61985J0339

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OFFICIALS - SOCIAL SECURITY - SICKNESS INSURANCE - PERSONS TREATED AS DEPENDENT CHILDREN - ENTITLEMENT TO BENEFIT - CONDITION - LACK OF COVER UNDER ANY OTHER PUBLIC SCHEME OF SICKNESS INSURANCE - CONDITION NOT LAID DOWN IN THE STAFF REGULATIONS - LEGALITY

( STAFF REGULATIONS ART . 72 ( 1 ); RULES ON SICKNESS INSURANCE FOR OFFICIALS OF THE EUROPEAN COMMUNITIES, ART . 3 ( 3 ) )

BY PROVIDING THAT AN OFFICIAL AND HIS SPOUSE, CHILDREN AND OTHER DEPENDANTS ARE INSURED AGAINST SICKNESS UP TO A GIVEN PERCENTAGE OF THE EXPENDITURE INCURRED, SUBJECT TO RULES COMMON TO ALL THE INSTITUTIONS, ARTICLE 72 ( 1 ) OF THE STAFF REGULATIONS LEAVES IT TO THE AUTHORS OF THOSE RULES TO DEFINE THE SCOPE OF THE INSURANCE COVER IN QUESTION, IN KEEPING WITH THE STAFF REGULATIONS AND THE OBJECTIVES WHICH THEY PURSUE .

BY EXCLUDING FROM ENTITLEMENT TO COMMUNITY BENEFITS PERSONS TREATED AS DEPENDENT CHILDREN OF THE OFFICIAL WITHIN THE MEANING OF ARTICLE 2 ( 4 ) OF ANNEX VII TO THE STAFF REGULATIONS WHERE THEY ARE COVERED UNDER ANY OTHER PUBLIC SCHEME OF SICKNESS INSURANCE, ARTICLE 3 ( 3 ) OF THE RULES ON SICKNESS INSURANCE FOR OFFICIALS OF THE EUROPEAN COMMUNITIES DOES NOT GO BEYOND THE LIMITS LAID DOWN BY ARTICLE 72 OF THE STAFF REGULATIONS, SINCE IT IS CONSISTENT WITH THE INTENTIONS OF THE AUTHORS OF THE STAFF REGULATIONS FOR THE SCOPE OF SICKNESS INSURANCE FOR OFFICIALS AND MEMBERS OF THEIR FAMILIES TO BE DETERMINED SO AS TO AVOID AS FAR AS POSSIBLE OVERLAPPING SICKNESS INSURANCE COVER .

IN CASE 339/85

ELISABETTA BRUNOTTI, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY EDMOND LEBRUN, OF THE BRUSSELS BAR, WHOSE CHAMBERS ARE AT 68 RUE CAMILLE LEMONNIER, 1060 BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER, 83 BOULEVARD GRANDE-DUCHESSE CHARLOTTE,

APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY DIMITRIOS GOULOUSSIS, LEGAL ADVISER, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,

DEFENDANT,

APPLICATION FOR THE ANNULMENT OF THE COMMISSION' S DECISION REFUSING TO CONTINUE TO ASSUME RESPONSIBILITY FOR MEDICAL EXPENSES IN RESPECT OF THE APPLICANT' S MOTHER AND OF ITS REJECTION OF THE APPLICANT' S COMPLAINT AGAINST THAT DECISION, AND ALSO FOR AN ORDER REQUIRING THE COMMISSION TO ASSUME RESPONSIBILITY FOR THOSE EXPENSES FROM THE DATE ON WHICH IT CEASED TO DO SO, THE SUMS PAYABLE TO BE SUBJECT TO DEFAULT INTEREST FROM THE DATE ON WHICH THE REIMBURSEMENTS BECAME DUE UNTIL THE DATE OF ACTUAL PAYMENT,

THE COURT ( FOURTH CHAMBER )

COMPOSED OF : G.C . RODRIGUEZ IGLESIAS, PRESIDENT OF THE CHAMBER, T . KOOPMANS AND C . KAKOURIS, JUDGES,

ADVOCATE GENERAL : C.O . LENZ

REGISTRAR : J.A . POMPE, DEPUTY REGISTRAR

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 26 NOVEMBER 1986,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 6 OCTOBER 1987,

GIVES THE FOLLOWING

JUDGMENT

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 14 NOVEMBER 1985, MRS ELISABETTA BRUNOTTI, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, BROUGHT AN ACTION SEEKING ( A ) THE ANNULMENT OF THE DECISION OF 29 MARCH 1985 BY WHICH THE COMMISSION REFUSED TO CONTINUE TO ASSUME RESPONSIBILITY, AFTER 18 JANUARY 1985, FOR MEDICAL EXPENSES IN RESPECT OF HER MOTHER, AND ALSO THE ANNULMENT OF THE REJECTION OF HER COMPLAINT AGAINST THAT DECISION, AND ( B ) AN ORDER REQUIRING THE COMMISSION TO ASSUME RESPONSIBILITY FOR THOSE EXPENSES FROM THE DATE ON WHICH IT CEASED TO DO SO, PLUS DEFAULT INTEREST AT THE RATE OF 10% FROM THE DATE ON WHICH THE REIMBURSEMENTS BECAME DUE .

2 THE COMMISSION NOTIFIED THE CONTESTED DECISION TO THE APPLICANT AFTER BEING INFORMED THAT HER MOTHER WAS INSURED UNDER THE ITALIAN NATIONAL SCHEME, THE "SERVIZIO SANITARIO NAZIONALE ".

3 THE DECISION AT ISSUE IS BASED ON ARTICLE 3 OF THE "RULES ON SICKNESS INSURANCE FOR OFFICIALS OF THE EUROPEAN COMMUNITIES" ( HEREINAFTER REFERRED TO AS "THE INSURANCE RULES "), WHICH PROVIDES AS FOLLOWS :

"THE PERSONS COVERED BY A MEMBER' S INSURANCE SHALL BE :

1 . ...

2 . ...

3 . PERSONS TREATED AS DEPENDENT CHILDREN OF THE MEMBER PURSUANT TO ARTICLE 2 ( 4 ) OF ANNEX VII TO THE STAFF REGULATIONS, PROVIDED THAT SUCH PERSONS CANNOT OBTAIN COVER UNDER ANY OTHER PUBLIC SCHEME OF SICKNESS INSURANCE ".

4 ARTICLE 2 ( 4 ) OF ANNEX VII PROVIDES THAT ANY PERSON WHOM THE OFFICIAL HAS A LEGAL RESPONSIBILITY TO MAINTAIN AND WHOSE MAINTENANCE INVOLVES HEAVY EXPENDITURE MAY, EXCEPTIONALLY, BE TREATED AS IF HE WERE A DEPENDENT CHILD BY SPECIAL REASONED DECISION .

5 THE INSURANCE RULES WERE DRAWN UP PURSUANT TO THE AUTHORITY SET OUT IN ARTICLE 72 ( 1 ) OF THE STAFF REGULATIONS, WHICH PROVIDES THAT, UP TO CERTAIN PERCENTAGES OF THE EXPENDITURE INCURRED,

"AN OFFICIAL, ... HIS CHILDREN AND OTHER DEPENDANTS WITHIN THE MEANING OF ARTICLE 2 OF ANNEX VII ARE INSURED AGAINST SICKNESS ... SUBJECT TO RULES DRAWN UP BY AGREEMENT BETWEEN THE INSTITUTIONS OF THE COMMUNITIES AFTER CONSULTING THE STAFF REGULATIONS COMMITTEE ."

6 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

7 THE APPLICANT MAINTAINS THAT THE LEGAL BASIS OF THE CONTESTED DECISION IS INVALID . SHE ASSERTS THAT IN SO FAR AS IT REQUIRES THAT PERSONS TREATED AS DEPENDENT CHILDREN OF AN OFFICIAL MUST BE UNABLE TO OBTAIN COVER UNDER ANY OTHER PUBLIC SCHEME OF SICKNESS INSURANCE, ARTICLE 3 ( 3 ) OF THE INSURANCE RULES IS CONTRARY TO ARTICLE 72 ( 1 ) OF THE STAFF REGULATIONS, WHICH ITSELF DEFINES THE CATEGORIES OF PERSONS COVERED AND THE CONDITIONS OF SICKNESS INSURANCE COVER . SHE CLAIMS THAT THE INSURANCE RULES MAY NOT LAY DOWN ANY SUPPLEMENTARY CONDITION BUT ONLY DEAL WITH POINTS OF DETAIL AND SECONDARY POINTS RELATING TO THE APPLICATION OF ARTICLE 72 OF THE STAFF REGULATIONS .

