61983J0065

1 . OFFICIALS - APPLICATION TO THE COURT - ACT ADVERSELY AFFECTING AN OFFICIAL - DECISION OF THE ADMINISTRATION WHICH MAY BE REGARDED AS A DECISION OF THE APPOINTING AUTHORITY - ADMISSIBILITY

( STAFF REGULATIONS , ARTS 90 AND 91 )

2.OFFICIALS - REMUNERATION - FAMILY ALLOWANCES - HOUSEHOLD ALLOWANCE - ALLOWANCE FOR A PERSON TREATED AS A DEPENDENT CHILD - ENTITLEMENT TO BOTH - PERMISSIBILITY

( STAFF REGULATIONS , ART . 67 ; ANNEX VII , ARTS 1 ( 2 ) ( C ) AND 2 ( 4 ))

3.OFFICIALS - REMUNERATION - FAMILY ALLOWANCES - HOUSEHOLD ALLOWANCE - GRANT - CIRCUMSCRIBED POWERS OF THE ADMINISTRATION

( STAFF REGULATIONS , ANNEX VII , ART . 1 ( 2 ) ( C ))

1 . THE ADMISSIBILITY OF AN ACTION AGAINST A DECISION OF THE ADMINISTRATION CANNOT BE CONTESTED ON THE GROUND THAT IT WAS NOT ADOPTED BY THE APPOINTING AUTHORITY DETERMINED IN ACCORDANCE WITH ARTICLE 2 OF THE STAFF REGULATIONS AS LONG AS THE DECISION MAY , IN VIEW OF THE STATUS OF THE AUTHORITY WHICH ADOPTED IT , BE REGARDED BY THE OFFICIAL CONCERNED AS A DECISION OF THE COMPETENT AUTHORITY .

2.ARTICLE 1 ( 2 ) ( C ) AND ARTICLE 2 ( 4 ) OF ANNEX VII TO THE STAFF REGULATIONS PROVIDE FOR TWO DISTINCT , SPECIAL AND REASONED DECISIONS , ADOPTED ON THE BASIS OF SUPPORTING DOCUMENTS , FOR THE PURPOSE OF GRANTING ON THE ONE HAND THE HOUSEHOLD ALLOWANCE AND , ON THE OTHER , THE DEPENDENT CHILD ALLOWANCE TO OFFICIALS WHO DO NOT SATISFY THE CONDITIONS FOR ENTITLEMENT TO THOSE ALLOWANCES IN THE NORMAL WAY . NEITHER OF THOSE PROVISIONS MAKES REFERENCE TO THE OTHER . THE CONDITIONS FOR THE TWO ALLOWANCES ARE DIFFERENT , THE CONDITION LAID DOWN IN ARTICLE 1 ( 2 ) ( C ) BEING APPARENTLY LESS STRICT THAN THAT LAID DOWN IN ARTICLE 2 ( 4 ).

IT FOLLOWS THAT THE GRANT OF EITHER OF THE BENEFITS ENVISAGED BY THE TWO PROVISIONS IN QUESTION IS WITHOUT PREJUDICE TO THE GRANT OF THE OTHER , EITHER BY AUTOMATICALLY GIVING RISE TO ENTITLEMENT OR BY EXCLUDING IT .

3.ARTICLE 1 ( 2 ) ( C ) OF ANNEX VII TO THE STAFF REGULATIONS CONFERS CIRCUMSCRIBED POWERS UPON THE APPOINTING AUTHORITY AND THE APPOINTING AUTHORITY IS REQUIRED TO TAKE A SPECIAL REASONED DECISION GRANTING THE HOUSEHOLD ALLOWANCE IF IT FINDS THAT THE CONDITIONS LAID DOWN IN THAT PROVISION ARE FULFILLED .

