OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 20 September 2007 1( )

Case C‑135/06 P

Roderich Weißenfels

v

European Parliament

(Appeal – Community official – Remuneration – Dependent child allowance – Article 67(2) of the Staff Regulations – Deduction of an allowance of like nature paid from another source)

I – Introduction

1. The present appeal proceedings give cause to consider in particular the question of when there is ‘an allowance of like nature paid from another source’ within the meaning of Article 67(2) of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’).

2. The proceedings relate to a dispute in a staff case between a Community official, Mr Roderich Weißenfels (‘the appellant’), and the European Parliament. With his action at first instance the appellant contested decisions of the Parliament by which it deducted a sum in the amount of a payment made under Luxembourg law from the double dependent child allowance paid to him under the Staff Regulations.

3. The appellant lodged an appeal against the judgment of the Court of First Instance of 25 January 2006 (‘the judgment under appeal’), ( ) which dismissed his action.

II – Legal framework

A – Community law

4. Pursuant to Article 62(3) of the Staff Regulations in the version applicable to the present case the remuneration of officials includes family allowances.

5. Pursuant to Article 67(1)(b) of the Staff Regulations, the dependent child allowance is, inter alia, a family allowance.

6. Article 67(2) and (3) of the Staff Regulations provide:

‘2. Officials in receipt of family allowances specified in this Article shall declare allowances of like nature paid from other sources; such latter allowances shall be deducted from those paid under Articles 1, 2 and 3 of Annex VII.

3. The dependent child allowance may be doubled by special reasoned decision of the appointing authority based on medical documents establishing that the child concerned is suffering from a mental or physical handicap which involves the official in heavy expenditure.’

B – National Law

7. The Luxembourg Law on the creation of a special aid allowance for handicapped people, which was repealed by the Law of 19 June 1998 introducing nursing-care insurance, but is still applicable to the present case pursuant to the transitional provisions of the latter Law (‘the Luxembourg Law of 16 April 1979’), provides:

‘Art. 1. Every severely handicapped person who is resident in the Grand-Duchy of Luxembourg and who has been resident there for at least 10 years is entitled to the benefits under this Law.

Handicapped children have the same entitlement as of the age of three … .

…

Art. 3. Every severely handicapped person … is entitled to … a special allowance … .

Art. 4. The allowance … shall be … suspended … up to the amount of a foreign benefit of like nature.

Art. 5. The allowance … is exempt from taxes and social insurance contributions. …’

III – Background to the dispute and the judgment of the Court of First Instance

8. The Court of First Instance sets out the background to the dispute as follows in paragraphs 5 to 16:

‘5 The applicant, an official in Grade A*12 (former Grade A 4), took up employment with the Parliament in Luxembourg on 1 April 1982.

6 His eldest son was born on 31 January 1982. He has been severely handicapped since early childhood.

7 The dependent child allowance (“the child allowance”) provided for in Article 67(1)(b) of the Staff Regulations was granted to the applicant when he took up his post with the Parliament. On 31 July 1987 the Parliament decided, under Article 67(3) of the Staff Regulations, to double the child allowance in respect of the applicant’s son as of 1 May 1987. By decision of 8 July 1997, the double child allowance was granted for a further period from 1 July 1997 to 30 June 2000.

8 By decision of 26 April 1999, the Luxembourg Fonds National de Solidarité decided, under the Luxembourg Law of 16 April 1979, to pay to the applicant, as the legal representative for his son, a special allowance for the severely handicapped as from 1 December 1998.

9 The applicant informed the Parliament of the payment of the Luxembourg allowance in mid-October 1999.

10 By decision of 22 October 1999, the Parliament, under Article 67(2) of the Staff Regulations, reduced the amount corresponding to the double child allowance under the Staff Regulations by the amount of the Luxembourg allowance with effect from 1 December 1998.

11 By decision of 20 September 2000, the double child allowance was granted for a further period from 1 July 2000 to 30 June 2003. The amount corresponding to the double child allowance under the Staff Regulations was reduced, by decision of 18 September 2000, by the amount of the Luxembourg allowance.

