C-217/01

HENDRICKX v CEDEFOP

OPINION OF ADVOCATE GENERAL TIZZANO delivered on 19 September 2002 1

1. In these proceedings Mr Michel Hen- Legislative framework drickx, an official of the Council of the European Union, asks the Court of Justice to set aside the order of the Court of First Instance (Fifth Chamber) of 12 March 2001 in Case T-298/00 Hendrickx v Cede- 3. Article 20 of the Staff Regulations of fop (not published in the ECR) ('the con- officials of the European Communities ('the tested order') and the decision of the Centre Staff Regulations') provides: européen pour le développement de la formation professionnelle ('Cedefop' or 'the Centre') which was unsuccessfully challenged in those proceedings.

'An official shall reside in the place where he is employed or at no greater distance therefrom as [sic] is compatible with the proper performance of his duties.'

4. Article 24 of the Conditions of employ- ment of other servants of the European Communities ('the Conditions of Employ- ment') provides as follows: 2. By the contested order the Court of First Instance declared that the action brought by Mr Hendrickx to have set aside that decision of Cedefop rejecting his request for payment of a resettlement allowance which he had made upon his return to Brussels (Belgium) after having worked on a tem- ' 1 . A member of the temporary staff porary contract for the Centre at Thessa- engaged for a fixed period of not less than lonika (Greece) had become devoid of one year, or deemed by the authority purpose. referred to in the first paragraph of Article 6 to be engaged for an equivalent period if his contract is for an indefinite 1 — Original language: Italian. period, shall receive an installation allow-

6. Article 6 of Annex VII to the Staff Regulations provides:

2. The resettlement allowance provided for in Article 6 of Annex VII to the Staff Regulations shall be granted to temporary staff who have completed four years' ser- ' 1 . An established official who satisfies the vice. A servant who has completed more requirements of Article 5(1) shall be than one year's but less than four years' entitled on termination of service to a service shall receive a resettlement allow- resettlement allowance equal to t w o ance proportionate to his length of service, months' basic salary in the case of an incomplete years being disregarded.' official who is entitled to the household

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HENDRICKX v CEDEFOP

allowance or to one month's basic salary in 8. Article 90 of the Staff Regulations pro- other cases, provided that he has completed vides: four years of the service and does not receive a similar allowance in his new employment.

'1. Any person to whom these Staff Regu- lations apply may submit to the appointing authority a request that it take a decision relating to him. The authority shall notify the person concerned of its reasoned For the purpose of calculating his service, decision within four months from the date account shall be taken of years spent in any on which the request was made. If at the administrative status listed in Article 35 of end of that period no reply to the request the Staff Regulations other than leave on has been received, this shall be deemed to personal grounds. constitute an implied decision rejecting it, against which a complaint may be lodged in accordance with the following para- graph.

10. The facts giving rise to this action are adequately set out in paragraphs 2 to 10 of '1. The Court of Justice of the European the contested order; I shall therefore note Communities shall have jurisdiction in any only some essential points, leaving the rest dispute between the Communities and any to be gleaned from the order. person to whom these Staff Regulations apply regarding the legality of an act adversely affecting such person within the meaning of Article 90(2). 11. Mr Hendrickx, an official of the Coun- cil resident in Brussels, was seconded at his own request to Cedefop, Thessalonika, to which he was transferred, working for a year and a half from 1 January 1997 under a contract as a member of the temporary 2. An appeal to the Court of Justice of the staff. By reason of that transfer he was European Communities shall lie only if: entitled to an installation allowance pay- able by Cedefop in accordance with Article 24(1) of the Conditions of Employ- ment.

— the appointing authority has previously had a complaint submitted to it pur- 12. When that contract came to an end and suant to Article 90(2) within the period after enjoying a period of leave, the appli- prescribed therein, and cant resumed service with the Council and I - 3706

HENDRICKX v CEDEFOP

returned to Brussels. On 22 July 1999 he allowance at the time he took up service in informed the Director of Cedefop of his Thessalonika, since his service there turned resettlement and made a request to the out to be less than the period of four years Centre's appointing authority for the pay- upon which the allowance had initially ment of the relevant resettlement allow- been calculated. Balancing out therefore ance. the amounts paid as debits and credits, the decision required Mr Hendrickx to pay the difference, an amount of GRD 305 087.

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OPINION OF MR TIZZANO — CASE C-217/01 P

The appeal before the Court of Justice Moreover, in the appellant's view, before giving the disputed ruling, the Court of First Instance ought to have ascertained whether that decision was lawful, with regard to the recovery of the alleged over- payment to Mr Hendrickx and the cor- responding setting off. The parties' submissions

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HENDRICKX v CEDEFOP

20. As has been seen, Mr Hendrickx claims 23. As to the appellant's application to 'in the alternative' (though he describes it adjust his heads of claim to the decision of as the 'principal claim') that the President 14 November 2000, Cedefop contends that of Cedefop lacked competence to adopt the the case-law cited by the appellant is not decision of 14 November 2000. In essence, applicable in this case, given that the he argues that, once the administrative decision is not only not confirmatory of complaint under Article 90(2) had been the contested one, but it also in fact accords made, that body was no longer competent to the appellant precisely the allowance to determine a request made in accordance which the latter decision refused him. with Article 90(1). Moreover, it contains two further decisions whose subject-matter is quite distinct from that of the contested decision since they relate, in the first case, to the recovery of the sum overpaid to the appellant by way of installation allowance and, in the second case, to the setting off of the reciprocal credit and debit amounts existing between 2 1 . First and foremost, Cedefop counters the two parties. For the Court of First that Mr Hendrickx does not have a legal Instance to have allowed the appellant to interest in bringing proceedings, given that extend the subject-matter of the dispute to the decision of 14 N o v e m b e r 2 0 0 0 encompass the new decisions just referred accepted his requests in their entirety. The to would have meant permitting him to appeal is therefore inadmissible. avoid the obligation of making a prior complaint under Article 90(2) of the Staff Regulations. For this reason too, therefore, Cedefop asks that the appeal be declared unfounded.

25. So as to attempt to bring some small (a) The part relating to the installation degree of order to the intricate disentang- allowance ling of the arguments, I think it opportune to note that in my view the decision of the Director of Cedefop of 14 November 2000 is to be seen as a complex act. It consists as a matter of fact of three distinct decisions: a decision on the resettlement allowance, paying credit claimed as such by the appellant from Cedefop; a decision on the 27. As to this head of claim, I would point installation allowance and the recovery of out at the outset that I am not at all the overpayment of that allowance; a convinced by Cedefop's argument that, decision on the setting off of reciprocal given that the order takes formal note of debits and credits between the parties, as a decision favourable to the appellant (the determined by that decision. decision specifically awarding him the resettlement allowance), the appellant no longer has a legal interest in challenging it, for he is not an unsuccessful party within the meaning of Article 49 (now Article 56) of the EC Statute of the Court of Justice. 3It seems to me, in fact, that the possibility that the allowance in question was assessed incorrectly, causing loss to the appellant, may give rise to his having an interest in The 'principal plea' bringing proceedings. This is, moreover, precisely what appears to emerge from the generic and confused complaint about a violation of rights which the appellant seems to make against the decision which forms the basis of the order (see paragraph 19 above).

to amend his pleadings, 4 because it is hard 30. However, I must note that in accord- to deny that the decision of 14 November ance with Article 38(1) of the Rules of 2000 constitutes a 'new factor'. Having Procedure of the Court of Justice, the said that, however, I consider that it is not subject-matter of the proceedings is to be necessary to dwell on that point since, in stated in the application; Article 42(2) of my view, the contested order is justified by those rules lays clown that no new pleas the fact that the declaration that the action may be introduced, save in the exceptional had become devoid of purpose is the circumstances provided for therein, in necessary consequence of the manner in which matters of law or fact which come which the applicant had conducted the to light in the course of the procedure proceedings at first instance. justify a derogation from that prohibition. The party intending to make use of this exceptional opportunity must, moreover, put forward its new picas in law at the same time as it lodges its application for them to be admitted: this is, indeed, the only possible construction of the content of the last subparagraph of Article 42(2), which states that '|t]he decision on the admissibility of the plea shall be reserved for the final judgment'. Since, in the circumstances of this case, Mr Hendrickx 29. Indeed, on that occasion, Mr Hendrickx never indicated before the Court of First was given the opportunity of making Instance what new pleas he sought to observations on Cedefop's decision of introduce, his request clearly had to be 14 November 2000 and on the consequent held to be irregular and devoid of purpose. objection of the defendant that the action As such, it could not fittingly serve to had become devoid of purpose. Neverthe- broaden the subject-matter of the proceed- less, he confined himself to opposing, ings, because the latter cannot go beyond without giving any reasons, the making of the applications and pleadings which the the order taking formal note that the action parties have put before the Court. had become devoid of purpose. Rather, Mr Hendrickx was primarily concerned with requesting the Court of First Instance for leave to amend his pleadings without however offering reasons for that request or at the very least indicating the amend- ments he intended to make to his pleadings. 31. In such a situation it is quite clear that It is apparent from the case-file that the Court of First Instance could not have M r Hendrickx did not argue on that allowed the proceedings to continue, giving occasion that his rights had been infringed, the appellant leave (even supposing the nor did he dispute the competence of the conditions to have been satisfied) to amend authority which took the new decision. his original pleadings in a sense of which he had given no further details, in relation to an unforeseen act which not only granted 4 — Sec, in addition to Alpha Steel v Commission, paragraph 8, Joined Cases 351/85 and 360/85 Fabrique de fer de him what he had asked for but to which, in Charleroi and Dillinger Hüttenwerke v Commission [1987] addition, he took care not to make specific ECR 3639, paragraphs 10 and 11, and Stahlwerke Petne- Salzgttter v Commission, paragraph 11. objections.

37. I conclude therefore that this appeal, in so far as it challenges the contested order for not having given the appellant leave to amend his pleadings to take into account 34. The appellant seeks to argue before the the decision of 14 November 2000 relating Court that the decision on the overpayment to the recovery of overpayment of the of the installation allowance was unlawful, without there being evidence of that argu- ment's having been made before the Court 5 — See Case C-274/00 P Simon v Commission [2002] ECR of First Instance. In particular, no evidence 1-5999, paragraph 39. To the same effect, see also, Case whatsoever is to be found in the document C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR 1-1981, paragraph 59; Case C-7/95 P John in which the appellant made submissions in Deere v Commission [1998] ECR 1-3111, paragraph 62; and Case C-321/99 P ARAP and Others v Commission relation to the defendant's argument that [2002] ECR 1-4287, paragraph 112.

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HENDRICKX V CEDEFOP

installation allowance, must be declared Costs manifestly inadmissible.

As to the competence of the Director of Cedefop