(c)

Under a second head of complaint, the applicant contends that the rejection of his request for assimilation is illegal. He claims that once the conditions contained in Article 2(4) of Annex VII to the Staff Regulations of Officials are satisfied and the criteria laid down in the implementing decision of the Council have been met, the administration is compelled to grant assimilation. He declares that the conditions are satisfied in his case: under German law, he is required to pay a maintenance allowance to his mother (Article 1(1) of the Decision of the Council); his mother is over 55 years of age (Article 1 (2) of the Decision of the Council); she is an invalid and cannot cater for her own needs (Article 1(2) of the Decision of the Council); his mother's own resources are less than 60 % of the basic salary of an official in Grade D 4/1 (Article 1 (3) of the Decision of the Council); and, finally, evidence has been given that, since December 1970, the applicant has been setting aside for his mother's maintenance a sum greater than 20 % of his basic salary, which is Bfrs 83750, and constitutes his sole income (Article 1 (4) of the Decision of the Council). It follows that he is entitled to the assimilation. In considering this ground of complaint, we must first go into its substance, in other words, we must see whether the provisions of the Staff Regulations and the provisions of the Decision of the Council really create an entitlement to the grant of similar treatment or whether, as the Council maintains, the administration has a margin of discretion in the matter. If we stick closely to the wording and the clear purpose of Article 2(4) of Annex VII to the Staff Regulations of Officials, the answer to this question does not seem to present any particular problem. In the first place, it is significant that the word ‘may’ is used in the article. This is usually an indication of a discretion whereas, in a case placing the administration under an obligation, it is the imperative or at least the jussive form which is selected as, for instance, in Article 2(3) of Annex VII, which adopts the formula : ‘The allowance shall be granted’. Another relevant factor is that Article 2(4) contains the expression ‘heavy expenditure’. This also suggests that the administration is allowed a margin of discretion. It is further relevant that Article 2(4) makes the exceptional nature of the provision clear by use of the word ‘exceptionally’. The administration must, accordingly, appraise exceptional situations and, as the Council rightly points out, it must in this connexion take decisions similar to those on aids, ( 2 ) which are measures for which it is impossible to spell out an exhaustive list of conditions but which, on the contrary, require all sorts of personal and social considerations to be taken into account when they are adopted. Though, in consequence, there are, in the main clauses of the Staff Regulations of Officials, which were based on the Treaty and adopted by a special procedure, a number of passages disclosing the existence of a discretion, it is difficult to imagine that an instrument, based on the Staff Regulations, which was adopted exclusively by an institution of the Community without any special procedure and which, under the Staff Regulations of Officials, was not even necessary, was intended to create an exception to the question of principle which I have just considered. In fact, closer examination confirms this view. As we know, the implementing regulations refer to a number of clear criteria, such as the existence of a maintenance obligation, the age, state of health and resources of the assisted person and, again, the ratio of maintenance expenditure to the applicant official's basic salary, in other words considerations of a markedly factual nature. Nevertheless, it requires no effort for us to regard them as merely minimum requirements or as pointers facilitating the application of Article 2(4) of Annex VII to the Staff Regulations of Officials and to accept that, even though they were introduced to ensure that all beneficiaries were treated alike, they do not necessarily exclude considerations involving an appraisal. The opening sentence of Article 1 of the Decision of the Council is not the only one which uses the word ‘may’ to indicate a power of discretion on the part of the administration. Moreover, certain considerations involving Article 1 (4) of the implementing Decision, which was the subject of particular attention during the proceedings, make it clear that there is in fact a margin of discretion in the sense contended for by the Council. As we know, this provision declares as follows: The official must produce evidence that he devotes to the maintenance of that person a sum equal to at least 20 % of his taxable income increased, where applicable, by the net amount of the official's income from other sources. For the purposes of this provision, the cost of maintaining a person is, in the absence of evidence to the contrary, presumed to amount to 60 % of the basic salary of an official in Grade D 4, first step. Where applicable, the other resources of the person concerned must be deducted from that sum. Account must also be taken of the extent to which other persons who are, in law, under a legal obligation to assist have assets available for the fulfilment of their obligations. Judging by the provision quoted, taken together with the main provision governing the matter (Article 2(4) of Annex VII to the Staff Regulations of Officials), which refers to a legal responsibility to maintain which must, according to that article, involve heavy expenditure, it is, of course, impossible to regard actual payment of a particular amount as sufficient to justify application of the provision of the Council. Logically and in order to avoid any subjective consideration which might give rise to abuse, the implementing decision must rather be interpreted by answering the question whether the extent of the legal obligation to maintain involves heavy expenditure, in other words it is essential to ascertain what maintenance is necessary and appropriate. Seen from this point of view — and here I am in agreement with the Council — the purpose of the first subparagraph of Article 1(4) of the Decision of the Council is, accordingly, to lay down the principle that the applicant must prove that he is out of pocket. Paragraph (2) of figure 4 again specifies and lays down, in particular as regards certain minimum payments which fall below the minimum subsistence figure provided for under the Staff Regulations of Officials, the presumption that those payments must continue to be regarded as necessary maintenance payments. But, as is implied by the words ‘in the absence of evidence to the contrary’, in the case of anything beyond that, evidence must be adduced to show that they are fit and proper maintenance payments and, of course, it is by the applicant official that the evidence must be produced. One must not, of course, underestimate the uncertainty which this interpretation may create in connexion with the undoubtedly complicated subject of the application of national law governing maintenance allowances. Nevertheless, since Community law does not provide any guidelines on this point and since, moreover, the provision involved is a derogative one and must, in principle, be strictly interpreted, it does not really seem wrong to hold that the criterion in question is necessary to ensure that the provisions of the Staff Regulations are correctly applied. Consequently, with regard to the question of legal principle with which we are here concerned, I am of the opinion, in agreement with the Council, that under the Staff Regulations there is no duty to treat certain persons as dependent children once certain conditions have been satisfied; on the contrary, in my opinion, the administration enjoys a margin of discretion on this subject and it may, in particular, decide whether the payments made by an applicant really correspond to his maintenance responsibilities. To conclude, it is, in my opinion, impossible to read into Article 2 of the Decision of the Council, namely, the provision for a special procedure to cover derogations from the conditions laid down in Article 1, anything of any weight whatever to invalidate this contention. It is obviously necessary for the other institutions to be consulted in order to coordinate administrative practice on cases involving departure from the minimum conditions referred to. But it is impossible to prove thus, and in spite of the abovementioned arguments based on the wording, the meaning and the aim of the rules, that when the conditions in Article 1 are satisfied, those responsible for a decision are always bound to grant assimilation. I have now made clear what reply should, in principle, be given to the second conclusion of the applicant. All that remains for me to do is to consider whether the objections which he raises against the rejection of his application can be sustained in the light of the conclusions I have reached. The Court will be aware that the Council does not deny that the applicant is under an obligation to pay a maintenance allowance to his mother. But the Council contends that, in view of German and Belgian legislation on maintenance allowances, which require to know what are the appropriate means of subsistence in accordance with the beneficiary's standard of living, it has not been demonstrated that it was fit and proper for the applicant's mother to be found a place in the home which he chose. In support of this argument, the Council submitted during the proceedings a long list of Belgian homes from which it emerges that current charges in private homes in the province of Brabant are on average lower, in other words they range, for full board, from Bfrs 8000 to Bfrs 10000. Moreover only in a few homes which can be described as being in the luxury class are the charges as high as those quoted by the applicant. But the latter put forward essentially arguments solely in terms of legal principle and, during the proceedings, raised only the question whether, in Belgium, there in fact were any cheaper homes providing medical attention day and night. In these circumstances there can, in my opinion, be no doubt that the applicant has failed to adduce the evidence required of him that his maintenance disbursements were appropriate. Moreover, as the case involves matters of judgment and discretion, in which the Court of Justice cannot put itself in the place of the administrative authorities and which, in consequence, cannot be the subject of further clarification in the course of the proceedings, the only conclusion which can be drawn concerning the applicant's second complaint is the following: the complaint which I have just considered does not enable the application to be allowed because the Council correctly interpreted the relevant instrument and because there has been no proof that its assessment of the factual position was at fault.