C-142/79

JUDGMENT OF T H E COURT (SECOND CHAMBER) OF 22 MAY 1980 1

Patrizia Geronimo (née Fonti) ν European Parliament

"Periods for bringing actions — act adversely affecting an official"

Case 142/79

Officials — Applications to the Court — Act adversely affecting an official — Concept — Decision of rejection addressed to the official — Inoperative nature of communication addressed to a third party (Staff Regulations, Art. 90 (2))

A letter from the administration months for submitting a complaint laid informing an official that it is impossible down in that provision. On the other to give a favourable reply to a request hand a subsequent letter addressed to a made by him and indicating the reasons third party who has taken steps on behalf on which that rejection was based of the person concerned and in which constitutes an "act adversely affecting" the administration merely explains the the official within the meaning of Article prior decision cannot be regarded as 90 (2) of the Staff Regulations and being of such a nature. causes to start to run the period of three

T H E COURT (Second Chamber)

composed of: A. Touffait, President of Chamber, P. Pescatore and O. Due, Judges,

Advocate General: F. Capotorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

auxiliary staff who furnish evidence of Administrative Services of the institutions having to change their place of residence of the Community. to carry out their duties. On 24 July 1978 the applicant, who had On 23 November 1976 the applicant in the meantime been established with married Franco Geronimo, an official of effect from 1 July 1978, asked the Head the European Parliament. of the Management and Staff Regu lations Department for the installation The applicant, whose contract as an allowance provided for in Article 5 of auxiliary had been extended beyond Annex VII to the Staff Regulations. the initial period of six months received the daily subsistence allowance until In answer to that request the Head of 24 October 1977 in accordance with the Management and Staff Regulations Article 69 of the Conditions of Department in a letter dated 11 October Employment of Other Servants which 1978 forwarded to the applicant provides that the allowance is granted to 'Opinion No 26/78" which the Heads auxiliary staff for not more than one of Administrative Services had reached at year. their meeting on 15 September 1978 on

cember 1977 the European Parliament Article 69 of the Conditions of recognized the applicant as being entitled Employment of Other Servants, which to the daily subsistence allowance for up provides that a member of the auxiliary to 180 days at the rates, on the terms staff who furnishes evidence that he and subject to the limitations provided cannot continue to reside at his former for in Article 10 of Annex VII to the place of residence shall be entitled for Staff Regulations. not more than one year to the daily subsistence allowance provided for in In fact the applicant did not receive that Article 10 of Annex VII to the Staff

The Heads of Administrative Services are of the opinion that in such case the In a letter dated 1 March 1978 the head daily subsistence allowance provided for of the department informed her that in Article 10 of Annex VII to the Staff "because of the difficulties involved" her Regulations should not be paid since case had been submitted to the there has been no removal as provided Preparatory Committee of the Heads of for in that article.

"The applicant's file in this case has been On 13 September 1979 the applicant very carefully considered several times by brought an action in which she claims my department which, with exaggerated that the Court should: zeal, has even taken the trouble, before giving a final answer to the applicant, to — Declare that the implied decision submit the case together with all the facts rejecting her complaint of 20 Fe- first to the Preparatory Committee and bruary 1979 is illegal; consequently then to the Heads of Administrative declare it to be null and void; Services. — Declare that the European Par- liament must pay the applicant both Unfortunately those two bodies also the daily subsistence allowance for came to an adverse conclusion on the seven months and the removal costs matter. The applicant was always kept to be incurred; informed of the various stages of the proceedings and finally was officially — Declare that the sums in question notified of the decision refusing her shall bear interest at 6% from the request with the grounds therefor." date on which this action was brought; After a fresh approach by the Staff Committee on 4 December 1978 the •— Order the European Parliament to Director-General replied by letter dated pay the costs. 11 December that since the department responsible had studied the file thor- On 14 December 1979 the European oughly "it would be inconceivable for it Parliament applied to the Court under to reach a different conclusion unless Article 91 (1) of the Rules of Procedure there were further factors which could for a ruling on the admissibility of the be taken into account". action without entering into the merits, a declaration that the action is inadmissible At the end of his letter the Director- and an order as to costs in accordance General reminded the Staff Committee with the relevant provisions.

