2.

We must now ascertain whether that is actually the case in these proceedings. In my opinion it is necessary to distinguish four situations which may be regarded as abnormal. (a) The first situation is where officials are nationals of the State in which they are employed and are in receipt of the expatriation allowance (an exceptional case) such as Italians at Ispra. The statistics annexed to the rejoinder show that for the academic year 1981-82 there were nine children of officials at Ispra who were in that position out of 374 who were pursuing higher education. If there is no establishment of higher education of the country of which they are nationals or working in their language within 50 km of their place of employment such officials still receive the double allowance whether the establishment selected is situated in the country in which they are employed and of which they are nationals or in another country. Such officials may therefore be considered to be in a privileged position in comparison to their compatriots who do not receive the expatriation allowance (the normal position) and who therefore are not entitled to the double education allowance. (b) In my opinion it is proper for the latter not to receive the double allowance when they send their children abroad to pursue their studies, except in the most exceptional cases. It is not possible to speak of discrimination if that benefit is granted, for example, to a German official employed at Ispra who sends his child to a German university and is refused to an official at Ispra of Italian nationality whose child is attending the same course in Germany as that of his colleague's child. There is an objective difference in the position of those two officials inasmuch as the choice made by the former is often imposed on him while that of the latter is almost always made after due consideration. It is true that the choice of a foreign university is consistent with the principle of the freedom of choice as to establishments of higher education which the Community institutions are unable and do not intend to question. However, the principle of nondiscrimination cannot be invoked successfully to force the Council to gram the double education allowance in sucl cases when it wishes such a grant tc remain exeptional. It seems to me to be desirable that an official entitled to the expatriation allowance at the place where he is employed who loses that benefit as a result of his transfer to his country of origin should be able to continue to receive the double education allowance in respect of his child who is pursuing his studies in the former country and does not wish them to be interrupted. ( 20 ) However, the fact that the number of officials in that position is no doubt extremely limited can lead to no conclusion other than that the situation must be regarded as marginal though certainly unfortunate. It cannot therefore be described as discriminatory within the meaning of the Court's case-law. Instead it is for the Community legislature to find an appropriate solution to bring that situation to an end. (c) A further abnormal situation is referred to by the applicants: namely that in which an official is not a national of the State in which he is employed and is in receipt of the expatriation allowance (the usual case) but whose children pursue their studies in the country of his employment and not, as envisaged by Council, in their country of origin. That is the position of the children of the non Italian officials at Ispra who are pursuing studies in Italy, in particular at Milan. Similarly it is possible to refer to the children of French officials who pursue their studies at a Francophone university in Belgium or to Dutch-speaking Belgians who are employed at the Petten branch of the Joint Research Centre and whose children study in the Netherlands. It is probable that a number of such children are the issue of marriages between persons of different nationalities or were born in the country where the relevant parent is employed after the latter entered the service of the Communities so that they feel more closely integrated in that country than in the country of which they are nationals. Their wish to pursue their higher education there would therefore appear quite understandable. It is equally true that the present scheme enables officials to receive the double education allowance not only if they send their children to their country of origin but also if they send them to any other country. That consequence, which it is known was not intended by the Council but arises solely from the imperfect drafting of the provision, is not in itself open to criticism, in particular if, inspired by European ideals, the child studies in a country of the Community other than that in which the parent is employed and other than that of which the latter is a national. However, that consequence becomes disturbing if account is taken of the different position of the officials to whom the provision was intended to apply. Nevertheless, the limited number of persons who benefit in that manner according to the figures relating to Ispra cannot lead to the conclusion that in that situation there is discrimination against those persons who do not so benefit. In addition, whilst the persons benefiting have no legal interest in complaining about the present situation, it must not be forgotten that one of the methods of terminating the present unequal treatment would be to abolish the benefit. (d) One of the unfortunate situations is that of an official who is not a national of the country in which he is employed and who yet is not entitled to the expatriation allowance (an exceptional case), ( 21 ) but whose children are completing their higher education outside the country in which he is employed, for example in their country of origin. In 1981-82 no such case arose at Ispra. The supplementary information furnished by the Commission with regard to its staff employed in Brussels and Luxembourg enables the conclusion to be drawn that such a position is extremely rare since it applied to only two of 32 children of officials and temporary staff whose higher education in 1982-83 gave rise to an education allowance.