C-65/83

defendant,

A P P L I C A T I O N for t h e g r a n t of a household allowance,

T H E C O U R T (Third C h a m b e r )

composed of: Y. G a l m o t , President of Chamber, U . Everling and C. K a k o u r i s , J u d g e s ,

Advocate General : G. F. M a n c i n i Registrar: H . J u n g , Legal Secretary

gives t h e following

1. Pursuant to Article 67 (1) of the 2. The applicant, who is unmarried and Staff Regulations, family allowances comes from Italy, has been an official in include a household allowance equal to Grade C 1 in the General Secretariat of 5 % of the basic salary, which may not the Council since 1 August 1972. be less than BFR 3 568 per month, and a dependent child allowance of BFR 4 881. In 1978 the applicant's mother, who lived in Italy, found that her personal With regard to the dependent child income of less than BFR 10 000 per allowance Article 2 (4) of Annex VII to month was insufficient to provide for the Staff Regulations provides that her accommodation and upkeep. She therefore went to live in Brussels with "Any person whom the official has a the applicant who thenceforth con- legal responsibility to maintain and tributed substantially to the costs of whose maintenance involves heavy supporting her mother. According to a expenditure may, exceptionally, be medical certificate dated 6 June 1983, treated as if he were a dependent child the state of health of the applicant's by special reasoned decision of the mother makes it necessary for her to live appointing authority, based on sup- with her daughter. porting documents." In those circumstances, the applicant According to Article 1 (2) of Annex VII, asked for her mother to be treated as if she were a dependent child within the "The household allowance shall be meaning of Article 2 (4) of Annex VII to granted to: the Staff Regulations. The appointing authority acceded to that request with effect from 1 November 1978. (a) a married official;

the ground that the fact that her mother of the Staff Regulations, seeking the lived under her roof and was maintained grant of a household allowance. by her placed her in the position of a "head of household", and she also By memorandum of 17 February 1983, referred to the documents on the basis of the Secretary-General of the Council which her mother had been treated as if rejected that complaint on the ground she were a dependent child. that consideration of the applicant's file had shown on the one hand that her mother had certain resources at her By memorandum of 25 September 1981, disposal and, on the other, that he had the Director of Administration informed already taken a decision that the the applicant that her application could applicant's mother would be treated as not be granted since the fact that a a dependent child. He considered person was treated as a dependent child therefore that he was unable to adopt did not give rise to any right to the a special reasoned decision granting the household allowance and the documents applicant a household allowance and also to which the applicant had referred did reiterated that his negative decision was not justify the adoption of two decisions consistent with fair and non-discrimi- on an exceptional basis in respect of the natory practice with respect to the same person. applicant and officials in situations comparable to hers. On 12 November 1981 the applicant sent a memorandum to the Director of Administration in which she put forward II — W r i t t e n p r o c e d u r e a n d c o n - legal arguments in support of her clusions opinion that she satisfied the conditions laid down in Article 1 (2) (c) without the need for a decision to be adopted on an 1. By this action, brought by an exceptional basis. She therefore asked application lodged at the Court Registry the Director of Administration to review on 22 April 1983, the applicant is his decision. pursuing her application for the grant of a household allowance. She claims that the Court should : On 5 July 1982, the Director of Administration informed the applicant 1. Primarily that he could not depart from the view which he had already expressed orally, Declare null and void the decision since the provision in question had been taken on 5 July 1982 by the Director adopted in order to cover circumstances of Administration that the applicant different from those of the applicant, should not be granted the household and consistent administrative practice allowance under Article 1 (2) (c) of common to all the institutions precluded Annex VII to the Staff Regulations; the application of that provision at the same time as that of the provision Declare that the applicant, by actually whereby a person was treated as a assuming family responsibilities, fulfils dependent child. the requirements laid down by Article 1 (2) (c) of Annex VII to the Staff Regulations; 4. On 22 September 1982 the applicant lodged with the Secretary-General of the And therefore, declare that the Council a complaint under Article 90 (2) applicant is entitled to the household

