C-79/82

In Case 79/82

VICTOR EVENS, a former official of the Court of Auditors of the European Communities, residing in Liège, represented by Michel Mersch and Philippe

1 — Language of the Cale: French.

JUDGMENT OF 25. 11. 1982 — CASE 79/82

Fraipont, of the Liège Bar, and 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 AUDITORS OF THE EUROPEAN COMMUNITIES, represented by its Secretary, Jean-Aimé Stoli, acting as Agent, assisted by Alex Bonn, of the Luxembourg Bar, with an address for service in Luxembourg at the latter's Chambers, 22 Côte d'Eich,

JUDGMENT

Facts and Issues

The facts of the case, the course of I — Facts the procedure and the conclusions, submissions and arguments of the parties 1. The applicant, Victor Evens, who is may be summarized as follows: married and the father of two children,

EVENS v COURT OF AUDITORS

home. On that occasion an installation The third paragraph of the aforesaid allowance equal to two months' basic Article 99 is worded as follows: salary was paid to him pursuant to "By way of derogation from the Article 5 of Annex VII to the Staff Regu- provisions of Article 6 of Annex VII, the lations because he had settled with his amount of the resettlement allowance family near his new place of payable to an official integrated under employment. Article 93 and who terminates his service In 1978 the applicant was transferred to after these Regulations enter into force the Court of Auditors in Luxembourg. shall not be less than the amount which The applicant took up residence in the official would have received under Luxembourg in a small furnished flat and Article 12 of the former General Regu- his family continued to live in Liège. On lations of the ECSC." that occasion an installation allowance Article 12 of the former General Regu- equal to one month's basic salary was lations of the ECSC of 1956 had paid to him pursuant to Article 5 (4) of provided that Annex VII to the Staff Regulations. "On termination of their employment The applicant was retired with effect established officials who have received

By letter dated 2 July 1981 the President of the Court of Auditors replied that the 2. By letter dated 3 June 1981 received above-mentioned transitional provisions at the Court of Auditors on 9 June 1981 obviously referred to basic salaries under the applicant requested that he be the former Staff Regulations in force granted by way of a resettlement before 1 January 1962 so that those allowance "a sum at least equal to the provisions would be to the applicant's ECSC salary for four months and the disadvantage. The application for a EAEC basic salary for two months as at resettlement allowance equal to two- 31 May 1981" and submitted a certi- months' basic salary on the ground of

resettlement with his family was rejected 1981 the President of the Court of because his file showed that he had Auditors rejected the complaint and settled in Luxembourg without the contended that the applicant had not member of his family who had main- adduced evidence of any transfer of his tained their home in Liège on his family, which had been settled in Liège transfer to the Court of Auditors. The without interruption since 1967, and that resettlement related therefore only to accordingly there could be no lump-sum one person so that the allowance must be reimbursement of expenses. confined to one month's basic salary pursuant to Article 6 (4) of Annex VII to the Staff Regulations. II Procedure and conclusions The applicant subsequently received by way of a resettlement allowance pursuant to Article 6 of Annex VII to the Staff 1. By application received at the Court Regulations the sum of LFR 191 966 Registry on 25 February 1982 the representing one month's basic salary, applicant brought the present action in which was subsequently increased by which he claims that the Court should: LFR 606 after the basic salaries were adjusted with effect from 1 July 1980. Order the Court of Auditors to pay to the applicant a sum equal to one month's 3. By letter dated 18 August 1981 basic salary at the rate in force on 31 received at the Court of Auditors on 19 May 1981, namely LFR 191 996 together August 1981 the applicant submitted a with interest calculated at the customary complaint pursuant to Article 90 (2) of rate in Belgium from 1 June 1981 to the the Staff Regulations against the refusal date of payment in full; contained in the letter of 2 July 1981 and alleged that according to the clear wording of Article 6 of Annex VII to the Order the defendant to pay the costs. Staff Regulations he was entitled to two months' basic salary by way of a resettlement allowance since before three 2. In his reply lodged on 29 June 1982 years had expired he was living with the applicant increased the claim to LFR his family more than 70 km from 192 602 and referred to the adjustment Luxembourg. in the basic salaries of officials which had taken place in the meantime. Following a letter from the President of the Court of Auditors dated 22 September 1981 calling upon him to 3. The Court of Auditors contends that adduce evidence that his family had in the Court should: fact been resettled in a place situated not less than 70 km from the place where he had been employed the applicant stated Dismiss the application as unfounded; through his advocate that the certificates and annexed to his original request of 3 June 1981 contained the requisite evidence. Make an order as to costs in accordance By letter dated 3 December 1981 which with the applicable provisions of the the applicant received on 7 December Staff Regulations.

Upon hearing the report of the Judge- The applicant also refers to Article 99 (3) Rapporteur and the views of the of the 1962 ECSC Staff Regulations Advocate General the Court (Third which Article 2 of Council Regulation Chamber) decided to open the oral No 259/68 has maintained in force after procedure without any preparatory the entry into force of the present Staff inquiry. Regulations and under which he may claim a resettlement alowance in a sum at least equal to that which he would have received if the provisions of Article 12 of the former General Regulations of III — Submissions and argu- 1956 had remained applicable to him. ments during the written The latter provision subjects the right to procedure the resettlement allowance to receipt of the original installation allowance at the beginning of the official's career. Although it was held in the judgment of the Court of 11 July 1974 in Case 10/74 1. The applicant claims that Article 6 of Becker v Commission [1974] ECR 867 Annex VII to the Staff Regulations that the clause for calculating the entitles him to a resettlement allowance allowance was no longer applicable the at the rate not of one but two months' judgment in no way affected the clauses basic salary. The wording of that concerning entidement to the allowance. provision is clear and provides that the Accordingly since the resettlement rate of the allowance is two months in allowance was classified in the ECSC the case of the official entitled to the system as not coming within the category household allowance and one month in of reimbursable expenses it does not other cases. No administrative interpret- constitute a reimbursement of expenses. ation or analogy may override that In the present case, therefore, it is wording. In contrast to Article 5 of necessary to refer to the full rate of the Annex VII, which concerns the instal- original allowance received in 1953 at lation allowance, Anicie 6 contains no the beginning of the applicant's career requirement that there must be a transfer and not to the subsequent allowances. of the family's place of residence. The Reference to subsequent allowances is word "resettlement" means the official's moreover excluded by the fact that return to his place of origin Article 6 of Annex VII to the Staff Regu- independently of any transfer of his lations refers to Article 5 (1) and not to family's place of residence. It is not Article 5 (2). permissible, in support of the contrary view, to refer to the concept of "reimbursement of expenses" and to Article 71 of the Staff Regulations since what is in question is a lump-sum 2. The Court of Auditors maintains that reimbursement in respect of which the Article 6, like the whole of Section 3 of administration was not entitled to call for any evidence of expenses incurred Annex VII, concerns the reimbursement and since a provision granting a right to of expenses at a flat rate and defines the reimbursement may not be interpreted as scope of the general rule laid down in Article 71 of the Staff Regulations. It is

Decision

1 By application at the Court Registry on 25 February 1982 Victor Evens, a former official of the Court of Auditors of the European Communities, brought an action for the grant of a resettlement allowance, following his retirement equal to two months of his basic salary.

2 The applicant, who is married and the father of two children, became an official of the Assembly of the ECSC in Luxembourg in 1953. Pursuant to the ECSC provisions then in force an installation allowance equal to four months' salary was paid to him because he and his family settled in

EVENS v COURT OF AUDITORS

Luxembourg. When in 1967 he was transferred to the Audit Board in Brussels he settled with his family in Liège and received an installation allowance equal to two months' basic salary. When he was transferred to the Court of Auditors in 1978 the applicant settled in Luxembourg but his family continued to live in Liège and for that reason he only received an installation allowance equal to one month's basic salary.

3 The applicant was retired with effect from 1 June 1981. He then went back to live with his family in Liège. On that occasion the Court of Auditors granted him a resettlement allowance equal to his basic salary for one month. On the other hand it refused to grant him a resettlement allowance equal to two months' basic salary on the ground that his family which had continued to live in Liège had not had to resettle in that city.

8 It is therefore necessary in the present case to apply Article 6 of Annex VII of the Staff Regulations in so far as it refers to an official who is entitled to the household allowance.

9 Article 6 (1) provides that an official shall be entitled on termination of service "to a resettlement allowance equal to two months' basic salary in the case of an official who is entitled to the household allowance" and does not mention any requirement that the official's family must resettle. On the other hand Article 6 (4) provides that the allowance is to be paid "against evidence that the official and his family . . . . have resettled". The case of an official entitled to the household allowance who resettles without his family is not expressly provided for in the article.

10 In order to interpret Article 6 it is not permissible, as the applicant proposes, to rely on the provisions of Article 12 of the General Regulations of the ECSC of 1956. The provisions of the Staff Regulations at present in force must be interpreted with regard to their context and purpose and not in the light of rules which have been repealed.

1 1 It is apparent from Anicie 71 of the Staff Regulations and from the heading of Section 3 of Annex VII thereto that Anicie 6 of that annex refers to the reimbursement, on a lump-sum basis, of expenses which are occasioned by the resettlement of the official after the termination of his service and which are not covered by the reimbursement of removal expenses referred to in Article 9 of Annex VII. The amount of those expenses will generally be higher in the case of change of the place of residence of an official and his family than in the case of an official who rejoins his family.

On those grounds,

THE COURT (Third Chamber)

hereby:

1. Dismisses the application;

OPINION OF SIR GORDON SLYNN — CASE 79/82

2. Orders the parties to bear their own costs.