61975J0056

1 . OFFICIALS - EMOLUMENTS - REGULAR TRANSFER - MEMBER STATE OTHER THAN THAT WHERE AN OFFICIAL IS EMPLOYED - NOT PERMISSIBLE

( STAFF REGULATIONS , ANNEX VII , ARTICLE 17 ( 1 ) )

2 . OFFICIALS - ADVANTAGE BASED ON AN IRREGULAR SITUATION - IMMEDIATE WITHDRAWAL - VESTED RIGHTS - PREJUDICE - ABSENCE

3 . OFFICIALS - NATIONAL LEGAL DOCUMENTS - FORWARDING BY THE COMMUNITY ADMINISTRATION - DILIGENCE - NEGLIGENCE - WRONGFUL ACT OR OMISSION

( EEC TREATY , ARTICLE 215 )

1 . THE EXCEPTIONS WHICH MAY BE MADE TO THE PRINCIPLE SET OUT IN ARTICLE 17 ( 1 ) CANNOT PERMIT AN OFFICIAL , EXCEPT BY WAY OF DEROGATION , TO HAVE THE WHOLE OF HIS EMOLUMENTS PAID BY THE INSTITUTION WHICH HE SERVES IN A MEMBER STATE OTHER THAN THAT WHERE HE IS EMPLOYED .

2 . THE IMMEDIATE WITHDRAWAL OF A BENEFIT BASED ON A SITUATION WHICH IS NOT IN CONFORMITY WITH THE STAFF REGULATIONS CANNOT INFRINGE THE PRINCIPLE THAT VESTED RIGHTS MUST BE RESPECTED .

3 . ONCE THE COMMUNITY ADMINISTRATION HAS UNDERTAKEN TO FORWARD LEGAL DOCUMENTS ADDRESSED TO ITS OFFICIALS IT MUST MAKE EVERY EFFORT TO ENSURE THAT THE DOCUMENT IN QUESTION IS DELIVERED AS SOON AS POSSIBLE TO THE PERSON TO WHOM IT IS ADDRESSED OR , IF SUCH DELIVERY IS NOT POSSIBLE , THAT IT IS RETURNED TO THE NATIONAL AUTHORITIES IN SUFFICIENT TIME TO ALLOW THEM TO EXAMINE OTHER METHODS OF DELIVERY .

THE FACT THAT AT THE TIME WHEN THE LEGAL DOCUMENT IS TO BE DELIVERED THE OFFICIAL IS ABSENT FROM WORK WITHOUT AUTHORIZATION MAY JUSTIFY THE APPLICATION OF DISCIPLINARY MEASURES UNDER THE STAFF REGULATIONS , BUT THIS CANNOT RELEASE THE COMMISSION FROM ITS DUTY TO MAKE EVERY EFFORT TO DELIVER THE LEGAL DOCUMENT TO THE PERSON TO WHOM IT IS ADDRESSED , WHERE NECESSARY BY SENDING IT TO THE PRIVATE RESIDENCE OF THE PERSON CONCERNED OR TO ANY OTHER ADDRESS NOTIFIED TO IT BY THE LATTER .

IF THE COMMUNITY ADMINISTRATION FAILS TO EFFECT SUCH NOTIFICATION ITS CONDUCT APPEARS TO CONSTITUTE A WRONGFUL ACT OR OMISSION SUCH AS TO RENDER IT LIABLE FOR ANY DAMAGE CAUSED TO THE PERSON CONCERNED .

IN CASE 56/75 ,

RAYMOND ELZ , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING IN BRUSSELS , REPRESENTED BY MARCEL SLUSNY , ADVOCATE AT THE COUR D ' APPEL , BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , CENTRE LOUVIGNY , 34/B/IV , RUE PHILIPPE-II ,

APPLICANT ,

V COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , JOSEPH GRIESMAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF MARIO CERVINO , LEGAL ADVISER TO THE COMMISSION ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF THE COMMISSION ' S REFUSAL TO PAY THE APPLICANT ' S REMUNERATION IN A MEMBER STATE OTHER THAN THAT OF HIS PLACE OF EMPLOYMENT , AND THE PAYMENT OF DAMAGES ARISING FROM THE INJURY CAUSED BY THIS REFUSAL ;

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 26 JUNE 1975 THE APPLICANT , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES IN BRUSSELS , SEEKS THE ANNULMENT OF THE IMPLIED DECISION REJECTING HIS COMPLAINT OF 26 NOVEMBER 1974 .

2 THAT COMPLAINT CONCERNED , ON THE ONE HAND , THE REVOCATION OF THE DECISION OF THE COMMISSION OF 27 AUGUST 1974 REFUSING TO CONTINUE TO PAY THE APPLICANT ' S REMUNERATION TO A BANK ESTABLISHED IN LUXEMBOURG AND , ON THE OTHER HAND , A FINDING THAT A WRONGFUL ACT OR OMISSION WAS INVOLVED IN THE DELAY WITH WHICH THE COMMISSION TRANSMITTED TO THE APPLICANT A LEGAL DOCUMENT ADDRESSED TO HIM .

3 IN HIS COMPLAINT THE APPLICANT FURTHER SOUGHT THE PAYMENT OF DAMAGES FOR THE NON-MATERIAL AND MATERIAL DAMAGE WHICH HE CLAIMED TO HAVE SUFFERED BECAUSE OF THE TWO ALLEGED IRREGULARITIES .

4 THE COMPETENT ADMINISTRATIVE AUTHORITY DID NOT REPLY TO THIS COMPLAINT WITHIN THE PERIOD LAID DOWN IN THE STAFF REGULATIONS AND THE APPLICANT THEREFORE BROUGHT AN APPEAL IN ACCORDANCE WITH ARTICLE 91 OF THE STAFF REGULATIONS .

5 IN VIEW OF THE SUBJECT-MATTER OF THE COMPLAINT , THE FACT THAT THE APPLICATION IS IN TWO PARTS , ONE DIRECTED AGAINST THE REFUSAL OF THE COMMISSION TO PAY THE APPLICANT ' S REMUNERATION TO A BANK ESTABLISHED IN THE GRAND DUCHY OF LUXEMBOURG AND THE OTHER DIRECTED AGAINST THE ALLEGEDLY WRONGFUL FAILURE OF THE COMMISSION TO TRANSMIT AS QUICKLY AS POSSIBLE TO THE APPLICANT THE JUDICIAL DOCUMENT ADDRESSED TO HIM , IS JUSTIFIED BY THE DESIRE TO ENSURE THE LINK WHICH ARTICLE 91 ( 2 ) OF THE STAFF REGULATIONS ESTABLISHES BETWEEN AN APPEAL AND THE COMPLAINT FROM WHICH IT ARISES AND WHICH MUST PRECEDE IT .

6 SUCH A CIRCUMSTANCE IS NOT SUCH AS TO RENDER THE APPLICATION IN THE PRESENT CASE INADMISSIBLE .

7 THE APPLICANT ARGUES FIRST THAT THE COMMISSION ' S REFUSAL TO CONTINUE TO PAY HIS REMUNERATION TO A BANKING INSTITUTION ESTABLISHED IN A MEMBER STATE OTHER THAN THAT OF HIS PLACE OF EMPLOYMENT IS BASED ON AN ERRONEOUS INTERPRETATION OF ARTICLE 17 ( 1 ) OF ANNEX VII TO THE STAFF REGULATIONS .