8 THE APPLICANT GOES ON TO ARGUE THAT, IN ADDITION, ANY DELEGATION BY THE COUNCIL TO THE AUTHORS OF THE INSURANCE RULES ( IN THIS CASE THE COMMISSION ) OF THE POWER TO LAY DOWN SUPPLEMENTARY CONDITIONS WOULD BE CONTRARY TO THE PRINCIPLE THAT A DELEGATED POWER MAY NOT RELATE TO THE ESSENTIAL PART OF THE RESPONSIBILITIES OF THE PERSON DELEGATING THEM . ACCORDING TO ARTICLE 24 OF THE TREATY ESTABLISHING A SINGLE COUNCIL AND A SINGLE COMMISSION OF THE EUROPEAN COMMUNITIES IT IS FOR THE COUNCIL TO LAY DOWN THE STAFF REGULATIONS .

9 THE COMMISSION CONTENDS THAT IT IS CLEAR FROM ARTICLE 72 ( 1 ) OF THE STAFF REGULATIONS THAT THE CONDITIONS FOR SICKNESS INSURANCE COVER SET OUT THEREIN ARE NOT EXHAUSTIVE . THE PHRASE : " ... SUBJECT TO RULES ..." MEANS THAT THE STAFF REGULATIONS DELEGATE TO THE INSTITUTIONS THE POWER TO LAY DOWN RULES IN THAT FIELD AND HENCE TO ADD ANY OBJECTIVELY JUSTIFIED CONDITIONS ON ELIGIBILITY FOR SICKNESS INSURANCE COVER .

10 IT SHOULD BE POINTED OUT THAT, BY PROVIDING THAT AN OFFICIAL AND HIS SPOUSE, CHILDREN AND OTHER DEPENDANTS ARE INSURED AGAINST SICKNESS UP TO A GIVEN PERCENTAGE OF THE EXPENDITURE INCURRED, SUBJECT TO RULES COMMON TO ALL THE INSTITUTIONS, ARTICLE 72 ( 1 ) OF THE STAFF REGULATIONS LEAVES IT TO THE AUTHORS OF THOSE RULES TO DEFINE THE SCOPE OF THE INSURANCE COVER IN QUESTION, IN KEEPING WITH THE STAFF REGULATIONS AND THE OBJECTIVES WHICH THEY PURSUE .

11 IT SHOULD FURTHER BE NOTED THAT, IN CERTAIN CASES, ARTICLE 72 ITSELF IMPOSES THE SUPPLEMENTARY RESTRICTION THAT THE PERSON COVERED MUST NOT BE INSURED AGAINST SICKNESS UNDER ANY OTHER SCHEME : FOR EXAMPLE, UNDER ARTICLE 72 ( 1 ) THE OFFICIAL' S SPOUSE IS COVERED BY THE COMMUNITY SCHEME "WHERE (( HE OR SHE )) IS NOT ELIGIBLE FOR BENEFITS OF THE SAME NATURE AND OF THE SAME LEVEL BY VIRTUE OF ANY OTHER LEGAL PROVISION ..."; SIMILARLY, ARTICLE 72 ( 1A ) PROVIDES FOR COVER FOR "AN OFFICIAL WHOSE SERVICE TERMINATES AND WHO PROVIDES EVIDENCE THAT HE CANNOT BE COVERED BY ANY OTHER PUBLIC SCHEME OF SICKNESS INSURANCE ...", AND, BY VIRTUE OF ARTICLE 72 ( 1B ), COVER ALSO EXTENDS TO "THE EX-SPOUSE OF AN OFFICIAL, A CHILD WHO CEASES TO BE AN OFFICIAL' S DEPENDANT OR A PERSON WHO CEASES TO BE TREATED AS A DEPENDENT CHILD WITHIN THE MEANING OF ARTICLE 2 OF ANNEX VII TO THE STAFF REGULATIONS" IF SUCH PERSON "CAN PROVIDE EVIDENCE THAT HE OR SHE CANNOT BE COVERED BY ANY OTHER PUBLIC SCHEME OF SICKNESS INSURANCE ...".

12 IT IS APPARENT FROM THOSE PROVISIONS THAT THE AUTHORS OF THE STAFF REGULATIONS PROCEEDED ON THE PRINCIPLE THAT THE SCOPE OF SICKNESS INSURANCE FOR OFFICIALS AND MEMBERS OF THEIR FAMILIES SHOULD BE DETERMINED SO AS TO AVOID AS FAR AS POSSIBLE OVERLAPPING SICKNESS INSURANCE COVER . BY THE SAME TOKEN, WHEN THE INSURANCE RULES DEFINE THE CLASS OF PERSONS WHO MAY BE TREATED AS DEPENDENT CHILDREN OF AN OFFICIAL WITHIN THE MEANING OF ARTICLE 2 ( 4 ) OF ANNEX VII TO THE STAFF REGULATIONS, THEY PROVIDE THAT PERSONS ALREADY COVERED UNDER ANY OTHER PUBLIC SCHEME OF SICKNESS INSURANCE ARE NOT TO BE SO TREATED .

13 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE CONTESTED PROVISION OF THE INSURANCE RULES DOES NOT GO BEYOND THE LIMITS LAID DOWN BY THE COUNCIL IN ARTICLE 72 OF THE STAFF REGULATIONS .

14 AS REGARDS THE ARGUMENT THAT THE COUNCIL COULD NOT DELEGATE TO THE AUTHORS OF THE INSURANCE RULES THE POWER TO LAY DOWN RULES IN SUCH A FIELD, IT IS SUFFICIENT TO OBSERVE THAT, THROUGH THE CONTESTED PROVISION, THE INSURANCE RULES DO NO MORE THAN APPLY TO A CASE NOT SPECIFICALLY DEALT WITH BY THE STAFF REGULATIONS CRITERIA WHICH THE STAFF REGULATIONS ALREADY ENDORSE . FURTHERMORE, THE INSURANCE RULES ARE TO BE DRAWN UP BY AGREEMENT BETWEEN THE INSTITUTIONS AFTER CONSULTING THE STAFF REGULATIONS COMMITTEE, ON WHICH UNDER ARTICLE 10 OF THE STAFF REGULATIONS THE STAFF OF THE INSTITUTIONS ARE REPRESENTED .

15 IT FOLLOWS THAT THE APPLICANT' S COMPLAINTS BASED ON THE CLAIM THAT ARTICLE 3 OF THE INSURANCE RULES IS WITHOUT ANY LEGAL BASIS MUST BE REJECTED .

16 IN THE ALTERNATIVE, THE APPLICANT OBSERVES THAT EVEN IF IT IS ACCEPTED THAT THE POWERS WHOSE DELEGATION WAS THEREBY PERMITTED INCLUDE THE POWER TO ADD SUPPLEMENTARY CONDITIONS WHICH, ALTHOUGH NOT ENVISAGED BY ARTICLE 72 OF THE STAFF REGULATIONS, ARE NONE THE LESS OBJECTIVELY JUSTIFIED, IN THIS PARTICULAR CASE THE SUPPLEMENTARY CONDITION LAID DOWN IN RESPECT OF PERSONS TREATED AS DEPENDENT CHILDREN - AND DIFFERENTIATING BETWEEN SUCH PERSONS AND DEPENDENT CHILDREN - IS NOT OBJECTIVELY JUSTIFIED . SHE TAKES THE VIEW THAT THE PROVISION IN QUESTION GOES BEYOND WHAT IS NECESSARY, SINCE IT WOULD HAVE BEEN SUFFICIENT TO PROVIDE THAT COMMUNITY SOCIAL SECURITY COVER FOR PERSONS TREATED AS DEPENDENT CHILDREN MERELY SUPPLEMENTS THE OTHER INSURANCE SCHEME, WITHOUT EXCLUDING IT ALTOGETHER .

17 THAT ARGUMENT CANNOT BE ACCEPTED . PERSONS TREATED AS DEPENDENT CHILDREN CONSTITUTE A SEPARATE CATEGORY; THEY ARE USUALLY ELDERLY PERSONS WHO MAY LOGICALLY BE EXPECTED TO HAVE BEEN GAINFULLY EMPLOYED AND THUS TO BE COVERED BY A SCHEME OF SICKNESS INSURANCE, WHEREAS THAT CANNOT NORMALLY BE EXPECTED OF CHILDREN .

18 IN VIEW OF THE FOREGOING, IT MUST BE CONCLUDED THAT ARTICLE 3 ( 3 ) OF THE INSURANCE RULES IS NOT CONTRARY TO ARTICLE 72 ( 1 ) OF THE STAFF REGULATIONS, AND CONSEQUENTLY THAT THE COMMISSION' S ADOPTION OF THE DISPUTED DECISION REGARDING THE APPLICANT WAS VALID .

19 THE APPLICATION MUST THEREFORE BE DISMISSED .

COSTS

20 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES .

ON THOSE GROUNDS,

THE COURT ( FOURTH CHAMBER )

HEREBY :

( 1 ) DISMISSES THE APPLICATION;

( 2 ) ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .