C-14/77

JUDGMENT OF THE COURT (FIRST CHAMBER) 13 OCTOBER 1977 1

Gerarda Emer (née van den Branden) v Commission of the European Communities

Case 14/77

1. Officials — Remuneration — Family allowances — Overlapping — Application

of Article 67 (2) of the Staff Regulations Conditions —

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

persons but not to an ex gratia of delay. Unless there are exceptional

payment granted on extraordinary circumstances this also applies to

grounds. Although the procedures for rectifications effected as a result of a

paying a family holiday allowance are complaint or an application to the for Court. the'

substantially same as those

paying the regular family allowance

Commission of the European Communities , represented by its Legal Adviser

Giorgio Pincherle, assisted by Alain van Solinge, a member of its Legal

I — Language of the Cast : French.

JUDGMENT OF 13. 10. 1977 - CASE 14/77

Department, with an address for service in Luxembourg at the office of Mario Cervino, Legal Adviser to the Commission, Jean Monnet Building, Kirchberg,

defendant,

Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and issues

The facts of the case, the course of the By a note of 14 May 1976 sent by the

procedure, the conclusions and sub­ Salaries, Pensions, Missions and

which, according to the Commission, was to be reimbursed on. account of the The applicant claims that the Court Belgian family holiday allowance and should:

special family allowance paid in April and August 1975 to the applicant's 1. Primarily: husband. The Commission considers that those Belgian allowances were to be Rule that the family holiday allowance deducted from the dependent child and the special family allowance paid in by Belgium like nature, allowance paid the Community are not of within

pursuant to Article 67 (2) of the Staff the meaning of and for the purposes of

Regulations which provides: the 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 such 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

by the Staff Regulations the family the Staff Regulations;

holiday allowance and the special family (b) The decision of the defendant allowance paid in Belgium and against whereby it was decided to recover

the decision to recover from her the from the applicant the amounts of BF repayable amounts received as allowances 4­743 and BF 2­ 558, as allowances of

by her husband in April and August like nature paid from other sources in 1975. A further complaint relating to the 1975 and in April 1976 and which

deduction from her salary for August was carried out by corresponding 1976 was submitted by a document deductions from the remuneration of

registered on 8 November 1976. the applicant for June, July and

on account of delay at the rate of 8 % administration the amounts of the family per annum calculated from 1 August allowances, which she received in 1976 until the date of actual payment; Belgium in respect of her husband's employment, with the occasional

Order the defendant to bear the costs. exception of the special family allowance.

2. Alternatively: It must be emphasized that in Informations Administratives No 63 of Rule that there are no grounds for the 13 October 1975 the Commission recovery from the applicant of the excess reminded officials that the provisions of amount paid in 1975 of BF 4­ 743; Article 67 (2) of the Staff Regulations must be observed and that the heads of

Consequently annul: administration of the institutions had on

(a) The decision of the defendant 5 February 1976 decided that the whereby it was decided to recover provisions overlapping benefits against from the applicant the amount of BF laid down in Article 67 (2) of the Staff 4 743 as an allowance of like nature Regulations were applicable to the paid from other sources in 1975 and Belgian family allowances in question. in May 1976 and which was in fact carried out by corresponding The applicant considers that although a deductions from the remuneration of declaration was made for all purposes the applicant for June, July and

August 1976; with regard to the family holiday allowance nevertheless the allowance was (b) The implied decision rejecting the not deducted from the Community complaint lodged by the applicant on dependent child allowance, which shows 9 July 1976 and registered under No that there is no causal connexion 4474; between the failure to declare the special

III — Submissions and argu­

ments of the parties Finally, the said decision of the heads of the administration which, contrary to Facts second paragraph of Article 110 of the

Staff Regulations, was not brought to the The defendant states that the applicant attention of the staff, does not stipulate

has regularly declared to the that the decision should be applied with

EMER v COMMISSION

retroactive effect. At the very least it can allowance shall be paid each year during thus have effect only with regard to the May in respect of children for whom future. family allowances were payable (for the month of April in the year for which the The defendant observes on the latter allowance is granted). point that, unlike decisions for which

Law lowances, as amended by Article 6 of the Royal Decree of 5 October 1973, The applicant relies upon the following provides that the amount of the family submissions: holiday allowance shall be equal to the — Infringement of Article 67 of the amount of the family allowance.

