61979CJ0081_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN JOINED CASES 81, 82 AND 146/79
1 . DENISE SORASIO-ALLO, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, OF 68 AVENUE EMILE DURAY, BRUSSELS 1050,
2.CECILIA AIMO-CAMPOGRANDE, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, OF 21 SPALTLAAN, OVERIJSE 1900 ( BELGIUM ),
3.ALAIN-PIERRE ALLO, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, OF 68 AVENUE EMILE DURAY, BRUSSELS 1050,
ASSISTED AND REPRESENTED BY EDMOND LEBRUN OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER, ADVOCATE, 83 BOULEVARD GRANDE-DUCHESSE CHARLOTTE,
APPLICANTS,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, THOMAS F . CUSACK, ACTING AS AGENT, ASSISTED BY DANIEL JACOB OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, MARIO CERVINO, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION
IN CASE 81/79 :
ON THE ONE HAND, FOR ANNULMENT OF THE IMPLIED DECISION REJECTING THE COMPLAINT LODGED ON 24 OCTOBER 1978 AND, TO THE EXTENT NECESSARY, OF MR BOSMANS ' S NOTE DATED 29 SEPTEMBER 1978 ON THE CALCULATION OF THE TAXABLE
AMOUNT OF THE APPLICANT ' S REMUNERATION AND, ON THE OTHER HAND, FOR AN ORDER THAT THE COMMISSION DO PAY THE SUMS CORRESPONDING TO THE OVERPAYMENTS OF TAX FROM THE DATE WHEN SHE TOOK UP HER APPOINTMENT UNTIL DATE OF EXECUTION OF THE JUDGMENT TO BE DELIVERED ;
IN CASE 82/79 :
ON THE ONE HAND, FOR ANNULMENT OF THE IMPLIED DECISION REJECTING THE COMPLAINT LODGED ON 30 OCTOBER 1978 AND, TO THE EXTENT NECESSARY, THE DECISION CALCULATING THE TAXABLE AMOUNT OF THE APPLICANT ' S REMUNERATION WHEN SHE ADVANCED TO STEP 5 OF GRADE A 7 ( ON 1 OCTOBER 1978 ) AND, ON THE OTHER HAND, FOR AN ORDER THAT THE COMMISSION DO PAY THE SUMS CORRESPONDING TO THE OVERPAYMENTS OF TAX FROM THE DATE WHEN SHE TOOK UP HER APPOINTMENT UNTIL THE DATE OF EXECUTION OF THE JUDGMENT TO BE DELIVERED ;
IN CASE 146/79 :
ON THE ONE HAND, FOR ANNULMENT OF THE DECISION DISCONTINUING THE ADDITIONAL ABATEMENTS IN RESPECT OF DEPENDENT CHILDREN AND OF THE IMPLIED DECISION REJECTING THE COMPLAINT MADE IN THIS CONNEXION ON 16 MAY 1979 AND SUPPLEMENTED BY LETTER DATED 21 JUNE 1979 AND, ON THE OTHER HAND, FOR AN ORDER THAT THE COMMISSION DO PAY THE SUMS CORRESPONDING TO THE OVERPAYMENTS OF TAX FROM 1 APRIL 1979 UNTIL THE DATE OF EXECUTION OF THE JUDGMENT TO BE DELIVERED,
Grounds
1 BY APPLICATIONS LODGED AT THE COURT REGISTRY ON 22 MAY 1979, 23 MAY 1979 AND 20 SEPTEMBER 1979 THE APPLICANTS, OFFICIALS OF THE COMMISSION, ASK IN SUBSTANCE FOR A DECLARATION THAT THEY ARE ENTITLED TO THE ADDITIONAL TAX ABATEMENT EQUIVALENT TO TWICE THE AMOUNT OF THE ALLOWANCE FOR A DEPENDENT CHILD .
