C-70/91

* Original language: French. 2 — Emphasis added. 1 — Judgment in Case T-75/89 Brems v Council [1990] ECR 3 — Pursuant to Article 2(3)(b): child under 26 years of age 11-899. receiving educational training.

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OPINION OF MR DARMON — CASE C-70/91 P

7. By letter of 27 October 1988, 4 Mrs 11. Article 3 of a Council Decision of Brems asked that payment of the allowances 15 March 1976 laying down general rules for be resumed, claiming that her son should be implementing Article 2(4) of Annex VII to 'treated as if he were a dependent child' on the Staff Regulations 8 (hereinafter referred the grounds that, being unemployed, he to as 'the general implementing rules'), involved her in heavy expenditure and that adopted pursuant to Article 110 of the Staff she had a legal responsibility towards him. Regulations, provided that:

8. O n 29 November 1988 5 the Secretariat 'The person in respect of whom application General of the Council rejected that applica- is made must be: tion on the grounds that 'treatment of a per- son as if he were a dependent child b y spe- cial reasoned opinion of the appointing — over 60 years of age, in the case of a man, authority (...) can be allowed only in respect and over 55 years of age in the case of a of any person other than a dependent child'. woman or

12. The applicant's son did not satisfy those 17. The Court of First Instance produces a conditions, and accordingly, the Council, by literal argument: owing to the generality of decision, refused to treat him as if he were a the term 'any person', the official's child who dependent child and to allow the applicant does not satisfy the conditions defined in the benefit of Article 2(4). paragraphs (3) and (5) may not legitimately be excluded from the scope of paragraph (4). » 13. The Court of First Instance, before which Mrs Brems had brought an action, annulled the decision of 29 November 1988 by judgment of 14 November 1990 (cit- 18. Moreover, to exclude the children of ed above), against which the Council has officials from that general rule would be con- appealed to this Court. trary to the principle of equal treatment14 which 'prohibits discrimination based solely on a person's status'. 14. Turning to Article 2 of Annex VII, the Court of First Instance held l 0 that, in the case of children covered by paragraphs (3) and (5), the appointing authority is bound to 19. The Court of First Instance then points grant the dependent child allowance if the out the paradox which would arise from child is actually being maintained by the such an exclusion: 'Such an interpretation is official: the appointing authority enjoys cir- even less justified since the family bond link- cumscribed powers. ing an official to his child is stronger than that linking him to other persons — such as parents ...'. 15

children. The scheme of the Staff Regulations 23. In its appeal the Council puts forward cannot preclude an official from applying for three pleas. 19 his own child to be treated as if he were a dependent child. 1 6 24. In the first place, it claims that the Court 21. Lastly, the judgment upholds the objec- of First Instance misinterpreted Anicie 2(4) tion of illegality raised against Articles 3 and of Annex VII to the Staff Regulations. 7 of the Council Decision of 15 March 1976 adopting general rules for implement- ing Article 2(4) of Annex VII, on the follow- 25. Secondly, the Court of First Instance ing grounds: made an erroneous application of the princi- ple of non-discrimination. — the general implementing rules cannot reduce the scope of the Staff Regulations; 26. Lastly, it was wrong in declaring Articles 3 and 7 of the Council Decision to be illegal. — the expression 'any person' is clear;

— by imposing minimum and maximum 27. I propose to examine those three pleas in age-limits 'the general implementing rules turn. excluded from the scope of Article 2(4) all the persons who were in between the age-limits imposed, and thus deprived the appointing authority of the opportunity 28. In support of its first plea, the Council of exercising its discretion in each indi- maintains that the Court of First Instance vidual case'. 1 7 made an incorrect assessment of the general purpose and aim of Article 2, and failed to take account of the exceptional nature of 22. The Court of First Instance concludes treating a person as if he were a dependent from all those considerations that: child.

31. Under Article 2 of the Annex, officials are entitled to receive allowances for depen- 35. There are other cases in which the offi- dent children. cial must in practice maintain a person who, although neither his minor child, nor his young child of full age receiving training, nor 32. After defining the term 'dependent child' his invalid child, imposes the same commit- in paragraph (2), Article 2 subjects the grant ments as such children. of the allowance to certain conditions, par- ticularly as regards the age of the child. 36. For that reason paragraph (4) provides that any person may, exceptionally, be treated as if he were a dependent child if two condi- 33. A child under 18 years of age and a child tions are met: the official must have a legal under 26 pursuing his education (to whom responsibility to maintain that person and paragraph (5) adds the child prevented by his maintenance must involve heavy expendi- serious illness or invalidity from earning a ture. livelihood) are necessarily and obviously incapable of supporting themselves, simply by virtue of their status as a minor, a student or an invalid child. That is why the Staff 37. In such a case, the presumption that the Regulations presume that they are dependent person is unable to earn a livelihood no on their parents and provides in their regard longer operates: it is the task of the official to that, since their status is that of a 'dependent furnish the appointing authority, which child' within the meaning of paragraph (2), retains a full discretionary power in the mat- the dependent child allowance is available by ter, 22 with the evidence on both counts right and may not be withheld by the under paragraph (4). appointing authority 20 which, as the Court of First Instance rightly held, enjoys circum- scribed powers. 21 38. This Court has already held in the Bran- dan 23 judgment that:

39. Thus, the appointing authority has 43. It is, however, self-evident that in such acknowledged the dependent status of an cases the grant of the dependent child allow- official's mother. 25 ance cannot be automatic; it presupposes (i) that the official applying for the allowance supplies the evidence required by paragraph (4) and (ii) that the appointing authority exercises its discretionary power. Here, the 40. The term 'any person' demonstrates that need for the allowance is not taken for a 'person ... treated as if he were a dependent granted but must be substantiated, precisely child' is a generic category covering widely because it is exceptional. differing situations. Only such broadly drafted wording can embrace all classes of person supported by an official and yet fall- ing outside the scope of Article 2(3) and (5). 44. In plain language, paragraphs (3) and (5) do not cover the only three cases in which the child of an official confers an entitlement to the dependent child allowance. They 41. We may recall that the three cases envis- cover the only three cases in which that aged by those two paragraphs deal with cir- allowance is paid automatically. It does not cumstances in which the dependent child follow that the official's child does not qual- allowance is automatically granted 26 because ify for the dependent child allowance in it is clearly justified in such cases: the word- other circumstances. In those cases the need ing requires neither 'supporting documents' for the allowance must be substantiated. nor evidence of 'heavy expenditure'.

able. Paragraph (4) relates to cases — still to child to be treated as if he were a dependent be identified — in which the need for the child, the Council relies mainly on the Moul- allowance is in doubt: it must then be sub- ijn29 judgment of 21 November 1974. The stantiated. applicant in that case was seeking the annul- ment of the Commission's decision refusing to treat his divorced wife as if she were a dependent child on the ground that he did 47. It follows that the official's child must not devote to her maintenance a sum of at qualify for inclusion in the category of 'any least 20% of the taxable amount of his salary. person' whenever he does not fall within The Commission relied on the general paragraphs (3) and (5). The child 'treated as implementing provisions which it had if he were a dependent child' is one who, adopted pursuant to Article 110 of the Staff although not meeting the conditions under Regulations in order to give effect to Article those paragraphs, qualifies for the allowance 2(4); Article 1 of those implementing provi- because it is proved that maintaining him sions provided as follows: 'In order for involves his parent in heavy expenditure. 27 another person to be treated as if he were a dependent child, the following conditions must be satisfied: (...) (4) The official must provide evidence that he devotes a sum equal to not less than 20% of the taxable amount 48. It is, indeed, hardly imaginable that the of his salary (...) to the maintenance of the child of the official — whom the Commu- person for whom he is responsible'. nity legislature wished to benefit by creating a special allowance for him — should not enjoy treatment as if he were a dependent child, when the parents, grandparents or former spouse may do so — a paradox aptly 51. The Court held that: emphasized by the Court of First Instance in paragraph 26 of its judgment.

53. That term should be read as 'a person other than those to whom paragraph (3) refers'. i 2 It does not follow that the term dis- 57. Turning to the second plea, in which it qualifies from treatment as a dependent child alleges the misapplication of the principle of the children of an official who find them- non-discrimination, the Council maintains selves in circumstances other than those cov- that there was no infringement of that prin- ered by paragraph (3). ciple inasmuch as the classes of person per- mitted by the Court or under the general implementing rules, to enjoy treatment as if they were dependent children under Article 2(4) satisfied the same maximum age-limits 54. Finally, it is not surprising that the pro- as are imposed on dependent children under visions of Article 2(7) of Annex VII — Article 2(3). which, when the official to whom the allow- ance is awarded is not the custodian of the child, provides that payment is to be made direct to the spouse or third party actually having custody of the child — refer only to 58. Since those limits were established by the dependent child within the meaning of Article 3 of the general implementing rules, paragraphs (2) and (3). an inquiry as to whether or not there was discrimination in this case is here tantamount to a review of the legality of Articles 3 and 7 of the Decision of 15 March 1976 on which 55. That is so because such a contingency is the Council based itself when adopting the alien to paragraph (4), which assumes that contested decision — the subject of the third the official is actually and directly responsi- plea. ble for the maintenance of the person treated as a dependent child.

60. This Court held in the Prakash 34 and treatment as a dependent child, relating Rauch 35 judgments that general implement- mainly to the amount of expenditure ing provisions are adopted by the institu- incurred by the official in maintenance. tions, first, when the articles of the Staff Reg- ulations instruct them to make rules on specific points 3 6 and, secondly, when the Staff Regulations are not sufficiently explicit. General implementing provisions have, for example, been adopted on the procedure for 64. The applicant claimed that, since the the promotion of staff. 37 conditions laid down by Article 2(4) and by the general implementing provisions were satisfied, the Council was obliged to grant treatment as a dependent child, otherwise it 61. As far as Article 2(4) of Annex VII to would be in breach of the general principle the Staff Regulations is specifically con- of equal treatment for officials. cerned, the extent of the legislative powers derived by the institutions from Article 110 thereof was defined in the Brandan judgment of 7 June 1972. 38

65. The Court held as follows:

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This general principle does not mean that, in — over 60 years of age, in the case of a man, applying the provision concerned, the and over 55 years of age in the case of a administration must merely carry out a woman or mechanical application of predetermined rules and criteria.

— under 18 years of age, or, if the person is receiving education or vocational train- Such an interpretation would conflict with the need for evaluation of the often compli- ing, under 26 years of age, or, cated factual considerations peculiar t o each individual case.' 39

any other member of the family aged 39 — Judgment cited above, paragraphs 11 to 14; emphasis added. between 18 years (or 26 if receiving training)

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COUNCIL v BREMS

and 55 in the case of a woman, or 60 in the menting rules have introduced a discrimina- case of a man. tory practice, contrary to the principle of equal treatment.

72. The Council's intention was therefore to make the grant of the dependent child allow- 76. As Advocate General Roemer recalled in ance pursuant to paragraph (4) subject to the his Opinion in Brandau, 'the administration same conditions as those set out in paragraph must... appraise exceptional situations and ... (3). <° it must ... take ... measures for which it is impossible to spell out an exhaustive list of conditions but which, on the contrary, 73. Accordingly, the official's nephew or require all sorts of personal and social con- grandson 41 could not be treated as if they siderations to be taken into account when were dependent children unless they fulfilled they are adopted'. 42 the same age conditions as are required of a child under Article 2(3). 77. By assuming in its decision of 15 March 1976 that anyone not falling within the 74. It is therefore my opinion that the stated age-limits would be capable of earning Council's action was at odds with the objec- a livelihood, the Council has deprived the tive of Article 2 of Annex VII — and with appointing authority of the discretionary Annex VII as a whole, which seeks to cope power accorded to it by Article 2(4) of generally with circumstances in which the Annex VII. official incurs an additional commitment — and that it overlooked the possibility that these might he the circumstances of the offi- 78. Thus the Court of First Instance was cial's child himself if he could not claim the right to hold that Articles 3 and 7 of the benefit of Article 2(3) or (i). Council Decision of 15 March 1976 were vitiated by illegality.