Judgment_paragraph 2. · Jean Kholl v European Commission (137/79)

2.The defendant replies that the note from Mr Pratley bears none of the features which have been identified by the Court as constituting a decision (cf. Case 54/65, Forges de Châtillon, [1966] ECR 185). The author of that note is not the authority competent to adopt a decision concerning the grant of an allowance to an official posted to Luxembourg: the decision of the Commission of 5 October 1977 shows in fact that that authority is Mr Schwering, Head of the Personnel Division in Luxembourg. The note cannot have any legal effect whatsoever as it relates to a purely hypothetical situation. It does not represent the termination of an internal procedure. It does not employ the word “decision” and the form in which it is drafted is not such as to give the impression that it had that nature.It is apparent from the case-law (Joined Cases 19, 20, 25 and 30/69, Richez-Parise and Others [1970] ECR 325) that, apart from the exceptional instance, the adoption of an incorrect interpretation does not constitute in itself a wrongful act. The applicant has failed to establish in what regard the error made in this case is, exceptionally, a wrongful act. To be such it is necessary, in addition, that the false information should have been supplied by the authority which is competent in the matter, quod non.Furthermore the applicant was in no way invited by the administration to obtain information from Mr Pratley. Finally, the applicant was informed as early as 13 October 1978 by Mr Vanetti, of the Personnel Division, that Mr Pratley's interpretation was mistaken.The damage caused by loss of the allowance, if any, may only be equal to a monthly payment to be made during the actual duration of the applicant's future employment and in the form of an ad personam compensatory allowance, the amount of which would decrease in step with and depending on the increases in his salary. The loss resulting from the sale of the house in Tervuren cannot be taken into consideration as there has been no proof of the existence of such a loss.As to the causal link, even if the information supplied by the administration may have played some part, it appears hardly likely that the applicant decided to request his transfer after a stay of ten years in Brussels solely because he believed he would be able to continue drawing the expatriation allowance. As soon as Mr Vanetti had alerted him (a fact which the defendant proposes to prove) it would have been prudent for the applicant to suspend all his transactions. The loss on the sale of the house in Tervuren is wholly unconnected with the alleged wrongful act on the part of the administration; such a wrongful act, even if it had led Mr Kohll to request a transfer to Luxembourg, would not have forced him to sell the house in question immediately.