61981J0152

1 . OFFICIALS - EQUAL TREATMENT - FUNDAMENTAL PRINCIPLE - CONCEPT

2.OFFICIALS - REMUNERATION - FAMILY ALLOWANCE - EDUCATION ALLOWANCE - ENTITLEMENT TO THE DOUBLE EDUCATION ALLOWANCE RESTRICTED TO EMPLOYEES ENTITLED TO THE EXPATRIATION ALLOWANCE - WHETHER PERMISSIBLE - BASIS

( STAFF REGULATIONS OF OFFICIALS , ANNEX VII , THIRD PARA . OF ARTICLE 3 )

1 . THE GENERAL PRINCIPLE OF EQUALITY IS ONE OF THE FUNDAMENTAL PRINCIPLES OF THE LAW OF THE COMMUNITY CIVIL SERVICE . THAT PRINCIPLE REQUIRES THAT COMPARABLE SITUATIONS SHALL NOT BE TREATED DIFFERENTLY UNLESS SUCH DIFFERENTIATION IS OBJECTIVELY JUSTIFIED . CLEARLY IT REQUIRES THAT EMPLOYEES WHO ARE IN IDENTICAL SITUATIONS SHALL BE GOVERNED BY THE SAME RULES , BUT IT DOES NOT PREVENT THE COMMUNITY LEGISLATURE FROM TAKING INTO ACCOUNT OBJECTIVE DIFFERENCES IN THE CONDITIONS OR SITUATIONS IN WHICH THOSE CONCERNED ARE PLACED .

2.THE SECOND INDENT OF THE THIRD PARAGRAPH OF ARTICLE 3 OF ANNEX VII TO THE STAFF REGULATIONS , IN SO FAR AS IT RESTRICTS THE ENTITLEMENT TO THE DOUBLE EDUCATION ALLOWANCE TO THE CASE WHERE THE OFFICIAL IS ENTITLED TO THE EXPATRIATION ALLOWANCE , IS BASED ON OBJECTIVE CRITERIA AND HAS A DIRECT RELATIONSHIP WITH THE PURPOSE OF THE SCHEME OF EDUCATION ALLOWANCES .

IN JOINED CASES 152 , 158 , 162 , 166 , 170 , 173 , 175 , 177 TO 179 , 182 AND 186/81

W . FERRARIO , A . BORELLA , U . CUCCHIARA , A . M . FEDERICO , C . GIOVANNINI , M . MANZOTTI , R . MIRA CATO , E . PERUCCIO , V . PRAOLINI , M . PUCCIA , G . STIVALA , F . VIOLIN , WHO ARE ALL OFFICIALS OR TEMPORARY STAFF EMPLOYED AT THE JOINT RESEARCH CENTRE , ISPRA BRANCH , ITALY , REPRESENTED AND ASSISTED BY M . SLUSNY , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE RESIDENCE OF F . AVENA , 29 RUE DE LA LIBERATION , STRASSEN ,

APPLICANTS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , J . GRIESMAR , ACTING AS AGENT , ASSISTED BY D . JACOB , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF O . MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

SUPPORTED BY

COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , J . CARBERY , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF H . J . PABBRUWE , A DIRECTOR IN THE LEGAL AFFAIRS DIRECTORATE OF THE EUROPEAN INVESTMENT BANK , KIRCHBERG ,

APPLICATIONS FOR

A DECLARATION THAT THE SECOND INDENT OF THE THIRD PARAGRAPH OF ARTICLE 3 OF ANNEX VII TO THE STAFF REGULATIONS OF OFFICIALS IS INAPPLICABLE IN SO FAR AS IT RESTRICTS THE DOUBLING OF THE EDUCATION ALLOWANCE TO OFFICIALS WHO ARE ENTITLED TO THE EXPATRIATION ALLOWANCE ;

A DECLARATION AND ORDER THAT THE COMMISSION SHALL RECTIFY THE APPLICANTS ' ACCOUNTS IN RESPECTS OF THE EXPENSES INDICATED IN THEIR APPLICATIONS , THE EDUCATION ALLOWANCE BEING DOUBLED ,

AS A RESULT OF A QUESTION PUT BY THE COURT DURING THE SITTING THE COMMISSION REPLIED IN WRITING THAT THERE WERE 437 OFFICIALS AND TEMPORARY STAFF EMPLOYED AT BRUSSELS WHO WERE NOT BELGIAN NATIONALS AND WHO WERE NOT IN RECEIPT OF THE EXPATRIATION ALLOWANCE . OF THE OFFICIALS AND TEMPORARY STAFF WHO FELL WITHIN THAT CATEGORY 22 WERE IN RECEIPT OF THE EDUCATION ALLOWANCE IN RESPECT OF THEIR CHILDREN UNDERTAKING HIGHER EDUCATION WHILST THE NUMBER OF CHILDREN GIVING RISE TO THAT ALLOWANCE AS A RESULT OF THEIR STUDIES WAS 26 . OF THOSE , 24 WERE STUDYING IN THE COUNTRY OF EMPLOYMENT AND TWO WERE STUDYING IN ANOTHER COUNTRY WHICH WAS NOT THE COUNTRY OF ORIGIN .

THE ADVOCATE GENERAL DELIVERED HER OPINION AT THE SITTING ON 30 JUNE 1983 .

DECISION

1 BY APPLICATIONS LODGED AT THE COURT REGISTRY ON 15 JUNE 1981 , THE APPLICANTS , OFFICIALS OR MEMBERS OF THE TEMPORARY STAFF OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , BROUGHT ACTIONS FOR A DECLARATION THAT THE SECOND INDENT OF THE THIRD PARAGRAPH OF ARTICLE 3 OF ANNEX VII TO THE STAFF REGULATIONS OF OFFICIALS , WHICH APPLIES BY ANALOGY TO OTHER SERVANTS OF THE COMMUNITIES , IS INAPPLICABLE IN SO FAR AS IT RESTRICTS THE DOUBLING OF THE EDUCATION ALLOWANCE TO OFFICIALS WHO ARE ENTITLED TO THE EXPATRIATION ALLOWANCE . THE APPLICANTS ALSO REQUEST THE COURT TO DECLARE AND ORDER THAT THE COMMISSION SHALL RECTIFY THEIR ACCOUNTS IN RESPECT OF THE EXPENSES INDICATED IN THEIR APPLICATIONS , THE EDUCATION ALLOWANCE BEING DOUBLED .

2 THE SECOND INDENT OF THE THIRD PARAGRAPH OF ARTICLE 3 OF ANNEX VII TO THE STAFF REGULATIONS WAS INTRODUCED BY ARTICLE 1 OF REGULATION NO 711/75 OF THE COUNCIL OF 18 MARCH 1975 ( OFFICIAL JOURNAL , L 71 , P . 1 ). THAT PROVISION STATES THAT THE BASIC EDUCATION ALLOWANCE IS TO BE DOUBLED IN THE CASE OF :

' ' AN OFFICIAL WHOSE PLACE OF EMPLOYMENT IS AT LEAST 50 KM FROM AN ESTABLISHMENT OF HIGHER EDUCATION IN THE COUNTRY OF WHICH HE IS A NATIONAL OR WORKING IN HIS LANGUAGE , PROVIDED THAT THE CHILD ACTUALLY ATTENDS AN ESTABLISHMENT OF HIGHER EDUCATION AT LEAST 50 KM FROM THE PLACE OF EMPLOYMENT AND THE OFFICIAL IS ENTITLED TO THE EXPATRIATION ALLOWANCE . ' '

3 ALL THE APPLICANTS ARE EMPLOYED AT THE JOINT RESEARCH CENTRE AT ISPRA , ITALY . THEY FULFIL ALL THE CONDITIONS LAID DOWN BY THE AFOREMENTIONED PROVISION EXCEPT THE REQUIREMENT THAT THEY MUST BE IN RECEIPT OF THE EXPATRIATION ALLOWANCE . AT THE END OF 1980 THEY SUBMITTED REQUESTS TO BE GRANTED THE DOUBLE EDUCATION ALLOWANCE .

4 THE COMMISSION REJECTED THE APPLICANTS ' REQUESTS ON THE GROUND THAT THE STATUTORY PROVISION ON WHICH THEY RELIED MAKES THE GRANT OF THE DOUBLE EDUCATION ALLOWANCE SUBJECT TO THE REQUIREMENT THAT THE RECEIPIENT IS ENTITLED TO THE EXPATRIATION ALLOWANCE . AS THE COMPLAINTS MADE AGAINST THAT REJECTION RECEIVED NO REPLY THE APPLICANTS BROUGHT THE PRESENT ACTIONS .

5 THEY BASE THEIR ACTIONS ON A SINGLE SUBMISSION , NAMELY ARBITRARY DISCRIMINATION BETWEEN THEMSELVES AND THE OFFICIALS AND OTHER EMPLOYEES WHO ARE IN RECEIPT OF THE EXPATRIATION ALLOWANCE IN RESPECT OF THE APPLICATION OF THE SECOND INDENT OF THE THIRD PARAGRAPH OF ARTICLE 3 OF ANNEX VII TO THE STAFF REGULATIONS . THEY MAINTAIN THAT THE SCHEME ADOPTED IS INCOMPREHENSIBLE , IRRATIONAL AND DEVOID OF ANY OBJECTIVE JUSTIFICATION AND THAT IT AFFECTS PARENTAL FREEDOM OF CHOICE WITH REGARD TO THE ESTABLISHMENT OF HIGHER EDUCATION TO WHICH TO SEND THEIR CHILDREN . THEY STATE THAT THE EXPENSE INCURRED AS A RESULT OF STUDYING MORE THAN 50 KILOMETRES FROM THE PLACE OF THE OFFICIAL ' S EMPLOYMENT IS THE SAME FOR ALL PERSONS , WHETHER OR NOT THEY ARE IN RECEIPT OF THE EXPATRIATION ALLOWANCE AND THAT JUSTICE SHOULD BE DONE REGARDLESS OF THE FACT THAT THE NUMBER OF OFFICIALS SUFFERING DISCRIMINATION IS LIMITED .

6 THE COMMISSION , SUPPORTED BY THE COUNCIL , INTERVENING , STATES THAT THE PURPOSE OF THE PROVISION IN QUESTION IS TO ENABLE THOSE OFFICIALS WHO ARE EMPLOYED IN A COUNTRY OTHER THAN THEIR COUNTRY OF ORIGIN TO SEND THEIR CHILDREN TO THE COUNTRY OF ORIGIN TO PURSUE HIGHER EDUCATION IN ORDER TO ENSURE THE BEST POSSIBLE PROSPECTS FOR THEIR FUTURE WITHOUT THE OFFICIALS ' THEREBY BEING PENALIZED FINANCIALLY . THE COMMISSION EMPHASIZES THE VERY SMALL NUMBER OF OFFICIALS WHO ARE IN THE POSITION DESCRIBED BY THE APPLICANTS .

7 ACCORDING TO THE COURT ' S CONSISTENT CASE-LAW THE GENERAL PRINCIPLE OF EQUALITY IS ONE OF THE FUNDAMENTAL PRINCIPLES OF THE LAW OF THE COMMUNITY CIVIL SERVICE . THAT PRINCIPLE REQUIRES THAT COMPARABLE SITUATIONS SHALL NOT BE TREATED DIFFERENTLY UNLESS SUCH DIFFERENTIATION IS OBJECTIVELY JUSTIFIED . CLEARLY IT REQUIRES THAT EMPLOYEES WHO ARE IN IDENTICAL SITUATIONS SHALL BE GOVERNED BY THE SAME RULES , BUT IT DOES NOT PREVENT THE COMMUNITY LEGISLATURE FROM TAKING INTO ACCOUNT OBJECTIVE DIFFERENCES IN THE CONDITIONS OR SITUATIONS IN WHICH THOSE CONCERNED ARE PLACED .

8 IN ORDER TO TEST THE VALIDITY OF THE CONTESTED PROVISION IT IS THEREFORE NECESSARY TO CONSIDER WHETHER THE SITUATION OF EMPLOYEES ENTITLED TO THE EXPATRIATION ALLOWANCE HAS OBJECTIVE FEATURES WHICH JUSTIFY A DIFFERENCE IN TREATMENT WITH REGARD TO THE EDUCATION ALLOWANCE AS AGAINST THAT OF OFFICIALS NOT ENTITLED TO THE ALLOWANCE .

9 ACCORDING TO ARTICLE 4 ( 1 ) OF ANNEX VII TO THE STAFF REGULATIONS PAYMENT OF THE EXPATRIATION ALLOWANCE DEPENDS ON CONDITIONS RELATING FIRST TO THE EMPLOYEE ' S PLACE OF RESIDENCE BEFORE HIS ENTRY INTO HIS PRESENT EMPLOYMENT AND SECONDLY ON HIS NATIONALITY . IN ITS JUDGMENT OF 15 JANUARY 1981 IN CASE 1322/79 ( VUTERA ( 1981 ) ECR 127 ) THE COURT HAS ALREADY ACCEPTED THAT THOSE CRITERIA ARE BASED ON OBJECTIVE FACTORS AND ARE , IN GENERAL , AN APPROPRIATE MANNER IN WHICH TO LIMIT THE CATEGORY OF PERSONS WHOSE ORIGIN AND LACK OF A CLOSE LINK WITH THE COUNTRY IN WHICH THEY ARE EMPLOYED MAY GIVE RISE TO EXPENSES AND DISADVANTAGES FOR WHICH COMPENSATION OUGHT TO BE GIVEN IN THE FORM OF THE SAID ALLOWANCE .

10 THE OBJECT OF THE SCHEME OF EDUCATION ALLOWANCES IS TO ENSURE THAT EVERY EMPLOYEE , WHEREVER HE IS EMPLOYED , IS ABLE TO PROVIDE FOR HIS CHILDREN ' S UPBRINGING AND EDUCATION . THERE IS NO DOUBT THAT IT IS A CONSIDERABLE ADVANTAGE FOR ANY PERSON TO BE ABLE TO PURSUE HIS HIGHER EDUCATION IN HIS OWN LANGUAGE AND AT AN ESTABLISHMENT WHERE HE IS ABLE TO OBTAIN QUALIFICATIONS WHICH ARE FULLY RECOGNIZED IN HIS COUNTRY OF ORIGIN . SIMILARLY THERE IS NO DOUBT IN THAT RESPECT THAT THE CHILDREN OF EMPLOYEES WHO FULFIL THE CONDITIONS FOR THE GRANT OF THE EXPATRIATION ALLOWANCE ARE , AS A GENERAL RULE , AT A DISADVANTAGE IN COMPARISON WITH THOSE OF EMPLOYEES WHO HAVE A CLOSE CONNECTION WITH THE COUNTRY IN WHICH THEY ARE EMPLOYED .

11 THE OBJECTIVE RELATIONSHIP BETWEEN , ON THE ONE HAND , THE ENTITLEMENT TO THE EXPATRIATION ALLOWANCE AND , ON THE OTHER HAND , THE NEED FOR AN OFFICIAL TO SEND HIS CHILDREN TO HIS COUNTRY OF ORIGIN TO PURSUE THEIR HIGHER EDUCATION IS , MOREOVER , CONFIRMED BY THE STATISTICS COLLECTED BY THE COMMISSION . ACCORDING TO THOSE FIGURES , IN THE VAST MAJORITY OF CASES , CHILDREN OF EMPLOYEES WHO ARE IN RECEIPT OF THE EXPATRIATION ALLOWANCE PURSUE THEIR HIGHER EDUCATION AT AN ESTABLISHMENT IN THE COUNTRY OF ORIGIN OF THE OFFICIAL , WHILST CHILDREN OF EMPLOYEES WHO ARE NOT ENTITLED TO THAT ALLOWANCE ALMOST ALWAYS PURSUE THEIR STUDIES IN THE COUNTRY IN WHICH THE PARENT IS EMPLOYED .

12 THE APPLICANTS WERE THEREFORE QUITE CORRECT TO CONCENTRATE THEIR ARGUMENT ON CASES IN WHICH CHILDREN OF EMPLOYEES ENTITLED TO THE EXPATRIATION ALLOWANCE ALSO PURSUE THEIR HIGHER EDUCATION IN THE COUNTRY IN WHICH THE PARENT IS EMPLOYED . REGARDLESS OF THE FACT THAT , ACCORDING TO THE STATISTICS , SUCH CASES ARE OF A SOMEWHAT MARGINAL NATURE , THE COMMUNITY LEGISLATURE CANNOT BE CRITICIZED FOR HAVING LEFT THAT OPTION OPEN FOR SUCH EMPLOYEES . AS A GENERAL RULE SUCH CHILDREN ARE COMPELLED TO BECOME INTEGRATED INTO A UNIVERSITY ENVIRONMENT WHICH IS FOREIGN TO THEM AND TO CARRY OUT THEIR STUDIES IN A LANGUAGE WHICH IS NOT THEIR OWN . SUCH A SITUATION ALSO ENTAILS EXPENSES AND DISADVANTAGES IN COMPARISON WITH THE CHILDREN OF EMPLOYEES WHO HAVE A CLOSE CONNECTION WITH THE COUNTRY IN QUESTION .

13 IT FOLLOWS FROM ALL THOSE CONSIDERATIONS THAT THE SECOND INDENT OF THE THIRD PARAGRAPH OF ARTICLE 3 OF ANNEX VII TO THE STAFF REGULATIONS , IN SO FAR AS IT PROVIDES FOR A DIFFERENCE OF TREATMENT BETWEEN EMPLOYEES ACCORDING TO WHETHER THEY ARE OR ARE NOT ENTITLED TO THE EXPATRIATION ALLOWANCE , IS BASED ON OBJECTIVE CRITERIA AND HAS A DIRECT RELATIONSHIP WITH THE PURPOSE OF THE SCHEME OF EDUCATION ALLOWANCES . IT IS THEREFORE INCORRECT FOR THE APPLICANTS TO ALLEGE THAT THOSE CRITERIA RESULT IN ARBITRARY DISCRIMINATION .

14 CONSEQUENTLY , THE APPLICABILITY OF THE SAID PROVISION CANNOT BE CALLED IN QUESTION . SINCE THE APPLICANTS ARE OUTSIDE THE FIELD OF APPLICATION OF THAT PROVISION THERE ARE NO GROUNDS FOR RECTIFYING THEIR ACCOUNTS IN RESPECT OF THE EXPENSES INDICATED IN THEIR APPLICATIONS . IT FOLLOWS THAT THE APPLICATIONS MUST BE DISMISSED IN THEIR ENTIRETY .

COSTS

15 ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . NEVERTHELESS , UNDER ARTICLE 70 OF THOSE RULES IN PROCEEDINGS BROUGHT BY EMPLOYEES OF THE COMMUNITIES THE INSTITUTIONS ARE TO BEAR THEIR OWN COSTS .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATIONS ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .