C-152/81
ECLI:EU:C:1983:208
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JUDGMENT OF 14. 7. 1983 — JOINED CASES 152 AND OTHERS/81
In Joined Cases 152, 158, 162, 166, 170, 173, 175, 177 to 179, 182 and 186/81
W. FERRARIO, A. BORELLA, U. CUCCHIARA, A. M. FEDERICO, C. GIOVANNINI, M. MANZOTTI, R. MIRA CATO, E. PERUCCIO, V. PRAOLINI, M. PUCCIA, G. STIVALA, F. VIOLIN, who are all officials or temporary staff employed at the Joint Research Centre, Ispra branch, Italy, represented and assisted by M. Slusny, of the Brussels Bar, with an address for service in Luxembourg at the residence of F. Avena, 29 Rue de la Liberation, Strassen, applicants,
v
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, J. Griesmar, acting as Agent, assisted by D. Jacob, of the Brussels Bar, with an address for service in Luxembourg at the office of O. Montako, a member of its Legal Department, Jean Monnet Building, Kirchberg, defendant,
supported by COUNCIL OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, J. Carbery, acting as Agent, with an address for service in Luxembourg at the office of H. J. Pabbruwe, a director in the Legal Affairs Directorate of the European Investment Bank, Kirchberg,
APPLICATIONS for
A declaration that the second indent of the third paragraph of Article 3 of Annex VII to the Staff Regulations of Officials is inapplicable in so far as it restricts the doubling of the education allowance to officials who are entitled to the expatriation allowance;
A declaration and order that the Commission shall rectify the applicants' accounts in respects of the expenses indicated in their applications, the education allowance being doubled,
FERRARIO v COMMISSION
T H E C O U R T (Second C h a m b e r )
composed of: P. Pescatore, President of Chamber, O. Due and K. Bahlmann, J u d g e s ,
Advocate G e n e r a l : S. R o z è s Registrar: H . A. R ü h i , Principal Administrator
gives the following
JUDGMENT
Facts and Issues
The facts of the case, the course of dependent child within the meaning of the procedure and the conclusions, Article 2 (2) who is in regular full-time submissions and arguments of the parties attendance at an educational estab- may be summarized as follows : lishment.
Entitlement to this allowance shall commence on the first day of the month I — Relevant provisions in which the child reaches the age of six years and shall cease at the end of the 1. The provisions of the Staff Regu- month in which the child reaches the age lations of Officials with regard to the of twenty-one years." education' allowance and the various amendments thereto may be summarized as follows: 3. By Regulations Nos 30/65/EEC and 4/65/Euratom of the Councils of 16 March 1965 amending the Staff Regu- 2. Article 3 of Annex VII to Regulation lations of Officials and the Conditions of Nos 31 (EEC) and 11 (EAEC) of Employment of Other Servants of the the Council of 18 December 1961 laying European Economic Community and the down the Staff Regulations of Officials European Atomic Energy Community and the Conditions of Employment of (Official Journal, English Special Edition Other Servants of the European 1965-66, p. 43), Article 3 of Annex VII, Economic Community and the European referred to above, was amended to read Atomic Energy Community (Official as follows: Journal, English Special Edition 1959-62, p. 135) stated: "An official shall receive an education allowance equal to the actual education "An official shall receive an education costs incurred by him up to a maximum allowance equal to the actual education of BFR 1 000 per month for each costs incurred by him up to a maximum dependent child within the meaning of of BFR 900 per month for each Article 2 (2) above who is in regular full-
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time attendance at an educational the following provisions contained in establishment. Article 28 of its Proposal of 13 June 1974 (Official Journal 1974, C 88, p. 25) Entitlement to this allowance shall for the provisions in question : commence on the first day of the month in which the child begins to attend a "The maximum prescribed in the first primary school and shall cease at the end paragraph shall be doubled for: of the month in which the child reaches the age of 25 years. An official whose place of employment is at least 50 km from a European school The maximum referred to in the first or an educational establishment working paragraph of this article shall be raised to in his language, provided that the BFR 2 000 per month for an official in child actually attends an educational receipt of expatriation allowance whose establishment at least 50 km from the place of employment is at least 50 km place of employment; and from a European School." An official whose place of employment is at least 50 km from an educational 4. Regulation (EEC, Euratom, ECSC) establishment of post-secondary level in No 259/68 of the Council of 29 the country of which he is a national or February 1968 (Official Journal, English working in his language, provided that Special Edition 1968 (1), p. 30) the child actually attends an educational introduced a single set of regulations establishment of post-secondary level governing the officials and other servants at least 50 km from the place of of the European Communities. The third employment." paragraph of Article 3 of Annex VII to those Staff Regulations was replaced by 6. Subsequently the Staff Regulations the following provision by Article 52 of were amended by Regulation (Euratom, Regulation (Euratom, ECSC, EEC) No ECSC, EEC) No 711/75 of the Council 1473/72 of the Council of 30 June 1972 of 18 March 1975 (Official Journal (Official Journal, English Special Edition 1975, L 71, p. 1). The Council, in Article 1972(111), p. 703): 1 thereof, accepted the Commission's proposal with regard to the first indent "The maximum prescribed in the first of the third paragraph of Article 3 but paragraph shall be raised to BFR 3 129 amended the wording of the second for officials in receipt of expatriation indent which relates to post-secondary allowance whose place of employment is education to read as follows: at least 50 km: "An official whose place of employment From a European School; or is at least 50 km from an establishment of higher education in the country of From an educational establishment of which he is a national or working in his university level of his country of origin, language, provided that the child provided that the child actually attends actually attends an establishment of an educational establishment of univer- higher education at least 50 km from the sity level at least 50 km from the place of place of employment and the official is employment." entitled to the expatriation allowance; the latter condition shall not apply if there is no such establishment in the 5. In 1974 the Commission submitted country of which the official is a to the Council a proposal to substitute national."
FERRARIO v COMMISSION
7. Article 4(1) of Annex VII to the than 50 kilometres from their place of Staff Regulations provides that an ex- employment. patriation allowance shall be paid :
2. At the end of 1980 the applicants "(a) to officials: submitted requests to be granted the double education allowance under the second indent of the third paragraph of Who are not and have never been Article 3 of Annex VII to the Staff Regu- nationals of the State in whose lations. The appointing authority territory the place where they are rejected the requests and reminded the employed is situated; and applicants that the provision of the Staff Regulations on which they relied provided that receipt of the double Who during the 10 years ending six education allowance was subject to the months before they entered the requirement that the recipient was service did not habitually reside or entitled to the expatriation allowance. carry on their main occupation within the European territory of that State. For the purposes of this provision, circumstances arising 3. As a result of that rejection the from work done for another State applicants submitted complaints to or for an international organization which, however, they received no reply. shall not be taken into account; They therefore instituted the present proceedings on 15 June 1981.
(b) to officials who are or have been nationals of the State in whose 4. On 15 July and 9 December 1981 territory the place where they are the applicants' complaints were expressly employed is situated but who rejected. during the 10 years ending at the date of their entering the service habitually resided outside the 5. By an order of 29 October 1981 the European territory of that State for Second Chamber of the Court decided reasons other than the performance to join the cases for the purposes of the of duties in the service of a State or procedure and judgment. By a second of an international organization." order of the same date the Council was allowed to intervene in support of the defendant. By an order of 25 May 1982 certain other cases in respect of which the Commission raised an objection of II — F a c t s a n d p r o c e d u r e inadmissibility were disjoined from these cases.
1. The applicants, Wanda Ferrano and others, are all officials or temporary staff 6. Upon hearing the report of the employed at the Joint Research Centre, Judge-Rapporteur and the views of the Ispra branch, Italy. They are not in Advocate General, the Court (Second receipt of the expatriation allowance. Chamber) decided to open the oral Their children attend an establishment of procedure without any preparatory higher education situated in Italy more inquiry.
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III — C o n c l u s i o n s of the p a r t i e s to send their children to an establishment of higher education in their country of origin where that is different from the The applicants claim that the Court country in which the officials are should: employed. But in that case the provision should have been drafted differently Declare that the second indent of the since, on the one hand, there are officials third paragraph of Article 3 of Annex and other servants who are not entitled VII to the Staff Regulations of Officials to the expatriation allowance but whose is inapplicable in so far as it restricts the country of origin is not the same as that doubling of the education allowance to in which they are employed and, on the officials who are entitled to the expatri- other hand, the scheme creates a new ation allowance; discriminatory situation inasmuch as it prevents officials from having a free Declare null and void the defendant's choice as to establishments of higher express rejection of the applicants' education, even those situated abroad. complaints;
Declare and order that the defendant The discrimination arising from the shall be required to rectify the applicants' accounts in respect of the expenses provision in question is contrary to the indicated in their applications, the general principles of law and there is no education allowance being doubled; objective justification for it. Discrimi- nation may be accepted if it is not Order the defendant to pay the costs. arbitrary and if its purpose may be regarded as preserving the interests of The Commission (the defendant) the service, but that is not the case in the contends that the Court should : present circumstances: the fact that the situations of the officials in question are Reject the applications as unfounded; the same, is recognized inasmuch as the level of education allowance in respect of Order the applicants to pay the costs. education other than higher education does not depend on receipt by the official of the expatriation allowance. Moreover, the costs incurred as a result IV — S u b m i s s i o n s a n d a r g u m e n t s of studies where the educational of t h e p a r t i e s establishment is situated more than 50 kilometres from the official's place of 1. The applicants base their action on a employment are the same whether or not single submission alleging discrimination the official is in receipt of the expatri- between themselves and the officials or ation allowance. In addition it cannot be other servants who are in receipt of the supposed that the children of officials expatriation allowance in respect of the who are in receipt of the expatriation application of the second indent of the allowance are in a particularly difficult third paragraph of Article 3 of Annex position as a result of their language and VII to the Staff Regulations. nationality. Many of those children have already completed their primary and They state that it is no doubt possible to secondary education in the country take the view that with the final where the official is employed and know amendment the text in question was the language of that country as well as intended to take into account the special their mother tongue; as regards national- position of officials who are entitled to ity that ought to be irrelevant since on the expatriation allowance and who wish the one hand qualifications have been
FERRARIO v COMMISSION
assimilated whilst, on the other hand, capable of giving rise without any every person has freedom of objective reason to the grant of other establishment at least within the benefits which should be granted to all European Communities. persons in comparable situations.
Furthermore the scheme which has been Finally, in view of the Council's obser- adopted is incomprehensible since the vations the applicants state that it is official or other servant, for example one impossible to show that the expenses employed at the Joint Research Centre at incurred abroad are higher than those Ispra, who is in receipt of the expatri- incurred in the country in which the ation allowance and who sends one of official is employed. Furthermore, they his children to an establishment of higher disagree that the provision in question education in Italy receives the double evinces a European spirit, as is alleged by education allowance whilst his colleague the Council, since it denies to officials who is not in receipt of the expatriation who are not in receipt of the expatriation allowance and who sends his child to the allowance the free choice, in respect of same establishment does not receive the their children, as to establishments of double allowance. higher education in any country.
The scheme is, moreover, irrational since 2. The Commission contends that the it affects the decision of parents, after applicants are mistaken in their view that the transfer of an official, as to whether the scheme in question is discriminatory. to allow their children to continue their studies at the original university. The applicants draw attention to the specific In adopting the provision in question the case of one of the officials at Ispra who Council assumed that an official who is was originally employed in Belgium, and entitled to the expatriation allowance who, being entitled to the double comes from a country other than that in education allowance, sent his daughter which he is employed and that, in the to a Belgian university. When he was majority of cases, the child of such an reassigned to a post in Italy he continued official pursues his higher education in to send his daughter to that university the official's country of origin. The but the allowance was no longer Commission emphasizes that 97.4 % of doubled. all officials employed at Ispra who are entitled to the expatriation allowance are not of Italian nationality. Only 31 of a In reply to the Commission's argument total of 569 officials have children (36) that the number of officials affected by who are pursuing higher education in the discrimination is limited they Italy. Yet 147 children of officials falling emphasize that the injustice exists within that category are pursuing higher regardless of the number of persons education outside Italy, namely in their affected by it. country of origin.
