Court of Justice of the European Communities (including Court of First Instance Decisions)

(Appeal Remuneration Dependent child allowance Deduction of the amount of an allowance of like nature paid from other sources Unlimited jurisdiction Disputes of a financial character)

In Case C-135/06 P,

APPEAL under Article 56 of the Statute of the Court of Justice, brought on 10 March 2006,

Roderich Weißenfels, represented by G. Maximini, Rechtsanwalt,

appellant,

the other party to the proceedings being:

European Parliament, represented by L.G. Knudsen, M. Ecker and U. Rösslein, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

composed of C.W.A. Timmermans, President of Chamber, L. Bay Larsen, K. Schiemann, P. Klūris and J.-C. Bonichot (Rapporteur), Judges,

Advocate General: J. Kokott,

Registrar: R. Grass,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 20 September 2007,

gives the following

1. By his appeal, Mr M. Weißenfels seeks the annulment of the judgment of the Court of First Instance of 25 January 2006 in Case T-33/04 Weißenfels v Parliament, not published in the ECR, 'the judgment under appeal'), whereby the Court of First Instance dismissed his application for the annulment of several decisions of the European Parliament whereby the latter had decided, pursuant to Article 67(2) of the Staff Regulations of Officials of the European Communities ('the Staff Regulations'), to deduct the amount of the special allowance for severely handicapped persons paid under Luxembourg law ('the Luxembourg allowance') from the double dependent child allowance granted to the appellant pursuant to Article 67(3) of the Staff Regulations ('the allowance under the Staff Regulations').
2. The appellant also asks the Court to annul the relevant decisions of the Parliament of 26 June 2003 and 28 April 2004, and the implied decision rejecting his application of 4 June 2003 and to order the Parliament to pay compensation for the damage which he claims to have suffered through the retention of a part of the double dependent child allowance which was granted to him pursuant to Article 67(3) of the Staff Regulations. In the alternative, he claims that the Parliament should be ordered on that basis to pay him interest at the statutory rate.
3. Finally, the appellant claims that the Court should order the Parliament to pay the costs both at first instance and on appeal.

Legal context

4. In paragraphs 1 to 4 of the judgment under appeal, the Court of First Instance set out the legal context as follows:

'1 The third paragraph of Article 62 of the Staff Regulations, in the version applicable to this case ... provides that the remuneration of officials is to include family allowances.

2 Under Article 67(1)(b) of the Staff Regulations, family allowances are to include the dependent child allowance.

3 Article 67(2) and (3) of the Staff Regulations provide:

'2. Officials in receipt of family allowances ... shall declare allowances of like nature paid from other sources; such latter allowances shall be deducted from those paid under [the Staff Regulations]

3. The dependent child allowance may be doubled by special reasoned decision of the appointing authority based on medical documents establishing that the child concerned is suffering from a mental or physical handicap which involves the official in heavy expenditure.'

4 Articles 1 to 5 of the Luxembourg Law of 16 April 1979 on the creation of a special allowance for handicapped people, which was repealed by the Law of 19 June 1998 introducing nursing-care insurance, but is still applicable to the present case pursuant to the transitional provisions of the latter Law ('the Luxembourg Law of 16 April 1979') provides:

'Art. 1. Every severely handicapped person who is resident in the Grand'Duchy of Luxembourg and who has been resident there for at least 10 years is entitled to the benefits under this Law.

Handicapped children have the same entitlement as of the age of three years ...

Art. 2. A person is to be regarded as severely handicapped for the purposes of this law if one or more of his or her physical or mental functions ... is/are diminished to such an extent that he or she cannot subsist without the assistance or constant care of another person.

...

Art. 3. Every severely handicapped person ... is entitled ... to a special allowance...

Art. 4. The allowance ... shall be suspended ... up to the amount of a foreign benefit of like nature.

Art. 5. The allowance ... is exempt from taxes and social insurance contributions...''.

Facts

5. The background to the dispute may be summarised from the judgment of the Court of First Instance as follows:
6. The appellant, an official in Grade A*12 (former Grade A 4), took up employment with the Parliament in Luxembourg on 1 April 1982. His eldest son was born on 31 January 1982. He has been severely handicapped since early childhood.
7. The dependent child allowance provided for in Article 67(1)(b) of the Staff Regulations was granted to the appellant when he took up his post with the Parliament. On 31 July 1987 the Parliament decided, under Article 67(3) of the Staff Regulations, to double the child allowance in respect of the appellant's son as of 1 May 1987. By decision of 8 July 1997, the double child allowance was granted for a further period from 1 July 1997 to 30 June 2000.
8. By decision of 26 April 1999, the Luxembourg Fonds National de Solidarité decided, under the Luxembourg Law of 16 April 1979, to pay to the appellant, as the legal representative for his son, a special allowance for the severely handicapped as from 1 December 1998.
9. The appellant informed the Parliament of the payment of the Luxembourg allowance in mid-October 1999.
10. By decision of 22 October 1999, the Parliament, under Article 67(2) of the Staff Regulations, reduced the amount corresponding to the double child allowance under the Staff Regulations by the amount of the Luxembourg allowance with effect from 1 December 1998.
11. By decision of 20 September 2000, the double child allowance was granted for a further period from 1 July 2000 to 30 June 2003. The amount corresponding to the double child allowance under the Staff Regulations was reduced, by decision of 18 September 2000, by the amount of the Luxembourg allowance.
12. By decision of 1 July 2003, the double child allowance was granted for a further period from 1 July 2003 to 30 June 2006.
13. In the meantime the appellant had, by letter of 4 June 2003, challenged the principle of the deduction of the Luxembourg allowance as follows:

'As I already ... pointed out [on] 28 May 2003, the aid is paid not to me, but to my son ..., although it is paid into my hands as his legal representative. There can be no question of a deduction under Article 67(2) of the Staff Regulations from the double child allowance granted to me as part of my remuneration pursuant to Article 67(3).

This results from the fact that, first, there are two separate claimants (legal persons) involved, and that, on the other hand, the aid constitutes an independent benefit and not an 'allowance'.

In any event, the benefit is not 'of like nature' either: the allowance under Article 67(3) serves to alleviate the uncommon burdens on the official, the aid is a benefit to support the handicapped person.

I therefore request restitution of the double dependent child allowance that has been unjustly retained from me in the past.'

14. By decision of 26 June 2003, the Parliament nevertheless made the deduction.
15. By letter of 13 August 2003 the appellant submitted a complaint against the decision of 26 June 2003 under Article 90(2) of the Staff Regulations. That complaint was rejected by letter of the Parliament of 10 November 2003.
16. On 28 April 2004 after the application in the present case had been entered in the register the Parliament, having regard to the updated amount of the Luxembourg allowance, took a decision on the deduction pursuant to Article 67(2) of the Staff Regulations. On 8 June 2004, the appellant submitted a complaint against the decision of 28 April 2004, which was rejected by decision of the Parliament of 15 September 2004.