2 THE SECOND SUBPARAGRAPH OF ARTICLE 3 ( 4 ) OF REGULATION ( EEC, EURATOM, ECSC ) NO 260/68 OF THE COUNCIL OF 29 FEBRUARY 1968 LAYING DOWN THE CONDITIONS AND PROCEDURE FOR APPLYING THE TAX FOR THE BENEFIT OF THE EUROPEAN COMMUNITIES ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1968 ( I ), P . 37 ) PROVIDES THAT :
' ' AN ADDITIONAL ABATEMENT EQUIVALENT TO TWICE THE AMOUNT OF THE ALLOWANCE FOR A DEPENDENT CHILD SHALL BE MADE FOR EACH DEPENDENT CHILD OF THE PERSON LIABLE AS WELL AS FOR EACH PERSON TREATED AS A DEPENDENT CHILD WITHIN THE MEANING OF ARTICLE 2 ( 4 ) OF ANNEX VII TO THE STAFF REGULATIONS . ' '
3 ARTICLE 2 OF ANNEX VII TO THE STAFF REGULATIONS PROVIDES THAT :
' ' ( 1 ) AN OFFICIAL WHO HAS ONE OR MORE DEPENDENT CHILDREN SHALL . . . RECEIVE AN ALLOWANCE . . . FOR EACH DEPENDENT CHILD .
( 2 ) ' DEPENDENT CHILD '
MEANS THE LEGITIMATE, NATURAL OR ADOPTED CHILD OF AN OFFICIAL, OR OF HIS SPOUSE, WHO IS ACTUALLY BEING MAINTAINED BY THE OFFICIAL .
. . .
( 6)NOT MORE THAN ONE DEPENDENT-CHILD ALLOWANCE SHALL BE PAID IN RESPECT OF ANY ONE DEPENDENT CHILD WITHIN THE MEANING OF THIS ARTICLE, EVEN WHERE THE PARENTS ARE IN THE SERVICE OF TWO DIFFERENT INSTITUTIONS OF THE THREE EUROPEAN COMMUNITIES . ' '
4 MR AND MRS ALLO HAVE TWO CHILDREN, BORN IN 1967 AND 1974 . MR AND MRS CAMPOGRANDE HAVE THREE CHILDREN, BORN IN 1966, 1967 AND 1968 .
5 ON 24 OCTOBER 1978 MRS SORASIO-ALLO SUBMITTED A COMPLAINT AGAINST THE FAILURE TO TAKE INTO CONSIDERATION HER CIRCUMSTANCES AS TO DEPENDANTS IN THE CALCULATION OF THE TAXABLE AMOUNT FOR THE ASSESSMENT OF THE TAX PAYABLE BY HER . MRS AIMO-CAMPOGRANDE SUBMITTED A SIMILAR COMPLAINT ON 30 OCTOBER 1978 . IT IS UNFORTUNATE THAT THERE WERE NO REPLIES TO THESE COMPLAINTS .
6 FROM THE DATE WHEN MR ALLO TOOK UP DUTY UNTIL MAY 1979 THE ADDITIONAL ABATEMENT IN RESPECT OF HIS TWO DEPENDENT CHILDREN HAS ALWAYS BEEN APPLIED TO THE TAXABLE AMOUNT OF HIS REMUNERATION . IN CONSEQUENCE OF THE PROMOTION OF HIS WIFE TO GRADE A 5 SHE AND NOT MR ALLO HAS SINCE THEN BEEN ALLOWED THE ABATEMENT . ON 16 MAY 1979 MR ALLO SUBMITTED A COMPLAINT AGAINST THE DECISION TO DISALLOW THE ADDITIONAL ABATEMENTS IN RESPECT OF HIS DEPENDENT CHILDREN, TO WHICH THERE WAS ALSO NO REPLY .
7 THE APPLICANTS '
FIRST SUBMISSION IS THAT THE COMMISSION, BY REFUSING TO ALLOW THEM THE ADDITIONAL TAX ABATEMENT, HAS INFRINGED THE SECOND SUBPARAGRAPH OF ARTICLE 3 ( 4 ) OF REGULATION NO 260/68 . THEY ALLEGE THAT THE ONLY CONDITION ATTACHED TO ENTITLEMENT TO THE ABATEMENT IN QUESTION IS THAT THE RECIPIENT MUST HAVE AT LEAST ONE DEPENDENT CHILD, WHILST THE FIRST SUBPARAGRAPH OF ARTICLE 2 ( 2 ) OF ANNEX VII TO THE STAFF REGULATIONS LAYS DOWN THAT INTER ALIOS A LEGITIMATE CHILD WHO IS ACTUALLY BEING MAINTAINED BY THE OFFICIAL IS REGARDED AS A DEPENDENT CHILD . ARTICLE 2 ( 6 ) OF ANNEX VII TO THE STAFF REGULATIONS WHICH LAYS DOWN THAT NOT MORE THAN ONE DEPENDENT-CHILD ALLOWANCE SHALL BE PAID IN RESPECT OF ANY ONE CHILD, EVEN WHERE THE PARENTS ARE IN THE SERVICE OF TWO DIFFERENT INSTITUTIONS OF THE COMMUNITIES, IS NOT IN ANY WAY CONNECTED WITH THE CONCEPT OF A DEPENDENT CHILD OR THE CALCULATION OF TAXABLE REMUNERATION .
8 THE COMMISSION, FOR ITS PART, SUBMITS THAT THE TAX ABATEMENT IS IN REALITY AN ALLOWANCE FOR A DEPENDENT CHILD SUPPLEMENTAL TO THAT PROVIDED FOR BY ARTICLE 67 ( 1 ) OF THE STAFF REGULATIONS . THIS ABATEMENT, WHICH TECHNICALLY IS GRANTED TO THE OFFICIAL IN RECEIPT OF THE REMUNERATION, OUGHT IN FACT TO BENEFIT THE DEPENDENT CHILD . IT NECESSARILY FOLLOWS FROM THE NATURE AND THE FUNCTION OF THE ABATEMENT THAT IT CAN BE ALLOWED ONLY ONCE IN RESPECT OF EACH DEPENDENT CHILD EVEN IF BOTH HIS PARENTS ARE IN THE SERVICE OF THE EUROPEAN COMMUNITIES .
9 THE APPLICANTS IN A SECOND SUBMISSION ASSERT THAT THE COMMISSION IS IN BREACH OF CERTAIN LEGAL PRINCIPLES AND RULES, IN PARTICULAR OF THE PRINCIPLES OF EQUALITY, DISTRIBUTIVE JUSTICE AND EQUITY . THE COMMISSION SYSTEMATICALLY ALLOWS THE ADDITIONAL ABATEMENT IN THE CASE OF AN OFFICIAL WHO HAS AT LEAST ONE DEPENDENT CHILD AND WHOSE SPOUSE WORKS OUTSIDE THE COMMUNITY INSTITUTIONS, THAT IS TO SAY EVEN IF THAT SPOUSE ALSO RECEIVES DEPENDENT-CHILD ALLOWANCES WHICH ARE DEDUCTED FROM THOSE GRANTED TO THE OFFICIAL AND WHICH MAY EVEN REDUCE THEM TO ZERO, AND WITHOUT TAKING INTO ACCOUNT THE TAX ABATEMENTS WHICH THE SPOUSE IS ALLOWED ALSO IN RESPECT OF THE DEPENDENT CHILD UNDER HIS OR HER NATIONAL TAX RULES .
10 THEREFORE NOT TO ALLOW THIS ABATEMENT IN THE CASE OF AN OFFICIAL WHO HAS AT LEAST ONE DEPENDENT CHILD BUT WHOSE SPOUSE IS ALSO AN OFFICIAL AND WHERE IT IS THE LATTER SPOUSE WHO, BECAUSE OF THE RULE AGAINST OVERLAPPING OF ARTICLE 2 ( 6 ) OF ANNEX VII TO THE STAFF REGULATIONS, RECEIVES THE DEPENDENT-CHILD ALLOWANCE, WOULD BE TO DISREGARD THE PRINCIPLES OF EQUAL TREATMENT, EQUITY AND DISTRIBUTIVE JUSTICE .
11 IN FACT THE CONSEQUENCES OF THE CONTESTED PRACTICE ARE THAT, ALL OTHER THINGS BEING MOREOVER EQUAL, TWO SALARIES ARE TAXED DIFFERENTLY SIMPLY BECAUSE ONE INCLUDES THE PAYMENT IN RESPECT OF THE DEPENDENT CHILD AND THE OTHER DOES NOT, AND THAT ONE OFFICIAL, MERELY BECAUSE HIS OR HER SPOUSE IS ALSO AN OFFICIAL, PAYS MUCH MORE TAX THAN A COLLEAGUE IN RECEIPT OF THE SAME REMUNERATION AND BEING IN THE SAME CIRCUMSTANCES AS TO DEPENDANTS AS THAT OFFICIAL BUT WHOSE SPOUSE WORKS OUTSIDE THE COMMUNITY INSTITUTIONS .
12 THE COMMISSION REPLIES THAT IT IS NOT A QUESTION IN THIS CASE OF COMPARING THE APPLICANTS '
SITUATION WITH THAT OF AN IMAGINARY OFFICIAL IN A COMPARABLE SITUATION BUT WHOSE SPOUSE WORKS OUTSIDE THE COMMUNITY INSTITUTIONS . THE REQUIREMENT OF EQUAL TREATMENT IS MET AS SOON AS COMPLIANCE THEREWITH IS ENSURED IN THE RULES ADOPTED BY THE COMMUNITY LEGISLATURE, WITHOUT ITS BEING NECESSARY OR MOREOVER POSSIBLE TO TAKE INTO CONSIDERATION FACTORS OUTSIDE
THESE RULES SUCH AS THE PLACE WHERE THE OFFICIAL SPENDS HIS REMUNERATION OR THE NATIONAL TAX RULES GOVERNING THE SALARY OF THIS OFFICIAL ' S SPOUSE .
13 THE APPLICANTS CRITICIZE THE COMMISSION ' S ARGUMENT BY STRESSING THAT, AS FAR AS CONCERNS THE DEPENDENT-CHILD ALLOWANCE, THE COMMUNITY RULES IMPOSE THE OBLIGATION ON OFFICIALS TO DECLARE ALLOWANCES OF THE SAME KIND PAID ELSEWHERE, SUCH ALLOWANCES BEING DEDUCTED FROM THOSE PAID PURSUANT TO ARTICLES 1, 2 AND 3 OF ANNEX VII TO THE STAFF REGULATIONS . ON THE OTHER HAND, THERE IS NO SUCH RULE WITH REGARD TO THE TAX ABATEMENT WHICH THE SPOUSE OF AN OFFICIAL IS ALLOWED ELSEWHERE AND CONSEQUENTLY THE TAX ABATEMENT WHICH THE SPOUSE OF AN OFFICIAL WORKING OUTSIDE THE COMMUNITY INSTITUTIONS IS ALLOWED IS NOT DEDUCTED FROM THAT OF THE OFFICIAL . THIS TREATMENT IS DISCRIMINATORY AND THEREFORE ILLEGAL .
14 THE COMMISSION DOES NOT ACCEPT THE APPLICANTS '
ARGUMENT . THE DEPENDENT-CHILD ALLOWANCE IS GRANTED EACH MONTH JUST LIKE THE FAMILY ALLOWANCES GRANTED IN THE DIFFERENT MEMBER STATES AND THE APPLICATION OF THE COMMUNITY RULE AGAINST OVERLAPPING DOES NOT ENCOUNTER ANY PRACTICAL DIFFICULTIES . ON THE OTHER HAND, THE COMMUNITY TAX ABATEMENT IS ALLOWED EACH MONTH, ALTHOUGH THE TAX ABATEMENT IN RESPECT OF A DEPENDENT CHILD IS CALCULATED IN THE MEMBER STATES ON AN ANNUAL BASIS . FURTHERMORE, SINCE THE TAX ABATEMENT ALLOWED BY THE MEMBER STATES IS CALCULATED IN ACCORDANCE WITH THE VARIOUS NATIONAL INCOME-TAX RULES, IT IS IMPOSSIBLE FOR THE COMMUNITY ADMINISTRATION TO CALCULATE ITS EFFECT FOR TAX PURPOSES ON THE TAXABLE INCOMES .
15 CONSIDERATION OF THE SUBMISSIONS PUT FORWARD BY THE APPLICANTS LEADS TO THEIR REJECTION . ALTHOUGH IT IS TRUE THAT THE APPLICABLE PROVISIONS DO NOT EXPRESSLY PRECLUDE A HUSBAND AND WIFE WHO ARE BOTH OFFICIALS OF THE COMMUNITIES FROM BEING ALLOWED THE TAX ABATEMENT, SUCH AN EXCLUSION IS, HOWEVER, IN ACCORDANCE WITH THE AIM AND SCHEME OF THE SYSTEM . THE TAX ABATEMENT FOR A DEPENDENT CHILD IS JUSTIFIED ONLY IF IT IS ALLOWED FOR SOCIAL REASONS CONNECTED WITH THE EXISTENCE OF THE CHILD AND THE COST OF MAINTAINING HIM . ARTICLE 3 ( 3 ) OF REGULATION NO 260/68 PROVIDES THAT THE DEPENDENT-CHILD ALLOWANCE SHALL BE DEDUCTED FROM THE BASIC TAXABLE AMOUNT FOR THE PURPOSE OF CALCULATING THE TAX . THE SECOND SUBPARAGRAPH OF ARTICLE 4 ( 2 ), WHICH PROVIDES THAT AN ' ' ADDITIONAL ' '
ABATEMENT EQUIVALENT TO TWICE THE AMOUNT OF THE ALLOWANCE FOR
A DEPENDENT CHILD SHALL BE MADE FOR EACH DEPENDENT CHILD, MUST BE READ IN THIS CONTEXT .
16 IT IS NOT DISPUTED THAT PURSUANT TO PARAGRAPH ( 6 ) OF ARTICLE 2 OF ANNEX VII TO THE STAFF REGULATIONS NOT MORE THAN ONE DEPENDENT-CHILD ALLOWANCE SHALL BE PAID IN RESPECT OF ANY ONE DEPENDENT CHILD, EVEN WHERE THE PARENTS ARE IN THE SERVICE OF TWO DIFFERENT INSTITUTIONS OF THE COMMUNITIES . ARTICLE 2 ( 2 ) THEREOF PROVIDES THAT ' ' DEPENDENT CHILD ' '
MEANS THE CHILD OF AN OFFICIAL, OR OF HIS SPOUSE, WHO IS ACTUALLY BEING MAINTAINED BY THE OFFICIAL . IT CANNOT BE THOUGHT THAT A CHILD MAY ACTUALLY BE MAINTAINED AT THE SAME TIME BY EACH OF HIS PARENTS . UNDER THESE CIRCUMSTANCES, IF THE TWO PARENTS ARE OFFICIALS, THE INSTITUTIONS APPLY BY ANALOGY THE PROVISIONS OF ARTICLE 1 ( 4 ) OF ANNEX VII, WHICH PROVIDES THAT, IN CASES WHERE, UNDER THE PROVISIONS OF THE SAID ARTICLE 1, A HUSBAND AND WIFE EMPLOYED IN THE SERVICE OF THE COMMUNITIES ARE BOTH ENTITLED TO THE HOUSEHOLD ALLOWANCE, THIS SHALL BE PAYABLE ONLY TO THE PERSON WHOSE BASIC SALARY IS THE HIGHER . IT WAS BY THE APPLICATION BY ANALOGY OF THIS PROVISION THAT AS FROM THE DATE WHEN MRS SORASIO-ALLO WAS PROMOTED, THE DEPENDENT-CHILD ALLOWANCE WAS GRANTED THENCEFORTH TO HER AND NOT TO HER HUSBAND MR ALLO .
17 THE COMMISSION HAS MAINTAINED WITH GOOD REASON THAT FOR THE PURPOSE OF APPLYING THE PROVISIONS OF THE SECOND SUBPARAGRAPH OF ARTICLE 3 ( 4 ) OF REGULATION NO 260/68 A CHILD CANNOT BE DEEMED TO BE ACTUALLY MAINTAINED BY EACH OF HIS PARENTS INDIVIDUALLY, SO THAT, IF NOT MORE THAN ONE DEPENDENT-CHILD ALLOWANCE IS TO BE PAID IN RESPECT OF HIM WITHIN THE MEANING OF ANNEX VII TO THE STAFF REGULATIONS AND OF ARTICLE 3 ( 3 ) OF REGULATION NO 260/68, AN ' ' ADDITIONAL ' '
ABATEMENT WITHIN THE MEANING OF THE SAID SECOND SUBPARAGRAPH CANNOT BE ALLOWED IN RESPECT OF HIM EITHER .
18 AS FAR AS CONCERNS THE ALLEGED BREACH OF THE PRINCIPLE OF EQUALITY THE TAX SYSTEM OF THE COMMUNITIES IS AN INDEPENDENT SYSTEM WHICH IS APPLIED IRRESPECTIVE OF THE NATIONAL SYSTEMS, AND THE COMMISSION IS RIGHT TO MAINTAIN THAT THE HYPOTHETICAL SITUATIONS PUT FORWARD BY THE APPLICANTS ARE NOT COMPARABLE . THE PRINCIPLE OF EQUALITY DOES NOT REQUIRE ACCOUNT TO BE TAKEN OF POSSIBLE INEQUALITIES WHICH MAY BECOME APPARENT BECAUSE THE COMMUNITY AND NATIONAL SYSTEMS OVERLAP .
19 IT FOLLOWS THAT THE APPLICATIONS ARE UNFOUNDED AND MUST BE DISMISSED .
Decision on costs
20 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . AS THE APPLICANTS HAVE FAILED IN THEIR SUBMISSIONS THEY MUST BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS BY OFFICIALS AND OTHER SERVANTS OF THE COMMUNITIES, INSTITUTIONS ARE TO BEAR THEIR OWN COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATIONS ;
2 . ORDERS THE PARTIES TO PAY THEIR OWN COSTS .