C-46/71
ECLI:EU:C:1972:50
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JUDGMENT OF THE COURT (SECOND CHAMBER) 7 JUNE 1972<apnote>1</apnote>
Georg Brandau v Council of the European Communities
Case 46/71
Summary
1. Officials — Remuneration — Family allowances — Treatment of a person as a dependent child — Rejection of request — Special reasoning not compulsory ( Staff Regulations of Officials of the European Communities, Annex VII, Article 2(4) )
2. Officials — Remuneration — Family allowances — Treatment of a person as a dependent child — Discretion of the administration — Foundation ( Staff Regulations of Officials of the European Communities, Annex VII, Article 2(4) )
3. Officials — Remuneration — Family allowances — Treatment of a person as a dependent child— Objective criteria determined by the institutions — Discretion of the administra tion — Exercise — Compatibility with equal treatment of officials ( Staff Regulations of Officials of the European Communities, Annex VII, Article 2(4))
1. Article 2(4) of Annex VII to the Staff 3. Although, in applying Article 2(4) of Regulations requires a special state Annex VII to the Staff Regulations, ment of reasons to be given only for a each institution of the Community can decision allowing a request for a person lay down in advance and in general to be treated as if he were a dependent terms the objective criteria which it child. In the event of rejection the intends to observe, such a statement administration is not therefore com cannot prejudge the exercise, in each pelled to give reasons for its decision. individual case, of the discretion con ferred on the administration by the 2. The words used in Article 2(4) of Staff Regulations themselves. Annex VII it clear that those who This discretion, which is essential for drafted the regulations intended to taking account of the manifold un leave the administration some discre foreseeable facts peculiar to each case, tion in making a fair appraisal of the is not incompatible with the general facts and circumstances adduced, in principle of equal treatment for officials. each case, in support of a request for assimilation.
In Case 46/71
Georg Brandau, an official of the Secretariat-General of the Council of the Euro pean Communities, Brussels, living at Tervuren, 1 Evenaarsbinnenhof, represented 1 — Language of the Case: French.
JUDGMENT OF 7.6.1972 — CASE 46/71
and assisted by Michel van Doosselaere, Advocate before the Cour d'appel, Brussels, with an address for service in Luxembourg at the Chambers of Jacques Loesch, 2 rue Goethe,
applicant,
v
Council of the European Communities, Brussels, represented by its Legal Ad viser, Gonzague Lesort, acting as Agent, with an address for service in Luxem bourg at the office of its Legal Adviser, Emile Reuter, 4 boulevard Royal,
defendant,
Application for annulment of the implied decision rejecting the request for family allowances submitted by the applicant on 26 March 1971 and, in the alternative, for annulment of the express decision of 16 July 1971 rejecting that request,
THE COURT (Second Chamber)
composed of : H. Kutscher, President of Chamber, A. Trabucchi (Rapporteur) and P. Pescatore, Judges,
Advocate-General: K. Roemer
Registrar : A. Van Houtte
gives the following
JUDGMENT
Facts and law
I — Summary of facts and proce Regulations of Officials. In support of his dure request he listed the increased expense which he was called upon to bear in The facts and procedure may be sum respect of his 83-year-old mother, who had marized as follows: on 26 March 1971 hitherto been domiciled in Austria but the applicant, who is an official in Grade whom he had been obliged to lodge, in A 3, Step 6, at the Secretariat-General of view of her state of health, at the Résidence the Council of the European Communities, Maria Assumpta at Dilbeek in Belgium, submitted a request for his mother to be which is managed by the Soeurs Hospita treated as a dependent child on the basis of lières de Saint-Joseph and is approved by Article 2(4) of Annex VII to the Staff the Belgian Ministry of Health. It appears
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from additional information supplied by Regulations, in Article 2(4) of Annex the applicant to the administration con VII to the Staff Regulations and in the cerned that in Austria his mother drew a provisions of the decision of the pension of 1854 schillings which at the Councils of 2 April 1964 laying down material time was equivalent to 3541 the conditions for implementation of Belgian francs per month. the Staff Regulations governing the As the Secretariat-General had not replied treatment of a person as a dependent to his request within the period of two child; months following 26 March 1971, Mr Brandau on 26 July 1971 submitted to the 4. In consequence, rule and adjudge that Court an application for annulment of the the defendant is required to recognize implied decision rejecting the request that the applicant is entitled to have his which was to be assumed in view of the mother treated as a dependent child absence of reply. with effect from 1 December 1970, or On 19 July 1971 the Secretariat-General at least with effect from 6 March 1971, of the Council communicated to the and on account of this to grant him all applicant its express decision dated 16 July benefits of whatever kind arising from 1971 stating the grounds for the rejection the application of the Staff Regulations, of the request referred to above. In the its Annexes and of the general provi alternative and in so far as necessary the sions for its implementation; applicant also contests that decision. Having heard the report of the Judge- 5.
In so far as necessary and in the Rapporteur and the views of the Advocate- alternative, declare null and void the General, the Court (Second Chamber) express decision dated 16 July 1971 and decided to open the oral procedure without communicated to the applicant on 19 any preparatory inquiry. July 1971 rejecting the applicant's The parties presented oral argument at the request ; hearing on 8 March 1972. The Advocate-General delivered his Order the defendant to pay the costs. opinion at the hearing on 18 May 1972. The defendant contends that the Court
should: II — Conclusions of the parties — declare the application to be unfounded ; The applicant claims that the Court should : — order the applicant to pay the costs in 1. Declare and, in so far as is necessary, so far as they are not chargeable to the rule that, on expiry of the period of defendant under the provisions of two months from 26 March 1971, the Articles 70 and 95(1) of the Rules of day on which the applicant's request Procedure. was lodged, the defendant by implica tion rejected his request ; III — Submissions and arguments of
2. Declare null and void the implied the parties decision rejecting the applicant's request for his mother to be treated as a The submissions and arguments of the dependent child for the purposes of the parties may be summarized as follows: grant of the family allowance provided for in the Staff Regulations of Officials As regards the admissibility of the applica of the European Communities; tion, the defendant states that it was lodged in compliance with the periods and 3. Declare and, in so far as necessary, rule forms prescribed and that this applies both that the applicant fulfils the conditions to the main conclusions and to the alterna laid down in Article 67 of the Staff tive conclusions set out therein.
JUDGMENT OF 7.6.1972 — CASE 46/71
As regards the substance argument that the power conferred by that provision is a discretionary one. The A — Submissions relied on in respect of Decision of the Council of 2 April 1974 the implied decision of rejection cannot be compared with a mere ex planatory circular containing provisions 1. Infringement of essential procedural which may be applied at will. The man requirements datory nature of the decision is clear from its wording. The wording of Article The applicant contends that, not being a 2(4) of Annex VII does not necessarily 'special reasoned' decision, the implied imply an unlimited discretion. decision of rejection infringes the proce In the alternative the applicant comments dural requirements laid down in Article that, even if the Court were to hold that, 2(4) of Annex VII to the Staff Regulations. in the circumstances of the case, the The defendant argues that the exceptional appointing authority enjoyed discretionary nature of a decision to treat a mother as powers, the Court could nevertheless if she were a dependent child means that examine the substance of the request by not to treat her as such is the general rule. carrying out a 'minimum review' relating The obligation for the decision to be to the existence of grounds for the request special and reasoned is linked with the and whether the facts are as stated. exceptional nature of such treatment. As The defendant denies that an official has an the decision not to accord this treatment individual right to have his mother con is the rule it does not require any special sidered as a dependent child.
Such a claim procedure. would be quite out of keeping with the The applicant replies that the fact that the exceptional nature of such treatment. The right to a family allowance, which Article use made in the main provision of the 2(4) of Annex VII to the Staff Regulations words 'may' and 'exceptionally' demon confers on an official, is exceptional is no strates that the provision endows the justification for departing from Article 25 administration with discretionary powers, of the Staff Regulations under which any which does not affect the power of the decision relating to a specific individual Court to review the legality of the decision, and adversely affecting an official shall not as regards the exercise of the discre state the reasons on which it is based. tion but as regards compliance with the The defendant replies that the applicant's mandatory rules to which acts of the contention would risk setting at nought administration are subject. As the decision the second indent of Article 91(2), which of the Council of 2 April 1964 (the text provides for an implied decision of rejec of which is annexed to the statement of tion. defence) applies the basic principle laid down in the said Article 2, its object could
2. Submission concerning the infringe only be to prescribe general and non- ment of Article 67 of the Staff Regula mandatory conditions for the submission tions of Officials, Article 2(4) of of a request; above all it could not trans Annex VII to the Staff Regulations form a discretionary power into a con and of Article I of the Decision of ditional one. On the question of assimila the Council of 2 April 1964 laying tive treatment, the power is conditional down the conditions for treatment of a upon compliance with the minimum con person as a dependent child ditions laid down by the Staff Regulations; but over and above these limits the au The applicant states that, since he satisfied thority's power is discretionary and it is the objective criteria set out in Article 2(4) always free to grant or refuse a request. of Annex VII, the defendant ought to have The conditions laid down in the Staff allowed his mother to be treated as a Regulations and clarified in the Decision
dependent child. The fact that the condi of the Council are, accordingly, essential tions for the application of Article 2(4) but not exhaustive. of Annex VII are specified defeats the
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3. Submissions alleging infringement of person to be treated as a dependent child the general principle of equal treat must bear to the official's remuneration. ment for officials In the present case, the second subpara graph of the said paragraph (4) does not The applicant contends that the general apply, because the applicant fulfils the principle of equal treatment requires that conditions of the first subparagraph and once an official satisfies the objective condi has produced proof that he devotes a sum tions prescribed, the administration must, equal to at least 20% of his taxable re as far as these conditions are concerned, numeration to the upkeep of his mother. treat him like any other official in the same The second paragraph of the Decision of
situation. In doing otherwise in the present 16 July 1971 was, therefore, wrong in case, the defendant acted ultra vires as applying the abovementioned provision regards the powers conferred on it by the by fixing the cost at Bfrs 6360 per month. Staff Regulations. The amount of help provided or to be The defendant, whilst recognizing that the provided by the person responsible for principle of equality also applies to the maintenance is a question of private law exercise of the power at issue in this case, and, consequently, does not come within contends that the administration may take the purview of the administrative au account of imponderable factors of a thority. Furthermore, the wording of the personal and social nature which call for a provisions concerned does not require the different reply from one case to another. extent of the maintenance obligation to be The applicant contends that the fact that proved. the discretion involved is limited does not Even on the supposition that the admini permit the administration to subject the strative authority had such a power of rejection or the grant of assimilation to discretion, rejection in the circumstances conditions other than those established on of this case of the request for a family the basis of objective considerations. allowance on the basis of an assessment of The defendant comments that the applicant, the ratio between the outgoings of the without claiming that he was in this case person responsible for maintenance and the victim of a discriminatory measure, the extent of the maintenance obligation is has merely tried to demonstrate that a the result of a factual error.
Under both discretionary power or the failure to state German and Belgian civil law, the amount the reasons for the implied decision of of maintenance assistance is calculated on rejection may lead to discrimination. the basis both of the degree of need of the person to be maintained and of the re B — Complaints concerning the express sources and financial standing of the person decision of rejection responsible. In the light of the factual considerations in the present case the sum The applicant contends that, in so far as of Bfrs 21 000 to 22 000 per month the reply of the Council of 16 July 1971 devoted to the maintenance of the ap is regarded as a decision rejecting his plicant's mother is not only fair and proper request it is, for the reasons set out in the but essential to enable the applicant to second and third submissions of the appeal carry out the obligation to maintain her. against the implied decision of rejection, The defendant does not deny that certain null and void. conditions referred to in the implementing He claims, moreover, that the decision of Decision of 2 April 1964 and relating to 16 July 1971 is also illegal because its the person proposed for treatment as a statement of reasons is incorrect in law dependent child are fulfilled by the appli
and in fact. That decision reversed the cant's mother. On the other hand, it order of the provisions of Article 1(4) of states that a condition personally concern the Decision of the Council of 2 April 1964 ing the official requesting this treatment in that it makes a general rule of the supple has not been satisfied. Paragraph (4) of tive criterion which prescribes the propor the decision lays down the principle that tion which the cost of maintaining the the official applying for the assimilation
JUDGMENT OF 7.6.1972 — CASE 46/71
shall in fact devote to the maintenance of the direct evidence provided for under the the person in respect of who the applica first subparagraph, the cost to be borne is, tion is made not less than 20% of his in accordance with the second sub taxable salary. The method of applying paragraph, presumed. Thus, direct evidence the principle enunciated in the second and a legal presumption are, in fact, two subparagraph is based on the presumption alternative methods of proving the calcula that the cost of maintaining a person is tion of the expenditure involved.
Bfrs 6360. If the necessary cost is, actually, In these circumstances, the only question in excess of this flat amount, the applicant to be resolved is whether the documents may rebut the presumption by the sub produced by the applicant suffice to mission of evidence for consideration by demonstrate that the cost of maintaining the appointing authority, which alone is his mother, subject to deduction of the competent to decide whether the evidence latter's own resources, represents more than is or is not sufficient.
In particular, the 20% of the taxable income of the applicant. administration has the right to have In this connexion there can be no doubt regard to the obligations which, under the as to the probative character of the docu law of his country, the applicant is called ments supplied by the applicant. upon to fulfil. In the absence of rules laid The defendant objects that a presumption down by Community law, reference to is not on the same level as direct evidence national law and decided cases forms a and that, in order to satisfy the condition valid basis for determining the facts. laid down under the second subparagraph In the present case the considerations of of paragraph (4), it is not enough to fact drawn to the attention of the admini
provide evidence of any kind of expendi stration are insufficient proof that the ture for the benefit of the maintained amount devoted to maintenance of the person. In order to do so it is necessary to applicant's mother is fair and proper. estimate the costs 'involved' provided for The applicant replies that the explanation in the basic provision. On the basis of that given by the defendant of paragraph (4) criterion the defendant contends that the is based on the a priori belief that the expenditures claimed by the applicant administration's powers are discretionary. exceeded the sum laid down in sub The method of proof by presumption paragraph 2 of Article 1 (2) of the Decision assumes the absence of direct evidence. concerned and that the documents sub If direct evidence exists, there is no longer mitted by the applicant, although un any need for proof by presumption. The doubtedly genuine, do not demonstrate use of the presumption introduced by the that the said outgoings were incurred to second paragraph of Article 4 of the pay for what can be regarded as 'normal' Decision of the Council is important, maintenance, since these outgoings vastly especially when the person proposed for exceeded the applicant's obligation under treatment as a dependent child lives with national law.
the official and his family. In addition, the defendant has produced a The applicant contends that the phrase 'in list of private old people's homes in the the absence of evidence to the contrary' province of Brabant from which it is clear, which appears in the second subparagraph according to the defendant, that the home of paragraph (4) must be taken in con selected by the applicant for his mother junction with the first subparagraph, which applies charges far higher than those means that, if the official does not produce generally prevailing in the region.
Grounds of judgment (a) Submission concerning infringement of an essential procedural requirement
1 The applicant complains that the defendant infringed an essential procedural re quirement laid down in Article 2(4) of Annex VII to the Staff Regulations of
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Officials in that the implied decision rejecting his request for family allowances was not a 'special reasoned decision'.
2 Article 2(4) of Annex VII to the Staff Regulations requires a special statement of reasons to be given only for a decision allowing a request for a person to be treated as if he were a dependent child.
3 This express provision is based on the exceptional character, emphasized by the wording of the provision concerned, of such treatment and by the need to make it possible for the use made by the administration of the powers available to it in this connexion to be more easily reviewed.
4 It is not, therefore, possible to read into the provision an obligation for the ad ministration, in the event of rejection, to take a special reasoned decision.
5 This submission is, in consequence, unfounded.
(b) The submission concerning infringement of Article 2(4) of Annex VII to the Staff Regulations of Officials and of Article 1 of the Decision of the Council of 2 April 1964
6 The applicant contends that once the conditions provided for under Article 2(4) of Annex VII to the Staff Regulations are satisfied, the institution is obliged to grant the treatment requested.
7 According to the defendant, the provision relied upon by the applicant leaves the administration a margin of discretion in dealing with each individual case.
8 The actual words used in Article 2(4) of Annex VII make it clear that those who drafted the regulations intended to leave the administration some discretion in appraising the facts and circumstances adduced, in each case, in support of a request for assimilation.
9 Such a margin of discretion is justified by the considerations of natural justice to which the administration must have regard in exercising the special power provided for under the provision in question and by the resultant need to judge each case on its merits.
10 Nevertheless, in support of his contention, the applicant refers to the decision of the Council of 2 April 1964 laying down objective criteria for determining the conditions on which a person may be treated as a dependent child.
JUDGMENT OF 7.6.1972 — CASE 46/71
11 Although, in applying Article 2(4) of Annex VII to the Staff Regulations, each institution of the Community can lay down in advance and in general terms the objective criteria which it intends to observe, they cannot be regarded as other than a statement of minimum requirements, applicable in all cases, without prejudice to the exercise, in each individual case, of the discretion conferred on the admin istration by the Staff Regulations themselves.
12 This discretion on the part of the administration, which is essential to enable it to take account of the manifold unforeseeable facts peculiar to each case, is not in compatible with the general principle, relied on by the applicant, of equal treat ment for officials.
13 This general principle does not mean that, in applying the provision concerned, the administration must merely carry out a mechanical application of predeter mined rules and criteria.
14 Such an interpretation would conflict with the need for evaluation of the often complicated factual considerations peculiar to each individual case.
15 In the alternative, the applicant requests the Court to consider whether the ad ministration has made a proper use of its discretion.
16 During the present proceedings, the defendant justified its rejection of the appli cant's request on the ground that the home which the latter had chosen for his mother charged much higher fees than the average charged by private homes in the same district and that the applicant had not proved that it was necessary and proper to place his mother in such a home.
17 Without prejudice to consideration of the extent of the applicant's legal obligation to maintain his mother, and with due regard in particular to any need for special medical attention which the state of health of the dependent person may require, it may be stated that, in the light of the relevant information supplied in this case by the two parties, the reasons given by the defendant in support of its refusal do not appear to be wholly without foundation.
18 The applicant has not produced the required evidence that the payments made for his mother's benefit were necessary.
19 In these circumstances, when the defendant refused to accede to the request for assimilation submitted by the applicant, it did not exceed the margin of discretion conferred upon it by Article 2(4) of Annex VII to the Staff Regulations of Officials.
20 It follows from all the above considerations that this submission is unfounded.
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(c) The application for annulment of the express decision rejecting the request
21 Finally the applicant claims annulment of the decision contained in the reply of the Council of 16 July 1971 stating the reasons for rejection of the request for assimilation.
22 In support of his claim, the applicant confines himself to referring to the submis sions made against the implied decision rejecting the request.
23 Without prejudice to the question whether the express reply of the Council merely confirms the previous implied decision of rejection, which would make the present application inadmissible, it is sufficient to observe that from the considerations mentioned above it would appear that this application is unfounded.
24 Consequently, this claim must also be dismissed.
Costs
25 Under Article 69(2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.
26 The applicant has failed in his submissions.
27 Nevertheless, under Article 70 of the Rules of Procedure, in proceedings brought by servants of the Communities, institutions shall bear their own costs.
On those grounds,
Upon reading the pleadings ; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Staff Regulations of Officials of the European Communities, especially Article 2 of Annex VII; Having regard to the Protocol on the Statute of the Court of Justice; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;
THE COURT (Second Chamber)
hereby :
OPINION OF MR ROEMER — CASE 46/71
1. Dismisses the application as regards both the principal and the alternative claims;
2. Orders the parties to bear their own costs.
Kutscher Trabucchi Pescatore
Delivered in open court in Luxembourg on 7 June 1972.
A. Van Houtte H. Kutscher
Registrar President of the Second Chamber
OPINION OF MR ADVOCATE-GENERAL ROEMER DELIVERED ON 18 MAY 1972<apnote>1</apnote>
Mr President, For the moment it need only be said that Members of the Court, Mr Brandau, the applicant in the present case, married, with no children and living Under Article 2 of Annex VII to the Staff in Brussels, is an official, in Grade A 3/6, Regulations of Officials an official of the of the Secretariat-General of the Council, Communities receives a monthly allowance and wished to take advantage of these for each dependent child. Paragraph (2) provisions. He is the only son of his of the Article contains a definition of widowed mother, who was 83 years of age 'dependent child'. Paragraph (3) lays down when the application was lodged. Like the the age-limits to which grant of the applicant, she is of German nationality but allowance is subject. Finally, paragraph (4) previously lived in an old people's home in provides (and this point has particular Vienna. She receives an Austrian pension importance in this case) as follows: 'Any amounting to 1854 schillings (or Bfrs 3541). person whom the official has a legal Owing to serious illness (cerebral haem responsibility to maintain and whose orrhage), which occurred on 12 Decem maintenance involves heavy expenditure ber 1970, Mrs Brandau had to stay until may, exceptionally, be treated as if he were 2 January 1971 at the University Hospital a dependent child by special reasoned in Vienna, and, since then, she has required decision of the appointing authority, constant attention. It was for this reason based on supporting documents'. By that, after she left the hospital, she was decision of 2 April 1964, the Council first put into a private sanatorium in adopted general provisions for its im Austria. On 6 March 1971, because of the plementation by its administration depart attention which, on account of her state of ment. I shall consider them in more detail health, his mother needed and in order to later. have her near him, Mr Brandau brought 1 — Translated from the French version.