allowance from the date on which she decision of the appointing authority of made her application, namely 23 July 17 February 1983. 1981; The applicant considers that her 2. So far as necessary application is admissible since it is directed against a decision purporting to Declare null and void the decision be a measure adopted by the competent taken on 17 February 1983 by the body, which is intended to produce legal Secretary-General of the Council of effects and constitutes the final phase of the European Communities in his the internal procedure followed by that capacity as the appointing authority body. expressly rejecting the applicant's complaint; 2. As regards the substance, the 3. Order the Council to pay the costs. applicant claims that both Belgian and Italian law impose upon her a duty to assist her mother. In view of her 2. The Council contends that the Court mother's state of health, she could should : discharge that duty only by arranging for Dismiss the applicant's claims as un- her mother to live with her in Brussels. founded; and She is thereby subject to considerable financial burdens in the form of higher Order the applicant to pay the costs to accommodation charges, medical ex- the extent to which they are not payable penses, travel costs for a person who is by the defendant pursuant to Articles 70 almost an invalid, and so forth. Pier and 95 (2) of the Rules of Procedure. present remuneration does not enable her to meet all those charges. 3. The written procedure followed the normal course. The first submission upon which the applicant bases her application relates to Upon hearing the report of the Judge- infringement of Article 1 (2) (c) of Rapporteur and the views of the Annex VII to the Staff Regulations. That Advocate General, the Court (Third provision accords a degree of discretion Chamber) decided to open the oral to the appointing authority only with procedure without any preparatory regard to assessment of the re- inquiry. sponsibilities actually borne by an official. By adopting the decision to treat the applicant's mother as if she were a i I I — Submissions and argu- dependent child, the appointing auth- m e n t s of the p a r t i e s s u b - ority recognized that the applicant mitted during the written actually assumed those responsibilities. procedure On the other hand, no discretionary power exists regarding the application of that provision once the family re- 1. As regards admissibility, the Council sponsibilities have been recognized and considers that since actions may be there is no provision by virtue of which brought only against decisions of the an official may be denied entitlement to appointing authority the applicant's a household allowance on the ground principal claim for the annulment of that he has benefited from a decision a decision by the Director of under Article 2 (4) of Annex VII. By Administration is inadmissible. On the contrast with the position under the other hand, the application is admissible latter provision, the appointing authority in so far as it is directed against the has no discretion under Article 1 (2) (c)

as to whether or not it is appropriate, to and the payment provided for in Article adopt the decision in question. The 8 of Annex VII to the Staff Regulations. legislature intended that every official who actually assumes family re- sponsibilities in respect of any persons who actually form part of his family should be entitled to a household allowance. The Council emphasizes in the first place that it has not been established that in 1978 the applicant's mother could live only with the applicant in Brussels or that there is no other way in which the applicant could discharge her obligations to maintain her mother, for example by finding a rest home or other home where she could be cared for in Italy. The monthly remuneration of nearly BFR 100 000, including the dependent child The applicant's second submission relates allowance, received by the applicant is in to breach of the principles of equality any case adequate to enable two persons and non-discrimination. In that con- to live. nection, the applicant states in the first place that an official who is widowed, divorced, legally separated or unmarried and has one or more dependent children and in addition one or more persons treated as if they were dependent children, is entitled to the household As regards the applicant's first sub- allowance and to the dependent child mission, the Council · contends that a allowance and also to the payment decision to treat a person1 as if he were a provided for in Article 8 of Annex VII to dependent child does not entail an the Staff Regulations for persons treated acknowledgement that the official as if they were dependent children. On concerned actually assumes family the other hand, an official who has no responsibilities. There is no provision to children but assumes the same family the effect that an official who assumes responsibilities in respect of a person the upkeep of a person treated as a treated as if he were a dependent child is dependent child is to be granted a not entitled, even though he must incur household allowance. The ratio legis of the same expenses of upkeep and Article 1 (2) is to ease the situation of a accommodation, to the household married official or an official with one or allowance and to the payment provided more dependent children. By making for in Article 8 of Annex VII. In the provision in Article 1 (2) (c) for a special second place, an unmarried official who reasoned decision on the basis of sup- actually assumes family responsibilities in porting documents, the legislature con- respect of a person treated as if he were ferred upon the appointing authority a a dependent child is in an incomparably discretionary power entitling it to decide less comfortable financial situation than whether the reasons relied upon by the a married official whose spouse works person concerned and the reasons behind and who has also had the benefit of a the provision in question were appro- decision treating a person as if he were a priate and legitimate. The application of dependent child, since such an official both Article 1 (2) (c) and Article 2 (4) also receives the household allowance must be based on a restrictive interpre-

Decision

1 By application lodged at the C o u r t Registry on 22 April 1983, Miss Gabriella Erdini, an official in the General Secretariat of the Council of the E u r o p e a n Communities, b r o u g h t an action for annulment of the decision refusing her the household allowance provided for in Article 67 of the Staff Regulations of Officials and Article 1 of A n n e x V I I thereto and for a finding that she is entitled to that allowance.

JUDGMENT OF 19. 1. 1984 — CASE 65/83

2 The applicant is unmarried and has no children. In 1978, having until that time lived in Italy, the applicant's mother, whose personal income was insufficient to provide for her accommodation and upkeep and whose state of health no longer allowed her to live alone, moved to Brussels to live with the applicant who defrays most of the cost of her upkeep. The applicant's mother was treated, at least until 1983, as if she were a dependent child, by virtue of a decision adopted by the appointing authority pursuant to Article 2 (4) of Annex VII to the Staff Regulations, entitling the applicant to a dependent child allowance.