Staff Regulations, in particular of

paragraph (1) (b) and of paragraph (2) Furthermore for a given year the

thereof; infringement of Article 2 of Management Committee of the Office Annex VII to the Staff Regulations; National d'Allocations Familiales pour

ultra vires acts. Travailleurs Salaries (The National Office — Alternatively: infringement of the for Family Allowances for Employed principle that vested rights must be Persons, hereinafter referred to as 'the respected, of the principle of equality ONAFTS') decides to grant special of treatment and of proper family allowances paid from the reserves administration and, as a further of the ONAFTS. In 1975 an allowance of

alternative, infringement of Article 85 the latter type was granted of an amount

July 1962, provides: incurred in respect of children. The Staff Regulations themselves distinguish in The funds for between in­ compensation family principle allowances not

allowances and the public authorities and tended for a special purpose (dependent institutions referred to in Article 18 shall child allowance) and allowances intended grant a family holiday allowance. This for a special purpose (education

JUDGMENT OF 13. 10. 1977 - CASE 14/77

allowance). This means that family legislature is also attained through the

allowances intended for a special purpose provisions of the Staff Regulations on the which are paid from other sources and dependent child allowance. In fact the

the dependent child allowance under the dependent child allowance is more than Staff Regulations cannot be of like the ordinary Belgian family allowances

organizations, the trade

some degree an ex gratia payment. The unions and the government regarding Management Committee of the the use of the reserve fund of the ONAFTS decides after consulting the ONAFTS. This reserve fund, 'which was two sides industry to use its reserves of principally intended to meet any lack of

for granting a special family allowance. income', may nevertheless be applied to

other purposes if authority therefor is

Accordingly the Commission, by obtained in advance from the competent

deducting the two abovementioned minister.

the relevant Belgian allowance and the Whilst the Staff Regulations of Officials allowance under the Staff Regulations are indeed do not make provision for the not of like nature. grant of a family holiday allowance it none the less remains a fact that the She concedes that the purpose of the

objective pursued by the Belgian allowance under the Staff Regulations is

EMER v COMMISSION

to provide, without any distinction, for all allowances differ from the ordinary the expenses of bringing up a child but it allowances.

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

particularly with expenses of upbringing necessary to adopt the applicant's

education allowance provided for in the allowances and the dependent Staff Regulations since the dependent child allowance cannot be of like nature.

child allowance would also cover the

costs of education. Such reasoning would It must further be emphasized that the

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

allowances of like nature paid from Social developments led to 'Family sources'

the granting other and not

schooling beyond the minimum Staff Regulations. requirements laid down by law. With regard to the education allowance

To decide, as the defendant does, that the provided for under the Staff Regulations

family holiday allowance and the the defendant recalls that under the Staff allowance under the Staff Regulations are Regulations, as under national legislation, of like nature is to deny and oppose the intention is to contribute to the

these social developments. charges involved in the normal

upbringing of a child. The Staff The defendant's line of argument, based Regulations have created a homogeneous on detailed points concerning the system based on the grant for general

Belgian allowances, is quite irrelevant. In purposes of a relatively high family fact those points do not concern the allowance and, where appropriate, upon

Finally the defendant observes that it paid from other sources must comply if 'essence'

never intended to confuse the of they were to be deducted from the the two Belgian allowances with the allowances provided for in the Staff detailed conditions for their grant. On Regulations. Since the Legal Department the other hand, it believes that con­ was consulted on the meaning of the sideration of the details of the allowances words 'of like nature the fact that, over a

may be helpful in clarifying their nature: period of ten years, the Belgian in particular the fact that the relevant allowances in question were not

allowances are frequently described as deducted was not the result of tolerance

thirteenth and fourteenth months of or a failure to act on the part of the

family allowances emphasizes that the competent departments of the

deducted from the latter, the deduction of a detailed study of the social laws of

could no longer and cannot be deducted all the Member States on family in the present case, or at least could not allowances and/or dependent child

be deducted with retroactive effect. allowances and/or the various benefits granted in respect of expenses in general

