JUDGMENT OF 11. 7. 1980 — CASE 103/79 JUDGMENT OF THE COURT (FIRST CHAMBER)

In Case 103/79

THE COURT (First Chamber)

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of procedure, the conclusions and also the submissions and arguments of the parties may be summarized as follows:

I — Facts and procedure

(a) Facts

The applicant, a British national, is an official of the Commission of the European Communities. He is assigned to Directorate-General III.

His daughter Caroline studied at the British School of Brussels where she obtained at the end of the 1975-1976 school year the General Certificate of Education at Ordinary Level. After that she was advised to attend a vocational training establishment.

Caroline Moat then decided to go on the courses run in her own language by an educational establishment called Leith's School of Food and Wine in London for the 1976-1977 school year.

(b) The regulations involved

The first and second paragraphs of Article 3 of Annex VII to the Staff Regulations of officials of the European Communities as amended by Article 1 of Regulation No 711/75 of the Council of 18 March 1975 (OJ L 71, p. 1) provide that:

“An official shall receive an education allowance equal to the actual education costs incurred by him up to a maximum of Bfr 3093 per month for each dependent child, within the meaning of Article 2 (2) above, who is in regular fulltime attendance at an educational establishment.

Entitlement to this allowance commences on the first day of the month in which the child begins to attend a primary educational establishment and shall cease at the end of the month in which the child reaches the age of twenty-six.”

The third paragraph of this article reads as follows :

“The maximum prescribed in the first paragraph shall be doubled for: an official whose place of employment is at least 50 km from a European school or an educational establishment working in his language, provided that the child actually attends an educational establishment at least 50 km from the place of employment; and an official whose place of employment is at least 50 km from an establishment of higher education in the country of which he is a national or working in his language, -provided that the child actually attends an establishment of higher education at least 50 km from the place of employment and the official is entitled to the expatriation allowance; the latter condition shall not apply if there is no such establishment in the country of which the official is a national.”

Article 4 (5) of the General implementing provisions for granting the education allowance (published in Administrative Notices No 153 of 2 May 1977 pp. 21 to 25 stipulates:

“On presentation of supporting documents, the official shall be entitled to receive double the amount set out in the first paragraph of Article 3 of Annex VII of the Staff Regulations by way of reimbursement of the costs specified in Article 3, provided his place of employment is at least 50 km either from a European school or from a school teaching in his mother tongue and the child must attend such a school for imperative educational reasons, adequate proof of which must be provided.” By virtue of Article 10 these General provisions entered into force retroactively with effect from 1 March 1975. Subsequently the third paragraph of Article 3 of Annex VII to the Staff Regulations was amended by Regulation No 912/78 (OJ L 119, 1978, p. 1) as follows as from 3 May 1978: “The maximum prescribed in the first paragraph shall be doubled for: an official whose place of employment is at least 50 km from, either: a European school, or an educational establishment working in his language which the child attends for imperative educational reasons duly supported by evidence; an official whose place of employment is at least 50 km from an establishment of higher education in the country of which he is a national or working in his language, provided that the child actually attends an establishment of higher education at least 50 km from the place of employment and the official is entitled to the expatriation allowance; the latter condition shall not apply if there is no such establishment in the country of which the official is a national.”

The General implementing provisions have thus been incorporated in the third paragraph of Article 3 of Annex VII to the Staff Regulations.

(c) Procedure

The applicant, as a recipient of an education allowance for his daughter Caroline, pursuant to the second paragraph of Article 3 of Annex VII to the Staff Regulations, submitted a request on 7 March 1977 within the meaning of Article 90 (1) of the Staff Regulations, with a view to obtaining up to double the maximum education allowance pursuant to the second indent of the third paragraph of Article 3 of Annex VII to the Staff Regulations. The applicant in fact took the view that Leith's School of Food and Wine in London could be regarded as being on the same footing as “an establishment of higher education in a country of which he is a national or working in his language” within the meaning of the abovementioned provision of the Staff Regulations.

This request was expressly rejected by the defendant by a note dated 19 July 1977.

