Facts
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:
Yvonne
De Kring School ("basisschool"), Maastricht (the Netherlands), during the 1986/87 school year;
She attended the same school during the 1987/88 school year;
A school ("Rijksbasisschool")at Lanaken (Belgium)during the 1988/89 and 1989/90 school years.
Marc
De Kring School, Maastricht, during the 1988/89 school year;
the school at Lanaken during the 1989/90 school year.
Luc
The school at Lanaken during the 1989/90 school year.
4 By letter of 16 May 1989, the applicant sent the defendant three requests for education allowance, namely:
a request in respect of his daughter Yvonne (De Kring School)for the 1986/87 school year;
a request in respect of his daughter Yvonne (De Kring School)for the 1987/88 school year;
a request in respect of his daughter Yvonne (Lanaken School)and his son Marc (De Kring School)for the 1988/89 school year.
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.
Procedure
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:
(1)From what age is a child subject to the obligation to attend school?
(2)Which years of primary education are compulsory?
(3)Which years - if any - of nursery school are compulsory?
15 Upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure without any preparatory inquiry.
The Belgian and Netherlands legislation on compulsory school attendance
16 The Belgian Government provided the following information in answer to the questions put by the Court:
"1. As far as concerns children of foreign nationality who live in Belgium (Flanders)with persons exercising parental authority over them or having custody of them, the Law concerning compulsory school attendance (of 29 July 1983)applies as from the 60th day following the date on which they were registered on the aliens register or on the population registration of the municipality in which they have their residence.
2. Compulsory school attendance in Belgium starts on the first day of the school year in which the child reaches the age of six and finishes at the end of the school year in which the child reaches the age of 18.
3. In principle, each child' s compulsory school attendance starts during the first school year of primary education. However the child may also:
follow the first year of primary education from the age of five, in which case, however, he will not be subject to the constraints of compulsory school attendance (in particular daily attendance at school);
attend the first year of compulsory school attendance in a nursery school, in which case the child is required to attend the school regularly.
...".
17 The Netherlands Government presented the following observations concerning compulsory schooling under the Netherlands education system:
"For the purposes of the present question the relevant laws are the Leerplichtwet of 1969 (Law of 1969 on compulsory education)(Staatsblad 1971, 406)and the Wet op het Basisonderwijs (Law on basic education)(Staatsblad 1986, 256).
Under the Leerplichtwet, there is a dual obligation regarding compulsory education. First, the parents must ensure that, for as long as he or she is of an age where school attendance is compulsory, any minor is enrolled at an educational establishment. Secondly, the parents are required to ensure that the minor regularly attends the establishment at which he or she is enrolled.
Under Article 3(1)of the Leerplichtwet of 1969, the obligation on parents to ensure that a minor is enrolled at an educational establishment becomes effective on the first day of class in the month following the month in which the child became five years old. Article 3(2)of the Leerplichtwet of 1969 provides that the obligation to be enrolled ceases at the end of the school year marking the attendance by the minor of one or more educational establishments for at least 12 complete school years, or at the end of the school year during which he reached the age of 16 years.
The obligation to ensure that a minor regularly attends the educational establishment at which he or she is enrolled starts on the day on which he is admitted to the establishment following enrolment and comes to an end at the same time as the obligation to ensure that he is enrolled as a pupil at an educational establishment (Article 4).
Since the entry into force of the Wet op het Basisonderwijs on 1 August 1985, the Netherlands has ceased to have separate primary education but the former separate forms of nursery and primary education have been brought together as basic education.
Under Article 2 of the Wet op het Basisonderwijs, basic education starts at the age of about four years. Admission to basic education is regulated in greater detail by the Toelatingsbesluit Wet op het Basisonderwijs (Decree concerning admission to school adopted pursuant to the Law on basic education)(Staatsblad 1984, 527). Article 1 of that decree provides that children must have reached the age of four in order to be admitted as pupils to a basic educational establishment.
Comparison of the Wet op het Basisonderwijs and the Leerplichtwet of 1969 shows, consequently, that the age of admission to a basic educational establishment (four years of age)does not coincide with the beginning of compulsory schooling (five years of age). That difference is explained by the fact that it was thought necessary at the time to follow the development which had emerged during the years leading up to the entry into force of the Wet op het Basisonderwijs when all five-year-olds attended what was then nursery school.
The length of attendance of basic education is laid down in Article 11(1)of the Wet op het Basisonderwijs. According to that article, pupils may in principle attend the establishment for a period of eight consecutive years. However, the pupil leaves the basic education establishment when, in the opinion of the headmaster (and provided that the parents agree), the pupil has acquired a sufficient grounding to move on to secondary education. That will generally be the case when the pupil reaches the age of 12. In any event, pupils leave the basic educational establishment at the end of the school year in which they reach the age of 14 years (Article 4(2)of the abovementioned decree concerning school admission)."
Forms of order sought by the parties
18 In Case T-10/90, the applicant claims that the Court should:
(1)Annul Decision No 396/89 A of 6 December 1989 of the Secretary General of the Economic and Social Committee, but only to the extent that it refused the requests he made on 16 May 1989;
(2)Order the defendant to grant and pay him the education allowances for which he applied in his requests of 16 May 1989;
(3)Order the defendant to pay the costs.
The defendant contends that the Court should:
(1)Declare the application admissible but unfounded;
(2)Consequently, dismiss the application;
(3)Make an appropriate order as to costs.
19 In Case T-31/90, the applicant claims that the Court should:
(1)Annul the defendant' s implied decision of rejection in so far as that decision rejects the requests he made on 30 August and 26 September 1989;
(2)Order the defendant to grant and pay him:
(1)in respect of Marc, the flat-rate education allowance as from 1 August 1989, by way of continuation of the education allowance already claimed by the applicant for the 1988/89 school year, but together, as from 1 August 1989, with the reimbursement of transport costs;
(2)in respect of Luc, the flat-rate education allowance, together with the reimbursement of transport costs, as from 1 February 1990;
(3)in respect of Yvonne, reimbursement of Hfl 450 by way of expenses incurred for psychological tests carried out during the 1988/89 school year;
(3)Order the defendant to pay the costs.
The defendant contends that the Court should:
(1)Declare (both)applications admissible but unfounded;
(2)Consequently, dismiss the application;
(3)In any event impute the costs and disbursements associated with one of the actions to the applicant in so far as he has submitted the same question of principle to the Court twice.
Substance
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:
"An official shall receive an education allowance equal to the actual education costs incurred by him up to a maximum of ... for each dependent child ... who is in regular full-time attendance at an educational establishment.
...".
The General Implementing Provisions for the Granting of Education Allowances (hereinafter referred to as the "General Provisions"), adopted by the defendant by Decision No 738/75 A of 24 February 1975, as amended by Decision No 1544/78 A of 28 June 1978, state inter alia:
"Article 2
Entitlement to an education allowance shall commence on the first day of the month in which the child begins to attend a primary educational establishment.
Entitlement to education allowance shall cease at the end of the month in which the conditions of entitlement to this allowance are no longer fulfilled and at the latest at the end of the month in which the child reaches the age of twenty-six ..."
"Article 3
Within the limit of the maximum amounts laid down in Article 3, first and third subparagraphs, of Annex VII to the Staff Regulations, the education allowance shall cover:
(a)registration and examination fees at educational establishments;
(b)transport costs incurred in using a means of public or private transport in the service of the school;
(c)unavoidable expenses incurred, in particular in paying for books, school equipment, sports gear and school insurance, medical expenses, as well as any other expenses incurred in fulfilling the requirements of the programme of the educational establishment attended;
(d)expenses incurred by the child' s attendance at classes in winter-sport areas, classes at sea or 'open air classes' ..."
"Article 4 (Primary and Secondary Education)
1. (a)Expenses specified in Article 3(a), (b)and (d)shall be reimbursed upon the presentation of supporting documents. These expenses shall be reimbursed by either a monthly payment equal to one-twelfth of their total during the school year or by a single payment equal to this total.
(b)If the means of transport mentioned in Article 3(b)are not used, reimbursement shall be based on the cost of a season ticket on normal public transport or on the least costly form of public or private transport in the service of the school and using the shortest route between the child' s domicile and the school.
2. The expenses mentioned in Article 3(c)shall be reimbursed by a flat-rate monthly allowance equal to a percentage of the amount laid down in Article 3(1)of Annex VII to the Staff Regulations. This percentage shall be:
- 36% for children below the age of 11 years, and
- 50% for children over the age of 11 years.
3. The expenses mentioned in Article 3 that exceed the reimbursements provided for in paragraph 2 above shall be reimbursed upon the presentation of supporting documents and up to an amount equal to that mentioned in Article 3(1)of Annex VII to the Staff Regulations
4. ...".
The claims for education allowance
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 full-time 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.
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
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.
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
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.
Reimbursement of the cost of the psychological tests
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 I(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 that 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] ECR 201).
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.
Costs
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.
