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either in the currency of the Member State of which he is a national;

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or in the currency of the Member State in which either his own domicile or the place of residence of a dependent relative is located;

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or in the currency of his previous country of employment or of the country in which his institution has its seat, provided that the official in question has been assigned to a post outside the territory of the European Communities;

(a)

As a matter of principle, the Council takes the view that in so far as the application is for a declaratory judgment it must be held to be inadmissible because there is no provision for such a procedure in the Community law on staff matters.

In my view this is not a suitable case for deciding that particular point. It is evident that the applicant's only concern is to be granted a legal advantage (the adoption of an administrative measure benefiting him) on the basis of the abovementioned provision of the Staff Regulations. For that purpose an official in his position is required to submit a request under Article 90 of the Staff Regulations; if it is rejected he must then lodge a complaint, and if that is rejected he may bring an action before the Court of Justice provided that he does so within three months.

The applicant began that process by submitting a request on 6 January 1982, and on 8 February 1982 he wrote a complaint in response to its rejection. The only question at issue is therefore what was the ultimate fate of that complaint and whether the applicant took the right action after that rejection as regards the commencement of proceedings before this Court. If he did not — and I shall be addressing that question presently — then he could certainly not seek to resolve the legal issue he has raised by means of a request for a declaratory judgment, which would amount to a device for circumventing the time-limits laid down for such actions by the Staff Regulations.

(b)

It is common ground that following the rejection of his request the applicant lodged a complaint dated 8 February 1982 in due time. However, the Council takes the view that the complaint had already been rejected by Decision No 211/82 of 23 March 1982. That decision confirmed the decision of 29 January 1982 which had formed the subjectmatter of the applicant's complaint. Therefore the application had to be lodged within three months (in addition to the extension on account of distance for Belgium), that is to say, before the end of June 1982.

It contends that even if the decision of 23 March is not regarded as a decision on the applicant's complaint, the latter must in any event be regarded as having been impliedly rejected on 9 June 1982 (Article 90 (2), last sentence). If that is the case, however, the application should have been lodged at the latest, having regard to the extension on account of distance for Belgium, on 11 September 1982. Thus it is established that the application lodged on 21 September 1982 was in either event out of time.

It is true that in one place that decision refers quite generally to Article 17 of Annex VII to the Staff Regulations. However, the fact that the decision was taken with reference to Article 17 (2) (c) is made clear by the reference to Article 5 of the rules for implementing Article 17 (which refers to Article 17 (2) (c) alone), by the stress on the fact that the authorization of transfers was made ‘à titre tout à fait exceptionnel’ (echoing the language of Article 17 (2) (c) of Annex VII), and by the limitation of the effect of the decision to a period of one year, which would have been incomprehensible if the decision had been taken under Article 17 (2) (b), in view of the unexpired period of repayment of about 10 years which still remained.

In any event that is also the way in which the applicant interpreted the decision at the time, as is apparent from his memorandum of 29 May 1982. He points out in that memorandum that Article 5 of the rules for implementing Article 17, to which the decision refers, relates to subparagraph (c), and continues: ‘je persiste de mon côté à penser que ma demande répond pleinement aux critères de la même disposition sous (b), de sorte qu'à mon avis aussi le seul paragraphe (b) aurait pu être appliqué’ [for my part I remain of the belief that my request fully satisfies the criteria of subparagraph (b) of that provision, so that in my opinion only subparagraph (b) was applicable]. In addition he mentions that he expects that Article 6 of the implementing rules will be applied to him by analogy, in other words, he sees that that provision is not directly relevant precisely because it refers only to transfers under Article 17 (2) (a) and (b).

There are therefore compelling reasons for concluding that the question whether the applicant was eligible for application of Article 17 (2) (b) of Annex VII to the Staff Regulations could only be resolved in proceedings brought before the Court at the latest three months after the adoption of Decision No 211/82 of 23 March 1982, and that a complaint submitted in September 1982 could not be used for that purpose.

Even if it is conceded in favour of the applicant that Decision No 211/82 of 23 March 1982 did not contain a rejection of his complaint of 8 February 1982, that complaint was rejected by implied decision at the latest on 9 June 1982 by effluxion of time (last sentence of Article 90 (2) of the Staff Regulations). In that case the period within which proceedings must be brought expired on 11 September 1982. The application lodged on 21 September is therefore out of time on that basis as well.

