61981C0152
OPINION OF MRS ADVOCATE GENERAL ROZÈS
DELIVERED ON 30 JUNE 1983 (
1
)
Mr President,
Members of the Court,
A series of actions was brought against the Commission on 15 June 1981 by officials and temporary staff in relation to the conditions for the grant of the double educational allowance in respect of attendance at an establishment of higher education by their children.
The cases on which I give my opinion today are only a part of those originally brought. They do not include those cases which the Court on 25 May 1982 ordered to be disjoined on the ground that the Commission raised an objection of inadmissibility in respect of them by reason of delay in the presentation of the complaint through official channels. In those cases the proceedings were adjourned sine die by the decision of the President of the Court of 7 June 1982.
The main purpose of these proceedings is as follows:
—
To obtain a declaration that the second indent of the third paragraph of Article 3 of Annex VII to the Staff Regulations is inapplicable in so far as it restricts the doubling of the allowance to officials who are entitled to the expatriation allowance; and
—
Consequently, to obtain an order requiring the Commission to rectify the applicants' accounts by adding the amounts representing the double education allowance which they have been illegally denied.
I —
The facts of these proceedings, which concern a question of pure law, are extremely simple.
1.
The applicants, who are aH employed at the Ispra branch of the Joint Research Centre, fulfil all the conditions for the allowance to be doubled except one: they are not entitled to the expatriation allowance provided for by Article 69 of the Staff Regulations and by Section 2 of Annex VII thereto. Consequently they consider themselves to be the victims of discrimination in comparison with their colleagues who do receive that allowance and whose children, like theirs, attend an establishment of higher education situated in Italy more than 50 km from their place of employment. In practice in most cases the establishment in question is Milan University which is situated 72 km from Ispra.
At the end of 1980 they submitted requests under Article 90 (1) of the Staff Regulations to be granted the double allowance. The appointing authority rejected the requests by reference to the clear wording of Article 3 of Annex VII.
2.
The applicants then- submitted complaints under Article 90 (2) of the Staff Regulations but they were all rejected, initially by implied decisions (failure to reply within the prescribed period of four months) and subsequently on the institution of proceedings by express decisions of rejection dated either 15 July or 9 December 1981.
II —
The disputed matter cannot be considered properly, in my opinion, without recalling first the considerable alterations made to the conditions for the grant of the education allowance since the various Staff Regulations of Officials and the regulations governing the other servants of the EEC and the EAEC came into force on 1 January 1962. (
2
)
1.
In Regulations Nos 31 (EEC) and 11 (EAEC) of the Council of 18 December 1961 the allowance was available to every official whether or not he was entitled to the expatriation allowance and regardless of the establishment attended by his child.
Yet the education allowance did not cover the complete cycle of higher education since it was not available once the child attained the age of 21 years. In addition there was no provision for doubling the allowance.
2.
The principle of doubling the allowance was introduced in 1965. (
3
) The double allowance was then granted to officials whose children attended an educational establishment and where there was no European school within 50 km of their place of employment, provided they were entitled to the expatriation allowance. In 1968 that set of rules was consolidated into the uniform regulations. applying to all Community officials which replaced the Staff Regulations of the ECSC, the EEC and the EAEC. (
4
)
3.
In 1972 (
5
) the entitlement to the double education allowance was extended to officials whose children were pursuing a course of higher education. That new entitlement was subject to compliance with the following three conditions:
—
Receipt by the official of the expatriation allowance;
—
The absence of an educational establishment of university level in the official's country of origin within 50 km of his place of employment;
—
Actual attendance at an educational establishment of university level situated more than 50 km from his place of employment.
It follows from a comparison of the two last conditions that the establishment attended does not necessarily have to be situated in the country of origin of the official.
4.
In 1974 the Commission submitted to the Council a proposal to liberalize the conditions for the grant of the double education allowance. It sought in particular to delete the requirement that the official be entitled to the expatriation allowance. In adopting Regulation No 711/75 (
6
) the Council accepted the Commission's proposal only in part in relation to higher education. The requirement that the official be in receipt of the expatriation allowance was abolished in respect of primary and secondary education but retained for higher education. It simply added the words that the condition was not to apply “if there is no such establishment in the country of which the official is a national.” (
7
)
5.
