# C_2006108EN.01001301.xml

| 6.5.2006 | EN | Official Journal of the European Union | C 108/13 |
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6.5.2006

EN

Official Journal of the European Union

C 108/13

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Appeal brought on 10 March 2006 by Roderich Weißenfels against the judgment of the Court of First Instance delivered on 25 January 2006 in Case T-33/04 Roderich Weißenfels v European Parliament

(Case C-135/06 P)

(2006/C 108/21)

Language of the case: German

Parties

Appellant: Roderich Weißenfels (represented by: G. Maximini, Rechtsanwalt)

Appellant:

Other party to the proceedings: European Parliament

Form of order sought

| 1. | Annul the judgment of the Court of First Instance (First Chamber) of 25 January 2006 in Case T-33/04 (Weißenfels v European Parliament) (1), notified on 31 January 2006; |
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1.

Annul the judgment of the Court of First Instance (First Chamber) of 25 January 2006 in Case T-33/04 (Weißenfels v European Parliament) (1), notified on 31 January 2006;

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| 2. | Annul the decision of the respondent of 26 June 2003, as a result of which the special aid for the severely handicapped which was awarded from another source to the appellant's son Frederik was deducted from the double child allowance granted to the appellant under Article 67(3) of the Staff Regulations; |
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2.

Annul the decision of the respondent of 26 June 2003, as a result of which the special aid for the severely handicapped which was awarded from another source to the appellant's son Frederik was deducted from the double child allowance granted to the appellant under Article 67(3) of the Staff Regulations;

| 3. | Annul the implied decision of refusal of the respondent to pay back to the appellant, in accordance with his application of 4 June 2003, the double child allowance which had been unjustly retained in the past; |
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3.

Annul the implied decision of refusal of the respondent to pay back to the appellant, in accordance with his application of 4 June 2003, the double child allowance which had been unjustly retained in the past;

| 4. | Annul the decision of the respondent of 28 April 2004, as a result of which the special aid for the severely handicapped which was granted by another source to Frederik, the son of the appellant, was declared to be an ‘allowance of like nature’, within the meaning of Article 67(2) of the Staff Regulations, to the double child allowance which had been granted to the appellant; |
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4.

Annul the decision of the respondent of 28 April 2004, as a result of which the special aid for the severely handicapped which was granted by another source to Frederik, the son of the appellant, was declared to be an ‘allowance of like nature’, within the meaning of Article 67(2) of the Staff Regulations, to the double child allowance which had been granted to the appellant;

| 5. | Order the respondent to pay the appellant compensation (in the alternative: the statutory interest which has accrued) in respect of the harm incurred as a result of the fact that parts of his income in the form of double child allowance were unjustly retained since 1 December 1998; |
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5.

Order the respondent to pay the appellant compensation (in the alternative: the statutory interest which has accrued) in respect of the harm incurred as a result of the fact that parts of his income in the form of double child allowance were unjustly retained since 1 December 1998;

| 6. | Order the respondent to pay the costs of appeal and at first instance, including the expenses incurred by the appellant. |
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6.

Order the respondent to pay the costs of appeal and at first instance, including the expenses incurred by the appellant.

Pleas in law and main arguments

In his appeal, the appellant contends that the Court of First Instance made procedural errors as, in its disputed judgment, it did not properly consider the claims of the appellant and unlawfully limited the scope of his application. The finding of the Court of First Instance that a claim for compensation was expressed only in the wording of the reply was erroneous, as the relevant original claim in the application is, as regards its content, to be considered as a claim for compensation.

At a formal level, the Court of First Instance did not examine the similarity of the allowances in question — as is a requirement for the application of Article 67(2) of the Staff Regulations — and did not recognise this at a material level. At a formal level, there could not be any ‘allowances of like nature’, as the Luxembourg special allowance is in no way linked to the status of being employed. At a material level, the difference in purpose of the two allowances should be taken into account: whereas only the appellant himself has a claim to the allowance under Article 67(3) of the Staff Regulations for the purpose of receiving it — independently of his place of residence — only the person who is entitled — thus, the son of the appellant — has a claim to the independent Luxembourg special allowance, which is for the purpose of his care, so long as he lives in Luxembourg.

Application of Article 67(2) of the Staff Regulations is therefore ruled out, as neither at a formal nor at a material level is there an allowance of like nature which is paid from a separate source, within the meaning of the Community law in this regard. The contrary view taken by the Court of First Instance therefore infringes Community law.

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(1)  OJ 2006 C 74, p. 18.

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