C-145/90

O P I N I O N O F MR VAN GERVEN —CASE C-145/90 P

O P I N I O N OF MR ADVOCATE GENERAL V A N GERVEN delivered o n 26 J u n e 1991 ^

Mr President, graphs 23 to 32 of the grounds of its Members of the Court, judgment.

The appellant has based his appeal on three 1. The Court is asked to rule on an appeal pleas. They all concern the interpretation brought by Mario Costacurta ('the given in the contested judgment to the appellant') against the judgment delivered condition for granting the education on 13 March 1990 by the Court of First allowance which is laid down in Article 3 of Instance (Third Chamber) · dismissing two Annex VII to the Staff Regulations, that is actions brought by the appellant challenging to say, the requirement that the dependent Commission decisions of 30 October 1987 child be 'in regular full-time attendance at and 26 April 1988. The dispute on which an educational establishment'. the Court of First Instance gave judgment concerned the withdrawal of payment of the dependent child allowance and the education allowance to which the appellant considered he was entitled in respect of his Admissibility of the pleas daughter, Nadia Costacurta.

3. Article 168a of the EEC Treaty states that the right of appeal against judgments of The facts of the case and the course of the the Court of First Instance is 'on points of procedure have already been described in law only'. In accordance with that the Report for the Hearing and I do not provision, Article 51 of the Statute (EEC) of need to repeat them here. the Court of Justice states that:

The experience of the supreme courts of the Member States 2 has shown that limiting the powers of review to 'points of law' or 5. The appellant maintains that the Court 'infringement of (Community) law' cannot of First Instance was wrong to hold that the exclude all reference to the facts (as estab- conditions for granting the education lished by the lower court). There is a breach allowance ceased to be met when his of law not only where a rule of law has daughter Nadia Costacurta began her been misinterpreted (for instance, if a court training period at the Commission on 16 were to hold that breach of Article 86 of March 1987. the EEC Treaty did not presuppose the existence of a dominant position) but also where a given set of facts is wrongly cate- gorized in law (for instance, if it is held that an undertaking which has a 9 5 % share of a The appellant challenges the judgment by particular market does not have a dominant referring to Conclusion 166/87 of the position there). Since the Court's powers of Committee of Heads of Administration review on appeal are intended to ensure the (mentioned in paragraph 16 of the contested uniformity of Community law, a plea that judgment) in which it is stated that the challenges the legal characterization of a set condition regarding a child's 'regular' of facts cannot, in my view, be declared attendance at an educational establishment inadmissible. is satisfied 'when an establishment is attended by a pupil or student for a minimum period of three months'. Now, the appellant concludes that since his daughter attended a course in international private law at the University of Paris-I from 16 4. As regards the admissibility of the pleas November 1986 to 15 March 1987, that in this case there can in any case be no condition is satisfied and she must be regarded as having been in regular full-time 2 — See, for example, for an analysis of the French and attendance for the whole of the 1986/87 German legal systems, the instructive account in 3es university year. Journées juridiques franco-allemandes — Le contrôle des constatations de fait par le juge de cassation, published in Revue internationale de droit comparé, N o spécial — Vol 2, Journées de la société de législation comparée, 1981, pp. 87-258. For a brief comparative review, in particular with regard to the role of the appeal couru, see T. Koopmans De Hoge Raad en buitenlandse hoogste gerechten, ín De Hoge Raad der Nederlanden, 1938-1988 — Een portret, 6. Despite the Commission's view to the Zwolle, 1988. For a less recent but fundamental study, see F. Rigaux, La nature du contrôle de la Cour de cassation, contrary, that plea does in fact concern a Brussels 1966. 'breach of Community law' by the contested

judgment, in particular a breach of Article 3 Second plea of Annex VII to the Staff Regulations: the appellant maintains that the Court misinter- preted the condition laid down in that 7. The appellant's second plea is that the provision that attendance at the educational Court of First Instance was wrong to establishment be 'regular'. The appellant's consider that the training period completed argument is evidently that if a university by his daughter at the Commission starting course is followed for at least three months on 16 March 1987 was not to be regarded the education allowance must be granted for as equivalent to 'regular full-time the whole university year, even if the child attendance' at an educational establishment. follows the courses for only part of the year The reasons given for reaching that and pursues a gainful occupation for the conclusion are to be found in paragraph 26 rest of the year. et seq. of the contested judgment.

The Court of monthly amount and that entitlement to it is First Instance concluded therefore that the to cease at the end of the month in which training period could not be regarded as the child reaches the age of 26. It follows equivalent to attendance at an educational that if it is apparent that the dependent establishment and that therefore the child was no longer attending courses for a conditions for the grant of the education particular month, entitlement to the allowance were no longer satisfied when the education allowance ceases from the end of daughter commenced her training at the

This be met (paragraphs 29 and 30 of the time, however, the appellant complains that judgment). Consequently, the first plea must the contested judgment contains an fail. erroneous assessment in law of an element

8. The second plea adds nothing to the arguments already set out by the appellant 9. In the third and last plea the appellant before the Court of First Instance: once claims that the reasons given in the again, he points out that his daughter's contested judgment are incorrect, because training was carried out 'with the agreement the Court of First Instance supported the of the university', that the university author- Commission's argument that the training ities 'authorized' such training and even completed by the appellant's daughter sometimes recommend their students to amounted in fact to 'vocational training' those conducting such courses, and that the within the meaning of Article 2 of Annex Commission itself encourages participation VII to the Staff Regulations. This plea chal- in them by accepting students for such lenges paragraph 31 of the grounds in the training every year and by setting up the contested judgment, in which the Court of Erasmus programme. First Instance considered the appellant's argument to the effect that the dependent child's allowance was granted to him but not the education allowance at the same time. In the contested judgment the Court of First I consider that the interpretation given by Instance adopted the Commission's the Court of First Instance to Article 3 of argument that the training period completed Annex VII to the Staff Regulations is by the appellant's daughter should be correct. The criterion which it relied on, regarded as 'vocational training' for which a that the training must be recognized by the dependent child's allowance may be granted educational establishment in question as under Article 2(3) of Annex VII to the Staff constituting an integral part of the Regulations, but not an education programme of study, so that completion of allowance. It points out in paragraph 31 of the training was necessary in order to obtain the grounds of the judgment that the the final diploma, appears to me to be an criteria for granting the dependent child's objective, relevant and sufficiently clear allowance (Article 2) differ from those criterion to satisfy both the terms and the governing the grant of the education purposes of Article 3. Admittedly, the allowance (Article 3). criterion makes the question whether or not such training constitutes part of a programme of study depend on the assessment of the educational establishment concerned. However, that appears to me to The appellant challenges the conclusion that be wholly logical, just as logical for example his daughter's training was 'vocational as it is for the educational establishment (or training'. In support of his argument he the authority which runs it) to determine states that his daughter was asked by the

Conclusion

11. On the basis of the foregoing I suggest that the Court declare the appeal unfounded. As regards costs, the first paragraph of Article 122 of the Rules of Procedure provides that the Court shall make a decision as to costs when the appeal is unfounded. According to the second paragraph of that article the same rule applies in proceedings between the Communities and their servants, since the Court may order (without being bound by the provision in Article 70 of the Rules) the parties to share the costs in whole or in part where equity so requires. As I can see no reasons to apply the rules of equity in this case, I suggest that the appellant be ordered to pay the costs of the appeal, including those of the Commission.

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