Tito Mencarelli v European Commission (43/79)

Contents

In Case 43/79Trro Mencarelli, an official of the Commission of the European Communities, of 11 Europawijk, Geel, represented by Victor Biel of the Luxembourg Bar, with an address for service in Luxembourg at the Chambers of the said Victor Biel, 18a Rue des Glacis,vCommission of the European Communities, represented by its Legal Adviser, Alain Van Solinge, acting as Agent, assisted by Daniel Jacob, of the BrusselsBar, with an address for service in Luxembourg at the office of its Legal Adviser, Mario Cervino, Jean Monnet Building, Kirchberg,THE COURT (First Chamber)composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges,Advocate General: H. MayrasRegistrar: J. A. Pompe, Deputy Registrargives the following

Judgment

Facts and Issues

The facts, the procedure and the arguments of the parties may be summarized as follows:

I —Facts and written procedure

1.Article 3 of Annex VII to the Staff Regulations, as amended by Article 1 of Council Regulation No 3084/78 of 21 December 1978 (Official Journal 1978 L 369 p.l), provides that:“An official shall receive an education allowance equal to the actual education costs incurred by him up to a maximum of Bfr 3302 per month for each dependent child... who is in regular fulltime attendance at an educational establishment.The maximum prescribed in the first paragraph shall be doubled for:— an official whose place of employment is at least 50 km from, either:— a European School, or— an educational establishment working in his language which the child attends for imperative educational reasons duly supported by evidence”.Pursuant to Article 3 of the General Implementing Provisions for Granting the Education Allowance (Administrative Notices No 153 of 2 May 1977) the education allowance, whether or not doubled as aforesaid, covers:(a) registration and examination fees at educational establishments;(b) transport costs incurred in the use of a public means of transport or of special transport serving the school;(c) obligatory expenses shown for the purchase of books, school equipment, sports outfit, school insurance and medical equipment cover and other expenses connected with following the curriculum of the educational establishment attended;(d) costs incurred by children participating in courses at winter sports, coastal or countryside resorts, provided such courses are organized as part of the curriculum by the educational establishment outside school holidays and the child is accommodated away from home for the duration of such courses; the provisions of (c) above shall not apply to the costs specified in this subparagraph.”

2.Article 4 of the same General Provisions provides that:(a) in general, necessary educational costs are reimbursed up to the limit of a standard monthly amount corresponding to 36 % or 50 % of the single amount of the education allowance, depending on whether the dependent child is over or under 11 years of age;the balance of the allowance is employed to reimburse actual education costs on presentation of supporting documents;(b) where the child attends an educational establishment away from the family home and is accommodated outside the family home the official on whom the child is dependent receives an education allowance equal to the amount stated in the first paragraph of Article 3 of Annex VII without being required to present any supporting documents.The applicant, an official at the Joint Research Centre at Geel, has a daughter aged 20 who attended the European School at Mol. The class adviser recommended that she should follow “another type of course better suited to the pupil's abilities” and she was enrolled from the school year 1977 to 1978 at the Centre d'Education et de Culture de l'Institut de l'Enfant Jésus, Brussels.The fees at that school amount to Bfr 25000 per annum; in addition board amounts of Bfr 3500 per month and transport to Bfr 650 per month.By a letter of 21 April 1978 the applicant was notified by the Directorate General of Personnel of the Commission that his file would be transmitted to the relevant department “with a recommendation that twice the amount of the education allowance should be paid; ... however, the award of the allowance will be subject to the submission of the necessary documentary evidence”.By a note of 20 June 1978 from the Administration of the Centre at Geel, signed by Mr Gubernator, the applicant was notified that, whilst the cost of board and lodging for his daughter could not be reimbursed, her transport costs would be reimbursed since the school which she attended during the week was closed at the weekend. Two alternatives were put before the applicant: either payment of 50 % of the single allowance together with justifiable transport costs up to Bfr 650 per month or continued payment of the single allowance.On 28 August the applicant submitted a complaint under Article 90 of the Staff Regulations.The Commission did not reply to that complaint.This application was lodged on 15 March 1979.The Court (First Chamber), on hearing the views of the Advocate General, decided to open the oral procedure without any preparatory inquiry.

II —Conclusions of the parties

1.The applicant in his reply claims that the Court should:(a) declare that the implied rejection of (his) complaint is unjustified and accordingly annul it;(b) order the Commission to comply with its obligations relating to the double amount;(c) furthermore order it to pay the costs”.

2.Commission contends that the Court should:(a) dismiss the application as unfounded;(b) order the applicant to pay the costs.”

III —Submissions and arguments of the parties

1.In his application the applicant states that the expenses of board and lodging at the school are reimbursable because they are -not excluded either by Article 3 of Annex VII to the Staff Regulations or by Article 3 of the General Implementing Provisions for Granting the Education Allowance, in which the list of exclusions is exhaustive.The expenses in question are referred to in Article 3 (c) of the said Provisions which mentions: “... other expenses connected with following the curriculum of the educational establishment ...”. They are incurred because the child is accommodated away from home just as when participating in courses at winter sports, coastal or countryside resorts for which it is provided that the expenses are to be reimbursed.The doubling of the amount of the education allowance where the child attends, for imperative educational reasons, an educational establishment at least 50 kilometres from the place of employment of the official would be pointless if the costs of board and lodging could not be reimbursed.

2.In its defence the Commission argues first of all that the dispute does not concern the right to “twice the amount” of thé education allowance since the applicant is entitled to the reimbursement of the “actual education costs” provided for in Article 3 of the abovementioned General Implementing Provisions up to a maximum amount equal to twice Bfr 3302. The dispute turns solely on the nature of the expenses which may be reimbursed up to an amount equal to twice the education allowance.Article 3 of Annex VII defines the conditions for granting the education allowance without drawing up a list of educational expenses which are covered by the allowance. That list is given in Article 3 of the General Implementing Provisions. It is exhaustive and makes no provision for costs of board and lodging.These costs do not constitute expenses “connected with following the curriculum of the education establishment” such as expenditure incurred for “the purchase of books, school equipment, sports outfit”. Expenses incurred as a result of participation in courses in winter sports, coastal or countryside resorts are not comparable to those in this case.Attendance at an establishment like the school in question may entail considerable enrolment fees and high transport costs since by definition the establishment in question is more than 50 kilometres from the place where the official is employed. Far from being pointless the doubling of the amount of the education allowance makes it possible to alleviate such additional charges.The Commission remarks in conclusion that the costs of board and lodging are covered by the monthly dependent child allowance and by the right to obtain the full amount of the education allowance without submitting documentary evidence that education costs up to that amount have actually been incurred.

3.In his reply the applicant emphasizes that the alternative put forward in Mr Gubernator's note of 20 June 1978 cannot be reconciled with the recognition in the Commission's defence of the right to twice the amount of the allowance.The applicant maintains that the expenses of board and lodging constitute “an unavoidable necessity from which no one can escape” whilst, for example, the expenses for sports equipment and the costs of participating in a winter sports class come within the category of “amusement”.The applicant disagrees with the Commission's argument to the effect that in any case he receives the dependent child allowance.The applicant considers that the distance which separates his place of employment from the educational establishment attended by his daughter is such that she could not conceivably travel daily. This fact renders the refusal to take into account the costs of board and lodging “absurd”.Article 3 of the General Implementing Provisions is illegal on the ground that it is in conflict with the provisions of Article 3 of Annex VII to the Staff Regulations and reduces their scope. The latter article defines the type of expenses which may be reimbursed, namely “actual education costs”. The applicant notes that the versions of this passage in the various languages are not in accordance: the French version embodies the concept of “schooling” (scolarité) whilst the German and English versions refer to “education” in general; however the draftsmen of the General Implementing Provisions have interpreted “scolarité” by restricting the costs which may be reimbursed to purely scholastic expenditure.The applicant asks whether in the case of a handicapped child living in a special centre, the administration would continue to insist on its restrictive interpretation which in such a case would be absolutely improper.In its rejoinder the Commission states that the content of Mr Gubernator's note in no way conflicts with the line of argument in the defence: Mr Gubernator in fact notified the applicant that he would receive an allowance equal to the sum specified in Article 3 of Annex VII since he had failed to provide documentary evidence establishing the existence of education costs, in excess of that amount.A mere perusal of Article 3 (c) of the General Implementing Provisions is sufficient to establish that expenses qualifying for reimbursement under the education allowance are those closely related to the curriculum of the school attended.The suggestion that the refusal to take into account the board and lodging costs is “absurd” and cannot in any case apply to the latter which do not vary according to whether or not the child is a boarder. Furthermore those two sorts of expenses are covered, apart from the dependent child allowance, by the household allowance amounting to 5 % of the basic salary.The Commission recalls, purely in the alternative since the allegation that Article 3 of the General Provisions is illegal was not put forward in the application, that Article 3 of Annex VII in no way defines “actual education costs”. Far from restricting the scope of the education allowance the detailed list of such costs in the General Implementing Provisions on the contrary clarifies it. The Commission also challenges the argument based on the German and English versions of the provision which certainly cover the concept of schooling costs: “Erziehungszulage” (education allowance) in relation to attendance at school (“Schulbesuch”) and “education allowance” in the sense of teaching and schooling.With regard to expenses for a handicapped child the two cases cannot be compared and furthermore the dependent child allowance may then be doubled (Article 67 (3) of the Staff Regulations).

IV —Oral procedure

The applicant, represented by Victor Biel, of the Luxembourg Bar, and the Commission, represented by D. Jacob of the Brussels Bar, presented oral argument at the sitting on 15 November 1979.The Advocate General delivered his opinion at the sitting on 6 December 1979.

Decision

1By an application dated 15 March 1979 the applicant, an official at the Joint Research Centre, Geel, claims the annulment of the implied decision rejecting a complaint submitted by him on 28 August 1978 under Article 90 of the Staff Regulations of Officials concerning his entitlement to twice the amount of the education allowance pursuant to Article 3 of Annex VII to the Staff Regulations.

2The applicant's daughter was enrolled from the school year 1977/78 at the Centre d'Education et de Culture de l'Institut de l'Enfant Jésus, Brussels, since the class adviser at the European School at Mol which she previously attended had recommended that she should follow another type of teaching better suited to her abilities. The costs of lodging at the Institut amounted to Bfr 25000 per annum and the boarding costs to Bfr 3500 per month.

3The applicant was notified by the Directorate General of Personnel of the Commission in a letter of 21 April 1978 that the file which he had submitted would be transmitted to the relevant department with a recommendation for payment of the double education allowance. It was nevertheless made clear that it was a condition of granting the allowance that he should submit the necessary supporting documents.

4By a note of 20 June 1978 the Administration of the Centre at Geel notified the applicant that the costs of board and lodging for his daughter could not be reimbursed but that, since the school which she attended was closed at the weekend her transport expenses (Bfr 650 per month) would be reimbursed. Two alternatives were put before the applicant: either payment of 50 % of the single allowance supplemented by justifiable transport costs up to Bfr 650 per month or continued payment of the single allowance.

5The Commission failed to reply to the complaint which the applicant lodged under Article 90 of the Staff Regulations. Such failure to reply must thus be considered as an implied rejection by the Commission of the applicant's complaint.

6Article 3 of Annex VII to the Staff Regulations as amended by Article 1 of Council Regulation No 3084/78 of 21 December 1978 (Official Journal L 369, p. 1), provides that:“An official shall receive an education allowance equal to the actual education costs incurred by him up to a maximum of Bfr 3302 per month for each dependent child... who is in regular fulltime attendance at an educational establishment.The maximum prescribed in the first paragraph shall be doubled for:— an official whose place of employment is at least 50 km from, either— a European school, or— an educational establishment working in his language which the child attends for imperative educational reasons duly supported by evidence”.

7Pursuant to Article 3 of the General Implementing Provisions for Granting the Education Allowance (Administrative Notices No 153 of 2 May 1977) the education allowance, whether or not doubled as aforesaid, covers:(a) registration and examination fees at educational establishments;(b) transport costs incurred in the use of a public means of transport or of special transport serving the school;(c) obligatory expenses shown for the purchase of books, school equipment, sports outfit, school insurance and medical expenses cover and other expenses connected with following the curriculum of the educational establishment attended;(d) costs incurred by children participating in courses at winter sports, coastal or countryside resorts, provided such courses are organized as part of the curriculum by the educational establishment outside school holidays and the child is accommodated away from home for the duration of such courses; the provisions of (c) above shall not apply to the costs specified in this subparagraph.”

8Article 4 of the same General Provisions provides that:(a) in general, necessary educational costs are reimbursed up to the limit of a standard monthly amount corresponding to 36% or 50% of the single amount of the education allowance, depending on whether the dependent child is over or under 11 years of age; the balance of the allowance is employed to reimburse actual education costs on presentation of supporting documents;(b) where the child attends an educational establishment away from the family home and is accommodated outside the family home the official on whom the child is dependent receives an education allowance equal to the amount stated in the first paragraph of Article 3 of Annex VII without being required to present any supporting documents.

9The applicant understood the note of 20 June 1978 as refusing him both the double amount and the reimbursement of costs which, in his view, were the unavoidable consequence of the education of his daughter in Brussels, that is the costs of board and lodging. In fact the dispute ultimately turns not on the right to “twice the amount” of the education allowance, granted to the applicant up to the limit of the reimbursement of “actual education costs” provided for in Article 3 of the abovementioned General Implementing Provisions up to an amount equal to twice Bfr 3302, but on the nature of the costs which may be reimbursed up to “twice that amount”.

10The applicant claims that the cost of board and lodging incurred in respect of his daughter may be reimbursed since it is not excluded either by Article 3 of Annex VII to the Staff Regulations or by Article 3 of the General Implementing Provisions. He states that it is covered by Article 3 (c) under the reference to “other expenses connected with following the curriculum” and arises because the child is accommodated away from the family home.

11The Commission does not dispute that, for imperative reasons, the second paragraph of Article 3 of Annex VII to the Staff Regulations applies to this case.

12Nevertheless the Commission considers that the list of expenses covered by the allowance and contained in Article 3 of the General Implementing Provisions is exhaustive and does not include those which form the subjectmatter of the proceedings. Board and lodging costs do not, it claims, constitute expenses “connected with following the curriculum”, such as expenses incurred for “the purchase of books, school equipment, sports outfit ...”.

13It is impossible to uphold in its entirety the final argument of the Commission to the effect that the expenses of board and lodging are already covered by the monthly dependent child allowance and by the entitlement to the single education allowance without the submission of supporting documents establishing that education costs up to that amount have actually been incurred.

14In fact whilst it is true that the boarding costs must be paid by the head of the family whether a child takes his meals at the educational establishment which he attends or at home it must also be recognized that the cost of lodging at such an establishment is an addition to the expenses normally borne by the head of household and must accordingly be regarded as constituting expenses which justify the grant of the education allowance up to “twice the amount” on presentation of supporting documents.

15In this case the applicant must accordingly be reimbursed the “actual education costs” including the cost of accommodation for his daughter at the Institut de l'Enfant Jésus, being Bfr 25000 per annum up to an amount equal to twice Bfr 3302 per month.

Costs

16Pursuant to Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs. Since the defendant has been unsuccessful it must be ordered to pay the costs.

Operative part

On those grounds,THE COURT (First Chamber)hereby:

1.Orders the reimbursement to the applicant of the “actual education costs” including the cost of accommodation for his daughter at the Institut de l'Enfant Jésus up to an amount equal to twice the sum provided for in Article 3 of Annex VII to the Staff Regulations of Officials;

2.Orders the Commission to pay the costs.

Delivered in open court in Luxembourg on 7 February 1980.