C-103/79

ANDREW M. MOAT, an official of the Commission of the European Communities, residing in Brussels, represented by Jacques Putzeys and Xavier Leurquin, Advocates at the Brussels Bar, with an address for service in Luxembourg at the Chambers of Mr Nickts, huissier, 17 Boulevard Royal, applicant, v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Alain van Solinge, a member of its Legal Department, acting as Agent, assisted by Daniel Jacob, Advocate at the Brussels Bar, with an address for service in Luxembourg at the office of its Legal Adviser, Mario Cervino, Jean Monnet Building, Kirchberg, defendant,

APPLICATION for annulment of the express decision rejecting the applicant's request relating to the grant of the education allowance and for damages, 1 — Language of lhe Case: French.

JUDGMENT OF 11. 7. 1980 — CASE 103/79

T H E COURT (First Chamber)

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

MOAT v COMMISSION

European school or an educational "The maximum prescribed in the first establishment working in his paragraph shall be doubled for: language, provided that the child actually attends an educational — an official whose place of em- establishment at least 50 km from the ployment is at least 50 km from, place of employment; and - either: a European school, or — an official whose place of employ- ment is at least 50 km from an estab- an educational establishment working lishment of higher education in the in his language which the child country of which he is a national or attends for imperative educational working in his language, -provided reasons duly supported by evidence; that the child actually attends an — an official whose place of em- establishment of higher education at ployment is at least 50 km from an least 50 km from the place of employ- establishment of higher education in ment and the official is entitled to the the country of which he is a national expatriation allowance; the latter or working in his language, provided condition shall not apply if there is no that the child actually attends an such establishment in the country of establishment of higher education at which the official is a national." least 50 km from the place of employment and the official is Article 4 (5) of the General im- entitled to the expatriation allow- plementing provisions for granting the ance; the latter condition shall not education allowance (published in apply if there is no such estab- Administrative Notices No 153 of 2 May lishment in the country of which the 1977 pp. 21 to 25 stipulates: official is a national."

JUDGMENT OF 11. 7. 1980 — CASE 103/79

MOAT v COMMISSION

JUDGMENT OF 11. 7. 1980 — CASE 103/79

arose, that is to say in September 1976. As far as concerns the applicant's interest Consequently, Article 2 of Regulation in the proceedings he stresses that the No 711/75 of the Council of 18 March action is concerned with the circum- 1975 amending the Staff Regulations is stances under which entitlement to alone applicable in this case. double the maximum education allowance arises and not with the Since his daughter had obtained the conditions under which this right is General Certificate of Education at exercised or implemented. Ordinary Level at the end of the 1975- 1976 school year he stated that in his Any attempt to justify the breach of an view Leith's School of Food and Wine in acquired right by relying on the retro- London was similar to an establishment active effect of the General implementing of higher education within the meaning provisions for granting the education of the second indent of the third allowance is of course unlawful so that paragraph of Article 3 of Annex VII to any such effect does not apply to the • the Staff Regulations and submitted his applicant. request on this basis under the said regu-

The same applies conclusion that the establishment to the "presentation of supporting attended by the applicant's daughter did documents". not comply with those criteria, points out that the decision of 27 February 1978 Consequently there is no doubt that rejecting his complaint against the Article 4 (5) of the General im- decision referred to above merely plementing regulations for granting the repeated the arguments relating to the education allowance supplements the concept of an establishment of higher Staff Regulations. education relied on previously. But that provision is not a Staff Regu- Following the fresh request submitted by lation and therefore not a regulation at the applicant on the basis of the first all so that it contains nothing more than indent of the third paragraph of Article 3 administrative measures on a par with of Annex VII to the Staff Regulations those practices which the Commission the defendant considered it again, on the imposes on itself. basis of the fresh legal argument put

MOAT v COMMISSION

1 March 1975. evidence. The link between officials and The defendant maintains that the Community institutions is constituted application is out of time, since it is solely by regulations, including the Staff directed against a purely confirmatory Regulations. The Community authority decision. That was not so in Case 54/77 is therefore entitled at any time to amend Antoon Herpels v Commission of the the Staff Regulations in a manner which European Communities [1978] ECR 585 it considers to be in the interests of the quoted by the applicant. service, provided that the amendments do not have a retroactive effect As far as concerns the applicant's interest detrimental to the staff (cf. the opinion in the proceedings the defendant states of Mr Advocate General Mayras in Case that not until the proceedings had 28/74 Fabrizio Gillet vCommission of the reached the stage at which he delivered European Communities [1975] ECR 463 his reply did the applicant produce the et seq.). supporting documents showing that the expenses which he incurred exceeded But consideration of the rules for the maximum of the single education granting double the maximum education allowance.

JUDGMENT OF 11. 7. 1980 — CASE 103/79

In this way School of Brussels providing primary and the defendant discriminated between secondary education. The defendant those children and the children of concludes from those facts that it cannot officials whose language is that of the grant an education allowance up to the official's place of employment. doubled maximum for attendance at an educational establishment in the United The defendant replies that, with regard to Kingdom, even if there is no the first submission, the letter of 26 establishment of the kind chosen for March 1979 emanated from the education reasons, working in English at Director-General for Personnel and the official's place of employment or Administration.

employment provides similar appropriate education and the child is in fact With regard to the second submission the attending an educational establishment at defendant points out that, as provided least 50 km from the official's place of for in the first indent of the third employment. paragraph of Article 3, in Annex VII and Article 4 (5) of the General im- The defendant, by refusing to plementing provisions for granting the acknowledge that the applicant is education allowance an official is entitled

to a refund of the education costs with the unambiguous requirements of specified in Article 3 of the said General Annex VII to the Staff Regulations and provisions on presentation of supporting the implementing provisions. Further- documents up to a maximum equal to more the applicant has not pleaded that double the maximum of this allowance, these provisions are unlawful under if his place of employment is at least Article 184 of the Treaty. 50 km from a European school or an educational establishment working in his language which his child attends for The possibility of discrimination is not to imperative educational reasons duly be found in the contested decision but supported by evidence. the wording of the provisions governing the grant of the doubled maximum education allowance. Pursuant to these provisions the head of the Individual Rights and Privileges Division informed the applicant on 6 Furthermore, the applicant has simplified October 1978 that he was unable to in a peculiar way the wording of these accede to his request because the provisions failing to remember that applicant had not proved (and did not granting the doubled maximum is in even offer to prove) that there were particular subject to there being imperative educational reasons justifying imperative educational reasons. his child's attendance at Leith's School of Food and Wine. According to the defendant the provisions relating to the doubled maximum education allowance prescribe So the defendant, far from infringing or misapplying the relevant provisions, has objective conditions, which are binding in fact complied with those rules. on everyone, and are adjusted to the aim envisaged by the adoption of the doubled maximum; they cannot therefore give With regard to the third submission the rise to the complaint of discrimination. defendant takes the view that the right which every official has to send his The applicant in his reply stresses, as far children to the school of his choice as concerns the first submission, that the cannot have the effect of granting him decision of 26 March 1979 rejecting the automatically the doubling of the second complaint was made by an maximum education allowance from authority which did not have the power the moment when the educational to reject it. Contrary to the defendant's establishment working in his language, view the letter of the Director-General which his child actually attends, is more for Personnel and Administration is than 50 km from his place of definitely a decision adversely affecting employment. the applicant, because it is unques- tionably the reply of the authority to the complaint of 8 December 1978. The Such an argument would completely consequence of this is that the decision disregard the precise conditions laid rejecting the complaint through official down for the granting of this doubled channels lodged by the applicant on 8 maximum. December 1978 is void.

rejection replaced on 8 April 1979 its secondary education. The applicant takes invalid decision of 26 March 1979. the view that it meets the above- mentioned requirements. Moreover, the teachers of the British School of Brussels With regard to the second submission the recommended this type of education. applicant asserts that the existence of his The applicant emphasizes that he has right is only to be found in the always been refused the education provisions of the Staff Regulations. The allowance up to the doubled maximum authors of the Staff Regulations wanted on principle. He refers to the judgment to guarantee each child an appropriate of 31 May 1979 in Case 164/78 Francis education in its mother tongue. On the Woehrlingv Commission of the European other hand they did not want to give an Communities [1979] ECR 1961. official the right to an education allowance up to the doubled maximum where the latter, who can choose either an educational establishment of the same The applicant maintains that the General type working in his mother tongue implementing provisions are unlawful if within 50 km of his place of employment they are intended to have retroactive or an establishment in his country of effect in order to cancel a right which origin, opts, for strictly personal reasons, the applicant has acquired. If they are for the establishment in his country of intended to add to the Staff Regulations origin. legal conditions for the existence of the disputed right then they have been laid down by an inefficient author for the purpose of amending the Staff Regu- The authors of. the Staff Regulations lations. If their aim is to implement the never intended to influence, even Staff Regulations it must be found that indirectly, the selection of the type of they do so unlawfully, for they sup- education by granting a doubling of the plement them. The conditions of im- maximum education allowance only for a plementation relate to the conditions for particular type of academic education at exercising the disputed right and not to the expense of technical training, which the conditions for its existence which is another type of education. must be sought only in the Staff Regu- lations. The first indent of the third paragraph of Article 3 of Annex VII to the Staff Regu- lations (1975 version) does not mention With regard to the third submission the imperative educational reasons. In fact, applicant points out that the argument from the moment an official's child does has been put forward in case it is held not find within a radius of 50 km from that the first indent of the third his parents's place of employment an paragraph of Article 3 of Annex VII to establishment providing the type of the Staff Regulations gives preferential education which has been selected treatment to the children of officials (primary, secondary, higher) in his whose place of employment is in a mother tongue, there are in se imperative country where their mother tongue is educational reasons for enrolling at such spoken and that it also favours academic an establishment more than 50 km from education as against technical training. the place of employment.

VII to the Staff Regulations would turn European school and a British School of this provision into a rule conflicting with Brussels. the provisions and principles referred to in the submission. The argument advocated by the applicant in his reply comes up against The unlawfulness of the rule is therefore the clear wording of the legal provisions implicit in the submission and the applicable in this case. applicant can in fact avail himself of such unlawfulness under Article 184 of the EEC Treaty which does not have to be With regard to the third submission the expressly referred to in order that it may defendant observes that the applicant did be relied on, since it is applicable as of not call in question the lawfulness of the right. first indent of the third paragraph of Article 3 of Annex VII to the Staff Regu- lations, as drawn up in 1976, until he The applicant takes the view that the delivered his reply. As provided for in defendant has conceded that, if the rules Article 42 (2) of the Rules of Procedure of the Staff Regulations relating to the no fresh issue may be raised in the disputed right were to be applied along course of proceedings. A plea of unlaw- the lines of the contested decisions, there fulness, like any other submission, would be discrimination between the cannot be made by implication. children of officials who speak the language of their place of employment and have the nationality of the State B — Claim for damages where they are employed and the children of other officials. The applicant asserts that the measure of The defendant in its rejoinder replies, the material damage he has suffered in with reference to the first submission, that consequence of the unlawful refusal to it is evident from the letter of 26 March grant him the education allowance up to 1979 that the latter does not answer the the doubled maximum is the loss of substance of the complaint. The letter interest at the rate of 8 %, that is the cannot therefore be regarded as coming legal rate of interest in Belgium, on the from an authority which is not amount of this allowance from the date competent. on which it should have been paid to the date on which it will in fact be paid following the judgment in which the With regard to the second submission the defendant is ordered to pay it. defendant maintains the argument which it has asserted in its defence. The defendant states that the measure, the benefit whereof the applicant is In addition it points out that the first claiming, does certainly not provide for indent of the third paragraph of Article 3 payment of "a double education of Annex VII which was in force in allowance" but for the reimbursement of 1976, makes the granting of the doubled costs over and above the maximum of maximum education allowance con- the single education allowance, provided ditional on the absence, within a radius that documents are produced establishing of 50 km from the place of employment, that the costs fall within one of the cate- of a European school or an educational gories of repayable expenses set out in establishment working in the official's Article 3 of the General implementing language. Now in Brussels there is both a provisions.

3 The Commission has made two pleas that the action is inadmissible based respectively on non-compliance with time-limits and lack of legal interest in the proceedings. It contends in addition that the action is unfounded.

MOAT v COMMISSION

Admissibility

4 The Court's file shows that the applicant submitted a request on 7 March 1977 for the doubling of the education allowance. The aim of the request, which was based on the applicant's daughter's having enrolled at Leith's School of Food and Wine in London, was to show that the training provided by that establishment was classified as "higher education" within the meaning of the second indent of the third paragraph of Article 3 of Annex VII to the Staff Regulations. This request for the doubling of the education allowance was refused on 19 July 1977 by a letter of the head of the Individual Rights and Privileges Division on the ground that the education in question cannot be regarded as "higher education".

5 The Commission rejected the complaint against that refusal on 27 February 1978. In that complaint the applicant requested the Commission to admit that he was entitled to the doubled maximum either on the basis of Article 5 of the General implementing provisions for granting the education allowance adopted by the Commission (Establishment of higher education) or on the basis of Article 4 of those provisions (Primary and secondary schools).

6 The applicant submitted on 16 June 1978 another request for the doubled maximum stating that there was no educational establishment working in English either in Brussels, which was his place of employment, or within 50 km of that city, comparable to the establishment attended by his daughter in London and that consequently the first indent of the third paragraph of Annex VII to the Staff Regulations, as worded at that time, applied. That provision provided that the maximum education allowance shall be double for "an official whose place of employment is at least 50 km from a European school or an educational establishment working in his language, provided that the child actually attends an educational establishment at least 50 km from the place of employment".

10 The applicant's arguments are not well founded. The first of the applicant's complaints was not based only on the argument that the training provided by Leith's School of Food and Wine was "higher education" but referred also to the possibility of the Commission's granting up to the doubled allowance on the basis of other legal arguments. In his second complaint the applicant merely developed the same legal arguments without putting forward any fresh facts.

1 1 In these circumstances the letters of the Commission in reply to the applicant's second request and his second complaint merely confirmed the earlier decisions and thus could not result in starting a fresh period to run in favour of the applicant.

1 2 The result of these considerations is that, since the applicant's complaint against the refusal to grant him the education allowance up to the doubled maximum was rejected on 27 February 1978, the action brought by the applicant on 21 June 1979 must be held to be out of time.

MOAT v COMMISSION

13 The action must therefore be dismissed as inadmissible.

Costs

O'Keeffe Bosco Koopmans

Delivered in open court in Luxembourg on 11 July 1980.

For the Registrar J. A. Pompe A. O'Keeffe Deputy Registrar President of the First Chamber