JUDGMENT OF 7. 2. 1980 — CASE 43/79 MENCARELLI v COMMISSION

In Case 43/79

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 3 of Annex VII to the Staff Regulations, as amended by Article 1 of Council Regulation No 3084/78 of 21 December 1978 (Official Journal 1978 L 369 p.l), provides that:

2. Article 4 of the same General Provisions provides that:

II —. Conclusions of the parties

1. The applicant in his reply claims that the Court should:

2. Commission contends that the Court should:

III —. Submissions and arguments of the parties

1. In his application the applicant states that the expenses of board and lodging at the school are reimbursable because they are -not excluded either by Article 3 of Annex VII to the Staff Regulations or by Article 3 of the General Implementing Provisions for Granting the Education Allowance, in which the list of exclusions is exhaustive.

2. In its defence the Commission argues first of all that the dispute does not concern the right to twice the amount of thé education allowance since the applicant is entitled to the reimbursement of the actual education costs provided for in Article 3 of the abovementioned General Implementing Provisions up to a maximum amount equal to twice Bfr 3302. The dispute turns solely on the nature of the expenses which may be reimbursed up to an amount equal to twice the education allowance.

3. In his reply the applicant emphasizes that the alternative put forward in Mr Gubernator's note of 20 June 1978 cannot be reconciled with the recognition in the Commission's defence of the right to twice the amount of the allowance.

IV —. Oral procedure

1. By an application dated 15 March 1979 the applicant, an official at the Joint Research Centre, Geel, claims the annulment of the implied decision rejecting a complaint submitted by him on 28 August 1978 under Article 90 of the Staff Regulations of Officials concerning his entitlement to twice the amount of the education allowance pursuant to Article 3 of Annex VII to the Staff Regulations.

2. The applicant's daughter was enrolled from the school year 1977/78 at the Centre d'Education et de Culture de l'Institut de l'Enfant Jésus, Brussels, since the class adviser at the European School at Mol which she previously attended had recommended that she should follow another type of teaching better suited to her abilities. The costs of lodging at the Institut amounted to Bfr 25000 per annum and the boarding costs to Bfr 3500 per month.

3. The applicant was notified by the Directorate General of Personnel of the Commission in a letter of 21 April 1978 that the file which he had submitted would be transmitted to the relevant department with a recommendation for payment of the double education allowance. It was nevertheless made clear that it was a condition of granting the allowance that he should submit the necessary supporting documents.

4. By a note of 20 June 1978 the Administration of the Centre at Geel notified the applicant that the costs of board and lodging for his daughter could not be reimbursed but that, since the school which she attended was closed at the weekend her transport expenses (Bfr 650 per month) would be reimbursed. Two alternatives were put before the applicant: either payment of 50 % of the single allowance supplemented by justifiable transport costs up to Bfr 650 per month or continued payment of the single allowance.

5. The Commission failed to reply to the complaint which the applicant lodged under Article 90 of the Staff Regulations. Such failure to reply must thus be considered as an implied rejection by the Commission of the applicant's complaint.

6. Article 3 of Annex VII to the Staff Regulations as amended by Article 1 of Council Regulation No 3084/78 of 21 December 1978 (Official Journal L 369, p. 1), provides that:

7. Pursuant to Article 3 of the General Implementing Provisions for Granting the Education Allowance (Administrative Notices No 153 of 2 May 1977) the education allowance, whether or not doubled as aforesaid, covers:

8. Article 4 of the same General Provisions provides that:

9. The applicant understood the note of 20 June 1978 as refusing him both the double amount and the reimbursement of costs which, in his view, were the unavoidable consequence of the education of his daughter in Brussels, that is the costs of board and lodging. In fact the dispute ultimately turns not on the right to twice the amount of the education allowance, granted to the applicant up to the limit of the reimbursement of actual education costs provided for in Article 3 of the abovementioned General Implementing Provisions up to an amount equal to twice Bfr 3302, but on the nature of the costs which may be reimbursed up to twice that amount.

10. The applicant claims that the cost of board and lodging incurred in respect of his daughter may be reimbursed since it is not excluded either by Article 3 of Annex VII to the Staff Regulations or by Article 3 of the General Implementing Provisions. He states that it is covered by Article 3 (c) under the reference to other expenses connected with following the curriculum and arises because the child is accommodated away from the family home.

11. The Commission does not dispute that, for imperative reasons, the second paragraph of Article 3 of Annex VII to the Staff Regulations applies to this case.

12. Nevertheless the Commission considers that the list of expenses covered by the allowance and contained in Article 3 of the General Implementing Provisions is exhaustive and does not include those which form the subjectmatter of the proceedings. Board and lodging costs do not, it claims, constitute expenses connected with following the curriculum, such as expenses incurred for the purchase of books, school equipment, sports outfit ....

13. It is impossible to uphold in its entirety the final argument of the Commission to the effect that the expenses of board and lodging are already covered by the monthly dependent child allowance and by the entitlement to the single education allowance without the submission of supporting documents establishing that education costs up to that amount have actually been incurred.

14. In fact whilst it is true that the boarding costs must be paid by the head of the family whether a child takes his meals at the educational establishment which he attends or at home it must also be recognized that the cost of lodging at such an establishment is an addition to the expenses normally borne by the head of household and must accordingly be regarded as constituting expenses which justify the grant of the education allowance up to twice the amount on presentation of supporting documents.

15. In this case the applicant must accordingly be reimbursed the actual education costs including the cost of accommodation for his daughter at the Institut de l'Enfant Jésus, being Bfr 25000 per annum up to an amount equal to twice Bfr 3302 per month.

16. Pursuant to Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs. Since the defendant has been unsuccessful it must be ordered to pay the costs.

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

1 Orders the reimbursement to the applicant of the actual education costs including the cost of accommodation for his daughter at the Institut de l'Enfant Jésus up to an amount equal to twice the sum provided for in Article 3 of Annex VII to the Staff Regulations of Officials;

2 Orders the Commission to pay the costs.