Opinion of Mr Advocate General Van Gerven
Mr President,
Members of the Court,
1. The question raised in this case is whether an official on unpaid leave on personal grounds is covered under the Sickness Insurance Scheme common to the institutions of the European Communities (hereinafter referred to as the joint scheme) without having to contribute thereto if his or her spouse is also an official.
Admissibility
2. In order to determine whether the appeal was lodged within the prescribed period, it is necessary to identify the act adversely affecting the applicants.
3. However, the Commission does not state the date on which the memorandum of 6 February 1987 was notified, or the date on which Mrs Olbrechts, to whom it was addressed, actually took cognizance of it. The Commission's representatives were questioned on this point at the hearing, but could only point to the silence of the applicants, who neither deny having received the memorandum not claim any delay in its notification. They were unable, however, to provide any evidence of a specific date on which the decision adversely affecting the applicants was notified to them.
4. The applicants presented the document of 27 May 1987 in the form of a request under Article 90(1) of the Staff Regulations. The Commission was right, in my view, to treat that request as a complaint under Article 90(2) of the Staff Regulations. Article 90(1) applies only in cases where no decision relating to the official has yet been taken.
Substance
The relevant provisions
5. Let us look briefly at the rules currently in force, starting with those which apply to officials in general.
6. Next, let us look at the relevant provisions applying to officials on unpaid leave on personal grounds.
Analysis
7. Let it be said from the outset that the applicants' action appears to me, as the rules stand, to be well founded. I shall set out below the reasoning which leads me to propose that the Court should rule accordingly.
8. It is first necessary to determine the scope of Article 72(1) of the Staff Regulations. In my view, that provision does not explicitly cover the situation of an official of the European Communities who is also the spouse of an official of the European Communities. The authors of the Staff Regulations clearly had in mind the situation where one of the two spouses is an official. That is why the article lays down the requirement, with regard to the spouse, that he or she should not be eligible for sickness cover under any other scheme (see the Court's judgment of 8 March 1988 in Case 339/85 Brunotti v Commission [1988] ECR 1379, paragraph 11).
9. That initial finding already makes it possible at this stage to dismiss the Commission's alternative argument based on the terms of Article 72(1) of the Staff Regulations. Under that provision, a spouse is entitled to sickness cover only if he or she is not eligible for benefits of the same nature and of the same level by virtue of any other legal provision or regulations. The Commission stresses the words underlined above. Since an official on leave on personal grounds has the opportunity of contributing to the joint scheme in order to obtain cover, the Commission concludes that such an official does not fulfil the requirements laid down in Article 72 of the Staff Regulations to qualify as a person covered by his or her spouse's insurance.
10. Although Article 72 does not explicitly cover the situation of a spouse of an official who is also an official, it does embody the principle which makes it possible to deal with that situation under the implementing rules. As the Court pointed out in its judgment in Brunotti, that article is based on the idea
11. In view of the terms used in Article 3 of the Rules, which is the only provision referring explicitly to the case in which a husband and wife are both officials and thus members, the question is whether or not an official on leave on personal grounds is a member of the sickness insurance scheme. The answer is provided in the first subparagraph of Article 40(3) of the Staff Regulations, according to which, during an official's leave on personal grounds,
12. The Commission submits that the reference in that provision to the suspension of cover for risks in addition to that of membership would serve no purpose if the authors had intended to maintain free cover for an official on leave on personal grounds as the spouse of an official who was a member.
13. Further in the alternative, the Commission submits that Article 3 of the Rules is to be interpreted so as to render it compatible with the provisions of the Staff Regulations. Following that reasoning, it considers that an official on leave on personal grounds remains a member of the joint scheme, even though the effects of that membership are suspended, so that Article 3(1) of the Rules cannot apply to him or her.
14. It follows from the foregoing that an official on unpaid leave on personal grounds whose membership of the scheme is suspended under the first subparagraph of Article 40 (3) of the Staff Regulations must, in principle, be considered not to be a member. Such an official therefore satisfies the first requirement laid down in Article 3(1) of the Rules in order to be covered by the insurance of his or her spouse if the latter is an official. In so far as he or she also satisfies the remaining requirements laid down in the relevant provision, he or she is automatically covered against sickness, in my view, by the mere fact of the spouse's insurance.
15. It follows, equally, that an official on unpaid leave on personal grounds who satisfies the requirements laid down in Article 3 of the Rules need not apply for optional cover under the second subparagraph of Article 40(3) of the Staff Regulations. Consequently, an official on leave on personal grounds who is also the spouse of an official does not have to pay contributions in order to be insured against sickness.
16. In conclusion, I propose that the Court should:
1 Original language: French.
2 See, most recently, the Court's judgment of 27 April 1989 in Case 192/88 Tumsrv Commission [1989] ECR 1017.
3 Case 54/77 Herpelsw Commission [1978] ECR 585.
4 Case 115/83 Oomsv Commission [1984] ECR 2613.
5 Case 108/79 Belfiore v Commission [1980] ECR 1769.
6 Al the hearing, the Commission's representatives referred to preparations with a view to amending the provisions concerned, but did not specify what amendments were envisaged
7 Article 73 of the Staff Regulations governs cover against the risk of occupational disease and accident.
8 If an official on unpaid leave on personal grounds decides to avail himself of the possibility afforded by the second subparagraph of Article 40(3) of the Staff Regulations, he or she is again considered to be a member of the joint scheme, in accordance with Article 4(2) of the Rules.
9 Tne remaining requirements are: not to be gainfully employed or, if gainfully employed, to be covered by a public sickness insurance scheme and to comply with the requirement that the employment in question does not provide income over a certain limit (see point 5 above).