61960J0015

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1 . OFFICIALS - STAFF REGULATIONS OF THE ECSC - INTERPRETATION AND APPLICATION - COMPETENCE OF THE PRESIDENT OF THE COURT AS HEAD OF THE ADMINISTRATION .

2 . DECISION CONFERRING PERSONAL RIGHTS OR SIMILAR BENEFITS - WRONG INTERPRETATION OF A PROVISION - CANCELLATION

3 . DECISION CONFERRING PERSONAL RIGHTS OR SIMILAR BENEFITS - CANCELLATION - EFFECT OF ANNULMENT

4 . OFFICIALS - SEPARATION ALLOWANCE - CANCELLATION OF AN IMPLEMENTING DECISION - REFUSAL OF ALLOWANCE BY WAY OF COMPENSATION

( STAFF REGULATIONS OF THE ECSC, ARTICLES 60 ( 2 ) AND 47 )

5 . INTERPRETATION - SUBSTITUTION OF ONE WORDING FOR ANOTHER - DIFFERENCE IN DRAFTING - DIFFERENCE IN SCOPE - PRESUMPTION

6 . OFFICIALS - SEPARATION ALLOWANCE - DISTANCE BETWEEN THE PLACE OF RESIDENCE AND THE PLACE OF THE INSTITUTION - CONCEPT

( STAFF REGULATIONS OF THE ECSC, ARTICLE 47 )

7 . INTERPRETATION - LACK OF WORKING DOCUMENTS - LITERAL AND LOGICAL INTERPRETATION .

1 . THE PRESIDENT OF THE COURT CANNOT BE DENIED THE COMPETENCE AND DUTY TO INTERPRET THE STAFF REGULATIONS WHICH HE IS CALLED UPON TO APPLY SUBJECT TO REVIEW BY THE COURT OF THE CORRECTNESS OF THIS INTERPRETATION .

2 . IF THE ADMINISTRATIVE AUTHORITY BECOMES AWARE THAT A CERTAIN ALLOWANCE HAS BEEN GRANTED AS A RESULT OF A WRONG INTERPRETATION IT HAS THE POWER TO AMEND ITS PREVIOUS DECISION .

3 . CANCELLATION ON THE GROUNDS OF UNLAWFULNESS OF A DECISION CONFERRING PERSONAL RIGHTS AND SIMILAR BENEFITS, EVEN IF IN CERTAIN CASES IT DOES NOT INVOLVE, BECAUSE OF VESTED RIGHTS, ANNULMENT EX TUNC ALWAYS HAS THIS EFFECT EX NUNC .

4 . ARTICLE 60 ( 2 ) OF THE STAFF REGULATIONS OF THE ECSC CONTAINS A TRANSITIONAL PROVISION WHICH TOOK ACCOUNT SOLELY OF THE SITUATIONS EXISTING BEFORE THE STAFF REGULATIONS ENTERED INTO FORCE AND COULD THEREFORE BE APPLIED SOLELY TO GOVERN THOSE SITUATIONS .

EVEN IF THIS PROVISION COULD APPLY IN THE CASE OF AN ISOLATED AMENDMENT OF ARTICLE 47 ( 3 ) IT CANNOT BE APPLIED IN THE CASE OF THE REVERSAL OF A DECISION APPLYING THIS ARTICLE IF THE REVERSAL IS DUE TO A FINDING THAT THAT DECISION HAD BEEN TAKEN AS A RESULT OF A WRONG INTERPRETATION OF THE ARTICLE .

5 . WHERE ONE WORDING IS REPLACED BY ANOTHER IT MUST BE ASSUMED IN THE ABSENCE OF EVIDENCE TO THE CONTRARY THAT ANY DIFFERENCE IN WORDING INVOLVES A DIFFERENCE IN SCOPE IF THE NEW WORDING LEADS TO A DIFFERENT INTERPRETATION .

6 . THE FACT THAT THE WORD 'RADIUS' CONTAINED IN ARTICLE 16 ( B ) OF THE PROVISIONAL STAFF REGULATIONS HAS BEEN REPLACED IN ARTICLE 47 ( 3 ) OF THE STAFF REGULATIONS OF THE ECSC BY THE WORD 'DISTANCE' CLEARLY SHOWS THAT THE AUTHORS OF THE REGULATIONS WISHED TO REJECT THE CONCEPT OF 'AS THE CROW FLIES '.

7 . IN THE ABSENCE OF WORKING DOCUMENTS CLEARLY EXPRESSING THE INTENTION OF THE DRAFTSMEN OF A PROVISION, THE COURT CAN BASE ITSELF ONLY ON THE SCOPE OF THE WORDING AS IT IS AND GIVE IT A MEANING BASED ON A LITERAL AND LOGICAL INTERPRETATION .

IN CASE 15/60

GABRIEL SIMON, AN OFFICIAL OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, REPRESENTED BY PIERRE FINCOEUR, ADVOCATE OF THE ARLON ( BELGIUM ) BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT 12 AVENUE PASTEUR, APPLICANT, V

COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, 12 RUE DE LA COTE-D'EICH, LUXEMBOURG . DEFENDANT

REPRESENTED BY ITS REGISTRAR, ALBERT VAN HOUTTE, ACTING AS AGENT,

APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE PRESIDENT OF THE COURT OF JUSTICE DATED 21 SEPTEMBER 1960 WITHDRAWING THE SEPARATION ALLOWANCE FROM THE APPLICANT AS A RESULT OF THE DECISION TAKEN BY THE COMMITTEE OF PRESIDENTS ON 9 MAY 1959,

P . 122

A - ADMISSIBILITY

THE APPLICATION COMPLIED WITH THE FORMALITIES AND TIME-LIMITS PROVIDED FOR BY THE TREATY AND THE RULES OF PROCEDURE OF THE COURT . ITS ADMISSIBILITY IS NOT CONTESTED BY THE DEFENDANT AND GIVES RISE TO NO OBJECTION BY THE COURT OF ITS OWN MOTION .

THE APPLICATION IS ADMISSIBLE .

B - SUBSTANCE

THE APPLICATION IS BASED ON FOUR COMPLAINTS : 1 . THE APPLICANT'S FIRST COMPLAINT IS THAT THE COMMITTEE OF THE FOUR PRESIDENTS HAS INFRINGED ARTICLE 62 OF THE STAFF REGULATIONS BECAUSE IT HAS REPLACED ARTICLE 47 ( 3 ) OF THOSE REGULATIONS BY A PROVISION OF A COMPLETELY DIFFERENT SCOPE WITHOUT COMPLYING WITH THE FORMALITIES PROVIDED FOR IN ARTICLE 62 .

IN SUPPORT OF HIS ARGUMENT THE APPLICANT ASSERTS THAT ARTICLE 47 ( 3 ) OF THE STAFF REGULATIONS CANNOT BE INTERPRETED IN THE WAY WHICH THE CONTESTED DECISION HAS DONE .

THE FIRST PART OF THIS COMPLAINT IS WITHOUT FOUNDATION FOR THERE IS NOTHING TO LEAD TO THE CONCLUSION THAT THE COMMITTEE OF PRESIDENTS INTENDED TO AMEND THE WORDING OF ARTICLE 47 ( 3 ).

THE COMMITTEE OF PRESIDENTS HAS LIMITED ITSELF TO INTERPRETING THE WORDING .

P . 123

THE FACT THAT THIS INTERPRETATION MAY POSSIBLY BE REGARDED AS WRONG CANNOT LEAD TO THE CONCLUSION THAT AN AMENDMENT HAS BEEN MADE TO THE WORDING WHICH MAY ONLY INVOLVE A FINDING THAT SUCH INTERPRETATION IS WRONG .

THE COMPLAINT THAT ARTICLE 62 HAS BEEN INFRINGED MUST BE DISMISSED SUBJECT TO A CONSIDERATION WHETHER THE INTERPRETATION GIVEN TO ARTICLE 47 ( 3 ) BY THE COMMITTEE OF PRESIDENTS IS CORRECT .

2 . THE APPLICANT'S SECOND COMPLAINT IS THAT THE PRESIDENT OF THE COURT OF JUSTICE WAS NOT COMPETENT TO TAKE THE CONTESTED DECISION .

THIS COMPLAINT IS BASED ON CONSIDERATIONS SIMILAR TO THOSE OF THE PREVIOUS COMPLAINT, FOR THE APPLICANT AGAIN REFERS TO ARTICLE 62 IN ALLEGING THAT AMENDMENTS TO THE STAFF REGULATIONS ARE FOR THE COURT AND NOT ITS PRESIDENT .

THIS COMPLAINT MUST BE DISMISSED FOR THE ABOVEMENTIONED REASONS .

IN HIS REPLY THE APPLICANT EQUATES A NEW METHOD OF INTERPRETATION TO A NEW DECISION .

EVEN CONSIDERED IN THIS LIGHT THE COMPLAINT IS NOT WELL FOUNDED FOR IT IS CLEAR THAT THE PRESIDENT OF THE COURT ( AND EVEN, MORE PRECISELY, THE REGISTRAR SUBJECT TO REVIEW BY THE PRESIDENT ) WAS COMPETENT TO APPLY ARTICLE 47 ( 3 ).

THE PRESIDENT OF THE COURT CANNOT BE DENIED THE COMPETENCE AND THE DUTY TO INTERPRET THE WORDING WHICH HE IS CALLED UPON TO APPLY SUBJECT TO REVIEW BY THE COURT OF THE CORRECTNESS OF THIS INTERPRETATION .

3 . THE APPLICANT'S THIRD COMPLAINT IS THAT THE PRESIDENT OF THE COURT HAS INFRINGED A VESTED RIGHT .

THE DECISION GRANTING THE SEPARATION ALLOWANCE TO THE APPLICANT HAS NOT BEEN REVOKED RETROACTIVELY BUT ONLY AMENDED IN RESPECT OF THE FUTURE . FURTHER THE ALLOWANCE HAS BEEN MAINTAINED AD PERSONAM UNTIL THE AMOUNT OF THE ALLOWANCE IS ABSORBED BY SUBSEQUENT ADVANCEMENTS .

IF THE ADMINISTRATIVE AUTHORITY BECOMES AWARE THAT A CERTAIN ALLOWANCE HAS BEEN GRANTED AS A RESULT OF A WRONG INTERPRETATION OF A LEGAL PROVISION IT HAS THE POWER TO AMEND THE PREVIOUS DECISION .

EVEN IF IN CERTAIN CASES IN VIEW OF VESTED RIGHTS WITHDRAWAL ON GROUNDS OF UNLAWFULNESS DOES NOT HAVE A RETROACTIVE EFFECT IT ALWAYS TAKES EFFECT FROM THE PRESENT .

THIS COMPLAINT IS NOT WELL FOUNDED .

P . 124 4 . FINALLY, THE APPLICANT CLAIMS AN INFRINGEMENT OF ARTICLE 60 ( 2 ) OF THE STAFF REGULATIONS WHICH PROVIDES FOR THE GRANT OF A COMPENSATORY ALLOWANCE TO STAFF 'WHO BY REASON OF ARTICLE 47 ( 3 ) NO LONGER ENJOY THE SEPARATION ALLOWANCE '.

( A ) ARTICLE 60 ( 2 ) CONTAINS A PROVISIONAL PROVISION WHICH TOOK ACCOUNT SOLELY OF SITUATIONS EXISTING BEFORE THE STAFF REGULATIONS ENTERED INTO FORCE AND COULD THEREFORE BE APPLIED SOLELY TO GOVERN THOSE SITUATIONS .

( B ) EVEN IF THIS PROVISION COULD APPLY IN THE CASE OF AN ISOLATED AMENDMENT OF ARTICLE 47 ( 3 ) ( A CASE WHICH DOES NOT APPLY HERE ), IT CANNOT BE APPLIED IN THE CASE OF REVERSAL OF A DECISION APPLYING THIS ARTICLE IF THE REVERSAL IS DUE TO A FINDING THAT THAT DECISION HAD BEEN TAKEN AS A RESULT OF A WRONG INTERPRETATION OF THE ARTICLE .

THIS COMPLAINT IS NOT WELL FOUNDED .

II

IT REMAINS TO BE CONSIDERED WHETHER THE INTERPRETATION OF ARTICLE 47 ( 3 ) GIVEN BY THE COMMITTEE OF PRESIDENTS AND CONFIRMED BY THE PRESIDENT OF THE COURT IS CORRECT .

THE DEFENDANT MAINTAINS THAT THE WORDING OF THIS ARTICLE WHICH HAS REPLACED ARTICLE 16 ( B ) OF THE PROVISIONAL STAFF REGULATIONS HAD BEEN PROPOSED BY THE HIGH AUTHORITY WHICH BOTH UNDER THE PROVISIONAL STAFF REGULATIONS AND THE STAFF REGULATIONS HAS ALWAYS APPLIED THE CRITERION OF 'AS THE CROW FLIES '.

THIS FACT IS ALLEGED TO SHOW THAT THE INTENTION OF THE AUTHORS OF THE PROVISION WAS NOT TO AMEND THE SYSTEM AS CLEARLY APPEARING FROM THE PREVIOUS WORDING AND 'THAT THE DISAPPEARANCE OF THE WORD "RADIUS" IS NOT THE RESULT OF A FORMAL DECISION BUT ONLY THE SIMPLIFICATION OF THE DRAFTING '.

THIS ARGUMENT IS NOT SUPPORTED BY ANY DOCUMENT CAPABLE OF SHOWING THAT THE INTENTION TO AMEND THE SYSTEM PREVIOUSLY ESTABLISHED MUST BE RULED OUT .

ON THE OTHER HAND, THE DIFFERENCE IN WORDING BETWEEN THE TWO ARTICLES IS ITSELF AN ARGUMENT CAPABLE OF LEADING TO THE PRESUMPTION THAT THE AUTHORS OF THE NEW PROVISION INTENDED TO AMEND THE FORMER CRITERION, SINCE IN THE ABSENCE OF EVIDENCE TO THE CONTRARY IT MUST BE ASSUMED THAT ANY DIFFERENCE IN WORDING INVOLVES A DIFFERENCE IN THE SCOPE IF THE NEW WORDING LEADS TO A DIFFERENT INTERPRETATION .

THE WORDING OF THE FORMER ARTICLE LEFT NO DOUBT AT ALL, FOR THE WORD 'RADIUS' ACCORDS PRECISELY WITH THE CONCEPT OF DISTANCE AS THE CROW FLIES .

P . 125

ON THE OTHER HAND, THE WORDS USED BY ARTICLE 47 ( 3 ) MAY LITERALLY BE GIVEN A DOUBLE INTERPRETATION, SINCE THE DISTANCE MAY BE CALCULATED ACCORDING TO AS THE CROW FLIES OR BY ROAD OR RAIL .

IN THESE CIRCUMSTANCES, IF THE WORD 'RADIUS' HAD REPLACED THE WORD 'DISTANCE' IN THE ARTICLE, THE SCOPE OF THE AMENDMENT WOULD HAVE BEEN CLEAR, FOR THE AUTHORS OF THE NEW PROVISION WOULD HAVE OBVIOUSLY HAD THE INTENTION OF CHOOSING BETWEEN THE TWO POSSIBLE INTERPRETATIONS OF THE FORMER WORDING THAT WHICH RELATED TO THE CONCEPT OF DISTANCE AS THE CROW FLIES .

IN THE PRESENT CASE, HOWEVER, IT IS THE REVERSE WHICH HAS HAPPENED .

THE VERY FACT OF HAVING REPLACED IN THE PRESENT CASE THE WORD 'RADIUS' BY THE WORD 'DISTANCE' CLEARLY SHOWS THAT THE AUTHORS OF THE ARTICLE WISHED TO REJECT THE CONCEPT OF 'AS THE CROW FLIES' ( A CONCEPT WHICH WAS CLEARLY EXPRESSED BY THE WORD 'RADIUS ') AND THAT THEY WISHED ON THE OTHER HAND TO ADOPT THE CONCEPT OF 'JOURNEY' BY ROAD OR RAILWAY .

IN THE ABSENCE OF WORKING DOCUMENTS CLEARLY EXPRESSING THE INTENTION OF THE DRAFTSMEN OF A PROVISION, THE COURT CAN BASE ITSELF ONLY ON THE SCOPE OF THE WORDING AS IT IS AND GIVE IT A MEANING BASED ON A LITERAL AND LOGICAL INTERPRETATION .

FINALLY, THE ARGUMENT THAT THE CRITERION OF CALCULATION AS THE CROW FLIES HAS ALWAYS BEEN APPLIED BOTH UNDER THE PROVISIONAL STAFF REGULATIONS AND THE STAFF REGULATIONS IS WEAKENED BY THE FACT THAT THE CRITERION WAS NOT APPLIED BY THE COURT WHEN AT THE REQUEST OF THOSE CONCERNED IT APPLIED ARTICLE 47 ( 3 ).

IT MUST ALSO BE OBSERVED THAT ARTICLE 47 ( 3 ) DOES NOT PRESCRIBE PRECISELY THE METHOD OF CALCULATING THE DISTANCE ( BY ROAD OR RAIL OR THE SHORTEST OF THESE TWO WAYS ).

IF THE DRAFTING IS DEFECTIVE THERE IS NOTHING TO PREVENT SELECTING BY MEANS OF INTERPRETATION THE MOST REASONABLE CRITERION, THAT IS TO SAY, THAT OF THE SHORTEST DISTANCE EITHER BY ROAD OR BY RAIL OF A NORMAL JOURNEY .

IN THESE CIRCUMSTANCES, WHILE RECOGNIZING THAT THE DRAFTING OF ARTICLE 47 ( 3 ) MAY AT FIRST SIGHT LEND ITSELF TO A DOUBLE INTERPRETATION, THE COURT MUST FIND THAT THE INTERPRETATION GIVEN BY THE COMMITTEE OF PRESIDENTS AND THE PRESIDENT OF THE COURT IS NOT IN ACCORD WITH THE SCOPE OF THIS PROVISION .

THE DECISION BY WHICH THE PREVIOUS DECISION WAS REVOKED IS UNLAWFUL AND MUST THEREFORE BE ANNULLED .

THE APPLICANT HAS SUCCEEDED IN HIS ACTION .

UNDER ARTICLE 69 ( 2 ) OF THE RULES OF THE COURT THE DEFENDANT MUST BE ORDERED TO PAY THE COSTS .

THE COURT

HEREBY :

1 . ANNULS THE DECISION OF THE PRESIDENT OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES WITHDRAWING THE SEPARATION ALLOWANCE GRANTED TO THE APPLICANT;

2 . ORDERS THE DEFENDANT TO BEAR THE COSTS .