C-339/85

Annul the decision refusing to assume 2. In bringing this action the applicant, Mrs responsibility for the medical expenses in Elisabetta Brunotti, an official of the respect of the applicant's mother, and the Commission of the European Communities, decision rejecting the applicant's complaint seeks an order requiring the Commission, lodged on 15 April 1985; the defendant, to re-assume responsibility for medical expenses in respect of her mother, which it ceased to reimburse as from 18 January 1985. Order the defendant to assume responsi- bility for the said medical expenses with effect from the date on which it refused to do so, the sums payable to be subject to 3. By decision of 24 January 1984 the default interest at the rate of 10% per defendant decided, pursuant to Article 2 (4) annum from the date on which the reimbur- of Annex VII to the Staff Regulations, to sement fell due until the date of actual treat the applicant's mother as a dependent payment; child for the period from 1 January to 31 December 1984 and, on 12 July 1984, assumed responsibility in full for expenses incurred. On 24 October 1985 the decision Order the defendant to pay the costs. was renewed for the period from 1 January to 31 December 1985. 7. In the alternative the applicant, in her reply, asks the Court to: 4. By letter of 29 March 1985 the defendant informed the applicant that, in view of Article 3 (3) of the Rules on Order the defendant to assume reponsibility Sickness Insurance for Officials of the for the medical expenses to the extent to

* Translated from the German.

10. The relevant parts of Article 72 of the Staff Regulations of Officials of the European Communities (hereinafter referred to as 'the Staff Regulations') are worded as (3) Persons treated as dependent children follows : of the member pursuant to Article 2 (4) of Annex VII to the Staff Regulations, provided that such persons cannot obtain '(1) An official, his spouse, where such cover under any other public scheme of spouse is not eligible for benefits of the sickness insurance.' 1 same nature and of the same level by virtue of any other legal provision or regulations, his children and other 12. It was by decision of 24 January 1984, dependants within the meaning of that the Commission, in view of the circum- Article 2 of Annex VII are insured stances of the applicant's mother, first against sickness up to 8 0 % of expen- applied Article 2 (4) of Annex VII to the diture incurred subject to rules drawn Staff Regulations, under which any person up by agreement between the whom the official has a legal responsibility institutions of the Communities after to maintain and whose maintenance involves consulting the Staff Regulations heavy expenditure may, exceptionally, be Committee . . . treated as if he were a dependent child by

1 — Emphasis supplied.

BRUNOTTI v COMMISSION

special reasoned decision of the appointing proposal from the Commission and after authority, based on supporting documents. consulting the other institutions concerned, The decision expressly mentioned that its is to lay down the Staff Regulations of adoption was without prejudice to the officials of the European Communities and provisions of Article 3 (3) of the Insurance the Conditions of Employment of other Rules. servants of those Communities.

18. Article 72 of the Staff Regulations, which defines the entitlements of officials 14. The applicant's view that such is the in case of sickness, contains no express case is opposed not only by the defendant provision allowing children and other but also, in effect at least, by the other dependants to be treated differently, once Community institutions. the appointing authority has availed itself of the derogation provided for in Article 2 (4) of Annex VII and has treated the dependant as a dependent child on account of the 15. In considering whether Article 3 (3) of heavy expenditure incurred by the official. the Insurance Rules is compatible with Whereas there has been a special rule for higher-ranking provisions of Community spouses since the entry into force of Regu- law, I shall first consider whether the lation No 2074/83 of 27 July 1983, 4 no Community institutions were authorized to distinction is drawn between children and adopt such a provision and then examine other dependants. whether its contents are compatible with superior provisions of Community law.

19. In this connection reference should be made to the case-law of the Court, 1. Competence of the Community institutions according to which the provisions of the to adopt Article 3 (3) of the Insurance Rules Staff Regulations employ precise wording and there is no reason to extend their scope by analogy to situations to which they do not expressly refer. 5If Article 3 (3) of the 16. Under Article 24 of the Treaty Estab- lishing a Single Council and a Single 3 — Official Journal, English Special Edition 1968 (I), p. 30. Commission of the European Communities 4 — Official Journal 1983, L 203, p. 1. of 8 April 1965, 2 the Council, acting on a 5 — Judgment of 16 March 1971 in Case 48/70 Giorgio Bernardi v European Parliament [1971] ECR 175, at p. 184, and the judgment of 20 June 1985 in Case 123/84 Klein v 2 — Journal Officiel 1967, No 152. p. 2. Commission [1985] ECR 1907, at p. 1918, paragraph 23.

21. In the defendant's view, on the other hand, Article 72 (1) of the Staff Regulations does not exhaustively define the conditions for cover in the event of illness. The phrase 24. Since the rules were not adopted by the 'subject to rules' means that the authors of legislative body designated by Article 24 of the Staff Regulations conferred on the the Merger Treaty but by the Community institutions an unlimited authority to lay institutions, there is much to suggest that down rules on the subject — and hence also the authority can relate only to the the authority to impose further, objectively institutions qua administrative authorities justified, conditions governing the entit- responsible for staff matters — that is to lement to sickness insurance. say, the appointing authorities. It follows that the Insurance Rules do not rank equally with the Staff Regulations but are subordinate to them.

22. At this point it should again be emphasized that the legislative body responsible for drawing up the Staff Regu- lations is the Council, which adopts the 25. In its judgment of 20 November 1980 in requisite regulations on a proposal from the Case 806/79, 6the Court rightly described Commission and after consulting the other the Insurance Rules as provisions institutions concerned — that is to say, the implementing the Staff Regulations. appointing authorities. In Article 72 of the Staff Regulations the legislative body 6 — Judgmem of 20 November 1980 in Case 806/79 Cerin v empowers the Community institutions to Commission [1980] ECR 3515, at p. 3526.

27. Since Article 72 brings within the Community sickness insurance scheme precisely that class of person for whom the 29. Article 3 (3) of the Insurance Rules official receives allowances with his salary cannot therefore be applied, because it pursuant to Articles 1 and 2 of Annex VII, conflicts with Article 72 of the Staff Regu- and since its only exception relates to a lations. spouse who is eligible for benefits of the same nature and of the same level by virtue of any other legal provision or regulations, it may be assumed from the precise wording of the Staff Regulations — which the Court 2. Compatibility of Article 3 (3) of the has recognized — that Article 72 thereof is Insurance Rules with Community law exhaustive as regards the class of person generally entitled to receive benefits. It follows, however, that the Community institutions are not authorized to include in the rules which they adopt special provisions with 30. Apart from the question whether the regard to the class of persons entitled to Community institutions were formally auth- benefits which apply only to some of the orized to adopt a provision such as Article persons covered as specified in Article 72 of 3 (3) of the Insurance Rules, consideration the Staff Regulations. must also be given to whether that provision, as formulated, is compatible with superior principles of Community law, and in particular with the prohibition on 28. Such a conclusion is fully consistent discrimination and the principle of propor- with the aforesaid judgment of 20 tionality.

32. Although the defendant submits that the difference between the two classes of person is objectively justified, since dependent 33. The applicant has pointed to a further children by definition have not had a gainful reason for examining whether Article 3 (3) occupation entitling them to social security of the Insurance Rules has infringed the cover, whereas other dependants, being prohibition on discrimination. She submits mostly elderly persons, are normally insured that, by virtue of the provisions of the in their State of origin either in their own Insurance Rules, sickness benefits for right or through their spouse or in some dependants are excluded regardless of the other way, it must be pointed out to the level of the sickness benefits which may be defendant that their different circumstances claimed from a compulsory insurance are fully taken into account by Article 72 scheme in a Member State. (4) of the Staff Regulations. Article 72 (4) requires persons entitled to benefits to declare the amount of any reimbursements paid or which they can claim under any other sickness insurance scheme provided for by law or regulation for themselves or 34. Again, the applicant's objection is a for persons covered by their insurance. valid one, because in practice the benefits Furthermore, the total amount which such payable to the official concerned will vary persons could claim is reduced to the according to the manner in which the amount reimbursable under Community national sickness insurance held by the provisions. Thus, if a person treated as a dependants is organized. The fact that dependent child is insured with some other regard is had to different national sickness statutory sickness insurance scheme, the insurance benefits thus results in the benefits available under that scheme are official's being treated differently depending taken into account when reimbursement is on the organization of the national sickness paid under the Community provisions, and insurance scheme. As a result, the legal the Community benefits are reduced position of the official is determined not

the defendant's decision of 29 March 1985 no longer to assume responsibility for medical expenses in respect of the applicant's mother must be annulled; 35. The decision on the application must therefore follow the Staff Regulations, in particular Article 72 (1) and (4) thereof, and must disregard Article 3 (3) of the Insurance Rules. the defendant must be ordered to pay the medical expenses of the applicant's mother to the extent to which they exceed the level of her entitlement under any other statutory sickness-insurance scheme, together with 36. However, the applicant's main claim, default interest at the rate of 10% from the namely that the defendant should be date on which payment fell due, but not ordered to pay the medical expenses in their before the bringing of this action; entirety, cannot be upheld, since by virtue of Article 72 (4) of the Staff Regulations the sum available from the Italian national sickness insurance scheme must be brought into account. the remainder of the application must be dismissed.

37. However, the Court should uphold the applicant's alternative claim together with 39. Since the applicant has been essentially her claim for the payment of interest, successful in her arguments, the defendant 7 should be ordered to pay the costs of the — See most recently, the judgment of the Court of 7 May case pursuant to Articles 69 and 70 of the 1987 in Case 189/85 Commission v Germany [1987] ECR 2061, at paragraphs 16 and 21. Rules of Procedure.

OPINION OF MR ADVOCATE GENERAL LENZ —CASE 339/85

C — Conclusion

In conclusion I propose that the Court should give the following judgment: