61988J0058

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1 . Action for annulment - Time within which action must be brought - Starting-point - Notification - Concept - Burden of proof of notification - Application to actions brought by officials

( EEC Treaty, Art . 173, third paragraph, and Art . 191; Staff Regulations, Art . 91(3 ) )

2 . Officials - Social security - Sickness insurance - Official of the European Communities on unpaid leave on personal grounds who is also the spouse of an official - Entitlement to cover by virtue of the spouse' s insurance - Conditions

( Staff Regulations, Art . 40(3 ), second subparagraph, and Art . 72(1 ); Rules on Sickness Insurance for Officials of the European Communities, Art . 3(1 ) )

1 . Although a decision is properly notified within the meaning of Article 191 of the Treaty if it reaches the addressee and puts the latter in a position to take cognizance of it, it is for the party claiming that an action was brought outside the time-limits laid down in the third paragraph of Article 173 of the Treaty for the institution of annulment proceedings to prove the date on which the decision was notified . The same applies to proceedings brought under Article 91 of the Staff Regulations .

2 . Provided that he or she satisfies the requirements of Article 3(1 ) of the Rules on Sickness Insurance for Officials of the European Communities, an official on unpaid leave on personal grounds is insured against sickness by virtue of his or her spouse' s membership of the joint scheme, without having to bear the cost of the contributions provided for in the second subparagraph of Article 40(3 ) of the Staff Regulations .

Although Article 72(1 ) of the Staff Regulations, which provides that a spouse may be covered by the joint scheme only if he or she is not eligible for equivalent benefits by virtue of any other provisions, seeks to avoid as far as possible overlapping sickness insurance cover and does not refer primarily to the situation of an official of the European Communities who is also the spouse of an official, it is couched in such general terms that it is not possible to exclude those who, despite having that status, are not insured in their own right against sickness .

Furthermore, that article, although it reserves cover of a member' s spouse by the joint scheme to the peripheral cases in which he or she cannot otherwise obtain comparable benefits, does not impose an obligation on the spouse to endeavour in all circumstances to obtain cover in his or her own right by virtue of other provisions and does not, therefore, make cover by virtue of an official' s insurance conditional upon it being totally impossible for the spouse to be eligible for benefits of the same nature and of the same level by virtue of any other legal provisions .

In Case 58/88

Francis Olbrechts and Ingeborg Olbrechts, née Hogrefe, officials of the Commission of the European Communities, residing in Brussels, represented by L . Defalque, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Alex Schmitt, 62 avenue Guillaume,

applicants,

v

Commission of the European Communities, represented by S . van Raepenbusch, a member of its Legal Department, acting as Agent, assisted by B . Cambier, of the Brussels Bar, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of the Commission' s Legal Department, Wagner Centre, Kirchberg,

defendant,

APPLICATION for the annulment of the Commission' s decision of 17 November 1987 on sickness cover during a period of unpaid leave on personal grounds,

THE COURT ( Third Chamber )

composed of : F . Grévisse, President of the Chamber, J . C . Moitinho de Almeida and M . Zuleeg, Judges

Advocate General : W . Van Gerven

Registrar : H . A . Ruehl, Principal Administrator

having regard to the Report for the Hearing and further to the Hearing on 23 May 1989,

after hearing the Opinion of the Advocate General delivered at the sitting on 15 June 1989,

gives the following

Judgment

1 By application lodged at the Court Registry on 24 February 1988, Mr Frances Olbrechts and his wife, Mrs Ingeborg Olbrechts, née Hogrefe, officials of the Commission, brought an action under Article 91 of the Staff Regulations for the annulment of the Commission' s decision of 17 November 1987 refusing Mrs Olbrechts cover under the Sickness Insurance Scheme common to the institutions of the European Communities ( hereinafter referred to as "the joint scheme ") unless she paid the contributions provided for in Article 40(3 ) of the Staff Regulations .

2 Mrs Olbrechts has been on unpaid leave on personal grounds since 7 August 1986, in accordance with Article 40(2 ) of the Staff Regulations, in order to bring up the applicants' child, who is under five years old . On 3 February 1987, Mr Olbrechts sent a memorandum to the Head of the Sickness and Accident Insurance Division in the Directorate-General for Personnel and Administration, in which he contested the interpretation given by the Commission, on the occasion of a request for the direct payment of certain medical expenses incurred by his wife, to the provisions of the Staff Regulations, according to which Mrs Olbrechts was not covered by his insurance under the joint scheme but, in order to be covered by the scheme, would have to pay her own contributions in accordance with Article 40(3 ) of the Staff Regulations .

3 The head of that division replied in a "Memorandum for the attention of Mrs Olbrechts - care of Mr Olbrechts", dated 6 February 1987, confirming the Commission' s interpretation .

4 On 27 May 1987, the applicants sent a memorandum, registered at the General Secretariat of the Commission on 2 June 1987, which they presented as a request "under Article 90(1 ) of the Staff Regulations", seeking recognition of Mrs Olbrechts' s right to be covered under the joint scheme by virtue of her husband' s insurance .

5 By a memorandum dated 27 August 1987, the Directorate-General for Personnel and Administration informed Mr Olbrechts that the request he had submitted on 2 June 1987 constituted, in fact, a complaint under Article 90(2 ), inasmuch as it was "directed against a decision already taken by the appointing authority with regard to (( his )) spouse ."

6 By a memorandum dated 2 December 1987, the Directorate-General for Personnel and Administration notified the applicants of the Commission' s decision of 17 November 1987 rejecting their complaint of 27 May 1987 .

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

Admissibility

8 The Commission considers that the action is inadmissible because the time-limits laid down in Articles 90 and 91 of the Staff Regulations were not complied with . The memorandum of 6 February 1987 constituted the decision adversely affecting the applicants, taken following Mr Olbrechts' s application, against which the applicants did not submit a complaint within the three-month period prescribed by Article 90(2 ) of the Staff Regulations . Their complaint of 27 May 1987, therefore, was out of time . The Commission' s decision of 17 November 1987, which forms the subject-matter of this action, cannot be regarded as adversely affecting the applicants inasmuch as it was merely an act confirming the decision of 6 February 1987 . Nor, moreover, was any complaint submitted against it within the prescribed period .

9 That argument cannot be upheld . Although it is true that the memorandum addressed to Mrs Olbrechts on 6 February 1987 does indeed constitute the act adversely affecting the applicants against which the applicants should have directed their complaint, the Commission may not rely on the argument that the applicants' request of 27 May 1987, which it rightly treats as a complaint under Article 90(2 ) of the Staff Regulations, was out of time .

10 It must be borne in mind that, although a decision is properly notified within the meaning of the Treaty if it reaches the addressee and puts the latter in a position to take cognizance of it ( Case 6/72 Europemballage and Continental Can v Commission (( 1973 )) ECR 215 ), it is for the party claiming that an action is out of time to prove the date on which the decision was notified ( Case 108/79 Belfiore v Commission (( 1980 )) ECR 1769, and Joined Cases 193 and 194/87 Maurissen v Court of Auditors (( 1989 )) ECR 1045 )

11 There is nothing in the papers before the Court to indicate the date on which the memorandum of 6 February 1987 was received by its addressee . At the hearing, the Court questioned the Commission' s representatives on this point, but they merely pointed to the applicants' silence in not denying having received the memorandum of 6 February 1987 .

12 That argument put forward by the Commission cannot take the place of proof and, consequently, the plea of inadmissibility based on the allegation that the complaint was submitted out of time must be dismissed .

13 The Commission claims, further, that its failure to reply within a period of four months from the applicants' submission of their complaint on 27 May 1987 constituted an implied rejection of that complaint . Under Article 91 of the Staff Regulations, the application to the Court should therefore have been lodged within three months from the date of that implied rejection . Because the action was not brought until 24 February 1988, it should be declared out of time and therefore inadmissible .

14 In that regard, it must be pointed out that, under the second indent of Article 91(3 ) of the Staff Regulations, where a complaint is rejected by express decision after being rejected by implied decision but before the period for lodging an application to the Court has expired, the period for lodging the application starts to run afresh .

15 In the present case, the Commission did not reply to the complaint of 27 May 1987 within the four-month period laid down in Article 90(2 ) of the Staff Regulations but did, on 17 November 1987, adopt an express decision rejecting the complaint, which was notified to the applicants on 2 December 1987, that is to say on a date when the period for lodging an application to the Court against the implied decision of rejection had not yet expired . That express decision therefore had the effect of causing a new period for lodging an application to run, and that period had not expired when the action was brought .

16 The action is therefore admissible .

Substance

17 The applicants claim, essentially, that under Article 72(1 ) of the Staff Regulations the spouse of an official is covered by the joint scheme in so far as he or she is not covered in his or her own right by the scheme and provided that he or she is not eligible for benefits of the same nature and of the same level by virtue of any other legal provision or regulations . During unpaid leave on personal grounds, an official' s membership of the joint scheme is suspended in accordance with Article 40(3 ) of the Staff Regulations unless he or she fulfils the requirements set out in that provision, that is to say, in particular, unless he or she pays contributions . Such an official consequently ceases to be a member in his or her own right and is thus covered by the joint scheme by virtue of his or her spouse' s membership in accordance with Article 72(1 ) of the Staff Regulations . Articles 3 and 4 of the Rules on Sickness Insurance for Officials of the European Communities ( hereinafter referred to as "the Rules ") express the same principle in different words .

18 It must be borne in mind, in that regard, that sickness cover for officials and members of their families is governed primarily by Article 72 of the Staff Regulations . Paragraph 1 of that article provides :

"An official, his spouse, where such spouse is not eligible for benefits of the same nature and of the same level by virtue of any other legal provision or regulations, his children and other dependants ... are insured against sickness up to 80% of the expenditure incurred subject to rules drawn up by agreement between the institutions of the Communities after consulting the Staff Regulations Committee ."

19 The Commission maintains that Mrs Olbrechts may not rely on that provision because she could have been covered by the joint scheme if she had contributed thereto in accordance with Article 40(3 ) of the Staff Regulations .

20 The Commission' s argument on that point cannot be upheld . First, the requirement laid down in Article 72(1 ) of the Staff Regulations with regard to cover for a spouse under the joint scheme seeks to avoid as far as possible overlapping sickness insurance cover ( see Case 339/85 Brunotti v Commission (( 1988 )) ECR 1379 ). Although that provision, when it refers to cover by virtue of other rules, does not refer primarily to the situation of an official of the European Communities who is also the spouse of an official, it is couched in such general terms that it is not possible to exclude officials who are themselves spouses of Community officials, in so far as they are not directly insured against the risks mentioned in Article 72 .

21 It must further be stressed that, although Article 72(1 ) of the Staff Regulations reserves cover of a member' s spouse by the joint scheme to the peripheral cases in which he or she cannot otherwise obtain comparable benefits, neither the wording nor the purpose of the provision implies that the spouse of an official who is a member must in all circumstances endeavour to obtain cover by virtue of other legal provisions . That provision does not, therefore, make a spouse' s cover conditional upon it being totally impossible for him or her to be eligible for benefits of the same nature and of the same level .

22 The interpretation is also confirmed by Article 3(1 ) of the Rules, adopted on the basis of Article 72 of the Staff Regulations, which lays down the specific rules relating to sickness insurance for members' spouses and which provides :

"The persons covered by a member' s insurance shall be :

1 . The spouse, unless he or she is a member of the Scheme, provided that :

he or she is not gainfully employed; or

if he or she is gainfully employed, he or she is covered against the same risks by any other legal provisions or rules and his or her annual income from such employment before tax does not exceed the basic annual salary of an official in the third step of Grade B4 ...".

23 It follows that no account is to be taken of the fact that Mrs Olbrechts could have continued to be covered under Article 72 of the Staff Regulations by bearing the cost of the contributions provided for in Article 40(3 ) of the Staff Regulations .

24 The Commission claims, however, that Article 40(3 ) of the Staff Regulations makes it impossible for an official on unpaid leave on personal grounds to be covered by virtue of his or her spouse' s membership of the joint scheme because that provision suspends not only "his membership of the social security scheme" but also "cover for risks under the scheme ". It would be purposeless to mention the latter unless the provision were to be given the scope ascribed to it in the contested decision .

25 That reasoning cannot be accepted . It is not possible to conclude from the wording of the first subparagraph of Article 40(3 ) of the Staff Regulations that the authors of that provision wished to derogate, in cases where the spouse of an official who is a member of the joint scheme is an official on unpaid leave on personal grounds, from the general rule laid down in Article 72 of the Staff Regulations and expressed in greater detail in Article 3(1 ) of the Rules that a member' s insurance covers a spouse who is not a member provided that he or she is not gainfully employed or, if he or she is so employed, that the income from such employment does not exceed a certain limit .

26 Mrs Olbrechts was not gainfully employed and was therefore covered, in accordance with Article 3(1 ) of the Rules, by her husband' s insurance, inasmuch as she was not herself a member of the joint scheme .

27 In that connection, the Commission claims that the concepts of "suspension" and "termination" must not be confused . An official on leave on personal grounds remains a member of the joint scheme even though, under Article 40(3 ) of the Staff Regulations, the effects of that membership are suspended, so that Article 3(1 ) of the Rules cannot apply to that official .

28 That interpretation put forward by the Commission cannot be accepted . It is clear from the actual wording of Article 4(2 ) of the Rules, which was, moreover, adopted after the Court' s judgment in Case 51/72 Noé-Dannwerth v European Parliament (( 1973 )) ECR 433, to which the Commission refers, that an official on unpaid leave on personal grounds is not a member unless he or she satisfies the requirements of the second subparagraph of Article 40(3 ) of the Staff Regulations, that is to say unless he or she bears the cost of the contributions provided for in that provision .

29 The Commission further maintains that to adopt the interpretation put forward by the applicants would lead to discrimination between officials on unpaid leave on personal grounds depending on whether they were, on the one hand, unmarried, widowed or divorced or, on the other hand, married, because the former would have to contribute in order to be covered, while the latter would be covered during their leave on personal grounds by the spouse' s insurance .

30 In that regard, it must be pointed out that, when determining whether the principle of non-discrimination has been observed, the comparison to be made is not between officials having different marital statuses, as the Commission suggests, but rather between the positions of spouses of officials, depending on whether they themselves are officials of the Communities or not . Spouses of officials who are themselves officials of the Communities on unpaid leave on personal grounds should not, therefore, receive less favourable treatment than spouses who are not officials, and should, consequently, be able to benefit in the same way as the latter from the provisions of Article 3(1 ) of the Rules .

31 It follows from the foregoing that an official on unpaid leave on personal grounds is insured against sickness by virtue of his or her spouse' s membership of the joint scheme provided that he or she satisfies the requirements of Article 3(1 ) of the Rules, without having to bear the cost of the contributions provided for in the second subparagraph of Article 40(3 ) of the Staff Regulations .

32 The Commission' s decision of 17 November 1987, taken in response to the applicant' s complaint, must therefore be annulled .

Costs

33 Under Article 69(2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs . Since the Commission has failed in its submissions, it must be ordered to pay the costs .

On those grounds,

THE COURT ( Third Chamber )

hereby :

( 1 ) Annuls the Commission' s decision of 17 November 1987, taken in response to the applicant' s complaint;

( 2 ) Orders the Commission to pay the costs .