C-163/88
ECLI:EU:C:1989:402
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OPINION OF MR JACOBS —CASE C-163/88
OPINION OF MR ADVOCATE GENERAL JACOBS delivered on 7 November 1989 *
My Lords, occupational disease, industrial accident and birth and death benefits.
1. This case is concerned with the question This article shall also apply to former whether a former Member of the Members of the Commission or of the Commission of the European Communities Court who benefit either under the pension can continue to be affiliated to the scheme provided for in Article 8 or under Community's sickness insurance scheme for the transitional allowance provided for in the purpose of supplementing cover Article 7. This paragraph shall not, available under a national scheme. however, be applied in order to cover risks already covered by another social security scheme under which the former Member of the Commission or of the Court may benefit.' The relevant Community rules
3. Article 72 of the Staff Regulations deals 2. Council Regulation No 422/67/EEC (as with sickness insurance. According to amended), which I shall refer to as 'the Article 72(1), Community officials and their emoluments Regulation', determines the dependants are covered against sickness for emoluments of the President and Members up to 80% of expenditure incurred subject of the Commission, of the President, to rules drawn up by agreement between the Judges, Advocates General and Registrar of Community institutions. Under Article the Court of Justice and of the President 72(2a), former officials entitled to and Members of the Court of Auditors retirement pensions who left the service of (Official Journal, English Special Edition the Communities before the age of 60 years 1967, p. 222). Article 11 of that regulation, are entitled to benefits under the as amended by Council Regulation (ECSC, Community sickness insurance scheme, EEC, Euratom) No 2163/70 (Official 'provided that they cannot obtain cover Journal, English Special Edition 1970 (III), under any other public scheme of sickness p. 727), reads as follows: insurance ... ' . Article 72(1 a) and (lb) attach the same condition to applications for continued temporary cover under the Community scheme made by certain former officials, ex-spouses of officials and persons 'A Member of the Commission or of the who cease to be dependants of officials. Court shall be entitled to the benefits of the Under Article 72(4), persons entitled to social security scheme provided for in the benefit under the Community scheme are to Staff Regulations of Officials of the declare the amount of any benefit paid or to European Communities covering sickness, which they are entitled under any other
* Original language: English.
KONTOGEORGIS v COMMISSION
sickness insurance scheme provided for by 6 January 1981 until 5 January 1985. After law or regulation, and: leaving the Commission, he benefited for three years from payment of a transitional allowance under Article 7 of the emol uments Regulation. On 1 February 1988, he became entitled to receipt of a pension from 'Where the total which they would receive the Commission in accordance with Article by way of reimbursement exceeds the sum 8 of that regulation. of the reimbursements provided for in paragraph 1, the difference shall be deducted from the amount to be reimbursed pursuant to paragraph 1 ... '.
4. As provided for in Article 72(1), Rules on Sickness Insurance for Officials of the European Communities ('the Rules') have 6. On 2 November 1987, Mr Kontogeorgis been drawn up by agreement between the wrote to Mr Richard Hay, Director- institutions of the Communities. Under General of the Commission's Directorate- Article 2, point 13, of the Rules, former General for Personnel, stating that because Members of the Commission who are the Greek sickness insurance scheme from entitled to a retirement or invalidity pension which he was entitled to benefit 'did not are included in the list of members of the cover the same risks at the level of the common sickness insurance scheme, 'subject Community scheme', he wished to continue to Article4(8) of these Rules'. According to to be affiliated to the Community scheme Article 4(8): after retirement. On 22 December 1987 Mr Hay replied that the rules determining the emoluments of Commissioners provided that it was possible to continue to benefit 'The persons referred to in Article 2, from the Community sickness insurance point 13, of these Rules shall be members, scheme only if the person concerned could provided they pay their contributions, not be covered under another social security calculated by reference to their basic scheme. Since Mr Kontogeorgis, in his pension, and cannot obtain cover against capacity as a former Greek civil servant, was the same risks under any other public already covered by a Greek scheme, and scheme of sickness insurance.' since there was no reference in the Community rules to equivalence beween the Community sickness insurance scheme and other schemes, continued reliance on the Community scheme was excluded. On The facts of the case 28 January 1988, Mr Hay wrote a further letter setting out the details of the applicant's pension and stating that 'the beneficiary [i. e. Mr Kontogeorgis] is not 5. Mr Georgios Kontogeorgis, a former affiliated to the common Community Director-General in the Greek Ministry of sickness insurance scheme'. By letter of Trade and a former Minister for EEC 29 February 1988, Mr Kontogeorgis Affairs, was a Member of the Commission lodged a formal complaint, in which he of the European Communities from argued that on a correct interpretation of
OPINION OF MR JACOBS —CASE C-163/88
the relevant provisions he was entitled to 8. The Commission does not raise a formal cover under the Community regime in objection to the admissibility of the action. respect of risks which were not covered by It simply 'leaves to the appreciation of the another social security system, and to the Court' the question whether the applicant extent that he was covered under another was required to observe the precontentious scheme, he was entitled to cover under the procedure, or whether he should have Community scheme to supplement the level undertaken a direct action, presumably of benefits payable under that other scheme. under Article 173 of the Treaty. The By letter of 25 March 1988, Mr Hay relevance of this point lies in the observance rejected the complaint. By an application of the time-limit for actions under lodged at this Court on 7 June 1988, Article 173: if Mr Kontogeorgis was Mr Kontogeorgis seeks the annulment of required to follow that procedure, then he the decision rejecting his complaint. would have had to lodge his appeal against the Commission's original negative decision (Mr Hay's letter of 22 December 1987) within two months. As already mentioned, the application in this case was lodged at the Court on 7 June 1988.
Admissibility
9. Article 179 of the Treaty confers juris diction on the Court 'in any dispute between the Community and its servants 7. A preliminary issue of admissibility arises within the limits and under the conditions in this case, namely whether the Court has laid down in the Staff Regulations or the jurisdiction under Article 179 of the Treaty Conditions of Employment'. The relevant in proceedings brought by a former Member title of the Staff Regulations, Title VII of the Commission, and whether therefore 'Appeals' (Articles 90 and 91), provides in Mr Kontogeorgis was required to follow Article 91(1) that the Court shall have juris the precontentious procedure laid down diction 'in any dispute between the in respect of staff complaints under Communities and any person to whom these Article 90(2) of the Staff Regulations. Staff Regulations apply regarding the Somewhat curiously, the application is legality of an act adversely affecting such a based not on Article 179 of the Treaty in person within the meaning of Article 90(2)'. conjunction -with Article 91 of the Staff In its case-law the Court has consistently Regulations, but on Article 172 of the taken a broad view of the scope of Treaty and Article 22(3) of the Staff Regu Article 179: see for example Case 110/75 lations. But it seems clear that Article 179 Mills v European Investment Bank [1976] was intended. Indeed Mr Kontogeorgis ECR 955; Case 123/84 Klein v Com- argues that his application must be regarded mission [1985] ECR 1907; Case 43/84 as admissible because he has followed the Maag v Commission [1985] ECR 2581. obligatory precontentious procedure laid While Mr Kontogeorgis was plainly not an down in Article 90(2) of the Staff Regu official of the Communities within the lations and has submitted his appeal to this meaning of the Staff Regulations nor an Court within the period laid down in other servant within the meaning of the Article 91(3) of those regulations (i. e. three Conditions of Employment of Other months). Servants of the European Communities, he
KONTOGEORGIS v COMMISSION
can properly be regarded, for the purposes of the applicant confirmed that continuing of this case, as a 'person to whom these affiliation was sought also for the purpose Staff Regulations apply' within the meaning of providing cover for specific risks of of Articles 90 and 91 of those regulations. ill-health which are not covered at all under In this regard, I would recall that Article 11 the Greek scheme to which Mr Konto of the emoluments Regulation refers to georgis is affiliated. In this regard, he former Members of the Commission as specified that certain aspects of health care, being entitled, in certain circumstances, to for instance, dental care, the provision of the benefits of the social security scheme spectacles and health care while abroad, are provided for in the Staff Regulations. not covered under the Greek scheme. Moreover, although former Commission Members are not mentioned in the body of the Staff Regulations, they are expressly mentioned in the Rules on Sickness Insurance drawn up under those regulations (see paragraph 4 above). This case concerns, at least indirectly, the interpre 11. Since the question of cover for specific tation of the Staff Regulations and of those risks, as opposed to cover in respect of Rules and in such a case it is clearly differing rates of benefit, was not directly convenient and appropriate that the special addressed in the pleadings, there may be precontentious procedure should be used. In some doubt as to whether it can be regarded particular, it is clearly right that, where as properly forming part of the application. there is a dispute between an institution and None the less, I am of the view that this a former Member about the applicability of question should not be excluded. This is any relevant regulations, a formal complaint because the issues of different rates of should be made to the institution concerned benefit and different range of cover essen before the matter is brought before the tially come down to the same question, Court. In my opinion, Mr Kontogeorgis namely, whether Article 11 of the emol acted correctly in following the procedure uments Regulation permits affiliation to the laid down by Article 90 of the Staff Regu Community scheme for the purpose of lations and the action should be regarded as supplementing cover under a national admissible. scheme. If Article 11 permits cover for the purpose of supplementing benefits payable in respect of a specific risk under a national scheme, then a fortiori it must permit cover for the case where no national benefit is payable at all in respect of such a risk. The substance
10. In their written pleadings in this case 12. Mr Kontogeorgis argues that Article the parties were essentially concerned with 11 of the emoluments Regulation does not the issue whether a former Commission exclude continuing affiliation to the Member can continue to be affiliated to the Community scheme in order to make up the Community scheme for the purpose of difference between the amounts of benefit supplementing the level of benefits payable under the national and Community obtainable under a national scheme. schemes. He relies on the related provisions However, at the hearing, the representative of Article 72 of the Staff Regulations, and
OPINION OF MR JACOBS —CASE C-163/88
argues that while those provisions, as a exclude simultaneous cover by the general rule, exclude double cover for Community scheme. The Commission former officials, Article 72(4) permits argues that it is clear from the wording of former officials covered by a national Article 11 of the emoluments Regulation scheme to remain affiliated to the that the regime applicable to former Community scheme for the purpose of Commission Members is subsidiary in making up the difference in the level of character, i. e. cover is only provided under benefits payable under the two schemes. In the Community scheme if cover is not the applicant's view, Article 11 of the emol available under another scheme. In the uments Regulation, which is intended to Commission's view, the same principle of apply to Members the same provisions as subsidiarity underlies the provisions of those applicable to officials, must be inter Article 72 of the Staff Regulations. The preted in such a way as to permit persons in Commission adds in its rejoinder that it the applicant's position to benefit from the does not consider itself bound by a same facility. different, erroneous interpretation of Article 11 of the emoluments Regulation adopted by another Community institution.
13. Mr Kontogeorgis also argues that his standpoint is supported by the underlying objective of the Community provisions which, in his view, is to prevent the accumu 15. In my view, the terms of the second lation of benefits under two social security paragraph of Article 11 of the emoluments schemes, while at the same time ensuring Regulation, in providing that a former that the Community official or former Member of the Commission or of the Court Commission Member can rely at least on should not benefit from the Community the minimum level of benefits obtainable scheme 'in order to cover risks already under the Community scheme. In his reply, covered by another social security scheme the applicant also claims that a former under which the former Member of the Greek Member of the Court of Auditors has Commission or of the Court may benefit', been permitted to retain his affiliation to the exclude affiliation to the Community Community scheme, in spite of the fact that, sickness insurance scheme by a former like Mr Kontogeorgis, he is a former Greek Commission Member who could obtain civil servant and is entitled to benefit under insurance against sickness under a national the Greek social security scheme. scheme, even if the scope or level of cover Mr Kontogeorgis argues that refusal to provided by that national scheme is not offer him access to the Community scheme equivalent to that provided by the amounts to discrimination. Community scheme. The second paragraph of Article 11 was introduced by Council Regulation (ECSC, EEC, Euratom) No 2163/70, already referred to, and had the effect of extending the Community scheme to former Members of the Commission as well as to serving Members. 14. In the Commission's view, the existence The structure of the article supports the of cover against the risk of sickness under a view that serving Members benefit from the national scheme, regardless of the amount Community scheme even while they are or conditions of benefit, is sufficient to covered by a national scheme, subject only
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to the provisions of Anicie 72 which Community scheme 'in order to cover risks preclude double payment for the same risk already covered' elsewhere (emphasis (see judgments of 8 March 1988 in added), it might be contended that affil Case 339/85 Brunotú v Commission [1988] iation to the Community scheme must be ECR 1379, and of 13 July 1989 in available for the purpose of cover against Case 58/88 Olbrechts and Olbrechts specific risks which are not covered by the v Commission [1989] ECR 2643); while relevant national scheme at all, so as to former Members may benefit from the provide for example for dental care, the Community scheme only if they are not provision of spectacles, and health care covered by another scheme. The wording of abroad, as mentioned earlier. It is true that Article 4(8) of the Rules is to the same there is a difference between the wording of effect. the second paragraph of Article 11, which permits former Members of the Commission to rely on the Community scheme in order to cover 'risks' not covered elsewhere, and the wording of Article 72(1 a) and (2a) of the Staff Regulations, which permit certain former officials to continue to rely on the Community scheme if they cannot obtain 16. Reference to the corresponding 'cover' under another scheme. However, in provisions of Article 72 of the Staff Regu my view the reference to 'risks' in the lations bears out this interpretation. As the second paragraph of Article 11 must be Commission points out, Article 11 of the understood from its context to refer back to emoluments Regulation contains no the general risks set out in the first mention of equivalence, as regards the scope paragraph, in this case to the general risk of or level of cover, between the Community sickness, and cannot be taken to mean and the relevant national scheme. In relation specific risks of ill-health such as dental to certain categories of former officials, decay or eye problems. The French text of Article 72(1 a) and (2a) also make no the first paragraph is clearer in this respect reference to equivalence. Significantly, than the English text, since it refers to 'la Article 72(1) does make such a reference, in couverture des risques de maladie, de that it provides for cover for the spouse of a maladie professionnelle et d'accidents . . . ', serving official 'where such spouse is not which suggests the general risks of sick eligible for benefits of the same nature and of ness, etc. Accordingly, affiliation to the the same level by virtue of any other legal Community scheme is available only to provision or regulations... ' (emphasis former Members of the Commission who added). In my view, if the Community cannot obtain cover under any other scheme legislator had intended a test of equivalence against the risk of sickness generally. to apply in relation to former Commission Members it would have used similar wording in Article 11 of the emoluments Regulation.
17. Since the second paragraph of 18. Reference to Article 72(4) of the Staff Article 11 provides that former Commission Regulations also cannot assist the applicant. Members may not continue to rely on the That provision, which requires that benefits
OPINION OF MR JACOBS —CASE C-163/88
available under an outside scheme should be remained in the service of the Communities taken into account for the purpose of calcu until the age of 60 or who are in receipt of lating benefits obtainable under the an invalidity pension are entitled to Community scheme, does indeed appear to continuing cover, irrespective of their permit an eligible person in an appropriate possible entitlement under other schemes. case to claim under the Community scheme Former officials who have left the service of the difference between the amount of the Communities before the age of 60 are benefits which can be obtained under the entitled to benefit only if they cannot obtain outside scheme and under the Community cover under any other public scheme of scheme. However, it is plain from its sickness insurance and subject to the further opening words — 'persons entitled to the condition that they are entitled to foregoing benefits' — that Article 72(4) is retirement pension, a requirement which, in only concerned with persons who are accordance with Article 77 of the Staff entitled to benefit under the Community Regulations, will normally be satisfied only sickness scheme. It is moreover plain from by officials who have completed at least 10 its subject-matter — the set-off between two years' service. Other former officials do not levels of benefits — that Article 72(4) is benefit from the Community scheme at all. concerned only with those eligible persons In any event, in my view the answer to the who are permitted, under the rules of the issue raised in this case is not to be found by Community scheme, to find themselves in a comparison between the position of former situation of double cover. Thus, contrary to Members and former officials: the answer the applicant's view, Article 72(4) could not appears to me to follow from the terms of be relied on by the categories of former the second paragraph of Article 11 of the officials referred to in Article 72(1 a) emoluments Regulation. and (2a). As regards the applicant himself, he is, as already stated, not entitled to affil iation under the Community scheme, and could only become so entitled if he were not already covered under another scheme. The two prerequisites for application of Article 72(4) — entitlement and double cover — are thus absent. 20. I am conscious that that answer could in individual cases lead to hardship, in particular where the relevant national scheme is markedly less generous in its range of cover and level of benefits than the Community scheme. None the less, the intention of the Community legislator as regards the treatment of former Commission Members appears clear, and any changes to the relevant rules are a matter for that legislator.
19. If as Mr Kontogeorgis suggests a comparison should be made between the position of a former Member and a former official of the Commission, then it must be pointed out that there are three categories of former officials which might have to be 21. The application must, therefore fail, and considered. First, only those who have since, in my view, the action is to be
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regarded, for all relevant purposes, as an Article 95(3) of the Rules of Procedure, action brought by an official of the each side should bear its own costs, in Communities within the meaning of accordance with Article 70 of those Rules.
22. Accordingly, the Court should dismiss the application and order each party to bear its own costs.