Parties
Subject of the case
Grounds
Decision on costs
Operative part
Keywords
OFFICIALS - ACTION - ACTION BROUGHT AGAINST A CONFIRMATORY ACT - INADMISSIBILITY
( STAFF REGULATIONS OF OFFICIALS , ART . 91 )
Parties
IN CASE 103/79
ANDREW M . MOAT , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING IN BRUSSELS , REPRESENTED BY JACQUES PUTZEYS AND XAVIER LEURQUIN , ADVOCATES AT THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR NICKTS , HUISSIER , 17 BOULEVARD ROYAL ,
APPLICANT ,
V
COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ALAIN VAN SOLINGE , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY DANIEL JACOB , ADVOCATE AT THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,
DEFENDANT ,
Subject of the case
APPLICATION FOR ANNULMENT OF THE EXPRESS DECISION REJECTING THE APPLICANT ' S REQUEST RELATING TO THE GRANT OF THE EDUCATION ALLOWANCE AND FOR DAMAGES ,
Grounds
1 THE ACTION BROUGHT BY AN APPLICATION OF 21 JUNE 1979 IS FOR A DECLARATION THAT THE APPLICANT IS ENTITLED TO THE EDUCATION ALLOWANCE UP TO THE DOUBLED MAXIMUM , WITHIN THE MEANING OF THE THIRD PARAGRAPH OF ARTICLE 3 OF ANNEX VII TO THE STAFF REGULATIONS , WHILE HIS DAUGHTER ATTENDS LEITH ' S SCHOOL OF FOOD AND WINE , A TECHNICAL TRAINING ESTABLISHMENT IN LONDON SPECIALIZING IN COOKERY . THE APPLICANT CLAIMS THAT THE COURT SHOULD ANNUL THE DECISION OF 6 OCTOBER 1978 REFUSING HIS REQUEST FOR THIS ALLOWANCE AND ALSO THE DECISION OF 26 MARCH 1979 REJECTING HIS COMPLAINT AGAINST THAT REFUSAL .
2 THE APPLICANT IS A BRITISH NATIONAL AND AN OFFICIAL OF THE COMMISSION WHO IS SERVING IN BRUSSELS . HIS DAUGHTER TOOK THE TECHNICAL TRAINING COURSE RUN BY LEITH ' S SCHOOL OF FOOD AND WINE IN HER MOTHER TONGUE DURING THE 1976-1977 SCHOOL YEAR . IT IS COMMON GROUND THAT THE APPLICANT FULFILS THE REQUISITE CONDITIONS TO BE ENTITLED TO THE EDUCATION ALLOWANCE .
3 THE COMMISSION HAS MADE TWO PLEAS THAT THE ACTION IS INADMISSIBLE BASED RESPECTIVELY ON NON-COMPLIANCE WITH TIME-LIMITS AND LACK OF LEGAL INTEREST IN THE PROCEEDINGS . IT CONTENDS IN ADDITION THAT THE ACTION IS UNFOUNDED .
ADMISSIBILITY
4 THE COURT ' S FILE SHOWS THAT THE APPLICANT SUBMITTED A REQUEST ON 7 MARCH 1977 FOR THE DOUBLING OF THE EDUCATION ALLOWANCE . THE AIM OF THE REQUEST , WHICH WAS BASED ON THE APPLICANT ' S DAUGHTER ' S HAVING ENROLLED AT LEITH ' S SCHOOL OF FOOD AND WINE IN LONDON , WAS TO SHOW THAT THE TRAINING PROVIDED BY THAT ESTABLISHMENT WAS CLASSIFIED AS ' ' HIGHER EDUCATION ' ' WITHIN THE MEANING OF THE SECOND INDENT OF THE THIRD PARAGRAPH OF ARTICLE 3 OF ANNEX VII TO THE STAFF REGULATIONS . THIS REQUEST FOR THE DOUBLING OF THE EDUCATION ALLOWANCE WAS REFUSED ON 19 JULY 1977 BY A LETTER OF THE HEAD OF THE INDIVIDUAL RIGHTS AND PRIVILEGES DIVISION ON THE GROUND THAT THE EDUCATION IN QUESTION CANNOT BE REGARDED AS ' ' HIGHER EDUCATION ' ' .
5 THE COMMISSION REJECTED THE COMPLAINT AGAINST THAT REFUSAL ON 27 FEBRUARY 1978 . IN THAT COMPLAINT THE APPLICANT REQUESTED THE COMMISSION TO ADMIT THAT HE WAS ENTITLED TO THE DOUBLED MAXIMUM EITHER ON THE BASIS OF ARTICLE 5 OF THE GENERAL IMPLEMENTING PROVISIONS FOR GRANTING THE EDUCATION ALLOWANCE ADOPTED BY THE COMMISSION ( ESTABLISHMENT OF HIGHER EDUCATION ) OR ON THE BASIS OF ARTICLE 4 OF THOSE PROVISIONS ( PRIMARY AND SECONDARY SCHOOLS ).
6 THE APPLICANT SUBMITTED ON 16 JUNE 1978 ANOTHER REQUEST FOR THE DOUBLED MAXIMUM STATING THAT THERE WAS NO EDUCATIONAL ESTABLISHMENT WORKING IN ENGLISH EITHER IN BRUSSELS , WHICH WAS HIS PLACE OF EMPLOYMENT , OR WITHIN 50 KM OF THAT CITY , COMPARABLE TO THE ESTABLISHMENT ATTENDED BY HIS DAUGHTER IN LONDON AND THAT CONSEQUENTLY THE FIRST INDENT OF THE THIRD PARAGRAPH OF ANNEX VII TO THE STAFF REGULATIONS , AS WORDED AT THAT TIME , APPLIED . THAT PROVISION PROVIDED THAT THE MAXIMUM EDUCATION ALLOWANCE SHALL BE DOUBLE FOR ' ' AN OFFICIAL WHOSE PLACE OF EMPLOYMENT IS AT LEAST 50 KM FROM A EUROPEAN SCHOOL OR AN EDUCATIONAL ESTABLISHMENT WORKING IN HIS LANGUAGE , PROVIDED THAT THE CHILD ACTUALLY ATTENDS AN EDUCATIONAL ESTABLISHMENT AT LEAST 50 KM FROM THE PLACE OF EMPLOYMENT ' ' .
7 THIS FRESH REQUEST WAS REJECTED BY A LETTER FROM THE HEAD OF THE INDIVIDUAL RIGHTS AND PRIVILEGES DIVISION DATED 6 OCTOBER 1978 IN WHICH THE LATTER EMPHASIZED THAT THE CONDITIONS WHICH HAVE TO BE FULFILLED FOR THE APPLICATION OF THE FIRST INDENT OF THE THIRD PARAGRAPH OF ARTICLE 3 OF ANNEX VII WERE NOT PRESENT IN THIS CASE . THE APPLICANT RECEIVED A LETTER DATED 26 MARCH 1979 FROM THE DIRECTOR-GENERAL FOR PERSONNEL AND ADMINISTRATION IN ANSWER TO HIS COMPLAINT OF 8 DECEMBER 1978 AGAINST THIS FRESH REFUSAL STATING THAT , SINCE THE COMPLAINT WAS IDENTICAL TO THE PRECEDING ONE , IT COULD NOT BE COUNTENANCED AND THAT FURTHERMORE THE ARGUMENTS PUT FORWARD HAD ALREADY BEEN CONSIDERED BY THE DEPARTMENTS OF THE COMMISSION BUT WERE NOT CONSIDERED TO JUSTIFY THE DOUBLED MAXIMUM .
8 THE COMMISSION TAKES THE VIEW THAT IN THESE CIRCUMSTANCES THE ACTION DIRECTED AGAINST THE DECISIONS OF 6 OCTOBER 1978 AND 26 MARCH 1979 IS OUT OF TIME . IT POINTS OUT THAT THE REAL OBJECT OF THE ACTION IS THE ANNULMENT OF THE DECISIONS WHICH REJECTED THE FIRST REQUEST AND THE FIRST COMPLAINT . CONSEQUENTLY THE CONTESTED DECISIONS MERELY CONFIRM THE DECISIONS TAKEN PREVIOUSLY .
9 THE APPLICANT IS OF THE OPINION THAT THE CONTESTED DECISIONS CANNOT BE REGARDED AT ALL AS CONFIRMATORY DECISIONS . THE TWO SUCCESSIVE REQUESTS AND ALSO THE COMPLAINTS WHICH FOLLOWED THEM WERE BASED ON DIFFERENT LEGAL SUBMISSIONS . FURTHERMORE , THE SECOND REQUEST WAS THE SUBJECT OF A SEPARATE EXAMINATION BY THE COMMISSION ' S DEPARTMENTS AS A RESULT OF A VOLUNTARY REOPENING OF THE MATTER BY THE ADMINISTRATIVE AUTHORITY .
10 THE APPLICANT ' S ARGUMENTS ARE NOT WELL FOUNDED . THE FIRST OF THE APPLICANT ' S COMPLAINTS WAS NOT BASED ONLY ON THE ARGUMENT THAT THE TRAINING PROVIDED BY LEITH ' S SCHOOL OF FOOD AND WINE WAS ' ' HIGHER EDUCATION ' ' BUT REFERRED ALSO TO THE POSSIBILITY OF THE COMMISSION ' S GRANTING UP TO THE DOUBLED ALLOWANCE ON THE BASIS OF OTHER LEGAL ARGUMENTS . IN HIS SECOND COMPLAINT THE APPLICANT MERELY DEVELOPED THE SAME LEGAL ARGUMENTS WITHOUT PUTTING FORWARD ANY FRESH FACTS .
11 IN THESE CIRCUMSTANCES THE LETTERS OF THE COMMISSION IN REPLY TO THE APPLICANT ' S SECOND REQUEST AND HIS SECOND COMPLAINT MERELY CONFIRMED THE EARLIER DECISIONS AND THUS COULD NOT RESULT IN STARTING A FRESH PERIOD TO RUN IN FAVOUR OF THE APPLICANT .
12 THE RESULT OF THESE CONSIDERATIONS IS THAT , SINCE THE APPLICANT ' S COMPLAINT AGAINST THE REFUSAL TO GRANT HIM THE EDUCATION ALLOWANCE UP TO THE DOUBLED MAXIMUM WAS REJECTED ON 27 FEBRUARY 1978 , THE ACTION BROUGHT BY THE APPLICANT ON 21 JUNE 1979 MUST BE HELD TO BE OUT OF TIME .
13 THE ACTION MUST THEREFORE BE DISMISSED AS INADMISSIBLE .
Decision on costs
14 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES , INSTITUTIONS SHALL BEAR THEIR OWN COSTS .
Operative part
ON THOSE GROUNDS
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION AS INADMISSIBLE .
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .
Full & Egal Universal Law Academy