JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

29 November 2011

Case T-10/11 P

Gerhard Birkhoff

v

European Commission

(Appeal – Civil service – Officials – Family allowances – Dependent child allowance – Child suffering from an infirmity preventing her from earning a livelihood – Refusal to extend payment of the allowance)

Appeal:      against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 27 October 2010 in Case F-60/09 Birkhoff v Commission, seeking to have that judgment set aside.

Held:      The judgment of the European Union Civil Service Tribunal (Second Chamber) of 27 October 2010 in Case F-60/09 Birkhoff v Commission is set aside. The case is referred back to the Civil Service Tribunal. The costs are reserved.

Summary

1.      Officials – Remuneration – Family allowances – Dependent child allowance – Right to extension without age restriction where child cannot earn a livelihood

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

2.      Officials – Remuneration – Family allowances – Dependent child allowance – Right to extension without age restriction where child cannot earn a livelihood

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

1.      Under Article 2(5) of Annex VII to the Staff Regulations, payment of the dependent child allowance continues irrespective of age if the serious illness or invalidity from which the child suffers prevents him or her from earning a livelihood.

The concept of being ‘prevented … from earning a livelihood’ requires the particular circumstances of each individual sick or disabled child to be taken into consideration.

It is a logical extension of the argument that, for social reasons, the legal and factual circumstances of each individual case must be taken into consideration in order to determine the amount of income available to the disabled person as a livelihood, within the meaning of the provision in question, that account must be taken of the person’s income net of all statutory taxes, levies and charges, rather than of his gross income.

First of all, only the net income represents what the person concerned actually has available for his daily needs and in order to cover normal costs such as food, clothing, accommodation, furniture, household expenses, heating, etc.

Secondly, from the point of view of the principle of equality, which requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified, it cannot be overlooked that a disabled person whose gross income is subject to all manner of very high charges and who therefore has only a relatively low available income is in a different factual situation from that of a disabled person who receives the same gross income but pays much lower contributions, of whatever kind, and therefore has a relatively high net income. In view of the social objective referred to above, there is no justification for treating those two cases equally under the pretext that the two gross incomes are the same, whereas there is a substantial difference in the income actually available to cover daily needs. The competent authority must examine the legal and factual circumstances of each individual case in order to determine whether the disabled person concerned is actually prevented from earning a livelihood within the meaning of Article 2(5) of Annex VII to the Staff Regulations.

Thirdly, taking into consideration the net income actually available to the person concerned is consistent with the fact that costs actually incurred as a result of his disability should also be deducted from his earned income.

Lastly, although the provisions of European Union law granting entitlement to financial benefits must be interpreted restrictively, it is clear from the considerations above that only an interpretation which takes account of the net income actually available to a child suffering from a serious illness or invalidity is consistent with the social objective pursued by payment of the allowance provided for in Article 2(5) of Annex VII to the Staff Regulations for such a child, where he is prevented from earning a livelihood.

(see paras 28, 34, 37-40, 50)

See:

C‑303/05 Advocaten voor de Wereld [2007] ECR I-3633, para. 56 and the case‑law cited therein

T-498/93 Dornonville de la Cour v Commission [1994] ECR‑SC I-A-257 and II‑813, para. 39

2.      The dependent child allowance has an objective of a social nature justified by the costs arising from a present and certain need connected with the child and its effective maintenance, which must lead the competent authority to determine, in each individual case, whether that social objective has been achieved and, taking account of all the circumstances of the case in question, whether the serious illness or invalidity from which the child suffers prevents it from earning a livelihood.

On this view, the formulation by an institution of an objective criterion for the purposes of interpreting Article 2(5) of Annex VII to the Staff Regulations does not relieve it, whatever that criterion involved, of the obligation to examine the particular circumstances of the case in question.

In order to take account of the particular legal and factual circumstances of a disabled person’s situation, any costs which he or she incurs as a result of that disability must be deducted from his or her earned income. It is therefore only this reduced income which must be taken into consideration in order to ascertain whether the disabled person is prevented from earning a livelihood within the meaning of Article 2(5) of Annex VII to the Staff Regulations.

Action in support of the disabled is not an end in itself, but is designed to ensure equal treatment, so that such action is permitted only if it aims to achieve equal treatment with an able-bodied person in the same situation. In those circumstances, the principle of equal treatment only requires the administration to take account of costs resulting specifically from the invalidity of the child in question, in order to place the child on the same financial footing as an able-bodied person in the same situation.

The partial deduction of costs relating to goods and services used on a large scale by anyone, not just by the disabled persons themselves, is therefore not vitiated by a factual error, an error of law or a manifest error of assessment.

(see paras 30, 32, 36, 57, 59, 60)

See:

T‑302/01 Birkhoff v Commission [2003] ECR-SC I-A-245 and II-1185, paras 39, 40 and 44