Opinion of Mr Advocate General Léger delivered on 23 January 1997. - Jan Robert de Rijk v Commission of the European Communities. - Appeal - Officials - Supplementary sickness insurance scheme for officials posted outside the Community - Conditions for reimbursement of medical expenses. - Case C-153/96 P.



European Court reports 1997 Page I-02901



Opinion of the Advocate-General

1 Mr de Rijk seeks annulment of the judgment delivered by the Court of First Instance on 7 March 1996 in an action brought by him against the Commission (Case T-362/94 [1996] ECR-SC II-365, hereinafter `the contested judgment').

2 In support of his appeal he relies on breach by the Court of First Instance of Article 24 of Annex X to the Staff Regulations of Officials of the European Communities (`the Staff Regulations'), of Article 33 of the Statute of the Court of Justice and of the principles of legal certainty and non-discrimination.

3 After summarizing the facts, the legal background and the procedure (I), I shall consider the question of the admissibility of the appeal (II). I shall then discuss the pleas raised by the appellant and suggest that the appeal be dismissed (III). I shall conclude by considering the question of costs (IV).

I - Facts, legal background and procedure

Facts

4 Mr de Rijk is an official in Grade B 2 assigned to the Commission's delegation in Finland.

5 In the summer of 1993, that is to say, prior to the accession of the Republic of Finland, he incurred expenses for medical care for dependants, including his son who resides habitually in Belgium. On 18 August 1993 he applied to the Commission for reimbursement amounting to BFR 26 631.

6 On 6 October 1993 the Joint Sickness Insurance Fund of the European Communities sent him a statement of account showing that it would reimburse BFR 21 681 of that total, and indicating that the remaining BFR 4 950 could perhaps be recovered on the basis of Article 24 of Annex X to the Staff Regulations.

The applicable social security scheme

7 The social security scheme applicable to Mr de Rijk, as an official posted outside the Community, is set out in Annex X to the Staff Regulations, which was added by Council Regulation (Euratom, ECSC, EEC) No 3019/87 of 5 October 1987. (1) Its title is `Special and exceptional provisions applicable to officials serving in a third country'.

Article 24 provides as follows:

`The official, his spouse, his children and other persons dependent on him shall be covered by supplementary sickness insurance for the difference between expenditure actually incurred and payments from the scheme provided for in Article 72 of the Staff Regulations; no reimbursement shall be made under Article 72(3).

Half the premium shall be paid by the official and half by the institution. However, the official's contribution shall not exceed 0.6% of his basic salary, any balance shall be paid by the institution.

The official, his spouse, his children and other persons dependent on him shall be insured for repatriation on health grounds in the case of an emergency or extreme emergency; the premium shall be paid entirely by the institution.'

8 The Commission adopted general provisions for implementing the first and second paragraphs of Article 24 of Annex X to the Staff Regulations. (2) Article 2(1) and (2) thereof provides: `The following shall be covered by the supplementary sickness insurance:

(1) an official whose place of employment is outside the Community;

(2) persons covered by the insurance of the official referred to in (1), where he is a member of the scheme, pursuant to Article 72 of the Staff Regulations as determined by the Rules on Sickness Insurance for Officials of the European Communities (hereinafter referred to as "the Rules"), if they are permanently resident at the place of employment of the official covered under point (1).

However, where they reside elsewhere, they shall be covered during the time they spent at the place of employment of the official and, after the Medical Officer has been consulted, if the medical expenses originate solely by reason of the fact of the member's place of employment; (...)'.

The contested administrative decision

9 By letter of 18 January 1994 the Commission informed Mr de Rijk that it would reimburse under Article 24 of Annex X to the Staff Regulations only BFR 4 412 instead of the BFR 4 950 claimed, the remaining BFR 538 not being reimbursable because the expenditure incurred for his son, living habitually in Belgium, could only be reimbursed under Article 72 of the Staff Regulations.

10 On 18 April 1994 Mr de Rijk lodged a complaint against that decision under Article 90(2) of the Staff Regulations.

11 By decision of 15 July 1994, notified to Mr de Rijk on 4 August 1994, the Commission rejected the complaint on the ground that the son was permanently resident in Belgium and the medical expenses he had incurred, unlike those incurred in Helsinki, could not be reimbursed under Article 24 of Annex X to the Staff Regulations. It explained its decision by stating, first, that the supplementary insurance provided for in that article was designed to cover the risks attributable to the special living conditions of officials posted to countries outside the Community and, second, that in the absence of a link between the expenditure incurred and the fact of being outside the Community, Article 24 of Annex X was not applicable. Any other approach, it added, would clearly discriminate against officials assigned to countries within the Community.

