Judgment of the Court (Second Chamber) of 11 October 1979. - Marcelle Exner, née Berghmans, v Commission of the European Communities. - Case 142/78.



European Court reports 1979 Page 03125

Greek special edition Page 00521



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - REMUNERATION - FAMILY ALLOWANCES - HOUSEHOLD ALLOWANCE - PROHIBITION ON OVERLAPPING OF ALLOWANCES - CONDITIONS OF APPLICATION

( STAFF REGULATIONS OF OFFICIALS , ART . 67 ( 2 ) AND ANNEX VII , ART . 1 ( 3 ))

2 . OFFICIALS - RECOVERY OF OVERPAYMENTS - CONDITIONS - BURDEN OF PROOF

( STAFF REGULATIONS OF OFFICIALS , ART . 85 )

Summary

1 . THE CLEAR AIM OF ARTICLE 67 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS , WHICH ESTABLISHES A GENERAL PRINCIPLE , IS TO PREVENT A MARRIED COUPLE FROM DRAWING TWO HOUSEHOLD ALLOWANCES AND THEREFORE TO ENABLE EACH FAMILY TO RECEIVE ONLY ONE HOUSEHOLD ALLOWANCE , PAID AT THE MAXIMUM RATE . THAT PROVISION MUST THEREFORE BE INTERPRETED AS MEANING THAT A MARRIED OFFICIAL IS NOT ENTITLED TO THE HOUSEHOLD ALLOWANCE WHERE THE HUSBAND OR WIFE DRAWS A HIGHER HOUSEHOLD ALLOWANCE THAN THAT WHICH THE OFFICIAL COULD DRAW , EVEN IF THE HUSBAND OR WIFE IS NOT IN THE SERVICE OF THE COMMUNITIES AND REGARDLESS OF WHETHER OR NOT THE COUPLE HAVE DEPENDENT CHILDREN .

IT IS IMPOSSIBLE TO DEDUCE FROM THE LAST SENTENCE OF ARTICLE 1 ( 3 ) OF ANNEX VII TO THE STAFF REGULATIONS THAT A COUPLE WITH DEPENDENT CHILDREN MAY IN ANY CASE DRAW THAT ALLOWANCE TWICE . IN FACT , THE AIM OF ARTICLE 1 ( 3 ) IS DIFFERENT FROM THAT OF ARTICLE 67 ( 2 ) MENTIONED ABOVE IN THAT IT REFERS ONLY TO CASES IN WHICH THE INCOME , AND NOT THE HOUSEHOLD ALLOWANCE , OF THE OFFICIAL ' S SPOUSE EXCEEDS A GIVEN LIMIT .

2 . IT FOLLOWS FROM ARTICLE 85 OF THE STAFF REGULATIONS OF OFFICIALS THAT THE ADMINISTRATION MUST PRODUCE EVIDENCE TO SHOW THAT THE RECIPIENT WAS ACTUALLY AWARE THAT THERE WAS NO DUE REASON FOR THE PAYMENT OR THAT THE FACT OF THE OVERPAYMENT WAS PATENTLY SUCH THAT HE COULD NOT HAVE BEEN UNAWARE OF IT .

Parties

IN CASE 142/78

MARCELLE EXNER , NEE BERGHMANS , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT 28 RUE GATTI DE GAMOND , UCCLE , 1180 BRUSSELS , REPRESENTED AND ASSISTED BY MARCEL SLUSNY , OF THE BRUSSELS BAR , 272 AVENUE BRUGMANN , UCCLE , 1180 BRUSSELS , WITH AN ADDRESS FOR SERVICE C/O MR CASSAIGNAU , 24 RUE DU NORD , LUXEMBOURG-HELMSANGE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY JOSEPH GRIESMAR , ACTING AS AGENT , ASSISTED BY DANIEL JACOB , OF THE BRUSSELS BAR , 36 RUE DE PRAETERE , 1050 BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG , LUXEMBOURG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE RECOGNITION OF THE APPLICANT ' S RIGHT TO THE HOUSEHOLD ALLOWANCE AND , ACCORDINGLY , FOR THE ANNULMENT OF THE COMMISSION ' S DECISION OF 6 FEBRUARY 1978 REFUSING TO RECOGNIZE THAT RIGHT AND , IN IMPLEMENTATION OF ARTICLE 85 OF THE STAFF REGULATIONS , CONTINUING TO CLAIM RECOVERY OF THE SUMS WHICH IT REGARDS AS OVERPAID , AS WELL AS FOR THE REIMBURSEMENT OF THOSE SUMS , WHICH HAVE ALREADY BEEN REPAID TO THE COMMISSION ,

