OPINION OF MR ADVOCATE GENERAL MAYRAS

DELIVERED ON 2 OCTOBER 1980 ( 1 )

Mr President,

Members of the Court,

In the present case I shall have to specify the conditions for the admissibility of staff cases and to define the concept of a dependent child, especially in relation to sickness insurance.

I —

An official who has a legitimate, natural or adopted child, whom he actually maintains has these advantages:

1. He is entitled automatically to a “dependent-child allowance” if the child is under 18 years of age. If the child receives educational or vocational training, this age goes up to 26; this age-limit does not apply if the child is prevented by serious illness or invalidity from providing for his own needs (Article 2 (2), (3) and (5) of Annex VII to the Staff Regulations relating to remuneration and reimbursement of expenses, under Section 1, “Family allowances”);

2. He is entitled to an education allowance in respect of this child if the conditions prescribed by Article 3 of the said Annex VII are fulfilled, this right being extinguished at the latest at the end of the month during which the child attains the age of 26;

3. He qualifies for a tax abatement equal to twice the amount of the allowance for a dependent-child (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);

4. Under the terms of Article 72 (1) of the chapter of the Staff Regulations on social security benefits, “An official, his spouse, his children and other dependants within the meaning of Article 2 of Annex VII are insured against sickness up to 80 % of the expenditure incurred subject to rules drawn up by agreement between the institutions of the Communities after consulting the Staff Regulations Committee”.

The wording of the provisions of these joint rules relating to “Persons covered by members' insurance” has varied from time to time.

As from 1 February 1967 Article 5 of the Rules under the heading “Beneficiaries” read:

“The benefits provided for by these rules shall be awarded to the persons hereinafter mentioned :

(c) the member's dependent children within the meaning of Article 2 of Annex VII to the Staff Regulations (insured) ...”

As from 1 January 1974 and at the time when the facts of this case occurred, Article 3 of the Rules provided under the heading “Persons covered by members' insurance”:

“The persons covered by a member's insurance shall be:

1. ...

2. dependent children within the meaning of Article 2 (2) of Annex VII to the Staff Regulations ...”.

Finally on 1 February 1980 the original version was readopted with retroactive effect to 1 July 1979 and Article 3 (2) [now] reads:

“dependent children within the meaning of Article 2 of Annex VII to the Staff Regulations”.

II —

The applicant has been an official of the Commission of the European Communities since 1967; he is in Grade A 6 and the father of two children, one of whom is his son born on 18 December 1951.

The applicant applied on 15 November 1977, shortly before his son attained the age of 26, for the tax abatement in respect of his dependent child to be extended (there is no copy of his application in the Court file).

On 23 November 1977 the Head of the Individual Rights and Provileges Division informed the applicant in his reply that it was agreed that the applicant should continue to benefit from this tax allowance as from 1 January 1978 and stated that should the applicant cease actually to maintain his son he was under a duty to inform him forthwith and in writing.

Moreover on 15 November 1978 the applicant, in order to justify the tax abatement produced his son's registration certificate dated 7 November 1978 for the courses during the 1978/79 academic year (2 October 1978 to 29 September 1979) at the State University, Liège. The applicant therefore continued to qualify for this tax abatement until 11 July 1979 when he informed the Directorate of Personnel that his son “having been passed fit for military service and called up with the 1979 levy had decided to discontinue his university studies and would no longer be dependent on him from the date when he joined the army”.

The continuance of this grant in respect of children over 26 appears to go back to Circular No 6/65 of 23 March 1968 of the Directorate-General for Personnel and Administration, which “drew the attention of officials to the fact that persons who could claim the dependent-child allowance, in accordance with the Staff Regulations, if the child was not yet over the age-limits provided for by Article 2 (3) of Annex VII to the Staff Regulations might qualify for the dependent-child tax abatement provided for by the provisions of the regulation relating to Community tax (the second paragraph of Article 3 (4) of Regulation No 260/68 on Community tax). Such a tax abatement (equivalent to twice the amount of the dependent-child allowance) is granted upon a reasoned request by the official in respect of a child over 25 years of age who is in receipt of educational or vocational training and is actually maintained by the official”.

If this practice is not a direct issue its existence should nevertheless be noted because in my view' it is to a great extent the origin of the dispute.

It is also important to note that on 21 June 1978 the office in Brussels responsible for settling claims of the joint sickness insurance scheme repaid the applicant the medical expenses incurred on behalf of his son relating to treatment administered on 28 January 1978, that is to say at a time when his son had completed his twenty-sixth year.

Here again this practice may be explained as a concession granted by the administration which continues reimbursement of medical expenses during the period of six months after the child attains the age of 26 with a view to enabling officials' children who continue university education to link up with repayment by national student mutual insurance associations, since the latter (at all events the Belgian association) insist on a six-month qualifying period.

The applicant on 7 February 1979 applied to the office responsible for settling claims in Brussels for repayment of the medical expenses incurred on behalf of his son from April to December 1978.

On 20 February 1979 the bills sent by the applicant were returned to him by the office in question together with a form to the effect that “the costs in the bills enclosed herewith cannot be refunded”. None of the spaces for giving the reason for this refusal was completed, but a note in the handwriting of the “repayments clerk” who signed this form stated: “According to the personnel individual record sheet your son ... has not been regarded as a dependent child since January 1978”.

On the next day, 21 February 1979, the applicant, with reference to the talks which he had had the day before, sent a long memorandum to Division IX B 1 (Sickness Insurance) and asked it to repay forthwith the medical expenses for his son.

On the following day the applicant's son as a precaution registered as a general student member with the Office Régional d'Assurance Maladie-Invalidité de Liège [Regional Sickness and Invalidity Insurance Office, Liège]. It therefore appears that in Belgium, at least at the relevant time, there was no compulsory system of sickness insurance for students.

On 7 March 1979 the Head of Division, in his reply to the applicant, referred him to an official memorandum of August 1975 and pointed out that it was open to him “to ask for his son's membership (of the joint sickness insurance scheme for officials of the European Communities) to be continued for the period of six months following the discontinuance of the dependent-child allowance, provided that he is not in a position to benefit from any other public sickness insurance scheme during the same period”.

On 8 May 1979 the applicant lodged a complaint under Article 90 of the Staff Regulations against the “decision” of “the joint sickness insurance scheme” of 20 February 1979. In fact this complaint consisted of the usual administrative form on which Mr Gerin had merely stated the purpose of his complaint and to which he had annexed a copy of the note from the office responsible for settling claims dated 20 February 1979, of his note of 21 February 1979 for the attention of Division LX B 1 and of the note of the Head of Division of 7 March 1979.

By a decision adopted by means of the written procedure on 26 July 1979 and notified to the applicant on 27 August 1979 by the Commissioner responsible the Commission “confirms that only the member's dependent children under the age of 26 can qualify for sickness insurance under the joint sickness insurance scheme, as a person covered by a member's insurance” and “confirms that the position taken up by the office responsible for settling claims is well founded”, stating the grounds upon which it was based.

The applicant saw the Commissioner responsible on 8 October 1979 in order to express his disagreement with the decision adopted in answer to his complaint and to give him notice of his intention to commence proceedings before 28 November 1979 if he did not receive satisfaction.

On 12 November 1979 he received a written note, signed this time by another Commissioner, refusing to consider the matter as the Commission was not prepared to reverse its previous decision.

On 23 November 1979 the applicant lodged this application in which he asks the Court to “Declare that the decision of the Commission of 27 August 1979 is contrary to the provisions of Article 3 of the Rules on Sickness Insurance for Officials of the European Communities and to Article 2 (2) of Annex VII to the Staff Regulations”; he therefore claims that the Commission should be ordered to repay him, together with interest, the medical expenses incurred and also the premium paid to the mutual insurance fund which his son had been forced to join because of the Commission's refusal.

Ill —

The Commission has by a separate document raised against this application in accordance with Article 91 of the Rules of Procedure an objection that the Court should reject it as inadmissible without even opening the oral procedure. In his reply the applicant adheres to his statement of the relief sought in his application and, in so far as necessary, clarifies it by asking for the annulment of the decision of the office responsible for settling claims dated 20 February 1979 and. the Commission decision of 27 August 1979.

By an order dated 31 January 1980 the Court ordered that a decision on the objection of inadmissibility put forward by the Commission should be reserved for the final judgment and the written procedure resumed its normal course. During the oral procedure which was primarily concerned with admissibility the parties referred to their pleadings as far as the substance of the case was concerned.

I must therefore first of all consider this objection.

The application has been filed in due time and the Commission has not taken objection to the absence of a complaint in proper form either, but it objects to the application's being explicitly directed only against the decision of 27 August 1979 rejecting the applicant's complaint, when it should have been specifically directed against the “act adversely affecting the official” that is to say against the note from the office responsible for settling claims of 20 February 1979. The decision rejecting the complaint of 27 August 1979, which the applicant is contesting, was indeed necessary for the matter to be actionable but, as it only confirmed the original decision on which the complaint was based, it cannot itself give rise to proceedings. And the Commission quotes a large number of cases in order to conclude that the application is inadmissible.

It relies in particular on paragraph 9 of the judgment of 28 May 1980 of the Third Chamber of the Court in Joined Cases 33 and 75/79, Richard Kuhner v Commission of the European Communities [1980] ECR 1677, which states inter alia“It is moreover necessary to point out that every decision purely and simply rejecting a complaint, whether it be express or implied, only confirms the act or failure to act to which the complainant takes exception and is not, by itself, a decision which may be challenged. It is only when this decision upholds all or part of the complaint of the person concerned that it will, in appropriate circumstances, constitute by itself a decision against which an action can be brought.”

With reference to the quotation which is only an obiter dictum I venture to point out that I find it difficult to understand how an implied decision could be anything but purely and simply a decision rejecting a complaint or how a decision upholding the whole of a complaint could constitute by itself a decision against which an action may be brought.

The decided cases quoted by the Commission are relevant only if the complaint of 8 May 1979 was to be deemed to have been rejected by implication when the Commission gave its reply of 12 November 1979. But that complaint had been expressly rejected on 27 August 1979 and that rejection is indeed the subject-matter of the proceedings. Furthermore the decision of 27 August 1979 is not a decision purely and simply rejecting a complaint, since, unlike the note from the office responsible for settling claims, there is a complete statement of the reasons on which it was based, and, if it was only confirming that note, one wonders why the Commission still took the trouble to reply to the applicant on 12 November 1979 in order to confirm it to him.

The Commission has fully understood that the Court did not wish to see itself cumbered about with staff cases, but the system of preliminary complaints through official channels established by Article 90 of the Staff Regulations is sufficiently complicated and the penalty of the inadmissibility of an application to the Court which, under Article 91, attaches to a failure to follow this procedure through official channels is sufficiently formalist for it not to be necessary to add further rigidity the only result of which would in the last resort be to delay the adjudication of Community staff cases. The argument that an express reply simply confirming the act adversely affecting an official would only be a purely formal prerequisite merely aimed at forcing officials to procrastinate at the risk of losing themselves in the intricacies of the timelimits of Article 91 gives rise to very serious reservations.

Furthermore, in order to be capable of being contested, an act adversely affecting an official must have the characteristics of a decision.

However, in contrast to Article 28 of the joint Rules relating to Insurance against Accident and Occupational Disease for Officials of the European Communities, provision has not been made, with reference to sickness insurance, for officials to be able — after submitting a complaint to the appointing authority — to bring before the Court of Justice subject to the conditions laid down in Article 91 of the said Staff Regulations an action against “decisions” taken pursuant to those rules but it has simply been provided that “Any person to whom these rules apply shall be entitled to resort to the appeal procedure provided for in Articles 90 and 91 of the Staff Regulations” (Article 16 (1)).

Consequently the bodies set up to administer the sickness scheme strictly speaking take only preliminary decisions; the latter may well give rise to a complaint but they must then be the subject of a decision of the appointing authority.

It is very doubtful whether the note of the office responsible for settling claims in fact has the characteristics of a decision, either from the standpoint of its content or of the authority of the writer.

As far as the content is concerned the Court has held that a mere accounting slip without any explanation was not an act adversely affecting an official (judgment of 27 June 1973 in Case 71/72, Kuhi v Council of the European Communities [1973] ECR at p. 711, and judgment of 15 July 1970 in Joined Cases 60 to 62/69, Chuffart and Others v Commission of the European Communities [1970] ECR 641) and I still endorse without qualification the views put forward by Mr Advocate General Gand on pages 655 and 656 in his opinion in the latter Joined Cases.

As far as the authority of the writer is concerned, Article 6 of the Commission Decision of 5 October 1977 on the exercise of the powers conferred by the Staff Regulations on the appointing authority provides that all the decisions to be taken in connexion with sickness insurance (that is to say decisions interpreting or giving effect to Article 72 and the joint rules referred to in Article 72 (1)) are within the powers of the heads of division or the heads of specialized departments of the Directorate-General for Personnel and Administration as far as officials in Categories A, B, C, D and L/A are concerned “without prejudice to the powers conferred by the rules on offices responsible for settling claims”.

Under Article 20 (3) of the joint Rules each office responsible for settling claims shall:

“(a) accept and process applications for reimbursement of expenses submitted by members registered with it and make the relevant payments”.

I am certainly willing to admit that the power conferred on the official responsible for making repayments to “accept and process” an application for reimbursement also includes the power to refuse and not to process it on one of the grounds set out in the form. But as soon as such a refusal raises a question of principle, the determination of such a question and the statement of reasons therefor go beyond the powers of this official and are in the first place the responsibility of the head of division. The form from the office responsible for settling claims, without making any reference to any article of the Staff Regulations or of the joint Rules, refers simply to the “personnel individual record sheet”; this sheet, which is not even on the Court's file, would therefore be the actual “act adversely affecting an official” which the applicant should have challenged.

But to say that the refusal to process an application for reimbursement of medical expenses incurred for a dependent child over 26 years of age is a simple routine decision is to answer the question with a question, since the actual point at issue is whether the age of 26, except in the case of serious sickness or invalidity, is the final age-limit for the right to reimbursement of medical expenses in respect of a dependent child.

Finally, Article 16 (2) and Article 18 (6)(e) and (f) of the Rules provide that the Management Committee of the scheme shall be consulted before the appointing authority takes a decision regarding a complaint submitted under Article 90 (2) of the Staff Regulations. The Commission states that the Management Committee was duly consulted on 16 March 1975 and was of the opinion that the provision at issue must be interpreted as meaning that children over 26 years of age can no longer be insured against sickness in right of the official, even if they are in fact maintained by him. But the opinion delivered by the Commission is only the covering letter of the President of that Committee in which it happens he regrets that Article 3 (2) of the joint Rules is ambiguous. In any case an opinion delivered in 1975 clearly cannot take the place of the opinion to be delivered ad hoc: that opinion must be given after the act adversely affecting the official and before the decision of the appointing authority in answer to the complaint.

To the foregoing is to be added the fact that “the act adversely affecting the official” of 22 February 1979 has been substantially amended by the note of 7 March 1979 which was signed by the head of division and which drew the applicant's attention to the fact that the applicant could if he so desired “ask for his son's membership to be continued for the period of six months following the discontinuance of the dependent-child allowance, provided that he is not in a position to benefit from any other public sickness insurance scheme during the same period”.

All things considered the note of the office responsible for settling claims dated 20 February 1979 does not seem to me to be severable from the decision rejecting the applicant's complaint of 27 August 1979. It is clear that the action brought by the applicant against the administration is concerned, by means of the decision of 27 August 1979, with the legality of that note and it would not require an enormous effort to interpret the application, if need be, as being necessarily also directed against the note which was annexed to it. In any case if the application had been directed only against that note it would have been admissible according to the Commission's argument, but the question whether it was well-founded could only be considered in the light of the decision of 27 August 1979 which contains the grounds for rejecting the applicant's complaint.

IV —

It should be borne in mind that at the time when the facts of this case occurred Article 3 of the joint Rules provided :

“The persons covered by a member's insurance shall be:

1. ...

2. dependent children within the meaning of Article 2 (2) of Annex VII to the Staff Regulations ...

However, the only conditions which Article 2 (2) of that Annex lays down for a child to be considered a dependent child is that he is actually being maintained by the official. The child's age is mentioned only in paragraphs (3) and (5). It is only the wording in force before 1 January 1974 and that adopted on 1 February 1980 with retroactive effect to 1 July 1979 which refer to Article 2 in its entirety and which imply that the child is covered by a member's insurance only so long as that member is entitled to the dependent-child allowance in respect of him.

It is true that in a departmental memorandum of August 1975 the Director-General for Personnel and Administration drew the attention of members to the fact that Article 3 (2) of the joint Rules “applies in accordance with Article 2 (2) of Annex VII to the Staff Regulations and the conditions laid down in Article 2 (3) and (5)”

But that is only an interpretative measure adopted unilaterally by means of a circular. There was no reason whatsoever to suppose that, taking account, on the one hand, of the administrative practice in the case of the tax abatement and, on the other hand, of the continuation of sickness insurance cover for six months after the age of 26, there could not at the time be two different age-limits for establishing whether a child was a dependent child: the age when the child ceases to give rise to entitlement to family allowances (“dependent-child allowance” and “education allowance”) and the age when the child ceases to give rise to the tax abatement (which is in fact equal to twice the education allowance) and to reimbursement of sickness expenses.

There was even less reason as, according to the memorandum produced by the Commission on national social security schemes assuming responsibility for the health care of members' dependent children, “there is no uniform practice concerning either the. concept of a dependent child (which is unknown in the schemes covering the entire population) or the connexion between sickness benefit and entitlement to family allowances or even the age-limit in the case of education”.

It is therefore important as far as concerns the accounts of the Communities to arrive at a uniform solution. In order that the situation may be clear and transparent I consider that entitlement to sickness-benefit cover and entitlement to the tax abatement, both of which are conditional on the official's actually maintaining the child because the child is unable to provide for his own needs, should be dealt with in the same way: either entitlement to these advantages should cease at the age of 26 at the latest, or it must be continued beyond this age-limit as long as the child continues to be actually dependent on his parents.

I think, however, that it would be more consistent with the spirit of the Staff Regulations to consider the age of 26 except in cases of serious sickness or invalidity, as the final age-limit for the purposes of sickness insurance. This interpretation is in any case in accordance with the provisions at issue as they now stand.

V —

If the Court agrees with me that the main claim is unfounded it is my view that the claim for reimbursement of medical expenses by way of damages will have to be treated as unfounded too, because the refusal to reimburse is only the consequence of the absence of any entitlement to cover for medical expenses.

With regard to the claim for reimbursement of the membership premium of the mutual insurance association the Commission states that, since it was formulated for the first time in the application and since it was not preceded by a request pursuant to Article 90 (1) it is also inadmissible under Article 91 (2).

For the purpose of declaring that claim admissible I need only quote the laconic paragraph 18 af the judgment of the First Chamber of 9 March 1978 in Case 54/77, Antoon Herpels v Commission of the European Communities [1977] ECR at p. 597:

“Moreover, it is important that the Court should be able to give a ruling on such claims”, so that the claim for damages was regarded as admissible, But in my opinion that claim is in any case unfounded since the sickness cover of the applicant's son has been continued until 28 January 1978 at least and it rested with the applicant to take advantage of the opportunity of continuing this cover which had been offered on 7 March 1977.

My opinion is that the application should be declared admissible but unfounded, the costs relating to the objection of inadmissibility should be borne by the Commission and with regard to the remainder of the costs the parties should bear their own costs.

( 1 ) Translated from the French.