JUDGMENT OF 20. 2. 1975 — CASE 37/74 VAN DEN BROECK v COMMISSION
In Case 37/74
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
II — Conclusions of the parties
III — Submissions and arguments of the parties
1. Legality of Article 4
(a) Applicant's arguments
(b) Arguments of the Commission
2. Interpretation of Article 4
(a) Applicant's arguments
(b) Arguments of the Commission
3. Application for legal interest
IV — Oral procedure
Law
Costs
I —. Facts
II —. Conclusions of the parties
1. Annul the decision rejecting the complaint implied by absence of reply to the complaint lodged by the applicant on 4 November 1973.
2. Rule that the defendant has wrongfully declined to pay an expatriation allowance to the applicant since 1 July 1972.
3. Order the defendant to pay the expatriation allowance with effect from 1 July 1972 as well as legal interest on arrears of the expatriation allowance calculated from the date each instalment fell due up to the date of payment.
4. Order the defendant to pay the costs. In its statement of defence, the Commission contended that the Court should:
1. Dismiss the appeal as without foundation.
2. Order the applicant to pay the costs.
III —. Submissions and arguments of the parties
1. Legality of Article 4
(a). Applicant's arguments
(b). Arguments of the Commission
2. Interpretation of Article 4
(a). Applicant's arguments
1. A preliminary inquiry was made in France in order to confirm her French nationality.
2. The applicant held a certificate of secondary education and a University degree, both of which she obtained as a French subject and not as an alien.
3. Her French University degree was recognized in Belgium.
4. The applicant was engaged as a member of the auxiliary staff, whose main working language was French.
5. Her personal file contains the following information relating to her nationality: nationality at birth: French; present nationality: Belgian.
(b). Arguments of the Commission
3. Application for legal interest
IV —. Oral procedure
1. The applicant seeks annulment of the decision rejecting her complaint lodged on 4 November 1973 in which she asked to be granted the expatriation allowance provided for under the Staff Regulations of Officials.
2. She also seeks an order for the Commission to pay her the expatriation allowance with effect from 1 July 1972.
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 when the individual concerned acquired the nationality of her husband by marriage.
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 legislation 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.
13. Although, on her marriage, the Belgian nationality of her husband had been conferred upon her, the applicant could have renounced it and thus retained her nationality of origin.
14. As the applicant chose not to avail herself of this right, there are no reasons associated with equal treatment why her Belgian nationality should not be taken into account in applying the provision concerned.
15. As she is a national of the State on whose territory the place where she is employed is situated, the applicant's position falls to be considered in the light of the conditions provided for under Article 4 (b) of Annex VII of the Staff Regulations.
16. As the applicant did not habitually reside outside Belgian territory during the ten years ending at the date of her entering the service she does not fulfil the conditions laid down under Article 4 (b) for payment of an expatriation allowance.
17. Her application must, accordingly, be dismissed.
18. Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.
19. The applicant has failed in her pleas.
20. Nevertheless, under Article 70 of the Rules of Procedure, in actions by staff of the Communities the institutions shall bear their own costs.
On those grounds, THE COURT (Second Chamber) hereby:
1 Dismisses the application;
2 Orders each party to bear its own cost.