C-106/76

2. Officials — Remuneration — Monthly salary Calculation— — Errors and

rectifications — Interest on account of delay Not due —

1. The provision against overlapping this ex gratia payment cannot on that

benefits contained in Article 67 (2) of ground be considered as a mere

the Staff Regulations of Officials increase in the regular family applies only to regular allowances allowance.

which virtually constitute a part of the 2. Errors and current rectifications in the

paying the regular family allowance

In case 106/76

FRANCINE GEMDERS (NÉE DEBOECK), an official of the Commission of the

European Communities, represented by Marcel Gregoire and Edmond Lebrun, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Tony Biever, 83 Boulevard Grande-Duchesse Charlotte,

applicant,

v

be deducted from the dependent child allowance for which provision is made in the Staff Regulations and in pursuance of which deductions were in fact

made from the applicant's salary for March and August 1976, and for the annulment of the implied decision rejecting the complaint submitted by the applicant in this respect,

THE COURT (First Chamber)

composed of: G. Bosco, President of Chamber, A. M. Donner and

A. O'Keeffe, Judges,

Advocate-General: H. Mayras

DEBOECK v COMMISSION

amounts were to be repaid pursuant to are not of like nature, within the

Article 67 (2) of the Staff Regulations of meaning of and for the purposes of the Officials which provides: application of Article 67 (2) of the

Staff Regulations of Officials, to the 'Officials in receipt of family allowances dependent child allowance provided for specified in this article shall declare by Article 67 (1) (b) of the Staff allowances of like nature paid from other Regulations; sources; such latter allowances shall be deducted from those paid under Articles Rule that at least the deduction of the 1, 2 and 3 of Annex VII'. family holiday allowance and the special In August 1976 the Commission also family allowance paid in Belgium from from the dependent child allowance under the retained BF 3 128 the applicant's Staff Regulations could not, or could no salary, constituting the amount repayable longer, be lawfully undertaken in the as the family holiday allowance received circumstances of the case; for 1976 by her husband.

The applicant submitted a complaint Consequently annul: within the meaning of Article 90 (2) of (a) The decision whereby it was decided the Staff Regulations, which was recorded that the family holiday allowance and by the Commission on 7 April 1976, the special family allowance paid in against the decision to deduct from the Belgium were to be deducted from dependent child allowance provided for the dependent child allowance under

by the Staff Regulations the above­ the Staff Regulations; mentioned Belgian allowances and (b) The decision of the defendant against the decision to recover from her whereby it was decided to recover

Registry on 5 November 1976. plemented by a document lodged on 4 October 1976 and registered under Upon hearing the report of the No 4419; Judge-Rapporteur and the views of the

Advocate General, the Court (First 2. Alternatively: Chamber) decided to open the oral

procedure without a preparatory inquiry. Rule that there are no grounds for the

recovery from the applicant of the excess amounts paid in 1975 of BF 2 172 and II — Conclusions of the parties BF 2 454 and the excess amount paid in

The applicant claims that the Court May 1976 of BF 2 380; should: Consequently annul: (a) The decision of the defendant 1. Primarily: whereby it was decided to recover Rule that the family allowance and the from the applicant the amounts of special family allowance paid in Belgium BF 2 172, BF 2 454 and BF 2 380, as

JUDGMENT OF 13. 10. 1977 — CASE 104/76

No 4419; Article 73 quater of the said laws, as

modified by Article 5 of the Law of 25 3. In any event: July 1962, provides: Order the defendant to pay to the The compensation funds for family applicant the sums of BF 2 172, BF allowances and the public authorities and 2 454 and BF 2 380 which sums the institutions referred to in Article 18 shall applicant reserves the right to amend in grant a family holiday allowance. This the course of the proceedings, together allowance shall be paid each year during with interest on account of delay at the May in respect of children for whom rate of 8 % per annum calculated as family allowances were payable (for the from 1 March 1976 on the sums of BF month of April in the year for which the 2 171 and BF 2 454 and from 1 August allowance is granted). 1976 on the sum of BF 2 380 until the

date of actual payment; The conditions of payment of the family holiday allowance shall be the same as Order the defendant to bear the costs. those laid down for the payment of

The defendant contends that the Court family allowances. should:

— Dismiss the application as un­ His Majesty shall determine the amount founded; of family holiday allowance'. the — Order the applicant to bear the costs. Article 1 of the Royal Decree of 1

February 1968 family holiday on allow­

administration and, as a further allowance of the latter type was granted

alternative, infringement of Article 85 of an amount roughly equal to the family of the Staff Regulations. allowance.

DEBOECK v COMMISSION

Until 1976 the Commission had never With regard to the various systems of

deducted from the dependent child family allowances in the Member States allowance, paid pursuant to Article 67 (1) of the Community the defendant con­

(b) of the Staff Regulations, the family siders that under the relevant national

allowance). This means that family dependent child allowance. In fact the

allowances intended for a special purpose dependent child allowance is more than

which are paid from other sources and the ordinary Belgian family allowance

the dependent child allowance under the and covers all the expenses, including Staff Regulations cannot be of like holidays, which form part of the normal

nature. This also family applies to the upbringing of a child. Furthermore the holiday allowance and the special family details of the Belgian family holiday allowance paid in Belgium. allowance are, except for the frequency of payment, fully identical with the The family allowance is not special ordinary family allowance. provided for by law (except in the case of

civil servants), is not general (it is not The special family allowance originated paid to self-employed persons) and is in negotiations in 1970 between the paid intermittently: future rights to the employers'

benefits laid down in Article 67 (2) of the Whether the allowance is for a specific

Staff Regulations should apply to the two purpose, namely to contribute to the Belgian family allowances in question. expenses of returning to school, or

JUDGMENT OF 13. 10. 1977 — CASE 106/76

whether it simply constitutes an like nature is to deny and oppose these

additional month's family allowance, the social developments. special family allowance cannot be considered as differing in its nature from The defendant's line of argument, based the allowances provided for in the Staff on detailed points concerning the

Regulations (education allowances or Belgian allowances is quite irrelevant. In dependent child allowances). fact those points do not concern the

may be considered that an ordinary allowance of this kind is concerned The defendant observes that if it were

with expenses of upbringing necessary to adopt the applicant's ar­ particularly which take holiday precedence over gument the application of the provisions

expenses. In addition to ordinary family of the Staff Regulations against over­

allowances provision is made in both the lapping benefits would depend solely Staff Regulations and Belgian legislation upon the description applied by national for allowances with specific objectives in law to benefits paid pursuant thereto.

which certain expenses arising from the Thus any deduction would be ruled out if

upkeep of a child are distinguished from a State were to grant a specific benefit for general expenses and a special payment each wide category of requirements

moreover produce anti-social results. provision in the Staff Regulations reads

allowances of like nature paid from Social developments led 'family allowances' sources'

to the granting other and not

of family allowances for specific objec­ of like nature paid from other sources.

in The phrase 'of like is thus clearly nature'

tives since ordinary allowances were

the intention is to contribute to the [1976] ECR 1097) that a benefit which

charges involved in the normal upbring­ may be contrary to the relevant

ing of a child. The Staff Regulations have legislation may not be withdrawn ex

created a homogeneous system based on nunc, or a fortiori ex tunc, unless such the grant for general purposes of a benefit did not result from an express or

relatively high family allowance and, implied decision of the institution where appropriate, upon the payment of concerned (paragraphs 18 to 20). a specific allowance if it is justified by a precise factual situation (the child's If a decision has been adopted which attendance at school). creates a right for the beneficiary, withdrawal of the benefit, even for the Far from running contrary to social future, infringes the principle that vested developments the provisions of the Staff rights must be respected. Regulations against overlapping benefits are solely concerned to prevent a couple In the present case the relevant Belgian from receiving family allowances twice in allowances were not deducted pursuant respect of the same children. Articles 60 to a decision adopted at the appropriate and 64 of the consolidated laws show time by the Commission. In this con­

clearly that the Belgian legislature shares nexion the applicant refers to a memor­

family holiday allowance and special question is illegal if only because it

family allowance were of like nature to violates the principle of vested rights. In the allowance provided under the Staff addition the decision violates the Regulations and in principle were to be principle of the equal treatment of

deducted from the latter, the deduction officials in that it is not the consequence

could no longer and cannot be deducted of a detailed study of the social laws of

in the present case, or at least could not all the Member States on family be deducted with retroactive effect. allowances and/or dependent child

allowances and/or the various benefits It may be inferred from the judgment of granted in respect of expenses in general the Court (First Chamber) of 24 June or certain specific expenses incurred in 1976 (Case 56/75, Elz v Commission respect of dependent children.

more frequently than once a year. rights was contrary to a provision of the

Staff Regulations. As a further alternative point, within the framework of this alternative submission In any event, the failure to effect a the applicant claims that the defendant's deduction from the allowances in dispute decision could only have taken effect ex cannot be described as a decision nunc and could not have been applied it creating a right. In particular was not

retroactively without infringing Article the consequence of a decision taken at 85 of the Staff Regulations. the appropriate time by the departments of the Commission but must be regarded Under that provision any sum overpaid is as the application of a provision of the to be recovered if the recipient was aware Staff Regulations which remained that there was no due reason for the incomplete because the applicant never payment or if the fact of the declared to the administration the overpayment was patently such that he payment of the allowances in question. could not have been unaware of it. Since no such declaration was made the

Commission was thus not in a position Since the conditions laid down by Article to take a decision concerning the 85 were not fulfilled in this case the applicant to the effect that the provisions defendant's decision that the applicant against overlapping benefits should not must effect repayment in the form of apply. amounts withheld from her salary for March and August 1976 of the sums With regard to the memorandum from alleged to have been overpaid in 1975 the Legal Department cited by the and May 1976 respectively was contrary applicant the defendant observes that an to that provision. opinion of the Legal Department, which does not bind the Commission, cannot The defendant disputes the interpret­ constitute a decision creating a right, ation which the applicant places upon even with regard to one of its officials. the judgment in the case of Elz v

based solely upon the application of

Article 67 (2) of the Staff Regulations Finally, with regard to the opinion of the which makes express provision for the Legal Department which undoubt­

deduction of allowances of like nature edly did not, by itself, constitute a paid from other sources. However, even if decision creating rights, the applicant her follows: the argument concerning the application stets out argument as since

of Article 85 were well founded it must the defendant for ten years refrained

be admitted that that article was observed from deducting the relevant Belgian in the present case. In this connexion the allowances from the allowance provided

defendant refers to the opinion of the for under the Staff Regulations on the

The applicant replies that an analysis of view cannot be regarded as an instance of the judgment in the case of Elz v tolerance or failure to act on the part of

Commission shows that withdrawal ex the administration.

nunc of a benefit is possible only if two conditions are fulfilled: on the one hand As a further subsidiary point, the ap­

that the benefit was improper and on the plicant states thatif the Court were to

other that it was not based on a decision. hold that no decision was taken, it would In the said judgment the Court was at further be necessary to inquire into the

pains to emphasize that the grant of the nature of the alleged irregularity. In this

might create rights in favour of the failure to effect the deduction would be person concerned (paragraph 20). directly at variance with the wording of the said provision. When an

It is thus necessary to determine in fact interpretation by the administration of a whether or not a decision was taken in legal provision does not disregard the

this case. wording and is reasonable it binds the

administration, being incorporated to The defendant's argument is first of all some extent in the legal provision on the

unfounded in fact since there is a lines of the measures adopted for its complete absence of any causal implementation. connexion between the failure to declare the disputed allowances and the failure to Finally with regard to the application of effect the deduction. Conclusive proof of Article 85 of the Staff Regulations it this is to be found in the fact that no must be remarked that the adminis­

deduction was made from the allowance tration itself considered that the recovery

those circumstances it is clear that the be maintained in perpetuity. Such a view

applicant cannot have caused the alleged would rule out not only a dynamic error on the part of the administration. conception of the law by crystallizing it Likewise there can be no patent in supposedly definitive interpretations, irregularity since the defendant was in but also the very existence of case-law. possession of the facts and refrained for ten years from deducting the said Finally the defendant persists in its Belgian allowances. argument the alleged in­ concerning fringement of Article 85 of the Staff The defendant recalls that it disputes the Regulations. Although the administration

interpretation placed by the applicant in certain cases for administrative reasons upon the judgment in the case of Elz v considered that it must have recourse to

Commission. It emphasizes in particular the procedures of Article 85 it none the

that that interpretation would result in less remains the fact that the deductions

preventing the Commission from in dispute originate in Article 67 (2) of withdrawing any unlawful decision which the Staff Regulations the general plan of

allowances in question was not based the hearing on 14 July 1977. upon a decision. Whilst it is true that

one official declared the payment of the The Advocate General delivered his holiday allowance at the appropriate opinion at the hearing on 28 September time, failure to effect the deduction on 1977.

Decision

1 By an application dated 4 November 1976 the applicant instituted proceedings for the annulment of the decisions to the effect that the family holiday allowance and the special family allowance paid in Belgium were to

be deducted from the dependent child allowance for which provision is made

DEBOECK v COMMISSION

Belgian legislation and it is common ground that the payment of the ordinary

family allowance was duly declared to the administration by the applicant and, in accordance with Article 67 (2), was deducted from the dependent child allowance to which she was entitled under the provisions of the Staff Regulations.

5 On the other hand the applicant considered that the holiday allowance and the special family allowance paid to her husband by the Belgian authorities

'of like in Article 67 (1) and nature'

were not to the allowances referred to

never declared the payment of those allowances.

JUDGMENT OF 13. 10. 1977 — CASE 106/76

9 The defendant states that whilst it is correct that the allowances were not

deducted in the past, the heads of the administration of the institutions decided a meeting on 5 February 1976 that the provisions against at

overlapping benefits in Article 67 (2) of the Staff Regulations were applicable to the Belgian allowances in question.

10 It is thus necessary to examine whether the Belgian allowances in question

must be considered as being of like nature to the allowances referred to in Article 67 (1).

substantially the same as those for paying the monthly family allowance.

14 Nevertheless the family holiday allowance cannot on this ground be considered as a mere increase in the monthly family allowance.

15 The former is a special allowance paid annually in order to cover expenses from holidays and to permit the persons responsible for the child to arising enable it to enjoy the appropriate leisure so as to promote its health and cultural development.

DEBOECK v COMMISSION

16 Since the manifest objective of Article 67 (2) is to prevent a couple from

receiving family allowances twice in respect of be the same children it is to

the basis of the monthly amounts of the family allowance and paid in respect of children for whom that latter allowance was payable, must not 'ordinary'

be confused with the family allowances which are of the same

nature as the dependent child allowance provided for under the Staff Regulations.

21 In fact they are not regular allowances whichvirtually constitute a part of the remuneration and are intended to meet the special requirements of employed

persons, but constitute an ex gratia payment granted on extraordinary grounds.

22 It is thus impossible to conclude that this special allowance is of like nature to the allowances referred to in Article 67 (1) of the Staff Regulations.

26 The error committed in applying the said provision does not go beyond the framework of errors and rectifications which frequently occur in calculating

monthly salaries.

27 It is usual for such errors, the commission of which either benefits or

prejudices the official concerned, to be rectified as soon as they are discovered without the matter of claiming interest on account of delay being raised by either party.

28 Rectifications effected as a result of a complaint or an application to the

Court do not differ from current rectifications unless there are exceptional

Costs

32 Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to bear the costs.

33 Since the defendant has failed in its submissions it must be ordered to bear the costs.

DEBOECK v COMMISSION

On those grounds,

THE COURT (First Chamber)

A. Van Houtte G. Bosco

Registrar President of the First Chamber

OPINION OF MR ADVOCATE-GENERAL MAYRAS <ap note>1</ap note> DELIVERED ON 28 SEPTEMBER 1977

Mr President, 2. Officials in receipt of family allow­

Members of the Court, ances specified in this article shall

declare allowances of like nature Section 1 of Chapter 1 of Title V of the paid from other sources; such latter Staff Regulations of Officials of the allowances shall be deducted from European headed 'Re­ Articles 1, 2 Communities, those paid under and 3 VII.'