61978J0219

IN CASE 219/78

HANS MICHAELIS , AN HONORARY DIRECTOR GENERAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING IN COLOGNE , REPRESENTED BY V . BIEL , ADVOCATE OF THE LUXEMBOURG BAR , 18A RUE DES GLACIS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID V . BIEL ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY R . BAEYENS , PRINCIPAL LEGAL ADVISER , ACTING AS AGENT , ASSISTED BY V . WIEME , ADVOCATE OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF M . CERVINO , LEGAL ADVISER TO THE COMMISSION , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF THE PARTIAL REJECTION BY THE COMMISSION OF THE COMPLAINT SUBMITTED BY THE APPLICANT SEEKING THE APPLICATION TO HIS RETIREMENT PENSION WITH EFFECT FROM THE DATE OF HIS RETIREMENT OF THE WEIGHTING FIXED FOR BELGIUM ,

1 THE APPLICATION , WHICH WAS RECEIVED AT THE COURT REGISTRY ON 2 OCTOBER 1978 , CLAIMS THE ANNULMENT OF THE PARTIAL REJECTION BY THE COMMISSION OF THE COMPLAINT SUBMITTED ON 6 DECEMBER 1977 BY THE APPLICANT SEEKING THE APPLICATION WITH RETROACTIVE EFFECT FOR THE PERIOD UNTIL 1 JANUARY 1977 OF THE WEIGHTING FOR BELGIUM TO HIS RETIREMENT PENSION .

2 THE APPLICANT , AN HONORARY DIRECTOR GENERAL AT THE COMMISSION , RETIRED WITH EFFECT FROM 1 SEPTEMBER 1974 . UPON BEING REQUESTED TO FURNISH ALL THE INFORMATION NECESSARY FOR DETERMINING HIS PENSION RIGHTS HE COMPLETED ON 1 AUGUST 1974 A QUESTIONNAIRE IN WHICH HE CERTIFIED INTER ALIA THAT HIS PLACE OF RESIDENCE WAS VALLENDAR IN THE FEDERAL REPUBLIC OF GERMANY . INSTEAD OF GIVING THE DATE FROM WHICH THAT CHOICE WAS TO TAKE EFFECT , AS WAS REQUIRED BY THE QUESTIONNAIRE , HE MERELY MENTIONED THAT ' ' THE EXACT TIME . . . IS UNDER DISCUSSION WITH THE DIRECTOR OF PERSONNEL IX A 4 ' ' . THE APPLICANT INTENDED THEREBY TO REFER TO A CLAIM FOR PAYMENT OF AN ALLOWANCE IN RESPECT OF HIS RESETTLEMENT IN THE FEDERAL REPUBLIC OF GERMANY , WHICH HE HAD SUBMITTED PURSUANT TO ARTICLE 6 ( 4 ) OF ANNEX VII TO THE STAFF REGULATIONS OF OFFICIALS . THAT CLAIM HAD BEEN REFUSED BY A LETTER OF 20 JUNE 1974 ON THE GROUNDS THAT THE APPLICANT HAD FAILED TO FURNISH PROOF OF HIS RESETTLEMENT IN VALLENDAR AND THAT HIS HOME WAS STILL IN BRUSSELS WHERE HE CONTINUED TO WORK AS AN ADVISER TO THE COMMISSION . THE APPLICANT MAINTAINS THAT THAT LETTER DID NOT COME TO HIS NOTICE UNTIL AUGUST 1974 .

3 ON THE BASIS OF THE APPLICANT ' S DECLARATION OF 1 AUGUST 1974 THE DEFENDANT INSTITUTION APPLIED TO HIS RETIREMENT PENSION THE WEIGHTING FOR THE FEDERAL REPUBLIC OF GERMANY . A DETAILED STATEMENT OF THE CALCULATION OF HIS PENSION WAS COMMUNICATED TO THE APPLICANT ON 5 SEPTEMBER 1974 .

4 IN HIS DECLARATION OF 26 JANUARY 1976 CONCERNING HIS FAMILY CIRCUMSTANCES THE APPLICANT GAVE TWO ADDRESSES FOR HIS PLACE OF RESIDENCE : BRUSSELS AND VALLENDAR . HOWEVER , IN THE FOLLOWING YEAR HE STATED IN HIS DECLARATION OF 29 JANUARY 1977 THAT HIS SOLE PLACE OF RESIDENCE WAS AT HIS ADDRESS IN BRUSSELS AND THAT CORRESPONDENCE SHOULD BE SENT TO THAT ADDRESS .

5 IN RESPONSE TO THE CLAIM OF THE APPLICANT DATED 11 SEPTEMBER 1977 THE DEFENDANT INSTITUTION AGREED TO APPLY TO HIS RETIREMENT PENSION , WITH EFFECT FROM 1 SEPTEMBER 1977 , THE WEIGHTING FIXED FOR BELGIUM . THE DEFENDANT INSTITUTION NEVERTHELESS REFUSED TO COMPLY WITH THE APPLICANT ' S CLAIM , SUBMITTED ON 26 SEPTEMBER 1977 , TO HAVE THAT WEIGHTING APPLIED WITH RETROACTIVE EFFECT FROM 1 SEPTEMBER 1974 . FOLLOWING THE SUBMISSION OF A COMPLAINT BY THE APPLICANT ON 6 DECEMBER 1977 THE DEFENDANT INSTITUTION ON THE OTHER HAND AGREED TO GRANT HIM , WITH EFFECT FROM 1 JANUARY 1977 , THE APPLICATION OF THE WEIGHTING FOR BELGIUM ON THE BASIS OF THE DECLARATION WHICH HE HAD MADE ON 29 JANUARY 1977 , WHICH GAVE HIS BRUSSELS ADDRESS AS HIS SOLE PLACE OF RESIDENCE .

6 THE APPLICANT INITIATED THE PRESENT PROCEEDINGS IN ORDER TO ESTABLISH HIS RIGHT TO THE RETROACTIVE APPLICATION FOR THE PERIOD FROM 1 SEPTEMBER 1974 TO 31 DECEMBER 1976 OF THE WEIGHTING FIXED FOR BELGIUM . THE APPLICATION IS BASED ON THE SECOND SUBPARAGRAPH OF ARTICLE 82 ( 1 ) OF THE STAFF REGULATIONS , WHICH PROVIDES THAT PENSIONS SHALL BE WEIGHTED FOR THE COUNTRY OF THE COMMUNITIES WHERE THE PERSON ENTITLED TO THE PENSION DECLARES HIS HOME TO BE , AND ON ARTICLE 41 OF ANNEX VIII TO THE STAFF REGUALTIONS WHICH PROVIDES THAT ' ' THE AMOUNT OF PENSION MAY AT ANY TIME BE CALCULATED AFRESH IF THERE HAS BEEN ERROR OR OMISSION OF ANY KIND ' ' .

7 ACCORDING TO THE APPLICANT THE ADMINISTRATION HAS ERRED IN APPLYING THE WEIGHTING FIXED FOR THE FEDERAL REPUBLIC OF GERMANY . HAVING REGARD TO THE GROUNDS UPON WHICH IT RELIED IN REJECTING HIS CLAIM FOR THE RESETTLEMENT ALLOWANCE THE DEFENDANT INSTITUTION COULD NOT HAVE BEEN UNAWARE OF THE FACT THAT THE APPLICANT HAD RETAINED HIS HOME IN BRUSSELS , TO WHICH FURTHERMORE IT CONTINUED TO ADDRESS CORRESPONDENCE TO HIM . THAT ERROR BY THE ADMINISTRATION LED TO UNJUSTIFIED ENRICHMENT ON ITS PART WHICH ENTITLES THE APPLICANT TO CLAIM PAYMENT OF THE SUMS IMPROPERLY RETAINED BY IT . THE APPLICANT CLAIMS THAT THIS SOLUTION MUST PREVAIL BY ANALOGY WITH THAT PROVIDED IN FAVOUR OF THE ADMINISTRATION BY ARTICLE 85 OF THE STAFF REGULATIONS WHICH AUTHORIZES IT TO CLAIM , ON CERTAIN CONDITIONS BUT WITHOUT ANY LIMIT AS TO TIME , THE REIMBURSEMENT OF SUMS UNDULY PAID TO OFFICIALS .

