CELEX: 61979CC0043
Language: en
Date: 1979-12-06 00:00:00
Title: Opinion of Mr Advocate General Mayras delivered on 6 December 1979. # Tito Mencarelli v Commission of the European Communities. # Education costs. # Case 43-79.

OPINION OF MR ADVOCATE GENERAL MAYRAS
      DELIVERED ON 6 DECEMBER 1979 (
            1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      This case concerns the nature of the education expenses which may be reimbursed up to an amount equal to twice the amount of the education allowance.
      I —
      Mr Mencarelli, an official of the Commission employed at the Joint Research Centre at Geel, has a daughter who was born in 1959 and who experienced difficulties in following the course of instruction provided for her at the European School at Mol. The class adviser at the school therefore recommended “another type of course better suited to the pupil's abilities” and Mr Mencarelli enrolled his daughter for the school year 1977/78 in a private establishment in Brussels.
      In view of this he claimed to be entitled to twice the amount of the education allowance. On the basis of notes sent him by Mr De Groóte of Brussels on 21 April 1978 and by Mr Gubernator of Geel on 22 May 1978 he understood that he would be granted the double amount and that he would be reimbursed the additional expenses which he incurred by sending his daughter to a boarding-school. Mr De Groóte is an adviser with the Director General of Personnel and Administration and is required to maintain communications between the Commission and its staff. Mr Gubernator is in charge of administration and infrastructure at Geel. The notes indicated in substance that Mr Gubernator's opinion was favourable, a condition for the grant of the double education allowance, and that the award of that amount remained subject to the provision of supporting documents.
      Mr Mencarelli accordingly sent to the administration the supporting documents necessary to obtain the reimbursement up to the limit of the double amount of the cost of board and lodging for his daughter at the boarding-school and of her travel each week between Geel and Brussels.
      In reply he received a fresh note from Mr Gubernator dated 20 June. I think it is that decision which transformed a matter for settlement by negotiation into the dispute which is now before the Court. Mr Mencarelli took the note as refusing him both the double amount and the reimbursement of expenses which, in his view, were the unavoidable consequence of the education of his daughter in Brussels: the cost of board and lodging. Accordingly on 28 August 1978 he lodged a complaint as provided for in Article 90 (2) of the Staff Regulations against the act adversely affecting him with the director of the Centre at Geel in his capacity as the appointing authority. Mr Mencarelli received no reply to his complaint within the prescribed period so that the complaint was deemed to be rejected and he therefore instituted these proceedings on 15 March 1979.
      In his application he claims the right to double the amount of the allowance and consequently that the Commission should “honour its obligations in respect of the double amount”, that is to say that it should reimburse him up to that limit for the cost of board and lodging for his daughter in Brussels and for the costs of her weekly travel between home and school.
      The Commission maintains in its defence that the applicant was not refused the right to the reimbursement of the education costs up to an amount equal to twice the amount of the education allowance, that is the right to the double amount. On the contrary it considers that the cost of board and lodging does not constitute reimbursable educational expenses. Later, in its rejoinder, the Commission explained that that was the tenor of Mr Gubernator's second note. The action thus turns solely on the nature of the expenses which may be reimbursed up to the limit of double the amount of the education allowance.
      I should like first of all to say that in my view it is perfectly easy to understand why the applicant (and subsequently his legal adviser) has made this mistake, in view of the lack of clarity of the decision adopted. That is a matter for the Court to decide. The note, entitled “Reimbursement up to the limit of double the amount of the education allowance”, reads as follows:
      “With reference to the documents which you have provided, I regret to inform you that the cost of board and lodging cannot be reimbursed.
      The travel expenses will be reimbursed by way of exception in this case since your child boards at a school which is closed during the weekend.
      In the absence of any other supporting documents the following calculations may be made:
      
               —
            
            
               50 % of the single allowance amounting to Bfr 1547, plus justifiable travel costs amounting to Bfr 650 per month (cf. Article 4 (2) and (5) of the General Implementing Provisions for granting the Education Allowance); or
            
         
               —
            
            
               Continued payment of the single allowance, namely Bfr 3093 per month which appears to be in your interest (cf. Ar. 4 (4) of the General Implementing Provisions).”
            
         At this stage of my analysis I do not wish to consider whether that decision was in accordance with law but it appears to me that the responsible official at Geel should have expressed himself more clearly and that he should have given reasons for his reply otherwise than by a mere reference to the relevant provisions. The poor drafting of his decision appears to me even less excusable inasmuch as it was the first in the series of difficulties encountered by Mr Mencarelli.
      I consider that any person unacquainted with the complicated provisions on the granting of the education allowance would in fact have thought on the basis of that short note that the double amount was being refused. In my view it is impossible to understand the note without first acquiring a grasp of the system regarding the grant of the education allowance, which is not simple.
      II —
      As the Court is aware, the education allowance, together with the household allowance and the dependent child allowance, constitutes one of the three types of family allowances provided for in Article 67 of the Staff Regulations. The detailed provisions for the grant of the allowances are contained in Article 3 of Annex VII to the Staff Regulations and in the General Implementing Provisions for granting the Education Allowance. The latter were adopted separately, although in identical terms, by each institution pursuant to Article 110 of the Staff Regulations. They were published by the Commission in Administrative Notices No 135 of 2 May 1977.
      The first paragraph of Article 3 of Annex VII provides that an official shall receive an education allowance equal to the actual education costs incurred by him up to a fixed monthly maximum for each dependent child who is in regular fulltime attendance at an educational establishment. Pursuant to the last indent of Article 1 (b) of Council Regulation (EEC) No 2859/77 of 19 December 1977, the monthly maximum was to amount for the school year 1977/78 to Bfr 3093.
      In the third paragraph of Article 3 of Annex VII it is also provided that “the maximum prescribed in the first paragraph shall be doubled for an official whose place of employment is at least 50 km from ... an educational establishment working in his language which the child attends for imperative educational reasons duly supported by evidence”.
      The education allowance thus reimburses the actual cost of education up to a certain standard amount which is duly reviewed at regular intervals and is doubled where it is assumed that attendance at a school will entail higher expense than the ordinary maximum.
      Apart from a minor detail the abovementioned case, as we have seen, corresponds to that of Mr Mencarelli. The reservation is that the establishment in Brussels which the applicant's daughter attended in 1977/78 is not one in which the instruction is provided in her own language, which is Italian, but in French. The Commission, by granting the double amount although a prescribed condition was not met, displayed a degree of flexibility and understanding which I consider praiseworthy.
      Once the grant of the double amount has been conceded two obstacles remain to its actual enjoyment. Those two obstacles consist in the nature of the costs which may be reimbursed and the methods for such reimbursement which I shall now proceed to consider first.
      Where the double amount is granted the methods of reimbursement of education costs are specifically laid down by Article 4 (5) of the General Implementing Provisions. These provisions provide a right to reimbursement up to the double amount on condition that the claimant presents supporting documents concerning the costs referred to in Article 3 of those provisions.
      The applicant presented as supporting documents an account concerning his daughter's transport cost, a category of costs referred to by Article 3 (b) of the General Provisions. It was agreed that this account should as an exception be reimbursed on the basis of the sole fact that the boarding-school attended is closed at the weekend; I have to confess that I do not understand why this should have been regarded as exceptional. I cannot see any legal basis for such a restriction. The applicant, in addition, put forward in particular documents concerning the cost of board and lodging for his daughter at the school. The appointing authority in stating that such costs could not be reimbursed considered that they did not fall within any of the categories mentioned by Article 3 of the General Provisions which lists the various costs covered by the education allowance. It is that view, which is challenged by the applicant, which forms the basis of this case. I shall therefore return to that point.
      With regard to the following points in the decision in question the applicant declares that he cannot understand why, when the defendant agrees to grant him the double amount, it will reimburse him only at the rate of 50 % of the single amount. The solution to this apparent enigma is provided by the reference made in the decision to Article 4 (2) of the General Provisions. That article provides that the costs mentioned in Article 3 (c) of those provisions shall be reimbursed by payment of a standard monthly amount corresponding to 50 % in the case of children, like the applicant's daughter, over 11 years of age.
      Such costs, then, are in principle reimbursed as a standard amount unlike the other costs referred to in Article 3, for example, transport costs, which, pursuant to Article 4 (1), are reimbursed upon presentation of supporting documents. In the case of the expenses referred to in Article 3 (c) this procedure is followed only in exceptional cases, that is to say pursuant to Article 4 (3), when the costs exceed the standard amount. If we accept for the purposes of my opinion that the documents submitted by Mr Mencarelli do not relate to the expenses referred to in Article 3 (c) it is accordingly proper, in my view, that the contested decision should refer to the provision of general application constituted by Article 4 (2) of the General Provisions.
      The first alternative offered is thus fully justified from a legal point of view. However, it is less advantageous to the applicant than the second, which does not require any supporting documents. Article 4 (4) in fact refers to the case of pupils attending a school at a place away from the family home and living at that place. The costs are then reimbursed in the form of a standard monthly amount corresponding to the single amount of the allowance. Since Miss Mencarelli's case corresponds also to that situation it was fully appropriate to refer to it.
      III —
      Apart from the point whether the cost of board and lodging of a pupil at a boarding-school can be recovered by the education allowance, we now know the legal basis for the disputed decision, which, as I have pointed out, is correct.
      The applicant, maintaining that that remaining point should be settled in the affirmative, advances arguments based on the one hand on an analysis of the relevant provisions and on the other of their purpose and objectives.
      According to the applicant neither the wording of Article 3 of Annex VII nor that of Article 3 of the General Implementing Provisions for Granting the Education Allowance precludes the reimbursement of the expenses in question. Even if this were not so, he says, they could easily be classified under the category of “other expenses connected with following the curriculum of the educational establishment attended”, an expression of very general scope at the end of Article 3 (c) of the General Provisions. Likewise they constitute actual educational costs in accordance with Article 3 of Annex VII.
      I consider that that argument can only be rejected. The use of the word “education” in my view rules out the possibility that the cost of board and lodging can come under Article 3 of Annex VII.
      This is confirmed by the exhaustive list provided of the actual education costs drawn up in Article 3 of the General Provisions. That article does not make express mention of the cost of board and lodging. Furthermore, such costs cannot be considered as “connected with following the curriculum of the educational establishment attended” which is a narrower expression than the word “education”. The cost of board and lodging for a pupil at a boarding-school is indeed a necessary consequence of his education away from home. Nevertheless they cannot, without doing violence to the meaning of the words, be considered as connected with following the curriculum of the educational establishment in the same way as the other expenses mentioned in Article 3 (c): purchase of books, school equipment, sports equipment and so on. To put the matter bluntly it is clear that the board and lodging costs exist whether courses of one school or another or no courses at all are followed. They accordingly cannot be covered by an education allowance.
      It must also be noted that at the reply stage the applicant challenged the lawfulness of Article 3 of the General Provisions in relation to Article 3 of Annex VII which he claims is considerably reduced in its scope by the former. In this line of reasoning the applicant understands the words “actual education costs” in an extremely wide sense, that is to say as covering the cost of education in general.
      In my view this submission put forward in the course of the proceedings undoubtedly constitutes raising a fresh issue which, as such, is inadmissible under the Rules of Procedure, and is impossible in the oral procedure. I thus consider it here purely as a subsidiary point.
      It was from the outset fully permissible for the Commission, pursuant to Article 110 of the Staff Regulations, and unavoidable, for evident practical reasons, to lay down in the General Implementing Provisions which expenses must be considered as actual education costs. Perusal of Article 3 of the General Implementing Provisions shows that the Commission, far from entertaining an excessively narrow view of those costs, on the contrary drew up a very complete list of them which embraces, for example, the costs incurred, on certain conditions, in winter sports and seaside or open-air courses. It is true that in that latter case the Commission reimburses the cost of lodging on certain conditions. Whilst, as the applicant has not hesitated to emphasize, that exception renders the Commission's attitude less consistent, it does not appear to me that it must justify by way of analogy the reimbursement of the relevant costs in the case of education in a boarding-school which differs in many ways. In view of the limited nature of that exception I deduce that such costs cannot be reimbursed unless express provision has been made for such a step.
      The applicant is furthermore wrong in maintaining that Article 3, in the German and English versions and, it might be added, the Danish, differs from the French version in that those versions refer to education costs and not only to costs related to schooling.
      He is mistaken in the first place because it may be established merely by reading the list in any language of the costs which may be reimbursed, that such costs are all costs of schooling and not costs of education in the wide sense.
      If we now consider the matter from the point of view of language it is clear that the German expression “Erziehungsbeilage”, the English expression “education allowance” and the Danish expression “uddannelsestillæg” do indeed refer to education costs. However the provision in question only provides for the reimbursement of such expenses where there is “regular fulltime attendance at an educational establishment”. The costs in question accordingly cannot have a wider scope than the “frais de scolarité”, “indennità scolastica” and “schooltoelage” in the French, Italian and Dutch versions of the provision.
      Proceeding from the interpretation of the wording of the provisions to consideration of their purpose and objectives the applicant observes that the grant of the double amount would be rendered nugatory if the cost of board and lodging at a boarding-school could not be reimbursed.
      My view on this matter is, first, that the list of costs which may be reimbursed is exhaustive and I must once again point out that the words cannot include the expenses which the applicant wishes to have reimbursed unless they are deprived of their proper meaning.
      The letter of the provisions is thus insuperably opposed to the argument based on their effectiveness. Nevertheless it must be recalled that, even from the latter point of view, it is a condition of the grant of the double amount that the child attends an educational establishment working in the language of the child which the child must attend for imperative educational reasons duly supported by evidence and which is at least 50 km distant from the place of employment of the official (cf. first indent of the third paragraph of Article 3 of Annex VII). As the Commission emphasizes, attendance at such an establishment may in certain cases entail high transport costs. Where the school in question is a special educational establishment which the child must attend because he experiences scholastic difficulties, possibly serious ones, such attendance may involve enrolment fees and necessary outlays for the purchase of particularly important school materials. In all those cases the double amount, by making provision for at least partial reimbursement of such additional costs, is clearly appropriate.
      The applicant, in an argument the basis of which is closely related to the foregoing, finally maintains that it is absurd to refuse to take into account the costs of board and lodging at a boarding-school when such expenses are quite unavoidable in view of the distance separating the school from the home of the child.
      First of all, with regard to the boarding costs, it is clear that such costs do not differ appreciably whether a pupil eats in a canteen or at home.
      Above all that argument is in general open to the same criticism as the previous one. On the basis of the provisions as they are worded at present the cost of board and lodging cannot be borne under the educational allowance because they are not connected with following an educational curriculum.
      Even if I were to consider the matter from the point of view of what is desirable and if it were my function to suggest amendments of provisions which appeared to me inequitable, even though legally unexceptionable, I do not think that it would be appropriate to supplement the list of costs which may be reimbursed under the education allowance so that the cost of board and lodging at a boarding-school is covered. Such expenses, as the cost of maintaining a child, are in fact covered by the dependent child allowance provided for in Article 2 of Annex VII to the Staff Regulations.
      In general the measures laid down as a whole for the benefit of officials with children appear to me sufficiently complete. In addition to the abovementioned allowances such officials in fact automatically obtain the head of household allowance whereas that allowance is granted to married officials without children only where the spouse's employment does not provide more than a certain amount. The taxes which they pay are further diminished by relief for a dependent child.
      In those circumstances it is my opinion that the application should be dismissed and that in accordance with Article 70 of the Rules of Procedure the Commission should bear the costs which it has incurred.
      (
            1
         )	Translated from the French.