The application before the Court of First Instance and the judgment under appeal

17. By application lodged at the Registry of the Court of First Instance on 2 February 2004, the appellant brought his first-instance action. With it he claimed that the Court should annul the defendant's decision of 26 June 2003 together with the defendant's decision of 10 November 2003 on the complaint relating thereto and order the Parliament to pay to him all amounts improperly withheld from his remuneration together with interest at the rate prescribed by law.
18. In his reply, the appellant reformulated part of his pleadings. He extended his claim for annulment to the decisions of 28 April and 15 September 2004 and supplemented his claim for reimbursement by seeking an order that the Parliament should pay compensation for the damage suffered, in the amount of the statutory interest on the amount of the retention from remuneration made under Article 67(2) of the Staff Regulations.
19. In the judgment under appeal, the Court of First Instance ruled the head of claim seeking an order that the Parliament repay sums withheld from the applicant's remuneration under Article 67(2) of the Staff Regulations inadmissible.
20. It first stated that it was not for the Court of First Instance, in the context of an action brought under Article 91 of the Staff Regulations, to issue directions to the Community institutions, and that, in any event, the Parliament is required, under Article 233 EC, to take all necessary measures to comply with a judgment.
21. It then stated that the appellant's claim that the Parliament be ordered to compensate for damage suffered was inadmissible, in that it constituted a claim for compensation for damage within the meaning of Article 235 EC which had changed the subject-matter of the dispute at the reply stage.
22. The Court of First Instance further regarded the action for annulment as being solely directed against the decision of 26 June 2003.
23. In reaching that conclusion, the Court first stated that the application for annulment of the decision of 10 November 2003 was devoid of purpose or independent scope in relation to the application for annulment of the decision of 26 June 2003.
24. The Court further took the view that the implied decision rejecting the application of 4 June 2003 was identical in subject-matter with that of the decision of 26 June 2003, so that the application for annulment of that first decision also merged with the application for annulment of the decision of 26 June 2003.
25. The Court then held that the decision of 28 April 2004 was purely confirmatory of that of 26 June 2003 and that the application for annulment of the decisions of 28 April and 15 September 2004 should therefore be considered devoid of purpose or independent scope in relation to the application for annulment of the decisions of 26 June and 10 November 2003.
26. The Court further emphasised that the appellant had admitted at the hearing that his various claims for annulment had in reality the same purpose, namely the annulment of the decision of 26 June 2003.
27. The Court therefore took the view that the application for annulment by the appellant should be regarded as directed solely against the decision of 26 June 2003.
28. The Court then rejected as unfounded the objection of inadmissibility raised by the Parliament, based on the argument that the application for annulment of the decision of 26 June 2003 was made out of time, since the latter decision merely updated the amount of the Luxembourg allowance to be deducted from the remuneration fixed by the decision of 22 October 1999.
29. In that regard, the Court first emphasised that a decision to double the dependent child allowance, taken under Article 67(3) of the Staff Regulations, constitutes a new decision because it is adopted for a given duration and its renewal must be preceded by a fresh examination, particularly a medical examination, carried out on the basis of a fresh application by the person concerned.
30. The Court then took the view that a subsequent deduction decision, taken under Article 67(2) of the Staff Regulations, also constitutes a new decision because it is taken following an examination seeking to ascertain that an allowance of the same nature is paid from another source, even if a new decision to double the allowance under the Staff Regulations has just been adopted.
31. The Court therefore held that the decision of 26 June 2003 constituted a decision that was distinct from the decision of 22 October 1999.
32. Finding that the applicant had challenged the decision of 26 June 2003 within the time-limit prescribed by the Staff Regulations, the Court therefore held the action admissible.
33. The Court then examined the applicant's plea alleging infringement of Article 67(2) of the Staff Regulations.
34. It first recalled that the Court of Justice has consistently held that only allowances which are comparable and have the same purpose are of like nature for the purposes of that article (Case 106/76 Gelders-Deboeck v Commission [1977] ECR 1623, paragraph 16).
35. It then held that, having regard to the formulation of the texts establishing them, both the allowance under the Staff Regulations and the Luxembourg allowance were designed to provide assistance in facing the burdens imposed by the assistance and care required by a severely handicapped person, with the result that their comparable character and the identicalness of their purpose are established.
36. The Court emphasised that the fact that both the benefits in question are flat-rate and non-taxable increases their comparability.
37. It also stated that it was of little importance whether it was the handicapped child or its father that was formally the beneficiary.
38. The Court dismissed the appellant's argument that the two allowances in question are not of like nature within the meaning of Article 67(2) of the Staff Regulations on the ground that the Luxembourg allowance, unlike the allowance under the Staff Regulations, is not an addition to the applicant's salary. In that regard it emphasised, first, that allowances under the Staff Regulations are by their very nature paid to the holder of a post of official and, secondly, that the criterion of aid provided to face the burdens imposed by the assistance and care required by a severely handicapped person is decisive for the purposes of assessing the nature of the two allowances.
39. The Court also dismissed the applicant's argument based on differences in language version between the German version of the Staff Regulations which uses the term 'Zulage', that is to say 'supplement' and the Luxembourg law and the French version of the Staff Regulations which use the identical term 'allocation'.
40. The Court therefore took the view that the allowance under the Staff Regulations and the Luxembourg allowance were of like nature within the meaning of Article 67(2) of the Staff Regulations.
41. The Court of First Instance therefore dismissed the application in its entirety and ordered the parties to bear their own costs.

