Judgment of the Court (Sixth Chamber) 7 May 1992

In Case C-70/91 P,

THE COURT (Sixth Chamber), composed of: F. A. Schockweiler, President of the Chamber, G. F. Mancini, C. N. Kakouris, M. Diez de Velasco and J. L. Murray, Judges, Advocate General: M. Darmon, Registrar: J. A. Pompe,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 10 January 1992,

after hearing the Opinion of the Advocate General at the sitting on 19 February 1992,

gives the following

Judgment

I — The first plea

II — The second and third pleas

Costs

1. By application lodged at the Court Registry on 14 February 1991, the Council, pursuant to Article 49 of the EEC Statute and the corresponding provisions of the ECSC and EAEC Statutes of the Court of Justice, brought an appeal against the judgment of the Court of First Instance of 14 December 1990 in Case T-75/89 Brems v Council [1990] ECR II-899, in so far as the Court of First Instance considered the action brought by Mrs Brems for the annulment of the decision of the appointing authority of 29 November 1988 refusing to treat her son as a dependent child to be well founded.

2. In support of its appeal the Council puts forward the following three pleas in law:

3. Reference is made to the Report for the Hearing for a fuller account of the pleas and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

I —. The first plea

4. It follows from the scheme of Article 2 of Annex VII to the Staff Regulations that that provision covers two types of cases in which an official may receive allowances for a dependent child.

5. Paragraphs (3) and (5) of Article 2 concern cases where entitlement to the dependent child allowance for an official's child arises automatically by reason of the fact that it is presumed in those provisions that the child referred to in them is, solely on account of his being a minor, a student, a sick person or an invalid, in fact dependent on the official.

6. On the other hand, Article 2(4) provides that any person whom the official has a legal responsibility to maintain and whose maintenance involves heavy expenditure may, exceptionally, be treated as if he were a dependent child by special reasoned decision of the appointing authority, based on supporting documents. Accordingly that provision, on the one hand, requires the official concerned to establish that the two conditions laid down are satisfied and, on the other hand, allows the appointing authority a certain discretion in appraisal of the circumstances alleged in each particular case in support of the application for treatment as a dependent child.

7. Paragraphs (3) and (5) of Article 2 do not, therefore, cover only cases where the official may receive dependent child allowances. The object of Article 2(4) is precisely to ensure that a person may be treated as a dependent child in other cases where the official has in fact to maintain such a person, who is neither his minor child, adult child receiving educational or vocational training or sick or invalid child but who, like them, causes him to incur heavy expenditure.

8. It follows that Article 2(4) cannot be interpreted as precluding persons whom the official maintains, and who are in a different position from those referred to in Article 2(3) and (5), from being treated as dependent children.

9. Furthermore, the allowance in question, like the tax abatement for a dependent child, has an objective of a social nature (see the judgment in Joined Cases 81/79, 82/79 and 146/79 Sorasio-Allo v Commission [1980] ECR 3557) justified by the costs arising from a present and certain need connected with the child and its effective maintenance.

10. It follows that the exceptional nature of treatment as a dependent child constitutes the criterion for determining whether in each particular case the reasons of a social nature which underlie the treatment as a dependent child provided for in Article 2(4) of Annex VII to the Staff Regulations justify the grant of the allowance in question. On the other hand, that exceptional nature does not imply that the child of the official or of the applicant's spouse must necessarily be excluded from the scope of Article 2(4).

11. In those circumstances the Court of First Instance rightly considered at paragraphs 24 and 25 of the judgment that, since the purpose of Article 2(4) is to permit the appointing authority in exceptional cases to assist officials who incur heavy charges as a result of a legal obligation, the difference in nature of the powers conferred on the appointing authority, on the one hand, by Article 2(3) and (5) of the Annex and, on the other, by Article 2(4), and the general terms used in the latter provision ... show that the Community legislature did not intend to exclude from the scope of Article 2(4) a child who does not satisfy the conditions for granting dependent child allowance defined in Article 2(3) and (5), merely because he is the legitimate, natural, or adopted child of an official, or of his spouse, within the meaning of Article 2(2).

12. It follows from all the foregoing considerations that the first plea is unfounded.

II —. The second and third pleas

13. It should be noted, as a preliminary point, the Council's second and third pleas allege in substance that the Court of First Instance erroneously appraised the general implementing rules and in particular wrongly considered that Articles 3 and 7 of those provisions were unlawful in that they imposed minimum and maximum age-limits on persons treated as a dependent child.

14. It is therefore necessary to consider those two pleas together.

15. For the purpose of determining whether those pleas are well founded, it should be pointed out that the effect of the imposition by Articles 3 and 7 of the general implementing rules of minimum and maximum age-limits for persons treated as a dependent child is to exclude from the scope of Article 2(4) of Annex VII to the Staff Regulations all persons between the age-limits imposed by the abovementioned provisions even if the person is one in respect of whom the official has a legal responsibility to maintain and whose maintenance involves heavy expenditure within the meaning of Article 2(4).

16. Thus the effect of Articles 3 and 7 of the general implementing rules is not only to restrict the scope of a provision of the Staff Regulations but also to deprive the appointing authority of the opportunity to exercise its discretion in each particular case in accordance with that provision.

17. Furthermore, those articles of the general implementing rules run contrary to the objective of Article 2(4) of Annex VII to the Staff Regulations which seeks in a general way to deal with situations in which the official cannot claim the benefit of Article 2(3) and (5) although he is in fact responsible for the maintenance of a person who causes him to incur similar expenditure.

18. It follows from the foregoing that the Court of First Instance did not act contrary to Community law in holding in the contested judgment that Articles 3 and 7 of the general implementing rules were vitiated by illegality.

19. It follows that the second and third pleas are likewise unfounded.

20. Since none of the pleas put forward by the Council has been upheld, the appeal must be dismissed in its entirety.

21. Under Article 69(2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. Since the appellant has been unsuccessful, it must be ordered to pay the costs.

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

1 Dismisses the appeal;

2 Orders the appellant to pay the costs.

1 Language of the case: French.