After hearing the report of the Judge- Rapporteur and the views of the (b) The letter from the Head of the Advocate General the Court (Second Management and Staff Regulations Chamber) decided to open the oral Department of 11 October 1978 has all procedure only with regard to the the characteristics of an administrative objection to admissibility without decision: it refers to Mrs Geronimo's holding a preparatory inquiry. It application, states that it had been nevertheless requested the parties to investigated and sets out the result with forward certain documents, which they the reasons therefor. The reasons were did within the prescribed time-limits. expressed in the very terms of the opinion of the Heads of Administrative Services who on considering the particular case which had been submitted III —· S u b m i s s i o n s and argu­ to them found that the condition laid m e n t s of t h e p a r t i e s d u r i n g down by the Staff Regulations was not the w r i t t e n p r o c e d u r e w i t h satisfied. r e g a r d to t h e a d m i s s i b i l i t y of t h e a c t i o n The letter was signed by the head of the department to whom the request had The European Parliament, defendant in been made and who was authorized to the main action, applicant in relation to forward to the applicant the decision the objection to admissibility, considers taken by the Heads of Administrative that the action is altogether inadmissible. Services. The Head of the Management and Staff Regulations Department at the European Parliament has been concerned for years with questions arising in A — Daily subsistence allowance connexion with all the allowances provided for in Annex VII to the Staff Regulations; that position is perfectly (a) The measure adversely affecting well known to the applicant. The Mrs Geronimo is the letter of 11 Oc­ Director-General, to whom the President tober 1978 signed by the Head of the of the Staff Committee put the matter, Management and Staff Regulations for his part referred to the investigation Department informing her of the adverse carried out and the decisions taken by opinion of the Heads of Administrative the department responsible. Services and consequently of the rejection of her request. She ought to have submitted a complaint against that The adverse decision was taken by the measure to the Appointing Authority in Heads of Administrative Services, a body accordance with Article 90 (2) of the of which the Director-General of the Staff Regulations. The period for doing Administration of the European Parlia­ so, three months from the date of ment is a member. He thus took part in notification of the decision to the person the decision challenged for which he is in concerned, expired on 11 January 1979. any event responsible.

If the applicant had been of the opinion Β — Removal expenses that the decision was ultra vires it was open to her plead so in her application. (a) The applicant has never asked for removal expenses and no decision has been taken with regard thereto. (c) The letter from the Director- General for Administration, Personnel and Finance of 11 December 1978 is in (b) The letter from the President of the no way the first decision in respect of the Staff Committee to the Director-General applicant. dated 6 November 1978 certainly included removal expenses, but in fact it related only to the daily subsistence allowance which was the only one That letter is the answer to the President claimed by the applicant. The subsequent of the Staff Committee, who had correspondence also deals which the intervened on behalf of the applicant, same subject even if in his letter of and can in no way be regarded as the 4 December 1978 the President of the decision appealed against. Staff Committee included in the heading both the installation allowance and reimbursement of removal expenses. In First of all it is not addressed to the any event the President of the Staff official concerned as is required by the Committee only intervened on behalf of second paragraph of Article 25 of the the applicant and did not act as her Staff Regulations. A decision adversely attorney. affecting an official cannot be notified to the person concerned through the Prior to the complaint of 20 February intermediary of a third party even if he is 1979 the applicant had therefore not the President of the Staff Committee. submitted a request for reimbursement of removal expenses and no decision could have been taken. The complaint within Secondly the letter contains no decision the meaning of Article 90 (2) of the Staff but refers to the previous correspondence Regulations is therefore inadmissible and to the decision of the department because there is no act adversely responsible. The first letter of 27 No­ affecting her. vember 1978, to which the letter of 11 December 1978 refers, also contains no decision but merely refers to the detailed (c) In the event of the applicant main­ investigation of the case decided pre­ taining that a request by her was viously. Even assuming the letter cited by unnecessary because according to the applicant confirmed the decision — Internal Directive No 75/78 of 29 which it did not — it would not, October 1978 written authority for according to the case-law of the Court, removal should have been issued to her start time running afresh (judgment of upon her establishment, it should be 14 July 1965, Joined Cases 50, 51, 53, stated that having received no such auth­ 54 and 57/64 Loebisch and Others ν orization by the end of her probationary Councils of the EEC, EAEC and ECSC period or at the latest with the letter [1965] ECR 825; judgment of 7 July dated 29 September 1978 informing her 1971, Case 79/70 Müllers ν Economic of the establishment, the applicant ought and Social Committee of the to have regarded such omission as a EEC & EAEC [1971] ECR 689). failure to adopt a measure prescribed by

