EN
ReportsofCases
ECLI:EU:T:2011 :699 1JUDGMENT O F THE GENERAL COURT (Appeal Ch amber)
29 November 2011
Case T-10/11 P
Ger hard Birkhoff
v
European Comm ission
(Appeal — Civil service — Officials — Family allowances — Dependent child allowance — 
Child suffering from an infirmity preventing her from earning a l ivelihood — Refusal to extend 
payment of the allowance)
Appeal: against the judgment of the European Union C ivil Service Tribunal (Second Ch amber) of 
27 October 2010 i n Case F-60/09 B irkhoff v C omm ission, seeking to have th at judgment 
set aside.
Held: The judgment of th e European U nion C ivil Service Tribunal (Second Ch amber) of 
27 October 2010 i n Case F-60/09 B irkhoff v C omm ission is set aside. The case is referred 
back to the Civil Service Tribunal. The costs are reserved.
Summ ary
1. Officials — Remuneration — Family allowances — Dependent child allowance — Right to extension 
without age restriction wh ere child cannot earn a l ivelihood
(Staff Regulations, Annex VII, Art. 2(5))
2. Officials — Remuneration — Family allowances — Dependent child allowance — Right to extension 
without age restriction wh ere child cannot earn a l ivelihood
(Staff Regulations, Annex VII, Art. 2(5))
1. Under Article 2(5) of Annex VII to the Staff Regulations, payment of the dependent child allowance 
continues irr espective o f age if the serious illness or invalidity from w hich th e child suffers prevents 
him or her from earning a l ivelihood.
The concept of being ‘prevented … f rom earning a l ivelihood’ requires the particular circumstances of 
each individual sick or disabled child to be taken into consideration.
It is a l ogical extension o f the argument that, for social reasons, the legal and factual circumstances of 
each individual case must be taken into consideration i n order to determine the amount of income 
available to th e disabled pe rson a s a l ivelihood, within th e me aning of the provision in question, that 
account must be taken of the pe rson’s income n et of all statutory taxes, levies and charges, rather 
than of his gross income.
2 ECLI:EU:T:2011 :699SUMM ARY–CASET-10/11P
BIRKHOFFvCOMM ISSION
First of all, only the net income r epresents what the pe rson c oncerned actually has available for his 
daily needs and in order to cover no rmal costs such as food, clothing, accommodation, furniture, 
household expenses, heating, etc.
Secondly, from th e point of view of the principle of equality, which requires that comparable situations 
must not be treated differently and that different situations must not be treated in the same w ay unless 
such treatment is objectively justified, it cannot be overlooked th at a di sabled pe rson w hose gross 
income i s subject to all m anner of very high charges and who th erefore has on ly a r elatively low 
available income i s in a di fferent factual situation f rom th at of a di sabled pe rson w ho receives the 
same g ross income b ut pays m uch lower contributions, of whatever kind, and th erefore has a 
relatively high net income. In view of the social objective referred to above, there is no j ustification for 
treating those two cases equally under the pretext that the two gross incomes are the same, whereas 
there is a s ubstantial difference in th e income a ctually available to cover dai ly needs. The compe tent 
authority m ust examine th e legal and factual circumstances of each individual case in order to 
determine whether th e di sabled pe rson c oncerned is actually prevented from e arning a l ivelihood 
within the me aning of Article 2(5) of Annex VII to the Staff Regulations.
Thirdly, taking into consideration th e net income a ctually available to th e pe rson c oncerned is 
consistent with th e fact th at costs actually incurred as a r esult of his disability should also be 
deducted from his earned income.
Lastly, although th e provisions of European Union law granting entitlement to financial benefits must 
be interpreted restrictively, it is clear from th e considerations above th at only an interpretation w hich 
takes account of the net income a ctually available to a c hild suffering from a s erious illness o r 
invalidity is consistent with th e social objective p ursued by payment of the allowance provided for in 
Article 2(5) of Annex VII to th e Staff Regulations for such a c hild, where he is prevented from 
earning a l ivelihood.
(see paras 28, 34, 37-40, 50)
See:
C-303/05 A dvocaten voor de W ereld [2007 ] ECR I-3633 , para. 56 a nd the case-law cited therein
T-498/93 D ornonville de l a Cour v C omm ission [1994 ] ECR-SC I-A-257 a nd II-813, para. 39
2. The dependent child allowance has an objective of a s ocial nature justified by the costs ari sing from 
a present and certain need connected with th e child and its effective m aintenance, which must lead th e 
compe tent authority to determine, in each individual case, whether that social objective h as been 
achieved and, taking account of all th e circumstances of the case in question, whether the serious 
illness or invalidity from w hich the child suffers prevents it from earning a l ivelihood.
On this view, the formulation b y an institution o f an objective criterion for the purposes of interpreting 
Article 2(5) of Annex VII to the Staff Regulations does no t relieve i t, whatever that criterion involved, 
of the obligation to examine the particular circumstances of the case in question.
In order to take a ccount of the particular legal and factual circumstances of a di sabled pe rson’s 
situation, any costs which he or she incurs as a r esult of that disability must be deducted from his or 
her earned income. It is therefore on ly this reduced income w hich m ust be taken into consideration 
in order to ascertain whether the disabled pe rson i s prevented from earning a l ivelihood within th e 
meaning of Article 2(5) of Annex VII to the Staff Regulations.
ECLI:EU:T:2011 :699 3SUMM ARY–CASET-10/11P
BIRKHOFFvCOMM ISSION
Action in support of the disabled is no t an end in itself, but is designed to ensure equal treatment, so 
that such action is permitted on ly if it aims to achieve e qual treatment with an able-bodied pe rson in 
the same s ituation. In th ose circumstances, the principle of equal treatment on ly requires th e 
administration t o take a ccount of costs resulting specifically from th e invalidity of the child in 
question, in order to place the child on th e same f inancial footing as an able-bodied pe rson in the same 
situation.
The partial deduction o f costs relating to goods and services used on a l arge scale by anyone, not just 
by the disabled pe rsons themselves, is therefore no t vitiated by a f actual error, an error of law or a 
manifest error of assessment.
(see paras 30, 32, 36, 57, 59, 60)
See:
T-302/01 B irkhoff v C omm ission [2003 ] ECR-SC I-A-245 a nd II-1185 , paras 39, 40 a nd 44