Opinion of Mr Advocate General Sir Gordon Slynn delivered on 10 February 1988. - Marie-Hélène Mouriki v Commission of the European Communities. - Officials - Household allowance. - Case 248/87.



European Court reports 1988 Page 01721



Opinion of the Advocate-General

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My Lords,

Article 67 of the Staff Regulations provides for certain family allowances to be paid to officials . These include household allowance and dependent child allowance .

Article 1 ( 2 ) of Annex VII to the Staff Regulations provides :

" The household allowance shall be granted to :

( a ) a married official;

( b ) an official who is widowed, divorced, legally separated or unmarried and has one or more dependent children within the meaning of Article 2 ( 2 ) and ( 3 ) below;

( c ) by special reasoned decision of the appointing authority based on supporting documents, an official who, while not fulfilling the conditions laid down in ( a ) and ( b ), nevertheless actually assumes family responsibilities ."

The dependent child allowance is dealt with in Article 2 of Annex VII, and Article 2 ( 4 ) provides :

" Any person whom the official has a legal responsibility to maintain and whose maintenance involves heavy expenditure may, exceptionally, be treated as if he were a dependent child by special reasoned decision of the appointing authority, based on supporting documents ."

Mrs Marie-Hélène Mouriki was first employed by the Commission as a member of the temporary staff on 16 September 1980 and was made an established official with effect from 1 July 1981 . Being then married, she was granted a household allowance under Article 1 ( 2 ) ( a ) of Annex VII to the Staff Regulations .

By a letter dated 29 November 1985 she informed the Commission that her marriage had been dissolved by judicial decision with effect from 30 March 1984 . By a decision of 11 December 1985, the Commission withdrew the household allowance which she had been receiving .

By a request under Article 90 ( 1 ) of the Staff Regulations dated 6 August 1986, Mrs Mouriki asked the Commission to review its decision to withdraw the household allowance and to grant it with retroactive effect from 1 April 1984 or, at the least, from the date of the request . In the request she refers to the fact that for the purposes of dependent child allowance under Article 2 of Annex VII the Commission had decided to treat her grandmother ( from 1 May 1982 ), her mother ( from 1 December 1985 ) and her father ( from 1 February 1986 ) as if they were her dependent children . By a letter of 29 October 1986 the Commission rejected the request on the ground that Mrs Mouriki' s grandmother, mother and father did not actually live with her . She challenged that decision by a complaint under Article 90 ( 2 ) of the Staff Regulations dated 19 January 1987 . The Commission rejected her complaint by a decision dated 4 June 1987 .

Mrs Mouriki then brought this action by an application lodged on 14 August 1987, in which she claims that the Court should annul the rejection of her complaint and declare that the appointing authority must grant her the household allowance . The Commission contends, first, that the application is inadmissible and, secondly, that it is unfounded .

As regards admissibility, the Commission' s argument is that the act adversely affecting Mrs Mouriki for the purposes of Article 90 ( 2 ) of the Staff Regulations was the Commission' s decision of 11 December 1985 which withdrew the household allowance . The Commission says that since she did not submit a complaint against that decision within the three month time-limit prescribed by Article 90 she is precluded from bringing this action before the Court under Article 91 of the Staff Regulations .

I would reject that argument . The Commission' s decision of 11 December 1985 withdrawing Mrs Mouriki' s household allowance was the consequence of the dissolution of her marriage, since that dissolution removed the basis of her entitlement under Article 1 ( 2 ) ( a ) as a married person . I do not read her request dated 6 August 1986 as a challenge to that decision but rather as a request that she be granted a household allowance on a different legal basis, namely under Article 1 ( 2 ) ( c ) of Annex VII . Therefore, in my view, time began to run from the rejection of that request . Accordingly, in my opinion, both her complaint of 19 January 1987 and her application in the present case were lodged in time and the objection of inadmissibility should be rejected .

As regards the substance, it is accepted that Mrs Mouriki lives in Luxembourg and that her three relatives live in Greece . She argued in her request under Article 90 ( 1 ) of the Staff Regulations that, because the appointing authority had recognized her father, mother and grandmother as equivalent to dependent children and granted the appropriate allowances, the Commission was bound to grant her the household allowance under Article 1 ( 2 ) ( c ), even if those members of her family did not live with her . That argument, as I understand it, is maintained in the written pleadings in this case . The Commission' s reply is that there is no link between the granting of the two allowances and that the household allowance can be granted under Article 1 ( 2 ) ( c ) only if the relatives concerned actually live with the official . In their arguments, both at today' s hearing and in writing, both sides have relied on the Court' s decision of 19 January 1984 in Case 65/83 Erdini v Council (( 1984 )) ECR 211 .

In my view it is plain that that judgment does not establish the link between entitlement under Article 2 ( 4 ) and entitlement under Article 1 ( 2 ) ( c ) for which Mrs Mouriki contends . On the contrary, it expressly excludes such a link . At paragraph 12 of the judgment it was held that, "the grant of either of the benefits envisaged by the two provisions in question is without prejudice to the grant of the other, either by automatically giving rise to entitlement or by excluding it ". It follows that if an appointing authority grants a dependent child allowance under Article 2 ( 4 ) it is not thereby automatically obliged to grant a household allowance under Article 1 ( 2 ) ( c ). That is a separate head of entitlement which has to be dealt with separately . Reference has been made to paragraph 19 of the Court' s judgment in Erdini where the phrase "circumscribed powers" (" compétence liée ") appears . In my view, the Court is there using that phrase in relation to the conditions expressed in Article 1 ( 2 ) ( c ) which have to be satisfied before the household allowance must be paid . The Court, in that paragraph of the judgment, in no way restricts the application of Article 1 ( 2 ) ( c ) because Article 2 ( 4 ) is satisfied .

Accordingly, Mrs Mouriki' s first argument that the Commission was bound to grant her the household allowance because it had recognized the relatives in question as equivalent to dependent children under Article 2 ( 4 ), falls to be rejected .

There remains the question whether it is a condition of entitlement to a household allowance under Article 1 ( 2 ) ( c ) that the relatives concerned should live with the official . This in my view is not such a simple question as the Commission contends . In the first place, it is clear that family responsibilities can actually be assumed, to use the language of the article, without persons cared for living under the same roof, and very frequently are so assumed in respect of elderly parents . Subparagraph ( c ) itself does not specify in terms, as it easily could have done, that the allowance was only payable in respect of someone actually living under the same roof . Moreover, as counsel for the Commission accepts and as I think is plain, the household allowance under subparagraphs ( a ) and ( b ) can be paid even if the relevant spouse or dependent children do not live with the official .

It is also to be noted that in paragraph 18 of the judgment in Erdini, the Court did not specify that it was a requirement that persons should live under the same roof . It is merely stated there that the household allowance was provided, "to make it easier for officials to live with those members of their families, including those other than spouses or children, who are unable to meet their financial needs themselves ". The Court did not say in that judgment that the allowance was exclusively to be paid in respect of persons who lived with the relevant official . Moreover, the provision in Article 1 ( 2 ) ( c ) that supporting documents have to be provided and that the allowance is only to be paid by special reasoned decision of the appointing authority is some protection against the abuse of the allowance .

There are therefore, as I see it, arguments in favour of the applicant' s contention .

On the other hand, this is a "household" allowance . Though for my part I would be prepared to construe "household" somewhat broadly so as, for example, to include elderly parents looked after but living in adjoining premises, in what in English idiomatically would be called a "granny flat" or a "granny wing", it seems to me that there must in reality be a household unit before subparagraph ( c ) can be satisfied .

It seems to me in the present case quite impossible, whatever the position may be in other more borderline cases, to regard an official living in Luxembourg as constituting a household unit with parents and grandparents who reside in Greece . Accordingly, in my view, the Commission was in law entitled to come to the conclusion which it reached . It is said on behalf of the applicant that this produces grave injustice . For my part, I am not satisfied that that is so, but even if the Court thought it was so it does not seem to me that that is a matter to be resolved by this Court but by the Commission .

Reliance has been placed by both parties on Article 8 of Annex VII which deals with the payment of travel allowances . It seems to me that that article does not assist the question of construction before the Court . Those allowances, clearly, would only fall to be paid if the dependants were actually living with the official in the country where he worked in order that they might go to their country of origin . In itself, it still leaves open the question as to whether residence as a household unit is a necessary condition .

Accordingly, in my opinion, this application should be dismissed and I would order that each party should pay its own costs pursuant to Article 70 of the Court' s Rules of Procedure .