61979J0137

1 . OFFICIALS - ECSC SEPARATION ALLOWANCE - NO RIGHT TO ALLOWANCE - POSSIBILITY FOR PERSON CONCERNED TO RELY ON FOURTH PARAGRAPH OF ARTICLE 97 OF THE STAFF REGULATIONS OF THE ECSC OF 1962 - NONE

( STAFF REGULATIONS OF OFFICIALS OF THE ECSC OF 1956 , ART . 47 ; STAFF REGULATIONS OF OFFICIALS OF THE ECSC OF 1962 , ART . 97 , FOURTH PARA .)

2 . NON-CONTRACTUAL LIABILITY - ACT OF SUCH A NATURE AS TO INVOLVE THE ADMINISTRATION IN LIABILITY - CONCEPT - INCORRECT INTERPRETATION OF PROVISIONS OF LAW RELATING TO OFFICIALS - EXCLUSION

1 . AN OFFICIAL WHO HAS NEVER RECEIVED THE SEPARATION ALLOWANCE UNDER ARTICLE 47 OF THE STAFF REGULATIONS OF OFFICIALS OF THE ECSC OF 1956 CANNOT RELY ON THE TRANSITIONAL PROVISIONS OF THE FOURTH PARAGRAPH OF ARTICLE 97 OF THE ECSC STAFF REGULATIONS OF 1962 .

2.APART FROM THE EXCEPTIONAL INSTANCE , THE ADOPTION OF AN INCORRECT INTERPRETATION OF THE PROVISIONS GOVERNING THE EUROPEAN CIVIL SERVICE DOES NOT , OF ITSELF , CONSTITUTE A WRONGFUL ACT SUCH AS TO INVOLVE THE COMMUNITY IN LIABILITY .

IN CASE 137/79

JEAN KOHLL , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT RUE KECKER , EHNEN ( GRAND DUCHY OF LUXEMBOURG ), REPRESENTED BY VICTOR BIEL OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID MR BIEL , 18 A RUE DES GLACIS ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , JOSEPH GRIESMAR , ACTING AS AGENT , ASSISTED BY DANIEL JACOB OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION REGARDING CLAIMS SET OUT BELOW ,

1 BY AN APPLICATION DATED 28 AUGUST 1979 THE APPLICANT , A LUXEMBOURG NATIONAL ASSIGNED TO THE PERSONNEL DIVISION OF THE COMMISSION IN LUXEMBOURG , REQUESTS THE ANNULMENT OF THE DECISION OF 29 JUNE 1979 REJECTING THE COMPLAINT HE HAD SUBMITTED ON 19 FEBRUARY 1979 SEEKING CONTINUANCE OF THE EXPATRIATION ALLOWANCE WHICH WAS PAID TO HIM WHILST HE WAS POSTED TO BRUSSELS AND , IN THE ALTERNATIVE , AN ORDER THAT THE COMMISSION SHOULD COMPENSATE HIM FOR DAMAGE CONSISTING IN , ON THE ONE HAND , THE LOSS OF THAT ALLOWANCE FOR THE 25 YEARS WHICH HAVE TO ELAPSE BEFORE HIS RETIREMENT ( THAT IS TO SAY , A SUM OF LFR 3 750 000 ) AND , ON THE OTHER HAND , THE LOSS HE CLAIMS TO HAVE SUFFERED IN SELLING HIS HOUSE IN TERVUREN ( BELGIUM ) AT A PRICE OF LFR 1 500 000 BELOW ITS TRUE VALUE .

2 PRIOR TO HIS ENTRY INTO THE SERVICE OF THE HIGH AUTHORITY OF THE ECSC ON 1 OCTOBER 1954 THE APPLICANT RESIDED AT DUDELANGE , THAT IS TO SAY , AT A DISTANCE OF LESS THAN 25 KILOMETRES FROM HIS PLACE OF EMPLOYMENT , LUXEMBOURG .

3 THUS HE WAS NEVER ENTITLED TO THE SEPARATION ALLOWANCE GRANTED UNDER ARTICLE 47 OF THE ECSC STAFF REGULATIONS OF 1956 TO ' ' OFFICIALS WHO BEFORE TAKING UP THEIR DUTIES RESIDED CONTINUOUSLY FOR MORE THAN SIX MONTHS IN A PLACE MORE THAN 25 KILOMETRES FROM THE SEAT OF THE INSTITUTION ' ' .

4 WHEN , AFTER BEING POSTED IN 1968 TO THE DIRECTORATE-GENERAL FOR PERSONNEL AND ADMINISTRATION IN BRUSSELS , THE APPLICANT DISCLOSED HIS INTENTION OF RETURNING TO LUXEMBOURG HE ASKED FOR INFORMATION FROM THE HEAD OF THE INDIVIDUAL RIGHTS AND PRIVILEGES DIVISION IN BRUSSELS AS TO WHETHER HE COULD CONTINUE TO DRAW THE EXPATRIATION ALLOWANCE IN THE EVENT OF HIS BEING TRANSFERRED . IN A LETTER OF 20 APRIL 1978 HE RECEIVED THE FOLLOWING REPLY :

' ' . . . IN THE EVENT OF YOUR BEING TRANSFERRED TO LUXEMBOURG PAYMENT OF THE EXPATRIATION ALLOWANCE WOULD BE WITHDRAWN UNLESS YOU ESTABLISH YOUR PLACE OF RESIDENCE MORE THAN 25 KILOMETRES AWAY FROM THE PLACE WHERE YOU WERE LIVING BEFORE YOU ENTERED THE SERVICE , THAT IS TO SAY , DUDELANGE , THIS BEING THE RESULT OF THE PROVISIONS OF ARTICLE 9 ( B ) OF THE GENERAL REGULATIONS OF THE ECSC TAKEN IN CONJUNCTION WITH THE FOURTH PARAGRAPH OF ARTICLE 97 OF THE STAFF REGULATIONS OF THE ECSC , WHICH CAME INTO EFFECT ON 1 JANUARY 1962 . ' '

5 HAVING APPLIED FOR A POST IN LUXEMBOURG , THE APPLICANT WAS TRANSFERRED TO THAT CITY BY A DECISION OF THE HEAD OF THE PERSONNEL DIVISION IN LUXEMBOURG AS FROM 1 OCTOBER 1978 . HE WAS GRANTED THE EXPATRIATION ALLOWANCE FOR THE MONTH OF OCTOBER 1978 , REPAYMENT OF WHICH WAS CLAIMED FROM HIM UNDER ARTICLE 85 OF THE STAFF REGULATIONS , BUT WHICH WAS LATER REFUNDED TO HIM ON THE GROUND THAT THE CONDITIONS FOR THE APPLICATION OF ARTICLE 85 HAD NOT BEEN MET . FINALLY , IN A NOTE OF 12 FEBRUARY 1979 THE HEAD OF THE PERSONNEL DIVISION INFORMED THE APPLICANT THAT HE WAS NOT ENTITLED TO THE EXPATRIATION ALLOWANCE .

6 ON HIS RETURN TO LUXEMBOURG THE APPLICANT ESTABLISHED HIS PLACE OF RESIDENCE IN EHNEN , WHICH IS MORE THAN 25 KILOMETRES FROM WHERE HE RESIDED PRIOR TO HIS ENTRY INTO THE SERVICE ( DUDELANGE ). HE ACCORDINGLY ADVANCES A FIRST ARGUMENT WHICH PROCEEDS UPON AN INFRINGEMENT OF THE FOURTH PARAGRAPH OF ARTICLE 97 OF THE STAFF REGULATIONS OF OFFICIALS OF THE ECSC OF 1962 CONTAINING TRANSITIONAL PROVISIONS WHICH REMAINED APPLICABLE BY VIRTUE OF THE FINAL PARAGRAPH OF ARTICLE 2 OF REGULATION NO 259/68 AND WHICH PROVIDE :

' ' WHERE AS A RESULT OF AN ALTERATION IN HIS PLACE OF EMPLOYMENT AN OFFICIAL ESTABLISHED UNDER ARTICLE 93 NO LONGER FULFILS THE CONDITIONS LAID DOWN IN ARTICLE 4 OF ANNEX VII FOR RECEIVING THE EXPATRIATION ALLOWANCE , HE SHALL NEVERTHELESS CONTINUE TO RECEIVE THAT ALLOWANCE IF THE FORMER STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COAL AND STEEL COMMUNITY ENTITLED HIM TO THE SEPARATION ALLOWANCE ' ' .

SUBMISSION RELATING TO THE INFRINGEMENT OF THE FOURTH PARAGRAPH OF ARTICLE 97 OF THE FORMER STAFF REGULATIONS OF THE ECSC

7 ACCORDING TO THE APPLICANT , HE WAS ENTITLED UNDER THAT PROVISION TO RECEIVE THE SEPARATION ALLOWANCE FROM THE DATE OF HIS TRANSFER TO BRUSSELS IN 1968 , EVEN THOUGH AS LONG AS HE WAS EMPLOYED IN LUXEMBOURG HE DID NOT MEET THE REQUIREMENT AS TO THE DISTANCE OF 25 KILOMETRES FROM THE SEAT OF HIS INSTITUTION . IN ORDER FOR HIM TO HAVE BEEN ENTITLED TO THE ALLOWANCE IT WAS THUS SUFFICIENT FOR HIM TO ESTABLISH HIS PLACE OF RESIDENCE AT 25 KILOMETRES FROM HIS PLACE OF ORIGIN .

8 HOWEVER , THE EFFECT OF THE TRANSITIONAL PROVISIONS IN THE FOURTH PARAGRAPH OF ARTICLE 97 OF THE ECSC REGULATIONS OF 1962 IS THAT THE APPLICANT MAY NOT RELY ON THOSE PROVISIONS SINCE HE NEVER QUALIFIED FOR THE SEPARATION ALLOWANCE UNDER THE REGULATIONS OF 1956 BECAUSE THE PLACE WHERE HE RESIDED PRIOR TO HIS ENTRY INTO THE SERVICE OF THE ECSC WAS LESS THAN 25 KILOMETRES FROM HIS PLACE OF EMPLOYMENT , LUXEMBOURG , AND HE THUS DID NOT SATISFY THE CONDITION LAID DOWN BY ARTICLE 47 OF THE 1956 STAFF REGULATIONS .

9 THE APPLICANT BASES AN ARGUMENT A CONTRARIO ON THE RULE LAID DOWN IN ARTICLE 9 ( B ) OF THE GENERAL REGULATIONS OF THE ECSC WHICH PROVIDED THAT ' ' OFFICIALS WHO AS A RESULT OF A NEW POSTING TAKE UP RESIDENCE LESS THAN 25 KILOMETRES FROM THE PLACE WHERE THEY RESIDED BEFORE THEIR ENTRY INTO THE SERVICE LOSE THE RIGHT TO THE ALLOWANCE . . . ' ' . HOWEVER , ALTHOUGH , IN FACT , HIS NEW PLACE OF RESIDENCE IN THE GRAND DUCHY , EHNEN , IS MORE THAN 25 KILOMETRES FROM THAT WHERE HE RESIDED PRIOR TO HIS ENTRY INTO THE SERVICE , DUDELANGE , THE APPLICANT HAS NOT ESTABLISHED THAT IT WAS HIS POSTING TO THE PERSONNEL DIVISION IN LUXEMBOURG THAT CAUSED HIM TO ESTABLISH HIS NEW PLACE OF RESIDENCE AT A DISTANCE OF MORE THAN 25 KILOMETRES FROM HIS ORIGINAL RESIDENCE .

ON THE CONTRARY , IT APPEARS FROM THE FILE ON THE CASE THAT THE APPLICANT CHOSE TO SETTLE IN EHNEN FOR PURELY PERSONAL CONSIDERATIONS , NOT BECAUSE OF THE REQUIREMENTS OF THE SERVICE .

10 THE APPLICANT ' S ARGUMENT BASED ON FREEDOM IN THE SELECTION OF A PLACE OF RESIDENCE CANNOT BE UPHELD SINCE THE ADMINISTRATION DOES NOT INFRINGE THAT RIGHT BY MAKING THE GRANT OF THE EXPATRIATION ALLOWANCE SUBJECT TO A MINIMUM DISTANCE REQUIREMENT .

11 THE FIRST SUBMISSION IS THEREFORE UNFOUNDED .

SUBMISSION RELATING TO THE COMMISSION ' S LIABILITY FOR A WRONGFUL ACT

12 THE APPLICANT CLAIMS THAT IF THE HEAD OF THE INDIVIDUAL RIGHTS AND PRIVILEGES DIVISION OF BRUSSELS MADE A MISTAKE IN INFORMING HIM , BY NOTE OF 20 APRIL 1978 , THAT , IN THE EVENT OF HIS BEING TRANSFERRED TO LUXEMBOURG , HE COULD CONTINUE TO DRAW THE EXPATRIATION ALLOWANCE IT IS THE DEFENDANT WHO OUGHT TO BEAR THE CONSEQUENCES IN ACCORDANCE WITH ARTICLE 91 OF THE STAFF REGULATIONS . THE CAUSAL LINK HAS BEEN ESTABLISHED , HE CLAIMS , BY THE FACT THAT , HAD THE REPLY TO THE QUESTION OF RETAINING THE EXPATRIATION ALLOWANCE BEEN IN DOUBT , HE WOULD HAVE ABANDONED THE IDEA OF LEAVING BRUSSELS .

13 THE COMMISSION IS OF THE OPINION THAT THE NOTE IN QUESTION DOES NOT BEAR ANY OF THE FEATURES IDENTIFIED BY THE COURT AS CONSTITUTING A DECISION . IN PARTICULAR , THE AUTHOR OF THE NOTE WAS NOT THE AUTHORITY COMPETENT TO TAKE A DECISION CONCERNING THE GRANT OF AN ALLOWANCE TO AN OFFICIAL POSTED TO LUXEMBOURG .

14 IT MUST BE BORNE IN MIND THAT , AS THE COURT HAS ALREADY STATED IN ITS DECISIONS OF 28 MAY 1979 ( JOINED CASES 19 , 20 , 25 AND 30/69 , RICHEZ-PARISE , ( 1970 ) ECR 325 ) AND 9 JULY 1970 ( CASE 23/69 , FIEHN , ( 1970 ) ECR 547 ), APART FROM THE EXCEPTIONAL INSTANCE , THE ADOPTION OF AN INCORRECT INTERPRETATION DOES NOT CONSTITUTE IN ITSELF A WRONGFUL ACT .

15 IN THAT RESPECT IT IS APPROPRIATE TO STRESS THAT , IN THE PRESENT CASE , THE INCORRECT INTERPRETATION WAS SUPPLIED IN REPLY TO A HYPOTHETICAL QUESTION . IN ADDITION , THE RELEVANT TEXTS WERE AVAILABLE TO THE APPLICANT WHO WAS THUS IN A POSITION TO INFORM HIMSELF AS TO THE CORRECT INTERPRETATION OF THE PROVISIONS . IN THESE CIRCUMSTANCES THE FACT THAT THE HEAD OF THE INDIVIDUAL RIGHTS AND PRIVILEGES DIVISION IN BRUSSELS SUPPLIED INCORRECT INFORMATION AS TO THE INTERPRETATION OF THE RELEVANT PROVISIONS DOES NOT MAKE THE COMMISSION LIABLE .

16 THE SUBMISSION RELATING TO ARTICLE 215 OF THE TREATY IS THUS UNFOUNDED .

17 AS A RESULT THE APPLICATION MUST BE DISMISSED .

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

19 THE COMMISSION IS NOT UNDER ANY LIABILITY . HOWEVER , AS THE INCORRECT INFORMATION WHICH WAS SUPPLIED REGARDING THE INTERPRETATION OF THE PROVISIONS CONCERNING THE EXPATRIATION ALLOWANCE GAVE RISE TO THE PRESENT APPLICATION , THE COURT CONSIDERS IT EQUITABLE TO ORDER THE COMMISSION TO PAY THE COSTS OF THE PROCEEDINGS .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE COMMISSION TO PAY THE COSTS .