Action brought on 24 June 2022 — Heßler v Commission

(Case T-369/22)

(2022/C 326/27)

Language of the case: German

Parties

Applicant: Michael Heßler (Mannebach, Germany) (represented by: I. Steuer, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— annul the appointing authority’s decision on the complaint of 25 March 2022;

— order the defendant to continue to grant the tax abatement pursuant to the second subparagraph of Article 3(4) of Regulation (EEC, EURATOM, ECSC) No 260/68, as set out in Conclusions 222/04 of the Heads of Administration, as long as the conditions are met, with retroactive effect from 1 August 2021;

— order interest to be paid on the payments not made, pursuant to the Financial Regulation;

— order the defendant to pay the costs.

Pleas in law and main arguments

According to the decision on the complaint, the applicant — who, for the purposes of interpreting Regulation No 260/68, (1) relies on Conclusions 222/04 of the Heads of the Administration — fails to take account of the new case-law resulting from the judgment of 12 March 2020, XB v ECB (T-484/18, not published, EU:T:2020:90). Moreover, those conclusions do not have any binding effect in individual cases. Therefore, the administration does not have to apply them, since all decisions are ultimately decisions in individual cases. The fact that the applicant’s situation is not comparable to that of the applicant in Case T-484/18 is irrelevant; only the receipt of dependent child allowance gives rise to the entitlement to the tax abatement.

In support of the action, the applicant relies on four pleas in law.

1. First plea in law, alleging inaction on the part of the administration The applicant submitted, as previously, two requests for the continuation of the tax abatement in respect of his two children over the age of 26, pursuant to the second subparagraph of Article 3(4) of Regulation No 260/68, as set out in more detail in Conclusions 222/04 of the Heads of Administration. The administration subsequently sent him two emails, which indicated that they were sent for information purposes, stating that, on the basis of the judgment in T-484/18, the tax abatement could be granted only if the applicant was in receipt of dependent child allowance. The applicant could not submit a complaint against that information under Article 90 of the Staff Regulations as there was no decision as such. Consequently, the administration failed to take a decision on his request.

2. Second plea in law, alleging that the subject matter of the decision on the complaint was wrong The subject matter of the complaint and the decision were unrelated. The applicant submitted a complaint under Article 90(2) of the Staff Regulations for failure to respond. However, on 25 March 2022, the applicant’s alleged request for annulment of decisions which had not in fact been adopted was refused on the ground that they were correct.

3. Third plea in law, alleging a misinterpretation of ‘dependent child’ The administration takes the view that only children who are entitled to dependent child allowance are dependent. Since the applicant’s children have exceeded the age limit of 26, the applicant no longer has any dependent children and, accordingly, no entitlement to the tax abatement. The administration thus confused the concept of a dependent child with the additional requirements relating to dependent child allowance.

4. Fourth plea in law, alleging a misinterpretation of the conditions for entitlement to the tax abatement — The applicant submits that the current conclusions of the Heads of Administration are part of the 2004 reform of the Staff Regulations and therefore also had to be taken into account in that overall context. The administration cannot simply remove individual parts from the reform package according to what may be financially advantageous for it. — The judgment in question, T-484/18, refers to the judgment of 27 November 1980, Sorasio-Allo and Others v Commission (81/79, 82/79 and 146/79, EU:C:1980:270) as the basis for its reasoning and cannot therefore constitute a new line of case-law. In that judgment, the Court did not take all language versions into account. Its conclusion at the time that the tax abatement was a supplement to dependent child allowance cannot be confirmed in other language versions of Regulation No 260/68. However, that has not been relevant until now, since the granting of the tax abatement for older children has for decades been undisputed. — It also follow from a historical interpretation based on the almost identical wording of the previous Regulation 32 (EEC), 12 (EAEC) (2) that the tax abatement in respect of a dependent child does not constitute a supplement to dependent child allowance. The word ‘außerdem’, which is used as a connector, clearly refers to the abatement for occupational expenses in the previous subparagraph and not to dependent child allowance. — On a comparative law interpretation, the granting of a tax abatement for the maintenance of dependent persons as an exceptional burden is the standard, something which the Council may have taken as a model when adopting Regulation 260/68. — The dependent child allowance and the tax abatement both require there to be a dependent child, but it is not necessary to be in receipt of dependent child allowance in order to obtain the tax abatement. In this instance, an error in formal logic was made, which inverted antecedent and consequence in an impermissible way.

(1) Regulation (EEC, EURATOM, ECSC) No 260/68 of the Council of 29 February 1968 laying down the conditions and procedure for applying the tax for the benefit of the European Communities (OJ 1968 L 56, p. 8).

(2) Regulation No 32 (EEC), No 12 (EAEC) laying down the conditions and procedure for applying the tax for the benefit of the Communities provided for in Article 12(1) of the Protocols on the Privileges and Immunities of the European Economic Community and of the European Atomic Energy Community (OJ 1962 45, p. 1461).