C-189/85
ECLI:EU:C:1987:49
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OPINION OF MR MISCHO —CASE 189/85
OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 29 January 1987 *
Mr President, Regulations and Article 20 of the Members of the Court, Conditions of Employment of Other Servants of the European Communities ('the The Bundeskindergeldgesetz (German Law Conditions of Employment'). on Family Allowances for Dependent Children), as amended on 31 January 1975, Article 67 (2) is worded as follows: provides as follows: Officials in receipt of family allowances 'Paragraph 1: Persons entitled specified in this article shall declare Under the provisions of this law, the allowances of like nature paid from other following shall be entitled to family sources; such latter allowances shall be allowances in respect of their children: deducted from those paid under Articles 1, 2 and 3 of Annex VII.' 1. any person domiciled or habitually resident within the area covered by this law; The last-mentioned provisions lay down the conditions for the grant of the household allowance, the dependent child allowance and the education allowance.
I — It is clear from the wording of Article Paragraph 8 : Other benefits for children 67 (2) that, when it adopted that provision, the Council relied on the conclusion, or at (1) The family allowance shall not be any rate the assumption, that in certain granted for a child in respect of whom a circumstances family allowances were paid person is entitled, under paragraph 2 to Community officials by the competent (1), to one of the following benefits: institution of a Member State. Accordingly, in order to prevent cases of unjust enrichment, the Council imposed an obli gation on the officials concerned to declare 4. benefits which are granted in respect those allowances and on the Community of a child by an international or supra institutions to deduct such allowances from national institution and which are those paid under the Staff Regulations. comparable to the family allowance.'
The Commission considers that, by The question on which the outcome of this adopting paragraph 8 (1) (4) of that law, application depends is whether the Council the Federal Republic of Germany has failed also intended to stipulate, in the same to fulfil its obligations under Article 67 (2) provision, that family allowances had to be of the Staff Regulations of Officials of the paid by national institutions in respect of the European Communities ('the Staff Regu children of Community officials. lations') and two other provisions having the same scope as Article 67 (2), namely the In the application initiating the proceedings, second paragraph of Article 68 of the Staff the Commission quite clearly advocated that
* Translated from the French.
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view since it stated in paragraph II.2 that 'in children of Community officials who reside deciding that it was necessary for national within their territory, with the Community benefits to be paid and to be taken into paying no more than a supplement. account first, the Community legislature laid down the principle that, in general, the children of Community servants are also entitled to benefits if they fulfil the Member States like Belgium, which make conditions for entitlement laid down by the payment of allowances dependent on national law'. affiliation to a social insurance fund, will grant allowances only where one of the spouses works otherwise than as a Community official. Even in that case, a That argument is logical if the premise country like France, which pays family underlying it is accepted. allowances in respect of the first child only until the age of three, will not be called upon to contribute towards the financing of If the view is taken, as it is by the the family allowances payable in respect of Commission, that Article 67 (2) is more the first child of Community officials who than a mere provision against the over reside within its territory where the child is lapping of benefits and that it imposes an older than three. obligation on the Member States, that obli gation must be the one indicated by the Commission, namely the payment of family allowances provided for by national law Finally, Member States like Luxembourg, whenever the national conditions for the which apply a mixed system and grant grant thereof, whatever they may be, are family allowances in respect of all the fulfilled. children residing within their territory but at the same time require the payment of contributions by employers and self- employed persons earning an income, would However, I am not at all convinced by the have to pay family allowances to Commission's argument. Community officials by equating them to persons without means.
To begin with, there is no support for it in the actual wording of Article 67 (2), which, I cannot believe that the Council intended, as I have just pointed out, applies only to by adopting Article 67 (2) as it is worded, Community officials and, secondarily, to the to create a system whose consequences vary Community institutions. so greatly from one Member State to another.
Next, it creates unequal financial burdens for the various Member States within whose In support of its argument, however, the territory Community officials reside. Commission relies on the judgment of 13 July 1983 in Case 152/82 Forcheri v Belgium [1983] ECR 2323 at p. 2334, paragraph 9 of Countries like Germany, which grant family the decision, in which the Court held that allowances in respect of all the children 'the legal position of officials of the residing within their territory, will be Community in the Member States in which required to assume responsibility for paying they are employed comes within the scope family allowances in respect of all the of the Treaty on a dual basis by reason of
OPINION OF MR MISCHO —CASE 189/85
their post with the Community and because gradually retreated from the argument they must enjoy all the benefits flowing which it had initially put forward. First, it from Community law for the nationals of 'adjusted' its original argument, requiring Member States in relation to freedom of family allowances payable under German movement, freedom of establishment and law to be granted only in cases where it is social security'. the Community official's spouse who is entitled to them (paragraph 7 of the reply). For my part, I consider that the principle that the social security rules in force in the Finally, at the hearing, the Commission country of employment apply extends to took a further step in that direction and Community officials only in so far as the explained that its application against the Staff Regulations have not made any special Federal Republic of Germany was in fact arrangements. directed only at 'borderline cases' ('Randgebiete'), that is to say cases involving children who were brought into It is clear that, with regard to sickness the marriage by one of the spouses and insurance, accident insurance and the formerly came within the scope of the pension scheme, Community officials are national scheme, the children of retired subject to special arrangements and not to officials and the children of widows or those in force in the country in which they widowers of Community officials. are employed.
The question which arises, however, is what Hence Community officials working in the right does the Commission have to give United Kingdom continue to be covered by what it terms itself a 'minimal interpretation' the sickness insurance scheme established by of a provision which, in its view, is in the Staff Regulations and not by the free principle much broader in scope? Either health-care system in force in that country. Article 67 (2) has the scope initially ascribed to it by the Commission, in which It would therefore be incomprehensible if, case it is neither for the Commission nor for in relation to the family allowance scheme, any other Community institution to restrict which was also set up by the Staff Regu it, or else that provision applies in practice lations, Community officials were to be only to 'borderline cases', in which case that regarded as coming within the scope of the interpretation must also hold true for the host country's scheme first, particularly other Member States, including Belgium. since in the Staff Regulations the provisions However, there is no reference to those concerning family allowances are set out in 'borderline cases' in the wording of Article the section headed 'Remuneration'. 67.
Finally, as I explained in detail in the It would be utterly inconceivable for the Opinion which I delivered on 15 May 1986 scope of that provision to vary from one in Case 186/85 Commission v Belgium, I am Member State to another and, for instance, not at all convinced by the Commission's for it to apply in Belgium to a spouse argument that its' interpretation of Article carrying on another occupation and in 67 (2) can be fully explained by the Germany only to 'borderline cases'. Council's concern to relieve the strain on the Community's finances. In fact, the Commission's tergiversations show that Article 67 (2) of the Staff Regu Accordingly, I was not surprised to find lations and the other two provisions to that, in this case, the Commission itself which reference has been made are merely
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rules against the overlapping of benefits security benefits for officials and other which operate only if family allowances are servants of the Communities'. actually paid under a national scheme. Those provisions do not restrict the Member States' freedom of action in According to Article 19 of the Protocol, 'the granting social security benefits, which is institutions of the Communities shall ... the principle underlying the Community's cooperate with the responsible authorities legislation as a whole. of the Member States concerned' for the purpose of applying the Protocol.
II — However, the fact remains that Article Accordingly, any alteration in the practice 67 (2) is based on the notion that in certain previously applied by a Member State must circumstances family allowances may be be the subject of such cooperation. That is paid by the competent national institutions why I suggested in Case 186/85 that the in respect of the children of Community Court declare that Belgium had failed to officials. fulfil its obligations in that respect.
Accordingly, the question arises whether, at In this case the Commission has indeed the time of the adoption of the Staff Regu referred to the three aforementioned lations, there was a kind of tacit agreement provisions in its application but it has not between the Commission and the Member based its action on the allegation that they States with regard to situations in which have been infringed. that possibility might exist. Unfortunately, there is scarcely any information on that point. The Court cannot therefore make a declaration in that regard, and it is unnecessary to consider whether the 1975 The documents relating to Case 186/85 version of the Bundeskindergeldgesetz Commission v Belgium [1987] ECR 2029 actually alters the previous situation (the and the practice applied by Belgium for Commission's argument) or whether it many years suggest, however, that at the preserves the status quo (the Federal time Belgium and the Commission were Government's argument). agreed · on the principle that, where the spouse of a Community official carried on There is a further point: I do not deny the in Belgium an occupation involving affili existence of arguments which militate in ation to a family allowance scheme, the favour of equating the spouses of allowances provided for by that scheme Community officials who carry on an occu were to be paid first. pation in the host country with workers or employees in that country in every respect, including the payment of family allowances. Article 5 of the EEC Treaty provides that It could also be argued that, in such cases, the Member States are under an obligation family allowances should be paid under the to facilitate the achievement of the scheme which covers the spouse primarily Community's tasks. responsible for bearing the burden of the child's education.
Article 15 of the Protocol on the Privileges and Immunities of the European Whatever the merits of that argument, if the Communities provides that 'the Council Commission considers it necessary to find a shall ... lay down the scheme of social clear and definitive solution in that regard,
OPINION OF MR MISCHO — CASE 189/85
it may always submit proposals to the What is beyond doubt, in my view, is that Council with a view to supplementing the no obligation regarding the payment of Staff Regulations, or make an express family allowances under national law can be 'arrangement' between itself and the inferred from Article 67 (2) of the Staff Member States. Regulations.
I therefore suggest that the Court dismiss the Commission's application against Germany for failure to fulfil its obligations and order the applicant to pay the costs.