Judgment of the Court (Second Chamber) of 7 June 1972. - Georg Brandau v Council of the European Communities. - Case 46-71.



European Court reports 1972 Page 00373

Danish special edition Page 00099

Portuguese special edition Page 00127



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . OFFICIALS - REMUNERATION - FAMILY ALLOWANCES - TREATMENT OF A PERSON AS A DEPENDENT CHILD - REJECTION OF REQUEST - SPECIAL REASONING NOT COMPULSORY

( STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES, ANNEX VII, ARTICLE 2 ( 4 ))

2 . OFFICIALS - REMUNERATION - FAMILY ALLOWANCES - TREATMENT OF A PERSON AS A DEPENDENT CHILD - DISCRETION OF THE ADMINISTRATION - FOUNDATION

( STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES, ANNEX VII, ARTICLE 2 ( 4 ))

3 . OFFICIALS - REMUNERATION - FAMILY ALLOWANCES - TREATMENT OF A PERSON AS A DEPENDENT CHILD - OBJECTIVE CRITERIA DETERMINED BY THE INSTITUTIONS - DISCRETION OF THE ADMINISTRATION - EXERCISE - COMPATIBILITY WITH EQUAL TREATMENT OF OFFICIALS

( STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES, ANNEX VII, ARTICLE 2 ( 4 ))

Summary

1 . ARTICLE 2 ( 4 ) OF ANNEX VII TO THE STAFF REGULATIONS REQUIRES A SPECIAL STATEMENT OF REASONS TO BE GIVEN ONLY FOR A DECISION ALLOWING A REQUEST FOR A PERSON TO BE TREATED AS IF HE WERE A DEPENDENT CHILD .

IN THE EVENT OF REJECTION THE ADMINISTRATION IS NOT THEREFORE COMPELLED TO GIVE REASONS FOR ITS DECISION .

2 . THE WORDS USED IN ARTICLE 2 ( 4 ) OF ANNEX VII IT CLEAR THAT THOSE WHO DRAFTED THE REGULATIONS INTENDED TO LEAVE THE ADMINISTRATION SOME DISCRETION IN MAKING A FAIR APPRAISAL OF THE FACTS AND CIRCUMSTANCES ADDUCED, IN EACH CASE, IN SUPPORT OF A REQUEST FOR ASSIMILATION .

3 . 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, SUCH A STATEMENT CANNOT PREJUDGE THE EXERCISE, IN EACH INDIVIDUAL CASE, OF THE DISCRETION CONFERRED ON THE ADMINISTRATION BY THE STAFF REGULATIONS THEMSELVES .

THIS DISCRETION, WHICH IS ESSENTIAL FOR TAKING ACCOUNT OF THE MANIFOLD UNFORESEEABLE FACTS PECULIAR TO EACH CASE, IS NOT INCOMPATIBLE WITH THE GENERAL PRINCIPLE OF EQUAL TREATMENT FOR OFFICIALS .

Parties

IN CASE 46/71

GEORG BRANDAU, AN OFFICIAL OF THE SECRETARIAT-GENERAL OF THE COUNCIL OF THE EUROPEAN COMMUNITIES, BRUSSELS, LIVING AT TERVUREN, 1 EVENAARSBINNENHOF, REPRESENTED AND ASSISTED BY MICHEL VAN DOOSSELAERE, ADVOCATE BEFORE THE COUR D' APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF JACQUES LOESCH, 2 RUE GOETHE, APPLICANT,

V

COUNCIL OF THE EUROPEAN COMMUNITIES, BRUSSELS, REPRESENTED BY ITS LEGAL ADVISER, GONZAGUE LESORT, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, EMILE REUTER, 4 BOULEVARD ROYAL, DEFENDANT,

Subject of the case

APPLICATION FOR ANNULMENT OF THE IMPLIED DECISION REJECTING THE REQUEST FOR FAMILY ALLOWANCES SUBMITTED BY THE APPLICANT ON 26 MARCH 1971 AND, IN THE ALTERNATIVE, FOR ANNULMENT OF THE EXPRESS DECISION OF 16 JULY 1971 REJECTING THAT REQUEST,

Grounds

( A ) SUBMISSION CONCERNING INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT

1 THE APPLICANT COMPLAINS THAT THE DEFENDANT INFRINGED AN ESSENTIAL PROCEDURAL REQUIREMENT LAID DOWN IN ARTICLE 2 ( 4 ) OF ANNEX VII TO THE STAFF REGULATIONS OF OFFICIALS IN THAT THE IMPLIED DECISION REJECTING HIS REQUEST FOR FAMILY ALLOWANCES WAS NOT A " SPECIAL REASONED DECISION ".

2 ARTICLE 2 ( 4 ) OF ANNEX VII TO THE STAFF REGULATIONS REQUIRES A SPECIAL STATEMENT OF REASONS TO BE GIVEN ONLY FOR A DECISION ALLOWING A REQUEST FOR A PERSON TO BE TREATED AS IF HE WERE A DEPENDENT CHILD .

3 THIS EXPRESS PROVISION IS BASED ON THE EXCEPTIONAL CHARACTER, EMPHASIZED BY THE WORDING OF THE PROVISION CONCERNED, OF SUCH TREATMENT AND BY THE NEED TO MAKE IT POSSIBLE FOR THE USE MADE BY THE ADMINISTRATION OF THE POWERS AVAILABLE TO IT IN THIS CONNEXION TO BE MORE EASILY REVIEWED .

4 IT IS NOT, THEREFORE, POSSIBLE TO READ INTO THE PROVISION AN OBLIGATION FOR THE ADMINISTRATION, IN THE EVENT OF REJECTION, TO TAKE A SPECIAL REASONED DECISION .

