Hans Michaelis v Commission of the European Communities (219/78)

I —Facts and procedure

II —Conclusions of the parties

The applicant claims that the Court should:1. Declare that this application is admissible as far as concerns its form and has been filed within the period prescribed by Article 91 of the Staff Regulations;2. As far as concerns its substance:(a) Declare that, in so far as the decision of 12 July 1978 refuses to apply retroactively the weighting for Belgium, it has no legal foundation and must consequently be annulled;(b) Declare that since his retirement on 1 September 1974 the applicant has been entitled to the application of the weighting in respect of Belgium;(c) Declare that the difference between the amount which was payable to the applicant in accordance with Belgian weighting and the amount which he in fact received in accordance with German weighting shall bear interest at 6 ^o/o per annum from the dates when the various payments fell due and from not later than 6 December 1977 being the date of the applicant's complaint;Consequently refer the matter back to the appointing authority for attention;(d) Order the Commission to bear the costs.’The Commission contends that the Court should dismiss the application as unfounded and order the applicant to bear the costs.

III —Submissions and arguments of the parties

The applicant, in his application instituting the proceedings, declares that the application in based on the clear provisions of Article 82 of the Staff Regulations of Officials, which provides that pensions shall be weighted for the country of the Communities where the person entitled to the pension declares his home to be. The applicant denies all liability for the administration's failure to apply the weighting correctly. The applicant cannot be adversely affected by the fact that he reacted only after a delay of three years since the terms of Article 41 of Annex VIII to the Staff Regulations provide that ‘The amount of pension may at any time be calculated afresh if there has been error or omission of any kind’. It is therefore impossible for an application for a lawful and equitable determination of pension rights to be out of time. The refusal of the administration to apply to the applicant the weighting for Belgium with effect from 1 September 1974 constitutes a form of unjustified enrichment. In this connexion the applicant refers to Article 85 of the Staff Regulations concerning recovery of undue payment and considers that it must also be possible for officials to rely upon the right to repayment provided for in that article. Finally, it is contradictory to maintain, as does the Commission, that the refusal to grant the resettlement allowance to the applicant does not in itself establish that the applicant had not returned to his place of origin when in reality that refusal was based on the fact that the applicant had maintained his home in Brussels.The Commission claims, in its statement of defence, that in matters of pensions the determination of pension rights effected by the administration is largely based on the information supplied and the choice made by the retired official. In fact Article 40 of Annex VIII to the Staff Regulations requires the institution in which the official was serving at the time when his active employment ended to communicate to him a detailed statement of the calculation of his pension. The first paragraph of Article 41 of that annex empowers the administration to calculate the amount of pension afresh ‘if there has been error or omission of any kind’. In this connexion in particular it is the duty of an official in favour of whom benefits arise under a pension to furnish such written proof as may be required by the administration and to inform the latter of any facts liable to affect his entitlement (Article 43).With regard to the resettlement allowance the Commission observes that it is paid when evidence is provided of the resettlement of the official and his family after the final termination of his service, provided that such resettlement takes place at the latest three years after the termination of his service. The provisions in this matter depend on Article 71 of the Staff Regulations which concerns the reimbursement of expenses incurred inter alia on leaving the service and have nothing to do with the pension arrangements laid down in Article 77 et seq. of the Staff Regulations, the detailed rules for which are laid down in Annex VIII.There is therefore little point in endeavouring, as does the applicant, to combine in the present case the attitudes of the administration with regard to the granting of a resettlement allowance, on the one hand, and the application of the weighting for a specified country under the retirement pension arrangements, on the other. Furthermore, the foregoing constitute two separate complaints submitted by the applicant and the appointing authority adopted different solutions in each case.The Commission further emphasizes that it did not undertake any positive action and accordingly cannot incur any liability for its application of the provisions of the Staff Regulations, in particular Article 82 thereof, in so far as the weighting applied to the payments of the pension until 31 December 1976 was that in force for Germany, in which country the retired official declared that he had established his residence.According to the Commission the applicant, who was a director general and has remained throughout a university professor, could not have been unaware of the provisions of the Staff Regulations which affected the determination of his pension rights, the more so since those provisions were pointed out to him in the letter of 22 July 1974 from the Head of Division IX A 4 and since, with regard to the questionnaire completed by the applicant on 1 August 1974, the detailed statement of the calculation of his pension, drawn up on the basis of the information furnished by him, was duly communicated to him on 5 November 1974.The applicant in his reply claims that, pursuant to Article 41 of Annex VIII to the Staff Regulations, the only condition prescribed for having pension rights calculated afresh is that there has been an error or omission. It is clear that in the present case the weighting for the Federal Republic of Germany was applied in error. In view of the decision adopted by the administration concerning the resettlement allowance and the reference to that matter contained in the declaration of 1 August 1974 it could not have been unaware that the applicant's place of residence was Brussels and that the Belgian weighting should accordingly have been applied. The argument of the Commission that the applicant could not have been unaware of the provisions of the Staff Regulations on this point is entirely irrelevant. It can also be inferred by a contrario reasoning from Article 42 of Annex VIII to the Staff Regulations, which imposes a time-limit of one year within which persons entitled under a deceased official must apply for their pension, that an official may claim a rectification of his pension rights at any time, and also therefore retroactively.The Commission in its rejoinder claims that the fact that the administration considered that the applicant had not furnished sufficient evidence of his resettlement in Vallendar does not rule out the possibility that he may have intended to establish his home there for the purposes of Article 82 of the Staff Regulations whilst retaining a place of residence and an address for correspondence in Brussels. In those circumstances there is no foundation in fact or in law for the applicant's argument that the refusal of the administration to grant the resettlement allowance necessarily implies acceptance of a place of residence in Belgium and should have been followed by the application of the Belgian weighting in spite of the fact that the person concerned chose to establish his home in the Federal Republic of Germany.The Commission also emphasizes that Article 41 of Annex VIII to the Staff Regulations upon which the applicant relies is not applicable to the present case. The choice of a home expressed by the applicant in his declaration of 1 August 1974 for determining his pension rights cannot in fact be considered as an error, or a fortiori as an omission, for which the administration is responsible. This applies with even greater force in that the administration, as soon as the official entitled to the pension had indicated Brussels as his home in his declaration of 28 September 1977, applied the Belgian weighting to his pension with effect from 1 September 1977. The decision of the Commission notified by the letter of 12 July 1978 even permitted the Belgian weighting to be applied with retroactive effect from 1 January 1977 since the declaration lodged by the applicant on 29 January 1977 gave Brussels as his address.Finally, the Commission observes that the ground of action based on the principle of unjustified enrichment is unfounded. By way of a detailed example the Commission shows that in the present case the application to the pension of the weighting in force for Germany with payment in German marks at the rate laid down by the Staff Regulations provided the person concerned with a net pension the value of which corresponds to that of the pension multiplied by the weighting applicable to Belgium and paid in Belgian francs. On the other hand, the retired official would have gained an ‘enrichment’ if he had claimed the application to his pension of the Belgian weighting and the payment thereof in German marks at the favourable rate laid down in the Staff Regulations.

IV —Oral procedure

The parties presented oral argument at the hearing on 13 September 1979.The Advocate General delivered his opinion at the sitting on 11 October 1979.

Costs