C-132/90

As is apparent from Article 168a of the EEC Treaty and Article 51(1) of the Statute of the Court of Justice, an appeal is to be limited to points of law and, more By judgment of 8 March 1990 (in Case particularly, lack of competence, breaches T - 4 1 / 8 9 ) , the Court of First Instance of procedure which adversely affect the dismissed his application, observing that a interests of the appellant and infringement tax abatement may be granted only to the of Community law by the Court of First person who assumes actual responsibility for Instance. all the child's basic needs (paragraphs 18 to 21) and that that responsibility had been assumed by the German army. The reasons for that limitation of the grounds available for appeals against judgments of the Court of First Instance are well known. Whilst the aim pursued in establishing a Court of First Instance was to preserve the quality and effectiveness of T h e Court of First Instance also rejected the judicial protection within the Community argument based on the fact that the young legal system and to allow the Court of man had spent about half his period of Justice to concentrate on its main task, military service at his parents' home, which is to ensure the uniform inter- regarding it as immaterial since he had done pretation of Community law, 2 it was also so of his own volition (paragraph 24). 2 — See the fourth recital in the preamble to Council Decision * Translated from the Iulian No 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European 1 — OJ, English Special Edition 1968 (I), p. 37. Communities (OJ 1988 L 319, p. 1).

If, therefore, that is the function of the appellate jurisdiction, the third ground of appeal mentioned in Article 51(1) of the Statute, namely infringement of Community 4. In his first ground of appeal, which in law by the Court of First Instance, must be fact comprises three specific complaints, the construed as extending to all errors of law appellant challenges the Court of First attributable to the Court of First Instance: Instance's statement that the tax abatement not only, as is obvious, misinterpretation of is only justified if it is granted to the person a provision but also incorrect identification who assumes actual responsibility for all the of the provisions that are applicable or an child's basic needs (paragraph 18). incorrect legal classification of the facts established or of the particular case before it, or both, the consequence of which is the application of the provision to a set of circumstances which is not covered by it. By referring to actual provision for all the Such defects are all liable to detract from needs of the child and then limiting it to basic the uniform application of Community law, needs, the Court of First Instance, in the which it is the duty of the Court of Justice appellant's view, imposed a twofold and to safeguard. unacceptable limitation on the concept of 'actual maintenance', in particular by excluding the possibility of taking account of partial maintenance and consequently treating as entirely irrelevant the fact that, 3. That said, and before the three grounds in the present case, both the appellant of appeal are examined, it is appropriate to himself and the German army actually recall the tenor of the two provisions which, contributed to the young man's main- the appellant contends, have been infringed. tenance.

In that connection, the appellant emphasizes lations which, in defining 'dependent child', that it appears from the instructions given refers to the requirement of his actually by the Secretary-General of the European being maintained by the official. Parliament in October 1963 concerning the implementation of Article 2 of Annex VII to the Staff Regulations, and from Conclusion 188/89 of the Heads of Administration, that even partial maintenance of a child may give That, moreover, is the nub of the problem rise to entitlement to a dependent-child in this case. In other words, we must ask allowance. whether the wording of the provision which defines the concept of dependent child is such as to make it impossible or irrelevant for a parent to prove that he in fact The European Parliament's first response to ('actually') maintained his son in circum- that claim is an objection of partial inad- stances where another person or body, missibility based on the view that, by theoretically, provides for the young man's claiming actually to have contributed to his upkeep. son's maintenance, the appellant again calls in question the finding of fact made by the Court of First Instance to the effect that the German army provides for all the needs of young people called on to do military The Court of First Instance answers that service. question affirmatively, stating (in paragraph 21) that 'there is no need to examine on a case-by-case basis the particular conditions under which each young man is required to However, that objection does not seem to do his military service' and taking the view me to be well founded. The fact is that the that if he spent any time at his parents' appellant does not purport to challenge the home during his period of military service fact that, in principle, the army provides for that was irrelevant since that circumstance the needs of young people doing military was of his own choosing. service but rather is contesting the conclusion contained in the judgment of the Court of First Instance that such a fact is sufficient to exclude any possibility of the young man being treated as a 'dependent I cannot agree with an answer to that effect. child' of a parent, with the result that, in his Article 2(2) of Annex VII to the Staff Regu- case, it is unnecessary to establish who in lations provides unequivocally that a child actual fact undertook maintenance of the who is actually being maintained by an young man: and, indeed, the Court of First official is his dependent child, thus referring Instance did consider it unimportant to find to the factual situation and not laying down out whether, and if so to what extent, the any additional requirement that there must appellant (or conversely the army) actually be no theoretical possibility of the child's maintained the young man. being maintained by others, be they public authorities or private individuals.

5. It likewise seems to me that the appellant is correct to criticize the Court of First Accordingly, the fact that a young man Instance's statement that the tax abatement called on to do military service may remain is available only to those who assume in barracks outside duty hours, in which responsibility for all the child's needs. case the army will be required to provide him with board and lodging, seems to me to be irrelevant. If the organizational arrangements for military service are such If it is borne in mind that the aim pursued that young people are free to stay at their by the provisions at issue is to provide parents' home outside duty hours, only that assistance for a parent who bears the factual situation is important and must be expenses of maintaining a child, it becomes taken into account in determining by whom quite clear that the construction of the the young man is actually being maintained. provision adopted by the Court of First Instance excessively and unjustifiably limits the concept of dependent child, with the unacceptable consequence that a young man in receipt of a very modest income, which in any event is insufficient for him to support Nor do I consider that any support for the himself, cannot be regarded as being main- Court of First Instance's interpretation can tained by his parents. be found in the decision of the Court of Justice cited in paragraph 23 of the judgment appealed against, according to which the provisions of Community law, and in particular those of Council or Such an interpretation is, on the one hand, Commission regulations which create a right liable to produce consequences that run to financial benefits, must be given a strict counter to the ratio of the provision and, on interpretation. the other, diverges from the actual practice followed by the Community institutions and has no basis in the relevant case-law of the Court of Justice.

The principle whereby even partial main- What does emerge from Sorasio is that the tenance (subject to determination of the parent's contribution must account for the extent) of a child may give rise to enti- major part of the child's maintenance; the tlement to a tax abatement in respect of a Court, in saying that both parents cannot dependent child is thus not undermined by simultaneously claim to be maintaining the the Court of Justice's dicta in the Sorasio child, properly sought to ensure that not judgment. 3 more than one person claimed to be actually maintaining the child, with the result that it is necessary, in principle, to find out upon whom the burden of maintenance primarily In that case, in which an issue was the falls. legality of the Commission's refusal to grant the tax abatement in question for both parents, who were officials of the European Communities, the Court of Justice, after making clear that the tax abatement for a Similarly, it would run counter to the very dependent child is justified only if granted ratio of the provision to regard as being for social reasons connected with the actually maintained, within the meaning of existence of the child and the cost of main- Article 2(2) of Annex VII to the Staff Regu- taining him (paragraph 15), went on to say lations, a young person who was in fact that, for the purpose of applying the being supported primarily by others. provisions of the second subparagraph of Article 3(4) of Regulation N o 260/68, a child cannot be deemed to be actually main- tained by each of his parents individually, so 6. Whilst that part of the first ground of that, if only one dependent child allowance appeal thus deserves to be upheld, I am not is to be paid in respect of him within the persuaded that there is any foundation for meaning of Annex VII to the Staff Regu- the complaint against the Court of First Instance's other statement, namely that 3 — Judgment of 27 November 1980 in Joined Cases 81/79, account must be taken only of the young 82/79, and 146/79 Sorasio and Others v Commission oj the European Communities [1980] ECR 3557. person's basic needs.

In that regard, it must be observed that, as correctly pointed out by the European Parliament, the finding in question is one of It may be readily observed in that regard fact and is not open to review on appeal. that, if the legislature had wished the preconditions for entitlement to the two benefits to correspond exactly, it would have taken the much simpler and clearer course of saying that entitlement to the tax Nor am I convinced by the appellant's abatement would automatically accrue t o reasoning in his rejoinder in which he says those in receipt of a dependent-child that, in putting forward that argument his allowance. intention was to challenge the incorrect interpretation of the concept of actual main- tenance. That aspect of the Court of First Instance's reasoning was in fact the subject of a separate, specific complaint. Moreover, as I said earlier, the fact that the young man 9. I consider therefore that the concept of left his barracks by his own choice has no dependent child under Article 2(2) of Annex bearing on the interpretation of the concept VII to the Staff Regulations is to be inter- of dependent child. preted as meaning that a child who is doing

I-5761

OPINION OF MR TESAURO — CASE C-132/90 P

military service may be regarded as of First Instance. It may then itself give final dependent on the official where the latter judgment in the matter, where the state of provides evidence to show that he was in the proceedings so permits, or refer the case fact primarily responsible for providing for back to the Court of First Instance for the basic needs of the child. judgment.