5 THIS SUBMISSION IS, IN CONSEQUENCE, UNFOUNDED .

( B ) THE SUBMISSION CONCERNING INFRINGEMENT OF ARTICLE 2 ( 4 ) OF ANNEX VII TO THE STAFF REGULATIONS OF OFFICIALS AND OF ARTICLE 1 OF THE DECISION OF THE COUNCIL OF 2 APRIL 1964

6 THE APPLICANT CONTENDS THAT ONCE THE CONDITIONS PROVIDED FOR UNDER ARTICLE 2 ( 4 ) OF ANNEX VII TO THE STAFF REGULATIONS ARE SATISFIED, THE INSTITUTION IS OBLIGED TO GRANT THE TREATMENT REQUESTED .

7 ACCORDING TO THE DEFENDANT, THE PROVISION RELIED UPON BY THE APPLICANT LEAVES THE ADMINISTRATION A MARGIN OF DISCRETION IN DEALING WITH EACH INDIVIDUAL CASE .

8 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 .

9 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 .

10 NEVERTHELESS, IN SUPPORT OF HIS CONTENTION, THE APPLICANT REFERS TO THE DECISION OF THE COUNCIL OF 2 APRIL 1964 LAYING DOWN OBJECTIVE CRITERIA FOR DETERMINING THE CONDITIONS ON WHICH A PERSON MAY BE TREATED AS A DEPENDENT CHILD .

11 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 .

12 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 .

13 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 .

14 SUCH AN INTERPRETATION WOULD CONFLICT WITH THE NEED FOR EVALUATION OF THE OFTEN COMPLICATED FACTUAL CONSIDERATIONS PECULIAR TO EACH INDIVIDUAL CASE .

15 IN THE ALTERNATIVE, THE APPLICANT REQUESTS THE COURT TO CONSIDER WHETHER THE ADMINISTRATION HAS MADE A PROPER USE OF ITS DISCRETION .

16 DURING THE PRESENT PROCEEDINGS, THE DEFENDANT JUSTIFIED ITS REJECTION OF THE APPLICANT' S REQUEST ON THE GROUND THAT THE HOME WHICH THE LATTER HAD CHOSEN FOR HIS MOTHER CHARGED MUCH HIGHER FEES THAN THE AVERAGE CHARGED BY PRIVATE HOMES IN THE SAME DISTRICT AND THAT THE APPLICANT HAD NOT PROVED THAT IT WAS NECESSARY AND PROPER TO PLACE HIS MOTHER IN SUCH A HOME .

17 WITHOUT PREJUDICE TO CONSIDERATION OF THE EXTENT OF THE APPLICANT' S LEGAL OBLIGATION TO MAINTAIN HIS MOTHER, AND WITH DUE REGARD IN PARTICULAR TO ANY NEED FOR SPECIAL MEDICAL ATTENTION WHICH THE STATE OF HEALTH OF THE DEPENDENT PERSON MAY REQUIRE, IT MAY BE STATED THAT, IN THE LIGHT OF THE RELEVANT INFORMATION SUPPLIED IN THIS CASE BY THE TWO PARTIES, THE REASONS GIVEN BY THE DEFENDANT IN SUPPORT OF ITS REFUSAL DO NOT APPEAR TO BE WHOLLY WITHOUT FOUNDATION .

18 THE APPLICANT HAS NOT PRODUCED THE REQUIRED EVIDENCE THAT THE PAYMENTS MADE FOR HIS MOTHER' S BENEFIT WERE NECESSARY .

19 IN THESE CIRCUMSTANCES, WHEN THE DEFENDANT REFUSED TO ACCEDE TO THE REQUEST FOR ASSIMILATION SUBMITTED BY THE APPLICANT, IT DID NOT EXCEED THE MARGIN OF DISCRETION CONFERRED UPON IT BY ARTICLE 2 ( 4 ) OF ANNEX VII TO THE STAFF REGULATIONS OF OFFICIALS .

20 IT FOLLOWS FROM ALL THE ABOVE CONSIDERATIONS THAT THIS SUBMISSION IS UNFOUNDED .

( C ) THE APPLICATION FOR ANNULMENT OF THE EXPRESS DECISION REJECTING THE REQUEST

21 FINALLY THE APPLICANT CLAIMS ANNULMENT OF THE DECISION CONTAINED IN THE REPLY OF THE COUNCIL OF 16 JULY 1971 STATING THE REASONS FOR REJECTION OF THE REQUEST FOR ASSIMILATION .

22 IN SUPPORT OF HIS CLAIM, THE APPLICANT CONFINES HIMSELF TO REFERRING TO THE SUBMISSIONS MADE AGAINST THE IMPLIED DECISION REJECTING THE REQUEST .

23 WITHOUT PREJUDICE TO THE QUESTION WHETHER THE EXPRESS REPLY OF THE COUNCIL MERELY CONFIRMS THE PREVIOUS IMPLIED DECISION OF REJECTION, WHICH WOULD MAKE THE PRESENT APPLICATION INADMISSIBLE, IT IS SUFFICIENT TO OBSERVE THAT FROM THE CONSIDERATIONS MENTIONED ABOVE IT WOULD APPEAR THAT THIS APPLICATION IS UNFOUNDED .

24 CONSEQUENTLY, THIS CLAIM MUST ALSO BE DISMISSED .

Decision on costs

25 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

26 THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .

27 NEVERTHELESS, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

Operative part

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION AS REGARDS BOTH THE PRINCIPAL AND THE ALTERNATIVE CLAIMS;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .