C-6/74

1. A provision which by reason of the accordingly the whole of these divergence between the versions in resources must count in calculating different languages does not lend the sum on the basis of which the itself to a clear and uniform obligation to maintain is measured interpretation must be interpreted by when determining whether it amounts reference to its purpose and its to 'heavy expenditure'. general scheme. Thus interpreted, Article 1 (4) of the 2. The provisions under which an implementing provision, affecting all official may claim an exceptional persons falling within its area of Community benefit — the treatment application on the basis of objective of a person as a dependent child — and justified criteria, is not must be interpreted strictly. The incompatible with the general person involved must in satisfying his principle of equal treatment of legal obligations to maintain, first officials or with other general utilize his non-Community resources; principles of law.

In Case 6/74

JOHANNES COENRAD MOULIJN, a former official of the Commission of the European Communities, represented by R. Samkalden, advocate of the Amsterdam Bar, with an address for service at Luxembourg at the chambers of Maîtres Loesch and Wolter, 2, rue Goethe,

applicant, 1 — Language of the Case: Dutch.

JUDGMENT OF 21. 11. 1974 CASE 6/74

V

gives the following

JUDGMENT

Issues of fact

The facts and the arguments of the Commission of the European Com­ parties presented in the course of the munities. written procedure may be summarized as At his request the Commission decided, follows: with effect from 1 October 1968, to adopt in relation to him a measure terminating his service under the provisions of Article 4 of Regulation No I — Facts and procedure 259/68 of the Council of 29 February 1968 (OJ L 56, 4. 3. 1968). 1. Mr Moulijn, a Dutch national, was a The allowance granted to the applicant principal administrator with the — which constituted his only source of

MOULIJN v 'COMMISSION

5. Total (3 + 4) = 24 145 FB 2. In 1965, a Dutch court pronounced It follows that the actual expenduture a decree of divorce in his case; by the borne by you is less than 20 % of the same decree he was ordered to pay to his former wife maintenance in the sum of taxable amount of the pension paid to you by the Commission, increased by the Fl. 700 per month (increased in 1968 to net amount of the Dutch' pension Fl. 784 per month). received by you since 1 February 1973, The applicant thereupon asked the i.e. FB 10 827 < FB 24 145 (FB 4 811 + Commission to treat his former wife as FB 19 334).

reads: occasion being 28 February 1973. 'De ambtenaar moet aantonen dat hij 3. On 15 November 1972 the applicant voor het onderhoud van de requested an extension of this treatment desbetreffende persoon ten minste 20 % of his former wife as if she were a besteedt van het belastbare bedrag van dependent child. zijn bezoldiging, eventueel vermeerderd The Commission rejected this appli

1. Amount of actual expenditure: Fl. it had been unable to accede to his 784 = 10 827 FB request.

— annul the implied decision rejecting the applicant's complaint against the decision not to treat his former wife III — Pleas and arguments as if she were a dependent child; of the parties — find — and to the extent that this The applicant submits that the may be necessary, rule — that the interpretation given by the Commission applicant fulfils the conditions laid to Article 1 (4) of the provisions down by the Staff Regulations of the implementing Article 2 (4) of Annex VII European Communities and in of the Staff Regulations implies that he particular Article 2 (4) of Annex VII could not claim the benefit of of the Staff Regulations and by assimilation unless all his other income, Article 1 (4) of the Decision of the increased by 1/5 of his EEC pension, Commission of the European were less than the effective amount of Communities of 7 November 1963, maintenance. laying down implementing provisions as to the treatment of a person as a He considers that on the contrary this Article refers to 20 % of the total dependent child; income, so that it must be interpreted as — as a subsidiary point — to the extent meaning that the effective expenditure that this may be necessary — find borne is in excess of 20 % of his EEC that for other reasons the applicant's pension increased by the net amount of request for his former wife to be his Dutch pension. treated as a dependent child can be In the applicant's view the comma which acceded to; appears in the Dutch text after the word — consequently to rule and adjudge 'bezoldiging' (salary) has the purpose of that the Commission must as from 1 indicating a pause in the sentence and March 1973 treat the applicant's does not prevent the 20 % being former wife as if she were a calculated on the remuneration and on dependent child and for that reason any additional income. grant the applicant all the advantages This interpretation has the merit of resulting from the application of the being more in conformity with the Staff Regulations, their annexes and purpose of Article 2 (4) of Annex VII of their general implementing pro­ the Staff Regulations. The determining visions; factor is that of 'heavy expenditure', and — adjudge that the sum to be paid to the sole objective criterion for the applicant in the light of the determining whether it is a case of heavy foregoing be increased by interest at expenditure is the proportion of the

