61979CJ0806_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 806/79
FRANCOIS GERIN, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, OF OVERIJSE, BELGIUM, REPRESENTED BY A . PEETERS OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF FERNAND ENTRINGER, 2 RUE DU PALAIS DE JUSTICE,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, J . GRIESMAR, ACTING AS AGENT, 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 FOR THE ANNULMENT OF THE COMMISSION ' S DECISION OF 27 AUGUST 1979 REJECTING THE APPLICANT ' S COMPLAINT AGAINST THE DECISION OF THE COMMISSION OF 20 FEBRUARY 1979 REFUSING TO REFUND TO THE APPLICANT MEDICAL EXPENSES INCURRED IN RESPECT OF HIS SON, WHO IS OVER 26 YEARS OF AGE ; AND, IN CONSEQUENCE, FOR THE REIMBURSEMENT OF THE MEDICAL EXPENSES THUS INCURRED AND ALSO OF THE PREMIUM PAID TO A BELGIAN MUTUAL INSURANCE FUND WHICH THE APPLICANT ' S SON WAS FORCED TO JOIN BECAUSE OF THE COMMISSION ' S REFUSAL TO REFUND THE SAID MEDICAL EXPENSES,
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 23 NOVEMBER 1979, MR GERIN, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, BROUGHT AN ACTION FOR THE ANNULMENT OF THE COMMISSION ' S DECISION OF 27 AUGUST 1979 WHEREBY THE COMMISSION REFUSED TO REFUND HIM MEDICAL EXPENSES INCURRED IN RESPECT OF HIS SON, ON THE GROUND THAT THE DECISION CONTRAVENES ARTICLE 2 ( 2 ) OF ANNEX VII TO THE STAFF REGULATIONS AND ARTICLE 3 OF THE RULES ON SICKNESS INSURANCE FOR OFFICIALS OF THE EUROPEAN COMMUNITIES ( HEREINAFTER REFERRED TO AS ' ' THE RULES ' ' ) ADOPTED IN ACCORDANCE WITH THE PRINCIPLES LAID DOWN IN ARTICLE 72 OF THE STAFF REGULATIONS, AND CONSEQUENTLY FOR A DECLARATION THAT THE APPLICANT IS ENTITLED TO REIMBURSEMENT OF MEDICAL EXPENSES IN THE SUMS OF BF 13 926 AND FF 53.80 AND ALSO TO REIMBURSEMENT OF THE PREMIUM OF BF 2 000 PAID TO A BELGIAN MUTUAL INSURANCE FUND WHICH THE APPLICANT ' S SON WAS FORCED TO JOIN BY REASON OF THE COMMISSION ' S REFUSAL TO REFUND THE SAID MEDICAL EXPENSES BECAUSE OF HIS AGE .
ADMISSIBILITY OF THE APPLICATION
2 THE COMMISSION SUBMITS THAT THE APPLICATION IS INADMISSIBLE BECAUSE THE DECISION OF 27 AUGUST 1979 WHICH IS THE REPLY TO THE APPLICANT ' S COMPLAINT AGAINST THE DECISION OF THE OFFICE RESPONSIBLE FOR SETTLING CLAIMS OF 20 FEBRUARY 1979 IS NOT AN ACT CAPABLE OF ADVERSELY AFFECTING AN OFFICIAL SINCE THE SAID REPLY IS ONLY AN ACT SIMPLY CONFIRMING THE DECISION OF THE SAID OFFICE OF 20 FEBRUARY 1979 . IT ALSO SUBMITS THAT THE FURTHER APPLICATION FOR REIMBURSEMENT OF THE PREMIUM PAID TO A BELGIAN MUTUAL INSURANCE FUND IS
ALSO INADMISSIBLE, BECAUSE IT WAS NOT PRECEDED BY A REQUEST TO THE COMMISSION ON THE BASIS OF ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS OR OF A COMPLAINT WITHIN THE MEANING OF ARTICLE 90 ( 2 ) EITHER ; THE LATTER REQUEST DOES NOT THEREFORE COMPLY WITH THE CONDITIONS PROVIDED FOR IN ARTICLE 91 ( 2 ) OF THE STAFF REGULATIONS .
3 AS FAR AS CONCERNS THE ADMISSIBILITY OF THE APPLICATION FOR ANNULMENT IT IS ADVISABLE TO LOOK FIRST INTO THE QUESTION WHETHER THE FORM SENT BY THE OFFICE RESPONSIBLE FOR SETTLING CLAIMS IS A DECISION ADVERSELY AFFECTING AN OFFICIAL WHICH COULD SIMPLY BE CONFIRMED BY THE COMMISSION ' S DECISION OF 27 AUGUST 1979 .
4 FOR THE INITIAL DECISION TO BE CAPABLE OF BEING DESCRIBED AS AN ACT ADVERSELY AFFECTING AN OFFICIAL WITHIN THE MEANING OF ARTICLE 90 ( 2 ) IT MUST HAVE BEEN SPECIFICALLY ADOPTED BY THE APPOINTING AUTHORITY OR ON ITS BEHALF PURSUANT TO ARTICLE 16 OF THE RULES .
5 HOWEVER, THE UNSIGNED PRINTED FORM OF 20 FEBRUARY 1979, CONTAINING A LACONIC HANDWRITTEN FORM OF WORDS MERELY STATING THAT ' ' ACCORDING TO THE PERSONNEL INDIVIDUAL RECORD SHEET YOUR SON MICHEL GERIN HAS NOT BEEN REGARDED AS A DEPENDENT CHILD SINCE 1 JANUARY 1978 ' ', THAT IS TO SAY WITHOUT THE MEREST STATEMENT OF REASONS, CANNOT BE REGARDED AS AN EXPRESS MANIFESTATION OF AN ADMINISTRATIVE INTENTION WHICH CREATES LEGAL EFFECTS AND IS CAPABLE OF BEING AN ' ' ACT ADVERSELY AFFECTING AN OFFICIAL ' '
WITHIN THE MEANING OF ARTICLE 90 ( 2 ).
6 CONSEQUENTLY THE APPLICATION, WHICH CHALLENGES THE REASONED DECISION OF THE APPOINTING AUTHORITY OF 27 AUGUST 1979 ADVERSELY AFFECTING HIM IS NOT DIRECTED AGAINST A PURELY CONFIRMATORY DECISION . THE APPLICATION IS THEREFORE ADMISSIBLE .
7 THE CLAIM FOR REIMBURSEMENT OF THE PREMIUM OF BF 2 000 PAID TO A BELGIAN MUTUAL INSURANCE FUND IS ONLY THE LOGICAL CONSEQUENCE OF THE COMMISSION ' S REFUSAL TO CONTINUE TO REIMBURSE THE MEDICAL EXPENSES INCURRED IN RESPECT OF THE APPLICANT ' S SON BECAUSE HE WAS OVER 26 YEARS OF AGE . THIS CLAIM IS THEREFORE ADMISSIBLE IN SO FAR AS IT FORMS PART OF THE PRINCIPAL CLAIM .
SUBSTANCE
8 THE APPLICANT, RELYING PRIMARILY ON ARTICLE 3 ( 2 ) OF THE RULES, SUBMITS THAT HE IS ENTITLED TO A REFUND OF THE MEDICAL EXPENSES INCURRED IN RESPECT OF HIS SON WHO IS OVER 26 YEARS OF AGE, BECAUSE THE LATTER IS STILL DEPENDENT ON HIM, THAT THE COMMISSION ITSELF HAS ALREADY ACKNOWLEDGED THAT HIS SON IS A ' ' DEPENDENT CHILD ' '
BY GRANTING HIM THE CORRESPONDING TAX ABATEMENT, AND THAT THE ADOPTION OF THE COMMISSION ' S ARGUMENT WOULD BE TANTAMOUNT TO INSURING AGAINST SICKNESS ONLY THOSE CHILDREN IN RESPECT OF WHOM AN ALLOWANCE HAS BEEN GRANTED, WHEREAS THE PROVISION IN FORCE WHEN THE FACTS OCCURRED PROVIDES ONLY THAT THEY SHOULD BE ' ' DEPENDENT ' '
WITHOUT SPECIFICALLY MENTIONING ANY AGE .
9 IN ORDER TO DEAL WITH THIS LINE OF ARGUMENT THE APPLICABLE PROVISIONS SHOULD BE CONSIDERED .
10 UNDER ARTICLE 72 ( 1 ) OF THE STAFF REGULATIONS :
' ' ( 1 ) AN OFFICIAL, HIS SPOUSE, HIS CHILDREN AND OTHER DEPENDANTS WITHIN THE MEANING OF ARTICLE 2 OF ANNEX VII ARE INSURED AGAINST SICKNESS . . . SUBJECT TO RULES DRAWN UP BY AGREEMENT BETWEEN THE INSTITUTIONS OF THE COMMUNITIES AFTER CONSULTING THE STAFF REGULATIONS COMMITTEE ' ' .
11 AS FAR AS CONCERNS THE CONCEPT OF A DEPENDENT-CHILD ARTICLE 2 OF ANNEX VII PROVIDES AS FOLLOWS :
' ' ( 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 .
( 3)THE ALLOWANCE SHALL BE GRANTED :
( A ) AUTOMATICALLY FOR CHILDREN UNDER 18 YEARS OF AGE ;
( B ) ON APPLICATION, WITH SUPPORTING EVIDENCE, BY THE OFFICIAL FOR CHILDREN BETWEEN 18 AND 26 WHO ARE RECEIVING EDUCATIONAL OR VOCATIONAL TRAINING . ' '
12 ARTICLE 3 ( 2 ) OF THE RULES ADOPTED IN IMPLEMENTATION OF ARTICLE 72 ( 1 ) OF THE STAFF REGULATIONS PROVIDED AT THE TIME THAT THE PERSONS COVERED BY A MEMBER ' S INSURANCE AGAINST SICKNESS WERE TO BE :
' ' DEPENDENT CHILDREN WITHIN THE MEANING OF ARTICLE 2 ( 2 ) OF ANNEX VII TO THE STAFF REGULATIONS ' ' .
13 THE APPLICANT ' S ARGUMENT IS BASED ON THE FACT THAT ARTICLE 3 ( 2 ) OF THE RULES REFERS ONLY TO ARTICLE 2 ( 2 ) OF ANNEX VII, SO THAT ANY CHILD ' ' WHO IS ACTUALLY BEING MAINTAINED BY THE OFFICIAL ' '
WITHOUT ANY AGE-LIMIT IS TO BE REGARDED AS A ' ' DEPENDENT CHILD ' ' .
14 AS THE COMMISSION HAS ARGUED WITH GOOD REASON THIS ARGUMENT CANNOT BE UPHELD .
15 IN FACT THE SYSTEM ESTABLISHED BY THE STAFF REGULATIONS HAS THE SAME CONDITIONS FOR THE GRANT OF THE DEPENDENT-CHILD ALLOWANCE AND OF SICKNESS INSURANCE FOR DEPENDENT CHILDREN . THAT IS THE MEANING OF THE REFERENCE IN ARTICLE 72 TO ARTICLE 2 OF ANNEX VII VIEWED AS A WHOLE . THE RULES, IN SO FAR AS THEY ARE PROVISIONS IMPLEMENTING THE STAFF REGULATIONS, WERE NOT CAPABLE, BY MEANS OF AN INCOMPLETE REFERENCE TO THE SAID ARTICLE 2 OF ANNEX VII, OF ABOLISHING ONE OF THE CONDITIONS LAID DOWN BY THAT ARTICLE, NAMELY THAT APPEARING IN PARAGRAPH ( 3 ), WHICH WAS NOT REFERRED TO IN THE PROVISION IN FORCE WHEN THE FACTS OCCURRED . CONSEQUENTLY THE AGE-LIMIT LAID DOWN BY ARTICLE 2 OF ANNEX VII ALSO APPLIES TO SICKNESS INSURANCE FOR CHILDREN .
16 IT IS THEREFORE APPARENT THAT THE APPLICANT WAS NOT ENTITLED TO CLAIM A REFUND OF THE MEDICAL EXPENSES INCURRED IN RESPECT OF HIS SON AT A TIME WHEN THE LATTER WAS OVER THE AGE OF 26 LAID DOWN IN ARTICLE 2 OF ANNEX VII OR OF THE REIMBURSEMENT OF THE PREMIUM OF BF 2 000 PAID TO A BELGIAN MUTUAL INSURANCE FUND .
Decision on costs
17 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
18 HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS ARE TO BEAR THEIR OWN COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION ;
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .