Opinion of the Advocate General — ECLI:EU:C:2007:537
Date: 2007-09-20
Language of the case: German
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - successful;Appeal - successful

Summary 1. Officials – Actions – Action brought against a confirmatory decision – Admissibility where not time-barred (Staff Regulations of Officials, Arts 90 and 91) 2. Officials – Actions – Unlimited jurisdiction – Disputes of a financial character within the meaning of Article 91(1) of the Staff Regulations – Definition (Staff Regulations of Officials, Art. 91(1)) 3. Officials – Remuneration – Family allowances – Double dependent child allowance (Staff Regulations of Officials, Art. 67(2) and (3)) 1. An action against a confirmatory decision is inadmissible only if the confirmed decision has become final in relation to the person concerned for failing to bring an action within the time-limit. Otherwise, the person concerned is entitled to challenge either the confirmed decision, or the confirmatory decision, or both. It would, moreover, be contrary to the sound administration of justice to require an applicant to bring a new action before the Court of First Instance against a decision concerning the same question as an earlier decision. An application seeking the annulment of that new decision brought at the reply stage is therefore admissible. 2. ‘Disputes of a financial character’ within the meaning of Article 91(1) of the Staff Regulations include not only actions brought by staff members seeking to have an institution held liable, but also all those seeking payment by an institution to a staff member of a sum which the latter considers to be due to him under the Staff Regulations or other measure governing their working relations. It follows that a claim by a staff member that the institution concerned pay to him sums which, he claims, were wrongly withheld from his remuneration, together with interest at the statutory rate, constitutes a dispute of a financial character within the meaning of Article 91(1) of the Staff Regulations. The unlimited jurisdiction conferred on the Community judicature by Article 91(1) of the Staff Regulations entrusts it with the task of providing a complete solution to the disputes brought before it, that is to say to rule on all the rights and obligations of the staff member, save for leaving to the institution in question, under the control of the court, the implementation of such part of the judgment and under such precise conditions as the court shall determine. The Community judicature is therefore able, in an appropriate case, to order an institution to pay a sum to which the applicant is entitled under the Staff Regulations or another legal measure. 3. On a proper interpretation of Article 67(2) of the Staff Regulations, only allowances which are comparable and have the same purpose as family allowances under the Staff Regulations are of like nature for the purposes of that provision. Under Article 67(3) of the Staff Regulations, the dependent child allowance may be doubled where the child concerned is suffering from a mental or physical handicap which involves the official in heavy expenditure. It follows that a comparable allowance can be deducted only from that part of the dependent child allowance that has been added, as a result of the doubling, to that to which the official is in any case entitled. The Luxembourg special allowance for handicapped persons is clearly distinct from the allowance under the Staff Regulations in several respects. The Luxembourg allowance, which is granted solely on the basis of residence in Luxembourg territory and without regard to an employment relationship, is designed, by appropriate measures, to meet the challenges posed by a handicap which the law precisely defines. It is granted to persons one or more of whose physical or mental functions are, despite treatment, training or appropriate reeducation, and notwithstanding the use of suitable equipment, diminished in such a way that the person concerned cannot subsist without the assistance or care of another person. It must, obviously, allow the person concerned to meet the expenses incurred in employing another person, at least part-time, which the part of the allowance under the Staff Regulations corresponding to its doubling does not permit, and the amount of which may be absorbed, for example, by costs such as care expenses, reeducation, equipment, specialised education or adaptation of accommodation. It follows that the part of the dependent child allowance attributed by virtue of Article 67(3) of the Staff Regulations and the Luxembourg allowance have neither the same subject-matter nor the same purpose and are therefore not of like nature within the meaning of Article 67(2) of the Staff Regulations.