JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

27 October 2010

Case F-60/09

Gerhard Birkhoff

v

European Commission

(Civil service — Remuneration — Family allowances — Dependent child allowance — Child prevented by serious illness or invalidity from earning a livelihood — Application for extension of payment of the allowance — Article 2(5) of Annex VII to the Staff Regulations — Maximum income of the child as a condition for extending the payment of the allowance — Costs deductible from that income)

Application: brought under Articles 236 EC and 152 EA, in which Mr Birkhoff essentially seeks annulment of the Commission’s decision of 14 November 2008 refusing to extend beyond 31 December 2008 payment of the dependent child allowance which he had been receiving since 1978, under Article 2(5) of Annex VII to the Staff Regulations of Officials of the European Union, for his disabled daughter.

Held: The action is dismissed. The applicant is ordered to bear all the costs.

Summary

1. Officials — Remuneration — Family allowances — Dependent child allowance — Right to extension without age restriction where child cannot earn a livelihood

(Staff Regulations, Annex VII, Art. 2(5))

2. Officials — Remuneration — Family allowances — Dependent child allowance — Institution’s refusal to extend payment of the allowance — Expert medical report

3. Officials — Remuneration — Family allowances — Dependent child allowance — Right to extension without age restriction where child cannot earn a livelihood

(Staff Regulations, Annex VII, Art. 2(5))

1. The dependent child allowance has an objective of a social nature justified by the costs arising from a present and certain need connected with the child and its effective maintenance. It must be determined, in each individual case and in the light of the situation of the persons concerned, whether the social objective pursued by payment of the allowance in question, which may be extended under Article 2(5) of Annex VII to the Staff Regulations, has been achieved. It follows that, for the application of that article, the administration concerned must determine, in each individual case and taking account of all the circumstances of the case in question, whether the serious illness or invalidity from which the child suffers prevents it from earning a livelihood.

To that end, it is open to the Union institutions to develop a common interpretation for vague concepts in the Staff Regulations such as the requirement that the child must be ‘prevented … from earning a livelihood’ under Article 2(5) of Annex VII to the Staff Regulations. In that respect, a finding approved by the heads of administration in the Commission can serve, for the purposes of applying Article 2(5) of Annex VII to the Staff Regulations, only as a ‘starting point’ for the assessment of each particular case, and the formulation by the Commission of a criterion of 40% of the basic salary of an official at grade 1, step 1, does not relieve it of the obligation to examine the particular circumstances of the case in question.

Costs directly associated with the disability must, as ‘special circumstances’, be deducted in full from the gross or taxable earnings of the dependent child, which may result in only part of those earnings being taken into account in the checks on its ability to earn a livelihood. It follows that the administration must conduct a detailed examination of every item of expenditure incurred by a disabled person in order to determine whether that expenditure is directly associated with the disability in question and, if so, to deduct it and, where appropriate, grant the allowance concerned.

(see paras 29-31, 36, 40, 42-43)

See:

C-70/91 P Council v Brems [1992] ECR I-2973, para. 9

T-498/93 Dornonville de la Cour v Commission [1994] ECR-SC I-A-257 and II-813, para. 38; T-302/01 Birkhoff v Commission [2003] ECR-SC I-A-245 and II-1185, paras 40, 41, 43, 44, 47 and 48

2. While it may be difficult for the Courts of the Union to check whether the medical assessments produced by the Settlements Offices’ medical officers are valid, that does not mean that it considers those assessments, albeit produced under proper conditions, to be definitive and exempt from its review, like the medical assessments produced by the Medical and Invalidity Committees or those of the independent doctor who must be consulted, pursuant to the fifth paragraph of Article 59(1) of the Staff Regulations, where there is a request for arbitration. The reason is that the medical assessments expressed unilaterally by a doctor belonging to the institution, such as a Settlements Office’s medical officer, do not provide the same safeguards of balance between the parties and of objectivity as assessments produced by the Medical and Invalidity Committees, in view of their composition.

That is why the Civil Service Tribunal’s review of an institution’s refusal to extend payment of the dependent child allowance, and of the opinion of the Settlements Office’s medical officer on which it is, in some circumstances, based, may be limited, but extends to errors of fact, errors of law and manifest errors of assessment.

(see paras 48-49)

See:

156/80 Morbelli v Commission [1981] ECR 1357, paras 15 to 20

T-34/99 Pipeaux v Parliament [2000] ECR-SC I-A-79 and II-337, paras 29 and 30; T-191/01 Hecq v Commission [2004] ECR-SC I-A-147 and II-659, paras 64 to 78; T-376/02 O v Commission [2004] ECR-SC I-A-349 and II-1595, para. 29

F-99/06 López Teruel v OHIM [2007] ECR-SC I-A-1-147 and II-A-1-797, paras 74 to 76; F-10/07 Botos v Commission [2007] ECR-SC I-A-1-243 and II-A-1-1345, paras 40 to 50

3. The campaign against discrimination on the ground of disability seeks to apply the principle of equal treatment between a disabled person and an able-bodied person in the same situation, in order to ensure that the disabled person is also able to participate in society and/or professional life. It follows that action in support of the disabled is not an end in itself, but is designed to ensure equal treatment. Action in support of the disabled is thus permitted only if it aims to achieve equal treatment with an able-bodied person in the same situation. However admirable the effort of a disabled person attempting to follow an atypical and dynamic career path, the only payments that person may receive under the legal framework governing social benefits, as the Staff Regulations currently stand, are intended to remedy the financial disadvantages resulting directly from his disability. Accepting that the purpose of Article 2(5) of Annex VII to the Staff Regulations might also be extended to measures facilitating the disabled person’s development in his socio-professional life would exceed the objective pursued by that article. Such measures in support of the disabled would fall outside the framework of the dependent child allowance as defined by Section 1, entitled ‘Family allowances’, of Annex VII to the Staff Regulations.

(see para. 51)

See:

C-303/06 Coleman [2008] ECR I-5603, para. 47

Birkhoff v Commission, para. 48