Brussels, 15.4.2004
COM(2004) 1364
 

COMMISSION DECISION - of 15.4.2004

on General implementing provisions concerning persons to be treated as dependent children (Article 2(4) of Annex VII to the Staff Regulations)

1. It is necessary, in view of the judgment of the Court of 7 May 1992 in Case C-70/91 and in the light of experience, to revise the general provisions for giving effect to Article 2(4) of Annex VII to the Staff Regulations adopted by the Commission in 1989;
    
2. Generally, under Article 2(4) of Annex VII to the Staff Regulations treatment of a person as a dependent child may be allowed only exceptionally "by special reasoned decision of the appointing authority"; the appointing authority, in assessing the facts and circumstances invoked in support of applications for such treatment, thus enjoys a wide margin of discretion; in the interests of equal treatment for all officials, certain objective criteria should however be established in order to ensure that these powers of assessment are exercised uniformly;
    
3. To this end there is a need to define the factors to be considered in assessing whether the maintenance of such a person involves heavy expenditure for the official,

HAS ADOPTED THESE PROVISIONS:

• SECTION 1 – GENERAL
  • Article 1
     
• SECTION 2 - LEGAL RESPONSIBILITY FOR MAINTENANCE
  • Article 2
  • Article 3
  • Article 4
     
• SECTION 3 - HEAVY EXPENDITURE
  • Article 5
  • Article 6
  • Article 7
  • Article 8
  • Article 9
  • Article 10
     
• SECTION 4 - DECISION TO AUTHORISE TREATMENT AS A DEPENDENT CHILD
  • Article 11
  • Article 12
     
• SECTION 5 - REPEALING, TRANSITIONAL AND FINAL PROVISIONS
  • Article 13
  • Article 14

SECTION 1 – GENERAL

Article 1

The purpose of these general provisions is to specify the conditions under which a person may be treated as a dependent child pursuant to Article 2(4) of Annex VII to the Staff Regulations.
Treatment as a dependent child may be authorised by the appointing authority provided all the conditions set out below are satisfied.

SECTION 2 - LEGAL RESPONSIBILITY FOR MAINTENANCE

Article 2

Legal responsibility for maintenance means the obligation between relatives by blood or marriage expressly laid down by law, to the exclusion of any obligation of a contractual, moral or compensatory nature.

Officials’ financial obligations towards their spouse or former spouse are not covered by Article 2(4) of Annex VII to the Staff Regulations.

Article 3

1. Where there exist factors connecting the case with more than one law, the applicable law shall be determined in accordance with the rules concerning conflicts of laws applicable by the court having jurisdiction.
    
2. The court having jurisdiction shall be determined in accordance with the rules concerning the choice of court including, where appropriate, those laid down by the relevant international agreements, notably the amended Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.

For the purpose of the provision set out in paragraph 1, officials shall be assumed to be resident at their place of employment, in the absence of evidence to the contrary.

Article 4

It shall be for the official to establish, on the basis of supporting documents, the existence of legal responsibility for maintenance, the expenditure stemming from it and the amount of the financial contribution actually made.

Treatment as a dependent child may be authorised only if the expenditure stemming from the legal responsibility for maintenance is at least equal to the amount resulting from such authorisation.

The appropriate departments shall provide the official with any guidance needed on this Section, particularly with regard to the nature of the supporting documents required.

SECTION 3 - HEAVY EXPENDITURE

Article 5

1. The cost to the official of maintaining the person whose treatment as a dependent child is requested shall be taken into consideration only up to an amount equivalent to:
    
   • 40 % of the basic monthly salary of an official in the first step of Grade 1, ⁽¹⁾ where that person permanently resides in the official's household;
      
   • 50% of that basic monthly salary where that person does not permanently reside in the official's household;
     the said amounts being reduced by the person's net income.
      
2. Where an official requests that several persons living in the same household be treated as dependent children, the cost of maintaining those persons shall be taken into consideration:
    
   • for the first person, up to the amount specified in paragraph 1;
      
   • for the second person, up to 25% of the basic salary referred to in paragraph 1 where that person does not permanently reside in the official's household and 20% where he or she does;
      
   • for the remaining person(s), up to the amount of the dependent child allowance specified in Article 2(1) of Annex VII to the Staff Regulations;

   the said amounts being reduced by the net income of the persons to be treated as dependent children.
    

3. Where the person whose treatment as a dependent child is requested is married, the net incomes of the couple shall be taken into consideration, as if treatment as dependent children were being requested for both spouses.
    
4. An increase in this cost of maintenance shall be taken into consideration where evidence is provided of regular additional expenditure occasioned by the person whose treatment as a dependent child is requested, in respect of:
    
   • that part of the remuneration of a nurse whose attendance on that person has been prescribed by a doctor, including any social security contributions, which is not met by the national or Community authorities;
      
   • contributions to a sickness insurance scheme for the person to be treated as a dependent child;
      
   • medical expenses not reimbursed by a sickness insurance scheme in excess of, as a monthly average, 2% of the basic salary of an official in the first step of Grade 1⁽¹⁾;
      
   • board and lodging in a home for the elderly, exceeding 50% of the basic salary of an official in the first step of Grade 1, (1), up to a maximum of 20% of that salary.
      
5. A maximum cost of maintenance shall be determined in the case of an official requesting treatment of three or more persons as dependent children. It shall correspond to the difference between the official's net salary plus any other net income, and the basic salary of an official in the first step of Grade 1 ⁽¹⁾, plus any household allowance and dependent child allowance(s). Should the amount thus obtained be less than the cost of maintenance as determined by the other provisions of Section 3, it is that amount which shall serve as the reference for establishing heavy expenditure.

Article 6

Where persons other than the official also have a legal responsibility for maintaining the person whose treatment as a dependent child is requested, the cost taken into consideration in accordance with Article 5 shall be reduced by that part of the costs of maintaining that person which they are required to bear.

For the purpose of determining that amount, all the persons with a legal responsibility for maintaining the person whose treatment as a dependent child is requested shall be presumed to share the cost of maintenance specified in Article 5 in proportion to their net income.

Article 7

The income of the person whose treatment as a dependent child is requested and that of the persons having legal responsibility for his or her maintenance means income of any kind, including unearned income, family allowances and other allowances and pensions.

It also includes the rental value of any dwelling owned by the person whose treatment as a dependent child is requested or of which he or she is the usufructuary. This rental value shall be fixed at 12% of the basic salary of an official in the first step of Grade 1 ⁽¹⁾.

The income to be taken into consideration shall be the net monthly income of the persons concerned, calculated by dividing net annual income by twelve.

Article 8  

The amounts laid down in the Staff Regulations and those referred to in Articles 5, 6, 7, 9 and 12 of these general provisions shall be weighted using the weightings for the country of employment of the official and the place of residence of the other persons concerned, in accordance with the second indent of Article 3(5) of Annex XI.

If the income referred to in Articles 5, 6, 7, 9 and 12 of these general provisions is not expressed in euros, it shall be converted at the euro rate applicable on the day when the entitlement takes effect.

Article 9

Without prejudice to Article 10, maintenance of the person whose treatment as a dependent child is requested shall be deemed to involve heavy expenditure for the official where the amount of the cost of maintenance taken into consideration in accordance with Article 5, less:

• the amount of the contributions by other persons to this maintenance in accordance with Article 6 and
   
• all the official's net income from other sources,

is more than 20% of the taxable amount of the official's remuneration. Any other person already being treated as a dependent child of the official shall not be taken into consideration for the purpose of calculating the taxable amount.

This percentage shall be increased by ten points in respect of each of the other persons whose treatment as dependent children is requested.

If the official's remuneration is based on part-time employment, it is the full-time salary that shall be taken into consideration for the purpose of calculating the taxable amount referred to above.

Article 10

By way of exception, the appointing authority may authorise treatment as a dependent child where the amount of the cost of maintenance reduced, where appropriate, by the amounts specified in Article 9 is equal to or less than the percentage of income specified in that Article, on condition that maintenance of that person involves particularly heavy expenditure for the official.

SECTION 4 - DECISION TO AUTHORISE TREATMENT AS A DEPENDENT CHILD

Article 11

1. The decision by the appointing authority shall be taken on the basis of a written application accompanied by documentary evidence concerning all the factors which have to be taken into account pursuant to these general provisions.
    
2. Where a favourable decision is taken, it shall take effect from the first day of the month during which the official lodges the application and submits the necessary supporting documents and shall cease to be valid one year from that date at the latest.
   
   An application may be made for it to be renewed.
    
3. The official shall inform the administration of any change in the circumstances on which the decision granting the allowance was based.
   
   Where the conditions for maintaining this decision in force cease to be satisfied as the result of such a change, the decision shall be revoked with effect from the first day of the month following that during which the change occurred.

Article 12

1. From the time the favourable decision is taken, the official must provide evidence that he or she is contributing regularly to the maintenance of the person being treated as a dependent child by a monthly amount at least equal to:
    
   • 20% of the taxable amount of his or her remuneration, calculated on the basis of the full basic salary, plus all other net income; persons treated as dependent children shall not be taken into consideration for the purpose of calculating the taxable amount; or
      
   • the additional amount received as a result of the favourable decision plus 20%; whichever is the higher.
      
2. Where the treatment of several persons as dependent children is authorised, the percentage specified in the first indent of the above paragraph shall be increased by ten in respect of each of those persons after the first.
    
3. The evidence referred to in paragraph 1 shall not be required where the person treated as a dependent child permanently resides in the official's household.
   
   The responsible department may check by appropriate means that this condition is being met.
    
4. In the absence of proof of payment for all or part of the term of validity of the decision, the said decision shall cease to be operative for the periods concerned and any sums received by the official for those periods shall be recovered by the administration in accordance with Article 85 of the Staff Regulations.

SECTION 5 - REPEALING, TRANSITIONAL AND FINAL PROVISIONS

Article 13

These provisions repeal and replace the general implementing provisions concerning persons to be treated as dependent children, adopted by the Commission on 28 September 1989 with effect from 1 October 1989.

Article 14

These provisions shall take effect, after adoption by the Commission, on the first day of the month following their

publication in the Administrative Notices.

Decisions taken on the basis of the previous general implementing provisions shall remain valid until their expiry.

Done at Brussels, 15.4.2004.

______________________________
Footnotes

⁽¹⁾ For the period from 1 May 2004 to 30 April 2006: Grade D*1, step 1.