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To obtain a declaration that the second indent of the third paragraph of Article 3 of Annex VII to the Staff Regulations is inapplicable in so far as it restricts the doubling of the allowance to officials who are entitled to the expatriation allowance; and

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Consequently, to obtain an order requiring the Commission to rectify the applicants' accounts by adding the amounts representing the double education allowance which they have been illegally denied.

1.

The applicants, who are aH employed at the Ispra branch of the Joint Research Centre, fulfil all the conditions for the allowance to be doubled except one: they are not entitled to the expatriation allowance provided for by Article 69 of the Staff Regulations and by Section 2 of Annex VII thereto. Consequently they consider themselves to be the victims of discrimination in comparison with their colleagues who do receive that allowance and whose children, like theirs, attend an establishment of higher education situated in Italy more than 50 km from their place of employment. In practice in most cases the establishment in question is Milan University which is situated 72 km from Ispra.

At the end of 1980 they submitted requests under Article 90 (1) of the Staff Regulations to be granted the double allowance. The appointing authority rejected the requests by reference to the clear wording of Article 3 of Annex VII.

2.

The applicants then- submitted complaints under Article 90 (2) of the Staff Regulations but they were all rejected, initially by implied decisions (failure to reply within the prescribed period of four months) and subsequently on the institution of proceedings by express decisions of rejection dated either 15 July or 9 December 1981.

1.

In Regulations Nos 31 (EEC) and 11 (EAEC) of the Council of 18 December 1961 the allowance was available to every official whether or not he was entitled to the expatriation allowance and regardless of the establishment attended by his child.

Yet the education allowance did not cover the complete cycle of higher education since it was not available once the child attained the age of 21 years. In addition there was no provision for doubling the allowance.

2.

The principle of doubling the allowance was introduced in 1965. ( 3 ) The double allowance was then granted to officials whose children attended an educational establishment and where there was no European school within 50 km of their place of employment, provided they were entitled to the expatriation allowance. In 1968 that set of rules was consolidated into the uniform regulations. applying to all Community officials which replaced the Staff Regulations of the ECSC, the EEC and the EAEC. ( 4 )

3.

In 1972 ( 5 ) the entitlement to the double education allowance was extended to officials whose children were pursuing a course of higher education. That new entitlement was subject to compliance with the following three conditions:

It follows from a comparison of the two last conditions that the establishment attended does not necessarily have to be situated in the country of origin of the official.

4.

In 1974 the Commission submitted to the Council a proposal to liberalize the conditions for the grant of the double education allowance. It sought in particular to delete the requirement that the official be entitled to the expatriation allowance. In adopting Regulation No 711/75 ( 6 ) the Council accepted the Commission's proposal only in part in relation to higher education. The requirement that the official be in receipt of the expatriation allowance was abolished in respect of primary and secondary education but retained for higher education. It simply added the words that the condition was not to apply “if there is no such establishment in the country of which the official is a national.” ( 7 )

5.

The provision in force today reads as follows:

“The maximum prescribed in the first paragraph shall be doubled for:

...

That wording widens certain minor points only as compared to the previous wording. ( 8 ) It retains the three requirements laid down in the previous text.

It should also be pointed out that by virtue of Article 5 (1) of the General Implementing Provisions for granting the Education Allowance ( 9 ) the amount of the education allowance payable in respect of attendance at an establishment of higher education is a standard sum inasmuch as it amounts to the maximum prescribed in the first paragraph of Article 3 of Annex VII to the Staff Regulations regardless both of the actual educational expenses incurred and of the salary of the official in receipt of the allowance. For the academic year 1981-82 the figure was BFR 4105 per child per month. ( 10 )

Likewise by virtue of Article 5 (2) of those general provisions each official who fulfils the requirements for the grant of the double allowance and whose child attends an establishment of higher education automatically receives a sum which is double the basic rate. For the same academic year he would therefore receive BFR 8210 per child per month.

1.

The applicants base their applications on the sole submission of infringement of the principle of nondiscrimination which is one of the general principles of law recognized by the Court's case-law. That principle is infringed if situations which are similar are treated differently or situations which are different are treated in the same way, without any objective justification. ( 11 )

The applicants consider that the requirement for the grant of the double education allowance that the official must be entitled to the expatriation allowance means that officials who are in comparable situations are treated differently without any justification.

They state that all officials whose children pursue higher education at an establishment situated more than 50 km from their place of employment incur the same expenses arising from the pursuit of their studies. They are therefore in identical situations. Yet officials who are entitled to the expatriation allowance receive double the allowance granted to those who are not so entitled. Therein lies the discrimination.

2.

Furthermore, there is no objective justification for such different treatment. That is the point which seems to me to be the central issue of these cases.

Does the fact that the grant of the double education allowance is subject to the requirement that the official be entitled to the expatriation allowance create “an arbitrary difference in treatment between officials”? ( 12 ) Does it, in other words and in certain cases, create a discriminatory situation “caused by the application of a general rule, which... constitutes a breach of the principle of equality among officials whose circumstances are similar”? ( 13 ) Alternatively, does it create a classification based on objective criteria and directly related to the purpose of the rules which applies in the same manner to all officials who are in the position envisaged by the Staff Regulations, but which give rise to inconvenience in borderline cases? ( 14 )

Although the wording does not state the purpose expressly it is clear that the Council's purpose in retaining the requirement that the official be entitled to the expatriation allowance is to enable officials who are not nationals of the State in which they are employed to discharge the higher expenses incurred by their children in pursuing studies in their country of origin.

In that respect it is possible to agree with the Council and the Commission that studies in a country other than that in which the student's father or mother is employed involve, on average, greater expenses, in particular in relation to travel, than studies in the latter country.

It is also to be noted that, in the majority of cases, officials who are entitled to the expatriation allowance are nationals of a State other than that in which they are employed (for example, 97.4% of the officials and temporary staff employed at Ispra who are entitled to the expatriation allowance are not of Italian nationality) and that, in most cases, their children return to their country of origin to complete their higher education (for example, at Ispra 147 children were in that position during the academic year 1981-82, whilst 36 were studying in Italy).

3.

However, account must be taken of the analysis conducted by the applicants who, far from being convinced by the Council's reasoning, dispute whether the supposedly higher expenses involved in studies in the country of origin are the real reason for the requirement that the official be entitled to the expatriation allowance. In that respect they submit three arguments of which the final one seems to me to be the strongest.

It is undeniable that that argument has some validity. However, it does not lead me to conclude that the situation amounts to arbitrary discrimination. In fact, it may be seen from the Court's case-law that, in order to interpret a doubtful provision, it is necessary to examine its aim and scheme. ( 15 )In fact the grant of the double allowance to officials entitled to the expatriation allowance, who are in the vast majority of cases not nationals of the country in which they are employed, was not intended by the legislature but arises solely, as the Commission has recognized, from the imperfect wording of the provision in force. Consequently the applicants should instead compare their case with that of the only category of officials whom the Council intended to benefit from the double education allowance, namely persons entitled to the expatriation allowance who send their children to their country of origin.

Moreover, even if the cases chosen by the applicants for the purposes of making a comparison are not marginal ( 16 ) it nevertheless follows from the figures I have given that by far the most common situation is that envisaged by the Council as the basis for the disputed provision. It is therefore possible to say that the latter constitutes the expression of an undeniable sociological reality.

If in the vast majority of cases children of Community officials undertake their studies in their country of origin ( 17 ) that is, in fact, because there are powerful reasons encouraging them to do so. Entry into numerous careers, especially in the public service and certain liberal professions, often depends on the possession of national qualifications at the present stage in the mutual recognition of qualifications by the different Member States. Linguistic considerations may also have to be taken into account. Finally, it is clear that integration into the employment system of the country of origin is facilitated in particular from a psychological point of view, if the studies leading to it are completed in that country.

1.

It would therefore seem at the present stage that the requirement relating to the grant of the expatriation allowance which the Council has retained since 1975 does, on the one hand, relate directly to the purpose of the rules relating to the double education allowance and is, on the other hand, objective and uniform, that is to say it applies to all persons in the same position without any discretion to assess their individual position.

Nevertheless, it seems to me that it is possible to deduce from the Court's case-law that such a requirement would be illegal if its application were to lead to an excessive increase in the number of officials not entitled to the double allowance which logically they ought to receive. Even in the absence of the requirement relating to the expatriation allowance the “introduction of any general and abstract system of rules” will of itself give rise to “borderline cases” ( 18 ) in which officials are deprived, a priori unjustly, of the double allowance.

However, that risk is increased and the persons unjustly excluded may become too numerous for their situation to be regarded as marginal any longer when the requirement relating to the expatriation allowance is added to the others. In fact the application of Article 4(1) of Annex VII to the Staff Regulations, which lays down the conditions for granting the expatriation allowance, is also capable, without doubt, of leading to injustices even if they do not amount to arbitrary differentiation. ( 19 )

In other words where two defective criteria are superimposed they may result in the rules which lay them down being discriminatory and therefore illegal.

2.

We must now ascertain whether that is actually the case in these proceedings.

In my opinion it is necessary to distinguish four situations which may be regarded as abnormal.