OPINION OF MR ADVOCATE-GENERAL WARNER

DELIVERED ON 16 JUNE 1976

My Lords,

Your Lordships will remember that on 4 December 1972 the Council adopted Regulation (Euratom, ECSC, EEC) No 2530/72 introducing ‘special and temporary measures applicable to the recruitment of officials of the European Communities in consequence of the accession of new Member States, and for the termination of service of officials of those Communities’.

Chapter II of the Regulation prescribed ‘special and temporary measures’ for the termination of service of existing officials with a view to making room for the apointment of officials from the new Member States. It provided in particular, by Article 2 (3), for such termination of service at an existing official's own request.

The applicant in the present case, Mr F. C. L. M. Crijns, availed himself of those measures. He is a Dutchman and at the time when the Regulation took effect he was serving on the staff of the Commission in Grade A 4. By a decision dated 4 April 1973, the Commission acceded to his request that his service should terminate on 30 June 1973. Since 1 September 1973 he has been employed on the staff of the Katholieke Hogeschool of Tilburg, in the Netherlands.

The question at issue in this case relates to the computation of the allowance that Mr Crijns is entitled to receive from the Commission under Article 3 of the Regulation, following the termination of his service.

Paragraph 1 of that Article provides that an official affected by the measures in question ‘shall be entitled:

(a) for a period of a year, to a monthly allowance equal to his last remuneration, and

(b) for a period fixed in accordance with the table in paragraph 2, to a monthly allowance equal to: — 80 % of his basic salary for the 30 following months; — 70 % of his basic salary thereafter’. (OJ L 272 of 5. 12. 1972).

It also provides:

‘The basic salary to be taken into account when fixing the allowances provided for under this paragraph is that applicable on the first day of the month for which the allowance is payable’. (OJ L 272 of 5. 12. 1972).

There can in my opinion be no doubt (although the argument of the Commission to some extent involved a submission to the contrary) that the expressions ‘remuneration’ and ‘basic salary’ in that provision have the same meanings as in the Staff Regulations. This must be so, not only because Regulation No 2530/72 is expressly linked by its preamble and by many of its operative provisions to the Staff Regulations, but also because those expressions are nowhere otherwise defined. Your Lordships will remember that Article 62 of the Staff Regulations provides among other things that ‘Remuneration shall comprise basic salary, family allowances and other allowances’.

As foreshadowed by paragraph 1 of Article 3, paragraph 2 of that Article contains a table enabling it to be determined, on the basis of an official's age, for how long he is to receive the allowance provided for in paragraph 1 (b). Nothing turns on paragraph 2 or on that table in this case.

Paragraph 3 of Article 3 provides that the allowance provided for in paragraph 1 shall be weighted for the country where the recipient resides. It is worth noting, I think, that paragraph 3 in terms recognizes that the recipient of an allowance may reside in any country, even one outside the Community.

Paragraph 4 is the one of which the interpretation is particularly in dispute. Unfortunately the authentic English text of it is succinct to the point of obscurity, though such obscurity does not touch any point crucial to the present dispute. In setting out its terms I shall expand the English text so as to make it correspond more closely to the texts in the other official languages. So expanded it reads as follows:

‘The income accruing to the official concerned from any new employment during the period mentioned in paragraph 1 (b) shall be deducted from the allowance provided for in that paragraph in so far as that income plus that allowance exceeds the total remuneration last received by the official in the performance of his duties, such last remuneration being determined on the basis of the table of salaries in force on the first day of the month for which the allowance is payable. That remuneration shall be weighted as provided in paragraph 3.’

Your Lordships observe that three factors enter into the computation prescribed by that paragraph, namely (i) ‘the income accruing to the official concerned from any new employment’, (ii) ‘the allowance provided for in paragraph 1 (b)’ and (iii) ‘the total remuneration last received by the official in the performance of his duties’. It is to the contents of the first two of these factors that the dispute in this case relates.

But before I come to the nature of that dispute I must cite paragraph 5 of Article 3, which is also important:

‘All family allowances shall remain payable where the official receives the allowance provided for in paragraph 1. Article 67 (2) of the Staff Regulations shall apply.’ (OJ L 272 of 5. 12. 1972).

Article 67 (2) of the Staff Regulations provides in effect that officials in receipt of family allowances under those Regulations shall ‘declare allowances of like nature paid from other sources’ and that these allowances shall be deducted from those paid unter the Staff Regulations.

As I have mentioned, Mr Crijns's service with the Commission terminated on 30 June 1973, For the first year after that he received, under Article 3 (1) (a) of Regulation No 2530/72, an allowance equal to his last remuneration. As to this no problem arose or arises.

On 22 October 1974, however, the Commission wrote to Mr Crijns setting out its computation of the allowance to which he was entitled under Article 3 (1) (b) as from 1 July 1974, having regard to the ‘ceiling’ provided for by Article 3 (4) (Annex 1 to the application).

There is no dispute about the way in which, in making that computation, the Commission calculated Mr Crijns's ‘last remuneration’. Suffice it to say that this was calculated by adding together his basic salary, his family allowances, his expatriation allowance, and the weighting to which he was entitled. The total came BF 119218.

The dispute relates to the other two factors in the computation. In each of these the Commission included family allowances.

Thus, in calculating the allowance to which Mr Crijns was entitled under Article 3 (1) (b) before application of the ceiling (which I will call his ‘gross Article 3 (1) (b) allowance’), the Commission included not only the 80 % of his basic salary provided for by Article 3 (1) (b) itself, which amounted to BF 58702, and the weighting provided for by Article 3 (3), amounting to BF 14423, but also the family allowances included in his ‘last remuneration’, which amounted to BF 12003. From these the Commission deducted (presumably in pursuance or purported pursuance of Article 3 (5) BF 6158, representing family allowances to which Mr Crijns was entitled under Dutch legislation. The result came to BF 8970.

Again, in calculating Mr Crijns's income from his new employment, the Commission added to his actual emoluments from that employment, which amounted to BF 46193, the sum of BF 6158 representing his Dutch family allowances. This made a total of BF 52351, though that total did not actually appear in the Commission's computation owing to the rather peculiar way in which it was presented.

Adding together the BF 78970 representing, according to its calculation, Mr Crijns 's gross Article 3 (1) (b) allowance, and the BF 52351 representing, again according to its calculation, his income from his new employment, the Commission came to a total of BF 131321. This exceeded Mr Crijns's ‘last remuneration’ of BF 119218 by BF 12103. So the Commission decided that, by virtue of Article 3 (4), Mr Crijns's Article 3 (1) (b) allowance must be reduced by that sum.

On 20th December 1974 Mr Crijns submitted a complaint against that decision under Article 90 (2) of the Staff Regulations (Annex 2 to the application).

In that complaint he contended (as he still contends) that his gross Article 3 (1) (b) allowance should have been calculated by simply adding together the 80 % of his basic salary, BF 58702, and the weighting, BF 14423, making a total of BF 73125, and that no element of family allowances should have been included. He further contended that, in calculating for that purpose his income from his new employment, there should not have been added to his emoluments of BF 46193 the BF 6158 representing his Dutch family allowances. He concluded that it was to the aggregate of BF 73125 and BF 46193, i.e. to BF 119318, that the ceiling must be applied. Since that sum exceeded by only (and precisely) BF 100 his ‘last remuneration’ of BF 119218, BF 100 was the correct amount of the reduction in his allowance called for by Article 3 (4).

On 13 June 1975 one of the Vice-Presidents of the Commission wrote to Mr Crijns rejecting his complaint (Annex 3 to the application) and on 8 September 1975 Mr Crijns instituted the present action.

I have come, not without some hesitation, to the conclusion that Mr Crijns is entitled to succeed in his action. My hesitation has been due, I think, to the attractive way in which the case for the Commission was presented.

In a nutshell that case was that, since the ‘last remuneration’ to be taken into account in the computation prescribed by Article 3 (4) included family allowances, the other two factors in that computation must do so too, otherwise like would not be compared with like.

I hope that I will be acquitted of discourtesy if I do not advert in detail to each of the submissions that were made on behalf of the Commission in support of that case. There are, I think, two reasons why those submissions must be rejected.

The first is that their acceptance would entail doing impermissible violence to the wording of Article 3. As to this I agree with the comment of Counsel for Mr Crijns that the Commission was pressing the Court to interpret that Article, not according to what it actually said, but according to what the Commission now thought that it should have said.

On this matter of wording there are of course two questions.

The first, and I think the easier, is whether the reference in Article 3 (4) to the allowance provided for in Article 3 (1) (b) (i.e. to the ‘gross Article 3 (1) (b) allowance’) can be interpreted as a reference to a sum that includes an element representing family allowances. In my opinion it cannot. Bearing in mind the terminology of the Staff Regulations, and in particular the definition, in Article 62 of those Regulations, of ‘remuneration’ as comprising ‘basic salary, family allowances and other allowances’, and bearing in mind also the contrast between Article 3 (1) (a), which uses the term ‘remuneration’, and Article 3 (1) (b), which uses the term ‘basic salary’ and entitles the recipient to an allowance of 80 %, and later 70 %, of that salary, it is in my opinion impossible to interpret Article 3 (1) (b) as, in itself, entitling a recipient to an allowance into the calculation of which any family allowances enter. The fact is that family allowances are dealt with separately by Article 3 (5). I do not overlook the semantic difficulty created by the circumstance that the first sentence of Article 3 (5) refers compendiously to ‘the allowance provided for by paragraph 1’, so that, in relation to an allowance payable under Article 3 (1) (a), it seems tautologous. One cannot in my view deduce from this that it is tautologous also in relation to an allowance payable under Article 3 (1) (b). The real explanation, I think; of the compendious nature of that first sentence is that one of its functions is to introduce the second sentence, referring to Article 67 (2) of the Staff Regulations, which applies as much to an allowance payable under Article 3 (1) (a) as to one payable under Article 3 (1) (b).

The second question is whether the reference in Article 3 (4) to ‘the income accruing to the official concerned from any new employment’ should be interpreted as including family allowances. As to this it is common ground that, in Mr Crijns's case, the family allowances to which he is entitled under the relevant Dutch legislation are linked to his employment, indeed attributable to his employment. But of course it is not the general rule in all Member States, let alone non-Member States, that family allowances are necessarily linked to employment. I gave at the hearing the example of the United Kingdom, where some occupations (e.g. membership of the armed forces) carry special family allowances, but where, in general, such allowances are paid by the State to all and sundry who have young children (and an income below a certain limit) whether they be in employment, or self-employed, or non-employed or unemployed. I, for my part, find it difficult to attribute to the authors of Regulation No 2530/72 an intention that an erstwhile official who draws family allowances in right of his employment should bring them into account for the purposes of Article 3 (4) but that one who draws them under a general system unrelated to employment need not. Here again I think the correct view is that family allowances were intended to be dealt with separately under Article 3 (5), and that, in particular, the prevention of duplication of benefits was intended to be secured in their case by the application of Article 67 (2) of the Staff Regulations and not otherwise.

I said that there were two reasons why I thought that the contentions of the Commission should be rejected. The other reason is that in my opinion, in so far as those contentions were based on the general proposition that like must be compared with like, they attributed to the authors of the Regulation a wish to be far more logical than in fact they were. An erstwhile official's ‘last remuneration’, albeit adjusted by reference to current salary rates and weighted for his country of residence, is necessarily but a rough and ready measure of what his maximum allowance should be. For instance its components may continue to include an expatriation allowance although he has returned to his own country. Conversely they will contain no expatriation allowance if, having been employed by the Communities in his own country, he then settles abroad. Similarly, those components will continue to include family allowances even after his children have grown up and become independent. Conversely again, they will contain no element of family allowance if, having been a bachelor when in the service of the Communities, he subsequently marries and has children. In the face of such potential anomalies, of a kind that cannot be cured by any process of interpretation, the only safe course for the Court, in my opinion, is to adhere to the words of the Regulation.

In the result I am of the opinion that Your Lordships should, having regard to the claim for relief in Mr Crijns's application:

1. Declare that, for the purpose of applying paragraph 4 of Article 3 of Regulation No 2530/72, family allowances should be excluded from the calculation both of the allowance therein mentioned and of the income accruing to the official concerned from any new employment;

2. Declare void the decision of the Commission of 22 October 1974 setting out the manner in which the allowance payable to Mr Crijns under that Article should be computed; and