JUDGMENT OF 7.6.1972 — CASE 32/71 BAUDUIN v COMMISSION

In Case 32/71

THE COURT (Second Chamber), composed of: H. Kutscher, President of Chamber, A. Trabucchi and P. Pescatore (Rapporteur), Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

II — Procedure

III — Conclusions of the parties

IV — Submissions and arguments of the parties

A — Illegality of Article 4(3) of Annex VII to the Staff Regulations

B — Infringement of Article 4(3) of Annex VII to the Staff Regulations

Grounds of judgment

Costs

I —. Facts

II —. Procedure

III —. Conclusions of the parties

(a). annul the decision of the Commission depriving her of the expatriation allowance as from 1 November 1970;

(b). annul the implied decision of the Commission rejecting the complaint which she had made on 2 March 1971 against the first decision ;

(c). rule that notwithstanding her marriage she has and has always had the right to the expatriation allowance by virtue of Article 4 of Annex VII to the Staff Regulations;

(d). order the defendant to bear the costs.

(a). dismiss the application in its totality as unfounded;

(b). order the applicant to bear the costs.

IV —. Submissions and arguments of the parties

A —. Illegality of Article 4(3) of Annex VII to the Staff Regulations

(a). The Court of Justice has the special task of ensuring the observance of the general principles of law, even though these are not necessarily embodied in any written text. General legal principles can be relied upon against measures adopted by the Community institutions. They derive not solely from the written or unwritten law of the Community but also from international law and from references to principles enshrined in the legal systems of the Member States.

(b). This principle is further sanctioned by several written texts, such as Convention No 100 (1951) of the International Labour Organization (ILO), the Resolution of the Conference of Member States of the Community of 30 December 1961 and Article 119 of the EEC Treaty.

(c). By providing that 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, Article 4(3) of Annex VII to the Staff Regulations creates a flagrant inequality between male and female officials placed in the same position. The link between the retention of the right to the allowance and the status of head of household leads to different results according to the sex of the official concerned; in fact, a married male official is automatically considered by the Staff Regulations to be a head of household (Article 1(3) (a) of Annex VII), whereas a married female official is so regarded only on a very exceptional basis. This link is entirely artificial, since the expatriation allowance is justified by changes in the living conditions of officials and is intended to compensate for the additional expenditure which officials incur in maintaining family, financial and other ties with their country of origin — which do not come to an end upon marriage. The status of head of household — a concept which is in fact no longer recognized by the civil law of four of the Member States of the Communities — is irrelevant as regards the material, family, psychological and emotional consequences of expatriation. Article 4(3) of Annex VII to the Staff Regulations therefore renders the grant of the expatriation allowance subject to a criterion which is extraneous to that allowance and leads to flagrant inequality between male and female officials. The Commission, in reply to a parliamentary question, has itself recognized that the link established between the right to the expatriation allowance and the status of head of household leads in fact, as regards the grant of that allowance, to different results according to sex. According to the principle of equality, a difference in treatment is legally admissible only where there is a well-founded relationship between the criteria adopted and the difference between the rules; that is not the case here.

(a). The applicant has established neither the existence nor, still less, the direct applicability and generality of the superior principle of law prohibiting any discrimination based on sex which it claims to find in the legal systems of Member States and in Community law.

(b). Article 4(3) of Annex VII to the Staff Regulations does not lay down different conditions according to sex for the acquisition or retention of the right to the expatriation allowance. Male and female officials have exactly the same right to the allowance. The contested provision subjects the retention of this right by the newly married official — where the spouse (whether male or female without distinction) does not satisfy the conditions for the grant of the allowance — to the sole condition of acquisition on marriage of the status of head of household.

(c). It must moreover be borne in mind that the grant of the expatriation allowance depends primarily on nationality. The argument of the applicant, which is bolstered by the fact that the Commission has admitted that the link established by the Staff Regulations between the right to the expatriation allowance and the status of head of household leads to different results according to the sex of the official concerned, implies necessarily that Article 4 of Annex VII is illegal in that that provision links the right to the expatriation allowance to nationality and leads also in this respect to different results according to sex, since certain national laws cause the wife to acquire the nationality of the husband, but not vice versa. The criterion of nationality for the grant of the expatriation allowance is perfectly reasonable and justified.

B —. Infringement of Article 4(3) of Annex VII to the Staff Regulations

(a). The question whether, at a given date, a person satisfies the requirements for entitlement to the expatriation allowance can relate, by definition, only to officials of the Community institutions. The terminology of Article 4(3) of Annex VII is by no means decisive. The first requirement for the grant of the allowance is that the person concerned should be in the service of the Communities; the other conditions are unascertainable with regard to a person who is not in the service of the Communities unless the provisions are to be distorted and interpreted in an arbitrary manner.

(b). In Article 4(2) and (3) of Annex VII, the Staff Regulations intended to examine and regulate two different cases: paragraph (2) relates to the marriage of two Community officials who are both entitled to the expatriation allowance, whereas paragraph (3) relates to the marriage of two officials, one of whom is not entitled to that allowance.

(c). Since Article 4(3) is a provision which derogates from a general rule it must be interpreted restrictively; such an interpretation, furthermore, would limit the consequences of this provision with respect to female officials, which are, to say the least, extremely unjust.

(a). The very wording of Article 4(2) and (3) of Annex VII to the Staff Regulations is at variance with the parallelism which the applicant claims to discern between these two provisions: first, by its use of the term person, which is unusual in the Staff Regulations, Article 4(3) indicates that it does not relate solely to officials or servants of the Communities but also to all other persons: secondly, the reference to the date of marriage would have no purpose if it applied solely to officials.

(b). The basic purpose of the expatriation allowance dictated the solution set out in Article 4(3) of Annex VII; there can therefore be no question of unjust consequences deriving from the application of this provision.

(c). The applicant's argument would itself create real discrimination; it would have the effect of depriving a female official of her expatriation allowance by reason of her marriage to an official who is not himself entitled to the allowance, but of entitling her to retain it if she marries a person who is not in the service of the Communities.

1. The application seeks the annulment of the decisions by which the administration of the Commission of the European Communities withdrew, with effect from 1 November 1970, the expatriation allowance which the applicant had previously received.

2. In support of her application, the applicant has advanced two submissions, based on the illegality of Article 4(3) of Annex VII to the Staff Regulations and, alternatively, on an infringement of that provision.

3. As her principal submission the applicant claims that Article 4(3) of Annex VII to the Staff Regulations, on which the contested decisions appear to be founded, is illegal because it is contrary to a general principle of law prohibiting any discrimination on grounds of sex and, more particularly, because it is contrary to Article 119 of the EEC Treaty relating to the principle of equal pay for male and female workers.

4. Under Article 4(3) of Annex VII 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.

5. Although this provision does not of itself create any difference of treatment as between the sexes, it must however be examined in conjunction with Article 1 (3) of the same Annex, which provides that the term head of household normally refers to a married male official, whereas a married female official is considered to be head of household only in exceptional circumstances, in particular in cases of invalidity or serious illness of the husband.

6. It is thus clear that the provision the validity of which is contested does in fact create a difference of treatment as between male and female officials inasmuch as it renders the retention of the expatriation allowance conditional upon the acquisition of the status of head of household within the meaning of the Staff Regulations.

7. It is therefore necessary to examine whether this difference of treatment is such as to affect the validity of the contested provision of the Staff Regulations.

8. The purpose of the expatriation allowance is to compensate for the special expenses and disadvantages resulting from entry into the service of the Communities for those officials who — in the conditions more fully set out in Article 4(1) of Annex VII — are thereby obliged to change their place of residence.

9. Article 4, taken as a whole, indicates that the expatriation allowance is paid to married officials not only in consideration of the personal situation of the recipient, but also of the family situation created by the marriage.

10. Thus Article 4(3) takes into account the new family situation entered upon by the official when he or she marries a person who does not satisfy the conditions for the grant of the expatriation allowance.

11. The withdrawal of the allowance following the marriage of the recipient might be justified in cases in which this change in the family situation is such as to bring to an end the state of expatriation which is the justification for the benefit in question.

12. In this respect, the Staff Regulations cannot however treat officials differently according to whether they are male or female, since the termination of the status of expatriate must be dependent for both male and female officials on uniform criteria, irrespective of sex.

13. Consequently, by rendering the retention of the allowance subject to the acquisition of the status of head of household — as it is defined in Article 1 (3) — the Staff Regulations have created an arbitrary difference of treatment between officials.

14. Consequently, the decisions taken with regard to the applicant are devoid of any legal basis and must be annulled in pursuance of Article 184 of the EEC Treaty.

15. In these circumstances, there is no need to give a decision on the alternative submission.

16. Under the first subparagraph of Article 69(2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

17. Since the defendant has failed in its submissions, it must be ordered to pay the costs.

On those grounds, 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 Treaty establishing the European Economic Community, especially Articles 119 and 184; Having regard to the Staff Regulations of Officials, especially Annex VII; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Rules of Procedure, THE COURT (Second Chamber) hereby:

1 Annuls the decisions by which the Commission of the European Communities withdrew the applicant's expatriation allowance;

2 Orders the Commission to bear the costs of the proceedings.