Opinion of Mr Advocate General Jacobs delivered on 7 November 1989. - Georgios Kontogeorgis v Commission of the European Communities. - Official - Annulment of a decision refusing to allow him to be affiliated to the health insurance scheme. - Case C-163/88.



European Court reports 1989 Page 04189



Opinion of the Advocate-General

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My Lords,

1 . This case is concerned with the question whether a former Member of the Commission of the European Communities can continue to be affiliated to the Community' s sickness insurance scheme for the purpose of supplementing cover available under a national scheme .

The relevant Community rules

2 . Council Regulation No 422/67/EEC ( as amended ), which I shall refer to as "the emoluments Regulation", determines the emoluments of the President and Members of the Commission, of the President, Judges, Advocates General and Registrar of the Court of Justice and of the President and Members of the Court of Auditors ( Official Journal, English Special Edition 1952-67, p . 222 ). Article 11 of that regulation, as amended by Council Regulation ( ECSC, EEC, Euratom ) No 2163/70 ( Official Journal, English Special Edition 1970 ( III ), p . 727 ), reads as follows :

"A Member of the Commission or of the Court shall be entitled to the benefits of the social security scheme provided for in the Staff Regulations of Officials of the European Communities covering sickness, occupational disease, industrial accident and birth and death benefits .

This article shall also apply to former Members of the Commission or of the Court who benefit either under the pension scheme provided for in Article 8 or under the transitional allowance provided for in Article 7 . This paragraph shall not, however, be applied in order to cover risks already covered by another social security scheme under which the former Member of the Commission or of the Court may benefit ."

3 . Article 72 of the Staff Regulations deals with sickness insurance . According to Article 72(1 ), Community officials and their dependants are covered against sickness for up to 80% of expenditure incurred subject to rules drawn up by agreement between the Community institutions . Under Article 72(2a ), former officials entitled to retirement pensions who left the service of the Communities before the age of 60 years are entitled to benefits under the Community sickness insurance scheme, "provided that they cannot obtain cover under any other public scheme of sickness insurance ...". Article 72(1a ) and ( 1b ) attach the same condition to applications for continued temporary cover under the Community scheme made by certain former officials, ex-spouses of officials and persons who cease to be dependants of officials . Under Article 72(4 ), persons entitled to benefit under the Community scheme are to declare the amount of any benefit paid or to which they are entitled under any other sickness insurance scheme provided for by law or regulation, and :

"Where the total which they would receive by way of reimbursement exceeds the sum of the reimbursements provided for in paragraph 1, the difference shall be deducted from the amount to be reimbursed pursuant to paragraph 1 ...".

4 . As provided for in Article 72(1 ), Rules on Sickness Insurance for Officials of the European Communities (" the Rules ") have been drawn up by agreement between the institutions of the Communities . Under Article 2, point 13, of the Rules, former Members of the Commission who are entitled to a retirement or invalidity pension are included in the list of members of the common sickness insurance scheme, "subject to Article 4(8 ) of these Rules ". According to Article 4(8 ):

"The persons referred to in Article 2, point 13, of these Rules shall be members, provided they pay their contributions, calculated by reference to their basic pension, and cannot obtain cover against the same risks under any other public scheme of sickness insurance ."

The facts of the case

5 . Mr Georgios Kontogeorgis, a former Director-General in the Greek Ministry of Trade and a former Minister for EEC Affairs, was a Member of the Commission of the European Communities from 6 January 1981 until 5 January 1985 . After leaving the Commission, he benefited for three years from payment of a transitional allowance under Article 7 of the emoluments Regulation . On 1 February 1988, he became entitled to receipt of a pension from the Commission in accordance with Article 8 of that regulation .

6 . On 2 November 1987, Mr Kontogeorgis wrote to Mr Richard Hay, Director-General of the Commission' s Directorate-General for Personnel, stating that because the Greek sickness insurance scheme from which he was entitled to benefit "did not cover the same risks at the level of the Community scheme", he wished to continue to be affiliated to the Community scheme after retirement . On 22 December 1987 Mr Hay replied that the rules determining the emoluments of Commissioners provided that it was possible to continue to benefit from the Community sickness insurance scheme only if the person concerned could not be covered under another social security scheme . Since Mr Kontogeorgis, in his capacity as a former Greek civil servant, was already covered by a Greek scheme, and since there was no reference in the Community rules to equivalence beween the Community sickness insurance scheme and other schemes, continued reliance on the Community scheme was excluded . On 28 January 1988, Mr Hay wrote a further letter setting out the details of the applicant' s pension and stating that "the beneficiary (( i.e . Mr Kontogeorgis )) is not affiliated to the common Community sickness insurance scheme ". By letter of 29 February 1988, Mr Kontogeorgis lodged a formal complaint, in which he argued that on a correct interpretation of the relevant provisions he was entitled to cover under the Community regime in respect of risks which were not covered by another social security system, and to the extent that he was covered under another scheme, he was entitled to cover under the Community scheme to supplement the level of benefits payable under that other scheme . By letter of 25 March 1988, Mr Hay rejected the complaint . By an application lodged at this Court on 7 June 1988, Mr Kontogeorgis seeks the annulment of the decision rejecting his complaint .

Admissibility

7 . A preliminary issue of admissibility arises in this case, namely whether the Court has jurisdiction under Article 179 of the Treaty in proceedings brought by a former Member of the Commission, and whether therefore Mr Kontogeorgis was required to follow the precontentious procedure laid down in respect of staff complaints under Article 90(2 ) of the Staff Regulations . Somewhat curiously, the application is based not on Article 179 of the Treaty in conjunction with Article 91 of the Staff Regulations, but on Article 172 of the Treaty and Article 22(3 ) of the Staff Regulations . But it seems clear that Article 179 was intended . Indeed Mr Kontogeorgis argues that his application must be regarded as admissible because he has followed the obligatory precontentious procedure laid down in Article 90(2 ) of the Staff Regulations and has submitted his appeal to this Court within the period laid down in Article 91(3 ) of those regulations ( i.e . three months ).

8 . The Commission does not raise a formal objection to the admissibility of the action . It simply "leaves to the appreciation of the Court" the question whether the applicant was required to observe the precontentious procedure, or whether he should have undertaken a direct action, presumably under Article 173 of the Treaty . The relevance of this point lies in the observance of the time-limit for actions under Article 173 : if Mr Kontogeorgis was required to follow that procedure, then he would have had to lodge his appeal against the Commission' s original negative decision ( Mr Hay' s letter of 22 December 1987 ) within two months . As already mentioned, the application in this case was lodged at the Court on 7 June 1988 .

9 . Article 179 of the Treaty confers jurisdiction on the Court "in any dispute between the Community and its servants within the limits and under the conditions laid down in the Staff Regulations or the Conditions of Employment ". The relevant title of the Staff Regulations, Title VII "Appeals" ( Articles 90 and 91 ), provides in Article 91(1 ) that the Court shall have jurisdiction "in any dispute between the Communities and any person to whom these Staff Regulations apply regarding the legality of an act adversely affecting such a person within the meaning of Article 90(2 )". In its case-law the Court has consistently taken a broad view of the scope of Article 179 : see for example Case 110/75 Mills v European Investment Bank (( 1976 )) ECR 955; Case 123/84 Klein v Commission (( 1985 )) ECR 1907; Case 43/84 Maag v Commission (( 1985 )) ECR 2581 . While Mr Kontogeorgis was plainly not an official of the Communities within the meaning of the Staff Regulations nor an other servant within the meaning of the Conditions of Employment of Other Servants of the European Communities, he can properly be regarded, for the purposes of this case, as a "person to whom these Staff Regulations apply" within the meaning of Articles 90 and 91 of those regulations . In this regard, I would recall that Article 11 of the emoluments Regulation refers to former Members of the Commission as being entitled, in certain circumstances, to the benefits of the social security scheme provided for in the Staff Regulations . Moreover, although former Commission Members are not mentioned in the body of the Staff Regulations, they are expressly mentioned in the Rules on Sickness Insurance drawn up under those regulations ( see paragraph 4 above ). This case concerns, at least indirectly, the interpretation of the Staff Regulations and of those Rules and in such a case it is clearly convenient and appropriate that the special precontentious procedure should be used . In particular, it is clearly right that, where there is a dispute between an institution and a former Member about the applicability of any relevant regulations, a formal complaint should be made to the institution concerned before the matter is brought before the Court . In my opinion, Mr Kontogeorgis acted correctly in following the procedure laid down by Article 90 of the Staff Regulations and the action should be regarded as admissible .

