61983J0115

1 . OFFICIALS - SOCIAL SECURITY - MEDICAL EXPENSES - ORDINARY AND SPECIAL REIMBURSEMENT - BASIS OF EACH

( STAFF REGULATIONS , ART . 72 ( 1 ) AND ( 3 ))

2 . OFFICIALS - SOCIAL SECURITY - MEDICAL EXPENSES - SPECIAL REIMBURSEMENT - CALCULATION - PROCEDURE

( STAFF REGULATIONS , ARTS 64 AND 72 ( 3 ))

1 . THE ORDINARY REIMBURSEMENTS OF MEDICAL EXPENSES PROVIDED FOR IN ARTICLE 72 ( 1 ) OF THE STAFF REGULATIONS ARE BASED ON OBJECTIVE CIRCUMSTANCES AND IN PARTICULAR ON THE APPLICATION OF UPPER LIMITS AND RATES OF REIMBURSEMENT FIXED BY THE STAFF REGULATIONS AND IDENTICAL FOR ALL COMMUNITY OFFICIALS WHILST SPECIAL REIMBURSEMENT , AS PROVIDED FOR IN ARTICLE 72 ( 3 ), IS BASED ON CIRCUMSTANCES WHICH ARE PECULIAR TO THE OFFICIAL ' S OWN SITUATION AND WHICH ARE RELATED TO THE FACT , ACCORDING TO THE CIRCUMSTANCES PROVIDED FOR IN ARTICLE 8 OF THE RULES ON SICKNESS INSURANCE , THAT THE PORTION OF EXPENSES NOT REIMBURSED PLACES A ' ' HEAVY FINANCIAL BURDEN ON HIM ' ' .

2.TO ASSESS CORRECTLY THE EXTENT OF THE FINANCIAL BURDEN PLACED ON AN OFFICIAL WHO IS SEEKING A SPECIAL REIMBURSEMENT OF MEDICAL EXPENSES , THE LIVING CONDITIONS OF THE PLACE OF HIS EMPLOYMENT MUST BE TAKEN INTO ACCOUNT AND CONSEQUENTLY THE SPECIAL REIMBURSEMENT PROVIDED FOR IN ARTICLE 72 ( 3 ) OF THE STAFF REGULATIONS MUST BE CALCULATED , NOT SOLELY IN ACCORDANCE WITH THE SALARY REFERRED TO IN ARTICLE 66 , BUT ON THE BASIS OF THE REAL SALARY ADJUSTED BY THE WEIGHTING PROVIDED FOR IN ARTICLE 64 WHOSE PURPOSE IS PRECISELY TO TAKE ACCOUNT OF THE LIVING CONDITIONS IN THE PLACE OF EMPLOYMENT .

IN CASE 115/83

MARINUS OOMS , AN OFFICIAL OF THE JOINT RESEARCH CENTRE , ISPRA , REPRESENTED BY DR POTTHAST AND DR RUBER , RECHTSANWALTE , COLOGNE , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF V . BIEL , 18 A RUE DES GLACIS ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY JORN PIPKORN , A MEMBER OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MANFRED BESCHEL , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF THE DECISION ADOPTED BY THE COMMISSION BY WHICH THE OFFICE RESPONSIBLE FOR SETTLING CLAIMS AT ISPRA MADE A SPECIAL REIMBURSEMENT OF THE MEDICAL EXPENSES INCURRED BY THE APPLICANT ON THE BASIS OF ARTICLE 72 ( 3 ) OF THE STAFF REGULATIONS AND ARTICLE 8 ( 2 ) OF THE RULES ON SICKNESS INSURANCE WITHOUT APPLYING THE WEIGHTING REFERRED TO IN ARTICLE 64 OF THE STAFF REGULATIONS ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 14 JUNE 1983 , MR OOMS , AN OFFICIAL OF THE JOINT RESEARCH CENTRE AT ISPRA , IN GRADE B 2 , BROUGHT AN ACTION SEEKING :

ANNULMENT OF THE DECISIONS OF 25 JUNE AND 21 JULY 1982 , CONFIRMED BY THE COMMISSION ON 9 MARCH 1983 , BY WHICH THE OFFICE RESPONSIBLE FOR SETTLING CLAIMS AT ISPRA MADE A SPECIAL REIMBURSEMENT ON THE BASIS OF ARTICLE 72 ( 3 ) OF THE STAFF REGULATIONS AND ARTICLE 8 ( 2 ) OF THE RULES ON SICKNESS INSURANCE OF MEDICAL EXPENSES INCURRED BY THE APPLICANT BUT DID NOT TAKE ACCOUNT OF THE GEOGRAPHICAL WEIGHTING REFERRED TO IN ARTICLE 64 OF THE STAFF REGULATIONS ;

AN ORDER TO THE COMMISSION TO PAY THE ARREARS OWING TO THE APPLICANT ON THE BASIS OF THE REVISED CALCULATION OF THE SPECIAL REIMBURSEMENT .

2 IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT THE OFFICE RESPONSIBLE FOR SETTLING CLAIMS AT ISPRA DECIDED , ON 25 JUNE 1982 , TO CALCULATE THE SPECIAL REIMBURSEMENT OF MEDICAL EXPENSES SOUGHT BY THE APPLICANT WITHOUT APPLYING TO THE ' ' BASIC MONTHLY SALARY ' ' , WHICH SERVES AS A BASIS FOR THAT CALCULATION PURSUANT TO ARTICLE 72 ( 3 ) OF THE STAFF REGULATIONS , THE WEIGHTING REFERRED TO IN ARTICLE 64 THEREOF .

3 IN A LETTER OF 9 MARCH 1983 , THE COMMISSION REJECTED THE COMPLAINT SUBMITTED BY THE APPLICANT ON 21 SEPTEMBER 1982 AND ENDORSED THE OPINION , DATED 1 DECEMBER 1982 , OF THE MANAGEMENT COMMITTEE OF THE JOINT SICKNESS INSURANCE SCHEME , WHICH THE COMMISSION HAD CONSULTED AND WHICH HAD APPROVED THE DECISIONS OF THE OFFICE RESPONSIBLE FOR SETTLING CLAIMS AT ISPRA .

4 ACCORDING TO ARTICLE 72 ( 1 ) OF THE STAFF REGULATIONS , AN OFFICIAL AND HIS DEPENDANTS ' ' ARE INSURED AGAINST SICKNESS ' ' FOR UP TO 80% OF THE EXPENDITURE INCURRED SUBJECT TO RULES DRAWN UP BY AGREEMENT BETWEEN THE INSTITUTIONS OF THE COMMUNITIES . THE RATE OF 80% IS RAISED TO 100% IN THE CASES OF SEVERE ILLNESS SET OUT IN THAT PROVISION OR RECOGNIZED BY THE APPOINTING AUTHORITY AS OF COMPARABLE SERIOUSNESS .

5 ACCORDING TO ARTICLE 72 ( 3 ) OF THE STAFF REGULATIONS :

' ' WHERE THE TOTAL EXPENDITURE NOT REIMBURSED FOR ANY PERIOD OF 12 MONTHS EXCEEDS HALF THE OFFICIAL ' S BASIC MONTHLY SALARY OR PENSION SPECIAL REIMBURSEMENT SHALL BE ALLOWED BY THE APPOINTING AUTHORITY , ACCOUNT BEING TAKEN OF THE FAMILY CIRCUMSTANCES OF THE PERSON CONCERNED , IN THE MANNER PROVIDED FOR IN THE RULES REFERRED TO IN PARAGRAPH ( 1 ). ' '

6 THE ABOVE-MENTIONED PROVISIONS WERE SUPPLEMENTED BY THE RULES ON SICKNESS INSURANCE . ARTICLE 8 ( 2 ) OF THOSE RULES PROVIDES THAT :

' ' WHEN THE NON-REIMBURSED PORTION OF THE EXPENSES . . . WHICH ARE INCURRED BY A MEMBER . . . EXCEEDS DURING ANY 12-MONTH PERIOD HALF THE AVERAGE BASIC MONTHLY SALARY OR PENSION OR . . . HALF THE AVERAGE ALLOWANCE RECEIVED DURING THE SAID PERIOD , THE SPECIAL REIMBURSEMENT PROVIDED FOR IN ARTICLE 72 ( 3 ) OF THE STAFF REGULATIONS SHALL BE DETERMINED AS FOLLOWS : THE NON-REIMBURSED PORTION OF THE ACTUAL EXPENSES WHICH IS IN EXCESS OF HALF THE AVERAGE BASIC MONTHLY SALARY , PENSION OR ALLOWANCE SHALL BE REIMBURSED AT THE FOLLOWING RATES : 90% IN THE CASE OF A MEMBER BY WHOSE INSURANCE NO OTHER PERSON IS COVERED ; 100% IN OTHER CASES . ' '

7 PURSUANT TO THE THIRD PARAGRAPH OF ARTICLE 62 OF THE STAFF REGULATIONS , ON THE OTHER HAND , REMUNERATION COMPRISES BASIC SALARY , FAMILY ALLOWANCES AND OTHER ALLOWANCES . ACCORDING TO ARTICLE 64 OF THE STAFF REGULATIONS :

' ' AN OFFICIAL ' S REMUNERATION EXPRESSED IN BELGIAN FRANCS SHALL , AFTER THE COMPULSORY DEDUCTIONS SET OUT IN THESE STAFF REGULATIONS OR IN ANY IMPLEMENTING REGULATIONS HAVE BEEN MADE , BE WEIGHTED AT A RATE ABOVE , BELOW OR EQUAL TO 100% , DEPENDING ON LIVING CONDITIONS IN THE VARIOUS PLACES OF EMPLOYMENT . ' '

8 IN SUPPORT OF HIS CONCLUSIONS , THE APPLICANT CONTENDS THAT THE FACT THAT ONLY THE BASIC SALARY IS TAKEN INTO ACCOUNT , WITHOUT ANY REFERENCE TO THE WEIGHTING PROVIDED FOR IN ARTICLE 64 OF THE STAFF REGULATIONS , LEADS TO A FAILURE TO OBSERVE THE PROVISIONS AT ISSUE , WHOSE PURPOSE IS TO DEFINE THE UPPER LIMIT OF THE BURDEN WHICH EACH OFFICIAL MAY HAVE TO BEAR AND , CONSEQUENTLY , TO TAKE ACCOUNT OF HIS REAL PURCHASING POWER . THAT PRACTICE ALSO BREACHES THE PRINCIPLE OF EQUALITY OF TREATMENT WHICH IT IS THE VERY PURPOSE OF ARTICLES 64 AND 65 OF THE STAFF REGULATIONS TO UPHOLD .

9 IN THE COMMISSION ' S VIEW , THE FACT THAT NEITHER ARTICLE 72 ( 3 ) OF THE STAFF REGULATIONS NOR ARTICLE 8 ( 2 ) OF THE RULES ON SICKNESS INSURANCE PROVIDES FOR WEIGHTING MAY BE EXPLAINED BY THE FACT THAT , UNLIKE THE SYSTEM OF WEIGHTINGS , THE SICKNESS INSURANCE SCHEME IS INTENDED TO GUARANTEE , NOT THE EQUALITY OF PURCHASING POWER OF OFFICIALS , REGARD BEING HAD TO LIVING CONDITIONS IN THE VARIOUS PLACES OF EMPLOYMENT , BUT RATHER THE REIMBURSEMENT OF EXPENDITURE ACTUALLY INCURRED . THE PRINCIPLE OF EQUALITY OF TREATMENT IS UPHELD INASMUCH AS ALL COMMUNITY OFFICIALS IN THE SAME CATEGORY , GRADE AND STEP ARE ENTITLED , IN ALL THE PLACES OF WORK OF THE COMMUNITY , TO A SPECIAL REIMBURSEMENT OF THE SAME AMOUNT IN RESPECT OF THE SAME AMOUNT OF MEDICAL EXPENDITURE INCURRED .

10 THE COMMISSION POINTS OUT THAT THE CONTRIBUTIONS TO THE JOINT SICKNESS INSURANCE SCHEME ARE NOT SUBJECT TO THE WEIGHTING PROVIDED FOR IN ARTICLE 64 OF THE STAFF REGULATIONS . ARTICLE 23 OF THE RULES ON SICKNESS INSURANCE PROVIDES THAT THE AMOUNT OF THOSE CONTRIBUTIONS IS FIXED AT A CERTAIN PROPORTION OF THE BASIC SALARIES SET OUT IN ARTICLE 66 OF THE STAFF REGULATIONS , WHICH EXCLUDES ANY POSSIBILITY OF TAKING ACCOUNT , IN CALCULATING THEM , OF THE WEIGHTINGS PROVIDED FOR IN ARTICLE 64 .

11 CONSISTENT AS IT MAY SEEM AT FIRST SIGHT , THAT SCHEME CAN NONE THE LESS NOT BE ISOLATED FROM THE PURPOSE OF THE PROVISIONS OF THE STAFF REGULATIONS IN WHICH IT IS CONTAINED .

12 IN THAT CONNECTION , THE PARTICULAR CHARACTERISTICS OF THE SPECIAL REIMBURSEMENTS PROVIDED FOR IN ARTICLE 72 ( 3 ) OF THE STAFF REGULATIONS , WHICH DISTINGUISH THEM FROM THE ORDINARY REIMBURSEMENTS REFERRED TO IN ARTICLE 72 ( 1 ), MUST BE EMPHASIZED .

13 WHILST , IN THE CONTEXT OF ARTICLE 72 ( 1 ), ALL MEDICAL EXPENDITURE INCURRED BY THE MEMBER ENTITLES HIM TO REIMBURSEMENT OF AN AMOUNT DETERMINED BY THE APPLICATION OF THE RATES AND UPPER LIMITS FIXED BY THE STAFF REGULATIONS , A SPECIAL REIMBURSEMENT UNDER ARTICLE 72 ( 3 ) IS GRANTED ONLY WHEN THAT PART OF THE MEDICAL EXPENDITURE WHICH IS NOT REIMBURSED EXCEEDS A CERTAIN PROPORTION OF THE OFFICIAL ' S SALARY .

14 IT IS CLEAR FROM THE AFOREMENTIONED PROVISIONS THAT THE ORDINARY REIMBURSEMENTS PROVIDED FOR IN ARTICLE 72 ( 1 ) ARE BASED ON OBJECTIVE CIRCUMSTANCES AND IN PARTICULAR ON THE APPLICATION OF UPPER LIMITS AND RATES OF REIMBURSEMENT FIXED BY THE STAFF REGULATIONS AND IDENTICAL FOR ALL COMMUNITY OFFICIALS , WHILST SPECIAL REIMBURSEMENT IS BASED ON CIRCUMSTANCES WHICH ARE PECULIAR TO THE OFFICIAL ' S OWN SITUATION AND WHICH ARE RELATED TO THE FACT , ACCORDING TO THE CIRCUMSTANCES PROVIDED FOR IN ARTICLE 8 OF THE RULES ON SICKNESS INSURANCE , THAT THE PORTION OF EXPENSES NOT REIMBURSED PLACES A ' ' HEAVY FINANCIAL BURDEN ' ' ON HIM .

15 IT FOLLOWS FROM THE FOREGOING THAT TO ASSESS CORRECTLY THE EXTENT OF THE FINANCIAL BURDEN PLACED ON AN OFFICIAL WHO IS SEEKING A SPECIAL REIMBURSEMENT , THE LIVING CONDITIONS OF THE PLACE OF HIS EMPLOYMENT MUST BE TAKEN INTO ACCOUNT AND CONSEQUENTLY THE SPECIAL REIMBURSEMENT PROVIDED FOR IN ARTICLE 72 ( 3 ) OF THE STAFF REGULATIONS MUST BE CALCULATED , NOT SOLELY IN ACCORDANCE WITH THE SALARY REFERRED TO IN ARTICLE 66 , BUT ON THE BASIS OF THE REAL SALARY ADJUSTED BY THE WEIGHTING PROVIDED FOR IN ARTICLE 64 WHOSE PURPOSE IS PRECISELY TO TAKE ACCOUNT OF THE LIVING CONDITIONS IN THE PLACE OF EMPLOYMENT .

16 THE COMMISSION CONTENDS , HOWEVER , THAT IF THE COMMUNITY LEGISLATURE HAD WISHED TO TAKE ACCOUNT OF THE LIVING CONDITIONS IN THE VARIOUS PLACES OF EMPLOYMENT , IT WOULD HAVE MADE ARRANGEMENTS ACCORDINGLY IN RESPECT OF THE ENTIRE SYSTEM OF MAXIMUM RATES AND UPPER LIMITS OF REIMBURSEMENT APPLICABLE TO REIMBURSEMENT UNDER ARTICLE 72 ( 1 ).

17 THAT ARGUMENT CANNOT BE ACCEPTED IN SO FAR AS IT DOES NOT TAKE ACCOUNT OF THE SPECIFIC CHARACTERISTICS OF THE SPECIAL REIMBURSEMENTS PROVIDED FOR IN ARTICLE 72 ( 3 ) AS COMPARED TO REIMBURSEMENTS UNDER ARTICLE 72 ( 1 ).

18 REGARD BEING HAD TO THE PURPOSE AND STRUCTURE OF THE AFOREMENTIONED PROVISIONS , THE CONTESTED DECISION DETERMINING THE AMOUNT OF THE SPECIAL REIMBURSEMENT DUE TO MR OOMS MUST BE ANNULLED , AND THERE IS NO NEED TO CONSIDER THE OTHER SUBMISSION PUT FORWARD . THE COMMISSION MUST THEREFORE BE ORDERED TO PAY THE DIFFERENCE BETWEEN THE AMOUNT ALREADY REMITTED AND THAT OF THE SPECIAL REIMBURSEMENT CALCULATED ON THE BASIS OF THE BASIC MONTHLY SALARY WEIGHTED IN ACCORDANCE WITH ARTICLE 64 OF THE STAFF REGULATIONS .

COSTS

19 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . AS THE COMMISSION HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

HEREBY :

1 . ANNULS THE CONTESTED DECISION ;

2 . ORDERS THE COMMISSION TO PAY THE DIFFERENCE BETWEEN THE AMOUNT ALREADY REMITTED AND THAT OF THE SPECIAL REIMBURSEMENT CALCULATED ON THE BASIS OF THE BASIC MONTHLY SALARY WEIGHTED IN ACCORDANCE WITH ARTICLE 64 OF THE STAFF REGULATIONS ;

3 . ORDERS THE COMMISSION TO PAY THE COSTS .