Judgment_paragraph 2 · Helmut Henrichs v European Commission (C-396/93 P)

2According to the contested judgment, the facts of the case are as follows:1 Until 31 December 1990, the applicant, Mr Helmut Henrichs, was a member of the temporary staff of the Commission of the European Communities (hereinafter “the Commission”). On that date the two parties jointly agreed to terminate Mr Henrichs's contract of indefinite duration; he had completed 16 years of service. Since 3 January 1991 the applicant has been a civil servant in a ministry of the Federal Republic of Germany. As such he receives emoluments consisting of a basic salary and various bonuses and allowances.2 On leaving the Commission, the applicant was covered by Council Regulation (Euratom, ECSC, EEC) No 2274/87 of 23 July 1987 introducing special measures to terminate the service of temporary staff of the European Communities (OJ 1987 L 209, p. 1, hereinafter “the Regulation”) as amended by Council Regulation (EEC) No 2168/89 of 18 July 1989 (OJ 1989 L 208, p. 4). Following the accession to the European Communities of the Kingdom of Spain and the Portuguese Republic, the Regulation provides that certain members of the temporary staff, with at least 15 years service, may, following their termination of service, qualify for the application of the provisions of the Regulation. In principle, the Regulation provides for the payment to eligible employees of an allowance equal to 70% of the salary previously received as a member of the temporary staff and for the amount of remuneration received by the member of staff from his new post to be deducted from the allowance due.3 To that end, Article 4 of the Regulation provides that:4. Gross income accruing to the former member of the temporary staff from any new employment shall be deducted from the allowance provided in paragraph 1, in so far as that income plus that allowance exceeds the total gross remuneration received by him, determined by reference to the salary scales in force on the first day of the month for which the allowance is payable. That remuneration shall be weighted as provided for in paragraph 3.Gross income and total gross remuneration last received, as referred to above, mean sums paid after deduction of social security contributions but before deduction of tax.The former member of the temporary staff shall provide any written proof which may be required and shall notify the institution of any factor which may affect his right to the allowance....6. Recipients of the allowance shall be entitled, in respect of themselves and persons covered by their insurance, to the benefits provided under the sickness insurance scheme provided for in Article 72 of the Staff Regulations, provided they pay the relevant contribution, calculated on the basis of the allowance provided for in paragraph 1, and are not covered by another sickness insurance by virtue of legal or statutory provisions.”4 On 23 April 1991, the applicant notified the Commission of his new administrative situation, forwarding a salary statement showing a gross monthly remuneration of DM 8681.66 received in the Federal Republic of Germany. That statement contained no indication of any social security contributions borne by the applicant. By decision of 25 April 1991 the Commission reduced by DM 1356.25 the amount of the allowance paid pursuant to the above Regulation. The basis of the Commission's decision is that the applicant's gross monthly remuneration in the Federal Republic of Germany plus the allowance paid by the European Communities under the Regulation exceeded the applicant's last salary as a member of the Communities' staff by that amount. On 28 May 1991 the applicant submitted a complaint pursuant to Article 90(2) of the Staff Regulations of Officials of the European Communities (hereinafter “the Staff Regulations”) against this decision. On 12 September 1991 the Commission, without expressly responding to the complaint, forwarded to the applicant the details of the calculations which purportedly justified its decision.5 By decision of 3 May 1991 the Commission excluded the applicant from the Joint Sickness Insurance Scheme of the European Communities (hereinafter “the Joint Sickness Insurance Scheme”). On 23 May 1991 the applicant lodged a complaint against that decision which was rejected by implied decision.’