JUDGMENT OF 20. 2. 1975 — CASE 21/74 AIROLA v COMMISSION

In Case 21/74

THE COURT (Second Chamber) composed of: A. J. Mackenzie Stuart, President of Chamber (Rapporteur), H. Kutscher and M. Sørensen, Judges, Advocate-General: A. Trabucchi Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and procedure

II — Submissions of the parties

III — Submissions and arguments of the parties

IV — Oral procedure

Law

Application for legal interest

Costs

I —. Facts and procedure

II —. Submissions of the parties

(1). Order the defendant to pay the applicant the expatriation allowance with effect from 1 June 1973, as the payment made to the applicant under this head for the period 1 July 1972 to 31 May 1973 is the property of the applicant;

(2). As necessary, annul the decision of the defendant communicated on 23 May 1973 cancelling the decision communicated on 18 May 1973 to grant the applicant the privilege of the expatriation allowance with effect from 1 July 1972 or, in the alternative, declare that the defendant is acting unlawfully in not deciding to grant the applicant the expatriation allowance with effect from 1 July 1972 and, accordingly, order the defendant so to decide;

(3). As necessary, annul the implied decision rejecting the applicant's complaint of 16 August 1973 and, as necessary, any other decision on the part of the defendant which infringes the applicant's recognized right to the expatriation allowance;

(4). Order the defendant to pay the legal interest on the arrears of expatriation allowance calculated from the date when each instalment fell due to the date of actual payment and to pay the costs of the action.

(1). Dismiss the appeal as without foundation;

(2). Order the applicant to pay the costs.

III —. Submissions and arguments of the parties

(1). The meaning of a general term must, notwithstanding its generality, be limited to what is required by legality and above all, in this case, the overriding principle of the right of officials to be treated alike. Words which, originally, had a wide meaning should, as a result of changes in prevailing attitudes on the subject concerned, be given a narrower meaning which does not permit discrimination between men and women.

(2). The law should go no further than its purpose requires. If nationality acquired by marriage has no relevance to the state of expatriation, the word nationality in Article 4 (1) (b) should not and cannot be taken to refer to anything other than nationality of origin and not nationality acquired by marriage.

(3). With two interpretations to choose from, one of which is consistent with legality and the other is not, the first must prevail. The applicant maintains that, in view of this, the Court is not bound by words whose meaning is clear and that therefore it has the power and the duty to circumscribe their meaning in accordance with the requirements of legality and its underlying purpose.

IV —. Oral procedure

1. The applicant seeks annulment of the decision of 23 May 1973 by which the Commission withdrew the decision granting her the expatriation allowance provided for under the Staff Regulations of Officials.

2. She is also seeking an order that the Commission shall pay her the expatriation allowance with effect from 1 June 1973.

3. She contends that the condition laid down in Article 4 (a) of Annex VII of the Staff Regulations, whereby an expatriation allowance shall be paid to officials who, in the words of the Article, are not and have never been nationals of the State in whose European territory the place where they are employed is situated does not apply if, owing to circumstances outside her control and solely as the result of national laws, the individual concerned acquires dual nationality.

4. In the case of a female official who is granted the nationality of her husband as a result of her marriage with a national of another State, the application of that condition results in discrimination, since under no national legislation does the male official acquire the nationality of his wife.

5. On the question of nationality, the provisions of national legislations are not uniform; some laws, particularly those of recent date, provide that a foreign wife does not automatically acquire the nationality of her husband, whereas, under other legislations, it is still provided that, as was once the common rule, the nationality of a married woman depends upon that of her husband.

6. In accordance with the general pattern of Article 4 of Annex VII this provision adopts the official's habitual residence before he entered the service as the paramount consideration in determining entitlement to an expatriation allowance.

7. The official's nationality is regarded as being only a subsidiary consideration, i.e. as serving to define the effect of the length of such residence outside the territory in which the place where he is employed is situated.

8. The object of the expatriation allowance is to compensate officials for the extra expense and inconvenience of taking up employment with the Communities and being thereby obliged to change their residence.

9. Though expatriation is a subjective state conditioned by the official's assimilation into new surroundings, the Staff Regulations of Officials cannot treat officials differently in this respect according to whether they are of the male or of the female sex since, in either case, payment of the expatriation allowance must be determined by considerations which are uniform and disregard the difference in sex.

10. The concept of nationals contained in Article 4 (a) must therefore be interpreted in such a way as to avoid any unwarranted difference of treatment as between male and female officials who are, in fact, placed in comparable situations.

11. Such unwarranted difference of treatment between female officials and officials of the male sex would result from an interpretation of the concept of nationals referred to above as also embracing the nationality which was imposed by law on an official of the female sex by virtue of her marriage, and which she was unable to renounce.

12. It is therefore necessary to define the concept of an official's present or previous nationality under Article 4 (a) of Annex VII as excluding nationality imposed by law on a female official upon her marriage with a national of another State, when she has no possibility of renouncing it.

13. In the present case the applicant, on her marriage, had the nationality of her husband conferred on her without the right to renounce it but by an express declaration she retained her Belgian nationality of origin.

14. Consequently, in applying the provision in question, the applicant's Italian nationality has not to be taken into account.

15. The applicant, accordingly, fulfils the condition of Article 4 (a) of Annex VII of the Staff Regulations.

16. The decision of 23 May 1973 by which the Commission withdrew its original decision to pay the applicant the expatriation allowance provided for by the Staff Regulations of Officials must, therefore, be annulled.

17. In conclusion the applicant applies for legal interest on the arrears of expatriation allowance calculated from the date when each became due until the date of actual payment.

18. is In the course of the proceedings the applicant has made no attempt to justify this request.

19. As the defendant interpreted the provision in question erroneously but in good faith, it should not be called upon to pay interest.

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

21. As the defendant has failed on the substance of the case, it must be ordered to pay the whole of the costs.

On those grounds, THE COURT (Second Chamber) hereby:

1 Annuls the decision of 23 May 1973 in which the Commission withdrew its original decision granting an expatriation allowance to the applicant;

2 Orders the defendant to pay the expatriation allowance to the applicant with effect from 1 June 1973;

3 Dismisses the application for legal interest;

4 Orders the defendant to pay the whole of the costs of the action.