61987J0033

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Officials - Remuneration - Family allowances - Weightings - Purpose - Allowances paid direct to the person with custody of children - Weighting for the country of residence of the recipient - Implementation of the principle of equality of treatment

( Staff Regulations of Officials, Art . 67 ( 4 ) )

The reason for applying a weighting both to the salary of officials and to the family allowances paid to them is to ensure that all officials, whatever their place of employment, receive remuneration with equal purchasing power .

Although family allowances form part of an official' s remuneration, they are intended not for his upkeep but for that of his children . Pursuant to Article 67 ( 4 ) of the Staff Regulations, family allowances paid to a person other than the official, namely the person having custody of the children, have applied to them the weighting for the country of residence of that person . That provision cannot be criticized by reference to the principle of equality of treatment since its purpose is precisely to safeguard that principle with respect to officials' children by ensuring that the persons with custody of the children receive benefits with equal purchasing power .

In Case 33/87

Wassily Christianos, lawyer-reviser in the Greek Division of the Translation Directorate of the Court of Justice of the European Communities, residing at 12 avenue de la Porte-Neuve, Luxembourg, represented by A . May, of the Luxembourg Bar, PO Box 282, 31 Grand-Rue, Luxembourg, with an address for service at the latter' s Chambers,

applicant,

v

Court of Justice of the European Communities, represented by F . Hubeau, Head of the Personnel Division, acting as Agent, assisted by R . Andersen, of the Brussels Bar, of 214 avenue Montjoie, Brussels, with an address for service at the office of its Agent at the Court of Justice of the European Communities, Weimershof,

defendant,

supported by

Commission of the European Communities, represented by H . Etienne, Principal Legal Adviser, with an address for service in Luxembourg at the office of G . Kremlis, a member of its Legal Department, Jean Monnet Building, Kirchberg .

intervener,

APPLICATION for :

Annulment of the decision of the complaints committee of the Court of 4 November 1986 concerning the payment of family allowances direct to the applicant' s ex-wife who has custody of their child;

A declaration that the family allowances are to be paid at the actual rate of exchange ruling between the Luxembourg franc and the drachma, without the application of any weighting;

An order that the defendant should pay the differences between the amounts deducted from the applicant' s salary and the amounts paid to the recipient of the family allowances since May 1986,

THE COURT ( First Chamber )

composed of : G . Bosco, President of Chamber, R . Joliet and F . Schockweiler, Judges,

Advocate General : J . L . da Cruz Vilaça

Registrar : J . A . Pompe, Deputy Registrar

having regard to the Report for the Hearing and further to the hearing on 3 May 1988,

after hearing the Opinion of the Advocate General delivered at the sitting on 31 May 1988,

gives the following

Judgment

1 By an application lodged at the Court Registry on 3 February 1987, Wassily Christianos, an official of the Court of Justice of the European Communities, brought an action seeking, in essence, the following relief :

Annulment of the administrative decision of 4 November 1986 whereby the complaints committee of the Court of Justice rejected his complaint against the application of a weighting to the family allowances paid to his ex-wife who has custody of his son;

An order that the allowances should be paid to his ex-wife without the application of any weighting and that the differences between the amounts deducted from his salary and the amounts paid to the recipient of the family allowances since 15 May 1986 should be paid to the applicant .

2 The applicant is divorced . His ex-wife lives in Greece with their son, of whom she has the custody . Until April 1986, Mr Christianos himself received the family allowances and transferred them to his ex-wife .

3 In March 1986 the Personnel Division of the Court informed the applicant that pursuant to the new provisions of Article 67 and 68 of the Staff Regulations, and Articles 1, 2 and 3 of Annex VII thereto, introduced by Council Regulation ( EEC, Euratom, ESCS ) No 2074/83 of 21 July 1983 ( Official Journal 1983, L 203, p . 1 ) the family allowances would be paid to his ex-wife, who has custody of the child, with effect from May 1986 .

4 Articles 10, 11 and 12 of Regulation No 2074/83 amended Articles 1, 2 and 3 of Annex VII to the Staff Regulations concerning family allowances, namely the household allowance, the dependent child allowance and the education allowance . Under the new provisions, the various allowances are to be paid in the name and on behalf of the official to the person having custody of the child by law, by an order of court or of the competent administrative authority .

5 Article 5 of Regulation No 2074/83 also added a paragraph ( 4 ) to Article 67 of the Staff Regulations, by virtue of which family allowances are to be paid in the currency of the country of residence of that person and are to be subject to the weighting for the country in question .

6 By decision of 15 May 1986 of the Head of the Personnel Division of the Court of Justice, the remuneration shown on the applicant' s salary statement for that month was reduced by BFR 15 822, corresponding to the household allowance, the dependent child allowance and the education allowance . Those allowances were paid to the applicant' s ex-wife in drachmas, after application of the weighting for Greece .

7 The applicant states that the exchange value of BFR 15 822 was DR 48 680 in May 1986 but that his ex-wife' s bank account was credited, after the application of the weighting, with only DR 32 520 .

8 On 13 August 1986, the applicant, considering himself adversely affected by the application of the new provisions of the Staff Regulations, lodged a complaint under Article 90 ( 2 ) of those regulations against the decision of the Head of the Personnel Division of 15 May 1986 . Following the rejection of that complaint by the complaints committee of the Court on 4 November 1986, the applicant brought the present action .

The first head of claim

9 As the applicant indicated at the hearing, the application must be regarded as alleging, in support of his action against the individual decision adopted, that the new rules concerning family allowances introduced by Regulation No 2074/83 are illegal . It is therefore necessary to give a decision at the outset as to the legality of the new provisions .

10 Those rules made two changes concerning family allowances . The Community institutions must now pay the allowances direct to the person having custody of the children by law, or by an order of court or of a competent administrative authority . In addition, the allowances are subject to the weighting for the country of residence of the recipient .

11 The applicant does not challenge the new rules on the first point, namely payment of the allowances direct to the person having custody of the children .

12 However, he maintains that the new rules lead to inequality as between officials regarding the second point, namely the application to the allowances of the weighting for the country of residence of the person having custody .

13 It must first be observed that, as the Court held in the judgment of 19 November 1981 in Case 194/80 Benassi v Commission (( 1981 )) ECR 2815, the function of weightings is to ensure that the remuneration of all officials has the same purchasing power, whatever their place of employment .

14 The application of weightings to family allowances pursues the same objective where the allowances are paid to the official himself .

15 It must also be emphasized that although family allowances form part of an official' s remuneration they are intended not for his upkeep but for that of his children . It is therefore consonant with the aim of equality of treatment for those allowances, when paid not to the official but to another person having custody of the children, to have applied to them the weighting for the country of residence of the person having such custody .

16 It follows from the foregoing considerations that the provisions adding a paragraph ( 4 ) to Article 67 of the Staff Regulations are intended to guarantee equality of treatment as between children by ensuring that equivalent benefits, in terms of purchasing power, are paid to the persons having custody of them .

17 Moreover, the applicant cannot rely upon the principle of legitimate expectation in order to secure the maintenance of advantages which he enjoyed under the previous rules .

18 Accordingly, the claim that the new rules incorporated in Article 67 of the Staff Regulations are illegal must be rejected .

19 However, the applicant makes a number of further submissions challenging the application of those rules to him .

20 He claims in the first place that the literal application of Article 67 ( 4 ) of the Staff Regulations in his particular case leads to a profoundly unfair situation which is prejudicial to his interests and to those of his infant son .

21 That submission cannot be upheld . Article 67 ( 4 ) of the Staff Regulations governs, without distinction, the situation of all officials with one or more children of whom custody has been entrusted to another person . In that respect the applicant' s situation is in no way exceptional . It must therefore be emphasized that what would have resulted in unfair treatment - of other officials in the same position - would have been a failure to apply the new rules to the applicant .

22 The applicant then claims that by applying the new rules the administration of the Court infringed the principles of the protection of legitimate expectations and of sound administration and failed in its duty to have regard for the interests of its officials .

23 Those submissions must be rejected . The principle of sound administration requires the competent authority to apply legislation correctly . Moreover, an official may not rely on the principle of legitimate expectation in order to oppose the proper application of a new provision of the Staff Regulations .

24 Finally, the applicant claims that he and his son have suffered loss .

25 That last submission must also be rejected . It need merely be pointed out that the reduction in the amount of drachmas paid to his ex-wife is consequential upon the wish of the legislature to ensure equivalent benefits for all recipients, in terms of purchasing power, regardless of their place of residence .

26 The first head of claim must therefore fail .

The other heads of claim

27 In view of the fact that the first head of claim has been rejected, there is no need to give a decision on the others .

Costs

28 Under Article 69 ( 2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs . The applicant has failed in his submissions .

29 However, Article 70 of the Rules of Procedure provides that the institutions must bear their own costs in actions brought by servants of the Communities .

On those grounds,

THE COURT ( First Chamber )

hereby :

( 1 ) Dismisses the application;

( 2 ) Orders the parties to bear their own costs .