JUDGMENT OF 22. 5. 1980 — CASE 142/79 FONTI v PARLIAMENT

In Case 142/79

THE COURT (Second Chamber) composed of: A. Touffait, President of Chamber, P. Pescatore and O. Due, Judges, Advocate General: F. Capotorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

The facts, the course of the procedure, the conclusions and the submissions and arguments of the parties on the admissibility of the application may be summarized as follows:

I — Facts

In November 1975 the applicant, then Miss Fonti, of Italian nationality and resident in Rome, took part in Competition PE/67/C, organized by the European Parliament to draw up a reserve list for the recruitment of Italian-speaking secretaries.

On 5 October 1976 she was offered a contract as an auxiliary for a period of six months and started work with the European Parliament on 25 October 1976.

From the date of her effective employment the applicant received the daily subsistence allowance provided for in Article 69 of the Conditions of Employment of Other Servants of the European Communities and Article 10 of Annex VII to the Staff Regulations for auxiliary staff who furnish evidence of having to change their place of residence to carry out their duties.

On 23 November 1976 the applicant married Franco Geronimo, an official of the European Parliament.

The applicant, whose contract as an auxiliary had been extended beyond the initial period of six months received the daily subsistence allowance until 24 October 1977 in accordance with Article 69 of the Conditions of Employment of Other Servants which provides that the allowance is granted to auxiliary staff for not more than one year.

On 9 December 1977 the European Parliament offered the applicant a post subject to the Staff Regulations as shorthand-typist in Category C, Grade 3, Step 3, with effect from 1 January 1978, the first six months being regarded as a probationary period.

In the offer of employment of 9 December 1977 the European Parliament recognized the applicant as being entitled to the daily subsistence allowance for up to 180 days at the rates, on the terms and subject to the limitations provided for in Article 10 of Annex VII to the Staff Regulations.

In fact the applicant did not receive that allowance. It was expressly excluded on the “fiche d'accompagnement” [accompanying document] of which the applicant was aware shortly after taking up employment as a probationary official.

In a letter dated 21 February 1978 the applicant asked the Head of the Management and Staff Regulations Department why she was not receiving a daily subsistence allowance.

In a letter dated 1 March 1978 the head of the department informed her that “because of the difficulties involved” her case had been submitted to the Preparatory Committee of the Heads of Administrative Services of the institutions of the Community.

On 24 July 1978 the applicant, who had in the meantime been established with effect from 1 July 1978, asked the Head of the Management and Staff Regulations Department for the installation allowance provided for in Article 5 of Annex VII to the Staff Regulations.

In answer to that request the Head of the Management and Staff Regulations Department in a letter dated 11 October 1978 forwarded to the applicant “Opinion No 26/78” which the Heads of Administrative Services had reached at their meeting on 15 September 1978 on the interpretation of the provisions of the Staff Regulations on daily subsistence allowances.

The question put to the Heads of Administrative Services was as follows:

Where a person who, as a member of the auxiliary staff, received a daily subsistence allowance in accordance with Article 69 of the Conditions of Employment of Other Servants, which provides that a member of the auxiliary staff who furnishes evidence that he cannot continue to reside at his former place of residence shall be entitled for not more than one year to the daily subsistence allowance provided for in Article 10 of Annex VII to the Staff Regulations, is appointed a probationary official and marries an official to whom the installation allowance has been granted in accordance with Article 5 of the same Annex VII, is he entitled in his new capacity to the daily subsistence allowance provided for in Article 10 of Annex VII to the Staff Regulations?

That question was answered as follows:

The Heads of Administrative Services are of the opinion that in such case the daily subsistence allowance provided for in Article 10 of Annex VII to the Staff Regulations should not be paid since there has been no removal as provided for in that article.

The head of the department concluded his letter of 11 October 1978 to the applicant by saying that he regretted “therefore not being able to give a favourable answer” to her request.

On 6 November 1978 the Staff Committee asked the Director-General for Administration, Personnel and Finance at the European Parliament to reconsider the applicant's case concerning the payment of removal expenses and the daily subsistence allowance.

On 27 November 1978 the Director-General wrote to the Staff Committee as follows :

“The applicant's file in this case has been very carefully considered several times by my department which, with exaggerated zeal, has even taken the trouble, before giving a final answer to the applicant, to submit the case together with all the facts first to the Preparatory Committee and then to the Heads of Administrative Services. Unfortunately those two bodies also came to an adverse conclusion on the matter. The applicant was always kept informed of the various stages of the proceedings and finally was officially notified of the decision refusing her request with the grounds therefor.”

After a fresh approach by the Staff Committee on 4 December 1978 the Director-General replied by letter dated 11 December that since the department responsible had studied the file thoroughly “it would be inconceivable for it to reach a different conclusion unless there were further factors which could be taken into account”.

At the end of his letter the Director-General reminded the Staff Committee that the Staff Regulations allow an official to object to decisions by the administration pursuant to Articles 90 and 91.

On 20 February 1979 the applicant lodged with the Secretary-General of the European Parliament a complaint under Article 90 (2) of the Staff Regulations against the decision of the administration refusing her the daily subsistence allowance and reimbursement of removal expenses.

The European Parliament did not answer her complaint.

II — Written procedure

On 13 September 1979 the applicant brought an action in which she claims that the Court should:

Declare that the implied decision rejecting her complaint of 20 February 1979 is illegal; consequently declare it to be null and void;

Declare that the European Parliament must pay the applicant both the daily subsistence allowance for seven months and the removal costs to be incurred;

Declare that the sums in question shall bear interest at 6% from the date on which this action was brought;

Order the European Parliament to pay the costs.

On 14 December 1979 the European Parliament applied to the Court under Article 91 (1) of the Rules of Procedure for a ruling on the admissibility of the action without entering into the merits, a declaration that the action is inadmissible and an order as to costs in accordance with the relevant provisions.

In her observations lodged on 14 January 1980 the applicant asked the Court principally to dismiss the objection to admissibility or alternatively to join it to the substantive issues.

After hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court (Second Chamber) decided to open the oral procedure only with regard to the objection to admissibility without holding a preparatory inquiry. It nevertheless requested the parties to forward certain documents, which they did within the prescribed time-limits.

III — Submissions and arguments of the parties during the written procedure with regard to the admissibility of the action

The European Parliament, defendant in the main action, applicant in relation to the objection to admissibility, considers that the action is altogether inadmissible.

A — Daily subsistence allowance

a) The measure adversely affecting Mrs Geronimo is the letter of 11 October 1978 signed by the Head of the Management and Staff Regulations Department informing her of the adverse opinion of the Heads of Administrative Services and consequently of the rejection of her request. She ought to have submitted a complaint against that measure to the Appointing Authority in accordance with Article 90 (2) of the Staff Regulations. The period for doing so, three months from the date of notification of the decision to the person concerned, expired on 11 January 1979. Since the applicant did not make her complaint to the Secretary-General of the European Parliament until 20 February it was out of time; consequently the action is inadmissible.

b) The letter from the Head of the Management and Staff Regulations Department of 11 October 1978 has all the characteristics of an administrative decision: it refers to Mrs Geronimo's application, states that it had been investigated and sets out the result with the reasons therefor. The reasons were expressed in the very terms of the opinion of the Heads of Administrative Services who on considering the particular case which had been submitted to them found that the condition laid down by the Staff Regulations was not satisfied. The letter was signed by the head of the department to whom the request had been made and who was authorized to forward to the applicant the decision taken by the Heads of Administrative Services. The Head of the Management and Staff Regulations Department at the European Parliament has been concerned for years with questions arising in connexion with all the allowances provided for in Annex VII to the Staff Regulations; that position is perfectly well known to the applicant. The Director-General, to whom the President of the Staff Committee put the matter, for his part referred to the investigation carried out and the decisions taken by the department responsible. The adverse decision was taken by the Heads of Administrative Services, a body of which the Director-General of the Administration of the European Parliament is a member. He thus took part in the decision challenged for which he is in any event responsible. If the applicant had been of the opinion that the decision was ultra vires it was open to her plead so in her application.

c) The letter from the Director-General for Administration, Personnel and Finance of 11 December 1978 is in no way the first decision in respect of the applicant. That letter is the answer to the President of the Staff Committee, who had intervened on behalf of the applicant, and can in no way be regarded as the decision appealed against.

First of all it is not addressed to the official concerned as is required by the second paragraph of Article 25 of the Staff Regulations. A decision adversely affecting an official cannot be notified to the person concerned through the intermediary of a third party even if he is the President of the Staff Committee.

Secondly the letter contains no decision but refers to the previous correspondence and to the decision of the department responsible. The first letter of 27 November 1978, to which the letter of 11 December 1978 refers, also contains no decision but merely refers to the detailed investigation of the case decided previously. Even assuming the letter cited by the applicant confirmed the decision — which it did not — it would not, according to the case-law of the Court, start time running afresh (judgment of 14 July 1965, Joined Cases 50, 51, 53, 54 and 57/64 Loebisch and Others ν Councils of the EEC, EAEC and ECSC [1965] ECR 825; judgment of 7 July 1971, Case 79/70 Müllers ν Economic and Social Committee of the EEC & EAEC [1971] ECR 689).

B — Removal expenses

a) The applicant has never asked for removal expenses and no decision has been taken with regard thereto.

b) The letter from the President of the Staff Committee to the Director-General dated 6 November 1978 certainly included removal expenses, but in fact it related only to the daily subsistence allowance which was the only one claimed by the applicant. The subsequent correspondence also deals which the same subject even if in his letter of 4 December 1978 the President of the Staff Committee included in the heading both the installation allowance and reimbursement of removal expenses. In any event the President of the Staff Committee only intervened on behalf of the applicant and did not act as her attorney. Prior to the complaint of 20 February 1979 the applicant had therefore not submitted a request for reimbursement of removal expenses and no decision could have been taken. The complaint within the meaning of Article 90 (2) of the Staff Regulations is therefore inadmissible because there is no act adversely affecting her.

c) In the event of the applicant maintaining that a request by her was unnecessary because according to Internal Directive No 75/78 of 29 October 1978 written authority for removal should have been issued to her upon her establishment, it should be stated that having received no such authorization by the end of her probationary period or at the latest with the letter dated 29 September 1978 informing her of the establishment, the applicant ought to have regarded such omission as a failure to adopt a measure prescribed by the Staff Regulations within the meaning of Article 90 (2). Accordingly a complaint ought to have been lodged within a period of three months, that is to say at the latest by 29 December 1978. Since it was not lodged until 20 February 1979 the complaint was out of time and the application is therefore inadmissible.

Mrs Geronimo, applicant in the main action, defendant to the objection to admissibility, considers the objection to admissibility made by the European Parliament as unfounded and purely dilatory.

A — Daily subsistence allowance

a) The letter dated 21 February 1978 to the Head of the Management and Staff Regulations Department could be regarded at the most as only a request for an explanation. It was intended to draw attention to the rights of the applicant and it was addressed to its recipient in his capacity, not as appointing authority, but only as head of her department. The Court (judgment of 8 February 1973, Case 56/72 Goetb ν Commission [1973] ECR 181 at p. 187; judgment of 4 April 1973, Case 31/72 Angelini ν European Parliament [1973] ECR 403 at pp. 408 and 409) has repeatedly held that such a letter cannot constitute a request making time start to run for bringing an action against the failure to act.

b) The letter dated 11 October 1978 from the Head of the Management and Staff Regulations Department informed the applicant of the position adopted by the Heads of Administrative Services but not of the refusal of her request. The Court has held (judgment of 5 April 1973, Case 51/72 Noé-Dannwerth ν European Parliament [1973] ECR 433 at p. 442) that because of the equivocal nature of the communication made in answer to a request the person concerned may rightly consider that she is still within the time-limits.

c) The letter dated 11 October 1978 cannot for several reasons be regarded as a decision. According to the case-law of the Court (judgment of 1 February 1979, Case 17/78 Desbormes ν Commission [1979] ECR 189 such letters are “only acts coming within the category of administrative information, because they did not come from an appointing authority as required by the Conditions of Employment for establishing a decision”. There had not been alleged any delegation in favour of the Head of the Management and Staff Regulations Department; in any event such delegation could only have been done secretly and would therefore be ineffective. The letter dated 11 October 1978 nowhere uses the term “decision” or an equivalent and its form could not have led one to think it was of such nature. The letter refers to an opinion given at a meeting of the Heads of Administrative Services; that meeting does not constitute an appointing authority; it has not been shown that the meeting had to deal with the specific case of the applicant; it is irrelevant that the Director-General responsible was present at the meeting and that he was allegedly accountable for the decision taken. The fact that “at the European Parliament [he] has been concerned for years with questions arising in connexion with all the allowances provided for in Annex VII to the Staff Regulations” has no legal significance. The fact that the applicant addressed herself to her Head of Department shows that she did not intend to make a request to him within the meaning of Article 90 of the Staff Regulations. At no time moreover did she request a decision from him but simply asked him to give her certain explanations. According to Article 25 of the Staff Regulations any decision adversely affecting an official must state the grounds on which it is based. That requirement means that every specific decision must state the specific grounds on which it is based. No specific grounds are stated in the alleged “decision” of the head of department. Reference to “Opinion No 26/78” cannot supply it especially as in the letter no responsibility for the grounds is assumed.

d) The true decision is contained in the letter from the Director-General dated 17 November 1978. Therefore the complaint is not out of time since it was made within three months. That letter cannot be regarded as confirmation of a previous decision and time could not begin to run before it was received: prior to it there was no decision within the meaning of the Staff Regulations. In his second letter, dated 11 December 1978, the Director-General refers moreover discreetly only to “attitudes of the administration” and not to “decisions”. An attitude binds no one; an action must be founded on a decision with adverse effects. That is not the case here.

The fact that the “decision adversely affecting her” was notified to the applicant by a third party is irrelevant: there is nothing to prevent an official from choosing as attorney the President of the Staff Committee which, according to Article 9 (3) of the Staff Regulations, represents the interests of the staff vis-à-vis their institution.

B — Removal expenses

a) It is true that an application for reimbursement of removal expenses was never submitted, but the applicant should not be reproached for having asked for the installation allowance without at the same time seeking reimbursement of removal expenses since the two allowances are neither linked nor even connected.

b) It is doubtful whether Internal Directive No 75/78 applies to the applicant's case. The question also arises whether such directive can supplant the provision of the Staff Regulations according to which the removal must take place within the year following the expiry of the probationary period.

c) As to the fact that the applicant did not make a complaint in accordance with Article 90 (2) of the Staff Regulations within three months after finding that she had not received written authority to effect her removal, it should be observed that disregard of an internal directive cannot constitute failure to take a measure required by the Staff Regulations.

d) The applicant discovered only as a result of the information given to her on 11 October 1978 by her head of department that the reimbursement of her removal expenses was in doubt. Before the letter from the Director-General dated 27 November 1978 the applicant had not been informed of any refusal to pay her removal expenses. There can therefore be no question of the application being out of time.

e) As regards the objection that the applicant has never submitted a request for reimbursement of removal expenses and that no decision therefore has been taken with regard thereto, it should be observed that every request for the daily subsistence allowance involves removal by reason of the fact that there is a change of residence. Moreover the alleged “decision” of the Heads of Administrative Services contained by implication a refusal to reimburse removal expenses.

Since the letter dated 11 October 1978 could not validly constitute a decision, the applicant's attorney, the President of the Staff Committee, formally submitted a request to the Director-General, by letter dated 6 November 1978, for payment of removal expenses. The answer from the Director-General constitutes a formal refusal of the request for reimbursement of the removal expenses and the subsistence allowance.

IV — Oral procedure

The European Parliament, represented by Pierre Prüm, assisted by Manfred Peter, Head of the Department for Administrative and Legal Questions, and Mrs Geronimo, represented by Victor Biel, submitted oral observations on the question of the admissibility of the action and replied to questions put by the Court at the hearing of 20 March 1980.

The Advocate General delivered his opinion on 24 April 1980.

Decision

1. By an action brought on 13 September 1979 the applicant, an official at the European Parliament, claims that the Court should annul, pursuant to Article 91 of the Staff Regulations, a decision refusing to pay the “daily subsistence allowance” provided for in Article 10 of Annex VII to the Staff Regulations and reimbursement of removal expenses to which she is entitled under Article 9 of the same Annex.

2. In a separate document lodged under Article 91 of the Rules of Procedure the Parliament objected to admissibility by reason, on the one hand, of the late nature of the complaint originating the application and, on the other, of the absence of a decision relating to removal costs, as the applicant had not submitted any request in relation thereto. The Court decided to open the oral procedure on the objection alone.

3. It is apparent from the file that the applicant, who previously lived in Rome, worked for the European Parliament as a member of the auxiliary staff from 25 October 1976 to the end of 1977. She received by reason of the change of her place of residence the daily subsistence allowance for the period extending from the beginning of her employment until 24 October 1977 under Article 69 of the Conditions of Employment of Other Servants which refers to Article 10 of Annex VII to the Staff Regulations.

4. After being successful in a competition held by the Parliament the applicant was offered a post subject to the Staff Regulations as a shorthand-typist from 1 January 1978. In the letter of appointment of 9 December 1977 signed by the Director-General of the Administration it was stated that she would receive in addition to her salary, a daily subsistence allowance of Bfr 560 from the first to the fifteenth day reduced to Bfr 280 from the sixteenth day for a total period of up to 180 days on the terms and within the limits specified in Article 10 of Annex VII to the Staff Regulations.

5. It is agreed that that allowance was not paid to the applicant. By letter dated 21 February 1978 the applicant drew the attention of the Head of the Management and Staff Regulations Department to that omission reminding him of the assurance which had been given in the letter of appointment. On 1 March 1978 the Head of the Management and Staff Regulations Department acknowledged receipt of the letter and informed the applicant that in view of the difficulties which it raised her case had been submitted for consideration by the Preparatory Committee for Meetings of Heads of Administrative Services. He added that in the meantime the case would remain open and that the applicant would be kept informed of developments in relation to her application.

6. By letter dated 11 October 1978 the Head of the Management and Staff Regulations Department informed the applicant that at their meeting on 15 September 1978 the Heads of Administrative Services had reached an adverse opinion regarding her case and that as a result he regretted that her request could not be granted. A copy of the resolution adopted at the meeting of the Heads of Administrative Services was enclosed with that letter.

7. As a result the applicant addressed herself to the President of the Staff Committee who repeatedly approached the Director-General of Administration to settle the case in the applicant's favour. It was in one of his letters, dated 6 November 1978, that the President of the Staff Committee for the first time referred to the reimbursement of removal expenses apart from the question of the daily subsistence allowance.

8. By letter dated 27 November 1978 the Director-General of Administration informed the President of the Staff Committee that the applicant's file had several times been carefully considered by his department which had taken the trouble, before giving a final answer to the applicant, to submit her case to the Preparatory Committee and to the meeting of the Heads of Administrative Services. He added that unfortunately both of those bodies had also reached an adverse opinion, that the applicant had been kept informed at the various stages of the proceedings and that finally she had been officially notified of the refusal with the grounds therefor.

9. In answer to a fresh protest from the President of the Staff Committee the Director-General of Administration, by letter dated 11 December 1978, confirmed once again the attitude of the administration and recalled that where there is a difference of opinion every official is entitled to make a complaint and bring an action as provided for in Articles 90 and 91 of the Staff Regulations.

10. On 20 February 1979 the applicant sent the Secretary-General of the European Parliament a formal complaint under Article 90 (2) of the Staff Regulations on the ground that the administration was not granting her, following her appointment as an official, either the daily subsistence allowance or reimbursement of her removal expenses.

11. When the administration did not answer that complaint the applicant brought the matter before the Court in the above-mentioned circumstances.

12. In order to consider whether the objection raised by the European Parliament is well founded it is right to consider the admissibility of the action with regard to the claim relating to the daily subsistence allowance separately from that relating to removal expenses.

Claim for the daily subsistence allowance

13. Article 90 (2) of the Staff Regulations provides that any person to whom those Staff Regulations apply may submit to the appointing authority a complaint against an act adversely affecting him. The complaint must be made to the appointing authority within three months which runs from the date of notification of the decision to the person concerned, but in no case later than the date on which the latter received such notification.

14. The parties disagree as to the act adversely affecting the applicant. The applicant takes the view that it is constituted by the answer sent on 27 November 1978 by the Director-General of Administration to the President of the Staff Committee following the intervention of the latter on behalf of the applicant. The formal complaint dated 20 February 1979 was, according to the applicant, therefore made in time.

15. The administration of the European Parliament considers that the letter dated 27 November 1978 has no other purport than to refer to and explain a previous decision which, according to the context, could only be the letter sent on 11 October 1978 to the applicant herself following the resolution at the meeting of the Heads of Administrative Services. In relation to that decision the formal complaint of 20 February 1979 was made therefore after the expiry of the period laid down by Article 90 (2) of the Staff Regulations.

16. The Court considers that the complaint by the applicant was indeed made out of time.

17. It is apparent from the letter sent on 21 February 1978 by the applicant herself to the Head of the Management and Staff Regulations Department that she had certainly noticed from the beginning of the payment of her monthly salary that, contrary to the assurance given in the letter offering her employment, the daily subsistence allowance had not been granted to her. In answer to her request for explanation the applicant was informed immediately on 1 March 1978 that her file was being examined by the administration and that her case would in the meantime remain open.

18. By letter dated 11 October 1978 the Head of the Management and Staff Regulations Department finally informed the applicant that it was impossible for the administration to give a favourable reply to her request for the daily subsistence allowance. The extract from the. deliberations of the Heads of Administrative Services enclosed with that letter allowed the applicant to recognize that the refusal by the administration was based on two circumstances: on the one hand the fact that she had already received the daily subsistence allowance for one year as a member of the auxiliary staff during the period prior to her appointment as an official; on the other the fact that there was no removal when she was appointed so that she did not satisfy the condition of a change of residence laid down in Article 10 of Annex VII to the Staff Regulations.

19. In those circumstances it is beyond question that the letter dated 11 October 1978 constitutes, in the present case, the “act adversely affecting” the official within the meaning of Article 90 (2) of the Staff Regulations. It is therefore that act which caused to start to run the period of three months for lodging complaints contained in the said provisions since the applicant, by the said act, was informed of a decision put forward as final.

20. For its part the letter dated 27 November 1978 and signed by the Director-General of Administration can by no means be regarded as being of such a nature. On the one hand that letter is not addressed to the applicant but to a third party who was taking steps on her behalf. Further that letter, like that of 11 December 1978, had no purpose other than to explain a previous decision which, it is said, had been officially notified to the applicant herself. It must be stressed that in the letter dated 11 December 1978, written when the period for complaint against the decision dated 11 October 1978 had not yet expired, the administration had even taken the trouble expressly to draw the attention of the President of the Staff Committee to the possibilities of complaint and action which the applicant had under Articles 90 and 91 of the Staff Regulations.

21. It follows from the foregoing that the first claim in the application must be declared inadmissible since no complaint was made to the appointing authority within the period provided for in Article 90 (2).

Claim regarding removal expenses

22. In her complaint made on 20 February 1979 the applicant also alleges that the administration denied her the right to reimbursement of removal expenses.

23. It must be recalled in this respect that according to Article 9 of Annex VII to the Staff Regulations the allowance on removal takes the form of reimbursement of expenses actually incurred and that such reimbursement can be made only subject to the limit of an estimate previously approved by the administration. It is established that none of the conditions laid down by that provision has been satisfied by the applicant and that the administration has received no request regarding this matter in accordance with the Staff Regulations.

24. It accordingly appears that in this respect the action has no purpose.

25. It follows from the foregoing that the action is inadmissible as a whole.

Costs

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

27. Nevertheless under Article 70 of the Rules of Procedure in staff cases the institutions shall bear their own costs.

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

1 Dismisses the application as inadmissible;

2 Orders the parties to bear their own costs.