Opinion of Mr Advocate General Van Gerven delivered on 15 June 1989. - Francis Olbrechts and Ingeborg Olbrechts, née Hogrefe, v Commission of the European Communities. - Officials - Official on unpaid leave on personal grounds - Cover against sickness by the joint Sickness Insurance Scheme by virtue of the spouse's insurance. - Case 58/88.



European Court reports 1989 Page 02643



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . The question raised in this case is whether an official on unpaid leave on personal grounds is covered under the Sickness Insurance Scheme common to the institutions of the European Communities ( hereinafter referred to as "the joint scheme ") without having to contribute thereto if his or her spouse is also an official .

In the present case Mrs Olbrechts, an official on unpaid leave on personal grounds, was told that she was not covered under the joint scheme simply by virtue of insurance of her husband, also an official . The applicants' action seeks the annulment of the Commission' s decision making Mrs Olbrechts' cover conditional upon her paying the contributions provided for in Article 40(3 ) of the Staff Regulations .

Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the submissions and arguments of the parties, which are mentioned here only in so far as is necessary for the reasoning of this Opinion .

Admissibility

2 . In order to determine whether the appeal was lodged within the prescribed period, it is necessary to identify the act adversely affecting the applicants .

I share the Commission' s view that the memorandum drawn up by the Head of the Sickness and Accident Insurance Division and sent to Mrs Olbrechts, care of Mr Olbrechts, on 6 February 1987 is the act adversely affecting them . That memorandum was prompted by steps taken by Mr Olbrechts with a view to obtaining direct payment in respect of a surgical operation shortly to be carried out on his wife . The appropriate letter was in fact issued by the claims office in Brussels, which pointed out, however, that Mrs Olbrechts would have to pay contributions if she wished to remain covered by the joint scheme . In the memorandum of 6 February 1987, the head of the claims office set out the reasons for which the joint scheme extends to officials' spouses who are on leave on personal grounds only if they pay contributions . He expressly requests Mrs Olbrechts to put matters on a regular footing by paying up the contributions considered to be due . In that memorandum, therefore, the claims office expressed a reasoned decision adversely affecting the applicants .

It is true that the claims office is not the appointing authority . However, the appointing authority is not the only agency of a Community institution which can take decisions adversely affecting officials against which complaints may be submitted . The Court has, for example, acknowledged that complaints may be submitted against, inter alia, a staff report ( 1 ) or a decision of the Directorate-General for Financial Control refusing to pay an expatriation allowance . ( 2 ) By a judgment of 5 July 1984, ( 3 ) in fact, the Court annulled a decision of a claims office against which the applicant had first submitted a complaint before lodging an appeal .

The applicants, therefore, had to submit a complaint under Article 90(2 ) of the Staff Regulations within three months from the notification of the memorandum of 6 February 1987 if they wished subsequently to be able to appeal to the Court .

3 . However, the Commission does not state the date on which the memorandum of 6 February 1987 was notified, or the date on which Mrs Olbrechts, to whom it was addressed, actually took cognizance of it . The Commission' s representatives were questioned on this point at the hearing, but could only point to the silence of the applicants, who neither deny having received the memorandum not claim any delay in its notification . They were unable, however, to provide any evidence of a specific date on which the decision adversely affecting the applicants was notified to them .

In that regard, the Court, in line with its previous case-law, ( 4 ) noted in its judgment of 11 May 1989 in Joined Cases 193 and 194/87 Maurissen v Court of Auditors (( 1989 )) ECR 1045 ) that

"although a decision is properly notified, within the meaning of the Treaty, when it reaches the addressee and puts the latter in a position to take cognizance of it ..., it is for the party claiming that an action is out of time to prove the date on which the decision was notified" ( paragraph 46 of the judgment ).

As it has not established the date on which the decision adversely affecting the applicants was notified, the Commission may not, in my view, claim that the complaint should have been submitted by 5 May 1987 at the latest and that the applicants were out of time in addressing a document dated 27 May 1987 to the appointing authority .

4 . The applicants presented the document of 27 May 1987 in the form of a request under Article 90(1 ) of the Staff Regulations . The Commission was right, in my view, to treat that request as a complaint under Article 90(2 ) of the Staff Regulations . Article 90(1 ) applies only in cases where no decision relating to the official has yet been taken .

For the reasons explained in the previous point, however, the plea of inadmissibility, based on the argument that that request, converted to a complaint, was out of time, cannot, in my view, be accepted .

Substance

The relevant provisions

5 . Let us look briefly at the rules currently in force, ( 5 ) starting with those which apply to officials in general .

Article 72(1 ) of the Staff Regulations provides :

"An official, his spouse, where such spouse is not eligible for benefits of the same nature and of the same level by virtue of any other legal provision or regulations ... are insured against sickness" ( emphasis added ).

That provision is clarified as follows in Article 3 of the Rules on Sickness Insurance for Officials of the European Communities ( hereinafter referred to as "the Rules "):

"Article 3 - Persons covered by member' s insurance

The persons covered by a member' s insurance shall be :

1 . The spouse, unless he or she is a member of the Scheme, provided that :

he or she is not gainfully employed; or

if he or she is gainfully employed, he or she is covered against the same risks by any other legal provisions or rules and his or her annual income from such employment before tax does not exceed the basic annual salary of an official in the third step of Grade B4 ..." ( emphasis added ).

6 . Next, let us look at the relevant provisions applying to officials on unpaid leave on personal grounds .

The first subparagraph of Article 40(3 ) of the Staff Regulations provides that, during an official' s leave on personal grounds,

"his membership of the social security scheme provided for in Articles 72 and 73 and cover for risks under the scheme shall be suspended ." ( 6 )

And the second subparagraph provides that :

"... an official who provides evidence that he cannot be covered by any other public scheme of insurance against the risks referred to in Articles 72 and 73 may ... apply to continue to be covered in accordance with those Articles, provided that he bears half the cost of the contributions required to cover the risks referred to ..;"

Finally, Article 4(2 ) of the Rules reads as follows :

"2 . An official on unpaid leave on personal grounds shall be a member provided he satisfies the requirements of the second subparagraph of Article 40(3 ) of the Staff Regulations" ( emphasis added ).

Analysis

7 . Let it be said from the outset that the applicants' action appears to me, as the rules stand, to be well founded . I shall set out below the reasoning which leads me to propose that the Court should rule accordingly .

8 . It is first necessary to determine the scope of Article 72(1 ) of the Staff Regulations . In my view, that provision does not explicitly cover the situation of an official of the European Communities who is also the spouse of an official of the European Communities . The authors of the Staff Regulations clearly had in mind the situation where one of the two spouses is an official . That is why the article lays down the requirement, with regard to the spouse, that he or she should not be eligible for sickness cover under any other scheme ( see the Court' s judgment of 8 March 1988 in Case 339/85 Brunotti v Commission (( 1988 )) ECR 1379, paragraph 11 ).

9 . That initial finding already makes it possible at this stage to dismiss the Commission' s alternative argument based on the terms of Article 72(1 ) of the Staff Regulations . Under that provision, a spouse is entitled to sickness cover only if he or she "is not eligible for benefits of the same nature and of the same level by virtue of any other legal provision or regulations ". The Commission stresses the words underlined above . Since an official on leave on personal grounds has the opportunity of contributing to the joint scheme in order to obtain cover, the Commission concludes that such an official does not fulfil the requirements laid down in Article 72 of the Staff Regulations to qualify as a person covered by his or her spouse' s insurance .

I am not convinced by that argument because it relies on the interpretation of an article of the Staff Regulations which, as stated above, does not explicitly cover the situation of a spouse who is also an official .

10 . Although Article 72 does not explicitly cover the situation of a spouse of an official who is also an official, it does embody the principle which makes it possible to deal with that situation under the implementing rules . As the Court pointed out in its judgment in Brunotti, that article is based on the idea

"that the scope of sickness insurance for officials and members of their families should be determined so as to avoid as far as possible overlapping sickness insurance cover" ( paragraph 12 ).

Very logically, Article 3 of the Rules clarifies that principle by providing that the spouse of an official who is a member is covered by the latter' s insurance "unless he or she is a member of the scheme ".

11 . In view of the terms used in Article 3 of the Rules, which is the only provision referring explicitly to the case in which a husband and wife are both officials and thus members, the question is whether or not an official on leave on personal grounds is a member of the sickness insurance scheme . The answer is provided in the first subparagraph of Article 40(3 ) of the Staff Regulations, according to which, during an official' s leave on personal grounds,

"his membership of the social security scheme provided for in Articles 72 and 73 and cover for risks under the scheme shall be suspended ".

12 . The Commission submits that the reference in that provision to the suspension of cover for risks in addition to that of membership would serve no purpose if the authors had intended to maintain free cover for an official on leave on personal grounds as the spouse of an official who was a member .

If I understand that argument aright, it assumes that Article 3 of the Rules is to be interpreted as meaning that an official whose membership is suspended is automatically insured as the spouse of an official who is a member . The words "and cover for risks under the scheme" in the first subparagraph of Article 40(3 ) of the Staff Regulations were added by the authors of the Staff Regulations for the very purpose of preventing a spouse on leave on personal grounds from being covered, without paying any contributions, against sickness under Article 3 of the Rules . In my view, however, the Commission is giving those words a meaning which they do not possess . Had the authors of the Staff Regulations wished to achieve the result argued by the Commission, they would undoubtedly have been more explicit . In my view, it is more coherent to interpret the first subparagraph of Article 40(3 ) of the Staff Regulations as meaning that, during an official' s leave on personal grounds, the two principal effects of membership - the payment of contributions by the official ( referred to implicitly in the provision ) and cover for risks ( referred to explicitly ) - are suspended .

13 . Further in the alternative, the Commission submits that Article 3 of the Rules is to be interpreted so as to render it compatible with the provisions of the Staff Regulations . Following that reasoning, it considers that an official on leave on personal grounds remains a member of the joint scheme, even though the effects of that membership are suspended, so that Article 3(1 ) of the Rules cannot apply to him or her .

It should first be observed that the Commission is here interpreting Article 3 of the Rules in a manner different from that assumed in its main argument ( see my previous point ). Nor is the interpretation put forward by the Commission compatible with Article 4(2 ) of the Rules, which provides that an official on unpaid leave on personal grounds may be a member only if he satisfies the requirements of the second subparagraph of Article 40(3 ) of the Staff Regulations . Lastly, the interpretation put forward by the Commission applies an artificial distinction between membership and the effects of membership . In my view, it is contrary to common sense to claim that an official is a member of the scheme when he cannot derive any benefit under it .

14 . It follows from the foregoing that an official on unpaid leave on personal grounds whose membership of the scheme is suspended under the first subparagraph of Article 40 ( 3 ) of the Staff Regulations must, in principle, be considered not to be a member . ( 7 ) Such an official therefore satisfies the first requirement laid down in Article 3(1 ) of the Rules in order to be covered by the insurance of his or her spouse if the latter is an official . In so far as he or she also satisfies the remaining requirements laid down in the relevant provision, ( 8 ) he or she is automatically covered against sickness, in my view, by the mere fact of the spouse' s insurance .

15 . It follows, equally, that an official on unpaid leave on personal grounds who satisfies the requirements laid down in Article 3 of the Rules need not apply for optional cover under the second subparagraph of Article 40(3 ) of the Staff Regulations . Consequently, an official on leave on personal grounds who is also the spouse of an official does not have to pay contributions in order to be insured against sickness .

16 . In conclusion, I propose that the Court should :

( 1 ) Annul the Commission' s decision refusing Mrs Olbrechts cover under the Sickness Insurance Scheme unless she paid contributions thereto :

( 2 ) Order the Commission to pay the costs .

(*) Original language : French .

( 1 ) See, most recently, the Court' s judgment of 27 April 1989 in Case 192/88 Turner v Commission (( 1989 )) ECR 1017 .

( 2 ) Case 54/77 Herpels v Commission (( 1978 )) ECR 585 .

( 3 ) Case 115/83 Ooms v Commission (( 1984 )) ECR 2613 .

( 4 ) Case 108/79 Belfiore v Commission (( 1980 )) ECR 1769 .

( 5 ) At the hearing, the Commission' s representatives referred to preparations with a view to amending the provisions concerned, but did not specify what amendments were envisaged .

( 6 ) Article 73 of the Staff Regulations governs cover against the risk of occupational disease and accident .

( 7 ) If an official on unpaid leave on personal grounds decides to avail himself of the possibility afforded by the second subparagraph of Article 40(3 ) of the Staff Regulations, he or she is again considered to be a member of the joint scheme, in accordance with Article 4(2 ) of the Rules .

( 8 ) The remaining requirements are : not to be gainfully employed or, if gainfully employed, to be covered by a public sickness insurance scheme and to comply with the requirement that the employment in question does not provide income over a certain limit ( see point 5 above ).