JUDGMENT OF 14. 1. 1982 — CASE 56/81 NOVI v COMMISSION

In Case 56/81

THE COURT (Second Chamber) composed of: O. Due, President of Chamber, A. Chloros and F. Grévisse, Judges, Advocate General: G. Reischl Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

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

I — Facts and procedure

Between 1 April 1972 and 1 November 1979 pursuant to decisions of the Commission the applicant in the present proceedings, Mrs Colette Novi, who is a Grade B official at the Commission, was first granted leave on personal grounds and subsequently seconded in the interests of the service in order to take up employment as an administrative and financial assistant to the Contrôleur Délégué [Delegate Controller], of the European Development Fund at Yaounde (Cameroon) under a contract with the European Association for Cooperation. The Association, incorporated under Belgian law, was created for the sole purpose of providing the Commission with the necessary supervisory and supportive staff and technical assistance for administering the projects of the Fund.

On 24 January 1980 the applicant applied for reimbursement of the costs she had incurred following her secondment, namely those of moving her furniture to a repository, storing it and bringing it back again, amounting to BFR 220205 in all.

The Commission rejected her application on 1 April 1980 on the ground that “no authorization was given for the removal” and that she had on her “own initiative incurred costs which were in any case substantially covered by the resettlement allowance, amounting to BFR 182421, which was paid to you on termination of your secondment by the European Association for Cooperation”. A further request having been rejected on 14 May 1980, the applicant submitted a complaint which was registered on 8 August 1980. She received no reply to that complaint.

The refusal of the Commission to pay her the above-mentioned expenses is challenged by the applicant in the present proceedings.

On hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court (Second Chamber) decided to open the oral procedure without any preparatory inquiry.

II — Conclusions of the parties

a) The applicant claims that the Court should:

Declare the application admissible and well-founded; and consequently

Order the Commission to pay her the sum of BFR 220205 together with interest at the customary legal rate and costs.

b) The Commission contends that the Court should:

Dismiss the application as inadmissible and in any case unfounded; and

Order the applicant to pay the costs.

III — Submissions and arguments of the parties

1. Admissibility

a) The Commission claims that the application is inadmissible because Mrs Novi failed to submit a complaint against the decisions sending her to Cameroon. In those decisions it is stipulated that her remuneration and any expenses arising from her secondment are payable not by the Commission but by the European Association for Cooperation.

b) The applicant disputes the assertion that she ought to have challenged the decisions concerning her secondment. It was neither their purpose nor their effect to make a derogation from Article 38 (d) of the Staff Regulations and hence alter her subjective rights as against the Commission. The sole purpose of the decisions was to resolve financial difficulties between the defendant and the European Association for Cooperation to which the applicant was seconded. They indicate that the expenses which may be payable by the Commission to the applicant by way of “additional expenses” must be reimbursed to the Commission by the European Association for Cooperation, not that the applicant may not claim from the Commission that to which she is entitled by virtue of Article 38 (d) of the Staff Regulations.

2. Substance

a) The applicant bases her action on Article 38 (d) of the Staff Regulations which provides that “an official on secondment ... shall ... be entitled to reimbursement of all additional expenses entailed by his secondment”. It was pointed out on her behalf that secondment of the official in order to enable him to take up long-term employment abroad necessarily involves transferring his residence to the place where he is to work. Secondment normally entails removal to the new place of residence, at the expense of the institution employing the official, of his furniture and effects, since there is no longer any reason for him to maintain accommodation at the place where he was employed prior to the secondment. For her to relinquish her accommodation was therefore a logical consequence of the secondment of the applicant, who might never have had to return to Brussels. Owing to the special circumstances surrounding tours of duty in certain African countries, the European Association for Cooperation does not permit officials, whether seconded or recruited by other methods, to take their furniture with them. They are therefore obliged to take the necessary steps for storing their furniture for the period of their stay in Africa. That was the consideration which led the applicant, who was anxious to limit the expenses her stay would entail, to put her furniture into store for the duration of her secondment. It was the least onerous way of keeping it and also the surest way of enabling her to avoid the risk of damage or theft. Consequently the storage of her furniture was for the applicant an expense entailed by her secondment to Cameroon. It was because she was seconded there and was unable to take her furniture with her that she was obliged to put it into store and keep it there in Brussels for the duration of her secondment. Putting her furniture into store entailed for the applicant an “additional expense” of her secondment to Cameroon. Had her conditions of employment enabled her to keep her furniture with her she would not have had to put it into store. The extra expense is not covered by the installation and resettlement allowances she has received. Those allowances cover the costs of her installation in Yaounde and all the necessary local purchases this entailed: curtains, brushes, wall coverings, etc., and of resettlement in the official's new residence on termination of her secondment. In her case such costs are separate from the expenses incurred by the applicant throughout her secondment in order to keep her furniture in Brussels. She was unable to seek prior authorization for the removal of her furniture into store owing to the fact that at the time she was on leave on personal grounds.

b) The Commission contends that Article 38 (d) of the Staff Regulations does not entitle officials to reimbursement of all expenses, but solely to reimbursement of additional expenses entailed by the secondment. It notes in this connection that the applicant resided prior to the secondment in Brussels and that she received no contribution whatsoever to any of her living costs whatever their nature, that her secondment was made in the form of a contract entered into by her with the European Association for Cooperation and that the contract entitled her to remuneration which included, in particular, the following: a basic salary based on the scale of basic salaries for officials of the European Communities, an overseas service allowance of 20% of the basic salary, and an expatriation allowance. Still in the submission of the Commission, the contract provided, in addition, for payment to the applicant of an installation allowance which amounted in her case to 100% of the aggregate amount for one month of the basic salary, the overseas service allowance and the expatriation allowance, together with payment of a reinstallation allowance equivalent to 100% of the same aggregate amount. The Commission stresses the fact that the contract provided also for free furnished accommodation to be made available for the employee and for the electricity bills to be paid by the European Association for Cooperation. The conditions governing the applicant's secondment thus described show, in the Commission's view, that the expenses the reimbursement of which is claimed by the applicant were not entailed by her secondment. They were in fact the result of a unilateral decision taken by the applicant, evidently out of concern to save the cost of the accommodation occupied by her in Brussels. She was not obliged to save herself that cost in vieroi the fact that free furnished accommodation was provided for her ai the place of her secondment. Her remuneration on secondment was not less than that which she would have had if she had not been seconded. Thai circumstance, together with the fact that the applicant enjoyed free furnished accommodation for the duration of her secondment, meant that she could have continued to bear the cost of her accommodation in Brussels without thai cost amounting to an additional expense. It cannot therefore be maintained that the expenses incurred in order to reduce the cost of the applicant's accommodation in Brussels can themselves amount to additional expenses. The Commission observes in the alternative that even if the Court were to hold that the expenses at issue amount to “additional expenses entailed by the secondment” the fact would remain that the expenses have been reimbursed by the installation and resettlement allowances received by the applicant. It has been established that the installation and resettlement allowances are flat-rate amounts representing, by means of an advance estimate, the equivalent of the costs of a single operation, namely the transfer of the residence of an official from one place another: see the judgment of the Court of Justice of 15 July 1960 (Joined Cases 27 and 39/59 Campolongo v High Authority of the ECSC[ 1960] ECR391).

IV — Oral procedure

At the sitting on 29 October 1981 oral argument was presented by F. van der Mensbrugghe, for Mrs Colette Novi, and by J. Delmoly, assisted by J.-F. Kleykens, for the Commission. The institution did not pursue its objection of inadmissibility on that occasion.

The Advocate General delivered his opinion at the sitting on 10 December 1981.

Decision

1. By application lodged at the Court Registry on 11 March 1981 Mrs Colette Novi, an official of the Commission of the European Communities, brought an action seeking an order that the Commission should reimburse her the sum of BFR 220205, representing the expenses she had incurred for moving her furniture into store, storing it and bringing it back again.

2. Between 1 April 1972 and 1 November 1979 the applicant was first granted leave on personal grounds and then, with retroactive effect to 1 April 1972, seconded in the interests of the service to a post as administrative and financial assistant to the Contrôleur Délégué of the European Development Fund in Yaoundé (Cameroon). The contract entered into by Mrs Novi with the European Association for Cooperation for the purpose did not permit her to take her own furniture but provided inter alia for payment of installation and resettlement allowances as well as free furnished accommodation. Because of her secondment the applicant terminated her lease in Brussels and put her furniture into store.

3. The applicant relies on Article 38 (d) of the Staff Regulations of Officials according to which an official on secondment is entitled to reimbursement of all additional expenses entailed by his secondment.

4. She claims that inasmuch as an official's secondment entails the transfer of his residence to his new place of employment, his furniture must normally be moved at the expense of the institution. Since the applicant's family centre of interest is in the Var (France) she ceased to have any connection with Brussels on her secondment and accordingly ceased to have any reason to maintain accommodation there. As she was not permitted to take her furniture to Yaounde the only reasonable solution was therefore to terminate the lease of the accommodation she occupied in Brussels, put her furniture into store and thereby reduce as much as possible the expense entailed by her secondment. She claims that those charges are not covered by the installation and resettlement allowances which are intended to cover, in particular, the cost of local purchases and resettlement on termination of the secondment and are therefore separate from the expenses incurred in order to keep her furniture in Brussels for the duration of the secondment. Furthermore, the expatriation allowance received by the applicant when she was employed in Brussels was withdrawn for that period.

5. In response to those submissions it must be noted that Article 38 (d) of the Staff Regulations does not compel the Administration to reimburse all expenses caused by any decision, however reasonable it may be, which may be taken by an official in connection with his secondment, but solely those expenses which may be described as additional expenses entailed by the secondment itself.

6. Since under the contract entered into by the applicant with the European Association for Cooperation she was given furnished accommodation which was placed at her disposal free of charge in Yaoundé, in addition to the flat-rate installation and resettlement allowances, the additional expenses entailed by the transfer of her residence as a result of her secondment have been fully compensated for.

7. The expenses arising as a result of an official's decision to retain a flat at his previous place of employment certainly cannot be described as additional expenses entailed by his secondment; a fortiori the cost of furniture storage resulting from his decision to save paying rent for that flat cannot be so described. The fact that the expatriation allowance to which that official was entitled during his previous employment was withdrawn and replaced by other allowances for overseas service does not alter that conclusion in any way since the aforementioned allowance was not intended to cover the official's accommodation cost.

8. In the circumstances, the application must be dismissed as unfounded.

Costs

9. Article 69 (2) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs.

10. However, Article 70 provides that, in proceedings by servants of the Communities, the institutions are to bear their own costs.

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

1 Dismisses the application;

2 Orders the parties to bear their own costs.