Judgment of the Court of First Instance (Third Chamber) 3 December 1991

In Joined Cases T-10/90 and T-31/90,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber), composed of: C. Yeraris, President, B. Vesterdorf and K. Lenaerts, Judges, Registrar: H. Jung,

having regard to the written procedure and further to the hearing on 9 July 1991,

gives the following

Judgment

Facts

Procedure

The Belgian and Netherlands legislation on compulsory school attendance

Forms of order sought by the parties

Substance

The claims for education allowance

The school years completed by Yvonne and Marc before the age of five {the age of compulsory school attendance in the Netherlands) in a Netherlands school

The school years completed by Marc and Luc before the age of six (the age of compulsory school attendance in Belgium) in a Belgian school

Reimbursement of the cost of the psychological tests

Costs

1. The applicant, Michael Boessen, a former official of the Economic and Social Committee (hereinafter referred to as the Committee), is in receipt of an invalidity pension awarded by the defendant by decision of 20 January 1981.

2. The applicant is the father of three children: Yvonne, born on 19 November 1982, Marc, born on 18 August 1984, Luc, born on 14 February 1986.

3. The applicant's children attended the following schools:

4. By letter of 16 May 1989, the applicant sent the defendant three requests for education allowance, namely:

5. In response to the requests made by the applicant on 16 May 1989, the defendant by Decision No 191/89 A of 6 July 1989 accepted only his request for education allowance in respect of his daughter Yvonne for the 1988/89 school year.

6. By letter of 30 August 1989, the applicant requested education allowance in respect of his children Yvonne, Marc and Luc (Lanaken School) for the 1989/90 school year. It appears from the case-file that the applicant's requests were limited in so far as he applied for education allowance only from the first day of the month in which each child became four years old.

7. On 26 September 1989, the applicant after reiterating his previous requests for education allowance set out in his letter of 16 May asked to be paid Hfl 450 by way of reimbursement of expenses incurred for psychological tests taken by his daughter Yvonne for the purposes of her guidance during the 1988/89 school year and reimbursement of school transport costs incurred on behalf of his three children during the same school year.

8. On 4 October 1989, the applicant submitted a complaint pursuant to Article 90(2) of the Staff Regulations of Officials of the European Communities (hereinafter referred to as the Staff Regulations) against the Committee's Decision No 191/89 A of 6 July 1989.

9. By letter of 23 November 1989, the defendant informed the applicant that he was entitled to education allowance in respect of those children who had reached the age of five (the age of compulsory school attendance in the Netherlands since 1 August 1985) and were Netherlands nationals, provided that they attended a Netherlands school; he was entitled to education allowance for his daughter Yvonne as from 1 August 1987, but not for his son Marc, who was attending a Belgian school and had not yet reached the age of six, which is the age when compulsory education begins in Belgium. The defendant granted reimbursement of transport costs where it considered that there was an entitlement to education allowance; for the rest, it informed the applicant that reimbursement of expenditure incurred for psychological tests came under sickness insurance.

10. By Decision No 396/89 A of 6 December 1989, it amended the decision of 6 July 1989 so as to grant the request for education allowance in respect of Yvonne Boessen for the 1987/88 school year.

11. On 26 January 1990, the applicant submitted a complaint against the rejection, contained in the letter of 23 November 1989, of his request for the reimbursement of the expenditure incurred for the psychological tests taken by his daughter Yvonne and against the decision of 6 December 1989 to the extent that it did not fully grant his requests for education allowance.

12. It was under those circumstances that on 22 February 1990 the applicant brought before the Court of First Instance an application, registered under number T-10/90, in which he claimed, essentially, the annulment of the decision of 6 December 1989 in so far as it did not grant the requests which he had made on 16 May 1989. On 10 July 1990, the applicant brought a second application, registered under number T-31/90, in which he claimed, essentially, the annulment of the decision rejecting his requests of 30 August and 26 September 1989.

13. The written procedure followed the normal course. At the parties' request, the Court joined the cases by order of 13 November 1990 for the purposes of the oral procedure and the judgment.

14. Upon hearing the report of the Judge-Rapporteur, the Court decided to put the following questions to the Belgian and Netherlands Governments:

15. Upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure without any preparatory inquiry.

16. The Belgian Government provided the following information in answer to the questions put by the Court:

17. The Netherlands Government presented the following observations concerning compulsory schooling under the Netherlands education system:

18. In Case T-10/90, the applicant claims that the Court should:

19. In Case T-31/90, the applicant claims that the Court should:

20. Before presenting and examining the merits of the parties' arguments, it is appropriate to call to mind the content of the provisions constituting the legal background to the proceedings.

21. Article 3 of Annex VII to the Staff Regulations states that:

22. The applicant observes that the relevant provisions of the Staff Regulations mention no minimum age that a dependent child should have reached in order for there to be an entitlement to education allowance. Article 3 of Annex VII to the Staff Regulations simply requires that the child should be in regular fulltime attendance at an educational establishment. In that context, the applicant states that, since the law on primary education came into force in the Netherlands, a distinction has no longer been made between nursery education (kleuteronderwijs) and primary education (lager onderwijs) for which the system of basic education (basisonderwijs) has been substituted.

23. According to the applicant, Yvonne, Marc and Luc satisfied the criterion mentioned in Article 3 of Annex VII to the Staff Regulations as from 1 November 1986, 1 August 1988 and 1 February 1990 respectively, which dates correspond to the age at which, under Netherlands law, they could attend a basic educational establishment. According to the applicant, the fact that, owing to personal circumstances, he chose to have Marc and Luc attend a Belgian school for that teaching is irrelevant.

24. The applicant argues that, as the institutions of the European Communities do not themselves organize any education, it is clear that, in order to define the precise scope and meaning of the expression primary education, it is necessary to refer to the applicable national provisions. Neither the provisions of Article 3 of Annex VII to the Staff Regulations nor the General Provisions contain any element from which it may be inferred that education allowance is due only from the time when a child is subject to compulsory school attendance.

25. The defendant contends, first, that the purpose of both actions is to determine the date from which the applicant is entitled to the education allowances in question.

26. Since the relevant provisions are governed by Community law, they should be subject to a Community interpretation, as opposed to interpretation in the light of national legislation. The ratio legis of Article 3 of Annex VII to the Staff Regulations is that the allowance is due from the time a child is required to attend school. Primary school should therefore be considered the one corresponding to the first compulsory school. If the child attends a Belgian school, the age of compulsory school attendance in Belgium should serve as the criterion for the grant of education allowance. The defendant observes that a child of four years cannot attend a primary school in Belgium, as this is prohibited by the Belgian legislation. According to the defendant, the applicant's point of view amounts to introducing discrimination on grounds of nationality between children of the same age who attend the same school and receive identical teaching there.

27. Having regard to those arguments, the Court points out that the right to education allowance laid down in Article 3 of Annex VII to the Staff Regulations arises on the first day of the month in which a child starts to attend a primary educational establishment. The wording of that provision does not require that attendance by the child should be compulsory and there is no other factual or legal aspect to suggest that the grant of education allowance is precluded where a child starts to attend a primary educational establishment before he reaches the age of compulsory school attendance. That interpretation is borne out by the fact that, under Article 3 of Annex VII to the Staff Regulations, entitlement to education allowance does not expire until the end of the month in which the child reaches the age of 26 years, that is to say several years after the end of compulsory education.

28. It appears from that interpretation of the relevant provision that the entitlement to the allowance arises as soon as a child actually and regularly attends a primary educational establishment, even if he is not obliged to do so under the national legislation applying in the place of residence of the person who has legal custody of the child. The sole criterion is therefore whether the education received by the child is indeed primary education.

29. Mr Boessen, who resides in the Netherlands, is subject to Netherlands legislation, according to which he is required to ensure that his children are enrolled at an educational establishment and attend it regularly. That obligation arises on the first day of class in the month following that in which the child becomes five years old. Under that legislation, Mr Boessen may discharge that obligation by enroling his children as pupils in an educational establishment situated outside the Netherlands and by ensuring that they attend the abovementioned establishment regularly. The obligation as such remains the same.

30. In the present cases, it appears from the case-file and the reply of the Netherlands Government to the questions put by the Court that the education provided in a Netherlands basisschool satisfies the criterion of primary education laid down in Article 3 of Annex VII to the Staff Regulations.

31. It follows from the foregoing that the applicant is entitled to claim education allowance in respect of his children Yvonne and Marc for the school years during which they attended, from the age of four, a basisschool in the Netherlands, that is to say the 1986/87 school year as regards Yvonne and the 1988/89 school year as regards Marc.

32. As regards the school years during which the two children attended an educational establishment in Belgium, it should be observed that it appears from the case-file that the Netherlands authorities recognized the equivalence of the teaching provided in Belgium with that provided in a Netherlands basisschool for the purpose of Mr Boessen's satisfying his obligation to enrol his children as from the age of five at an educational establishment and to ensure that they attended it regularly.

33. It follows that education allowance is also due in respect of Marc for the 1989/90 school year.

34. As regards Luc's attendance at the Rijksbasisschool at Lanaken in Belgium during the 1989/90 school year, it appears from the case-file and the reply given by the Belgian Government to the questions put by the Court that he received nursery school education. In those circumstances, it must be held that the criterion laid down in Article 3 of Annex VII to the Staff Regulations was not satisfied. Consequently, the conditions for granting the education allowance were not met and the applicant's claim must to that extent be dismissed.

35. The contested decisions must therefore be annulled in so far as they refuse the applicant the benefit of education allowance in respect of Yvonne for the 1986/87 school year and in respect of Marc for the 1988/89 and 1989/90 school years. Consequently, the defendant must be ordered to pay the applicant the amounts of education allowance in question.

36. In the applicant's opinion, the expenditure incurred for the psychological tests taken by his daughter for the purposes of educational guidance are education costs which are not flat-rate costs and may be reimbursed on presentation of supporting documents. The tests carried out were exclusively for teaching purposes and were recommended to the applicant by the headmaster of the school. Consequently, the expenses concerned were neither medical expenses nor expenses for a psychological examination carried out as part of medical treatment.

37. The applicant observes that Section 1(3) of Annex I to the Rules on Sickness Insurance for Officials of the European Communities (hereinafter referred to as the Sickness Rules) adopted by the Community institutions, provides only for the reimbursement of psychological examinations carried out as part of medical treatment. Section XV of Annex I is a residuary item for medical services, it cannot be relied on as the basis for reimbursement either, since in the present case, psycho-pedagogical services were involved. Therefore the expenses in question would not have been reimbursed under the health insurance scheme since expenses of a medical nature were not involved.

38. According to the applicant, the expenses were extraordinary education costs of the kind listed in Article 3(a), (b) and (d) of the General Provisions, which, under Article 4 of the said General Provisions, are to be reimbursed upon presentation of supporting documents. He observes that Article 4 of the General Provisions provides that reimbursement of the expenses referred to in Article 3(a), (b) and (d) may be effected either by a monthly payment equal to one-twelfth of their total or by a single payment equal to the expenditure incurred during the school year.

39. The defendant alleges that the expenses in question would have been reimbursed at a rate of 80% on the basis of Section XV of Annex I to the Sickness Rules if the applicant had sought prior authorization in good time. According to the defendant, the actual nature of the expenses is determined, not by the authority which orders or recommends them, but by the elements comprising the expenditure to be refunded. It follows mat the intervention of a psychologist is intrinsically — and therefore remained in this case — a medical matter.

40. In its defence, the defendant maintained that the education allowance provided for in Article 3 of Annex VII to the Staff Regulations covered only ordinary education costs and that, in the absence of satisfying that requirement, the psychological tests in question could not be reimbursed as education costs. In its rejoinder, it argued that, if the applicant's arguments concerning the nature of the expenses relating to the psychological tests were correct, those expenses would fall within the category of expenses referred to in Article 3(c) of the General Provisions, which are covered by the education allowance and are to be reimbursed under Article 4(3) of the said provisions by payment of a flat-rate allowance.

41. Having regard to those arguments, it should be observed, in limine, that this aspect of the dispute comes down to determining whether or not the expenses incurred by the applicant for the psychological tests taken by his daughter for the purpose of providing her with educational guidance come within the category of education expenses which may be the subject of reimbursement within the framework of the education allowance provided for in Article 3 of Annex VIII to the Staff Regulations.

42. The Court finds that the expenses in question were incurred for the purpose of determining the type of teaching corresponding to the abilities and needs of the applicant's daughter. By virtue of their purpose, such expenses are education costs. They do not fall within Article 3(a) of the General Provisions, nor within Article 3(b) or (d). In contrast, they are reimbursable under Article 3(c), the non-exhaustive wording of which covers the various expenses relating to the completion of the programme of the educational establishment attended.

43. According to Article 4(2) of the General Provisions, reimbursement of the expenses referred to in Article 3(c) is to be effected by the payment of a flat-rate monthly allowance equal to a percentage of the amount laid down in the first paragraph of Article 3 of Annex VII to the Staff Regulations.

44. Under Article 4(3) of the General Provisions, the expenses mentioned in Article 3 that exceed the reimbursements provided for in Article 4(2) are to be reimbursed on presentation of supporting documents and up to an amount equal to that referred to in the first paragraph of Article 3 of Annex VII to the Staff Regulations.

45. It follows that the applicant is entitled to reimbursement of the expenditure incurred for the psychological tests taken by his daughter in so far as that reimbursement, taken together with the flat-rate allowance paid to the applicant under Article 4(2) of the General Provisions and with any reimbursement of other expenses paid upon presentation of supporting documents under Article 4(3) of those provisions, does not exceed the maximum amount laid down in the first paragraph of Article 3 of Annex VII to the Staff Regulations (see also the judgment of the Court of Justice in Case 43/79 Mencarelli v Commission [1980] ECR201).

46. It follows from the foregoing that the contested decisions must be annulled in so far as they refuse to reimburse to the applicant the cost of the psychological tests.

47. Since the Court is unable to determine from the documents presented by the parties whether the sum of Hfl 450 of which the applicant seeks the reimbursement exceeds the said maximum amount, it must be declared that the defendant has to reimburse to the applicant the expenses incurred for the psychological tests up to a maximum amount of Hfl 450, within the limit of the maximum amount laid down in Article 3 of Annex VII to the Staff Regulations.

48. Under the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for, unless the Court considers that the other party unreasonably or vexatiously caused it to incur costs. Since the defendant's application has failed in all essential respects, it must be ordered to pay all the costs in both cases, the objects of which were not identical.

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

1 Annuls Decision No 191/89 A of 6 July 1989 and Decision No 396/89 A of 6 December 1989 of the Economic and Social Committee in so far as they refuse the applicant the benefit of education allowance in respect of his daughter Yvonne for the 1986/87 school year and in respect of his son Marc for the 1988/89 and 1989/90 school years, and in so far as they refuse to refund to the applicant expenses incurred for psychological tests taken by his daughter Yvonne for purposes of educational guidance;

2 Orders the Economic and Social Committee to pay the applicant the education allowances in question and to reimburse the expenses incurred for the psychological tests up to the amount of Hfl 450 and subject to the maximum amount laid down by Article 3 of Annex VII to the Staff Regulations;

3 Dismisses the remainder of the application;

4 Orders the Economic and Social Committee to pay the whole of the costs.

1 Language of the case: Dutch.