C-159/86

CANTERS v COMMISSION

O P I N I O N O F M R ADVOCATE GENERAL D A R M O N delivered on 31 May 1988 *

Mr President, be interpreted as constituting such a Members of the Court, decision.

1. Can the administration limit the payment of a foreign residence allowance to take 4. Indeed, the Commission itself contends effect only from the date on which an in its defence that it was unable to official applies for it, even though the appreciate the applicant's situation because person concerned fulfilled the requisite he did not come forward. Accordingly, it is conditions when the provisions creating the inconceivable that the salary statements allowance entered into force? That in could have embodied a decision — even an essence is the question which the Court implicit decision — of the Commission must resolve in order to adjudicate on the concerning a situation of which, by its own application lodged by Michele Canters, an admission, it was unaware. official of German nationality employed at the Ispra Centre in Italy. On 12 March 1985 Mr Canters applied for the foreign 5. Furthermore, the Commission's argument residence allowance which had been that its decision of 1 April 1986 rejecting the introduced with effect from 4 May 1978. applicant's complaint confirmed the The administration granted him the previous decisions embodied in the salary allowance as from March 1985 but refused statements likewise does not stand up to it for the previous period commencing in examination. The legal character of salary 1978. statements cannot depend upon the classifi- cation which the Commission deigns to 2. Let us first consider the objection of assign to them subsequently. inadmissibility raised by the defendant on the ground that the salary statements from May 1978 to February 1985, in which the 6. Therefore, whilst at the same time foreign residence allowance was not observing that the argument based on the included, are to be regarded as acts principle nemo auditur relates in fact to the adversely affecting the applicant and that substance of the case, I propose that the the prescribed period for bringing an action Court reject the objection of inadmissibility with respect to them has expired. raised by the Commission.

9. So on what legal basis can the 12. Finally, still dwelling on the applicant's Commission rely in support of its decision? failure to act, the Commission seems to me When questioned on this subject at the to overlook two important factors. On the hearing, it was unable to say which written one hand, the primary responsibility for rule or principle it purported to apply. I administrative and financial management of would point out, for my part, that the staff matters attaches to the administration. allowance in question constitutes an integral On the other, comparison of nationality and part of the remuneration which an official place of employment is an elementary cannot waive pursuant to Article 62 of the operation and the applicant quite rightly Staff Regulations. Moreover, in the absence referred to the many facilities available to of any prescription period or any express the administration to determine its staff's provision indicating that the allowance is personal circumstances in that respect. granted only from the date of an official's application for it, an official is entitled to it provided that he fulfils the conditions laid 13. Furthermore, the Commission's attempt down in the rules. to play down its own omission by invoking the period which the applicant allowed to elapse before making his claim cannot 10. The Commission refers to the judgment justify limitation of the payment of the of the Court in Broe 4in which it was stated foreign residence allowance. It is not that the situation of the administration, permissible to rely on an appraisal inspired which has to concern itself with the circum- by expediency, based on the particular stances of several thousand employees, features of a case, in order to override rules cannot be compared to that of an official which are distinguished by their lack of who has a personal interest in checking his ambiguity and contain no provision monthly salary. requiring an official to make an application before becoming entitled to the allowance in question. In those circumstances, the right 11. However, that decision seems to me to to the allowance arises on the day on which have no relevance whatever to the present the person concerned fulfils the conditions case. It concerned an action brought against laid down in the rules, which in this case is an official for the recovery of sums unduly the day on which the foreign residence paid. But a solution adopted in a case where allowance came into operation.

5 — Judgment of 27 October 1987 in Joined Cases 176 and 177/86 [1987] ECR 4333.