61973J0148

++++

1 . ACTS OF AN INSTITUTION - INTERNAL DIRECTIVE - BINDING NATURE

2 . OFFICIALS - REIMBURSEMENT OF EXPENSES - DAILY SUBSISTENCE ALLOWANCE - CONDITIONS OF GRANT

( STAFF REGULATIONS, ANNEX VII, ARTICLE 10 )

1 . ALTHOUGH AN INTERNAL DIRECTIVE HAS NOT THE CHARACTER OF A RULE OF LAW WHICH THE ADMINISTRATION IS BOUND TO OBSERVE, IT NEVERTHELESS SETS FORTH A RULE OF CONDUCT INDICATING THE PRACTICE TO BE FOLLOWED, FROM WHICH THE ADMINISTRATION MAY NOT DEPART WITHOUT GIVING REASONS WHICH HAVE LED IT TO DO SO, SINCE OTHERWISE THE PRINCIPLES OF EQUALITY OF TREATMENT WOULD BE INFRINGED .

2 . DAILY SUBSISTENCE ALLOWANCE IS DUE TO AN OFFICIAL WHO, TO COMPLY WITH THE OBLIGATION TO RESIDE IN THE PLACE WHERE HE IS EMPLOYED, MUST REMOVE TO A RESIDENCE OTHER THAN THAT WHICH HE OCCUPIED PREVIOUSLY, WITHOUT HOWEVER BEING ABLE TO GIVE UP THIS LATTER .

IN CASE 148/73

RAYMOND LOUWAGE AND HIS WIFE MARIE-THERESE LOUWAGE, NEE MORIAME, OFFICIALS OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, OF 51 AVENUE DES MOUFLONS, OVERIJSE, REPRESENTED BY VICTOR BIEL, ADVOCATE OF THE COUR SUPERIEURE DE JUSTICE DU GRAND-DUCHE, 71, RUE DES GLACIS, LUXEMBOURG, IN WHOSE CHAMBERS THEY HAVE CHOSEN THEIR ADDRESS FOR SERVICE, APPLICANTS,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, JOSEPH GRIESMAR, ACTING AS AGENT, HAVING CHOSEN ITS ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, PIERRE LAMOUREUX, 4, BOULEVARD ROYAL, DEFENDANT,

IN THE MATTER OF THE ANNULMENT OF A NOTE FROM THE HEAD OF THE 'INDIVIDUAL RIGHTS AND PREVILEGES' DIVISION OF 25 OCTOBER 1972, RELATING TO REMOVAL EXPENSES, INSTALLATION ALLOWANCE AND DAILY SUBSISTENCE ALLOWANCE OF THE APPLICANTS,

1 BY AN APPLICATION FILED ON 29 JUNE 1973, THE APPLICANTS HAVE ASKED THE COURT TO ANNUL THE DECISIONS CONTAINED IN A NOTE FROM THE HEAD OF THE 'INDIVIDUAL RIGHTS AND PREVILEGES' DIVISION OF 25 OCTOBER 1972, REFUSING TO APPLY FOR THEIR BENEFIT THE PROVISIONS OF ARTICLES 5, 9 AND 10 OF ANNEX VII TO THE STAFF REGULATIONS .

2 DURING THE COURSE OF THE PROCEEDINGS THE APPLICANTS ABANDONED CERTAIN CLAIMS AND OTHERS HAVE BEEN SATISFIED .

3 THE TWO POINTS REMAINING IN DISPUTE CONCERN THE CLAIMS OF THE SECOND APPLICANT TO OBTAIN ON THE ONE HAND, A REFUND OF THE REMOVAL EXPENSES INVOLVED IN HER TRANSFER FROM THE EUROPEAN PARLIAMENT IN LUXEMBOURG TO THE COMMISSION IN BRUSSELS AND ON THE OTHER HAND THE PAYMENT OF SUBSISTENCE ALLOWANCE FOR THE PERIOD FROM 5 APRIL 1971, THE DATE OF HER FIRST PROVISIONAL SECONDMENT TO THE COMMISSION, TO 27 JANUARY 1972, DATE OF HER REMOVAL .

THE FIRST CLAIM

4 THE SECOND APPLICANT CLAIMS REIMBURSEMENT OF THE WHOLE OF THE EXPENSES OF REMOVAL OF THE COMMON FURNITURE, AMOUNTING TO 24 600 BF .

5 THE DEFENDANT RELIES ON THE PRINCIPLE THAT, WHILE REIMBURSEMENT OF THE REMOVAL EXPENSES IS DUE TO THE TWO SPOUSES, THEY ARE NOT EACH ENTITLED TO THE WHOLE, AND THEREFORE ADMITS LIABILITY ONLY FOR AN AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THE ACTUAL COST OF THE REMOVAL AND THE DAILY SUBSISTENCE ALLOWANCE THAT THE FIRST APPLICANT RECEIVED AS A FIXED PAYMENT IN ADVANCE MADE BECAUSE HE HAD NOT MOVED WITHIN A YEAR AFTER TAKING UP HIS DUTIES .

6 THE FIRST APPLICANT RECEIVED, AS DAILY SUBSISTENCE ALLOWANCE, FROM 1 APRIL 1969, DATE FROM WHICH HIS ESTABLISHMENT TOOK EFFECT, TO 27 SEPTEMBER 1969, A SUM OF 36 000 BF, 14 650 BF OF WHICH THE DEFENDANT REGARDS AS REPRESENTING THE NOTIONAL REMOVAL EXPENSES .

7 IN SUPPORT OF THIS ARGUMENT THE DEFENDANT REFERS TO THE TERMS OF AN INTERNAL DIRECTIVE OF THE COMMISSION OF 17 MARCH 1971 ACCORDING TO WHICH AS FROM 5 MARCH 1968 'WHERE AN OFFICIAL HAS BEEN AUTHORIZED TO MOVE BUT HAS NOT DONE SO DURING THE YEAR FOLLOWING HIS ESTABLISHMENT ... HE SHALL BE ENTITLED TO DAILY SUBSISTENCE ALLOWANCE FOR AN INITIAL PERIOD OF SIX MONTHS AND THEREAFTER FROM THE SEVENTH MONTH FOR A MAXIMUM PERIOD OF A FURTHER SIX MONTHS TO THE EXTENT OF THE NOTIONAL REMOVAL EXPENSES '.

8 BY A NOTE DATED 14 MAY 1969 THE ADMINISTRATION AUTHORIZED THE FIRST APPLICANT TO EFFECT HIS REMOVAL WITHIN A PERIOD OF ONE YEAR AS FROM THE DATE HIS ESTABLISHMENT TOOK EFFECT, I.E ., BEFORE 1 APRIL 1970 .

9 THE DAILY SUBSISTENCE ALLOWANCE REFERRED TO IN ARTICLE 10 OF ANNEX VII TO THE STAFF REGULATIONS IS PAID TO AN OFFICIAL WHO IS HEAD OF HOUSEHOLD FOR A PERIOD OF 180 DAYS .

10 THE SAID NOTE OF 14 MAY 1969 LIMITED THIS ALLOWANCE IN THE CASE OF THE FIRST APPLICANT TO FOUR MONTHS FROM THE NOTIFICATION OF THE AUTHORIZATION TO MOVE, I.E ., TO 27 SEPTEMBER 1969 .

11 THE AFORE-MENTIONED TERMS OF THE INTERNAL DIRECTIVE OF THE COMMISSION IMPLY THAT THE FIRST PLAINTIFF WAS ENTITLED TO DAILY SUBSISTENCE ALLOWANCE FOR A PERIOD OF SIX MONTHS, I.E ., FROM 1 APRIL 1969 TO 1 OCTOBER 1969, THEN AS FROM THE SEVENTH MONTH, 'TO THE EXTENT OF THE AMOUNT OF THE NOTIONAL REMOVAL EXPENSES '.

12 ALTHOUGH AN INTERNAL DIRECTIVE HAS NOT THE CHARACTER OF A RULE OF LAW WHICH THE ADMINISTRATION IS ALWAYS BOUND TO OBSERVE, IT NEVERTHELESS SETS FORTH A RULE OF CONDUCT INDICATING THE PRACTICE TO BE FOLLOWED, FROM WHICH THE ADMINISTRATION MAY NOT DEPART WITHOUT GIVING THE REASONS WHICH HAVE LED IT TO DO SO, SINCE OTHERWISE THE PRINCIPLES OF EQUALITY OF TREATMENT WOULD BE INFRINGED .

13 THE DATE FROM WHICH THE CALCULATION OF THE FIRST PERIOD OF SIX MONTHS MUST BE MADE IS THAT OF THE ESTABLISHMENT OF THE OFFICIAL .

