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Document 61975CC0056
Opinion of Mr Advocate General Reischl delivered on 3 June 1976. # Raymond Elz v Commission of the European Communities. # Case 56-75.
Stanovisko generálního advokáta - Reischl - 3 června 1976.
Raymond Elz proti Komisi Evropských společenství.
Věc 56-75.
Stanovisko generálního advokáta - Reischl - 3 června 1976.
Raymond Elz proti Komisi Evropských společenství.
Věc 56-75.
ECLI identifier: ECLI:EU:C:1976:83
OPINION OF MR ADVOCATE-GENERAL REISCHL
DELIVERED ON 3 JUNE 1976 ( 1 )
Mr President,
Members of the Court,
The proceedings on which I am today giving my opinion concern the question whether an official of the Commission, who is employed in Brussels, can require that his remuneration be paid to a bank in Luxembourg. In addition, a claim for damages is being made against the Commission for belated transmission of a writ of summons for a civil action in which the applicant in the present proceedings was involved.
The following preliminary observations are to be made as to the facts of the case.
The applicant was for a long time employed as an official of the Commission in Luxembourg. In October 1968 he was transferred to Brussels. Nevertheless the Commission at his request continued to pay his remuneration to a bank in Luxembourg. This went on after October 1971 when the applicant transferred his family residence which had previously been in Luxembourg to Brussels.
By a request submitted to the Commission on 22 August 1974 the applicant sought to have his remuneration paid to another Luxembourg bank. He did this in view of the fact that he had been granted a personal credit by this bank on condition that the remuneration payable to him should be paid to the bank giving credit, that is that the applicant should give to the Commission an appropriate irrevocable payment order to this effect which could only be withdrawn with the agreement of the bank. However by a reply of 27 August 1974 this request was rejected. This was justified by reference to the fact that the bank in Luxembourg to which the remuneration of the applicant had been paid until then under a standing arrangement had not given the appropriate clearance. In fact the clearance from this bank of 9 August 1974 was not received by the Commission until 3 September 1974. In addition the reply referred to Article 17 (1) of Annex VII to the Staff Regulations which provides that ‘Payment shall be made to each official at the place and in the currency of the country where he carries out his duties’.
At roughly the same time the applicant was involved in a dispute with the lessor of the flat which he occupied in Brussels over payment of rent. In connexion with this matter a writ of summons for a court appearance on 10 October 1974 had to be served on him. By a letter of 26 September 1974 to which were attached two copies of a writ of summons the Belgian Foreign Ministry got into touch with the Commission. The appropriate departments in the Commission attempted, as was stated in the proceedings, to reach the applicant by telephone in his office. As they were unsuccessful — in fact at that time the applicant was not at work because of illness — the writ of summons was returned to the Belgian Foreign Ministry on 10 October 1974. A renewed request from this Ministry to deliver the writ of summons to the applicant, this time contained in a letter of 24 October 1974, was complied with by service of the summons on the applicant on 4 November 1974. However in the meantime on 25 October 1974 a judgment in default had already been delivered.
On these grounds the applicant lodged a formal complaint with the appointing authority on 26 November 1974 claiming that the refusal of 27 August 1974 concerning the transfer of his remuneration was unlawful. Since the applicant could subsequently make no use of the favourable credit facilities of the bank in Luxembourg, this refusal had caused him material damage and also non-material damage. The belated notification of the summons in the Belgian civil action had led to judgment in default and consequently to the necessity to oppose the judgment in default which entailed payment of costs.
In this way too he had been caused material and non-material damage.
As he received no answer to his complaint — incidentally I may point out that the administration often reacts in this unsatisfactory way in administrative proceedings — the applicant applied to the Court of Justice on 26 June 1975.
In his application he claimed that the Court should:
— |
annul the decision refusing to pay his remuneration to Luxembourg; |
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rule that the Commission is obliged to pay the remuneration of the applicant to the Luxembourg bank specified by him; |
— |
order the Commission to pay damages of BF 50000 each for material and non-material damage because of this refusal; |
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rule that the Commission was guilty of a wrongful act or omission in the transmission of the summons to the civil action in which he was concerned and |
— |
order the Commission to pay damages of BF 10000 in respect of this wrongful act or omission. |
In the applicant's reply the application for the order that the Commission should pay damages was modified: the Commission was to be ordered to pay BF 43500 for material damage in respect of its refusal to transfer his remuneration to Luxembourg and to pay one Belgian franc for non-material damage. In addition the application for damages with regard to the belated transmission of the judicial summons was reduced to one Belgian franc.