12 By decision of 1 July 2003, the double child allowance was granted for a further period from 1 July 2003 to 30 June 2006.

13 In the meantime the applicant had, by letter of 4 June 2003, challenged the principle of the deduction of the Luxembourg aid by the Parliament as follows:

“As I already … pointed out [on] 28 May 2003, the aid is paid not to me, but to my son …, although it is paid into my hands as his legal representative. There can be no question of a deduction under Article 67(2) of the Staff Regulations from the double child allowance granted to me as part of my remuneration pursuant to Article 67(3).

This results from the fact that, first, there are two separate claimants (legal persons) involved, and that, on the other hand, the aid constitutes an independent benefit and not an ‘allowance’.

In any event, the benefit is not ‘of like nature’ either: the allowance under Article 67(3) serves to alleviate the uncommon burdens on the official, the aid is a benefit to support the handicapped person.”

14 By decision of 26 June 2003 the Parliament did, however, make the deduction.

15 By letter of 13 August 2003 the applicant submitted a complaint against the decision of 26 June 2003 under Article 90(2) of the Staff Regulations. That complaint was rejected by letter of the Parliament of 10 November 2003.

16 On 28 April 2004 – after the application in the present case had been entered in the register – the Parliament, having regard to the updated amount of the Luxembourg allowance, took a decision on the deduction pursuant to Article 67(2) of the Staff Regulations. On 8 June 2004, the applicant submitted a complaint against the decision of 28 April 2004, which was rejected by decision of the Parliament of 15 September 2004.’

9. By application lodged at the Registry of the Court of First Instance on 2 February 2004, the appellant brought his first-instance action. With it he claimed that the Court should annul the defendant’s decision of 26 June 2003 together with the defendant’s decision of 10 November 2003 on the complaint relating thereto and order the Parliament to pay to him all amounts improperly withheld from his remuneration together with interest at the rate prescribed by law.

10. In his reply the appellant reworded his second head of claim and claimed that the Court should:

‘annul the implied decision of refusal by the defendant to repay to the applicant, in accordance with his application of 4 June 2003, the double child allowance which had been unjustly retained in the past together with the defendant’s decision of 10 November 2003 on the complaint relating thereto;

annul the defendant’s decision of 28 April 2004 as a result of which the special allowance for the severely handicapped which was granted by another source to the applicant’s son … was declared to be an “allowance of like nature”, within the meaning of Article 67(2) of the Staff Regulations, to the double child allowance … together with the defendant’s decision of 15 September 2004 on the complaint relating thereto;

order the defendant to pay to the applicant compensation in the amount of the statutory interest which has accrued, in respect of the harm incurred as a result of the fact that parts of his remuneration in the form of the double child allowance have been unjustly retained since 1 December 1998.’

11. The Court of First Instance dismissed the action. As regards the claim that the Parliament should be ordered to pay retrospectively certain sums, the Court dismissed the application as inadmissible. The claim that the Parliament should be ordered to pay retrospectively certain sums was inadmissible as the Court did not have jurisdiction, in an action brought under Article 91 of the Staff Regulations, to issue directions to the Community institutions. Pursuant to Article 233 EC, where a legislative act is annulled, the institution concerned is required to take the necessary measures to comply with the judgment.

12. As regards the reformulated head of claim contained in the reply, with which the applicant claimed that the Parliament should be ordered to pay compensation in respect of the damage incurred, the Court of First Instance found that it constituted a claim for compensation for damage in terms of Article 235 EC. However, as the subject-matter of the dispute is determined in the application, it cannot be altered at the stage of the reply.

13. The Court of First Instance regarded the action for annulment as being solely directed against the decision of 26 June 2003. The Court rejected that claim as unfounded. The Parliament was right to take the view that the Luxembourg allowance was an allowance of like nature within the meaning of Article 67(2) of the Staff Regulations, which was to be deducted from the double child allowance in accordance with those regulations.

IV – The appeal

14. The appellant submits three pleas in law. The first and second allege that the Court of First Instance failed to take into account and dismissed certain heads of claim and the third alleges infringement of Article 67(2) of the Staff Regulations.

15. The appellant claims that the Court should:

‘1. annul the judgment of the Court of First Instance (First Chamber) of 25 January 2006 in Case T-33/04 (Weißenfels v European Parliament), notified on 31 January 2006;

2. annul the decision of the respondent of 26 June 2003, as a result of which the special allowance for the severely handicapped which was paid from another source to the appellant’s son Frederik was deducted from the double child allowance granted to the appellant under Article 67(3) of the Staff Regulations;

3. annul the implied decision of refusal of the respondent to pay back to the appellant, in accordance with his application of 4 June 2003, the double child allowance which had been unjustly retained in the past;

4. annul the decision of the respondent of 28 April 2004, as a result of which the special allowance for the severely handicapped which was granted by another source to Frederik, the son of the appellant, was declared to be an “allowance of like nature”, within the meaning of Article 67(2) of the Staff Regulations, to the double child allowance which had been granted to the appellant;

5. order the respondent to pay the appellant compensation (in the alternative: the statutory interest which has accrued) in respect of the harm incurred as a result of the fact that parts of his remuneration in the form of the double child allowance have been unjustly retained since 1 December 1998;

6. order the respondent to pay the costs of appeal and at first instance, including the expenses incurred by the appellant.’

16. The European Parliament contends that the Court should:

1. dismiss the appeal, as the pleas in law are in part irrelevant and inadmissible and are, in any event, unfounded;

2. order the appellant to pay the costs of appeal.

V – Assessment

17. It is appropriate to begin with an examination of the third plea. According to the case-law of the Court, an appeal is to be dismissed if the grounds of the judgment under appeal reveal an infringement of Community law but the operative part appears well founded on other grounds. ( ) Therefore if it were to be found that the appellant is not entitled to payment in full of the family allowance, then the first and second pleas would be irrelevant, as the operative part would then, in any event, have proved to be well founded.

A – The interpretation of Article 67(2) of the Staff Regulations

18. With the third plea the appellant submits that the Court of First Instance in interpreting the notion of ‘allowances of like nature paid from other sources’ overlooked the fact that Article 67(2) requires two kinds of similarity, both formal and substantive. In order to constitute an ‘allowance of like nature’, the allowance paid from another source has to be a benefit which is ancillary to remuneration like the official’s family allowance. That follows from the wording of Article 67(2) of the Staff Regulations, which uses the term ‘allowance’; the Luxembourg benefit is not a benefit which is ancillary to remuneration and moreover the term ‘allowance’ is not used with reference to it, but rather it is called special aid. Furthermore, the appellant relies on the judgments of the Court of Justice in Commission v Belgium ( ) and Commission v Germany. ( ) The judgment under appeal errs in law in assuming that it is irrelevant for the application of Article 67(2) of the Staff Regulations that the national aid is paid, irrespective of an employment relationship, to the individual who is resident in the Member State.

19. Furthermore, according to the appellant, there is no similarity from a substantive point of view as the claimants of the two benefits are not identical. The claimant of the national benefit is not the official, but the child itself. What matters is not the actual recipient of the benefit, but solely the claimant.

20. Thus it must be examined whether the Court of First Instance misinterpreted Article 67(2) of the Staff Regulations in that it regarded a benefit which is not paid in connection with remunerative employment as an allowance of like nature within the meaning of that provision in that it relied only on the spirit and purpose of the benefits in examining the similarity of benefits.

1. The income-dependent nature of the benefit

21. The Court of First Instance found in paragraph 52 of the judgment under appeal that the applicant’s argument that the two benefits at issue were not of like nature because the allowance under the Staff Regulations is added to the official’s salary whereas the national aid is paid to the handicapped child irrespective of the remunerative employment of the parents was not convincing. Rather what was decisive in deciding whether the two benefits at issue in the present case were of like nature was the spirit and purpose of the payment made. Accordingly, what was important here was the expenditure which arises as a result of a severely handicapped person’s need for support and care.

