and Steel months in a place more than 25 Community of 1956 provided that: kilometres from the seat; . . . "

KOHLL v COMMISSION

In implementation of the above- circumstances arising from mentioned provision, Article 9 of the work done for another State General Regulations of the ECSC of or for an international 1956 provided that: organization shall not be taken into account; "(a) Officials who fulfil the conditions laid down in Article 47 (3) of the (b) to officials who are or have been Staff Regulations are entitled to a nationals of the State in whose separation allowance equal to 20% territory the place where they of their basic salary . . . are employed is situated but who during the ten years ending at the date of their entering the (b) Officials who as a result of a new service habitually resided outside posting take up residence less than the European territory of that 25 kilometres from the place where State for reasons other than the they resided before their entry into performance of duties in the the service lose the right to the service of a State or of an inter- allowance provided for in national organization . . . " paragraph ( a ) ; . . . "

The transitional provisions in the fourth Article 4 of Annex VII to the Staff Regu- paragraph of Article 97 of the Staff lations of Officials of the European Regulations of Officials of the ECSC of Communities (Regulation No 259/68), 1962, which remained applicable by which came into force on 1 March 1968, virtue of the final paragraph of Article 2 lays down that: of Regulation No 259/68, provide that:

in Dudelange, which is less than 25 Following Mr Pratley"s reply, Mr Kohll kilometres from the place of his had sold his house in Tervuren (at a loss, employment, Luxembourg. he claims, of 1 500 000 francs). He had also obtained from the Beamten- By a decision of the" appointing authority heimstättenwerk a loan of DM 184 000 of 5 July 1968 the applicant was assigned for the construction of a house in Ehnen, to the Directorate-General for Personnel which is more than 25 kilometres from and Administration in Brussels. While he Dudelange, purchased a building plot in was in Belgium he purchased a house at Rue Keeker, Ehnen, bought, meanwhile, Tervuren. a house in the same locality, and commenced building the new house. In a letter of 14 April 1978 Mr Kohll requested assurance from Mr Pratley, On 13 October 1978 Mr Kohll asked the Head of the Individual Rights and Head of the Personnel Division in Privileges Division in Brussels, that he Luxembourg, Mr Schwering, to could continue to draw the expatriation allowance in the event of his being " . . . do whatever is required for me to transferred to Luxembourg. obtain the expatriation allowance in view of the fact that my place of residence is On 20 April 1978 Mr Pratley sent him Ehnen and I therefore fulfil the the following reply: conditions set out in the note from Mr Pratley." " . . . in the event of your being transferred to Luxembourg payment of The applicant was granted the allowance the expatriation allowance would be in question for the month of October withdrawn unless you establish your 1978. Subsequently, the sum involved place of residence more than 25 was recovered on the basis of Article 85 kilometres away from the place where of the Staff Regulations, but, pursuant to you were living before your entered the the formal decision of 29 June 1979 service, that is to say, Dudelange, this rejecting his preliminary complaint, it being the result of the provisions of was returned to him on the ground that Article 9 (b) of the General Regulations the conditions governing the application of the ECSC taken in conjunction with of Article 85 had not been met. In a note the fourth paragraph of Article 97 of the of 12 February 1979 Mr Schwering Staff Regulations of the ECSC, which informed the applicant that he was not came into effect on 1 January 1962." entitled to receive the expatriation allowance. On 14 June 1978 Mr Kohll applied for a post in career bracket C 3/2 in Luxem- On 19 February 1979 the applicant bourg which was the subject of Vacancy lodged a complaint under Article 90 of Notice COM/399/78. the Staff Regulations.

The applicant claims that the Court — Dismiss the application as un- should: founded; — Declare that this application is — Order the applicant to pay the costs; admissible and was lodged within the prescribed period; — and reserves all its rights. — As regards the substance of the case: In his reply, the applicant offers to prove Primarily by way of inquiry that he would not have applied for a transfer if he had not (a) Declare that according to the staff received the assurance that he would rules applicable to persons re- retain the expatriation allowance. engaged under the Staff Regulations of Officials of the ECSC, he is entitled to continuation of the local allowance; Ill — Submissions and argu- m e n t s of the p a r t i e s (b) In that case, annul the decision rejecting his complaint and uphold the decision of 20 April 1978; A — Submission relating to the infringement of Article 97 (4) of the In the alternative former Staff Regulations of Officials of the ECSC (a) To the extent to which the decision of 20 April 1978 is not upheld as 1. The applicant claims that under being vitiated by error, declare that Article 97 (4) of the former Staff Regu- the Commission is liable for the lations of Officials of the ECSC his administrative mistake and must entitlement to receive the expatriation provide compensation therefor; allowance ought to have been allowed (b) Fix the damages payable to the when he was transferred to Luxembourg applicant at Lir 5 250 000 with with effect from 1 October 1978. In the interest according to law; case of an official who has been (c) In so far as neccessary, allow the established pursuant to Article 93 of the applicant to prove by the evidence ECSC Staff Regulations of 1962, a of expert witnesses the damage change in his place of employment resulting from the loss of the preserves his entitlement to the allowance and the loss incurred on allowance, even if he no longer fulfils the the sale price of his house at conditions laid down in Article 4 of Tervuren; Annex VII to the Staff Regulations. He must, however, have been entitled to In thefinther alternative receive the separation allowance under the former Staff Regulations of Officials — Order the Commission to pay him of the ECSC. That requirement was during the whole period of his satisfied as from the date of Mr Kohll's employment a separation allowance transfer to Brussels notwithstanding that of 16% of his salary, by way of whilst he was working in Luxembourg he compensatory annuity; did not meet the requirement as to

