JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

5 November 1996

Joined Cases T-21/95 and T-186/95

Marco Mazzocchi-Alemanni

v

Commission of the European Communities

‛Officials — Supplementary sickness insurance scheme for officials serving in a third country — Procedure for reimbursement of medical expenses — Application of ceilings’

Full text in French II-1377

Application for:

annulment of the Commission's decision refusing die applicant 100% reimbursement of certain dental expenses.

Decision:

Application dismissed.

Abstract of the Judgment

Article 72(1) of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’) lays down a ceiling for the reimbursement of medical expenses of 80 or 85% of expenditure incurred, depending on the circumstances, with the exception of expenses occasioned by a serious illness for which 100% reimbursement is provided for. Annex X to the Staff Regulations contains special and exceptional provisions applicable to officials of the European Communities serving in a third country. Annex X was inserted into the Staff Regulations by Council Regulation (Euratom, ECSC, EEC) No 3019/87 of 5 October 1987 (OJ 1987 L 286, p. 3).

The first paragraph of Article 24 of Annex X reads as follows:

‘The official, his spouse, his children and other persons dependent on him shall be covered by supplementary sickness insurance for the difference between expenditure actually incurred and payments from the scheme provided for in Article 72 of the Staff Regulations; no reimbursement shall be made under Article 72(3).’

Article 24 of Annex X formed the subject-matter of general implementing provisions (‘GIP’) adopted by the Commission and published in Administrative Notice No 642 of 17 September 1990.

Article 5 of the GIP provides:

‘An official whose place of employment is outside the Community shall be reimbursed for expenditure actually incurred by himself and his dependants (...). However, beyond a limit above which the expenditure is regarded as excessive, the person concerned may not claim any reimbursement.

The question of whether expenditure is excessive shall be determined by the Central Office after consultation of the Medical Officers, who shall take into account normal costs in the non-Community country in which the expenditure has been incurred.

(...)

Where expenditure is incurred within the Community, it shall be reimbursed within the maximum limit of the excess threshold as laid down in conjunction with Section XV(2) of Annex I to the Rules.’

Factual background to the dispute

Case T-21/95

The applicant is an official serving in the Commission delegation in Gabon.

During his annual leave he consulted his dentist in Rome. The dentist gave an estimate, in particular, for fitting fixed prostheses, calculated at LIT 18600000, or about BFR 362309.

On 28 March 1994 the applicant forwarded that estimate to the Directorate-General for Personnel and Administration (DG IX), relying on the provisions of Article 24 of Annex X.

On 8 April 1994 Mrs D., the competent official in Unit 5 (Sickness Insurance and Accidents) of Directorate B (Rights and Obligations) of DG IX returned the estimate to him, stating that the reimbursement under Article 72 of the Staff Regulations would be in the amount of BFR 108956. She added: ‘You will be granted the reimbursement provided for in Article 24 of Annex X to the Staff Regulations if the residence conditions are satisfied.’

By letter dated 18 April 1994 the applicant requested Mrs D. to indicate to him which residence conditions she was referring to in her letter of 8 April 1994. He also asked her up to what precise amount Article 24 of Annex X was capable, in the view of her department, of being applied. More specifically, he asked whether the full difference between LIT 18600000 and the amount of BFR 108956 payable under Article 72 of the Staff Regulations would be authorized under Article 24 of Annex X.

In reply to that letter Mrs D. informed the applicant, by letter of 4 May 1994, that the sentence ‘You will be granted the reimbursement provided for in Article 24 of Annex X to the Staff Regulations if the residence conditions are satisfied’ was taken from a standard form letter and that, in the applicant's case, those residence conditions were automatically satisfied. She further pointed out that ‘the supplementary reimbursement under Article 24 of Annex X would be granted to him in accordance with the applicable provisions and, in particular, with the last paragraph of Article 5’ of the GIP.

On 5 July 1994 the applicant lodged a complaint under Article 90(2) of the Staff Regulations against that ‘decision’ by the Commission of 4 May 1994 not to reimburse him the full difference between the expenditure which would actually be incurred by him and the benefits payable under the Joint Sickness Insurance Scheme (JSIS).

On 9 November 1994 tlie Head of the ‘Sickness Insurance and Accidents’ unit within DG IX replied that, in the absence of any decision adversely affecting the applicant, he was treating his complaint as a request under Article 90(1) of the Staff Regulations.

He added:

‘As regards possible reimbursement under Article 24 of Annex X to the Staff Regulations, the Claims Office has stated in its letter of 4 May 1994 that such reimbursement will be granted to you in accordance with the applicable provisions.

However, Article 5 of the GIP giving effect to Article 24(1) and (2) of Annex X to the Staff Regulations stipulates that where the expenditure is incurred within the Community, it is to be reimbursed within the maximum limit of the excess threshold as laid down in conjunction with Section XV(2) of Annex I to the Rules on sickness insurance.

Consequently, if you incur the dental expenses mentioned in the dental estimate of 4 March 1994 within the Community, in this case in Italy, reimbursement under Article 24 of Annex X will amount to BFR 95337, regard being had to the abovementioned excess threshold.

Should you be unable to agree with this decision, you may always lodge a complaint under Article 90(2) of the Staff Regulations.’

Case T-186/95

On 9 February 1995 the applicant lodged, on an interim basis and subject to all reservations, a complaint under Article 90(2) of the Staff Regulations against the Commission's decision of 9 November 1994.

By decision of 3 July 1995, notified to the applicant on 7 July 1995, the defendant rejected that complaint.

Admissibility

Case T-21/95

The Rules on sickness insurance for officials of the European Communities (‘the Rules’) provides for two stages in the procedure for obtaining reimbursement of the cost of certain dental prostheses (point VI of Annex I in conjunction with Title B of Annex III). Pursuant to Article 11(1) of the Rules, the official must first submit an application for prior authorization, accompanied by an estimate, to the Claims Office. If authorization is granted the official must then submit, under Article 11(2) of the Rules, an application for reimbursement of expenditure incurred, which must be accompanied by originals of the supporting documents (paragraph 30).

See: T-41/93 B v Commission [1993] ECR II-1037, para. 17

Under Article 4 of the GIP, Article 11 of the Rules is also applicable to the supplementary insurance provided for in Article 24 of Annex X. Therefore, a request for prior authorization is also required in order to obtain a supplementary reimbursement under Article 24 (paragraph 31).

In tlie present case, the applicant made an application for prior authorization by transmitting to the Commission, on 28 March 1994, the estimate for dental expenses. That application was made under Article 72 of the Staff Regulations and Article 24 of Annex X. However, the decision adopted by the Commission on 8 April 1994 on that application concerned solely the application of Article 72 of the Staff Regulations. In that letter the Commission informed the applicant that the reimbursement provided for in Article 72 of the Staff Regulations would amount to BFR 108956 and that the supplementary reimbursement provided for in Article 24 of Annex X would be granted if the residence conditions were satisfied. As regards the application of Article 24 of Annex X, the Commission thus took no decision which could be described as adversely affecting the applicant (paragraph 32).

The same is true of the letter of 4 May 1994 in which the Commission wrote to the applicant: ‘The supplementary reimbursement under Article 24 of Annex X will be granted to you in accordance with the applicable provisions and, in particular, with the last paragraph of Article 5’ of the GIP. It is clear from the terms in which it was couched that this letter, too, did not constitute a decision adversely affecting the applicant. It did not set out the Commission's definitive position on the application to the dental expenses in question of Article 24 of Annex X (paragraph 33).

In the absence of a decision adversely affecting the official concerned, the pre-litigation procedure contained in Article 90 of the Staff Regulations is divided in principle into two stages. As is apparent from Article 90(1), any person to whom the Staff Regulations apply may submit to the appointing authority a request that it take a decision relating to him. In the event of an unfavourable reply or if no decision is taken, the person concerned may submit to the appointing authority a complaint against an express or implied decision by that authority, under the conditions laid down in Article 90(2) (paragraph 34).

See: T-110/94 Sanchez Mateo v Commission [1996] ECR II-805, para. 23

Since the Commission did not act on the application for prior authorization in so far as it was based on Article 24 of Annex X, the applicant ought, in the absence of a decision adversely affecting him, to have lodged through the proper channels a formal request as provided for in Article 90(1) of the Staff Regulations (paragraph 35).

It follows that the Commission was right to redesignate the ‘complaint’ dated 5 July 1994 as a request under Article 90(1) of the Staff Regulations. The letter dated 9 November 1994 thus constitutes the Commission decision against which the applicant ought to have lodged a complaint (paragraph 36).

Therefore, since the applicant brought an action before the Court of First Instance against the Commission's decision of 9 November 1994 and against the alleged decision of 4 May 1994, lie has not correctly followed the pre-litigation procedure (paragraph 37).

Case T-186/95

The Commission's letter of 9 November 1994 constitutes the position it took, as requested by the applicant on 5 July 1994, on the application of Article 24 of Annex X to the applicant's dental expenses. In that letter, the Commission decided that, in view of the aforementioned excess thresholds, reimbursement under Article 24 of Annex X would amount to BFR 95337 (paragraph 41).