8 IN ADDITION HE ARGUES THAT THAT PROVISION FORMS NO OBSTACLE TO THE PAYMENT TO A BANK ESTABLISHED IN THE GRAND DUCHY OF LUXEMBOURG OF THE EMOLUMENTS OF OFFICIALS OF BELGIAN AND LUXEMBOURG NATIONALITY POSTED TO BRUSSELS BECAUSE OF THE POSITION OF LUXEMBOURG CURRENCY IN RELATION TO BELGIAN CURRENCY IN THE CONTEXT OF THE BELGO-LUXEMBOURG ECONOMIC UNION , WHICH IS NOT TO BE AFFECTED BY THE TREATY PURSUANT TO ARTICLE 233 THEREOF .

9 FURTHER , AS THE APPLICANT BENEFITED FROM SUCH PAYMENT AFTER HIS POSTING TO BRUSSELS UNTIL 22 AUGUST 1974 , HE CLAIMS THAT THE WITHDRAWAL OF THIS ADVANTAGE AS FROM THAT DATE DISREGARDS HIS VESTED RIGHTS .

10 ARTICLE 17 ( 1 ) OF ANNEX VII TO THE STAFF REGULATIONS 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 ' .

11 IT IS EVIDENT FROM THE TEXT OF THIS PROVISION AND FROM THE OTHER PROVISIONS CONTAINED IN THAT ARTICLE THAT THE PRINCIPLE SET OUT IN THE FIRST PARAGRAPH IS A RULE HAVING GENERAL SCOPE , DEPARTURE FROM WHICH IS POSSIBLE ONLY IN THE CIRCUMSTANCES EXPRESSLY DEFINED IN THE STAFF REGULATIONS .

12 ARTICLE 17 ( 2 ), WHICH ENABLES AN OFFICIAL TO TRANSFER PART OF HIS EMOLUMENTS THROUGH THE INSTITUTION WHICH HE SERVES IN THE CURRENCY OF THE MEMBER STATE IN WHICH HIS DOMICILE IS LOCATED OR IN THAT OF THE STATE IN WHICH THE PLACE OF RESIDENCE OF A DEPENDENT RELATIVE IS LOCATED , PERMITS THE REGULAR TRANSFER OF THESE SUMS ONLY UP TO A FIXED AMOUNT OR , WHERE APPROPRIATE , TO THE EXTENT STRICTLY NECESSARY TO COVER EXPENDITURE TO WHICH THE OFFICIAL IS COMMITTED IN THOSE MEMBER STATES .

13 PARAGRAPH ( 3 ) PROVIDES FURTHER THAT APART FROM THESE REGULAR TRANSFERS , AN OFFICIAL SHALL NOT BE AUTHORIZED TO TRANSFER SUMS WHICH HE MAY DESIRE TO HAVE AVAILABLE IN THE ABOVEMENTIONED CURRENCIES ' SAVE IN VERY EXCEPTIONAL CIRCUMSTANCES AND FOR GOOD REASONS SUPPORTED BY EVIDENCE ' .

14 THUS THESE PROVISIONS EXCLUDE THE POSSIBILITY OF A REGULAR TRANSFER WHICH COVERS ALL THE REMUNERATION PAYABLE TO AN OFFICIAL .

15 IT FOLLOWS THAT THE EXCEPTIONS WHICH MAY BE MADE TO THE PRINCIPLE SET OUT IN ARTICLE 17 ( 1 ) CANNOT PERMIT AN OFFICIAL TO HAVE HIS EMOLUMENTS PAID BY THE INSTITUTION WHICH HE SERVES IN A MEMBER STATE OTHER THAN THAT WHERE HE IS EMPLOYED SINCE SUCH PAYMENT ENTAILS THE REGULAR TRANSFER OF ALL THE SUMS PAID TO THE OFFICIAL .

16 THUS THE REFUSAL GIVEN BY THE COMMISSION IN ITS DECISION OF 27 AUGUST 1974 IS THE RESULT OF A CORRECT APPLICATION OF ARTICLE 17 OF ANNEX VII TO THE STAFF REGULATIONS .

17 IN THESE CIRCUMSTANCES THE APPLICANT CANNOT CLAIM THE FUTURE CONTINUATION OF THE BENEFIT OF THE MEANS OF PAYMENT IN QUESTION .

18 THE IMMEDIATE WITHDRAWAL OF SUCH A BENEFIT BASED ON A SITUATION WHICH IS NOT IN CONFORMITY WITH THE STAFF REGULATIONS CANNOT INFRINGE THE PRINCIPLE THAT VESTED RIGHTS MUST BE RESPECTED .

19 IT IS EVIDENT FROM THE WRITTEN AND ORAL PROCEDURE THAT THE CONCESSION IN QUESTION FROM WHICH THE APPLICANT BENEFITED AS FROM THE TIME OF HIS POSTING TO BRUSSELS UNTIL THE CONTESTED DECISION TOOK EFFECT WAS BASED EITHER ON A FAILURE TO ACT OR ON ADMINISTRATIVE TOLERANCE ON THE PART OF THE DEPARTMENTS OF THE COMMISSION CONCERNED .

20 IN VIEW OF THE FACTUAL AND LEGAL CIRCUMSTANCES SURROUNDING SUCH A FAILURE TO ACT OR SUCH AN INSTANCE OF TOLERANCE , THE CONTINUATION OF THIS BENEFIT FOR THE PERIOD IN QUESTION APPEARS TO BE A MEASURE OF A PRECARIOUS NATURE WHICH ENTAILS NO IMPLIED DECISION ON THE PART OF THE INSTITUTION WHICH MIGHT CREATE RIGHTS IN FAVOUR OF THE PERSON CONCERNED .

21 FINALLY , THE CONTESTED MEASURE DOES NOT INFRINGE ARTICLE 233 OF THE TREATY , ACCORDING TO WHICH THE PROVISIONS OF THE TREATY DO NOT PRECLUDE THE EXISTENCE OR COMPLETION OF REGIONAL UNIONS SUCH AS THE BELGO-LUXEMBOURG ECONOMIC UNION .

22 INDEED , WHILE IT IS TRUE THAT THE BELGO-LUXEMBOURG ECONOMIC UNION INVOLVES PARTICULAR CIRCUMSTANCES WITH REGARD TO CURRENCY FOR THE TWO ASSOCIATED COUNTRIES IT CAN HOWEVER NOT BE ACCEPTED THAT THE POSSIBILITY OF DEROGATING FROM ARTICLE 17 ( 1 ) OF ANNEX VII TO THE STAFF REGULATIONS IN FAVOUR OF COMMUNITY OFFICIALS OF BELGIAN OR LUXEMBOURG NATIONALITY IS ONE OF THE INDISPENSABLE CONDITIONS FOR THE EXISTENCE AND FUNCTIONING OF THE UNION WHICH MAY NOT BE PREJUDICED BY THE TREATY .

23 FOR THESE REASONS THE APPLICATION MUST BE DISMISSED FOR LACK OF FOUNDATION IN SO FAR AS IT SEEKS THE ANNULMENT OF THE COMMISSION DECISION OF 27 AUGUST 1974 AND THE PAYMENT OF DAMAGES IN RESPECT OF THAT DECISION .

24 THE APPLICANT FURTHER OBJECTS THAT THE COMMISSION COMMITTED A WRONGFUL ACT OR OMISSION BY TRANSMITTING TO HIM ONLY ON 4 NOVEMBER 1974 A JUDICIAL DOCUMENT OF 26 SEPTEMBER 1974 WHICH SUMMONED HIM TO APPEAR BEFORE THE JUGE DE PAIX , UCCLE , ON 10 OCTOBER 1974 .

25 THIS BELATED TRANSMISSION IS SAID TO HAVE CAUSED THE APPLICANT NON-MATERIAL AND MATERIAL DAMAGE FOR WHICH HE SEEKS COMPENSATION .

26 IT IS GENERALLY ACCEPTED THAT WHERE CIVIL LAW PROCEEDINGS ARE COMMENCED AGAINST OFFICIALS OF THE COMMISSION DOCUMENTS OR LEGAL NOTICES ADDRESSED TO OFFICIALS ARE FREQUENTLY TRANSMITTED TO THE COMMISSION THROUGH THE MINISTRY FOR FOREIGN AFFAIRS SO THAT THE COMMISSION MAY PASS THEM ON TO THE PERSONS CONCERNED .

27 NOR IS IT CONTESTED THAT AS A GENERAL RULE THE COMMISSION COMPLIES WITH THE REQUESTS OF THE NATIONAL AUTHORITIES TO TRANSMIT THE DOCUMENTS IN QUESTION TO THE PERSONS TO WHOM THEY ARE ADDRESSED AND TO OBTAIN ACKNOWLEDGEMENT OF RECEIPT .

28 THE DEFENDANT STATES THAT QUITE APART FROM THE FACT THAT THIS METHOD OF TRANSMISSION IS IN NO WAY FORESEEN IN THE PROTOCOL ON PRIVILEGES AND IMMUNITIES , THE COMMISSION MAY NOT BE LIABLE FOR SERVICE OF SUCH LEGAL DOCUMENTS EXCEPT IN SO FAR AS THE OFFICIAL IS PRESENT AT HIS PLACE OF WORK OR , IN CASE OF ABSENCE FROM WORK , HE IS ON DULY AUTHORIZED LEAVE .

29 CONSEQUENTLY THE COMMISSION IS NOT OBLIGED TO GO SO FAR AS TO SEARCH FOR AN OFFICIAL WHO IS ABSENT FROM WORK WITHOUT AUTHORIZATION , AND THE CONSEQUENCES OF SUCH ABSENCE MUST IN THE FINAL ANALYSIS BE AT THE OFFICIAL ' S OWN RISK AND PERIL .

30 MOREOVER , THE DEFENDANT STATES THAT HAVING RECEIVED BY LETTER FROM THE BELGIAN MINISTRY FOR FOREIGN AFFAIRS DATED 26 SEPTEMBER 1974 TWO COPIES OF A WRIT OF SUMMONS ADDRESSED TO THE APPLICANT IT ATTEMPTED ON NUMEROUS OCCASIONS DURING THE DAYS FOLLOWING TO INFORM THE PERSON CONCERNED BY TELEPHONING HIS OFFICE .

31 AS THE APPLICANT DID NOT REPLY AND AS NO MEDICAL CERTIFICATE HAD BEEN SUBMITTED TO THE ADMINISTRATION THE DEPARTMENT RESPONSIBLE FOR TRANSMISSION OF THE LEGAL DOCUMENT CONCLUDED THAT THE APPLICANT WAS ABSENT FROM WORK WITHOUT AUTHORIZATION .

32 FURTHERMORE , THE DEPARTMENT CONCERNED , WHICH HAD NOT BEEN INFORMED OF THE SUBMISSION OF A MEDICAL CERTIFICATE ON 10 OCTOBER 1974 , WHICH CERTIFICATE WAS DATED 7 OCTOBER AND STATED THAT THE APPLICANT ' S INCAPACITY FOR WORK WAS TO BE PROLONGED UNTIL THE 13TH OF THAT MONTH , RETURNED THE LEGAL DOCUMENT IN QUESTION TO THE BELGIAN MINISTRY FOR FOREIGN AFFAIRS ON 10 OCTOBER 1974 .

33 BY A LETTER OF 24 OCTOBER WHICH REACHED THE COMMISSION ON THE FOLLOWING DAY THE BELGIAN MINISTRY FOR FOREIGN AFFAIRS AGAIN REQUESTED THE COMMISSION TO TAKE THE STEPS NECESSARY TO TRANSMIT TO THE APPLICANT THE WRIT OF SUMMONS IN QUESTION .