On the same day, that is to say on 19 July 1977, the applicant lodged a complaint through official channels within the meaning of Article 90 (2) of the Staff Regulations.

That complaint was expressly rejected on 17 February 1978.

By a letter dated 16 June 1978 the applicant submitted a fresh request, pursuant to Article 90 (1) of the Staff Regulations, claiming entitlement to the education allowance up to the doubled maximum for his daughter Caroline under the first indent of the third paragraph of Article 3 of Annex VII to the Staff Regulations, since there was no educational establishment working in his language, either in Brussels or within 50 km of that city, which provides technical courses as does Leith's School of Food and Wine in London.

This fresh request was considered separately by the administration and led to another express decision rejecting the applicant's second request which was contained in a letter of 6 October 1978, signed by the head of the Individual Rights and Privileges Division.

By a letter dated 8 December 1978 the applicant lodged a complaint against this new decision under Article 90 (2) of the Staff Regulations.

This fresh complaint was also expressly rejected by a decision contained in a letter dated 26 March 1979 signed by the Director-General for Personnel and Administration.

On 22 October 1979 the applicant brought this action which is directed against the express decision of 6 October 1978 rejecting his request and against the express decision or 26 March 1979 rejecting his complaint.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court (First Chamber) decided to open the oral procedure without any preparatory inquiry.

II — Conclusions of the parties

The applicant claims that the Court should :

1) Annul the express decision of 6 October 1978 rejecting the applicant's request for the grant of a double education allowance in pursuance of the first indent of the third paragraph of Article 3 of Annex VII to the Staff Regulations of Officials of the European Communities;

2) Annul the express decision of 26 March 1979 rejecting the applicant's complaint through official channels against the abovementioned decision;

3) Rule that the applicant is entitled to the double education allowance for the duration of the course pursued by his daughter Caroline at Leith's School of Food and Wine, London, United Kingdom;

4) Order the defendant to pay him the said double allowance;

5) Rule that, as a result of the actions of the defendant, the applicant has suffered, in addition, material damage corresponding to interest at the rate of 8 % on the amount of the double education allowance from the date on which it became due until the date of actual payment;

6) Order the defendant to pay the costs.

The defendant contends that the Court should:

a) Dismiss the application as inadmissible and in any case as unfounded;

b) Order the applicant to pay the costs.

III — Submissions and arguments of the parties

Admissibility

According to the defendant the object of the two requests and the two complaints is the same, since the aim of both of them is to obtain the doubling of the maximum education allowance for the applicant's daughter during the 1976-1977 school year.

Consequently in its view the application is out of time and therefore inadmissible. In fact it is the decision of 19 July 1977 which rejected the first request against which the application is actually directed. The decision of 6 October 1978 merely confirms the first and is not therefore an act adversely affecting an official (Judgment of 15 June 1976 in Case 1/76 Ute Wack v Commission of the European Communities [1976] ECR 1017 et seq.; judgment of 14 December 1965 in Case 12/65 Fred Bauer v Commission of the European Economic Community [1965] ECR 1003 et seq.; judgment of 17 March 1971 in Case 47/70 Heinrich Kschwendt v Commission of the European Communities [1971] ECR 251 et seq.).

The fact that the first request was based on the second indent of the third paragraph of Article 3 of Annex VII whereas the second is based on the first indent of the same provision is not enough to make the second a fresh request (judgment of 14 April 1970 in Case 24/69 Theo Nebe v Commission of the European Communities [1970] ECR 145).

Furthermore, consideration of the complaint of 19 July (lodged following the rejection of the first application) and also of the wording of the second request shows that the legal basis of the applicant's first request was in part the same as that on which he is now relying, namely the General implementing provisions for granting the education allowance.

But in so far as the complaint of 19 July 1977 was based on infringement of Article 4 (5) of the General implementing provisions it was rejected by implication on 19 November 1977 and this rejection was not followed up by an application brought within the prescribed period of three months.

Furthermore, the application is also inadmissible because the applicant has no interest in the proceedings.

As provided for in Article 4 (4) of the General implementing provisions for granting the education allowance the applicant received during the 1976-1977 school year a fixed monthly amount equal to the single maximum education allowance.

The application of Article 4 (5) of the abovementioned general provisions, to which the applicant laid claim, enabled him to obtain “on presentation of supporting documents” reimbursement of the education expenses set out in Article. 3 of the abovementioned General implementing provisions up to a maximum equal to double the fixed maximum.

Since the applicant has never claimed to have incurred during the 1976-1977 school year reimbursable expenses over and above the single maximum education allowance he has not therefore established an interest which permits him to bring an action.

The applicant in his reply submits that the basis of entitlement to the grant of the education allowance up to the doubled maximum must be looked for solely in the provisions of the Staff Regulations in force when this entitlement arose, that is to say in September 1976. Consequently, Article 2 of Regulation No 711/75 of the Council of 18 March 1975 amending the Staff Regulations is alone applicable in this case.

Since his daughter had obtained the General Certificate of Education at Ordinary Level at the end of the 1975-1976 school year he stated that in his view Leith's School of Food and Wine in London was similar to an establishment of higher education within the meaning of the second indent of the third paragraph of Article 3 of Annex VII to the Staff Regulations and submitted his request on this basis under the said regulations.

The applicant, after drawing attention to the fact that the Commission in its reply contained in the letter of the head of the Individual Rights and Privileges Division of 19 July 1977 gave the criteria for interpreting the concept “establishment of higher education” and came to the conclusion that the establishment attended by the applicant's daughter did not comply with those criteria, points out that the decision of 27 February 1978 rejecting his complaint against the decision referred to above merely repeated the arguments relating to the concept of an establishment of higher education relied on previously.

Following the fresh request submitted by the applicant on the basis of the first indent of the third paragraph of Article 3 of Annex VII to the Staff Regulations the defendant considered it again, on the basis of the fresh legal argument put forward. Consequently the contested decisions cannot be regarded as confirmatory decisions (judgment of 9 March 1978 in Case 54/77 Antoon Herpels v Commission of the European Communities, [1978] ECR 585, at p. 596, paragraphs 13 to 15).

As far as concerns the applicant's interest in the proceedings he stresses that the action is concerned with the circumstances under which entitlement to double the maximum education allowance arises and not with the conditions under which this right is exercised or implemented.

Any attempt to justify the breach of an acquired right by relying on the retroactive effect of the General implementing provisions for granting the education allowance is of course unlawful so that any such effect does not apply to the applicant.

As regard the assertion that the applicant should have proved that there were “educational reasons duly supported by evidence”, this requirement is not found at all as a condition precedent to the existence of the contested right in the first indent of the third paragraph of Article 3 of Annex VII to the Staff Regulations (1975 version). The same applies to the “presentation of supporting documents”.

Consequently there is no doubt that Article 4 (5) of the General implementing regulations for granting the education allowance supplements the Staff Regulations.

But that provision is not a Staff Regulation and therefore not a regulation at all so that it contains nothing more than administrative measures on a par with those practices which the Commission imposes on itself.

If those measures favoured an official the latter would have been entitled to claim the advantage. On the other hand if those measures were in breach of the Staff Regulations they could not be applied to the official.

The defendant in its rejoinder points out that the General implementing provisions for granting the education allowance apply retroactively with effect from 1 March 1975.

The link between officials and Community institutions is constituted solely by regulations, including the Staff Regulations. The Community authority is therefore entitled at any time to amend the Staff Regulations in a manner which it considers to be in the interests of the service, provided that the amendments do not have a retroactive effect detrimental to the staff (cf. the opinion of Mr Advocate General Mayras in Case 28/74 Fabrizio Gillet v Commission of the European Communities [1975] ECR 463 et seq.).

But consideration of the rules for granting double the maximum education allowance leads to the conclusion that they have not developed in such a way as to place officials at a disadvantage, so that the latter are estopped from. claiming that any which have retroactive effect are unlawful.