1. |
In examining the matters at issue I shall look at the question of transferring the remuneration of the applicant to Luxembourg.
|
2. |
The second issue with which I shall now deal relates to the fact that the Commission allegedly belatedly served a writ of summons to attend a civil action addressed to the applicant In the final version of the application with regard to this question the Commission is to be ordered to pay one Belgian franc in compensation for the non-material damage caused to the applicant. In this respect it must first be made clear that the Protocol on the Privileges and Immunities of the Communities does not exclude a direct summons of officials of the Community to civil actions with the aid of the appropriate national body and that the involvement of the Community body is not compulsory. In view of the difficulties which exist — officials of the Community do not need to have themselves entered in the register of aliens — oral agreements have evidently been reached between the Commission and the Belgian Foreign Ministry whereby in the interest of a simplification of legal business summonses may be sent to the Commission which then serves them on the officials concerned. In the present instance the dispute is concerned with the extent of the obligation of the Commission on the basis of these agreements, all the details of which are not all known. The Commission maintains the view that it only needs to undertake transmission to the offices of the person concerned; in an emergency it is usual to send the document on to officials who are not at work if their place of residence is known. However the Commission has no more extensive obligations; in particular it is not obliged to undertake investigations when officials are absent from duty without authorization. This was the case with regard to the applicant at the time in question. At the direction of the Invalidity Committee on 8 September 1974 he was sent to a clinic for eight days for observation. After the expiry of this period he did not report for duty and, contrary to the provisions of Article 59 of the Staff Regulations he did not submit a doctor's certificate as to his continuing incapacity for work until 8 October 1974. The applicant does not deny that the lastmentioned observation as to his absence from duty is correct. However he takes the view that even in such a case the Commission may not remain inactive and may not return the summons to the Foreign Ministry — which incidentally it did not do until 10 October 1974; rather in the interests of the private rights of individuals it should undertake certain investigations, that is to say, make contact either by telephone or by letter with the official concerned and if needs be send a summons on to his private address. In assessing this case — this much appears certain — it may be accepted that the Commission's obligation in this respect is not as extensive as the obligations of national officials responsible for service. This can be said since in such a case direct service on the individual is possible on the basis of information which the Commission or the Belgian Foreign Ministry would automatically give to the national body responsible for service. Apart from that however I am also of the opinion that the duty of care and responsibility of the Commission which has, without legal basis, become involved in cooperating in a difficult sphere in which in certain circumstances very short time-limits are concerned — should be further extended. This does not mean that it should be required to undertake time consuming and costly inquiries in cases where officials remain away from their posts and where their place of residence is unknown; its departments are not designed for this purpose and for the majority of the officials under its control it needs to undertake no such responsibility. On the other hand even in the case of unauthorized absence from duty it should not be content simply to take the line that service of the notice in the place of work is not possible. In my opinion it is in no way asking too much of the Commission if in such cases it is at least called upon to attempt to contact by telephone the private address of the official concerned and if it is expected subsequently to send the summons on to the private address as it seemingly always does if it knows the residence of an official. In the case of the applicant this is the more applicable as the Commission had at least informed the Belgian Foreign Ministry of his holiday address when a summons concerning him was delivered a short time before and as, on 20 September 1974, that is at a time when the applicant was also absent from duty without authorization, it had sent a messenger with the summons to his residence. If one accepts this then in the present case one cannot deny that there is substantial breach of duty and thus a wrongful act or omission by the Commission since its department's efforts in respect of the applicant were confined to telephone calls to the applicant's office while they undertook no further steps which might have been expected — on 26 September 1974 the applicant states that he was at his house — and did not even give the applicant the summons on 8 October 1974 when he handed in his doctor's certificate. It can also not be denied — and this concerns a further indispensable element of the right against the institution — that the applicant was prejudiced to a substantial degree. In the proceedings we heard that after the delivery of the judgment in default against him he paid the arrears of rent demanded of him and thus recognized the claim at issue. However the point must not be rejected out of hand that if the summons had been delivered in good time he would have had sufficient time to give an answer after due consideration. This would have enabled the applicant to settle the dispute before the delivery of a judgment and thus avoid the costs of registration which apparently finally had to be borne by him. In fact this point can remain open as can the answer to the question whether the Commission must accept responsibility for the costs of the appeal lodged against the judgment in default, that is for costs which have not definitively been decided as the applicant has lodged a further appeal against the judgment delivered following his objection. In fact the applicant only seeks an order that the Commission should pay one Belgian franc as compensation for non-material damage, in other words he seeks principally the determination of a wrongful act or omission and only a more or less token condemnation of the Commission. In my opinion after all that has been revealed as to the action in the course of the proceedings this can scarcely be denied him. As regards the second part of the application it must in conclusion be determined that the head of claim in its final form is fully justified. |
3. In conclusion therefore:
In my opinion the application is without foundation in so far as it concerns the fact that as from August 1974 the remuneration of the applicant was no longer transferred to Luxembourg. However in accordance with the application the Commission should be ordered to pay one Belgian franc in view of the fact that it committed a wrongful act or omission in serving a summons addressed to the applicant for a court hearing on 10 October 1974. With regard to the costs of the proceedings, I feel it is right in the light of-the conclusions to which I have come to order the Commission to bear one half of the costs incurred by the applicant.
( 1 ) Translated from the German.