1 THE APPLICATION IS FOR THE ANNULMENT OF THE COMMISSION ' S DECISION OF 22 OCTOBER 1974 AND , SO FAR AS IS NECESSARY , OF THE IMPLIED DECISIONS OF REJECTION OF THE APPLICANT ' S COMPLAINT .
2 THE APPLICANT , A FORMER OFFICIAL OF THE COMMISSION , HAS BENEFITED SINCE 1 JULY 1973 , THE DATE ON WHICH HIS SERVICE WAS TERMINATED , FROM THE PROVISIONS OF REGULATION ( EURATOM , ECSC , EEC ) NO 2530/72 OF THE COUNCIL OF 4 DECEMBER 1972 , OJ , ENGLISH SPECIAL EDITION 1972 ( 1-8 DECEMBER ), P . 11 ) WHICH , BY REASON OF THE ACCESSION OF NEW MEMBER STATES , ESTABLISHES SPECIAL MEASURES CONCERNING THE RECRUITMENT OF NEW OFFICIALS AND THE TERMINATION OF SERVICE OF CERTAIN OFFICIALS OF THE COMMUNITIES .
3 ARTICLE 3 ( 1 ) OF THIS REGULATION PROVIDES THAT ' AN OFFICIAL AFFECTED BY THE MEASURES PROVIDED FOR IN ARTICLE 2 ( 1 ) SHALL BE ENTITLED :
( A ) FOR A PERIOD OF A YEAR , TO A MONTHLY ALLOWANCE EQUAL TO HIS LAST REMUNERATION , AND
( B ) FOR A PERIOD FIXED IN ACCORDANCE WITH THE TABLE IN PARAGRAPH 2 , TO A MONTHLY ALLOWANCE EQUAL TO :
- 80 % OF HIS BASIC SALARY FOR THE 30 FOLLOWING MONTHS ;
- 70 % OF HIS BASIC SALARY THEREAFTER . '
4 PARAGRAPH ( 4 ) OF THIS SAME ARTICLE PROVIDES HOWEVER THAT ' THE INCOME ACCRUING TO THE OFFICIAL CONCERNED FROM ANY NEW EMPLOYMENT DURING THIS PERIOD SHALL BE DEDUCTED FROM THE ALLOWANCE PROVIDED FOR IN PARAGRAPH ( 1 ) ( B ) IN SO FAR AS THAT INCOME PLUS THAT ALLOWANCE EXCEEDS THE TOTAL REMUNERATION LAST RECEIVED BY THE OFFICIAL IN THE PERFORMANCE OF HIS DUTIES , SUCH LAST REMUNERATION BEING DETERMINED ON THE BASIS OF THE TABLE OF SALARIES IN FORCE ON THE FIRST DAY OF THE MONTH FOR WHICH THE ALLOWANCE IS PAYABLE . . ..
5 THE LAST MONTHLY TOTAL REMUNERATION OF THE APPLICANT WAS BF 119 281 .
6 SINCE 1 SEPTEMBER 1973 , THE APPLICANT HAS WORKED AS A SCIENTIFIC ASSOCIATE IN THE LAW FACULTY OF THE ' KATHOLIEKE HOGESCHOOL ' AT TILBURG , IN THE NETHERLANDS .
7 BY THE CONTESTED DECISION OF 22 OCTOBER 1974 , THE COMMISSION INFORMED HIM OF THE CALCULATION WHICH IT HAD MADE PURSUANT TO ARTICLE 3 ( 4 ) QUOTED ABOVE , IN ORDER TO ESTABLISH THE DEDUCTIONS TO BE MADE FROM THE ALLOWANCE PAYABLE TO HIM AS FROM THE BEGINNING OF THE SECOND YEAR FOLLOWING THE TERMINATION OF HIS SERVICE .
8 ACCORDING TO THIS CALCULATION THAT REDUCTION AMOUNTS TO BF 12 103 PER MONTH .
9 THE COMPLAINT IS MADE THAT THE COMMISSION HAS , IN ADDING THE ALLOWANCE FOR TERMINATION OF SERVICES AND THE INCOME ACCRUING FROM HIS NEW EMPLOYMENT , FOR THE PURPOSES OF COMPARING THEIR TOTAL WITH HIS TOTAL REMUNERATION LAST RECEIVED , INCLUDED IN THAT ALLOWANCE THE COMMUNITY FAMILY ALLOWANCES TO WHICH THE APPLICANT IS ENTITLED UNDER ARTICLE 3 ( 5 ) AND INCLUDED IN THAT INCOME THE FAMILY ALLOWANCES WHICH ARE GRANTED TO HIM UNDER THE LEGISLATION OF THE NETHERLANDS .
10 IT IS SAID THAT THE EXCESS RESULTS FROM THIS METHOD OF CALCULATION AND SO CONSEQUENTLY DOES THE REDUCTION MENTIONED ABOVE , WHEREAS BY OMITTING THE FAMILY ALLOWANCES THE EXCESS WOULD BE ONLY FB 100 .
11 ACCORDING TO THE APPLICANT , THE METHOD OF CALCULATION ADOPTED BY THE COMMISSION INFRINGES ARTICLE 3 ( 1 ) ( B ), ( 4 ) AND ( 5 ) OF THE SAID REGULATION , AS WELL AS ARTICLE 62 , ESPECIALLY PARAGRAPH ( 3 ) THEREOF , AND ARTICLE 67 , ESPECIALLY PARAGRAPH ( 2 ) THEREOF , OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES .
12 ACCORDING TO THE COMMISSION , IT FOLLOWS FROM THE FACT , WHICH IS NOT DISPUTED , THAT THE MONTHLY ALLOWANCE GRANTED DURING THE FIRST YEAR SINCE THE TERMINATION OF SERVICE INCLUDES FAMILY ALLOWANCES , THAT THE SAME IS NECESSARILY TRUE IN RESPECT OF THE ALLOWANCE GRANTED DURING THE FOLLOWING PERIOD .
13 IT ADDS THAT ANY OTHER METHOD OF CALCULATION WOULD BE INCOMPATIBLE WITH THE NON-AGGREGATION RULE SET OUT IN ARTICLE 3 ( 4 ) THE OBJECT OF WHICH IS PRECISELY TO PREVENT THE PERSON CONCERNED FROM RECEIVING FROM THE BUDGET OF THE COMMUNITY INSTITUTIONS AN INCOME EXCEEDING THE AMOUNT OF HIS TOTAL REMUNERATION LAST RECEIVED .
14 IT REFERS , FURTHER , TO THE SYSTEM ADOPTED AT THE TIME OF THE FIRST SCHEME OF VOLUNTARY RESIGNATIONS , IN 1968 , BY REGULATION NO 259/68 , FROM WHICH REGULATION NO 2530/72 TOOK ITS INSPIRATION AND WHICH INCLUDED FAMILY ALLOWANCES IN THE ALLOWANCE CALLED ALLOWANCE FOR VOLUNTARY TERMINATION OF SERVICE .
15 IN THE SAME WAY , AS REGARDS THE CALCULATION OF THE AMOUNT OF INCOME RECEIVED BY THE PERSON CONCERNED IN HIS NEW EMPLOYMENT , THAT TERM MUST BE INTERPRETED BY REFERENCE TO THE INCOME ACCRUING IN THE PRECEDING EMPLOYMENT , THAT IS TO SAY , THE REMUNERATION RECEIVED AS AN OFFICIAL WHICH WITHOUT ANY POSSIBLE DOUBT INCLUDES FAMILY ALLOWANCES .
16 IN A GENERAL WAY , THE CALCULATION LAID DOWN IN ARTICLE 3 ( 4 ) CAN LOGICALLY BE MADE ONLY TO THE EXTENT TO WHICH TWO EXPRESSIONS TO BE ADDED TOGETHER , THAT IS TO SAY , ' INCOME ACCRUING FROM ANY NEW EMPLOYMENT ' AND ' THE ALLOWANCE PROVIDED FOR ' HAVE THE SAME CONTENT AS THE EXPRESSION WITH WHICH THEIR ADDITION MUST BE COMPARED , THAT IS TO SAY , ' THE TOTAL REMUNERATION LAST RECEIVED ' , WHICH INCLUDES FAMILY ALLOWANCES .
17 NEITHER THE WORDING NOR THE BACKGROUND OF ARTICLE 3 ( 4 ) OF REGULATION NO 2530/72 MAKES IT POSSIBLE FOR THE INTERPRETATION THEREOF GIVEN BY THE COMMISSION TO BE FOLLOWED .
18 IN FACT THE DIFFERENT EXPRESSIONS USED IN ARTICLE 3 ( 1 ) ( A ), THAT IS TO SAY , ' MONTHLY ALLOWANCE EQUAL TO HIS LAST REMUNERATION ' AND 3 ( 1 ) ( B ), THAT IS TO SAY , ' MONTHLY ALLOWANCE EQUAL TO 80 % OF HIS BASIC SALARY ' , EXPRESSLY AND UNAMBIGUOUSLY INDICATE THAT THE LATTER ALLOWANCE DOES NOT INCLUDE A PERCENTAGE OF THE TOTAL REMUNERATION BUT ONLY OF THE BASIC SALARY , WHICH PRECISELY EXCLUDES FAMILY ALLOWANCES .
19 THAT INTERPRETATION IS CONFIRMED BY ARTICLE 62 ( 3 ) OF THE STAFF REGULATIONS OF OFFICIALS WHICH SPECIFIES THE DISTINCTION BETWEEN ' REMUNERATION ' , ' BASIC SALARY ' , ' FAMILY ALLOWANCES ' AND ' ALLOWANCES ' .
20 THE ARGUMENT BASED BY THE COMMISSION ON REGULATION NO 259/68 MUST ALSO BE REJECTED .
21 IN FACT ARTICLE 3 ( 4 ) OF REGULATION NO 2530/72 DIFFERS FROM ARTICLE 5 ( 4 ) OF REGULATION NO 259/68 PRECISELY IN THAT IT STATES THAT IT REFERS ONLY TO THE ALLOWANCE PRESCRIBED FOR THE PERIOD REFERRED TO IN PARAGRAPH 1 ( B ) WHEREAS REGULATION NO 259/68 REFERS GENERALLY TO THE ' ALLOWANCE PROVIDED FOR IN PARAGRAPH ( 1 ) ' .
22 ARTICLE 3 ( 5 ) OF REGULATION NO 2530/72 PROVIDES THAT THE WHOLE OF THE FAMILY ALLOWANCES ARE DUE TO THE OFFICIAL WHO RECEIVES THE ALLOWANCES PROVIDED FOR IN PARAGRAPH ( 1 ).
23 THAT PROVISION ADDS , HOWEVER , THAT THE PROVISIONS OF ARTICLE 67 ( 2 ) OF THE STAFF REGULATIONS , THAT IS TO SAY , THE SPECIAL RULES REGARDING THE AGGREGATION OF COMMUNITY AND NATIONAL FAMILY ALLOWANCES , APPLY .
24 IT APPEARS FROM THE COMBINATION OF THESE PROVISIONS THAT FAMILY ALLOWANCES , BOTH THOSE GRANTED UNDER NATIONAL LEGISLATION AND THOSE GRANTED BY THE COMMUNITY , ARE EXEMPT FROM THE CALCULATION PROVIDED FOR IN ARTICLE 3 ( 4 ) AND ARE THE SUBJECT OF SPECIAL NON-AGGREGATION RULES WHICH , MOREOVER , ARE APPLICABLE IN THE PRESENT CASE .
25 THE ARGUMENT OF THE COMMISSION FOUNDED UPON THE FACT THAT ' TOTAL REMUNERATION LAST RECEIVED ' INCLUDES FAMILY ALLOWANCES CANNOT INVALIDATE THE CONCLUSION BASED BOTH ON THE EXPRESS WORDING OF PARAGRAPH ( 2 ) AND THE SYSTEM OF ARTICLE 3 WHICH INCLUDES A SPECIAL NON-AGGREGATION RULE FOR FAMILY ALLOWANCES .
26 IN FACT THIS APPARENT LACK OF LOGIC IS CORRECTED BY THE FACT THAT , BY APPLYING ARTICLE 67 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS , AN AGGREGATION OF FAMILY ALLOWANCES IS EXCLUDED IN ANY CASE .
27 THE SUBMISSION IS WELL FOUNDED .
COSTS
28 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING .
29 THE DEFENDANT HAS FAILED IN ITS DEFENCE .
30 IT MUST THEREFORE BE ORDERED TO BEAR THE COSTS .
ON THOSE GROUNDS ,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . ANNULS THE DECISION OF THE COMMISSION OF 22 OCTOBER 1974 ;
2 . ORDERS THE DEFENDANT TO BEAR THE COSTS .
