OPINION OF ADVOCATE GENERAL

delivered on 4 May 1995 (*1)

Introduction

By this appeal, Mr Henrichs, a former member of the temporary staff of the Commission of the European Communities, at present a civil servant attached to the Ministry of Research and Technology of the Federal Republic of Germany, has brought an appeal against the judgment of the Court of First Instance of 24 June 1993 in Case T-92/91, in which he asks the Court to annul the decisions adopted by the Commission on 25 April and 3 May 1991 on the basis of Council Regulation (Euratom, ECSC, EEC) No 2274/87 of 23 July 1987 introducing special measures to terminate the service of temporary staff of the European Communities, (*1) hereinafter ‘the Regulation’. The appellant has also asked the Court to order the respondent to pay damages and the costs of the proceedings at first instance and on appeal.

Since, under Article 51 of the Rules of Procedure of the Court of Justice, this appeal must be confined to points of law, reference is made, for an account of the facts, entirely to the judgment of the Court of First Instance, which, moreover, may not be called in question from that point of view in an appeal before this court.

The appellant makes separate criticisms of the contested decisions. I shall therefore set out my Opinion on the basis of the order in which they were dealt with in the appeal.

Decision of 25 April 1991

Defective statement of reasons

In his first criticism made of the judgment of the Court of First Instance with regard to the claim for the annulment of the Commission's decision of 25 April 1991, the appellant claims that the decision does not state the reasons on which it is based. All the appellant's allegations turn, however, on factual aspects: they relate to the appellant's own lack of knowledge of data on which to base his own appraisal of his pay slip. Such assessments may not, however, be the subject of a complaint on appeal in view of the peremptory provision set out in Article 51 of the Statute of the Court.

Additionally and in any event, it must be objected that the appellant has merely reiterated the same arguments as he put forward at first instance, thus infringing the principle which has been repeatedly laid down by the Court to the effect that ‘an appeal must indicate precisely the contested elements of the judgment which it is requested to have set aside and also the legal arguments which specifically support that request’. (*2) The Court has also held that ‘an appeal which confines itself to reproducing the pleas in law and arguments submitted to the Court of First Instance amounts in reality to no more than a request for a reexamination of the application submitted to the Court of First Instance, which falls outside the jurisdiction of the Court’. (*3)

On those grounds, I consider that the appellant's first plea should be rejected as inadmissible.

Alleged infringement of Article 4(4) of the Regulation

The appellant's second complaint relating to the Commission's decision of 25 April 1991 is that the Commission infringed Article 4(4) of the Regulation. That provision reads as follows:

‘Gross income accruing to the former member of the temporary staff from any new employment shall be deducted from the allowance provided in paragraph 1, in so far as that income plus that allowance exceeds the total gross remuneration last received by him, determined by reference to the salary scales in force on the first day of the month for which the allowance is payable. That remuneration shall be weighted as provided for in paragraph 3.

Gross income and total gross remuneration last received, as referred to above, mean sums paid after deduction of social security contributions but before deduction of tax.

The former member of the temporary staff shall provide any written proof which may be required and shall notify the institution of any factor which may affect his right to the allowance.’

In the appellant's view, in calculating the amount of the remuneration received by him as a civil servant in Germany, the Commission failed to make the deductions provided for. The amount of remuneration taken by the Commission as his ‘gross income’ consequently exceeded the proper amount for the purposes of Article 4(4) of the Regulation.

The Court of First Instance, accepting the Commission's argument in its defence, held that that plea was unfounded. The appellant is now claiming that that finding should be overturned on the strength of a number of arguments: first, the Court of First Instance omitted to rule on the proper meaning in the Regulation of the ‘gross income’ from which ‘social security contributions’ are to be deducted; it also attributed to the words ‘income’ and ‘contribution’ in the relevant provision of the Regulation a significance different from that which can be inferred from German law; lastly, it failed to take account of the practice followed by the Commission in connection with the application of Article 4(4) of the Regulation.

More specifically, the appellant submits that the social security system for civil servants in force under German law is based, in the form in which it is devised, on a ‘maintenance’ principle: the State, as employer, pays the civil servant a sum intended to cover part of the cost of affiliation to a sickness insurance scheme and special assistance, so-called *Beihilfe,* which is intended to cover part of the costs incurred by the civil servant himself by way of medical expenses. The amounts of both those two items, once identified, should be regarded as social security costs and consequently deducted from the remuneration of the person concerned. Consequently, in this case the amount which he has to pay to a social security body in order to provide himself and his dependants with sickness insurance constitutes a social security contribution and should be deducted as such under the Regulation: this is so, even though the reasons for the amounts are not expressly and precisely indicated on his pay slip and are not amounts which the person concerned has for his part to quantify or prove that he has paid.

In its defence, the Commission argues for another, different interpretation of the individual items which the appellant seeks to deduct from the gross amount of his remuneration. Specifically, it alleges that the social security contributions have to be regarded as having been deducted at source by the German State *qua* employer. However, it is very difficult to quantify those contributions, as the appellant himself has conceded. As a result, the amounts in question have to be presumed to have already been deducted, but to a degree which cannot specifically be defined. Since, partly for that reason, the contributions in question do not appear on the pay slip, they cannot, the Commission argues, be deducted again. Hence its claim that the appellant's proposition is without foundation.

The question of law before the Court is therefore concerned with the meaning to be given to the concepts to be applied to the appellant's remuneration; of those concepts, it is sufficient for present purposes to examine that of social security contributions. The Regulation distinguishes social security contributions from tax in so far as the former, but not latter, have a bearing on the gross income.

The appellant contests the judgment of the Court of First Instance on the ground that the concepts referred to above were wrongly defined in accordance with the legal arguments of the Commission, which were confirmed by the Court, in so far as those concepts are relevant for the purposes of the application of the Regulation.

In paragraph 22 of its judgment, the Court of First Instance barely touches on the question, but resolves, by referring to its decision in *Khouri,* (*4*) the question as to whether the Court of First Instance is entitled to take cognizance of a provision of national law and the way in which it has been applied by the Community authority in cases where a legislative provision of the Community is dependent on that national provision. As far as this case is concerned, the Court of First Instance did in fact hold that it was competent to consider the appellant's arguments asserting that the Commission had failed to take account of or misconstrued the relevant provisions of German law.

Paragraph 32 of the judgment in *Khouri* contains other statements which are worthy of mention in this context.

In that judgment, the Court of First Instance took over the view which the Court of Justice set out as follows in *Ekro:* (*5*)

‘The need for a uniform application of Community law and the principle of equality require that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the Community; that interpretation must take into account the context of the provision and the purpose of the relevant regulations.’

After referring to that ruling in the Ekro case, however, the Court of First Instance considered it appropriate to specify further what form the reference by Community law to national law may take, in the following terms: ‘The Court of First Instance, however, takes the view that, in the absence of express reference, the application of Community law may, if necessary, involve a reference to the law of the Member States where the Community judicature cannot identify in Community law or in the general principles of Community law any factors which would make it possible to specify their content and scope by way of an independent interpretation.’

To my mind, the clarification afforded by that ruling of the Court of First Instance makes a clear, useful contribution to the approach to the issue of reference to national law as it arises in this case.

The criterion set out by the Court of First Instance is straightforward: the application of Community law may involve reference to national law, even where no express reference is provided for, where there is no possibility of defining the content and scope of the rule to be applied on the basis of Community law and its general principles.

Let us consider the case before us. For my part, I am of the opinion that the question of interpreting the provision of Article 4(4) of the Regulation — as regards, of course, only its effects of relevance in this case — by taking account of the interpretative criteria which may be derived from the system, or the general principles of, Community law does not even arise.

The reference to national law in the provision laying down the rule in question is not express but is certainly inherent in the ratio legis: it is a reference which may therefore be considered to be required, rather than permitted, by the aims pursued by the Community legislator itself. We are not in fact confronted with a provision designed to harmonize the rules laid down in this field at national level and to eliminate or reduce the differences between the various sets of legislation in force. Neither was Article 4(4) intended to be addressed to the Member States with a view to their making their treatment of the individuals concerned conform with any criterion to be found in the Community legal order. In contrast, what is involved is a rule specially laid down for Community staff who have left the services of the Communities which takes as the basis for its application the provisions, whatever they may be, laid down by the legislation which is relevant in each particular case in order to determine the income and social security contributions arising out of the new duties or employment of former members of Community staff.

When it laid down that provision, the Community legislator was, moreover, aware that it was referring to legislative criteria which are likely to vary from one legal system to another and differ according to the legislative policy choices underlying in each system the determination of income and of the social security contributions which are to be deducted from income. Accordingly, the Regulation in question was adopted on the clear assumption that it was not appropriate to interfere with legislative assessments left to the national legislator and hence with the assessment of the solutions laid down by the national legal systems to which reference is made. The form of the reference is as we have seen: the intention was, in the final analysis, to recognize, or presuppose, that it is for each national legal system to establish a fair and reasonable proportion between income and social security contributions. The difference which may result from that solution as regards the treatment of former staff at Community level depending on the place at which they perform their new duties is therefore attributable to the provisions of national law, with which the Community rules do not seek to interfere.

The consequence as far as this case is concerned is that it is necessary to ascertain whether German law provides for social security contributions and how it determines their amount in relation to gross income.

The Court of First Instance held that it did not appear from the appellant's pay slip that any part or item of the remuneration which he received was earmarked for such contributions. This is an assessment of a question of fact and as such may not be reviewed by the Court of Justice. The conclusion as a matter of law that the German legal system does not contemplate social security contributions which may be deducted from the gross income of the person concerned for the purposes of the Regulation is, however, assisted by the fact that an interpretative body called upon to apply the Community provision cannot give its own version of the appellant's remuneration by breaking down or reconstituting, by means of a process of theoretical reconstruction, the individual items of gross income in a way which differs from that which the pay slip attests to: such an interpretative operation would exceed the powers of the Commission and of the court having jurisdiction to review the Commission's decision.

Then again — and it is scarcely necessary to advert to this — reference to national law on the terms defined above precludes assessing the pay slip on the basis of any notion of income and social security contributions which the Court might possibly be able to extract from the Community legal system.

On top of this, the appellant has not proved — in accordance with the principle onus probandi incumba ei qui diat and with the actual provision set out in the last subparagraph of Article 4(4) of the Regulation — that he paid any amount emerging from his pay slip or any other sum or contribution on any footing prescribed by national law in order to qualify as a civil servant for the benefit of the social security system provided for by German law. The arguments put forward by the appellant in order to claim that the Court of First Instance erred in holding that the payment of the alleged social security contributions had not been proved are inadmissible on appeal since they challenge findings of fact made by the Court of First Instance.

For the reasons set out above, the ground of appeal alleging that Article 4(4) of the Regulation was infringed owing to the failure to deduct social security contributions is unfounded.

The alleged failure to apply Paragraph 8 of the Bundesbesoldungsgesetz

The appellant argues that the Commission should have taken account of the possible reduction in his remuneration as a result of Paragraph 8 of the Bundesbesoldungsgesetz (Federal Civil Service Remuneration law, hereinafter ‘the BBesG’). In turn, the Court of First Instance erred by failing to take account of any detrimental consequences arising out of that provision or out of the similar provision laid down in Paragraph 56 of the Beamtenversorgungsgesetz (Law on Civil Service Pensions, hereinafter ‘the BeamtVG’)

The Commission argues in response that the question raised by that complaint is premature on the ground that at the date of the contested decision the reduction in remuneration contemplated by the appellant had not yet been effected by the German authorities and did not emerge from his pay slip. The Commission further states that, in the event that such amounts were to be withheld by the national authorities, it would take account of the resultant decrease in the appellant's income when applying Article 4(4) of the Regulation. As far as Paragraph 56 of the BeamtVG is concerned, the Commission states that that provision could apply only in the event, which is not the case at present, that the appellant received an income from a pension in Germany.

In this connection, one must agree with the Commission. It is manifest that the complaint in question cannot be upheld, because it relates only to a possible failure to comply with the relevant Community regulation. At the date when the action was brought, the German administration had not yet withheld any sums and it cannot be foreseen whether and when this may take place. In the event that subsequently the reduction in remuneration in question were to take place and the Commission were to take proper account of the new remuneration — as it has stated that it would —, there would be no infringement of Community law.

Since this is the position here, it cannot be seen what foundation there is for the question as to whether the appellant's alleged position with regard to his remuneration should or not be taken into consideration in determining the allowance due to him under the Regulation. The Court cannot consider that question at present, but only in the event that the German authorities actually carry out the contemplated reduction in remuneration and the Commission, for its part, fails to revise the appellant's remuneration in accordance with the determinations made in this way under the relevant national law. Only such possible conduct on the part of the Commission is capable of causing an infringement of Article 4 of the regulation from the point of view in question to crystallize and of being the subject of judicial review by the Court.

The appellant's plea is consequently unfounded.

The alleged failure to give the Regulation a teleological interpretation

The appellant further submits that the Commission did not apply Article 4(4) properly, on the ground that it failed to give it a ‘teleological’ interpretation, that is to say, it failed to construe the provision in accordance with the aims which he assumes that the Community legislator intended to pursue.

If the Commission had adopted that interpretative criterion, he claims, it would have had to assess, for the purposes of the calculation laid down by Article 4(4), the different tax treatment to which his remuneration was subjected at national level by comparison with the Community tax system. The intention of the Regulation is to secure for the recipient of the allowance remuneration no less than that which he formerly received as a Community staff member. He maintains that, in turn, the Court of First Instance erred in holding that the question of the progressive nature of national tax was not relevant in deciding this case.

The Commission observes in this connection that the provisions of Article 4(4) exhaustively determine its powers in determining the gross remuneration to be taken into consideration. It claims that it has no power to standardize the taxation of remuneration at national level and, moreover, that this is precluded by the provision itself.

Even if it were to be sought in this case to give the Regulation a teleological interpretation, the outcome would certainly not be that which the appellant suggests to the Court. At the most, it would be possible to agree that, in laying down the system of the allowance, the Community legislator intended to secure a certain inviolable level of remuneration for the recipient. That which, however, the appellant does not consider is that the method of calculating the amount of that remuneration is laid down by the Regulation itself. Whilst it provides that the allowance and the new income are to be aggregated, according to the express provisions of Article 4 aggregation is permitted only to the extent of the last remuneration paid to the appellant as a member of the Community staff and in accordance with the criterion that the maximum permitted remuneration having regard to the two items to be aggregated is to be determined without taking account of tax.

I therefore consider that I should adhere to the Commission's point of view. The plea put forward by the appellant is unfounded.

Decision of 3 May 1991

Article 4(6) of the Regulation provides as follows:

‘Recipients of the allowance shall be entitled, in respect of themselves and persons covered by their insurance, to [the benefits guaranteed] under the sickness insurance scheme provided for in Article 72 of the Staff Regulations, provided they pay the relevant contribution, calculated on the basis of the allowance provided for in paragraph 1, and are not covered by another sickness insurance by virtue of legal or statutory provisions.’

On the basis of that provision, the Commission adopted the decision excluding the appellant from qualifying for the benefit of the Community sickness insurance scheme in so far as it equated the benefits granted under the Beihilfe scheme with those of sickness insurance by virtue of legal or statutory provisions.

Alleged defective statement of reasons

By way of preliminary, the appellant claims that the statement of reasons of the decision in question is defective. His first complaint is based on the argument that the measure adopted in his respect merely reproduces the wording of Article 4(6) of the Regulation without clarifying and indicating the reason for which that provision was applied in his case.

The Commission objects that its assessment to the effect that the Beihilfe benefits and those granted under the Community sickness insurance scheme are equivalent constitutes a sufficient statement of reasons.

As is stated in the contested judgment, the question as thus stated goes essentially to the merits rather than to the lack of a statement of reasons. I also consider that the measure in question is sufficiently reasoned. The reasoning emerges from the assessment that the two schemes are equivalent to which, in adopting the contested decision, the Commission expressly referred. Whether that assessment is justified in point of law is another and a different question, which presupposes the existence of a statement of reasons and relates to its merits.

I therefore consider that that complaint should be dismissed.

Still as regards the alleged defective statement of reasons, the appellant further submits that the contested measure leaves his legal situation uncertain and does not enable him to ascertain it. In addition, he maintains that the Commission undertook to reexamine and define questions relating to that situation but failed to do so. That complaint is also unfounded. As the Commission observes, the measure adopted in this case is a decision, which is binding as a result of Article 189 of the Treaty. It is therefore a measure which, by reason of its effects, is completely appropriate for rendering certain the legal situation of the person concerned, who has been and remains to date certainly excluded from affiliation to the sickness insurance system provided for by the Regulation. In addition, the decision in question gave the appellant access to judicial remedies of which he has indeed taken advantage. Consequently, the certainty and protection of his personal situation have not been adversely affected.

Lastly, the appellant's statements concerning the promise to review questions relating to his treatment concern factual aspects and hence are inadmissible for present purposes.

Alleged infringement of Article 4(6) of the Regulation

The Court of First Instance held that the appellant was not entitled to benefit by the Community sickness insurance scheme, on the ground that he was covered by the scheme laid down by German law for civil servants.

The appellant claims that the conclusions of the Court of First Instance are erroneous. The benefits secured by the Community scheme differ significantly from the type of assistance which the rules on Beihilfe authorize him to receive; since there is no equivalence between the two sickness schemes in question, the conditions for denying the appellant entitlement to the insurance benefits provided for in Article 4(6) are not present.

He argues that in this case the criterion laid down by the Court in Kontogeorgis cannot be applied by analogy either. According to that judgment, the appellant claims, persons who are entitled to the benefit of different, full sickness insurance cover are excluded from benefiting under the Community scheme, whereas the assistance granted to German civil servants under the Beihilfe scheme does not constitute such cover. In the appellant's view, the reasons pleaded are such that the contested decision should be annulled.

The respondent maintains for its part that it adopted the measure in question on the basis that the Beihilfe scheme and the Community sickness insurance scheme were substantially equivalent. The insurance cover available to the appellant under the national scheme, which necessitates excluding the Community sickness insurance scheme, should however be assessed, as appears from the judgment in Kontogeorgis, independently of the actual rate of reimbursement of the individual benefits: according to neither the wording nor the intention of Article 4(6) has total cover to be involved.

It appears from examination of this plea of the appeal that it will be necessary first to consider how Article 4(6) formulates the entitlement claimed by the appellant.

That entitlement, conferred on the recipient of the allowance and other persons covered by his insurance, is to benefit under the sickness insurance scheme provided for in Article 72 of the Staff Regulations for Community officials. The entitlement of the former member of staff to sickness benefits is connected with entitlement to the allowance and is therefore a consequence of the remuneration guaranteed also to persons who have left the services of the Communities. However, Article 4(6) contains two provisions: the first extends generally to recipients of the allowance the scheme laid down by the Staff Regulations; the second departs from that provision in the event that the person concerned is covered by another sickness insurance by virtue of legal or statutory provisions. An official who benefits by the scheme provided for in the Staff Regulations is entitled to a maximum guaranteed level of benefits; if he is covered by another scheme affording a lower level of benefits, he is entitled to the difference between the level of cover provided by that scheme and the level of cover laid down by the Staff Regulations. In contrast, a recipient of the allowance qualifies only for one scheme: if he has other cover, he is divested of the right to have the provisions of the Staff Regulations applied to him. The provision derogating in the latter event from the common scheme provided for by Article 72 of the Staff Regulations is laid down in order to exclude the former staff member's right to receive the same treatment as staff members still in the service of the Communities and must therefore be interpreted in accordance with the rules applying to provisions which restrict rights.

I shall state forthwith the consequence which ensues from the point of view which I am advocating. There is a primary and, in my view, unavoidable criterion in the light of which Article 4(6) must be read. It must be held that, by conferring on the recipient of the allowance the right to cover under the scheme provided for by the Staff Regulations, the Community legislator intended to deny him the benefit of that scheme only in the event that he has an equivalent sickness insurance scheme, and not just any insurance cover. The fact that such equivalence must exist is an implicit, but clear, precondition for the provision having to be applied. A body interpreting that provision must necessarily ascertain that that precondition is fulfilled in the particular case before debarring the beneficiary of the allowance from receiving the benefits to which he would otherwise be entitled.

Indeed, the statement of reasons of the contested measure relies on a certain criterion of equivalence. The Commission denied the appellant the right to be affiliated to the Community sickness insurance scheme on the ground that, in comparison with that scheme, the Beihilfe scheme, by which he is covered under German law, constitutes a legal scheme affording benefits which, ‘to the knowledge’ of the Commission, are ‘comparable’. The assessment of equivalence is formulated only in those terms. As I mentioned in section 26, it must be established whether that reasoning is, not only sufficient, but correct. This and no other is the point to be clarified when interpreting Article 4(6). The Court has to establish what criterion of equivalence is to be inferred from that provision for the purposes of this dispute.

The Court of First Instance held that the decision of 3 May 1992 escaped criticism on the basis of a series of assessments, with which, for the reasons set out below, I do not consider that I can agree.

I shall start with the observation that the Beihilfe scheme has the characteristics of a ‘legal’ scheme within the meaning of the Regulation, since the benefits mechanism laid down is based on a provision of public law. Certainly, legal or statutory sickness insurance must originate in a public measure adopted by bodies invested with a legislative function. This assessment, however, involves the status and rights of officials and this area is often confined in the present-day systems of States governed by the rule of law to the competence of the legislator. This is true of the German system with its rigid constitution. The German Grundgesetz (Basic Law) embodies in this connection the provisions of Article 73(8) and Article 74a: the relationship between the State as an employer and civil servants and the forms of insurance to which civil servants are entitled fall within the area which should be, and in fact is, covered by the law. However, this does not in itself mean that the German legislator has actually provided for a social security scheme equivalent to that provided for by Article 72 of the Staff Regulations. For the purposes of equivalence, regard must be had, not only to the formal classification of the source as legal or statutory, but also to the preceptive content of the rules laid down thereby which provide in this case for the scheme which may be applied in the alternative to the Community scheme. The relevance of the substantive scheme under consideration, rather than its formal origin or source, has, moreover, been affirmed by the Court in other disputes, in which it was a question of establishing whether there had been an infringement, as was alleged, of the principle of equality or of establishing whether the treatment as regards pensions of certain staff fell within the scope of an employment relationship rather than within the scope of social security. I refer to the recent judgment in Beune and to the judgment in Bilka to which it refers.

The Court of First Instance itself recognized that there was in this case a need to have regard to the substantive rules of the Beihilfe scheme. However, it adopted the criterion of assessing what that scheme provides for by way of rates and ceilings for the reimbursement of medical expenses in order to reach the conclusion that the level of benefits provided for was comparable with that afforded by a sickness insurance scheme governed by the ordinary law. The Court of First Instance thereby compared the Beihilfe scheme to the ‘common type’, that is to say, to a category of sickness insurance rules which it regarded, without any further explanation, as being generally accepted and to which any legal or statutory scheme capable of covering the recipient of the allowance within the meaning of the regulation must approximate.

But this is to ignore the fact that the problem which arises is that of examining the equivalence of the Beihilfe scheme with, in practice, no scheme other than the Community scheme. The Court of First Instance ruled on this question, defined as I have set it out, only in order to conclude that the Court's judgment in Kontogeorgis should be applied by analogy. That case was concerned with a provision similar to Article 4(6) laid down as regards the sickness insurance of former members (of the Commission and the Community judicature: Article 11 of Regulation No 422/67). That case also raised a problem relating to the equivalence between the Community sickness insurance scheme and the national scheme applicable to the person concerned, which were regarded as alternative schemes in the same way as in this case.

Let us examine, however, the outcome of extending the principles set out in Kontogeorgis to this case.

In that judgment the Court established that equivalence — precisely in the terms in which it had to consider it in that case, which arise similarly in this case — should not be construed by reference to the level of benefits and the conditions for their grant, unless this is expressly laid down by the Community provision governing the case.

In this case, there are no express clauses to that effect and thus the interpreting body may not take the place of the legislator, which, for its part, did not contemplate precise equivalence between levels of cover.

Consequently, that very case-law relied on by the Court of First Instance signifies that the contested measure, by attributing decisive, if not exclusive, importance to equivalence in the level of benefits, relied on a rule of quantitative assessment of which the provision governing this case did not authorize the use.

However, for the reasons which I have already set out, the assessment of equivalence must in any event be formulated.

The Court's case-law draws attention to the fact that, in a case such as this, the quantitative equivalence of benefits should be measured by the yardstick of express, precise provisions laid down by the legislation and not, in a manner of speaking, by any rule of thumb of which the Court might wish to avail itself, which would lead to results that, in the nature of things, would be approximate and open to discussion. Moreover, it would be empty formalism to debar a former member of staff of the Communities from affiliating himself to the Community system merely because he is in receipt of sickness benefits on the basis of other provisions — of law or of subordinate rank — without examining whether and how such provisions may be deemed to be equivalent to the rules laid down by Article 72 of the Staff Regulations.

If the criterion employed by the Court of First Instance is not acceptable, it will be necessary to define another which is tailored to the requirements of the case: what is therefore required is an effective, reasonable interpretation of the prescribed conditions under which the former staff member may be deprived of his entitlement to the benefits provided for in the Staff Regulations.

The assessment of equivalence — based on a proper interpretation of Article 4(6) — should start first of all by identifying the sickness insurance criterion which characterizes the Community scheme and then go on to examine whether the other legal or statutory scheme covering the appellant in this case is based on the same criterion.

The essential characteristic of the Community scheme is defined by Article 72 of the Staff Regulations. A certain level of benefits is earmarked for officials in accordance with an underlying criterion of adequacy. Cover is not total but set at the maximum level which is compatible with budgetary requirements, which are left to the discretion of the Community legislator. The level predetermined in this way remains fixed — and in this way the benefits are ‘guaranteed’, as is stated in Article 4(6) — irrespective as to whether the person concerned is covered by another legal scheme or even by private insurance. Where another legal scheme is operative and the level of benefits which it provides for is lower than the Community level, the Community sickness insurance scheme tops up the difference as compared with the scheme provided for by the Staff Regulations. As appears from the Staff Regulations, in particular from the so-called rules against overlapping laid down by Article 72(4) which are designed to govern cases of dual cover, a sickness insurance scheme provided for by law is one which fulfils its characteristic social function on the basis of a criterion consisting of the scheme's being adequate and primary. (9) As for private insurance, it is treated under Article 72 as complementary, inasmuch it as may unrestrictedly cover expenses which are not reimbursed by the Community insurance scheme. Consequently, in any event benefits under the Community scheme are equal to the predetermined level. In the final analysis, the guarantee afforded to the official consists in the conferral of an entitlement to the maximum authorized rate of reimbursement by means of an insurance scheme whose characteristics are that it is primary and self-sufficient; adequacy of cover is not made to depend on the involvement of other forms or sources of assistance and is fixed, once for all, by setting the limits up to which the Community scheme will cover officials against the costs of sickness.

36.Having said this, it is necessary to ascertain whether the Beihilfe scheme is also characterized by the cover criteria which we have identified for the Community scheme. The relevant provision here is Paragraph 79 of the Bundesbeamtengesetz (Federal Civil Service Law, hereinafter ‘the BBC’), which has to be read in conjunction with Paragraph 1(1) of the relevant implementing provisions. Paragraph 79 of the BBG provides that the State as employer is to protect the person concerned in his activities in the service and in his capacity as civil servant, and is to safeguard his interests and those of members of his family even after he ceases to be civil servant. Paragraph 1(1) of the relevant implementing provisions specifies how the protection of the civil servant, as provided for in general terms by Paragraph 79 of the BBG, operates in practice in so far as it is relevant for present purposes: the German legislation provides for the grant of ‘assistance’, which ‘supplements’ in the event of sickness (and maternity, death, preventive medicine and vaccination) ‘private cover paid for out of normal remuneration’. Consequently, the scheme is complementary in that it supplements but does not replace normal sickness insurance, which civil servants have to arrange at their own expense. This typically supplementary procedure adopted for the assistance given to civil servants in order to relieve the expense of satisfying an essential need — such as that for medical cures — is governed by the implementing provisions: the Beihilfe scheme covers its proportion of medical expenses, subject to the specific threshold laid down, which is limited to the residual amount not reimbursed by the primary sickness insurance. Beihilfe — which, significantly, is defined as assistance rather than as an insurance scheme in the proper sense of the expression — essentially constitutes a further source available to civil servants in cases of need covered by the law. The characteristic ancillary nature of the scheme is also attributable to the fact that, in view of the high degree of professionalism and independence attributed to the civil service, civil servants are equated with members of the professions and have been given similar freedom of choice with regard to sickness insurance cover. By reason of the way in which it has been designed, the Beihilfe scheme is tailored to that conspicuous characteristic of the civil servant's position, which Paragraph 79 of the BBG seeks to safeguard. Civil servants are excluded from the scope of the social security code but, by way of compensation as far as medical expenses are concerned, are covered by the specific assistance scheme to which I have adverted.

37.What has been said shows that, far from being equivalent, the Community scheme and the Beihilfe scheme in fact differ on account of the essential criteria on the basis of which they are governed: the Community scheme is characteristically designed to be a primary, self-sufficient insurance scheme, the Beihilfe scheme, in contrast, as assistance supplementary and complementary to private insurance. My conclusion is not contradicted by the fact that the Beihilfe scheme operates even where the civil servant has not taken out sickness insurance on his own account, although the assistance granted in such a case continues to be confined within the predetermined limits. Not even in such a case does the cover provided for a German civil servant acquire the characteristic feature of a sickness insurance scheme equivalent to the Community scheme. The German legislator provides for it as a means of support having regard to the so-called ‘maintenance’ principle, not as an adequate reimbursement of medical expenses. The system by which it intervenes to assist persons with no other insurance should not, moreover, be regarded as being severable from the overall Beihilfe scheme: it is simply a part of the legislative machinery; the logic underlying the system is that Beihilfe, which is insufficient where it is operative independently of any other cover, instead pursues the optimum result of maximizing the reimbursement of medical expenses borne by civil servants only where there is a primary insurance scheme which it supplements. The criterion of adequacy adopted by the German legislator can therefore be construed only as follows: Beihilfe covers the needs of the person concerned only where it is additional to benefits arising under other forms of insurance, which are regarded under this system as primary. This confirms that what is involved is a criterion which is substantially and unambiguously different from that laid down by Article 72 of the Staff Regulations, which guarantees Community officials the maximum level of benefits on an autonomous, primary basis even where no other means of cover are also present.

38.Lastly, I would point, simply in order to furnish my observations so far with an additional aid to interpretation, to the position taken by the German Government contained in document No 7481/91, ‘AVI’ Item Note of the Coreper Working Party on the Staff Regulations, which the appellant produced after he lodged his appeal. According to the German Government's statement, benefits paid in the event of illness under the scheme applicable to the civil service in Germany {Beihilfe) are not reimbursements under a compulsory health insurance scheme and cannot be considered equivalent to such reimbursements. The statement goes on to say that it follows that benefits under the European Communities' sickness insurance scheme take precedence, on account of the subsidiary nature of the German civil service scheme. The Commission objects that the statement is unilateral and not binding. To my mind, however, it may still be assessed, subject to compliance with the principle iura novit curia, as the production of a document linked with the general duty of cooperation of the parties with the court in relation both to knowledge of and the interpretation of a provision which belongs, as in this case, to a legal system other than that of the Community. According to the statement in question, the Beihilfe scheme cannot be described as a legal sickness insurance scheme. It would be sufficient to take that view in order to conclude, without any need for further argument, that the appellant does not come within the conditions laid down by Article 4(6) of the Regulation for being excluded from the Community sickness insurance scheme. However, the same result is reached by following the type of ideas which I set out above irrespective of how it is desired to categorize the rules at issue of the German legal system concerning civil servants. Whether or not Beihilfe constitutes an insurance benefit in the proper, full sense of the expression, the reimbursement of medical expenses made under the Beihilfe scheme is merely ancillary and complementary to benefits arising from other autonomous, primary insurance. This is the essential, objective characteristic of the German system. The statement was bound to include it. In no case does such a system have characteristics equivalent to the Community scheme, which, as I have explained, makes provision for different criteria and guarantees as regards cover.

39.The Commission in adopting the contested decision and the Court of First Instance in upholding it did not correctly interpret and apply the criterion of equivalence between the two social security systems to be compared and consequently wrongly excluded the appellant from affiliation to the Community sickness insurance scheme. I conclude for the reasons set out above that the ground of appeal alleging infringement of Article 4(6) of the Regulation should be upheld. Since there is no need for any further inquiry given that a question of law is involved, I consider that the case may be decided by the Court of Justice in accordance with Article 54 of the Statute. I therefore propose that the decision of 3 May 1991 should be annulled.

The claim for damages

The appellant further asks the Court to declare that he is entitled to compensation for the damage which he has sustained as a result of the defendant's conduct. Since I propose that the appeal should be upheld only as regards the claim that the Commission's decision of 3 May 1991 should be annulled, I consider that the claim for damages should be assessed, albeit in relation only to that decision. The judgment of the Court of First Instance dismissed the appellant's application and held that the contested measures were lawful. As a result, the claim for damages made before the Court of First Instance could not be upheld, since the necessary condition of unlawful conduct on the part of the Commission was not fulfilled. On that premiss, the Court of First Instance therefore did not consider whether the damages claim was well founded and did not assess the facts justifying the appellant's claim. In my view, those very facts are relevant in order to determine whether any damage was sustained, its quantum and whether it may be imputed to the Commission. I take the view that, as the documents before the Court of Justice stand, it does not have sufficient information to rule on this. This point warrants further investigation and I propose that it be referred back to the Court of First Instance for its consideration.

Costs

41.Since my conclusion on the substance is to propose that the case be referred back to the Court of First Instance for consideration of the aspect relating to the damage, it is, under Article 122 of the Rules of Procedure of the Court of Justice, for the Court of First Instance to make the necessary order as to the costs.

Conclusion

In view of the foregoing, I propose that the Court should:

—Dismiss the appeal seeking to have the judgment of the Court of First Instance of 24 June 1993 in Case T-92/91 set aside on the basis of the grounds of appeal relating to the Commission's decision of 25 April 1991;

—Declare the appeal seeking to have the judgment of the Court of First Instance of 24 June 1993 in Case T-92/91 set aside on the basis of the grounds of appeal relating to the Commission's decision of 3 May 1991 well founded and consequently set aside the judgment of the Court of First Instance with regard to that point and annul the Commission's decision of 3 May 1991 pursuant to Article 54 of the Statute of the Court of Justice;

—Set aside the judgment of the Court of First Instance as regards the claim for damages;

—Refer the case back to the Court of First Instance with a view to its ruling on the claim for damages and on the costs.

* * *

(*1) Original language: Italian.

(1) OJ 1987 L 209, p. 1.

(2)

Orders in Case C-244/92 P Kupka-Floridi v Economic and Social Committee [1993] ECR I-2041 and Case C-26/94 P Mrs X v Commission [1994] ECR I-4379.

(3) Judgment in Case C-354/92 P Eppe v Commission [1993] ECR I-7027.

(4) Judgment in Case T-85/91 Khouri v Commission [1992] ECR I-2637.

(5) Judgment in Case C-163/88 Kontogeorgis v Commission [1989] ECR 4189.

(6) Judgment in Case C-7/93 Beune [1994] ECR I-4471.

(7) Judgment in Case C-170/84 Bilka [1986] ECR 1607.

The practice adopted with regard to Article 72(4) in regard to serving and retired Community officials qualifying for Beihilfe is, as far as I can ascertain, not to apply the rule against overlapping. The logical basis of that practice is derived from the fact that the Community official or pensioner is in any event bound to pay the full contribution to the sickness insurance fund and consequently does not have to incur a reduction in the Community benefits and is entitled to benefit by both systems in full.