Grounds

1 BY APPLICATION RECEIVED AT THE REGISTRY ON 19 JUNE 1978 THE APPLICANT REQUESTS THE COURT TO DECLARE , FIRST , THAT SHE IS ENTITLED TO A HOUSEHOLD ALLOWANCE WITHIN THE MEANING OF ARTICLE 67 ( 1 ) ( A ) OF THE STAFF REGULATIONS AND ARTICLE 1 OF ANNEX VII TO THE STAFF REGULATIONS AND , SECONDLY , THAT ARTICLE 85 OF THE STAFF REGULATIONS , WHICH RELATES TO THE RECOVERY OF OVERPAYMENTS , WAS WRONGLY APPLIED TO HER BY THE ADMINISTRATION OF THE COMMISSION .

THE RIGHT TO THE HOUSEHOLD ALLOWANCE

2 AS REGARDS THAT POINT THE COMMISSION CLAIMS THAT THE APPLICATION IS INADMISSIBLE SINCE IT WAS NOT PRECEDED , AS REQUIRED BY ARTICLE 91 OF THE STAFF REGULATIONS , BY A COMPLAINT RELATING TO THE DECISION NO LONGER TO GRANT THE HOUSEHOLD ALLOWANCE AND THAT EVEN IF THE COMPLAINT LODGED BY THE APPLICANT WERE REGARDED AS ALSO EXTENDING TO THAT QUESTION IT WAS NOT LODGED IN GOOD TIME , WHICH ALSO RENDERS THE APPLICATION INADMISSIBLE .

HOWEVER , IN VIEW OF THE FACT THAT THE SUBMISSIONS RELIED ON BY THE APPLICANT DIRECTLY CHALLENGE THE DECISION ADOPTED BY THE COMMISSION , NAMELY THAT THE APPLICANT IS NOT ENTITLED TO THE HOUSEHOLD ALLOWANCE , THE CLOSE LINKS BETWEEN THE MATERIAL SUBMISSIONS RELIED ON BY THE APPLICANT AND THE OBJECTIONS OF THEIR ADMISSIBILITY PUT FORWARD BY THE COMMISSION REQUIRE THE FORMER TO BE EXAMINED FIRST .

3 THE APPLICANT CLAIMS THAT ARTICLE 67 ( 2 ) OF THE STAFF REGULATIONS , WHICH REQUIRES AN OFFICIAL TO DECLARE ALLOWANCES OF LIKE NATURE PAID FROM OTHER SOURCES SO THAT THEY MAY BE DEDUCTED FROM THOSE PAID UNDER ARTICLES 1 , 2 AND 3 OF ANNEX VII , MERELY EXPRESSES A GENERAL PRINCIPLE .

HOWEVER , THE SPECIAL PROVISION CONTAINED IN THE FINAL SENTENCE OF ARTICLE 1 ( 3 ) OF ANNEX VII , WHICH PROVIDES THAT THE OFFICIAL SHALL ' ' HOWEVER ' ' BE ENTITLED TO THE ALLOWANCE WHERE THE MARRIED COUPLE HAVE ONE OR MORE DEPENDENT CHILDREN TAKES PRECEDENCE OVER THAT GENERAL PROVISION . THAT PROVISION IS LIMITED BY ARTICLE 1 ( 4 ) TO THE PAYMENT OF THE HOUSEHOLD ALLOWANCE TO ONLY ONE OF THE SPOUSES , THE ONE WHOSE BASIC SALARY IS THE HIGHER , WHERE BOTH ARE EMPLOYED IN THE SERVICE OF THE COMMUNITIES .

CONSEQUENTLY - ACCORDING TO THE APPLICANT - IT FOLLOWS FROM THOSE PROVISIONS THAT THE RIGHT TO THE HOUSEHOLD ALLOWANCE EXISTS IN ANY EVENT WHERE THE SPOUSES HAVE ONE OR MORE DEPENDENT CHILDREN AND THAT THE PROHIBITION ON THE OVERLAPPING OF BENEFITS ONLY APPLIES WHERE BOTH SPOUSES ARE EMPLOYED IN THE SERVICE OF THE COMMUNITIES .

4 AS AGAINST THAT IT MUST BE STATED THAT THE CLEAR AIM OF ARTICLE 67 ( 2 ), WHICH ESTABLISHES A GENERAL PRINCIPLE APPLICABLE IN EVERY CASE , IS TO PREVENT A MARRIED COUPLE FROM DRAWING TWO HOUSEHOLD ALLOWANCES SINCE THEY ARE OF LIKE NATURE AND PAID FOR THE SAME PURPOSE : TO FACILITATE THE LIFE OF AN OFFICIAL WHO IS MARRIED OR WHO , WHATEVER HIS FAMILY SITUATION , HAS ONE OR MORE DEPENDENT CHILDREN .

5 ON THE OTHER HAND , ARTICLE 1 OF ANNEX VII , IN PARTICULAR PARAGRAPH 3 THEREOF , CONTAINS IN FACT NO RULE WHICH PROHIBITS THE OVERLAPPING OF BENEFITS AND ITS SUBJECT-MATTER IS DIFFERENT FROM THAT OF ARTICLE 67 ( 2 ): IT PROVIDES THAT THE HOUSEHOLD ALLOWANCE IS LOST WHERE THE INCOME OF THE SPOUSE OF THE OFFICIAL EXCEEDS A CERTAIN LIMIT , REGARDLESS OF WHETHER THE SPOUSE RECEIVES SUCH AN ALLOWANCE , AND THAT THE OFFICIAL IS ENTITLED TO THAT ALLOWANCE ONLY WHERE THE SPOUSES HAVE ONE OR MORE DEPENDENT CHILDREN . IT CANNOT THEREFORE BE DEDUCED FROM THAT PROVISION THAT A COUPLE WITH DEPENDENT CHILDREN MAY IN ANY EVENT DRAW THE HOUSEHOLD ALLOWANCE TWICE .

6 FURTHERMORE , ARTICLE 1 ( 4 ) OF ANNEX VII SPECIFIES THAT WHERE A HUSBAND AND WIFE ARE EMPLOYED IN THE SERVICE OF THE COMMUNITIES AND ARE BOTH ENTITLED TO THE HOUSEHOLD ALLOWANCE , IT SHALL BE PAYABLE ONLY TO THE PERSON WHOSE BASIC SALARY IS THE HIGHER .

7 ACCORDINGLY , IT IS CLEAR THAT THE AIM OF ARTICLE 67 IS TO ENABLE EACH FAMILY TO RECEIVE ONLY ONE HOUSEHOLD ALLOWANCE , PAID AT THE MAXIMUM RATE .

8 AS IN THIS INSTANCE IT IS NOT DISPUTED THAT THE APPLICANT ' S HUSBAND DRAWS A HOUSEHOLD ALLOWANCE AND THAT IT IS GREATER THAN THAT WHICH THE APPLICANT COULD DRAW , SHE WAS RIGHTLY REFUSED THE HOUSEHOLD ALLOWANCE UNDER ARTICLE 67 ( 2 ) OF THE STAFF REGULATIONS AND THE SUBMISSION MUST BE REJECTED AS UNFOUNDED .

IN THOSE CIRCUMSTANCES IT IS UNNECESSARY TO CONSIDER THE PRELIMINARY OBJECTIONS RAISED BY THE COMMISSION .

RECOVERY OF THE OVERPAYMENTS ON THE BASIS OF ARTICLE 85 OF THE STAFF REGULATIONS

9 ON THAT POINT THE DISPUTE CONCERNS WHETHER THE ADMINISTRATION OF THE COMMISSION IS ENTITLED TO DEMAND THE REPAYMENT OF THE OVERPAYMENTS IN ACCORDANCE WITH ARTICLE 85 OF THE STAFF REGULATIONS WHICH PROVIDES THAT ' ' ANY SUM OVERPAID SHALL BE RECOVERED IF THE RECIPIENT WAS AWARE THAT THERE WAS NO DUE REASON FOR THE PAYMENT OR IF THE FACT OF THE OVERPAYMENT WAS PATENTLY SUCH THAT HE COULD NOT HAVE BEEN UNAWARE OF IT . ' ' IT FOLLOWS FROM THAT PROVISION THAT FOR A SUM PAID WITHOUT JUSTIFICATION TO BE RECOVERED EVIDENCE MUST BE PRODUCED TO SHOW THAT THE RECIPIENT WAS ACTUALLY AWARE THAT THERE WAS NO DUE REASON FOR THE PAYMENT OR THAT THE FACT OF THE OVERPAYMENT WAS PATENTLY SUCH THAT HE COULD NOT HAVE BEEN UNAWARE OF IT .

10 SINCE THE APPLICANT DISPUTES BOTH THAT SHE WAS AWARE THAT THERE WAS NO DUE REASON FOR PAYMENT AND THE EVIDENCE TO SHOW THAT , IT IS NECESSARY TO CONSIDER THE CIRCUMSTANCES IN WHICH THE ADMINISTRATION WAS LED TO PAY THE HOUSEHOLD ALLOWANCE TO THE APPLICANT .

11 THE ADMINISTRATION CALCULATES THE FAMILY ALLOWANCES PAYABLE TO ITS MARRIED EMPLOYEES ON THE BASIS PRINCIPALLY OF THE REPLY TO POINT NO 18 IN THE QUESTIONNAIRE FILLED IN BY ANY PERSON ENTERING ITS SERVICE . POINT NO 18 IS WORDED AS FOLLOWS : ' ' GIVE DETAILS OF THE FAMILY ALLOWANCES WHICH YOU RECEIVE FROM OTHER SOURCES . ' ' UNDER THAT QUESTION THERE ARE TWO DOTTED LINES ON THE FORM SET CLOSE TOGETHER ON WHICH IS TO BE WRITTEN THE REPLY TO THE QUESTION , WHICH IS MARKED BY AN ASTERISK REFERRING TO THE BOTTOM OF THE PAGE WHERE IT IS STATED ' ' ATTACH SUPPORTING DOCUMENT . ' '

IN REPLY TO THAT POINT THE APPLICANT MERELY WROTE THE FIGURE ' ' FRS 3 840 ' ' AND DID NOT PROVIDE ANY SUPPORTING DOCUMENT .

12 IN VIEW OF THE FACT THAT ARTICLE 67 OF THE STAFF REGULATIONS CLEARLY SPECIFIES THAT FAMILY ALLOWANCES COMPRISE :

( A ) THE HOUSEHOLD ALLOWANCE ;

( B ) THE DEPENDENT CHILD ALLOWANCE ;

( C ) THE EDUCATION ALLOWANCE ,

THE APPLICANT IS CRITICIZED FOR HAVING PROVOKED THE ERROR ON THE PART OF THE ADMINISTRATION BY FAILING TO INDICATE THE LEGAL REASON FOR THE SUM OF FRS 3 840 , WHICH WAS SOLELY AN ALLOWANCE IN RESPECT OF THE APPLICANT ' S DEPENDENT CHILDREN .

13 IT MUST BE OBSERVED , HOWEVER , THAT IN THE MEMBER STATES THE CONCEPT OF FAMILY ALLOWANCES IS GENERALLY UNDERSTOOD TO MEAN ESSENTIALLY DEPENDENT CHILD ALLOWANCES AND THAT THAT IS ALSO THE MEANING GIVEN TO THE TERM IN THE BELGIAN LEGISLATION TO WHICH THE APPLICANT WAS SUBJECT BEFORE SHE ENTERED THE SERVICE OF THE COMMISSION . IT IS THEREFORE DIFFICULT TO CRITICIZE THE APPLICANT FOR HAVING FAILED TO FIND OUT THE PRECISE DEFINITION OF THE TERM ' ' FAMILY ALLOWANCES ' ' AFTER ENTRY INTO SERVICE BY REFERRING TO ARTICLE 67 OF THE STAFF REGULATIONS .

14 THE ADMINISTRATION OF THE COMMISSION MUST ALSO BE CRITICIZED FOR FAILING TO DRAW UP QUESTIONNAIRES WHICH ON THAT POINT WERE SUFFICIENTLY EXPLICIT , UNLIKE IN FACT THOSE OF THE OTHER COMMUNITY INSTITUTIONS ; THEY WERE EVEN AMBIGUOUS SINCE THE AMOUNT OF SPACE RESERVED FOR THE REPLY DID NOT ALLOW ANY DETAILS TO BE GIVEN AS TO THE THREE CONSTITUENT ELEMENTS OF FAMILY ALLOWANCES WITHIN THE MEANING OF THE STAFF REGULATIONS OF OFFICIALS OF THE COMMUNITIES . IT MUST ALSO BE EMPHASIZED THAT THE SPECIAL OFFICE OF THE ADMINISTRATION TO WHICH THE APPLICANT RETURNED THE QUESTIONNAIRE DID NOT REACT EITHER TO THE WORDING OF THE REPLY OR TO THE ABSENCE OF ANY SUPPORTING DOCUMENT AND THAT ITS CONDUCT IN THIS INSTANCE WAS BOTH REMISS AND NEGLIGENT .

15 IN ADDITION , THE CONVERSATIONS WHICH TOOK PLACE BETWEEN THE OFFICIALS RESPONSIBLE IN THAT FIELD AND THE APPLICANT WERE , AT THE LEAST , CAPABLE OF GIVING RISE TO A MISUNDERSTANDING ON HER PART AS TO THE EXTENT OF HER RIGHTS SO THAT IT MUST BE CONCLUDED THAT IT HAS NOT BEEN SHOWN THAT THE APPLICANT WAS ACTUALLY AWARE THAT THERE WAS NO DUE REASON FOR THE PAYMENT TO HER OF THE HOUSEHOLD ALLOWANCE AND THAT IT CANNOT BE COMPLAINED THAT SHE CAUSED THE ERROR ON THE PART OF THE ADMINISTRATION BY AN INCORRECT STATEMENT OR AN OMISSION .

16 FINALLY , AS REGARDS THE QUESTION WHETHER OR NOT THE FACT THAT THERE WAS NO DUE REASON FOR THE PAYMENT OF THE ALLOWANCE , THE AMOUNT OF WHICH WAS TRIFLING , WAS PATENT , IT MUST BE OBSERVED THAT IT WAS NOT , SINCE THE CONDUCT OF THE ADMINISTRATION WAS SUCH AS TO HAVE GIVEN RISE ON THE PART OF THE APPLICANT TO THE REASONABLE BELIEF THAT SHE WAS ENTITLED TO THE SUMS PAID TO HER .

17 IT RESULTS FROM THE FOREGOING THAT THE ADMINISTRATION OF THE COMMISSION IS NOT JUSTIFIED IN CLAIMING FROM THE APPLICANT THE RECOVERY OF THE OVERPAYMENTS OF THE HOUSEHOLD ALLOWANCE IN RESPECT OF THE PERIOD FROM 1 JANUARY 1975 TO 30 NOVEMBER 1976 AND THAT THE COMMISSION ' S DECISION OF 18 MAY 1977 ON THAT POINT MUST BE ANNULLED .

Decision on costs

COSTS

18 UNDER ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE , WHERE EACH PARTY SUCCEEDS ON SOME AND FAILS ON OTHER HEADS , THE COURT MAY ORDER THAT THE PARTIES BEAR THEIR OWN COSTS IN WHOLE OR IN PART .

AS THE APPLICANT HAS BEEN SUCCESSFUL ON SOME OF HER HEADS OF CLAIM THE COMMISSION MUST BE ORDERED TO PAY A PART OF HER COSTS , ESTIMATED AT 50% .

FURTHERMORE , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , IN PROCEEDINGS BY OFFICIALS OR OTHER SERVANTS OF THE COMMUNITIES , INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION INASMUCH AS IT SOUGHT RECOGNITION THAT THE APPLICANT WAS ENTITLED TO THE HOUSEHOLD ALLOWANCE ;

2 . ANNULS THE DECISION ADOPTED BY MEMORANDUM OF 18 MAY 1977 ( REF . IX/A/4/2995 ) IN WHICH THE COMMISSION ORDERED THE APPLICANT TO REPAY THE OVERPAYMENTS BY WAY OF THE HOUSEHOLD ALLOWANCE ;

3 . ORDERS THE COMMISSION TO REPAY THE APPLICANT THE SUM OF BFR 22 218 ;

4 . ORDERS THE COMMISSION TO BEAR ITS OWN COSTS AND ONE-HALF OF THE COSTS INCURRED BY THE APPLICANT .