C-43/79
ECLI:EU:C:1980:36
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J U D G M E N T O F T H E C O U R T (FIRST CFIAMBER) OF 7 FEBRUARY 1980 «
Tito Mencarelli v Commission of the European Communities "Education costs"
Case 43/79
Officials — Remuneration — Family allowances — Education allowance — Actual education costs — Cost of accommodation in an educational establishment — Inclusion (Staff ReguLtions, Annex VII, Art. 3)
Since the cost of accommodation in an The official on whom the child depends establishment in which a child is and who fulfils the conditions laid down educated are an addition to the expenses in the second paragraph of Article 3 of normally borne by the head of household Annex VII is accordingly entitled to the they constitute "actual education costs" reimbursement of the said cost up to the within the meaning of Article 3 of Annex amount laid down by that provision. VII to the Staff Regulations of Officials.
In Case 43/79
Trro MENCARELLI, an official of the Commission of the European Communities, of 11 Europawijk, Geel, represented by Victor Biel of the Luxembourg Bar, with an address for service in Luxembourg at the Chambers of the said Victor Biel, 18a Rue des Glacis, applicant, v
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Alain Van Solinge, acting as Agent, assisted by Daniel Jacob, of the Brussels 1 — Language of the Case: French.
JUDGMENT OF 7. 2. 1980 — CASE 43/79
Bar, with an address for service in Luxembourg at the office of its Legal Adviser, Mario Cervino, Jean Monnet Building, Kirchberg, defendant,
APPLICATION primarily for the annulment of the implied decision rejecting a complaint submitted by the applicant on 28 August 1978 under Article 90 of the Staff Regulations of Officials concerning his entitlement to twice the amount of the education allowance provided for in Article 3 of Annex VII to the Staff Regulations,
T H E C O U R T (First Chamber)
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, the procedure and the costs incurred by him up to a maximum arguments of the parties may be of Bfr 3 302 per month for each summarized as follows: dependent child . . . who is in regular full-time attendance at an educational establishment.
I — Facts and written procedure
1. Article 3 of Annex VII to the Staff The maximum prescribed in the first Regulations, as amended by Article 1 of paragraph shall be doubled for: Council Regulation No 3084/78 of 21 December 1978 (Official Journal 1978 L — an official whose place of em- 369 p.l), provides that: ployment is at least 50 km from, either: "An official shall receive an education allowance equal to the actual education — a European School, or
MENCARELLI v COMMISSION
— an educational establishment working of a standard monthly amount in his language which the child corresponding to 36 % or 50 % of attends for imperative educational the single amount of the education reasons duly supported by evidence". allowance, depending on whether the dependent child is over or under 11 years of age; Pursuant to Article 3 of the General Implementing Provisions for Granting the balance of the allowance is the Education Allowance (Administrative employed to reimburse actual Notices No 153 of 2 May 1977) the education costs on presentation of education allowance, whether or not supporting documents; doubled as aforesaid, covers:
"(a) registration and examination fees at (b) where the child attends an educational establishments; educational establishment away from the family home and is accommodated outside the family (b) transport costs incurred in the use home the official on whom the child of a public means of transport or of is dependent receives an education special transport serving the school; allowance equal to the amount stated in the first paragraph of Article 3 of Annex VII without being required to (c) obligatory expenses shown for the present any supporting documents. purchase of books, school equipment, sports outfit, school insurance and medical equipment cover and other expenses connected The applicant, an official at the Joint with following the curriculum of Research Centre at Geel, has a daughter the educational establishment aged 20 who attended the European attended; School at Mol. The class adviser recommended that she should follow "another type of course better suited to (d) costs incurred by children partici- the pupil's abilities" and she was enrolled pating in courses at winter sports, from the school year 1977 to 1978 at the coastal or countryside resorts, Centre d'Education et de Culture de provided such courses are l'Institut de l'Enfant Jésus, Brussels. organized as part of the curriculum by the educational establishment outside school holidays and the The fees at that school amount to Bfr child is accommodated away from 25 000 per annum; in addition board home for the duration of such amounts of Bfr 3 500 per month and courses; the provisions of (c) above transport to Bfr 650 per month. shall not apply to the costs specified in this subparagraph." By a letter of 21 April 1978 the applicant was notified by the Directorate General 2. Article 4 of the same General of Personnel of the Commission that his Provisions provides that: file would be transmitted to the relevant department "with a recommendation that twice the amount of the education (a) in general, necessary educational allowance should be paid; . . . however, costs are reimbursed up to the limit the award of the allowance will be
JUDGMENT OF 7. 2. 1980 — CASE 43/79
subject to the submission of the 2. Commission contends that the Court necessary documentary evidence". should:
By a note of 20 June 1978 from the "(a) dismiss the application as Administration of the Centre at Geel, unfounded; signed by Mr Gubernator, the applicant • was notified that, whilst the cost of board and lodging for his daughter could (b) order the applicant to pay the not be reimbursed, her transport costs costs." would be reimbursed since the school which she attended during the week was closed at the weekend. Two alternatives were put before the applicant: either Ill — Submissions and argu- payment of 50 % of the single allowance m e n t s of t h e p a r t i e s together with justifiable transport costs up to Bfr 650 per month or continued payment of the single allowance. 1. In his application the applicant states that the expenses of board and lodging On 28 August the applicant submitted a at the school are reimbursable because complaint under Article 90 of the Staff they are -not excluded either by Article 3 Regulations. of Annex VII to the Staff Regulations or by Article 3 of the General Implementing Provisions for Granting the Education The Commission did not reply to that Allowance, in which the list of exclusions complaint. is exhaustive. This application was lodged on 15 March 1979. The expenses in question are referred to in Article 3 (c) of the said Provisions The Court (First Chamber), on hearing which mentions: " . . . other expenses the views of the Advocate General, connected with following the curriculum decided to open the oral procedure of the educational establishment . . . " . without any preparatory inquiry. They are incurred because the child is accommodated away from home just as when participating in courses at winter sports, coastal or countryside resorts for II — C o n c l u s i o n s of t h e p a r t i e s which it is provided that the expenses are to be reimbursed.
1. The applicant in his reply claims that The doubling of the amount of the the Court should: education allowance where the child attends, for imperative educational "(a) declare that the implied rejection of reasons, an educational establishment at (his) complaint is unjustified and least 50 kilometres from the place of accordingly annul it; employment of the official would be pointless if the costs of board and (b) order the Commission to comply lodging could not be reimbursed. with its obligations relating to the double amount; 2. In its defence the Commission argues (c) furthermore order it to pay the first of all that the dispute does not costs". concern the right to "twice the amount"
MENCARELLI v COMMISSION
of thé education allowance since the allowance and by the right to obtain the applicant is entitled to the reimbursement full amount of the education allowance of the "actual education costs" provided without submitting documentary for in Article 3 of the above-mentioned evidence that education costs up to that General Implementing Provisions up to a amount have actually been incurred. maximum amount equal to twice Bfr 3 302. The dispute turns solely on the nature of the expenses which may be reimbursed up to an amount equal to 3. In his reply the applicant emphasizes twice the education allowance. that the alternative put forward in Mr Gubernator's note of 20 June 1978 cannot be reconciled with the recognition in the Commission's defence Article 3 of Annex VII defines the of the right to twice the amount of the conditions for granting the education allowance. allowance without drawing up a list of educational expenses which are covered by the allowance. That list is given in Article 3 of the General Implementing The applicant maintains that the Provisions. It is exhaustive and makes no expenses of board and lodging constitute provision for costs of board and lodging. "an unavoidable necessity from which no one can escape" whilst, for example, the expenses for sports equipment and the costs of participating in a winter sports These costs do not constitute expenses class come within the category of "connected with following the "amusement". curriculum of the education establishment" such as expenditure incurred for "the purchase of books, The applicant disagrees with the school equipment, sports outfit". Commission's argument to the effect that Expenses incurred as a result of parti- in any case he receives the dependent cipation in courses in winter sports, child allowance. coastal or countryside resorts are not comparable to those in this case. The applicant considers that the distance which separates his place of employment Attendance at an establishment like the from the educational establishment school in question may entail attended by his daughter is such that she considerable enrolment fees and high could not conceivably travel daily. This transport costs since by definition the fact renders the refusal to take into establishment in question is more than 50 account the costs of board and lodging kilometres from the place where the "absurd". official is employed. Far from being pointless the doubling of the amount of the education allowance makes it possible to alleviate such additional Article 3 of the General Implementing charges. Provisions is illegal on the ground that it is in conflict with the provisions of Article 3 of Annex VII to the Staff Regu- lations and reduces their scope. The The Commission remarks in conclusion latter article defines the type of expenses that the costs of board and lodging are which may be reimbursed, namely covered by the monthly dependent child "actual education costs". The applicant
JUDGMENT OF 7. 2. 1980 — CASE 43/79
