Report for the Hearing delivered in Case 33/87

I — Summary of the facts

Vassili Christianos is an official of the Court of Justice of the European Communities. He is divorced. His ex-wife lives in Greece with their son, of whom she has custody.

Until May 1986, Mr Christianos received the family allowances himself, in the amount of LFR 15822. He then transferred that sum to his ex-wife.

By Regulation No 2074/83 of 21 July 1983 (Official Journal 1983, L 203, p.. 1) the Council adopted a number of provisions of a social and family nature. Anxious to ensure the regular payment of allowances, the Council amended Articles 67 and 68 of the Staff Regulations and also Articles 1, 2 and 3 of Annex VII thereto.

In particular, the regulation adds a paragraph (4) to Article 67 of the Staff Regulations, in the following terms:

Articles 1, 2 and 3 of Annex VII deal respectively with the household allowance, the dependent child allowance and the education allowance.

In substance, the new rules alter the previous position iin two ways. First, where children are entrusted to another person by operation of law or by virtue of a judicial decision or a decision of a competent administrative authority, the allowances are paid direct to that person on behalf and in the name of the official. Secondly, the amounts are now subject to the geographical weighting laid down for the country of residence of the person entitled to custody.

In accordance with the new rules, on 15 May 1986 the Personnel Division instructed the Finance Division to pay the family allowances to the applicant's ex-wife as from that date.

Consequently, the applicant's remuneration for May 1986 was reduced by LFR 15822, corresponding to the household allowance, the dependent child allowance and the education allowance. That sum represented DR 48680 at the official rate then applicable. His ex-wife's account was credited, however, with only DR 32520 after application of the weighting for Greece.

On 14 August 1986 the applicant submitted a complaint seeking annulment of the decision of the Head of the Personnel Division of 15 May 1986, in so far as it applied the weighting. He also asked that the administration of the Court should be instructed either to pay the family allowances direct to his ex-wife without application of the weighting or to pay them to him, subject to the obligation on his part to transfer them to his wife, if necessary under the supervision of the administration.

By a decision of 4 November 1986, the competent committee of the Court, having regard to the aims of the contested system of payment, expressly rejected the complaint.

II — Written procedure and conclusions of the parties

Mr Christianos's complaint was received at the Court Registry on 3 February 1987.

By order of 9 June 1987, the Court (Fourth Chamber) gave leave to the Commission of the European Communities to intervene in support of the defendant's conclusions.

By decision of 1 October 1987 of the President of the Court, the case was assigned to the First Chamber.

The written procedure followed the normal course. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court (First Chamber) decided to open the oral procedure without any preparatory inquiry.

The applicant claims that the Court should:

The defendant claims that the Court should:

The intervener claims that the Court should dismiss the application.

III — Submissions and arguments of the parties

To justify the admissibility of his claims, the applicant relies upon the judgment of 31 May 1979 in Case 156/78 Newth v Commission [1979] ECR 1941, in which the Court ordered adjustment of the applicant's account and payment of the arrears due to him.

He makes four submissions in support of his application.

Breach of the principle of equity

The strict and inflexible application of Article 67 (4) of the Staff Regulations leads, in the particular case of the applicant, to a profoundly unfair situation which directly prejudices both his interests and those of his minor son. The literal application of that provision leads to unforeseen results which run counter to the interests of the persons which it purports to protect.

Breach of the principle of the protection of legitimate expectations

The Court administration has applied abstract rules without taking account of the interests of the official concerned and the person entitled under him. Moreover, the administration did not draw his attention to the consequences which would flow from the application of that provision.

Breach of the principle of equality of treatment

Although conceding that the system at issue is intended to ensure equal treatment for people residing in different countries, the applicant claims that its application to him involves unequal treatment of officials and persons entitled under them.

Unjust enrichment

Having complained of unjust enrichment in his application, the applicant abandons that allegation in his reply and expresses the view that he and his son have been subjected to unjust impoverishment. However, in his view the fact remains that the mechanism of the new system is profoundly defective. If the administration had not intervened, his son would in fact have received, by way of family allowances, an amount greater than that received by him as a result of the application of Regulation No 2074/83.

Specifically, that also means that a Greek wife residing in Greece and having custody of a child receives less than a Greek wife who has declared Luxembourg as her place of residence and receives her allowances through her civil-servant husband's bank account in Luxembourg.

The defendant contends that the second, third and fourth heads of claim are inadmissible on the ground that it could not order the measures requested by the applicant. The latter's criticism is not in fact that the Court has misapplied a provision of the Staff Regulations which is beyond reproach but that it has applied a provision which the applicant alleges to be illegal. As the Court has held, in particular in the judgment of 20 March 1984 in Joined Cases 75 and 117/82 Razzouk and Beydoun v Commission [1984] ECR 1509, it is for the Community legislature alone to accept the consequences of the judgment of the Court and to take the necessary measures to bring to an end any discrimination found to exist, the administration of the Court being obliged in the mean time to apply the provisions of the Staff Regulations as in force.

Moreover, the applicant cannot rely on Newth in order to secure the measures he seeks. The issue here is not, as in Newth, interpretation of a provision to preclude inequality of treatment in a particular case but the application of an unequivocal provision, Article 67 (4) of the Staff Regulations.

The defendant then answers the applicant's arguments in the following terms.

The alleged breach of the principle of equality

There is nothing exceptional about the applicant's situation. Moreover, the changes to the Staff Regulations were desired by the Council which considered that it would be fairer and above all more consonant with the superior principle of equality as between the children of officials in all cases to apply to the amount of the allowances the weighting for the place of residence of the person actually having custody of the child. A measure of that kind was intended to ensure that children always received a sum which, irrespective of the currency — weak or strong — used for the payment, gave them equal purchasing power.

The alleged breach of the principle of protection of legitimate expectations, the duty to have regard for the interests of officials and failure to ensure sound administration

As regards the question of legitimate expectations, the defendant observes that the relationship between officials and the Community institutions is governed purely by regulations. As a result, officials cannot claim vested rights or, in particular, expect the status quo to be maintained in the future.

As regards the duty to have regard for the interests of officials, the Council, by adopting Regulation No 2074/83, fulfilled that duty by ensuring the due and prompt payment of family allowances.

The alleged breach of the principle of equal treatment

The principle of equal treatment has not been infringed since the principle embodied in the contested provisions is that of ensuring equality of the purchasing power of the sums paid to the person having custody of the children. Where that person is a third party, equality is ensured by application of the weighting for the person's place of residence.

The allegation of unjust enrichment

There has been no unjust enrichment. Moreover, the new rules engender greater fairness since the amounts paid to the person with custody of the children have the same purchasing power in real terms and ensure that the children enjoy the same standard of living.

The Commission, the intervener, supports the conclusions of the administration of the Court in their entirety. It emphasizes that it follows the same practice as the Court, as do all the other institutions.

Infringement of the principle of equity

The intervener points out that the payment is made in accordance with a mandatory provision in the name and on behalf of the official to the person having custody of the child. The allowance, like the payment to the person entitled, is calculated in Belgian francs. However, the Community legislature considered it justified to apply the geographical weighting in this case because it concluded that equal treatment for the children of officials would be better ensured in that way. Accordingly, the allowance is paid in full, in terms of purchasing power, in each case. The legislature thus had regard for the interests of officials' children by observing the principle of equity.

Breach of the principle of the protection of legitimate expectations

There is no frustration of legitimate expectations unless those expectations relate to an interest that is worthy of protection. The Community legislature deliberately established a link between the payment of the allowance to the person having custody and the application of the weighting. The expectation at issue is therefore entirely subjective and stems from ignorance of a provision of the Staff Regulations which officials are deemed to be acquainted with by virtue of its publication in the Official Journal.

Breach of the principle of equality of treatment

The Commission states that the application of the weighting to the payments in question is designed to uphold the principle of equality of treatment and certainly does not contravene it.

Moreover, the contested system does not lead to a loss of remuneration. The recipient is paid the allowances in an amount ensuring equality of purchasing power. Any difference, whether positive or negative, charged to the Community budget is a budgetary matter and no concern of the official.

Unjust enrichment

If the concept of unjust enrichment, which falls within the scope of private law, were to be relevant here there would have to be in addition a causative link betwen one person's loss and another's gain. However, neither the applicant nor his son has suffered any loss through the application of Article 67 (4) of the Staff Regulations.

1 Language of the Case: French.