OPINION OF MR MAYRAS - CASE 106/76 DEBOECK v COMMISSION

Mr President,

Members of the Court,

Section 1 of Chapter 1 of Title V of the Staff Regulations of Officials of the European Communities, headed Remuneration, contains Article 67 which reads as follows:

Annex VII contains the provisions concerning remuneration and reimbursement of expenses. Article 2 thereof establishes the conditions for paying the dependent child allowance.

On the other hand the grant on the birth of a child referred to in Article 74 appears in Chapter 2, Social Security Benefits. In the national systems family allowances, or more precisely family benefits, like child-birth allowances, are generally classified as social security and not as remuneration.

The interpretation and application of Article 67 (2) raise a number of questions.

What is to be understood by allowances of like nature ?

Who decides on the identity of nature ? It appears that this must normally be settled by the administration. Nevertheless the provision renders it the responsibility of the recipient official himself to take the initiative in declaring allowances paid from other sources. Since family allowances paid from other sources, that is to say from the various Member States, have expanded and developed it is possible for officials in good faith to fail to make the declaration required of them and the situation will only be definitively settled after some time.

Finally, assuming the identity of the nature of the allowances to have been established, from what time must the deduction be effected? If this identical nature is established on the basis of a decision of the administration and if that decision is only made after a certain time must the deduction be made with retroactive effect? The present disputes which concern, apart from the applicants, almost eight hundred spouses, who are employed persons or treated as such and work in Belgium, are indicative of those difficulties.

Belgium, which is an importer of labour, is justly proud of having a very advanced social security system. In connexion with the family benefits which concern us here this system had two special features which distinguished it from those of the other Member States: in addition to the child-birth allowance and the ordinary family allowance, which corresponds in principle to the dependent child allowance under the Community Staff Regulations, the system includes the payment, subject to conditions which I shall describe, of a special family allowance and a family holiday allowance.

I —. The special or supplementary family allowance, which is sometimes termed the back-to-school allowance because it is paid in September, or the fourteenth month of family allowances because of the amount and the payment of the family holiday allowance, which is itself described as the thirteenth month, came to be granted in the following conditions:

II —. With regard to the family holiday allowance the consolidated laws have, since the enactment of Article 5 of a Law of 25 June 1962, contained an Article 73 quater which provides (in the wording of Article 1 of the Law of 15 April 1965):

III —. Finally the problems involved in the present disputes relate to the date when the declaration and the deduction of allowances of like nature must be made.

I am of the opinion:

1 Translated from the French.