C-256/78

J U D G M E N T O F T H E C O U R T (FIRST CHAMBER) O F 13 FEBRUARY 1980 »

Rolf Misenta v Commission of the European Communities

"Reimbursement of sickness expenses"

Case 256/78

Officials — Social Security — Reimbursement of sickness expenses — Equal treatment — Exchange rate applicable — Exchange rate for quarter in wich reimbursement is effected (Staff Regulations, Art. 72; Annex VII, Art. 17)

The principle of equal treatment of on the date of reimbursement. The rate officials requires that the rate of to be applied must therefore be that for exchange to be applied in the the quarter in which reimbursement is reimbursement of sickness expenses effected. should be as close as possible to the rate

composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges,

Advocate General: H. Mayras Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the procedure and Article 2 of Annex VII are insured the submissions and arguments of the against sickness up to 80% of the parties may be summarized as follows: expenditure incurred subject to rules drawn up by agreement between the institutions of the Communities after consulting the Staff Regulations I — Facts and written procedure Committee ...".

In order to deal with the administrative problems presented by currency fluc- Reimbursement of these expenses was tuations the Commission decided on made in Italian lire on 18 January 1978 6 November 1974 to apply up-to-date on the basis of a statement prepared on exchange rates to the reimbursement of 20 December 1977 by the office at Ispra expenses including sickness expenses responsible for settling claims. within the meaning of Article 72 of the Staff Regulations, and gave its accounting officer instructions to issue in 3. On 2 March 1978 the applicant the middle of each quarter the rates to made a request under Article 90 (1) of be used from the commencement of the the Staff Regulations concerning a loss following quarter. of D M 326.22 which he had suffered upon reimbursement of his health expenses owing to the application of the By a circular of 5 March 1975 the system of up-to-date exchange rates. Central Office of the Joint Scheme laid down Implementing Provisions relating This request was dismissed by a decision to the bringing up-to-date of Exchange of the Director General of the Ispra Rates in the field of Sickness Insurance Centre on 14 March 1978. by which:

On 5 June 1978 the applicant made a — "Where treatment is paid for in complaint to the Commission under currencies other than Belgian francs Article 90 (2) of the Staff Regulations the sums paid are to be converted against the decision to reject his request. into Belgian francs at the up-to-date rate in force at the date when the This application was made on 23 treatment was provided; November 1978.

On hearing the views of the Advocate practitioner he should be entitled to General, the Court (First Chamber) reimbursement of the "actual" cost of decided to open the oral procedure the expenses paid to that practitioner. without any preparatory inquiry. Even though the Court may recognize that reimbursement must be effected in the currency of the country in which the II — Conclusions of the parties official performs his duties, the fact remains that there must be equivalence between the amount calculated by 1. The applicant claims that the Court applying the percentage laid down in the should: Staff Regulations and the actual amount "(a) declare this application to be reimbursed. admissible; The applicant further points out that the (b) declare that the system of system of reimbursing sickness expenses reimbursing sickness expenses based using up-to-date exchange rates causes upon exchange rates brought up to the rate of reimbursement to vary date for periods in which the according to the currency in which the expenses were incurred is expenses were incurred. Thus, in the case incompatible with Article 72 of the of the same expenses incurred in German Staff Regulations and therefore marks, an official employed in Brussels illegal; or in Luxembourg would be reimbursed at 79,9%, whilst the applicant was (c) annul the implied decision rejecting reimbursed at less than 7 0 % contrary to his complaint; the entitlement to 80% reimbursement (d) order the Commission to pay the provided by Article 72 of the Staff Regu- sum of D M 326.22 with interest lations. thereon according to law from the date of his complaint; The applicant protests that the Commission did not take account of the (e) order the Commission to pay the statement in the proposal from its Secre- costs." tariat General entitled "Administrative problems created by currency fluc- 2. The defendant contends that the tuations" to the effect that: "Situations Court should: should be avoided by which officials, having the same amount of expenditure, "(a) reject the application as unfounded; find themselves reimbursed according to different percentages, depending whether (b) order the applicant to pay the they are employed in a country where costs." the currency which is 'strong' or 'weak' by reference to the currency of the III — Submissions and argu- country in which the Community has its m e n t s of t h e p a r t i e s seat . . . (and) to that of his place of assignment." 1. In his application the applicant first of all contends that neither Article 72 of The system applied was from the the Staff Regulations nor its beginning incompatible with Article. 72 implementing provisions make any of the Staff Regulations. In fact expenses provision for the currency in which incurred during the first quarter of 1975 sickness expenses are to be reimbursed. had to be submitted for reimbursement Since the Staff Regulations provide that by December 1976 at the latest: in view each official shall be free to choose his of the interval between the submission of

