C-58/88
ECLI:EU:C:1989:248
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OLBRECHTS v COMMISSION
OPINION OF MR ADVOCATE GENERAL VAN GERVEN delivered on 15 June 1989*
Mr President, is necessary to identify the act adversely Members of the Court, affecting the applicants.
1. The question raised in this case is whether an official on unpaid leave on personal grounds is covered under the I share the Commission's view that the Sickness Insurance Scheme common to the memorandum drawn up by the Head of the institutions of the European Communities Sickness and Accident Insurance Division (hereinafter referred to as 'the joint and sent to Mrs Olbrechts, care of Mr scheme') without having to contribute Olbrechts, on 6 February 1987 is the act thereto if his or her spouse is also an adversely affecting them. That memor official. andum was prompted by steps taken by Mr Olbrechts with a view to obtaining direct payment in respect of a surgical operation shortly to be carried out on his wife. The In the present case Mrs Olbrechts, an appropriate letter was in fact issued by the official on unpaid leave on personal daims office in Brussels, which pointed out, grounds, was told that she was not covered however, that Mrs Olbrechts would have to under the joint scheme simply by virtue of pay contributions if she wished to remain insurance of her husband, also an official. covered by the joint scheme. In the memor The applicants' action seeks the annulment andum of 6 February 1987, the head of the of the Commission's decision making Mrs claims office set out the reasons for which Olbrechts' cover conditional upon her the joint scheme extends to officials' spouses paying the contributions provided for in who are on leave on personal grounds only Article 40(3) of the Staff Regulations. if they pay contributions. He expressly requests Mrs Olbrechts to put matters on a regular footing by paying up the contri butions considered to be due. In that Reference is made to the Report for the memorandum, therefore, the claims office Hearing for a fuller account of the facts of expressed a reasoned decision adversely the case, the course of the procedure and affecting the applicants. the submissions and arguments of the parties, which are mentioned here only in so far as is necessary for the reasoning of this Opinion.
It is true that the claims office is not the appointing authority. However, the Admissibility appointing authority is not the only agency of a Community institution which can take decisions adversely affecting officials against 2. In order to determine whether the appeal which complaints may be submitted. The was lodged within the prescribed period, it Court has, for example, acknowledged that
* Original language: French.
OPINION OF MR VAN GERVEN — CASE 58/88
complaints may be submitted against, inter 11 May 1989 in Joined Cases 193 and alia, a staff report ' or a decision of the 194/87 Maurissenv Court of Auditors [1989] Directorate-General for Financial Control ECR 1045) that 2 refusing to pay an expatriation allowance. 3 By a judgment of 5 July 1984, in fact, the Court annulled a decision of a claims office against which the applicant had first submitted a complaint before lodging an 'although a decision is properly notified, appeal. within the meaning of the Treaty, when it reaches the addressee and puts the latter in a position to take cognizance of it .. . , it is for the party claiming that an action is out of time to prove the date on which the The applicants, therefore, had to submit a decision was notified' (paragraph 46 of the complaint under Article 90(2) of the Staff judgment). Regulations within three months from the notification of the memorandum of 6 February 1987 if they wished subsequently to be able to appeal to the Court. As it has not established the date on which the decision adversely affecting the applicants was notified, the Commission may not, in my view, claim that the complaint should have been submitted by 5 3. However, the Commission does not state May 1987 at the latest and that the the date on which the memorandum of 6 applicants were out of time in addressing a February 1987 was notified, or the date on document dated 27 May 1987 to the which Mrs Olbrechts, to whom it was appointing authority. addressed, actually took cognizance of it. The Commission's representatives were questioned on this point at the hearing, but could only point to the silence of the applicants, who neither deny having 4. The applicants presented the document received the memorandum not claim any of 27 May 1987 in the form of a request delay in its notification. They were unable, under Article 90(1) of the Staff Regulations. however, to provide any evidence of a The Commission was right, in my view, to specific date on which the decision treat that request as a complaint under adversely affecting the applicants was Article 90(2) of the Staff Regulations. notified to them. Article 90(1) applies only in cases where no decision relating to the official has yet been taken.