The applicant disputes the relevance of the objection contained in the letter from It is equally fruitless for the applicant to Mr Tugendhat, to the effect that, under rely a contrario upon the rule laid down Article 9 (b) of the General Regulations in Article 9 (b) of the ECSC General of the ECSC, officials who, as a result of Regulations. Although his present place a new posting, take up residence less of residence, Ehnen, is certainly more than 25 kilometres from the place where than 25 kilometres from where he they resided before their entry into the resided prior to his entry into the service, service lose the right to receive a Dudelange, the applicant has failed to separation allowance. He points out that establish that it was his posting to Ehnen is more than 25 kilometres from Luxembourg which necessitated his Dudelange. taking up residence more than 25 kilometres from his original place of residence. On the contrary, it appears from the explanations which have been The applicant also rejects the argument, given that it was on the basis of purely set out in the same document, that Mr personal considerations that he decided Kohll's new posting did not necessarily to settle in Ehnen and to have a house cause him to settle at a distance of more built there. The raison d'être of the than 25 kilometres from where he separation allowance is to compensate resided prior to first taking up his duties. for extra expense incurred by the official He argues that Article 20 of the Staff as a result of the obligation, in view of Regulations provides than an official the requirements of the service, to settle must not reside at such a distance from more than 25 kilometres from the place his place of employment as may interfere where he was residing prior to his with the performance of his duties. appointment. It would run counter to the However, in the applicant's case, the purpose of that allowance to make the journey from Ehnen to Luxembourg grant of it dependent on the whim cannot be considered as so interfering. of officials, independently of any The applicant adds that the appointing requirement of the service. authority may not question an official's choice of residence for that choice is a "human right". He states that he selected In reply to two arguments which it that locality because he had family roots considers to have no direct relevance to there. the claim, the defendant observes that the applicant's establishment of his residence at Ehnen does not contravene the provision in Article 20 of the Staff Regulations, that his reliance upon the 2. The Commission replies that the concept of human rights is misplaced, applicant is not entitled to benefit from and that the administration does not the transitional provisions in the fourth infringe the right to freedom in the paragraph of Article 97. At no time choice of a place of residence by making during his first period of service in the grant of the expatriation allowance

4. In its rejoinder the Commissiołi 3. In his reply the applicant claims that replies that there is no entitlement to a the last requirement laid down in the right unless the conditions for its fourth paragraph of Article 97, namely enjoyment have been met. Mr Kohll " . . . if the former Staff Regulations of cannot argue that Article 47 (3) of the Officials of the European Coal and Steel ECSC Staff Regulations of 1956 Community entitled him to the "entitled" him to the separation separation allowance", should not be allowance prior to 1962 for he never understood as meaning "actual received it. The advantage conferred by enjoyment" of a right but "entitlement" the fourth paragraph of Article 97 may thereto. Such a right would have been therefore only be claimed by officials present were it not for the condition who actually received the allowance, as attached to it, namely, previous residence is confirmed by the wording which has at a distance of more than 25 kilometres been used: "entitled him to the from the seat of the institution. But, separation allowance" and not "had according to the fourth paragraph of entitled him". Article 97, any change in the place of employment gives officials established under the terms of Article 93 of the The distance requirement laid down in ECSC Regulations a fresh entitlement to the former Staff Regulations of the receive the allowance. ECSC is objective in its nature and the hypothetical border-line case described by the applicant does not mean that the provision must be considered "absurd". Any contrary interpretation would mean Is it possible to imagine an official who that two Luxembourg nationals recruited has completed 9 1/2years' service claiming into the service of the ECSC, the first payment of the pension provided for coming from just over 25 kilometres under Article 77 of the Staff Regulations from the seat of the institution and the in reliance on the fact that he has second from 24 kilometres, who are completed "almost 10 years' service"? In transferred together to Brussels and then the hypothetical case described by the re-posted at the same time to Luxem­ applicant the two officials re-posted to bourg would find themselves treated Luxembourg would have again been differently on their return, the first placed in the position in which they were receiving a salary 16% higher than that prior to their posting to Brussels, of the second. irrespective of where their residence lay prior to their first entry into the service.