IN CASE 65/83

GABRIELLA ERDINI , AN OFFICIAL IN THE SECRETARIAT OF THE COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY JEAN-NOEL LOUIS , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF NICOLAS DECKER , ADVOCATE , 16 AVENUE MARIE-THERESE ,

APPLICANT ,

V

COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY JOHN CARBERY , ADVISER IN THE LEGAL DEPARTMENT OF THE GENERAL SECRETARIAT OF THE COUNCIL , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF H . J . PABBRUWE , DIRECTOR OF THE LEGAL AFFAIRS DEPARTMENT OF THE EUROPEAN INVESTMENT BANK , 100 BOULEVARD KONRAD-ADENAUER ,

DEFENDANT ,

APPLICATION FOR THE GRANT OF A HOUSEHOLD ALLOWANCE ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 22 APRIL 1983 , MISS GABRIELLA ERDINI , AN OFFICIAL IN THE GENERAL SECRETARIAT OF THE COUNCIL OF THE EUROPEAN COMMUNITIES , BROUGHT AN ACTION FOR ANNULMENT OF THE DECISION REFUSING HER THE HOUSEHOLD ALLOWANCE PROVIDED FOR IN ARTICLE 67 OF THE STAFF REGULATIONS OF OFFICIALS AND ARTICLE 1 OF ANNEX VII THERETO AND FOR A FINDING THAT SHE IS ENTITLED TO THAT ALLOWANCE .

2 THE APPLICANT IS UNMARRIED AND HAS NO CHILDREN . IN 1978 , HAVING UNTIL THAT TIME LIVED IN ITALY , THE APPLICANT ' S MOTHER , WHOSE PERSONAL INCOME WAS INSUFFICIENT TO PROVIDE FOR HER ACCOMMODATION AND UPKEEP AND WHOSE STATE OF HEALTH NO LONGER ALLOWED HER TO LIVE ALONE , MOVED TO BRUSSELS TO LIVE WITH THE APPLICANT WHO DEFRAYS MOST OF THE COST OF HER UPKEEP . THE APPLICANT ' S MOTHER WAS TREATED , AT LEAST UNTIL 1983 , AS IF SHE WERE A DEPENDENT CHILD , BY VIRTUE OF A DECISION ADOPTED BY THE APPOINTING AUTHORITY PURSUANT TO ARTICLE 2 ( 4 ) OF ANNEX VII TO THE STAFF REGULATIONS , ENTITLING THE APPLICANT TO A DEPENDENT CHILD ALLOWANCE .

3 THE APPLICANT ALSO APPLIED FOR A HOUSEHOLD ALLOWANCE UNDER ARTICLE 1 ( 2 ) ( C ) OF ANNEX VII TO THE STAFF REGULATIONS . THE DIRECTOR OF ADMINISTRATION OF THE GENERAL SECRETARIAT OF THE COUNCIL REFUSED TO GRANT THAT APPLICATION .

4 HAVING RECEIVED A COMPLAINT FROM THE APPLICANT AGAINST THAT DECISION UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS , THE SECRETARY-GENERAL OF THE COUNCIL , AS APPOINTING AUTHORITY , CONFIRMED THE REFUSAL .

ADMISSIBILITY

5 THE COUNCIL HAS OBSERVED IN THE FIRST PLACE THAT ACTIONS MAY BE BROUGHT ONLY AGAINST DECISIONS OF THE APPOINTING AUTHORITY AND THEREFORE THAT AN ACTION CANNOT BE BROUGHT AGAINST A DECISION OF THE DIRECTOR OF ADMINISTRATION BUT ONLY AGAINST THE DECISION OF THE SECRETARY-GENERAL REJECTING THE APPLICANT ' S COMPLAINT .

6 IN THAT REGARD , IT SHOULD BE BORNE IN MIND THAT THE REMEDY PROVIDED FOR IN ARTICLE 91 ( 1 ) OF THE STAFF REGULATIONS RELATES TO THE LEGALITY OF A MEASURE ADOPTED BY THE APPOINTING AUTHORITY ADVERSELY AFFECTING AN OFFICIAL . THE PROCEDURE PROVIDED FOR IN ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS FOR A COMPLAINT THROUGH OFFICIAL CHANNELS IS A PRE-CONDITION FOR THAT REMEDY AND DOES NOT CONSTITUTE ITS PURPOSE .

7 EVEN IF THE DIRECTOR OF ADMINISTRATION WAS NOT THE AUTHORITY PRESCRIBED BY THE DEFENDANT INSTITUTION UNDER ARTICLE 2 OF THE STAFF REGULATIONS TO TAKE DECISIONS SUCH AS THAT NOW IN DISPUTE , THE APPLICANT CANNOT BE CRITICIZED , IN VIEW OF THE STATUS OF THE AUTHORITY WHICH NOTIFIED THE REFUSAL TO HER , FOR REGARDING THAT REFUSAL AS A DECISION OF THE COMPETENT AUTHORITY . MOREOVER , THE SECRETARY-GENERAL , WHO IS HIMSELF THE APPOINTING AUTHORITY , CONFIRMED THE PREVIOUS DECISION OF THE DIRECTOR OF ADMINISTRATION BY GIVING HIS DECISION UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS ON THE APPLICANT ' S COMPLAINT .

8 THE OBJECTION RAISED BY THE COUNCIL MUST THEREFORE BE DISMISSED .

SUBSTANCE

9 THE APPLICANT CLAIMS THAT SHE IS ENTITLED TO A HOUSEHOLD ALLOWANCE UNDER ARTICLE 1 ( 2 ) ( C ) OF ANNEX VII TO THE STAFF REGULATIONS SINCE SHE ACTUALLY ASSUMES FAMILY RESPONSIBILITIES WITH RESPECT TO HER MOTHER , A FACT WHICH THE COUNCIL RECOGNIZED BY TREATING HER MOTHER AS IF SHE WERE A DEPENDENT CHILD . NO MARGIN OF DISCRETION THEREFORE REMAINS REGARDING THE APPLICATION OF THAT PROVISION . MOREOVER , A REFUSAL TO GRANT THE HOUSEHOLD ALLOWANCE WOULD LEAD TO DISCRIMINATION EITHER WITH RESPECT TO WIDOWED , DIVORCED , LEGALLY SEPARATED OR UNMARRIED OFFICIALS WITH ONE OR MORE DEPENDENT CHILDREN AND IN ADDITION ONE OR MORE PERSONS TREATED AS DEPENDENT CHILDREN , OR WITH RESPECT TO MARRIED OFFICIALS WHOSE SPOUSES WORK AND WITH RESPECT TO WHOM A DECISION HAS BEEN ADOPTED TREATING A RELATIVE AS IF HE WERE A DEPENDENT CHILD .

10 THE COUNCIL OBJECTS THAT ACCOUNT HAS ALREADY BEEN TAKEN OF THE INADEQUACY OF THE APPLICANT ' S FINANCIAL RESOURCES IN DECIDING TO TREAT HER MOTHER AS IF SHE WERE A DEPENDENT CHILD AND THAT SHE IS NOT ENTITLED , IN RESPECT OF THE SAME PERSON AND ON THE BASIS OF THE SAME CIRCUMSTANCES AND SUPPORTING DOCUMENTS , TO TWO DECISIONS ADOPTED ON AN EXCEPTIONAL BASIS , NAMELY THAT PROVIDED FOR IN ARTICLE 2 ( 4 ) AND THAT PROVIDED FOR IN ARTICLE 1 ( 2 ) ( C ) OF ANNEX VII TO THE STAFF REGULATIONS . BECAUSE OF DIFFERENCES IN THE NEEDS AND THE COMPOSITION OF FAMILIES COMPRISING ON THE ONE HAND AN OFFICIAL AND CHILDREN AND , ON THE OTHER , AN OFFICIAL AND DEPENDENT ADULTS , IT IS NOT APPROPRIATE TO GRANT A HOUSEHOLD ALLOWANCE IN THE LATTER CASE . NO DISCRIMINATION THEREBY ARISES SINCE , IN THE CASES TO WHICH THE APPLICANT REFERS , THE SITUATIONS ARE DIFFERENT AND DIFFERENT TREATMENT IS EXPRESSLY PRESCRIBED IN THE STAFF REGULATIONS .

11 ARTICLE 1 ( 2 ) ( C ) AND ARTICLE 2 ( 4 ) OF ANNEX VII TO THE STAFF REGULATIONS PROVIDE FOR TWO DISTINCT , SPECIAL AND REASONED DECISIONS , ADOPTED ON THE BASIS OF SUPPORTING DOCUMENTS , FOR THE PURPOSE OF GRANTING ON THE ONE HAND THE HOUSEHOLD ALLOWANCE AND , ON THE OTHER , THE DEPENDENT CHILD ALLOWANCE TO OFFICIALS WHO DO NOT SATISFY THE CONDITIONS FOR ENTITLEMENT TO THOSE ALLOWANCES IN THE NORMAL WAY . NEITHER OF THOSE PROVISIONS MAKES REFERENCE TO THE OTHER . WHILST ARTICLE 1 ( 2 ) ( C ) REQUIRES THAT THE OFFICIAL ' ' ACTUALLY ASSUMES FAMILY RESPONSIBILITIES ' ' HE MUST , IN THE CASE WITH WHICH ARTICLE 2 ( 4 ) IS CONCERNED , HAVE ' ' A LEGAL RESPONSIBILITY ' ' TO MAINTAIN A PERSON ' ' WHOSE MAINTENANCE INVOLVES HEAVY EXPENDITURE ' ' , THE CONDITION LAID DOWN IN ARTICLE 1 ( 2 ) ( C ) BEING APPARENTLY LESS STRICT THAN THAT LAID DOWN IN ARTICLE 2 ( 4 ).

12 IT FOLLOWS THAT THE GRANT OF EITHER OF THE BENEFITS ENVISAGED BY THE TWO PROVISIONS IN QUESTION IS WITHOUT PREJUDICE TO GRANT OF THE OTHER , EITHER BY AUTOMATICALLY GIVING RISE TO ENTITLEMENT OR BY EXCLUDING IT .

13 THAT IS MOREOVER CONFIRMED BY ARTICLE 8 ( 1 ) OF ANNEX VII WHICH GRANTS AN OFFICIAL A FLAT-RATE PAYMENT IN RESPECT OF TRAVEL EXPENSES FROM HIS PLACE OF EMPLOYMENT TO HIS PLACE OF ORIGIN ' ' FOR HIMSELF AND , IF HE IS ENTITLED TO THE HOUSEHOLD ALLOWANCE , FOR HIS SPOUSE AND DEPENDANTS WITHIN THE MEANING OF ARTICLE 2 ' ' . THE WORDING OF THAT PROVISION THEREFORE EXPRESSLY COVERS THE CASE OF AN OFFICIAL WHO IS ENTITLED TO THE HOUSEHOLD ALLOWANCE AND IS ENTITLED TO THE SAID PAYMENT ONLY FOR ONE DEPENDANT UNDER ARTICLE 2 ( 4 ).

14 SINCE THE APPOINTING AUTHORITY HAD RECEIVED AN APPLICATION UNDER ARTICLE 1 ( 2 ) ( C ) AND DOCUMENTS HAD BEEN PRODUCED TO IT SHOWING , ACCORDING TO THE APPLICANT , THAT SHE WAS ACTUALLY ASSUMING FAMILY RESPONSIBILITIES , THE APPOINTING AUTHORITY WAS UNDER AN OBLIGATION TO BASE ITS DECISION ON THAT PROVISION ALONE AND NOT TO PREJUDGE THAT DECISION AS A RESULT OF THE EARLIER DECISION TO TREAT THE APPLICANT ' S MOTHER AS IF SHE WERE A DEPENDENT CHILD .

15 ACCORDING TO THE COUNCIL , THE APPOINTING AUTHORITY MUST IN ALL CASES ENJOY IN THAT RESPECT , UNDER ARTICLE 1 ( 2 ) ( C ), A DISCRETIONARY POWER PERMITTING IT , IF APPROPRIATE , TO WITHHOLD A HOUSEHOLD ALLOWANCE EVEN IF IT IS ESTABLISHED THAT THE OFFICIAL ACTUALLY ASSUMES FAMILY RESPONSIBILITIES .

16 THERE IS NO SUPPORT HOWEVER FOR THAT VIEW IN THE WORDING OF THE PROVISION IN QUESTION . IN FACT IT PROVIDES THAT ' ' THE HOUSEHOLD ALLOWANCE SHALL BE GRANTED TO ' ' AN OFFICIAL WHO FULFILS THE CONDITIONS WHICH IT LAYS DOWN . WHILST THAT PROVISION , LIKE ARTICLE 2 ( 4 ), REQUIRES A ' ' SPECIAL REASONED DECISION OF THE APPOINTING AUTHORITY ' ' TO CONFER ENTITLEMENT TO THE HOUSEHOLD ALLOWANCE , IT DOES NOT PROVIDE , BY CONTRAST WITH ARTICLE 2 ( 4 ), THAT THE DECISION MAY BE TAKEN ' ' EXCEPTIONALLY ' ' .

17 THE COUNCIL CLAIMS THAT IF AN OFFICIAL IN THE APPLICANT ' S POSITION WERE ENTITLED TO A HOUSEHOLD ALLOWANCE , THAT WOULD CONSTITUTE DISCRIMINATION IN HIS FAVOUR AS AGAINST AN OFFICIAL WHO FULFILLED HIS LEGAL OBLIGATION TO MAINTAIN A RELATIVE BY PAYING A SUM OF MONEY AND ACCOMMODATING THAT RELATIVE IN AN APPROPRIATE ESTABLISHMENT .

18 HOWEVER , THE PURPOSE OF MAKING PROVISION IN THE STAFF REGULATIONS FOR GRANTING A HOUSEHOLD ALLOWANCE TO AN OFFICIAL WHO ' ' ACTUALLY ASSUMES FAMILY RESPONSIBILITIES ' ' WAS TO MAKE IT EASIER FOR OFFICIALS TO LIVE WITH THOSE MEMBERS OF THEIR FAMILIES , INCLUDING THOSE OTHER THAN SPOUSES OR CHILDREN , WHO WERE UNABLE TO MEET THEIR FINANCIAL NEEDS THEMSELVES . CASES IN WHICH AN OFFICIAL MEETS HEAVY EXPENDITURE BY REASON OF HIS LEGAL RESPONSIBILITY TO MAINTAIN A MEMBER OF HIS FAMILY ARE , ON THE OTHER HAND , COVERED BY ARTICLE 2 ( 4 ).

19 IT IS APPARENT FROM THE FOREGOING THAT ARTICLE 1 ( 2 ) ( C ) CONFERS CIRCUMSCRIBED POWERS UPON THE APPOINTING AUTHORITY AND THAT THE APPOINTING AUTHORITY IS REQUIRED TO TAKE A SPECIAL REASONED DECISION GRANTING THE HOUSEHOLD ALLOWANCE IF IT FINDS THAT THE CONDITIONS LAID DOWN IN THAT PROVISION ARE FULFILLED .

20 IN THIS CASE , IT IS APPARENT FROM THE DOCUMENTS BEFORE THE COURT THAT , IN THE STATEMENT OF THE REASONS ON WHICH ITS REFUSAL OF THE APPLICANT ' S APPLICATION WAS BASED , THE ADMINISTRATION REFERRED ON THE ONE HAND TO THE PROHIBITION WHICH IN ITS VIEW EXISTED AGAINST ADOPTING IN ADDITION TO A DECISION TO TREAT A RELATIVE AS IF HE WERE A DEPENDENT CHILD A DECISION IN RESPECT OF THE SAME PERSON PURSUANT TO ARTICLE 1 ( 2 ) ( C ) AND , ON THE OTHER , TO CERTAIN RESOURCES OF THE APPLICANT ' S MOTHER . AS REGARDS THOSE RESOURCES , HOWEVER , IT HAS NOT BEEN CONTESTED THAT THEY ARE INSIGNIFICANT AND THAT THE APPLICANT BEARS THE MAJOR PART OF THE EXPENSES OF MAINTAINING HER MOTHER .

21 IT IS APPARENT FROM THE FOREGOING THAT THE STATEMENT OF REASONS ON WHICH THE CONTESTED DECISION IS BASED IS VITIATED BY AN ERROR OF LAW AND THAT CONSEQUENTLY THE DECISION MUST BE ANNULLED .

22 ARTICLE 176 OF THE TREATY REQUIRES THE DEFENDANT INSTITUTION TO TAKE THE NECESSARY MEASURES TO COMPLY WITH THE JUDGMENT OF THE COURT AND , TAKING INTO ACCOUNT THE INTERPRETATION OF ARTICLE 1 ( 2 ) ( C ) GIVEN ABOVE , TO REVIEW THE APPLICANT ' S SITUATION WITH REGARD TO THE CONDITIONS LAID DOWN BY THAT PROVISION , ON THE BASIS OF THE SUPPORTING DOCUMENTS PRODUCED BY THE APPLICANT .

COSTS

23 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE COUNCIL HAS BEEN UNSUCCESSFUL IN ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

HEREBY :

1 . ANNULS THE DECISION NOT TO GRANT THE APPLICANT A HOUSEHOLD ALLOWANCE ;

2.ORDERS THE COUNCIL TO PAY THE COSTS .