JUDGMENT OF 5.7.1984 — CASE 115/83 OOMS v COMMISSION

In Case 115/83

THE COURT (Third Chamber) composed of: Y. Galmot, President of Chamber, U. Everling and C. Kakouris, Judges, Advocate general: G. F. Mancini Registrar: H. A. Rühi, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

A — Legal background to the dispute

1. Provisions regarding special reimbursement of medical expenses

2. Provisions of the Staff Regulations regarding remuneration and weighting

B — Origin and development of the dispute

II — Conclusions of the parties

III — Submissions and arguments of the parties

First submission alleging infringement of the provisions of Article 72 (3) of the Staff Regulations and Article 8 (2) of the Rules on Sickness Insurance

Second submission alleging breach of the principle of equality amongst officials

IV — Oral procedure

Decision

Costs

I —. Facts and procedure

A —. Legal background to the dispute

1. Provisions regarding special reimbursement of medical expenses

(1). When the expenses incurred are for treatment of the member or of a person covered by his insurance in a country where the cost of medical treatment is particularly high and the portion of expenses not reimbursed by the scheme places a heavy financial burden on the member, special reimbursement may be granted, on the basis of the opinion of the medical officer of the office responsible for settling claims, who shall assess the cost of the medical treatment, either by decision of the appointing authority of the institution to which the member belongs or by decision of that office if the requisite powers have been delegated to it by the said authority.

(2). When the non-reimbursed portion of the expenses ... which are incurred by a member... exceeds during any 12-month period half the average basic monthly salary or pension or ... half the average allowance received during the said period, the special reimbursement provided for in Article 71 (3) of the Staff Regulations shall be determined as follows :

2. Provisions of the Staff Regulations regarding remuneration and weighting

B —. Origin and development of the dispute

II —. Conclusions of the parties

1. Declare unlawful and annul the defendant's decision contained in the letter of 25 June 1982 from the office responsible for settling claims at Ispra in conjunction with the statement of 21 July 1982 and the decision of 9 March 1983 in reply to the applicant's complaint, in so far as the decision did not use the weighting as the basis for the calculation of the special reimbursement under Article 72 (3) of the Staff Regulations in conjunction with Article 8 of the Rules on Sickness Insurance for Officials of the European Communities;

2. Declare that the applicant is entitled to a special reimbursement under Article 8 of the Rules on Sickness Insurance for Officials of the European Communities and that for the calculation thereof the weighting referred to in Article 64 of the Staff Regulations must be applied to his basic salary;

3. Declare that the defendant must adjust the applicant's account pursuant to the decision to be adopted under 2. above;

4. Order the defendant to pay the arrears owing on the basis of the fresh calculation;

5. Order the defendant to pay the costs.

1. Dismiss the application as unfounded;

2. Order the applicant to pay the costs.

III —. Submissions and arguments of the parties

IV —. Oral procedure

1. By application lodged at the Court Registry on 14 June 1983, Mr Ooms, an official of the Joint Research Centre at Ispra, in Grade B 2, brought an action seeking:

2. It appears from the documents before the Court that the office responsible for settling claims at Ispra decided, on 25 June 1982, to calculate the special reimbursement of medical expenses sought by the applicant without applying to the basic monthly salary, which serves as a basis for that calculation pursuant to Article 71 (3) of the Staff Regulations, the weighting referred to in Article 64 thereof.

3. In a letter of 9 March 1983, the Commission rejected the complaint submitted by the applicant on 21 September 1982 and endorsed the opinion, dated 1 December 1982, of the Management Committee of the joint sickness insurance scheme, which the Commission had consulted and which had approved the decisions of the office responsible for settling claims at Ispra.

4. According to Article 72 (1) of the Staff Regulations, an official and his dependants are insured against sickness for up to 80% of the expenditure incurred subject to rules drawn up by agreement between the institutions of the Communities. The rate of 80% is raised to 100% in the cases of severe illness set out in that provision or recognized by the appointing authority as of comparable seriousness.

5. According to Article 72 (3) of the Staff Regulations :

6. The abovementioned provisions were supplemented by the Rules on Sickness Insurance. Article 8 (2) of those rules provides that:

7. Pursuant to the third paragraph of Article 62 of the Staff Regulations, on the other hand, remuneration comprises basic salary, family allowances and other allowances. According to Article 64 of the Staff Regulations :

8. In support of his conclusions, the applicant contends that the fact that only the basic salary is taken into account, without any reference to the weighting provided for in Article 64 of the Staff Regulations, leads to a : failure to observe the provisions at issue, whose purpose is to define the upper limit of the burden which each official may have to bear and, consequently, to take account of his real purchasing power. That practice also breaches the principle of equality of treatment which it is the very purpose of Articles 64 and 65 of the Staff Regulations to uphold.

9. In the Commission's view, the fact that neither Article 72 (3) of the Staff Regulations nor Article 8 (2) of.the Rules.on Sickness Insurance provides for weighting may be explained by the fact that, unlike the system of weightings the sickness insurance scheme is intended to guarantee, not the equality of purchasing power of officials, regard being had to living conditions in the various places of employment, but rather the reimbursement of expenditure actually incurred. The principle of equality of treatment is upheld inasmuch as a Community officials in the same category, grade and step are entitled, in all the places of work of the Community, to a special reimbursement of the same amount in respect of the same amount of medical expenditure incurred.

10. The Commission points out that the contributions to the joint sickness insurance scheme are not subject to the weighting provided for in Article 64 of the Staff Regulations. Article 23 of the Rules on Sickness Insurance provides that the amount of those contributions is fixed at a certain proportion of the basic salaries set out in Article 66 of the Staff Regulations, which excludes any possibility of taking account, in calculating them, oi the weightings provided for in Article 64.

11. Consistent as it may seem at first sight, that scheme can none the less not be isolated from the purpose of the provisions of the Staff Regulations in which it is contained.

12. In that connection, the particular characteristics of the special reimbursements provided for in Article 71 (3) of the Staff Regulations, which distinguish them from the ordinary reimbursements referred to in Article /2 (1), must be emphasized.

13. Whilst, in the context of Article 71 (1), all medical expenditure incurred by the member entitles him to reimbursement of an amount determined by the application of the rates and upper limits fixed by the Staff Regulations, a special reimbursement under Article 71 (3) is granted only when that part oí the medical expenditure which is not reimbursed exceeds a certain proportion of the official's salary.

14. It is clear from the aforementioned provisions that the ordinary reimbursements provided for in Article 71 (1) are based on objective circumstances and in particular on the application of upper limits and rates o reimbursement fixed by the Staff Regulations and identical for all Community officials, whilst special reimbursement is based on circumstances which are peculiar to the official's own situation and which are related to the fact, according to the circumstances provided for in Article 8 of the Rules on Sickness Insurance, that the portion of expenses not reimbursed places a heavy financial burden on him.

15. It follows from the foregoing that to assess correctly the extent of the financial burden placed on an official who is seeking a special reimbursement, the living conditions of the place of his employment must be taken into account and consequently the special reimbursement provided tor in Article 71 (3) of the Staff Regulations must be calculated, not solely in accordance with the salary referred to in Article 66, but on the basis of the real salary adjusted by the weighting provided for in Article 64 whose purpose is precisely to take account of the living conditions in the place ot employment.

16. The Commission contends, however, that if the Community legislature had wished to take account of the living conditions in the various places of employment, it would have made arrangements accordingly in respect of the entire system of maximum rates and upper limits of reimbursement applicable to reimbursement under Article 72 (1).

17. That argument cannot be accepted in so far as it does not take account of the specific characteristics of the special reimbursements provided for in Article 72 (3) as compared to reimbursements under Article 72 (1).

18. Regard being had to the purpose and structure of the aforementioned provisions, the contested decision determining the amount of the special reimbursement due to Mr Ooms must be annulled, and there is no need to consider the other submission put forward. The Commission must therefore be ordered to pay the difference between the amount already remitted and that of the special reimbursement calculated on the basis of the basic monthly salary weighted in accordance with Article 64 of the Staff Regulations.

19. Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. As the Commission has failed in its submissions it must be ordered to pay the costs.

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

1 Annuls the contested decision;

2 Orders the Commission to pay the difference between the amount already remitted and that of the special reimbursement calculated on the basis of the basic monthly salary weighted in accordance with Article 64 of the Staff Regulations;

3 Orders the Commission to pay the costs.