61990J0145

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1. Officials - Remuneration - Family allowances - Education allowance - Conditions for granting

(Staff Regulations of Officials, Annex VII, Art. 3)

2. Officials - Remuneration - Family allowances - Dependent child allowance - Education allowance - Different conditions

(Staff Regulations of Officials, Annex VII, Arts 2 and 3)

1. In view of the fact that the education allowance is a monthly one, the question whether the conditions for granting it have been met is one to be considered month by month. It follows that entitlement to the education allowance ends once the child in respect of whom the allowance is paid ceases, even in the course of the academic year, to attend an educational establishment regularly and full time within the meaning of the first paragraph of Article 3 of Annex VII to the Staff Regulations.

In that context, training completed outside an educational establishment with the consent or support of the latter may be assimilated to regular full-time attendance at the establishment only if the training is regarded as an integral part of the programme of studies conducted by the establishment.

2. The criteria governing allocation of the dependent child allowance and allocation of the education allowance are not the same, so that entitlement to the first does not automatically give entitlement to the second.

In Case C-145/90 P,

Mario Costacurta, represented by Nicolas Decker, of the Luxembourg Bar, with an address for service in Luxembourg at the latter' s Chambers, 16 Avenue Marie-Thérèse,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (Third Chamber) in Joined Cases T-34/89 and T-67/89 of 13 March 1990, Mario Costacurta v Commission of the European Communities, seeking to have that judgment set aside,

the other party to the proceedings being:

Commission of the European Communities, represented by Joseph Griesmar, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Roberto Hayder, a representative of the Legal Service, Wagner Centre, Kirchberg, which claims that the appeal should be dismissed in its entirety,

THE COURT,

composed of: O. Due, President, Sir Gordon Slynn, R. Joliet, F.A. Schockweiler, F. Grévisse and P.J.G. Kapteyn (Presidents of Chambers), G.F. Mancini, C.N. Kakouris, J.C. Moitinho de Almeida, G.C. Rodríguez Iglesias and M. Díez de Velasco, Judges,

Advocate General: W. Van Gerven,

Registrar: D. Louterman, Principal Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 29 May 1991,

after hearing the Opinion of the Advocate General at the sitting on 26 June 1991,

gives the following

Judgment

1 By application lodged at the Court Registry on 11 May 1990 Mario Costacurta, an official of the Commission of the European Communities, brought an appeal pursuant to Article 49 of the Protocol on the Statute of the Court of Justice of the EEC and the corresponding provisions of the Protocols on the Statutes of the Court of Justice of the ECSC and the EAEC against the judgment delivered by the Court of First Instance on 13 March 1990 dismissing his application for the annulment of the Commission decisions of 30 October 1987, 16 November 1987 and 26 April 1988, in so far as they refused him an education allowance for his daughter Nadia for the period from 1 April 1987 to 31 August 1987, and for payment of that allowance for the relevant period.

2 In support of his appeal, in which he asks the Court of Justice to set aside the judgment of the Court of First Instance, the appellant puts forward three pleas in law. The first two allege breach of Article 3 of Annex VII to the Staff Regulations of Officials of the European Communities ("the Staff Regulations") and the third breach of both Article 2 and Article 3 of Annex VII to the Staff Regulations. He claims that the decision of the Court of First Instance that his daughter did not fulfil the condition of regular full-time attendance at an educational establishment was incompatible with those provisions.

3 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the pleas and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

4 It should be noted that according to the contested judgment, Nadia Costacurta was registered for the academic year 1986/87, which finished on 16 May 1987, for the course in private international law held at the University of Paris-I leading to a Diplôme d' études approfondies (Diploma of Further Studies) but that from 1 April 1987 to 31 August 1987 she spent a period of training at the Commission in Brussels.

First plea

5 In the first plea, the appellant challenges the interpretation by the Court of First Instance of the requirement of "regular" attendance at an educational establishment laid down in the first paragraph of Article 3 in Annex VII to the Staff Regulations. In its judgment the Court of First Instance referred to Conclusion 166/87 of the Committee of Heads of Administration of 15 January 1987, which stated that "the condition regarding 'regular' attendance at an educational establishment, laid down in the first paragraph of Article 3 of Annex VII, is satisfied when an establishment is attended by a pupil or student for a minimum period of three months". The Court of First Instance acknowledged that the appellant' s daughter had attended an educational establishment for an uninterrupted period of four months. Consequently, the appellant claims that the Court of First Instance was wrong to hold that his daughter' s attendance at an educational establishment had not been "regular" within the meaning of Article 3.

6 That plea must be rejected. It is based on a false interpretation of the condition regarding "regular attendance at an educational establishment" and of Conclusion 166/87. That conclusion does not concern entitlement to the educational allowance and does not mean that such entitlement is acquired for the whole academic year where a dependent child attends an educational establishment for only three months. Consequently, and in view of the fact that that allowance is a monthly one, the question whether the conditions for granting it have been met is one to be considered month by month. It follows that entitlement to that monthly allowance ends once the student ceases to attend the establishment regularly.

Second plea

7 In the second plea the appellant challenges the refusal of the Court of First Instance to assimilate the training completed by his daughter at the Commission between 16 March and 31 July 1987 to "regular full-time attendance at an educational establishment" within the meaning of the first paragraph of Article 3. He claims, as he already claimed before the Court of First Instance, that that training was completed with the consent of the University and that such training is encouraged by the Commission itself.

8 That plea must also be rejected. As the Court of First Instance pointed out, the mere consent of the educational establishment or any support on its part is not sufficient to justify assimilation of training completed outside that establishment to regular full-time attendance at the establishment within the meaning of the first paragraph of Article 3 of Annex VII. Having regard to the purpose of Article 3, such assimilation is only justified if the training is regarded as an integral part of the programme of studies conducted by the educational establishment which the official' s child must, for the purposes of that provision, attend regularly and full time. It follows that the Court of First Instance interpreted the first paragraph of Article 3 of Annex VII correctly when it refused to assimilate the training to attendance at an educational establishment on the ground that "there is nothing either in the documents before the Court or in the information given by the applicant at the hearing which has proved that that period was actually recognized by the University as an integral part of the programme of studies for the award of the DEA".

Third plea

9 In the third plea the appellant claims that the Court of First Instance did not correctly state the reasons for its decision regarding Articles 2 and 3 of Annex VII to the Staff Regulations. He claims that in paragraph 31 of the judgment the Court of First Instance merely reproduced the Commission' s argument that the training completed by his daughter constituted vocational training for the purposes of Article 2, regarding the dependent child allowance, of Annex VII to the Staff Regulations, whereas in his view vocational training may only be regarded as such if it is provided in the context of an apprenticeship.

10 That plea must likewise be rejected. The Court of First Instance rightly considered that the criteria governing allocation of the dependent child allowance and allocation of the education allowance were not the same, and that entitlement to a dependent child allowance did not automatically give rise to entitlement to an education allowance; the Commission was therefore entitled to pay one and refuse the other.

11 Consequently, even if the Court of First Instance wrongly accepted that the training completed by the appellant' s daughter at the Commission constituted vocational training within the meaning of Article 2(3)(b) of Annex VII, that decision would have no effect on the appellant' s entitlement to the education allowance provided for in Article 3 of that Annex.

12 The result of the foregoing is that none of the appellant' s pleas can be upheld. Consequently, the appeal must be dismissed in its entirety.

Costs

13 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Article 70 of those rules provides that in proceedings brought by servants of the Communities, the institutions are to bear their own costs. However, by virtue of Article 122 of the same rules, Article 70 does not apply to appeals brought by officials and other servants of the institutions. Since the appeal has not be successful, the appellant must be ordered to pay the costs of these proceedings.

On those grounds,

THE COURT

hereby:

1. Dismisses the appeal;

2. Orders the appellant to pay the costs.