Opinion of Mr Advocate General Mayras

Mr President,

Members of the Court,

The three actions before the Court have been brought against the Commission by three of its officials. They are concerned with the conditions under which the tax abatement for dependent children is granted where both parents are officials of the Communities.

In order not to trespass upon the Court's time I take the liberty of referring to the report for the hearing for an account of the facts which have given rise to these cases and are moreover not disputed.

The applicants complain that the Commission refuses to grant an official of the Community having a dependent child the right to the tax abatement in question, the pretext being that the spouse, being also an official of the Community, also receives it. In their view this practice contravenes the relevant legal provisions and is ultra vires — that is their first submission; it also gives rise to discrimination against them — that is their second submission which they put forward in the alternative.

The provisions which in their first submission they claim have been contravened are:

The second subparagraph of Article 3 (4) of Regulation No 260/68 on taxation is the main provision at issue. It provides that: An additional abatement equivalent to twice the amount of the allowance for a dependent child shall be made for each dependent child of the person liable as well as for each person treated as a dependent child.... This provision therefore lays down, on the one hand, the principle of and, on the other hand, certain rules for the application of the tax abatement for a dependent child.

Article 2 (2) of Annex VII gives a definition of dependent child. It is not disputed that the applicants have dependent children within the meaning of the first subparagraph of Article 2 (2) or that the expression dependent child in the tax regulation is to be understood within the meaning given to it by that paragraph.

Article 2 (6) of Annex VII is a provision against overlapping of dependent-child allowances. It calls to mind the general principle against overlapping which is set out in Article 67 (2) of the Staff Regulations in relation to the family allowances referred to in that article.

It is also on the basis that the provision at issue is a tax provision that I shall consider the alternative submission which the applicants purport to base on breach of the principles of equal treatment, and of distributive justice and equity.

These breaches are alleged to occur when, as we have seen, a husband and wife are both Community officials and have a dependent child and only the spouse in receipt of the dependent-child allowance is entitled to the tax abatement, whereas, when the couple consists of an official and a person working outside the Communities, the official receives the tax abatement in any case, that is to say even if the spouse receives a comparable tax abatement under the rules governing his or her remuneration.

1. In the view of the defendant, who relies on the Court's judgment of 16 June 1971 in Joined Cases 63 to 75/70, Fritz August Bode and Others v Commission of the European Communities [1971] ECR 549, this comparison has no justification, because by taking into account a possible tax abatement in the system applicable to the pay of the spouse who is not a Community official it imports a factor which is extraneous to the administration and over which it has no control.

2. The Commission's second line of defence is the assertion that, if the comparison put forward is taken into account it does not establish the existence of discrimination, for, in accordance with the Court's judgment of 16 December 1960 in Case 6/60, Jean-E. Humblet v Belgian State [1960] ECR at pp. 579 and 580 the comparison must relate to the financial situation of the husband and wife taken as a whole.

3. Finally the Commission endeavours to turn to its own advantage the complaint made against it by asserting that the applicant's system itself gives rise to discrimination. In its opinion it discriminates against officials whose spouses are not in gainful employment and also against those whose spouses are gainfully employed in a State which does not operate the system of tax abatements provided for by Community provisions. Both can receive only one tax abatement per child, whereas, if the applicants' view is adopted, where the child's parents are both officials of the Communities, two tax abatements would be granted in respect of one child.

Since the applicants consider that the practice which they refuse to accept constitutes a wrongful act or omission they also claim that the Court should order the defendant to pay default interest or at least interest to be fixed by the Court. In this connexion the issue between the parties is the applicability to these joined cases of the solution contained in the Court's judgment of 9 July 1970 in Case 23/69, Anneliese Fiehn v Commission of the European Communities [1970] ECR 547 according to which apart from the exceptional instance the adoption of an incorrect interpretation does not constitute in itself a wrongful act (page 560).

In the defendant's view these cases do not disclose any exceptional factor allowing any departure from the principle. On the contrary they have one point in common with the Fiehn case, namely that they also constitute an interpretation of the contested provisions which is presumed to be incorrect.

On the other hand, the applicants, in order to rule out this principle, put forward two reasons — which cannot be distinguished from their two submissions in support of their application for annulment: the practice complained of is more than an incorrect interpretation of an ordinary provision, it is tantamount to distorting a provision which is unambiguous: it is also discriminatory since it is applied to some officials but not to others.

In order to determine this question I rely on the reasoning of the Court's judgment of 13 July 1972 in Case 79/71, Aio Heinemann v Commission of the European Communities [1972] ECR 589 according to which an action for damages is an independent legal remedy which cannot be equated with an action for annulment, because it originates in a wrongful act and not in an illegality.

In these cases I do not believe that the defendant administration has been guilty of such a wrongful act, which presupposes, as the well-established case-law of the Court has laid down, negligence on its part. In addition to the Fiehn judgment and the Heinemann judgment ([1972] ECR at pp. 589 and 590), which have already been quoted, mention must be made in this connexion of the similar case dealt with in the Court's judgment of 28 May 1970 in Joined Cases 19, 20, 29 and 30/69 Denise Richez-Parise and Others v Commission of the European Communities [1970] ECR at pp. 339 and 340 and in other fields of the judgment of 15 December 1966 in Case 62/65, Manlio Seno v Commission of the EAEC [1966] ECR at p. 571, of the judgment of 12 July 1973 in Joined Cases 10 and 47/72, Nunzio di Pillo v Commission of the European Communities [1973] ECR at p. 772 and of the judgment of 24 June 1976 in Case 56/75, Raymond Elz v Commission of the European Communities [1976] ECR at p. 1112.

Such negligence does not seem to me to have been proved, because, by carrying out the practice deservedly criticized by the applicants, the Commission has only complied, as it has expressly stated (Annex I to its defence), with the decisions adopted by the heads of administration pursuant to Article 10 of Regulation No 260/68, which, as we have seen, provided that there was to be inter-institútional cooperation for the purpose of applying the regulation in a uniform manner.

As a resuit of these considerations my opinion is that the Court should

I do not wish to conclude my opinion without adding an observation which I believe is not irrelevant, on the enforcement of the judgment to be delivered by the Court if it were to accord with my opinion.

In consequence of the annulment of the decisions at issue it will be for the defendant to pay the applicants the amounts corresponding to the overpayments of tax. But, contrary to the applicants' assertion in Cases 81 and 82/79, this payment can only cover tax relating to the salary statements which they received as from the third month preceding their complaint.

With reference to the preceding period the applicants' claims are in fact barred under Article 90 (2) of the Staff Regulations. Since the provision at issue, which has not been subsequently amended, entered into force as far back as 1968, that is to say well before they took up their duties with the Commission, which in the case of Mrs Sorasio-Allo was in 1973, and in the case of Mrs Aimo-Campogrande in 1974 and since their dependent children were alive on those dates, except for Mrs Sorasio-Allo's second child which was born in 1974, they should have submitted their complaints as follows:

1 Translated from the French.