61973J0177

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1 . OFFICIALS - RESETTLEMENT ALLOWANCE - AMOUNT - DETERMINATION - APPLICATION FOR - TIME

( STAFF REGULATIONS, ANNEX VII, ARTICLE 6 ( 3 ))

2 . OFFICIALS - ACTS ADVERSELY AFFECTING - MEANING

( STAFF REGULATIONS, ARTICLE 25, ARTICLE 90 AND ARTICLE 91 )

3 . OFFICIALS - TRANSITIONAL PROVISIONS - TRANSITION FROM THE FORMER ECSC GENERAL REGULATIONS TO THE ECSC STAFF REGULATIONS - RESETTLEMENT ALLOWANCE - CALCULATION

( STAFF REGULATIONS, ECSC, ARTICLE 99 ( 3 ))

1 . ON APPLICATION TO TERMINATE HIS SERVICE AN OFFICIAL HAS AN INTEREST IN REQUESTING A DEFINITE DECISION AS TO THE AMOUNT OF THE RESETTLEMENT ALLOWANCE .

2 . ONLY THOSE ACTS CAPABLE OF DIRECTLY AFFECTING A PRECISE LEGAL SITUATION CAN BE REGARDED AS ADVERSELY AFFECTING AN OFFICIAL .

3 . A TRANSITIONAL PROVISION ISSUED ON THE TRANSITION TO A LESS GENEROUS SYSTEM DOES NOT NORMALLY SEEK TO GIVE EMPLOYEES GREATER RIGHTS THAN THEY WOULD HAVE HAD UNDER THE SYSTEM WHICH IS REVOKED .

ARTICLE 99 ( 3 ) CANNOT THEREFORE BE INTERPRETED AS ALLOWING A COMBINATION OF THE MORE FAVOURABLE METHOD OF CALCULATION OF ONE SYSTEM WITH THE MORE FAVOURABLE SALARY SCALE OF ANOTHER .

IN JOINED CASES 177/73 AND 5/74

ANDREAS REINARZ, A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, ASSISTED AND REPRESENTED BY A . J . HAMMERSTEIN, ADVOCATE AT THE ARRONDISSEMENTSRECHTBANK, MAASTRICHT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBER OF F . JANSEN, HUISSIER, 21 RUE ALDRINGEN, APPLICANT AND DEFENDANT IN THE PROCEDURAL ISSUE IN CASE 5/74

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, J . GIESMAR, ACTING AS AGENT, ASSISTED BY SEERP YBEMA, OF THE LEGAL SERVICE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF PIERRE LAMOUREUX, LEGAL ADVISER TO THE COMMISSION, 4 BOULEVARD ROYAL, DEFENDANT AND APPLICANT IN THE PROCEDURAL ISSUE IN CASE 5/74

APPLICATION FOR ANNULMENT OF THE IMPLIED REJECTION BY THE DEFENDANT OF THE APPLICANT'S COMPLAINT FOR THE PURPOSE OF ESTABLISHING HIS RIGHT, AT THE TIME OF HIS TERMINATION OF SERVICE, TO A RESETTLEMENT ALLOWANCE EQUAL TO 4 TIMES HIS FINAL SALARY .

1 THE APPEAL IN CASE 177/73 FILED AT THE REGISTRY ON 26 OCTOBER 1973 AND THE APPEAL IN CASE 5/74 FILED ON 30 JANUARY 1974 SEEK THE ANNULMENT OF THE IMPLIED DECISION REJECTING THE COMPLAINT MADE BY THE APPLICANT THAT HIS RESETTLEMENT ALLOWANCE SHOULD BE EQUAL TO FOUR TIMES HIS LAST BASIC SALARY .

2 THE APPLICANT MAINTAINS THAT UNDER ARTICLE 99 ( 3 ) OF THE TRANSITIONAL AND FINAL PROVISIONS OF THE ECSC STAFF REGULATIONS WHICH CAME INTO FORCE ON 1 JANUARY 1962, HE HAS RETAINED THE BENEFIT OF THE SYSTEM OF RESETTLEMENT ALLOWANCE ORIGINALLY PROVIDED FOR IN ARTICLE 12 OF THE GENERAL REGULATIONS OF 1956 WHICH DETERMINED THE AMOUNT OF THIS ALLOWANCE .

3 HE CONTENDS THAT NEW PROVISIONS THUS APPLICABLE TO STAFF WHO TOOK UP EMPLOYMENT AFTER THE 1962 REGULATIONS CAME INTO FORCE AND CONTINUED BY THE CONSOLIDATED STAFF REGULATIONS OF THE EUROPEAN COMMUNITIES, WHICH REDUCE THE AMOUNT OF THIS ALLOWANCE TO TWICE THE BASIC SALARY, DO NOT APPLY TO HIM .

ADMISSIBILITY

4 IN CASE 177/73 THE COMMISSION HAS RAISED A DEFENCE OF INADMISSIBILITY BASED ON THE PREMATURE NATURE OF THE APPEAL, TAKING INTO ACCOUNT THE FACT THAT AT THE TIME THE APPEAL WAS FILED THERE HAD AS YET BEEN NO EXPRESS OR IMPLIED DECISION ON THE DEPARTMENTAL COMPLAINT .

5 THE SECOND PARAGRAPH OF ARTICLE 91 ( 2 ) OF THE STAFF REGULATIONS PROVIDES THAT AN APPEAL SHALL LIE ONLY IF THE COMPLAINT HAS BEEN REJECTED BY EXPRESS DECISION OR BY IMPLIED DECISION .

6 ARTICLE 91 ( 4 ) PROVIDES FOR A SINGLE DEROGATION FROM PARAGRAPH 2 IN THE CASE OF AN APPEAL ACCOMPANIED BY AN APPLICATION FOR A STAY OF EXECUTION OF THE CONTESTED ACT .

7 SINCE THIS DEROGATION DOES NOT APPLY TO THE PRESENT CASE APPEAL 177/73 IS INADMISSIBLE .

8 IN AN INTERLOCUTORY APPLICATION THE COMMISSION RAISED WITH REGARD TO APPEAL 5/74 A DEFENCE OF INADMISSIBILITY BASED IN THE FIRST PLACE ON THE LACK OF INTEREST ON THE PART OF THE APPLICANT IN CLAIMING PAYMENT OF A RESETTLEMENT ALLOWANCE SINCE THE APPLICANT WAS NOT AS YET RESETTLED .

9 IN THE SECOND PLACE, THE LETTER FROM THE DIRECTOR OF PERSONNEL OF 10 MAY 1973, WHICH WAS LIMITED TO SUPPLYING THE APPLICANT WITH SIMPLE ADMINISTRATIVE INFORMATION RELATING TO THE SUBSTANCE OF A PURELY HYPOTHETICAL DECISION, DID NOT CONSTITUTE AN ACT ADVERSELY AFFECTING HIM .

10 UNDER ARTICLE 6 ( 3 ) OF ANNEX VII TO THE STAFF REGULATIONS THE RESETTLEMENT ALLOWANCE IS TO BE CALCULATED BY REFERENCE TO THE DATE OF TERMINATION OF SERVICE .

11 IF THE OFFICIAL MAY CLAIM HIS RIGHTS ONLY AFTER HIS EFFECTIVE RESETTLEMENT, HE COULD BE UNCERTAIN AS TO HIS FINANCIAL POSITION .

12 ON APPLICATION TO TERMINATE HIS SERVICE AN OFFICIAL HAS IN CONSEQUENCE AN INTEREST IN REQUESTING A DEFINITE DECISION AS TO THE AMOUNT OF THE RESETTLEMENT ALLOWANCE .

13 ONLY THOSE ACTS CAPABLE OF DIRECTLY AFFECTING A PRECISE LEGAL POSITION CAN BE REGARDED AS ADVERSELY AFFECTING AN OFFICIAL .

14 BEFORE HIS APPLICATION TO LEAVE THE SERVICE WAS ACCEPTED, THE APPLICANT REQUESTED OVER THE TELEPHONE AN INTERPRETATION OF THE PROVISIONS IN QUESTION .

15 BY LETTER DATED 30 MARCH, WHICH REFERS TO THIS TELEPHONE CONVERSATION, THE APPLICANT, WHILE MENTIONING HIS CLAIM TO A RESETTLEMENT ALLOWANCE EQUAL TO FOUR TIMES HIS BASIC SALARY, REQUESTED A 'MORE AUTHORITATIVE' INTERPRETATION OF THE SAID PROVISIONS .

16 THIS SHOWS CLEARLY THAT HE WANTED A DEFINITE DECISION ON WHICH PROCEEDINGS, BOTH ADMINISTRATIVE AND CONTENTIOUS, COULD BE BASED .

17 THE APPLICANT LEFT THE SERVICE ON 1 MAY 1973 AND THE DIRECTOR OF PERSONNEL REPLIED ON 10 MAY 1973 REJECTING HIS CLAIM .

18 THE DECISION OF THE DIRECTOR-GENERAL OF 10 MAY 1973 WAS CONSEQUENTLY AIMED AT DETERMINING THE RIGHTS WHICH THE APPLICANT HAD IN A PARTICULAR LEGAL SITUATION .

19 IN THESE CIRCUMSTANCES THE DECISION CONTAINED IN THE LETTER OF 10 MAY 1973 REJECTING THE APPLICANT'S CLAIM OF 30 MARCH 1973 CONSTITUTED AN ACT ADVERSELY AFFECTING HIM WITHIN THE MEANING OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS .

20 THE DEFENCE OF INADMISSIBILITY MADE IN APPEAL 5/74 MUST THEREFORE BE REJECTED .

SUBSTANCE

21 ARTICLE 99 ( 3 ) OF THE ECSC STAFF REGULATIONS, WHICH COMES UNDER TITLE VIII CONCERNED WITH TRANSITIONAL AND FINAL PROVISIONS, PROVIDES THAT THE AMOUNT OF THE RESETTLEMENT ALLOWANCE DUE TO ESTABLISHED OFFICIALS UNDER THE OLD ECSC STAFF REGULATIONS WHO TERMINATE THEIR SERVICE AFTER THE NEW REGULATIONS COME INTO FORCE SHALL NOT BE LESS THAN THE AMOUNT WHICH THE PERSONS CONCERNED WOULD HAVE RECEIVED UNDER THE PROVISIONS OF ARTICLE 12 OF THE FORMER ECSC GENERAL REGULATIONS .

22 A TRANSITIONAL PROVISION ISSUED ON THE TRANSITION TO A LESS GENEROUS SYSTEM DOES NOT NORMALLY SEEK TO GIVE EMPLOYEES GREATER RIGHTS THAN THEY WOULD HAVE HAD UNDER THE SYSTEM WHICH IS REVOKED .

23 SUCH A PROVISION CANNOT THEREFORE BE INTERPRETED AS ALLOWING A COMBINATION OF THE MORE FAVOURABLE METHOD OF CALCULATION OF ONE SYSTEM WITH THE MORE FAVOURABLE SALARY SCALE OF ANOTHER .

24 ARTICLE 99 ( 3 ), IN PROVIDING EXPRESSLY THAT THE AMOUNT OF THE ALLOWANCE PAID TO AN OFFICIAL SHALL NOT BE LESS THAN THAT WHICH HE WOULD HAVE RECEIVED UNDER ARTICLE 12 OF THE FORMER REGULATIONS, WAS INTENDED TO PREVENT AN OFFICIAL WHO TERMINATES HIS SERVICE AFTER THE NEW SYSTEM HAS COME INTO FORCE FROM FINDING HIMSELF FINANCIALLY IN A LESS FAVOURABLE POSITION THAN HE WOULD HAVE HAD IF HE HAD LEFT THE SERVICE BEFORE THE NEW SYSTEM CAME INTO FORCE .

25 HAVING REGARD TO THE NEW SALARY SCALES IN FORCE SINCE 1 JANUARY 1962, WHEN THE AMOUNT OF THE ALLOWANCE EQUAL TO TWO MONTHS' BASIC SALARY IS LESS THAN THE AMOUNT EQUAL TO FOUR MONTHS' BASIC SALARY AT THE SAME GRADE CALCULATED ON THE BASIS OF THE OLD SALARY SCALES, THIS PROVISION ENABLES THE OFFICIAL CONCERNED TO ENJOY THE MORE FAVOURABLE TERMS .

26 AS SOON AS THE NEW SALARY SCALES DOUBLE THE SALARIES PRIOR TO 1962, THIS SAFEGUARD CLAUSE IS NO LONGER APPLICABLE .

27 THE APPEAL IN CASE 5/74 MUST THEREFORE BE REJECTED AS UNFOUNDED .

28 THE APPLICANT HAS FAILED IN HIS APPEAL .

29 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY MUST BEAR THE COSTS .

30 NEVERTHELESS, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN ACTIONS BY STAFF OF THE COMMUNITIES THE INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

ON THOSE GROUNDS,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES APPEAL 177/73 AS INADMISSIBLE;

2 . DISMISSES APPEAL 5/74 AS UNFOUNDED;

3 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .