61981J0090

OFFICIALS - ACTION - MEASURES HAVING ADVERSE EFFECT - CONCEPT - DECISION REJECTING REQUEST FOR PAYMENT OF INSTALLATION ALLOWANCE

( STAFF REGULATIONS OF OFFICIALS , ARTS . 90 AND 91 )

A MEASURE CAPABLE OF DIRECTLY AFFECTING THE APPLICANT ' S CIRCUMSTANCES TO HIS DETRIMENT SUCH AS A DECISION REFUSING A REQUEST FOR PAYMENT OF THE INSTALLATION ALLOWANCE CONSTITUTES A MEASURE HAVING ADVERSE EFFECT WITHIN THE MEANING OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS .

IN CASE 90/81

MANFRED BURG , AN OFFICIAL OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES , RESIDING IN SCHENGEN , GRAND DUCHY OF LUXEMBOURG , REPRESENTED BY VICTOR BIEL OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS , 18A RUE DES GLACIS ,

APPLICANT ,

V

COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES , REPRESENTED BY FRANCOIS-XAVIER ZWICKERT , DIRECTOR OF ADMINISTRATION , ACTING AS AGENT , ASSISTED BY ALEX BONN OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS , 22 COTE D ' EICH ,

DEFENDANT ,

APPLICATION FOR ANNULMENT OF THE EXPRESS DECISION OF 21 JANUARY 1981 REJECTING THE APPLICANT ' S COMPLAINT AND OF THE DECISION OF THE REGISTRAR OF THE COURT OF 6 NOVEMBER 1980 REFUSING TO GRANT THE APPLICANT THE INSTALLATION ALLOWANCE PROVIDED FOR IN ARTICLE 5 OF ANNEX VII TO THE STAFF REGULATIONS ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 14 APRIL 1981 MR BURG , AN OFFICIAL IN GRADE C 4 AT THE COURT OF JUSTICE , BROUGHT AN ACTION UNDER ARTICLE 90 OF THE STAFF REGULATIONS FOR THE ANNULMENT OF THE DECISION OF THE PRESIDENT OF THE COURT DATED 21 JANUARY 1981 REJECTING THE APPLICANT ' S COMPLAINT , AND FOR THE ANNULMENT OF THE DECISION OF THE REGISTRAR OF THE COURT DATED 6 NOVEMBER 1980 REFUSING TO GRANT THE APPLICANT THE INSTALLATION ALLOWANCE PROVIDED FOR IN ARTICLE 5 OF ANNEX VII TO THE STAFF REGULATIONS .

2 ARTICLE 5 OF ANNEX VII TO THE STAFF REGULATIONS PROVIDES , IN SO FAR AS IS RELEVANT TO THE PRESENT PROCEEDINGS :

' ' ( 1 ) AN INSTALLATION ALLOWANCE EQUAL TO TWO MONTHS ' BASIC SALARY IN THE CASE OF AN OFFICIAL WHO IS ENTITLED TO THE HOUSEHOLD ALLOWANCE OR TO ONE MONTH ' S BASIC SALARY IN OTHER CASES SHALL BE PAID TO AN ESTABLISHED OFFICIAL WHO QUALIFIES FOR EXPATRIATION ALLOWANCE OR WHO FURNISHES EVIDENCE OF HAVING BEEN OBLIGED TO CHANGE HIS PLACE OF RESIDENCE IN ORDER TO COMPLY WITH ARTICLE 20 OF THE STAFF REGULATIONS . ' '

. . .

' ' ( 3)THE INSTALLATION ALLOWANCE SHALL BE PAID ON PRODUCTION OF DOCUMENTS ESTABLISHING THE FACT THAT THE OFFICIAL , TOGETHER WITH HIS FAMILY IF HE IS ENTITLED TO THE HOUSEHOLD ALLOWANCE , HAS SETTLED AT THE PLACE WHERE HE IS EMPLOYED . ' '

3 IT APPEARS THAT THE APPLICANT SATISFIES THE CONDITIONS FOR RECEIVING THE EXPATRIATION ALLOWANCE . WHEN RECRUITED IN 1977 HE WAS LIVING WITH HIS WIFE AND DAUGHTER IN PERL , A MUNICIPALITY SITUATED ON THE GERMAN BANK OF THE MOSELLE . IN 1978 HE REQUESTED THE GRANT OF THE INSTALLATION ALLOWANCE AND PRODUCED IN SUPPORT A RENT-FREE AGREEMENT , DATED 12 NOVEMBER 1978 , FOR THE LETTING OF A ROOM IN SCHENGEN , ON THE LUXEMBOURG BANK OF THE MOSELLE .

4 THAT REQUEST WAS FIRST REFUSED ON 20 DECEMBER 1978 BY THE HEAD OF THE PERSONNEL DEPARTMENT OF THE COURT AND WAS SUBSEQUENTLY THE SUBJECT OF AN EXCHANGE OF LETTERS BETWEEN THE APPLICANT AND THE REGISTRAR .

ADMISSIBILITY

5 THE ADMINISTRATION OF THE COURT MAINTAINS THAT THE APPLICATION IS INADMISSIBLE ON THE GROUND THAT IT IS DIRECTED AGAINST THE DECISION OF 6 NOVEMBER 1980 WHICH MERELY CONFIRMS PREVIOUS DECISIONS OF REJECTION AND IN PARTICULAR THAT CONTAINED IN THE MEMORANDUM OF THE REGISTRAR OF 7 NOVEMBER 1979 .

6 THE APPLICANT CLAIMS ON THE CONTRARY THAT ONLY THE MEMORANDUM OF 6 NOVEMBER 1980 MAY BE CONSIDERED ' ' AS CAPABLE OF HAVING ADVERSE EFFECT AND AS A DECISION WITHIN THE MEANING OF ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS ' ' , SINCE ALL THE PREVIOUS MEMORANDA CONSTITUTED NOTHING MORE THAN LETTERS FORMING PART OF CORRESPONDENCE CONCERNED WITH DISCUSSING THE QUESTION OF EVIDENCE OF THE APPLICANT ' S MOVE FROM PERL TO SCHENGEN . THUS , IN HIS OPINION , THE LETTER FROM THE REGISTRAR OF 7 NOVEMBER 1979 MUST BE CONSIDERED AS A REQUEST TO THE APPLICANT FOR ADDITIONAL EVIDENCE .

7 HAVING REGARD TO THOSE TWO CONFLICTING VIEWS IT IS APPROPRIATE FIRST OF ALL TO DETERMINE THE LEGAL NATURE OF THE MEMORANDUM OF 7 NOVEMBER 1979 .

8 THE REGISTRAR STATES IN THE SECOND AND THIRD PARAGRAPHS OF THAT DOCUMENT :

' ' I REGRET THAT I CANNOT ACCEPT YOUR LINE OF REASONING . . . ' '

' ' . . . I CANNOT ACCEPT YOUR VIEW . . . ' '

AND STATES IN THE LAST PARAGRAPH :

' ' I MUST INFORM YOU THAT ON THE ONE HAND AN AGREEMENT FOR THE LETTING OF A ROOM TWO KILOMETRES FROM YOUR PRESENT RESIDENCE CANNOT CONSTITUTE EVIDENCE OF YOUR ACTUAL SETTLEMENT IN THAT ROOM AND THAT , FURTHER , EVEN IF YOU COULD SHOW THAT YOU HAD MOVED FROM YOUR PLACE OF RESIDENCE , A DISTANCE OF TWO KILOMETRES CANNOT IN ANY EVENT BE REGARDED AS SETTLEMENT IN NEW SURROUNDINGS AS REQUIRED BY THE COURT IN THE CIRCUMSTANCES . ' '

9 SUCH A DOCUMENT CANNOT CONSTITUTE A MEASURE PREPARATORY TO THE ONE HAVING ADVERSE EFFECT SINCE IT IS APPARENT FROM THE LAST PARAGRAPH THAT NOT ONLY DID THE REGISTRAR REJECT THE EVIDENCE PUT FORWARD BY THE APPLICANT BUT STRESSED THAT EVEN IF SUCH EVIDENCE COULD BE VALIDLY ADDUCED THE REQUEST MADE BY THE APPLICANT WOULD NEVERTHELESS HAVE TO BE BE REJECTED FOR REASONS RELATING TO THE SUBSTANCE OF THE CASE .

10 IT FOLLOWS FROM ALL THE EXPRESSIONS USED AND FROM THE RELATIONSHIP BETWEEN THEM THAT THE DOCUMENT IS A MEASURE REFUSING THE REQUEST FOR PAYMENT OF THE INSTALLATION ALLOWANCE AND CONSTITUTES A MEASURE CAPABLE OF DIRECTLY AFFECTING THE APPLICANT ' S CIRCUMSTANCES TO HIS DETRIMENT , AND IS THEREFORE A MEASURE HAVING ADVERSE EFFECT WITHIN THE MEANING OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS . EVEN ASSUMING THAT THE APPLICANT MIGHT STILL HAVE HAD SOME DOUBT AS TO THE LEGAL NATURE OF THAT MEMORANDUM , THAT UNCERTAINTY OUGHT TO HAVE BEEN DISPELLED ONCE AND FOR ALL BY THE MEMORANDUM FROM THE REGISTRAR DATED 29 NOVEMBER 1979 , WHICH REFERRED TO THAT OF 7 NOVEMBER AS A DECISION NOT TO GRANT THE INSTALLATION ALLOWANCE .

11 IN THOSE CIRCUMSTANCES THE APPLICANT IS WRONG IN SEEKING TO SHOW , BY MAINTAINING THAT IN HIS REQUEST OF 3 SEPTEMBER 1980 HE ADDUCED FRESH EVIDENCE OF HIS CHANGE OF RESIDENCE TO SCHENGEN , THAT ONLY THE MEMORANDUM OF 6 NOVEMBER 1980 CONSTITUTES A MEASURE HAVING ADVERSE EFFECT . IN SO FAR AS THE DECISION OF THE REGISTRAR OF 7 NOVEMBER 1979 REJECTED THE APPLICANT ' S REQUEST OF 4 JULY 1979 ON THE GROUND THAT A MOVE INVOLVING A DISTANCE OF TWO KILOMETRES COULD NOT BE CONSIDERED AS ENTAILING SETTLEMENT IN NEW SURROUNDINGS AND THAT THE APPLICANT DID NOT IN HIS REQUEST OF 3 SEPTEMBER 1980 SUBMIT ANY NEW FACTORS ESTABLISHING THE EXISTENCE OF A MOVE DIFFERENT FROM THAT REFERRED TO IN THE PREVIOUS REQUESTS IT APPEARS THAT THE MEMORANDUM OF THE REGISTRAR OF 6 NOVEMBER 1980 IS A MEASURE WHICH SIMPLY CONFIRMS THE PREVIOUS DECISIONS ADOPTED BY THE REGISTRAR AND IN PARTICULAR THAT OF 7 NOVEMBER 1979 .

12 FURTHER IT IS OF LITTLE IMPORTANCE THAT THE LATTER DECISION WAS FOLLOWED BY CORRESPONDENCE BETWEEN THE APPLICANT AND THE DEFENDANT CONCLUDING WITH A LETTER FROM THE PRESIDENT OF THIS COURT DATED 19 JANUARY 1981 INDICATING THAT NOT ONLY WAS THE COMPLAINT INADMISSIBLE BUT IN ANY EVENT UNFOUNDED .

13 IN CONSEQUENCE , SINCE THE APPLICANT DID NOT WITHIN THE PRESCRIBED PERIOD MAKE A COMPLAINT AGAINST THE MEASURE ADVERSELY AFFECTING HIM , NAMELY THE MEMORANDUM OF 7 NOVEMBER 1979 , HIS ACTION , REGISTERED ON 16 APRIL 1981 , DIRECTED AGAINST A PURELY CONFIRMATORY MEASURE MUST BE DECLARED INADMISSIBLE .

COSTS

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

15 HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES , INSTITUTIONS ARE TO BEAR THEIR OWN COSTS .

ON THOSE GROUNDS

THE COURT ( THIRD CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .