61978CJ0164_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 164/78
FRANCIS WOEHRLING, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT 39 BOSLAAN, OVERIJSE, REPRESENTED AND ASSISTED BY GEORGES VANDERSANDEN, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT, 34 B IV RUE PHILIPPE II,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ALAIN VAN SOLINGE, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF THE IMPLIED DECISION OF THE COMMISSION REJECTING THE APPLICANT ' S REQUEST FOR THE MAXIMUM EDUCATION ALLOWANCE IN RESPECT OF HIS SON TO BE DOUBLED,
Grounds
1THIS APPLICATION, WHICH WAS LODGED ON 31 JULY 1978, SEEKS THE ANNULMENT OF THE IMPLIED DECISION OF THE COMMISSION REJECTING THE APPLICANT ' S REQUEST ON THE BASIS OF THE FIRST INDENT OF THE THIRD PARAGRAPH OF ARTICLE 3 OF ANNEX VII TO THE STAFF REGULATIONS FOR THE MAXIMUM EDUCATION ALLOWANCE TO BE DOUBLED IN RESPECT OF HIS SON .
2BY A LETTER DATED 19 JULY 1977 THE APPLICANT REQUESTED THE HEAD OF THE INDIVIDUAL RIGHTS AND PRIVILEGES DIVISION TO ALLOW THE EDUCATION ALLOWANCE TO BE DOUBLED SO AS TO COVER THE ADDITIONAL EXPENSES INCURRED AS A RESULT OF THE FACT THAT FOR IMPERATIVE EDUCATIONAL REASONS HE WAS OBLIGED TO WITHDRAW HIS SON FROM THE EUROPEAN SCHOOL WHERE HE WAS ENROLLED AND TO PLACE HIM AT ANOTHER EDUCATIONAL ESTABLISHMENT BETTER SUITED TO HIS SPECIAL EDUCATIONAL NEEDS .
3ON 11 OCTOBER 1977 THE REQUEST WAS REJECTED ON THE GROUND THAT THE CONDITIONS LAID DOWN IN THE FIRST INDENT OF THE THIRD PARAGRAPH OF ARTICLE 3 OF ANNEX VII TO THE STAFF REGULATIONS WERE NOT SATISFIED, SINCE THE APPLICANT ' S PLACE OF EMPLOYMENT ( BRUSSELS ) WAS NOT AT LEAST 50 KM FROM EITHER A EUROPEAN SCHOOL OR FROM THE ESTABLISHMENT ATTENDED BY THE CHILD .
4THE APPLICANT LODGED THIS APPLICATION AGAINST THE IMPLIED DECISION OF REJECTION RESULTING FROM THE FAILURE OF THE COMMISSION TO REPLY WITHIN THE PERIOD LAID DOWN BY THE STAFF REGULATIONS TO THE COMPLAINT SUBMITTED BY THE APPLICANT UNDER ARTICLE 90 ( 2 ) ON 6 JANUARY 1978 .
5IN SUPPORT OF HIS APPLICATION THE APPLICANT PUTS FORWARD TWO SUBMISSIONS RELATING FIRST TO THE BREACH BY THE COMMISSION OF THE ' ' GENERAL PRINCIPLE OF GOOD MANAGEMENT AND SOUND ADMINISTRATION ' '
AND SECONDLY TO THE BREACH OF THE PRINCIPLE OF NON-DISCRIMINATION .
6THE APPLICANT MAINTAINS FIRST THAT THE COMMISSION BREACHED ' ' THE GENERAL PRINCIPLE OF GOOD MANAGEMENT AND SOUND ADMINISTRATION ' '
BY FAILING TO INTERPRET THE CONTESTED PROVISION OF THE STAFF REGULATIONS IN THE MANNER MOST FAVOURABLE TO THE PERSON CONCERNED, THAT IS, THE APPLICANT . HE MAINTAINS THAT IT WAS POSSIBLE TO INTERPRET THE PROVISION IN QUESTION TO MEAN THAT THE CONDITION RELATING TO DISTANCE WHICH IT CONTAINS WOULD BE RELEVANT ONLY IF THE CHILD ATTENDED AN EDUCATIONAL ESTABLISHMENT OTHER THAN A EUROPEAN SCHOOL FOR REASONS WHICH WERE INDEPENDENT OF HIS PSYCHOLOGICAL AND EDUCATIONAL STATE . AS IN THIS INSTANCE IT IS NOT DISPUTED THAT THE DECISION TO ENROL THE APPLICANT ' S SON AT AN EDUCATIONAL ESTABLISHMENT OTHER THAN A EUROPEAN SCHOOL IS BASED UPON ' ' IMPERATIVE EDUCATIONAL REASONS ' '
THE APPLICANT MAINTAINS THAT BY REFUSING TO COMPLY WITH HIS REQUEST THE COMMISSION DID NOT MAKE A REASONABLE USE OF ITS DISCRETION .
7SECONDLY, THE APPLICANT MAINTAINS THAT THE INTERPRETATION OF THE PROVISION IN DISPUTE GIVEN BY THE COMMISSION WOULD LEAD TO DISCRIMINATION BETWEEN CHILDREN INTER ALIA ACCORDING TO WHETHER THE EDUCATIONAL ESTABLISHMENT SELECTED WAS OR WAS NOT SITUATED MORE THAN 50 KM FROM THE OFFICIAL ' S PLACE OF EMPLOYMENT .
8THE VERSION OF THE FIRST PART OF THE THIRD PARAGRAPH OF ARTICLE 3 OF ANNEX VII TO THE STAFF REGULATIONS IN FORCE AT THE TIME OF THE EVENTS WHICH FORM THE SUBJECT OF THIS APPLICATION WAS TO THE EFFECT THAT THE MAXIMUM AMOUNT OF THE EDUCATION ALLOWANCE FOR EACH DEPENDENT CHILD IN REGULAR FULL-TIME ATTENDANCE AT AN EDUCATIONAL ESTABLISHMENT SHOULD BE DOUBLED FOR :
' ' AN OFFICIAL WHOSE PLACE OF EMPLOYMENT IS AT LEAST 50 KM FROM A EUROPEAN SCHOOL OR AN EDUCATIONAL ESTABLISHMENT WORKING IN HIS LANGUAGE, PROVIDED THAT THE CHILD ACTUALLY ATTENDS AN EDUCATIONAL ESTABLISHMENT AT LEAST 50 KM FROM THE PLACE OF EMPLOYMENT . ' '
9IT IS CLEAR FROM THE WORDING OF THAT PROVISION THAT THE DOUBLING OF THE MAXIMUM EDUCATION ALLOWANCE IS SUBJECT TO THE CONDITION THAT THE EDUCATIONAL ESTABLISHMENT ATTENDED BY THE CHILD SHALL BE AT LEAST 50 KM FROM THE PLACE OF EMPLOYMENT . THE APPLICANT ' S ARGUMENT THAT THE DEFENDANT IS BOUND TO AWARD DOUBLE THE MAXIMUM ALLOWANCE IN A CASE IN WHICH THE CONDITION RELATING TO DISTANCE IS NOT SATISFIED IS INCOMPATIBLE WITH THE AIM OF THE PROVISION IN QUESTION, WHICH IS TO LIGHTEN THE ADDITIONAL BURDENS NECESSARILY INCURRED BY AN OFFICIAL AS A RESULT OF THAT DISTANCE .
10IN FINDING THAT THE APPLICANT DID NOT SATISFY THE CONDITIONS LAID DOWN IN ORDER TO CLAIM THE BENEFIT OF THE PROVISION IN DISPUTE THE COMMISSION DID NOT ACT IN A MANNER WHICH WAS OPEN TO CRITICISM .
11THE APPLICATION MUST, THEREFORE, BE DISMISSED .
Decision on costs
COSTS
12UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
13HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS SHALL 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 .