Decision No 629/82 of 18 June 1982 cannot be regarded in any event as a decision on the applicant's complaint of 8 February 1982.

Nor is there any case for saying that Decision No 629/82 made it possible to apply Article 91 (3) of the Staff Regulations, which provides:

‘... nevertheless, where a complaint is rejected by express decision after being rejected by implied decision but before the period for lodging an appeal has expired, the period for lodging the appeal shall start to run afresh.’

That argument fails for the simple reason that the aforementioned decision nowhere contains an express rejection of the complaint relating to the application of Article 17 (2) (b) of Annex VII to the Staff Regulations, but — if we leave aside point 2 of that decision and the authorization it contains — only provides for the withdrawal of the authorization in Decision No 211/82 (which was based on Article 17 (2) (c)).

Another consideration arises from the applicant's attempt in these proceedings to give Decision No 211/82 a different interpretation from the one he gave it in his memorandum of 29 May 1982. As far as the Council was concerned (as is clear at least from the memorandum dated 26 July 1982, although there are other grounds for that view), Decision No 211/82 was adopted as a provisional measure to compensate for the measures adopted in Belgium in December 1981 in relation to currency convertibility. The applicant, however, maintains that that was unnecessary because for the purpose of meeting obligations to pay fixed instalments in a foreign currency it would also have been possible for him to be given authorization for more than 25% of his salary in Belgian francs to be transferred by a Belgian bank at the controlled rate (a possibility of which he himself had taken advantage, to the knowledge of the Council's administration, on 9 March 1983). He adds that in any event it was not appropriate in his case to have recourse to Article 17 (2) (c) since that provision envisages only isolated transfers (whereas the applicant had standing commitments) and because it would not have permitted a transfer by an official of Netherlands nationality in German marks. Furthermore, in view of the fact that such a departure from the provisions of the Staff Regulations could not have been justified on grounds of urgency (the effect of the aforementioned Belgian measures could have been obviated in another way, by payments in convertible francs), and the fact that only Article 17 (2) (b) entitled the applicant to have transfers made in German marks, the only conclusion to be drawn is that Decision No 211/82 was in fact based on subparagraph (b) and that for that reason it did not contain an implied rejection of his complaint. Notwithstanding those arguments, it must be said that the facts I have stated above place it beyond doubt that Decision No 211/82 was actually based on Article 17 (2) (c). Similarly, it is certain — and here I agree with the Council — that whether Article 17 (2) (c) could have been applied in the applicant's favour is not significant for the purposes of determining the admissibility of an application based on Article 17 (2) (b). The only relevant point is that that provision was intended and that it was thereby made clear that an application of Article 17 (2) (b) could not be considered in the applicant's case.

Finally, it is also clear from this that the applicant cannot argue that his action is admissible on the basis of the judgment in Case 54/77 ( 1 ) (the judgment states that where the decision initially complained of has been amended the period for lodging an application is extended and begins to run only after a reasoned and definitive decision on the applicant's claim). In that case, which related to the withdrawal of an expatriation allowance, the original negative decision was subsequently amended by the grant of a differential allowance ad personam so that it was in fact possible to say that the decision to withdraw the expatriation allowance had been reconsidered. In this case, however, the facts are different because Decision No 211/82 did nothing to alter the refusal of the request based on Article 17 (2) (b) but instead confirmed it and confined itself by the same token to the adoption of another measure under Article 17 (2) (c), which was in turn rescinded by Decision No 629/82. In the light of that it is difficult to maintain that the time-limit for challenging the refusal of the request based on Article 17 (2) (b) should be calculated from the adoption of Decision No 629/82, which did not express a position on the applicant's actual request.

(c)

Therefore the only conclusion to be drawn with regard to the question whether the applicant was entitled to have Article 17 (2) (b) of Annex VII to the Staff Regulations applied to him from 15 February 1982 is that his application of 21 September 1982 is out of time. For that reason the applicant's claim for the annulment of the rejection of his complaint of 9 February 1982, his claim for a declaratory judgment and his claim for damages in so far as it relates to compensation for the failure to apply Article 17 (2) (b) in his case in February and March 1982 must all be dismissed on grounds of inadmissibility.

(a)

With regard to the first point the applicant seeks to justify his position on two grounds. In the first place he states that a further complaint was not necessary because Decision No 629/82 expressed the Council's definitive position on the application of Article 17 (2) (b) of Annex VII to the Staff Regulations and thereby confirmed the refusal on 29 January 1982 of the applicant's request for the application of that provision, against which he had already lodged a complaint. In the second place, he takes the view that if nevertheless a complaint is held to be necessary, it will be found in the abovementioned memoranda which had been sent to the Secretary-General of the Council by a colleague of the applicant on 25 June 1982 and to the Director-General of the Legal Department by the applicant himself on 30 June 1982.

In my view neither of those arguments carries conviction.

In addition it is significant that, strictly speaking, those memoranda do not relate to the content of Decision No 629/82, so that they cannot be regarded as complaints against that decision. The same applies unequivocally to the memorandum from the applicant's colleague. It states in essence that the applicant's obligations in German marks are covered by Article 17 (2) (b) of Annex VII to the Staff Regulations, and goes on to request that a ‘réponse complète’ [comprehensive reply] be given to the applicant's claims based on that provision. It does not, however, contain any specific criticism of the position adopted in Decision No 629/82 (withdrawal of the authorization of transfers under Article 17 (2) (c)). The same clearly applies to the applicant's memorandum. It, too, states in essence that because he has obligations in German marks the conditions of Article 17 (2) (b) are fulfilled, adding that his request and the ensuing complaint under that provision never received a satisfactory reply (but that, as has already been said, was not the subject of Decision No 629/82). If nevertheless it is maintained — without any further evidence — that Decision No 629/82 contains a contradictory statement of reasons and frustrates the applicant's legitimate expectations, then it would be right to ask whether such statements, together with the request to reconsider the decision, satisfy the criteria for a complaint.

(b)

Furthermore, it seems to me that there is merit in the Council's argument regarding the applicant's interest in bringing proceedings in connection with Decision No 629/82.

Here again it should be borne in mind that that decision also granted the applicant an authorization (clearly based on Article 17 (2) (b) of Annex VII to the Staff Regulations and Article 2 of the rules for implementing Article 17) to have 35% of his salary transferred, and that the applicant availed himself of that facility in connection with a building loan agreement concluded with the BHW. It is also relevant that under Article 3 of those rules regular transfers out of salaries may not exceed 35%. If the decision were to be annulled solely in respect of the rescission of Decision No 211/82, that would revive the authorization of transfers of DM 2000 for at most one year. However, that could not be put into practice for the simple reason that the applicant has availed himself of the authorization to make transfers contained in Decision No 629/82 and has thereby exhausted his legal rights. Therefore it is impossible to see in point of fact what his interest might be in the annulment of Decision No 629/82 solely in so far as it rescinded Decision No 211/82. Above all it would surely be impossible for sums already transferred to the BHW to be retrospectively withdrawn in part and paid into an account with the bank with which the applicant has repayment obligations under a loan agreement (although it is clear that this part of the application is solely intended to ensure that if the application succeeds as a whole the applicant will be able to reduce the amount of his loan with the BHW for the future in order to be able to meet his other loan commitments by means of transfers under Article 17 (2) (b)).

(c)

Finally, the same reasoning makes it clear how the applicant's claim for damages, in so far as it relates to the period after July 1982, should be determined. Since Decision No 629/82 authorized the applicant to make transfers of a part of his salary up to the maximum amount permitted by Article 17 (2) (b), and since he has made use of that authorization, it is impossible to see in what way he may be adversely affected by the way in which his original request under Article 17 (2) (b) was dealt with. At all events he has not provided sufficient evidence that an authorization of transfers for bank loan repayments would place him in a better position than his savings contract with the BHW, and in particular he has not made it clear in what way the treatment of his various claims by the Council could constitute a wrongful act or omission by the administration, which is what he is required to show in a claim for damages. Therefore his claim for damages must be held to be inadmissible, if only on the ground of insufficient evidence.