61976J0106

1 . OFFICIALS - REMUNERATION - FAMILY ALLOWANCES - OVERLAPPING - APPLICATION OF ARTICLE 67 ( 2 ) OF THE STAFF REGULATIONS - CONDITIONS

2 . OFFICIALS - REMUNERATION - MONTHLY SALARY - CALCULATION - ERRORS AND RECTIFICATIONS - INTEREST ON ACCOUNT OF DELAY - NOT DUE

1 . THE PROVISION AGAINST OVERLAPPING BENEFITS CONTAINED IN ARTICLE 67 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS APPLIES ONLY TO REGULAR ALLOWANCES WHICH VIRTUALLY CONSTITUTE A PART OF THE REMUNERATION AND ARE INTENDED TO MEET THE REQUIREMENTS OF EMPLOYED PERSONS BUT NOT TO AN EX GRATIA PAYMENT GRANTED ON EXTRAORDINARY GROUNDS . ALTHOUGH THE PROCEDURES FOR PAYING A FAMILY HOLIDAY ALLOWANCE ARE SUBSTANTIALLY THE SAME AS THOSE FOR PAYING THE REGULAR FAMILY ALLOWANCE THIS EX GRATIA PAYMENT CANNOT ON THAT GROUND BE CONSIDERED AS A MERE INCREASE IN THE REGULAR FAMILY ALLOWANCE .

2 . ERRORS AND CURRENT RECTIFICATIONS IN THE CALCULATION OF SALARIES DO NOT PROVIDE A BASIS FOR CLAIMING INTEREST ON ACCOUNT OF DELAY . UNLESS THERE ARE EXCEPTIONAL CIRCUMSTANCES THIS ALSO APPLIES TO RECTIFICATIONS EFFECTED AS A RESULT OF A COMPLAINT OR AN APPLICATION TO THE COURT .

IN CASE 106/76

FRANCINE GELDERS ( NEE DEBOECK ), AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY MARCEL GREGOIRE AND EDMOND LEBRUN , OF THE BRUSSELS BAR , 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 ITS LEGAL ADVISER , GIORGIO PINCHERLE , ASSISTED BY ALAIN VAN SOLINGE , A MEMBER OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , LEGAL ADVISER TO THE COMMISSION , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF THE DECISION TO THE EFFECT THAT THE FAMILY HOLIDAY ALLOWANCE AND THE SPECIAL FAMILY ALLOWANCE PAID IN BELGIUM WERE TO BE DEDUCTED FROM THE DEPENDENT CHILD ALLOWANCE FOR WHICH PROVISION IS MADE IN THE STAFF REGULATIONS AND IN PURSUANCE OF WHICH DEDUCTIONS WERE IN FACT MADE FROM THE APPLICANT ' S SALARY FOR MARCH AND AUGUST 1976 , AND FOR THE ANNULMENT OF THE IMPLIED DECISION REJECTING THE COMPLAINT SUBMITTED BY THE APPLICANT IN THIS RESPECT ,

1 BY AN APPLICATION DATED 4 NOVEMBER 1976 THE APPLICANT INSTITUTED PROCEEDINGS FOR THE ANNULMENT OF THE DECISIONS TO THE EFFECT THAT THE FAMILY HOLIDAY ALLOWANCE AND THE SPECIAL FAMILY ALLOWANCE PAID IN BELGIUM WERE TO BE DEDUCTED FROM THE DEPENDENT CHILD ALLOWANCE FOR WHICH PROVISION IS MADE IN THE STAFF REGULATIONS AND IN PURSUANCE OF WHICH DEDUCTIONS WERE IN FACT MADE FROM HER SALARY FOR MARCH AND AUGUST 1976 , AND AGAINST THE IMPLIED DECISION REJECTING HER COMPLAINT IN THIS RESPECT .

2 UNDER ARTICLE 67 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS , ' OFFICIALS IN RECEIPT OF FAMILY ALLOWANCES SPECIFIED IN THIS ARTICLE SHALL DECLARE ALLOWANCES OF LIKE NATURE PAID FROM OTHER SOURCES ; SUCH LATTER ALLOWANCES SHALL BE DEDUCTED FROM THOSE PAID UNTER ARTICLES 1 , 2 AND 3 OF ANNEX VII ' .

3 ARTICLE 67 ( 1 ) PROVIDES THAT FAMILY ALLOWANCES SHALL COMPRISE A HOUSEHOLD ALLOWANCE , A DEPENDENT CHILD ALLOWANCE AND AN EDUCATION ALLOWANCE .

4 THE APPLICANT ' S HUSBAND , A TEACHER IN ANDERLECHT , IS ENTITLED AS SUCH TO FAMILY ALLOWANCES , IN PARTICULAR THE SO-CALLED ORDINARY FAMILY ALLOWANCE PAID UNDER BELGIAN LEGISLATION AND IT IS COMMON GROUND THAT THE PAYMENT OF THE ORDINARY FAMILY ALLOWANCE WAS DULY DECLARED TO THE ADMINISTRATION BY THE APPLICANT AND , IN ACCORDANCE WITH ARTICLE 67 ( 2 ), WAS DEDUCTED FROM THE DEPENDENT CHILD ALLOWANCE TO WHICH SHE WAS ENTITLED UNDER THE PROVISIONS OF THE STAFF REGULATIONS .

5 ON THE OTHER HAND THE APPLICANT CONSIDERED THAT THE HOLIDAY ALLOWANCE AND THE SPECIAL FAMILY ALLOWANCE PAID TO HER HUSBAND BY THE BELGIAN AUTHORITIES WERE NOT ' OF LIKE NATURE ' TO THE ALLOWANCES REFERRED TO IN ARTICLE 67 ( 1 ) AND NEVER DECLARED THE PAYMENT OF THOSE ALLOWANCES .

6 SHE MAINTAINS THAT THE DEDUCTION OF THOSE ALLOWANCES , WHICH WAS EFFECTED FOR THE FIRST TIME IN 1976 , IS NOT JUSTIFIED BY THE WORDING OF ARTICLE 67 AND REQUESTS THAT THE DEDUCTION BE ANNULLED .

7 FOR ITS PART THE COMMISSION , THE DEFENDANT , CONTENDS THAT THE BELGIAN ALLOWANCES IN DISPUTE SHOULD BE CONSIDERED AS INTENDED TO COVER SPECIFIC EXPENSES ENTAILED IN CARING FOR A CHILD , WHICH ARE THEREBY OF LIKE NATURE TO THE DEPENDENT CHILD ALLOWANCE AND THE EDUCATION ALLOWANCE PROVIDED FOR BY ARTICLE 67 ( 1 ).

8 IN PARTICULAR THE DEFENDANT CLAIMS THAT THE DEPENDENT CHILD ALLOWANCE IS INTENDED TO COVER THE EXPENSES INVOLVED NOT MERELY IN FEEDING , CLOTHING AND HOUSING CHILDREN BUT ALSO IN THEIR EDUCATION , LEISURE AND HOLIDAYS .

9 THE DEFENDANT STATES THAT WHILST IT IS CORRECT THAT THE ALLOWANCES WERE NOT DEDUCTED IN THE PAST , THE HEADS OF THE ADMINISTRATION OF THE INSTITUTIONS DECIDED AT A MEETING ON 5 FEBRUARY 1976 THAT THE PROVISIONS AGAINST OVERLAPPING BENEFITS IN ARTICLE 67 ( 2 ) OF THE STAFF REGULATIONS WERE APPLICABLE TO THE BELGIAN ALLOWANCES IN QUESTION .

10 IT IS THUS NECESSARY TO EXAMINE WHETHER THE BELGIAN ALLOWANCES IN QUESTION MUST BE CONSIDERED AS BEING OF LIKE NATURE TO THE ALLOWANCES REFERRED TO IN ARTICLE 67 ( 1 ).

11 WITH REGARD TO THE BELGIAN FAMILY HOLIDAY ALLOWANCE IT IS CLEAR FROM THE FILE THAT THE CONSOLIDATED LAWS RELATING TO FAMILY ALLOWANCES FOR EMPLOYED PERSONS ( ROYAL DECREE OF 19 DECEMBER 1939 EFFECTING THE CONSOLIDATION , AS SUBSEQUENTLY AMENDED ) MAKE PROVISION FOR FOUR TYPES OF BENEFITS : FAMILY ALLOWANCES , CHILD-BIRTH ALOWANCES , HOLIDAY ALLOWANCES AND SOCIO-EDUCATIONAL ALLOWANCES ( CHAPTER V , SECTION 1 , SECTION 4BIS , 4TER AND 4QUATER ).

12 WITH REGARD TO THE FAMILY HOLIDAY ALLOWANCE ARTICLE 73QUATER OF THE SAID LAWS READS AS FOLLOWS IN ITS PRESENT FORM :

' THE COMPENSATION FUNDS FOR FAMILY ALLOWANCES AND THE PUBLIC AUTHORITIES AND INSTITUTIONS . . . SHALL GRANT A FAMILY HOLIDAY ALLOWANCE . THIS ALLOWANCE SHALL BE PAID EACH YEAR DURING MAY IN RESPECT OF CHILDREN FOR WHOM FAMILY ALLOWANCES WERE PAYABLE FOR THE MONTH OF APRIL IN THE YEAR FOR WHICH THE ALLOWANCE IS GRANTED ' .

13 THE PROCEDURES FOR PAYING THE FAMILY HOLIDAY ALLOWANCES ARE THUS SUBSTANTIALLY THE SAME AS THOSE FOR PAYING THE MONTHLY FAMILY ALLOWANCE .

14 NEVERTHELESS THE FAMILY HOLIDAY ALLOWANCE CANNOT ON THIS GROUND BE CONSIDERED AS A MERE INCREASE IN THE MONTHLY FAMILY ALLOWANCE .

15 THE FORMER IS A SPECIAL ALLOWANCE PAID ANNUALLY IN ORDER TO COVER EXPENSES ARISING FROM HOLIDAYS AND TO PERMIT THE PERSONS RESPONSIBLE FOR THE CHILD TO ENABLE IT TO ENJOY THE APPROPRIATE LEISURE SO AS TO PROMOTE ITS HEALTH AND CULTURAL DEVELOPMENT .

16 SINCE THE MANIFEST OBJECTIVE OF ARTICLE 67 ( 2 ) IS TO PREVENT A COUPLE FROM RECEIVING FAMILY ALLOWANCES TWICE IN RESPECT OF THE SAME CHILDREN IT IS TO BE INFERRED THAT ONLY ALLOWANCES WHICH ARE COMPARABLE AND WHICH HAVE THE SAME PURPOSE CAN BE TAKEN INTO CONSIDERATION AS BEING ' OF LIKE NATURE ' .

17 WHILST THE BELGIAN FAMILY ALLOWANCE , WHICH IS PAID MONTHLY , IS INDEED ENTIRELY COMPARABLE TO THE DEPENDENT CHILD ALLOWANCE REFERRED TO IN THE STAFF REGULATIONS , THIS IS NOT THE CASE AS REGARDS THE FAMILY HOLIDAY ALLOWANCE WHICH IS QUITE DISTINCT FROM THE FORMER AND HAS A SPECIFIC PURPOSE .

18 THE DEFENDANT ACCORDINGLY WAS NOT JUSTIFIED IN APPLYING ARTICLE 67 ( 2 ) AND THE SUBMISSION IS THUS WELL FOUNDED IN THIS RESPECT .

19 WITH REGARD TO THE BELGIAN SPECIAL FAMILY ALLOWANCE IT APPEARS FROM THE FILE THAT THIS CONSTITUTES AN ALLOWANCE PAID IN THE COURSE OF THE YEARS 1972 , 1974 , 1975 AND 1976 PURSUANT TO SPECIAL LAWS OR ROYAL DECREES ENACTED FOR ONE YEAR .

20 THIS FACT ALONE MEANS THAT THOSE ALLOWANCES , ALTHOUGH INDEED CALCULATED ON THE BASIS OF THE MONTHLY AMOUNTS OF THE ' ORDINARY ' FAMILY ALLOWANCE AND PAID IN RESPECT OF CHILDREN FOR WHOM THAT LATTER ALLOWANCE WAS PAYABLE , MUST NOT BE CONFUSED WITH THE ' ORDINARY ' FAMILY ALLOWANCES WHICH ARE OF THE SAME NATURE AS THE DEPENDENT CHILD ALLOWANCE PROVIDED FOR UNDER THE STAFF REGULATIONS .

21 IN FACT THEY ARE NOT REGULAR ALLOWANCES WHICH VIRTUALLY CONSTITUTE A PART OF THE REMUNERATION AND ARE INTENDED TO MEET THE SPECIAL REQUIREMENTS OF EMPLOYED PERSONS , BUT CONSTITUTE AN EX GRATIA PAYMENT GRANTED ON EXTRAORDINARY GROUNDS .

22 IT IS THUS IMPOSSIBLE TO CONCLUDE THAT THIS SPECIAL ALLOWANCE IS OF LIKE NATURE TO THE ALLOWANCES REFERRED TO IN ARTICLE 67 ( 1 ) OF THE STAFF REGULATIONS .

23 ACCORDINGLY THE SUBMISSION IS ALSO WELL FOUNDED IN THIS RESPECT .

24 IT FOLLOWS THAT THE CONTESTED DECISIONS MUST BE ANNULLED .

25 THE APPLICANT HAS ALSO REQUESTED THAT THE COMMISSION SHOULD BE ORDERED TO PAY HER THE SUMS WRONGLY DEDUCTED UNDER ARTICLE 67 ( 2 ) OF THE STAFF REGULATIONS TOGETHER WITH INTEREST ON ACCOUNT OF DELAY AT THE RATE OF 8 % PER ANNUM .

26 THE ERROR COMMITTED IN APPLYING THE SAID PROVISION DOES NOT GO BEYOND THE FRAMEWORK OF ERRORS AND RECTIFICATIONS WHICH FREQUENTLY OCCUR IN CALCULATING MONTHLY SALARIES .

27 IT IS USUAL FOR SUCH ERRORS , THE COMMISSION OF WHICH EITHER BENEFITS OR PREJUDICES THE OFFICIAL CONCERNED , TO BE RECTIFIED AS SOON AS THEY ARE DISCOVERED WITHOUT THE MATTER OF CLAIMING INTEREST ON ACCOUNT OF DELAY BEING RAISED BY EITHER PARTY .

28 RECTIFICATIONS EFFECTED AS A RESULT OF A COMPLAINT OR AN APPLICATION TO THE COURT DO NOT DIFFER FROM CURRENT RECTIFICATIONS UNLESS THERE ARE EXCEPTIONAL CIRCUMSTANCES .

29 THE ERROR OF INTERPRETATION COMMITTED IN THE PRESENT CASE CANNOT BE CONSIDERED AS GRAVE .

30 THE CLAIM FOR INTEREST ON ACCOUNT OF DELAY ACCORDINGLY CANNOT BE UPHELD .

31 IT IS LIKEWISE UNNECESSARY TO ORDER THE COMMISSION TO PAY THE APPLICANT THE SUMS CLAIMED SINCE THE ANNULMENT OF THE CONTESTED DECISION WILL IN ITSELF CAUSE THE COMMISSION TO TAKE A NEW DECISION IN ACCORDANCE WITH THE JUDGMENT GIVEN .

COSTS

32 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO BEAR THE COSTS .

33 SINCE THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO BEAR THE COSTS .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . ANNULS THE DECISIONS WHEREBY SUMS PAID IN BELGIUM AS FAMILY HOLIDAY ALLOWANCE AND SPECIAL FAMILY ALLOWANCE WERE DEDUCTED FROM THE SALARY OF THE APPLICANT FOR MARCH AND AUGUST 1976 ;

2 . ORDERS THE DEFENDANT TO BEAR THE COSTS .