61979J0147

1 . OFFICIALS - APPLICATIONS TO THE COURT - ACT ADVERSELY AFFECTING AN OFFICIAL - GENERAL PROVISION TO BE IMPLEMENTED BY MEANS OF INDIVIDUAL DECISIONS - NON-APPLICATION TO A PARTICULAR CASE

( STAFF REGULATIONS , ARTS 90 AND 91 )

2 . COMMUNITY LAW - PRINCIPLES - EQUAL TREATMENT - CONCEPT

3 . OFFICIALS - REMUNERATION - FOREIGN RESIDENCE ALLOWANCE - CONDITIONS FOR GRANT - NATIONALITY SOLE CRITERION - BREACH OF THE PRINCIPLE OF EQUAL TREATMENT - NONE

( STAFF REGULATIONS , ANNEX VII , ART . 4 ( 2 ))

1 . SINCE ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS PROVIDES THAT ANY PERSON TO WHOM THE STAFF REGULATIONS APPLY MAY SUBMIT TO THE APPOINTING AUTHORITY A REQUEST THAT IT TAKE A DECISION RELATING TO HIM , IT IS THE EXPRESS OR IMPLIED DECISION REJECTING IT WHICH OPENS THE WAY TO A COMPLAINT THROUGH OFFICIAL CHANNELS UNDER ARTICLE 90 ( 2 ) OF THE REGULATIONS . THEREFORE , IN THE CASE OF AN ACT WHICH IS GENERAL IN NATURE AND WHICH IS INTENDED TO BE IMPLEMENTED BY MEANS OF A SERIES OF INDIVIDUAL DECISIONS AFFECTING MANY OFFICIALS IN AN INSTITUTION , THE NON-APPLICATION OF THAT GENERAL MEASURE TO A PARTICULAR CASE CANNOT BE CONSIDERED AS A DECISION , EVEN IMPLIED , REJECTING A REQUEST OF THE KIND ENVISAGED BY ARTICLE 90 ( 1 ).

2 . THE GENERAL PRINCIPLE OF EQUALITY , OF WHICH THE PROHIBITION OF DISCRIMINATION ON GROUNDS OF NATIONALITY IS MERELY A SPECIFIC EXPRESSION , IS ONE OF THE FUNDAMENTAL PRINCIPLES OF COMMUNITY LAW . THE PRINCIPLE REQUIRES THAT COMPARABLE SITUATIONS SHOULD NOT BE TREATED DIFFERENTLY UNLESS SUCH DIFFERENTIATION IS OBJECTIVELY JUSTIFIED .

3 . IN RESTRICTING THE FOREIGN RESIDENCE ALLOWANCE TO OFFICIALS WHO ARE NOT AND NEVER HAVE BEEN NATIONALS OF THE STATE IN WHOSE TERRITORY THEY ARE EMPLOYED AND WHO DO NOT RECEIVE THE EXPATRI ATION ALLOWANCE ARTICLE 4 ( 2 ) OF ANNEX VII TO THE STAFF REGULATION ( INSERTED BY ARTICLE 21 ( 2 ) OF REGULATION NO 912/78 ) DOES NOT OFFEND AGAINST THE GENERAL PRINCIPLE OF EQUALITY . AS THE FOREIGN RESIDENCE ALLOWANCE IS INTENDED TO COMPENSATE FOR THE DISADVANTAGES WHICH OFFICIALS UNDERGO AS A RESULT OF THEIR STATUS AS ALIENS , THE COMMUNITY LEGISLATURE WAS ENTITLED , IN APPLYING ITS DISCRETIONARY JUDGMENT TO THAT SITUATION , TO RELY ON THE SINGLE CRITERION OF NATIONALITY , WHICH IS UNIFORM , OBJECTIVE AND DIRECTLY RELATED TO THE PURPOSE OF THE RULES .

ALTHOUGH IN BORDER-LINE CASES FORTUITOUS PROBLEMS MUST ARISE FROM THE INTRODUCTION OF ANY GENERAL AND ABSTRACT SYSTEM OF RULES , THERE ARE NO GROUNDS FOR TAKING EXCEPTION TO THE FACT THAT THE LEGISLATURE HAS RESORTED TO CATEGORIZATION , PROVIDED THAT IT IS NOT IN ESSENCE DISCRIMINATORY HAVING REGARD TO THE OBJECTIVE WHICH IT PURSUES .

IN CASE 147/79

RENE HOCHSTRASS , AN OFFICIAL OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES , RESIDING IN SENNINGERBERG , REPRESENTED BY G . VANDERSANDEN OF THE BRUSSELS BAR , AND WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT , RUE PHILIPPE-II , BOITE POSTALE 39 , LUXEMBOURG ,

APPLICANT ,

V

COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES , REPRESENTED BY THE REGISTRAR OF THE COURT OF JUSTICE , ALBERT VAN HOUTTE , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE COURT , PLATEAU DU KIRCHBERG ,

DEFENDANT ,

SUPPORTED BY

COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY D . G . GORDON-SMITH , ASSISTANT DIRECTOR-GENERAL OF THE LEGAL DEPARTMENT OF THE COUNCIL , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF D . FONTEIN , DIRECTOR OF THE LEGAL AFFAIRS DIRECTORATE OF THE EUROPEAN INVESTMENT BANK , 2 PLACE DE METZ ,

AND

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY D . SORASIO , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY R . ANDERSEN OF THE BRUSSELS BAR , WITH A ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF M . CERVINO , LEGAL ADVISER TO THE COMMISSION , JEAN MONNET BUILDING , KIRCHBERG ,

INTERVENERS ,

APPLICATION FOR A DECLARATION THAT ARTICLE 4 ( 2 ) OF ANNEX VII TO THE STAFF REGULATIONS , AS AMENDED BY ARTICLE 21 ( 2 ) OF COUNCIL REGULATION NO 912/78 OF 2 MAY 1978 ( OFFICIAL JOURNAL L 119 , P . 1 ), ON THE RULES FOR GRANTING THE FOREIGN RESIDENCE ALLOWANCE IS VOID AND , ACCORDINGLY , FOR THE ANNULMENT OF THE DECISION OF THE PRESIDENT OF THE COURT DATED 22 JUNE 1979 REJECTING THE APPLICANT ' S COMPLAINT ,

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 21 SEPTEMBER 1979 THE APPLICANT BROUGHT AN ACTION FOR A DECLARATION THAT ARTICLE 4 ( 2 ) OF ANNEX VII TO THE STAFF REGULATIONS , AS AMENDED BY ARTICLE 21 ( 2 ) OF COUNCIL REGULATION NO 912/78 OF 2 MAY 1978 ( OFFICIAL JOURNAL L 119 , P . 1 ), IS INVALID . THE PROVISION IN QUESTION IS WORDED AS FOLLOWS : ' ' AN OFFICIAL WHO IS NOT AND NEVER HAS BEEN A NATIONAL OF THE STATE IN WHOSE TERRITORY HE IS EMPLOYED AND WHO DOES NOT FULFIL THE CONDITIONS LAID DOWN IN PARAGRAPH ( 1 ) SHALL BE ENTITLED TO A FOREIGN RESIDENCE ALLOWANCE EQUAL TO ONE QUARTER OF THE EXPATRIATION ALLOWANCE ' ' . ACCORDING TO ARTICLE 4 ( 1 ) TO WHICH THE ABOVE PROVISION REFERS , THE EXPATRIATION ALLOWANCE IS TO BE PAID TO OFFICIALS , AS REFERRED TO ABOVE , WHO ' ' DURING THE FIVE YEARS ENDING SIX MONTHS BEFORE THEY ENTERED THE SERVICE DID NOT HABITUALLY RESIDE OR CARRY ON THEIR MAIN OCCUPATION WITHIN THE EUROPEAN TERRITORY OF THAT STATE . FOR THE PURPOSES OF THIS PROVISION , CIRCUMSTANCES ARISING FROM WORK DONE FOR ANOTHER STATE OR FOR AN INTERNATIONAL ORGANIZATION SHALL NOT BE TAKEN INTO ACCOUNT ' ' . THE APPLICANT FURTHER ASKS THE COURT TO ANNUL THE DECISION OF THE ADMINISTRATION OF THE COURT OF JUSTICE DATED 22 JUNE 1979 REJECTING THE APPLICANT ' S COMPLAINT RELATING TO THE MEMORANDUM FROM THE REGISTRAR OF THE COURT OF 16 JANUARY 1979 REFUSING TO PAY HIM THE FOREIGN RESIDENCE ALLOWANCE REFERRED TO IN THE ABOVE-MENTIONED PROVISION .

ADMISSIBILITY

2 THE DEFENDANT AND THE PARTIES WHICH HAVE INTERVENED IN SUPPORT OF IT , THE COUNCIL AND THE COMMISSION , HAVE RAISED AN OBJECTION OF INADMISSIBILITY BASED ON THE APPLICANT ' S LACK OF INTEREST IN TAKING PROCEEDINGS AND ON HIS FAILURE TO SUBMIT THE COMPLAINT THROUGH OFFICIAL CHANNELS PROVIDED FOR IN ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS WITHIN THE PERIOD PRESCRIBED BY THAT PROVISION . IN FACT , THE DEFENDANT MAINTAINS , WHERE A PROVISION DOES NOT ALLOW THE ADMINISTRATION ANY MARGIN OF DISCRETION THERE ARE NO GROUNDS FOR APPLYING THE PROCEDURE LAID DOWN IN ARTICLE 90 ( 1 ) OF THE REGULATIONS , AS THE DECISION ADVERSELY AFFECTING THE APPLICANT CONSISTS IN THE REFUSAL TO GRANT HIM THE FOREIGN RESIDENCE ALLOWANCE AT THE TIME WHEN THE RELEVANT PROVISION OF THE REGULATION WAS IMPLEMENTED , AN EVENT OF WHICH ALL MEMBERS OF THE STAFF OF THE COURT WERE NOTIFIED ON 10 MAY 1978 .

3 IT SHOULD BE EMPHASIZED THAT ARTICLE 90 ( 1 ) PROVIDES THAT ANY PERSON TO WHOM THE STAFF REGULATIONS APPLY MAY SUBMIT TO THE APPOINTING AUTHORITY A REQUEST THAT IT TAKE A DECISION RELATING TO HIM AND IT IS THE EXPRESS OR IMPLIED DECISION REJECTING IT WHICH OPENS THE WAY TO A COMPLAINT THROUGH OFFICIAL CHANNELS UNDER ARTICLE 90 ( 2 ) OF THE REGULATIONS . THAT TWO-STAGE MACHINERY SET UP BY THE REGULATIONS MEANS THAT , IN THE CASE OF AN ACT WHICH IS GENERAL IN NATURE AND WHICH IS INTENDED TO BE IMPLEMENTED BY MEANS OF A SERIES OF INDIVIDUAL DECISIONS AFFECTING MANY OFFICIALS IN AN INSTITUTION , THE NON-APPLICATION OF THAT GENERAL MEASURE TO A PARTICULAR CASE CANNOT BE CONSIDERED AS A DECISION , EVEN IMPLIED , REJECTING A REQUEST OF THE KIND ENVISAGED BY ARTICLE 90 ( 1 ).

4 ACCORDINGLY , AS THE APPLICANT MADE A COMPLAINT AGAINST THE DECISION REJECTING HIS REQUEST WITHIN THE PERIOD ALLOWED BY THAT PROVISION HIS ACTION IS ADMISSIBLE ON THAT POINT .

5 AS REGARDS THE LACK OF ANY INTEREST IN TAKING PROCEEDINGS , THE INTIMATE CONNEXION BETWEEN THE ARGUMENTS AS TO THE SUBSTANCE OF THE CASE RELIED UPON BY THE APPLICANT , WHICH CHALLENGE DIRECTLY THE VALIDITY OF THE DISPUTED PROVISION , AND THE OBJECTION OF INADMISSIBILITY RAISED BY THE DEFENDANT AND THE INTERVENERS ON ITS BEHALF MAKES IT NECESSARY TO EXAMINE THE SUBSTANCE OF THE CASE DIRECTLY .

SUBSTANCE

6 THE APPLICANT MAINTAINS THAT THE PROVISION IN QUESTION , WHICH REFERS SOLELY AND EXCLUSIVELY TO THE CRITERION OF NATIONALITY FOR GRANTING OR REFUSING THE FOREIGN RESIDENCE ALLOWANCE , IS A BREACH OF THE GENERAL PROHIBITION ON DISCRIMINATION ON GROUNDS OF NATIONALITY WHICH IS DERIVED FROM THE COMMUNITY LEGAL ORDER AND WHICH FINDS EXPRESSION , IN PARTICULAR , IN ARTICLE 7 OF THE EEC TREATY AND IN THE PROVISIONS OF THE STAFF REGULATIONS . THE CRITERION WHICH HAS BEEN ADOPTED FOR GRANTING THE FOREIGN RESIDENCE ALLOWANCE , IT IS ALLEGED , IS NOT AN OBJECTIVE ONE FROM TWO ASPECTS : ON THE ONE HAND , NATIONALITY DOES NOT CONSTITUTE AN OBJECTIVE BASIS FOR DIFFERENTIATION DIRECTLY RELATED TO THE PURPOSE OF THE RULES IN QUESTION , AND ON THE OTHER HAND THE SITUATION OF RECIPIENTS OF THE SAID ALLOWANCE IS NOT OBJECTIVELY DIFFERENT FROM THOSE WHO DO NOT RECEIVE IT . THAT ARGUMENT SHOWS THAT THE ALLEGED DISCRIMINATION DOES NOT LIE IN THE UNEQUAL TREATMENT OF RECIPIENTS OF THE EXPATRIATION ALLOWANCE AND RECIPIENTS OF THE FOREIGN RESIDENCE ALLOWANCE , BUT IN THE INEQUALITY BETWEEN THE LATTER CATEGORY OF OFFICIALS AND THE CATEGORY OF THOSE WHO DO NOT RECEIVE EITHER OF THE TWO ALLOWANCES .

7 ACCORDING TO THE CONSISTENT CASE-LAW OF THE COURT THE GENERAL PRINCIPLE OF EQUALITY , OF WHICH THE PROHIBITION OF DISCRIMINATION ON GROUNDS OF NATIONALITY IS MERELY A SPECIFIC EXPRESSION , IS ONE OF THE FUNDAMENTAL PRINCIPLES OF COMMUNITY LAW . THAT PRINCIPLE REQUIRES THAT COMPARABLE SITUATIONS SHOULD NOT BE TREATED DIFFERENTLY UNLESS SUCH DIFFERENTIATION IS OBJECTIVELY JUSTIFIED . CLEARLY IT REQUIRES THAT EMPLOYEES WHO ARE IN IDENTICAL SITUATIONS SHOULD BE GOVERNED BY THE SAME RULES , BUT IT DOES NOT PREVENT THE COMMUNITY LEGISLATURE FROM TAKING INTO ACCOUNT OBJECTIVE DIFFERENCES IN THE CONDITIONS OR SITUATIONS IN WHICH THOSE CONCERNED ARE PLACED .

8 IN ORDER TO TEST THE VALIDITY OF THE CONTESTED PROVISION IN REGULATION NO 912/78 IT IS THEREFORE NECESSARY TO CONSIDER WHETHER THE SITUATION OF OFFICIALS WHO ARE NOT AND HAVE NEVER BEEN NATIONALS OF THE STATE IN WHOSE TERRITORY THE PLACE WHERE THEY ARE EMPLOYED IS SITUATED HAS OBJECTIVE FEATURES WHICH JUSTIFY TREATMENT DIFFERENT FROM THAT OF OFFICIALS WHO ARE OR HAVE BEEN NATIONALS OF THAT STATE .

9 IT MUST THEREFORE BE ASCERTAINED WHETHER THE FEATURES OF THE SYSTEM INTRODUCED BY REGULATION NO 912/78 HAVE THE EFFECT OF RESTORING THE EQUALITY WHICH THERE MUST BE AMONG OFFICIALS OR , ON THE CONTRARY , GIVE RISE TO INEQUALITY BETWEEN THEM .

10 THE COURT AND THE INTERVENERS POINT OUT THAT OFFICIALS WHO DO NOT HAVE THE NATIONALITY OF THE COUNTRY IN WHICH THEIR PLACE OF EMPLOYMENT IS SITUATED ARE SUBJECT , IRRESPECTIVE OF THE DURATION OF THEIR RESIDENCE IN THAT PLACE , TO A NUMBER OF CONSTRAINTS AND DISADVANTAGES BOTH NON-MATERIAL AND MATERIAL WHICH ARE NOT EXPERIENCED BY NATIONALS OF THAT COUNTRY AND THAT THE PURPOSE AND EFFECT OF THE FOREIGN RESIDENCE ALLOWANCE IS THEREFORE TO COMPENSATE FOR THOSE ADDITIONAL CONSTRAINTS AND TO RESTORE A MEASURE OF EQUALITY BETWEEN ALL THE OFFICIALS IN THE SAME PLACE OF EMPLOYMENT IRRESPECTIVE OF THEIR NATIONALITY .

11 THE APPLICANT COUNTERS THAT ARGUMENT BY CLAIMING THAT THE DISADVANTAGES CONNECTED WITH NATIONALITY AS SUCH ARE , AS FAR AS OFFICIALS OF THE COMMUNITY ARE CONCERNED , NON-EXISTENT OR INSIGNIFICANT , BEING LARGELY COMPENSATED FOR BY THE SYSTEM OF ALLOWANCES AND GRANTS ALREADY GUARANTEED BY THE STAFF REGULATIONS AND IN PARTICULAR BY THE EXPATRIATION ALLOWANCE , AND EVEN IF SUCH DISADVANTAGES WERE TO BE PRESENT TO A SMALL DEGREE THE APPLICANT MAINTAINS THAT THAT SITUATION DOES NOT JUSTIFY THE GRANT OF AN ADDITIONAL COMPENSATORY ALLOWANCE AND CONSIDERS THAT IT WOULD BE BETTER TO INCREASE THE AMOUNT OF THE EXISTING ALLOWANCES TO COMPENSATE FOR THOSE DISADVANTAGES .

12 THE APPLICANT ' S ARGUMENTS MUST BE REJECTED . IT CANNOT BE DENIED THAT AN OFFICIAL WHO HAS NOT AND HAS NEVER HAD THE NATIONALITY OF THE STATE IN WHOSE TERRITORY HIS PLACE OF EMPLOYMENT IS SITUATED MAY BE SUBJECT , BY REASON OF HIS STATUS AS AN ALIEN , TO A NUMBER OF INCONVENIENCES BOTH IN LAW AND IN FACT , OF A CIVIC , FAMILY , EDUCATIONAL , CULTURAL AND POLITICAL NATURE , WHICH THE NATIONALS OF THE COUNTRY DO NOT EXPERIENCE . AS THE FOREIGN RESIDENCE ALLOWANCE IS INTENDED TO COMPENSATE FOR THE DISADVANTAGES WHICH OFFICIALS UNDERGO AS A RESULT OF THEIR STATUS AS ALIENS , THE COMMUNITY LEGISLATURE WAS ENTITLED , IN APPLYING ITS DISCRETIONARY JUDGMENT TO THAT SITUATION , TO RELY ON THE SINGLE CRITERION OF NATIONALITY , WHEREAS IN THE CASE OF THE EXPATRIATION ALLOWANCE , THE OBJECT OF WHICH IS ' ' TO COMPENSATE OFFICIALS FOR THE EXTRA EXPENSE AND INCONVENIENCE OF TAKING UP EMPLOYMENT WITH THE COMMUNITIES AND BEING THEREBY OBLIGED TO CHANGE THEIR RESIDENCE ' ' ( CASE 21/74 AIROLA , PARAGRAPH 8 OF THE DECISION OF 20 FEBRUARY 1975 , ( 1975 ) ECR 221 AT P . 228 ), THE COMMUNITY LEGISLATURE ADOPTED AS THE PRINCIPLE CRITERION THAT OF THE OFFICIAL ' S USUAL PLACE OF RESIDENCE , CONSIDERING NATIONALITY AS OF ONLY SECONDARY IMPORTANCE .

13 WHILST IT IS TRUE THAT OFFICIALS MAY EXPERIENCE THE INCONVENIENCES OF LIVING ABROAD TO VARYING DEGREES , THE CRITERION OF NATIONALITY HAS THE MERIT OF BEING : UNIFORM , APPLYING IN AN IDENTICAL MANNER TO ALL OFFICIALS IRRESPECTIVE OF THE PLACE IN WHICH THEY WORK , OBJECTIVE IN NATURE AND IN ITS UNIVERSALITY HAVING REGARD TO THE AVERAGE EFFECT OF THE INCONVENIENCES ARISING FROM RESIDENCE ABROAD ON THE PERSONAL SITUATION OF THOSE CONCERNED , AND DIRECTLY RELATED TO THE PURPOSE OF THE RULES , NAMELY TO COMPENSATE FOR THE DIFFICULTIES AND DISADVANTAGES ARISING FROM THE STATUS OF AN ALIEN IN THE HOST COUNTRY .

14 ALTHOUGH IN BORDER-LINE CASES FORTUITOUS PROBLEMS MUST ARISE FROM THE INTRODUCTION OF ANY GENERAL AND ABSTRACT SYSTEM OF RULES , THERE ARE NO GROUNDS FOR TAKING EXCEPTION TO THE FACT THAT THE LEGISLATURE HAS RESORTED TO CATEGORIZATION , PROVIDED THAT IT IS NOT IN ESSENCE DISCRIMINATORY HAVING REGARD TO THE OBJECTIVE WHICH IT PURSUES .

15 IT FOLLOWS FROM ALL THOSE CONSIDERATIONS THAT NO FACTOR HAS BEEN DISCLOSED OF SUCH A KIND AS TO AFFECT THE VALIDITY OF THE PROVISION IN POINT 2 OF ARTICLE 21 ( 2 ) OF COUNCIL REGULATION NO 912/78 ; CONSEQUENTLY THERE IS NO GROUND FOR ANNULLING THE DECISION OF THE ADMINISTRATION OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES REJECTING THE APPLICANT ' S COMPLAINT . IN THE CIRCUMSTANCES IT IS NOT NECESSARY TO EXAMINE THE OBJECTION OF INADMISSIBILITY ON THE GROUND OF LACK OF INTEREST IN TAKING PROCEEDINGS .

16 UNDER ARTICLE 70 OF THE RULES OF PROCEDURE THE INSTITUTIONS SHALL BEAR THEIR OWN COSTS IN THE CASE OF ACTIONS BROUGHT BY OFFICIALS AND OTHER SERVANTS OF THE COMMUNITIES .

ON THOSE GROUNDS

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO PAY THEIR OWN COSTS .