JUDGMENT OF THE COURT OF FIRST INSTANCE (Single Judge)

29 June 2004

Case T-188/03

Joëlle Hivonnet

v

Council of the European Union

(Officials – Education allowance – Criteria for granting – Primary schooling – Nursery school)

Full text in French II - 0000

Application:         for annulment of the decision of the Council refusing to grant the applicant the education allowance for her daughter for the nursery school years 1999/2000 and 2000/01 and only granting that allowance on an exceptional basis for the nursery school year 2001/02, and a claim for compensation seeking payment of default interest on the sums corresponding to those allowances and damages for the non-pecuniary damage suffered as a result of that decision.

Held:         The application is dismissed. The parties are ordered to bear their own costs.

Summary

1.     Officials – Actions – Act adversely affecting an official – Definition – Grant of the education allowance on an exceptional basis – Precluded

(Staff Regulations, Art. 91(1))

2.     Officials – Remuneration – Family allowances – Education allowance – Conditions for granting – Attendance at a primary educational establishment – Definition of ‘primary schooling’

(Staff Regulations, Annex VII, Art. 3)

3.     Officials – Remuneration – Entitlement to default interest – Conditions

1.     According to Article 91(1) of the Staff Regulations, only actions directed against an act adversely affecting the applicant are admissible, and only acts which are likely directly and immediately to affect the applicant’s legal situation adversely affect him.

Granting the education allowance to an official on an exceptional basis does not constitute a decision which restricts the rights of that official at present. Only if the exceptional nature of the decision were put forward subsequently as a ground for refusing to grant the allowance would the decision adversely affect the official concerned.

(see para. 16)

See: 204/85 Stroghili v Court of Auditors [1987] ECR 389, paras 6 and 11

2.     As regards the definition of the concept of primary education provided for in Article 3 of Annex VII to the Staff Regulations, the classification given in national law to the schooling provided by an educational establishment cannot constitute a decisive factor for the purposes of that provision, even though it may be a relevant indication of the type of schooling provided.

However, in the absence of any criteria in the Staff Regulations to define that concept, reference should be made to the type of schooling provided, as defined by the national authorities.

(see paras 28-29)

See: T‑10/90 et T‑31/90 Boessen v ESC [1991] ECR II‑1365, paras 30 to 34

3.     An obligation to pay an official default interest together with his remuneration and incidentals can arise only where the amount of the principal sum owed is certain or can at least be ascertained on the basis of established objective factors. Furthermore, an obligation to pay default interest should be recognised where there was an unjustified delay in actually determining the amount of the debt owed.

(see para. 45)

See: 264/83 Delhez v Commission [1986] ECR 2749, paras 20 and 23