JUDGMENT OF 17. 3. 1971 — CASE 47/70 KSCHWENDT v COMMISSION

In Case 47/70

THE COURT (Second Chamber) composed of: A. Trabucchi, President of Chamber, P. Pescatore (Rapporteur) and H. Kutscher, Judges, Advocate-General: A. Dutheillet de Lamothe Registrar: A. Van Houtte

gives the follwing

JUDGMENT

Issues of fact and of law

I — Facts

By contract of 20 September 1965 Mr Heinrich Kschwendt was appointed by the Commission of the ECSC as a temporary scientific officer and assigned to the Joint Nuclear Research Centre (hereinafter referred to as ‘the Centre’), Ispra.

When he took up his appointment, his place of origin within the meaning of Article 7 (3) of Annex VII to the Staff Regulations was determined as being Graz (Austria).

Mr Kschwendt received until 31 January 1966 the daily subsistence allowance provided by Article 10 (1) of Annex VII to the Staff Regulations and Article 25 (1) of the Conditions of Employment of Other Servants for an official or temporary servant who furnishes evidence that he can no longer reside at his original place of residence and who has not moved to his place of employment.

On 27 June 1966 the Head of the Staff and Internal Administration Branch of the Ispra Centre informed Mr Kschwendt that he did not fulfil the conditions either for payment of the daily subsistence allowance or for repayment of actual or notional removal expenses since before his appointment he had been residing ‘at the home’ of his wife, at his place of employment; consequently, he was asked to pay back the daily subsistence allowances ‘overpaid’.

On 26 July 1966 Mr Kschwendt addressed a complaint to the Director-General for Personnel and Administration of the Commission. The Head of the Personnel and Internal Adrninistration Branch of the Ispra Centre informed him on 5 October 1966 that he could not be granted the daily subsistence allowance because on taking up his appointment he was living ‘at the home set up by his wife’ and that his appointment did not cause him to be separated from his family which alone could justify payment of this allowance but, on the other hand, his actual removal expenses could be reimbursed.

On 5 December 1966, Mr Kschwendt asked the Personnel and Internal Administration Branch if he was entitled to receive reimbursement of notional removal expenses, in accordance with Article 10 (3) of Annex VII to the Staff Regulations (Article 25 (3) of the Conditions of Employment of Other Servants) and in accordance with Circular No 16 of the Commission of 16 September 1965.

This request was rejected on 9 January 1967 by memorandum of the Head of the Personnel and Internal Administration Branch confirming his opinion that when he was appointed Mr Kschwendt was residing with his wife at his place of employment.

On 30 January 1970 Mr Kschwendt, who had become an established official with effect from 1 April 1968, reminded the Personnel Branch at Ispra of a letter of 7 March 1967 in which he had asked them, in particular, to inform him whether his place of recruitment was Graz or Ispra.

On 20 March 1970, the Head of the Personnel and Internal Administration Branch informed Mr Kschwendt that his case had been the subject of further detailed examination following which his attention was drawn to the folowing points:

a) on the basis of information supplied by Mr Kschwendt himself his residence at the time when he was appointed was wrongly determined as being Graz, instead of Reno di Leggiuno, near Ispra;

b) the daily subsistence allowance could not be granted to him since, on taking up his appointment, Mr Kschwendt was residing ‘at the home set up by his wife’ and for this reason his appointment did not cause him to be separated from his family;

c) having no right to claim the daily subsistence allowance, he could not claim payment for the notional removal expenses either.

By letter of 30 April 1970, registered on 5 May, Mr Kschwendt, acting in accordance with Article 90 of the Staff Regulations, formally requested the appointing authority of his institution to revoke its refusal to recognize Graz as his place of residence at the time of his appointment and to pay him the daily subsistence allowance and the notional removal expenses.

Since he did not receive a reply from the Commission, Mr Kschwendt lodged the present application for the annulment of the implied decision rejecting his request.

II — Procedure

The application originating the proceedings was registered at the Court Registry on 6 August 1970

By document lodged on 10 October 1970, the Commission applied to the Court, in accordance with Article 91 of the Rules of Procedure, for a decision on the admissibility of the application without dealing with the substance of the case and for a declaration that the application was inadmissible.

In his observations submitted on 6 November 1970, the applicant asked the Court principally to reserve its decision for the final judgment, alternatively, to dismiss the objection of inadmissibility and, in either case, to prescribe new time-limits for the further steps in the proceedings on the substance of the case.

Having heard the report of the Judge-Rapporteur and the views of the Advocate-General, the Court decided to open the oral procedure with regard to the prelirninary objection without the need for a preparatory inquiry.

The parties presented oral observations on the admissibility of the application and replied to questions put by the Judge-Rapporteur and the Advocate-General at the hearing on 14 January 1971.

The Advocate-General delivered his opinion on the admissibility of the application on 3 February 1971.

III — Submissions and arguments of the parties on the admissibility of the application

The submissions and arguments of the parties on the admissibility of the application may be summarized as follows:

The defendant, the applicant with regard to the preliminary objection, maintains that the application is inadmissible because it is directed against a decision rejecting a request which confirms previous decisions which were not themselves the subject of the application lodged within the time-limits laid down by Article 91 of the Staff Regulations of Officials.

The implied decision contested in this application is in fact essentially a simple confirmation of the decision of 27 June 1966, 5 October 1966 and 9 January 1967.

a) The decision of 27 June 1966 was the subject of a complaint lodged under Article 90 of the Staff Regulations on 26 July 1966; this complaint was rejected on 5 October 1966 by a confirmatory decision which the applicant did not contest by lodging an application to the Court within three months of notification of the decision taken. On the contrary, the applicant merely submitted a further complaint under Article 90 by letter of 5 December 1966. This was not followed by any application to the Court even though a further decision, again confirmatory, was adopted on 9 January 1967. The decision of the Commission of 20 March 1970 is undeniably a confirmatory decision. According to established caselaw, the rejection of a complaint by a decision confirming a previous decision is not an act adversely affecting an official or other servant within the meaning of Article 91 of the Staff Regulations.

b) The fact that the administration, before confirming its previous decisions, submitted the applicant's case to a serious re-examination does not in any way deprive the decision taken following this re-examination of its confirmatory nature. In fact, a confirmatory decision, even when made after a fresh inquiry, cannot revive the time-limit for lodging an application and the appeal to the official who took the original decision (recours gracieux) or appeal to his immediate superior (recours hiérarchique) even when based on a different ground, is still of a confirmatory nature.

c) The fact that the administration, by its confirmatory decision of 20 March 1970, proposed to take the necessary steps to substitute Reno di Leggiuno for Graz as the applicant's place of residence on his appointment does not even constitute a new ground and it would not in any case suffice to cause a period for lodging an appeal, which has expired, to start to run afresh. The determination of the place of origin of the official on the taking up of his appointment relates only to travel expenses; in relation to the conditions for the granting of the daily subsistence allowance a different concept is applicable, that of no longer being able to reside at his place of residence and, in this connexion, neither the reasoning of the administration nor the facts have changed; there is neither a new fact nor a new argument and not even a new ground. The administration has in fact always based its reasoning on the same fact, namely that at the time of his recruitment the applicant was at his own home.

d) The applicant's objection that before 30 April 1970 no complaint had been submitted within the meaning of Article 90 of the Staff Regulations cannot be accepted. The Staff Regulations provide for an approach to be made to the author of the act complained of (recours gracieux) in addition to an approach submitted through the immediate superior of that official (recours hiérarchique). Article 91 provides that the failure of the ‘competent’ authority, and not solely the appointing authority, to take a decision may give rise to an application to the Court. The applicant is wrong in considering that for a decision to be contested it must have been made by the appointing authority.

e) In these circumstances, it seems clear that the complaint of 30 April 1970 made through official channels was not admissible because it was submitted out of time and this entails the inadmissibility of the application to the Court. The applicant, the defendant with regard to the preliminary objection, considers it desirable that discussion of the substance of the case should not be avoided and he requests, as his principal submission, that the decision on the preliminary objection should be reserved for the final judgment.

a) As regards the merits of the preliminary objection, he considers that the case-law according to which the express rejection of a request or complaint after the expiry of the period for lodging an appeal against the implied rejection, when it contains no new factor in relation to the legal or factual situation in existence at the time of the implied rejection, is a purely confirmatory measure which is not capable of adversely affecting an official, is very questionable.

b) In any case, the applicant points out that before the express decision rejecting his complaint of 20 March 1970 can constitute confirmation of a previous implied rejection, the administration must previously have had submitted to it a complaint within the meaning of Article 90 of the Staff Regulations; but this was not the case here. In fact:

None of the applicant s letters was addressed, as required by Article 90, to the appointing authority; the authorities addressed did not have the power to take a contestable decision and the appointing authority could not by its silence reject a request, since none was submitted to it.

The applicant has made a mistake in describing his letter of 26 July 1966 himself as a complaint within the meaning of Article 90; the reply of 5 October 1966 is also wrongly described by the Commission as a decision; it does not in fact constitute any action on the part of the appointing authority.

The applicant's letter of 7 March 1967 merely posed a certain number of questions; it was therefore neither a request nor a complaint within the meaning of Article 90 of the Staff Regulations.

The first and sole complaint within the meaning of Article 90 submitted to the appointing authority is the letter addressed by the applicant to the Commission on 30 April 1970. This letter referred to the decision of 20 March 1970 in respect of which both the period for submitting a complaint through official channels and that for lodging an application to the Court were observed.

c) Furthermore, even if the administration's reply of 5 October 1966 could be considered a decision of the appointing authority expressly rejecting a complaint through official channels made by the applicant within the meaning of Article 90, it must be stated that, by writing once more to the applicant before the expiry of the period for lodging an appeal to the Court, the administration continued the discussion of the questions at issue on a local administrative level and this caused the measure of 5 October 1966 to lose its formal nature and therefore prevented it from starting the period for lodging an appeal to the Court to run. As regards the letter of the administration of 9 January 1967, it could not cause the period for lodging an appeal to the Court to start to run afresh since it did not come from the appointing authority.

d) Finally, the memorandum of the administration of 20 March 1970 cannot in any case be considered as merely confirming a previous rejection. In fact, it was drawn up following a further very detailed examination of the questions in dispute; it shows the desire of the administration to clarify its attitude by means of a lengthy discussion of the reasons: it contains new points of fact and law: the new point of fact was the opinion of the Director-General, which the applicant had not known until then; the new points of law consist in the further arguments that the administration puts forward both as regards the new determination of the applicant's place of residence when he was appointed and as regards the refusal to reimburse the removal expenses.

Grounds of judgment

1. The application is a request for the annulment of the implied decision of the Commission rejecting the complaint of the applicant of 30 April 1970 directed to the payment of daily subsistence allowances and notional removal expenses in accordance with Article 10 (1) and (3) of Annex VII to the Staff Regulations and with Article 25 (1) and (3) of the Conditions of Employment of Other Servants.

2. The Commission has applied to the Court, in pursuance of Article 91 of the Rules of Procedure, for a decision on the admissibility of the application without going into the substance of the case.

3. The applicant was engaged by the Commission of the EAEC as a temporary scientific officer by contract of 20 September 1965 and assigned to the Joint Research Centre, Ispra.

4. At first, and until 31 January 1966, he received the daily subsistence allowance provided for by Article 10 (1) of Annex VII to the Staff Regulations and by Article 25 (1) of the Conditions of Employment of Other Servants and granted to an official or temporary servant who furnishes evidence that he can no longer reside at his original place of residence and who has not moved to the place where he is employed.

5. On 27 June 1966, the Head of the Personnel and Internal Administration Branch of the Ispra Centre informed the applicant by memorandum that he did not fulfil the conditions either for payment of the daily subsistence allowance or for repayment of actual or notional removal expenses since before his appointment he had been living at the home of his wife, herself an official of the Ispra Centre, at the place where he was subsequently employed.

6. According to a detailed account contained in this memorandum, the daily subsistence allowances paid from 23 September 1965 to 31 January 1966 were set off against other allowances owed to the applicant and his wife and the applicant was given the choice of either immediately repaying the balance or having it deducted when he was established.

7. In fact, this balance was deducted when the remainder of the installation allowance was paid following the applicant's establishment.

8. It follows from the above that on 27 June 1966 the Community administration took a decision relating to the applicant against which the latter was entitled to appeal under Article 91 of the Staff Regulations.

9. At that time, the applicant had the choice of either lodging a direct appeal to the Court under Article 91 of the Staff Regulations or of submitting to the appointing authority, under Article 90 of the same Staff Regulations a complaint against the decision taken with regard to him.

10. In fact, the applicant made several requests or complaints the first of which of 26 July 1966 invoked Article 90 of the Staff Regulations and was addressed to the Director-General for Personnel and Administration of the Commission in Brussels.

11. Finally, in reply to the various complaints mentioned above, the Head of the Personnel and Internal Administration Branch of the Ispra Centre informed the applicant on 20 March 1970 that his case had been the subject of a further very detailed examination but that this examination had not altered the previous attitude of the administration.

12. Since the applicant did not receive a reply within the period prescribed by Article 91 of the Staff Regulations to a further complaint which he had submitted on 30 April 1970 to the appointing authority, on 6 August 1970 he lodged an application for the annulment of the implied decision rejecting his complaint.

13. The applicant claims that the decisions prior to the one which is the subject of this application were not taken by the competent authority and that his own complaints against these decisions were not addressed to the authority referred to in Article 90 of the Staff Regulations.

14. Consequently he claims that the application lodged following the administration's observations of 20 March 1970 and his complaint of 30 April 1970 is admissible.

15. If the initial decision of 27 June 1966 had been taken by an authority which was not competent it could have been challenged on the grounds of lack of authority.

16. For this reason, if the complaint of 26 July 1966 was not validly submitted the period for lodging an appeal which began to run with the decision of 27 June 1966 expired in accordance with Article 91 (2) after three months, whereas if the complaint of 26 July 1966 were to be considered as having been duly submitted the period for lodging an appeal expired in accordance with the second subparagraph of Article 91 (2) at the latest four months after this complaint was submitted.

17. It follows from the above that, in any event the period for lodging an appeal expired at the latest towards the end of 1966.

18. The communication from the Head of Personnel and Internal Administration Branch of the Ispra Centre of 20 March 1970—the same authority which was allegedly not competent and which took the initial decision—did not have the effect of conferring a new right of appeal since it was a decision which merely confirmed a situation which the memorandum of 27 June 1966 had rendered incontestable.

19. The application must therefore be dismissed as inadmissible.

Costs

20. Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

21. The applicant has failed in his submissions.

22. Although, under Article 70 of the Rules of Procedure in proceedings brought by servants of the Communities, institutions are required to bear their own costs, this provision makes an exception in particular as regards costs which the Court considers that one party has unreasonably caused the opposite party to incur within the meaning of the second subparagraph of Article 69 (3).

23. The application is clearly inadmissible.

24. The preferential provisions of Article 70 of the Rules of Procedure cannot be extended to an application lodged in these circumstances.

25. Consequently, the applicant must be ordered to bear all the costs of the action.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Staff Regulations of Officials, especially Articles 90 and 91 and Articles 7 (3) and 10 (1) and (3) of Annex VII; Having regard to the Conditions of Employment of Other Servants of the Communities, especially Article 25 (1) and (3); Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT (Second Chamber) hereby:

1 Dismisses the application as inadmissible;

2 Orders the applicant to bear all the costs.