The substance

10 . In their written pleadings in this case the parties were essentially concerned with the issue whether a former Commission Member can continue to be affiliated to the Community scheme for the purpose of supplementing the level of benefits obtainable under a national scheme . However, at the hearing, the representative of the applicant confirmed that continuing affiliation was sought also for the purpose of providing cover for specific risks of ill-health which are not covered at all under the Greek scheme to which Mr Kontogeorgis is affiliated . In this regard, he specified that certain aspects of health care, for instance, dental care, the provision of spectacles and health care while abroad, are not covered under the Greek scheme .

11 . Since the question of cover for specific risks, as opposed to cover in respect of differing rates of benefit, was not directly addressed in the pleadings, there may be some doubt as to whether it can be regarded as properly forming part of the application . None the less, I am of the view that this question should not be excluded . This is because the issues of different rates of benefit and different range of cover essentially come down to the same question, namely, whether Article 11 of the emoluments Regulation permits affiliation to the Community scheme for the purpose of supplementing cover under a national scheme . If Article 11 permits cover for the purpose of supplementing benefits payable in respect of a specific risk under a national scheme, then a fortiori it must permit cover for the case where no national benefit is payable at all in respect of such a risk .

12 . Mr Kontogeorgis argues that Article 11 of the emoluments Regulation does not exclude continuing affiliation to the Community scheme in order to make up the difference between the amounts of benefit payable under the national and Community schemes . He relies on the related provisions of Article 72 of the Staff Regulations, and argues that while those provisions, as a general rule, exclude double cover for former officials, Article 72(4 ) permits former officials covered by a national scheme to remain affiliated to the Community scheme for the purpose of making up the difference in the level of benefits payable under the two schemes . In the applicant' s view, Article 11 of the emoluments Regulation, which is intended to apply to Members the same provisions as those applicable to officials, must be interpreted in such a way as to permit persons in the applicant' s position to benefit from the same facility .

13 . Mr Kontogeorgis also argues that his standpoint is supported by the underlying objective of the Community provisions which, in his view, is to prevent the accumulation of benefits under two social security schemes, while at the same time ensuring that the Community official or former Commission Member can rely at least on the minimum level of benefits obtainable under the Community scheme . In his reply, the applicant also claims that a former Greek Member of the Court of Auditors has been permitted to retain his affiliation to the Community scheme, in spite of the fact that, like Mr Kontogeorgis, he is a former Greek civil servant and is entitled to benefit under the Greek social security scheme . Mr Kontogeorgis argues that refusal to offer him access to the Community scheme amounts to discrimination .

14 . In the Commission' s view, the existence of cover against the risk of sickness under a national scheme, regardless of the amount or conditions of benefit, is sufficient to exclude simultaneous cover by the Community scheme . The Commission argues that it is clear from the wording of Article 11 of the emoluments Regulation that the regime applicable to former Commission Members is subsidiary in character, i.e . cover is only provided under the Community scheme if cover is not available under another scheme . In the Commission' s view, the same principle of subsidiarity underlies the provisions of Article 72 of the Staff Regulations . The Commission adds in its rejoinder that it does not consider itself bound by a different, erroneous interpretation of Article 11 of the emoluments Regulation adopted by another Community institution .

15 . In my view, the terms of the second paragraph of Article 11 of the emoluments Regulation, in providing that a former Member of the Commission or of the Court should not benefit from the Community scheme "in order to cover risks already covered by another social security scheme under which the former Member of the Commission or of the Court may benefit", exclude affiliation to the Community sickness insurance scheme by a former Commission Member who could obtain insurance against sickness under a national scheme, even if the scope or level of cover provided by that national scheme is not equivalent to that provided by the Community scheme . The second paragraph of Article 11 was introduced by Council Regulation ( ECSC, EEC, Euratom ) No 2163/70, already referred to, and had the effect of extending the Community scheme to former Members of the Commission as well as to serving Members . The structure of the article supports the view that serving Members benefit from the Community scheme even while they are covered by a national scheme, subject only to the provisions of Article 72 which preclude double payment for the same risk ( see judgments of 8 March 1988 in Case 339/85 Brunotti v Commission (( 1988 )) ECR 1379, and of 13 July 1989 in Case 58/88 Olbrechts and Olbrechts v Commission (( 1989 )) ECR 2643 ); while former Members may benefit from the Community scheme only if they are not covered by another scheme . The wording of Article 4(8 ) of the Rules is to the same effect .