It may be inferred from the judgment of or certain specific expenses incurred in the Court (First Chamber) of 24 June respect of dependent children. 1976 (Case 56/75, Elz v Commission [1976] ECR 1097) that a benefit which Although the extreme complexity and

may be contrary to the relevant diversity of such laws make it impossible legislation may not be withdrawn ex to establish general criteria for

nunc, and a fortiori ex tunc, unless such determining which allowances are of like benefit did not result from an express or nature to the dependent child allowance

connexion the applicant refers to a the applicant claims that the defendant's

EMER v COMMISSION

decision could only have taken effect ex cannot be described as a decision nunc and could not have been applied creating a right. In particular it 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

defendant's decision that the applicant that the provisions against overlapping must effect repayment in the form of benefits should not apply to one at least

amounts withheld from her salary for of those two Belgian family allowances. June, July and August 1976 of the sums alleged to have been overpaid in 1975 With regard to the memorandum from

owing to the failure to effect the the Legal Department cited by the

deduction in question was contrary to applicant the defendant observes that an

that provision. opinion of the Legal Department, which does not bind the Commission, cannot The defendant disputes the interpret­ decision a constitute a creating right, ation which the applicant places upon even with regard to one of its officials. the judgment in the case of Elz v

Commission. If the Court, however, were to consider

factual circumstances (failure to act or The defendant then disputes that the toleration by the administration) and the contested deduction was based upon legal position (infringement of the Staff Article 85 of the Staff Regulations. It was Regulations) the continuation of the based solely upon the application of benefit in dispute did not imply any Article 67 (2) of the Staff Regulations decision on the part of the institution which makes express provision for the which might create rights in favour of deduction of allowances of like nature the person concerned. Thus, regardless of paid from other sources. However, even if matters of form — mere failure to act or the argument concerning the application toleration, an implied or express decision of Article 85 were well founded it must — the official could not claim to have be admitted that that article was observed acquired rights the continuation of in the present case. In this connexion the which he could insist on for the future defendant refers to the opinion of the since the acquisition of those alleged Advocate General in Case 71/72, Kuhl v rights was contrary to a provision of the Council (judgment of 27 June 1973 Staff Regulations. [1973] ECR 705). It is established either In any event, the failure to effect a that the applicant caused the error of the

deduction from the allowances in dispute administration, by her failure to declare

JUDGMENT OF 13. 10. 1977 - CASE 14/77

the special family allowance, or that she creating rights, the applicant sets out her could not be unaware that the payments argument as follows: since the defendant

mature consideration from the legal The applicant replies that an analysis of point of view cannot be regarded as an

the judgment in the case of Elz v instance of tolerance or failure to act on

Commission shows that withdrawal ex the part of the administration.

nunc of a benefit is possible only if two As a further subsidiary point, the conditions are fulfilled: on the one hand applicant states thatif the Court were to that the benefit was improper and on the hold that no decision was taken it would other that it was not based on a decision. further be necessary to inquire into the In the said judgment the Court was at nature of the alleged irregularity. In this pains to emphasize that the grant of the connexion the applicant observes that benefit originated either in a failure to the application of Article 67 (2) of the act or in administrative tolerance Staff Regulations presupposes an (paragraph 19) and it further emphasized interpretation of the words 'of like the point that no decision, even an it be nature'

and thus cannot claimed implied decision, was entailed which that the failure to effect the deduction might create rights in favour of the would be directly at variance with the person concerned (paragraph 20). wording of the said provision. When an interpretation by the administration of a It is thus necessary to determine in fact legal provision does not disregard the whether or not a decision was taken in

wording and is reasonable it binds the this case. administration, being incorporated to

EMER v COMMISSION

provision: there is no causal connexion render Article 85 of the Staff Regulations between the failure to make the a cipher: how would it be possible to

declaration and the failure to effect the apply that provision if withdrawal ex

deduction for the reasons indicated nunc of an unlawful decision were

above. In those circumstances it is clear prohibited? The applicant's argument

that the applicant cannot have caused the would thus not only lead to disregard of

judgment of 12 July 1957 in Joined time, failure to effect the deduction on

Cases 7/56 and 7/57, Algera (Rec. 1957, the basis of that single declaration cannot p. 81) and the judgment of 1 June 1961 be classified as a decision of the

in Case 15/60, Simon (Rec. 1961, p. 223). institution. In any event it must be That case-law clearly established the emphasized that that declaration relates

principle that unlawful individual only to the family holiday allowance. measures may be revoked in very general terms and that the exercise of such a The applicant is wrong in maintaining power need not be made subject to any that the interpretation of a legal condition or, in particular, to any provision by the administration binds the time-limit. That principle was confirmed administration and becomes incorporated by the judgment in the Elz case which in the provision. It is impossible to

shows clearly that the principle that concede that an official may claim that

vested rights must be respected cannot the interpretation of a provision should

requirements of legal certainity which in certain cases for administrative reasons apply only in regard to withdrawal with considered that it must have recourse to

retroactive effect; this is authorized only the procedures of Article 85 it none the

within a reasonable period. On the other less remains the fact that the deductions hand the need for legal certainty in no in dispute originate in Article 67 (2) of way prevents the revocation for the the Staff Regulations the general plan of

future of unlawful decisions without any which necessarily implies that the

condition with regard to time-limits. deductions must be effected a little later than the payment of the national family It must further be emphasized that the allowances and this situation cannot be applicant's argument would in practice confused with that of retroactive effect.

JUDGMENT OF 13. 10. 1977 - CASE 14/77

rejecting her complaint in this respect.

2 Under Article 67 (2) of the Staff Regulations of Officials, 'Officials in receipt of family allowances specified in this article shall declare allowances of like nature paid from other sources; such latter allowances shall be deducted from

those paid under Articles 1, 2 and 3 of Annex VII'.

3 Article 67 (1) provides that family allowances shall comprise a household

allowance, a dependent child allowance and an education allowance.

4 The applicant's husband, a person employed in Belgium, is entitled as such to

to the allowances referred to in Article 67 (1); she

maintains that the deduction of those allowances, which was effected for the

first time in 1976, is not justified by the wording of Article 67 and requests

that the deduction be annulled.

EMER v COMMISSION

6 For its part the Commission, the defendant, contends that the Belgian allowances in dispute should be considered as intended to cover the specific

9 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).

10 With regard to the Belgian family holiday allowance it is clear from the file that the consolidated laws relating to family allowances for employed persons (Royal Decree of 19 December 1939 effecting the consolidation, as

subsequently amended) make provision for four types of benefits: family

allowances, child-birth allowances, holiday allowances and socio-educational bis allowances (Chapter V, Section 1, Section 4 , 4 ter and 4 q­ uater).

family holiday allowance Article 73 q­ uater 11 With regard to the of the said laws reads as follows in its present form:

14 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.

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

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

inferred that only allowances which are comparable and which have the same purpose can be taken into consideration as being 'of like nature'.

16 Whilst the Belgian family allowance, which is paid monthly, is indeed

entirely comparable to the dependent child allowance referred to in the Staff

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

20 In fact they are not regular allowances which virtually 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.

EMER v COMMISSION

21 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.

framework of errors and rectifications which frequently occur in calculating salaries. monthly

26 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.

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

Court do not differ from current rectifications unless there are exceptional

circumstances.

Costs

31 Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be orderedto bear the costs.

32 Since the defendant has failed in its submission it must be ordered to bear the costs.

On those grounds,

THE COURT (First Chamber)

hereby:

OPINION OF MR ADVOCATE-GENERAL MAYRAS (see case 106/76, p. 1637)