B — Submission relating to the 2. The defendant replies that the note Commission's liability for a from Mr Pratley bears none of the wrongful act features which have been identified by the Court as constituting a decision (cf. 1. By way of introduction, the applicant Case 54/65, Forges de Châtillon, [1966] observes that, according to Articles 6 and ECR 185). The author of that note is not 9 of the Decision of the Commission of the authority competent to adopt a 5 October 1977 relating to the exercise decision concerning the grant of an of the powers conferred on the allowance to an official posted to appointing authority by the Staff Regu- Luxembourg: the decision of the lations of Officials, any decision Commission of 5 October 1977 shows in concerning the application of the fourth fact that that authority is Mr Schwering, paragraph of Article 97 of the former Head of the Personnel Division in Staff Regulations of the ECSC or the Luxembourg. The note cannot have any application of Article 4 of Annex VII is a legal effect whatsoever as it relates to a matter for the Head of the Division or purely hypothetical situation. It does not the Head of a specialized department represent the termination of an internal within the Directorate-General for procedure. It does not employ the word Personnel and Administration. Mr "decision" and the form in which it is Pratley is the Head of the specialized drafted is not such as to give the Individual Rights and Privileges Division. impression that it had that nature.

KOHLL v COMMISSION

JUDGMENT OF 11. 7. 1980 — CASE 137/79

Decision

1 By an application dated 28 August 1979 the applicant, a Luxembourg national assigned to the Personnel Division of the Commission in Luxem- bourg, requests the annulment of the decision of 29 J u n e 1979 rejecting the complaint he had submitted on 19 February 1979 seeking continuance of the

KOHLL v COMMISSION

expatriation allowance which was paid to him whilst he was posted to Brussels and, in the alternative, an order that the Commission should compensate him for damage consisting in, on the one hand, the loss of that allowance for the 25 years which have to elapse before his retirement (that is to say, a sum of Lfr 3 750 000) and, on the other hand, the loss he claims to have suffered in selling his house in Tervuren (Belgium) at a price of Lfr 1 500 000 below its true value.

2 Prior to his entry into the service of the High Authority of the ECSC on 1 October 1954 the applicant resided at Dudelange, that is to say, at a distance of less than 25 kilometres from his place of employment, Luxembourg.

3 Thus he was never entitled to the separation allowance granted under Article 47 of the ECSC Staff Regulations of 1956 to "officials who before taking up their duties resided continuously for more than six months in a place more than 25 kilometres from the seat of the institution".

6 On his return to Luxembourg the applicant established his place of residence in Ehnen, which is more than 25 kilometres from where he resided prior to his entry into the service (Dudelange). He accordingly advances a first argument which proceeds upon an infringement of the fourth paragraph of Article 97 of the Staff Regulations of Officials of the ECSC of 1962 containing transitional provisions which remained applicable by virtue of the final paragraph of Article 2 of Regulation No 259/68 and which provide:

"Where as a result of an alteration in his place of employment an official established under Article 93 no longer fulfils the conditions laid down in Article 4 of Annex VII for receiving the expatriation allowance, he shall nevertheless continue to receive that allowance if the former Staff Regu- lations of Officials of the European Coal and Steel Community entitled him to the separation allowance".

S u b m i s s i o n r e l a t i n g to t h e i n f r i n g e m e n t of t h e f o u r t h p a r a g r a p h of A r t i c l e 97 of the f o r m e r Staff R e g u l a t i o n s of t h e E C S C

7 According to the applicant, he was entitled under that provision to receive the separation allowance from the date of his transfer to Brussels in 1968, even though as long as he was employed in Luxembourg he did not meet the requirement as to the distance of 25 kilometres from the seat of his institution. In order for him to have been entitled to the allowance it was thus sufficient for him to establish his place of residence at 25 kilometres from his place of origin.

11 The first submission is therefore unfounded.

S u b m i s s i o n r e l a t i n g to the C o m m i s s i o n ' s liability for a w r o n g f u l act

12 The applicant claims that if the Head of the Individual Rights and Privileges Division of Brussels made a mistake in informing him, by note of 20 April 1978, that, in the event of his being transferred to Luxembourg, he could continue to draw the expatriation allowance it is the defendant who ought to bear the consequences in accordance with Article 91 of the Staff Regulations. The causal link has been established, he claims, by the fact that, had the reply to the question of retaining the expatriation allowance been in doubt, he would have abandoned the idea of leaving Brussels.

1 3 The Commission is of the opinion that the note in question does not bear any of the features identified by the Court as constituting a decision. In particular, the author of the note was not the authority competent to take a decision concerning the grant of an allowance to an official posted to Luxembourg.

JUDGMENT OF 11. 7. 1980 — CASE 137/79

14 It must be borne in mind that, as the Court has already stated in its decisions of 28 May 1979 (Joined Cases 19, 20, 25 and 30/69, Ricbez-Parise, [1970] ECR 325) and 9 July 1970 (Case 23/69, Rehn, [1970] ECR 547), apart from the exceptional instance, the adoption of an incorrect interpretation does not constitute in itself a wrongful act.

KOHLL v COMMISSION

On those grounds,

T H E COURT (First Chamber)

hereby:

1. Dismisses the application;

2. Orders the Commission to pay the costs.