C-185/80

JUDGMENT OF 2. 7. 1981 — CASE 185/80

from provisions exempting them from provision who, before entering the it. service of a Community institution, was obliged to leave his habitual 3. It is impossible to regard the per­ residence in order to fulfil his national formance of compulsory military military duties is entitled to have the service as a valid reason for inter­ period thus spent in the armed forces rupting the period of habitual taken into account for the purpose of residence referred to by Article establishing his entitlement to the 4 (1) (b) of Annex VII to the Staff expatriation allowance provided for Regulations. A person covered by that by Article 69 of the Staff Regulations.

In Case 185/80

COSIMO GARGANESE, a temporary servant of the Commission of the European Communities, employed at the Joint Research Centre at Ispra, represented by Ernest Arendt, assisted by Dominique Maidani, both of the Luxembourg Bar, with an address for service in Luxembourg at his Chambers, 34 Rue Philippe II,

applicant, ν

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by J. Delmoly, a member of its Legal Department, acting as Agent, assisted by R. Andersen of the Brussels Bar, with an address for service in Luxembourg at the office of its Legal Adviser, Mario Cervino, Jean Monnet Building, Kirchberg,

GARGANESE ν COMMISSION

JUDGMENT

Facts and Issues

I — Facts and procedure Ellerkmann, the Site Director at the Joint Research Centre, he requested that he be paid that allowance.

Cosimo Garganese, an Italian national who was born in Monopoli (Italy) on As that request was still not granted 9 December 1950, emigrated with his despite the intervention of the Com­ family to the Grand Duchy of Luxem­ mission's "mediator" on both bourg on 18 May 1962. 22 October 1979 and 22 January 1980, Mr Garganese lodged a fresh request on 30 January 1980 using a form designed He settled first in Diekirch, where he for that purpose by the administration. resided until 2 March 1976, except for the period from 5 May 1970 to 15 April 1972 during which he performed his After the period of four months provided military service in Italy, and subsequently for by Article 90 (1) of the Staff Regu­ moved to the City of Luxembourg. lations had expired without any reply being given to him, .Mr Garganese submitted a complaint under paragraph In 1979, in response to an advertisement (2) of that article to the Commission on which appeared in the Luxembourg 1 July 1980. press, he applied for a post of temporary servant at the Commission's Joint Research Centre at Ispra (Italy). In the meantime, by decision of 23 June 1980 notified to Mr Garganese by a letter dated 8 July 1980, the Commission Following the success of his application, had rejected his request, describing it on 1 June 1979 he signed a contract of moreover as a complaint under Article employment as a temporary servant in 90 (2) of the Staff Regulations. Grade C 3 and took up his duties at Ispra on 3 September 1979. On 4 September 1980 Mr Garganese lodged an application with the Court of On receiving his salary slip for the Justice against that decision. months of September and October 1979, Mr Garganese noticed that it did not mention the expatriation allowance to On hearing the report of the Judge- which he considered himself entitled Rapporteur and the views of the under the Staff Regulations of Officials Advocate General, the Court (First and Other Servants of the European Chamber) decided to open the oral Communities. By a memorandum of procedure without any preparatory 11 October 1979 addressed to Mr inquiry.

II — C o n c l u s i o n s of t h e p a r t i e s definite decision refusing to pay the applicant the expatriation allowance. Mr Garganese claims that the Court That previous decision is apparent from should: the salary slip for the months of 1. Declare the application admissible; September and October 1979, a document of which the applicant had 2. Declare it well founded in substance; knowledge no later than 11 October and consequently: 1979. Any complaint against that — Annul the Commission's decision measure should therefore have been of 23 June 1980; lodged within the following three months with the result that the complaint — Hold that the applicant fulfils the submitted by the applicant on 30 January conditions for the award of the 1980 was out of time and his application expatriation allowance provided inadmissible. for by Article 4 (1) (b) of Annex VII to the Staff Regulations; It adds that the complaint of 30 January 1980 may under no circumstances be — Declare that from 3 September classified as a "request" under Article 90 1979 the defendant has unlawfully (1) of the Staff Regulations, as proposed withheld payment of the expatri- by the applicant. Indeed, such a request ation allowance from the could be submitted only if no decision applicant; had yet been taken. If this were not so, — Order the defendant to pay the the distinction made by Article 90 of the expatriation allowance as from Staff Regulations between a request and 3 September 1979 together with a complaint would be meaningless, default interest at 6 % per annum because a request is not subject to any on the arrears of expatriation time-limit, and those concerned would allowance, that interest to be be enabled to challenge an act adversely calculated as from the various affecting them at any time. dates on which payment fell due In his reply, Mr Garganese claims that the to the date of payment; application is admissible. — Order the defendant to pay the He observes in the first place that the costs of the action. contested decision makes no reference to an earlier implied decision refusing The Commission contends that the payment but considers only the substance Court should: of the matter. The Commission may not — Dismiss the application as therefore put forward in the course of inadmissible and, in any event, as proceedings before the Court a unfounded; submission alleging that the complaint was out of time when the contested — Order the applicant to pay the express decision made no reference to costs. such a point. He adds that the contested decision III — Submissions and argu- cannot be confirmatory in nature when it m e n t s of t h e p a r t i e s is based on incorrect basic data which influenced the earlier decision (in a note The admissibility of the application from the Head of the Commission's Staff Regulations Division it is indicated that The Commission, in its defence, raises an the applicant resided in Luxembourg objection of inadmissibility. from 1969 to 1979) and that, if the It submits that the contested decision errors were discovered and corrected, merely confirms an earlier implied but the decision would no longer be confir-

matory but would be a new decision Mr Garganese observes finally that, even based on new facts which were unknown if his claim of 30 January 1980 were to at the time of the first decision. be in the nature of a complaint under Article 90 (2), it would not be out of In Mr Garganese's view, in considering time, because in that case the applicant's the submission that his complaint was memorandum of 11 October 1979 must out of time, it is irrelevant to examine be regarded as a request within the whether his claim of 30 January 1980 meaning of Article 90 (1), the complaint must be regarded as a request within the of 30 January 1980 being directed meaning of Article 90 (1) or a complaint against tne absence of any express reply within the meaning of paragraph (2) of to that request.

basic data. Secondly, it is clear from the 4 (1) (b) of Annex VII to the Staff Regu- case-law of the Court (judgment of lations and that the applicant's residence 16 October 1980 in Case 147/79 in Luxembourg prior to that period was Hochstrass [1980] ECR 3005) that "in the of no relevance. case of an act which is general in nature The Commission states next that since and which is intended to be implemented the role of the "mediator" is exclusively by means of a series of individual that of a person who uses his "good decisions affecting many officials in an offices", interventions by the mediator in institution, the non-application of that a dispute between an institution and one general measure to a particular case of its officials cannot entail any inter- cannot be considered as a decision, even ruption or suspension of the period for implied, rejecting a request of the kind lodging an appeal througn official envisaged by Article 90 (1)". channels.

With regard to the nature of the salary He submits that the twenty-three months statement, the Commission submits that spent in military service in Italy cannot it clearly informed the applicant that the interrupt the ten years' period of absence expatriation allowance had not been laid down in Article 4 (1) (b) cited granted to him. Moreover, it observes above. that Mr Garganese's reference to the Hochstrass case is not apposite. In that Referring to the judgment given by the case the applicant challenged by way of Court on 17 February 1976 in Case objection the legality of a provision of 42/75 Delvaux [1976] ECR 167, Mr the Staff Regulations, which is clearly Garganese observes that his case is not the situation in the present case. different from that of Mr Delvaux inasmuch as the latter had not been hab- Having made those points, the itually resident before his military service Commission nevertheless confesses that outside the country in which he was its conviction that the application was employed. inadmissible has been shaken by a recent judgment of the Court of 20 November Both the Court of Justice and the 1980 (Case 806/79 Gerin [1980] ECR Advocate General made it clear that Mr 3515), where the Court stated that for a Delvaux might have succeeded in his decision to be capable of being described application if he had been able to prove as an act adversely affecting an official that before beginning his military service within the meaning of Article 90 (2) of he had acquired a settled abode to which the Staff Regulations it must have been he returned after completing his service, specifically adopted by the appointing in a country other than the one in which authority or on its behalf. he was employed.

3 September 1979 and therefore does not Moreover, the view expressed by Mr fulfil the condition laid down in Article 4 Advocate General Warner in his opinion (1) (b) of Annex VII to the Staff Regu­ in the Delvaux case was justified by the lations, which provides that officials who consideration that if the applicant had are nationals of the State in whose lived outside his country of employment territory the place where they are before performing his military service, it employed is situated are entitled to the might have been argued that in any event expatriation allowance if during the ten he would have been resident outside the years ending at the date of their entering territory of the State in which he was the service they habitually resided employed. Such justification is totally outside the European territory of that lacking in the case of Mr Gargenese, State for reasons other than the per­ who performed his military service in the formance of duties in the service of a very country in which he is employed. State or of an international organization.

If, as the Court decided in its judgment There is no reason to add to the clear in the Delvaux case, a person who wording of the provision in question an performs his military service outside the exemption which it does not contain. national territory is in a position comparable to that of a conscript serving within the national territory, it would be contrary to the general principle of equal treatment that the conscript performing Moreover, the reference to the judgment his military service in his native land given by the Court in the Delvaux case should receive better treatment as and to the opinion delivered by Mr regards the award of the expatriation Advocate General Warner in that case allowance. do not provide any support for Mr Garganese's argument.