16 . Reference to the corresponding provisions of Article 72 of the Staff Regulations bears out this interpretation . As the Commission points out, Article 11 of the emoluments Regulation contains no mention of equivalence, as regards the scope or level of cover, between the Community and the relevant national scheme . In relation to certain categories of former officials, Article 72(1a ) and ( 2a ) also make no reference to equivalence . Significantly, Article 72(1 ) does make such a reference, in that it provides for cover for the spouse of a serving official "where such spouse is not eligible for benefits of the same nature and of the same level by virtue of any other legal provision or regulations ..." ( emphasis added ). In my view, if the Community legislator had intended a test of equivalence to apply in relation to former Commission Members it would have used similar wording in Article 11 of the emoluments Regulation .

17 . Since the second paragraph of Article 11 provides that former Commission Members may not continue to rely on the Community scheme "in order to cover risks already covered" elsewhere ( emphasis added ), it might be contended that affiliation to the Community scheme must be available for the purpose of cover against specific risks which are not covered by the relevant national scheme at all, so as to provide for example for dental care, the provision of spectacles, and health care abroad, as mentioned earlier . It is true that there is a difference between the wording of the second paragraph of Article 11, which permits former Members of the Commission to rely on the Community scheme in order to cover "risks" not covered elsewhere, and the wording of Article 72(1a ) and ( 2a ) of the Staff Regulations, which permit certain former officials to continue to rely on the Community scheme if they cannot obtain "cover" under another scheme . However, in my view the reference to "risks" in the second paragraph of Article 11 must be understood from its context to refer back to the general risks set out in the first paragraph, in this case to the general risk of sickness, and cannot be taken to mean specific risks of ill-health such as dental decay or eye problems . The French text of the first paragraph is clearer in this respect than the English text, since it refers to "la couverture des risques de maladie, de maladie professionnelle et d' accidents ...", which suggests the general risks of sickness, etc . Accordingly, affiliation to the Community scheme is available only to former Members of the Commission who cannot obtain cover under any other scheme against the risk of sickness generally .

18 . Reference to Article 72(4 ) of the Staff Regulations also cannot assist the applicant . That provision, which requires that benefits available under an outside scheme should be taken into account for the purpose of calculating benefits obtainable under the Community scheme, does indeed appear to permit an eligible person in an appropriate case to claim under the Community scheme the difference between the amount of benefits which can be obtained under the outside scheme and under the Community scheme . However, it is plain from its opening words - "persons entitled to the foregoing benefits" - that Article 72(4 ) is only concerned with persons who are entitled to benefit under the Community sickness scheme . It is moreover plain from its subject-matter - the set-off between two levels of benefits - that Article 72(4 ) is concerned only with those eligible persons who are permitted, under the rules of the Community scheme, to find themselves in a situation of double cover . Thus, contrary to the applicant' s view, Article 72(4 ) could not be relied on by the categories of former officials referred to in Article 72(1a ) and ( 2a ). As regards the applicant himself, he is, as already stated, not entitled to affiliation under the Community scheme, and could only become so entitled if he were not already covered under another scheme . The two prerequisites for application of Article 72(4 ) - entitlement and double cover - are thus absent .

19 . If as Mr Kontogeorgis suggests a comparison should be made between the position of a former Member and a former official of the Commission, then it must be pointed out that there are three categories of former officials which might have to be considered . First, only those who have remained in the service of the Communities until the age of 60 or who are in receipt of an invalidity pension are entitled to continuing cover, irrespective of their possible entitlement under other schemes . Former officials who have left the service of the Communities before the age of 60 are entitled to benefit only if they cannot obtain cover under any other public scheme of sickness insurance and subject to the further condition that they are entitled to retirement pension, a requirement which, in accordance with Article 77 of the Staff Regulations, will normally be satisfied only by officials who have completed at least 10 years' service . Other former officials do not benefit from the Community scheme at all . In any event, in my view the answer to the issue raised in this case is not to be found by comparison between the position of former Members and former officials : the answer appears to me to follow from the terms of the second paragraph of Article 11 of the emoluments Regulation .

20 . I am conscious that that answer could in individual cases lead to hardship, in particular where the relevant national scheme is markedly less generous in its range of cover and level of benefits than the Community scheme . None the less, the intention of the Community legislator as regards the treatment of former Commission Members appears clear, and any changes to the relevant rules are a matter for that legislator .

21 . The application must therefore fail, and since, in my view, the action is to be regarded, for all relevant purposes, as an action brought by an official of the Communities within the meaning of Article 95(3 ) of the Rules of Procedure, each side should bear its own costs, in accordance with Article 70 of those Rules .

22 . Accordingly, the Court should dismiss the application and order each party to bear its own costs .

(*) Original language : English .