14 THE FIRST PLAINTIFF WAS ESTABLISHED WITH EFFECT FROM 1 APRIL 1969 .

15 THE DAILY SUBSISTENCE ALLOWANCE MUST THEREFORE BE CALCULATED FROM THIS DATE .

16 IT IS ONLY FROM 1 OCTOBER 1969 THAT IT WOULD HAVE BEEN PAID 'TO THE EXTENT OF THE NOTIONAL REMOVAL EXPENSES '.

17 HOWEVER IT IS NOT DISPUTED THAT IT HAS NOT BEEN PAID TO THE FIRST APPLICANT SINCE 27 SEPTEMBER 1969 .

18 IT IS ESTABLISHED THEREFORE THAT THE FIRST APPLICANT HAS NEVER RECEIVED ANY PAYMENT WHATSOEVER AS NOTIONAL REMOVAL EXPENSES .

19 AS REGARDS THIS CLAIM THE APPEAL SUCCEEDS .

THE SECOND CLAIM

20 THE SECOND APPLICANT MAINTAINS THAT UNDER ARTICLE 10 OF ANNEX VII TO THE STAFF REGULATIONS, AS IT STOOD AT THE TIME, SHE IS ENTITLED TO THE BENEFIT OF DAILY SUBSISTENCE ALLOWANCE FOR THE PERIOD BETWEEN THE DATE OF HER FIRST SECONDMENT TO BRUSSELS AND THAT OF HER REMOVAL .

21 THIS ARTICLE PROVIDES THAT 'WHERE AN OFFICIAL FURNISHES EVIDENCE THAT HE CANNOT CONTINUE TO RESIDE IN HIS OWN HOME AND HAS NOT REMOVED TO THE PLACE WHERE HE IS EMPLOYED, HE SHALL BE ENTITLED FOR NOT MORE THAN TWELVE MONTHS TO A DAILY SUBSISTENCE ALLOWANCE ...'.

22 THE ADMINISTRATION DISPUTES THAT IN THE CASE IN QUESTION THE SECOND APPLICANT COULD NOT CONTINUE TO RESIDE IN HER HOME, WHICH, AS FROM HER ARRIVAL IN BRUSSELS, WAS RE-ESTABLISHED IN THE SMALL FLAT INTO WHICH SHE MOVED WITH HER HUSBAND .

23 THE SECOND APPLICANT REPLIED THAT THE MATRIMONIAL HOME REMAINED IN LUXEMBOURG, SINCE A REMOVAL OF THE COMMON FURNITURE TO BRUSSELS COULD NOT BE ENVISAGED SO LONG AS HER POSITION REMAINED THAT OF A SECONDMENT .

24 MOREOVER, IN NOT GRANTING THE SECOND APPLICANT THE AUTHORIZATION TO REMOVE WHICH SHE HAD REQUESTED, THE ADMINISTRATION HAD CONFIRMED THAT IT HAD NOT YET TAKEN A DECISION REGARDING HER .

25 THE BASIS FOR DAILY SUBSISTENCE ALLOWANCE LIES INTER ALIA IN THE OBLIGATION ON THE PART OF THE OFFICIAL TO REMOVE TO A RESIDENCE OTHER THAN THAT WHICH HE OCCUPIED PREVIOUSLY, WITHOUT HOWEVER BEING ABLE TO GIVE UP THIS LATTER .

26 THE DEFENDANT HAS NOT ESTABLISHED THAT SUCH WAS NOT THE CASE .

27 THE FACT THAT THIS OFFICIAL AT THE PLACE OF HER SECONDMENT REJOINED HER HUSBAND, HIMSELF AN OFFICIAL, IN A PROVISIONAL RESIDENCE IS NOT DECISIVE, SINCE IT IS ESTABLISHED THAT THEIR MATRIMONIAL HOME REMAINED IN LUXEMBOURG .

28 SO LONG, THEREFORE, AS THE REMOVAL HAD NOT TAKEN PLACE, I.E ., BEFORE 27 JANUARY 1972, THE SECOND APPLICANT OUGHT TO HAVE RECEIVED THE DAILY SUBSISTENCE ALLOWANCE WITHIN THE LIMITS PROVIDED FOR BY THE STAFF REGULATIONS .

29 THUS THE APPEAL SUCCEEDS ON THE SECOND CLAIM .

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

31 THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS AND MUST THEREFORE PAY THE COSTS .

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . ANNULS THE DECISION BY WHICH THE COMMISSION REFUSED THE APPLICANTS REIMBURSEMENT OF REMOVAL EXPENSES AMOUNTING TO 24 600 BF .

2 . ANNULS THE DECISION BY WHICH THE COMMISSION REFUSED TO PAY THE SECOND APPLICANT DAILY SUBSISTENCE ALLOWANCE FOR THE PERIOD BETWEEN 5 APRIL 1971 AND 27 JANUARY 1972 .

3 . ORDERS THE COMMISSION TO BEAR THE WHOLE OF THE COSTS OF THE PROCEEDINGS .