notes that the versions of this passage in are covered, apart from the dependent the various languages are not in child allowance, by the household accordance: the French version embodies allowance amounting to 5 % of the basic the concept of "schooling" (scolarité) salary. whilst the German and English versions refer to "education" in general; however the draftsmen of the General The Commission recalls, purely in the Implementing Provisions have in- alternative since the allegation that terpreted "scolarité" by restricting the Article 3 of the General Provisions is costs which may be reimbursed to purely illegal was not put forward in the scholastic expenditure. application, that Article 3 of Annex VII in no way defines "actual education costs". Far from restricting the scope of the education allowance the detailed list The applicant asks whether in the case of of such costs in the General a handicapped child living in a special Implementing Provisions on the contrary centre, the administration would clarifies it. The Commission also continue to insist on its restrictive in- challenges the argument based on the terpretation which in such a case would German and English versions of the be absolutely improper. provision which certainly cover the concept of schooling costs: "Erziehungs- zulage" (education allowance) in relation In its rejoinder the Commission states to attendance at school ("Schulbesuch") that the content of Mr Gubernator's note and "education allowance" in the sense in no way conflicts with the line of of teaching and schooling. argument in the defence: Mr Gubernator in fact notified the applicant that he would receive an allowance equal to the With regard to expenses for a handi- sum specified in Article 3 of Annex VII capped child the two cases cannot be since he had failed to provide compared and furthermore the documentary evidence establishing the dependent child allowance may then be existence of education costs, in excess of doubled (Article 67 (3) of the Staff that amount. Regulations).
A mere perusal of Article 3 (c) of the General Implementing Provisions is IV — O r a l p r o c e d u r e sufficient to establish that expenses qualifying for reimbursement under the education allowance are those closely The applicant, represented by Victor related to the curriculum of the school Biel, of the Luxembourg Bar, and the attended. Commission, represented by D. Jacob of the Brussels Bar, presented oral argument at the sitting on 15 November The suggestion that the refusal to take 1979. into account the board and lodging costs is "absurd" and cannot in any case apply to the latter which do not vary according The Advocate General delivered his to whether or not the child is a boarder. opinion at the sitting on 6 December Furthermore those two sorts of expenses 1979.
MENCARELLI v COMMISSION
Decision
1 By an application dated 15 March 1979 the applicant, an official at the Joint Research Centre, Geel, claims the annulment of the implied decision rejecting a complaint submitted by him on 28 August 1978 under Article 90 of the Staff Regulations of Officials concerning his entitlement to twice the amount of the education allowance pursuant to Article 3 of Annex VII to the Staff Regulations.
2 The applicant's daughter was enrolled from the school year 1977/78 at the Centre d'Education et de Culture de l'Institut de l'Enfant Jésus, Brussels, since the class adviser at the European School at Mol which she previously attended had recommended that she should follow another type of teaching better suited to her abilities. The costs of lodging at the Institut amounted to Bfr 25 000 per annum and the boarding costs to Bfr 3 500 per month.
3 The applicant was notified by the Directorate General of Personnel of the Commission in a letter of 21 April 1978 that the file which he had submitted would be transmitted to the relevant department with a recommendation for payment of the double education allowance. It was nevertheless made clear that it was a condition of granting the allowance that he should submit the necessary supporting documents.
4 By a note of 20 June 1978 the Administration of the Centre at Geel notified the applicant that the costs of board and lodging for his daughter could not be reimbursed but that, since the school which she attended was closed at the weekend her transport expenses (Bfr 650 per month) would be reimbursed. Two alternatives were put before the applicant: either payment of 50 % of the single allowance supplemented by justifiable transport costs up to Bfr 650 per month or continued payment of the single allowance.
5 The Commission failed to reply to the complaint which the applicant lodged under Article 90 of the Staff Regulations. Such failure to reply must thus be considered as an implied rejection by the Commission of the applicant's complaint.
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6 Article 3 of Annex VII to the Staff Regulations as amended by Article 1 of Council Regulation N o 3084/78 of 21 December 1978 (Official Journal L 369, p. 1), provides that:
"An official shall receive an education allowance equal to the actual education costs incurred by him up to a maximum of Bfr 3 302 per month for each dependent child . . . who is in regular full-time attendance at an educational establishment.
The maximum prescribed in the first paragraph shall be doubled for:
— an official whose place of employment is at least 50 km from, either
— a European school, or
— an educational establishment working in his language which the child attends for imperative educational reasons duly supported by evidence".
7 Pursuant to Article 3 of the General Implementing Provisions for Granting the Education Allowance (Administrative Notices N o 153 of 2 May 1977) the education allowance, whether or not doubled as aforesaid, covers :
"(a) registration and examination fees at educational establishments;
(b) transport costs incurred in the use of a public means of transport or of special transport serving the school;
(c) obligatory expenses shown for the purchase of books, school equipment, sports outfit, school insurance and medical expenses cover and other expenses connected with following the curriculum of the educational establishment attended;
(d) costs incurred by children participating in courses at winter sports, coastal or countryside resorts, provided such courses are organized as part of the curriculum by the educational establishment outside school holidays and the child is accommodated away from home for the duration of such courses; the provisions of (c) above shall not apply to the costs specified in this subparagraph."
MENCARELLI v COMMISSION
8 Article 4 of the same General Provisions provides that:
(a) in general, necessary educational costs are reimbursed up to the limit of a standard monthly amount corresponding to 36% or 50% of the single amount of the education allowance, depending on whether the dependent child is over or under 11 years of age; the balance of the allowance is employed to reimburse actual education costs on pre- sentation of supporting documents;
(b) where the child attends an educational establishment away from the family home and is accommodated outside the family home the official on whom the child is dependent receives an education allowance equal to the amount stated in the first paragraph of Article 3 of Annex VII without being required to present any supporting documents.
9 The applicant understood the note of 20 June 1978 as refusing him both the double amount and the reimbursement of costs which, in his view, were the unavoidable consequence of the education of his daughter in Brussels, that is the costs of board and lodging. In fact the dispute ultimately turns not on the right to "twice the amount" of the education allowance, granted to the applicant up to the limit of the reimbursement of "actual education costs" provided for in Article 3 of the above-mentioned General Implementing Provisions up to an amount equal to twice Bfr 3 302, but on the nature of the costs which may be reimbursed up to "twice that amount".
io The applicant claims that the cost of board and lodging incurred in respect of his daughter may be reimbursed since it is not excluded either by Article 3 of Annex VII to the Staff Regulations or by Article 3 of the General Implementing Provisions. H e states that it is covered by Article 3 (c) under the reference to "other expenses connected with following the curriculum" and arises because the child is accommodated away from the family home.
ii The Commission does not dispute that, for imperative reasons, the second paragraph of Article 3 of Annex VII to the Staff Regulations applies to this case.
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i2 Nevertheless the Commission considers that the list of expenses covered by the allowance and contained in Article 3 of the General Implementing Provisions is exhaustive and does not include those which form the subject- matter of the proceedings. Board and lodging costs do not," it claims, constitute expenses "connected with following the curriculum", such as expenses incurred for "the purchase of books, school equipment, sports outfit . . . " .
n It is impossible to uphold in its entirety the final argument of the Commission to the effect that the expenses of board and lodging are already covered by the monthly dependent child allowance and by the entitlement to the single education allowance without the submission of supporting documents establishing that education costs up to that amount have actually been incurred.
H In fact whilst it is true that the boarding costs must be paid by the head of the family whether a child takes his meals at the educational establishment which he attends or at home it must also be recognized that the cost of lodging at such an establishment is an addition to the expenses normally borne by the head of household and must accordingly be regarded as constituting expenses which justify the grant of the education allowance up to "twice the amount" on presentation of supporting documents.
is In this case the applicant must accordingly be reimbursed the "actual education costs" including the cost of accommodation for his daughter at the Institut de l'Enfant Jésus, being Bfr 25 000 per annum up to an amount equal to twice Bfr 3 302 per month.
Costs
i6 Pursuant to Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs. Since the defendant has been unsuccessful it must be ordered to pay the costs.
MENCARELLI v COMMISSION
On those grounds,
T H E C O U R T (First Chamber)
hereby:
1. Orders the reimbursement to the applicant of the "actual education costs" including the cost of accommodation for his daughter at the Institut de l'Enfant Jésus up to an amount equal to twice the sum provided for in Article 3 of Annex VII to the Staff Regulations of Officials;
2. Orders the Commission to pay the costs.
O'Keeffe Bosco Koopmans
Delivered in open court in Luxembourg on 7 February 1980.
A. Van Houtte A. O'Keeffe Registrar President of the First Chamber
OPINION OF MR ADVOCATE GENERAL MAYRAS DELIVERED ON 6 DECEMBER 1979 '
Mr President, I — Mr Mencarelli, an official of the Members of the Court, Commission employed at . the Joint Research Centre at Geel, has a daughter This case concerns the nature of the who was born in 1959 and who education expenses which may be experienced difficulties in following the reimbursed up to an amount equal to course of instruction provided for her at twice the amount of the education the European School at Mol. The class allowance. adviser at the school therefore I — Translated from the French.