The defendant has not contested the admissibility of the application.

The applicant maintains that the decision contained in the letter from the President of the Court dated 21 September 1960 is unlawful since the decision of 9 May 1960 of the Committee of Presidents which it confirms is contrary to Article 62 of the Staff Regulations of the Community. To prove the validity of this complaint the applicant maintains that Article 47 (3) must be interpreted as follows:

Having regard to the general structure and spirit of the law, the concept of the separation allowance is linked with the concept of the journey between the seat of the Community and the place where its official lives and which the official must actually make to return home or go to work.

Moreover, a comparison of Articles 47 (3) of the Staff Regulations and Article 16 (b) of the Provisional Staff Regulations in force before the Staff Regulations were adopted shows that the Provisional Regulations regarded as non-residents entitled to the separation allowance officials not living within a radius of 25 km from the seat whereas Article 47 (3) of the Staff Regulations regards as non-residents those who do not live at a distance less than 25 km from the seat. The omission of the word radius which obviously refers to the distance as the crow flies shows that the Staff Regulations did not wish to retain this concept and that they adopted the criterion of the distance which the servant actually had to go.

It is alleged that far from being a correct interpretation of Article 47 (3) of the Staff Regulations, the solution adopted by the Committee of Presidents distorts the logical content of this article. This is all the more so since the previous interpretation of the Court was never regarded as wrong. The Registrar himself had stated in his letter of 22 January 1959 sent to the auditor that the method of calculating the distance provided for in Article 47 (3) is not specified in the Staff Regulations and General Regulations and therefore the interpretation given by the Court of the legal distance was just as valid as the High Authority's method of calculation (that is, as the crow flies).

Moreover, in his report relating to the sixth financial period of the Community, the auditor never regarded the method of calculating by road or railway adopted at the time by the Court as an irregular application of Article 47 (3) of the Staff Regulations. He simply limited himself to wishing that a uniform criterion could be adopted in the matter for the future.

In view of the fact that the solution to the problem raised by Article 47 (3) of the Staff Regulations, such as is confirmed by the decision of 9 May 1960 of the Committee of Presidents, does not respect the content and scope of this provision and thus involves the abolition of the applicant's right to receive the separation allowance, the applicant claims that this solution constitutes in fact an amendment or alteration of the said article. Under the terms of Article 62 of the Staff Regulations any amendment of the Staff Regulations must be made by the Committee of Presidents on a proposal from one of the institutions and after consulting the other institutions including the Staff Committee of each institution and where appropriate after receiving the opinion of the Committee on the General Regulations provided for in Article 46. Because the procedure provided for in this article has not been followed in the present case, since the required consultations have not taken place, the decision of 9 May 1960 of the Committee of Presidents, as a decision amending the Staff Regulations, infringes the aforementioned Article 62. As a result the decision of 21 September 1960 of the President of the Court is likewise irregular in that it is aimed at applying in respect of the applicant a decision, that of the Committee of Presidents, which is incompatible with Article 62 of the Staff Regulations.

The defendant first of all analyses the position of the Committee of Presidents:

On the first point, the defendant observes that the irregularities or diffulties which may arise in the accounting or financial activity of the Community are brought by the auditor to the knowledge of the Committee of Presidents. The Treaty does not indicate the competent authority for deciding questions raised by the auditor's report, but the Commission has inferred from the fact that it has to ensure administrative harmony between the different institutions of the ECSC that it is the only competent body to accept or reject the observations of the auditor.

As for the second point, the defendant stresses that the Committee has instructed the administrations of the institutions collected together within the Committee of Common Interests to adopt detailed rules for the implementation of the provisions of the Staff Regulations (and of the rules) in the event of differences in the interpretation of these provisions.

All this procedure, claims the defendant, has been observed in the present case, for the Committee of Presidents, on the one hand, has taken note of the observations of the auditor in respect of the application of Article 47 (3) of the Staff Regulations and, on the other, has instructed the Committee of Common Interests to propose a uniform solution to the question. This solution was adopted by the Committee of Presidents by its decision of 9 May 1960 and notified to each of the institutions which had to-adopt it. It follows that the decision of 9 May 1960 was taken by the Committee of Presidents within the context of its powers and that as a result the decision of the President of the Court of 21 September 1960 cannot be held to be irregular on the sole ground that it is based on that of 9 May 1960.

The defendant then considers whether, by adopting the solution contained in its decision of 9 May 1960, the Committee of Presidents has wrongly interpreted Article 47 (3) of the Staff Regulations. It maintains the lawfulness of this decision and states in this respect:

All these circumstances clearly show that the Committee, in adopting the present wording of Article 47 (3) of the Staff Regulations, in no way intended to depart from the principles and criteria which it had adopted in its first draft and the omission of the word radius contained in the first draft was due to the desire to simplify the wording of this article. The solution adopted by the Committee of Presidents must be regarded as a correct and normal interpretation of Article 47 (3) of the Staff Regulations and not as an amendment of it.

Apart from the irregularity of the decision of the Committee of Presidents the applicant maintains in addition that the decision of the President of the Court of 21 September 1960 is irregular because it was ultra vires.

According to Article 16 of the Statute of the Court of Justice the Staff Regulations of the Court are laid down by the Court. Thus in accordance with these provisions the Staff Regulations laid down by the Committee of Presidents were adopted by the Court of Justice by decision dated 1 March 1956 and took effect on 1 July 1956(vide Staff Regulations in fine). The applicant claims that if this was the procedure for the adoption and implementation of the Staff Regulations within the Court of Justice it is obvious that the same procedure should have been followed in the present case which is concerned with the adoption and implementation of a new interpretation of Article 47 (3) of the Staff Regulations within the Court. Since it is contrary to this procedure, the decision by the President and not by the Court adopting and applying the interpretation, which the Committee of Common Interests gave to the said article and which was followed by the Committee of Presidents, is unlawful.

The defendant in answer to this complaint says that all the institutions have implemented the decision of the Committee of Presidents and, as regards the implementation of the Staff Regulations and Rules, the competence of the President of the Court cannot be doubted, for it follows from Article 1 (b) of Annex I to the Staff Regulations that the implementation within the Court of the Staff Regulations and the Rules is entrusted to the appointing authority, which in the present case is the President of the Court.

The applicant, after stressing that the act by which he had been granted the separation allowance, as an act emanating from the competent authority and containing a correct interpretation of Article 47 (3) of the Staff Regulations, was legal, concludes that the act in question gave rise to a personal right. It therefore follows that in accordance with the case-law of the Court in the case of Algera the benefit of the act in question could not in principle be withdrawn from him, for since the personal right was vested the necessity of maintaining confidence in the permanency of the situation thus created prevails over the interest of the administration seeking to reverse its decision. Against this argument the defendant restricts itself to referring to the principles of the case-law established by the Court in this same case of Algera. After contesting that the decision in question can be regarded as the revocation of a legal measure, it observes that the statement of facts seems to show that the Committee of Presidents and the President of the Court took the view that there could be no question in the present case of vested rights strictly so called.

In answer to the applicant's argument that, by adopting the Staff Regulations and agreeing to the payment of the separation allowance to the applicant, the Court of Justice had validly concluded with the applicant a tacit agreement which it could not unilaterally cancel, the defendant says that the decision of the Court of Justice of 11 March 1958 by which the separation allowance was granted to the applicant is in the nature of a decision and not of a contractual undertaking. It states in this respect that the legal connexion between it and the applicant after the Staff Regulations came into force was a matter of public law and not of a contractual nature; accordingly, in the interests of the department, it may be amended by the authority.

Lastly the applicant maintains that the decision taken is contrary to Article 60 (2) of the Staff Regulations for it disregards the principle contained in this article that staff who, as a result of Article 47 (3) no longer receive the separation allowance, shall receive monthly as a compensation allowance the difference between the amount which they were receiving as non-residents on the Staff Regulations' being first applied to them and the amount of the residents' allowance in Article 47 (3).

The defendant deals with this argument jointly with that of the alleged contractual nature of the undertaking by the Court in granting the separation allowance and makes the same counter-arguments as in respect of the latter.

The application is based on four complaints:

It remains to be considered whether the interpretation of Article 47 (3) given by the Committee of Presidents and confirmed by the President of the Court is correct.

The defendant maintains that the wording of this article which has replaced Article 16 (b) of the Provisional Staff Regulations had been proposed by the High Authority which both under the Provisional Staff Regulations and the Staff Regulations has always applied the criterion of as the crow flies.

This fact is alleged to show that the intention of the authors of the provision was not to amend the system as clearly appearing from the previous wording and that the disappearance of the word radius is not the result of a formal decision but only the simplification of the drafting.

This argument is not supported by any document capable of showing that the intention to amend the system previously established must be ruled out.

On the other hand, the difference in wording between the two articles is itself an argument capable of leading to the presumption that the authors of the new provision intended to amend the former criterion, since in the absence of evidence to the contrary it must be assumed that any difference in wording involves a difference in the scope if the new wording leads to a different interpretation.

The wording of the former article left no doubt at all, for the word radius accords precisely with the concept of distance as the crow flies.

On the other hand, the words used by Article 47 (3) may literally be given a double interpretation, since the distance may be calculated according to as the crow flies or by road or rail.

In these circumstances, if the word radius had replaced the word distance in the article, the scope of the amendment would have been clear, for the authors of the new provision would have obviously had the intention of choosing between the two possible interpretations of the former wording that which related to the concept of distance as the crow flies.

In the present case, however, it is the reverse which has happened.

The very fact of having replaced in the present case the word radius by the word distance clearly shows that the authors of the article wished to reject the concept of as the crow flies (a concept which was clearly expressed by the word radius) and that they wished on the other hand to adopt the concept of journey by road or railway.

In the absence of working documents clearly expressing the intention of the draftsmen of a provision, the Court can base itself only on the scope of the wording as it is and give it a meaning based on a literal and logical interpretation.

Finally, the argument that the criterion of calculation as the crow flies has always been applied both under the Provisional Staff Regulations and the Staff Regulations is weakened by the fact that the criterion was not applied by the Court when at the request of those concened it applied Article 47 (3).

It must also be observed that Article 47 (3) does not prescribe precisely the method of calculating the distance (by road or rail or the shortest of these two ways).

If the drafting is defective there is nothing to prevent selecting by means of interpretation the most reasonable criterion, that is to say, that of the shortest distance either by road or by rail of a normal journey.

In these circumstances, while recognizing that the drafting of Article 47 (3) may at first sight lend itself to a double interpretation, the Court must find that the interpretation given by the Committee of Presidents and the President of the Court is not in accord with the scope of this provision.

The decision by which the previous decision was revoked is unlawful and must therefore be annulled.