C-20/71
ECLI:EU:C:1972:48
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JUDGMENT OF THE COURT (SECOND CHAMBER) 7 JUNE 1972<apnote>1</apnote>
Luisa Sabbatini, née Bertoni, v European Parliament2
Case 20/71
Summary
Officials — Expatriation allowance — Marriage of the recipient — Retention of the allowance — Conditions — Status of 'head of household' — Different treatment of male and female officials — Not permissible (Staff Regulations of Officials of the European Communities, Annex VII)
The withdrawal of the expatriation allow Consequently, by rendering the retention ance following the marriage of the recip of the allowance subject to the acquisition ient, which might be justified in cases in of the status of 'head of household'—as it which this change in the family situation is is defined in Article 1(3) of Annex VIT— such as to bring to an end the state of the Staff Regulations have created an ar 'expatriation', must however be dependent bitrary difference of treatment between on uniform criteria, irrespective of sex. officials.
In Case 20/71
Luisa SABBATINI, née Bertoni, (wife of Sereno Sabbatini), an official of the Euro pean Parliament, residing in Soleuvre (Grand Duchy of Luxembourg), represented by Marcel Grégoire, Advocate at the cour d'appel, Brussels, with an address for service in Luxembourg at the Chambers of Tony Biever, 83 boulevard Grande- Duchesse-Charlotte, applicant, v
European PARLIAMENT, represented by its Secretary-General, Hans Robert Nord, acting as Agent, assisted by Alex Bonn, a member of the Luxembourg Bar, with an address for service in Luxembourg at the Chambers of the latter, 22 Côte- d'Eich, defendant,
Application for the annulment of two decisions of the European Parliament depriving the applicant of the benefit of an expatriation allowance,
1 — Language of the Case: French. 2 — CMLR.
JUDGMENT OF 7.6.1972 — CASE 20/71
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 'An official who marries a person who at the date of marriage does not qualify Miss Luisa Bertoni, an Italian national, for the allowance shall forfeit the right entered the service of the European Par to expatriation allowance unless that liament on 1 January 1960. official thereby becomes a head of house On her appointment she was awarded an hold.' expatriation allowance as prescribed by Article 69 of the Staff Regulations, which, On 15 February 1971 Miss Sabbatini asked under Article 4(1)(a) of Annex VII to the the Director-General for Administration of said Staff Regulations, is granted in par the European Parliament to review the ticular to officials. decision depriving her of the expatriation allowance. On 24 February 1971 the — who are not and have never been na Director-General for Administration of the tionals of the State in whose European Parliament informed Mrs Sabbatini that he territory the place where they are em could not, according to the provisions of ployed is situated; and the Staff Regulations then in force, accede to her request. — who during the five years ending six months before they entered the service did not habitually reside or carry on II — Procedure their main occupation within the Euro pean territory of that State. The application instituting the proceedings was lodged at the Registry of the Court on On 4 November 1970 Miss Bertoni married 26 April 1971. Sereno Sabbatini, who is not an official of The written procedure followed the normal the Communities. course.
On 17 November 1970, the Director-Gen Having heard the report of the Judge- eral for Administration of the European Rapporteur and the views of the Advocate- Parliament informed Mrs Sabbatini that General, the Court (Second Chamber) consequent upon her marriage she would decided to open the oral procedure without lose, as from 1 December 1970, her right any preparatory inquiry. to an expatriation allowance in accordance By Order of 3 December 1971 the Court with Article 4(3) of Annex VII to the Staff (Second Chamber) joined the present Case Regulations, under which: to Case 32/71 (Monique Chollet, née
SABBATINI ν EUROPEAN PARLIAMENT
Bauduin, ν Commission of the European IV — Submissions and arguments of Communities) for the purpose of the oral the parties procedure. By Order of 13 January 1972 the President The submissions and arguments of the of the Court designated Mr Karl Roemer parties may be summarized as follows: as Advocate-General in Joined Cases 20/71 and 32/71, in place of Mr A. Dutheillet de A — Illegality of Article 4(3) of Annex Lamothe, deceased.
VII to the Staff Regulations The parties presented oral argument at the hearing on 20 January 1972. The applicant maintains that Article 4(3) The Advocate-General delivered his opin of Annex VII to the Staff Regulations on ion at the hearing on 24 February 1972. which the contested decisions are founded is illegal because it is contrary, first, to the general principle of law prohibiting any III — Conclusions of the parties discrimination based on sex and providing for equal pay for men and women, and, The applicant claims that the Court should : secondly, to Article 119 of the EEC Treaty which sanctions the principle of equal pay for male and female workers.
(a) annul the decision of the European Parliament, of which she was informed by letter of 17 November 1970, ac (a) The Court of Justice has the special task of ensuring the observance of the cording to which, following her mar riage, she would, as from 1 December general principles of law, even though these 1970, lose her right to the expatriation are not necessarily embodied in any written text. General legal principles can be relied allowance on the ground that her hus band had resided in Luxembourg since upon against measures adopted by the his birth; Community institutions. They derive not solely from the written or unwritten law of the Community but also from international (b) annul the decision of the European law and from references to principles Parliament, of which she was informed enshrined in the legal systems of the Mem by letter of 24 February 1971, rejecting
ber States. the non-contentious request which she There can be no doubting the existence in- had made on 15 February 1971 with Community law of the general principle of respect to the decision of 17 November law sanctioning the equality of the sexes as 1970; regards the remuneration, in the widest sense, of workers. (c) rule that notwithstanding her marriage she has and has always had the right (b) This principle is further sanctioned by to the expatriation allowance by virtue several written texts, such as Convention of Article 4 of Annex VII to the Staff No 100 (1951) of the International Labour
Regulations; Organization (ILO), the Resolution of the Conference of Member States of the Com (d) order the defendant to bear the costs. munity of 30 December 1961 and Article 119 of the EEC Treaty. The defendant contends that the Court In particular, Article 119 proclaims the should : principle of equal pay for male and female workers, the concept of pay meaning not (a) declare the application unfounded both only 'the ordinary . . . wage or salary' but as regards its principal and its alter also 'any other consideration .
. . which the native submissions and dismiss it ; worker receives, directly or indirectly, in respect of his employment from his em (b) make an order as to costs in accordance ployer'. It is incontestable that the ex with the relevant provisions. patriation allowance constitutes a part of
JUDGMENT OF 7.6.1972 — CASE 20/71
the worker's pay, within the meaning of Since the Community institutions have the this provision. task of eradicating any discrimination as to pay which still exists between male and (c) By providing that 'An official who female workers at the level of domestic marries a person who at the date of mar legislative systems, those same institutions riage does not qualify for the allowance cannot be allowed to apply to their own shall forfeit the right to expatriation allow officials a legal provision which clearly ance unless that official thereby becomes a sanctions the same discrimination. head of household', Article 4(3) of Annex In the course of the oral procedure the VII to the Staff Regulations creates a defendant questioned the admissibility of flagrant inequality between male and the first submission in the application.
The female officials placed in the same position. Parliament has merely applied a provision The link between the retention of the right of the Staff Regulations of which it is not to the allowance and the status of head of the author. Since it has neither the author household leads to different results ac ity nor the power to review the legality of cording to the sex of the official concerned; this provision the question arises whether in fact, a married male official is auto it can defend an action which casts doubt matically considered by the Staff Regula upon that legality. tions to be a head of household (Article There is also the question whether the 1(3) (a) of Annex VII), whereas a married applicant has not gone beyond the legal female official is so regarded only on a very limits laid down in Article 91 of the Staff exceptional basis. This link is entirely Regulations for appeals by officials. artificial, since the expatriation allowance In any event, the plea of illegality raised is justified by changes in the living condi by the applicant is wellfounded neither in tions of officials and is intended to com law nor in fact. pensate for the additional expenditure which officials incur in maintaining family, (a) The Court of Justice ensures the pro financial and other ties with their country tection of fundamental rights 'drawing its of origin—which do not come to an end inspiration from the constitutional tradi
upon marriage. The status of head of tions common to the Member States'. The household—a concept which is in fact no 'general principle of law' relied on by the longer recognized by the civil law of four applicant is not contained in the 'funda of the Member States of the Communities mental laws' of the six Member States of —is irrelevant as regards the material, the Communities, nor is it rooted in their family, psychological and emotional con legislation. On the contrary, the legal status sequences of expatriation. Article 4(3) of of married women differs as between the Annex VII to the Staff Regulations there various national legislative systems, which fore renders the grant of the expatriation have by no means abolished all differences allowance subject to a criterion which is between the rights and duties of the hus extraneous to that allowance and leads to band and those of his wife. flagrant inequality between male and female officials. (b) Far from proclaiming the principle of The Commission, in reply to a parliament equality between men and women, the ary question, has itself recognized that the Treaty, in Article 119 merely recognizes link established between the right to the equality in a particular sphere and for a expatriation allowance and the status of specific objective, as a Community social head of household leads in facts, a regards provision. the grant of that allowance, to different results according to sex. According to the (c) Article 4(3) of the Annex VII to the principle of equality, a difference in treat Staff Regulations does not give the male ment is legally admissible only where there sex pre-eminence; rather, it is Article 1 of is a well-founded relationship between the Annex VII, defining the status of head of criterion adopted and the difference be household and referred to by Article 4(3), tween the rules; that is not the case here. which is challenged by this application.
SABBATINI ν EUROPEAN PARLIAMENT
The submission of illegality, in so far as it for the grant of the allowance is that the is directed against Article 4(3) of Annex person concerned should be in the service VII, is unfounded as to the facts. of the Communities; the other conditions In law, it must be observed that the institu are unascertainable with regard to a person tion and concept of head of household, as who is not in the service of the Commu they appear in the Staff Regulations and nities unless the provisions are to be also in the national laws of most of the distorted and interpreted in an arbitrary Member States, create no discrimination manner.
whatsoever between the sexes; they entail, not the superiority of one spouse over the (b) In Article 4(2) and (3) of Annex VII, other, but the management of matters of the Staff Regulations intended to examine family concern by one of the spouses rather and regulate two different cases : paragraph than the other. The Staff Regulations do no (2) relates to the marriage of two Commu more than reflect, without creating it, a nity officials who are both entitled to the differentiation between the legal position expatriation allowance, whereas paragraph of the husband and that of his wife, deriv (3) relates to the marriage of two officials, ing from the rules on the legal status of one of whom is not entitled to that allow married women under the domestic legisla ance.
tion governing the nationality of married women, the matrimonial and family status (c) Since Article 4(3) is a provision which of husband and wife, the relationship be derogates from a general rule it must be tween husband and wife and the rights and interpreted restrictively; such an inter duties of each in marriage. pretation, furthermore would limit the Furthermore, the contested provision cor consequences of this provision with respect responds fully to the basic purpose of the to female officials, which are, to say the expatriation allowance: the Staff Regula least, extremely unjust. tions presuppose, with good reason, that the establishment, through marriage, of a The defendant rebuts the applicant's argu new household whose head does not satisfy ment in the following manner : the conditions for entitlement to the ex patriation allowance removes all right to (a) The very wording of paragraphs (2) that allowance. and (3) of Article 4 of Annex VII is at variance with the parallelism which the Β — Infringement of Article 4(3) of Annex applicant claims to discern between these VII to the Staff Regulations two provisions: by its use of the term 'person', which is unusual in the Staff The applicant, as an alternative submission, Regulations, Article 4(3) indicates that it complains that the contested decisions does not relate solely to officials or servants misinterpreted Article 4(3) of Annex VII of the Communities but also to all other to the Staff Regulations and consequently persons. wrongly applied it. That provision relates There is nothing to prevent an examination only to the case of marriage of a Com as to whether a person who is not in the munity official to another Community service of the Communities satisfies the re official who does not, at the date of mar quirements (as to nationality, residence, riage, satisfy the requirements for entitle occupation or performance of duties) laid ment to the expatriation allowance. down by Article 4(1) of Annex VU for the grant of the expatriation allowance. (a) The question whether, at a given date, a person satisfies the requirements for (b) Article 4(3) of Annex VII does not entitlement to the expatriation allowance derogate from a general rule; Article 4 as can relate, by definition, only to officials of a whole governs the problem of the grant the Community institutions. The termi of the expatriation allowance. nology of Article 4(3) of Annex VII is by no means decisive. The first requirement (c) The basic purpose of the expatriation
JUDGMENT OF 7.6.1972 — CASE 20/71
allowance dictated the solution set out in (d) The applicant's argument would itself Article 4(3) of Annex VII; there can there create discrimination; it would have the fore be no question of unjust consequences effect of depriving a female official of her deriving from the application of this pro expatriation allowance by reason of her vision. marriage to an official who is not himself Furthermore, the provisions of the Staff entitled to the allowance, but of entitling Regulations should be applied in accord her to retain it if she marries a person who ance with their terminology and in a con is not in the service of the Communities. sistent manner.
Grounds of judgment
1 The application seeks the annulment of the decisions of 17 November 1970 and 24 February 1971 by which, following the applicant's marriage, the administration of the European Parliament, acting in pursuance of Article 4(3) of Annex VII to the Staff Regulations, withdrew the expatriation allowance which the latter 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, alter natively, 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 are founded, is illegal be cause 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.
б 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 acqui sition of the status of head of household within the meaning of the Staff Regula tions.
SABBATINI ν EUROPEAN PARLIAMENT
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 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 acquisi tion 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 offi cials.
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 sub mission.
Costs
16 Under the first subparagraph of Article 69(2) of the Rules of Procedure the un successful 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.
OPINION OF MR ROEMER — CASE 20/71
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 of 17 November 1970 and 24 February 1971 by which the European Parliament withdrew the applicant's expatriation allowance;
2. Orders the European Parliament to bear the costs of the proceedings.
Kutscher Trabucchi Pescatore
Delivered in open court in Luxembourg on 7 June 1972.
A. Van Houtte H. Kutscher
Registrar President of the Second Chamber
OPINION OF MR ADVOCATE-GENERAL KARL ROEMER DELIVERED ON 24 FEBRUARY 1972<apnote>1</apnote>
Mr President, today (in future I shall refer to them as the Members of the Court, first applicant and the second applicant), were granted such an allowance. In fact, Article 4 of Annex VII to the Staff Regula on taking up her appointment in Luxem tions of Officials of the Communities bourg, the first applicant, who entered the provides that under certain conditions service of the European Parliament on 1 officials are entitled to an expatriation January 1960 as an official in Grade C/1, allowance. Mrs Sabbatini (née Bertoni) and was of Italian nationality and had not Mrs Chollet (née Bauduin), who are the during the five years ending six months applicants in Cases 20/71 and 32/71 respec before she entered the service resided or tively on which I am giving my opinion carried on her main occupation within the
1 — Translated from the French version.