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Case:
CE, Sect., 6 novembre 2002 Case Mme S
Date:
06 November 2002
Translated by:
J T Brown
Copyright:
Professor B. S. Markesinis

6 November 2002

Given that (1) on 7 June 1993 the Mayor of Castries withdrew his order (“arrêté”) dated 25 August 1992 which granted Mme. S the benefit of a new index-based bonus of 30 points; (2) the Marseilles Court of Appeal in Administrative Matters quashed for formal defects the judgement given on 19 December 1996 by the Administrative Court of Montpellier but refused to quash the withdrawal order; and (3) Mme. S. is applying for a review of this judgement for having rejected the grounds of her claim;

Concerning the Application for Review:

Given that (1) pursuant to Article 27-I of the law of 18 January 1991: “The new index-based bonus of civil servants and military personnel introduced from 1 August 1990 has been granted to certain posts which involve special responsibility or technical ability subject to conditions laid down by decree”; (2) pursuant to para. IV of the same Article, these provisions were extended to civil servants in local government by a decree of the Conseil d’Etat dated 24 July 1991; and (3) pursuant to Article 1 of this decree the new index-based bonus is “paid monthly by reason of their functions to civil servants in local government (…)”;

Given that, subject to contrary statutory or regulatory provisions, and excluding the case where a request of the beneficiary is granted, the Administration is empowered to withdraw an explicit individual decision which creates rights, if it is illegal, only within the period of four months following that decision;

Given that (1) an administrative decision which grants a financial advantage creates rights in favour of its beneficiary even if the service had the obligation to refuse that advantage; and (2) on the other hand, measures which are limited to carrying out the liquidation of a claim arising out of a decision taken previously do not have that effect;

Given that (1) it is clear from the written evidence produced to the court of first instance that the order of the Mayor of Castries dated 25 August 1992 intended, in accordance with the request presented by her, to grant to Mme. S. the benefit of the new index-based bonus introduced by the provisions set out above; (2) this order is not merely a measure which liquidates a claim arising from a previous decision, but is one which creates rights; (3) in the light of that fact, the Court of Appeal in Administrative Matters has committed an error of law in holding that, since the Mayor had no power of discretion to grant or refuse this advantage, which was exclusively monetary in nature, his decision could be withheld at any moment; and (4) consequently, Mme. S. is right to require that the judgement under attack be quashed, to the extent that it rejected the grounds of her claim;

Given that it is necessary to dispose of the substance of the matter pursuant to Article L. 821-2 of the Code of Administrative Justice;

Given that (1) the benefit of the new index-based bonus, created by the above provisions of the Law of 18 January 1991 and the Decree of 24 July 1991, is not a statutory advantage, and is linked neither to the framework of posts nor to the grade, but depends only upon the actual carrying out of the functions which give a right to it; (2) that a long term leave of absence, while it may correspond to one of the positions of activity of a civil servant, does not imply the actual carrying out of any function; (3) Mme. S., sent off on a long term leave of absence, had therefore no claim to the new index-based bonus; and (4) it results however from what is said above that, given its nature of an act which created rights, the decision of 25 August 1992 granting this advantage to her could not legally be withdrawn after the expiry of the period of four months following its pronouncement;

On the other hand, given that (1) the maintenance of the benefit of this bonus is subject to the condition that the person in question actually carries out his or her functions; and (2) that the competent authority could, as soon as this condition ceased to be fulfilled, suppress this advantage for the future;

Given that the decision under attack dated 7 June 1993 is, consequently, illegal only to the extent that it intended to call into question the granting of the new index-based bonus for the period prior to its pronouncement; and (2) that it results from what is said above that Mme. S. is entitled to claim that the order or 7 June 1993 be quashed only to the extent that it suppressed retroactively the benefit of the new index-based bonus;
(……)

DECIDES

Article 1: Articles 3 and 4 of the judgement dated 2 May 2000 of the Marseilles Court of Appeal in Administrative matters are quashed;

Article 2: The order of the Mayor of Castries dated 7 June 1993 is quashed to the extent that has a retroactive effect;

(….)

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