The applicants maintain that to make the The intention of the draftsmen of the double education allowance depend on Staff Regulations was to enable officials entitlement to the expatriation allowance to send their children to engage in is tantamount to giving that criterion a higher education in their country of general validity, whereas it is only an origin without thereby being penalized exception which should be interpreted financially. In general it is incontestable narrowly and which is therefore not that the expenses incurred by a child
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pursuing studies in the country of origin The defendant emphasizes the very small are higher than in the case of education number of officials in an allegedly in the country in which the official is discriminatory situation. The number of employed. The fact that in certain officials who are in receipt of a double marginal cases the travel costs are just as education allowance in respect of high for a child studying in the country children studying in Italy and who do where the official is employed is due, in not have Italian nationality is not high in general, to the deliberate choice by the comparison to the total number of parents of an educational establishment officials whose children are pursuing situated far from the place of employ- higher education in Italy.
Equally ment. Accordingly such marginal cases insignificant is the number of officials should not be taken into account. (six) of Italian nationality at Ispra who are in receipt of the double education allowance in respect of their children (nine) pursuing higher education in Italy. The defendant states that of the officials who are employed at Ispra and are not in receipt of the expatriation allowance Furthermore, an official who is forced to only four children of Italian officials are send his child to study outside the pursuing higher education abroad and country where he is employed for that no children of an official who is not reasons of language and nationality is Italian are undertaking similar studies not in the same position as an official abroad. The case of the official originally who freely chooses to send his child employed in Belgium, referred to by the abroad when there is available an applicants, is an exceptional case since it educational establishment working in his involves an official transferred from language in the territory of the country Belgium to Italy during the higher
where he is employed. The two education of his child. situations are objectively different and may therefore legitimately be the subject of different provisions. As was indicated above, only 36 children of officials who are not Italian nationals and who are in With regard to the relationship between receipt of the expatriation allowance are the double education allowance and the pursuing higher education in Italy, whilst expatriation allowance the defendant 147 children belonging to the same observes that a similar relationship exists category are pursuing their studies in the in other areas, for example in relation to countries of origin. Moreover, of the the receipt of the installation allowance. children of Italian officials not one It goes on to state that although it must whose father is in receipt of the expatri- be agreed that the wording of Article 5 ation allowance is studying abroad whilst of Annex VII to the Staff Regulations is only four of those whose father is not in not perfect, nevertheless it does not receipt of that allowance are studying follow that the wording of the provision
abroad. Those sociological facts show must be regarded as a source of discrimi- that the applicants' argument that nation since account must also be taken language and nationality are irrelevant of its purpose. does not correspond to the facts. Further- more, in a number of disciplines (for example law) only the possession of a degree awarded by the country of residence in fact permits a person to Finally the defendant maintains that the follow certain pursuits in that country. Council will have to amend the provision
FERRARIO v COMMISSION
in question if the Court should declare it to the education and maintenance of his inapplicable on the ground of discrimi- children. nation. In fact the Council might decide, in substitution for the present provision, that the double education allowance shall The Council maintains that by giving the be limited to officials and other official the choice of sending his child to employees whose children undertake his country of origin or to an studies outside the country where they establishment in the country in which he are employed, provided that a given is working it is demonstrating a more distance separates the educational generous and more European spirit since establishment from the parents' resi- to require the official to send his child to dence. Consequently the interest which an establishment in his country of origin the applicants are able to claim would, in or working in his mother tongue in order the present case, be of an abstract nature to receive the double allowance would such that it would not seem admissible lead to an emphasis being placed on for them to request the Court to declare questions of nationality. the contested provision of the regulations inapplicable. Furthermore, there is no discrimination with regard to the applicants even if account is taken of certain exceptional 3. The Council, intervening, supports cases in which officials whose country of the conclusions of the Commission. It origin is not Italy send their children to emphasizes that the contested require- establishments of higher education in ment was included in the provision as a Italy, because such officials may incur result of an analysis of the position of higher expenses as a result of integrating the vast majority of officials who, finding their children into a foreign educational themselves in a country which is not and system. never will be their own, send their children to their country of origin in order to ensure the best possible prospects for their future. Consequently V — Oral procedure the appropriate comparison to be made is with the normal case of the official who sends his children to his country of origin or to an establishment working in At the sitting of 17 March 1983 oral his mother tongue. argument was presented by the applicants, represented by M. Slusny and O. Slusny, by the Commission, represented by D. Jacob and by the An official who is assigned to a post in a Council, represented by J. Carbery, and country which is not his country of replies were given to the questions put by origin cannot be regarded as being in the the Court. same position as an official who is employed in his country of origin. The former official is automatically at a As a result of a question put by the disadvantage in comparison to the latter. Court during the sitting the Commission For example, the former does not have replied in writing that there were 437 the social and family connections with officials and temporary staff employed at the country which the latter has. Brussels who were not Belgian nationals Consequently the former will often have and who were not in receipt of the expa- higher expenses in particular with regard triation allowance. Of the officials and
JUDGMENT OF 14. 7. 1983 — JOINED CASES 152 AND OTHERS/81
temporary staff who fell within that studying in the country of employment category 22 were in receipt of the and two were studying in another education allowance in respect of their country which was not the country of children undertaking higher education origin. whilst the number of children giving rise to that allowance as a result of their The Advocate General delivered her studies was 26. Of those, 24 were opinion at the sitting on 30 June 1983.
Decision
1 By applications lodged at the Court Registry on 15 June 1981, the applicants, officials or members of the temporary staff of the Commission of the European Communities, brought actions for a declaration that the second indent of the third paragraph of Article 3 of Annex VII to the Staff Regu- lations of Officials, which applies by analogy to other servants of the Communities, is inapplicable in so far as it restricts the doubling of the education .allowance to officials who are entitled to the expatriation allowance. The applicants also request the Court to declare and order that the Commission shall rectify their accounts in respect of the expenses indicated in their applications, the education allowance being, doubled.
2 The second indent of the third paragraph of Article 3 of Annex VII to the Staff Regulations was introduced by Article 1 of Regulation No 711/75 of the Council of 18 March 1975 (Official Journal, L 71, p. 1). That provision states that the basic education allowance is to be doubled in the case of:
"An official whose place of employment is at least 50 km from an establishment of higher education in the country of which he is a national or working in his language, provided that the child actually attends an establishment of higher education at least 50 km from the place of employment and the official is entitled to the expatriation allowance."
3 All the applicants are employed at the Joint Research Centre at Ispra, Italy. They fulfil all the conditions laid down by the aforementioned provision except the requirement that they must be in receipt of the expatriation allowance. At the end of 1980 they submitted requests to be granted the double education allowance.
FERRARIO v COMMISSION
4 The Commission rejected the applicants' requests on the ground that the statutory provision on which they relied makes the grant of the double education allowance subject to the requirement that the receipient is entitled to the expatriation allowance. As the complaints made against that rejection received no reply the applicants brought the present actions.
5 They base their actions on a single submission, namely arbitrary discrimi- nation between themselves and the officials and other employees who are in receipt of the expatriation allowance in respect of the application of the second indent of the third paragraph of Article 3 of Annex VII to the Staff Regulations. They maintain that the scheme adopted is incomprehensible, irrational and devoid of any objective justification and that it affects parental freedom of choice with regard to the establishment of higher education to which to send their children. They state that the expense incurred as a result of studying more than 50 kilometres from the place of the official's employment is the same for all persons, whether or not they are in receipt of the expatriation allowance and that justice should be done regardless of the ..:, .fact that the number of officials suffering discrimination is limited.
6 The Commission, supported by the Council, intervening, states that the purpose of the provision in question is to enable those officials who are employed in a country other than their country of origin to send their children to the country of origin to pursue higher education in order to ensure the best possible prospects. i o r their future without the officials' thereby being penalized financially. The Commission emphasizes the very small number of officials who are in the position described by the applicants.
7 According to the Court's consistent case-law the general principle of equality is one of the fundamental principles of the law of the Community civil service. That principle requires that comparable situations shall not be treated differently unless such differentiation is objectively justified. Clearly it requires that employees who are in identical situations shall be governed by the same rules, but it does not prevent the Community legislature from taking into account objective differences in the conditions or situations in which those concerned are placed.
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s In order to test the validity of the contested provision it is therefore necessary to consider whether the situation of employees entitled to the expatriation allowance has objective features which justify a difference in treatment with regard to the education allowance as against that of officials not entitled to the allowance.
9 According to Article 4 (1) of Annex VII to the Staff Regulations payment of the expatriation allowance depends on conditions relating first to the employee's place of residence before his entry into his present employment and secondly on his nationality. In its judgment of 15 January 1981 in Case 1322/79 (Vutera [1981] ECR 127) the Court has already accepted that those criteria are based on objective factors and are, in general, an appropriate manner in which to limit the category of persons whose origin and lack of a close link with the country in which they are employed may give rise to expenses and disadvantages for which compensation ought to be given in the form of the said allowance.
io The object of the scheme of education allowances is to ensure that every employee, wherever he is employed, is able to provide for his children's upbringing and education. There is no doubt that it is a considerable advantage for any person to be able to pursue his higher education in his own language and at an establishment where he is able to obtain qualifications which are fully recognized in his country of origin. Similarly there is no doubt in that respect that the children of employees who fulfil the conditions for the grant of the expatriation allowance are, as a general rule, at a disadvantage in comparison with those of employees who have a close connection with the country in which they are employed.
n The objective relationship between, on the one hand, the entitlement to the expatriation allowance and, on the other hand, the need for an official to send his children to his country of origin to pursue their higher education is, moreover, confirmed by the statistics collected by the Commission. According to those figures, in the vast majority of cases, children of employees who are in receipt of the expatriation allowance pursue their higher education at an establishment in the country of origin of the official, whilst children of employees who are not entitled to that allowance almost always pursue their studies in the country in which the parent is employed.
FERRARIO v COMMISSION
12 The applicants were therefore quite correct to concentrate their argument on cases in which children of employees entitled to the expatriation allowance also pursue their higher education in the country in which the parent is employed. Regardless of the fact that, according to the statistics, such cases are of a somewhat marginal nature, the Community legislature cannot be criticized for having left that option open for such employees. As a general rule such children are compelled to become integrated into a university environment which is foreign to them and to carry out their studies in a language which is not their own. Such a situation also entails expenses and disadvantages in comparison with the children of employees who have a close connection with the country in question.
1 3 It follows from all those considerations that the second indent of the third paragraph of Article 3 of Annex VII to the Staff Regulations, in so far as it provides for a difference of treatment between employees according to whether they are or are not entitled to the expatriation allowance, is based on objective criteria and has a direct relationship with the purpose of the scheme of education allowances. It is therefore incorrect for the applicants to allege that those criteria result in arbitrary discrimination.
u Consequently, the applicability of the said provision cannot be called in question. Since the applicants are outside the field of application of that provision there are no grounds for rectifying their accounts in respect of the expenses indicated in their applications. It follows that the applications must be dismissed in their entirety.
Costs
is Article 69 (2) of the Rules of Procedure provides that the unsuccessful party is to be ordered žo pay the costs. Nevertheless, under Article 70 of those rules in proceedings brought by employees of the Communities the institutions are to bear their own costs.
OPINION OF MRS ROZĒS — JOINED CASES 152 AND OTHERS/81
O n those grounds,.
T H E C O U R T (Second C h a m b e r )
hereby:
1. Dismisses the applications;
2. Orders the parties to bear their own costs.
Pescatore Due Bahlmann
Delivered in o p e n c o u r t in L u x e m b o u r g on 14 J u l y 1983.
J. A. Pompe P. Pescatore Deputy Registrar President of the Second Chamber
OPINION OF MRS ADVOCATE GENERAL ROZÈS DELIVERED ON 30 JUNE 1983 '
Mr President, The cases on which I give my opinion Members of the Court, today are only a part of those originally brought. They do not include those cases A series of actions was brought against which the Court on 25 May 1982 the Commission on 15 June 1981 by ordered to be disjoined on the ground officials and temporary staff in relation that the Commission raised an objection to the conditions for the grant of the of inadmissibility in respect of them by double educational allowance in respect reason of delay in the presentation of the of attendance at an establishment of complaint through official channels. In higher education by their children. those cases the proceedings were
1 — Translated from the French.