DELIVERED ON 10 MAY 1979 (*1)

Mr President,

Members of the Court,

The applicant in this case is requesting his appointing authority to double the maximum amount which he is awarded each month by way of education allowance.

The applicant is a principal administrator with the Commission of the European Communities at Brussels. During the school year 1976/1977 his son, who was born in Washington D.C. in 1970, attended the first primary class at the European School at Woluwé, English Section. His parents had chosen that section because his mother is American and English is consequently his principal language.

Difficulties arose during the school year, inter alia because of the child's problems with writing, and the school authorities recommended that a psychiatrist be consulted and that therapy be provided for disorders of the motor function governing precise movements.

Towards the end of the school year the child's teacher suggested to his parents that, irrespective of his performance at school, they allow the child to repeat the year, since he was not sufficiently mature. However, both the people who were consulted at the suggestion of the school and the school psychologist advised strongly against a repetition of the year, since that was not justified by the child's results at school and might cause him to lose his motivation. Instead they advocated a school with smaller classes, which they felt would be better able to surmount the child's difficulties arising from the lack of motivation.

At a later meeting the child's teacher and the Director of the European School agreed that by reason of the large number of pupils it was impossible to devote to the child the attention which would be necessary in order to overcome his difficulties. The applicant therefore sought a new school for the following school year. His choice fell on the British Primary School at Ixelles, a small educational establishment with no more than 20 pupils in each class. The fees for that establishment amount to Bfrs 65000, to which, according to the applicant, a further Bfrs 3000 to 4000 must be added to cover other costs.

By a letter dated 19 July 1977 the applicant requested the Head of the Individual Rights and Privileges Division to double the maximum prescribed for the education allowance in accordance with the third paragraph of Article 3 of Annex VII to the Staff Regulations.

At that time the relevant provisions of Article 3 provided as follows:

First paragraph:

‘An official shall receive an education allowance equal to the actual education costs incurred by him up to a maximum of Bfrs 2916 per month for each dependent child, within the meaning of Article 2 (2) above, who is in regular fulltime attendance at an educational establishment.

Third paragraph:

The maximum prescribed in the first paragraph shall be doubled for:

— An official whose place of employment is at least 50 km from a European school or an educational establishment working in his language, provided that the child actually attends an educational establishment at least 50 km from the place of employment.’

The third paragraph of that provision was amended by Council Regulation (Euratom, ECSC, EEC) No 912/78 of 2 May 1978 (Official Journal No L 119 of 3 May 1978, p. 1) and the passage which is relevant here now reads as follows:

‘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.’

That new text corresponds to Article 4 (5) of the ‘General implementing provisions for granting the education allowance’ (published in the Administrative Notices No 153 of 2 May 1977, which were published in conjunction with the provision first mentioned above.

By a decision dated 11 October 1977 the applicant's request was rejected on the ground that his place of employment was not at least 50 km from either a European school or from the establishment attended by the child.

As a result of that rejection the applicant submitted a complaint to the appointing authority under Article 90 (2) of the Staff Regulations. No reply was received and on 31 July 1978 he lodged an application for the annulment of the implied decision of the Commission rejecting his request and for the grant of double the maximum education allowance for his son.

My opinion on those facts is as follows:

I —

The applicant bases his application on the submission that by rejecting his request the Commission committed a breach both of the general principle of law relating to ‘good administration’ and of the prohibition of discrimination. As an unwritten general legal principle the former is, he claims, a constituent element of Community law, whose observance is to be ensured by the Court of Justice. The jurisprudence of the Netherlands in particular emphasizes, within the framework of that principle, the ‘duty of conscientious administration’ (‘zorgvuldigheidbeginsel’), according to which an administrative authority must if at all possible also consider, in addition to certain formal requirements, all material provisions on the basis of which a request might be allowed. He states that a reference to the principle of ‘good administration’ was also allowed by the Court of Justice in Case 55/70 (Andreas Reinarz v Commission, judgment of 12 May 1971, [1971] 1 ECR 379). It is to be inferred from the principle of the protection of legitimate expectation, which is also accepted by the Court of Justice and which provides that a proper application of the legal provisions may be required from an administrative authority.

The applicant maintains that the Commission breached that principle by wrongly interpreting and applying the provision of Article 3 of Annex VII to the Staff Regulations of Officials which is at issue, for, despite the wording, which is at first sight clear, the provision must, in accordance with a logical systematic and teleological method of interpretation, be given a meaning which does not correspond to the text. That is principally necessary since a literal interpretation of the provision does not allow cases such as this one to be properly accommodated. In the opinion of the applicant the third paragraph of Article 3 of Annex VII to the Staff Regulations is to be interpreted as follows: If there is no European school within a radius of 50 km of the official's place of employment the maximum education allowance is to be doubled. If there is a European school within a radius of 50 km then as a general principle nothing more than the normal maximum allowance is to be awarded. The maximum may, however, be doubled even in such a case if ‘for imperative educational reasons, adequate proof of which must be provided’ the child cannot attend the local European school, because it is unable to ensure that he receives the instruction required by his special circumstances, and therefore attends an appropriate school working in his language. If in such a special case the costs incurred by attendance at such a school demonstrably exceed the normal maximum allowance the official is to be entitled to claim double the maximum. The applicant bases that view on various considerations, which I shall now deal with briefly.

(a)

He contends, first of all, that it is clear from the repeated amendment of the rule in question alone that the administrative authority is still searching for a suitable text with which to provide a just solution to cases requiring the doubling of the maximum allowance. Only Article 4 (5) of the ‘General implementing provisions for granting the education allowance’, which corresponds to the version of the third paragraph of Article 3 of Annex VII to the Staff Regulations in force today, has brought about a clarification in the sense of the interpretation advocated by him. Furthermore, the authorities themselves admitted in an international communication (IX-1674/F Memorandum to the Members of the Commission) that the provision in question was ambiguous. The fact that for a long time the Commission did not fully realize the content of that rule may also be deduced from the fact that it was only shortly before the application was lodged that they referred the applicant to Article 67 (3) of the Staff Regulations, which provides for the possibility of the dependent child allowance to be doubled if the child concerned is suffering from a mental or physical handicap which involves the official in heavy expenditure. That belated notification also represents a breach of the principle of good administration.

I do not find these arguments convincing. It is of course true that the provision in question has been repeatedly amended but a close look at those amendments shows that on each occasion the provision has been more precisely defined. Whereas in the original version the doubling of the maximum allowance was solely dependent upon the existence of a certain distance between the school and the place of employment, the version in force at the time the application was lodged already provided expressly for the place of employment to be at least 50 km from a European school or a school working in the language of the official which was actually attended by the child. The version in force today further defines that provision, inasmuch as it is not sufficient for a child merely to attend a school working in his language which is over 50 km from the place of employment but attendance at that school must be necessary for imperative educational reasons, adequate proof of which must be provided. As a result, the meaning of the provision is sufficiently clear from its wording. At all events, it is clear from the text that the maximum allowance may only be doubled if the child attends a school which is situated over 50 km from the place of employment of the official. The ‘General implementing provisions’ applicable to the version in force in 1977 referred to by the applicant do not make any different provision, quite apart from the fact that such implementing provisions would be unable to give a different content to a basic provision whose wording is clear.

Furthermore, no profitable conclusions as regards the interpretation of the provision in question may be drawn from the Commission document referred to by the applicant. That document is merely an internal statement of opinion which, moreover, relates to the version prior to the one now in force, which contained no reference to the factual criterion of imperative educational reasons, although it did clearly provide for the minimum distance of 50 km.

What is more, it cannot be deduced from the fact that the Commission based its rejection of the request on a reference to the clear wording of the provision contained in the third paragraph of Article 3 of Annex VII to the Staff Regulations that it did not fully realize the content of that provision or the system of allowances provided for in the Staff Regulations. The allegedly belated reference to other grounds for a claim could constitute at most a breach of the duty to provide assistance. However, the record shows that the applicant applied for the doubling of the dependent child allowance as early as 30 March 1978, which means that he was aware of that possibility by that date at the latest. However, a medical examination carried out in connexion with that application revealed that the basic requirement of a mental or physical handicap laid down in Article 67 (3) of the Staff Regulations was not satisfied. For that reason the request was rejected by a letter from the Director-General for Personnel and Administration of 22 November 1978. That is for me evidence that the Commission, by not referring the applicant to that — as it subsequently appeared — hopeless procedure, cannot have been guilty of a breach of the duty to provide assistance.

(b)

In support of his argument the applicant also refers to the fact that after the accession of the new Member States the Commission granted the officials from those States double the maximum education allowance, even though a European school was to be found close to their place of employment. The Commission, he states, was only able to do that because it realized that the European school of the place of employment was unable to provide any suitable education for the children of those officials, who spoke the new Community languages and it therefore, by way of interpretation, supplemented the term ‘European school’ by the concept ‘suitable’. As the Commission has found that such an interpretation does not conflict with the wording of the provision but, on the contrary, is in harmony with its spirit, then the same must also apply to the present case in which the circumstances are similar.

In my opinion, however, the case in which the court of Justice is now required to give a decision differs in many respects from the problem posed at that time. At that time it was clear that the European schools offered no teaching in the new Community languages, with the result that the children in question were actually unable to follow lessons in their own language. In the present case, however, the special reasons which prevent the child from attending the European school are entirely subjective and are to be found within the child himself. Furthermore, the wording applicable at that time, in accordance with which the only relevant factor was the distance of 50 km from a European school, was open to an interpretation of that nature. However, as I have already pointed out the version in force at the time the request was made and the version applicable today have further defined that stipulation to the effect that the school situated at least 50 km away must actually be attended and attendance there must be necessary for imperative educational reasons. As a result that provision is no longer open to any different interpretation.

(c)

The applicant also considers that a literal interpretation leads to results which are absurd from both an administrative and an educational point of view. Thus it is not one of the principal tasks of the administration to check whether the school in which the applicant has placed his child is or is not 50 km from his place of employment, but rather whether the educational establishment is actually suitable from the point of view of the necessary rehabilitation of the child. Moreover, on educational grounds it is advisable to accommodate such problem children in a school situated as near to the parents as possible, rather than in one which is as far away as possible.

As regards that one can only agree with the Commission that if one were prepared to accept the applicant's view the allegedly absurd consequence would not result from the application of the provision but would be based in the provision itself. In that case the applicant should have pleaded the inapplicability of the provision on the ground of illegality in accordance with Article 184 of the EEC Treaty. Moreover, I consider that it results directly from the provision that the doubling of the maximum education allowance is granted chiefly by reason of the great distance and the attendant high costs of travel. Consequently the administrative authority is only required to examine whether that condition is satisfied. As the parents are at liberty to decide whether they wish to place their child at a school which is nearer the place of employment, as a result of which they have, of course, to relinquish the doubling of the maximum allowance, I am unable to see in what way the consequences of that rule are supposed to be absurd.

The final argument put forward by the applicant relates to the placing of the educational allowance within the system of other family allowances for which provision is made by the Staff Regulations. He considers that, as a supplement to the dependent child allowance provided for in Article 67 (1) (b) in particular, the education allowance is to cover the costs actually incurred in connexion with school education up to a limit formed only by double the maximum amount. That may also be deduced, he thinks, from the aforementioned ‘General implementing provisions’, which expressly provide for the transport and other costs incurred in connexion with attendance at school to be covered by that allowance in addition to the fees and charges for examinations. Among such other expenses the medical expenses are, however, also referred to expressly.

However, as the Commission emphasizes, those medical expenses are only listed in the catalogue of costs among others which are necessarily bound up with attendance at school. In my opinion that clearly shows that the reference can only mean such costs as may be incurred in connexion with a regular school medical examination or treatment. Quite apart from that I have already pointed out that the ‘General implementing provisions’ are, as such, not capable of ascribing a different meaning to the basic provision in Article 3 of Annex VII to the Staff Regulations, which is in that respect clear.

What is more, Article 3 of Annex VII must be considered in conjunction with the aforementioned Article 67 of the Staff Regulations, which provides solely that the dependent child allowance, which is calculated as a lump sum, may be doubled if a mental or physical handicap suffered by the child involves the official in heavy additional expenditure. In the absence of any corresponding provision regarding the education allowance it must necessarily be concluded that in so far as additional burdens within the scope of the education allowance do not result from the distance they may not be taken into consideration. I am consequently unable to detect any lacuna in the system of family allowances.

To sum up, it may be stated that a systematic and teleological interpretation can produce no different result from the linguistic-grammatical interpretation. If the Commission were to disregard the prescribed minimum distance of 50 km, that would be an inadmissible interpretation contra legem.

If, however, after application of all the methods of interpretation a provision is unequivocal and clear the Commission is bound by the principle that administration shall be in accordance with the law, which together with the closely related principle of legal certainty, both of which are laid down by the established case-law of the Court of Justice, to apply the provision without, in so doing, having any margin of discretion. In this respect therefore there is no room for general principles of law whose chief purpose is to fill gaps. Consequently, when it rejected the request the Commission did not breach the principle of good administration referred to by the applicant, quite apart from the fact that I am not persuaded that that principle is an integral part of the general legal principles recognized by the Member States or, as a result, an integral part of Community law. At all event I consider that it cannot be inferred from the Reinarz case that a principle of that nature, with the content attributed to it by the applicant, was recognized by the Court of Justice.

Similarly, as regards the breach of the principle of non-discrimination also alleged by the applicant, the reasons just given relieve me of the need to make any further remarks. It could only be relevant to consider that principle of law in a case in which the administration authority had a margin of discretion in the application of a provision. However, if the applicant had doubts as to the legality of the provision itself, he should have claimed in accordance with Article 184 of the EEC Treaty that it was inapplicable. In my opinion the provision does not breach the principle of non-discrimination simply because — to take only one point — it provides that the school must be at least 50 km from the place of employment. I am unable to discover any ground for regarding the fixing of that distance, which is applicable to everyone on the same terms, as arbitrary.

Having regard to all the foregoing I propose that the application be dismissed as unfounded and that a decision regarding the costs of the proceedings be adopted in accordance with Article 70 of the Rules of Procedure.

Translated from the German.