Thus the previous version of the first indent of the third paragraph of Article 3 of Annex VII to the Staff Regulations made in particular the granting of this doubled maximum conditional on the absence of a European School or an educational establishment working in the child's language within a radius of 50 km from the official's place of employment.

On the other hand, as provided for in Article 4 (5) of the General implementing provisions for granting the education allowance and of the current version of the first indent of the third paragraph of Article 3 of Annex VII to the Staff Regulations the doubling of the said maximum is granted, even if there is within a 50 km radius of the official's place of employment, a European school or an educational establishment working in the child's language, provided that the child actually attends an educational establishment working in his language, which is more than 50 km from the place of employment, for imperative educational reasons duly supported by evidence.

The defendant maintains that the application is out of time, since it is directed against a purely confirmatory decision. That was not so in Case 54/77 Antoon Herpels v Commission of the European Communities [1978] ECR 585 quoted by the applicant.

As far as concerns the applicant's interest in the proceedings the defendant states that not until the proceedings had reached the stage at which he delivered his reply did the applicant produce the supporting documents showing that the expenses which he incurred exceeded the maximum of the single education allowance.

Substance

A — Application for annulment

The applicant makes three submissions, namely (1) infringement of the second subparagraph of Article 90 (2) of the Staff Regulations, (2) infringement and misapplication of the first indent of the third paragraph of Article 3 of Annex VII to the Staff Regulations and infringement of the second paragraph of Article 90 (2) of the Staff Regulations and (3) infringement of Article 7 of the EEC Treaty and of the principles contained in Article 2 of the Protocol of 20 March 1952 supplementing the European Convention for the Protection of Human Rights and Fundamental Freedoms.

With regard to the first submission the applicant submits that it is not for the authority which has to give a decision on a complaint to say that a request is inadmissible which the administrative authority dealing with it directly did not consider to be inadmissible.

Since the legal foundation of the two requests and the two complaints is different, the statement of the grounds upon which the decision of 26 March 1979 rejecting the second complaint was based is inadequate.

With regard to the second submission the applicant states that by means of the contested decisions the defendant has refused to grant him an education allowance up to the doubled maximum simply because there is in Brussels a European school as well as the British School of Brussels providing primary and secondary education. The defendant concludes from those facts that it cannot grant an education allowance up to the doubled maximum for attendance at an educational establishment in the United Kingdom, even if there is no establishment of the kind chosen for education reasons, working in English at the official's place of employment or within 50 km thereof.

Now every official of the European Communities has the right to choose appropriate education for his children (in this case occupational training) and fulfils the statutory condition prescribed by the first indent of the third paragraph of Article 3 of Annex VII to the Staff Regulations, from the moment when neither a European School nor an educational establishment working in his language, within 50 km of his place of employment provides similar appropriate education and the child is in fact attending an educational establishment at least 50 km from the official's place of employment.

The defendant, by refusing to acknowledge that the applicant is entitled to an educational allowance up to the doubled maximum without taking into consideration, the kind of training provided by the aforementioned establishments in Brussels (in this case a purely academic education), has infringed the first indent of the third paragraph of Article 3 of Annex VII to the Staff Regulations and the statement of the grounds upon which its decision was based is inadequate.

With regard to the third submission the applicant submits that the effect of the contested decisions is to deny to children of officials of the European Communities, whose language is not that of the official's place of employment, any kind of education below higher level, other than an academic one. In this way the defendant discriminated between those children and the children of officials whose language is that of the official's place of employment.

The defendant replies that, with regard to the first submission, the letter of 26 March 1979 emanated from the Director-General for Personnel and Administration. It is certainly not a reply to the complaint since its author is not the appointing authority, that is the Commission, as the second subparagraph of Article 90 (2) of the Staff Regulations lays down. This letter is not therefore a decision adversely affecting an official and did not have to state the grounds on which it was based (second paragraph of Article 25 of the Staff Regulations).

The complaint of 8 December 1978 was in fact rejected by an implied decision on 8 April 1979.

With regard to the second submission the defendant points out that, as provided for in the first indent of the third paragraph of Article 3, in Annex VII and Article 4 (5) of the General implementing provisions for granting the education allowance an official is entitled to a refund of the education costs specified in Article 3 of the said General provisions on presentation of supporting documents up to a maximum equal to double the maximum of this allowance, if his place of employment is at least 50 km from a European school or an educational establishment working in his language which his child attends for imperative educational reasons duly supported by evidence.

Pursuant to these provisions the head of the Individual Rights and Privileges Division informed the applicant on 6 October 1978 that he was unable to accede to his request because the applicant had not proved (and did not even offer to prove) that there were imperative educational reasons justifying his child's attendance at Leith's School of Food and Wine.

So the defendant, far from infringing or misapplying the relevant provisions, has in fact complied with those rules.

With regard to the third submission the defendant takes the view that the right which every official has to send his children to the school of his choice cannot have the effect of granting him automatically the doubling of the maximum education allowance from the moment when the educational establishment working in his language, which his child actually attends, is more than 50 km from his place of employment.

Such an argument would completely disregard the precise conditions laid down for the granting of this doubled maximum.

When the administation took the contested decision it merely complied with the unambiguous requirements of Annex VII to the Staff Regulations and the implementing provisions. Furthermore the applicant has not pleaded that these provisions are unlawful under Article 184 of the Treaty.

The possibility of discrimination is not to be found in the contested decision but the wording of the provisions governing the grant of the doubled maximum education allowance.

Furthermore, the applicant has simplified in a peculiar way the wording of these provisions failing to remember that granting the doubled maximum is in particular subject to there being imperative educational reasons.

According to the defendant the provisions relating to the doubled maximum education allowance prescribe objective conditions, which are binding on everyone, and are adjusted to the aim envisaged by the adoption of the doubled maximum; they cannot therefore give rise to the complaint of discrimination.

The applicant in his reply stresses, as far as concerns the first submission, that the decision of 26 March 1979 rejecting the second complaint was made by an authority which did not have the power to reject it. Contrary to the defendant's view the letter of the Director-General for Personnel and Administration is definitely a decision adversely affecting the applicant, because it is unquestionably the reply of the authority to the complaint of 8 December 1978. The consequence of this is that the decision rejecting the complaint through official channels lodged by the applicant on 8 December 1978 is void.

Moreover the defendant is no longer entitled to assert that an implied rejection replaced on 8 April 1979 its invalid decision of 26 March 1979.

With regard to the second submission the applicant asserts that the existence of his right is only to be found in the provisions of the Staff Regulations. The authors of the Staff Regulations wanted to guarantee each child an appropriate education in its mother tongue. On the other hand they did not want to give an official the right to an education allowance up to the doubled maximum where the latter, who can choose either an educational establishment of the same type working in his mother tongue within 50 km of his place of employment or an establishment in his country of origin, opts, for strictly personal reasons, for the establishment in his country of origin.

The authors of. the Staff Regulations never intended to influence, even indirectly, the selection of the type of education by granting a doubling of the maximum education allowance only for a particular type of academic education at the expense of technical training, which is another type of education.

The first indent of the third paragraph of Article 3 of Annex VII to the Staff Regulations (1975 version) does not mention imperative educational reasons. In fact, from the moment an official's child does not find within a radius of 50 km from his parents's place of employment an establishment providing the type of education which has been selected (primary, secondary, higher) in his mother tongue, there are in se imperative educational reasons for enrolling at such an establishment more than 50 km from the place of employment.

In the defendant's view Leith's School of Food and Wine is an establishment of secondary education. The applicant takes the view that it meets the abovementioned requirements. Moreover, the teachers of the British School of Brussels recommended this type of education. The applicant emphasizes that he has always been refused the education allowance up to the doubled maximum on principle. He refers to the judgment of 31 May 1979 in Case 164/78 Francis Woehrlingv Commission of the European Communities [1979] ECR 1961.

The applicant maintains that the General implementing provisions are unlawful if they are intended to have retroactive effect in order to cancel a right which the applicant has acquired. If they are intended to add to the Staff Regulations legal conditions for the existence of the disputed right then they have been laid down by an inefficient author for the purpose of amending the Staff Regulations. If their aim is to implement the Staff Regulations it must be found that they do so unlawfully, for they supplement them. The conditions of implementation relate to the conditions for exercising the disputed right and not to the conditions for its existence which must be sought only in the Staff Regulations.

With regard to the third submission the applicant points out that the argument has been put forward in case it is held that the first indent of the third paragraph of Article 3 of Annex VII to the Staff Regulations gives preferential treatment to the children of officials whose place of employment is in a country where their mother tongue is spoken and that it also favours academic education as against technical training.

That interpretation of the first indent of the third paragraph of Article 3 of Annex VII to the Staff Regulations would turn this provision into a rule conflicting with the provisions and principles referred to in the submission.

The unlawfulness of the rule is therefore implicit in the submission and the applicant can in fact avail himself of such unlawfulness under Article 184 of the EEC Treaty which does not have to be expressly referred to in order that it may be relied on, since it is applicable as of right.

The applicant takes the view that the defendant has conceded that, if the rules of the Staff Regulations relating to the disputed right were to be applied along the lines of the contested decisions, there would be discrimination between the children of officials who speak the language of their place of employment and have the nationality of the State where they are employed and the children of other officials.

The defendant in its rejoinder replies, with reference to the first submission, that it is evident from the letter of 26 March 1979 that the latter does not answer the substance of the complaint. The letter cannot therefore be regarded as coming from an authority which is not competent.

With regard to the second submission the defendant maintains the argument which it has asserted in its defence.

In addition it points out that the first indent of the third paragraph of Article 3 of Annex VII which was in force in 1976, makes the granting of the doubled maximum education allowance conditional on the absence, within a radius of 50 km from the place of employment, of a European school or an educational establishment working in the official's language. Now in Brussels there is both a European school and a British School of Brussels.

The argument advocated by the applicant in his reply comes up against the clear wording of the legal provisions applicable in this case.

With regard to the third submission the defendant observes that the applicant did not call in question the lawfulness of the first indent of the third paragraph of Article 3 of Annex VII to the Staff Regulations, as drawn up in 1976, until he delivered his reply. As provided for in Article 42 (2) of the Rules of Procedure no fresh issue may be raised in the course of proceedings. A plea of unlawfulness, like any other submission, cannot be made by implication.

B — Claim for damages

The applicant asserts that the measure of the material damage he has suffered in consequence of the unlawful refusal to grant him the education allowance up to the doubled maximum is the loss of interest at the rate of 8 %, that is the legal rate of interest in Belgium, on the amount of this allowance from the date on which it should have been paid to the date on which it will in fact be paid following the judgment in which the defendant is ordered to pay it.

The defendant states that the measure, the benefit whereof the applicant is claiming, does certainly not provide for payment of “a double education allowance” but for the reimbursement of costs over and above the maximum of the single education allowance, provided that documents are produced establishing that the costs fall within one of the categories of repayable expenses set out in Article 3 of the General implementing provisions.

The applicant has not proved that he has incurred such education costs. He has not therefore proved that he has suffered material damage and so cannot be awarded compensation for such damage.

The applicant replies that as a result of challenging the principle of the disputed right he has never been invited to produce documents in support of his repayable costs, but that he will do so at the first request of the defendant, if his application for annulment is held to be well founded and his right to the allowance is consequently acknowledged.

IV — Oral procedure

The parties presented oral argument at the sitting on 20 March 1980.

The Advocate General delivered his opinion at the sitting on 29 May 1980.

Decision

1. The action brought by an application of 21 June 1979 is for a declaration that the applicant is entitled to the education allowance up to the doubled maximum, within the meaning of the third paragraph of Article 3 of Annex VII to the Staff Regulations, while his daughter attends Leith's School of Food and Wine, a technical training establishment in London specializing in cookery. The applicant claims that the Court should annul the decision of 6 October 1978 refusing his request for this allowance and also the decision of 26 March 1979 rejecting his complaint against that refusal.