Moreover, the pre-litigation procedure provided for in the Staff Regulations was correctly followed in regard to that decision (the contested decision) (paragraph 42).

As regards the third and fourth heads of claim formulated by the applicant, seeking not only the annulment of the contested decision but also the issue of certain orders and declarations by the Court of First Instance, it should be recalled that, in the context of a review of legality under Article 91 of the Staff Regulations, the Community judicature has no jurisdiction to make declaratory rulings or issue directions to the administration (paragraphs 43 and 44).

See: T-147/95 Pavan v Parliament [1996] ECR II-861, para. 24

Whether the form of order seeking annulment is well founded in Case T-186/95

If the ceilings laid down in the GIP are lawful in principle, the contested decision, to the extent to which it constitutes a correct application of those ceilings, will also be lawful. First of all, therefore, it is necessary to examine the legality of the GIP (paragraphs 55 and 56).

In that regard, although Article 24 of Annex X, unlike Article 72 of die Staff Regulations, does not provide for the adoption of rales for its implementation, the Commission was nevertheless authorized to adopt the GIP on the basis of the third paragraph of Article 1 of Annex X which refers to Article 110 of the Staff Regulations. The first paragraph of Article 110 provides: ‘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.’ Accordingly, the Council, as the authority which adopted the Staff Regulations and the annexes thereto, delegated the power to adopt the GIP to the Commission and to the other institutions (paragraph 57).

It falls therefore to examine whether the principle of setting a ceiling for reimbursement of expenses deemed excessive, as provided for in the GIP, is compatible with Article 24 of Annex X. In accordance with the principle that the hierarchy of norms must be observed, provisions implementing an article of the Staff Regulations cannot derogate from the rales contained in that provision (paragraph 58).

See: T-64/92 Cháveme de Dalmassy and Others v Commission [1994] ECR II-723, para. 52

In order to determine the scope of Article 24 of Annex X, reference must be made to the methods of interpretation traditionally used by the Community judicature. When a provision of Community law is interpreted, account must be taken not only of its terms, but also of its context and of the objectives pursued by the legislation of which it forms part (paragraph 59).

See: C-292/82 Merck [1983] ECR 3781, para. 12; T-362/94 De Rijk v Commission [1996] ECRSC II-365, para. 31

As regards the ceilings provided for in the Rules for the reimbursement of medical expenses under Article 72 of the Staff Regulations, in the absence of reimbursement ceilings laid down by the Staff Regulations, the institutions are authorized to set appropriate ceilings in the implementing provisions, whilst observing the principle of social security cover on which Article 72 of the Staff Regulations is based, a fortiori since the resources of that scheme are limited to the contributions of its members and the institutions and the financial equilibrium of the scheme must be safeguarded (paragraph 60).

See: T-110/89 Pincherle v Commission [1991] ECR II-635, para. 26; C-244/91 P Pincherlev Commission [1993] ECR I-6965

This line of decisions may be applied by analogy to the present case (paragraph 61).

The GIP do not derogate from the principle laid down in Article 24 of Annex X according to which an official serving in a third country is entitled to full reimbursement of the expenditure incurred by him. Article 5 of the GIP provides that ‘an official whose place of employment is outside the Community shall be reimbursed for expenditure actually incurred by himself.’ None the less, in order to ensure die financial equilibrium of the supplementary sickness insurance scheme, that provision further states that ‘beyond a limit above which the expenditure is regarded as excessive, the person concerned may not claim any reimbursement’ (paragraph 62).

It thus appears that the excess thresholds established derive from the same concern which led the Community legislature to provide for ceilings in the Rules for the reimbursement of medical expenses under Article 72 of the Staff Regulations. As in the case of the latter provision, the imposition of excess thresholds in Article 5 of the GIP attests to sound management of the supplementary sickness insurance scheme without calling in question the very principles on which such insurance is based (paragraph 63).

The relevant provisions of the GIP whose lawfulness the applicant contests thus correctly reflect the puipose of Article 24 of Annex X and do not run counter to it (paragraph 64).

Consequently, the contested decision, which constitutes a correct application of the ceiling provided for by the GIP for the medical expenses in question, is not itself vitiated by illegality (paragraph 65).

Operative part:

The application in Case T-21/95 is dismissed as inadmissible.

The application in Case T-186/95 is dismissed as inadmissible to the extent to which it seeks the issue of directions and the making of declarations by the Court of First Instance.

The remainder of the application is dismissed as unfounded.