Opinion of Mr Advocate General Van Gerven delivered on 26 June 1991. - Mario Costacurta v Commission of the European Communities. - Officials - Withdrawal of the education allowance. - Case C-145/90 P.



European Court reports 1991 Page I-05449



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. The Court is asked to rule on an appeal brought by Mario Costacurta ("the appellant") against the judgment delivered on 13 March 1990 by the Court of First Instance (Third Chamber) (1) dismissing two actions brought by the appellant challenging Commission decisions of 30 October 1987 and 26 April 1988. The dispute on which the Court of First Instance gave judgment concerned the withdrawal of payment of the dependent child allowance and the education allowance to which the appellant considered he was entitled in respect of his daughter, Nadia Costacurta.

The facts of the case and the course of the procedure have already been described in the Report for the Hearing and I do not need to repeat them here.

2. I must first point out that the pleas put forward by the appellant in support of his appeal concern only the passage in the contested judgment in which the Court of First Instance rejected the appellant' s first plea. In that plea, the appellant had claimed that he was entitled to an education allowance for his daughter for the period between 1 April 1987 and 31 August 1987. The plea was rejected by the Court in paragraphs 23 to 32 of the grounds of its judgment.

The appellant has based his appeal on three pleas. They all concern the interpretation given in the contested judgment to the condition for granting the education allowance which is laid down in Article 3 of Annex VII to the Staff Regulations, that is to say, the requirement that the dependent child be "in regular full-time attendance at an educational establishment".

Admissibility of the pleas

3. Article 168a of the EEC Treaty states that the right of appeal against judgments of the Court of First Instance is "on points of law only". In accordance with that provision, Article 51 of the Statute (EEC) of the Court of Justice states that:

"An appeal to the Court of Justice shall be limited to points of law. It shall lie on the grounds of lack of competence of the Court of First Instance, a breach of procedure before it which adversely affects the interests of the appellant as well as the infringement of Community law by the Court of First Instance.

No appeal shall lie regarding only the amount of the costs or the party ordered to pay them."

The task of the Court of Justice is therefore to ascertain whether the pleas relied on in the appeal are indeed based on breach in the contested judgment of Community law. I consider that the Court need not take too restrictive an approach to that point and myself have only one observation to make on it.

The experience of the supreme courts of the Member States (2) has shown that limiting the powers of review to "points of law" or "infringement of (Community) law" cannot exclude all reference to the facts (as established by the lower court). There is a breach of law not only where a rule of law has been misinterpreted (for instance, if a court were to hold that breach of Article 86 of the EEC Treaty did not presuppose the existence of a dominant position) but also where a given set of facts is wrongly categorized in law (for instance, if it is held that an undertaking which has a 95% share of a particular market does not have a dominant position there). Since the Court' s powers of review on appeal are intended to ensure the uniformity of Community law, a plea that challenges the legal characterization of a set of facts cannot, in my view, be declared inadmissible.

4. As regards the admissibility of the pleas in this case there can in any case be no doubt. As will be apparent shortly, the appellant claims in each of his three pleas that the Court of First Instance based its judgment on a misinterpretation of Article 3 of Annex VII to the Staff Regulations and/or on a wrong legal characterization of the facts.

First plea

5. The appellant maintains that the Court of First Instance was wrong to hold that the conditions for granting the education allowance ceased to be met when his daughter Nadia Costacurta began her training period at the Commission on 16 March 1987.

The appellant challenges the judgment by referring to Conclusion 166/87 of the Committee of Heads of Administration (mentioned in paragraph 16 of the contested judgment) in which it is stated that the condition regarding a child' s "regular" attendance at an educational establishment is satisfied "when an establishment is attended by a pupil or student for a minimum period of three months". Now, the appellant concludes that since his daughter attended a course in international private law at the University of Paris-I from 16 November 1986 to 15 March 1987, that condition is satisfied and she must be regarded as having been in regular full-time attendance for the whole of the 1986/87 university year.

6. Despite the Commission' s view to the contrary, that plea does in fact concern a "breach of Community law" by the contested judgment, in particular a breach of Article 3 of Annex VII to the Staff Regulations: the appellant maintains that the Court misinterpreted the condition laid down in that provision that attendance at the educational establishment be "regular". The appellant' s argument is evidently that if a university course is followed for at least three months the education allowance must be granted for the whole university year, even if the child follows the courses for only part of the year and pursues a gainful occupation for the rest of the year.

I do not agree. Conclusion 166/87 of the Committee of Heads of Administration, the decision on which the appellant relies, concerns the acquisition of entitlement to the education allowance. Whether the conditions for recognizing such entitlement continue to be met is something which must be considered month by month. That is borne out by the fact that in Article 3 of Annex VII to the Staff Regulations it is provided that the education allowance is a monthly amount and that entitlement to it is to cease at the end of the month in which the child reaches the age of 26. It follows that if it is apparent that the dependent child was no longer attending courses for a particular month, entitlement to the education allowance ceases from the end of the month. One of the facts established in the judgment is that the appellant' s daughter interrupted her university attendance when she commenced her training period at the Commission on 16 March 1987, and that therefore from that date the conditions for grant of the education allowance ceased to be met (paragraphs 29 and 30 of the judgment). Consequently, the first plea must fail.

Second plea

7. The appellant' s second plea is that the Court of First Instance was wrong to consider that the training period completed by his daughter at the Commission starting on 16 March 1987 was not to be regarded as equivalent to "regular full-time attendance" at an educational establishment. The reasons given for reaching that conclusion are to be found in paragraph 26 et seq. of the contested judgment. There the Court of First Instance states that practical training can only be regarded as equivalent to regular attendance at an establishment of higher education "if the training period completed was regarded by the university as constituting an integral part of the programme for the purpose of obtaining the final diploma. The mere consent of the educational establishment or any support on its part ... is not sufficient to justify the grant of the allowance" (paragraph 27 of the judgment). It is also stated in that judgment (paragraph 28) that "there is nothing either in the documents before the Court or in the information given by the applicant at the hearing which has proved that (the training completed by the appellant' s daughter at the Commission) was actually recognized by the university as an integral part of the programme of studies...". The Court of First Instance concluded therefore that the training period could not be regarded as equivalent to attendance at an educational establishment and that therefore the conditions for the grant of the education allowance were no longer satisfied when the daughter commenced her training at the Commission on 16 March 1987 (see paragraphs 29 to 30 of the judgment).

Consequently, the second plea is likewise based on a misinterpretation of Article 3 of Annex VII to the Staff Regulations. This time, however, the appellant complains that the contested judgment contains an erroneous assessment in law of an element of fact (that is to say, a training period at the Commission): he is of the opinion that a training period completed with the agreement of the educational establishment must be regarded as equivalent to regular attendance at courses. As I have said (paragraph 3, above), that, too, is a question of law to which the Court of Justice must address itself.

8. The second plea adds nothing to the arguments already set out by the appellant before the Court of First Instance: once again, he points out that his daughter' s training was carried out "with the agreement of the university", that the university authorities "authorized" such training and even sometimes recommend their students to those conducting such courses, and that the Commission itself encourages participation in them by accepting students for such training every year and by setting up the Erasmus programme.

I consider that the interpretation given by the Court of First Instance to Article 3 of Annex VII to the Staff Regulations is correct. The criterion which it relied on, that the training must be recognized by the educational establishment in question as constituting an integral part of the programme of study, so that completion of the training was necessary in order to obtain the final diploma, appears to me to be an objective, relevant and sufficiently clear criterion to satisfy both the terms and the purposes of Article 3. Admittedly, the criterion makes the question whether or not such training constitutes part of a programme of study depend on the assessment of the educational establishment concerned. However, that appears to me to be wholly logical, just as logical for example as it is for the educational establishment (or the authority which runs it) to determine the length of the courses which lead to a particular qualification. That is also a decision which influences the length of time for which an education allowance may be granted. Consequently, I consider that the second plea must be rejected.

