CELEX: 62006CC0135
Language: en
Date: 2007-09-20 00:00:00
Title: Opinion of Advocate General Kokott delivered on 20 September 2007. # Roderich Weißenfels v European Parliament. # Appeal - Remuneration - Dependent child allowance - Deduction of the amount of an allowance of like nature paid from other sources - Unlimited jurisdiction - Disputes of a financial character. # Case C-135/06 P.

OPINION OF ADVOCATE GENERAL
      KOKOTT
      delivered on 20 September 2007 1(1)
      
      Case C‑135/06 P
      Roderich Weißenfels
      v
      European Parliament
      (Appeal – Community official – Remuneration – Dependent child allowance – Article 67(2) of the Staff Regulations – Deduction of an allowance of like nature paid from another source)I –  Introduction
      1.     The present appeal proceedings give cause to consider in particular the question of when there is ‘an allowance of like nature
         paid from another source’ within the meaning of Article 67(2) of the Staff Regulations of Officials of the European Communities
         (‘the Staff Regulations’).
      
      2.     The proceedings relate to a dispute in a staff case between a Community official, Mr Roderich Weißenfels (‘the appellant’),
         and the European Parliament. With his action at first instance the appellant contested decisions of the Parliament by which
         it deducted a sum in the amount of a payment made under Luxembourg law from the double dependent child allowance paid to him
         under the Staff Regulations.
      
      3.     The appellant lodged an appeal against the judgment of the Court of First Instance of 25 January 2006 (‘the judgment under
         appeal’), (2) which dismissed his action.
      
      II –  Legal framework
      A –    Community law
      4.     Pursuant to Article 62(3) of the Staff Regulations in the version applicable to the present case the remuneration of officials
         includes family allowances.
      
      5.     Pursuant to Article 67(1)(b) of the Staff Regulations, the dependent child allowance is, inter alia, a family allowance.
      6.     Article 67(2) and (3) of the Staff Regulations provide:
      ‘2. Officials in receipt of family allowances specified in this Article shall declare allowances of like nature paid from
         other sources; such latter allowances shall be deducted from those paid under Articles 1, 2 and 3 of Annex VII.
      
      3. The dependent child allowance may be doubled by special reasoned decision of the appointing authority based on medical
         documents establishing that the child concerned is suffering from a mental or physical handicap which involves the official
         in heavy expenditure.’
      
      B –    National Law
      7.     The Luxembourg Law on the creation of a special aid allowance for handicapped people, which was repealed by the Law of 19
         June 1998 introducing nursing-care insurance, but is still applicable to the present case pursuant to the transitional provisions
         of the latter Law (‘the Luxembourg Law of 16 April 1979’), provides:
      
      ‘Art. 1. Every severely handicapped person who is resident in the Grand-Duchy of Luxembourg and who has been resident there
         for at least 10 years is entitled to the benefits under this Law.
      
      Handicapped children have the same entitlement as of the age of three … .
      …
      Art. 3. Every severely handicapped person … is entitled to … a special allowance … . 
      Art. 4. The allowance … shall be … suspended … up to the amount of a foreign benefit of like nature.
      Art. 5. The allowance … is exempt from taxes and social insurance contributions. …’
      III –  Background to the dispute and the judgment of the Court of First Instance
      8.     The Court of First Instance sets out the background to the dispute as follows in paragraphs 5 to 16:
      ‘5      The applicant, an official in Grade A*12 (former Grade A 4), took up employment with the Parliament in Luxembourg on 1 April
         1982.
      
      6      His eldest son was born on 31 January 1982. He has been severely handicapped since early childhood.
      7      The dependent child allowance (“the child allowance”) provided for in Article 67(1)(b) of the Staff Regulations was granted
         to the applicant when he took up his post with the Parliament. On 31 July 1987 the Parliament decided, under Article 67(3)
         of the Staff Regulations, to double the child allowance in respect of the applicant’s son as of 1 May 1987. By decision of
         8 July 1997, the double child allowance was granted for a further period from 1 July 1997 to 30 June 2000.
      
      8      By decision of 26 April 1999, the Luxembourg Fonds National de Solidarité decided, under the Luxembourg Law of 16 April 1979,
         to pay to the applicant, as the legal representative for his son, a special allowance for the severely handicapped as from
         1 December 1998.
      
      9      The applicant informed the Parliament of the payment of the Luxembourg allowance in mid-October 1999.
      10      By decision of 22 October 1999, the Parliament, under Article 67(2) of the Staff Regulations, reduced the amount corresponding
         to the double child allowance under the Staff Regulations by the amount of the Luxembourg allowance with effect from 1 December
         1998.
      
      11      By decision of 20 September 2000, the double child allowance was granted for a further period from 1 July 2000 to 30 June
         2003. The amount corresponding to the double child allowance under the Staff Regulations was reduced, by decision of 18 September
         2000, by the amount of the Luxembourg allowance.
      
      12      By decision of 1 July 2003, the double child allowance was granted for a further period from 1 July 2003 to 30 June 2006.
      13      In the meantime the applicant had, by letter of 4 June 2003, challenged the principle of the deduction of the Luxembourg aid
         by the Parliament as follows:
      
      “As I already … pointed out [on] 28 May 2003, the aid is paid not to me, but to my son …, although it is paid into my hands
         as his legal representative. There can be no question of a deduction under Article 67(2) of the Staff Regulations from the
         double child allowance granted to me as part of my remuneration pursuant to Article 67(3).
      
      This results from the fact that, first, there are two separate claimants (legal persons) involved, and that, on the other
         hand, the aid constitutes an independent benefit and not an ‘allowance’.
      
      In any event, the benefit is not ‘of like nature’ either: the allowance under Article 67(3) serves to alleviate the uncommon
         burdens on the official, the aid is a benefit to support the handicapped person.”
      
      14      By decision of 26 June 2003 the Parliament did, however, make the deduction.
      15      By letter of 13 August 2003 the applicant submitted a complaint against the decision of 26 June 2003 under Article 90(2) of
         the Staff Regulations. That complaint was rejected by letter of the Parliament of 10 November 2003.
      
      16      On 28 April 2004 – after the application in the present case had been entered in the register – the Parliament, having regard
         to the updated amount of the Luxembourg allowance, took a decision on the deduction pursuant to Article 67(2) of the Staff
         Regulations. On 8 June 2004, the applicant submitted a complaint against the decision of 28 April 2004, which was rejected
         by decision of the Parliament of 15 September 2004.’
      
      9.     By application lodged at the Registry of the Court of First Instance on 2 February 2004, the appellant brought his first-instance
         action. With it he claimed that the Court should annul the defendant’s decision of 26 June 2003 together with the defendant’s
         decision of 10 November 2003 on the complaint relating thereto and order the Parliament to pay to him all amounts improperly
         withheld from his remuneration together with interest at the rate prescribed by law.
      
      10.   In his reply the appellant reworded his second head of claim and claimed that the Court should: 
      ‘annul the implied decision of refusal by the defendant to repay to the applicant, in accordance with his application of 4
         June 2003, the double child allowance which had been unjustly retained in the past together with the defendant’s decision
         of 10 November 2003 on the complaint relating thereto;
      
      annul the defendant’s decision of 28 April 2004 as a result of which the special allowance for the severely handicapped which
         was granted by another source to the applicant’s son … was declared to be an “allowance of like nature”, within the meaning
         of Article 67(2) of the Staff Regulations, to the double child allowance … together with the defendant’s decision of 15 September
         2004 on the complaint relating thereto;
      
      order the defendant to pay to the applicant compensation in the amount of the statutory interest which has accrued, in respect
         of the harm incurred as a result of the fact that parts of his remuneration in the form of the double child allowance have
         been unjustly retained since 1 December 1998.’
      
      11.   The Court of First Instance dismissed the action. As regards the claim that the Parliament should be ordered to pay retrospectively
         certain sums, the Court dismissed the application as inadmissible. The claim that the Parliament should be ordered to pay
         retrospectively certain sums was inadmissible as the Court did not have jurisdiction, in an action brought under Article 91
         of the Staff Regulations, to issue directions to the Community institutions. Pursuant to Article 233 EC, where a legislative
         act is annulled, the institution concerned is required to take the necessary measures to comply with the judgment.
      
