C-164/78

JUDGMENT OF THE COURT (SECOND CHAMBER) OF 31 MAY 19791

Francis Woehrling v Commission of the European Communities

"Education allowance"

Case 164/78

In Case 164/78

Francis WOEHRLING, an official of the Commission of the European Communities, residing at 39 Boslaan, Overijse, represented and assisted by Georges Vandersanden, of the Brussels Bar, with an address for. service in Luxembourg at the Chambers of E. Arendt, 34 B IV Rue Philippe. II, applicant, v

JUDGMENT OF 31. 5. 1979 — CASE 164/78

JUDGMENT

Facts and Issues

The facts of the case, the procedure, the to place him in a school where the conclusions and the submissions and classes were smaller and the difficulties arguments of the parties may be involved in motivating him would be summarized as follows: more easily overcome.

An interview was arranged with Mrs Kahn, the Director of the European I — Facts and procedure School, and the child's teacher, in the course of which it appears to have been established that the European School was The applicant, a principal administrator not able to provide the conditions at the Commission employed at Brussels, necessary for an education suited to the has a son who was born in Washington, child's special difficulties. Consequently, District of Columbia, on 11 November for the school year 1977/1978 the 1970. Since his mother is American and applicant chose to enrol his son at the English is his principal language the child British Primary School (at Ixelles), which is small and has no more than 20 was enrolled in the English Section in the first year of the primary department children in each class. The cost is high: almost Bfrs 65 000 in tuition fees in for the school year 1976/1977 at the European School (Woluwé). addition to the school fees normally borne by parents.

language, provided that the child of the Judge-Rapporteur and the views actually attends an educational of the Advocate General the Court establishment at least 50 km from the (Second Chamber) decided to open the place of employment." oral procedure without holding any preparatory inquiry. That provision must be read in conjunction with Article 4 (5) of the "General implementing provisions for II — Conclusions of the parties granting the education allowance" (published in Administrative Notices No The applicant claims that the Court 153 of 2 May 1977), which is worded as should: follows: "— Annul the implied decision of the "5. On presentation of supporting Commission rejecting the applicant's documents the official shall be request for the maximum education entitled to receive double the allowance to be doubled in respect amount set out in the first paragraph of his son, Eric; of Article 3 of Annex VII to the Staff Regulations by way of — Accordingly, award him the double reimbursement of the costs specified allowance; in Article 3, provided his place of — Order the Commission to pay the employment is at least 50 km either costs." from a European school or from a school teaching in his mother tongue and the child must attend such a The defendant contends that the school for imperative educational application should be dismissed as reasons, adequate proof of which unfounded and that the applicant should must be provided." be ordered to pay the costs.

administrative authority is bound to spirit of fairness and social justice, have consider all the provisions by virtue of applied the provisions in question in which an application might be accepted. cases in which difficulties might arise. In Reinarz v Commission of the European Thus, for example, under the former Communities, Case 55/70, [1971] 1 ECR version of Article 3 of Annex VII to the at p. 385, the Court of Justice itself Staff Regulations in force on the arrival accepted the applicant's reference to the in Brussels of officials from the new "general principle of good adminis­ Member States, the Commission granted tration", which that party regarded as a them double the maximum education means of investigating whether the allowance, despite the existence of a administrative authority had made a European school at their place of reasonable use of its discretionary power. employment, on the sole ground that the school in question was not able to provide their children with an education consistent in particular with their linguistic requirements. The Commision was able to do so through an extension Taking that as his basis, the applicant of the term "European school" to mean goes on to argue that in this instance the "suitable European school". A similar most important question from an solution must be adopted in the present administrative point of view is whether case. the educational establishment in which he had to place his child is in fact appro­ priate from the point of view of the child's necessary re-education. That is, moreover, the meaning of Article 4 (5) of the general implementing provisions, which added to the wording of the third paragraph of Article 3 of Annex VII to the Staff Regulations the condition that the child must be attending a school "for Furthermore, if it were necessary to imperative educational reasons, adequate accept the reasoning linking the proof of which must be provided". The condition relating to distance to that condition relating to distance is, relating to "imperative educational therefore, only relevant if, for reasons unconnected with the child's reasons adequate proof of which must be provided", the result would be discrim­ psychological and educational circum­ ination between "special" children stances, it is decided to place him in an educational establishment other than a according to whether the educational establishment chosen was or was not European school. In other words, the situated more than 50 km from the requirement of special educational needs official's place of employment. There is an alternative and not a cumulative would also be discrimination between condition (the other being that relating "special" children of Dutch and French to distance), which must be satisfied in order for the maximum education mother tongue (for whom it would be allowance to be doubled. easy to find in the surroundings of Brussels an inexpensive suitable education not requiring assistance by a double education allowance) and "special" children speaking another language. Finally, it would even lead to Moreover, that is apparently the sense in discrimination between the "normal" which the Community institutions, in a children and the "special" children, since

the latter alone would benefit from the of the European Communities, [1973] doubling of the maximum education 1 ECR 475, especially at p. 486). allowance, provided that the condition relating to distance were satisfied, whereas the former could never receive In any event, the applicant has not the double allowance. shown that such a principle, whose existence was, moreover, not recognized by the Court in the Reinarz case to which he refers, is common to the law of In its defence the Commission analyses all the Member States.

The version of the first indent of the handicap and whether such involvement ceases at the age of 26 or, as in certain third paragraph of Article 3 of Annex cases, continues without any age limit VII to the Staff Regulations which was in force on the accession of the new where the child is unable to provide for his own needs. Member States empowered the Commission to make a temporary award of double the maximum education allowance to the officials who were As regards the submissions put forward nationals of the new Member States, on by the applicant the Commission the ground that there were no English observes, first, that he is not relying or and Danish sections at the European Article 184 of the Treaty in order to School. The present wording of that challenge the legality of the provisions oi provision does not allow the Commission the Staff Regulations and implementing to comply with the applicant's request. provisions which govern the grant of the

JUDGMENT OF 31. 5. 1979 — CASE 164/78

the establishment which they attend is method by which the amount of that situated more or less than 50 km from allowance, which seeks to cover the the place of employment. The other actual costs of schooling is fixed. Since complaints of discrimination are also doubt remains as to the scope of the first unfounded. indent to the third paragraph of Article 3 of Annex VII to the Staff Regulations it is for the Court to interpret the provision in question on the basis of its case-law and general legal principles in order to In his reply the applicant states that it determine "the intention of the was only as late as at the end of May legislature". The point to be taken into 1978 that he was informed by the consideration is the unsuitable nature of competent officers of the Commission of the European School so that parents who the possible existence of another and place their children at that school and more appropriate means of solving the those who cannot do so for imperative problem posed by his son, that is, the educational reasons, adequate proof of doubling of the dependent child which must be provided, cannot be allowance provided for in Article 67 (3) treated in the same way with regard to of the Staff Regulations. To that end the the condition relating to distance. applicant's son underwent a medical examination.

WOEHRLING v COMMISSION

tation. Since the applicant has not conditions laid down for the doubling of availed himself of Article 184 of the the maximum education allowance. Treaty in order to challenge the legality of those provisions he cannot be allowed to do so indirectly by proposing an IV — Oral procedure interpretation which is radically opposed to their clear terms. At no time did the The parties presented oral argument at Commission's officers frustrate the the hearing on 22 March 1979. applicant's legitimate expectations nor did they discriminate against him: they The Advocate General delivered his simply found that he did not satisfy the opinion at the hearing on 10 May 1979.

Decision

1 This application, which was lodged on 31 July 1978, seeks the annulment of the implied decision of the Commission rejecting the applicant's request on the basis of the first indent of the third paragraph of Article 3 of Annex VII to the Staff Regulations for the maximum education allowance to be doubled in respect of his son.

2 By a letter dated 19 July 1977 the applicant requested the Head of the Individual Rights and Privileges Division to allow the education allowance to be doubled so as to cover the additional expenses incurred as a result of the fact that for imperative educational reasons he was obliged to withdraw his son from the European School where he was enrolled and to place him at another educational establishment better suited to his special educational needs.

3 On 11 October 1977 the request was rejected on the ground that the conditions laid down in the first indent of the third paragraph of Article 3 of Annex VII to the Staff Regulations were not satisfied, since the applicant's place of employment (Brussels) was not at least 50 km from either a European school or from the establishment attended by the child.

6 The applicant maintains first that the Commission breached "the general principle of good management and sound administration" by failing to interpret the contested provision of the Staff Regulations in the manner most favourable to the person concerned, that is, the applicant. He maintains that it was possible to interpret the provision in question to mean that the condition relating to distance which it contains would be relevant only if the child attended an educational establishment other than a European school for reasons which were independent of his psychological and educational state. As in this instance it is not disputed that the decision to enrol the applicant's son at an educational establishment other than a European school is based upon "imperative educational reasons" the applicant maintains that by refusing to comply with his request the Commission did not make a reasonable use of its discretion.

7 Secondly, the applicant maintains that the interpretation of the provision in dispute given by the Commission would lead to discrimination between children inter alia according to whether the educational establishment selected was or was not situated more than 50 km from the official's place of employment.

8 The version of the first part of the third paragraph of Article 3 of Annex VII to the Staff Regulations in force at the time of the events which form the subject of this application was to the effect that the maximum amount of the

WOEHRLING v COMMISSION

education allowance for each dependent child in regular full-time attendance at an educational establishment should be doubled for:

13 However, under Article 70 of the Rules of Procedure, in proceedings by servants of the Communities, institutions shall bear their own costs.

OPINION OF MR REISCHL — CASE 164 /78

On those grounds,

THE COURT (Second Chamber)

hereby:

1. Dismisses the application;

1 — Translated from the German.