JUDGMENT OF 17.5.1972 — CASE 24/71 MEINHARDT v COMMISSION

In Case 24/71

THE COURT (First Chamber) composed of: J. Mertens de Wilmars (Rapporteur), President of Chamber, H. Kutscher and R. Monaco, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Conclusions

III — Submissions and arguments of the parties

(a) The need for a judicial decision

(b) The de facto obligation on the divorced spouse to pay maintenance to the applicant

(c) Conditions of division of the pension

(a) The need for a judicial decision

(b) The de facto obligation to pay maintenance and the payments of DM 200 seen as maintenance

(c) The manner of payment of the pension

Grounds of judgment

Costs

I —. Facts and procedure

1. In 1945 Mr W. Meinhardt, a servant of the Commission, contracted a marriage with the applicant which was dissolved by a decree of the Landgericht (Regional Court) Wiesbaden of 27 February 1962 which found him solely to blame. On 4 February 1963 he contracted a second marriage with Miss Prange. He died on 22 Septermber 1969.

2. The applicant, to whom, since the divorce, Mr Meinhardt had intermittently paid a monthly allowance of DM 200, requested the Commission to grant her a share in the survivor's pension provided for by Article 79 of the Staff Regulations of Officials.

3. By letter dated 18 February 1971 signed by a Director-General of the Commission of the European Communities and received by the applicant on 9 March 1971 the applicant was informed that she could not claim pension rights from the Commission under the provisions of Article 28 of Annex VHJ to the Staff Regulations (Schedule I, statement of defence).

4. By an application lodged on 1 June 1971 the applicant brought the present action against the decision of 18 February 1971.

II —. Conclusions

1. dismiss the application as unfounded;

2. 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;

3. order the applicant to pay the costs.

III —. Submissions and arguments of the parties

1. The applicant maintains that the question to be settled in this action is whether a right to maintance, the amount of which was not fixed by the decree of divorce itself, falls within the concept of maintenance awarded … under the decree referred to in the first paragraph of Article 28 of Annex VIII to the Staff Regulations.

2. The defendant and the intervener reply that the following conditions must be satisfied before the survivor's pension can be divided between the widow and the deceased servant's divorced wife, if the latter has not remarried:

(a). The need for a judicial decision

(b). The de facto obligation on the divorced spouse to pay maintenance to the applicant

(c). Conditions of division of the pension

3. The applicant replies as follows:

(a). The need for a judicial decision

(b). The de facto obligation to pay maintenance and the payments of DM 200 seen as maintenance

(c). The manner of payment of the pension

1. The application seeks in the first place the annulment of the decision contained in the letter dated 18 February 1971 and addressed to the applicant by the Director-General for Personnel of the Commission. By this decision the defendant refused to award to the applicant a share in the survivor's pension which, under Articles 27 and 28 of Annex VIII to the Staff Regulations of Officials, is payable in certain circumstances to the divorced wife of a deceased official who also leaves a widow.

2. Under Article 79 of the Staff Regulations, the widow of an official is entitled to a survivor's pension under the conditions laid down in Annex VIII to these Regulations. Article 17 of this Annex governs the entitlement to a pension of the widow of a deceased official. Article 27 of this Annex states that the divorced wife of an official shall be entitled on his death to a survivor's pension provided that the decree of divorce found that the official was solely to blame and that the divorced wife has not remarried before the death of her former husband. Article 28 of Annex VIII governs the award of the survivor's pension where the deceased official leaves a widow and a divorced wife. In such a case the survivor's pension is in principle divided in proportion to the duration of each marriage.

3. These provisions are not intended to preserve in a different form, for the benefit of a widow or divorced wife, an obligation to pay maintenance which stems from the marriage or the divorce, but establish a right which the parties concerned hold directly under the Staff Regulations in their capacity as the widow or the divorced wife who has not remarried. However, under Article 28 the amount to which the divorced wife is entitled if she has not remarried shall not be more than the amount of the maintenance awarded to her under the decree of divorce.

4. The reasons for the Commission's rejection of the applicant's claim are, on the one hand that the applicant has not shown that the monthly maintenance payments of DM 200 made by her husband were due to her by way of maintenance as a result of [their] divorce and on the other hand that under Article 28 of the abovementioned Annex the maintenance had to be awarded and its amount fixed by the decree of divorce, which was not so in the present case.

5. Article 28 does not concern the existence of the right to the survivor's pension, but how the share to be paid to the divorced wife is to be determined where her right is in competition with that of the widow. This is confirmed by the second paragraph of this provision which states that if any of the persons entitled to pension dies, her share shall accrue to the share of the other person. Moreover, the defendant acknowledges that the provision in dispute cannot be construed literally in so far as it requires that the amount of the pension must be determined by the decree of divorce itself, but maintains that, at all events, the production of a judicial decision is necessary.

6. The existence and extent of the obligation on the part of the official to pay maintenance to his divorced wife must in principle be determined in accordance with the law which governs the consequences of divorce. In many States, and in certain Member States in particular, the maintenance payable by a spouse as a result of divorce need not, and even in certain cases cannot, be fixed by the decree of divorce or by a subsequent judicial decision, but may, inter alia, be established by an agreement between the parties. To require proof of the existence and extent of the obligation to pay maintenance by a judicial decision, when the law governing the consequences of the divorce does not recognize or, at all events, does not require recourse to such a decision, would in certain cases frustrate the exercise of a right to a survivor's pension which the Staff Regulations confers on the divorced wife whose husband is found solely to blame for the divorce. This could not have been the intention of the authors of the Staff Regulations. Therefore, the final sentence of the first paragraph of Article 28 cannot be interpreted as excluding other means of proving the obligation to pay maintenance which are required or accepted by the law governing the consequences of divorce. The purpose of Article 28 is therefore to establish a reliable point of reference based on the internal law applicable to the parties concerned.

7. Therefore, by refusing to award the applicant the share in the pension provided for in Article 28 of Annex VIII, without having considered whether the law governing the consequences of the divorce requires a judicial decision as proof of the right to maintenance, the defendant has infringed that article.

8. The decision must therefore be annulled.

9. In the second place the application asks the Court to rule that the applicant is entitled to a share in the survivor's pension and to determine the amount of that share. The Court has jurisdiction under Article 91 of the Staff Regulations to adjudicate upon this claim.

10. It is established that the applicant's husband was found solely to blame for the divorce and that she has not remarried. Moreover, it is acknowledged by the parties to the action that Mr Willy Meinhardt paid the applicant DM 200 every month without fail from the divorce to his death. The applicant and the deceased official were of German nationality and the decree of divorce was pronounced in the Federal Republic of Germany.

11. The parties also accept that under German law, which in the present case governs the position of the divorced spouses, the maintenance which the wife is entitled to claim in the circumstances laid down in Article 58 of the German Marriage Law (Ehegesetz) may form the subject of an agreement between the parties. This agreement may even be implied and it may be proved by the circumstances surrounding its performance, and in particular those concerning payment, if they are such as to show that the payments were made by way of maintenance.

12. Although proof of the existence and of the amount of the maintenance payable as a result of the divorce is in the present case governed by German law, it is for the Commission and, in the case of an action before the Court of Justice, for the Court, which is charged with applying Article 28 of Annex VIII, to consider, in order to ensure the correct application of the said Article 28, whether the conditions required by the national law are satisfied. The fact that the payments extended over a long period, their regularity, the amount of the sum in relation to the salary of the official and the supposed income of the divorced wife, together with the fact that the official was found solely to blame for the divorce, constitute reasonable grounds for concluding that these payments were made in performance of an obligation to pay maintenance arising from the divorce. Furthermore, neither the defendant nor the intervener have put forward any acceptable reason which would have led Mr Meinhardt to make the payments in question if he had not considered himself bound to make them as a result of an obligation to pay maintenance. The applicant is, therefore, entitled to a share in the survivor's pension.

13. This share must be fixed at DM 200 per month, which corresponds to the amount of the pension paid to her at the time when her divorced husband died. The questions of her resources in relation to her present needs and whether she may possibly have a maintenance claim against the heirs of her divorced husband are irrelevant to the application of Articles 27 and 28 of Annex VIII to the Staff Regulations. These provisions do not govern the continuation of an obligation to pay maintenance but a right which the divorced wife and the widow hold directly under the Staff Regulations; in this connexion the claim to maintenance against the deceased official is only a factor for the purpose of calculating the division of the pension.

14. Under Article 69(2) of the Rules of Procedure the unsuccessful party shall be ordered to bear the costs. The defendant has failed in its submissions.

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties ; Upon hearing the opinion of the Advocate-General; Having regard to the Staff Regulations of Officials, especially Articles 79 and 91 and Annex VIII, Articles 17, 27 and 28; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Article 69, THE COURT (First Chamber) hereby :

1 Annuls the decision of the Commission contained in the letter of 18 February 1971.

2 Orders the Commission of the European Communities to pay to the applicant a monthly sum of DM 200 to be deducted from the pension which it is required to pay under Article 79 of and Annex VIII to the Staff Regulations.

3 Orders the Commission of the European Communities to bear the applicant's costs.

4 Orders the intervener to bear her own costs.