C-280/85

Mr President, Personnel and Finance in Luxembourg, in Members of the Court, Grade L/A 7, Step 1; Brussels was determined as his place of recruitment and place of origin. That decision was notified 1. The applicant, Mr Panayotis Mouz- to him by a letter from the Personnel ourakis, is an official of the European Division dated 10 November 1983. Parliament. In 1977 he obtained a doctorate in physics from the University of Geneva, and then worked until 1981 as a university From October 1983 to June 1984, the researcher in his specialist field. In January applicant received the daily subsistence 1982 he was engaged as a scientist and allowance to which he was entitled by virtue lecturer by the Translation and Interpre­ of Article 10 of Annex VII to the Staff tation Centre in Corfu, where he worked Regulations. for six months. From 1 May to 30 September of the same year, he also attended an interpreting course at that institution. He then worked for a year as a At the end of his probationary period, the free-lance interpreter for the European applicant was established as an official with Parliament. effect from 1 July 1984 by decision of the appointing authority dated 24 September 1984. That decision was notified to him by On 14 June 1983, after completing the letter dated 19 November 1984. procedure for Competition No PE/80/LA, in which Mr Mouzourakis took part, the administration of the European Parliament Meanwhile, by another decision of the offered him a post as a probationary official Secretary-General of the European in Grade L/A 7, Step 1. By a letter dated 26 Parliament of 16 July 1984, which was July 1983, the applicant accepted that offer, superseded by a decision of 28 September while at the same time expressing his pref­ 1984, the wish originally expressed by the erence for a posting with the Parliament in applicant was acceded to and he was trans­ Brussels because his wife already worked ferred to Brussels with effect from there as an official of the Council and his 1 October 1984. work as an interpreter would also require his presence there for a considerable part of the time. On 12 February 1985, when he was already working in Brussels, the applicant submitted Nevertheless, by decision of the Secretary- a complaint to the appointing authority General of the Parliament dated 24 October under Article 90 (2) of the Staff Regu­ 1983 which took effect on 1 October of that lations, in which he asked to be granted 12 year the applicant was assigned to a post of months' additional seniority in his grade interpreter as a probationary official in the pursuant to Article 32. By a letter of 25 June Directorate-General for Administration, 1985, the Secretary-General of the

Parliament rejected his complaint as out of decision refusing to grant the applicant time or alternatively as unfounded. additional seniority. In the Parliament's view, the action is inadmissible because the complaint was not lodged within the period On the same date the applicant also laid down in Article 90 (2) of the Staff submitted to the appointing authority Regulations. another complaint with a view to obtaining payment of the daily subsistence allowance provided for in Anicie 10 of Annex VII to It states that the measure adversely affecting the Staff Regulations on account of his the applicant, namely the decision ap transfer to Brussels. On 19 June 1985, the pointing him a probationary official, was Secretary-General of the Parliament replied notified to him by letter dated 10 November that his complaint was to be regarded as a 1983 and that the complaint which he request under Article 90 (1) and asked him submitted to the appointing authority is to provide evidence that his transfer had in dated 12 February 1985. Under Article 90 fact made it necessary for him to change his (2) of the Staff Regulations, however, the residence in order to comply with Article 20 period for lodging a complaint expired on of the Staff Regulations. 10 February 1984, that is, three months after the decision was notified to the applicant. On 16 September 1985 the present application was lodged at the Court

: claims that the Parliament should be not deny that the measure adversely ordered to pay the costs. affecting him was the decision appointing him a probationary official. But in order to justify his failure to lodge any form of 2. Having summarized the facts, I shall now complaint within the period of three months analyse the questions of law raised by this laid down by Article 90 (2) of the Staff action. Regulations he relies on the fact that it came to his notice only when he became an established official. A — The objection that the applicant's first claim is inadmissible The applicant is not therefore claiming that he was prevented from challenging the In its defence the European Parliament first terms of his appointment by any difficulty raises by way of preliminary objection the or restriction resulting from the fact that he question of the admissibility of the claim for was a probationary official; he merely seeks the annulment of the appointing authority's to show that, notwithstanding, the time

The situation as regards this claim is not exactly the same as the one which led to the Let me say in passing that the fact that judgment of the Third Chamber in De Community institutions do not use a system Santis, 1 and there is therefore no reason to of personal notification or recorded delivery approach the matter in the same way as for documents of this nature makes it Advocate General Sir Gordon Slynn did in impossible or at least very difficult to prove his Opinion in that case. that they came to the notice of the addressee, which is surely an undesirable consequence of a not very prudent practice. Moreover, in its judgment in De Santis, the Court did not express its views on the question of admissibility. It did so expressly In the case under consideration, however, it 2 in a more recent decision in Case 191/84, is quite implausible that the applicant did in which it held, as it had done previously in not discover his classification much earlier Blasig, 3that 'in the case of a request for than he claims to have done. reclassification the measure adversely affecting the applicant is the decision appointing him as a probationary official'. A number of reasons lead me to this The Court went on: 'It is that decision conclusion. which defines the duties for which the official has been appointed and definitively fixes the corresponding grade. The decision In the first place, the offer of employment establishing the official merely confirms that as a probationary official sent to the decision.' The Court thereby confirmed applicant on 14 June 1983 contained an unequivocally a principle which it had been unequivocal reference to Grade L/A 7, Step developing in a number of previous 4 1. That offer was expressly accepted by the judgments on individual cases. applicant by letter dated 26 July 1983 'under the conditions stated in your letter'. The only reservation related to the applicant's In these proceedings the Parliament has preference for a posting in Brussels, and in produced photocopies of the letter and that regard the applicant went out of his the decision containing the applicant's way to repeat that he made it 'while fully appointment as a probationary officiai and accepting the conditions of your offer'. showing his classification which, it states, were sent to him on 10 November 1983. When he actually took up his duties on 3 1 — Judgment of 6 June 1985 in Case 146/84 De Santis v Court October 1983 it was clearly on the same ofAuditori [1985] ECR 1723. terms. 2 — Judgment of 7 May 1986 in Case 191/84 Franco Rossi and Oteen v Commission [1986] ECR 1541, especially at paragraph 11 of the Decision. 3 — Judgment of 18 June 1981 in Case 173/80 Blasig v Commission [1981] ECR 1649, especially at p. 1658. Secondly, as the European Parliament 4 — See judgment of 1 December 1983 in Case 190/82 emphasizes in its defence, the applicant Blomfield Commission [1983] ECR 3981, especially at p. 3991, as well as the judgment in Blasig, cited above. could see from his salary statements at what

According to the applicant, the mere fact that he was required by the Staff Regu­ Thirdly, appointments are as a rule given lations (Article 20) to change his residence adequate publicity, specifically by means of from Luxembourg to Brussels as a result of announcements posted on notice boards, his transfer to Brussels automatically and it is surprising that such publicity entitled him to receive the daily subsistence should not have attracted the applicant's allowance provided for by Article 10 of attention. Annex VII to the Staff Regulations. In his view, there is 'a legal and logical presumption' that a change in place of employment entails a change of place of Fourthly, the Parliament states in its defence residence, and hence it is for the adminis­ that on 3 October 1983 the Head of the tration to rebut the presumption and not to Individual Rights and Privileges Section require evidence of the move from the forwarded to the applicant at his request a official. certificate recording the fact that he was a probationary official of the Communities as from 1 October 1983, and it is inconceivable In my opinion the applicant's view is that the applicant should not have taken due unfounded. 5 — See for «ample the judgment of 21 February 1974, Joined Cases 15 to 33, 52, 53, 57 to 109, 116, 117, 123, 132 and 135 to 137/73 Schots-Kortntr and Otbm v ComcH Like the Parliament, I take the view that the Commission and Parliament [ 1974] ECR 177. allowance at issue should be paid only

OPINION OF MR VILAÇA — CASE 280/85

where an official furnishes evidence that he requirement that the official must submit his must change his place of residence in order claim to the administration and establish his to satisfy the requirement that he must entitlement to it. That was precisely what reside in the place where he is employed. the Head of the Personnel Division told the applicant in his letter of 24 January 1985.

That evidence is not required in order to The Parliament treated that 'complaint' as a calculate the amount of the allowance request under Article 90 (1) of the Staff (which is determined by the same article) Regulations in view of the absence of any but in order to establish that an official is previous request submitted by the applicant entitled to the allowance, in other words, for the allowance or any refusal to pay on that he has actually changed his place of the part of the institution. residence. Article 10 (1) cannot have a different meaning. In my view the Parliament is right. The letter dated 12 February cannot be regarded For that reason, the Community institutions as more than a request for a positive are not only empowered but are also under decision on the payment of the daily a duty to require of their officials, in case of subsistence allowance, and not as a doubt, evidence that they were obliged to complaint against the failure to adopt a change residence. measure required by the Staff Regulations, which there clearly never was.

In support of his claim, the applicant refers Even if that is the case the application is still to specifically relevant training obtained premature. Quite apart from the question whether the complaint was submitted within during an interpreting course in Corfu and the period laid down by Article 90 of the training in high energy physics which, Staff Regulations, it is clear that under although not specifically relevant, is Article 91 (2) an action before the Court is particularly useful for his work as an inter­ admissible only if: preter at scientific and technical meetings.

(1) a complaint has previously been In the second place, he relies on his submitted pursuant to Article 90 (2) professional experience as a free-lance within the period prescribed therein, interpreter at the European Parliament, his and work as a scientific assistant at the Trans­ lation and Interpretation Centre in Corfu and his experience as a researcher in the (2) 'the complaint has been rejected by field of high energy physics. express decision or by implied decision'.

At the very least, the second condition was In the applicant's view, the Parliament's clearly not fulfilled at the time of the failure to take into account his training and application and the latter must therefore be experience prior to his appointment held inadmissible. constituted a manifest error and even a misuse of powers. In that regard he cites the Court's judgments in Case 190/82 3. In view of the foregoing considerations, I Blomefield v Commission [1983] ECR 3981, shall do no more than examine briefly, and and Case 17/83 Angelidis v Commission strictly in the alternative, the substance of [1984] ECR 2907. the claims put forward by the applicant.

(i) Additional seniority may be granted under the second paragraph of Article In the first place, it is immediately clear 32 of the Staff Regulations by virtue of from its wording that the second paragraph a power vested in the appointing of Article 32 of the Staff Regulations does authority, not a duty, and it cannot not impose a duty on the administration to therefore be inferred that the official is grant any additional seniority in step in entitled to such seniority as of right; respect of an official's professional training and experience; it creates merely a possi- bility or power in that regard. (ii) The applicant's classification is in keeping with the internal guidelines relating to the criteria applicable to classification on recruitment adopted The exercise of that power is therefore left on 1 April 1974 and brought into effect to the discretion of the institution. As the on a provisional basis by decision of 14 Court has emphasized before, 6 the May 1974 of the Secretary-General of appointing authority has a wide discretion, the Parliament. Title III of those for the purposes of the second paragraph of guidelines, 'Classification in step', Article 32, in assessing the previous provides that 'subject to the maximum experience of persons admitted to the periods laid down in Article 32 of the European public service, which will Staff Regulations', 12 months' inevitably vary a great deal. That margin of additional seniority is to be granted in discretion extends to 'all aspects of potential Grades A 7 and L/A 7 where it is importance for the recognition of previous 'justified by professional experience experience, both as regards the nature and specifically relevant to the duties duration of such experience and as regards attaching to the post to be filled' of at the extent to which it matches the least two years. requirements of the post to be filled'.

words, the experience to be established must B — The claim concerning the grant of a daily be 'specifically related to the post to be subsistence allowance filled' (judgment in Blomefield, cited above, at p. 3994). In its judgment in Louwage, 7the Court held Secondly, it is current practice for the that: 'The basis for daily subsistence Community institutions to adopt internal allowance lies inter alia in the obligation on rules of a general nature which they impose the part of the official to remove to a upon themselves in order to regulate the residence other than that which he occupied exercise of that power and ensure that previously, without however being able to officials in the same career bracket and give up this latter'. category enjoy identical conditions of recruitment and service career as regards their classification in grade and step upon That objective, which was defined by the recruitment. Court in relation to an earlier version of Article 10 of Annex VII to the Staff Regu­ In this instance, the Parliament has applied lations, continues to be reflected in the the internal guidelines which it adopted in a present version. manner which cannot be criticized.

In view of the fact that the applicant did not Thus, Article 10 (1) provides for the right to have two full years' specific experience in a daily subsistence allowance 'where an the field of interpreting and that his official furnishes evidence that he must previous experience as a physicist was not change his place of residence in order to related to his present work, the Parliament satisfy the requirements of Article 20 of the as well as not exceeding the bounds of the Staff Regulations', while the last sentence of discretion conferred on it by the second Article 10 (2) provides that 'in no case shall paragraph of Article 32 also did not depart the daily subsistence allowance be granted from the general criteria laid down in its beyond the date on which the official 1974 guidelines. removes'.

As is abundantly clear from what has been When he was transferred to Brussels, not said in these proceedings, at the time of his only was his original request acceded to he recruitment the applicant resided in Brussels was also not compelled to maintain tempo­ with his wife, an official of the Council, and rarily any residence in Luxembourg or to he had for that reason expressed his pref­ make short-term accommodation arrange­ erence for a Brussels posting. ments in Brussels until it was possible to establish a permanent residence there. He Since it was not possible to meet that merely left the friend's house where he had request at the time, he was assigned to been staying and moved back permanently Luxembourg from 1 October 1983 and to the family home which he already had in received a daily subsistence allowance for 10 Brussels. months, that is, until 1 July 1984.

During his period in Luxembourg, the To claim to be entitled to a daily subsistence applicant on his own admission stayed at the allowance in such circumstances is at the house of a friend and, it seems, regularly very least excessive and is indicative of an returned to his conjugal home in Brussels at attitude for which there is no apparent justi­ weekends. fication.

4. Accordingly, I propose that the Court should:

(a) Dismiss the application as inadmissible;

(b) Alternatively, declare it unfounded.

As regards the costs, by virtue of the combined provisions of Article 69 (2) and Article 70 of the Rules of Procedure each party must in principle bear its own costs.