the Staff Regulations within the meaning p. 442) that because of the equivocal of Article 90 (2). Accordingly a nature of the communication made in complaint ought to have been lodged answer to a request the person within a period of three months, that is concerned may rightly consider that she to say at the latest by 29 December 1978. is still within the time-limits. Since it was not lodged until 20 February 1979 the complaint was out of time and the application is therefore inadmissible. (c) The letter dated 11 October 1978 cannot for several reasons be regarded as Mrs Geronimo, applicant in the main a decision. action, defendant to the objection to admissibility, considers the objection to According to the case-law of the Court admissibility made by the European Par­ (judgment of 1 February 1979, Case liament as unfounded and purely 17/78 Desbormes ν Commission [1979] dilatory. ECR 189 such letters are “only acts coming within the category of administrative information, because they A — Daily subsistence allowance did not come from an appointing authority as required by the Conditions of Employment for establishing a (a) The letter dated 21 February 1978 decision”. There had not been alleged to the Head of the Management and any delegation in favour of the Head of Staff Regulations Department could be the Management and Staff Regulations regarded at the most as only a request Department; in any event such for an explanation. It was intended to delegation could only have been done draw attention to the rights of the secretly and would therefore be applicant and it was addressed to its ineffective. recipient in his capacity, not as appointing authority, but only as head of her department. The letter dated 11 October 1978 nowhere uses the term “decision” or an equivalent and its form could not have The Court (judgment of 8 February led one to think it was of such nature. 1973, Case 56/72 Goetb ν Commission [1973] ECR 181 at p. 187; judgment of 4 April 1973, Case 31/72 Angelini ν The letter refers to an opinion given at a European Parliament [1973] ECR 403 at meeting of the Heads of Administrative pp. 408 and 409) has repeatedly held that Services; that meeting does not such a letter cannot constitute a request constitute an appointing authority; it has making time start to run for bringing an not been shown that the meeting had to action against the failure to act. deal with the specific case of the applicant; it is irrelevant that the Director-General responsible was present (b) The letter dated 11 October 1978 at the meeting and that he was allegedly from the Head of the Management and accountable for the decision taken. Staff Regulations Department informed the applicant of the position adopted by The fact that “at the European Par­ the Heads of Administrative Services but liament [he] has been concerned for not of the refusal of her request. years with questions arising in connexion with all the allowances provided for in The Court has held (judgment of 5 April Annex VII to the Staff Regulations” has 1973, Case 51/72 Noé-Dannwerth ν no legal significance. The fact that the European Parliament [1973] ECR 433 at applicant addressed herself to her Head

(d) The true decision is contained in (b) It is doubtful whether Internal the letter from the Director-General Directive No 75/78 applies to the dated 17 November 1978. Therefore the applicant's case. The question also arises complaint is not out of time since it was whether such directive can supplant the made within three months. provision of the Staff Regulations according to which the removal must take place within the year following the That letter cannot be regarded as confir- expiry of the probationary period. mation of a previous decision and time could not begin to run before it was received: prior to it there was no decision within the meaning of the Staff (c) As to the fact that the applicant did Regulations. not make a complaint in accordance with Article 90 (2) of the Staff Regulations within three months after finding that she had not received written authority to In his second letter, dated 11 December effect her removal, it should be observed 1978, the Director-General refers that disregard of an internal directive moreover discreetly only to "attitudes of cannot constitute failure to take a the administration" and not to measure required by the Staff Regu­ "decisions". An attitude binds no one; an lations. action must be founded on a decision with adverse effects. That is not the case here. (d) The applicant discovered only as a result of the information given to her on The fact that the "decision adversely 11 October 1978 by her head of affecting her" was notified to the department that the reimbursement of

PONTI ν PARLIAMENT

Decision

1 By an action brought on 13 September 1979 the applicant, an official at the European Parliament, claims that the C o u r t should annul, pursuant to Article 91 of the Staff Regulations, a decision refusing to pay the "daily subsistence allowance" provided for in Article 10 of Annex V I I to the Staff Regulations and reimbursement of removal expenses to which she is entitled under Article 9 of the same Annex.

2 In a separate d o c u m e n t lodged under Article 91 of the Rules of P r o c e d u r e the Parliament objected to admissibility by reason, on the one h a n d , of the late nature of the complaint originating the application and, on the other, of the absence of a decision relating to removal costs, as the applicant had not submitted any request in relation thereto. T h e C o u r t decided to open the oral procedure on the objection alone.

JUDGMENT OF 22. 5. 1980 — CASE 142/79

3 It is apparent from the file that the applicant, who previously lived in Rome, worked for the European Parliament as a member of the auxiliary staff from 25 October 1976 to the end of 1977. She received by reason of the change of her place of residence the daily subsistence allowance for the period extending from the beginning of her employment until 24 October 1977 under Article 69 of the Conditions of Employment of Other Servants which refers to Article 10 of Annex VII to the Staff Regulations.

4 After being successful in a competition held by the Parliament the applicant was offered a post subject to the Staff Regulations as a shorthand-typist from 1 January 1978. In the letter of appointment of 9 December 1977 signed by the Director-General of the Administration it was stated that she would receive in addition to her salary, a daily subsistence allowance of Bfr 560 from the first to the fifteenth day reduced to Bfr 280 from the sixteenth day for a total period of up to 180 days on the terms and within the limits specified in Article 10 of Annex VII to the Staff Regulations.