2. The applicant is a British national and an official of the Commission who is serving in Brussels. His daughter took the technical training course run by Leith's School of Food and Wine in her mother tongue during the 1976-1977 school year. It is common ground that the applicant fulfils the requisite conditions to be entitled to the education allowance.

3. The Commission has made two pleas that the action is inadmissible based respectively on noncompliance with time-limits and lack of legal interest in the proceedings. It contends in addition that the action is unfounded.

Admissibility

4. The Court's file shows that the applicant submitted a request on 7 March 1977 for the doubling of the education allowance. The aim of the request, which was based on the applicant's daughter's having enrolled at Leith's School of Food and Wine in London, was to show that the training provided by that establishment was classified as “higher education” within the meaning of the second indent of the third paragraph of Article 3 of Annex VII to the Staff Regulations. This request for the doubling of the education allowance was refused on 19 July 1977 by a letter of the head of the Individual Rights and Privileges Division on the ground that the education in question cannot be regarded as “higher education”.

5. The Commission rejected the complaint against that refusal on 27 February 1978. In that complaint the applicant requested the Commission to admit that he was entitled to the doubled maximum either on the basis of Article 5 of the General implementing provisions for granting the education allowance adopted by the Commission (Establishment of higher education) or on the basis of Article 4 of those provisions (Primary and secondary schools).

6. The applicant submitted on 16 June 1978 another request for the doubled maximum stating that there was no educational establishment working in English either in Brussels, which was his place of employment, or within 50 km of that city, comparable to the establishment attended by his daughter in London and that consequently the first indent of the third paragraph of Annex VII to the Staff Regulations, as worded at that time, applied. That provision provided that the maximum education allowance shall be double for “an official whose place of employment is at least 50 km from a European school or an educational establishment working in his language, provided that the child actually attends an educational establishment at least 50 km from the place of employment”.

7. This fresh request was rejected by a letter from the head of the Individual Rights and Privileges Division dated 6 October 1978 in which the latter emphasized that the conditions which have to be fulfilled for the application of the first indent of the third paragraph of Article 3 of Annex VII were not present in this case. The applicant received a letter dated 26 March 1979 from the Director-General for Personnel and Administration in answer to his complaint of 8 December 1978 against this fresh refusal stating that, since the complaint was identical to the preceding one, it could not be countenanced and that furthermore the arguments put forward had already been considered by the departments of the Commission but were not considered to justify the doubled maximum.

8. The Commission takes the view that in these circumstances the action directed against the decisions of 6 October 1978 and 26 March 1979 is out of time. It points out that the real object of the action is the annulment of the decisions which rejected the first request and the first complaint. Consequently the contested decisions merely confirm the decisions taken previously.

9. The applicant is of the opinion that the contested decisions cannot be regarded at all as confirmatory decisions. The two successive requests and also the complaints which followed them were based on different legal submissions. Furthermore, the second request was the subject of a separate examination by the Commission's departments as a result of a voluntary reopening of the matter by the administrative authority.

10. The applicant's arguments are not well founded. The first of the applicant's complaints was not based only on the argument that the training provided by Leith's School of Food and Wine was “higher education” but referred also to the possibility of the Commission's granting up to the doubled allowance on the basis of other legal arguments. In his second complaint the applicant merely developed the same legal arguments without putting forward any fresh facts.

11. In these circumstances the letters of the Commission in reply to the applicant's second request and his second complaint merely confirmed the earlier decisions and thus could not result in starting a fresh period to run in favour of the applicant.

12. The result of these considerations is that, since the applicant's complaint against the refusal to grant him the education allowance up to the doubled maximum was rejected on 27 February 1978, the action brought by the applicant on 21 June 1979 must be held to be out of time.

13. The action must therefore be dismissed as inadmissible.

Costs

14. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs. However, under Article 70 of the Rules of Procedure, in proceedings by servants of the Communities, institutions shall bear their own costs.

On those grounds THE COURT (First Chamber) hereby:

1 Dismisses the application as inadmissible.

2 Orders the parties to bear their own costs.