CELEX: 62017CJ0390
Appeal
Civil service
Remuneration
Family allowances
Education allowance
Refusal to reimburse education costs
Article 3(1) of Annex VII to the Staff Regulations of officials of the European Union

By their appeal, Ms Irit Azoulay, Mr Andrew Boreham, Ms Mirja Bouchard and Mr Darren Neville seek to have set aside the judgment of the General Court of the European Union of 28 April 2017,
Azoulay and Others
v
Parliament
(T‑580/16, ‘the judgment under appeal’,
EU:T:2017:291
), by which that court dismissed their action seeking annulment of the individual decisions of the European Parliament (‘the Parliament’) of 24 April 2015 refusing to grant them education allowances for the year 2014/2015 and, so far as necessary, annulment of the individual decisions of the Parliament of 17 and 19 November 2015 partially rejecting the appellants’ complaints of 20 July 2015.
Legal context
Under Article 67(1) of the Staff Regulations of Officials of the European Union, in the version applicable to the present dispute (‘the Staff Regulations’):
‘Family allowances shall comprise:
…
(c)
education allowance.’
Article 3(1) of Annex VII to the Staff Regulations provides:
‘Subject to the conditions laid down in the general implementing provisions, an official shall receive an education allowance equal to the actual education costs incurred by him up to a maximum of EUR 260.95 per month for each dependent child …, who is at least five years old and in regular full-time attendance at a primary or secondary school which charges fees or at an establishment of higher education …
…’
In accordance with Article 110 of the Staff Regulations, the Parliament adopted, on 18 May 2004, the General Implementing Provisions on granting the education allowance laid down in Article 3 of Annex VII to the Staff Regulations (‘the GIPs’). Article 3 of the GIPs provides:
‘Subject to the maximum amounts prescribed in the first and third subparagraphs of Article 3(1) of Annex VII to the Staff Regulations, … education allowance B shall cover:
(a)
registration and attendance fees at educational establishments;
(b)
transport costs
excluding all other costs, and in particular:
–
compulsory expenditure such as for the purchase of books, school equipment, sports equipment, school insurance and medical expenses cover, examination fees, costs of joint extra-curricular activities (school excursions, visits and trips, sports courses, etc.), and other expenses connected with following the curriculum of the educational establishment attended;
–
costs incurred as a result of the child’s participation in organised trips to winter, seaside and countryside resorts and similar activities.’
Background to the dispute
The background to the dispute is set out as follows in the judgment under appeal:
‘1
The first applicant, Ms … Azoulay, has a child registered since September 2014 at the Athénée (Belgian primary and secondary school) Ganenou in Brussels (Belgium). The other three applicants, Mr … Boreham, Ms … Bouchard and Mr … Neville, have children registered at the International School Le Verseau in Bierges (Belgium). Until the school year 2014/2015, those of the applicants who already had children registered at those educational establishments before 2014 received reimbursement of those children’s education costs within the limits of the monthly maximum amount.
The International School Le Verseau is a non-faith school which is part of the Fédération des établissements libres subventionnés indépendants (Federation of Independent Subsidised Free Establishments) (FELSI) and is subsidised by the French Community. Lessons are provided in French and English from pre-school onwards by teachers who have one of those languages as their mother tongue. However, the school is not entirely funded by that subsidy. It has its own resources, provided, inter alia, by the non-profit association Les Amis du Verseau.
The Athénée Ganenou is a faith school which is subsidised by the French Community, whose official curriculum it applies in full, while adding several hours thereto per week to teach Hebrew, the history of Judaism, the Bible, and English from primary level onwards. The school is not entirely funded by that subsidy. It has its own resources, provided, inter alia, by the non-profit association Les Amis de Ganenou.
In October and November 2014, the applicants submitted requests for reimbursement of education costs which they had incurred in respect of their dependent children, accompanied by supporting documents provided by the schools concerned and identical to those which had been appended to their previous requests for reimbursement of such costs, which had been accepted.
On 24 April 2015, the applicants received notification that their requests for reimbursement of education costs had been definitively rejected … on the ground that the conditions set out in Article 3(1) of Annex VII to the Staff Regulations … were not satisfied, because the two schools concerned were not schools which charge fees for the purposes of that provision, since the optional contributions made by the applicants to the non-profit associations concerned fall outside the framework of compulsory free education as provided for by Belgian legislation.
On 20 July 2015, each of the applicants submitted a complaint pursuant to Article 90(2) of the Staff Regulations. By … decisions … of 17 and 19 November 2015, those complaints were rejected … However, the Secretary-General of the Parliament decided, “
ex gratia
and by way of exception”, to grant the applicants the education allowance for the year 2014/2015, but not to continue to grant it for future school years in respect of schooling at the International School Le Verseau or the Athénée Ganenou.’
The procedure before the General Court and the judgment under appeal
The applicants requested the General Court (i) to annul the decisions of 24 April 2015, (ii) to annul, so far as necessary, the decisions of 17 and 19 November 2015‘except as concerns the decision of the Secretary-General of the Parliament
ex gratia
and by way of exception to grant them the education allowance for the year 2014/2015’, (iii) to order the Parliament to pay the applicants the education allowance for the year 2015/2016, together with interest calculated from the dates on which those sums were due and (iv) to order the Parliament to pay the costs.
In support of their action, the applicants relied on three pleas in law, alleging (i) infringement of Article 3(1) of Annex VII to the Staff Regulations and a manifest error of assessment, (ii) infringement of the principle of the protection of legitimate expectations and (iii) infringement of the principles of equal treatment and sound administration. The General Court rejected each of those pleas and, therefore, the claim for the annulment of the decisions of 24 April 2015. Since it had rejected those pleas, it held that there was no longer any need to adjudicate on the claim that the Parliament should be ordered to pay the applicants the education allowance for the year 2015/2016.
Forms of order sought
The appellants claim that the Court should:
–
set aside the judgment under appeal;
–
uphold their claims made at first instance; and
–
order the Parliament to pay all the costs.
The Parliament contends that the Court should:
–
dismiss the appeal as unfounded; and
–
order the appellants to pay the costs.
The appeal
The first ground of appeal
Arguments of the parties
By their first ground of appeal, the appellants dispute paragraphs 31 to 36 and 38 of the judgment under appeal. They submit that the General Court erred in law in interpreting the concept of ‘education costs’ in the light of circular No 4516 of 29 August 2013 of the Wallonia-Brussels Federation entitled ‘Free Compulsory Education’, which is an information circular aimed at national authorities.
According to the appellants, the concept of ‘education costs’ under the Staff Regulations is an autonomous concept which must be interpreted taking into account the objectives pursued by the legislation of which it forms part and its context. The aim of the allowances is to take full account of an official’s family situation, and in particular to pay him ‘additional’ remuneration relating to the expenses that he must actually bear, irrespective of the system in which his child studies. In the present case, the costs paid by the appellants are intended to fund their children’s education and are duly substantiated.
As the General Court pointed out in paragraph 32 of the judgment under appeal, the appellants did not deny that non-payment of the costs at issue cannot lead to their children being excluded from a Belgian compulsory education establishment. However, children whose parents do not pay the costs of the specific educational programme could be excluded from that programme. They would, therefore, be obliged to follow national educational programmes, whereas the mother tongue of the appellants’ children, like their cultural heritage, are different from those of the Belgian people.
The appellants also submit that the General Court distorted the facts when it found, in paragraphs 31 and 36 of the judgment under appeal, that the invoicing of education costs by a non-profit association supported by the children’s parents would not be consistent with national law, whereas the associations in question invoice not for the services which the school must provide free of charge, but rather for the educational services outside the compulsory Belgian curriculum. In other words, those specific contributions are used exclusively to finance the education which is not subsidised by the Wallonia-Brussels Federation and which is the distinctive feature of the school chosen and its educational project.
Lastly, the appellants dispute paragraph 40 of the judgment under appeal, in which the General Court held that ‘as the contributions made to the non-profit associations concerned cannot be classified as education costs, they constitute costs arising from requirements and activities connected with following the curriculum, namely the participation of children in the specific programme and non-subsidised education provided by the schools in question, and must be regarded as “other expenses connected with following the curriculum of the educational establishment attended” for the purposes of the second paragraph of Article 3 of the GIPs, which, according to that provision, are not covered by education allowance B’.
The Parliament disputes the appellants’ arguments.
Findings of the Court
The General Court did not err in law when it noted, in paragraphs 19 and 20 of the judgment under appeal, that the education allowance provided for in Article 3(1) of Annex VII to the Staff Regulations is equal to the actual ‘education costs’ incurred by an official for each dependent child in regular full-time attendance at ‘a primary or secondary school which charges fees’.
The appellants do not deny that the concept of ‘education costs’ is an autonomous concept of EU law. In order to interpret that concept, its wording and the objectives pursued by the legislation must be taken into account in particular.
The wording of Article 3(1) of Annex VII to the Staff Regulations states clearly that the costs incurred must enable attendance at an establishment which charges fees. As the Advocate General observed in point 2 of her Opinion, the objective of adopting that provision was to ensure that the education allowance would be more closely aligned on the actual expenditure incurred by officials.
Interpreted in the light of Article 3(1) of Annex VII to the Staff Regulations, Article 3 of the GIPs provides that the education allowance is to cover registration and attendance fees at educational establishments which charge fees and transport costs, excluding all other costs.
Having regard to the autonomous nature of the concept of ‘education costs’, the characterisation as that concept depends on the nature and constituent elements of the expenditure to be reimbursed (judgment of 8 September 2011, Bovagnet v Commission,
F‑89/10
,
EU:F:2011:129
, paragraph
).
Accordingly, the General Court did not err in law when it examined the nature and constituent elements of the costs relied on by the appellants, in order to determine whether they could be characterised as ‘registration and attendance fees at educational establishments’ which charge fees.
Nor did the General Court err in law when it referred to circular No 4516, which includes information on the legislation applicable in the French Community of Belgium as regards free compulsory education.
In that regard, the appellants do not deny that the International School Le Verseau and the Athénée Ganenou do not require registration and attendance fees. Such a factor is sufficient to preclude those schools from being education establishments which charge fees, for the purposes of Article 3(1) of Annex VII to the Staff Regulations, as specified in Article 3 of the GIPs. The General Court did not, therefore, err in law when it deduced from this, in paragraph 36 of the judgment under appeal, that the contributions requested by third bodies, such as non-profit associations, for the participation of children in the specific programme and non-subsidised education provided by those schools are not fees for registration and attendance at those schools and cannot be classified as ‘education costs’ as referred to in Article 3(1) of Annex VII to the Staff Regulations and as specified in Article 3 of the GIPs.
In the light of those factors, the General Court rightly held, in paragraph 40 of the judgment under appeal, that the contributions made to the non-profit associations concerned cannot be classified as ‘education costs’. Those contributions constitute costs arising from requirements and activities connected with the specific programme and non-subsidised education provided by the schools in question, and must be regarded as ‘other expenses connected with following the curriculum of the educational establishment attended’ for the purposes of the second paragraph of Article 3 of the GIPs, which, according to that provision, are not covered by education allowance B.
Consequently, the first ground of appeal is unfounded.
The second ground of appeal
Arguments of the parties
By their second ground of appeal, the appellants dispute paragraphs 45 and 46 of the judgment under appeal, by which, first, the General Court noted that there can be no finding that the principle of the protection of legitimate expectations has been infringed when precise, unconditional and consistent assurances given by an institution do not comply with the provisions of the Staff Regulations and, secondly, it stated for the sake of completeness that it is in no way apparent from the documents in the case file and, more particularly, from a form prepared by the administrative authorities of the Parliament for the schools, that those authorities gave the appellants precise, unconditional and consistent assurances.
The appellants submit that the findings in the judgment under appeal are vitiated by a material inaccuracy, because it was a question, in the present case, not of ascertaining whether the form in question could prove the existence of registration fees, but of determining whether the established practice of the Parliament over so many years, not disputed by the other EU institutions, was not, rather, a clear, consistent and unconditional assurance from the authorities.
The Parliament denies the existence of a material inaccuracy.
Findings of the Court
The Court points out that the appellants dispute a ground of the judgment under appeal included for the sake of completeness, without challenging the case-law according to which promises made by the administrative authorities of an institution to an official, which do not take account of the provisions of the Staff Regulations, cannot give rise to legitimate expectation on the part of the person to whom they are addressed (see, to that effect, judgments of 16 November 1983, Thyssen v Commission,
188/82
,
EU:C:1983:329
, paragraph
, and of 6 February 1986, Vlachou v Court of Auditors,
162/84
,
EU:C:1986:56
, paragraph
).
It follows that the second ground of appeal, even if it were well founded, could not lead to the annulment of the judgment under appeal. That ground of appeal is, therefore, ineffective and must, accordingly, be rejected.
The third ground of appeal
Arguments of the parties
By their third ground of appeal, the appellants dispute paragraphs 47 and 48 of the judgment under appeal, by which the General Court held that their argument that a change in administrative practice is contrary to the principle of legal certainty was inadmissible on the ground that it was not raised in the complaint and does not, therefore, comply with the rule of correspondence between the prior administrative complaint and the action. The appellants submit that their argument was a response to reasons which had been put forward for the first time by the Parliament in the response to their complaint.
According to the Parliament, the plea raised by the appellants in the complaint by which they relied on the change in administrative practice related to the infringement of the principle of the protection of legitimate expectations. The decisions of 17 and 19 November 2015, which responded to that plea, are based on settled case-law according to which the mere fact that an education allowance has been paid for several years is insufficient to enable staff to rely on that principle. The provisions governing the award of that allowance provide expressly that it is subject to an annual evaluation and therefore that it may be altered from one year to the next or even abolished. Consequently, the reminder of the annual nature of the evaluation of the education allowance is not a new ground, but an argument in response to the objections of the appellants who had information in that connection, so that it was possible for them to put forward a plea alleging the infringement of legal certainty in their complaint.
Findings of the Court
In that regard, it must be noted, as the Advocate General observed in point 60 of her Opinion, that the Parliament’s assertion that the education allowance is subject to an annual evaluation was made in support of its argument that it did not give the appellants precise and unconditional assurances that they would receive the education allowance.
That assertion was, therefore, a response to the plea alleging the infringement of the principle of the protection of legitimate expectations, raised by the appellants in their complaint, and was not a ground of the decisions of 17 and 19 November 2015 which appeared merely at the stage of the response to the complaints.
It follows that the third ground of appeal is unfounded.
The fourth ground of appeal
Arguments of the parties
By their fourth ground of appeal, the appellants dispute paragraph 56 of the judgment under appeal. They submit that the General Court infringed the obligation to state reasons in holding that the first part of the third plea in law, by which they relied on the fact that officials of other institutions had received reimbursement of education costs of their own children registered at the same schools as the appellants’ children, was ineffective, but also in failing to adjudicate on the alleged infringement of Article 22 of the Charter of Fundamental Rights of the European Union, relied on nonetheless before the General Court. The appellants submit that, in accordance with Article 1a of the Staff Regulations, officials are entitled to equal treatment under those regulations, meaning that the regulations, as a general rule, must be given an autonomous and uniform interpretation throughout the European Union. However, the Parliament stated, in the decisions of 17 and 19 November 2015, that the fact that parents working at the European Commission still receive reimbursement for the education costs of their children registered at the International School Le Verseau and at the Athénée Ganenou related not to unequal treatment, but rather to the fact that ‘each institution has a power of self-organisation which enables it to use its margin of interpretation of the Staff Regulations autonomously’.
The appellants submit that the General Court erred in law in failing to examine whether the statement of reasons provided by the Parliament concerning its discretion in the interpretation of a legislative provision was provided for by the Staff Regulations and consistent with the principle of equal treatment.
The Parliament disputes the merits of the fourth ground of appeal.
Findings of the Court
It must be noted that the appellants dispute the General Court’s conclusion in paragraph 56 of the judgment under appeal, but do not challenge the case-law on which the General Court based its conclusion, set out as follows in paragraph 55 of the judgment under appeal:
‘However, it is settled case-law that no official or member of the temporary staff may rely on an unlawful act in order to gain an advantage. Indeed, the principle of equal treatment must be reconciled with the principle of legality, according to which no person may rely, in support of his claim, on an unlawful act committed in favour of another (judgments of 4 July 1985, Williams v Court of Auditors,
134/84
,
EU:C:1985:297
, paragraph
; of 2 June 1994, de Compte v Parliament,
C‑326/91 P
,
EU:C:1994:218
, paragraphs
and
; and of 1 July 2010, Časta v Commission,
F‑40/09
,
EU:F:2010:74
, paragraph
).’
The citation of that case-law was sufficient in order to provide a reasoned response to the plea in law alleging the infringement of the principle of equal treatment.
It also gave good grounds for the decisions of 17 and 19 November 2015, since the Parliament considered that the payment of the education allowance requested by the appellants would infringe Article 3(1) of Annex VII to the Staff Regulations, a position reinforced moreover by the present judgment.
As regards Article 22 of the Charter of Fundamental Rights of the European Union, it must be found that, in their application for annulment, the appellants simply referred to that article, but did not submit a plea based on the infringement of that provision to which the General Court would have been required to respond.
It follows that the fourth ground of appeal is unfounded.
Since all the grounds have been held to be unfounded, the appeal must be dismissed.
Costs
In accordance with Article 184(2) of the Rules of Procedure of the Court, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 138(1) of those rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
Since the Parliament has applied for costs and the appellants have been unsuccessful, the latter must be ordered to pay the costs.

On those grounds, the Court (Seventh Chamber) hereby:

1.
Dismisses the appeal;

2.
Orders Ms Irit Azoulay, Mr Andrew Boreham, Ms Mirja Bouchard and Mr Darren Neville to pay the costs.

[Signatures]
(
*1
)	Language of the case: French.