C-248/87

MOURIKI v COMMISSION

OPINION OF ADVOCATE GENERAL SIR G O R D O N SLYNN delivered o n 10 February 1988

My Lords, tenance involves heavy expenditure may, exceptionally, be treated as if he were a dependent child by special reasoned Article 67 of the Staff Regulations provides decision of the appointing authority, based for certain family allowances to be paid to on supporting documents.' officials. These include household allowance and dependent child allowance.

Mrs Marie-Hélène Mouriki was first Article 1 (2) of Annex VII to the Staff employed by the Commission as a member Regulations provides: of the temporary staff on 16 September 1980 and was made an established official with effect from 1 July 1981. Being then 'The household allowance shall be granted married, she was granted a household to: allowance under Article 1 (2) (a) of Annex VII to the Staff Regulations.

(a) a married official; By a letter dated 29 November 1985 she informed the Commission that her marriage (b) an official who is widowed, divorced, had been dissolved by judicial decision with legally separated or unmarried and has effect from 30 March 1984. By a decision one or more dependent children within of 11 December 1985, the Commission the meaning of Article 2 (2) and (3) withdrew the household allowance which below; she had been receiving.

Mrs Mouriki then brought this action by an application lodged on 14 August 1987, in which she claims that the Court should annul the rejection of her complaint and As regards the substance, it is accepted that declare that the appointing authority must Mrs Mouriki lives in Luxembourg and that grant her the household allowance. T h e her three relatives live in Greece. She Commission contends, first, that the argued in her request under Article 90 (1) of application is inadmissible and, secondly, the Staff Regulations that, because the that it is unfounded. appointing authority had recognized her father, mother and grandmother as equi- valent to dependent children and granted the appropriate allowances, the Commission was bound to grant her the household As regards admissibility, the Commission's allowance under Article 1 (2) (c), even if argument is that the act adversely affecting those members of her family did not live Mrs Mouriki for the purposes of Article 90 with her. That argument, as I understand it, (2) of the Staff Regulations was the is maintained in the written pleadings in this Commission's decision of 11 December case. The Commission's reply is that there is 1985 which withdrew the household no link between the granting of the two allowance. The Commission says that since allowances and that the household she did not submit a complaint against that allowance can be granted under Article 1 decision within the three month time-limit (2) (c) only if the relatives concerned prescribed by Article 90 she is precluded actually live with the official. In their from bringing this action before the Court arguments, both at today's hearing and in under Article 91 of the Staff Regulations. writing, both sides have relied on the Court's decision of 19 January 1984 in Case 65/83 (Erdini v Council [1984] ECR 211).

expressly excludes such a link. At paragraph elderly parents. Subparagraph (c) itself does 12 of the judgment it was held that, 'the not specify in terms, as it easily could have grant of either of the benefits envisaged by done, that the allowance was only payable the two provisions in question is without in respect of someone actually living under prejudice to the grant of the other, either by the same roof. Moreover, as counsel for the automatically giving rise to entitlement or Commission accepts and as I think is plain, by excluding it'. It follows that if an the household allowance under subpara- appointing authority grants a dependent graphs (a) and (b) can be paid even if the child allowance under Article 2 (4) it is not relevant spouse or dependent children do thereby automatically obliged to grant a not live with the official. household allowance under Article 1 (2) (c). That is a separate head of entitlement which has to be dealt with separately. Reference has been made to paragraph 19 of the Court's judgment in Erdini where the phrase 'circumscribed powers' ('compétence It is also to be noted that in paragraph 18 of liée') appears. In my view, the Court is there the judgment in Erdini, the Court did not using that phrase in relation to the specify that it was a requirement that conditions expressed in Article 1 (2) (c) persons should live under the same roof. It which have to be satisfied before the is merely stated there that the household household allowance must be paid. The allowance was provided, 'to make it easier Court, in that paragraph of the judgment, in for officials to live with those members of no way restricts the application of Article 1 their families, including those other than (2) (c) because Article 2 (4) is satisfied. spouses or children, who are unable to meet their financial needs themselves'. The Court did not say in that judgment that the allowance was exclusively to be paid in respect of persons who lived with the relevant official. Moreover, the provision in Accordingly, Mrs Mouriki's first argument Article 1 (2) (c) that supporting documents that the Commission was bound to grant have to be provided and that the allowance her the household allowance because it had is only to be paid by special reasoned recognized the relatives in question as equi- decision of the appointing authority is some valent to dependent children under Article 2 protection against the abuse of the (4), falls to be rejected. allowance.

elderly parents looked after but living in even if the Court thought it was so it does adjoining premises, in what in English idio- not seem to me that that is a matter to be matically would be called a 'granny flat' or resolved by this Court but by the a 'granny wing', it seems to me that there Commission. must in reality be a household unit before subparagraph (c) can be satisfied. Reliance has been placed by both parties on Article 8 of Annex VII which deals with the It seems to me in the present case quite payment of travel allowances. It seems to impossible, whatever the position may be in me that that article does not assist the other more borderline cases, to regard an question of construction before the Court. official living in Luxembourg as constituting Those allowances, clearly, would only fall a household unit with parents and grand- to be paid if the dependants were actually parents who reside in Greece. Accordingly, living with the official in the country where in my view, the Commission was in law he worked in order that they might go to entitled to come to the conclusion which it their country of origin. In itself, it still reached. It is said on behalf of the applicant leaves open the question as to whether that this produces grave injustice. For my residence as a household unit is a necessary part, I am not satisfied that that is so, but condition.

A c c o r d i n g l y , in m y opinion, this application should be dismissed a n d I w o u l d o r d e r t h a t each p a r t y should p a y its o w n costs p u r s u a n t t o Article 70 of the C o u r t ' s Rules of P r o c e d u r e .