C-186/85

Mr President, officials who have non-active status, who Members of the Court, have been retired in the interests of the service or who are entitled to the allowance provided for by Articles 34 and 42 of the In this application the Commission seeks a former Staff Regulations of the European declaration from the Court that, by Coal and Steel Community. providing that the family benefits payable under Belgian legislation are to be reduced by the amount of the family benefits which may be claimed under the Staff Regulations Article 20 of the Conditions of Employment of Officials of the European Communities extends the same rule to members of the temporary staff. ('the Staff Regulations') or the Conditions of Employment of Other Servants of the European Communities ('the Conditions of Employment'), the Kingdom of Belgium has 2. The main Belgian provision at issue is failed to fulfil its obligations under Article Article 60 of the laws consolidated by the Royal Decree of 19 December 1939 on family 67 (2) and the second paragraph of Article allowances for employed persons. 68 of the Staff Regulations, Article 20 of the Conditions of Employment, Article 5 of the EEC Treaty and Articles 15 and 19 Until July 1982 that article was worded as of the Protocol on the Privileges and follows: 'Nor shall the provisions of this law Immunities of the European Communities apply to children in respect of whom family ('the Protocol'). allowances are payable under other laws or regulations... '. I — The facts may be summarized by setting out in the order in which they were adopted the relevant provisions of Community and At the time (and prior to the entry into national law and the manner in which they force of the present Staff Regulations and have been applied. Conditions of Employment, that is to say whilst the provisions formerly applicable to officials and other servants of the European 1. Article 67 (2) of the Staff Regulations Economic Community, the European provides as follows: 'Officials in receipt of Atomic Energy Community and the family allowances specified in this article European Coal and Steel Community were shall declare allowances of like nature paid still in force), Belgium considered that from other sources; such latter allowances Article 60 was inapplicable where the 'other shall be deducted from those paid under laws or regulations' described the benefits to Articles 1, 2 and 3 of Annex VII' (that is to which they conferred entitlement as say the household, dependent child and supplementary, and it agreed that Belgian education allowances). family allowances should be paid first so that they could be deducted from the allowances of like nature payable under the The second paragraph of Article 68 of the Staff Regulations and the Conditions of Staff Regulations extends that provision to Employment.

4. Before considering the Commission's complaints, a preliminary remark is called With regard to sickness insurance, accident for concerning the subject-matter of the insurance and the pension scheme, dispute. Community officials are clearly subject to special rules and not to those in force in the country in which they perform their duties. The dispute is concerned with the situation of an official of the European Communities whose spouse is employed otherwise than as It would therefore be incomprehensible if, a Community official and with the situation under the family allowance scheme, which of a Community official who carries on a was also established by the Staff Regu­ subsidiary activity, for instance teaching at a lations, Community officials were regarded university. as eligible for benefits primarily under the scheme in force in the host country, particularly since the provisions of the Staff In this case, in any event, the Commission is Regulations concerning family allowances not contending that family allowances for a are set out in the section headed Community official whose spouse is not 'Remuneration'. gainfully employed and who does not himself carry on a subsidiary activity should, at least in principle, be borne primarily by That consideration is reinforced by the fact the host country, whilst the Communities that Regulation No 1408/71 on social would merely pay a supplement. security for migrant workers expressly lays

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lations. By incorporating in the contested That provision may be explained by the fact royal decrees a provision of the same kind, that under Article 65 of the Conditions of but having precisely the opposite effect, the Employment the provisions of the Staff Belgian Government disregarded the Regulations concerning family allowances primacy of Community law and, more (excluding those relating to the education particularly, the fact that the provisions of allowance) are applicable to auxiliary staff but those relating to social security are not the Staff Regulations are directly applicable. (see Article 70 of the Conditions of

