JUDGMENT OF 13. 2. 1980 — CASE 256/78 MISENTA v COMMISSION

In Case 256/78

THE COURT (First Chamber) composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges, Advocate General: H. Mayras Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

IV — Oral procedure

Decision

Costs

I —. Facts and written procedure

1. Article 72 (1) of the Staff Regulations provides that

2. The applicant, a scientific official in Grade A 4, is employed as an assistant to the Director General at the Joint Research Centre at Ispra.

3. On 2 March 1978 the applicant made a request under Article 90 (1) of the Staff Regulations concerning a loss of DM 326.22 which he had suffered upon reimbursement of his health expenses owing to the application of the system of up-to-date exchange rates.

II —. Conclusions of the parties

1. The applicant claims that the Court should:

2. The defendant contends that the Court should:

III —. Submissions and arguments of the parties

1. In his application the applicant first of all contends that neither Article 72 of the Staff Regulations nor its implementing provisions make any provision for the currency in which sickness expenses are to be reimbursed. Since the Staff Regulations provide that each official shall be free to choose his practitioner he should be entitled to reimbursement of the actual cost of the expenses paid to that practitioner. Even though the Court may recognize that reimbursement must be effected in the currency of the country in which the official performs his duties, the fact remains that there must be equivalence between the amount calculated by applying the percentage laid down in the Staff Regulations and the actual amount reimbursed.

2. In its defence the Commission takes the view that most of the criticism levelled at the application of the joint scheme for the reimbursement of sickness expenses to the applicant's case does not in any way concern the legality of the system generally, but rather the financial effects from the conjunctural point of view of any changes in exchange rates which may occur between the date of treatment, the only date taken into account as the basis of calculation for reimbursement, and the later date when payment is made by the office responsible for settling claims.

3. In his reply the applicant protests against the Commission's statement that the only relevant date for the calculation of reimbursement is the date of treatment: this is contrary to the practice of private sickness insurance companies and to Decision No 101 of the Commission of 29 May 1975 concerning the date to be taken into consideration when determining the rates of conversion to be applied when calculating certain benefits (Official Journal C 44 of 26 February 1976, p. 3), which fixes that date as the day on which the decision by the competent institution to reimburse the expenses incurred by the claimant is made.

4. The Commission, in its rejoinder, replies that under its Decision No 101 referred to above the date chosen in the precise case of reimbursement by the competent institution of a Member State of expenses incurred during a stay in another Member State cannot be used as an argument in this case for practical, administrative reasons connected with the diversity of national social security schemes. In any case that choice by no means seems one likely to avoid the effects of fluctuations in exchange rates (especially if they are extensive and sudden) on social security benefits received by migrant workers.

IV —. Oral procedure

1. The application made on 23 November 1978 seeks primarily the annulment of the implied decision rejecting a complaint made on 5 June 1978 under Article 90 (2) of the Staff Regulations against the decision of the Director General of the Ispra Centre dated 14 March 1978 refusing to grant a request made on 2 March 1978 concerning the application of up-to-date exchange rates for the reimbursement in Italian lire of sickness expenses incurred by the applicant in German marks, which were the subject of a statement dated 20 December 1977 of the office at Ispra responsible for settling claims.

2. Between 29 November 1976 and 23 August 1977 the applicant, a German national and an official at the Ispra Joint Research Centre, and his wife and children received health care in the Federal Republic of Germany, their country of origin. The cost of treatment came to a total of DM 3317.40 and was paid for by the applicant in that currency. Reimbursement of these expenses was made in Italian lire on 18 January 1978 on the basis of a statement prepared on 20 December 1977 by the office at Ispra responsible for settling claims.

3. On 2 March 1978 the applicant made a request under Article 90 (1) of the Staff Regulations concerning a loss of DM 326.22 which he had suffered upon reimbursement of his health expenses owing to the application of the system of exchange rates brought up to date.

4. This system, which replaces the system of fixed exchange rates, which, for weightings, took account of the par values used on 1 January 1965 for the conversion of Belgian francs into the currency of the country of employment, was adopted by the Commission on 6 November 1974. It was decided, as part of the solution of the administrative problems caused by currency fluctuations, that as regards the reimbursement of expenses, particularly sickness expenses under Article 72 of the Staff Regulations, the accounting officer of the Commission would be given the responsibility of issuing in the middle of each quarter the rates to be used from the commencement of the following quarter.

5. By a circular of 5 March 1975 the Central Office of the Joint Scheme laid down Implementing Provisions relating to the bringing up to date of Exchange Rates in the field of Sickness Insurance by which :

6. Article 71 (1) of the Staff Regulations provides that: An official, his spouse, his children and other dependants within the meaning of Article 2 of Annex VII are insured against sickness up to 80% of the expenditure incurred subject to rules drawn up by agreement between the institutions of the Communities after consulting the Staff Regulations Committee ...

7. Under Article 17 (1) of Annex VII to the Staff Regulations, Payment shall be made to each official at the place and in the currency of the country where he carries out his duties.

8. Article 9 (1) of the Rules on Sickness Insurance for Officials of the European Communities adopted, as regards the Commission, on 26 September 1974 provides that Persons covered ... shall be free to choose their practitioners and hospitals or clinics. Under Article 13 of those rules the latest date by which an application for reimbursement must be made is during the calendar year following that in which treatment was administered.

9. The applicant bases his application on the right given to officials by the Staff Regulations to be reimbursed a fixed percentage of actual sickness expenses incurred, and on the effect which the system of exchange rates brought up to date has on the principle of equality of treatment of officials according to whether they reside in a country with a strong currency or a country with a weak currency in relation to the one where the Community has its seat and the country where they are employed.

10. The Commission defends the choice of the day when treatment was given as the only date relevant for the calculation of the refund, arguing that exchange rate fluctuations between the different countries depend on the free world market over which it has no influence and that the interval, at times rather lengthy, between the provision of treatment and the submission of the claim for reimbursement to the office responsible for settling claims is largely in the hands of the claimant.

11. The difficulties of administering, in a period of floating exchange rates, a system such as that for refunding sickness expenses incurred in many different countries may justify the application of a single exchange rate during a whole quarter; but the delay which may occur between the day on which treatment is paid for and the day on which reimbursement is effected is likely to create inequality between officials according to whether they perform their duties in a country with a weak currency or in one with a strong currency. The existence of a time-limit within which claims for reimbursement must be made is enough to avoid speculative delays without thereby impairing the right of the claimant to receive the same amount of actual reimbursement irrespective of the country to which he is posted.

12. In the light of these considerations the Court holds that the principle of equal treatment of officials requires that the rate of exchange to be applied in the reimbursement of sickness expenses should be as close as possible to the rate on the date of reimbursement. The rate to be applied must therefore be that for the quarter in which the reimbursement is effected.

13. Since the defendant has failed in its action it must be ordered to pay the costs.

On those grounds, THE COURT (First Chamber) hereby:

1 Orders the Commission to reimburse to the applicant the difference between the amount of the sickness expenses calculated at the rate for the day on which treatment was received and the rate for the quarter in which reimbursement was effected;

2 Orders the defendant to pay the costs.