Third plea

9. In the third and last plea the appellant claims that the reasons given in the contested judgment are incorrect, because the Court of First Instance supported the Commission' s argument that the training completed by the appellant' s daughter amounted in fact to "vocational training" within the meaning of Article 2 of Annex VII to the Staff Regulations. This plea challenges paragraph 31 of the grounds in the contested judgment, in which the Court of First Instance considered the appellant' s argument to the effect that the dependent child' s allowance was granted to him but not the education allowance at the same time. In the contested judgment the Court of First Instance adopted the Commission' s argument that the training period completed by the appellant' s daughter should be regarded as "vocational training" for which a dependent child' s allowance may be granted under Article 2(3) of Annex VII to the Staff Regulations, but not an education allowance. It points out in paragraph 31 of the grounds of the judgment that the criteria for granting the dependent child' s allowance (Article 2) differ from those governing the grant of the education allowance (Article 3).

The appellant challenges the conclusion that his daughter' s training was "vocational training". In support of his argument he states that his daughter was asked by the Commission to produce during her training a "certificate of dependency", which showed that she was a student during the training and therefore could be exempted from contributing to the sickness insurance fund.

10. I cannot see any merit in that argument. When I considered the appellant' s second plea, I came to the conclusion that the Court of First Instance was right in the contested judgment to hold that an education allowance could not be granted for a period of training unless that training could be regarded as an integral part of the programme of studies and that the fact was established in that judgment that Nadia Costacurta' s training at the Commission did not fall into that category, so that the appellant was not entitled to the education allowance. There is nothing in the third plea to cast doubt on that assumption, and it does not challenge the accuracy of paragraph 31 of the judgment in which the Court of First Instance points out that the conditions for granting the dependent child' s allowance are not the same as those for granting the education allowance, so that the appellant could not rely on having been granted the dependent child' s allowance. The only argument put forward in the third plea is the fact that the Court of First Instance (impliedly) followed the Commission' s decision to regard the training completed by the appellant' s daughter at the Commission as "vocational training", so that the condition for granting (solely) the dependent child' s allowance was met. Even if the appellant was right on that point, it had no bearing whatsoever on the decision of the Court of First Instance regarding the withdrawal of the education allowance.

In other words, the third plea, which certainly concerns the interpretation of a rule of law, nevertheless has no prospect whatsoever of constituting the basis for setting aside the contested decision and cannot therefore be upheld.

Conclusion

11. On the basis of the foregoing I suggest that the Court declare the appeal unfounded. As regards costs, the first paragraph of Article 122 of the Rules of Procedure provides that the Court shall make a decision as to costs when the appeal is unfounded. According to the second paragraph of that article the same rule applies in proceedings between the Communities and their servants, since the Court may order (without being bound by the provision in Article 70 of the Rules) the parties to share the costs in whole or in part where equity so requires. As I can see no reasons to apply the rules of equity in this case, I suggest that the appellant be ordered to pay the costs of the appeal, including those of the Commission.

(*) Original language: Dutch.

(1) - Joined Cases T-34/89 and T-67/89 Costacurta v Commission [1990] ECR II-93.

(2) - See, for example, for an analysis of the French and German legal systems, the instructive account in 3es Journées juridiques franco-allemandes - Le contrôle des constatations de fait par le juge de cassation , published in Revue internationale de droit comparé, No spécial - Vol 2, Journées de la société de législation comparée, 1981, pp. 87-258. For a brief comparative review, in particular with regard to the role of the appeal courts, see T. Koopmans De Hoge Raad en buitenlandse hoogste gerechten , in De Hoge Raad der Nederlanden, 1938-1988 - Een portret, Zwolle, 1988. For a less recent but fundamental study, see F. Rigaux, La nature du contrôle de la Cour de cassation, Brussels 1966.