Avis juridique important

61974J0006

European Court reports 1974 Page 01287 Greek special edition Page 00511 Portuguese special edition Page 00539

Parties

IN CASE 6/74 JOHANNES COENRAD MOULIJN, A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY R . SAMKALDEN, ADVOCATE OF THE AMSTERDAM BAR, WITH AN ADDRESS FOR SERVICE AT LUXEMBOURG AT THE CHAMBERS OF MAITRES LOESCH AND WOLTER, 2, RUE GOETHE, APPLICANT, V COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY R . BAYENS, ITS LEGAL ADVISER, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ITS LEGAL ADVISER P . LAMOUREUX, 4, BOULEVARD ROYAL, DEFENDANT,

Subject of the case

APPLICATION FOR ANNULMENT OF THE DECISION OF THE COMMISSION, REJECTING THE APPLICANT' S REQUEST FOR A PERSON TO BE TREATED AS A DEPENDANT CHILD, IN CONFORMITY WITH THE PROVISIONS OF ARTICLE 2 ( 4 ) OF ANNEX VII OF THE STAFF REGULATIONS .

Grounds

1 THE APPLICATION IS FOR THE ANNULMENT OF THE DECISION OF 18 APRIL 1973 BY WHICH THE COMMISSION REJECTED THE APPLICANT' S REQUEST FOR HIS DIVORCED WIFE TO BE TREATED AS A DEPENDANT CHILD, IN CONFORMITY WITH THE PROVISIONS OF ARTICLE 2 ( 4 ) OF ANNEX VII OF THE STAFF REGULATIONS .

2 ARTICLE 2 ( 4 ) OF ANNEX VII OF THE STAFF REGULATIONS READS : " 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 DEPENDANT CHILD BY SPECIAL REASONED DECISION OF THE APPOINTING AUTHORITY, BASED ON SUPPORTING DOCUMENTS . "

3 THE COMMISSION MADE REGULATIONS LAYING DOWN THE MANNER OF IMPLEMENTING THIS PROVISION ( HEREINAFTER CALLED THE " IMPLEMENTING PROVISIONS " ).

4 UNDER ARTICLE 1 OF THESE IMPLEMENTING PROVISIONS THE FOLLOWING CONDITIONS MUST BE PRESENT FOR A PERSON TO BE TREATED AS IF HE WERE A DEPENDENT CHILD :

" ......

4 . THE OFFICIAL MUST PROVIDE EVIDENCE THAT HE DEVOTES A SUM EQUAL TO NOT LESS THAN 20 PERCENT OF THE TAXABLE AMOUNT OF HIS SALARY, INCREASED, WHERE APPROPRIATE, BY THE NET AMOUNT OF ANY OTHER INCOME HE MAY HAVE, TO THE MAINTENANCE OF THE PERSON FOR WHOM HE IS RESPONSIBLE . "

5 THE COMMISSION REJECTED THE APPLICANT' S REQUEST FOR ARTICLE 2 ( 4 ) OF ANNEX VII OF THE STAFF REGULATIONS TO BE APPLIED, ON THE GROUNDS THAT HE DID NOT FULFIL THE CONDITIONS LAID DOWN BY ARTICLE 1 ( 4 ) OF THE IMPLEMENTING PROVISIONS .

6 THE COMMISSION INTERPRETED THIS AS MEANING THAT THE EXPENDITURE FOR WHICH THE APPLICANT IS LIABLE MUST NOT BE LESS THAN 20 PERCENT OF HIS COMMUNITY REMUNERATION AND THE TOTAL OF HIS NON-COMMUNITY INCOME .

7 THE APPLICANT CONTESTED THIS INTERPRETATION AND ARGUED THAT THE PROVISION IN QUESTION MUST BE INTERPRETED AS MEANING THAT THE EXPENDITURE MUST NOT BE LESS THAN 20 PERCENT OF THE OFFICIAL' S TOTAL INCOME, IRRESPECTIVE OF ITS SOURCE .

8 IT IS NOT IN DISPUTE THAT IF HIS OWN INTERPRETATION IS CORRECT, THE APPLICANT FULFILS THE CONDITIONS LAID DOWN BY THE PROVISION IN QUESTION .

9 ACCORDINGLY, THE OUTCOME OF THE SUIT DEPENDS ON THE INTERPRETATION THAT OUGHT TO BE GIVEN TO ARTICLE 1 ( 4 ) OF THE IMPLEMENTING PROVISIONS .

10 BY REASON OF THE DIVERGENCES THAT EXIST BETWEEN THE VERSIONS OF THIS TEXT IN DIFFERENT LANGUAGES IT DOES NOT LEND ITSELF TO A CLEAR AND UNIFORM INTERPRETATION ON THE POINT IN QUESTION .

11 ACCORDINGLY, IT MUST BE INTERPRETED BY REFERENCE TO THE PURPOSE AND THE GENERAL SCHEME OF THE IMPLEMENTING PROVISIONS ON THE TREATMENT OF ANOTHER PERSON AS IF HE WERE A DEPENDENT CHILD .

12 IN THIS RESPECT IT IS NECESSARY TO BEAR IN MIND THAT TREATMENT AS A DEPENDENT CHILD HAS AN EXCEPTIONAL CHARACTER WHICH IS EMPHASIZED BY THE VERY TEXT OF ARTICLE 2 ( 4 ) OF ANNEX VII OF THE STAFF REGULATIONS, WHICH PROVIDES THAT THIS CAN ONLY BE DONE " EXCEPTIONALLY " AND " BY SPECIAL REASONED DECISION " .

13 THE CONDITIONS LAID DOWN FOR ANOTHER PERSON TO BE TREATED AS A DEPENDENT CHILD MUST ACCORDINGLY BE INTERPRETED STRICTLY .

14 IT SEEMS TO BE IN ACCORDANCE WITH THE PURPOSE OF ARTICLE 2 ( 4 ) OF ANNEX VII THAT THE PERSON INVOLVED SHOULD, IN SATISFYING HIS LEGAL OBLIGATIONS TO MAINTAIN, FIRST UTILIZE HIS NON-COMMUNITY RESOURCES BEFORE APPLYING FOR AN EXCEPTIONAL COMMUNITY BENEFIT, WHICH MEANS THAT THE WHOLE OF THESE RESOURCES AND NOT ONLY A PART THEREOF MUST COUNT IN CALCULATING THE SUM ON THE BASIS OF WHICH THE OBLIGATION TO MAINTAIN IS MEASURED WHEN DETERMINING WHETHER IT AMOUNTS TO HEAVY EXPENDITURE WITHIN THE MEANING OF THE PROVISION CITED .

15 THUS INTERPRETED, ARTICLE 1 ( 4 ) OF THE IMPLEMENTING PROVISIONS, AFFECTING ALL PERSONS FALLING WITHIN ITS AREA OF APPLICATION ON THE BASIS OF OBJECTIVE AND JUSTIFIED CRITERIA, IS NOT INCOMPATIBLE WITH THE GENERAL PRINCIPLE OF EQUAL TREATMENT OF OFFICIALS OR WITH OTHER GENERAL PRINCIPLES OF LAW CITED BY THE APPLICANT .

16 ACCORDINGLY, THE APPLICATION MUST BE REJECTED AS UNFOUNDED .

Decision on costs

17 THE APPLICANT HAS FAILED IN HIS ACTION .

18 UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

19 HOWEVER, UNDER THE TERMS OF ARTICLE 70 OF THE SAID RULES, COSTS INCURRED BY THE INSTITUTIONS IN ACTIONS BY SERVANTS OF THE COMMUNITY ARE TO BE BORNE BY SUCH INSTITUTIONS .

Operative part

ON THOSE GROUNDS,

THE COURT ( SECOND CHAMBER )

HEREBY :

2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .