Court of Justice of the European Communities (including Court of First Instance Decisions)

Relevant provisions

'1. A member of the temporary staff engaged for a fixed period of not less than one year, or deemed by the authority referred to in the first paragraph of Article 6 to be engaged for an equivalent period if his contract is for an indefinite period, shallreceive an installation allowance as provided for in Article 5 of Annex VII to the Staff Regulations amounting, for an expected period of service of:

- not less than one year but less than two years, to one third of the rate laid down in Article 5 of Annex VII to the Staff Regulations

- not less than two years but less than three years, to two thirds of the rate laid down in Article 5 of Annex VII to the Staff Regulations

- three years or more, to three thirds of the rate laid down in Article 5 of Annex VII to the Staff Regulations.

2. The resettlement allowance provided for in Article 6 of Annex VII to the Staff Regulations shall be granted to temporary staff who have completed four years' service. A servant who has completed more than one year's service but less than four years' service shall receive a resettlement allowance proportionate to his length of service, incomplete years being disregarded.'

'1. An established official who satisfies the requirements of Article 5(1) shall be entitled on termination of service to a resettlement allowance equal to two months' basic salary in the case of an official who is entitled to the household allowance or to one month's basic salary in other cases, provided that he has completed four years of service and does not receive a similar allowance in his new employment. In cases where a husband and wife who are officials of the Communities are both entitled to the resettlement allowance, this shall be payable only to the person whose basic salary is the higher.

For the purpose of calculating his service, account shall be taken of years spent in any administrative status listed in Article 35 of the Staff Regulations other than leave on personal grounds.

...

The resettlement allowance shall be weighted at the rate fixed for the place where the official was last employed.

...

4. The resettlement allowance shall be paid against evidence that the official and his family, or, where the official has died, his family only, have resettled at a place situated not less than 70 km from the place where the official was employed.

Resettlement of an official or of the family of a deceased official shall take place within three years of the date of termination of his service.

...'

Facts giving rise to the dispute

'11 On 15 September 1999, the applicant sent an electronic mail to Cedefop's finance unit asking what document he had to forward to be entitled to payment of the resettlement allowance and on what bases it was calculated.

12 Since he was informed that his request had been forwarded to Mr Paraskevaïdis, Cedefop's head of administration responsible for advising the AIPN on the establishment of the entitlements of officials and other servants, the applicant sent him on 18 October 1999, an electronic mail requesting contain information as to the settlement of his reinstallation allowance.

13 On 22 November 1999, since Cedefop had made no decision on the applicant's request for payment, it became the subject of an implied rejection (hereinafter the disputed decision).

14 Since he received no reply from Mr Paraskevaïdis, the applicant repeated his request to him on 29 November 1999.

15 On 23 December 1999 Mr Paraskevaïdis sent the applicant the following reply:

As you know perhaps, there has recently been a decision of the Court of First Instance in a case brought by another of our former members of the temporary staff against Cedefop, which makes clear that, if the installation allowance has been paid at the outset in its entirety (3/3) and if it is established that the member of the temporary staff did not complete four years of service prior to his departure, any difference between what has been paid and the sum properly due must be repaid to the Centre. Given that you have [completed] less than half of the period of four years mentioned in the regulations, and that at the outset you received the full sum for the three years, you would first have to reimburse half of it and then receive back part of that sum by way of resettlement allowance. In net terms therefore, you would owe money to the Centre rather than being entitled to a payment from it.

I think, anyway, that it is better now to await the conclusion of the case which you have brought before the CFI before doing anything else in this matter. The reasoning of the judgment to be delivered should largely determine the actions of those concerned, since one will then know whether the conditions under the Staff Regulations for the Centre to be required to call for repayment of half of the installation allowance are met or whether (according to the CFI) you are, on the contrary, entitled to payment of the full resettlement allowance without any deduction or set-off.

We shall therefore return to this particular matter when we know more of the main case. ...

16 By fax dated 18 February 2000, the applicant sent Cedefop's AIPN a complaint under Article 90(2) of the Staff Regulations ...

17 In the absence of a reply from the AIPN, that claim became the subject of an implied rejection.'

Proceedings before the Court of First Instance

'...

1. Pursuant to the provisions of Article 24(2) of the [Conditions of employment of other servants of the European Communities] and to Article 6 of Annex VII to the Staff Regulations, a resettlement allowance of [GRD] 908 485 Greek drachmas is to be paid to Mr Hendrickx in respect of his services as a member of the temporary staff of the Centre for the period 01.01.1997-30.06.1998.

2. Pursuant to the provisions of Article 24(1) of the [Conditions of employment of other servants of the European Communities] and to Article 85 of the Staff Regulations, the overpaid part of the installation allowance amounting to [GRD] 1 213 572 is to be recovered.

3. Following the usual practice of the Community institutions, the set-off between the two amounts is to be effected by the payment by Mr Hendrickx of the balance of [GRD] 305 087 to Cedefop's bank account no later than 31 December 2000.

4. This decision takes effect on 14.11.2000.'

The contested order

'44 It is, admittedly, true that in the interests of the proper administration of justice and of the requirement of procedural economy, heads of claim directed against a decision which is replaced, during the course of proceedings, by a decision with the same subject-matter, may be regarded as being directed against the replacement decision because the latter decision constitutes a new factor which entitles the applicant to amend his heads of claim and pleas in law (see, among others, Case 14/81 Alpha Steel v Commission [1982] ECR 749, paragraph 8, and Case 103/85 Stahlwerke Peine-Salzgitter v Commission [1988] ECR 4131, paragraph 11).

45 However, the subject of the applicant's action is the claim for annulment of Cedefop's implied decision refusing him the benefit of the resettlement allowance following his transfer back to Brussels.

46 By the decision of 14 November 2000 the applicant specifically obtained payment of that allowance. In the terms of that decision, a resettlement allowance of GRD 908 485 is to be paid to Mr Hendrickx in respect of his services as a member of the temporary staff of the Centre for the period 01.01.1997-30.06.1998.

47 That finding is not undermined by the fact that Cedefop decided to recover simultaneously the overpayment of part of the allowance paid to the applicant following his installation at Thessalonika.

48. Therefore, in view of the decision of 14 November 2000, this action has become devoid of purpose.'

The appeal

- set aside the contested order and, giving judgment itself:

- grant him leave to amend his pleas in law and heads of claim;

- in the alternative, declare that the decision of the Director of Cedefop of 14 November 2000 was taken by an incompetent authority; consequently, annul that decision as well as Cedefop's implied decision rejecting the appellant's claim for payment of a resettlement allowance corresponding to two months' basic salary; and

- order Cedefop to pay him the sum of BEF 361 292 together with default interest at the rate of 7% per annum from 22 July 1999;

- order Cedefop to pay the costs of both sets of proceedings.

The plea in law based on the refusal to grant Mr Hendrickx leave to amend his pleas in law and heads of claim in respect of the decision of 14 November 2000

Arguments of the parties

Findings of the Court

The plea in law alleging lack of competence on the part of the Director of Cedefop

Arguments of the parties

Findings of the Court

Costs