C-1/76

JUDGMENT OF 15. 6. 1976 — CASE 1/76 WACK v COMMISSION

CELEX: 61976CJ0001
Datum: 1976-06-15
Källa: eur-lex.europa.eu

THE COURT (Second Chamber) composed of: H. Kutscher, President of Chamber, P. Pescatore and M. Sørensen, Judges, Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts, the procedure and the arguments of the parties put forward in the course of the written procedure may be summarized as follows:

I — Statement of facts

1. The applicant, of German nationality, was born in Schmelz (Saarland) on 14 December 1946. In March 1956 her father entered the service of the High Authority in Luxembourg where he set up house with his family. After attending school in Luxembourg the applicant followed a course of vocational training there from September 1963 to July 1965. From July 1965 to August she held a number of posts, with some interruptions, in private undertakings in Luxembourg. In 1966 she married a Luxembourg national whilst retaining her German nationality. She has two children born in 1971 and 1972. The said marriage was dissolved by divorce in November 1974. The mother was given custody of the children.

2. On 5 September 1972 the applicant entered the service of the Commission as a probationer in Category C, Grade 4, employed at the Statistical Office in Luxembourg. She was established with effect from 5 March 1973. At present she is still employed at the Statistical Office.

3. By a letter dated 16 January 1975 the applicant asked the Administration what conditions she must fulfil as a German national in order to qualify for the expatriation allowance referred to in Article 4 of Annex VII to the Staff Regulations of Officials (hereinafter referred to as ‘the Staff Regulations’) which is worded as follows: In its reply of 24 January 1975 the personnel branch of the Commission in Luxembourg notified the applicant in particular that since she was the child of an official the period of five years laid down in the second indent of Article 4 (a) of Annex VII to the Staff Regulations only began to run when she attained her majority on 14 December 1967 and that consequently, since she entered the service on 5 September 1972, the condition of the said article with regard to residence could not be applied to her. However, she did not fulfil the condition laid down in the said article with regard to occupation. In a letter of 27 January 1975 the applicant disputed the fact that she did not fulfil this latter condition. In its reply of 31 January 1975 the Administration stated that it had submitted the question to the Staff Regulations Division of the Commission in Brussels. On 27 May 1975 the applicant was notified by the Administration in Luxembourg that it was clear from a letter from the Staff Regulations Division that she did not fulfil the requirement set by the said article with regard to residence and that consequently she was not entitled to the expatriation allowance. By a complaint dated 18 June 1975 under Article 90 (2) of the Staff Regulations the applicant requested the defendant to reconsider its negative decision. By a letter of 15 October 1975 signed by the Member of the Commission in charge of staff matters the Administration rejected this complaint on the ground that the applicant had resided ‘not only habitually but permanently’ in Luxembourg during the period of five years which expired six months before she took up her duties, that is from 5 March 1967 to 5 March 1972. The Commission found that in the circumstances of the present case the period of five years took effect not from the date when the applicant legally attained her majority — 14 December 1967 — but from the date of her marriage — 12 August 1966 — since from that date there no longer existed any connexion or state of dependence between her home and that of her father.

‘An expatriation allowance shall be paid, equal to 16 % of the total amount of the basic salary plus household allowance and dependent child allowance paid to the official:

a) to officials:

who are not and have never been nationals of the State in whose European territory the place where they are employed is situated; and

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;

b) …’.

II — Procedure

1. On 2 January 1976 the applicant lodged this application for the annulment of the decision of the Commission of 15 October 1975.

2. In the application the applicant particularly maintains as to the substance that she did not habitually reside in the Grand Duchy during the relevant period. She claims that she spent long periods at her place of origin, Schmelz, in Germany and produces a certificate from the local authority at Schmelz to the effect that she is registered as having her principal residence there. As regards her occupation, there were so many interruptions that it cannot be considered as having been carried on habitually. There were interruptions amounting to eight and a half months and the last of these was definitive since she did not intend to resume work. The applicant claims that the application is admissible because she initiated proceedings within the periods prescribed by Articles 90 and 91 of the Staff Regulations: on 18 June 1975 she submitted a complaint against the decision of the Administration of 27 May 1975 and on 2 January 1976, that is to say within three months of the decision of the Commission of 15 October 1975, she lodged an application with the Court. The system of time-limits laid down by the Staff Regulations is moreover open to criticism because of the unequal footing on which it places officials, on the one hand, and the administrative authority on the other.

3. By a statement lodged on 5 February 1976 the Commission, in accordance with Article 91 of the Rules of Procedure, requested the Court to give a decision on a preliminary objection as to the admissibility of the application, to declare the application inadmissible and to order the applicant to bear the costs.

4. In her statement on the objection of inadmissibility, lodged on 4 March 1976, the applicant requested the Court to dismiss the objection of inadmissibility out of hand or alternatively to reserve its decision for the final judgment. With regard to the criticism directed in her application against the system of time-limits laid down in Articles 90 and 91 of the Staff Regulations the applicant asks, as a further alternative, that the Court should rule that this system is illegal and that consequently her application is not out of time. The applicant requests the Court to order the Commission to bear the entire costs or, if not, the major part of them since it has in this case failed to respect the principles of good administration.

5. Having heard the report of the Judge-Rapporteur and the views of the Advocate-General the Court decided to open the oral procedure without a preparatory inquiry.

III — Submissions and arguments of the parties as to the admissibility of the application

1. The defendant, the applicant with regard to the procedural issue, puts forward as the first ground of admissibility the fact that the application is inadmissible because the applicant did not submit a complaint within the period of three months laid down in Article 90 (2) of the Staff Regulations running from the day when she first learned of the act adversely affecting her, that is to say the first administrative decision refusing to grant her the expatriation allowance. In accordance with Article 91 (2) her application is thus inadmissible.

2. Since July 1972 when she received the offer of employment the applicant knew that she would not receive the allowance in question. She nevertheless agreed to be employed on those terms. In September 1972 examination of her first monthly salary statement would have shown her that she had been refused the expatriation allowance. In November 1972 she might moreover have obtained confirmation of that fact when she received the first personnel individual record sheet relating to her; by the absence of any positive entry under the head ‘expatriation allowance’ it clearly showed that the allowance had been refused. In accordance with firmly established case-law (Case 33/72, Gunnella [1973] ECR 475; Case 36/72, Meganck [1973] ECR 527; Case 56/72, Goetb-Van der Schueren [1973] ECR 181; Joined Cases 15 to 33/73 etc. Schots (née Kortner) and Others [1974] ECR 177) communication to the person concerned of those various documents (salary statement and personnel individual record sheet) constitutes notice, repeated on each occasion, of the administrative decision refusing the expatriation allowance.

3. Regulation No 558/73 of the Council of 26 February 1973 (OJ 1973, L 55, p. 1) repealed with effect from 1 July 1972 the former Article 4 (3) of Annex VII to the Staff Regulations which was worded as follows: Even on the supposition that the applicant did not at the outset consider herself adversely affected by the decision refusing the expatriation allowance, the fact that none the less in the course of 1973 the initial decision refusing the expatriation allowance was maintained, whilst the former Article 4 (3) was repealed could certainly not be viewed in any other light than as adversely affecting her.

‘An official who marries a person who at the date of marriage does not qualify for the allowance shall forfeit the right to expatriation allowance unless that official thereby becomes a head of household.’

4. The defendant concludes from this that since the applicant's notice of the act adversely affecting her dates from September 1972 (if not indeed from July 1972) on the first view above (cf. point III, 2) or possibly from March 1973 on the second view (cf. point III, 3) in accordance with the Staff Regulations her complaint required to be lodged at the latest before the end of 1972 (on the first view) or at the latest during the second fortnight in June 1973 (on the second view).

5. The defendant submits as the second ground of inadmissibility the fact that on 16 January 1975 the applicant submitted a claim relating to her entitlement to the expatriation allowance and that as early as 24 January 1975 she received the reply thereto to the effect that it was impossible to award her the allowance in question. With a view to subsequent court proceedings governed by the conditions as to admissibility laid down in Article 91 (2) of the Staff Regulations the applicant ought to have lodged a complaint with the defendant within three months from receipt of the letter of 24 January 1975, that is to say before the end of April 1975. The complaint submitted on 20 June 1975 is thus out of time. The letter of the Commission of 27 May 1975 merely confirms the conclusions of the first letter of 24 January 1975 and for this reason cannot cause a new period for commencing proceedings to start to run.

6. With regard to the criticism directed by the applicant against the system of time-limits laid down by the Staff Regulations the defendant states in particular that although an official may be time-barred from contesting the legality of a decision vitiated by error it is not inconceivable that it would be held admissible for an official to institute proceedings for compensation in the context of an application against a wrongful act or omission deliberately perpetrated by the administration through its refusal to rectify the clear error vitiating its measure. The disparity between the position of an official and that of the administration is thus not so pronounced as the applicant maintains.

7. The applicant, the defendant in the procedural issue, replies to the first objection of admissibility to the effect that she did not consider the offer of employment, first salary statement and the first personnel individual record sheet as adversely affecting her since she thought that under the former Article 4 (3) of the Staff Regulations she had by her marriage lost any right which she might have to the expatriation allowance. Besides, she was engaged in a dispute with the administration over family allowances and did not wish to counter this by contesting the expatriation allowance whilst this dispute was not settled.

8. With regard to the second ground of inadmissibility the applicant claims that the letter of 16 January 1975 was not a request within the meaning of Article 90 (1) of the Staff Regulations but was merely a request for information. There is an established series of decisions of the Court to the effect that a letter from an official intended to point out to the competent authority the rights to which the person concerned considers he is entitled does not constitute a request marking the beginning of the period for the lodging of an application on the ground of failure to act (see Cases 56/72, Goeth-Van der Schueren [1973] ECR 181; 31/72, Angelini [1973] ECR 403; 51/72 Noe-Dannwerth [1973] ECR 433 and 60/72, Campogrande [1973] ECR 489). Consequently no decision was adopted on 24 January 1975 and thus on 27 May 1975 there was no confirmation of an earlier decision but a first decision in the matter. Furthermore, on the supposition that the applicant's letter dated 16 January 1975 must be considered as a request the head of the division was not competent to take a decision since this was reserved exclusively to the Commission according to Catalogue C annexed to the decision of the Commission on the exercise of the powers of the appointing authority adopted in Brussels on 26 February 1971 and published in Staff Courier No 156a of 31 March 1971.

9. The divorce of the applicant which dates from 13 November 1974, the date when the registrar of births, deaths and marriages recorded the the divorce, constitutes a new fact in this case. The list of the points of departure for the periods under Article 90 (2) of the Staff Regulations does not envisage the eventuality of a new fact arising. On the other hand the Staff Regulations do not recognize any period of time within which a request must be made as provided for in Article 90 (1). In order to succeed in its objection that the application is out of time the defendant must prove that after the new fact it adopted and notified to the applicant a decision refusing the award of an expatriation allowance, and this was not done. It is futile for the defence to cite the judgments in the cases of Gunnella, Meganck and Schots (née Kortner) and Others: no new fact was present in those cases. It thus cannot be objected against the applicant that she delayed in taking up the question of the expatriation allowance. Furthermore the request of 27 January 1975 was submitted within three months of the new fact.

10. With regard to the unlawfulness of Articles 90 and 91 of the Staff Regulations the applicant claims that the examples of discrimination which exist violate a number of principles of law; the principle error communis non facit ius; the principle that the parties should be on an equal footing with regard to time-limits, a principle recognized by the Codes Napoleon; the principle of equality of time-limits founded on most of the laws governing the public service; the general principle that the parties should be on an equal footing before the courts. They also infringe one of the basic concepts of English legislation and law: ‘Equity will not suffer a wrong to be without a remedy’ and ‘Effect is to be given to both legal and equitable rights’. Cases of discrimination between institutions and their servants are not recognized in many national legal systems and national regulations governing the public service do not recognize a different system of time-limits depending on whether the State as employer or the official is concerned. The period within which and the day from which the parties are required to initiate proceedings must be the same for the parties, that is to say the day on which the applicant learned of the fact on which the application for a review is based. The remedy advocated by the defendant for those cases of discrimination, that is to say an action for reparation, is unsatisfactory because it is very difficult to provide evidence of the wrongful act or omission deliberately perpetrated and of the clear error vitiating the measure. The applicant, represented by Victor Biel, Advocate of the Luxembourg Bar, and the Commission, represented by its Legal Adviser, Joseph Griesmar, acting as Agent, presented oral argument at the hearing on 6 May 1976. The Advocate-General delivered his opinion at the hearing on 26 May 1976.

Law

1. The application, which was lodged at the Court Registry on 2 January 1976, is for the annulment of a decision of the Commission of 15 October 1975 whereby the Commission refused to award the applicant the expatriation allowance under Article 4 (a) of Annex VII to the Staff Regulations of Officials.

2. By a statement on a procedural issue lodged on 5 February 1976 the defendant raised under Article 91 of the Rules of Procedure an objection of inadmissibility founded on the fact that the application had not been preceded within the period prescribed in Article 90 (2) of the Staff Regulations by a complaint through official channels directed against the act adversely affecting the applicant.

3. In this connexion the defendant claims that the decision not to award the applicant the expatriation allowance was adopted when she entered the service of the Commission in September 1972 and was notified to her on any interpretation by her first monthly salary statement and by the first personnel individual record sheet dated 7 November 1972.

4. On the other hand the applicant claims that the act adversely affecting her was constituted by the letter of 27 May 1975 whereby the Directorate for Personnel of the Commission confirmed to her that she did not fulfil the conditions laid down by the Staff Regulations for qualifying for the expatriation allowance.

5. The sending of the monthly salary statement has the effect of starting the time for appeal running, where it clearly shows the decision taken.

6. That condition is fulfilled in the present case.

7. The subsequent letters of the Commission in reply to the requests submitted by the applicant merely confirmed the earlier decision and thus could not result in starting a fresh period to run in favour of the applicant.

8. The applicant nevertheless claims that her divorce, which took place on 13 November 1974, whereby she was given custody of her two children, constitutes a new fact which puts the question of the expatriation allowance on a new basis.

9. Whatever the effects which would flow in other circumstances from such a new fact the argument cannot be accepted in the present case since the marital status of the applicant and the question whether she had dependent children were not at any time, before or after the divorce, taken into consideration by the Commission in justifying its refusal of the expatriation allowance.

10. It must thus be concluded that a complaint directed against the act adversely affecting the applicant was not submitted within the period laid down in the Staff Regulations and that the application is consequently inadmissible under Article 90 (2) thereof.

Costs

11. The applicant has failed in her application.

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

13. Nevertheless, under Article 70 of the Rules of Procedure the costs incurred by institutions in actions brought by servants of the Communities shall be borne by such institutions

On those grounds, THE COURT (Second Chamber) hereby:

1 Dismisses the application as inadmissible;

2 Orders each party to bear its own costs.