JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (First Chamber)

12 December 2013 ( )

(Civil service – Remuneration – Family allowances – Dependent child allowance – Education allowance – Children of applicant’s wife not living at the home of the couple – Conditions for granting)

In Case F‑22/12,

ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,

Mark Hall, temporary staff member at the European Police College, residing in Petersfield (United Kingdom), represented by L. Levi and M. Vandenbussche, lawyers,

applicant,

v

European Commission, represented by J. Currall and D. Martin, acting as Agents,

and

European Police College (CEPOL), represented by F. Bánfi, acting as Agent,

defendants,

THE CIVIL SERVICE TRIBUNAL (First Chamber)

composed of H. Kreppel, President, E. Perillo and R. Barents (Rapporteur), Judges,

Registrar: J. Tomac, Administrator,

having regard to the written procedure and further to the hearing on 30 April 2013,

gives the following

Judgment

1 By application received at the Tribunal Registry on 17 February 2012, M. Hall brought the present action seeking annulment of the implied decision of 25 March 2011 and of the express decision of the European Commission of 11 July 2011 rejecting his application for dependent child and education allowances for his wife’s three children for the period in which they were still living in the Philippines and compensation for the material and non-material damage incurred as a result of the non-payment of those allowances.

Legal context

2 Article 2 of Annex VII to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) provides:

‘1. An official who has one or more dependent children shall, in accordance with paragraphs 2 and 3 below, receive an allowance of EUR 372.61 per month for each dependent child.

2. “Dependent child” means the legitimate, natural or adopted child of an official, or of his spouse, who is actually being maintained by the official.

…’

3 Article 3(1) of Annex VII to the Staff Regulations states:

‘Subject to the conditions laid down in the general implementing provisions, an official shall receive an education allowance equal to the actual education costs incurred by him up to a maximum of EUR 252.81 per month for each dependent child, within the meaning of Article 2(2) of this Annex, who is at least five years old and in regular full-time attendance at a primary or secondary school which charges fees or at an establishment of higher education. The requirement of attendance at a school which charges fees shall not apply to the reimbursement of the cost of school transport.

Entitlement to this allowance commences on the first day of the month in which the child begins to attend a primary educational establishment and shall cease at the end of the month in which the child reaches the age of 26.

…

If custody of the child in respect of whom the education allowance is paid has been entrusted by law or by an order of court or of the competent administrative authority to another person, the education allowance shall be paid to that person in the name and on behalf of the official. In such case, the distance of at least 50 km referred to in the preceding paragraph shall be calculated from the place of residence of the person having custody of the child.’

Background to the dispute

4 On 24 June 2008, the applicant married a Philippine national, Mrs B, who had three children from a previous marriage. Mrs B’s first marriage was annulled in January 2008 by a regional court in the Philippines and she was awarded custody of her three children. Following her marriage to the applicant she moved to the United Kingdom to pursue her studies. Her three children remained in the Philippines with their maternal grandparents.

5 On 31 March 2009, in the context of various administrative procedures prior to taking up duties at the European Police College (CEPOL), the applicant made an application for dependent child and education allowances for his wife’s three children. That application was forwarded to the Commission’s Office for Administration and Payment of Individual Entitlements.

6 On 1 April 2009, the applicant took up his duties as a temporary staff member at CEPOL in the United Kingdom.

7 On 29 April 2009, at CEPOL’s request, the applicant completed three declarations, one for each child, concerning entitlement to the dependent child allowance.

8 At the Commission’s request, the applicant had to provide several documents proving that he was in fact legally required, jointly with his wife, to provide support for the children remaining in the Philippines and that he was maintaining them, given that his wife was living in the United Kingdom and was not working and the children were living with their grandparents in the Philippines.

9 In August 2010, the younger daughter came to live in the United Kingdom to pursue her studies there. The youngest of the children did the same the year after, in August 2011. The elder daughter suspended her studies in March 2011 and stayed in the Philippines.

10 On 27 September 2010, the applicant received a decision from the Commission refusing him the dependent child and education allowances.

11 On 25 November 2010, the applicant submitted new documents, in particular copies of his wife’s and the younger daughter’s passports stamped with a residence permit with indefinite leave to remain in the United Kingdom and a signed letter from his wife’s ex-husband stating that he had no financial means to provide for the needs of the children.

12 Following the submission of those new documents, the applicant’s file was re-examined and the Commission, on 1 and 3 February 2011, asked the applicant for additional information about his financial support for the children’s needs.

13 On 16 February 2011, the applicant provided documents relating to education costs. He explained that those documents had been issued in the names of the three children and that his wife had paid those costs from her bank account in the Philippines. He also stated that there were no records of the cash transactions between him and his wife. At the same time, he provided a copy of his passport showing that he had visited the Philippines several times.

14 On 24 June 2011, the applicant, through his lawyers, submitted a complaint to the Commission under Article 90(2) of the Staff Regulations against the implied rejection of his application seeking dependent child and education allowances for his wife’s three children.

15 The Commission replied by letter of 6 July 2011, pointing out that it did not have all the information requested, that the file was to be re-examined in relation to the younger daughter and that the applicant would receive a new decision shortly. As regards the decision of 27 September 2010, the Commission indicated that it must be considered final, since it was not challenged within the prescribed period.

16 On 11 July 2011, the Commission adopted a new decision, granting the applicant dependent child and education allowances for the younger daughter from the date of her arrival in the United Kingdom, on the condition that he provided additional proof that she resided with him and that he was in fact bearing the cost of her education and maintenance. However, the Commission refused to grant him the two allowances for the other two children on the ground that they were not living with him and he had not proved that he was supporting them financially.

17 On 19 July 2011, the Commission informed the applicant’s lawyers that the complaint of 24 June 2011 had been transferred to the Commission’s services dealing with complaints and registered on 11 July by those services.

18 On 22 July 2011, the Commission confirmed that, in the context of the complaint, it would also assess the decision taken on 11 July 2011.

19 The complaint was rejected on 9 November 2011.

Forms of order sought

20 The applicant claims that the Tribunal should:

– annul the implied decision of 25 March 2011 and the express decision of 11 July 2011 (‘the contested decisions’), confirmed by the decision of 9 November 2011 rejecting his complaint, in so far as those decisions rejected his application for dependent child and education allowances for his wife’s three children for the period in which they were still living in the Philippines;

– recognise, as a consequence, his entitlement to those allowances;

– grant compensation for material damage, consisting of a retroactive payment of those allowances as of 1 April 2009, provisionally assessed at EUR 33 673.31, with default interest at the European Central Bank key rate plus two percentage points;

– grant compensation for non-material damage, evaluated at EUR 20 000;

– order the Commission and CEPOL to pay the costs.

21 The Commission contends that the Tribunal should:

– dismiss the application;

– order the applicant to pay the costs.

22 CEPOL contends that the Tribunal should:

– declare the application to be inadmissible in so far as it is directed against it;

– make a ruling as to costs in accordance with the applicable provisions.

Law

The pleas of inadmissibility raised by the defendants

23 According to settled case-law, the Courts of the European Union are empowered to determine, according to the circumstances of each case, whether the sound administration of justice justifies ruling on the substance of the application without first ruling on the plea of inadmissibility raised by the defendant (see, to that effect, Case C‑23/00 P Council v Boehringer [2002] ECR I‑1873, paragraphs 51 and 52; Case C-233/02 France v Commission [2004] ECR I-2759, paragraph 26; Case T‑171/02 Regione autonoma della Sardegna v Commission [2005] ECR II‑2123, paragraph 155; and judgments of the Tribunal of 8 April 2008 in Case F‑134/06 Bordini v Commission, paragraph 56, and of 28 September 2011 in Case F‑26/10 AZ v Commission, paragraph 34).

24 In the circumstances of the present case and in the interests of procedural economy, the pleas on the merits raised by the applicant must be examined without first ruling on the objection of inadmissibility raised by the Commission, the latter having stated at the hearing that it no longer wished to persist with the pleas relating to the admissibility of the action.

25 As regards the objection of inadmissibility raised by CEPOL, it is appropriate, however, to declare at the outset that the action is inadmissible in so far as it is directed against CEPOL, since the applicable rules designate the Commission as defendant. The Commission accepts that it is solely responsible for the contested decisions and does not dispute that it is the only defendant in the present case.

Admissibility of the applicant’s claim seeking recognition of his entitlement to dependent child allowance and education allowance

26 In the applicant’s second head of claim, he requests that the Tribunal recognise his entitlement to the dependent child allowance and the education allowance.

27 It is settled case-law that the Courts of the Union have no jurisdiction to issue directions to the institutions (judgment of 5 July 2011 in Case F‑46/09 V v Parliament, paragraph 63 and the case-law cited).

28 In an action brought under Article 91 of the Staff Regulations, heads of claim requesting the Tribunal to address directions to the administration or to recognise the validity of certain pleas in law relied on in support of a claim for annulment are manifestly inadmissible, since it is not for the European Union judicature to issue directions to the institutions of the European Union or to make statements of law in the abstract. That applies to claims requesting the Tribunal to establish the existence of certain facts and to instruct the administration to adopt measures such as to reinstate the person concerned in their rights (order of 29 June 2010 in Case F‑11/10 Palou Martínez v Commission, paragraphs 29 to 31).

29 Consequently, the second claim must be dismissed as inadmissible.

Substance

30 In support of his application for annulment, the applicant relies on three pleas in law, alleging, first, infringement of Article 2 of Annex VII of the Staff Regulations, secondly, infringement of Article 3 of Annex VII of the Staff Regulations and, thirdly, infringement of the obligation of due care and good administration.

Arguments of the parties

31 In the context of his first plea, the applicant claims to have proved that all the conditions laid down in Article 2 of Annex VII of the Staff Regulations were fulfilled. First, he demonstrated, in his statement on entitlement to dependent child allowance of 29 April 2009, that his wife’s children were under 26 years of age and the eldest daughter, who turned 18 years of age in November 2008, received full-time education until March 2011. Secondly, the applicant claims to have demonstrated that the three children were actually dependent on him at the material time and they were actually maintained by him. In that regard the applicant notes that his wife was not working, that the biological father of the children did not maintain them and that he was the only income earner in the family.

32 As regards the evidence provided, the applicant refers to four affidavits submitted, respectively, by his wife’s mother, by her brother and by two of her personal assistants, as well as invoices relating to the education expenses of the three children for the academic years 2009/2010 and 2010/2011 and the accommodation expenses of the eldest daughter during her university studies in Manila (Philippines). Again according to the applicant, the affidavits demonstrate that he actually contributed to all or part of the essential needs of his wife’s children by means of a financial contribution and/or in kind, and assumed legal responsibility for them.

33 Finally, the applicant submits that the Commission could not legally require him to prove the amounts transferred to the Philippines, as he had already demonstrated that he actually contributed to the children’s essential needs. As those transfers had been made in cash to avoid losses connected with exchange rates, and as, moreover, the applicant and his wife took cash when they travelled to the Philippines, it was materially impossible for him to prove that transactions were carried out in this way. Again according to the applicant, neither the Staff Regulations nor the case-law require the quantification of the actual maintenance of the children.

34 The Commission notes that the applicant has the burden of proving that he actually bore all or part of the costs relating to the children’s board, lodging, clothing and medical care. According to the Commission, the affidavits and other documents submitted in no way substantiated the assertion that the applicant had actually borne those costs, with the exception of some education costs. Therefore, again according to the Commission, it was entitled to require that the applicant prove the amounts transferred to the Philippines.

35 The Commission also notes that the children’s educational costs borne by the applicant were substantially lower than the amount of family allowances. According to it, in the absence of appropriate documentary evidence that the applicant bore all or part of the children’s maintenance costs, the payment of the allowances for the children would amount to an unjust enrichment.

Findings of the Tribunal

36 Article 2(2) of Annex VII of the Staff Regulations defines the concept of dependent child. This is the ‘legitimate, natural or adopted child of an official, or of his spouse, who is actually being maintained by the official’.

37 Article 2(3)(a) and (b), and Article 2(5) of Annex VII of the Staff Regulations then makes the granting of the allowance conditional upon certain conditions that the dependent child must fulfil, namely: he must be under 18 years of age, aged between 18 and 26 and receiving educational or vocational training or prevented by serious illness or invalidity from earning a livelihood.

38 It follows from the case-law that, in each of the three cases listed in the previous paragraph of the present judgment, the Staff Regulations confer on the appointing authority circumscribed powers, in so far as the appointing authority is bound to grant dependent child allowance if it finds that these conditions are satisfied. Dependent child allowance is granted automatically for children under 18 years of age and on application by the official in the other cases. Likewise, the concept of dependent child is specifically conceived by the Staff Regulations, in accordance with Article 2(2) of Annex IV thereof, to define the three cases in which the payment of family allowance is automatic, as defined in Article 2(3)(a) and (b) and Article 2(5) (Case T‑75/89 Brems v Council [1990] ECR II-899, paragraphs 23 and 27).

39 Ruling on the appeal by the Council of the European Union against the judgment in Brems v Council, the Court of Justice of the European Union confirmed that Article 2(3) and (5) of Annex VII of the Staff Regulations concern cases where entitlement to the dependent child allowance for an official’s child arises automatically by reason of the fact that it is presumed in those provisions that the child referred to in them is, solely on account of his being a minor, a student, a sick person or an invalid, in fact dependent on the official (Case C-70/91 P Council v Brems [1992] ECR I-2973, paragraph 5, and the Opinion of Advocate General Darmon in that case, paragraph 34).

40 It does not follow, however, that the institution is exempt from the obligation to verify that the condition of actual maintenance of the child by the official, laid down in Article 2(2) of Annex VII of the Staff Regulations, is satisfied. A minor child cannot be regarded as dependent on the official concerned or give rise to entitlement to dependent child allowance when another person, public or private, fully provides for his actual maintenance (see, to that effect, Case C‑132/90 P Schwedler v Parliament [1991] ECR I‑5745, paragraphs 19 to 24).

41 It must therefore be concluded that, even in the case of a minor child, the right to dependent child allowance is, in principle, subject to the condition that the child is actually maintained by the official concerned, in accordance with the first paragraph of Article 2(2) of Annex VII to the Staff Regulations. It is only if this condition is fulfilled that it can be considered that the powers of the appointing authority are circumscribed, in the three cases referred to in Article 2(3)(a) and (b) and Article 2(5) of that annex (judgment of 11 July 2000 in Case T‑134/99 Skrzypek v Commission, paragraph 66).

42 It therefore remains to be established whether, in the present case, the Commission was entitled to challenge the evidence of actual maintenance submitted by the applicant.

43 On the face of it, and as the Commission acknowledged at the hearing, it is clear that the applicant has a legal obligation to maintain the children of his wife by virtue of the fact that he is married to their mother, and pursuant to the Family Code of the Philippines.

44 In that regard, the applicant submitted three certificates which the Commission has not challenged and which clearly show that the children were maintained by the applicant.

45 In the particular circumstances of the present case, those certificates establish that the applicant was actually providing for the essential needs of his wife’s children. It is apparent, indeed, that the applicant financially supported the three children during their education in the Philippines. He regularly sent pounds sterling by post, which were then converted to Philippine pesos used for the education and maintenance of the children. The lack of evidence of transfers of money by the postal services, as required by the Commission, is therefore not relevant.

46 As regards the Commission’s argument that the amount of the allowances was far greater than the amount required for the maintenance of the children and would, therefore, amount to an unjust enrichment, the Commission does not explain how that argument could have called into question the actual maintenance of the children by the applicant.

47 In the light of all the foregoing considerations, it is appropriate to conclude that the contested decisions, in so far as they rejected the applicant’s application for dependent child allowance and education allowance for his wife’s three children, with regard to the period when they were still living in the Philippines, on the ground that they were not actually maintained by the applicant, must be annulled.

48 Consequently, it is unnecessary to give a decision on the applicant’s other pleas in law.

The claims seeking compensation for damage

Arguments of the parties

49 The applicant claims to have suffered material damage, since he has not received dependent child and education allowances since 1 April 2009.

50 The applicant also claims non-material damage evaluated ex aequo et bono at EUR 20 000, caused by an unjustified delay in the recognition of his entitlement and by contradictory and repeated requests for evidence that consistently led to the rejection of his claim, even when he supplied the requested documents.

51 The Commission contends that the claim for compensation for material damage is inadmissible, if not unfounded. As regards compensation for non-material damage, the Commission contends that, given that he considered the claim to be related to alleged misconduct by the Commission’s services, the applicant had failed to comply with the administrative procedure of submitting a request for compensation pursuant to Article 90(1) of the Staff Regulations.

Findings of the Tribunal

52 It is settled case-law that the annulment of an act of the administration which has been challenged by an official constitutes, in itself, appropriate and, in principle (that is to say, in the absence from that act of any expressly negative assessment of the applicant’s abilities likely to cause him prejudice), sufficient reparation for any non-material harm which the applicant may have suffered as a result of the annulled act (see, to that effect, Case C-343/87 Culin v Commission [1990] ECR I‑225, paragraph 27; judgment of 26 January 1995 in Case T‑60/94 Pierrat v Court of Justice, paragraph 62; judgment of 13 December 2007 in Case F‑42/06 Sundholm v Commission, paragraph 44).

53 In the present case, it must be held that none of the applicant’s pleadings contain any evidence as regards the extent of the non‑material harm he has allegedly suffered, or, a fortiori, as regards the issue of whether that harm cannot be fully compensated for by the annulment of the contested decisions.

54 In those circumstances, the claim for compensation for material damage must be rejected and the annulment of the contested decision constitutes, in the present case, adequate compensation for the harm suffered.

55 The claim for compensation must, therefore, be dismissed in its entirety.

Costs

56 Under Article 87(1) of the Rules of Procedure of the Court of Justice, without prejudice to the other provisions of Chapter 8 of Title 2 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that that party is not to be ordered to pay any.

57 It is apparent from the grounds set out in the present judgment that the Commission has for the main part been unsuccessful. Furthermore, in his pleadings the applicant has expressly applied for the Commission to be ordered to pay the costs. As the circumstances of the present case do not justify the application of Article 87(2) of the Rules of Procedure, the Commission must bear its own costs and be ordered to pay the costs incurred by the applicant.

58 As the present judgment has declared the action inadmissible in so far as it is directed against CEPOL, it is appropriate to order the applicant to pay the costs incurred by CEPOL.

On those grounds,

THE CIVIL SERVICE TRIBUNAL (First Chamber)

hereby:

1. Dismisses the action as inadmissible, in so far as it is directed against the European Police College;

2. Annuls the implied decision of 25 March 2011 and the express decision of 11 July 2011 of the European Commission rejecting the application for dependent child and education allowances for the three children of Mr Hall’s wife, for the period in which they were still living in the Philippines;

3. Dismisses the remainder of the action brought against the European Commission;

4. Declares that the European Commission is to bear its own costs and orders it to pay the costs incurred by Mr Hall;

5. Orders Mr Hall to pay the costs incurred by the European Police College.

Kreppel Perillo Barents

Delivered in open court in Luxembourg on 12 December 2013.

W. Hakenberg H. Kreppel