JUDGMENT OF 2.7.1981 — CASE 185/80 GARGANESE v COMMISSION
In Case 185/80
THE COURT (First Chamber) composed of: T. Koopmans, President of Chamber, A. O'Keeffe and G. Bosco, Judges, Advocate General: G. Reischl Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts and Issues
I — Facts and procedure
Cosimo Garganese, an Italian national who was born in Monopoli (Italy) on 9 December 1950, emigrated with his family to the Grand Duchy of Luxembourg on 18 May 1962.
He settled first in Diekirch, where he resided until 2 March 1976, except for the period from 5 May 1970 to 15 April 1972 during which he performed his military service in Italy, and subsequently moved to the City of Luxembourg.
In 1979, in response to an advertisement which appeared in the Luxembourg press, he applied for a post of temporary servant at the Commission's Joint Research Centre at Ispra (Italy).
Following the success of his application, on 1 June 1979 he signed a contract of employment as a temporary servant in Grade C 3 and took up his duties at Ispra on 3 September 1979.
On receiving his salary slip for the months of September and October 1979, Mr Garganese noticed that it did not mention the expatriation allowance to which he considered himself entitled under the Staff Regulations of Officials and Other Servants of the European Communities. By a memorandum of 11 October 1979 addressed to Mr Ellerkmann, the Site Director at the Joint Research Centre, he requested that he be paid that allowance.
As that request was still not granted despite the intervention of the Commission's “mediator” on both 22 October 1979 and 22 January 1980, Mr Garganese lodged a fresh request on 30 January 1980 using a form designed for that purpose by the administration.
After the period of four months provided for by Article 90 (1) of the Staff Regulations had expired without any reply being given to him,.Mr Garganese submitted a complaint under paragraph (2) of that article to the Commission on 1 July 1980.
In the meantime, by decision of 23 June 1980 notified to Mr Garganese by a letter dated 8 July 1980, the Commission had rejected his request, describing it moreover as a complaint under Article 90 (2) of the Staff Regulations.
On 4 September 1980 Mr Garganese lodged an application with the Court of Justice against that decision.
On hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court (First Chamber) decided to open the oral procedure without any preparatory inquiry.
II — Conclusions of the parties
Mr Garganese claims that the Court should:
1. Declare the application admissible;
2. Declare it well founded in substance; and consequently: Annul the Commission's decision of 23 June 1980; Hold that the applicant fulfils the conditions for the award of the expatriation allowance provided for by Article 4 (1) (b) of Annex VII to the Staff Regulations; Declare that from 3 September 1979 the defendant has unlawfully withheld payment of the expatriation allowance from the applicant; Order the defendant to pay the expatriation allowance as from 3 September 1979 together with default interest at 6 % per annum on the arrears of expatriation allowance, that interest to be calculated as from the various dates on which payment fell due to the date of payment; Order the defendant to pay the costs of the action. The Commission contends that the Court should: Dismiss the application as inadmissible and, in any event, as unfounded; Order the applicant to pay the costs.
III — Submissions and arguments of the parties
The admissibility of the application
The Commission, in its defence, raises an objection of inadmissibility.
It submits that the contested decision merely confirms an earlier implied but definite decision refusing to pay the applicant the expatriation allowance. That previous decision is apparent from the salary slip for the months of September and October 1979, a document of which the applicant had knowledge no later than 11 October 1979. Any complaint against that measure should therefore have been lodged within the following three months with the result that the complaint submitted by the applicant on 30 January 1980 was out of time and his application inadmissible.
It adds that the complaint of 30 January 1980 may under no circumstances be classified as a “request” under Article 90 (1) of the Staff Regulations, as proposed by the applicant. Indeed, such a request could be submitted only if no decision had yet been taken. If this were not so, the distinction made by Article 90 of the Staff Regulations between a request and a complaint would be meaningless, because a request is not subject to any time-limit, and those concerned would be enabled to challenge an act adversely affecting them at any time.
In his reply, Mr Garganese claims that the application is admissible.
He observes in the first place that the contested decision makes no reference to an earlier implied decision refusing payment but considers only the substance of the matter. The Commission may not therefore put forward in the course of proceedings before the Court a submission alleging that the complaint was out of time when the contested express decision made no reference to such a point.
He adds that the contested decision cannot be confirmatory in nature when it is based on incorrect basic data which influenced the earlier decision (in a note from the Head of the Commission's Staff Regulations Division it is indicated that the applicant resided in Luxembourg from 1969 to 1979) and that, if the errors were discovered and corrected, the decision would no longer be confirmatory but would be a new decision based on new facts which were unknown at the time of the first decision.
In Mr Garganese's view, in considering the submission that his complaint was out of time, it is irrelevant to examine whether his claim of 30 January 1980 must be regarded as a request within the meaning of Article 90 (1) or a complaint within the meaning of paragraph (2) of that article.
In any event, it cannot be contended that the claim was out of time because as early as 11 October 1979 the applicant formally contested his salary statement for the months of September and October 1979 on the ground that the expatriation allowance to which he considered himself to be entitled was not entered on that statement.
Moreover, even supposing that the period for lodging an appeal through official channels began to run from the receipt of the salary slip, it was suspended by the interventions of the “mediator”, Mr De Groóte.
Mr Garganese submits that the sending of the monthly salary slip for the months of September and October 1979 did not in fact cause the time for lodging an appeal to start to run, as it did not clearly show the decision taken regarding his salary. First, the fact that the expatriation allowance is not mentioned does not indicate a clear decision, since it may be due as much to an omission as to an error concerning basic data. Secondly, it is clear from the case-law of the Court (judgment of 16 October 1980 in Case 147/79 Hochstrass [1980] ECR 3005) that “in the case of an act which is general in nature and which is intended to be implemented by means of a series of individual decisions affecting many officials in an institution, the non-application of that general measure to a particular case cannot be considered as a decision, even implied, rejecting a request of the kind envisaged by Article 90 (1)”.
Mr Garganese observes finally that, even if his claim of 30 January 1980 were to be in the nature of a complaint under Article 90 (2), it would not be out of time, because in that case the applicant's memorandum of 11 October 1979 must be regarded as a request within the meaning of Article 90 (1), the complaint of 30 January 1980 being directed against tne absence of any express reply to that request.
The Commission, in its rejoinder, replies to the arguments described above, put forward by Mr Garganese in support of the admissibility of the application.
It states that the fact that it replied to the applicant's “complaint” of 30 January 1980 without raising any objection of inadmissibility on the ground that the appeal through official channels was out of time does not imply any waiver of its right to raise such an objection in the course of proceedings before the Court. The appointing authority is always anxious to explain to its officials and other servants its views on the substance of a complaint without raising an objection of inadmissibility, although it may do this before the Court of Justice.
As far as the alleged mistake of fact concerning the duration of Mr Garganese's period of residence in Luxembourg is concerned, the Commission observes that the only period to be taken into consideration in determining any entitlement which the applicant might have to the expatriation allowance was the reference period mentioned in Article 4 (1) (b) of Annex VII to the Staff Regulations and that the applicant's residence in Luxembourg prior to that period was of no relevance.
The Commission states next that since the role of the “mediator” is exclusively that of a person who uses his “good offices”, interventions by the mediator in a dispute between an institution and one of its officials cannot entail any interruption or suspension of the period for lodging an appeal througn official channels.
As far as the applicant's memorandum of 11 October 1979 is concerned, the Commission considers that that document is also of no consequence, as the applicant did not lodge a formal appeal through official channels against the refusal to grant him the expatriation allowance until 30 January 1980.
With regard to the nature of the salary statement, the Commission submits that it clearly informed the applicant that the expatriation allowance had not been granted to him. Moreover, it observes that Mr Garganese's reference to the Hochstrass case is not apposite. In that case the applicant challenged by way of objection the legality of a provision of the Staff Regulations, which is clearly not the situation in the present case.
Having made those points, the Commission nevertheless confesses that its conviction that the application was inadmissible has been shaken by a recent judgment of the Court of 20 November 1980 (Case 806/79 Gerin [1980] ECR 3515), where the Court stated that for a decision to be capable of being described as an act adversely affecting an official within the meaning of Article 90 (2) of the Staff Regulations it must have been specifically adopted by the appointing authority or on its behalf.
