C-90/81

In Case 90/81

MANFRED BURG, an official of the Court of Justice of the European Communities, residing in Schengen, Grand Duchy of Luxembourg, represented by Victor Biel of the Luxembourg Bar, with an address for service in Luxembourg at the latter's Chambers, 18A Rue des Glacis, applicant,

v

COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, represented by François- Xavier Zwicken, Director of Administration, acting as Agent, assisted by Alex Bonn of the Luxembourg Bar, with an address for service in Luxem- bourg at the latter's Chambers, 22 Côte d'Eich, defendant, I — Language of the Caic: French.

JUDGMENT OF 18. 3. 1982 — CASE 95/81

APPLICATION for annulment of trie express decision of 21 January 1981 rejecting the applicant's complaint and of the decision of the Registrar of the Court of 6 November 1980 refusing to grant the applicant the installation allowance provided for in Article 5 of Annex VII to the Staff Regulations,

I — Facts and procedure produced in support of his request an agreement which contained no provision for the payment of a rent for the letting The applicant, Manfred Burg, was of a room in Schengen, a Luxembourg recruited by the Court of Justice on 1 municipality 2 kilometres from Perl. April 1977 as a member of the temporary staff. He was appointed as an official on On 20 December 1978 the Head of the 1 March 1978 and classified in Grade Personnel Department rejected that C 4. request on the grounds that in order to obtain the said allowance the applicant The applicant, of German nationality, had to show that he had in fact changed was residing in Perl (a German muni- his place of residence and really was cipality on the banks of the Moselle, at living in the Grand Duchy of Luxem- the frontier with the Grand Duchy) and bourg. was granted the expatriation allowance. On 4 July 1979 the applicant replied to On 8 November 1978 he requested the the Head of the Personnel Department grant of the installation allowance and to the effect that he considered receipt of

BURG v COURT OF JUSTICE

"The installation allowance shall be paid on production of documents establishing By memorandum dated 29 November the fact that the official, together with 1979 the Registrar confirmed the his family if he is entitled to the position which he had previously household allowance, has settled at the adopted. He added that no proof of a place where he is employed". genuine settlement in Luxembourg had been adduced and stressed in that respect that the tenancy agreement produced did He maintained that the fact of renting a not even mention the amount of the rent. room in Schengen, a border town of the Grand Duchy, two kilometres from Perl, which is itself only 30 kilometres from On 3 December 1979 the applicant Luxembourg, did not amount to instal- acknowledged that answer but neverthe- lation in the Grand Duchy. He less regretted that there was no answer supported his argument by citing the to his specific question concerning the case-law of the Court which states in the distance of the rented room in Luxem- judgment of 9 November 1978 in Case bourg from his house in Perl and asked 140/77 Verhoa/ v Commission [1978] once again for an answer to that ECR 2117 that the purpose of the instal- question. lation allowance: On 19 December 1979 the Registrar replied that the installation allowance "is to enable an official to bear, in was not granted on the basis of distance addition to removal expenses, the from the family home but on the basis of inevitable expenses incurred through documents showing genuine settlement integrating in new surroundings for an* in the place of employment. indeterminate but substantial period of time". After that letter the applicant allowed eight-and-a-half months to pass and then On 13 November 1979 the applicant on 3 September 1980 made a fresh once again challenged the argument put request for the grant of the installation forward by the Registrar of the Court, allowance supported this time by:

On 14 April 1981, following that Dismiss it; decision of rejection, the applicant brought this application which was Make an order for costs in accordance registered at the Court Registry on the with the relevant provisions of the Staff same day. Regulations." Upon hearing the repon of the Judge- Rapporteur and the views of the Advocate General the Court (Third Ill — Summary of the suré- Chamber), decided to open the oral missions and a r g u m e n t s ot procedure without any preparatory the p a r t i e s inquiry.

A — Admissibility II — C o n c l u s i o n s of the p a r t i e s The applicant challenges the argument·, The applicant claims that the Court of the President of the Court of Justice should: and maintains that although the

BURG v COURT OF JUSTICE

As for the applicant's argument to the effect that in his request of 3 September 1980 he submitted "new evidence of a Therefore "it cannot be accepted that change which had in fact occurred" so the Court may in those circumstances that only the answer of 6 November dismiss the present action on the ground 1980 could be considered as a decision that it is out of time, as the matter was under Article 90 (1) of the Staff Regu- still being discussed until the answer of lations, the defendant maintains that if the Registrar of 6 November 1980". that were true the question of the admissibility of that request might have been discussed. The applicant's claim however, cannot be accepted for he continued to live with his family in his The defendant maintains that, as was house in Perl and the fact of having a stressed in the decision of the President bed delivered to Schengen is irrelevant as of the Court of Justice of 19 January is the reference to a change of address in 1981, the applicant is barred because the his passport and that of his wife by the decision of the Registrar of the Court German Embassy because that statement of 6 November 1980 rejecting the is obtained on the basis of the mere application is only a decision confirming attestation that the person concerned is the previous rejections. employed by the Communities.

As for the applicant's argument to the In his reply the applicant returns first of effect that the letters from the Registrar all to the facts in order to stress that prior to that of 6 November constitute there was no decision before the onlv an exchange of correspondence, Registrar's memorandum of 6 November notes and memoranda and thus contain 198C. It is true "that it would have been nothing in the nature of a decision, the easv and in the interests of everybody defendant maintains that this contention had the Register's memorandum of 7 of the applicant is contradicted by the November 1979 constituted a clear, content of those letters. The applicant's precise and unambiguous decision start-

ing time for bringing proceedings to memorandum of 3 September 1980 the run" but in the applicant's view this is defendant maintains that the memor- "obviously not the case" for the andum requested once again the grant of memorandum constitutes no more than a the installation allowance on the basis of discussion, as is apparent from the last further submissions and evidence but the two paragraphs which are concerned fact remains that this request had the with the absence of evidence of an actual same purpose as the previous one and its move from Perl to Schengen and the rejection was merely confirmation of the small distance between those two muni- previous adverse decision. cipalities. The applicant in fact under- stood that those last two paragraphs as requesting him to provide additional evidence and that the discussion still B — Substance of the case remained open. That attitude is confirmed by the fact that in his memorandum of 3 September 1980 the applicant supplied further evidence in The applicant proposes to consider in order to obtain the installation turn the various submissions put forward allowance. both by the Registrar and by the President of the Court in rejecting his request. Thus, "the doctrine of confirmatory measures" cannot apply in this case on the ground that there was no prior First of all, as regards the Verkauf measure which constituted a decision judgment the applicant maintains that since the first measure in the nature of a the situations and, consequently, the decision is the Registrar's memorandum results are not comparable, since on the of 6 November 1980. one hand Verhaaf did not have to settle in new surroundings since he returned to the same surroundings which he had left In its rejoinder the defendant considers nine months previously at his own that the applicant, in referring to the last request and, on the other hand, whereas two paragraphs of the Registrar's the applicant is claiming a first instal- memorandum of 7 November 1979, lation allowance Verhaaf was claiming disregarded the passages in which the the allowance by virtue of a "posting" to Registrar rejected the arguments of Mr a "new place of employment". Those Burg and his request. When he stated: two situations have been distinguished in Article 5 of Annex VII to the Staff Regu- lations since the first installation "I regret that I am unable to accept this allowance is governed by Article 5 ( 1 ) line of reasoning.. . whereas that sought by Verhaaf falls under Article 5 (2). The applicant also repeats that in his view Article 5 (31 Further, I cannot accept your view...", applies only to the cases referred to in the second part of the first sentence of Article 5 (1). the Registrar was adopting a position unfavourable to the applicant.

(Official Journal, C 342, 31. 12. 1980, p. presumption does not exist in cases of 168) and to the reply of the Commission change of residence. (published in the same Official Journal, p. 294). Lastly, it follows from the Verhaaf judgment that an official must prove The Court of Auditors distinguished integration "in new surroundings for an between two classes of persons entitled indeterminate but substantial period of to the installation allowance: time". The term "new surroundings" is not defined by a comparison between Perl and Schengen, but with regard to Those entitled to the expatriation the place of employment. Thus the allowance do not have to produce any applicant fully satisfies the condition laid evidence but automatically receive the down in the Verhaaf judgment since the installation allowance; surroundings of the Court of Justice in Luxembourg are quite new in relation to his previous place of employment, Those who have to furnish evidence that namely the Security Department at they have had to change their place of Frankfurt Airport. These, therefore are residence in order to comply with the circumstances in regard to which the the obligations arising from their Burg and Verhaaf cases are "fundamen- employment under Article 20 of the Staff tally different" since on the one hand Regulations. Verhaaf was returning to the surround- ings of his previous employment whereas on the other hand as regards the The Court of Auditors proposes applicant everything was new about his moreover to retain the installation employment in Luxembourg. allowance only for the second category of staff. The defendant deals with the substance of the case as a secondary consideration. The Commission stated that "the only It states that the Staff Regulations make way of achieving the result desired by the grant of the installation allowance the Court of Auditors would be to dependent on two premises: amend the Staff Regulations." The official must be in receipt of the The applicant is of the opinion that the expatriation allowance, or must prove present system is justified in so far as it that he was required to change his automatically confers upon staff in residence in order to comply with the receipt of the expatriation allowance the requirements of Article 20 of the Staff right to the installation allowance as Regulations (Article 5 (1) of Annex VII well, for the latter, which is not to be to the Staff Regulations); confused with the reimbursement of removal expenses, covers the so-called He must also produce documents as "incidental contingent expenses". Thus in distinguishing between the two evidence that he has settled at the place allowances Anicie 5 is logical and it is where he is employed (Article 5 (3)). clear that the second sentence of Anicie 5 (3) concerns only employees entitled to The administrative decision therefore the expatriation allowance since in this rightly recognized that the applicant regard there is a presumption that fulfilled the first but not the second genuine expenses are incurred and that condition of the Staff Regulations since

It follows from that case-law that only settling in new surroundings for reasons As regards the Commission's reply to the of employment involving expense creates Court of Auditors regarding the instal- a right to the installation allowance. lation allowance the applicant admits Consequently the second subparagraph that "it is a question of expenses" but of Article 5 (3) applies to every official that it is apparent from the wording used who fulfils the conditions for obtaining by the Commission that installation the installation allowance. expenses include those incurred "bv persons who when taking up employment already live in the place of As to the statement of the Court of that employment". That consideration Auditors on the installation allowance suffices to show that as regards the and the Commission's reply, the installation allowance the expenses are defendant maintains that the Court of not automatically linked with a transfer Auditors criticized and condemned the of address or of main residence. abusive practice of granting the instal- lation allowance solely on condition of entitlement to the expatriation allowance The installation allowance is of a flat- and it considered that the grant of the rate nature and cannot be compared with installation allowance ought to be the reimbursement of removal expenses. conditional upon the official's having It is based on "the well-founded incurred expense. The Commission · assumption that whenever employment is insisted that the officials must ; ; taken up there this entails so-called incurred expense in connection wnn incidental contingent expenses. No other settlement. evidence is necessary, at least assuming that the new official is in receipt of the In addition, consideration of the expatriation allowance which is the case documents shows that the applicant has so far as Mr Burg is concerned.

: Article 5 of Annex VII to the Staff Regulations provides, in so far as is relevant to the present proceedings:

"(1) An installation allowance equal to two m o n t h s ' basic salary in the case of an official w h o is entitled to the household allowance or to one month's basic salary in other cases shall be paid to an established

JUDGMENT OF 18. 3. 1982 — CASE 90/81

official who qualifies for expatriation allowance or who furnishes evidence of having been obliged to change his place of residence in order to comply with Article 20 of the Staff Regulations."

"(3) The installation allowance shall be paid on production of documents establishing the fact that the official, together with his family if he is entitled to the household allowance, has settled at the place where he is employed."

j It appears that the applicant satisfies the conditions for receiving the expatri- ation allowance. When recruited in 1977 he was living with his wife and daughter in Perl, a municipality situated on the German bank of the Moselle. In 1978 he requested the grant of the installation allowance and produced in support a rent-free agreement, dated 12 November 1978, for the letting of a room in Schengen, on the Luxembourg bank of the Moselle.

8 The Registrar states in the second and third paragraphs of that document:

"I regret that I cannot accept your line of reasoning . . . "

" . . . I cannot accept your view . . . "

and states in the last paragraph :

"I must inform you that on the one hand an agreement for the letting of a room two kilometres from your present residence cannot constitute evidence of your actual settlement in that room and that, further, even if you could show that you had moved from your place of residence, a distance of two kilometres cannot in any event be regarded as settlement in new surroundings as required by the Court in the circumstances."

9 Such a document cannot constitute a measure preparatory to the one having adverse effect since it is apparent from the last paragraph that not only did the Registrar reject the evidence put forward by the applicant but stressed that even if such evidence could be validly adduced the request made by the applicant would nevertheless have to be be rejected for reasons relating to the substance of the case.

1: Further it is of little importance that the latter decision was followed by correspondence between the applicant and the defendant concluding with a letter from the President of this Court dated 19 January 1981 indicating that not only was the complaint inadmissible but in any event unfounded.

is In consequence, since the applicant did not within the prescribed period make a complaint against the measure adversely affecting him, namely the memorandum of 7 November 1979, his action, registered on 16 April 1981, directed against a purely confirmatory measure must be declared inadmissible.

Costs

i4 Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs.

is However, under Article 70 of the Rules of Procedure, in proceedings by servants of the Communities, institutions are to bear their own costs.

BURG v COURT OF JUSTICE

O P I N I O N OF ADVOCATE GENERAL SIR G O R D O N SLYNN DELIVERED O N 11 FEBRUARY 1982

My Lords, be paid an installation allowance pursuant to Article 5 of Annex VII of the Staff Regulations and interest on the The applicant in this case, Mr Manfred amount payable from the time when it Burg, is an official of the Court. He was fell due up to the date of payment; he first employed as a temporary agent with accordingly asks the Court to annul an effect from 1 April 1977 and became an express rejection, on 21 January 1981 by established official on 1 March 1978. In the President of the Court, of a this action he claims that he is entitled to complaint made by him against a