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Judgment of the Court of 7 May 1992.

Council of the European Communities v Anita Brems.

Officials - Meaning of dependent child - Persons treated as such - Child of the official - Illegality of general implementing rules.

Case C-70/91 P.

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Judgment of 7 May 1992, Council / Brems (C-70/91 P, ECR 1992 p. I-2973) ECLI:EU:C:1992:201

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Council of the European Communities v Anita Brems.

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Keywords

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1. Officials ° Remuneration ° Family allowances ° Dependent child allowance ° Treatment of a person as a dependent child ° Article 2(4) of Annex VII to the Staff Regulations ° Scope

(Staff Regulations, Art. 67; Annex VII, Art. 2)

2. Officials ° Staff Regulations ° General implementing rules ° Rules for implementing Article 2(4) of Annex VII to the Staff Regulations ° Illegality

(Staff Regulations, Arts 67 and 110; Annex VII, Art. 2(4))

Summary

1. The Court of First Instance rightly considered that Article 2(4) of Annex VII to the Staff Regulations, which permits the appointing authority in exceptional cases to treat a person whom the official has a legal responsibility to maintain and whose maintenance involves heavy expenditure as if he were a dependent child, must be interpreted as meaning that a child who does not satisfy the conditions for granting dependent child allowance defined in Article 2(3) and (5), merely because he is a legitimate, natural or adopted child of an official, or of his spouse, is not excluded from the scope of the provision.

2. In fixing minimum and maximum age-limits for a person to be treated as a dependent child, Articles 3 and 7 of the Council decision adopting general provisions for applying Article 2(4) of Annex VII to the Staff Regulations restrict the scope of that provision and deprive the appointing authority of the opportunity of exercising its discretion in each particular case. Those articles thus run contrary to the objective of Article 2(4) which seeks in a general way to deal with situations in which the official cannot claim the benefit of Article 2(3) and (5) although he is in fact responsible for the maintenance of a person who causes him to incur similar expenditure.

The Court of First Instance therefore rightly considered Articles 3 and 7 of the Council decision to be vitiated by illegality.

Parties

In Case C-70/91 P,

Council of the European Communities, represented by Arthur Alan Dashwood, Director of the Council' s Legal Service and Jorge Monteiro, a member of the Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Xavier Herlin, Deputy Director of the European Investment Bank, 100 Boulevard Konrad Adenauer,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (Third Chamber) of 14 December 1990 in Case T-75/89 between Anita Brems and the Council of the European Communities, seeking to have that judgment set aside,

the other party to the proceedings being:

Anita Brems, an official of the Council of the European Communities, residing in Relegem (Belgium), represented by Jean-Noël Louis, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Fiduciaire Myson SARL, 1 Rue Glesener, who contends that the Court should dismiss the appeal as wholly unfounded,

THE COURT (Sixth Chamber),

composed of: F.A. Schockweiler, President of the Chamber, G.F. Mancini, C.N. Kakouris, M. Diez de Velasco and J.L. Murray, Judges,

Advocate General: M. Darmon,

Registrar: J.A. Pompe,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 10 January 1992,

after hearing the Opinion of the Advocate General at the sitting on 19 February 1992,

gives the following

Judgment

Grounds

1 By application lodged at the Court Registry on 14 February 1991, the Council, pursuant to Article 49 of the EEC Statute and the corresponding provisions of the ECSC and EAEC Statutes of the Court of Justice, brought an appeal against the judgment of the Court of First Instance of 14 December 1990 in Case T-75/89 Brems v Council [1990] ECR II-899, in so far as the Court of First Instance considered the action brought by Mrs Brems for the annulment of the decision of the appointing authority of 29 November 1988 refusing to treat her son as a dependent child to be well founded.

2 In support of its appeal the Council puts forward the following three pleas in law:

(a) By its first plea, based on misinterpretation by the Court of First Instance of Article 2(4) of Annex VII to the Staff Regulations of the European Communities, the Council objects that the Court of First Instance constructed its reasoning on a literal interpretation of the expression "any person" and did not take account of the general structure or purpose of Article 2 or the exceptional nature of the treatment as a dependent child provided for in paragraph (4). The Council submits in particular that if the Community legislature had contemplated a fourth case for the grant of the dependent child allowance in the circumstances defined in Article 2(4) of Annex VII to the Staff Regulations it would have provided for it expressly.

(b) By its second plea, based on erroneous application of the principle of non-discrimination the Council maintains that that principle was not violated in so far as the categories of persons recognized as having status of persons treated as dependent children for the purpose of Article 2(4) of Annex VII to the Staff Regulations by the Court of Justice or by the Council decision of 15 March 1976 laying down general rules for implementing Article 2(4) of Annex VII to the Staff Regulations (hereinafter "the general implementing rules") are subject to the same age-limits as those to which dependent children are subject under Article 2(3).

(c) By its third plea, based on erroneous appraisal by the Court of First Instance of the general implementing rules, the Council considers that the Court of First Instance disregards the fact that the purpose of the maximum and minimum age-limits imposed by the general implementing rules is not only to define the term "any person" but also to stress the exceptional nature of the treatment as a dependent child. The limit laid down is due to the assessment by the Council' s appointing authority of what may be regarded as an exceptional case.

3 Reference is made to the Report for the Hearing for a fuller account of the pleas and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

I ° The first plea

4 It follows from the scheme of Article 2 of Annex VII to the Staff Regulations that that provision covers two types of cases in which an official may receive allowances for a dependent child.

5 Paragraphs (3) and (5) of Article 2 concern cases where entitlement to the dependent child allowance for an official' s child arises automatically by reason of the fact that it is presumed in those provisions that the child referred to in them is, solely on account of his being a minor, a student, a sick person or an invalid, in fact dependent on the official.

6 On the other hand, Article 2(4) provides that any person whom the official has a legal responsibility to maintain and whose maintenance involves heavy expenditure may, exceptionally, be treated as if he were a dependent child by special reasoned decision of the appointing authority, based on supporting documents. Accordingly that provision, on the one hand, requires the official concerned to establish that the two conditions laid down are satisfied and, on the other hand, allows the appointing authority a certain discretion in appraisal of the circumstances alleged in each particular case in support of the application for treatment as a dependent child.

7 Paragraphs (3) and (5) of Article 2 do not, therefore, cover only cases where the official may receive dependent child allowances. The object of Article 2(4) is precisely to ensure that a person may be treated as a dependent child in other cases where the official has in fact to maintain such a person, who is neither his minor child, adult child receiving educational or vocational training or sick or invalid child but who, like them, causes him to incur heavy expenditure.

8 It follows that Article 2(4) cannot be interpreted as precluding persons whom the official maintains, and who are in a different position from those referred to in Article 2(3) and (5), from being treated as dependent children.

9 Furthermore, the allowance in question, like the tax abatement for a dependent child, has an objective of a social nature (see the judgment in Joined Cases 81/79, 82/79 and 146/79 Sorasio-Allo v Commission [1980] ECR 3557) justified by the costs arising from a present and certain need connected with the child and its effective maintenance.

10 It follows that the exceptional nature of treatment as a dependent child constitutes the criterion for determining whether in each particular case the reasons of a social nature which underlie the treatment as a dependent child provided for in Article 2(4) of Annex VII to the Staff Regulations justify the grant of the allowance in question. On the other hand, that exceptional nature does not imply that the child of the official or of the applicant' s spouse must necessarily be excluded from the scope of Article 2(4).

11 In those circumstances the Court of First Instance rightly considered at paragraphs 24 and 25 of the judgment that, since the purpose of Article 2(4) "is to permit the appointing authority in exceptional cases to assist officials who incur heavy charges as a result of a legal obligation", "the difference in nature of the powers conferred on the appointing authority, on the one hand, by Article 2(3) and (5) of the Annex and, on the other, by Article 2(4), and the general terms used in the latter provision ... show that the Community legislature did not intend to exclude from the scope of Article 2(4) a child who does not satisfy the conditions for granting dependent child allowance defined in Article 2(3) and (5), merely because he is 'the legitimate, natural, or adopted child of an official, or of his spouse' , within the meaning of Article 2(2)".

12 It follows from all the foregoing considerations that the first plea is unfounded.

II ° The second and third pleas

13 It should be noted, as a preliminary point, the Council' s second and third pleas allege in substance that the Court of First Instance erroneously appraised the general implementing rules and in particular wrongly considered that Articles 3 and 7 of those provisions were unlawful in that they imposed minimum and maximum age-limits on persons treated as a dependent child.

14 It is therefore necessary to consider those two pleas together.

15 For the purpose of determining whether those pleas are well founded, it should be pointed out that the effect of the imposition by Articles 3 and 7 of the general implementing rules of minimum and maximum age-limits for persons treated as a dependent child is to exclude from the scope of Article 2(4) of Annex VII to the Staff Regulations all persons between the age-limits imposed by the abovementioned provisions even if the person is one in respect of whom the official has a legal responsibility to maintain and whose maintenance involves heavy expenditure within the meaning of Article 2(4).

16 Thus the effect of Articles 3 and 7 of the general implementing rules is not only to restrict the scope of a provision of the Staff Regulations but also to deprive the appointing authority of the opportunity to exercise its discretion in each particular case in accordance with that provision.

17 Furthermore, those articles of the general implementing rules run contrary to the objective of Article 2(4) of Annex VII to the Staff Regulations which seeks in a general way to deal with situations in which the official cannot claim the benefit of Article 2(3) and (5) although he is in fact responsible for the maintenance of a person who causes him to incur similar expenditure.

18 It follows from the foregoing that the Court of First Instance did not act contrary to Community law in holding in the contested judgment that Articles 3 and 7 of the general implementing rules were vitiated by illegality.

19 It follows that the second and third pleas are likewise unfounded.

20 Since none of the pleas put forward by the Council has been upheld, the appeal must be dismissed in its entirety.

Decision on costs

Costs

21 Under Article 69(2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. Since the appellant has been unsuccessful, it must be ordered to pay the costs.

Operative part

On those grounds,

THE COURT (Sixth Chamber)

hereby:

1. Dismisses the appeal;

2. Orders the appellant to pay the costs.

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