C-806/79

JUDGMENT OF 20. 11. 1980 — CASE 806/79

In Case 806/79

FRANÇOIS GERIN, an official of the Commission of the European Communities, of Overijse, Belgium, represented by A. Peeters of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Fernand Entringer, 2 Rue du Palais de Justice, applicant, v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, J. Griesmar, acting as Agent, with an address for service in Luxembourg at the office of its Legal Adviser, Mario Cervino, Jean Monnet Building, Kirchberg, defendant,

APPLICATION for the annulment of the Commission's decision of 27 August 1979 rejecting the applicant's complaint against the decision of the Commission of 20 February 1979 refusing to refund to the applicant medical expenses incurred in respect of his son, who is over 26 years of age; and, in consequence, for the reimbursement of the medical expenses thus incurred and also of the premium paid to a Belgian mutual insurance fund which the applicant's son was forced to join because of the Commission's refusal to refund the said medical expenses,

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

The facts of the case, the course of the The Commission took the view that the procedure, the conclusions and the action was directed only against the submissions and arguments of the parties decision rejecting the applicant's may be summarized as follows: complaint of 27 August 1979 and therefore raised an objection of inadmissibility on the ground that the I — Facts and written procedure contested decision was not an act against which proceedings could be taken, since it merely confirmed the original decision The applicant, Mr Gerin, an official in dated 20 February 1979 adversely Grade-A 6, entered the service of the affecting the official. Commission in September 1967. His son, born on 18 December 1951, incurred in By an order of 31 January 1980 the 1978 medical expenses, which are not Court (Second Chamber) ordered that a disputed, amounting to BF 13 926 and decision on the objection of FF 53.80. On 7 February 1979 the inadmissibility should be reserved for the applicant applied to the office final judgment. responsible for settling claims in respect of the Joint Sickness Insurance Scheme The Court (Second Chamber) on for reimbursement of these medical hearing the report of the Judge-Rap- expenses on the ground that his son, porteur and the views of the Advocate General, decided to open the oral who was still a student, was still a procedure without any preparatory dependent child. inquiry. The claims office in a note dated 20 February 1979 refused to refund these medical expenses, being of the opinion II — Conclusions of the parties that the son could after 1 January 1978 no longer be regarded as a dependent child. The applicant claims in his application that the Court should: The applicant on 10 May 1979 lodged a "— Admit this application and, after complaint within the meaning of Article making an order for compliance 90 of the Staff Regulations against this with the legal formalities declare it refusal, which was rejected by the to be well founded; Commission on 27 August 1979 by a decision upholding the view of the claims — Consequently declare that the office. Commission's decision of 27 August 1979 contravenes the provisions of The applicant acknowledged receipt of Article 3 of the Rules on Sickness this decision rejecting his complaint on Insurance for Officials of the 10 September 1979 and brought an European Communities and Article action against it before the Court on 2 (2) of Annex VII to the Staff 23 November 1979. Regulations;

In his reply to the objection of inadmissibility the applicant claims that A — Admissibility the Court should: 1. Admissibility of the application for " — Take note that the applicant annulment maintains the claim for relief put forward in his application and, in so The Commission has raised an objection far as may be necessary, give that Mr Gerin's application is in- specific directions hereafter; admissible on the ground that the decision of 27 August 1979 against — Consequently annul the decision of which the application has been brought is the office responsible for settling not actionable. claims of 20 February 1979 and the Commission's decision of 27 August The Commission in fact takes the view 1979". that that decision, rejecting the applicant's complaint against the decision The defendant contends in its objection of 20 February 1979, is not capable of of inadmissibility that the Court should : giving rise to legal proceedings. It is true that the decision of 27 August 1979 is a "— On receipt of the defendant's obser- necessary preliminary, but only the vations in reply close the written decision of 20 February 1979 refusing procedure and decide, if deemed reimbursement of the medical expenses appropriate, that there are no incurred in respect of the applicant's son grounds for opening the oral is the decision adversely affecting the procedure; applicant. Consequently it is the latter decision which should have been made — Dismiss the application as in- the subject of the application to the admissible; Court. — Order the applicant to pay the When the applicant defines the act costs; adversely affecting an official as an act — Decide, as it thinks best, as to the attended by consequences, in the view of applicant's claim that his counsel's the Commission, he fails to understand fees be fixed at BF 45 000". the case-law of the Court and even the

The Commission also maintains that the 2. The admissibility of the application rejection of the complaint is only where the Court has unlimited "confirmatory" and is not therefore jurisdiction actionable; and it states that "it stands to reason that the reply to the complaint, a confirmatory act, cannot subsist if the act The defendant considers that the which it confirms is annulled". applicant, in order to overcome the obstacle of the inadmissibility of his application for annulment, may be The applicant maintains that the decision tempted to argue that the purpose of his of 20 February 1979 is not the act application is compensation which falls adversely affecting him but the "initial" within the Court's unlimited jurisdiction, act adversely affecting him, which was but since this second head of claim is confirmed by the decision of 27 August formulated only as a consequence of the 1979. Consequently the latter decision first and since that head of claim is must be assimilated to an act adversely inadmissible "there is no doubt whatever affecting him. that the inadmissibility of the first head of claim can only entail — as a consequence — the inadmissibility of the second", especially as the Court of This argument is confirmed by the wording of Article 91 (1) of the Staff Justice (judgment of 10 December 1969 Regulations which, whilst it does not in Case 32/68, Giuseppe L. V. Graselli v refer exclusively to the initial act Commission of the European Communities adversely affecting an official, does not [1969] ECR 505 and judgment of 12 expressly exclude the repeated act December 1967 in Case 4/67, Anne adversely affecting him. Muller (née Collignon) v Commission of the European Communities [1967] ECR 365) has recognized that if a claim for compensation was closely connected with Thus in the opinion of the applicant the application for annulment the former there are in fact two decisions adversely would be inadmissible if the latter was. affecting him. But if the first decision In this case the claim for "re- were annulled the second would imbursement" "formulated in conse- continue to exist whereas the annulment quence" could not be more "closely of the second decision would necessarily connected" with the first head of claim result in the annulment of the first. This concerning legality. proves the irrelevance of the Com- mission's argument which deprives the decision of 27 August 1979 of any legal The Court also held in its judgment of effect and is not compatible with Article 15 December 1966 in Case 59/65, 90 of the Staff Regulations either, for, in Heinrich Schreckenberg v Commission of that case, the Commission's decision the EAEC [1966] ECR 543, that a party

may not by means of a claim for B — Substance compensation "attempt to obtain a result similar to that of the annulment of the act adversely affecting an official if the The essential issues between the parties application for its annulment is are the interpretation of the provisions inadmissible". applicable, the objectives of the rules and the importance of the Commission's proposal to amend the wording of Article 2 (2) of Annex VII to the Staff Consequently it is of no avail for the Regulations at the 58th meeting of the applicant to maintain that at least the Staff Regulations Committee on 12 July second head of claim, the aim of which 1979 (see p. 16). is alleged to be compensation, is ad- missible. 1. Interpretation of the applicable texts The applicant points out that in his view his application for annulment is The applicant, taking the view that admissible and maintains that the insurance cover for sickness is based, in questions of the admissibility of the accordance with Article 72 (1) of the second head of claim, that for Staff Regulations, on the "Rules on compensation, does not arise. Sickness Insurance for Officials of the European Communities" (hereinafter referred to as "the Rules"), points out first that Article 3 (2) of the Rules 3. The admissibility of the claim for provides that the persons covered by a reimbursement of the premium paid member's insurance shall be "dependent to a Belgian mutual fund children within the meaning of Article 2 (2) of Annex VII to the Staff Regu- lations", which states that "dependent The Commission takes the view that, child means the legitimate, natural or since the claim for reimbursement of the adopted child of an official, or of his premium of BF 2 000 paid to a Belgian spouse, who is actually being maintained mutual insurance fund has been made for by the official". the first time before the Court and since it has not been preceded by a request to the defendant under Article 90 (1) of the It is apparent from that provision that Staff Regulations or by a complaint children over 26 years of age are not in which has been rejected either, it does any way disqualified from reimbursement not comply with the statutory of medical expenses provided that they requirements laid down in Article 91 (2) are dependent on the official. The and must therefore be rejected as Commission itself has expressly inadmissible. acknowledged by its letter of 23 November 1977 that the applicant's son is a "dependent child" and, during the period up to 31 July 1979, by granting The applicant is of the opinion that this the applicant the tax abatement for a case is concerned not with a fresh claim dependent child. but with the logical consequence of the pecuniary effect of the Commission's refusal to regard his son as a dependent The applicant maintains that even the child. Consequently this is simply an wording of Article 72 of the Staff Regu- enlargement of the original claim and is lations, which refers expressly to Article thus validly formulated. 2 of Annex VII, "provides unequivocally