Accordingly, the which the written procedure is still in condition that allowances of like nature progress). should be paid from other sources is not fulfilled and the Community should pay in full the allowances provided for by the Staff II— In support of its conclusions, the Regulations. If the Council's intention had Commission has relied principally on three been, by means of Article 67 (2) of the Staff submissions, namely: Regulations, to relieve the strain on the Community's finances by transferring A. infringement of Article 67 (2) of the responsibility for those allowances to the Staff Regulations; Member States, it should have imposed an obligation on the Member States to amend their rules on the award of family B. lack of prior consultation, as provided allowances so as to ensure that the primary for by Articles 15 and 19 of the Protocol responsibility for paying those allowances and Article 5 of the EEC Treaty; rested with them.

The Court added, in paragraphs 8 and 9 of At the time, moreover, the Commission its decision, that 'it follows that the Staff itself took the view that 'the provisions of Regulations, in addition to having effects in the Staff Regulations against overlapping the internal order of the Community admin­ benefits are solely concerned to prevent a istration, are binding on Member States in couple from receiving family allowances so far as their cooperation is necessary in twice in respect of the same children'. 4 order to give effect to those regulations', and that 'consequently, where a provision of the Staff Regulations requires national In my view the interpretation to the effect measures for its application, the Member that the purpose of the provision in question States are bound under Article 5 of the EEC is to limit the financial burden of the Treaty to adopt all appropriate measures, Communities is not convincing. whether they be general or particular'.

Article 67 (2) scarcely displays the features Belgium, like all the other Member States, is which might be expected in a provision of therefore under a duty to comply with the this kind. relevant provisions of the Staff Regulations and the Conditions of Employment, that is rect to say, it must refrain from adopting any 1. The di addressees of Article 67 (2) measure which may jeopardize their are in the first place officials who are application and, what is more, it must adopt required to 'declare allowances of like all the appropriate measures needed to give nature paid from other sources', and full effect to those provisions. secondly the Community institutions which

2. The wording of the provision is couched 6. Family allowances paid from other in practical rather than legal terms. It would sources are not necessarily paid by a have been more usual for the provision to Member State. be worded as follows: 'This article shall confer entitlement to family allowances only For instance, the spouse may be an official in so far as allowances of like nature may of another international organization (for not be claimed under national legis­ example, Eurocontrol, as in Case 142/78 lation ... ' (see Article 2 (6) of Annex VII Exnerv Commission [1979] ECR 3125) to to the Staff Regulations). which all, or at any rate some of the Member States of the Community may 3. As I have already pointed out, the belong and whose budget would bear the provisions on family allowances are set out burden accordingly. Why should such in Section 1, Chapter 1, Title V of the Staff expenditure be borne by that organization Regulations, which is headed 'Remuner­ rather than by the Communities? ation', and not in Chapter 2 on social security. Could the European Communities 7. Moreover, is such relief conceivable: conceivably be seeking to transfer to the Member States responsibility for part of the (i) if its extent is left to the discretion of remuneration of their officials? the countries in question which are free to determine the level of their national 4. Article 1 (3) of Annex VII to the Staff family allowances or even to abolish Regulations provides that where the spouse them altogether? of an official is gainfully employed, with an annual income of a specified amount, the (ii) if it depends on an individual decision, official is not entitled to the household which is within the discretion of an allowance provided for by the Staff Regu­ official's spouse, whether or not to take lations. up employment in the host country?

(i) the Court did not attach any An argument which supports that view may importance to the phrase 'allo­ be derived from the Court's judgment of 23 wances ... also payable' and inter­ April 1986 in Case 153/84 Ferraioli v preted it as meaning 'actually paid'; Deutsche Bundespost [1986] ECR 1401. That judgment itself refers to the judgment of 13 November 1984 in Case 191/83 Salzano (ii) it even acknowledged that a subjective [1984] ECR 3741. act, namely the spouse's failure to apply for payment of the allowances to which she was entitled, could prevent the application of Article 76; Those cases were concerned with the inter­ pretation of Article 76 of Regulation No 1408/71, which provides that entitlement to (iii) finally, the Court simply referred to the family allowances in the migrant worker's conditions of form and of substance country of employment is to be suspended laid down by the legislation of the if, by reason of the pursuit of a professional country in which the spouse and the or trade activity, family benefits or family children are residing. allowances are also payable under the legis­ lation of the Member State in whose territory the members of the family are Clearly the Treaty was not intended to residing. In those cases the Court held that harmonize the social security schemes of the there is no suspension of entitlement to various Member States, and the family family allowances in the country of allowance scheme reflects the Member employment of one of the parents when the States' freedom of action in social security other parent resides with the children in matters. Neither the social provisions of the another Member State and pursues there a EEC Treaty, that is to say Articles 117 to professional or trade activity, but does 122, nor Article 51 of the Treaty nor, as I receive family allowances for the children have just demonstrated, the Staff Regu­ because not all the conditions of substance lations or the Conditions of Employment and of form laid down by the legislation of impose any obligation to amend national that Member State for the receipt of such legislation on family allowances in any allowances are satisfied. particular manner.

1. In Forcheri, cited earlier, the Court held that Community officials, including According to that article, the Member States members of the family, must enjoy all the are to facilitate the achievement of the benefits flowing from Community law for Community's tasks. 5 It follows that they the nationals of Member States in relation have a duty to cooperate with and to assist to freedom of movement, freedom of estab­ the Community diligently, which finds lishment and social security. In other words, expression in the Protocol. 6 Community officials, including members of the family, must remain subject to the ordinary rules of law in the country in which they reside, except where Community Article 15 of the Protocol provides that 'the law provides otherwise. Council shall... lay down the scheme of social security benefits for officials and other servants of the Communities'. Article It is clear, however, that in this case the 19 of the Protocol provides that 'the contested provisions of Belgian legislation institutions of the Communities shall, for are applicable without distinction to Belgian the purpose of applying this Protocol, citizens and to the citizens of other Member cooperate with the responsible authorities of States. What those provisions take into the Member States concerned'. Since consideration is not a person's nationality Belgium has adopted the measures but the fact that that person may receive complained of without cooperating either family allowances from another source. with the Community institutions or with the Unlike Forcheri, this case is not concerned other Member States, those two provisions with the prohibition of discrimination laid of the Protocol and Article 5 of the Treaty down in Article 7 of the Treaty. must have been infringed.

The infringement of Article 5 of the Treaty It is clear from the 'Report to the King', and Articles 15 and 19 of the Protocol is submitted in support of Royal Decree No particularly blatant as Belgium appears to 54, that the decree was adopted pursuant have taken the view that the allowances to the Law of 2 February 1982 'which payable under the Staff Regulations were in empowers the King to adopt all the fact merely supplementary to those payable measures necessary to ensure the financial under Belgian legislation since Article 60, as stability of all social security schemes for it now stands, states that Belgian allowances employed and self-employed persons'. must be reduced 'even if the award of those benefits [that is to say the benefits payable under the Staff Regulations] is described as In those circumstances it makes no supplementary'. difference whether or not the purpose of Article 67 (2) of the Staff Regulations and of the corresponding provision in the Conditions of Employment is to limit the Clearly it is not permissible for a Member Community's financial burden. State to decide unilaterally that, so far as it is concerned, a provision of the Staff Regu­ The mere fact that the new measures lations ceases to have a supplementary effect adopted by Belgium may have had, and did (even if in reality, as I have just explained, have, the effect of burdening the that provision has no such effect). Community with the payment of family allowances which were formerly paid by Belgian institutions should certainly have restrained the Belgian Government from There is a further argument which may be adopting them without the assent of the advanced. Community institutions and the other Member States.

Conditions of Employment, it has failed to household allowance, this shall be payable fulfil its obligations under Article 5 of the only to the person whose basic salary is the Treaty and under Article 19 of the Protocol higher'. in conjunction with Article 15 thereof. That, however, is merely a suggestion de However, that does not mean that the only lege ferenda which should, if necessary, be solution to the problem of family allowances examined in more detail by the represen­ for the spouses of Community officials that tatives of the Community institutions and is compatible with the Treaty or the Staff the Member States. Regulations is for all the Member States simply to revert to the arrangement whereby they are primarily responsible for paying B — Lack of prior consultation family allowances whilst the Community institutions merely pay a supplement where As I have just expressed the view that the necessary. obligations imposed on the Member States by Article 5 of the Treaty and Articles 15 If the Court were to hold, as I have and 19 of the Protocol go beyond a duty of suggested, that Article 67 (2) does not consultation, it is no longer necessary to impose a specific obligation on the Member consider this complaint made by the States and does not have as its purpose to Commission. relieve the strain on the Community's budget, other solutions could be envisaged. C — Breach of the principle of equal It would then be necessary to attempt to treatment resolve the problem by reference to an objective' criterion based on the appor­ The third submission relied upon by the tionment of financial burdens in the fairest Commission is inadmissible. possible manner.

OPINION OF MR MISCHO —CASE 186/85

Furthermore, that is implicitly Moreover, the Commission itself acknowledged by the Commission in its acknowledges this in its reply (p. 5) when it reply, and the fact that Belgium agreed, in states that 'the principle of solidarity on its defence, to state its views on the question which social security is based compels all whether the submission was well .founded workers (under the scheme for self- cannot nullify its primary objection of inad­ employed persons) and all employers (under missibility. the scheme for employed persons) to pay contributions even if the workers concerned are not eligible for allowances'. Accordingly, with regard to the substantive aspect of this submission, I will confine myself to a few brief remarks. Finally, the position of employed persons who receive family allowances in respect of their children under provisions other than It should be noted in the first place that this the relevant Belgian legislation is certainly submission is based, in the reply, on different from that of their colleagues who arguments and facts which differ from those do not receive such allowances. Their referred to in the application and that the position is not objectively comparable, and Commission has altered its conclusions consequently the distinction made between accordingly. the two is not discriminatory.

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would point out that the royal decrees On the contrary, the defendant is aware, as complained of entered into force on 1 is apparent from its rejoinder, that if such August 1982 and that family holiday allowances were payable, it would not be allowances were abolished as from 1 authorized to withhold them from persons January 1983 by Royal Decree No 131 of who qualify for the family allowances paid 30 December 1982. by the Community since the Court has held in its judgments in Cases 106/76 and 14/77, Moreover, family holiday allowances were cited earlier, that allowances intended to as a rule paid in May each year. meet special requirements or ex gratia Accordingly, subject to any payments granted on extraordinary grounds exceptions — which have not been estab­ are not to be regarded as allowances 'of like lished by the Commission — no family nature' coming within the scope of Article holiday allowances have been payable since 67 (2) and the second paragraph of Article 1 August 1982. 68 of the Staff Regulations or Article 20 of the Conditions of Employment. Finally, it is not apparent from the documents before the Court that other specific and distinct family allowances normally payable in Belgium have not been I therefore conclude that the Commission's or are not being paid to those employed third submission, if it were admissible, persons whose children are eligible for the would have to be rejected as unfounded in family allowances paid by the Community. this case.

III — Having regard to the foregoing considerations, I suggest that the Court declare that, by adopting Royal Decree No 54 of 15 July 1982 amending Article 60 of the consolidated laws on family allowances for employed persons and the Royal Decree of 19 November 1982 amending the Royal Decree of 8 April 1976 governing family benefits for self- employed persons, the Kingdom of Belgium has failed to fulfil its obligations under Article 5 of the EEC Treaty and Article 19 in conjunction with Article 15 of the Protocol on the Privileges and Immunities of the European Communities.