The pleadings before the Court of Justice

42. The appellant claims that the Court should:

set aside the judgment under appeal;

itself rule on the action and annul the decision of 26 June 2003, the implied rejection decision and the decision of 28 April 2004;

order the Parliament to pay compensation for the damage suffered through the withholding of part of the appellant's remuneration, to pay interest at the statutory rate on the sums in question, and to pay the costs at both instances.

43. The Parliament claims that the Court should:

dismiss the appeal;

order the appellant to pay the costs of the appeal.

The appeal

44. The appellant makes three pleas in law. In his first, he argues that the Court of First Instance made errors in law in not treating separately his applications for annulment of the decision of 26 June 2003, of the implied decision rejecting his request of 4 June 2003 and of the decision of 28 April 2004. In his second, he argues that the Court erred in law by holding that his claim for compensation for the loss arising from the loss of interest on the sums in question should be dismissed as inadmissible. In his third, he argues that the Court erred in law by holding that the allowance under the Staff Regulations and the Luxembourg allowance were 'of like nature' within the meaning of Article 67(2) of the Staff Regulations.

The subject-matter of the application

Arguments of the parties

45. In his first plea, the appellant accuses the Court of First Instance of wrongly taking the view that this application for annulment should be regarded as directed only against the Parliament's decision of 26 June 2003. He argues that the Court should have ruled on all of his claims for annulment which were also directed against the decision whereby the Parliament dismissed his request of 4 June 2003, seeking cancellation of the deduction for the future and the repayment of sums withheld from his remuneration in the past, and against the decision of 28 April 2004, those claims, contrary to what the Court held, never having been abandoned by him.
46. The Parliament argues first that the first plea is inoperative and should be dismissed as such since the operative part of the judgment under appeal is justified on other legal grounds, in this case a correct interpretation of Article 67(2) of the Staff Regulations, which necessarily leads to the dimissal of the appellant's claims.
47. The Parliament further argues that that first plea is inadmissible, since the appellant has not, for example, either alleged or demonstrated, in accordance with Article 58 of the Statute of the Court of Justice, that the irregularity in procedure relied on had affected his interests.
48. Finally, the Parliament considers that the Court of First Instance correctly limited the subject-matter of the action to the challenge to the decision of 26 June 2003, the only measure adversely affecting the appellant, although on different grounds from those adopted by the Court in the judgment under appeal.
49. The Parliament itself argues, first, that the Court of First Instance erred in law by holding that there was an implied decision dismissing the request for repayment of deductions made in the past. It maintains that that request was expressly dismissed by the decision of 26 June 2003.
50. Moreover, the Parliament considers that the Court of First Instance should have dismissed the application for annulment of the decision of 28 April 2004 as inadmissible since the latter was taken after registration of the application initiating proceedings.

Findings of the Court

51. By his first plea the appellant maintains that the Court of First Instance erred in law by holding that his claims for the annulment of the decision of 26 June 2003, of the implied decision rejecting his request of 4 June 2003 and of the decision of 28 April 2004 had to be regarded as directed only against the decision of 26 June 2003, thereby wrongly restricting the subject-matter of the dispute brought before it.
52. As regards the appellant's request of 4 June 2003, that was directed first at securing that the contested deduction not be made, and secondly at securing repayment by the Parliament of amounts previously withheld from his remuneration. Although, by its wording, the decision of 26 June 2003 refers only to the relevant period as from 1 July 2003, it should be understood in the present context as also dismissing the appellant's request of 4 June 2003 seeking repayment of sums previously withheld from his remuneration. The appellant's request of 4 June 2003 was thus, in its entirety, the subject-matter of a rejection by the decision of 26 June 2003.
53. The Court of First Instance did not therefore make any error by holding that the appellant's claims should be regarded as directed against that latter decision.
54. As regards the decision of 28 April 2004, it should be noted that the latter relates, like that of 26 June 2003, to the position of Mr Weissenfels in regard to Article 7(2) of the Staff Regulations and is aimed at updating the amount of the Luxembourg allowance deducted from the allowance under the Staff Regulations. Even if it were acknowledged that, in the light of that finding, the decision of 28 April 2004 might be regarded as confirmatory of that of 26 June 2003, the pleas made against it cannot be declared inadmissible on that ground, since the decision of 26 June 2003 was challenged within the prescribed time-limit. An action against a confirmatory decision is inadmissible only if the confirmed decision has become final in relation to the person concerned for failing to bring an action within the time-limit. Otherwise, the person concerned is entitled to challenge either the confirmed decision, or the confirmatory decision, or both (see the judgment of 11 May 1989 in Joined Cases 193/87 and 194/87 Maurissen and European Public Service Union v Court of Auditors, paragraphs 25 and 26).
55. It is true that the appellant's application for the annulment of the decision of 28 April 2004 was brought only at the reply stage and that, therefore, inadmissibility of the latter might, despite the error of law committed by the Court of First Instance, legally justify the operative part of its judgment from that standpoint (see Case C-30/91 P Lestelle v Commission [1992] ECR I-3755, paragraph 28).
56. Since, however, the decision at issue is one which relates to the same question, namely the right of the person concerned to be paid for the various periods the whole of the increased dependent child allowance and, if appropriate, to be paid the amount wrongly deducted, it would be contrary to the sound administration of justice to require that person to bring a new action before the Court of First Instance against the decision of 28 April 2004 (see, to that effect, Joined Cases 351 and 360/85 Fabrique de fer de Charleroi [1987] ECR 3639, paragraph 11).
57. This Court therefore finds that, as the appellant claims, the Court of First Instance made a misassessment of the extent of the dispute before it when it dismissed his claims directed against the decision of 28 April 2004 and annuls the judgment under appeal on that point.

Whether the Parliament should be ordered to pay certain sums

Arguments of the parties

58. By his second plea, the appellant argues that the Court of First Instance erred in law by dismissing as inadmissible his claim that the Parliament be ordered to compensate for the damage which he has suffered through the withholding, which he claims is wrongful, from his remuneration, on the ground that that claim was submitted only at the reply stage.
59. The Parliament considers that the Court of First Instance was right to hold the appellant's claim for damages and interest inadmissible, since it was introduced only at the reply stage.
60. The Parliament adds that that claim could also have been declared inadmissible because the appellant neither quantified the damage suffered nor explained the circumstances preventing him from doing so (see, to that effect, Case C-150/03 P Hectors v Parliament [2004] ECR I-8691, paragraph 62).

Findings of the Court

61. The appellant requested the Court of First Instance to order the Parliament to pay him the sums withheld, wrongly in his submission, from his remuneration, together with interest. Taking account of the Parliament's pleadings in defence, he reformulated those claims into an application that the Parliament be ordered to compensate him, in the amount of the sums at issue plus interest, for the damage suffered through retentions from his remuneration.
62. It should be noted first that, whatever the terms used by the appellant, the sole purpose of his claims was obviously to obtain payment of the sums which the Parliament, wrongly in his submission, deducted from his remuneration pursuant to the rule against the overlapping of benefits laid down by Article 67(2) of the Staff Regulations, plus interest at the statutory rate.
63. In those circumstances, even if the appellant subsequently submitted his claim for repayment as a claim for compensation, the Parliament cannot validly maintain that such claims are inadmissible because submitted out of time.
64. It should be recalled moreover that, in any case, Article 91(1) of the Staff Regulations, applicable to the Court of First Instance and the European Civil Service Tribunal, confers upon the court unlimited jurisdiction in this matter, by providing:

'The Court of Justice of the European Communities shall have jurisdiction in any dispute between the Communities and any person to whom these Staff Regulations apply regarding the legality of an act adversely affecting such person within the meaning of Article 90(2). In disputes of a financial character the Court of Justice shall have unlimited jurisdiction.'

65. 'Disputes of a financial character' within the meaning of that provision include not only actions brought by staff members seeking to have an institution held liable, but also all those seeking payment by an institution to a staff member of a sum which he considers to be due to him under the Staff Regulations or other measure governing their working relations (see, to that effect, Case C-449/99 P EIB v Hautem [2001] ECR I-6733).
66. It follows that the appellant's claim that the Parliament pay to him sums which, he claims, were wrongly withheld from his remuneration, together with interest at the statutory rate, constitutes a dispute of a financial character within the meaning of Article 91(1) of the Staff Regulations.
67. The unlimited jurisdiction conferred on the Community judicature by Article 91(1) of the Staff Regulations entrusts it with the task of providing a complete solution to the disputes brought before it, that is to say to rule on all the rights and obligations of the staff member, save for leaving to the institution in question, under the control of the court, the implementation of such part of the judgment and under such precise conditions as the court shall determine.
68. The Community judicature is therefore able, contrary to what the Parliament maintains, to order an institution, in an appropriate case, to order an institution to pay a sum to which the applicant is entitled under the Staff Regulations or another legal measure.
69. It follows that, by refusing in principle to order the Parliament to pay the sums claimed to be due to the appellant, the Court of First Instance made an erroneous assessment of the extent of its jurisdiction.
70. It follows that the appellant's second plea is also well-founded, and that the judgment under appeal should be set aside on that point.

The right of the person concerned to receive the whole of his allowance under the Staff Regulations

Arguments of the parties

71. In his third plea, the appellant argues that the Court of First Instance erred in law by holding that the allowance under the Staff Regulations and the Luxembourg allowance were 'of like nature' within the meaning of Article 67(2) of the Staff Regulations, and that, therefore, that provision required that the amount of the second be deducted from the amount of the first.
72. He considers that Article 67(2) of the Staff Regulations requires that nature to be doubly identical, both in 'form' and in 'substance'.
73. He argues that the two allowances in question are not identical from a formal standpoint because the allowance under the Staff Regulations is a benefit ancillary to remuneration, whereas that is not the case with the Luxembourg allowance, the grant of which is not linked to an employment relationship (see, to that effect, Case 186/85 Commission v Belgium [1987] ECR 2029, paragraphs 27 to 30 and paragraph 33, and Case 189/85 Commission v Germany [1987] ECR 2061, paragraph 26).
74. The appellant argues that his analysis is confirmed by the German-language version of Article 67(2) of the Staff Regulations, and that that first difference on its own is sufficient to demonstrate that the two allowances are not identical in nature.
75. Nor, the appellant argues, are the two benefits of like nature from a material standpoint.
76. He emphasises in that regard that the Court of First Instance erred in law in holding that Article 67(2) of the Staff Regulations applied to comparable allowances. In his submission, that article applies only where the allowances concerned are truly identical.
77. The appellant argues that that is not the case with the two allowances at issue, since only an official is entitled to the allowance under the Staff Regulations, intended to allow him to assume charge of a handicapped child, irrespective of his place of residence, whereas the Luxembourg allowance is designed to supply the needs of the handicapped person himself, for as long as he lives in Luxembourg, whether in his family circle or in an establishment.
78. The Parliament considers that the Court of First Instance did not err in law by deciding that it was justified to apply the rule against the overlapping of benefits laid down by Article 67(2) of the Staff Regulations.
79. Concerning the first point, the Parliament considers that the appellant's argument, according to which only the allowance under the Staff Regulations has in this case the character of a benefit ancillary to salary, is not supported by legal arguments and should therefore be dismissed. The Parliament adds that, moreover, the Court of First Instance gave sufficient reasons for its analysis on that question.
80. The Parliament maintains that the judgments in Commission v Belgium and Commission v Germany, relied on by the appellant, are not relevant to this case. It adds that those judgments were given in a different context and argues in particular that those cases concerned proceedings for failure to fulfil obligations, in which the Commission took the view that the national law of the Member States in question undermined the complementary character of the Community family allowances which results from Article 67(2) of the Staff Regulations. The Parliament also argues that, in those two judgments, the Court confined itself to identifying the circumstance in which the national law of the Member States in question cannot exclude the payment of a national benefit or deduct from the amount of such a benefit the amount of allowances paid under the Staff Regulations. According to the Parliament, that circumstance is limited to the case in which the spouse of an official carries on paid work.
81. The Parliament argues that the character of a national benefit as ancillary to a salaried activity cannot in any event be regarded as a determining factor for assessment in the context of Article 67(2) of the Staff Regulations, and that the Court of First Instance rightly confined itself to examining whether the benefits concerned were comparable and had the same purpose.
82. In that regard, the Parliament considers that the Court of First Instance was right to hold that the decisive criterion in assessing the nature of the benefits at issue for the purposes of Article 67(2) of the Staff Regulations lay in the fact that the two benefits in question are designed to provide financial help in facing the burdens imposed by the assistance and care required by a handicapped person.
83. It also emphasises that the two benefits in question are flat-rate in nature.
84. It refers finally to the judgment in Case T-117/89 Sens v Commission [1990] ECR II-185), to maintain that the fact that the beneficiaries of the two benefits in question are not identical does not constitute a relevant criterion for applying Article 67(2) of the Staff Regulations.

Findings of the Court

85. The appellant argues, in his third plea, that the Court of First Instance erred in law by holding that the allowance under the Staff Regulations and the Luxembourg allowance were of like nature within the meaning of Article 67(2) of the Staff Regulations, and that, therefore, the deduction made was justified.
86. As a preliminary point, it is necessary to examine the admissibility of this plea, which is challenged by the Parliament.
87. It follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1), first subparagraph, (c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the order or judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of that appeal (see, in particular, Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 34).
88. It is clear in this appeal that the appellant has criticised various passages of the contested judgment and indicated precise legal arguments in support of this plea. His plea has therefore been validly submitted before the Court.
89. As for whether that plea is well founded, the case-law of the Court shows that only allowances which are comparable and have the same purpose are of like nature for the purposes of Article 67(2) of the Staff Regulations (Gelders'Deboeck, paragraph 16).
90. That is a question of law subject to review by the Court of Justice on an appeal.
91. Under Article 67(3) of the Staff Regulations, the dependent child allowance may be doubled where the child concerned is suffering from a mental or physical handicap which involves the official in heavy expenditure.
92. It follows, first, that a comparable allowance can be deducted only from that part of the dependent child allowance that has been added, as a result of the doubling, to that to which the official is in any case entitled.
93. Above all, the Luxembourg allowance is clearly distinct from the allowance under the Staff Regulations from several points of view.
94. That allowance, which is granted solely on the basis of residence in Luxembourg territory and without regard to an employment relationship, is designed, by appropriate measures, to meet the challenges posed by a handicap which the law precisely defines. Finally, its amount is much higher than the part of the dependent child allowance which results from the doubling of the basic amount.
95. It is granted to persons one or more of whose physical or mental functions are, despite treatment, training or appropriate reeducation, and notwithstanding the use of suitable equipment, diminished in such a way that the person concerned cannot subsist without the assistance or care of another person.
96. It must, obviously, allow the person concerned to meet the expenses incurred in employing another person, at least part-time, which the part of the allowance under the Staff Regulations corresponding to its doubling does not permit, and the amount of which may be absorbed, for example, by costs such as care expenses, reeducation, equipment, specialised education or adaptation of accommodation.
97. In that regard, it should be noted that, in 2004, the doubling of the dependent child allowance under Article 67(3) of the Staff Regulations corresponded to an increase of EUR 260.96, whereas the Luxembourg allowance amounted to EUR 553.96.
98. It follows that the part of the dependent child allowance attributed by virtue of Article 67(3) of the Staff Regulations and the Luxembourg allowance have neither the same subject-matter nor the same purpose.
99. Therefore, the allowance under the Staff Regulations and the Luxembourg allowance are not of like nature within the meaning of Article 67(2) of the Staff Regulations.
100. It follows that, by holding that the Luxembourg allowance was of like nature with the allowance under the Staff Regulations within the meaning of Article 67(2) of the Staff Regulations, the Court of First Instance vitiated its judgment by an error of law.
101. The appellant's third plea is therefore well-founded.
102. The appeal must therefore be allowed in its entirety and the judgment under appeal annulled.

The consequences of annulment of the judgment under appeal

103. Under the first paragraph of Article 61 of the Statute of the Court of Justice, if the appeal is well-founded, the Court may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the Court of First Instance for judgment.
104. In this case, the state of the proceedings permits final judgment to be given.
105. As stated above, the allowance under the Staff Regulations and the Luxembourg allowance are not of like nature within the meaning of Article 67(2) of the Staff Regulations, and the appellant is therefore justified in seeking annulment of the decisions of 26 June 2003 and 28 April 2004 in so far as they require the deduction of the Luxembourg allowance from the double dependent child allowance.
106. As regards the determination of the appellant's rights, the deduction decision notified on 18 September 2000 has become definitive with all its financial effects, as it was not challenged within the time-limit for bringing an action. However, this Court decides that the Parliament must pay the appellant the sums which were wrongly deducted from his remuneration as from 1 July 2003, the date on which the decision of 26 June 2003 took effect, together with interest.

Costs

107. Under the first paragraph of Article 122 of the Rules of Procedure, where the appeal is well-founded and the Court of Justice itself gives final judgment in the case, it is to make a decision as to costs. Under Article 69(2) of the Rules of Procedure, which by virtue of Article 118 thereof, applies to appeal proceedings, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the appeal of Mr Weißenfels has been upheld and the Parliament's decisions of 26 June 2003 and 28 April 2004 have been annulled, the Parliament must be ordered, in addition to bearing its own costs, to pay the costs incurred by Mr Weißenfels both at first instance and on this appeal, as the latter has pleaded.

On those grounds, the Court (Second Chamber) hereby:

1. Sets aside the judgment of the Court of First Instance of the European Communities of 25 January 2006 in Case T-33/04 Roderich Weißenfels v European Parliament.

2. Annuls the decisions of the European Parliament of 26 June 2003 and 28 April 2004.

3. Orders the European Parliament to pay the appellant the arrears of dependent child allowances which he should have received as from 1 July 2003, together with interest at the statutory rate.

4. Orders the European Parliament to bear its own costs and to pay the costs incurred by Mr Weißenfels before the Court of First Instance of the European Communities and the Court of Justice of the European Communties.

[Signatures]

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* Language of the case: German.