61979CJ0043_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 43/79
TITO MENCARELLI, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, OF 11 EUROPAWIJK, GEEL, REPRESENTED BY VICTOR BIEL OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID VICTOR BIEL, 18A RUE DES GLACIS,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, ALAIN VAN SOLINGE, 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 PRIMARILY FOR THE ANNULMENT OF THE IMPLIED DECISION REJECTING A COMPLAINT SUBMITTED BY THE APPLICANT ON 28 AUGUST 1978 UNDER ARTICLE 90 OF THE STAFF REGULATIONS OF OFFICIALS CONCERNING HIS ENTITLEMENT TO TWICE THE AMOUNT OF THE EDUCATION ALLOWANCE PROVIDED FOR IN ARTICLE 3 OF ANNEX VII TO THE STAFF REGULATIONS,
Grounds
1
BY AN APPLICATION DATED 15 MARCH 1979 THE APPLICANT, AN OFFICIAL AT THE JOINT RESEARCH CENTRE, GEEL, CLAIMS THE ANNULMENT OF THE IMPLIED DECISION REJECTING A COMPLAINT SUBMITTED BY HIM ON 28 AUGUST 1978 UNDER ARTICLE 90 OF THE STAFF REGULATIONS OF OFFICIALS CONCERNING HIS ENTITLEMENT TO TWICE THE AMOUNT OF THE EDUCATION ALLOWANCE PURSUANT TO ARTICLE 3 OF ANNEX VII TO THE STAFF REGULATIONS .
2
THE APPLICANT ' S DAUGHTER WAS ENROLLED FROM THE SCHOOL YEAR 1977/78 AT THE CENTRE D ' EDUCATION ET DE CULTURE DE L ' INSTITUT DE L ' ENFANT JESUS, BRUSSELS, SINCE THE CLASS ADVISER AT THE EUROPEAN SCHOOL AT MOL WHICH SHE PREVIOUSLY ATTENDED HAD RECOMMENDED THAT SHE SHOULD FOLLOW ANOTHER TYPE OF TEACHING BETTER SUITED TO HER ABILITIES . THE COSTS OF LODGING AT THE INSTITUT AMOUNTED TO BFR 25 000 PER ANNUM AND THE BOARDING COSTS TO BFR 3 500 PER MONTH .
3
THE APPLICANT WAS NOTIFIED BY THE DIRECTORATE GENERAL OF PERSONNEL OF THE COMMISSION IN A LETTER OF 21 APRIL 1978 THAT THE FILE WHICH HE HAD SUBMITTED WOULD BE TRANSMITTED TO THE RELEVANT DEPARTMENT WITH A RECOMMENDATION FOR PAYMENT OF THE DOUBLE EDUCATION ALLOWANCE . IT WAS NEVERTHELESS MADE CLEAR THAT IT WAS A CONDITION OF GRANTING THE ALLOWANCE THAT HE SHOULD SUBMIT THE NECESSARY SUPPORTING DOCUMENTS .
4
BY A NOTE OF 20 JUNE 1978 THE ADMINISTRATION OF THE CENTRE AT GEEL NOTIFIED THE APPLICANT THAT THE COSTS OF BOARD AND LODGING FOR HIS DAUGHTER COULD NOT BE REIMBURSED BUT THAT, SINCE THE SCHOOL WHICH SHE ATTENDED WAS CLOSED AT THE WEEKEND HER TRANSPORT EXPENSES ( BFR 650 PER MONTH ) WOULD BE REIMBURSED . TWO ALTERNATIVES WERE PUT BEFORE THE APPLICANT : EITHER PAYMENT OF 50 % OF THE SINGLE ALLOWANCE SUPPLEMENTED BY JUSTIFIABLE TRANSPORT COSTS UP TO BFR 650 PER MONTH OR CONTINUED PAYMENT OF THE SINGLE ALLOWANCE .
5
THE COMMISSION FAILED TO REPLY TO THE COMPLAINT WHICH THE APPLICANT LODGED UNDER ARTICLE 90 OF THE STAFF REGULATIONS . SUCH FAILURE TO REPLY MUST THUS BE CONSIDERED AS AN IMPLIED REJECTION BY THE COMMISSION OF THE APPLICANT ' S COMPLAINT .
6
ARTICLE 3 OF ANNEX VII TO THE STAFF REGULATIONS AS AMENDED BY ARTICLE 1 OF COUNCIL REGULATION NO 3084/78 OF 21 DECEMBER 1978 ( OFFICIAL JOURNAL L 369, P . 1 ), PROVIDES THAT :
' ' AN OFFICIAL SHALL RECEIVE AN EDUCATION ALLOWANCE EQUAL TO THE ACTUAL EDUCATION COSTS INCURRED BY HIM UP TO A MAXIMUM OF BFR 3 302 PER MONTH FOR EACH DEPENDENT CHILD . . . WHO IS IN REGULAR FULL-TIME ATTENDANCE AT AN EDUCATIONAL ESTABLISHMENT .
. . .
THE MAXIMUM PRESCRIBED IN THE FIRST PARAGRAPH SHALL BE DOUBLED FOR :
- AN OFFICIAL WHOSE PLACE OF EMPLOYMENT IS AT LEAST 50 KM FROM, EITHER
- A EUROPEAN SCHOOL, OR
- AN EDUCATIONAL ESTABLISHMENT WORKING IN HIS LANGUAGE WHICH THE CHILD ATTENDS FOR IMPERATIVE EDUCATIONAL REASONS DULY SUPPORTED BY EVIDENCE ' ' .
7
PURSUANT TO ARTICLE 3 OF THE GENERAL IMPLEMENTING PROVISIONS FOR GRANTING THE EDUCATION ALLOWANCE ( ADMINISTRATIVE NOTICES NO 153 OF 2 MAY 1977 ) THE EDUCATION ALLOWANCE, WHETHER OR NOT DOUBLED AS AFORESAID, COVERS :
' ' ( A ) REGISTRATION AND EXAMINATION FEES AT EDUCATIONAL ESTABLISHMENTS ;
( B)TRANSPORT COSTS INCURRED IN THE USE OF A PUBLIC MEANS OF TRANSPORT OR OF SPECIAL TRANSPORT SERVING THE SCHOOL ;
( C)OBLIGATORY EXPENSES SHOWN FOR THE PURCHASE OF BOOKS, SCHOOL EQUIPMENT, SPORTS OUTFIT, SCHOOL INSURANCE AND MEDICAL EXPENSES COVER AND OTHER EXPENSES CONNECTED WITH FOLLOWING THE CURRICULUM OF THE EDUCATIONAL ESTABLISHMENT ATTENDED ;
( D)COSTS INCURRED BY CHILDREN PARTICIPATING IN COURSES AT WINTER SPORTS, COASTAL OR COUNTRYSIDE RESORTS, PROVIDED SUCH COURSES ARE ORGANIZED AS PART OF THE CURRICULUM BY THE EDUCATIONAL ESTABLISHMENT OUTSIDE SCHOOL HOLIDAYS AND THE CHILD IS ACCOMMODATED AWAY FROM HOME FOR THE DURATION OF SUCH COURSES ; THE PROVISIONS OF ( C ) ABOVE SHALL NOT APPLY TO THE COSTS SPECIFIED IN THIS SUBPARAGRAPH . ' '
8
ARTICLE 4 OF THE SAME GENERAL PROVISIONS PROVIDES THAT :
( A ) IN GENERAL, NECESSARY EDUCATIONAL COSTS ARE REIMBURSED UP TO THE LIMIT OF A STANDARD MONTHLY AMOUNT CORRESPONDING TO 36% OR 50% OF THE SINGLE AMOUNT OF THE EDUCATION ALLOWANCE, DEPENDING ON WHETHER THE DEPENDENT CHILD IS OVER OR UNDER 11 YEARS OF AGE ; THE BALANCE OF THE ALLOWANCE IS EMPLOYED TO REIMBURSE ACTUAL EDUCATION COSTS ON PRESENTATION OF SUPPORTING DOCUMENTS ;
( B)WHERE THE CHILD ATTENDS AN EDUCATIONAL ESTABLISHMENT AWAY FROM THE FAMILY HOME AND IS ACCOMMODATED OUTSIDE THE FAMILY HOME THE OFFICIAL ON WHOM THE CHILD IS DEPENDENT RECEIVES AN EDUCATION ALLOWANCE EQUAL TO THE AMOUNT STATED IN THE FIRST PARAGRAPH OF ARTICLE 3 OF ANNEX VII WITHOUT BEING REQUIRED TO PRESENT ANY SUPPORTING DOCUMENTS .
9
THE APPLICANT UNDERSTOOD THE NOTE OF 20 JUNE 1978 AS REFUSING HIM BOTH THE DOUBLE AMOUNT AND THE REIMBURSEMENT OF COSTS WHICH, IN HIS VIEW, WERE THE UNAVOIDABLE CONSEQUENCE OF THE EDUCATION OF HIS DAUGHTER IN BRUSSELS, THAT IS THE COSTS OF BOARD AND LODGING . IN FACT THE DISPUTE ULTIMATELY TURNS NOT ON THE RIGHT TO ' ' TWICE THE AMOUNT ' '
OF THE EDUCATION ALLOWANCE, GRANTED TO THE APPLICANT UP TO THE LIMIT OF THE REIMBURSEMENT OF ' ' ACTUAL EDUCATION COSTS ' '
PROVIDED FOR IN ARTICLE 3 OF THE ABOVE-MENTIONED GENERAL IMPLEMENTING PROVISIONS UP TO AN AMOUNT EQUAL TO TWICE BFR 3 302, BUT ON THE NATURE OF THE COSTS WHICH MAY BE REIMBURSED UP TO ' ' TWICE THAT AMOUNT ' ' .
10
THE APPLICANT CLAIMS THAT THE COST OF BOARD AND LODGING INCURRED IN RESPECT OF HIS DAUGHTER MAY BE REIMBURSED SINCE IT IS NOT EXCLUDED EITHER BY ARTICLE 3 OF ANNEX VII TO THE STAFF REGULATIONS OR BY ARTICLE 3 OF THE GENERAL IMPLEMENTING PROVISIONS . HE STATES THAT IT IS COVERED BY ARTICLE 3 ( C ) UNDER THE REFERENCE TO ' ' OTHER EXPENSES CONNECTED WITH FOLLOWING THE CURRICULUM ' '
AND ARISES BECAUSE THE CHILD IS ACCOMMODATED AWAY FROM THE FAMILY HOME .
11
THE COMMISSION DOES NOT DISPUTE THAT, FOR IMPERATIVE REASONS, THE SECOND PARAGRAPH OF ARTICLE 3 OF ANNEX VII TO THE STAFF REGULATIONS APPLIES TO THIS CASE .
12 NEVERTHELESS THE COMMISSION CONSIDERS THAT THE LIST OF EXPENSES COVERED BY THE ALLOWANCE AND CONTAINED IN ARTICLE 3 OF THE GENERAL IMPLEMENTING PROVISIONS IS EXHAUSTIVE AND DOES NOT INCLUDE THOSE WHICH FORM THE SUBJECT-MATTER OF THE PROCEEDINGS . BOARD AND LODGING COSTS DO NOT, IT CLAIMS, CONSTITUTE EXPENSES ' ' CONNECTED WITH FOLLOWING THE CURRICULUM ' ', SUCH AS EXPENSES INCURRED FOR ' ' THE PURCHASE OF BOOKS, SCHOOL EQUIPMENT, SPORTS OUTFIT . . . ' ' .
13
IT IS IMPOSSIBLE TO UPHOLD IN ITS ENTIRETY THE FINAL ARGUMENT OF THE COMMISSION TO THE EFFECT THAT THE EXPENSES OF BOARD AND LODGING ARE ALREADY COVERED BY THE MONTHLY DEPENDENT CHILD ALLOWANCE AND BY THE ENTITLEMENT TO THE SINGLE EDUCATION ALLOWANCE WITHOUT THE SUBMISSION OF SUPPORTING DOCUMENTS ESTABLISHING THAT EDUCATION COSTS UP TO THAT AMOUNT HAVE ACTUALLY BEEN INCURRED .
14
IN FACT WHILST IT IS TRUE THAT THE BOARDING COSTS MUST BE PAID BY THE HEAD OF THE FAMILY WHETHER A CHILD TAKES HIS MEALS AT THE EDUCATIONAL ESTABLISHMENT WHICH HE ATTENDS OR AT HOME IT MUST ALSO BE RECOGNIZED THAT THE COST OF LODGING AT SUCH AN ESTABLISHMENT IS AN ADDITION TO THE EXPENSES NORMALLY BORNE BY THE HEAD OF HOUSEHOLD AND MUST ACCORDINGLY BE REGARDED AS CONSTITUTING EXPENSES WHICH JUSTIFY THE GRANT OF THE EDUCATION ALLOWANCE UP TO ' ' TWICE THE AMOUNT ' '
ON PRESENTATION OF SUPPORTING DOCUMENTS .
15 IN THIS CASE THE APPLICANT MUST ACCORDINGLY BE REIMBURSED THE ' ' ACTUAL EDUCATION COSTS ' '
INCLUDING THE COST OF ACCOMMODATION FOR HIS DAUGHTER AT THE INSTITUT DE L ' ENFANT JESUS, BEING BFR 25 000 PER ANNUM UP TO AN AMOUNT EQUAL TO TWICE BFR 3 302 PER MONTH .
Decision on costs
COSTS
16
PURSUANT TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . SINCE THE DEFENDANT HAS BEEN UNSUCCESSFUL IT MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . ORDERS THE REIMBURSEMENT TO THE APPLICANT OF THE ' ' ACTUAL EDUCATION COSTS ' '
INCLUDING THE COST OF ACCOMMODATION FOR HIS DAUGHTER AT THE INSTITUT DE L ' ENFANT JESUS UP TO AN AMOUNT EQUAL TO TWICE THE SUM PROVIDED FOR IN ARTICLE 3 OF ANNEX VII TO THE STAFF REGULATIONS OF OFFICIALS ;
2 . ORDERS THE COMMISSION TO PAY THE COSTS .