Dear Mr B.,

On 3 December 2001, you submitted a complaint against the Court of Justice in relation to the latter's handling of your application for a resettlement allowance.

On 31 December 2001, I forwarded the complaint to the Court of Justice for its comments.

The Court sent its opinion on your complaint on 3 April 2002, and I forwarded it to you on 8 April 2002 with an invitation to make observations, if you so wished. On 28 April 2002, you sent me your observations on the Court's opinion.

I am now writing to let you know the results of the inquiries that have been made.

THE COMPLAINT

The complainant, a German national, worked for the Court of Justice from 1977 until 2000. Upon retiring from the Court, he asked (in a letter to the Staff Division of the Court of 12 April 2000) whether a resettlement allowance could be granted to him pursuant to Article 6 of Annex VII of the Staff Regulations.

According to Article 6 (1) of Annex VII, an official who satisfies the requirements of Article 5(1) of Annex VII (that is to say, qualifies for expatriation allowance) 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. Article 6 (4) of Annex VII stipulates that the resettlement allowance is only paid where the official has resettled "at a place situated not less than 70 km from the place where the official was employed".

The complainant claims that he used to live in Schengen (Luxembourg) and that when he retired from the Court, he moved across the border to Perl in Germany (on the other side of the Moselle from Schengen).

Relying on a certificate issued by the German railways, the complainant considers that the distance between Perl and Luxembourg (via Karthaus in Germany) is 86 km, and not 57 km as the Court appeared to have assumed.

The complainant's letter of 12 April 2000 remained unanswered. He then submitted a formal application on 18 February 2001. In the absence of a reply, the complainant lodged, on 19 July 2001, an internal complaint under Article 90 (2) of the Staff Regulations against the implied decision to reject his application. No reply was given within the period of four months referred to in Article 90 (2).

In these circumstances, the complainant turned to the Ombudsman. In his complaint, he alleges that the Court (1) failed to react to his letters of 12 April 2000 and of 18 February 2001 and to his Article 90 complaint and (2) failed to grant the resettlement allowance that was due to him. The complainant also mentions that Mr Pescatore, a former judge at the Court of Justice, obtained the resettlement allowance although he continued to live in the same house in Luxembourg.

THE INQUIRY

The Court's opinion

In its opinion, the Court made the following comments:

There was a close analogy of purpose between the installation allowance and the resettlement allowance. Both were meant to enable an official to bear the expenses incurred through integrating in new surroundings(1). Payment of a resettlement allowance was conditional upon there being a change in the place of residence, that is to say, the effectual transfer of the official's habitual residence to the new place indicated as being that of resettlement(2). The concept of habitual residence had to be interpreted as meaning the place where the person concerned had established, and intended to maintain, the permanent or habitual centre of his or her interests(3). Finally, it had to be recalled that particularly with a view towards the proper use of public funds, provisions of Community law which created a right to financial benefits had to be given a strict interpretation(4). In every case, it had to be ascertained whether the social purpose of the grant of the payment was fulfilled(5).

In the present case, the resettlement allowance had manifestly not been due for three reasons.

First, the alleged resettlement had not concerned new surroundings. The dispute between the Court and the complainant had already produced itself in the same terms regarding the installation allowance. At the relevant time, the Court's administration had taken the view that a move of 2 km from Perl to Schengen could not be considered as an installation in new surroundings. The complainant's claim for an installation allowance within the meaning of Article 5 of Annex VII of the Staff Regulations had thus been rejected. The examination of this application had given rise to extensive correspondence between the complainant and the Court that was recapitulated in the judgement the Court had rendered in that matter(6). The move back to Perl could thus not be considered as a resettlement, either.

Second, even assuming that there had been a resettlement in Perl as claimed by the complainant, this town was situated at a distance to Luxembourg that was inferior to the 70 km prescribed by the relevant provision. In this context, the Court relied on documents that appeared to show that the distance by road between Luxembourg and Perl was between 32 and 34 km. The distance of 86 km on which the complainant relied was the distance for travelling by train. However, Article 6 (4) of Annex VII did not refer to the distance by rail. This distance was without importance for the application of the said provision. In effect, this provision had to be interpreted having regard to its purpose as described above. There was therefore no reason whatsoever to determine this distance by taking into account the detour that resulted from the layout of the railway network.

Third, there were factual elements that indicated that there had been no resettlement. The complainant had limited himself to submitting an attestation showing that he was inscribed in the register of Perl. He had however not established that he had transferred his habitual residence from Schengen to Perl. Between 1989 and 1994, the complainant had furthermore requested and obtained the Court's permission to act as member of the town council of Perl. This indicated that the complainant had maintained the centre of his interests in this town.

In so far as the alleged failure to reply to the complainant's letters and his Article 90 complaint was concerned, the complainant had to be aware of the fact that his application for a resettlement allowance was abusive. Although a reply by the administration could not have added any useful new element of information, it would have been preferable if the service concerned had replied to the complainant for the sake of administrative courtesy. In so far as the Article 90 complaint was concerned, the complainant could not criticise the fact that he had not been informed about the position of the administration concerning his complaint, given that Article 90 (2) specified that the absence of a response was deemed to constitute an implied decision to reject the complaint.

In his Annual Reports, the Ombudsman had taken the position that maladministration occurred where a public body failed to act in accordance with a rule or principle which is binding upon it. The Court considered that in the light of the above, there had been no maladministration in the present case.

Besides, instructions had been given to the Court's services that in the future letters should be answered even where the application was manifestly abusive and where the reply could not add any elucidation or any new element.

The complainant's observations

In his observations, the complainant maintained his complaint. He noted that the Court had not commented upon the case of Mr Pescatore. The complainant further took the view that the distance by rail was relevant (cf. Article 8 (1) of Annex VII).

THE DECISION

1 Failure to grant resettlement allowance

1.1 The complainant, a former official of the Court of Justice, alleges that the Court failed to grant him the resettlement allowance that was due to him when he left the Court's services and moved from Schengen in Luxembourg to Perl in Germany.

1.2 The Court of Justice takes the view that no such allowance was due since (1) the complainant had not resettled into new surroundings, (2) even assuming that there had been a resettlement in Perl as claimed by the complainant, this town was situated at a distance to Luxembourg that was inferior to the 70 km prescribed by the relevant provision and (3) there were factual elements that indicated that there had been no resettlement.

1.3 According to Article 6 (1) of Annex VII, an official who satisfies the requirements of Article 5(1) of Annex VII (that is to say, qualifies for expatriation allowance) 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 the service and does not receive a similar allowance in his new employment. Article 6 (4) of Annex VII stipulates that the resettlement allowance is only paid where the official has resettled "at a place situated not less than 70 km from the place where the official was employed".

1.4 The Ombudsman notes that the distance by rail between Luxembourg and Perl (via Karthaus in Germany) appears to be 86 km. He further notes that the complainant does not query the Court's view that the distance by road is only between 32 and 34 km.

1.5 The Court argues that particularly with a view towards the proper use of public funds, provisions of Community law which create a right to financial benefits had to be given a strict interpretation(7). On this basis, it takes the view that the distance to be considered should be the (shorter) distance by road and that, having regard to the purpose of the resettlement allowance, there was no reason whatsoever to determine this distance by taking into account the detour that resulted from the layout of the railway network.

1.6 The Ombudsman considers that this approach appears to be reasonable. The complainant's argument that another provision (Article 8 (1)) of Annex VII refers to distance by rail does not appear to be decisive in this context. On the contrary, the fact that Article 6 does not refer to distance by rail lends further weight to the Court's view that this provision can and ought to be interpreted strictly and in the light of the purpose of the resettlement allowance.

1.7 In these circumstances, and without there being any need to consider the other arguments submitted by the Court, there appears to be no maladministration in so far as the Court's refusal to grant the resettlement allowance is concerned.

2 Failure to reply to letters and Article 90 complaint

2.1 The complainant alleges that the Court failed to reply to his letters of 12 April 2000 and 18 February 2001 and to his complaint of 19 July 2001 brought under Article 90 (2) of the Staff Regulations.

2.2 The Court accepts that no replies were sent to the complainant's letters and to the Article 90 complaint. It admits that it would have been preferable if the service concerned had replied to the complainant's letters for the sake of administrative courtesy. The Court points out that instructions have now been given to the Court's services that, in the future, letters should be answered even where the application was manifestly abusive and where the reply could not add any elucidation or any new element. In so far as the Article 90 complaint is concerned, however, the Court takes the view that the complainant could not criticise the fact that he had not been informed about the position of the administration concerning his complaint, given that Article 90 (2) specified that the absence of a response was deemed to constitute an implied decision to reject the complaint.

2.3 It is good administrative practice that letters and applications from citizens are replied to within a reasonable period of time(8). The Court's failure to reply to the complainant's letters of 12 April 2000 and 18 February 2001 thus constitutes maladministration. The Court has however admitted that it would have been preferable if the service concerned had replied to the complainant for the sake of administrative courtesy. It has also informed the Ombudsman that measures have been taken to ensure that letters such as the complainant's would be answered in the future. In these circumstances, the Ombudsman considers that there is no need to pursue his inquiry into this aspect of the complaint.

2.4 According to Article 90 (2) of the Staff Regulations, the authority shall notify the person who has lodged an internal complaint of its reasoned decision within four months. This is in line with the principles of good administration. It is true that Article 90 (2) of the Staff Regulations provides that the lack of reply within the period of four months laid down in this provision is deemed to constitute a negative decision. This rule is meant to protect the citizen where an administration does not comply with its legal obligations. It does not in any way give the administration the right to depart from the obligations resulting from the principles of good administration. In these circumstances, the Ombudsman concludes that the Court's failure to reply to the complainant's Article 90 (2) complaint constitutes an instance of maladministration.

2.5 The Court has not offered any apology to the complainant for its failure to reply to his complaint. Nor has it indicated that it was committed to answering Article 90 (2) complaints within the time-limit laid down in this provision. A critical remark will therefore be made.

3 The case of Mr Pescatore

3.1 In his complaint, the complainant mentioned that Mr Pescatore, a former judge at the Court of Justice, obtained the resettlement allowance although he continued to live in the same house in Luxembourg. The complainant reverted to this issue in his observations on the Court's opinion.

3.2 It seems that the complainant did not intend to ask the Ombudsman to inquire into this issue(9). Regard needs to be had in any event to the fact that according to Article 2 (4) of the Statute of the Ombudsman(10), a complaint needs to be made within two years of the date on which the relevant facts came to the knowledge of the complainant and must be preceded by the appropriate administrative approaches to the institution concerned. This condition does not seem to be fulfilled in the present case.

4 Conclusion

On the basis of the European Ombudsman's inquiries into this complaint, it appears necessary to make the following critical remark:

According to Article 90 (2) of the Staff Regulations, the authority shall notify the person who has lodged an internal complaint of its reasoned decision within four months. This is in line with the principles of good administration. It is true that Article 90 (2) of the Staff Regulations provides that the lack of reply within the period of four months laid down in this provision is deemed to constitute a negative decision. This rule is meant to protect the citizen where an administration does not comply with its legal obligations. It does not in any way give the administration the right to depart from the obligations resulting from the principles of good administration. In these circumstances, the Ombudsman concludes that the Court's failure to reply to the complainant's Article 90 (2) complaint constitutes an instance of maladministrations.

Given that this aspect of the case concerns specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.

The President of the Court of Justice of the European Communities will also be informed of this decision.

Yours sincerely,

 

Jacob SÖDERMAN

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(1) Cf. Case 140/77 Verhaaf v. Commission [1978] ECR 2117 paragraph 18; Case T-37/99 Miranda v. Commission [2001] ECR SC-II-413 paragraph 29.

(2) Case 79/82 Evans v. Court of Auditors [1982] ECR 4033 paragraph 13; joined Cases T-57/92 and T-75/92 Yorck von Wartenburg v. Parliament [1993] ECR II-925 paragraph 65.

(3) Case T-63/91 Benzler v. Commission [1992] ECR II-2095 paragraph 25; Case T-37/99 Miranda v. Commission [2001] ECR SC-II-413 paragraph 31.

(4) Case T-41/89 Schwedler v. Parliament [1990] ECR II-79 paragraph 23.

(5) Case T-498/93 Dornonville de la Cour v. Commission [1994] SC-II-813 paragraphs 38 and 39.

(6) Case 90/81 B. v. Court of Justice [1982] ECR 983.

(7) Case T-41/89 Schwedler v. Parliament [1990] ECR II-79 paragraph 23.

(8) Cf. Article 14 and 17 of the European Code of Good Administrative Behaviour that has been submitted by the Ombudsman and approved by the European Parliament. The Code is available on the Ombudsman's website (http://www.ombudsman.europa.eu).

(9) The Ombudsman informed the complainant on 31 December 2001 that he had asked the Court to provide an opinion on the two allegations discussed above. The complainant did not ask the Ombudsman to extend his inquiry to the case of Mr Pescatore.

(10) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman's Duties, OJ 1994 L 113, p. 15.