obligation to maintain in relation to the sickness insurance scheme and that for total amount of the income. By limiting that reason she had been obliged to oneself to 20 % of the Community effect her own insurance, the cost of remuneration whilst taking into such contract of insurance in turn consideration other income to the extent becoming the applicant's liability (as a of a 100 %, one introduces an arbitrary consequence the mantenance payment element, that of the origin of the income. had as from 1 May 1973 been increased The applicant refers to the Court's to Fl. 864 per month). Judgment of . 7 June 1972 (Case 46/71, Finally, the applicant recalls the manner Brandau v Council, Rec. 1972, p. 373) in which his request and his complaint according to which the administration had been treated by the Commission, must, in putting Article 2 (4) of Annex resulting in unnecessary expense and VII of the Staff Regulations into subjecting him to psychological tension; operation, proceed on 'principles of the Commission had failed to comply equity'. with its specific promise to forward to The applicant argues that the the applicant in good time a reasoned Commission violated both the letter and decision. the purpose of Article 1 (4) of the The applicant considers that by reason implementing provisions. In particular of these facts there are good grounds for he considers that the Commission has ordering the Commission to pay the full not taken into account the heavy charges costs of the proceedings. he has to bear by reason of the In the Commission's view, the present maintenance obligation imposed on him, proceedings essentially have the purpose since the obligation which he in fact of interpreting the first paragraph of bears must be considered heavy. Article 1 (4) of the general provisions Finally, he argues that the Commission implementing Article 2 (4) of Annex VII violated general principles of Com to the Staff Regulations.

This He refers also to the principles of legal restrictive interpretation is not only in certainty and equity, generally recog line with the meaning of the restrictive nized in Community law. On this point basic provision, which is what Article 2 he claims that the Commission has (4) of Annex VII to the Staff Regulations refused him the extension of the amounts to, it is also based on the assimilation previously granted to him, logical connexion of the text: in the and this notwithstanding the fact that Dutch text the part of the sentence the total amount of his income has reading 'eventueel vermeerderd .

JUDGMENT OF' 21. 11. 1974 — CASE 6/74

by using these before claiming a family administration in a particular case has allowance which essentially has an made a correct use of its discretionary exceptional character — that clearly power of assessment, and not at all a emerges from the aforementioned matter of searching outside the Judgment of 7 June 1972. The notion of Community texts — possibly even 'heavy expenditure' must essentially be contrary to these texts — for a basis to seen in relation to the possible existence enable a grant of an exceptional nature of 'other income', other than the to be continued. Community remuneration (or pension) Finally, the Commission argues that the and this way of looking at the matter is question of costs cannot be dealt with perfectly in accordance with the independently of the outcome of the 'considerations of equity' relied upon. case.

In the Commission's view the applicant The parties refrained from making oral observations. is wrong in the present case to invoke general principles of Community law. The Advocate-General delivered his What is in issue is whether the opinion on 10 October 1974.

Law

1 The application is for the annulment of the decision of 18 April 1973 by which the Commission rejected the applicant's request for his divorced wife to be treated as a dependent child, in conformity with the provisions of Article 2 (4) of Annex VII of the Staff Regulations.

2 Article 2 (4) of Annex VII of the Staff Regulations reads: 'Any person whom the official has a legal responsibility to maintain and whose maintenance involves heavy expenditure may, exceptionally, be treated as if he were a dependent child by special reasoned decision of the appointing authority, based on supporting documents.'

6 The Commission interpreted this as meaning that the expenditure for which the applicant is liable must not be less than 20 % of his Community remuneration and the total of his non-Community income.

7 The applicant contested this interpretation and argued that the provision in question must be interpreted as meaning that the expenditure must not be less than 20 % of the official's total income, irrespective of its source.

8 It is not in dispute that if his own interpretation is correct, the applicant fulfils the conditions laid down by the provision in questions

9 Accordingly, the outcome of the suit depends on the interpretation that ought to be given to Article 1 (4) of the implementing provisions.

10 By reason of the divergences that exist between the versions of this text in different languages it does not lend itself to a clear and uniform interpretation on the point in question.

11 Accordingly, it must be interpreted by reference to the purpose and the general scheme of the implementing provisions on the treatment of another person as if he were a dependent child.

16 Accordingly, the application must be rejected as unfounded.

Costs

17 The applicant has failed in his action.

18 Under the terms of Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

19 However, under the terms of Article 70 of the said Rules, costs incurred by the institutions in actions by servants of the Community are to be borne by such institutions.

MOULIJN v COMMISSION

Delivered in open court in Luxembourg on 21 November 1974.

A. Van Houtte Mackenzie Stuart

Registrar President of the Second Chamber

OPINION OF MR ADVOCATE-GENERAL MAYRAS

DELIVERED ON 10 OCTOBER 1974 1

Mr President, 700, which was increased to Fl. 784 in 1968. Members of the Court, Under Article 2 (4) of Annex VII to the Mr Moulijn, a former principal Staff Regulations it is stated that: adminstrator at the Commission of the European Economic Community, retired 'Any person whom the official has a on 1 March 1973. He is therefore legal responsibility to maintain and entitled to a Community retirement whose maintenance involves heavy pension and in addition a national expenditure may, exceptionally, be retirement pension, since he had also treated as if he were a dependent child been an official of the Dutch State. by special reasoned decision of the appointing authority, based on sup­ Mr Moulijn has been divorced since porting documents.' 1965. The Dutch court which granted the divorce ordered him to pay his Mr Moulijn requested the Commission former wife monthly maintenance of Fl. to treat his former wife as a dependent