12 It was in those circumstances that Mr de Rijk brought an action before the Court of First Instance on 3 November 1994 challenging the rejection of his complaint.

The judgment of the Court of First Instance

13 Mr de Rijk asked the Court of First Instance:

- to annul the Commission's decision of 18 January 1994 and, in so far as necessary, that of 15 July 1994;

- to order the Commission to pay the whole of the difference between the expenditure actually incurred and the payments received under the common sickness insurance scheme, that is to say, BFR 4 950;

- to declare that the implementing provisions for the first and second paragraphs of Article 24 of Annex X to the Staff Regulations were unlawful, and consequently to withdraw them;

- to order the Commission to pay the costs.

14 In support of those claims he relied on pleas based on breach of Community law, and in particular breach of Article 24 of Annex X to the Staff Regulations, and the unlawfulness of the implementing provisions for that provision, on the basis of which the contested decision was adopted.

15 The action was dismissed by the Court of First Instance on the grounds summarized below in the context of my examination of the pleas raised by the applicant.

The appeal

16 Mr de Rijk asks that the Court of Justice:

`1. Declare the appeal admissible and well founded;

2. Consequently:

(a) annul the contested judgment,

(b) judge the case itself and, upholding the original application:

- annul the [Commission's] decision of 18 January 1994 according to which the defendant decided to reimburse the appellant the sum of BFR 4 412 under the complementary sickness insurance scheme;

- in so far as necessary, annul the defendant's decision of 15 July 1994 rejecting the appellant's complaint of 18 April 1994;

- order the defendant to pay the whole of the difference between the expenditure actually incurred and the payments made under the common sickness insurance scheme, that is to say in this instance BFR 4 950;

- declare that the general provisions for implementing the first and second paragraphs of Article 24 of Annex X to the Staff Regulations are unlawful, and on that ground annul them;

(c) order the defendant to pay the whole of the costs at both instances.'

II - Admissibility of the appeal

17 The Commission's main submission is that the appeal brought by Mr de Rijk is inadmissible. In the first place, he has merely reproduced the arguments put before the Court of First Instance and in the second place, in point 11 of his appeal, he seeks to rely on a new argument which was not placed before the Court of First Instance. The argument is based on the wording of Articles 10 and 20 of Annex X to the Staff Regulations, which lay down expressly a requirement of residence for their application. The appellant deduces from that, a contrario, that by not including such an express condition in Article 24 of Annex X to the Staff Regulations the Community legislature indicated that it was not its intention to impose that residence requirement with regard to the application of Article 24.

18 It is indeed settled case-law that in order for an appeal to be admissible under the procedure provided for by Article 168a of the EC Treaty and meet the requirement laid down in Article 51 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure, (3) the appeal must indicate precisely the contested elements of the judgment which it is requested to have set aside and also the legal arguments which specifically support that request (4) and not merely repeat or reproduce verbatim the pleas in law and arguments already submitted to the Court of First Instance, including those based on factual allegations expressly dismissed by that Court. Such an appeal would amount, in fact, to an application for mere reconsideration of the application submitted to the Court of First Instance - thus seeking to have the Court of Justice rule as a general court of appeal and not as one dealing with appeals on points of law only - which, according to Article 49 of the Statute of the Court of Justice, the Court has no jurisdiction to do. (5)

19 Mr de Rijk's appeal does not, in my view, have such characteristics. His complaint is essentially that the Court of First Instance misinterpreted and misapplied the provisions of Article 24 of Annex X to the Staff Regulations. That complies incontestably with the definition of the expression `point of law' used in Article 168a of the Treaty, and the Court certainly has jurisdiction to determine whether the statement of reasons in the judgment delivered by the Court of First Instance complies with the letter and spirit of a provision contained in Community legislation such as, in this instance, Article 24 of Annex X to the Staff Regulations. (6)

20 Furthermore, whilst it is likewise settled case-law that Articles 113(2) and 116(1) of the Rules of Procedure do not permit new pleas to be put forward in the appeal, (7) I do not think that the arguments put forward by the appellant in point 11 of the appeal fall into that category.

21 `Arguments' and `pleas' are two distinct legal concepts. (8) In this instance, the appellant is not raising a new plea but is putting forward a new argument in support of a plea already considered by the Court of First Instance, namely that of misinterpretation and misapplication of Article 24 of Annex X to the Staff Regulations (see paragraphs 15 to 21 of the contested judgment). I consider that that type of argument is not only wholly admissible, but perfectly meets the requirements of Article 168a of the Treaty. It does not alter the subject-matter of the action - which is prohibited by Article 113 of the Rules of Procedure of the Court of Justice - but is merely a development of one of the legal grounds set out by the appellant from the beginning of the proceedings before the Court of First Instance and is, consequently, entirely admissible. (9)

22 I conclude that Mr de Rijk's appeal is admissible.

III - Examination of the pleas relied on in the appeal

23 Examination of the three grounds set out by the appellant reveals that in fact Mr de Rijk relies on two essential pleas in support of his application to have the judgment of the Court of First Instance set aside. In the first and second grounds, he claims that the Court of First Instance erred in law and in reasoning by ruling that the implementing provisions for Article 24 of Annex X to the Staff Regulations were not unlawful and that it misinterpreted that article. In the third ground (the second plea, in fact) he claims that the Court of First Instance failed to apply the principles of equal treatment and legal certainty.

24 As regards the plea of breach of the principle of legal certainty, I can only say that the appellant has failed to bring any argument in support of that plea, which must therefore be declared inadmissible.

First plea: breach of Article 24 of Annex X to the Staff Regulations

25 The appellant claims that the Court of First Instance erred in law and in reasoning regarding the interpretation to be given to Article 24 of Annex X to the Staff Regulations.

26 In paragraphs 33 and 34 of the contested judgment, that Court held that Article 24 of Annex X to the Staff Regulations applies to its full extent only where the specific disadvantages which prompted the introduction of an alternative scheme for reimbursing medical expenses - that is to say, the special living conditions of officials posted outside the Community, and in particular the generally higher costs of medical care in such countries - exist.

27 The appellant challenges that interpretation, claiming that, in effect, it adds a supplementary requirement which restricts the scope of the Staff Regulations and which is, therefore, contrary to the case-law of the Court. (10) He is similarly unconvinced by the reference to the need for sound management referred to in paragraph 35 of the contested judgment in order to justify the restrictive interpretation of that provision.

28 Mr de Rijk considers that the provisions of Article 24 of Annex X to the Staff Regulations require no interpretation. He adds, however, that if such an interpretation were necessary, it would have to take into account not only the wording of the article, its context and the aims of the rules in question, but also the negotiations which preceded the drafting of the provision, study of which reveals that the residence requirement for the application of Article 24 of Annex X to the Staff Regulations suggested by the Commission was not taken up. He maintains that what can be inferred from a reading of the provision a contrario supports his argument, and that Articles 10 and 20 of Annex X to the Staff Regulations bear out the results of such a reading. (11)

29 The social security scheme applicable to all Community officials employed in a Member State of the Union appears in Title V of the Staff Regulations, entitled `Emoluments and social security benefits of officials'. Article 72(1) of the Staff Regulations provides that an official, his spouse, his children and other dependants are insured against sickness for up to 80% of the expenditure incurred and, on the basis of common rules drawn up by the Community institutions, that maximum is increased to 85% for certain services.

30 In Case C-244/91 P Pincherle v Commission (12) the Court held that in the absence of maximum rates of reimbursement fixed by the Staff Regulations, the institutions have the power to fix, by means of implementing regulations, suitable maximum rates of reimbursement in the context of insurance rules, without prescribing any minimum rates. (13) The Court inferred from that that the institutions could not be accused of infringing Article 72 of the Staff Regulations by establishing maximum rates (which led, in that case, to reimbursement of between 29% and 66%) solely on the ground that those rates were too far removed from the maximum rates of reimbursement of 80% and 85% provided for in Article 72. (14)

31 In so doing the Court was endorsing the view expressed by the Advocate General, who stated in his Opinion that the resources of the social insurance scheme are strictly limited to the contributions paid by officials and other servants and to those paid by the institutions, so that the financial balance of such a scheme is necessarily complex and fragile, since it depends on a perfect correlation between health expenditure and contributions paid. He concluded that since the Staff Regulations did not provide for any minimum rate, it was for the Community institutions to regulate the percentages available, while taking care to maintain the coherence of the system, and that the power of the Community institutions to fix reimbursement ceilings and rates was to be exercised subject to manifest error of assessment, and that there was nothing in Article 72 of the Staff Regulations to indicate that there was a principle fixing a minimum threshold rate of social insurance cover. (15)

32 The `special and exceptional' provisions of Annex X, quoted above, derogate from Article 72 of the Staff Regulations in the case of officials posted outside the Community. Article 24 of Annex X to the Staff Regulations, in conjunction with the special implementing provisions, means that the difference between expenditure really incurred by the official or those claiming under him and benefits available under the insurance scheme provided for in Article 72 of the Staff Regulations is covered by the complementary insurance in so far as the place of employment or the permanent residence of the person concerned is outside the Community. That difference in treatment between officials employed within the Community and those employed outside it is justified by the special or exceptional living conditions caused by the fact of the official's being employed outside the Community. (16) Since that special situation does not exist, the difference in treatment has no justification and the general scheme must apply. That is merely an application of the general principle that any exception must be strictly interpreted.

33 In addition, there is in the wording of Article 24 of Annex X to the Staff Regulations, in the third subparagraph, a reference by implication to the residence requirement necessary for the application of that special provision: the use of the word `repatriation' undoubtedly refers to an establishment beyond the frontiers of the Union. Accordingly, it is quite unnecessary to make deductions a contrario from a reading of Article 24 of Annex X to the Staff Regulations.

34 Lastly, the Court held in Scaramuzza v Commission, cited above, that the ratio legis of the derogating rules introduced by Annex X to the Staff Regulations lay in the intention of the Community legislature to take into account the special and exceptional living conditions of officials working outside the Community. (17) In that case, Mrs Scaramuzza, an official employed outside the Community, complained that she was unable to obtain full payment of her salary in the currency of the country in which she was employed owing to the application of Articles 11 and 12 of Annex X to the Staff Regulations, whereas officials posted within the Community could, on the basis of Articles 63 and 64 of the Staff Regulations. The Court upheld the decision of the Court of First Instance in so far as the latter established that there was a real difference between the situation of officials working in the Community and those working outside it. (18)

35 In paragraphs 31 to 35 of the contested judgment the Court of First Instance made a comprehensive examination of the ratio legis of the scheme established by the Community legislature and went on to conclude that, in so far as special circumstances justifying different treatment for an official posted outside the Community or his family were not present, it was the general scheme which was to apply.

36 In the light of the above considerations the Court of First Instance committed no error of law or of reasoning, and accordingly the first plea in the appeal must be dismissed.

The second plea

37 The appellant claims that the Court of First Instance erred in law and in reasoning when it decided that the supplementary requirement imposed by the implementing provisions for Article 24 of Annex X to the Staff Regulations did not violate the principle of equal treatment between Community officials.

38 He maintains that the special supplementary contributions payable under the implementing provisions for Article 24 of Annex X to the Staff Regulations which must be paid by Community officials employed outside the Community in order to finance the supplementary insurance scheme are sufficient to justify the reimbursement in full of the cost incurred by the officials, regardless of where the medical expenses were actually incurred. The difference in treatment as between children of officials employed outside the Community and children of those employed within the Community being justified, therefore, the application of a different sickness insurance scheme would not be discriminatory.

39 He claims that in paragraphs 36 and 37 of the contested judgment the Court of First Instance, by failing to take that essential element into account, based its decision on reasoning which was incorrect and therefore violated the principle of non-discrimination.

40 In paragraphs 36 and 37 of the contested judgment the Court of First Instance first recalled the definition of the principle of non-discrimination and the ratio legis of Article 24 of Annex X to the Staff Regulations, and then held that the special contributions served to finance, in part, the insurance of risks incurred especially by officials employed outside the Community. Where those special risks did not exist, as in the case of officials residing habitually in the Community, there was no reason to apply the special scheme. Any official in the same situation must be treated in the same fashion, since otherwise they would suffer unequal treatment.

41 I concur with the analysis made by the Court of First Instance.

42 Since it was established when the first plea was considered that in the light of Article 24 of Annex X to the Staff Regulations only the existence of special living conditions for officials employed outside the Community justifies application of social security rules derogating from the rules laid down in Article 72 of the Staff Regulations, where such conditions do not obtain the general scheme must apply. To decide otherwise would breach the principle of equal treatment. Furthermore, the children of an official employed outside the Community derive their rights to the application of that special scheme from their parent. In no case should they be accorded rights more extensive than those enjoyed by the latter. Yet that would surely be the case if a child residing in the Community could enjoy the benefit of the special scheme provided for in Article 24 of Annex X to the Staff Regulations when their parent in the same situation could not.

43 Furthermore, the Court has held that the institutions have a duty to ensure the financial equilibrium of the sickness insurance scheme. (19) That duty has also been the guide of the Community legislature with regard to the management of the supplementary insurance fund provided for in Article 24 of Annex X to the Staff Regulations. It was careful to state in Article 5 of the implementing regulations that, in principle, `an official whose place of employment is outside the Community shall be reimbursed for expenditure actually incurred by himself and his dependants, within the limits laid down in Article 2. However, beyond a limit above which the expenditure is regarded as excessive, the person concerned may not claim any reimbursement'.

44 Consequently, the Court of First Instance did not misapply the principle of non-discrimination or err in its reasoning when it decided that the special contribution is intended to finance risks experienced only by officials employed outside the Community. The second plea must be rejected.

IV - Costs

45 Pursuant to Article 70 of the Rules of Procedure the normal rule in disputes between Community officials and their servants is that the institutions shall bear their own costs. However, by virtue of the second paragraph of Article 122 of those Rules, that rule does not apply in the case of an appeal except where it is brought by an institution. Consequently, the general rule contained in Article 69(2) of the Rules of Procedure must be applied and the appellant ordered to pay the costs of the appeal.

Conclusion

46 In the light of the above observations I suggest that the Court:

(1) dismiss the appeal;

(2) order the appellant to pay the costs.

(1) - OJ 1987 L 286, p. 3.

(2) - Commission Decision published in Informations administratives No 642 of 17 September 1990.

(3) - Which provides that an appeal to the Court of Justice shall be limited to points of law and must indicate precisely the contested elements of the judgment of the Court of First Instance which it is requested to have set aside and the legal arguments which specifically support that request.

(4) - See, for example, the order of 26 September 1994 in Case C-26/94 P X v Commission [1994] ECR I-4379, paragraphs 11 and 12.

(5) - See, for example, the order of 26 April 1993 in Case C-244/92 P Kupka-Floridi v ESC [1993] ECR I-2041, paragraphs 9 to 11.

(6) - To that effect, see the article by Joël Rideau and Fabrice Picod, Le pourvoi sur les questions de droit, Revue du marché commun et de l'Union européenne, No 392, November 1995, p. 594; point 3 of the Opinion of Advocate General Van Gerven in Case C-145/90 P Costacurta v Commission [1991] ECR I-5449.

(7) - See in particular Case C-18/91 P V v Parliament [1992] ECR I-3997, paragraph 21.

(8) - See in particular a judgment of 1958, Case 2/57 Compagnie des Hauts Fourneaux de Chasse v High Authority [1958] ECR 129: `... the Court takes the view that a distinction must be drawn between the introduction of new [pleas] in the course of the proceedings and, on the other hand, the introduction of certain new arguments. In the present case the Court's view is that the applicant did not introduce new [pleas] but merely developed those made in its application by invoking a number of arguments, some of which were adduced for the first time in the reply. In those circumstances, there is nothing to prevent the Court from considering them.'

(9) - See in particular Case C-76/93 P Scaramuzza v Commission [1994] ECR I-5173, paragraph 18.

(10) - See, for example, Case C-70/91 P Council v Brems [1992] ECR I-2973, paragraph 16, in which the Court held that the general implementing rules could neither restrict the scope of a provision of the Staff Regulations nor deprive the appointing authority of the opportunity to exercise its discretion.

(11) - See point 17 of this Opinion.

(12) - [1993] ECR I-6965.

(13) - Paragraph 23.

(14) - Paragraph 24.

(15) - Points 59 to 63 of the Opinion.

(16) - First recital in the preamble to Regulation No 3019/87.

(17) - Paragraph 23.

(18) - Ibidem, paragraph 22.

(19) - Pincherle, cited above, paragraph 26.