22. According to the judgment under appeal it is irrelevant for the application of Article 67(2) of the Staff Regulations whether the national allowance is paid in connection with an income or independently thereof. The appellant is correct in stating that this conclusion is not immediately apparent from the wording of the German version of that provision. What is mentioned there is a ‘Zulage’ (allowance). ( ) That term may be understood as a benefit which is added to another benefit, namely in the present context to the salary, in the same way as the benefit against which the benefit paid from another source counts also constitutes an allowance in addition to the official’s salary. The wording, at least of the German version of the Staff Regulations, can therefore at first sight be understood to mean that a benefit is only of like nature if it constitutes an ‘allowance’ in addition to salary.

23. This grammatical interpretation is not, however, the only one possible. The use of the term ‘allowance’ can also be non-specific and can furthermore be understood as meaning that it also includes those benefits which are not paid in connection with a salary.

24. Therefore the teleological interpretation is of crucial importance. The Parliament is right in stating that if the concept of an allowance in Article 67(2) of the Staff Regulations were to be interpreted as an allowance in addition to salary then the provision would in many cases be rendered ineffective. In respect of officials, there will not usually be any allowances in addition to salary which are paid from other sources; at most, there could be one if an official engages in part-time work. On the basis of that understanding Article 67(2) would only cover an allowance in addition to the salary of an official’s spouse.

25. What militates decisively against an understanding of the benefit as merely an allowance in addition to salary is the argument that that understanding would lead to differences in the treatment of officials which are contingent on the form which the systems of family allowances in the Member States happen to have. A male or female official whose spouse works in a Member State, which has set up the payment of an additional benefit for handicapped children as an allowance in addition to salary, would have that payment counted against the Community benefit. A different official, who received a national allowance in respect of his handicapped child from a Member State which had not set it up as an allowance in addition to salary, but had made it dependent on the satisfaction of a residence criterion, would not have it counted against the Community benefit and would therefore receive double the benefit. Such a difference in the treatment of officials, contingent on the respective form of national law, is unjustified.

26. Therefore, an interpretation of Article 67(2) of the Staff Regulations – as taken by the Court of First Instance as a basis for its judgment – which avoids such a difference in the treatment of officials, in that it does not rely on formal similarity as an allowance in addition to salary, but on substantive similarity, namely on the spirit and purpose of the benefit, is more convincing.

27. Furthermore the judgments of the Court of Justice in Commission v Belgium ( ) and Commission v Germany ( ) do not, contrary to the submissions of the appellant, preclude that interpretation. Admittedly, the Court held in those judgments that ‘Article 67(2) applies only where, in relation to a Member State whose legislation confers entitlement in principle to the payment of national allowances in respect of a child who is eligible for allowances under the Staff Regulations, there is a comparable link with circumstances conferring entitlement to the award of allowances under the Staff Regulations.’ ( )

28. The Court also stated that ‘the allowances of like nature which, according to [Article 67(2) of the Staff Regulations], must be deducted … are only those paid in connection with paid employment.’ ( )

29. As the judgment under appeal declares both the fact that the national allowance is not granted in connection with employment, but only on the basis of residence, and the fact that the official’s spouse is not engaged in any paid employment, to be irrelevant, it thus seems prima facie to contradict the judgments referred to.

30. However, if the context in which the judgments in Commission v Germany and Commission v Belgium were delivered is taken into account, there is, contrary to that first impression, no contradiction. Those judgments were delivered on the basis of actions for failure to fulfil obligations in which the Commission challenged national laws which provided that child benefit is not granted in respect of a child for which one parent is paid a benefit comparable to child benefit by the European Community. The national legislation thus contained an anti-accumulation rule which was comparable to Article 67(2). Under that rule the payment obligation was basically shifted onto the Community. In the interaction of the national and Community legal regimes there was no provision as to priority, that is to say, a provision which regulated which system took priority with regard to payment. The Court thus had to decide the extent to which Article 67(2) precludes a national anti-accumulation rule, and thus the extent to which Article 67(2) gives rise to obligations for Member States.

31. In those cases what was at issue was not the interpretation of Article 67(2) of the Staff Regulations from the perspective of a European official whose entitlement is reduced by reference to the anti-accumulation rule laid down in that provision, but the question whether the national or Community system took priority as regards payment. In those cases the Commission deduced from Article 67(2) of the Staff Regulations that Member States had priority as regards the payment of the benefits with the result that the Community was then able to rely on the anti-accumulation rule and no longer had to pay.

32. Advocate General Mischo, in his Opinions in respect of both cases, suggested that the rule as to priority should not be derived from Article 67(2) of the Staff Regulations. In his opinion, Article 67(2) of the Staff Regulations is merely a rule against the overlapping of benefits. It should operate only if family allowances are actually paid under a national scheme. However, it does not result in a restriction of the Member States’ freedom of action in granting social security benefits. ( )

33. The Court did not however follow the Opinion of the Advocate General, but rather found in its judgments that Article 67(2) of the Staff Regulations also contains a provision as to priority. According to the approach taken by the Court, that provision as to priority means that a Member State infringes Article 67(2) of the Staff Regulations if, where the spouse of a European official is engaged in paid employment, it precludes the payment of family allowances under national law by relying on a payment under the Staff Regulations. ( ) The conclusions with regard to the definition of the ‘like nature of the allowance’ which the Court reached in that connection thus affected Article 67(2) of the Staff Regulations in its function as a provision as to priority.

34. The definition of the ‘like nature of the allowance’ in the field of application of Article 67(2) as a provision as to priority cannot necessarily be applied to the definition of the concept in the context of Article 67(2) in its function as an anti-accumulation rule. Rather, in the context of Article 67(2) as an anti-accumulation rule a substantive understanding of the provision should be taken as a starting point. Only in that way can – as has been mentioned above – a difference in the treatment of officials be avoided. The understanding of Article 67(2) which was proposed by Advocate General Mischo, in terms of which that provision is regarded solely as an anti-accumulation provision and not also as a provision as to priority, would have prevented such a discrepancy in the understanding of the concept depending on whether Article 67(2) functions as a provision as to priority or as an anti-accumulation provision.

35. Within the scope of Article 67(2) of the Staff Regulations as an anti-accumulation provision what is of importance in an examination of the like nature of the benefit is thus solely the substantive criterion of whether it has the same spirit and purpose.

2. The substantively like nature of the benefit

36. In connection with the examination of the substantively like nature of the benefits the appellant submits that the judgment under appeal did not take into account that the claimant of the national benefit is not the official, but rather the child itself and that the benefit is paid to the official only in his function as legal representative of the minor.

37. The Court of First Instance was however correct in holding that a formal classification of the benefit cannot be decisive. Rather, what must be taken into account is who ultimately benefits from the benefit. In the present case, despite the formal ownership of the claim, that is not only the son, but also his father. That is so because those benefits ultimately benefit the official in that they reduce the child’s need for maintenance and thus to that extent relieve the father of the burden of maintenance expenditure. ( ) In this respect also the third plea is thus unfounded.

3. Interim conclusion

38. To sum up, what must be borne in mind is that the judgment under appeal correctly applied Article 67(2) of the Staff Regulations, in that it found that the Parliament was entitled to deduct the payments made under Luxembourg law from the double child allowance under the Staff Regulations.

39. As the judgment under appeal is thus in any event correct as to its conclusion then even if the appellant’s other pleas were to be upheld those other pleas would be irrelevant. They shall however be discussed below for the eventuality that the Court comes to a different conclusion regarding the third plea which has just been discussed.

B – The dismissal of various heads of claim

40. With his first plea the appellant complains that the Court of First Instance erred in law by failing to have regard to the fact that all in all three different decisions were being challenged. With the second plea the appellant complains that the judgment under appeal dismissed his claim for compensation for damages due to lost interest as inadmissible.

41. Contrary to the opinion of the Parliament, those pleas are not inadmissible due to a lack of prejudice to the appellant’s interests. The appellant’s interests could be prejudiced both by the dismissal of the claim for payment of interest and the failure to have regard to the claims that other decisions of the Parliament should be annulled.

1. The failure to have regard to certain claims

42. With the first plea the appellant claims that the decision fails to have regard to the fact that all in all three separate decisions were challenged, namely that of 26 June 2003, the implied decision of refusal of the application of 4 June 2003 and the decision of 28 April 2004. The judgment under appeal erred in law by regarding the appellant’s action for annulment as being solely directed against the decision of 26 June 2003.

43. First, it is necessary to examine whether that plea proves unsuccessful because the appellant withdrew the abovementioned claims at the hearing before the Court of First Instance. In paragraph 31 of the judgment under appeal it is stated ‘that at the hearing the applicant admitted that the various heads of claim for annulment set out in his application and his reply had the same subject-matter, namely the application for annulment of the decision of 26 June 2003’. That wording used by the Court of First Instance does not however support the assumption that the applicant withdrew formally in part his application as regards those heads of claim. In addition, it cannot be inferred from the minutes of the hearing that the applicant declared that he was withdrawing his application in part. Therefore the first plea must be examined below.

44. With the decision of 28 April 2004 the Parliament took a new decision, after the lodging of the application on 2 February 2004, on the deduction pursuant to Article 67(2) of the Staff Regulations having regard to the updated amount of the Luxembourg aid.

45. With regard to the decision of 28 April 2004 the judgment under appeal states in paragraph 31 thereof that that decision is essentially identical to the decision of 26 June 2003. It merely confirms the decision of 26 June 2003 and the action for annulment cannot be regarded as being directed against it.

46. That finding by the Court of First Instance does not appear to me to be correct. With the decision of 28 April 2004 there was a further decision regarding the deduction pursuant to Article 67(2) of the Staff Regulations with effect for the future having regard to the updated amount of the Luxembourg aid. That decision thus contains a separate cause of complaint: even if the decision of 26 June 2003 were annulled, that decision would still continue to apply to the period as of 28 April 2004. The applicant therefore also has a legal interest in bringing proceedings as regards the annulment of the decision of 28 April 2004.

47. Furthermore, that head of claim was, by way of exception, admissible although it was only raised in the reply.

48. According to the case-law of the Court, an application for annulment of a decision which is made after an action is brought is admissible if it constitutes a mere extension of the old decision; it would be contrary to the proper administration of justice and to the requirement of procedural economy to demand that an applicant bring fresh proceedings in order to challenge the new decision. ( )

49. What is questionable is whether that case-law can also be relevant in staff cases as the lodging of a prior complaint is a precondition for the admissibility of the action in those cases. However, in such a case too, the principle of procedural economy demands that the applicant should not bring fresh proceedings provided that the lodging of a prior complaint is dispensable. That is the case if the administrative decision with regard to which the action is extended merely alters or replaces the decision against which a prior complaint has already been lodged. Furthermore, the administration’s position in the court proceedings must show that a complaint would be unsuccessful.

50. Furthermore, the appellant complains that the judgment under appeal errs in failing to appreciate that the implied decision of refusal of the applicant’s application of 4 June 2003 constitutes a separate decision which was the subject-matter of the action for annulment.

51. In that regard the judgment under appeal states in paragraph 30 that the subject-matter of the implied decision of refusal of the application of 4 June 2003 is identical to that of the decision of 26 June 2003 so that the head of claim seeking its annulment is indissociable from the head of claim seeking the annulment of the decision of 26 June 2003.

52. That classification by the judgment under appeal also fails finally to convince. The subject-matter of both claims is not identical. With his application of 4 June 2003 the appellant had claimed repayment of the double child allowance which had been unjustly retained in the past. Thus that application goes beyond a challenge to the decision of 26 June 2003 by which it had been decided to deduct the Luxembourg aid. A deduction of the Luxembourg aid had already been decided on by the decisions of 22 October 1999 and 18 September 2000. The application of 4 June 2003 for the repayment of child allowances which had been retained in the past can also be directed at periods before 26 June 2003 and thus constitutes an independent subject-matter in terms of an action.

53. In this respect the first plea would not however justify an annulment of the judgment under appeal as the head of claim regarding the implied decision of refusal of the application of 4 June 2003 was inadmissible on another ground. It was raised only in the context of the reply and was thus raised belatedly.

2. The claim for compensation for damage

54. With the second plea the appellant complains that his claim for compensation for damage arising through lost interest was dismissed as belated by the judgment under appeal.

55. Paragraph 26 of the judgment under appeal states that the applicant’s claim for compensation for damage due to lost interest in the amount of the statutory interest which has accrued, as amended by the reply, constitutes a claim for compensation for damage which should have been submitted with the application and which, as it was submitted only in the reply, must be dismissed as belated.

56. That conclusion does not stand up to judicial scrutiny. According to Article 21 of the Statute of the Court of Justice the form of order sought must already be contained in the written application; new heads of claim may not, in principle, be submitted subsequently. The claim for interest on the double child allowance to be repaid can, however, by way of interpretation, already be inferred from the application and was thus submitted in time. The applicant had already claimed in the application that the defendant should be ordered to pay to the applicant all amounts improperly withheld from his remuneration together with interest at the rate prescribed by law. Admittedly, the applicant did not in that head of claim claim the payment of the interest expressly as compensation for damage. That cannot, however, be conclusive. The head of claim in the reply should thus not be regarded as a new head of claim, but merely as a more precise statement of the original head of claim, which had already been formulated in sufficiently specific terms in the application, but had simply not been expressly declared to be a claim for compensation for damage. The claim submitted in the reply does not therefore widen the original claim, but is, on the contrary, less wide in that the claim that the Parliament should be ordered to pay retrospectively the unpaid child allowance is not maintained.

57. That head of claim is also admissible as to the remainder. The Court of First Instance correctly assumed that Community Courts are not in principle authorised to issue directions to the Community institutions; pursuant to Article 233 EC if a legislative measure is annulled, the institution concerned is required to take the necessary measures to comply with the judgment.

58. Article 91 of the Staff Regulations, however, provides that in staff case disputes of a financial character the Court of Justice has unlimited jurisdiction including the power to annul or amend the measures which have been taken.

59. The question as to the extent to which, in the context of staff cases, heads of claim that institutions be ordered to pay withheld benefits such as, for example, family allowances or a daily allowance are admissible has been answered in different ways by the Court of First Instance. ( )

60. The Parliament takes the view that the concept of a dispute of a financial character is to be strictly interpreted and that it covers only claims for compensation for damage. The present case regarding double child allowance is not covered by that concept as the Court of Justice would, by contrast with claims for compensation for damage, have no margin of manoeuvre as regards the amount of the retrospective payments to be made by the Parliament if the case were upheld as they would be determined by law.

61. In any event, as far as the interest on the overdue child allowance is concerned, the present case concerns a claim for compensation for damage and thus – even according to the Parliament’s strict interpretation – a dispute of a financial character. In order to decide that claim the Court must however also have the jurisdiction at least implicitly to clarify the preliminary question of whether a repayment obligation on the part of the Parliament actually exists and in particular the periods with respect to which the double child allowance should subsequently be granted.

62. The claim submitted in the reply that the Parliament should be ordered to pay compensation for damage due to lost interest was thus admissible.

C – Interim conclusion

63. As stated above, the appellant would be partially successful in respect of the first and second pleas. However according to the understanding of the third plea set out here the Parliament was right to deduct the payments made under Luxembourg law from the double child allowance. Consequently the judgment is well founded as to its conclusion. It follows that the appeal must be rejected in its entirety.

VI – Costs

64. Under the first subparagraph of Article 69(2) of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. In accordance with Article 70 of the Rules of Procedure, which is also applicable to disputes between the Communities and their servants, the institutions are to bear their own costs. Nevertheless, it follows from the second paragraph of Article 122 of the Rules of Procedure that Article 70 does not apply to appeals – as in the present case – brought by an official or any other servant of an institution.

65. Pursuant to the second paragraph of Article 122 of the Rules of Procedure the Court of Justice – in derogation from Article 69(2) of the Rules of Procedure – may, in appeals brought by officials or other servants of an institution, order the parties to share the costs where equity so requires. In the present case, however, there are no aspects which would militate in favour of such an equitable decision.

66. In the present case the regime in Article 69(2) of the Rules of Procedure thus applies. Since the Parliament applied for the costs of the appeal against the appellant and the latter has been unsuccessful, he must be ordered to pay the costs of the appeal.

VII – Conclusion

67. Accordingly I propose that the Court:

(1) Dismisses the appeal;

(2) Orders the appellant to pay the costs of the appeal.