      12.   As regards the reformulated head of claim contained in the reply, with which the applicant claimed that the Parliament should
         be ordered to pay compensation in respect of the damage incurred, the Court of First Instance found that it constituted a
         claim for compensation for damage in terms of Article 235 EC. However, as the subject-matter of the dispute is determined
         in the application, it cannot be altered at the stage of the reply.
      
      13.   The Court of First Instance regarded the action for annulment as being solely directed against the decision of 26 June 2003.
         The Court rejected that claim as unfounded. The Parliament was right to take the view that the Luxembourg allowance was an
         allowance of like nature within the meaning of Article 67(2) of the Staff Regulations, which was to be deducted from the double
         child allowance in accordance with those regulations.
      
      IV –  The appeal
      14.   The appellant submits three pleas in law. The first and second allege that the Court of First Instance failed to take into
         account and dismissed certain heads of claim and the third alleges infringement of Article 67(2) of the Staff Regulations.
      
      15.   The appellant claims that the Court should:
      ‘1.      annul the judgment of the Court of First Instance (First Chamber) of 25 January 2006 in Case T-33/04 (Weißenfels v European Parliament), notified on 31 January 2006;
      
      2.      annul the decision of the respondent of 26 June 2003, as a result of which the special allowance for the severely handicapped
         which was paid from another source to the appellant’s son Frederik was deducted from the double child allowance granted to
         the appellant under Article 67(3) of the Staff Regulations;
      
      3.      annul the implied decision of refusal of the respondent to pay back to the appellant, in accordance with his application of
         4 June 2003, the double child allowance which had been unjustly retained in the past;
      
      4.      annul the decision of the respondent of 28 April 2004, as a result of which the special allowance for the severely handicapped
         which was granted by another source to Frederik, the son of the appellant, was declared to be an “allowance of like nature”,
         within the meaning of Article 67(2) of the Staff Regulations, to the double child allowance which had been granted to the
         appellant;
      
      5.      order the respondent to pay the appellant compensation (in the alternative: the statutory interest which has accrued) in respect
         of the harm incurred as a result of the fact that parts of his remuneration in the form of the double child allowance have
         been unjustly retained since 1 December 1998;
      
      6.      order the respondent to pay the costs of appeal and at first instance, including the expenses incurred by the appellant.’
      16.   The European Parliament contends that the Court should:
      1.      dismiss the appeal, as the pleas in law are in part irrelevant and inadmissible and are, in any event, unfounded;
      2.      order the appellant to pay the costs of appeal.
      V –  Assessment
      17.   It is appropriate to begin with an examination of the third plea. According to the case-law of the Court, an appeal is to
         be dismissed if the grounds of the judgment under appeal reveal an infringement of Community law but the operative part appears
         well founded on other grounds. (3) Therefore if it were to be found that the appellant is not entitled to payment in full of the family allowance, then the
         first and second pleas would be irrelevant, as the operative part would then, in any event, have proved to be well founded.
      
      A –    The interpretation of Article 67(2) of the Staff Regulations
      18.   With the third plea the appellant submits that the Court of First Instance in interpreting the notion of ‘allowances of like
         nature paid from other sources’ overlooked the fact that Article 67(2) requires two kinds of similarity, both formal and substantive.
         In order to constitute an ‘allowance of like nature’, the allowance paid from another source has to be a benefit which is
         ancillary to remuneration like the official’s family allowance. That follows from the wording of Article 67(2) of the Staff
         Regulations, which uses the term ‘allowance’; the Luxembourg benefit is not a benefit which is ancillary to remuneration and
         moreover the term ‘allowance’ is not used with reference to it, but rather it is called special aid. Furthermore, the appellant
         relies on the judgments of the Court of Justice in Commission v Belgium (4) and Commission v Germany. (5) The judgment under appeal errs in law in assuming that it is irrelevant for the application of Article 67(2) of the Staff
         Regulations that the national aid is paid, irrespective of an employment relationship, to the individual who is resident in
         the Member State.
      
      19.   Furthermore, according to the appellant, there is no similarity from a substantive point of view as the claimants of the two
         benefits are not identical. The claimant of the national benefit is not the official, but the child itself. What matters is
         not the actual recipient of the benefit, but solely the claimant.
      
      20.   Thus it must be examined whether the Court of First Instance misinterpreted Article 67(2) of the Staff Regulations in that
         it regarded a benefit which is not paid in connection with remunerative employment as an allowance of like nature within the
         meaning of that provision in that it relied only on the spirit and purpose of the benefits in examining the similarity of
         benefits.
      
      1.      The income-dependent nature of the benefit
      21.   The Court of First Instance found in paragraph 52 of the judgment under appeal that the applicant’s argument that the two
         benefits at issue were not of like nature because the allowance under the Staff Regulations is added to the official’s salary
         whereas the national aid is paid to the handicapped child irrespective of the remunerative employment of the parents was not
         convincing. Rather what was decisive in deciding whether the two benefits at issue in the present case were of like nature
         was the spirit and purpose of the payment made. Accordingly, what was important here was the expenditure which arises as a
         result of a severely handicapped person’s need for support and care.
      
      22.   According to the judgment under appeal it is irrelevant for the application of Article 67(2) of the Staff Regulations whether
         the national allowance is paid in connection with an income or independently thereof. The appellant is correct in stating
         that this conclusion is not immediately apparent from the wording of the German version of that provision. What is mentioned
         there is a ‘Zulage’ (allowance). (6) That term may be understood as a benefit which is added to another benefit, namely in the present context to the salary,
         in the same way as the benefit against which the benefit paid from another source counts also constitutes an allowance in
         addition to the official’s salary. The wording, at least of the German version of the Staff Regulations, can therefore at
         first sight be understood to mean that a benefit is only of like nature if it constitutes an ‘allowance’ in addition to salary.
      
      23.   This grammatical interpretation is not, however, the only one possible. The use of the term ‘allowance’ can also be non-specific
         and can furthermore be understood as meaning that it also includes those benefits which are not paid in connection with a
         salary.
      
      24.   Therefore the teleological interpretation is of crucial importance. The Parliament is right in stating that if the concept
         of an allowance in Article 67(2) of the Staff Regulations were to be interpreted as an allowance in addition to salary then
         the provision would in many cases be rendered ineffective. In respect of officials, there will not usually be any allowances
         in addition to salary which are paid from other sources; at most, there could be one if an official engages in part-time work.
         On the basis of that understanding Article 67(2) would only cover an allowance in addition to the salary of an official’s
         spouse.
      
      25.   What militates decisively against an understanding of the benefit as merely an allowance in addition to salary is the argument
         that that understanding would lead to differences in the treatment of officials which are contingent on the form which the
         systems of family allowances in the Member States happen to have.  A male or female official whose spouse works in a Member
         State, which has set up the payment of an additional benefit for handicapped children as an allowance in addition to salary,
         would have that payment counted against the Community benefit. A different official, who received a national allowance in
         respect of his handicapped child from a Member State which had not set it up as an allowance in addition to salary, but had
         made it dependent on the satisfaction of a residence criterion, would not have it counted against the Community benefit and
         would therefore receive double the benefit. Such a difference in the treatment of officials, contingent on the respective
         form of national law, is unjustified.
      
      26.   Therefore, an interpretation of Article 67(2) of the Staff Regulations – as taken by the Court of First Instance as a basis
         for its judgment – which avoids such a difference in the treatment of officials, in that it does not rely on formal similarity
         as an allowance in addition to salary, but on substantive similarity, namely on the spirit and purpose of the benefit, is
         more convincing.
      
      27.   Furthermore the judgments of the Court of Justice in Commission v Belgium (7) and Commission v Germany (8) do not, contrary to the submissions of the appellant, preclude that interpretation. Admittedly, the Court held in those judgments
         that ‘Article 67(2) applies only where, in relation to a Member State whose legislation confers entitlement in principle to
         the payment of national allowances in respect of a child who is eligible for allowances under the Staff Regulations, there
         is a comparable link with circumstances conferring entitlement to the award of allowances under the Staff Regulations.’ (9)
      
      28.   The Court also stated that ‘the allowances of like nature which, according to [Article 67(2) of the Staff Regulations], must
         be deducted … are only those paid in connection with paid employment.’ (10)
      
      29.   As the judgment under appeal declares both the fact that the national allowance is not granted in connection with employment,
         but only on the basis of residence, and the fact that the official’s spouse is not engaged in any paid employment, to be irrelevant,
         it thus seems prima facie to contradict the judgments referred to.
      
      30.   However, if the context in which the judgments in Commission v Germany and Commission v Belgium were delivered is taken into account, there is, contrary to that first impression, no contradiction. Those judgments were
         delivered on the basis of actions for failure to fulfil obligations in which the Commission challenged national laws which provided that child benefit is not granted in respect of a child for which one parent is paid a benefit comparable
         to child benefit by the European Community.  The national legislation thus contained an anti-accumulation rule which was comparable
         to Article 67(2). Under that rule the payment obligation was basically shifted onto the Community. In the interaction of the
         national and Community legal regimes there was no provision as to priority, that is to say, a provision which regulated which
         system took priority with regard to payment. The Court thus had to decide the extent to which Article 67(2) precludes a national
         anti-accumulation rule, and thus the extent to which Article 67(2) gives rise to obligations for Member States.
      
      31.   In those cases what was at issue was not the interpretation of Article 67(2) of the Staff Regulations from the perspective
         of a European official whose entitlement is reduced by reference to the anti-accumulation rule laid down in that provision,
         but the question whether the national or Community system took priority as regards payment. In those cases the Commission
         deduced from Article 67(2) of the Staff Regulations that Member States had priority as regards the payment of the benefits
         with the result that the Community was then able to rely on the anti-accumulation rule and no longer had to pay.
      
      32.   Advocate General Mischo, in his Opinions in respect of both cases, suggested that the rule as to priority should not be derived
         from Article 67(2) of the Staff Regulations. In his opinion, Article 67(2) of the Staff Regulations is merely a rule against
         the overlapping of benefits. It should operate only if family allowances are actually paid under a national scheme. However,
         it does not result in a restriction of the Member States’ freedom of action in granting social security benefits. (11)
      
      33.   The Court did not however follow the Opinion of the Advocate General, but rather found in its judgments that Article 67(2)
         of the Staff Regulations also contains a provision as to priority. According to the approach taken by the Court, that provision
         as to priority means that a Member State infringes Article 67(2) of the Staff Regulations if, where the spouse of a European
         official is engaged in paid employment, it precludes the payment of family allowances under national law by relying on a payment
         under the Staff Regulations. (12) The conclusions with regard to the definition of the ‘like nature of the allowance’ which the Court reached in that connection
         thus affected Article 67(2) of the Staff Regulations in its function as a provision as to priority.
      
      34.   The definition of the ‘like nature of the allowance’ in the field of application of Article 67(2) as a provision as to priority
         cannot necessarily be applied to the definition of the concept in the context of Article 67(2) in its function as an anti-accumulation
         rule. Rather, in the context of Article 67(2) as an anti-accumulation rule a substantive understanding of the provision should
         be taken as a starting point. Only in that way can – as has been mentioned above – a difference in the treatment of officials
         be avoided. The understanding of Article 67(2) which was proposed by Advocate General Mischo, in terms of which that provision
         is regarded solely as an anti-accumulation provision and not also as a provision as to priority, would have prevented such
         a discrepancy in the understanding of the concept depending on whether Article 67(2) functions as a provision as to priority
         or as an anti-accumulation provision.
      
      35.   Within the scope of Article 67(2) of the Staff Regulations as an anti-accumulation provision what is of importance in an examination
         of the like nature of the benefit is thus solely the substantive criterion of whether it has the same spirit and purpose.
      
      2.      The substantively like nature of the benefit
      36.   In connection with the examination of the substantively like nature of the benefits the appellant submits that the judgment
         under appeal did not take into account that the claimant of the national benefit is not the official, but rather the child
         itself and that the benefit is paid to the official only in his function as legal representative of the minor.
      
      37.   The Court of First Instance was however correct in holding that a formal classification of the benefit cannot be decisive.
         Rather, what must be taken into account is who ultimately benefits from the benefit. In the present case, despite the formal
         ownership of the claim, that is not only the son, but also his father. That is so because those benefits ultimately benefit
         the official in that they reduce the child’s need for maintenance and thus to that extent relieve the father of the burden
         of maintenance expenditure. (13) In this respect also the third plea is thus unfounded.
      
      3.      Interim conclusion
      38.   To sum up, what must be borne in mind is that the judgment under appeal correctly applied Article 67(2) of the Staff Regulations,
         in that it found that the Parliament was entitled to deduct the payments made under Luxembourg law from the double child allowance
         under the Staff Regulations.
      
      39.   As the judgment under appeal is thus in any event correct as to its conclusion then even if the appellant’s other pleas were
         to be upheld those other pleas would be irrelevant. They shall however be discussed below for the eventuality that the Court
         comes to a different conclusion regarding the third plea which has just been discussed.
      
      B –    The dismissal of various heads of claim
      40.   With his first plea the appellant complains that the Court of First Instance erred in law by failing to have regard to the
         fact that all in all three different decisions were being challenged. With the second plea the appellant complains that the
         judgment under appeal dismissed his claim for compensation for damages due to lost interest as inadmissible.
      
      41.   Contrary to the opinion of the Parliament, those pleas are not inadmissible due to a lack of prejudice to the appellant’s
         interests. The appellant’s interests could be prejudiced both by the dismissal of the claim for payment of interest and the
         failure to have regard to the claims that other decisions of the Parliament should be annulled.
      
      1.      The failure to have regard to certain claims
      42.   With the first plea the appellant claims that the decision fails to have regard to the fact that all in all three separate
         decisions were challenged, namely that of 26 June 2003, the implied decision of refusal of the application of 4 June 2003
         and the decision of 28 April 2004. The judgment under appeal erred in law by regarding the appellant’s action for annulment
         as being solely directed against the decision of 26 June 2003.
      
      43.   First, it is necessary to examine whether that plea proves unsuccessful because the appellant withdrew the abovementioned
         claims at the hearing before the Court of First Instance. In paragraph 31 of the judgment under appeal it is stated ‘that
         at the hearing the applicant admitted that the various heads of claim for annulment set out in his application and his reply
         had the same subject-matter, namely the application for annulment of the decision of 26 June 2003’. That wording used by the
         Court of First Instance does not however support the assumption that the applicant withdrew formally in part his application
         as regards those heads of claim. In addition, it cannot be inferred from the minutes of the hearing that the applicant declared
         that he was withdrawing his application in part. Therefore the first plea must be examined below.
      
      44.   With the decision of 28 April 2004 the Parliament took a new decision, after the lodging of the application on 2 February
         2004, on the deduction pursuant to Article 67(2) of the Staff Regulations having regard to the updated amount of the Luxembourg
         aid.
      
      45.   With regard to the decision of 28 April 2004 the judgment under appeal states in paragraph 31 thereof that that decision is
         essentially identical to the decision of 26 June 2003. It merely confirms the decision of 26 June 2003 and the action for
         annulment cannot be regarded as being directed against it.
      
      46.   That finding by the Court of First Instance does not appear to me to be correct. With the decision of 28 April 2004 there
         was a further decision regarding the deduction pursuant to Article 67(2) of the Staff Regulations with effect for the future
         having regard to the updated amount of the Luxembourg aid. That decision thus contains a separate cause of complaint: even
         if the decision of 26 June 2003 were annulled, that decision would still continue to apply to the period as of 28 April 2004.
         The applicant therefore also has a legal interest in bringing proceedings as regards the annulment of the decision of 28 April
         2004.
      
      47.   Furthermore, that head of claim was, by way of exception, admissible although it was only raised in the reply.
      48.   According to the case-law of the Court, an application for annulment of a decision which is made after an action is brought
         is admissible if it constitutes a mere extension of the old decision; it would be contrary to the proper administration of
         justice and to the requirement of procedural economy to demand that an applicant bring fresh proceedings in order to challenge
         the new decision. (14)
      
      49.   What is questionable is whether that case-law can also be relevant in staff cases as the lodging of a prior complaint is a
         precondition for the admissibility of the action in those cases. However, in such a case too, the principle of procedural
         economy demands that the applicant should not bring fresh proceedings provided that the lodging of a prior complaint is dispensable.
         That is the case if the administrative decision with regard to which the action is extended merely alters or replaces the
         decision against which a prior complaint has already been lodged. Furthermore, the administration’s position in the court
         proceedings must show that a complaint would be unsuccessful.
      
      50.   Furthermore, the appellant complains that the judgment under appeal errs in failing to appreciate that the implied decision
         of refusal of the applicant’s application of 4 June 2003 constitutes a separate decision which was the subject-matter of the
         action for annulment.
      
      51.   In that regard the judgment under appeal states in paragraph 30 that the subject-matter of the implied decision of refusal
         of the application of 4 June 2003 is identical to that of the decision of 26 June 2003 so that the head of claim seeking its
         annulment is indissociable from the head of claim seeking the annulment of the decision of 26 June 2003.
      
      52.   That classification by the judgment under appeal also fails finally to convince. The subject-matter of both claims is not
         identical. With his application of 4 June 2003 the appellant had claimed repayment of the double child allowance which had
         been unjustly retained in the past. Thus that application goes beyond a challenge to the decision of 26 June 2003 by which
         it had been decided to deduct the Luxembourg aid. A deduction of the Luxembourg aid had already been decided on by the decisions
         of 22 October 1999 and 18 September 2000. The application of 4 June 2003 for the repayment of child allowances which had been
         retained in the past can also be directed at periods before 26 June 2003 and thus constitutes an independent subject-matter
         in terms of an action.
      
      53.   In this respect the first plea would not however justify an annulment of the judgment under appeal as the head of claim regarding
         the implied decision of refusal of the application of 4 June 2003 was inadmissible on another ground. It was raised only in
         the context of the reply and was thus raised belatedly.
      
      2.      The claim for compensation for damage
      54.   With the second plea the appellant complains that his claim for compensation for damage arising through lost interest was
         dismissed as belated by the judgment under appeal.
      
      55.   Paragraph 26 of the judgment under appeal states that the applicant’s claim for compensation for damage due to lost interest
         in the amount of the statutory interest which has accrued, as amended by the reply, constitutes a claim for compensation for
         damage which should have been submitted with the application and which, as it was submitted only in the reply, must be dismissed
         as belated.
      
      56.   That conclusion does not stand up to judicial scrutiny. According to Article 21 of the Statute of the Court of Justice the
         form of order sought must already be contained in the written application; new heads of claim may not, in principle, be submitted
         subsequently. The claim for interest on the double child allowance to be repaid can, however, by way of interpretation, already
         be inferred from the application and was thus submitted in time. The applicant had already claimed in the application that
         the defendant should be ordered to pay to the applicant all amounts improperly withheld from his remuneration together with
         interest at the rate prescribed by law. Admittedly, the applicant did not in that head of claim claim the payment of the interest
         expressly as compensation for damage. That cannot, however, be conclusive. The head of claim in the reply should thus not be regarded as a new head of claim,
         but merely as a more precise statement of the original head of claim, which had already been formulated in sufficiently specific
         terms in the application, but had simply not been expressly declared to be a claim for compensation for damage. The claim
         submitted in the reply does not therefore widen the original claim, but is, on the contrary, less wide in that the claim that
         the Parliament should be ordered to pay retrospectively the unpaid child allowance is not maintained.
      
      57.   That head of claim is also admissible as to the remainder. The Court of First Instance correctly assumed that Community Courts
         are not in principle authorised to issue directions to the Community institutions; pursuant to Article 233 EC if a legislative
         measure is annulled, the institution concerned is required to take the necessary measures to comply with the judgment.
      
      58.   Article 91 of the Staff Regulations, however, provides that in staff case disputes of a financial character the Court of Justice
         has unlimited jurisdiction including the power to annul or amend the measures which have been taken.
      
      59.   The question as to the extent to which, in the context of staff cases, heads of claim that institutions be ordered to pay
         withheld benefits such as, for example, family allowances or a daily allowance are admissible has been answered in different
         ways by the Court of First Instance. (15)
      
      60.   The Parliament takes the view that the concept of a dispute of a financial character is to be strictly interpreted and that
         it covers only claims for compensation for damage. The present case regarding double child allowance is not covered by that
         concept as the Court of Justice would, by contrast with claims for compensation for damage, have no margin of manoeuvre as
         regards the amount of the retrospective payments to be made by the Parliament if the case were upheld as they would be determined
         by law.
      
      61.   In any event, as far as the interest on the overdue child allowance is concerned, the present case concerns a claim for compensation
         for damage and thus – even according to the Parliament’s strict interpretation – a dispute of a financial character. In order
         to decide that claim the Court must however also have the jurisdiction at least implicitly to clarify the preliminary question
         of whether a repayment obligation on the part of the Parliament actually exists and in particular the periods with respect
         to which the double child allowance should subsequently be granted.
      
      62.   The claim submitted in the reply that the Parliament should be ordered to pay compensation for damage due to lost interest
         was thus admissible.
      
      C –    Interim conclusion
      63.   As stated above, the appellant would be partially successful in respect of the first and second pleas. However according to
         the understanding of the third plea set out here the Parliament was right to deduct the payments made under Luxembourg law
         from the double child allowance. Consequently the judgment is well founded as to its conclusion. It follows that the appeal
         must be rejected in its entirety.
      
      VI –  Costs
      64.   Under the first subparagraph of Article 69(2) of the Rules of Procedure, applicable to appeal proceedings by virtue of Article
         118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s
         pleadings. In accordance with Article 70 of the Rules of Procedure, which is also applicable to disputes between the Communities
         and their servants, the institutions are to bear their own costs. Nevertheless, it follows from the second paragraph of Article
         122 of the Rules of Procedure that Article 70 does not apply to appeals – as in the present case – brought by an official
         or any other servant of an institution. 
      
      65.   Pursuant to the second paragraph of Article 122 of the Rules of Procedure the Court of Justice – in derogation from Article
         69(2) of the Rules of Procedure – may, in appeals brought by officials or other servants of an institution, order the parties
         to share the costs where equity so requires. In the present case, however, there are no aspects which would militate in favour
         of such an equitable decision.
      
      66.   In the present case the regime in Article 69(2) of the Rules of Procedure thus applies. Since the Parliament applied for the
         costs of the appeal against the appellant and the latter has been unsuccessful, he must be ordered to pay the costs of the
         appeal.
      
      VII –  Conclusion
      67.   Accordingly I propose that the Court:
      (1)      Dismisses the appeal;
      (2)      Orders the appellant to pay the costs of the appeal.
      1 –	Original language: German.
      
      2 –	Case T-33/04 Weißenfels v Parliament [2006] ECR II-0000.
      
      3 – 	Compare Case C-30/91 P Lestelle v Commission [1992] ECR I-3755, paragraph 28, and the Order in Case C-396/03 P Killinger v Germany and Others [2005] ECR I‑4967, paragraph 12.
      
      4 –	Case 186/85 Commission v Belgium [1987] ECR 2029.
      
      5 –	Case 189/85 Commission v Germany [1987] ECR 2061, paragraph 12.
      
      6 –	In the English version the term ‘allowance’ is used. In the French version the term ‘allocation’ is used; the Luxembourg
         benefit is also described using the term ‘allocation’.
      
      7 –	Commission v Belgium (cited in footnote 4).
      
      8 –	Commission v Germany (cited in footnote 5).
      
      9 –	Commission v Belgium (cited in footnote 4, paragraph 30).
      
      10 –	Commission v Belgium (cited in footnote 4, paragraph 33).
      
      11 –	Opinion of Advocate General Mischo in Case 189/85 Commission v Germany [1987] ECR 2061, under I.
      
      12 –	Commission v Germany (cited in footnote 5, paragraph 30) and Commission v Belgium (cited in footnote 4, paragraph 35).
      
      13 –	Compare, albeit in another context, my Opinion in Case C-286/03 Hosse [2006] ECR I-1771, point 97.
      
      14 –	Joined Cases 351/85 and 360/85 Fabrique de fer de Charleroi v Commission [1987] ECR 3639, paragraph 11.
      
      15 –	Compare, as regards the admissibility of such a claim, inter alia the judgments in Joined Cases T-10/90 and T-31/90 Boessen v ESC [1991] ECR II-1365 (‘order to pay education allowances’); Case T-15/93 Vienne v Parliament [1993] ECR II‑1327 (‘order to pay a daily allowance’); Case T-134/99 Skrzypek v Commission [2000] ECR-SC I-A-139 and II-633 (‘order to pay family allowances and an orphan’s pension’). The judgment of the Court of
         First Instance in Case C‑449/99 P EIB v Hautem [2001] ECR I-6733, paragraphs 26 and 90 ff., also supports the admissibility of such a claim.