JUDGMENT OF 20. 11. 1980 — CASE 806/79 GERIN v COMMISSION
In Case 806/79
THE COURT (Second Chamber) composed of: P. Pescatore, President of Chamber, A. Touffait and O. Due, Judges, Advocate General: H. Mayras Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts and Issues
The facts of the case, the course of the procedure, the conclusions and the submissions and arguments of the parties may be summarized as follows:
I — Facts and written procedure
The applicant, Mr Gerin, an official in Grade-A 6, entered the service of the Commission in September 1967. His son, born on 18 December 1951, incurred in 1978 medical expenses, which are not disputed, amounting to BF 13926 and FF 53.80. On 7 February 1979 the applicant applied to the office responsible for settling claims in respect of the Joint Sickness Insurance Scheme for reimbursement of these medical expenses on the ground that his son, who was still a student, was still a dependent child.
The claims office in a note dated 20 February 1979 refused to refund these medical expenses, being of the opinion that the son could after 1 January 1978 no longer be regarded as a dependent child.
The applicant on 10 May 1979 lodged a complaint within the meaning of Article 90 of the Staff Regulations against this refusal, which was rejected by the Commission on 27 August 1979 by a decision upholding the view of the claims office.
The applicant acknowledged receipt of this decision rejecting his complaint on 10 September 1979 and brought an action against it before the Court on 23 November 1979.
The Commission took the view that the action was directed only against the decision rejecting the applicant's complaint of 27 August 1979 and therefore raised an objection of inadmissibility on the ground that the contested decision was not an act against which proceedings could be taken, since it merely confirmed the original decision dated 20 February 1979 adversely affecting the official.
By an order of 31 January 1980 the Court (Second Chamber) ordered that a decision on the objection of inadmissibility should be reserved for the final judgment.
The Court (Second Chamber) on hearing the report of the Judge-Rapporteur and the views of the Advocate General, decided to open the oral procedure without any preparatory inquiry.
II — Conclusions of the parties
The applicant claims in his application that the Court should:
“— Admit this application and, after making an order for compliance with the legal formalities declare it to be well founded; — Consequently declare that the Commission's decision of 27 August 1979 contravenes the provisions of Article 3 of the Rules on Sickness Insurance for Officials of the European Communities and Article 2 (2) of Annex VII to the Staff Regulations; — Consequently declare that the applicant is entitled to reimbursement from the Commission of medical expenses in the sums of BF 13926 and FF 53.80, and to reimbursement of the premium of BF 2000 paid to a Belgian mutual insurance fund to which the applicant's son was obliged to become affiliated by reason of the Commission's refusal to refund the said medical expenses, together with interest fixed by the Court and the costs of representation ; — Fix the applicant's counsel's fees at BF 45000”.
In his reply to the objection of inadmissibility the applicant claims that the Court should:
“— Take note that the applicant maintains the claim for relief put forward in his application and, in so far as may be necessary, give specific directions hereafter; — Consequently annul the decision of the office responsible for settling claims of 20 February 1979 and the Commission's decision of 27 August 1979”.
The defendant contends in its objection of inadmissibility that the Court should :
“— On receipt of the defendant's observations in reply close the written procedure and decide, if deemed appropriate, that there are no grounds for opening the oral procedure; — Dismiss the application as inadmissible; — Order the applicant to pay the costs; — Decide, as it thinks best, as to the applicant's claim that his counsel's fees be fixed at BF 45000”.
The defendant contends in its defence that the Court should:
“— Dismiss the application as inadmissible and in any event as unfounded; — Order the applicant to pay the costs; — Subject to all necessary reservations”.
III — Summary of the submissions and arguments of the parties.
A — Admissibility
1. Admissibility of the application for annulment
The Commission has raised an objection that Mr Gerin's application is inadmissible on the ground that the decision of 27 August 1979 against which the application has been brought is not actionable.
The Commission in fact takes the view that that decision, rejecting the applicant's complaint against the decision of 20 February 1979, is not capable of giving rise to legal proceedings. It is true that the decision of 27 August 1979 is a necessary preliminary, but only the decision of 20 February 1979 refusing reimbursement of the medical expenses incurred in respect of the applicant's son is the decision adversely affecting the applicant. Consequently it is the latter decision which should have been made the subject of the application to the Court.
When the applicant defines the act adversely affecting an official as an act attended by consequences, in the view of the Commission, he fails to understand the case-law of the Court and even the concept of an act adversely affecting an official, which is not an act attended by consequences but an act capable of directly affecting a particular legal situation, so that a decision rejecting a complaint is different from an act affecting the situation of the person concerned and subsequent thereto.
The Commission also maintains that the rejection of the complaint is only “confirmatory” and is not therefore actionable; and it states that “it stands to reason that the reply to the complaint, a confirmatory act, cannot subsist if the act which it confirms is annulled”.
The applicant maintains that the decision of 20 February 1979 is not the act adversely affecting him but the “initial” act adversely affecting him, which was confirmed by the decision of 27 August 1979. Consequently the latter decision must be assimilated to an act adversely affecting him.
This argument is confirmed by the wording of Article 91 (1) of the Staff Regulations which, whilst it does not refer exclusively to the initial act adversely affecting an official, does not expressly exclude the repeated act adversely affecting him.
Thus in the opinion of the applicant there are in fact two decisions adversely affecting him. But if the first decision were annulled the second would continue to exist whereas the annulment of the second decision would necessarily result in the annulment of the first. This proves the irrelevance of the Commission's argument which deprives the decision of 27 August 1979 of any legal effect and is not compatible with Article 90 of the Staff Regulations either, for, in that case, the Commission's decision rejecting the complaint is not an act adversely affecting him “whereas any note drafted by any junior official in the service of the Commission would have this legal effect but above all would have priority over the subsequent written measure of the Commission confirming or annulling that note”.
2. The admissibility of the application where the Court has unlimited jurisdiction
The defendant considers that the applicant, in order to overcome the obstacle of the inadmissibility of his application for annulment, may be tempted to argue that the purpose of his application is compensation which falls within the Court's unlimited jurisdiction, but since this second head of claim is formulated only as a consequence of the first and since that head of claim is inadmissible “there is no doubt whatever that the inadmissibility of the first head of claim can only entail — as a consequence — the inadmissibility of the second”, especially as the Court of Justice (judgment of 10 December 1969 in Case 32/68, Giuseppe L. V. Graselli v Commission of the European Communities [1969] ECR 505 and judgment of 12 December 1967 in Case 4/67, Anne Muller (née Collignon) v Commission of the European Communities [1967] ECR 365) has recognized that if a claim for compensation was closely connected with the application for annulment the former would be inadmissible if the latter was. In this case the claim for “reimbursement” “formulated in consequence” could not be more “closely connected” with the first head of claim concerning legality.
The Court also held in its judgment of 15 December 1966 in Case 59/65, Heinrich Schreckenberg v Commission of the EAEC [1966] ECR 543, that a party may not by means of a claim for compensation “attempt to obtain a result similar to that of the annulment of the act adversely affecting an official if the application for its annulment is inadmissible”.
Consequently it is of no avail for the applicant to maintain that at least the second head of claim, the aim of which is alleged to be compensation, is admissible.
The applicant points out that in his view his application for annulment is admissible and maintains that the questions of the admissibility of the second head of claim, that for compensation, does not arise.
3. The admissibility of the claim for reimbursement of the premium paid to a Belgian mutual fund
The Commission takes the view that, since the claim for reimbursement of the premium of BF 2000 paid to a Belgian mutual insurance fund has been made for the first time before the Court and since it has not been preceded by a request to the defendant under Article 90 (1) of the Staff Regulations or by a complaint which has been rejected either, it does not comply with the statutory requirements laid down in Article 91 (2) and must therefore be rejected as inadmissible.
The applicant is of the opinion that this case is concerned not with a fresh claim but with the logical consequence of the pecuniary effect of the Commission's refusal to regard his son as a dependent child. Consequently this is simply an enlargement of the original claim and is thus validly formulated.
B — Substance
The essential issues between the parties are the interpretation of the provisions applicable, the objectives of the rules and the importance of the Commission's proposal to amend the wording of Article 2 (2) of Annex VII to the Staff Regulations at the 58th meeting of the Staff Regulations Committee on 12 July 1979 (see p. 16).
1. Interpretation of the applicable texts
The applicant, taking the view that insurance cover for sickness is based, in accordance with Article 72 (1) of the Staff Regulations, on the “Rules on Sickness Insurance for Officials of the European Communities” (hereinafter referred to as “the Rules”), points out first that Article 3 (2) of the Rules provides that the persons covered by a member's insurance shall be “dependent children within the meaning of Article 2 (2) of Annex VII to the Staff Regulations”, which states that “dependent child means the legitimate, natural or adopted child of an official, or of his spouse, who is actually being maintained by the official”.
It is apparent from that provision that children over 26 years of age are not in any way disqualified from reimbursement of medical expenses provided that they are dependent on the official. The Commission itself has expressly acknowledged by its letter of 23 November 1977 that the applicant's son is a “dependent child” and, during the period up to 31 July 1979, by granting the applicant the tax abatement for a dependent child.
The applicant maintains that even the wording of Article 72 of the Staff Regulations, which refers expressly to Article 2 of Annex VII, “provides unequivocally that an official, his children and other dependants are insured against sickness”. But in the said Article 2 of Annex VII to the regulations only paragraph (2) defines the concept of “dependent child” whereas paragraphs (3) and (5) are expressly concerned with family allowances and not with sickness insurance.
The defendant, after drawing attention to the three provisions applicable to this case, first points out that the Rules constitute a provision implementing Article 72 of the Staff Regulations and that “in accordance with the general principle of the status of delegated legislation these Rules cannot therefore enlarge the field of application of the said Article 72 or, in particular, result in the classification among the persons covered by the sickness insurance scheme of categories of persons who do not possess the qualifications required by the Staff Regulations for receiving the benefit of cover under this scheme”.
The Commission is of the opinion that the applicant's argument is incompatible with the texts which have been quoted. In fact Article 72 of the Staff Regulations refers to the whole of Article 2 of Annex VII; although paragraph (2) of that article in fact defines a dependent child as a child who is actually being maintained by the official, paragraph (3) defines such a child as one who is not over 26 years of age, unless he has caught a serious illness or has been disabled and prevented from earning a livelihood.
Consequently the applicant is wrong to rely on Article 3 (2) of the Rules which refers only to Article 2 (2) of Annex VII to the Staff Regulations because, by so doing, he gives an implementing provision of the Staff Regulations a larger field of application than that of the basic provision and thus is in breach of the principle of the relative status of primary and delegated legislation.
2. The objectives of the applicable provisions viewed as a whole.
According to the applicant the Commission's argument would mean that only children in respect of whom an allowance is received would be insured and Article 72 of the Staff Regulations certainly does not provide for that. Furthermore the applicant rejects the internal memorandum of August 1975 relied on by the Commission in order to ascertain the objectives of the system on the ground that the memorandum does not have priority over the Rules and that it is a wrong interpretation of the latter, and at the same time he rejects the texts of the Rules prior to 1974 and subsequent to 1979 on the ground that they do not apply to the case since they were not in force when the facts occurred.
The Commission maintains on the other hand that extending the reimbursement of medical expenses to children over 26 years of age would not be in keeping with the intention of the authors of the Rules either. The evidence on which it relies is the internal memorandum of August 1975 drawing attention to the fact that Article 3 (2) of the Rules is applied within the meaning of Article 2 (2) of Annex VII to the Staff Regulations and in accordance with the conditions of paragraphs (3) and (5) of the latter, principles to which attention was also drawn by the “Practical Guide on the Reimbursement of Medical Expenses” in 1978. It states in connexion with these texts that they are not applicable legal rules but simply evidence snowing that the intention or the authors of the rules has not changed. It also relies on the wording of the Rules prior to 1974 and subsequent to 1979 in which Article 3 refers to the whole of Article 2.
Consequently it is “pointless for the applicant to attempt to take advantage of a fortuitous lack of textual precision contained in the wording of the Rules” in force since the objective of the Rules is at variance with this imprecision. Such a view has been explained by Mr Advocate General Reischl in his opinion of 9 November 1978 in Case 140/77, Teunis Verhaaf v Commission of the European Communities [1978] ECR 2130 in which he stated :
“... I do not consider as appropriate a virtually automatic application of the provisions of the Staff Regulations which adheres slavishly to the wording and in other words disregards their purpose ...”
3. The scope of the “amendment” to Article 2 (2) of Annex VII to the Staff Regulations proposed by the Commission
The applicant maintains that the Commission, “fully aware of the weakness of its argument”, advocated an amendment to the wording of Article 2 (2) of Annex VII to the Staff Regulations at the 58 th meeting of the Staff Regulations Committee on 12 July 1979 at Luxembourg by proposing the following addition to the paragraph:
“... conferring a right to the dependent-child allowance”.
The legal department of the Commission considered that this addition was a useful clarification to include in the paragraph and the applicant therefore infers from this a contrario that the Commission is itself aware that the wording in force when the facts occurred is inconsistent with its own argument.
With reference to the Commission's regrets concerning the production of a document which it classifies as “internal” the applicant submits that the minutes of the 58th meeting of the Staff Regulations Committee of 12 July 1979 are not an internal document because thev were circulated among members of the staff without being marked “confidential”.
Furthermore, according to the applicant the interpretation of the note of a member of the staff delegation by the Commission is “wrong” and “incomplete”, for this delegate considered that it was sufficiently clear that Article 2 (3) of Annex VII applied only to the allowance and that the effect of the addition proposed by the Commission would be that only children in respect of whom the official received a dependent-child allowance could be covered by insurance.
The applicant infers from this statement that a contrario, without this addition, there would be no restriction and therefore that all children, even if allowances are not granted in respect of them, are persons covered by members' insurance; thus “all the members of the committee were and remain convinced that the initial provision covers children with no limitation but that they must in fact be dependent”.
The Commission regrets that the applicant has produced an internal administrative document. Its production is all the more purposeless as it is not of such a kind as to support the applicant's argument because the said minutes indicate that the purpose of the Commission's proposal was not to modify the meaning of the provision referred to but simply to make a “helpful clarification”.
Furthermore the Commission takes the view that the delegate's statement — on which the applicant relies — relates to that delegate alone and that, on the other hand, there is no evidence that all the members of the committee “shared this view”.
Finally the Commission goes on to say that in addition the applicant's argument — “which is contrary not only to the letter but also to the spirit of the applicable legal rules” — also runs counter to the national systems of social security since a brief study of comparative law shows that, with the exception of Luxembourg and the Netherlands, medical expenses are reimbursed only up to the age of 25 and 26 in the other Member States of the Community”.
IV — Oral procedure
At the sitting on 26 June 1980 the parties presented oral argument and answered questions put to them.
The Advocate General delivered his opinion at the sitting on 2 October 1980.
Decision
1. By application lodged at the Court Registry on 23 November 1979, Mr Gerin, an official of the Commission of the European Communities, brought an action for the annulment of the Commission's decision of 27 August 1979 whereby the Commission refused to refund him medical expenses incurred in respect of his son, on the ground that the decision contravenes Article 2 (2) of Annex VII to the Staff Regulations and Article 3 of the Rules on Sickness Insurance for Officials of the European Communities (hereinafter referred to as “the Rules”) adopted in accordance with the principles laid down in Article 72 of the Staff Regulations, and consequently for a declaration that the applicant is entitled to reimbursement of medical expenses in the sums of BF 13926 and FF 53.80 and also to reimbursement of the premium of BF 2000 paid to a Belgian mutual insurance fund which the applicant's son was forced to join by reason of the Commission's refusal to refund the said medical expenses because of his age.
Admissibility of the application
2. The Commission submits that the application is inadmissible because the decision of 27 August 1979 which is the reply to the applicant's complaint against the decision of the office responsible for settling claims of 20 February 1979 is not an act capable of adversely affecting an official since the said reply is only an act simply confirming the decision of the said office of 20 February 1979. It also submits that the further application for reimbursement of the premium paid to a Belgian mutual insurance fund is also inadmissible, because it was not preceded by a request to the Commission on the basis of Article 90 (1) of the Staff Regulations or of a complaint within the meaning of Article 90 (2) either; the latter request does not therefore comply with the conditions provided for in Article 91 (2) of the Staff Regulations.
3. As far as concerns the admissibility of the application for annulment it is advisable to look first into the question whether the form sent by the office responsible for settling claims is a decision adversely affecting an official which could simply be confirmed by the Commission's decision of 27 August 1979.
4. For the initial decision to be capable of being described as an act adversely affecting an official within the meaning of Article 90 (2) it must have been specifically adopted by the appointing authority or on its behalf pursuant to Article 16 of the Rules.
5. However, the unsigned printed form of 20 February 1979, containing a laconic handwritten form of words merely stating that “According to the personnel individual record sheet your son Michel Gerin has not been regarded as a dependent child since 1 January 1978”, that is to say without the merest statement of reasons, cannot be regarded as an express manifestation of an administrative intention which creates legal effects and is capable of being an “act adversely affecting an official” within the meaning of Article 90 (2).
6. Consequently the application, which challenges the reasoned decision of the appointing authority of 27 August 1979 adversely affecting him is not directed against a purely confirmatory decision. The application is therefore admissible.
7. The claim for reimbursement of the premium of BF 2000 paid to a Belgian mutual insurance fund is only the logical consequence of the Commission's refusal to continue to reimburse the medical expenses incurred in respect of the applicant's son because he was over 26 years of age. This claim is therefore admissible in so far as it forms part of the principal claim.
Substance
8. The applicant, relying primarily on Article 3 (2) of the Rules, submits that he is entitled to a refund of the medical expenses incurred in respect of his son who is over 26 years of age, because the latter is still dependent on him, that the Commission itself has already acknowledged that his son is a “dependent child” by granting him the corresponding tax abatement, and that the adoption of the Commission's argument, would be tantamount to insuring against sickness only those children in respect of whom an allowance has been granted, whereas the provision in force when the facts occurred provides only that they should be “dependent” without specifically mentioning any age.
9. In order to deal with this line of argument the applicable provisions should be considered.
10. Under Article 72 (1) of the Staff Regulations:
“(1). An official, his spouse, his children and other dependants within the meaning of Article 2 of Annex VII are insured against sickness subject to rules drawn up by agreement between the institutions of the Communities after consulting the Staff Regulations Committee”.
11. As far as concerns the concept of a dependent-child Article 2 of Annex VII provides as follows :
“(2). ‘Dependent child’ means the legitimate, natural or adopted child of an official, or of his spouse, who is actually being maintained by the official.
(3). The allowance shall be granted:
a) automatically for children under 18 years of age;
b) on application, with supporting evidence, by the official for children between 18 and 26 who are receiving educational or vocational training.”
12. Article 3 (2) of the Rules adopted in implementation of Article 72 (1) of the Staff Regulations provided at the time that the persons covered by a member's insurance against sickness were to be :
“dependent children within the meaning of Article 2 (2) of Annex VII to the Staff Regulations”.
13. The applicant's argument is based on the fact that Article 3 (2) of the Rules refers only to Article 2 (2) of Annex VII, so that any child “who is actually being maintained by the official” without any age-limit is to be regarded as a “dependent child”.
14. As the Commission has argued with good reason this argument cannot be upheld.
15. In fact the system established by the Staff Regulations has the same conditions for the grant of the dependent-child allowance and of sickness insurance for dependent children. That is the meaning of the reference in Article 72 to Article 2 of Annex VII viewed as a whole. The Rules, in so far as they are provisions implementing the Staff Regulations, were not capable, by means of an incomplete reference to the said Article 2 of Annex VII, of abolishing one of the conditions laid down by that article, namely that appearing in paragraph (3), which was not referred to in the provision in force when the facts occurred. Consequently the age-limit laid down by Article 2 of Annex VII also applies to sickness insurance for children.
16. It is therefore apparent that the applicant was not entitled to claim a refund of the medical expenses incurred in respect of his son at a time when the latter was over the age of 26 laid down in Article 2 of Annex VII or of the reimbursement of the premium of BF 2000 paid to a Belgian mutual insurance fund.
Costs
17. Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.
18. However, under Article 70 of the Rules of Procedure in proceedings by servants of the Communities, institutions are to bear their own costs.
On those grounds, THE COURT (Second Chamber) hereby:
1 Dismisses the application;
2 Orders the parties to bear their own costs.