JUDGMENT OF 21. 11. 1974 — CASE 6/74 MOULIJN v COMMISSION

In Case 6/74

THE COURT (Second Chamber) composed of: Lord Mackenzie Stuart, President of Chamber, H. Kutscher, M. Sørensen (Rapporteur), Judges, Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact

I — Facts and procedure

II — Submissions of the parties

III — Pleas and arguments of the parties

Law

Costs

I —. Facts and procedure

1. Mr Moulijn, a Dutch national, was a principal administrator with the Commission of the European Communities.

2. In 1965, a Dutch court pronounced a decree of divorce in his case; by the same decree he was ordered to pay to his former wife maintenance in the sum of Fl. 700 per month (increased in 1968 to Fl. 784 per month).

3. On 15 November 1972 the applicant requested an extension of this treatment of his former wife as if she were a dependent child.

4. Since the complaint lodged on 25 June 1973 against the Commission's refusal contained in its letter of 18 April 1973 remained unanswered, the present application was, lodged on 30 January 1974. and registered at the Court on the same date.

5. By letter of 14 February 1974 the Commission informed the applicant that it had been unable to accede to his request.

6. The Court (Second Chamber), having heard the Advocate-General, decided to open the oral procedure without any preparatory inquiry.

II —. Submissions of the parties

III —. Pleas and arguments of the parties

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 dependent 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:

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:

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 % 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 % 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 questions

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.

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.

on those grounds, THE COURT (Second Chamber) hereby:

1 Dismisses the action;

2 Orders each party to bear its own costs.