Opinion of Mr advocate-general Roemer

Mr President,

Members of the Court,

Under Article 2 of Annex VII to the Staff Regulations of Officials an official of the Communities receives a monthly allowance for each dependent child. Paragraph (2) of the Article contains a definition of dependent child. Paragraph (3) lays down the age-limits to which grant of the allowance is subject. Finally, paragraph (4) provides (and this point has particular importance in this case) as follows: 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. By decision of 2 April 1964, the Council adopted general provisions for its implementation by its administration department. I shall consider them in more detail later.

For the moment it need only be said that Mr Brandau, the applicant in the present case, married, with no children and living in Brussels, is an official, in Grade A 3/6, of the Secretariat-General of the Council, and wished to take advantage of these provisions. He is the only son of his widowed mother, who was 83 years of age when the application was lodged. Like the applicant, she is of German nationality but previously lived in an old people's home in Vienna. She receives an Austrian pension amounting to 1854 schillings (or Bfrs 3541). Owing to serious illness (cerebral haemorrhage), which occurred on 12 December 1970, Mrs Brandau had to stay until 2 January 1971 at the University Hospital in Vienna, and, since then, she has required constant attention.

It was for this reason that, after she left the hospital, she was first put into a private sanatorium in Austria. On 6 March 1971, because of the attention which, on account of her state of health, his mother needed and in order to have her near him, Mr Brandau brought her to Belgium and moved her into the Résidence Maria Assumpta at Dilbeek, which is managed by the Soeurs Hospitalières de St.-Joseph and approved by the Belgian Minister for Public Health, and where she also receives medical attention. In view of the financial burden which this involved (neither the Austrian sickness fund previously responsible nor any Belgian sickness fund pays any benefit in respect of his mother) Mr Brandau decided to request that, with effect from 1 December 1970, his mother should be treated as a dependent child. He wrote a request to this effect and sent it to the Secretary-General of the Council of Ministers on 26 March 1971. The request contains details of the expenditure incurred each month since December 1970. In addition, the applicant explains therein that in future he will probably have to pay Bfrs 20000 each month in charges at the home and meet doctors' and chemists' bills. At the request of the administration, Mr Brandau supplied further information on 11 April 1971. However, no decision was communicated to him before expiry of the period provided under Article 91 of the Staff Regulations of Officials, namely, within two months from the date on which the request was lodged. It was only a short time before expiry of the period for lodging an application to the Court, namely on 19 July 1971, that Mr Brandau received an express decision of the Secretary-General of the Council of Ministers dated 16 July 1971. In that decision, the Secretary-General states that, under the implementing provisions adopted by the Council, to which I have already referred, in the absence of proof of heavier commitments it is accepted that 'the cost per month of a person's maintenance amounts to Bfrs 6360. However, the amount obtained after taking into account the applicant's mother's own income is much lower than the proportion of 20 % of the taxable amount of his remuneration, which, under the above mentioned decision of the Council, is conclusive. Since, again according to the Secretary-General, it has not been proved that the amount which Mr Brandau of his own free will spends each month in maintaining his mother fully corresponds with his maintenance obligation in law, his request cannot be granted.

At this juncture, the applicant lodged an appeal, on 26 July 1971, and initiated the present proceedings. He asks the Court to :

I must now describe the standpoint from which these claims, which the Council considers to be unfounded, should be viewed.

1. Annulment of the implied rejection of the request of 26 March 1971

2. All that now remains is to consider briefly the applicant's alternative application for annulment of the express rejection.

3. My opinion may be summarized as follows:

1 Translated from the French version.

2 For example in the sense of the German Beihilfevorschriften (assistance rules) of 28 October 1965.