8 By letter dated 27 November 1978 the Director-General of Administration informed the President of the Staff Committee that the applicant's file had several times been carefully considered by his department which had taken the trouble, before giving a final answer to the applicant, to submit her case to the Preparatory Committee and to the meeting of the Heads of Administrative Services. He added that unfortunately both of those bodies had also reached an adverse opinion, that the applicant had been kept informed at the various stages of the proceedings and that finally she had been officially notified of the refusal with the grounds therefor.

9 In answer to a fresh protest from the President of the Staff Committee the Director-General of Administration, by letter dated 11 December 1978, confirmed once again the attitude of the administration and recalled that where there is a difference of opinion every official is entitled to make a complaint and bring an action as provided for in Articles 90 and 91 of the Staff Regulations.

10 On 20 February 1979 the applicant sent the Secretary-General of the European Parliament a formal complaint under Article 90 (2) of the Staff Regulations on the ground that the administration was not granting her, following her appointment as an official, either the daily subsistence allowance or reimbursement of her removal expenses.

1 1 When the administration did not answer that complaint the applicant brought the matter before the Court in the above-mentioned circumstances.

12 In order to consider whether the objection raised by the European Par­ liament is well founded it is right to consider the admissibility of the action with regard to the claim relating to the daily subsistence allowance separately from that relating to removal expenses.

17 It is apparent from the letter sent on 21 February 1978 by the applicant herself to the Head of the Management and Staff Regulations Department that she had certainly noticed from the beginning of the payment of her monthly salary that, contrary to the assurance given in the letter offering her employment, the daily subsistence allowance had not been granted to her. In answer to her request for explanation the applicant was informed immediately on 1 March 1978 that her file was being examined by the administration and that her case would in the meantime remain open.

FONTI ν PARLIAMENT

18 By letter dated 11 October 1978 the Head of the Management and Staff Regulations Department finally informed the applicant that it was impossible for the administration to give a favourable reply to her request for the daily subsistence allowance. The extract from the. deliberations of the Heads of Administrative Services enclosed with that letter allowed the applicant to recognize that the refusal by the administration was based on two circum­ stances: on the one hand the fact that she had already received the daily subsistence allowance for one year as a member of the auxiliary staff during the period prior to her appointment as an official; on the other the fact that there was no removal when she was appointed so that she did not satisfy the condition of a change of residence laid down in Article 10 of Annex VII to the Staff Regulations.

19 In those circumstances it is beyond question that the letter dated 11 October 1978 constitutes, in the present case, the "act adversely affecting" the official within the meaning of Article 90 (2) of the Staff Regulations. It is therefore that act which caused to start to run the period of three months for lodging complaints contained in the said provisions since the applicant, by the said act, was informed of a decision put forward as final.

24 It accordingly appears that in this respect the action has no purpose.

25 It follows from the foregoing that the action is inadmissible as a whole.

Costs

26 U n d e r Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

27 Nevertheless under Article 70 of the Rules of Procedure in staff cases the institutions shall bear their own costs.

On those grounds,

Delivered in open court in Luxembourg on 22 M a y 1980.

A. V a n H o u t e A. Touffait Registrar President of the Second Chamber

OPINION OF MR ADVOCATE GENERAL CAPOTORTI DELIVERED ON 24 APRIL 1980 '

Mr President, beginning of her employment until 24 Members of the Court, October 1977) pursuant to Article 69 of 1. Case 142/79 in which I am now the Conditions of Employment of Other giving my opinion is concerned with the Servants of the European Communities rights of an official of the Communities which refers to the said Article 10 of to the payment of the daily subsistence allowance and reimbursement of removal Annex VII to the Staff Regulations. expenses. These rights are governed Subsequently, after being successful in a respectively by Articles 10 and 9 of competition, she was appointed as a Annex VII to the Staff Regulations. probationer official, still with the However, the question to be considered European Parliament, as from 1 January for the moment is only that of the 1978 and assigned to Category C, Grade admissibility of the application and 3, Step 3. Although the offer of therefore I shall not concern myself with employment mentioned the payment of its merits. the daily subsistence allowance (for a First of all it is appropriate to summarize period of not more than 180 days) the facts. among the benefits to which she would Mrs Patrizia Geronimo (née Fonti) be entitled after appointment, Mrs worked for the European Parliament as Geronimo did not receive that allowance. an auxiliary from 5 October 1976 to the After seeking clarification of the matter end of 1977. During that period she in a letter dated 21 Februaiy 1978 received the daily subsistance allowance addressed to the Head of the for about a year (more precisely from the Management and Staff Regulations I — Translated from the Italian.