Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. The parties to the case which the Court is called upon to decide are an official and the administration of a Community institution: the official claims payment of a household allowance and the institution denies any obligation to pay it to her. The dispute between them is in essence merely a problem of interpretation: the Court must determine whether an official who has been granted the allowance provided for in Article 2 (4) of Annex VII to the Staff Regulations in respect of a person treated as if he were a dependent child may, under Article 1 (2) (c) of the same annex, be granted the household allowance. The case is of particular interest because there are no exact precedents.

2. A word about the admissiblity of the application: according to the Council, of the two administrative decisions of which the applicant seeks annulment — that of 5 July 1982 adopted by the Director of Administration and that of 17 February 1983 signed by the Secretary-General — only the second may be contested in legal proceedings because only that decision reflects the intention of the appointing authority. I should point out, however, that if that observation were correct, all three claims set out in the application would be inadmissible, as well as the complaint against the decision contained in the memorandum of 5 July 1982. Suppose in fact that the measure in question had no adverse effect: under Article 90 (2) of the Staff Regulations a complaint could not even be made against it and the fact that the complaint was vitiated would reflect upon the admissibility of the action. But in fact the objection is without foundation. In other words, the memorandum of 5 July 1982 may be the subject of a complaint.

3. I shall now consider the substance of the case. As I have already said, the provision which the Court is asked to apply is Article 1 (2) (c) of Annex VII. I quote the text thereof: The household allowance shall be granted to: ... (c) by special reasoned decision of the appointing authority based on supporting documents, an official who, while not fulfilling the conditions laid down in (a) and (b) [that is to say who is not married, widowed, divorced, legally separated or unmarried and has one or more dependent children], nevertheless actually assumes family responsibilities.

4. However, the Council's legal adviser contests the interpretation which I have given of Article 1 (2) (c) from a different standpoint: the fact that it is liable to lead to inequality of treatment as between officials. That is to say, it would favour an official who takes the person whom he maintains into his own home by comparison with an official who bears the expenses of having that person looked after in an appropriate establishment or at least outside the family circle. However, being the same, the two situations should be treated in the same way and that means that, at least as: a rule, the household allowance cannot be paid in either case.

5. In view of those considerations, all that remains is to ascertain whether in fact in this case the conditions for the grant of the household allowance to the applicant are satisfied. In my opinion, the answer can only be affirmative.

6. In view of all the foregoing considerations, I suggest that the Court give judgment in favour of Gabriella Erdini in the action brought by her against the Council of the European Communities by application of 22 April 1983 and therefore declare that the applicant is entitled as from 23 July 1981, the date on which the application for an allowance was submitted to the administration, to receive a household allowance from the defendant institution under Article 1 (2) (c) of Annex VII to the Staff Regulations.

1 Translated from the Italian.