The provision in force today reads as follows:
“The maximum prescribed in the first paragraph shall be doubled for:
...
—
An official whose place of employment is at least 50 km from an establishment of higher education in the country of which he is a national or working in his language, provided that the child actually attends an establishment of higher education at least 50 km from the place of employment and the official is entitled to the expatriation allowance; the latter condition shall not apply if there is no such establishment in the -country of which the official is a national.”
That wording widens certain minor points only as compared to the previous wording. (
8
) It retains the three requirements laid down in the previous text.
It should also be pointed out that by virtue of Article 5 (1) of the General Implementing Provisions for granting the Education Allowance (
9
) the amount of the education allowance payable in respect of attendance at an establishment of higher education is a standard sum inasmuch as it amounts to the maximum prescribed in the first paragraph of Article 3 of Annex VII to the Staff Regulations regardless both of the actual educational expenses incurred and of the salary of the official in receipt of the allowance. For the academic year 1981-82 the figure was BFR 4105 per child per month. (
10
)
Likewise by virtue of Article 5 (2) of those general provisions each official who fulfils the requirements for the grant of the double allowance and whose child attends an establishment of higher education automatically receives a sum which is double the basic rate. For the same academic year he would therefore receive BFR 8210 per child per month.
III —
1.
The applicants base their applications on the sole submission of infringement of the principle of nondiscrimination which is one of the general principles of law recognized by the Court's case-law. That principle is infringed if situations which are similar are treated differently or situations which are different are treated in the same way, without any objective justification. (
11
)
The applicants consider that the requirement for the grant of the double education allowance that the official must be entitled to the expatriation allowance means that officials who are in comparable situations are treated differently without any justification.
They state that all officials whose children pursue higher education at an establishment situated more than 50 km from their place of employment incur the same expenses arising from the pursuit of their studies. They are therefore in identical situations. Yet officials who are entitled to the expatriation allowance receive double the allowance granted to those who are not so entitled. Therein lies the discrimination.
2.
Furthermore, there is no objective justification for such different treatment. That is the point which seems to me to be the central issue of these cases.
Does the fact that the grant of the double education allowance is subject to the requirement that the official be entitled to the expatriation allowance create “an arbitrary difference in treatment between officials”? (
12
) Does it, in other words and in certain cases, create a discriminatory situation “caused by the application of a general rule, which... constitutes a breach of the principle of equality among officials whose circumstances are similar”? (
13
) Alternatively, does it create a classification based on objective criteria and directly related to the purpose of the rules which applies in the same manner to all officials who are in the position envisaged by the Staff Regulations, but which give rise to inconvenience in borderline cases? (
14
)
Although the wording does not state the purpose expressly it is clear that the Council's purpose in retaining the requirement that the official be entitled to the expatriation allowance is to enable officials who are not nationals of the State in which they are employed to discharge the higher expenses incurred by their children in pursuing studies in their country of origin.
In that respect it is possible to agree with the Council and the Commission that studies in a country other than that in which the student's father or mother is employed involve, on average, greater expenses, in particular in relation to travel, than studies in the latter country.
It is also to be noted that, in the majority of cases, officials who are entitled to the expatriation allowance are nationals of a State other than that in which they are employed (for example, 97.4% of the officials and temporary staff employed at Ispra who are entitled to the expatriation allowance are not of Italian nationality) and that, in most cases, their children return to their country of origin to complete their higher education (for example, at Ispra 147 children were in that position during the academic year 1981-82, whilst 36 were studying in Italy).
3.
However, account must be taken of the analysis conducted by the applicants who, far from being convinced by the Council's reasoning, dispute whether the supposedly higher expenses involved in studies in the country of origin are the real reason for the requirement that the official be entitled to the expatriation allowance. In that respect they submit three arguments of which the final one seems to me to be the strongest.
(a)
In their opinion, if the explanation given is correct, it is difficult to understand why that requirement was abolished in 1975 in relation to the grant of the double allowance in respect of primary and secondary education.
In my opinion, however, such a comparison between types of education is not relevant. In retaining the condition that the official be entitled to the expatriation allowance in relation to higher education the Council made a choice in the context of its personnel policy which cannot be reviewed by a court and it has drawn the logical consequences from that choice. Its intention was that the grant of the double allowance should remain an exceptional case in particular on budgetary grounds. In fact the abolition of the requirement relating to the expatriation allowance in respect of primary and secondary education did not increase to any significant extent the number of officials benefiting from the double allowance since there is at least one European school capable of providing their children with an appropriate primary and secondary education in the places of employment of most of them. Yet in relation to postsecondary education there are no establishments equivalent to European schools, so that to have extended the abolition to that level would have considerably increased the number of persons in receipt of the double allowance.
The applicants maintain also that the supplementary expenses arising from studies undertaken in the country of origin by the child of an official employed abroad are covered as a whole by the expatriation allowance. The Commission, however, answers quite rightly that the expatriation allowance is personal to officials whereas the education allowance is specifically intended to cover the expenses associated with their children's studies.
(b)
The applicants have stressed throughout the proceedings the “absurdity” of a system which leads to the double allowance's being granted to' officials entitled to the expatriation allowance and refused to their colleagues who are not so entitled, although their children attend the same university and thus incur the same expenses.
It is undeniable that that argument has some validity. However, it does not lead me to conclude that the situation amounts to arbitrary discrimination. In fact, it may be seen from the Court's case-law that, in order to interpret a doubtful provision, it is necessary to examine its aim and scheme. (
15
)In fact the grant of the double allowance to officials entitled to the expatriation allowance, who are in the vast majority of cases not nationals of the country in which they are employed, was not intended by the legislature but arises solely, as the Commission has recognized, from the imperfect wording of the provision in force. Consequently the applicants should instead compare their case with that of the only category of officials whom the Council intended to benefit from the double education allowance, namely persons entitled to the expatriation allowance who send their children to their country of origin.
Moreover, even if the cases chosen by the applicants for the purposes of making a comparison are not marginal (
16
) it nevertheless follows from the figures I have given that by far the most common situation is that envisaged by the Council as the basis for the disputed provision. It is therefore possible to say that the latter constitutes the expression of an undeniable sociological reality.
If in the vast majority of cases children of Community officials undertake their studies in their country of origin (
17
) that is, in fact, because there are powerful reasons encouraging them to do so. Entry into numerous careers, especially in the public service and certain liberal professions, often depends on the possession of national qualifications at the present stage in the mutual recognition of qualifications by the different Member States. Linguistic considerations may also have to be taken into account. Finally, it is clear that integration into the employment system of the country of origin is facilitated in particular from a psychological point of view, if the studies leading to it are completed in that country.
IV —
1.
It would therefore seem at the present stage that the requirement relating to the grant of the expatriation allowance which the Council has retained since 1975 does, on the one hand, relate directly to the purpose of the rules relating to the double education allowance and is, on the other hand, objective and uniform, that is to say it applies to all persons in the same position without any discretion to assess their individual position.
Nevertheless, it seems to me that it is possible to deduce from the Court's case-law that such a requirement would be illegal if its application were to lead to an excessive increase in the number of officials not entitled to the double allowance which logically they ought to receive. Even in the absence of the requirement relating to the expatriation allowance the “introduction of any general and abstract system of rules” will of itself give rise to “borderline cases” (
18
) in which officials are deprived, a priori unjustly, of the double allowance.
However, that risk is increased and the persons unjustly excluded may become too numerous for their situation to be regarded as marginal any longer when the requirement relating to the expatriation allowance is added to the others. In fact the application of Article 4(1) of Annex VII to the Staff Regulations, which lays down the conditions for granting the expatriation allowance, is also capable, without doubt, of leading to injustices even if they do not amount to arbitrary differentiation. (
19
)
In other words where two defective criteria are superimposed they may result in the rules which lay them down being discriminatory and therefore illegal.
2.
We must now ascertain whether that is actually the case in these proceedings.
In my opinion it is necessary to distinguish four situations which may be regarded as abnormal.
(a)
The first situation is where officials are nationals of the State in which they are employed and are in receipt of the expatriation allowance (an exceptional case) such as Italians at Ispra. The statistics annexed to the rejoinder show that for the academic year 1981-82 there were nine children of officials at Ispra who were in that position out of 374 who were pursuing higher education. If there is no establishment of higher education of the country of which they are nationals or working in their language within 50 km of their place of employment such officials still receive the double allowance whether the establishment selected is situated in the country in which they are employed and of which they are nationals or in another country. Such officials may therefore be considered to be in a privileged position in comparison to their compatriots who do not receive the expatriation allowance (the normal position) and who therefore are not entitled to the double education allowance.
(b)
In my opinion it is proper for the latter not to receive the double allowance when they send their children abroad to pursue their studies, except in the most exceptional cases. It is not possible to speak of discrimination if that benefit is granted, for example, to a German official employed at Ispra who sends his child to a German university and is refused to an official at Ispra of Italian nationality whose child is attending the same course in Germany as that of his colleague's child. There is an objective difference in the position of those two officials inasmuch as the choice made by the former is often imposed on him while that of the latter is almost always made after due consideration. It is true that the choice of a foreign university is consistent with the principle of the freedom of choice as to establishments of higher education which the Community institutions are unable and do not intend to question. However, the principle of nondiscrimination cannot be invoked successfully to force the Council to gram the double education allowance in sucl cases when it wishes such a grant tc remain exeptional.
It seems to me to be desirable that an official entitled to the expatriation allowance at the place where he is employed who loses that benefit as a result of his transfer to his country of origin should be able to continue to receive the double education allowance in respect of his child who is pursuing his studies in the former country and does not wish them to be interrupted. (
20
) However, the fact that the number of officials in that position is no doubt extremely limited can lead to no conclusion other than that the situation must be regarded as marginal though certainly unfortunate. It cannot therefore be described as discriminatory within the meaning of the Court's case-law. Instead it is for the Community legislature to find an appropriate solution to bring that situation to an end.
(c)
A further abnormal situation is referred to by the applicants: namely that in which an official is not a national of the State in which he is employed and is in receipt of the expatriation allowance (the usual case) but whose children pursue their studies in the country of his employment and not, as envisaged by Council, in their country of origin. That is the position of the children of the non Italian officials at Ispra who are pursuing studies in Italy, in particular at Milan. Similarly it is possible to refer to the children of French officials who pursue their studies at a Francophone university in Belgium or to Dutch-speaking Belgians who are employed at the Petten branch of the Joint Research Centre and whose children study in the Netherlands. It is probable that a number of such children are the issue of marriages between persons of different nationalities or were born in the country where the relevant parent is employed after the latter entered the service of the Communities so that they feel more closely integrated in that country than in the country of which they are nationals. Their wish to pursue their higher education there would therefore appear quite understandable.
It is equally true that the present scheme enables officials to receive the double education allowance not only if they send their children to their country of origin but also if they send them to any other country. That consequence, which it is known was not intended by the Council but arises solely from the imperfect drafting of the provision, is not in itself open to criticism, in particular if, inspired by European ideals, the child studies in a country of the Community other than that in which the parent is employed and other than that of which the latter is a national. However, that consequence becomes disturbing if account is taken of the different position of the officials to whom the provision was intended to apply. Nevertheless, the limited number of persons who benefit in that manner according to the figures relating to Ispra cannot lead to the conclusion that in that situation there is discrimination against those persons who do not so benefit. In addition, whilst the persons benefiting have no legal interest in complaining about the present situation, it must not be forgotten that one of the methods of terminating the present unequal treatment would be to abolish the benefit.
(d)
One of the unfortunate situations is that of an official who is not a national of the country in which he is employed and who yet is not entitled to the expatriation allowance (an exceptional case), (
21
) but whose children are completing their higher education outside the country in which he is employed, for example in their country of origin. In 1981-82 no such case arose at Ispra. The supplementary information furnished by the Commission with regard to its staff employed in Brussels and Luxembourg enables the conclusion to be drawn that such a position is extremely rare since it applied to only two of 32 children of officials and temporary staff whose higher education in 1982-83 gave rise to an education allowance.
In conclusion that summary of abnormal situations shows that they are not sufficiently extensive to result in the contested provision's being regarded as creating arbitrary discrimination. Nevertheless, it is impossible not to reflect that the wording adopted is perhaps unnecessarily complicated, in view of the large number of criteria and the reference to the expatriation allowance as one of them. Of course a completely fair scheme, which is neither injurious nor unduly advantageous to any one, is Utopian in view of the large number of variations in individual cases resulting from the considerable number of factors which come into play. However, it is conceivable that different rules might make it possible to achieve greater equity.
In any event, I would suggest to the Court, for the reasons I have given, that the applications should be dismissed. Consequently the parties should bear their own costs in accordance with Article 70 of the Rules of Procedure.
(
1
)	Translated from the French.
(
2
)	The wording of che ECSC Staff Regulations of 1962 was identical in that respect.
(
3
)	By Regulations Nos 30 (EEC) and 4 (Euratom) of 16.3.1965; the ECSC Staff Regulations were amended in the same manner.
(
4
)	By Regulation (EEC, Euratom, ECSC), No 259/68 of 29.2.1968.
(
5
)	By Article 52 of Regulation No 1473/72 of 30.6.1972.
(
6
)	Of 18.3.1975.
(
7
)	That exception is intended to apply to officials of Luxembourg nationality whose country does not provide a full range of university studies.
(
8
)	Apart from the addition of the final words referred to above the changes comprise: First, the replacement of the words “educational establishment of university level” by the words “establishment of higher education” ; Secondly, the replacement of the words “country of origin” by the words “country of which he is a national or working in his language.”
(
9
)	Published in Administrative Information No 153 of 2.5.1977, pp. 25 to 28.
(
10
)	The final indent of Article 1 (2) b of Council Regulation (ECSC, EEC, Euratom) No 372/82 of 15.2.1982.
(
11
)	For example: judgment of the Court of 25.10.1978 in Case 125/77 Koninklijke Scholten-Honig [1978] ECR 1991, paragraph 27 at p. 2003; judgment of the First Chamber of the Court of 15.12.1982 in Case 5/82 Maizena [1982] ECR 4607, paragraphs 16 and 17; judgment of the First Chamber of the Court of 23.2.1983 in Case 8/82 Wagner [1983] ECR 387, paragraphs 18 and 19.
(
12
)	As was stated in the judgment of the Second Chamber of the Court in Case 20/71 Luisa Sabbatini, née Bertoni, v European Parliament [1972] ECR 345, paragraph 13 at p. 351.
(
13
)	As was stated in the judgment of the Second Chamber of the Court in Case 156/78 Newth v Commission of the European Communities [1979] ECR 1941, paragraph 13 at pp. 1952 and 1953.
(
14
)	As was stated in the judgment of the Second Chamber of 16.10.1980 in Case 147/79 Hochstrass v Court of Justice of the European Communities [1980] ECR 3005, paragraphs 13 and 14 at pp. 3020 and 3021, and in the judgment of the Second Chamber of 15.1.1981 in Case 1322/79 Vutera v Commission of the European Communities [1981] ECR 127, paragraph 9 at p. 138.
(
15
)	Judgement of the First Chamber of the Court of 27.11.1980 in Joined Cases 81, 82 and 146/79 Sorasio and Others v Commission of the European Communities [1980] ECR 3557, paragraph 15 at pp. 3571 and 3572.
(
16
)	It must be recalled that at Ispra in 1981-82 36 children of officials entitled to the expatriation allowance studied in Italy whilst 147 returned to their country of origin, which amounts to a ratio of approximately 1 -4 (to be precise 4.08333).
(
17
)	It is possible to add to the figures already given that only four children of 1050 officials and temporary staff at Ispra who were Italian nationals were undertaking higher education outside Italy.
(
18
)	Judgment in Hochstrass, cited above, paragraph 14 at p. 3021.
(
19
)	Judgment in Vutera, cited above, paragraph 9 at p. 138.
(
20
)	Thus Mr Carraro (Case 305/81), an Italian national, was entitled to the expatriation allowance and was in receipt of the double education allowance in respect of his daughter who was registered at the University of Louvain-la-Neuve, Belgium, as long as he was employed at the Geel branch of the Joint Research Centre. On being transferred to Ispra at the beginning of December 1980 he no longer received the expatriation allowance or therefore the double education allowance although his daughter continued her studies in Belgium.
(
21
)	For example, because he has worked for a private organization in that country, even if he has not resided there, for a period of five years ended six months before he entered the service — second indent of Article 4 (1) (a) of Annex VII to the Staff Regulations.