JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

19 June 1996

Case T-573/93

Manuel Francisco Caballero Montoya

v

Commission of the European Communities

‛Officials — Person treated as a dependent child — Article 2(4) of Annex VII to the Staff Regulations — General implementing provisions — Illegality — Misapplication — Retroactive effect’

Full text in Spanish II-909

Application for:

a declaration that the general implementing provisions concerning persons to be treated as dependent children, adopted by the Commission on 28 September 1989, and in particular Article 6 thereof and the rules ancillary to that article, are unlawful and, in the alternative, annulment of the Commission's decision of 2 September 1993 rejecting the complaint submitted by the applicant against the decision partially rejecting his claim, made on 3 December 1992, for his two sons to be treated as dependent children.

Decision:

Annulment of the decisions of 12 February 1993 and 2 September 1993, in so far as, while recognizing that the applicant is entitled to an allowance for a person treated as a dependent child in the case of one son, he was refused that allowance in respect of the other.

Abstract of the Judgment

On 28 September 1989 the Commission adopted general implementing provisions concerning persons to be treated as dependent children.

The applicant, a Commission official of Spanish nationality and father of three children living in Madrid, received a dependent child allowance until 1 January 1991 in respect of his first son, M.J., and until 1 January 1992 in respect of his second son, J.J., those being the dates on which they respectively reached the age of 26. Payment of the allowances in question ceased on those dates.

On 3 December 1992 the applicant submitted a claim, addressed to Unit 3 (‘Administration of individual rights’) of Directorate B (‘Rights and obligations’) of Directorate General IX (Personnel and Administration) of the Commission, for recognition of his entitlement to an allowance for a person treated as a dependent child in respect of each of his two sons, mentioned above, who were students in Madrid, with retroactive effect from 1 January 1991 in the case of M.J. and from 1 January 1992 in the case of J.J. That claim relies on paragraph 30 of the judgment of the Court of First Instance in Case T-75/89 Brems v Council [1990] ECR II-899.

On 12 February 1993 the appointing authority granted the applicant an allowance for a person treated as a dependent child in respect of his second son, J.J., for the period from 1 December 1992 to 30 November 1993, without retroactive effect.

On 18 March 1993 the applicant submitted a complaint against the decision of 12 February 1993. By letter of 1 June 1993, the appointing authority sent the applicant details of the calculations concerning his entitlement to the allowances sought. By letter of 9 June 1993, the applicant informed the appointing authority that he challenged the calculations set out in that letter and sent details of his own calculations. By decision of 2 September 1993, notified to the applicant by letter of 6 September 1993, the appointing authority expressly rejected his complaint.

Admissibility

By his claim of 3 December 1992, the applicant did not seek continued payment of the dependent child allowance in respect of his two sons, but recognition of a different right, namely entitlement to the allowance for a person treated as a dependent child. That claim could not therefore be a complaint - directed against the decisions to end payment of the dependent child allowance which he had previously received - which should have been submitted within the three-month period prescribed in Article 90(2) of the Staff Regulations for officials of the European Communities (Staff Regulations). Rather, the applicant's claim was a request within the meaning of Article 90(1), which is not subject to any specific time-limit (paragraph 43).

See: T-48/90 Giordani v Commission [1993] ECR II-721. para. 29

Furthermore, following the Commission's adoption of the decision of 12 February 1993 recognizing the applicant's entitlement to the allowance at issue, but in respect of only one of his two sons and without retroactive effect, as requested, the applicant submitted a complaint on 18 March 1993, namely within the three-month period prescribed in the first subparagraph of Article 90(2) of the Staff Regulations. Lastly, the contested decision was taken after the expiry of the four-month period specified in the second subparagraph of Article 90(2) of the Staff Regulations, that is to say, after the implied rejection of the applicant's complaint, but within the period prescribed for initiating proceedings before this Court, and therefore causing time to run afresh for the purposes of bringing an action under Article 91(3) of the Staff Regulations. Consequently, the application was lodged in conformity with all the time-limits stipulated by the Staff Regulations (paragraph 44).

As regards the alleged inadmissibility of the application in seeking a declaration in abstracto that the general implementing provisions are unlawful in their entirety, the Court has no jurisdiction in proceedings under Article 91 of the Staff Regulations to rule in the abstract on the legality of a general rule in the absence of any individual implementing measure. However, the applicant states that the purpose of his claim for a declaration that the general implementing provisions and, in particular, Article 6 thereof and the mies ancillary to that article, are unlawful is to obtain annulment of the contested decisions concerning him, which were adopted under those provisions. The applicant must therefore be regarded as raising an objection of illegality in respect of the general implementing provisions, in so far as they constitute the legal basis for the adoption of the individual decisions whose annulment is sought in these proceedings (paragraphs 45 and 46).

See: T-l 10/89 Pincherle v Commission [1991] ECR II-635, paras 30 and 33; T-41/90 Barassi v Commission [1992] ECR II-159, para. 38; T-6/92 and T-52/92 Reinan v Commission [1993] ECR II-1047, para. 52

Lastly, the lack of any express reference in the applicant's complaint to the articles of the general implementing provisions, cited above, has no decisive effect on the admissibility of the formal claims and pleas in law put forward in the application in this case. Although it contains no express reference to those articles, the applicant's complaint of 18 March 1993 does refer to them by implication in so far as it challenges the lawfulness of the appointing authority's decision of 12 February 1993, which was adopted under the combined provisions of the general implementing provisions, including Article 6 and the mies ancillary to it. Consequently, the scope of the complaint and the scope of the application are bound to be circumscribed by the same legal mies, so that the applicant is entitled to support his grounds of application with pleas in law and arguments which, though not necessarily advanced in his complaint, are closely linked to it (paragraph 47).

See: T-57/89 Alexandrakis v Commission [1990] ECR II-143

Substance

Legality of the refiisal to treat two persons as dependent children

The grounds for the rejection of the applicant's claim were only to be deduced from the calculations based on the assumption that the applicant's sons resided permanently in his household, within the meaning of Article 6 of the general implementing provisions, as construed by the Commission. It is common ground that the two sons of the applicant for whom he claimed treatment as dependent children were living in Madrid, not Brussels, his place of employment. The way in which the Commission construed Article 6 of the general implementing provisions in the contested decision goes against its very wording: it uses the words ‘in the official's household’, which refers to the premises which the official concerned physically occupies, and there is nothing in the provisions in question to indicate that the rules' draftsmen were referring to a dwelling owned by the official. Such a construction of Article 6 of the general implementing provisions would create, without any legal basis, unjustified discrimination against the officials concerned, depending solely on whether the premises occupied by persons for whom treatment as dependent children is sought are owned by the official concerned (paragraphs 59 and 61).

Legality of the refusal retroactively to treat one of the applicant's sons as a dependent child

In the first place, although the applicant argues that the principle of fairness should lead the Commission to recognize with retroactive effect his entitlement to the allowance for a person treated as a dependent child in respect of both sons, this plea in law must be regarded as directed solely against that part of the contested decision granting him the entitlement claimed only in respect of one of his sons. Since, in the case of the other son, the applicant's claim for an allowance was refused outright, he cannot raise before the Court the question of retroactive effect in his challenge to that outright refusal, since such a question cannot in those circumstances be regarded as falling within the scope of these proceedings. Secondly, Article 12(2) of the general implementing provisions provides that ‘where a favourable decision is taken, it shall take effect from the first day of the month during which the official made his application’ (paragraphs 71 to 72).

As regards the merits of the applicant's argument that he could have submitted his claim earlier if the Commission had not been so slow in bringing its staff's attention to the effect of the judgment in Brems v Council, the obligation laid down in the second paragraph of Article 110 of the Staff Regulations concerns only the general provisions for giving effect to the Staff Regulations and any rules adopted by agreement between the institutions: as far as the appointing authority is concerned, that obligation does not extend to judgments given by the Community judicature. Lastly, even on the assumption that the Commission infringed the obligation laid down in Article 110 of the Staff Regulations, this would not render unlawful the material provisions of Article 12 of the general implementing provisions since, for the reasons of legal certainty already explained, those provisions had to be applied as they stood in the applicant's case (paragraphs 73 and 75).

See: Brems v Council, cited above

Operative pari:

The Commission's decision of 2 September 1993, notified to the applicant by letter of 6 September 1993, rejecting his complaint against the decision of 12 February 1993, is annulled, together with the latter decision, in so far as those two decisions, while recognizing that the applicant was entitled to an allowance for a person treated as a dependent child in the case of one of his two sons, refused to grant that allowance in respect of the other son.

The remainder of the application is dismissed.