34 THIS WRIT WAS FINALLY SERVED ON THE APPLICANT ON 4 NOVEMBER 1974 AS THE DEPARTMENT RESPONSIBLE FOR DELIVERING THE LEGAL DOCUMENT WAS ONLY BELATEDLY INFORMED OF THE SUBMISSION OF THE ABOVEMENTIONED MEDICAL CERTIFICATE .

35 WHILST IT IS TRUE THAT THERE IS NO PROVISION OF COMMUNITY LAW WHICH IMPOSES ON THE COMMISSION RESPONSIBILITY FOR TRANSMISSION OF LEGAL DOCUMENTS ADDRESSED TO ITS OFFICIALS WHICH ARE TRANSMITTED TO IT BY THE BELGIAN NATIONAL AUTHORITIES , NEVERTHELESS ONCE IT HAS AGREED TO UNDERTAKE SUCH TRANSMISSION THE COMMISSION MUST MAKE EVERY EFFORT TO ENSURE THAT THE DOCUMENT IN QUESTION IS DELIVERED AS SOON AS POSSIBLE TO THE PERSON TO WHOM IT IS ADDRESSED OR , IF SUCH DELIVERY IS NOT POSSIBLE , THAT IT IS RETURNED TO THE NATIONAL AUTHORITIES IN SUFFICIENT TIME TO ALLOW THEM TO EXAMINE OTHER METHODS OF DELIVERY .

36 THE FACT THAT AT THE TIME WHEN THE LEGAL DOCUMENT IS TO BE DELIVERED TO HIM THE OFFICIAL IS ABSENT FROM WORK WITHOUT AUTHORIZATION MAY JUSTIFY THE APPLICATION OF DISCIPLINARY MEASURES REQUIRED IN THE CONTEXT OF THE STAFF REGULATIONS BUT IT CANNOT RELEASE THE COMMISSION FROM THE DUTY TO MAKE EVERY EFFORT TO DELIVER THE LEGAL DOCUMENT ENTRUSTED TO IT TO THE OFFICIAL CONCERNED , WHERE NECESSARY BY SENDING THE DOCUMENT TO THE PRIVATE RESIDENCE OF THE PERSON CONCERNED OR TO ANY OTHER ADDRESS NOTIFIED TO IT BY THE LATTER .

37 IN THE PRESENT CASE , AS THE COMMISSION FAILED TO EFFECT SUCH NOTIFICATION ITS CONDUCT APPEARS TO CONSTITUTE A WRONGFUL ACT OR OMISSION SUCH AS TO RENDER IT LIABLE FOR ANY DAMAGE CAUSED TO THE APPLICANT .

38 IT IS COMMON GROUND THAT DUE TO THE BELATED TRANSMISSION OF THE ABOVEMENTIONED WRIT , JUDGMENT IN DEFAULT WAS DELIVERED BY THE JUGE DE PAIX , UCCLE , AGAINST THE APPLICANT .

39 NEVERTHELESS , THE EXISTENCE OF MATERIAL DAMAGE HAS NOT BEEN ESTABLISHED .

40 THE SAME APPLIES TO THE ALLEGED NON-MATERIAL DAMAGE , AS THE APPLICANT ' S REPUTATION WAS IN NO WAY PREJUDICED BY THE COMMISSION ' S CONDUCT , IN PARTICULAR AS HE FINALLY ACKNOWLEDGED THE DEBT FOR THE PAYMENT OF WHICH HE HAD BEEN SUMMONED BEFORE THE JUGE DE PAIX , UCCLE .

41 THE APPLICATION MUST THEREFORE BE DISMISSED .

COSTS

42 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

43 THE APPLICANT HAS FAILED IN HIS APPLICATION .

44 HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , IN PROCEEDINGS INSTITUTED BY SERVANTS OF THE COMMUNITIES , INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .