JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (First Chamber)

20 January 2009

Case F-32/08

**Marie-Claude Klein**

**v**

**Commission of the European Communities**

(Civil service – Officials – Pensions – Invalidity pension – Death – Definition of dependent child – Article 2 of Annex VII to the Staff Regulations – Death allowance – Death grant – Orphans’ pension)

**Application:**brought under Articles 236 EC and 152 EA, in which Ms Klein seeks, in essence, annulment of the decision of the Commission’s
Office for the Administration and Payment of Individual Entitlements of 4 May 2007 rejecting her applications to be granted
certain financial entitlements which she claimed as a result of the death of her father, a former Commission official, together
with annulment, where necessary, of the decision of the appointing authority of 15 November 2007 rejecting her complaint of
3 August 2007 against the abovementioned decision.

**Held:**The action is dismissed. The applicant is to pay all the costs.

**Summary**

1.      *Procedure – Application initiating proceedings – Formal requirements – Brief summary of the pleas in law on which the application
is based*

*(Rules of Procedure of the Civil Service Tribunal, Art. 35(1))*

2.      *Community law – Interpretation – Principles – Independent interpretation*

*(Staff Regulations, Arts 70 and 80)*

3.      *Officials – Pensions – Pension-holder’s survivors – Dependent child*

*(Staff Regulations, Arts 70 and 80; Annex VII, Art. 2)*

4.      *Officials – Social security – Insurance against the risk of accident and of occupational disease – Death grant*

*(Staff Regulations, Art. 73(1) and (2))*

5.      *Officials – Pensions – Pension-holder’s survivors – Time-limits for applying for payment of pension entitlements*

*(Staff Regulations, Annex VIII, Art. 42)*

1.      Under Article 35(1) of the Rules of Procedure of the Civil Service Tribunal, the application must contain the subject-matter
of the proceedings and the pleas in law and arguments of fact relied on. In order to guarantee legal certainty, it is necessary,
in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in
summary form, coherently and intelligibly in the application itself. However, although as a general rule it is not acceptable
merely to refer to an annex for the statement of the facts that should be included in the application itself, the action should
not be declared inadmissible but should be considered as to its merits, provided that the defendant and the Community judicature
have had the opportunity to acquaint themselves with the statement of the facts set out in the complaint. In any event, the
Community judicature is entitled to assess, depending on the circumstances of each individual case, whether the proper administration
of justice justifies the rejection of the action on the merits without ruling beforehand on the plea of inadmissibility raised
by the defendant.

(see paras 19-20)

See:

C-23/00 P *Council* v *Boehringer* [2002] ECR I‐1873, paras 51 and 52; C-233/02 *France* v *Commission* [2004] ECR I‐2759, para. 26

T-85/92 *De Hoe* v *Commission* [1993] ECR II‐523, para. 20; T‐97/92 and T-111/92 *Rijnoudt and Hocken* v *Commission* [1994] ECR-SC I‐A‐159 and II‐511, para. 71; T-154/98 *Asia Motor France and Others* v *Commission* [1999] ECR II‐1703, para. 49; T-277/97 *Ismeri Europa* v *Court of Auditors* [1999] ECR II‐1825, para. 29; T‐171/02 *Regione autonoma della Sardegna* v *Commission* [2005] ECR II‐2123, para. 155

F-63/06 *Mascheroni* v *Commission* [2007] ECR-SC I-A-1-0000 and II-A-1-0000, para. 52; F‐134/06 *Bordini* v *Commission* [2008] ECR-SC I-A-1-0000 and II-A-1-0000, para. 56

2.      It follows from the requirement for a uniform application of Community law and the principle of equality that the terms of
a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining
its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Community; that interpretation
must take into account the context of the provision and the purpose of the legislation in question. Furthermore, while it
is true that, even in the absence of an express reference, the application of Community law may sometimes necessitate a reference
to the laws of the Member States, it is only where the Community court cannot identify in Community law or in the general
principles of Community law criteria enabling it to define the meaning and scope of such a provision by way of independent
interpretation.

As regards the interpretation of the term dependent child, referred to in Articles 70 and 80 of the Staff Regulations of Officials,
Community law provides sufficient information, particularly in the Staff Regulations, to establish an independent definition
of the meaning and scope of that term. No reference must be made to any national law. Furthermore, an independent interpretation
of the term dependent child is the most likely to ensure the uniform application of that term, as well as equal treatment
for those entitled under officials and under holders of a retirement pension or an invalidity allowance.

(see paras 35-36)

See:

T-342/04 *Adam* v *Commission* [2006] ECR-SC I‐A‐2‐23 and II‐A‐2‐107, para. 32

3.      In order to interpret the term dependent child within the meaning of Articles 70 and 80 of the Staff Regulations, reference
should be made to the definition given in Article 2 of Annex VII to the Staff Regulations, concerning the dependent child
allowance, paragraph 2 of which states that the child must be ‘actually being maintained by the official’, on the basis that
actual maintenance involves responsibility for all or part of the child’s basic needs, in particular in relation to board
and lodging, clothing, education and medical care and expenses.

Considering the provisions of Article 2 of Annex VII to the Staff Regulations, the Community judicature cannot overlook the
age limits to which the dependent child allowance is subject under paragraph 3 of that article, that is to say, the child
must be under 18 years of age or, under certain conditions, under 26 years. The age limits provided for in Article 2(3) of
Annex VII to the Staff Regulations are therefore justified not only for the grant of the dependent child allowance, but also
for the grant of the death allowance or the orphans’ pension. If the legislature, in exercising its discretion, started from
the assumption that, from a certain age, children should be able to provide for their own needs and should not be a burden
on the Community’s dependent child allowance budget, there is no reason that the same should not also apply as regards the
financial benefits provided for in Articles 70 and 80 of the Staff Regulations.

The need to define the term dependent child in the light of Article 2(2) and (3) of Annex VII to the Staff Regulations, read
together, is confirmed by the provisions of paragraphs 6 and 7 of the same article. It is clear from the latter provisions
that the term dependent child must not be understood solely within the meaning of paragraph 2 of that article, but more broadly;
thus, Article 2(6) of Annex VII to the Staff Regulations expressly refers to ‘[any one] dependent child within the meaning
of this Article’ and Article 2(7) expressly refers to ‘the dependent child within the meaning of paragraphs 2 and 3’.

It clearly follows from Article 2(4) of Annex VII to the Staff Regulations that for a person to be treated as if he were a
dependent child, there must be a ‘special reasoned decision of the appointing authority’. For the administration to be able
to treat any person as if he were a dependent child, as provided for in Article 2(4) of Annex VII to the Staff Regulations,
there must be cumulative evidence, first, that the official ‘has a legal responsibility to maintain’ that person and, second,
that the child’s maintenance involves ‘heavy expenditure’ for the official.

(see paras 37, 40, 41, 44-45)

See:

T-87/04 *Arranz Benitez* v *Parliament* [2006] ECR-SC I‐A‐2‐201 and II‐A‐2‐1031, para. 42 and the case-law cited therein

4.      The reference in Article 73 of the Staff Regulations to the common rules on the insurance of officials of the European Communities
against the risk of accident and of occupational disease relates only to the material scope of that article, namely ‘the risk
of occupational disease and of accident’, and not to its personal scope. The provision of the second paragraph of Article
73(1) of the Staff Regulations that ‘[s]uch rules shall specify which risks are not covered’ must be construed to the same
effect, in other words in relation to the material scope of the common rules. Furthermore, in terms of their personal scope,
the common rules apply, according to Article 1 thereof, only to ‘permanent officials’, ‘temporary staff’ and ‘contract agents’,
and therefore do not cover risks which arose after the official or staff member terminated his service. Although, in the case
of occupational disease, Article 16 of the rules provides that the ‘former insured party’ (the person who has terminated his
service) or his survivors (where the insured party is deceased) may receive the benefits provided for in Article 73(2) of
the Staff Regulations, such benefits are guaranteed only where the death of the ‘former insured party’ results from a disease
whose symptoms became apparent after the termination of service, but which was caused by his/her occupation.

The fact that Article 73 of the Staff Regulations provides that the death grant may be combined with the benefits provided
for in Chapter 3 of Title V of the Staff Regulations does not prove that the death grant might also be paid to the survivors
of an official who was no longer working. Although some articles of Chapter 3 concern the recipients of a retirement pension
or an invalidity benefit, others, such as Articles 79 and 80 of the Staff Regulations, provide for financial benefits to be
paid not just to the survivors of the abovementioned recipients, but also to the survivors of an official who dies while still
in service.

(see paras 54-55)

5.      The provisions of Article 42 of Annex VIII to the Staff Regulations, according to which those entitled under an official who
has died who do not apply for their pension within one year from the date of his death are to lose their entitlement, save
where *force majeure* is duly established, are a matter of public policy and cannot be altered by the parties or the Court, since they were laid
down in order to ensure clarity and security in legal situations. The fact that an entitled person only became apprised of
the Staff Regulations after that time-limit is not an argument justifying his failure to observe it and cannot therefore have
the effect of establishing *force majeure*, since the one-year time-limit already appears to be sufficiently long to allow the heirs and survivors of an official or
recipient of a Community pension the time to contact the institution’s administration. Furthermore, any person subject to
the rules of the Staff Regulations or who may benefit from an entitlement under those rules is deemed to be familiar with
the Staff Regulations and cannot rely on his ignorance to avoid the time-limits imposed by the Staff Regulations on any subject.

(see paras 59-60)

See:

T-68/97 *Neumann and Neumann-Schölles* v *Commission* [1999] ECR-SC I‐A‐193 and II‐1005, paras 45 and 48