JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

17 October 2013

Case F‑60/09 RENV

Gerhard Birkhoff

v

European Commission

(Civil service — Officials — Case referred back to the Tribunal after judgment has been set aside — Remuneration — Family allowances — Dependent child allowance — Child prevented by serious illness or invalidity from earning a livelihood — Application for extension of payment of the allowance)

Application:      referral back to the Tribunal of Case F‑60/09, initially brought under Articles 236 EC and 152 EA, by judgment of the General Court of the European Union of 29 November 2011 in Case T‑10/11 P Birkhoff v Commission (‘the referral judgment’), setting aside the judgment of the Tribunal of 27 October 2010 in Case F‑60/09 Birkhoff v Commission (‘the judgment of 27 October 2010’), determining the action, received at the Registry of the Tribunal on 24 June 2009, whereby Mr Birkhoff essentially sought annulment of the decision of the Commission of the European Communities of 14 November 2008 refusing to extend beyond 31 December 2008 payment of the dependent child allowance (‘the allowance at issue’) which he had been receiving since 1978, under Article 2(5) of Annex VII to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), for his disabled daughter.

Held:      The action is dismissed. The European Commission is to bear its own costs and is ordered to pay those incurred by Mr Birkhoff in Case F‑60/09 and Case T‑10/11 P. Each party is ordered to bear its own costs in Case F‑60/09 RENV.

Summary

1.      Actions brought by officials — Replacement of the grounds of the contested measure during the procedure — Not permissible — Exception

(Staff Regulations, Arts 90 and 91)

2.      Officials — Remuneration — Family allowances — Dependent child allowance — Right to extension without age restriction where child cannot earn a livelihood — Administration’s obligations — Circumscribed powers

(Staff Regulations, Annex VII, Art. 2(5))

1.      The administration cannot replace or add a ground to a decision during the procedure unless it is under a mandatory duty which leaves it no discretion, so that the annulment of the decision at issue could only have the effect of requiring the administration to adopt a fresh decision having the same substance as the decision annulled.

(see para. 39)

See:

17 June 2008, F‑97/07 De Fays v Commission, para. 70; 14 April 2011, F‑113/07 Šimonis v Commission, para. 93 and the case-law cited therein

2.      Payment of the allowance provided for in Article 2(5) of Annex VII to the Staff Regulations may, if the child is prevented by serious illness or invalidity from earning a livelihood, be extended without age restriction and for the entire duration of that illness or invalidity. That provision does not confer on the competent authority any discretion as to whether or not to grant the allowance at issue, but confers on it circumscribed powers in so far as its mandatory wording makes it clear that the authority is bound to grant the dependent child allowance if it finds that the conditions listed by that provision are satisfied, and to refuse to grant it if not.

(see para. 40)

See:

21 October 2003, T‑302/01 Šimonis v Commission, para. 38