3 The applicant also applied for a household allowance under Article 1 (2) (c) of Annex VII to the Staff Regulations. The Director of Administration of the General Secretariat of the Council refused to grant that application.

4 Having received a complaint from the applicant against that decision under Article 90 (2) of the Staff Regulations, the Secretary-General of the Council, as appointing authority, confirmed the refusal.

s The objection raised by the Council must therefore be dismissed.

Substance

9 The applicant claims that she is entitled to a household allowance under Article 1 (2) (c) of Annex VII to the Staff Regulations since she actually assumes family responsibilities with respect to her mother, a fact which the Council recognized by treating her mother as if she were a dependent child. No margin of discretion therefore remains regarding the application of that provision. Moreover, a refusal to grant the household allowance would lead to discrimination either with respect to widowed, divorced, legally separated or unmarried officials with one or more dependent children and in addition one or more persons treated as dependent children, or with respect to married officials whose spouses work and with respect to whom a decision has been adopted treating a relative as if he were a dependent child.

io The Council objects that account has already been taken of the inadequacy of the applicant's financial resources in deciding to treat her mother as if she were a dependent child and that she is not entitled, in respect of the same person and on the basis of the same circumstances and supporting documents, to two decisions adopted on an exceptional basis, namely that provided for in Article 2 (4) and that provided for in Article 1 (2) (c) of Annex VII to the Staff Regulations. Because of differences in the needs and the composition of families comprising on the one hand an official and children and, on the other, an official and dependent adults, it is not appro- priate to grant a household allowance in the latter case. No discrimination thereby arises since, in the cases to which the applicant refers, the situations are different and different treatment is expressly prescribed in the Staff Regu- lations.

u Since the appointing authority had received an application under Article 1 (2) (c) and documents had been produced to it showing, according to the applicant, that she was actually assuming family responsibilities, the appointing authority was under an obligation to base its decision on that provision alone and not to prejudge that decision as a result of the earlier decision to treat the applicant's mother as if she were a dependent child.

ERDINI v COUNCIL

is According to the Council, the appointing authority must in all cases enjoy in that respect, under Article 1 (2) (c), a discretionary power permitting it, if appropriate, to withhold a household allowance even if it is established that the official actually assumes family responsibilities.

i6 There is no support however for that view in the wording of the provision in question. In fact it provides that "the household allowance shall be granted to" an official who fulfils the conditions which it lays down. Whilst that provision, like Article 2 (4), requires a "special reasoned decision of the appointing authority" to confer entitlement to the household allowance, it does not provide, by contrast with Article 2 (4), that the decision may be taken "exceptionally".

1; The Council claims that if an official in the applicant's position were entitled to a household allowance, that would constitute discrimination in his favour as against an official who fulfilled his legal obligation to maintain a relative by paying a sum of money and accommodating that relative in an appro- priate establishment.

22 Article 176 of the Treaty requires the defendant institution to take the necessary measures to comply with the judgment of the Court and, taking into account the interpretation of Article 1 (2) (c) given above, to review the applicant's situation with regard to the conditions laid down by that provision, on the basis of the supporting documents produced by the applicant.

Costs

23 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Council has been unsuccessful in its submissions, it must be ordered to pay the costs.

On those grounds,

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

hereby:

OPINION OF MR ADVOCATE GENERAL MANCINI D E L I V E R E D O N 15 D E C E M B E R 1983 '

Mr President, The facts are as follows: Gabriella Members of the Court, Erdini, an official employed by the Council, submitted an application on 23 July 1981 to the Director of Ad- 1. The parties to the case which the ministration of the Council for the Court is called upon to decide are an household allowance provided for by official and the administration of a Article 1 (2) (c) of Annex VII. In support Community institution: the official of her application she stated that her claims payment of a household allow- mother — who was already treated as a ance and the institution denies any dependent child for payment of the obligation to pay it to her. The dispute appropriate allowance as from 1 between them is in essence merely a November 1978 — was not only problem of interpretation: the Court financially dependent upon her but also must determine whether an official who lived under her roof; thus Miss Erdini has been granted the allowance provided had come to assume the role of head of for in Article 2 (4) of Annex VII to the household. By a memorandum of 21 Staff Regulations in respect of a person September 1981, the Director of Ad- "treated as if he were a dependent child" ministration notified her that her request may, under Article 1 (2) (c) of the same could not be granted because annex, be granted the household allowance. The case is of particular interest because there are no exact (a) the fact that a relative had been precedents. treated as a dependent child for the 1 — Translated from the Italian.