C-153/96
ECLI:EU:C:1997:39
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DE RIJK v COMMISSION
OPINION OF ADVOCATE GENERAL LÉGER delivered on 23 January 1997 *
1. Mr de Rijk seeks annulment of the judg I — Facts, legal background and procedure ment delivered by the Court of First Instance on 7 March 1996 in an action brought by him against the Commission (Case T-362/94 [1996] ECR-SC 11-365, here inafter 'the contested judgment'). Facts
4. Mr de Rijk is an official in Grade B 2 assigned to the Commission's delegation in 2. In support of his appeal he relies on Finland. breach by the Court of First Instance of Article 24 of Annex X to the Staff Regula tions of Officials of the European Commu nities ('the Staff Regulations'), of Article 33 of the Statute of the Court of Justice and of the principles of legal certainty and non discrimination. 5. In the summer of 1993, that is to say, prior to the accession of the Republic of Fin land, he incurred expenses for medical care for dependants, including his son who resides habitually in Belgium. On 18 August 1993 he applied to the Commission for reim bursement amounting to BFR 26 631.
3. After summarizing the facts, the legal background and the procedure (I), I shall consider the question of the admissibility of the appeal (II). I shall then discuss the pleas raised by the appellant and suggest that the 6. On 6 October 1993 the Joint Sickness appeal be dismissed (III). I shall conclude by Insurance Fund of the European Communi considering the question of costs (IV). ties sent him a statement of account showing that it would reimburse BFR 21 681 of that total, and indicating that the remaining BFR * Original language: French. 4 950 could perhaps be recovered on the
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basis of Article 24 of Annex X to the Staff official's contribution shall not exceed 0.6% Regulations. of his basic salary, any balance shall be paid by the institution.
The applicable social security scheme
The official, his spouse, his children and other persons dependent on him shall be 7. The social security scheme applicable to insured for repatriation on health grounds in Mr de Rijk, as an official posted outside the the case of an emergency or extreme emer Community, is set out in Annex X to the gency; the premium shall be paid entirely by Staff Regulations, which was added by the institution.' Council Regulation (Euratom, ECSC, EEC) No 3019/87 of 5 October 1987. 1 Its title is 'Special and exceptional provisions appli cable to officials serving in a third country'.
8. The Commission adopted general provi sions for implementing the first and second paragraphs of Article 24 of Annex X to the Article 24 provides as follows: Staff Regulations. 2 Article 2(1) and (2) thereof provides: 'The following shall be covered by the supplementary sickness insurance:
'The official, his spouse, his children and other persons dependent on him shall be covered by supplementary sickness insurance for the difference between expenditure actu ally incurred and payments from the scheme (1) an official whose place of employment is provided for in Article 72 of the Staff Regu outside the Community; lations; no reimbursement shall be made under Article 72(3).
(2) persons covered by the insurance of the official referred to in (1), where he is Half the premium shall be paid by the offi a member of the scheme, pursuant to cial and half by the institution. However, the
2 — Commission Decision published in Informations administra- 1 — OJ 1987 L 286, p. 3. tives No 642 of 17 September 1990.
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Article 72 of the Staff Regulations as 10. On 18 April 1994 Mr de Rijk lodged a determined by the Rules on Sickness complaint against that decision under Article Insurance for Officials of the European 90(2) of the Staff Regulations. Communities (hereinafter referred to as "the Rules"), if they are permanently resident at the place of employment of the official covered under point (1).
11. By decision of 15 July 1994, notified to Mr de Rijk on 4 August 1994, the Commis However, where they reside elsewhere, they sion rejected the complaint on the ground shall be covered during the time they spent that the son was permanently resident in at the place of employment of the official Belgium and the medical expenses he had and, after the Medical Officer has been con incurred, unlike those incurred in Helsinki, sulted, if the medical expenses originate could not be reimbursed under Article 24 of solely by reason of the fact of the member's Annex X to the Staff Regulations. It place of employment; (...)'. explained its decision by stating, first, that the supplementary insurance provided for in that article was designed to cover the risks attributable to the special living conditions of officials posted to countries outside the Community and, second, that in the absence of a link between the expenditure incurred The contested administrative decision and the fact of being outside the Commu nity, Article 24 of Annex X was not appli cable. Any other approach, it added, would clearly discriminate against officials assigned to countries within the Community.
9. By letter of 18 January 1994 the Commis sion informed Mr de Rijk that it would reimburse under Article 24 of Annex X to the Staff Regulations only BFR 4 412 instead of the BFR 4 950 claimed, the remaining BFR 538 not being reimbursable because the expenditure incurred for his son, living 12. It was in those circumstances that Mr de habitually in Belgium, could only be reim Rijk brought an action before the Court of bursed under Article 72 of the Staff Regula First Instance on 3 November 1994 challeng tions. ing the rejection of his complaint.
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The judgment of the Court of First Instance 15. The action was dismissed by the Court of First Instance on the grounds summarized below in the context of my examination of the pleas raised by the applicant.
13. Mr de Rijk asked the Court of First Instance:
The appeal
— to annul the Commission's decision of 18 January 1994 and, in so far as necessary, that of 15 July 1994; 16. Mr de Rijk asks that the Court of Jus tice:
— to order the Commission to pay the whole of the difference between the expenditure actually incurred and the payments received under the common '1 . Declare the appeal admissible and well sickness insurance scheme, that is to say, founded; BFR 4 950;
2. Consequently: — to declare that the implementing provi sions for the first and second paragraphs of Article 24 of Annex X to the Staff Regulations were unlawful, and conse quently to withdraw them; (a) annul the contested judgment,
— to order the Commission to pay the costs. (b) judge the case itself and, upholding the original application:
14. In support of those claims he relied on pleas based on breach of Community law, — annul the [Commission's] decision of and in particular breach of Article 24 of 18 January 1994 according to which Annex X to the Staff Regulations, and the the defendant decided to reimburse unlawfulness of the implementing provisions the appellant the sum of BFR 4 412 for that provision, on the basis of which the under the complementary sickness contested decision was adopted. insurance scheme;
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— in so far as necessary, annul the The argument is based on the wording of defendant's decision of 15 July 1994 Articles 10 and 20 of Annex X to the Staff rejecting the appellant's complaint of Regulations, which lay down expressly a 18 April 1994; requirement of residence for their applica tion. The appellant deduces from that, a con- trario, that by not including such an express condition in Article 24 of Annex X to the Staff Regulations the Community legislature indicated that it was not its intention to — order the defendant to pay the whole impose that residence requirement with of the difference between the expen regard to the application of Article 24. diture actually incurred and the pay ments made under the common sick ness insurance scheme, that is to say in this instance BFR 4 950;
18. It is indeed settled case-law that in order — declare that the general provisions for for an appeal to be admissible under the pro implementing the first and second cedure provided for by Article 168a of the paragraphs of Article 24 of Annex X EC Treaty and meet the requirement laid to the Staff Regulations are unlawful, down in Article 51 of the Statute of the and on that ground annul them; Court of Justice and Article 112(1)(c) of the 3 Rules of Procedure, the appeal must indi cate precisely the contested elements of the judgment which it is requested to have set aside and also the legal arguments which spe 4 cifically support that request and not (c) order the defendant to pay the whole of merely repeat or reproduce verbatim the the costs at both instances.' pleas in law and arguments already submit ted to the Court of First Instance, including those based on factual allegations expressly dismissed by that Court. Such an appeal would amount, in fact, to an application for II — Admissibility of the appeal mere reconsideration of the application sub mitted to the Court of First Instance — thus seeking to have the Court of Justice rule as a general court of appeal and not as one deal ing with appeals on points of law only — which, according to Article 49 of the Statute 17. The Commission's main submission is that the appeal brought by Mr de Rijk is inadmissible. In the first place, he has merely 3 — Which provides that an appeal to the Court of Justice shall reproduced the arguments put before the be limited to points of law and must indicate precisely the Court of First Instance and in the second contested elements of the judgment of the Court of First Instance which it is requested to have set aside and the legal place, in point 11 of his appeal, he seeks to arguments which specifically support that request. rely on a new argument which was not 4 — See, for example, the order of 26 September 1994 in Case C-26/94 P X v Commission [1994] ECR I-4379, paragraphs placed before the Court of First Instance. 11 and 12.
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of the Court of Justice, the Court has no 21. 'Arguments' and 'pleas' are two distinct jurisdiction to do. legal concepts. 8In this instance, the appel lant is not raising a new plea but is putting forward a new argument in support of a plea already considered by the Court of First Instance, namely that of misinterpretation and misapplication of Article 24 of Annex X to the Staff Regulations (see paragraphs 15 to 21 of the contested judgment). I consider 19. Mr de Rijk's appeal does not, in my that that type of argument is not only view, have such characteristics. His com wholly admissible, but perfectly meets the plaint is essentially that the Court of First requirements of Article 168a of the Treaty. It Instance misinterpreted and misapplied the does not alter the subject-matter of the provisions of Article 24 of Annex X to the action — which is prohibited by Article 113 Staff Regulations. That complies incontest- of the Rules of Procedure of the Court of ably with the definition of the expression Justice — but is merely a development of 'point of law' used in Article 168a of the one of the legal grounds set out by the Treaty, and the Court certainly has jurisdic appellant from the beginning of the proceed tion to determine whether the statement of ings before the Court of First Instance and reasons in the judgment delivered by the 9 is, consequently, entirely admissible. Court of First Instance complies with the letter and spirit of a provision contained in Community legislation such as, in this instance, Article 24 of Annex X to the Staff 6 Regulations. 22. I conclude that Mr de Rijk's appeal is admissible.
Ill — Examination of the pleas relied on in the appeal 20. Furthermore, whilst it is likewise settled case-law that Articles 113(2) and 116(1) of the Rules of Procedure do not permit new 7 pleas to be put forward in the appeal, I do 23. Examination of the three grounds set out not think that the arguments put forward by by the appellant reveals that in fact Mr de the appellant in point 11 of the appeal fall into that category.
8 — See in particular a judgment of 1958, Case 2/57 Compagnie des Hauts Fourneaux de Chasse v High Authority [1958] ECR 129: '... the Court takes the view that a distinction must 5 — See, for example, the order of 26 April 1993 in Case be drawn between the introduction of new [pleas] in the C-244/92 P Kupka-Floridi v ESC [1993] ECR I-2041, para- course of the proceedings and, on the other hand, the intro- graphs 9 to 11. duction of certain new arguments. In the present case the 6 — To that effect, see the article by Joël Rideau and Fabrice Court's view is that the applicant did not introduce new Picod, Le pourvoi sur les questions de droit, Revue du [pleas] but merely developed those made in its application by marché commun et de l'Union européenne, No 392, Novem- invoking a number of arguments, some of which were ber 1995, p. 594; point 3 of the Opinion of Advocate General adduced for the first time in the reply. In those circum- Van Gerven in Case C-145/90 P Costacurta v Commission stances, there is nothing to prevent the Court from consider- [1991] ECR I-5449. ing them.' 7 — See in particular Case C-18/91 P V v Parliament [1992] ECR 9 — See in particular Case C-76/93 P Scaramuzza v Commission 1-3997, paragraph 21. [1994] ECR 1-5173, paragraph 18.
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Rijk relies on two essential pleas in support its full extent only where the specific disad of his application to have the judgment of vantages which prompted the introduction the Court of First Instance set aside. In the of an alternative scheme for reimbursing first and second grounds, he claims that the medical expenses — that is to say, the special Court of First Instance erred in law and in living conditions of officials posted outside reasoning by ruling that the implementing the Community, and in particular the gener provisions for Article 24 of Annex X to the ally higher costs of medical care in such Staff Regulations were not unlawful and that countries — exist. it misinterpreted that article. In the third ground (the second plea, in fact) he claims that the Court of First Instance failed to apply the principles of equal treatment and legal certainty. 27. The appellant challenges that interpreta tion, claiming that, in effect, it adds a supple mentary requirement which restricts the scope of the Staff Regulations and which is, therefore, contrary to the case-law of the 10 24. As regards the plea of breach of the prin Court . He is similarly unconvinced by the ciple of legal certainty, I can only say that reference to the need for sound management the appellant has failed to bring any argu referred to in paragraph 35 of the contested ment in support of that plea, which must judgment in order to justify the restrictive therefore be declared inadmissible. interpretation of that provision.
First plea: breach of Article 24 of Annex X to the Staff Regulations 28. Mr de Rijk considers that the provisions of Article 24 of Annex X to the Staff Regula tions require no interpretation. He adds, however, that if such an interpretation were necessary, it would have to take into account not only the wording of the article, its con 25. The appellant claims that the Court of text and the aims of the rules in question, but First Instance erred in law and in reasoning also the negotiations which preceded the regarding the interpretation to be given to drafting of the provision, study of which Article 24 of Annex X to the Staff Regula reveals that the residence requirement for the tions. application of Article 24 of Annex X to the Staff Regulations suggested by the Commis sion was not taken up. He maintains that
10 — See, for example, Case C-70/91 P Council v Brems [1992] ECR I-2973, paragraph 16, in which the Court held that the 26. In paragraphs 33 and 34 of the contested general implementing rules could neither restrict the scope judgment, that Court held that Article 24 of of a provision of the Staff Regulations nor deprive the appointing authority of the opportunity to exercise its dis- Annex X to the Staff Regulations applies to cretion.
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what can be inferred from a reading of the rates of reimbursement of 80% and 85% provision a contrario supports his argument, provided for in Article 72. and that Articles 10 and 20 of Annex X to the Staff Regulations bear out the results of 1 such a reading. 1
31. In so doing the Court was endorsing the view expressed by the Advocate General, who stated in his Opinion that the resources 29. The social security scheme applicable to of the social insurance scheme are strictly all Community officials employed in a Mem limited to the contributions paid by officials ber State of the Union appears in Title V of and other servants and to those paid by the the Staff Regulations, entitled 'Emoluments institutions, so that the financial balance of and social security benefits of officials'. such a scheme is necessarily complex and Article 72(1) of the Staff Regulations pro fragile, since it depends on a perfect correla vides that an official, his spouse, his children tion between health expenditure and contri and other dependants are insured against butions paid. He concluded that since the sickness for up to 80% of the expenditure Staff Regulations did not provide for any incurred and, on the basis of common rules minimum rate, it was for the Community drawn up by the Community institutions, institutions to regulate the percentages avail that maximum is increased to 85% for cer able, while taking care to maintain the coher tain services. ence of the system, and that the power of the Community institutions to fix reimburse ment ceilings and rates was to be exercised subject to manifest error of assessment, and that there was nothing in Article 72 of the Staff Regulations to indicate that there was a 30. In Case C-244/91 P Pincberle v Com- principle fixing a minimum threshold rate of 12 mission the Court held that in the absence social insurance cover. 15
'of maximum rates of reimbursement fixed by the Staff Regulations, the institutions have the power to fix, by means of implementing regulations, suitable maximum rates of reim bursement in the context of insurance rules, 13 without prescribing any minimum rates. The Court inferred from that that the insti 32. The 'special and exceptional' provisions tutions could not be accused of infringing of Annex X, quoted above, derogate from Article 72 of the Staff Regulations by estab Article 72 of the Staff Regulations in the case lishing maximum rates (which led, in that of officials posted outside the Community. case, to reimbursement of between 29% and Article 24 of Annex X to the Staff Regula 66%) solely on the ground that those rates tions, in conjunction with the special imple were too far removed from the maximum menting provisions, means that the differ ence between expenditure really incurred by
11 — See point 17 of this Opinion. 12 — [1993J ECR I-6965. 14 — Paragraph 24. 13 — Paragraph 23. 15 — Points 59 to 63 of the Opinion.
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the official or those claiming under him and of the derogating rules introduced by Annex benefits available under the insurance scheme X to the Staff Regulations lay in the inten provided for in Article 72 of the Staff Regu tion of the. Community legislature to take lations is covered by the complementary into account the special and exceptional insurance in so far as the place of employ- living conditions of officials working outside 1 ment or the permanent residence of the per- the Community. 7 In that case, Mrs Scara son concerned is outside the Community. muzza, an official employed outside the That difference in treatment between officials Community, complained that she was unable employed within the Community and those to obtain full payment of her salary in the employed outside it is justified by the special currency of the country in which she was or exceptional living conditions caused by employed owing to the application of the fact of the official's being employed out Articles 11 and 12 of Annex X to the Staff 16 side the Community. Since that special Regulations, whereas officials posted within situation does not exist, the difference in the Community could, on the basis of treatment has no justification and the general Articles 63 and 64 of the Staff Regulations. scheme must apply. That is merely an appli The Court upheld the decision of the cation of the general principle that any Court of First Instance in so far as the latter exception must be strictly interpreted. established that there was a real difference between the situation of officials working in the Community and those working out 18 side it.
33. In addition, there is in the wording of Article 24 of Annex X to the Staff Regula 35. In paragraphs 31 to 35 of the contested tions, in the third subparagraph, a reference judgment the Court of First Instance made a by implication to the residence requirement comprehensive examination of the ratio legis necessary for the application of that special of the scheme established by the Community provision: the use of the word 'repatriation' legislature and went on to conclude that, in undoubtedly refers to an establishment so far as special circumstances justifying dif beyond the frontiers of the Union. Accord ferent treatment for an official posted outside ingly, it is quite unnecessary to make deduc the Community or his family were not tions a contrario from a reading of Article 24 present, it was the general scheme which was of Annex X to the Staff Regulations. to apply.
36. In the light of the above considerations 34. Lastly, the Court held in Scaramuzza v the Court of First Instance committed no Commission, cited above, that the ratio legis
17 — Paragraph 23. 16 — First recital in the preamble to Regulation No 3019/87. 18 — Ibidem, paragraph 22.
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error of law or of reasoning, and accordingly 40. In paragraphs 36 and 37 of the contested the first plea in the appeal must be dismissed. judgment the Court of First Instance first recalled the definition of the principle of non-discrimination and the ratio legis of Article 24 of Annex X to the Staff Regula tions, and then held that the special contri The second plea butions served to finance, in part, the insur ance of risks incurred especially by officials employed outside the Community. Where those special risks did not exist, as in the case 37. The appellant claims that the Court of of officials residing habitually in the Com First Instance erred in law and in reasoning munity, there was no reason to apply the when it decided that the supplementary special scheme. Any official in the same situ requirement imposed by the implementing ation must be treated in the same fashion, provisions for Article 24 of Annex X to the since otherwise they would suffer unequal Staff Regulations did not violate the principle treatment. of equal treatment between Community offi cials.
38. He maintains that the special supplemen 41. I concur with the analysis made by the tary contributions payable under the imple Court of First Instance. menting provisions for Article 24 of Annex X to the Staff Regulations which must be paid by Community officials employed out side the Community in order to finance the supplementary insurance scheme are suffi cient to justify the reimbursement in full of the cost incurred by the officials, regardless 42. Since it was established when the first of where the medical expenses were actually plea was considered that in the light of incurred. The difference in treatment as Article 24 of Annex X to the Staff Regula between children of officials employed out tions only the existence of special living con side the Community and children of those ditions for officials employed outside the employed within the Community being jus Community justifies application of social tified, therefore, the application of a different security rules derogating from the rules laid sickness insurance scheme would not be dis down in Article 72 of the Staff Regulations, criminatory. where such conditions do not obtain the general scheme must apply. To decide other wise would breach the principle of equal treatment. Furthermore, the children of an 39. He claims that in paragraphs 36 and 37 official employed outside the Community of the contested judgment the Court of First derive their rights to the application of that Instance, by failing to take that essential ele special scheme from their parent. In no case ment into account, based its decision on rea should they be accorded rights more exten soning which was incorrect and therefore sive than those enjoyed by the latter. Yet that violated the principle of non-discrimination. would surely be the case if a child residing in
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the Community could enjoy the benefit of 44. Consequently, the Court of First the special scheme provided for in Article 24 Instance did not misapply the principle of of Annex X to the Staff Regulations when non-discrimination or err in its reasoning their parent in the same situation could not. when it decided that the special contribution is intended to finance risks experienced only by officials employed outside the Commu nity. The second plea must be rejected.
43. Furthermore, the Court has held that the institutions have a duty to ensure the finan cial equilibrium of the sickness insurance IV — Costs 19 scheme. That duty has also been the guide of the Community legislature with regard to the management of the supplementary insur ance fund provided for in Article 24 of 45. Pursuant to Article 70 of the Rules of Annex X to the Staff Regulations. It was Procedure the normal rule in disputes careful to state in Article 5 of the implement between Community officials and their ser ing regulations that, in principle, 'an official vants is that the institutions shall bear their whose place of employment is outside the own costs. However, by virtue of the second Community shall be reimbursed for expen paragraph of Article 122 of those Rules, that diture actually incurred by himself and his rule does not apply in the case of an appeal dependants, within the limits laid down in except where it is brought by an institution. Article 2. However, beyond a limit above Consequently, the general rule contained in which the expenditure is regarded as exces Article 69(2) of the Rules of Procedure must sive, the person concerned may not claim be applied and the appellant ordered to pay any reimbursement'. the costs of the appeal.
Conclusion
46. In the light of the above observations I suggest that the Court :
(1) dismiss the appeal;
(2) order the appellant to pay the costs .
19 — Pincherle, cited above, paragraph 26.
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