The Commission is of the opinion that The Commission maintains on the other the applicant's argument is incompatible hand that extending the reimbursement with the texts which have been quoted. of medical expenses to children over 26 In fact Article 72 of the Staff Regu- years of age would not be in keeping lations refers to the whole of Article 2 of with the intention of the authors of the Annex VII; although paragraph (2) of Rules either. The evidence on which it that article in fact defines a dependent relies is the internal memorandum of child as a child who is actually being August 1975 drawing attention to the maintained by the official, paragraph (3) fact that Article 3 (2) of the Rules is defines such a child as one who is not applied within the meaning of Article 2 over 26 years of age, unless he has (2) of Annex VII to the Staff Regu- caught a serious illness or has been lations and in accordance with the disabled and prevented from earning a conditions of paragraphs (3) and (5) of livelihood. the latter, principles to which attention was also drawn by the "Practical Guide on the Reimbursement of Medical Consequently the applicant is wrong to Expenses" in 1978. It states in connexion rely on Article 3 (2) of the Rules which with these texts that they are not refers only to Article 2 (2) of Annex VII applicable legal rules but simply evidence to the Staff Regulations because, by so snowing that the intention or the authors doing, he gives an implementing of the rules has not changed. It also provision of the Staff Regulations a relies on the wording of the Rules prior larger field of application than that of to 1974 and subsequent to 1979 in which the basic provision and thus is in breach Article 3 refers to the whole of Article 2.

Consequently it is "pointless for the document which it classifies as "internal" applicant to attempt to take advantage of the applicant submits that the minutes of a fortuitous lack of textual precision the 58th meeting of the Staff Regulations contained in the wording of the Rules" Committee of 12 July 1979 are not an in force since the objective of the Rules internal document because thev were is at variance with this imprecision. Such circulated among members of the staff a view has been explained by Mr without being marked "confidential". Advocate General Reischl in his opinion of 9 November 1978 in Case 140/77, Teunis Verhaaf v Commission of the Furthermore, according to the applicant European Communities [1978] ECR 2130 the interpretation of the note of a in which he stated : member of the staff delegation by the Commission is "wrong" and "in- complete", for this delegate con- " . . . I do not consider as appropriate a sidered that it was sufficiently clear that virtually automatic application of the Article 2 (3) of Annex VII applied only provisions of the Staff Regulations which to the allowance and that the effect of adheres slavishly to the wording and in the addition proposed by the other words disregards their purpose Commission would be that only children in respect of whom the official received a dependent-child allowance could be covered by insurance. 3. The scope of the "amendment" to Article 2 (2) of Annex VII to the Staff Regulations proposed by the Com- The applicant infers from this statement mission that a contrario, without this addition, there would be no restriction and The applicant maintains that the therefore that all children, even if Commission, "fully aware of the allowances are not granted in respect of weakness of its argument", advocated an them, are persons covered by members' amendment to the wording of Article 2 insurance; thus "all the members of the (2) of Annex VII to the Staff Regu- committee were and remain convinced lations at the 58 th meeting of the Staff that the initial provision covers children Regulations Committee on 12 July 1979 with no limitation but that they must in at Luxembourg by proposing the fact be dependent". following addition to the paragraph: The Commission regrets that the ". . . conferring a right to the dependent- applicant has produced an internal child allowance". administrative document. Its production is all the more purposeless as it is not of The legal department of the Commission such a kind as to support the applicant's considered that this addition was a useful argument because the said minutes clarification to include in the paragraph indicate that the purpose of the and the applicant therefore infers from Commission's proposal was not to this a contrario that the Commission is modify the meaning of the provision itself aware that the wording in force referred to but simply to make a "helpful when the facts occurred is inconsistent clarification". with its own argument. Furthermore the Commission takes the With reference to the Commission's view that the delegate's statement — on regrets concerning the production of a which the applicant relies — relates to

1 By application lodged at the Court Registry on 23 November 1979, Mr Gerin, an official of the Commission of the European Communities, brought an action for the annulment of the Commission's decision of 27 August 1979 whereby the Commission refused to refund him medical expenses incurred in respect of his son, on the ground that the decision contravenes Article 2 (2) of Annex VII to the Staff Regulations and Article 3 of the Rules on Sickness Insurance for Officials of the European Communities (hereinafter referred to as "the Rules") adopted in accordance with the principles laid down in Article 72 of the Staff Regulations, and consequently for a declaration that the applicant is entitled to reimbursement of medical expenses in the sums of BF 13 926 and FF 53.80 and also to reimbursement of the premium of BF 2 000 paid to a Belgian mutual insurance fund which the applicant's son was forced to join by reason of the Commission's refusal to refund the said medical expenses because of his age.

A d m i s s i b i l i t y of t h e a p p l i c a t i o n

2 The Commission submits that the application is inadmissible because the decision of 27 August 1979 which is the reply to the applicant's complaint against the decision of the office responsible for settling claims of 20 February 1979 is not an act capable of adversely affecting an official since the said reply is only an act simply confirming the decision of the said office of 20 February 1979. It also submits that the further application for reimbursement of the premium paid to a Belgian mutual insurance fund is

7 The claim for reimbursement of the premium of BF 2 000 paid to a Belgian mutual insurance fund is only the logical consequence of the Commission's refusal to continue to reimburse the medical expenses incurred in respect of the applicant's son because he was over 26 years of age. This claim is therefore admissible in so far as it forms part of the principal claim.

GERIN v COMMISSION

Substance

8 The applicai«, relying primarily on Article 3 (2) of the Rules, submits that he is entitled to a refund of the medical expenses incurred in respect of his son who is over 26 years of age, because the latter is still dependent on him, that the Commission itself has already acknowledged that his son is a "dependent child" by granting him the corresponding tax abatement, and that the adoption of the Commission's argument, would be tantamount to insuring against sickness only those children in respect of whom an allowance has been granted, whereas the provision in force when the facts occurred provides only that they should be "dependent" without specifically mentioning any age.

9 In order to deal with this line of argument the applicable provisions should be considered.

io Under Article 72 (1) of the Staff Regulations:

JUDGMENT OF 20. 11. 1980 — CASE 806/79

i2 Article 3 (2) of the Rules adopted in implementation of Article 72 (1) of the Staff Regulations provided at the time that the persons covered by a member's insurance against sickness were to be :

"dependent children within the meaning of Article 2 (2) of Annex VII to the Staff Regulations".

i3 The applicant's argument is based on the fact that Article 3 (2) of the Rules refers only to Article 2 (2) of Annex VII, so that any child "who is actually being maintained by the official" without any age-limit is to be regarded as a "dependent child".

H As the Commission has argued with good reason this argument cannot be upheld.

is In fact the system established by the Staff Regulations has the same conditions for the grant of the dependent-child allowance and of sickness insurance for dependent children. That is the meaning of the reference in Article 72 to Article 2 of Annex VII viewed as a whole. The Rules, in so far as they are provisions implementing the Staff Regulations, were not capable, by means of an incomplete reference to the said Article 2 of Annex VII, of abolishing one of the conditions laid down by that article, namely that appearing in paragraph (3), which was not referred to in the provision in force when the facts occurred. Consequently the age-limit laid down by Article 2 of Annex VII also applies to sickness insurance for children.

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

hereby:

1. Dismisses the application;

2. Orders the parties to bear their own costs.

Pescatore Touffait Due

Delivered in open court in Luxembourg on 20 November 1980.