2 Mr Garganese, an Italian national born in Italy, has resided in the Grand Duchy of Luxembourg since 18 May 1962. On 5 May 1970 he went to Italy to perform his military service, which lasted until 15 April 1972. He returned to Luxembourg immediately thereafter and was continuously resident in that country for approximately seven years. On 1 June 1979 he signed a contract with the Commission under which he was engaged as a temporary servant in Grade C 3 and was posted to the Joint Research Centre at Ispra (Italy), where he took up his duties on 3 September 1979.

3 Mr Garganese noticed that his first salary slip for the months of September and October 1979 did not mention the expatriation allowance to which he considered himself entitled under Article 4 (1) (b) of Annex VII to the Staff Regulations of Officials in conjunction with Articles 19 and 20 of the Conditions of Employment of Other Servants of the European Communities and, by a memorandum dated 11 November 1979, he requested that he be paid that allowance.

4 As that step was unsuccessful, Mr Garganese submitted a request on 30 January 1980 under Article 90 (1) of the Staff Regulations. In the absence of any reply from the administration within the prescribed period of four months, he lodged a complaint on 1 July 1980 against the implied rejection of his request by the Commission. On 10 July 1980 Mr Garganese was

GARGANESE ν COMMISSION

notified of a decision dated 23 June 1980, whereby the Commission rejected his claim that he should receive the expatriation allowance. He claims that that decision should be annulled.

JUDGMENT OF 2. 7. 1981 — CASE 185/80

possible entitlement to the grant of the allowance was still pending at that date and that, consequently, his case had not yet been the subject of a decision by the Commission.

9 In view of the foregoing considerations the decision of 23 June 1980, which was notified to the applicant on 10 July 1980, must therefore be considered as constituting the reply under Article 91 (2) of the Staff Regulations to the complaint lodged by the applicant on 1 July 1980.

10 Under the first indent of Article 91 (3) of the Staff Regulations an appeal may be lodged within three months from the date of notification to the complainant. The present application, which was lodged on 4 September 1980, must therefore be declared admissible.

Substance

1 1 As the Court has already stated in a consistent line of decisions, it is clear from the general scheme of Article 4 of Annex VII to the Staff Regulations that it lays down as the paramount consideration for determining an official's entitlement to the expatriation allowance his habitual residence before entering the service, because the allowance is intended to compensate officials for the extra expense and inconvenience of taking up employment with the Communities and being thereby obliged to change their residence.

16 It must also be emphasized that under the national law of the Member States in which military service is compulsory, the place where such service is performed does not alter the habitual residence of the conscript.

17 Finally it is clear from Article 42 of the Staff Regulations concerning "leave for military service" that an official who is called up for military service or for reserve training or recalled to serve in the armed forces continues to benefit throughout his entire period of service from the provisions concerning his position under the Staff Regulations and his career and, in certain cases, even retains his right to receive his salary subject to deduction of an amount equal to his service pay. It follows from that provision that the Staff Regulations themselves do not allow an official, as a result of his per­ forming compulsory military service, to lose rights which he would be able to claim in the absence of such service and thereby preclude the possibility that the duty to perform military service may provide a ground for unequal treatment of officials depending on whether or not they are required to perform such service or on whether or not they may benefit from provisions exempting them from it.

JUDGMENT OF 2. 7. 1981 — CASE 185/80

18 In view of those considerations it is therefore impossible to regard the per- formance of compulsory military service as a valid reason for interrupting the period of habitual residence referred to by Article 4 (1) (b) of Annex VII to the Staff Regulations. A person covered by that provision who, before entering the service of a Community institution, was obliged to leave his habitual residence in order to fulfil his national military duties, is entitled to have the period thus spent in the armed forces taken into account for the purpose of establishing his entitlement to the expatriation allowance provided for by Article 69 of the Staff Regulations. For those reasons, the application must be declared well founded.

23 Since the defendant has failed in its submissions, it must be ordered to pay the costs.

GARGANESE ν COMMISSION

On those grounds

T H E C O U R T (First Chamber)

hereby:

1. Annuls the Commission's decision of 23 June 1980 refusing to pay the expatriation allowance and orders the defendant to pay the applicant the expatriation allowance in accordance with Article 4 (1) (b) of Annex VII to the Staff Regulations as from 3 September 1979;

Mr President, the Staff Regulations of Officials of the Members of the Court, European Communities. The conditions for the award of the allowance are laid This is yet another staff case concerning down by Article 4 (1) of Annex VII to the payment of the expatriation the Staff Regulations, which provides allowance provided for by Article 69 of that it is to be paid inter alia:

1 — Translated from the German.