Keywords

Summary



Keywords

1 Officials - Actions - Defendant - Action brought by the ex-spouse of a retired Parliament official - Prior submission by the person concerned to the Commission of a question relating to the application of the rules on sickness insurance for Community officials - Conduct of the Commission creating uncertainty in the person concerned as to the competent institution - Admissibility of the application

(Staff Regulations, Arts 90 and 91)

2 Officials - Actions - Prior administrative complaint - Same subject-matter and heads of claim - Pleas and arguments not appearing in the complaint but closely linked thereto - Admissible

(Staff Regulations, Arts 90 and 91)

3 Officials - Duty of the administration to have regard to officials' welfare - Limits - Interpretation of a provision of the Staff Regulations running counter to its wording - Inadmissible

4 Officials - Social security - Sickness insurance - Ex-spouse, not in active employment, of a retired Community official - Transfer of the residence of the person concerned to her country of origin - Benefit of a national sickness insurance scheme of the Member State of origin on account of the application of the rules on freedom of movement for persons - Precluded - Application of the provisions of the Staff Regulations and the national legislation of the country of origin

(EC Treaty, Art. 8a; Staff Regulations, Art. 72(1); Council Directives 90/364 and 90/365)

5 Officials - Social security - Sickness insurance - Former members of the institutions - Entitlement to benefits - Conditions - Rules different from those applicable to officials - Equal treatment - Infringement - None

(Council Regulations No 422/67, No 5/67, Art. 11, and No 2290/77, Art. 12, as amended by Regulation No 2426/91)

6 Officials - Social security - Sickness insurance - Social security right of a public nature - Persons covered thereby - To be defined by the Community legislature - Effect on the Common Sickness Insurance Scheme of a decision of a national court declaring an official divorced and splitting pension rights by way of compensation - None

(Staff Regulations, Arts 77, 78, 79, 80, 81 and 81a)

Summary

7 An action for annulment brought by the ex-spouse of a retired official of the Parliament is admissible against an act which was addressed to her by the Commission, following a request made to the appointing authority of that institution, in which the institution did not refer to its lack of competence in the matter, thereby creating uncertainty for the person concerned. If an application brought against an act coming under the Rules on Sickness Insurance for Officials of the European Communities, in respect of which the Commission plays a particularly important part in administering the Common Scheme, were to be declared inadmissible, this would mean that the act would not be amenable to judicial review at all and the applicant would be obliged, in order to exercise her right of access to the courts, to make a fresh request to the Parliament.

8 In staff cases, the form of order sought before the Community judicature must have the same subject-matter as the claims set out in the prior administrative complaint and may contain only heads of claim based on the same matters as those raised in the complaint, even though the former may none the less be developed in the application by pleas and arguments which need not necessarily appear in the complaint but must be closely linked to it.

9 The duty to have regard for the interests of the person concerned cannot cause the administration to give a Community provision an effect which would go against the clear terms of the provision in question.

10 The question of the cover of the ex-spouse of a retired Community official who is not in active employment within the meaning, in particular, of Directives 90/364 and 90/365 by a national sickness insurance scheme in order for her to be able actually to establish her residence in her country of origin cannot be connected with the principle of free movement as enshrined in the Treaty and implemented by secondary legislation. In the absence of harmonization of social security schemes in the Community, she comes only within the scope, on the one hand, of the relevant provisions of the Staff Regulations of Officials, in particular Article 72(1), and on the other hand, of the applicable laws of her country of origin.

The right to freedom of movement in the Community, as provided for in Article 8a of the Treaty, is subject to the limitations and conditions laid down, inter alia, in secondary legislation. It is clear from the provisions of secondary legislation governing the exercise of the right of residence, in particular Directives 90/364 and 90/365, that persons, such as the applicant, who are not in active employment, must have sickness insurance in the host State in order to exercise that right.

It follows that, in the case of persons who are not in active employment, the existence of sickness insurance in the host country is a condition, laid down by Community secondary legislation, to which the exercise of the right to freedom of movement is subject, and not a consequence of that right.

11 There is a breach of the principle of equal treatment where two classes of persons whose factual and legal situations are not essentially different are treated differently or where different situations are treated in an identical manner.

Regulation No 2426/91 does not infringe the principle of equal treatment in so far as, in contradistinction to the treatment given to an ex-wife of a retired Community official, it enables the persons to which it applies to continue to be covered subject to certain conditions, at the end of their term of office, by the Common Sickness Insurance Scheme. Unlike in the case of officials, the link with the Community of the persons covered by that regulation is limited in time as a result of the conditions attaching to their term of office. In the event that, at the end of their term of office, such persons do not engage in any gainful occupation enabling them to be covered by a public sickness insurance scheme, the new wording given by Article 1 of Regulation No 2426/91 to Article 11 of Regulation No 422/67/EEC and Regulation No 5/67/Euratom and Article 12 of Regulation No 2290/77, enables them to continue to be covered by the Common Scheme. That advantage is therefore designed to mitigate the disadvantages suffered by the persons concerned as a result of the interruption of their former professional activities by the duties which they carried out at the Community institutions.

12 Since the benefit of cover under the Common Sickness Insurance Scheme is a social security entitlement of a public nature, the definition of the scope of that scheme is a matter for the Community legislature.

A decision of a court of a Member State given pursuant to national legislation applicable to divorce ordering pension rights to be split by way of compensation has no effect per se on affiliation to any sickness insurance scheme, since it relates only to pension rights.