Opinion of Mr Advocate-General Karl Roemer

Mr President,

Members of the Court,

Article 4 of Annex VII to the Staff Regulations of Officials of the Communities provides that under certain conditions officials are entitled to an expatriation allowance. Mrs Sabbatini (née Bertoni) and Mrs Chollet (née Bauduin), who are the applicants in Cases 20/71 and 32/71 respectively on which I am giving my opinion today (in future I shall refer to them as the first applicant and the second applicant), were granted such an allowance. In fact, on taking up her appointment in Luxembourg, the first applicant, who entered the service of the European Parliament on 1 January 1960 as an official in Grade C/1, was of Italian nationality and had not during the five years ending six months before she entered the service resided or carried on her main occupation within the Grand-Duchy. As for the second applicant, she was a French national when she entered the service of the Commission of European Economic Community on 2 July 1962 as an official in Grade C/3. She was not at that time in a position, regarding her residence or occupation, which precluded entitlement to an expatriation allowance.

The applicants however lost their right to such an allowance pursuant to Article 4(3) of Annex VII, which provides : An official who marries a person who at the date of marriage does not qualify for the allowance shall forfeit the right to expatriation allowance unless that official thereby becomes a head of household. And this was indeed the case for the first applicant when she married on 4 November 1970, as her husband was born in Luxembourg, had always lived there and was not in the service of the Communities. As for the second applicant, she was married on 31 October 1970 to a Belgian national who is also unconnected with the Communities. The first applicant was informed by. letter dated 17 November 1970 from the Directorate-General for Administration that her expatriation allowance would be withdrawn as from 1 December 1970. As for the second applicant, she first of all continued to receive the expatriation allowance until and including the month of January 1971, but from her salary slip for February 1971 she discovered that the allowance had been discontinued. Furthermore, a letter from the Administration of 12 March 1971 informed her that in accordance with a memorandum from the Individual Rights Division, her expatriation allowance was withdrawn as from 1 November 1970 and that she was required to refund amounts received as expatriation allowance for the months of November 1970 to January 1971.

The applicants both consider that the measures taken in their regard are illegal. Consequently, on 15 February 1971, the first applicant sent a memorandum to the Directorate-General for Administration in which she pointed out that the concept of head of household no longer existed in the legal systems of a number of Member States and concluded from this that the provision applied in her case should not be interpreted too restrictively. Arguing further that the said provision was incompatible with Article 119 of the EEC Treaty, which embodies the principle of equal pay for men and women for the same work, she maintained that the measure taken against her should be reversed. But this complaint did not succeed. In a letter of 24 February 1971 the Directorate-General for Administration replied that the provisions which had been applied were perfectly clear and that the arguments which she advanced were not such as to alter the decision affecting her.

The second applicant suffered a similar fate. On 2 March 1971 she submitted to the President of the Commission a complaint under Article 90 of the Staff Regulations of Officials asserting, as in the case of the first applicant, that the principle of equality of treatment had been violated. She also argued that, notwithstanding her marriage, she still had the status of head of household on the grounds that she retained ownership of her property under the matrimonial system of separate estates, that she owned property in France and that furthermore she had to pay frequent visits to France to look after her parents' estate. But her request for a reversal of the decision did not receive any reply.

Such, Gentlemen, are the circumstances in which the cases brought before you by the first applicant on 26 April 1971 and by the second applicant on 18 June 1971 have arisen.

So far as concerns the first applicant, she claims in her application that the Court should :

As for the second applicant, she requests the Court to:

The second applicant also requested in the alternative that the Court should find that she has retained the status of head of household but (if I have properly understood her) she withdrew this plea at the hearing.

As the applicants are represented by the same counsel and as, in substance the arguments advanced in support of their claims are identical, the two cases have been joined for the purposes of the oral procedure by Order of 3 December 1971. Consequently, I think I may be permitted to consider them together in my opinion.

1 Translated from the French version.