F-76/09

JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (First Chamber) February 2011 (*) (Civil service — Social security — Articles 72 and 76a of the Staff Regulations — General implementing provisions — Dependence — Surviving spouse of a retired official — Refusal of the request for full payment of the cost of a carer and the grant of financial aid — Action out of time — Inadmissibility) In Case F-76/09, ACTION under Articles 236 EC and 152 EA, AH, widow of a former official of the European Commission, residing in Wavre (Belgium), represented by J. Temple Lang, solicitor, applicant, v European Commission, represented by D. Martin and J. Baquero Cruz, acting as Agents, defendant, THE CIVIL SERVICE TRIBUNAL (First Chamber), composed of S. Gervasoni, President, H. Kreppel and M. I. Rofes i Pujol (Rapporteur), Judges, Registrar: J. Tomac, Administrator, having regard to the written procedure and further to the hearing on 28 April 2010, gives the following Judgment 1        By application received at the Tribunal Registry on 14 September 2009, the applicant brought the present action for annulment of the decision of the Commission of the European Communities, in its capacity as appointing authority, of 22 June 2009 rejecting an application for the reimbursement of costs for home care.  Legal context 2        Article 72 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) provides: ‘1.      An official, his spouse, where such spouse is not eligible for benefits of the same nature and of the same level by virtue of any other legal provision or regulations, his children and other dependants within the meaning of Article 2 of Annex VII are insured against sickness up to 80% of the expenditure incurred subject to rules drawn up by agreement between the institutions of the [Union] after consulting the Staff Regulations Committee. This rate shall be increased to 85% for the following services: consultations and visits, surgical operations, hospitalisation, pharmaceutical products, radiology, analyses, laboratory tests and prostheses on medical prescription with the exception of dental prostheses. It shall be increased to 100% in cases of tuberculosis, poliomyelitis, cancer, mental illness and other illnesses recognised by the appointing authority as of comparable seriousness, and for early detection screening and in cases of confinement. However, reimbursement at 100% shall not apply in the case of occupational disease or accident having given rise to the application of Article 73 [of the Staff Regulations]. … 3.      Where the total expenditure not reimbursed for any period of 12 months exceeds half the official’s basic monthly salary or pension, special reimbursement shall be allowed by the appointing authority, account being taken of the family circumstances of the person concerned, in the manner provided for in the rules referred to in paragraph 1. …’  Coverage of dependence and reimbursement of services 3        Article 20 of the Rules on Sickness Insurance for Officials of the European Communities (the ‘Insurance Rules’) states: ‘1.      For the purpose of protecting the financial equilibrium of the Joint Sickness Insurance Scheme and respecting the principle of social security cover forming the basis for Article 72 of the Staff Regulations, reimbursement ceilings for certain benefits may be set in the general implementing provisions. … 6.      In accordance with Article 72(1) of the Staff Regulations, costs shall be reimbursed in full in the case of tuberculosis, poliomyelitis, cancer, mental illness and other illnesses recognised by the appointing authority as of comparable seriousness after consulting the Medical Officer of the Settlements Office. … However, for the purpose of protecting the financial stability of the Joint Sickness Insurance Scheme and respecting the principle of social security cover forming the basis for Article 72 of the Staff Regulations, special ceilings for reimbursing certain benefits may in exceptional circumstances be set in the general implementing provisions. …’ 4        Chapter 3 of Title II of the Commission Decision of 2 July 2007 laying down General Implementing Provisions for the reimbursement of medical expenses (‘the GIP’) covering services associated with dependence, provides: ‘The reimbursement of services associated with dependence — stays in an institution and the costs of carers — excluding residential drug rehabilitation, depends on the insured person’s degree of dependence. The degree of dependence is determined according to the following table, on the basis of the lowest score obtained on one of the two questionnaires in the Annex, to be completed by the patient’s doctor: Index Degree of dependence 91-100 75-90 50-74 25-49 0-24 Values 1 to 4 on the dependence scale are taken into consideration for the purpose of reimbursing expenses, with 1 being the highest level of dependence. Level 5 dependence does not create any entitlement to reimbursement. … 2. Carers 2.1. General provisions (a)      Definitions The services provided by carers consist mainly of nursing care in the patient’s home for several hours a day or the whole day and/or night. … (b)      Requirements –        Prior authorisation is required for the services provided by carers. … Authorisation will be granted if the services are deemed to be strictly necessary by the Medical Officer of the Settlements Office, who will evaluate them according to the degree of dependence of the insured person. The reimbursement of care services is authorised only for patients whose degree of dependence is rated as 1, 2, 3 or 4. –        Carers must be legally authorised to practise their profession. … In the case of carers who are not attached to an official organisation (e.g. the Red Cross) or do not operate within an officially recognised private framework, proof of the contractual tie (a duly completed employment contract and/or insurance contract for the job of carer) must be sent to the Settlements Office. The social charges relating to employment contracts and/or the insurance premiums are included in the costs of carers and are reimbursable under this heading. –        Invoices must comply with the law of the country in which they are issued. Failure to produce the requisite documents will mean that prior authorisation cannot be granted and the corresponding services will not be reimbursed. 2.2. Reimbursement Costs are reimbursed at the rate of 80%, or 100% in the case of serious illness, up to a maximum amount (see below), regardless of the number of people providing care. No reimbursement is made in respect of the carer’s travel expenses, board and lodging, or any other ancillary costs. The portion of expenses not reimbursed do not qualify for the special reimbursement provided for in Article 24 of the joint rules. … –        Long-term home care Beyond 60 days, the costs of home care are reimbursed at the rate of 80%, or 100% in the case of serious illness, subject to the ceilings set out in the following table, minus an amount equal to 10% of the member’s basic income (salary, retirement pension, invalidity pension or disability allowance, allowance provided for in the fourth and fifth indents of Article 2(3) of the joint rules). Degree of dependence Ceiling for reimbursement and 3 50% of the basic salary of an official in grade AST 2/1 and 1 100% of the basic salary of an official in grade AST 2/1 Authorisations are granted for a maximum of 12 months and are renewable. …’  Aid to a surviving spouse in the event of a serious or protracted illness 5        Under Article 76 of the Staff Regulations: ‘A surviving spouse who has a serious or protracted illness or who is disabled may receive financial aid increasing the pension from the institution for the duration of the illness or disability on the basis of an examination of the social and medical circumstances of the person concerned. Rules implementing this article shall be fixed by common accord between the institutions, after consulting the Staff Regulations Committee.’ 6        The Common Rules laying down the procedure for granting financial assistance provided for in Article 76a of the Staff Regulations (‘the Common Rules’) entered into force on 1 July 2008. 7        Article 6 of the Common Rules provides: ‘The opinion on the applicant’s social circumstances shall be presented by a social assistant from the institution responsible within the meaning of Article 3. This social opinion shall take account of the medical opinion and shall incorporate an analysis of the social circumstances and of the genuine needs connected with the illness or disability, including the applicant’s financial circumstances, income and expenses. On the basis of the medical opinion and his or her analysis, the social assistant shall, in accordance with Article 10, propose the amount to be granted as financial aid, the duration of this grant and the need for re-examination of the social and medical circumstances of the person concerned. If the applicant and the social assistant cannot reach agreement on the socioeconomic analysis, the case shall be submitted for an opinion to a joint committee set up on the initiative of the [European] Commission.’ 8        Pursuant to Article 9 of the Common Rules: ‘The applicant shall indicate his or her financial circumstances (namely assets, real estates and stocks) and shall make a sworn statement, based on the most recent tax return, of his or her income (the pension paid by the institution, any other pension received from another source, allowances relating to the disability or serious or protracted illness and income from any other source).’ 9        Article 10 of the Common Rules reads as follows: ‘Where the surviving spouse is recognised as suffering from a serious or protracted illness or a disability, and on the basis of Articles 4, 5, 6 and 7 [of the Common Rules], he or she may receive financial aid calculated as follows: the amount corresponding to the expenses connected with the serious or protracted illness or the disability which are not reimbursed from other sources plus the minimum subsistence figure less the income within the meaning of Article 9 [of the Common Rules]. The amount of the aid shall not exceed the total amount of these expenses.’  Background to the dispute 10      The applicant, the widow of a former official of the Commission, suffers from a degree 1-2 disability. Because of her condition, she needs a carer in her home at all times. She has been recognised, under the provisions of the Joint Sickness Insurance Scheme, as having a serious illness entitling her to reimbursement of 100% of the medical expenses linked to her illness. 11      The applicant received 100% reimbursement of the expenses incurred in respect of the costs of home care, limited to 100% of the basic salary of an official in grade AST 2, step 1, that reimbursement however being reduced by an amount equal to 10% of her survivor’s pension. During 2008, the applicant was entitled to reimbursement of a maximum of EUR 2 216.23 per month, regardless of the actual costs incurred. 12      It appears from the documents before the Tribunal that the costs of the services of a permanent carer which the applicant needs are between EUR 3 500 and 3 700 per month, which she pays to an agency and to which EUR 500 must be added for the care provided during her usual carer’s two weekends of leave per month. A substantial part of the costs which she is obliged to pay every month, that is between EUR 1 400 and 1 500, plus EUR 500, is not reimbursed. The applicant estimates the costs of board and lodging of the carer, which should also be taken into account for the purposes of reimbursement, at EUR 400 per month. 13      Following an application submitted by the applicant on 21 March 2008, the Commission adopted, on 31 March 2008, a decision on the authorisation, in the context of the extension of a serious illness, for nursing care for a degree of dependence of 1–2, for the period from 1 April 2008 to 31 March 2009. 14      The applicant wrote, by letter of 16 August 2008, to the ‘Personnel and Administration’ Directorate-General of the Commission. By that letter, she primarily disputes the application to her of the reimbursement ceiling with a reduction, provided for in Chapter 3 of Title II of the GIP, and, in the alternative, she requests the application of Article 76a of the Staff Regulations in light of the state of her health, the fact that she lives alone and that no member of her family resides in Belgium. The applicant explains that she not only needs full-time care, provided six days a week by the carer supplied by an agency, but also the services provided by another carer on the days when the main carer has a right to weekly leave, of which the amount of reimbursement established takes no account. The applicant finally states that her request that Article 76a of the Staff Regulations be applied in her favour must, in any event, be regarded as a complaint within the meaning of Article 90 of the Staff Regulations. 15      On 12 October 2008, the applicant sent the Commission the form that the Commission had requested her to fill in, to which she attached documents in support of her application as well as the last two certificates from her neurologist. 16      The Commission’s refusal decision, adopted on 11 December 2008 on the basis of Article 10 of the Common Rules, was notified to the applicant on 24 December 2008. According to that decision, the application of Article 76a of the Staff Regulations was refused on the grounds that, by adding the non-reimbursed costs of the carer, namely EUR 2 017.27, and the minimum subsistence figure within the meaning of Article 6 of Annex VIII to the Staff Regulations, which corresponds to the basic salary of an official at the first step of grade 1, namely EUR 2 482.44, an amount is arrived at which is EUR 556.22 less than the survivor’s pension that the applicant receives. That decision of 11 December 2008 does not however contain an express view of the Commission regarding the fact that the applicant, in her letter of 16 August 2008, disputes the application to her of the reimbursement ceiling with a reduction, provided for in Chapter 3 of Title II of the GIP. 17      By letter of 22 January 2009, the applicant informed the Commission that she disagreed with that decision. On 23 March 2009, she lodged a complaint against the Commission decision not to reimburse the entire cost of the services of the carer that she needs, a decision which, according to the applicant, was notified to her under cover of an assessment of medical expenses of 19 January 2009. 18      By decision of 22 June 2009, the Commission rejected that complaint.  Forms of order sought by the parties 19      The applicant claims that the Tribunal should: –        declare that the appointing authority’s decision contained in the letter of 22 June 2009 rejecting the complaint is unlawful and should be annulled; –        declare that Chapter 3 of Title II of the GIP is inapplicable in accordance with Article 277 TFEU in so far as: –        it provides that the cost of providing board and lodging for an essential live-in carer is not refundable, and –        it imposes a limit on the amount of the reimbursement that may be made for the costs of an essential live-in carer. –        order the Commission to pay the costs. 20      The Commission contends that the Tribunal should: –        dismiss the application as inadmissible and, in any event, as unfounded; –        order the applicant to pay the costs.  Procedure 21      By way of measures of organisation of procedure within the meaning of Article 55 of the Rules of Procedure, the Tribunal requested the Commission, first, to submit the complete file leading to the decision of 11 December 2008 refusing to grant the applicant’s request of 16 August 2008 and, second, to answer several questions in writing before the hearing to establish the reason why, when calculating the reimbursement of care services, the maximum amount was reduced by 10% of the amount of the survivor’s pension, even though that type of pension does not appear among the sources of income listed in the GIP as giving rise to such a reduction, and to ascertain how the specific social and medical circumstances of the applicant, within the meaning of Article 76a of the Staff Regulations, were examined and taken into account in order to deal with her request. 22      In its reply of 8 April 2010, lodged at the Tribunal Registry the following day, the Commission complied only in part with the Tribunal’s request. The Tribunal regrets, in that regard, that the Commission did not find it necessary to comply with the request for the production of the file.  Law   The first head of claim, seeking annulment of the appointing authority’s decision contained in the letter of 22 June 2009 23      It must be noted, as a preliminary point, that by letter of 22 June 2009, the Commission rejected the applicant’s complaint of 23 March 2009 challenging the refusal to reimburse the full cost of the services of the carer which she needs. 24      Although the applicant states in her application that she is challenging a Commission decision notified to her under cover of an assessment of medical expenses of 19 January 2009, the fact remains that, as stated in paragraph 14 of this judgment, by her letter of 16 August 2008, the applicant had already brought a complaint, within the meaning of Article 90(2) of the Staff Regulations, against the application to her of the reimbursement ceiling with a reduction, provided for in Chapter 3 of Title II of the GIP. That claim was rejected by an implied decision. 25      It follows that, unless the applicant wanted to withdraw the application for the aid provided for in Article 76a of the Staff Regulations, made by her letter of 16 August 2008, the complaint of 23 March 2009 could relate only to the Commission Decision of 11 December 2008 by which she was refused that aid. 26      In that connection, it must be stated that, in the light of the case-law (judgment of 17 January 1989 in Case 293/87 Vainker v Parliament, paragraph 8; judgments of 10 June 2004 in Case T-330/03 Liakoura v Council, paragraph 13, and of 6 April 2006 in Case T-309/03 Camós Grau v Commission, paragraph 43) and the scope of the Commission Decision of 22 June 2009, that the decision of 22 June 2009, essentially, merely confirms the decision in the letter of 11 December 2008. 27      Therefore, the head of claim seeking annulment of the decision of 22 June 2009, as such, lacks any independent content and, in the present case, it must be held that the head of claim was in fact directed against the decision contained in the letter of 11 December 2008, by which the Commission refused to pay the applicant aid on the basis of Article 76a of the Staff Regulations. 28      However, the Commission submits that that head of claim is inadmissible in so far as there are no arguments in the application itself in support of the annulment of the decision of 11 December 2008. Therefore, the application does not satisfy the requirements laid down in Article 35(1)(e) of the Rules of Procedure. 29      It should be recalled in this context that, pursuant to Article 35(1)(e) of the Rules of Procedure, the application must contain the pleas in law and the arguments of fact and law relied on. Those particulars must be sufficiently clear and precise to enable the defendant to prepare its defence and to enable the Tribunal to give judgment in the action, if appropriate, without having to seek further information. In order to guarantee legal certainty and sound administration of justice, it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated, coherently and intelligibly, in the application itself (see, by analogy, the order of 28 April 1993 in Case T-85/92 De Hoe v Commission, paragraph 20, and the order of 21 May 1999 in Case T-154/98 Asia Motor France and Others v Commission, paragraph 42; and the judgment of 15 June 1999 in Case T-277/97 Ismeri Europa v Court of Auditors, paragraph 29). 30      That is a fortiori the case since, under Article 7(3) of Annex I to the Statute of the Court of Justice of the European Union, the written stage of the proceedings before the Tribunal comprises, in principle, only one exchange of written pleadings, unless the Tribunal decides otherwise. That particular feature of the procedure before the Tribunal explains why, contrary to what is provided for in proceedings before the General Court of the European Union, or the Court of Justice, in accordance with the first paragraph of Article 21 of the Statute of the Court of Justice, the pleas in law and the arguments in the application may not be in summary form. Such flexibility would have the practical effect of rendering largely ineffective the special, and later, rule set out in Annex I to the Statute of the Court of Justice (judgment of 26 June 2008 in Case F-1/08 Nijs v Court of Auditors, paragraph 25). 31      In addition, the third indent of Article 19 of the Statute of the Court of Justice, applicable to proceedings before the Tribunal by virtue of Article 7(1) of Annex I to the Statute, provides that the parties, other than the Member States, the institutions of the European Union, the States which are parties to the Agreement on the European Economic Area and the EFTA Surveillance Authority, which is covered by that Agreement, must be represented by a lawyer. The main role of that lawyer, as a legal representative, is to ensure that the heads of claim of the application are based on sufficiently intelligible and coherent arguments, specifically in view of the fact that the written procedure before the Tribunal comprises, in principle, only one exchange of written pleadings (Nijs v Court of Auditors, paragraph 26). 32      In the present case, as the Commission correctly stated in its response to the measures of organisation of procedure ordered by the Tribunal and at the hearing, not only does the application not adduce any plea in law or argument in support of the annulment of the decision of 11 December 2008 refusing the applicant’s request of 16 August 2008 relating to the payment of aid under Article 76a of the Staff Regulations, but it does not even mention that provision of the Staff Regulations. 33      Therefore, the application manifestly fails to meet the minimum conditions of clarity and precision that would enable the defendant to prepare its defence and the Tribunal to rule on that alternative head of claim.  The second head of claim, seeking annulment of the decision applying the reimbursement ceiling established in paragraph 2 of Chapter 3 of Title II of the GIP to the costs of incurred for a carer 34      The Commission submits that that head of claim is inadmissible because it was out of time. Since the letter of 16 August 2008 contains both a complaint within the meaning of Article 90(2) of the Staff Regulations concerning the reimbursement ceiling and a request within the meaning of Article 90(1) of the Staff Regulations relating to the application of Article 76a of the Staff Regulations, the application, lodged on 14 September 2009, was out of time as regards the claim relating to the reimbursement ceiling. 35      According to settled case-law, the time-limit of three months for lodging a complaint against an act adversely affecting an official and that of three months for bringing an action against an express or implied decision rejecting the complaint, prescribed by Articles 90 and 91 of the Staff Regulations, are a matter of public policy and are not subject to the discretion of the parties or the court, since they were established in order to ensure that legal positions are clear and certain. Those time-limits must be regarded as applying to any challenge to an act subject to the review of the European Union courts, regardless of its nature (see, to that effect, judgment of 4 February 1987 in Case 276/85 Cladakis v Commission, paragraph 11; judgments of 17 October 1991 in Case T-129/89 Offermann v Parliament, paragraphs 31 and 34, and of 8 March 2006 in Case T-289/04 Lantzoni v Court of Justice, paragraphs 40 and 41). 36      In the present case, it appears from the documents before the Tribunal that the decision allowing the applicant to benefit from the services of a carer for the period from 1 April 2008 to 31 March 2009 is dated 31 March 2008. It also follows from the Commission’s letter of 15 July 2008, which was placed on the case-file that, following a conversation with a Commission social assistant, the applicant was aware that the maximum amount which could be paid to her for her treatment under the GIP, was in the region of EUR 2 200 per month. It also appears from the payment declaration of July 2008, annexed by the Commission to its defence, that that amount is indeed the amount which the applicant, in her letter of 16 August 2008, complains is insufficient in the light of her situation. 37      It follows that, in so far as, in the letter of 16 August 2008, the applicant contests the application of the ceiling provided for in Chapter 3 of Title II of the GIP to the costs of a carer, that letter must be regarded as a complaint within the meaning of Article 90(2) of the Staff Regulations, by which the Commission is requested to reconsider its decision to apply such a ceiling. 38      According to settled case-law, a letter from an official, which does not expressly request the withdrawal of the decision in question but is clearly intended to achieve an amicable settlement of his complaints, or a letter which clearly manifests the applicant’s intention to challenge the decision which adversely affects him, is a complaint (see, the orders of 7 June 1991 in Case T-14/91 Weyrich v Commission, paragraphs 39 and 40, and the case-law cited, and of 7 December 1999 in Case T-108/99 Reggimenti v Parliament, paragraph 27). 39      It must be observed that under Article 90(2) of the Staff Regulations, the appointing authority is to notify the person concerned of its reasoned decision within four months from the date on which the complaint was lodged. If at the end of that period no reply to the complaint has been received, this is to be deemed to constitute an implied decision rejecting it, against which an appeal may be lodged under Article 91 of the Staff Regulations. 40      In fact, the date on which the applicant’s letter of 16 August 2008 was received by the Commission is not clear from the file. However, the applicant confirms in her letter of 12 October 2008, annexed to the defence that the Commission, by letter of 29 September 2008, had replied to her letter of 16 August 2008. 41      It must therefore be held that, at the latest on 29 September 2008, the complaint in the letter of 16 August 2008 had been known to the Commission and that in the event of a decision not being taken in the following four months, the applicant should have brought her action within the three-month period, prescribed in Article 91(3) of the Staff Regulations, from the date on which the implied decision of rejection was taken, namely 29 January 2009. 42      The Tribunal accordingly finds that the three month period began on 30 January 2009 and that it expired on 29 April 2009. Thus, taking into account the extension of 10 days on account of distance provided for in Article 100(3) of the Rules of Procedure, the period for bringing an action should, in the present case, have expired at midnight on 9 May 2009. 43      However, the first subparagraph of Article 100(2) of those Rules of Procedure lays down that ‘[i]f the period would otherwise end on a Saturday, Sunday or official holiday, it shall be extended until the end of the first following working day’. Since 9 May 2009 was a Saturday, the time for instituting an action was extended, in the present case, until Monday, 11 May 2009 inclusive. 44      In the present case, the application was lodged at the Tribunal Registry on 14 September 2009. In those circumstances, the Tribunal finds that the statutory time limits were not respected and, therefore, the application must be dismissed as inadmissible as regards the challenge to the application of the ceiling provided for in Chapter 3 of Title II of the GIP to the reimbursement of the expenses for care incurred by the applicant. 45      It follows that the action must be dismissed in its entirety as inadmissible.  Costs 46      Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title II of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), if equity so requires, the Tribunal may decide that an unsuccessful party is to pay only part of the costs or even that he is not to be ordered to pay any. 47      It is apparent from the reasons set out above that the applicant has been unsuccessful. Furthermore, in its pleadings the Commission has expressly requested that the applicant be ordered to pay the costs. As the circumstances of the present case do not justify the application of Article 87(2) of the Rules of Procedure, the applicant must therefore be ordered to pay all the costs. On those grounds, THE CIVIL SERVICE TRIBUNAL (First Chamber) hereby: 1.      Dismisses the action as inadmissible. 2.      Orders AH to bear all the costs. Gervasoni Kreppel Rofes i Pujol Delivered in open court in Luxembourg on 15 February 2011. W. Hakenberg         S. Gervasoni Registrar         President * Language of the case: English.