Opinion of Mr Advocate General Darmon delivered on 19 February 1992. - Council of the European Communities v Anita Brems. - Officials - Meaning of "dependent child" - Persons treated as such - Child of the official - Illegality of general implementing rules. - Case C-70/91 P.



European Court reports 1992 Page I-02973



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1. Can the child of an official be "treated as if he were" a dependent child for the purposes of Article 2(4) of Annex VII to the Staff Regulations? That, in essence, is the question which the Council of the European Communities, in appealing against the judgment of the Court of First Instance of 14 December 1990, (1) is asking this Court to consider.

2. Article 2(1) of Annex VII to the Staff Regulations establishes an allowance in respect of a dependent child.

3. Article 2(2) defines "dependent child" in the following terms:

"' Dependent child' means the legitimate, natural or adopted child of an official, or of his spouse, who is actually being maintained by the official (...)."

4. Article 2(3) sets out the conditions governing the award of the allowance. It is granted:

"(...)

(a) automatically for children under 18 years of age;

(b) on application, with supporting evidence, by the official for children between 18 and 26 who are receiving educational or vocational training."

5. Article 2(4), which represents the crux of the Brems case, further 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". (2)

6. Mrs Brems, an official of the Council, received a dependent child allowance (3) on behalf of her son, born in 1967, until 1 July 1988. On that date the allowance was withdrawn, because the applicant' s son had completed his course of further education.

7. By letter of 27 October 1988, (4) Mrs Brems asked that payment of the allowances be resumed, claiming that her son should be "treated as if he were a dependent child" on the grounds that, being unemployed, he involved her in heavy expenditure and that she had a legal responsibility towards him.

8. On 29 November 1988 (5) the Secretariat General of the Council rejected that application on the grounds that "treatment of a person as if he were a dependent child by special reasoned opinion of the appointing authority (...) can be allowed only in respect of any person other than a dependent child".

9. By a further letter of 6 December 1988, (6) which she describes as an administrative complaint under Article 90(2) of the Staff Regulations, Mrs Brems challenged the Council' s position:

"(...) Since my child is aged over 18 and no longer in receipt of educational or vocational training, he no longer qualifies as a 'dependent child' within the meaning of the Staff Regulations. That is why he must, in my opinion be regarded, as 'another person' , whose treatment as if he were a dependent child is permitted under the Staff Regulations."

10. On 19 December 1988 the appointing authority confirmed its decision of 29 November 1988. (7)

11. Article 3 of a Council Decision of 15 March 1976 laying down general rules for implementing Article 2(4) of Annex VII to the Staff Regulations (8) (hereinafter referred to as "the general implementing rules"), adopted pursuant to Article 110 of the Staff Regulations, provided that:

"The person in respect of whom application is made must be:

° over 60 years of age, in the case of a man, and over 55 years of age in the case of a woman or

° under 18 years of age or, if the person is receiving education or vocational training, under 26 years of age, or

° prevented by illness or invalidity from earning a livelihood."

Article 7 of the Decision provides that:

"The application may be granted where:

(a) on the one hand, the conditions laid down in Articles 2, 3 and 4 are satisfied;

(b) on the other hand, the cost of maintenance taken into account (...) is above 20% of the taxable amount (...)." (9)

12. The applicant' s son did not satisfy those conditions, and accordingly, the Council, by decision, refused to treat him as if he were a dependent child and to allow the applicant the benefit of Article 2(4).

13. The Court of First Instance, before which Mrs Brems had brought an action, annulled the decision of 29 November 1988 by judgment of 14 November 1990 (cited above), against which the Council has appealed to this Court.

14. Turning to Article 2 of Annex VII, the Court of First Instance held (10) that, in the case of children covered by paragraphs (3) and (5), the appointing authority is bound to grant the dependent child allowance if the child is actually being maintained by the official: the appointing authority enjoys circumscribed powers.

15. On the other hand, the Court of First Instance held with regard to paragraph (4) that the appointing authority holds a discretionary power "to decide to treat any person whom the official has a legal responsibility to maintain and whose maintenance involves heavy expenditure as if he were a dependent child". (11)

16. In seeking the basic principle underlying paragraph (4), the Court of First Instance states that "the purpose of this provision is to permit the appointing authority in exceptional cases to assist officials who incur heavy charges as a result of a legal obligation". (12)

17. The Court of First Instance produces a literal argument: owing to the generality of the term "any person", the official' s child who does not satisfy the conditions defined in paragraphs (3) and (5) may not legitimately be excluded from the scope of paragraph (4). (13)

18. Moreover, to exclude the children of officials from that general rule would be contrary to the principle of equal treatment (14) which "prohibits discrimination based solely on a person' s status".

19. The Court of First Instance then points out the paradox which would arise from such an exclusion: "Such an interpretation is even less justified since the family bond linking an official to his child is stronger than that linking him to other persons ° such as parents ...". (15)

20. The judgment against which this appeal is brought goes on to reject the argument that a misuse of procedure would result. It was held that such misuse would occur only if Article 2(4) authorized treatment as dependent children for children who met the conditions under Article 2(3) and (5) (regarding age-limits and invalidity) and who were actually maintained by an official, but who did not have the status of a legitimate, natural or adopted child of that official or of his spouse. The Court of First Instance recalls that, in its judgments, this Court has accepted that various categories of persons could be treated as if they were dependent children. The scheme of the Staff Regulations cannot preclude an official from applying for his own child to be treated as if he were a dependent child. (16)

21. Lastly, the judgment upholds the objection of illegality raised against Articles 3 and 7 of the Council Decision of 15 March 1976 adopting general rules for implementing Article 2(4) of Annex VII, on the following grounds:

° the general implementing rules cannot reduce the scope of the Staff Regulations;

° the expression "any person" is clear;

° by imposing minimum and maximum age-limits "the general implementing rules excluded from the scope of Article 2(4) all the persons who were in between the age-limits imposed, and thus deprived the appointing authority of the opportunity of exercising its discretion in each individual case". (17)

22. The Court of First Instance concludes from all those considerations that:

"by refusing to treat the applicant' s son as if he were a dependent child solely because he is outside the scope of Article 2(4) of the Annex ...",

the Council committed an error of law vitiating the legality of the contested decision, which must therefore be annulled. (18)

23. In its appeal the Council puts forward three pleas. (19)

24. In the first place, it claims that the Court of First Instance misinterpreted Article 2(4) of Annex VII to the Staff Regulations.

25. Secondly, the Court of First Instance made an erroneous application of the principle of non-discrimination.

26. Lastly, it was wrong in declaring Articles 3 and 7 of the Council Decision to be illegal.

27. I propose to examine those three pleas in turn.

28. In support of its first plea, the Council maintains that the Court of First Instance made an incorrect assessment of the general purpose and aim of Article 2, and failed to take account of the exceptional nature of treating a person as if he were a dependent child.

29. I propose to begin by putting Article 2(4) back into its context.

30. Annex VII to the Staff Regulations sets out the rules on the "remuneration and reimbursement of expenses". It provides that officials of the European Communities who have incurred certain commitments are entitled to a variety of allowances: family allowances, expatriation allowances, and so on.

31. Under Article 2 of the Annex, officials are entitled to receive allowances for dependent children.

32. After defining the term "dependent child" in paragraph (2), Article 2 subjects the grant of the allowance to certain conditions, particularly as regards the age of the child.

33. A child under 18 years of age and a child under 26 pursuing his education (to whom paragraph (5) adds the child prevented by serious illness or invalidity from earning a livelihood) are necessarily and obviously incapable of supporting themselves, simply by virtue of their status as a minor, a student or an invalid child. That is why the Staff Regulations presume that they are dependent on their parents and provides in their regard that, since their status is that of a "dependent child" within the meaning of paragraph (2), the dependent child allowance is available by right and may not be withheld by the appointing authority (20) which, as the Court of First Instance rightly held, enjoys circumscribed powers. (21)

34. Thus paragraphs (3) and (5) set out the instances in which the dependent child allowance is payable by the appointing authority, without its having any discretion in the matter.

35. There are other cases in which the official must in practice maintain a person who, although neither his minor child, nor his young child of full age receiving training, nor his invalid child, imposes the same commitments as such children.

36. For that reason paragraph (4) provides that any person may, exceptionally, be treated as if he were a dependent child if two conditions are met: the official must have a legal responsibility to maintain that person and his maintenance must involve heavy expenditure.

37. In such a case, the presumption that the person is unable to earn a livelihood no longer operates: it is the task of the official to furnish the appointing authority, which retains a full discretionary power in the matter, (22) with the evidence on both counts under paragraph (4).

38. This Court has already held in the Brandau (23) judgment that:

"The actual words used in Article 2(4) of Annex VII make it clear that those who drafted the regulations intended to leave the administration some discretion in appraising the facts and circumstances adduced, in each case, in support of a request for assimilation.

Such a margin of discretion is justified by the considerations of natural justice to which the administration must have regard in exercising the special power provided for under the provision in question and by the resultant need to judge each case on its merits." (24)

39. Thus, the appointing authority has acknowledged the dependent status of an official' s mother. (25)

40. The term "any person" demonstrates that a "person ... treated as if he were a dependent child" is a generic category covering widely differing situations. Only such broadly drafted wording can embrace all classes of person supported by an official and yet falling outside the scope of Article 2(3) and (5).

41. We may recall that the three cases envisaged by those two paragraphs deal with circumstances in which the dependent child allowance is automatically granted (26) because it is clearly justified in such cases: the wording requires neither "supporting documents" nor evidence of "heavy expenditure".

42. However, those three contingencies do not exhaust all the circumstances in which, in practice, a child is dependent on his parents. A child of between 18 and 26 years may give up his course of study or vocational training and remain dependent on his parents: he will not then be covered by paragraph (3)(b). Nevertheless, he imposes the same commitments on his parents as does a child of the same age who continues his education. Similarly, a child may be dependent on his parents and incapable of earning a livelihood even beyond the age of 26.

43. It is, however, self-evident that in such cases the grant of the dependent child allowance cannot be automatic; it presupposes (i) that the official applying for the allowance supplies the evidence required by paragraph (4) and (ii) that the appointing authority exercises its discretionary power. Here, the need for the allowance is not taken for granted but must be substantiated, precisely because it is exceptional.

44. In plain language, paragraphs (3) and (5) do not cover the only three cases in which the child of an official confers an entitlement to the dependent child allowance. They cover the only three cases in which that allowance is paid automatically. It does not follow that the official' s child does not qualify for the dependent child allowance in other circumstances. In those cases the need for the allowance must be substantiated.

45. The fundamental feature distinguishing paragraphs (3) and (5) on the one hand from paragraph (4) on the other is not their scope ratione personae (whereby the first two relate to children of officials whereas the third covers all other persons) but rather their evidential requirements.

46. Paragraphs (3) and (5) relate to ° identified ° cases in which the need for the allowance is beyond doubt: it is then payable. Paragraph (4) relates to cases ° still to be identified ° in which the need for the allowance is in doubt: it must then be substantiated.

47. It follows that the official' s child must qualify for inclusion in the category of "any person" whenever he does not fall within paragraphs (3) and (5). The child "treated as if he were a dependent child" is one who, although not meeting the conditions under those paragraphs, qualifies for the allowance because it is proved that maintaining him involves his parent in heavy expenditure. (27)

48. It is, indeed, hardly imaginable that the child of the official ° whom the Community legislature wished to benefit by creating a special allowance for him ° should not enjoy treatment as if he were a dependent child, when the parents, grandparents or former spouse may do so ° a paradox aptly emphasized by the Court of First Instance in paragraph 26 of its judgment.

49. Lastly, it should be recalled that, in the Brandau judgment, (28) this Court called upon the appointing authority to have regard to the considerations of natural justice when applying paragraph (4). Considerations of natural justice hardly lend themselves to a restrictive interpretation of "any person".

50. In support of its contention that paragraph (4) does not allow the official' s own child to be treated as if he were a dependent child, the Council relies mainly on the Moulijn (29) judgment of 21 November 1974. The applicant in that case was seeking the annulment of the Commission' s decision refusing to treat his divorced wife as if she were a dependent child on the ground that he did not devote to her maintenance a sum of at least 20% of the taxable amount of his salary. The Commission relied on the general implementing provisions which it had adopted pursuant to Article 110 of the Staff Regulations in order to give effect to Article 2(4); Article 1 of those implementing provisions provided as follows: "In order for another person to be treated as if he were a dependent child, the following conditions must be satisfied: (...) (4) The official must provide evidence that he devotes a sum equal to not less than 20% of the taxable amount of his salary (...) to the maintenance of the person for whom he is responsible".

51. The Court held that:

"(...) it is necessary to bear in mind that treatment as a dependent child has an exceptional character which is emphasized by the very text of Article 2(4) of Annex VII of the Staff Regulations, which provides that this can only be done 'exceptionally' and 'by special reasoned decision' ;

(...) the conditions laid down for another person to be treated as dependent child must accordingly be interpreted strictly". (30)

52. In that passage the Court is quoting the term "another person" which appears in the general implementing provisions adopted by the Commission. (31)

53. That term should be read as "a person other than those to whom paragraph (3) refers". (32) It does not follow that the term disqualifies from treatment as a dependent child the children of an official who find themselves in circumstances other than those covered by paragraph (3).

54. Finally, it is not surprising that the provisions of Article 2(7) of Annex VII ° which, when the official to whom the allowance is awarded is not the custodian of the child, provides that payment is to be made direct to the spouse or third party actually having custody of the child ° refer only to the dependent child within the meaning of paragraphs (2) and (3).

55. That is so because such a contingency is alien to paragraph (4), which assumes that the official is actually and directly responsible for the maintenance of the person treated as a dependent child.

56. It follows that the Court of First Instance was interpreting the Staff Regulations quite correctly when it held that "the Community legislature did not intend to exclude from the scope of Article 2(4) a child who does not satisfy the conditions for granting dependent child allowance defined in Article 2(3) and (5), merely because he is 'the legitimate, natural, or adopted child of an official, or of his spouse' , within the meaning of Article 2(2)". (33)

57. Turning to the second plea, in which it alleges the misapplication of the principle of non-discrimination, the Council maintains that there was no infringement of that principle inasmuch as the classes of person permitted by the Court or under the general implementing rules, to enjoy treatment as if they were dependent children under Article 2(4) satisfied the same maximum age-limits as are imposed on dependent children under Article 2(3).

58. Since those limits were established by Article 3 of the general implementing rules, an inquiry as to whether or not there was discrimination in this case is here tantamount to a review of the legality of Articles 3 and 7 of the Decision of 15 March 1976 on which the Council based itself when adopting the contested decision ° the subject of the third plea.

59. It may be recalled that Article 110 of the Staff Regulations provides ° without further defining their purpose ° that "The general provisions for giving effect to these Staff Regulations shall be adopted by each institution after consulting its Staff Committee and the Staff Regulations Committee provided for in Article 10".

60. This Court held in the Prakash (34) and Rauch (35) judgments that general implementing provisions are adopted by the institutions, first, when the articles of the Staff Regulations instruct them to make rules on specific points (36) and, secondly, when the Staff Regulations are not sufficiently explicit. General implementing provisions have, for example, been adopted on the procedure for the promotion of staff. (37)

61. As far as Article 2(4) of Annex VII to the Staff Regulations is specifically concerned, the extent of the legislative powers derived by the institutions from Article 110 thereof was defined in the Brandau judgment of 7 June 1972. (38)

62. Mr Brandau, an official of the Secretariat General of the Council, had brought an action seeking to have his mother treated as a dependent child under Article 2(4), claiming that he was financing her accommodation in an old people' s home. The Council had refused to treat her as a dependent child, inter alia on the ground that Mr Brandau had not furnished evidence of the need for payments for the benefit of his mother.

63. A decision of the Council of 2 April 1964 laying down general implementing provisions for Article 2(4) of Annex VII had defined a number of prerequisites governing treatment as a dependent child, relating mainly to the amount of expenditure incurred by the official in maintenance.

64. The applicant claimed that, since the conditions laid down by Article 2(4) and by the general implementing provisions were satisfied, the Council was obliged to grant treatment as a dependent child, otherwise it would be in breach of the general principle of equal treatment for officials.

65. The Court held as follows:

"Although, in applying Article 2(4) of Annex VII to the Staff Regulations, each institution of the Community can lay down in advance and in general terms the objective criteria which it intends to observe, they cannot be regarded as other than a statement of minimum requirements, applicable in all cases, without prejudice to the exercise, in each individual case, of the discretion conferred on the administration by the Staff Regulations themselves.

This discretion on the part of the administration, which is essential to enable it to take account of the manifold unforeseeable facts peculiar to each case, is not incompatible with the general principle, relied on by the applicant, of equal treatment for officials.

This general principle does not mean that, in applying the provision concerned, the administration must merely carry out a mechanical application of predetermined rules and criteria.

Such an interpretation would conflict with the need for evaluation of the often complicated factual considerations peculiar to each individual case." (39)

66. The Court was thus stating forcefully that the appointing authority continues to enjoy its discretionary power even when the objective criteria laid down by the general implementing provisions have been met.

67. In that case the legality of the general implementing provisions regarding the minimum maintenance expenditure to be incurred by the official was neither raised nor discussed. Being applicable irrespective of the person being supported by the official, the criterion entailed no discrimination and was justified by the exceptional nature of the application of Article 2(4) of Annex VII.

68. The present case is in no way comparable.

69. It is worth repeating the provisions of Article 3 of the general implementing rules adopted by the Council on 15 March 1976:

"The person in respect of whom application is made must be:

° over 60 years of age, in the case of a man, and over 55 years of age in the case of a woman or

° under 18 years of age, or, if the person is receiving education or vocational training, under 26 years of age, or,

° prevented by illness or invalidity from earning a livelihood."

70. It is immediately apparent that an official' s child who does not meet the conditions under Article 2(3) and (5) cannot be included in the class of person treated as dependent children.

71. Whereas Article 2(4) allows the appointing authority a discretion in each individual case, the Council disqualifies from the benefit of that article (with the exception of a person stricken by serious illness or invalidity, for whom paragraph (5) has already made provision) the following persons, even if the official has a legal responsibility to maintain them and incurs heavy expenditure in doing so:

his child within the meaning of Article 2(2), who is over 18 years of age and who, although no longer in receipt of training, is unable to earn a livelihood for himself, and

any other member of the family aged between 18 years (or 26 if receiving training) and 55 in the case of a woman, or 60 in the case of a man.

72. The Council' s intention was therefore to make the grant of the dependent child allowance pursuant to paragraph (4) subject to the same conditions as those set out in paragraph (3). (40)

73. Accordingly, the official' s nephew or grandson (41) could not be treated as if they were dependent children unless they fulfilled the same age conditions as are required of a child under Article 2(3).

74. It is therefore my opinion that the Council' s action was at odds with the objective of Article 2 of Annex VII ° and with Annex VII as a whole, which seeks to cope generally with circumstances in which the official incurs an additional commitment ° and that it overlooked the possibility that these might be the circumstances of the official' s child himself if he could not claim the benefit of Article 2(3) or (5).

75. By restricting ratione personae the scope of paragraph (4) through the exclusion of whole classes of person, the general implementing rules have introduced a discriminatory practice, contrary to the principle of equal treatment.

76. As Advocate General Roemer recalled in his Opinion in Brandau, "the administration must ... appraise exceptional situations and ... it must ... take ... 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". (42)

77. By assuming in its decision of 15 March 1976 that anyone not falling within the stated age-limits would be capable of earning a livelihood, the Council has deprived the appointing authority of the discretionary power accorded to it by Article 2(4) of Annex VII.

78. Thus the Court of First Instance was right to hold that Articles 3 and 7 of the Council Decision of 15 March 1976 were vitiated by illegality.

79. Accordingly, I propose that the Court should also reject the second and third pleas.

80. My conclusion, therefore, is that the Court should dismiss the appeal and order the Council to bear the costs in accordance with the first and second paragraphs of Article 122 and the first paragraph of Article 69(2) of the Rules of Procedure.

(*) Original language: French.

(1) - Judgment in Case T-75/89 Brems v Council [1990] ECR II-899.

(2) - Emphasis added.

(3) - Pursuant to Article 2(3)(b): child under 26 years of age receiving educational training.

(4) - Annex 3 to the defence in the proceedings before the Court of First Instance.

(5) - As above, Annex 4.

(6) - As above, Annex 5.

(7) - As above, Annex 6.

(8) - As above, Annex 9.

(9) - Subject to deduction of certain amounts.

(10) - Paragraph 23 of the judgment appealed against.

(11) - As above, paragraph 24.

(12) - As above.

(13) - As above, paragraph 25.

(14) - As above, paragraph 26.

(15) - As above.

(16) - As above, paragraph 27.

(17) - As above, paragraphs 29 and 30.

(18) - As above, paragraph 31.

(19) - Paragraph 4 of the appeal.

(20) - See the wording: paragraph (3) states The allowance shall be granted: (a) automatically (...) (b) on application with supporting evidence (...) , and paragraph 5 provides payment of the allowance (...) shall continue . See also the observations made in the statement of defence before the Court of First Instance, p. 9.

(21) - Paragraph 23 of the contested judgment. The term had previously been used by the Court in the judgment in Case 65/83 Erdini v Council [1984] ECR 211 with reference to Article 1(2)(c) of Annex VII, laying down the conditions for the award of a household allowance.

(22) - See also the wording of paragraph (4): Any person ... may ... be treated as if he were a dependent child by special reasoned decision of the appointing authority ... .

(23) - Judgment in Case 46/71 Brandau v Council [1972] ECR 373.

(24) - Paragraphs 8 and 9; emphasis added.

(25) - See judgment in Case 339/85 Brunotti v Commission [1988] ECR 1379.

(26) - Since the child is actually a dependant.

(27) - And because the official is responsible for his maintenance.

(28) - Cited above, at paragraph 9.

(29) - Case 6/74 Moulijn v Commission [1974] ECR 1287.

(30) - Paragraphs 12 and 13; emphasis added.

(31) - See paragraph 4 of the Moulijn judgment, cited above.

(32) - In other words, a person other than the minor child and the child aged under 26 who is receiving training.

(33) - Contested judgment, paragraph 25.

(34) - Judgment in Joined Cases 19 and 65/63 Prakash v Commission of the EAEC [1965] ECR 533.

(35) - Judgment in Case 16/64 Rauch v Commission [1965] ECR 135.

(36) - For example, the first paragraph of Article 2: Each institution shall determine ... .

(37) - See judgment in Case 86/77 Ditterich v Commission [1978] ECR 1862.

(38) - Cited above.

(39) - Judgment cited above, paragraphs 11 to 14; emphasis added.

(40) - That is to say, as far as those aged up to 26 were concerned.

(41) - Unless the official had a legal responsibility to maintain them.

(42) - Judgment cited above (at page 385).