In view of the uncertainty as to whether the Court thereby intended to depart from its previous decisions in which it held that the sending of the monthly salary slip has the effect of causing the time for lodging an appeal to start running where it clearly shows the decision taken, the Commission prefers to leave the question of the admissibility of the application to the Court.
Substance
Mr Garganese considers that he is entitled to be paid the expatriation allowance under Article 4 (1) (b) of Annex VII to the Staff Regulations of Officials of the European Communities the application of which by analogy to temporary servants is expressly provided for by Articles 19 and 21 of the Conditions of Employment of Other Servants of the European Communities.
He submits that the twenty-three months spent in military service in Italy cannot interrupt the ten years' period of absence laid down in Article 4 (1) (b) cited above.
Referring to the judgment given by the Court on 17 February 1976 in Case 42/75 Delvaux [1976] ECR 167, Mr Garganese observes that his case is different from that of Mr Delvaux inasmuch as the latter had not been habitually resident before his military service outside the country in which he was employed.
Both the Court of Justice and the Advocate General made it clear that Mr Delvaux might have succeeded in his application if he had been able to prove that before beginning his military service he had acquired a settled abode to which he returned after completing his service, in a country other than the one in which he was employed.
Such a condition is precisely fulfilled by Mr Garganese who, after completing his military service, returned to live in Luxembourg, where he had resided since 1962.
In his reply Mr Garganese adds that in any event his period of residence in Luxembourg exceeded ten years by a large margin, even if his period of military service were disregarded.
The Commission states that the applicant completed twenty-three months' military service in Italy during the period of ten years from 3 September 1969 to 3 September 1979 and therefore does not fulfil the condition laid down in Article 4 (1) (b) of Annex VII to the Staff Regulations, which provides that officials who are nationals of the State in whose territory the place where they are employed is situated are entitled to the expatriation allowance if during the ten years ending at the date of their entering the service they habitually resided outside the European territory of that State for reasons other than the performance of duties in the service of a State or of an international organization.
There is no reason to add to the clear wording of the provision in question an exemption which it does not contain.
Moreover, the reference to the judgment given by the Court in the Delvaux case and to the opinion delivered by Mr Advocate General Warner in that case do not provide any support for Mr Garganese's argument.
Indeed, in a more recent case (Case 257/78 Devred [1979] ECR 3767) the same Advocate General, in reply to the applicant's argument that the two years spent in Brussels during the ten years ending at the date of her entering the service had to be ignored because a previous post with the Communities had compelled her to live in that city, stated that in the Delvaux case “this Court clearly held that the reference in Article 4 (1) (b) to ten years means ten years and nothing less”. He therefore applied to the judgment in the Delvaux case, given following an opinion which he himself delivered, a meaning which is irreconcilable with that which Mr Garganese wishes to ascribe to it.
Moreover, the view expressed by Mr Advocate General Warner in his opinion in the Delvaux case was justified by the consideration that if the applicant had lived outside his country of employment before performing his military service, it might have been argued that in any event he would have been resident outside the territory of the State in which he was employed. Such justification is totally lacking in the case of Mr Gargenese, who performed his military service in the very country in which he is employed.
If, as the Court decided in its judgment in the Delvaux case, a person who performs his military service outside the national territory is in a position comparable to that of a conscript serving within the national territory, it would be contrary to the general principle of equal treatment that the conscript performing his military service in his native land should receive better treatment as regards the award of the expatriation allowance.
IV — Oral procedure
Mr Garganese, represented by E. Arendt of the Luxembourg Bar, assisted by D. Maidani of the Luxembourg Bar, and the Commission of the European Communities, represented by its Agent, J. Delmoly, assisted by R. Andersen of the Brussels Bar, presented oral argument at the sitting on 19 March 1981.
The Advocate General delivered his opinion at the sitting on 14 May 1981.
Decision
1. By application lodged at the Court Registry on 4 September 1980, Cosimo Garganese, a temporary servant of the Commission of the European Communities, employed at the Joint Research Centre at Ispra (Italy), brought an action for the annulment of the Commission's decision of 23 June 1980 refusing to pay him the expatriation allowance and for an order that the Commission pay him that allowance as from 3 September 1979, the date of his entry into service. He also claims that the Commission should be ordered to pay him default interest at 6 % per annum calculated on the arrears of expatriation allowance “from the various dates on which payment fell due to the date of payment”.
2. Mr Garganese, an Italian national born in Italy, has resided in the Grand Duchy of Luxembourg since 18 May 1962. On 5 May 1970 he went to Italy to perform his military service, which lasted until 15 April 1972. He returned to Luxembourg immediately thereafter and was continuously resident in that country for approximately seven years. On 1 June 1979 he signed a contract with the Commission under which he was engaged as a temporary servant in Grade C 3 and was posted to the Joint Research Centre at Ispra (Italy), where he took up his duties on 3 September 1979.
3. Mr Garganese noticed that his first salary slip for the months of September and October 1979 did not mention the expatriation allowance to which he considered himself entitled under Article 4 (1) (b) of Annex VII to the Staff Regulations of Officials in conjunction with Articles 19 and 20 of the Conditions of Employment of Other Servants of the European Communities and, by a memorandum dated 11 November 1979, he requested that he be paid that allowance.
4. As that step was unsuccessful, Mr Garganese submitted a request on 30 January 1980 under Article 90 (1) of the Staff Regulations. In the absence of any reply from the administration within the prescribed period of four months, he lodged a complaint on 1 July 1980 against the implied rejection of his request by the Commission. On 10 July 1980 Mr Garganese was notified of a decision dated 23 June 1980, whereby the Commission rejected his claim that he should receive the expatriation allowance. He claims that that decision should be annulled.
Admissibility
5. The Commission first raises an objection of inadmissibility against the application on the ground that the applicant did not comply with the period for lodging a complaint laid down by Article 90 (2) of the Staff Regulations. It contends that its decision of 23 June 1980 merely confirms an implied decision refusing the expatriation allowance which was apparent from the salary slip for the months of September and October 1979. It is established that that salary slip came to Mr Garganese's notice not later than 11 October 1979. The Commission claims that the applicant should have submitted a complaint against the implied decision refusing payment within a period of three months commencing on the above-mentioned date. Since he did not do so, he forfeited his right of action.
6. The argument put forward by the Commission cannot be accepted.
7. The Commission's decision of 23 June 1980 constitutes a legal measure which, containing the Commission's response to Mr Garganese's request for the grant of the expatriation allowance, is sufficient in itself and in no way refers to an alleged previous express or implied decision refusing to grant the allowance claimed by the applicant. In view of such a measure, the absence from the monthly salary slip of a statement regarding the allowance cannot be assimilated to a decision under the Staff Regulations capable of causing the time for lodging an appeal mentioned in Articles 90 and 91 to start to run.
8. That conclusion is even more compelling since it is clear from the file on the case, and more particularly from the memorandum of 28 January 1980 sent by the applicant's superior to the Site Director at Ispra, that the Commission's departments themselves did not consider, after the above-mentioned salary slip had been transmitted, that a decision had been taken on that date as to whether or not Mr Garganese was entitled to the allowance. Similarly, it is clear from a letter sent on 23 February 1980 to Mr Garganese by the above-mentioned director that the opinion of the competent authorities at the seat of the institution on Mr Garganese's possible entitlement to the grant of the allowance was still pending at that date and that, consequently, his case had not yet been the subject of a decision by the Commission.
9. In view of the foregoing considerations the decision of 23 June 1980, which was notified to the applicant on 10 July 1980, must therefore be considered as constituting the reply under Article 91 (2) of the Staff Regulations to the complaint lodged by the applicant on 1 July 1980.
10. Under the first indent of Article 91 (3) of the Staff Regulations an appeal may be lodged within three months from the date of notification to the complainant. The present application, which was lodged on 4 September 1980, must therefore be declared admissible.
Substance
11. As the Court has already stated in a consistent line of decisions, it is clear from the general scheme of Article 4 of Annex VII to the Staff Regulations that it lays down as the paramount consideration for determining an official's entitlement to the expatriation allowance his habitual residence before entering the service, because the allowance is intended to compensate officials for the extra expense and inconvenience of taking up employment with the Communities and being thereby obliged to change their residence.
12. Under Article 4 (1) (b) cited above, officials who are or have been nationals of the State in whose territory the place where they are employed is situated are entitled to the expatriation allowance if “during the ten years ending at the date of their entering the service [they] habitually resided outside the European territory of that State for reasons other than the performance of duties in the service of a State or of an international organization”.
13. Having regard to those provisions and to the circumstances of the case, it is therefore necessary to consider whether Mr Garganese, who is a national of the State in which the place where he is employed is situated, satisfies the condition of habitual residence outside that State during the ten years preceding his entering the service of the Communities.
14. In the Commission's view that condition is not fulfilled in this case because Mr Garganese interrupted his period of residence in the Grand Duchy of Luxembourg by a period of military service which he performed in Italy from 5 May 1970 to 15 April 1972. It concludes that as a result of that interruption the required period of ten years' residence began to run afresh as from 15 April 1972, so that on the date on which Mr Garganese took up his duties, that is to say on 3 September 1979, he did not satisfy the requirement laid down by Article 4 (1) (b) of Annex VII to the Staff Regulations.
15. Such an argument in the first place fails to recognize that in the Member State of which Mr Garganese is a national military service fulfils an obligation pertaining to a person's very status as a national. The possibility which exists in certain cases and on certain conditions of obtaining exemption from military service is not such as to detract from the compulsory nature of such service.
16. It must also be emphasized that under the national law of the Member States in which military service is compulsory, the place where such service is performed does not alter the habitual residence of the conscript.
17. Finally it is clear from Article 42 of the Staff Regulations concerning “leave for military service” that an official who is called up for military service or for reserve training or recalled to serve in the armed forces continues to benefit throughout his entire period of service from the provisions concerning his position under the Staff Regulations and his career and, in certain cases, even retains his right to receive his salary subject to deduction of an amount equal to his service pay. It follows from that provision that the Staff Regulations themselves do not allow an official, as a result of his performing compulsory military service, to lose rights which he would be able to claim in the absence of such service and thereby preclude the possibility that the duty to perform military service may provide a ground for unequal treatment of officials depending on whether or not they are required to perform such service or on whether or not they may benefit from provisions exempting them from it.
18. In view of those considerations it is therefore impossible to regard the performance of compulsory military service as a valid reason for interrupting the period of habitual residence referred to by Article 4 (1) (b) of Annex VII to the Staff Regulations. A person covered by that provision who, before entering the service of a Community institution, was obliged to leave his habitual residence in order to fulfil his national military duties, is entitled to have the period thus spent in the armed forces taken into account for the purpose of establishing his entitlement to the expatriation allowance provided for by Article 69 of the Staff Regulations. For those reasons, the application must be declared well founded.
Default interest
19. In his application the applicant has claimed that the Commission should be ordered to pay him default interest on the arrears of expatriation allowance. Since the application is well founded, that claim must be upheld.
20. Having regard to the circumstances of the case, it is fair to place the applicant in the position in which he would have been if the allowance which must now be paid to him had been paid in accordance with the relevant provisions, or in other words, in due time.
21. Default interest must therefore be awarded to the applicant at 6 % per annum, as claimed as from the various dates on which payment fell due, on the amounts to which he is entitled.
Costs
22. Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party's pleading.
23. Since the defendant has failed in its submissions, it must be ordered to pay the costs.
On those grounds THE COURT (First Chamber) hereby:
1 Annuls the Commission's decision of 23 June 1980 refusing to pay the expatriation allowance and orders the defendant to pay the applicant the expatriation allowance in accordance with Article 4 (1) (b) of Annex VII to the Staff Regulations as from 3 September 1979;
2 Orders the defendant to pay default interest at 6 % per annum on the arrears of expatriation allowance, that interest to be calculated as from the various dates on which payment fell due to the date of payment;
3 Orders the defendant to pay the costs.