Opinion of Mr Advocate General Mischo
Mr President,
Members of the Court,
In this application the Commission seeks a declaration from the Court that, by providing that the family benefits payable under Belgian legislation are to be reduced by the amount of the family benefits which may be claimed under the Staff Regulations of Officials of the European Communities (the Staff Regulations') or the Conditions of Employment of Other Servants of the European Communities (the Conditions of Employment'), the Kingdom of Belgium has failed to fulfil its obligations under Article 67 (2) and the second paragraph of Article 68 of the Staff Regulations, Article 20 of the Conditions of Employment, Article 5 of the EEC Treaty and Articles 15 and 19 of the Protocol on the Privileges and Immunities of the European Communities (the Protocol).
The facts may be summarized by setting out in the order in which they were adopted the relevant provisions of Community and national law and the manner in which they have been applied.
1. Article 67 (2) of the Staff Regulations provides as follows: Officials in receipt of family allowances specified in this article shall declare allowances of like nature paid from other sources; such latter allowances shall be deducted from those paid under Articles 1, 2 and 3 of Annex VII (that is to say the household, dependent child and education allowances).
2. The main Belgian provision at issue is Article 60 of the laws consolidated by the Royal Decree of 19 December 1939 on family allowances for employed persons.
3. Royal Decree No 54 of 15 July 1982 amended the aforesaid Article 60, which now reads as follows: The amount of the family benefits shall be reduced by the amount of the benefits of like nature which may be claimed in respect of a child who is eligible pursuant to other laws or regulations in force in another country or by virtue of the rules applicable to the staff of an institution governed by public international law, even if the award of those benefits is described by the aforesaid provisions and rules as supplementary to the family benefits awarded pursuant to these laws.
4. Before considering the Commission's complaints, a preliminary remark is called for concerning the subject-matter of the dispute.
A — Infringement of Article 67 (2) of the Staff Regulations
In support of its conclusions, the Commission has relied principally on three submissions, namely:
A — Infringement of Article 67 (2) of the Staff Regulations
The Commission considers that it is clear from Article 67 (2) of the Staff Regulations that the Community legislature intended to limit the Community's financial burden by the deduction of family allowances paid from other sources, including Belgian institutions, from any supplementary allowances payable under the Staff Regulations. By incorporating in the contested royal decrees a provision of the same kind, but having precisely the opposite effect, the Belgian Government disregarded the primacy of Community law and, more particularly, the fact that the provisions of the Staff Regulations are directly applicable.
The defendant challenges the Commission's interpretation of Article 67 (2). In its view, that provision merely excludes the overlapping of benefits and is entirely without prejudice to the supplementary effect of allowances paid under certain provisions in relation to those paid under other provisions. In this case, the Belgian legislation, as amended by Royal Decree No 54, does not confer entitlement to the payment of family allowances. Accordingly, the condition that allowances of like nature should be paid from other sources is not fulfilled and the Community should pay in full the allowances provided for by the Staff Regulations. If the Council's intention had been, by means of Article 67 (2) of the Staff Regulations, to relieve the strain on the Community's finances by transferring responsibility for those allowances to the Member States, it should have imposed an obligation on the Member States to amend their rules on the award of family allowances so as to ensure that the primary responsibility for paying those allowances rested with them.
Let me say at once that the defendant has made it quite clear that it is not challenging either the direct applicability of the Staff Regulations or the primacy of Community law. It therefore draws the appropriate conclusions from the judgment of 20 October 1981 in Case 137/80, in which the Court recalled that the Staff Regulations of Officials were laid down by Council Regulation No 259/68 of 29 February 1968, which possesses all the characteristics set out in the second paragraph of Article 189 of the EEC Treaty under which a regulation has general application. It is binding in its entirety and is directly applicable in all Member States (paragraph 7 of the decision).
The Court added, in paragraphs 8 and 9 of its decision, that it follows that the Staff Regulations, in addition to having effects in the internal order of the Community administration, are binding on Member States in so far as their cooperation is necessary in order to give effect to those regulations, and that consequently, where a provision of the Staff Regulations requires national measures for its application, the Member States are bound under Article 5 of the EEC Treaty to adopt all appropriate measures, whether they be general or particular.
Belgium, like all the other Member States, is therefore under a duty to comply with the relevant provisions of the Staff Regulations and the Conditions of Employment, that is to say, it must refrain from adopting any measure which may jeopardize their application and, what is more, it must adopt all the appropriate measures needed to give full effect to those provisions.
That principle has been established and the question which now arises concerns the meaning and purpose of Article 67 (2) of the Staff Regulations — is it exclusively a rule against the overlapping of benefits, as the defendant claims, or is its purpose to make the family benefits payable by the Community supplementary to national benefits, which are to be paid first in order to limit the financial burden of the Communities?
In its judgments concerning Article 67 the Court has held that the manifest objective of Article 67 (2) is to prevent a couple from receiving family allowances twice in respect of the same children and that the aim oi Article 67 is to enable each family to receive only one household allowance.
At the time, moreover, the Commission itself took the view that the provisions of the Staff Regulations against overlapping benefits are solely concerned to prevent a couple from receiving family allowances twice in respect of the same children.
In my view the interpretation to the effect that the purpose of the provision in question is to limit the financial burden of the Communities is not convincing.
Article 67 (2) scarcely displays the features which might be expected in a provision of this kind.
Hence, although the reduction of the Community's financial burden may be a consequence of Article 67 (2), that is not the aim of the provision.
Article 67 (2) cannot be construed as imposing an obligation upon the Member States.
It may therefore be tempting to draw the conclusion that the Member States remain entirely free to regulate, in whatever manner they may consider appropriate, entitlement to family allowances for the spouses of Community officials.
An argument which supports that view may be derived from the Court's judgment of 23 April 1986 in Case 153/84 Ferraioli v Deutsche Bundespost [1986] ECR 1401. That judgment itself refers to the judgment of 13 November 1984 in Case 191/83 Salzano [1984] ECR 3741.
Those cases were concerned with the interpretation of Article 76 of Regulation No 1408/71, which provides that entitlement to family allowances in the migrant worker's country of employment is to be suspended if, by reason of the pursuit of a professional or trade activity, family benefits or family allowances are also payable under the legislation of the Member State in whose territory the members of the family are residing. In those cases the Court held that there is no suspension of entitlement to family allowances in the country of employment of one of the parents when the other parent resides with the children in another Member State and pursues there a professional or trade activity, but does receive family allowances for the children because not all the conditions of substance and of form laid down by the legislation of that Member State for the receipt of such allowances are satisfied.
Let me point out at once that there is a considerable difference between Ferraioli and this case inasmuch as the Commission is not refusing to pay the full amount of the family allowances payable under the Staff Regulations to Community officials whose spouses are gainfully employed in Belgium, if no family allowances are paid to them under one of the Belgian schemes.
However, the. Ferraioli case raises three interesting points which have a bearing on this case:
Clearly the Treaty was not intended to harmonize the social security schemes of the various Member States, and the family allowance scheme reflects the Member States' freedom of action in social security matters. Neither the social provisions of the EEC Treaty, that is to say Articles 117 to 122, nor Article 51 of the Treaty nor, as I have just demonstrated, the Staff Regulations or the Conditions of Employment impose any obligation to amend national legislation on family allowances in any particular manner.
Is it necessary, therefore, under Article 67 (2), merely to take cognizance of the relevant national rules? If those rules do not provide for the payment of family allowances for the spouses of Community officials or if they provide that the family allowances payable under national legislation are to be reduced by the amount of the family allowances payable under the Staff Regulations, have the Community institutions no option but to conclude that in that case it is the family allowances provided for by the Staff Regulations that are to be paid?
It must be acknowledged that at first sight that approach holds a certain appeal. However, I propose to examine a number of arguments which militate against it.
1. In Forcheri, cited earlier, the Court held that Community officials, including members of the family, must enjoy all the benefits flowing from Community law for the nationals of Member States in relation to freedom of movement, freedom of establishment and social security. In other words, Community officials, including members of the family, must remain subject to the ordinary rules of law in the country in which they reside, except where Community law provides otherwise.
2. There is, however, another consideration which in my view is decisive in this case. It may be summarized as follows:
B — Lack of prior consultation
As I have just expressed the view that the obligations imposed on the Member States by Article 5 of the Treaty and Articles 15 and 19 of the Protocol go beyond a duty of consultation, it is no longer necessary to consider this complaint made by the Commission.
C — Breach of the principle of equal treatment
The third submission relied upon by the Commission is inadmissible.
As the defendant rightly points out, this submission alleging discrimination against certain persons employed in Belgium, either because their spouse is an official or servant of the Communities or because they are themselves Community officials or servants but carry on another separate activity, was relied upon for the first time in the application instituting the proceedings. There is no reference to it either in the letter constituting formal notice or in the reasoned opinion. It is consistent case-law that the subject-matter of an application brought under Article 169 is determined by the Commission's reasoned opinion and ... therefore the two documents must be founded on the same grounds and submissions.
Furthermore, that is implicitly acknowledged by the Commission in its reply, and the fact that Belgium agreed, in its defence, to state its views on the question whether the submission was well founded cannot nullify its primary objection of inadmissibility.
Accordingly, with regard to the substantive aspect of this submission, I will confine myself to a few brief remarks.
It should be noted in the first place that this submission is based, in the reply, on arguments and facts which differ from those referred to in the application and that the Commission has altered its conclusions accordingly.
In its application it regarded as discriminatory the fact that certain persons covered by the Belgian social security scheme were deprived of the benefit of family allowances whilst being required to pay the relevant contributions and even a special contribution introduced for single persons and childless families by Royal Decrees No 129 of 30 December 1982 and No 227 of 9 December 1983.
In its reply, the Commission confined itself to criticizing the fact that persons who are employed in Belgium but whose children are eligible for family allowances paid by the Community are not entitled to other special family allowances under Belgian legislation, such as the holiday allowance, which do not exist under Community law.
On the whole, I do not believe that the allegation of discrimination between workers can be upheld in this case. In the first place, I consider, and I repeat, that there is no discrimination on grounds of nationality since the relevant Belgian legislation is applicable without distinction to all persons employed in Belgium.
Moreover, the Commission itself acknowledges this in its reply (p. 5) when it states that the principle of solidarity on which social security is based compels all workers (under the scheme for self-employed persons) and all employers (under the scheme for employed persons) to pay contributions even if the workers concerned are not eligible for allowances.
Finally, the position of employed persons who receive family allowances in respect of their children under provisions other than the relevant Belgian legislation is certainly different from that of their colleagues who do not receive such allowances. Their position is not objectively comparable, and consequently the distinction made between the two is not discriminatory.
It must be remembered that in several Member States different rules apply according to the socio-professional class to which an employed person belongs, which are not regarded as discriminatory. Thus certain schemes, but not others, provide for payment of a contribution by the employed person himself.
Those considerations also apply to the special contribution introduced for single persons and childless families.
Admittedly, the fact that the Belgian legislation deprives certain persons of benefits in respect of dependent children first and then requires them to pay the special contribution introduced for childless families may cause some astonishment.
However, that practice does not constitute discrimination on grounds of nationality since the Belgian spouses of Community officials are, for those purposes, in the same position as spouses of another nationality.
With regard to the allegation of discrimination in relation to certain special allowances such as the holiday allowance, I would point out that the royal decrees complained of entered into force on 1 August 1982 and that family holiday allowances were abolished as from 1 January 1983 by Royal Decree No 131 of 30 December 1982.
Moreover, family holiday allowances were as a rule paid in May each year. Accordingly, subject to any exceptions — which have not been established by the Commission — no family holiday allowances have been payable since 1 August 1982.
Finally, it is not apparent from the documents before the Court that other specific and distinct family allowances normally payable in Belgium have not been or are not being paid to those employed persons whose children are eligible for the family allowances paid by the Community.
On the contrary, the defendant is aware, as is apparent from its rejoinder, that if such allowances were payable, it would not be authorized to withhold them from persons who qualify for the family allowances paid by the Community since the Court has held in its judgments in Cases 106/76 and 14/77, cited earlier, that allowances intended to meet special requirements or ex gratia payments granted on extraordinary grounds are not to be regarded as allowances of like nature coming within the scope of Article 67 (2) and the second paragraph of Article 68 of the Staff Regulations or Article 20 of the Conditions of Employment.
I therefore conclude that the Commission's third submission, if it were admissible, would have to be rejected as unfounded in this case.
Having regard to the foregoing considerations, I suggest that the Court declare that, by adopting Royal Decree No 54 of 15 July 1982 amending Article 60 of the consolidated laws on family allowances for employed persons and the Royal Decree of 19 November 1982 amending the Royal Decree of 8 April 1976 governing family benefits for self-employed persons, the Kingdom of Belgium has failed to fulfil its obligations under Article 5 of the EEC Treaty and Article 19 in conjunction with Article 15 of the Protocol on the Privileges and Immunities of the European Communities.
As I have come to the conclusion that one of the submissions put forward by the Commission is inadmissible, or alternatively unfounded, and that another of its submissions cannot be upheld, I suggest that the Commission be ordered to bear one half of its own costs and that Belgium be ordered to pay the remainder of the costs.
1 Translated from the French.
2 Commission v Belgium [1981] ECR 2393.
3 Judgments of 13 October 1977 in Case 106/76 Deboeck v Commission [1977] ECR 1623 and in Case 14/77 Emer v Commission [1977] ECR 1683.
4 Judgment of 11 October 1979 in Case 142/78 Exner v Commission [1979] ECR 3125.
5 See the Facts and Issues part of the Deboeck judgment, at p. 1629.
6 The obligations imposed by that article also apply in relation to the Staff Regulations and the Conditions of Employment, which were adopted pursuant to Article 24 of the Treaty of 8 April 1965 establishing a single Council and a single Commission of the European Communities.
7 According to Article 239 of the EEC Treaty, the Protocol forms an integral part of the Treaty.
8 Judgment of 15 December 1982 in Case 211/81 Commission v Denmark [1982] ECR 4547. See also the judgment of 7 February 1984 in Case 166/82 Commission v Italy [1984] ECR 459.