In that regard, the Court, in line with its 4 previous case-law, noted in its judgment of For the reasons explained in the previous ' — See, most recently, the Court's judgment of 27 April 1989 point, however, the plea of inadmissibility, in Case 192/88 Tumsrv Commission [1989] ECR 1017. 2 — Case 54/77 Herpelsw Commission [1978] ECR 585. based on the argument that that request, 3 — Case 115/83 Oomsv Commission [1984] ECR 2613. converted to a complaint, was out of time, 4 — Case 108/79 Belfiore v Commission [1980] ECR 1769. cannot, in my view, be accepted.
OLBRECHTS v COMMISSION
Substance he or she is not gainfully employed; or
The relevant provisions if he or she is gainfully employed, he or she is covered against the same risks by any other legal provisions or rules and his or her annual income from such 5. Let us look briefly at the rules currently employment before tax does not exceed 5 in force, starting with those which apply to the basic annual salary of an official in officials in general. the third step of Grade B 4 ... ' (emphasis added).
Article 72(1) of the Staff Regulations provides : 6. Next, let us look at the relevant provisions applying to officials on unpaid leave on personal grounds.
'An official, his spouse, where such spouse is not eligible for benefits of the same nature and of the same level by virtue of any other The first subparagraph of Article 40(3) of legal provision or regulations . .. are insured the Staff Regulations provides that, during against sickness' (emphasis added). an official's leave on personal grounds,
That provision is clarified as follows in 'his membership of the social security Anicie 3 of the Rules on Sickness Insurance scheme provided for in Articles 72 and 73 for Officials of the European Communities and cover for risks under the scheme shall (hereinafter referred to as 'the Rules'): 6 be suspended.'
'Article 3 — Persons covered by member's And the second subparagraph provides that: insurance
' ... an official who provides evidence that The persons covered by a member's he cannot be covered by any other public insurance shall be: scheme of insurance against the risks referred to in Articles 72 and 73 may ... apply to continue to be covered in accordance with those Articles, provided 1. The spouse, unless he or she is a member that he bears half the cost of the contri of the Scheme, provided that: butions required to cover the risks referred to . . .' 5 — Al the hearing, the Commission's representatives referred to preparations with a view to amending the provisions concerned, but did not specify what amendments were 6 — Article 73 of the Staff Regulations governs cover against envisaged the risk of occupational disease and accident.
OPINION OF MR VAN GERVEN — CASE 58/88
Finally, Article 4(2) of the Rules reads as nature and of the same level by virtue of follows : any other legal provision or regulations'. The Commission stresses the words underlined above. Since an official on leave on personal grounds has the opportunity of '2. An official on unpaid leave on personal contributing to the joint scheme in order to grounds shall be a member provided he obtain cover, the Commission concludes satisfies the requirements of the second that such an official does not fulfil the subparagraph of Article 40(3) of the requirements laid down in Article 72 of the Staff Regulations' (emphasis added). Staff Regulations to qualify as a person covered by his or her spouse's insurance.
Analysis
I am not convinced by that argument 7. Let it be said from the outset that the because it relies on the interpretation of an applicants' action appears to me, as the rules article of the Staff Regulations which, as stand, to be well founded. I shall set out stated above, does not explicitly cover the below the reasoning which leads me to situation of a spouse who is also an official. propose that the Court should rule accordingly.
10. Although Article 72 does not explicitly 8. It is first necessary to determine the cover the situation of a spouse of an official scope of Article 72(1) of the Staff Regu who is also an official, it does embody the lations. In my view, that provision does not principle which makes it possible to deal explicitly cover the situation of an official of with that situation under the implementing the European Communities who is also the rules. As the Court pointed out in its spouse of an official of the European judgment in Brunotti, that article is based Communities. The authors of the Staff on the idea Regulations clearly had in mind the situation where one of the two spouses is an official. That is why the article lays down the requirement, with regard to the spouse, that he or she should not be eligible for sickness cover under any other scheme (see 'that the scope of sickness insurance for the Court's judgment of 8 March 1988 in officials and members of their families Case 339/85 Brunotti v Commission [1988] should be determined so as to avoid as far ECR 1379, paragraph 11). as possible overlapping sickness insurance cover' (paragraph 12).
9. That initial finding already makes it possible at this stage to dismiss the Commission's alternative argument based on Very logically, Article 3 of the Rules the terms of Article 72(1) of the Staff Regu clarifies that principle by providing that the lations. Under that provision, a spouse is spouse of an official who is a member is entitled to sickness cover only if he or she covered by the latter's insurance 'unless he 'is not eligible for benefits of the same or she is a member of the scheme'.
OLBRECHTS v COMMISSION
11. In view of the terms used in Anicie 3 of the authors of the Staff Regulations wished the Rules, which is the only provision to achieve the result argued by the referring explicitly to the case in which a Commission, they would undoubtedly have husband and wife are both officials and thus been more explicit. In my view, it is more members, the question is whether or not an coherent to interpret the first subparagraph official on leave on personal grounds is a of Article 40(3) of the Staff Regulations as member of the sickness insurance scheme. meaning that, during an official's leave on The answer is provided in the first personal grounds, the two principal effects subparagraph of Article 40(3) of the Staff of membership — the payment of contri Regulations, according to which, during an butions by the official (referred to implicitly official's leave on personal grounds, in the provision) and cover for risks (referred to explicitly) — are suspended.
'his membership of the social security scheme provided for in Articles 71 and 73 and cover for risks under the scheme shall 13. Further in the alternative, the be suspended'. Commission submits that Article 3 of the Rules is to be interpreted so as to render it compatible with the provisions of the Staff Regulations. Following that reasoning, it considers that an official on leave on 12. The Commission submits that the personal grounds remains a member of the reference in that provision to the suspension joint scheme, even though the effects of that of cover for risks in addition to that of membership are suspended, so that Article membership would serve no purpose if the 3(1) of the Rules cannot apply to him or authors had intended to maintain free cover her. for an official on leave on personal grounds as the spouse of an official who was a member.
It should first be observed that the Commission is here interpreting Article 3 of If I understand that argument aright, it the Rules in a manner different from that assumes that Article 3 of the Rules is to be assumed in its main argument (see my interpreted as meaning that an official previous point). Nor is the interpretation whose membership is suspended is auto put forward by the Commission compatible matically insured as the spouse of an official with Article 4(2) of the Rules, which who is a member. The words 'and cover for provides that an official on unpaid leave on risks under the scheme' in the first personal grounds may be a member only if subparagraph of Article 40(3) of the Staff he satisfies the requirements of the second Regulations were added by the authors of subparagraph of Article 40(3) of the Staff the Staff Regulations for the very purpose Regulations. Lastly, the interpretation put of preventing a spouse on leave on personal forward by the Commission applies an arti grounds from being covered, without paying ficial distinction between membership and any contributions, against sickness under the effects of membership. In my view, it is Article 3 of the Rules. In my view, however, contrary to common sense to claim that an the Commission is giving those words a official is a member of the scheme when he meaning which they do not possess. Had cannot derive any benefit under it.
OPINION OF MR VAN GERVEN — CASE 58/88
14. It follows from the foregoing that an my view, by the mere fact of the spouse's official on unpaid leave on personal grounds insurance. whose membership of the scheme is suspended under the first subparagraph of 15. It follows, equally, that an official on Article 40 (3) of the Staff Regulations must, unpaid leave on personal grounds who in principle, be considered not to be a satisfies the requirements laid down in 7 member. Such an official therefore satisfies Article 3 of the Rules need not apply for the first requirement laid down in Article optional cover under the second 3(1) of the Rules in order to be covered by subparagraph of Article 40(3) of the Staff the insurance of his or her spouse if the Regulations. Consequently, an official on latter is an official. In so far as he or she leave on personal grounds who is also the also satisfies the remaining requirements laid spouse of an official does not have to pay 8 down in the relevant provision, he or she is contributions in order to be insured against automatically covered against sickness, in sickness.
16. In conclusion, I propose that the Court should:
(1) Annul the Commission's decision refusing Mrs Olbrechts cover under the Sickness Insurance Scheme unless she paid contributions thereto :
(2) order the Commission to pay the costs.
7 — If an official on unpaid leave on personal grounds decides to avail himself of the possibility afforded by the second subparagraph of Article 40(3) of the Staff Regulations, he or she is again considered to be a member of the joint scheme, in accordance with Article 4(2) of the Rules. 8 — Tne remaining requirements are: not to be gainfully employed or, if gainfully employed, to be covered by a public sickness insurance scheme and to comply with the requirement that the employment in question does not provide income over a certain limit (see point 5 above).