JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

30 November 2009

Case F-86/08

Dietrich Voslamber

v

Commission of the European Communities

(Civil service – Officials – Social security – Joint Sickness Insurance Scheme – Spouse of a former official – Circumscribed powers – Article 13 of the Rules on Sickness Insurance for Officials of the European Communities)

Application: brought under Articles 236 EC and 152 EA, in which Mr Voslamber seeks, in particular, annulment of the Commission’s decision of 9 July 2008 rejecting his complaint against the decision of 17 January 2008 refusing to grant his spouse primary cover under the Joint Sickness Insurance Scheme of the institutions of the European Communities.

Held: The action is dismissed. The forms of order sought by the Commission pursuant to Article 94(a) of the Rules of Procedure are dismissed. The Commission is to bear its own costs and pay two thirds of the applicant’s costs. The applicant is to bear one third of his costs.

Summary

1.      Procedure – Application initiating proceedings – Formal requirements – Brief summary of the pleas in law on which the application is based – Pleas in law not set out in the application – Reference to all the annexes – Inadmissibility

(Statute of the Court of Justice, Art. 21; Rules of Procedure of the Civil Service Tribunal, Art. 35(1)(e))

2.      Officials – Internal directive of an institution – Legal consequences – Limits

(Rules on Sickness Insurance, Art. 13)

3.      Officials – Social security – Sickness insurance – Primary cover for spouse of official under the Joint Sickness Insurance Scheme – Conditions

(Staff Regulations, Art. 72; Rules on Sickness Insurance, Art. 13)

1.      Pursuant to Article 21 of the Statute of the Court of Justice and Article 35(1)(e) of the Rules of Procedure of the Civil Service Tribunal, an application must contain the pleas in law and the factual and legal arguments on which it is based. That information must be sufficiently clear and precise to enable the defendant to prepare its defence and the Tribunal to decide the case, if appropriate, without other information in support. In order to ensure legal certainty and the sound administration of justice, if an action is to be admissible, the essential facts and law on which it is based must be apparent from the text of the application itself, even if only stated briefly, provided that the statement is coherent and comprehensible. While the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed to it, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the above provisions, must appear in the application. Moreover, it is not for the Tribunal to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function.

(see para. 37)

See:

T-91/04 Just v Commission [2005] ECR-SC I‑A‑395 and II‑1801, para. 35

2.      Internal directives adopted by the Community institutions may not lawfully, in any circumstances, lay down rules which derogate from hierarchically superior provisions, such as the provisions of the Staff Regulations and of the legislation adopted for their application, or general principles of law. There cannot therefore be an interpretation of the concept of income from gainful employment ‘as provided for in the Administrative Notices’ which is different from that used in Article 13 of the Rules on Sickness Insurance for Officials.

(see para. 53)

See:

T-43/04 Fardoom and Reinard v Commission [2005] ECR-SC I‑A‑329 and II‑1465, paras 35 and 36

3.      Paragraph 3 of the 2007 Administrative Notices on the application of Article 13 of the Joint Rules on Sickness Insurance for Officials of the European Communities, which lays down the conditions for the application of that article, makes, by way of exception, primary cover for the spouse of an official under the Joint Sickness Insurance Scheme of the institutions of the European Communities subject to compliance with one of the two conditions it mentions: first, that the spouse may not join a statutory sickness insurance scheme, and second, that the amount of the premiums to take out sickness insurance must represent more than 20% of the taxable income from gainful employment of the person concerned.

An error of law is committed by an institution which, in the context of an application from an official for his spouse to have primary cover under the Joint Sickness Insurance Scheme, refuses to regard the retirement pensions of the official’s spouse as income from gainful employment, whereas Article 13 of the Joint Rules on Sickness Insurance for Officials of the European Communities expressly provides that retirement pensions constitute income from gainful employment.

However, an official cannot reasonably rely on a plea in law to obtain annulment of a decision where the administration has no scope for the exercise of discretion but is bound to act as it has done. The Commission is thus obliged, under Article 13 of the Joint Rules, to reject an application from an official for his spouse to have primary cover under the Joint Sickness Insurance Scheme in so far as the official’s spouse does not satisfy either of the two conditions laid down by paragraph 3 of the Administrative Notices referred to above, regardless of how the second of those conditions is interpreted.

(see paras 52, 54, 55, 60, 75-76)

See:

432/85 Souna v Commission [1987] ECR 2229, para. 20

F‑97/07 De Fays v Commission [2008] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, paras 70 and 71