Opinion of Mr advocate general Reischl

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:

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:

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.

1. 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.

(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.

(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.

(d). 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.

(e). 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.

2. 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.

II —. 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.

1 Translated from the German.