8 THE COURT CANNOT UPHOLD THAT VIEW . IT IS CLEAR FROM THE SECOND SUBPARAGRAPH OF ARTICLE 82 ( 1 ) OF THE STAFF REGULATIONS THAT THE WEIGHTING IS FIXED IN RELATION TO THE COUNTRY OF THE COMMUNITIES IN WHICH THE PERSON CONCERNED ' ' DECLARES HIS HOME TO BE ' ' . IT IS COMMON GROUND THAT THE APPLICANT , AFTER BEING DULY INFORMED OF THE FACTORS TO BE TAKEN INTO ACCOUNT IN CALCULATING HIS PENSION , DECLARED IN THE QUESTIONNAIRE OF 1 AUGUST 1974 THAT HE RESIDED IN VALLENDAR IN THE FEDERAL REPUBLIC OF GERMANY . ON THE BASIS OF THAT DECLARATION THE DEFENDANT INSTITUTION DREW UP A DETAILED STATEMENT OF THE CALCULATION OF THE APPLICANT ' S PENSION RIGHTS WHICH IT COMMUNICATED TO HIM ON 5 SEPTEMBER 1974 AND WHICH ELICITED NOT THE SLIGHTEST REACTION FROM HIM . IN FACT THE APPLICANT AT NO TIME DURING THE PERIOD IN QUESTION INDICATED TO THE ADMINISTRATION THAT A HOME ADDRESS OTHER THAN THAT MENTIONED IN THE DECLARATION OF 1 AUGUST 1974 SHOULD HAVE BEEN TAKEN AS THE BASIS FOR THE CALCULATION OF HIS PENSION RIGHTS . THE DEFENDANT INSTITUTION CANNOT ACCORDINGLY BE HELD TO HAVE COMMITTED AN ERROR IN ESTABLISHING THE WEIGHTING SINCE ITS CONDUCT IN THIS MATTER WAS BASED ON THE STATEMENTS OF THE APPLICANT HIMSELF IN ACCORDANCE WITH THE PROVISIONS OF THE SECOND SUBPARAGRAPH OF ARTICLE 82 ( 1 ) OF THE STAFF REGULATIONS . IT SHOULD BE NOTED THAT WHEN THE APPLICANT REQUESTED ON 11 SEPTEMBER 1977 THAT THE ADMINISTRATION SHOULD AMEND THE WEIGHTING IT DID SO IMMEDIATELY WITH EFFECT FROM 1 SEPTEMBER 1977 AND INDEED SUBSEQUENTLY AGREED TO APPLY THAT AMENDMENT WITH EFFECT FROM 1 JANUARY 1977 ON THE BASIS OF THE DECLARATION WHICH HE HAD MADE ON 29 JANUARY 1977 .

9 IT MUST ACCORDINGLY BE FOUND , WITHOUT ITS BEING NECESSARY TO CONSIDER THE QUESTION OF THE ADMISSIBILITY OF THE APPLICATION , THAT THE LATTER MUST IN ANY CASE BE DISMISSED AS MANIFESTLY UNFOUNDED .

COSTS

10 PURSUANT TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO BEAR THE COSTS . NEVERTHELESS , PURSUANT TO ARTICLE 70 OF THE RULES OF PROCEDURE THE INSTITUTIONS SHALL BEAR THE COSTS WHICH THEY HAVE INCURRED IN PROCEEDINGS COMMENCED AGAINST THEM BY OFFICIALS OF THE COMMUNITIES .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .