Opinion of Mr advocate-general Roemer

Mr President,

Members of the Court,

Under Article 27 of Annex VIII to the Staff Regulations (the so-called pension scheme) The divorced wife of an official shall be entitled on his death to a survivor's pension, as defined in this Chapter, provided that the court which pronounced the decree of divorce found that the official was solely to blame. Article 28 of the pension scheme provides that Where a divorced official who has remarried leaves a widow entitled to a survivor's pension, that pension shall be divided, in proportion to the duration of the marriages, between the divorced wife if she has not remarried and the widow, if the court which pronounced the decree of divorce found that the official was solely to blame. Article 28 states further The amount to which the divorced wife is entitled if she has not remarried shall be not more than the amount of the maintenance awarded to her under the decree.

It is on these provisions that the applicant in the present proceedings bases her application to the Commission for the award of a share in the survivor's pension. She married on 19 May 1945 but had no children. On 1 July 1961 her husband became an official of the Commission of the European Communities. She was divorced by a decree of 27 February 1962 of the Landgericht (Regional Court) Wiesbaden which stated that her husband was to blame for the divorce. After the divorce the applicant, who did not remarry and who apparently worked both during and after the marriage, received from her former husband regular monthly payments of DM 200 which were made neither under a court order nor under a written agreement. On 4 January 1963 the divorced husband contracted a second marriage, of which there is one child. He died on 22 September 1969 when still in the service of the Commission. Until his death he continued to make the abovementioned payments to his first wife.

After the death of this official lengthy disputes arose between his first and second wives and the Commission over the question of the maintenance payments to the first wife and her share in the survivor's pension payable by the Community. The divorced wife relied on the existence of an implied maintenance agreement and claimed that the second wife must continue to make the monthly payment of DM 200. The second wife rejected this claim on the ground that, as the divorced wife had a sufficient income of her own, the payments made by the deceased official were not by way of maintenance, but represented voluntary donations. As a result of this dispute the Commission did not pay the second wife the full survivor's pension payable under the Staff Regulations but reduced it by the sum of DM 200. In a letter to the divorced wife dated 28 July 1970 the Directorate-General for Personnel and Administration expressed the view that it was uncertain whether under Community law a right to maintenance vested in the first wife otherwise than under a court order could be taken into account. It also suggested that an amicable agreement be concluded between the parties. However, it is clear from a letter to the Commission from the second wife dated 27 November 1970 that no such agreement was reached. The Commission therefore considered itself bound to settle the dispute. It did so in a decision of the Directorate-General for Personnel and Administration of 18 February 1971, which was notified to the applicant's representative on 1 March 1971. It stated that, in order for the survivor's pension to be divided, the deceased official must have been under an obligation to maintain the first wife. However, in the view of the Commission it was not clear that the payments made were in fact the result of an obligation to pay maintenance. Furthermore, the survivor's pension could only be divided if the obligation to pay maintenance derived from the decree of divorce. As it is not, payment of a survivor's pension must be refused.

On 1 June 1971 Mrs Elfriede Meinhardt lodged an application against this decision. In her application she claims that the Court should annul the decision of the defendant and rule that the applicant is entitled to a half share in the survivor's pension which is payable in law to the widow of Mr Willy Meinhardt. The claim was amended in the reply and a share in the survivor's pension to the extent of only DM 200 was claimed. Finally, in the oral proceedings the applicant returned to her original claim.

On the other hand, the Commission contends that the Court should dismiss the application as unfounded; alternatively, dismiss the application as unfounded to the extent to which the applicant seeks a survivor's pension of an amount greater than the monthly payments of DM 200 made by Mr Willy Meinhardt until his death.

These conclusions are supported by Mrs Marianne Meinhardt, née Prange, of Tervuren, the second wife of the deceased official. By order of the Court of 22 September 1971 the second wife was given permission to intervene in the proceedings.

1. Before embarking on a consideration of the substance of the conclusions I must make a short preliminary observation concerning the variations which have occurred in the applicant's heads of claim.

2. The substance of the case concerns the question whether the Commission was justified in refusing the applicant a share in the survivor's pension. As we know, it did so on the ground that the Commission was not in a position to establish whether the deceased husband of the applicant was under an obligation to pay her maintenance, as such an obligation must issue from the decree of divorce or from some other order of the court. Failing this it can only be held, according to the Commission, that there was no obligation to pay maintenance and that an essential prerequisite for the award of a survivor's pension is lacking.

3. I therefore propose in conclusion that the application be allowed to the extent mentioned above, that is, that the contested decision be annulled and that the Commission be ordered to award the applicant a share of DM 200 per month in the survivor's pension. In so far as the applicant's claim is in excess of this amount, it must be dismissed as unfounded. If my proposal is accepted the Commission and the intervener should also be ordered to pay part of the costs incurred by the applicant, as she has been partially successful in her action.

1 Translated from the German.