bills and invoices and actual repayment, is sometimes rather long, between the this reimbursement would only take time when treatment is given and the place in January 1977 at the earliest. For submission of the claim for this reimbursement the exchange rates reimbursement to the office responsible, brought up to date for the first quarter is largely in the hands of the claimant. of 1975, namely Lit 264.8 for each German mark were applied. The rate on 3 January 1977 however was Lit 372.7 The Commission however thinks that if for each German mark. the applicant considers that he has suffered some "loss" from the point of view of social security by comparing over The applicant suggests the following a period of time the amount reimbursed ways of remedying the situation: in Italian lire to the payment for the treatment in German marks, then he should still exclude from his calculation — Reimbursement in the currency in — as being a matter of purely private which the obligation arose; or initiative — the conversion of the amount paid in Italian lire into German marks at the free market rate. — Calculation of the equivalent of the amount to be reimbursed in the currency of the country of employment on the basis of the rate 3. In his reply the applicant protests in force on the day of payment against the Commission's statement that between the currency in which the the only relevant date for the calculation expenses were incurred and the one of reimbursement is the date of in which reimbursement is made. treatment: this is contrary to the practice of private sickness insurance companies and to Decision No 101 of the Commission of 29 May 1975 concerning 2. In its defence the Commission takes the date to be taken into consideration the view that most of the criticism when determining the rates of conversion levelled at the application of the joint to be applied when calculating certain scheme for the reimbursement of benefits (Official Journal C 44 of 26 sickness expenses to the applicant's case February 1976, p. 3), which fixes that does not in any way concern the legality date as the day on which the decision by of the system generally, but rather the the competent institution to reimburse financial effects from the conjunctural the expenses incurred by the claimant is point of view of any changes in exchange made. rates which may occur between the date of treatment, the only date taken into account as the basis of calculation for The applicant submits that Article 17 of reimbursement, and the later date when Annex VII to the Staff Regulations does payment is made by the office not refer to sickness expenses or to those responsible for settling claims. dealt with by the Commission decision of 6 November 1974 on the administrative problems created by currency fluc- Variations in exchange rate between the tuations, some of which (for example different currencies depend on the free payments for accident and invalidity world market over which the allowances) are paid in the currency in Community has practically no power. which they were incurred. Moreover the Furthermore the interval of time, which German wording of Article 17 refers to

At the most a claimant can reduce the time interval between the receipt of bills Article 17 of Annex VII to the Staff and invoices and their submission for Regulations is of general scope and there reimbursement. But this time interval is is no exception in the Staff Regulations insignificant compared to the time taken as regards sickness insurance. by the office responsible for payments to make the reimbursement.

The Commission admits that the theoretical ideal of using daily rates has As for the Commission's powerlessness in not been achieved but contends that the regard to fluctuations in the exchange use of rates brought up to date quarterly rate of the different currencies, the represents a considerable improvement applicant points out that any solution on the use of a fixed exchange rate as other than reimbursement at the rate provided by Article 63 of the Staff Regu- applicable on the date of payment would lations, which, for weightings, takes represent an unjust enrichment for the account of the par values used on

MISENTA v COMMISSION

1 January 1965 to convert Belgian francs IV — Oral procedure into the currency of the country in which an official performs his duties. At the sitting held on 15 November 1979 the applicant, represented by V. Biel, of the Luxembourg Bar, and the There are certainly grounds for debating Commission, represented by R. Baeyens, the system which is used in view of acting as Agent, and by V. Wieme, of conjunctural fluctuations in exchange the Brussels Bar, presented oral rates; but the Commission feels this is argument. not a difficulty which puts in question the lawfulness as such, and thus the The Advocate General delivered his operation, of the sickness insurance opinion at the sitting held on scheme. 6 December 1979.

5 By a circular of 5 March 1975 the Central Office of the Joint Scheme laid down Implementing Provisions relating to the bringing up to date of Exchange Rates in the field of Sickness Insurance by which :

— "Where treatment is paid for in currencies other than Belgian francs the sums paid are to be converted into Belgian francs at the up-to-date rate in force at the date when the treatment was provided;

— If payment is made in a currency other than Belgian francs the amount in Belgian francs for each treatment is to be reconverted into the currency in which payment was made at the up-to-date rate in force at the date when treatment was provided".

6 Article 71 (1) of the Staff Regulations provides that: "An official, his spouse, his children and other dependants within the meaning of Article 2 of Annex VII are insured against sickness up to 80% of the expenditure incurred subject to rules drawn up by agreement between the institutions of the Communities after consulting the Staff Regulations Committee . . ."

7 Under Article 17 (1) of Annex VII to the Staff Regulations, "Payment shall be made to each official at the place and in the currency of the country where he carries out his duties".

s Article 9 (1) of the Rules on Sickness Insurance for Officials of the European Communities adopted, as regards the Commission, on 26 September 1974

JUDGMENT OF 13. 2. 1980 — CASE 256/78

i2 In the light of these considerations the Court holds that the principle of equal treatment of officials requires that the rate of exchange to be applied in the reimbursement of sickness expenses should be as close as possible to the rate on the date of reimbursement. The rate to be applied must therefore be that for the quarter in which the reimbursement is effected.

Costs

1 3 Since the defendant has failed in its action it must be ordered to pay the costs.

On those grounds,

T H E C O U R T (First Chamber)