ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

30 June 2016

Sandra Kaufmann

v

European Commission

‛Civil service — Social security — Joint Sickness Insurance Scheme — Carer services — Prior authorisation — Conditions — Obligation to use service providers legally authorised to provide carer services or nursing care — Principle of non-discrimination — Principle of the protection of legitimate expectations — Duty to have regard for the welfare of officials — Limits — Action manifestly lacking any foundation in law — Directions to the administration — Manifest inadmissibility — Article 81 of the Rules of Procedure’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, by which Ms Sandra Kaufmann seeks, first, annulment of the decision of the European Commission by which it rejected a request for prior authorisation of home care services associated with dependence provided to Ms Thiele, a former Commission official who died on 31 October 2014 (Ms Kaufmann being the sole beneficiary of Ms Thiele’s estate) and, secondly, the grant of prior authorisation for those services with effect from 1 January 2014.

Held:

The action is dismissed as in part manifestly inadmissible and in part manifestly unfounded. Ms Sandra Kaufmann is to bear her own costs and is ordered to pay the costs incurred by the European Commission.

Summary

1. Officials — Social security — Sickness insurance — Expenses for carer services — Repayment — Conditions — Prior authorisation — Obligation to use service providers legally authorised to provide the services of a carer or nursing care — Scope

   (Rules on sickness insurance, Arts 27 and 52)

2. Officials — Principles — Protection of legitimate expectations — Conditions — Refusal of prior authorisation for carer services where such authorisation had been granted in the past — Infringement — None

   (Staff Regulations of Officials, Art. 85; Rules on sickness insurance, Art. 27)

1.  Point 2.1(b) of Chapter 3 of Title II of the general implementing provisions for the reimbursement of medical expenses, adopted by the Commission, does not require legal authorisation of the carer in every case. On the contrary, those provisions expressly provide that, in countries where the profession of carer is not regulated, or in cases where it is impossible to find an officially approved carer, the member may provide the settlements office with a prescription from his doctor which specifies the name of the person who is to provide the care and confirms that that person is properly qualified to do so. A member who requires ‘nursing’ care within the meaning of point 2.1(a) of Chapter 3 of Title II of the general implementing provisions is not therefore required to use the services of a legally authorised carer where the applicable national legislation does not provide for such authorisation.

   In other words, where a member makes a request for prior authorisation in respect of carer services falling within the scope of the joint rules on sickness insurance for officials of the European Union, as supplemented by the more detailed general implementing provisions referred to above, the relevant settlements office must verify whether that care is subject to specific national legislation concerning those who, with regard to the need to protect public health, are authorised to provide such care.

   Thus, point 2.1(b) of Chapter 3 of Title II of the general implementing provisions referred to above has no effect on the competence of Member States to lay down the requirements which must be met by individuals or establishments providing carer services or nursing care. On the contrary, those provisions take account of the legislative differences which may exist between Member States in this area, by avoiding laying down a requirement to treat different legislative situations in the same way.

   (see paras 46-48)

2.  Three conditions must be satisfied in order to claim entitlement to the protection of legitimate expectations. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the EU administration. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules. Since those conditions are cumulative, a failure to fulfil any one of them is sufficient to prevent any right to the protection of legitimate expectations arising.

   The mere fact that, in the past, the settlements office has granted requests for prior authorisation for carer services to be provided to the person concerned cannot be regarded as reflecting a promise to grant prior authorisation in future and, accordingly, as equivalent to precise unconditional and consistent assurances from the settlements office.

   It follows from Article 27 of the joint rules on sickness insurance for officials of the European Union, read in conjunction with point 2 of Chamber 3 of Title II of the general implementing provisions for the reimbursement of medical expenses, adopted by the Commission, that each request for prior authorisation for carer services must be assessed individually. Consideration of such a request involves verifying that all of the conditions set out in point 2 of Chapter 3 of Title II of the general implementing provisions are met, in particular that the documentation submitted in support of the request for authorisation is complete and includes all the requisite information as to the state of health of the member and as to the body or individual providing the care in question. Furthermore, it is apparent from point 2.2 of Chapter 3 of Title II of the general implementing provisions referred to above that the settlements office can only grant prior authorisation for long-term care services for a limited period of no more than twelve months.

   Finally, the fact that financial benefits have been paid by the administration, even for several years, cannot in itself be considered a precise, unconditional and consistent assurance within the meaning of the case-law. Otherwise, any decision of the administration refusing for the future, and possibly with retroactive effect, to pay a pecuniary benefit unduly paid to the person concerned for several years would be systematically annulled by the Courts of the European Union for non-compliance with the principle of legitimate expectations, with the consequence that Article 85 of the Staff Regulations, on the recovery of undue payment, would be largely deprived of any practical effect.

   (see paras 53-55, 57)

   See:

   Judgment of 7 November 2002 in G v Commission, T‑199/01, EU:T:2002:271, para. 38

   Judgments of 1 March 2007 in Neirinck v Commission, F‑84/05, EU:F:2007:33, para. 79; 1 July 2010 in Mandt v Parliament, F‑45/07, EU:F:2010:72, para. 125; 5 June 2012 in AW v Commission, F‑14/11, EU:F:2012:74, para. 58, and 7 July 2015 in Kur v Commission, F‑53/14, EU:F:2015:81, para. 64