C-24/71

3. Right conferred on individuals by a provision of Community law — Proof of existence of such right governed by national law — Jurisdiction of the Community administration and the Court of Justice

1. Articles 27 and 28 of Annex VHJ to the of proof and as excluding other means Staff Regulations of Officials are not of proving the obligation to pay mainte­ intended to preserve in a different form, nance which are required or accepted by for the benefit of a widow or divorced the law governing the consequences of spouse, an obligation to pay mainte­ divorce. nance which stems from the marriage or the divorce, but establish a right 3. If the evidence of the existence of a which the parties concerned hold right granted by a provision of Com­ directly under the Staff Regulations and munity law is governed by the national as regards which the claim to mainte­ law to which the person concerned is nance against the deceased official is subject, it is for the Community only a factor for the purpose of calculat­ administration and, in the case of an ing the division of the pension. action before the Court of Justice, for that Court, to consider, in order to 2. The final sentence of the first paragraph ensure a correct application of the said of Article 28 cannot be interpreted as provision, whether the conditions re­ only accepting a judicial decision by way quired by the national law are satisfied.

In Case 24/71

Elfriede Meinhardt, née Forderung, residing at 62 Wiesbaden, Burgstraße 6, represented and assisted by Mr Rossmeissl, K. Weidmann and Mr Wahl of the

defendant,

in the presence of Marianne Meinhardt, née Prange, residing at Tervuren, Chaussée de Bruxelles 73, represented by Mr Zimmer of the Wiesbaden Bar, with an address for service in Luxembourg at the Chambers of Mr Wennmacher, 17 boulevard Royal,

intervener,

Application for the annulment of the decision of the Commission of the European Communities of 18 February 1971 concerning the division of a widow's pension in accordance with Article 28 of Annex VIII to the Staff Regulations of Officials.

THE COURT (First Chamber)

composed of: J. Mertens de Wilmars (Rapporteur), President of Chamber, H. Kutscher and R. Monaco, Judges,

I — Facts and procedure 1971 the applicant brought the present action against the decision of 18 February The facts and the procedure may be sum­ 1971. marized as follows: By an application lodged at the Registry on 14 July 1971 the former Miss Prange, 1. In 1945 Mr W. Meinhardt, a servant of Mr Meinhardt's widow by the second the Commission, contracted a marriage marriage, applied to intervene in support with the applicant which was dissolved by of the defendant's conclusions. The Court a decree of the Landgericht (Regional allowed the intervention by order of 22 Court) Wiesbaden of 27 February 1962 September 1971. which found him solely to blame. On 4 Upon hearing the report of the Judge- February 1963 he contracted a second Rapporteur and the opinion of the marriage with Miss Prange. He died on Advocate-General the Court decided that 22 Septermber 1969.. there was no need to hold any preparatory inquiry. 2. The applicant, to whom, since the The parties presented oral argument at divorce, Mr Meinhardt had intermittently the hearing on 26 January 1972. paid a monthly allowance of DM 200, The Advocate-General delivered his requested the Commission to grant her a opinion at the hearing on 16 March 1972. share in the survivor's pension provided for by Article 79 of the Staff Regulations of Officials. II — Conclusions In support of her request the applicant relies, in particular, on Article 28 of In her application the applicant claims that Annex VIII to the Staff Regulations of the Court should : Officials, according to which: 'Where a divorced official who has remarried leaves 'Annul the decision of the Commission and a widow entitled to a survivor's pension, rule that the applicant is entitled to a half that pension shall be divided, in proportion share in the survivor's pension which is to the duration of the marriages, between payable in law to the widow of Mr W. the divorced wife if she has not remarried Meinhardt'. and the widow, if the court which pro­ nounced the decree of divorce found that The defendant contends that the Court the official was solely to blame. The should: amount to which the divorced wife is entitled if she has not remarried shall not '1. dismiss the application as unfounded; be more than the amount of the mainte­ nance awarded to her under the decree'. 2. alternatively, dismiss the application as unfounded to the extent to which the 3. By letter dated 18 February 1971 signed applicant seeks a survivor's pension of by a Director-General of the Commission an amount greater than the monthly of the European Communities and received payments of DM 200 made by Mr by the applicant on 9 March 1971 the Willy Meinhardt until his death; applicant was informed that she 'could not claim pension rights from the Commission 3. order the applicant to pay the costs.' under the provisions of Article 28 of Annex VHJ to the Staff Regulations' In her reply the applicant amends the (Schedule I, statement of defence). conclusions set out in her application of 27 May 1971 and claims that the Court 4. By an application lodged on 1 June should:

III — Submissions and arguments of 2. The defendant and the intervener reply the parties that the following conditions must be satisfied before the survivor's pension can The submissions and arguments of the be divided between the widow and the parties may be summarized as follows : deceased servant's divorced wife, if the latter has not remarried: 1. The applicant maintains that the ques­ tion to be settled in this action is whether a — the decree of divorce must have been right to maintance, the amount of which on the ground that the official was was not fixed by the decree of divorce itself, solely to blame; falls within the concept of 'maintenance awarded ... under the decree' referred to in — the deceased official must actually have the first paragraph of Article 28 of Annex been obliged under national law to pay VIII to the Staff Regulations. maintenance to his divorced wife; An affirmative answer should: be given to this question. In the law of at least one — the maintenance obligation must have Member State, that is, German law, a been imposed by judicial decision. decree of divorce never rules on mainte­ nance or the amount thereof but merely The last two conditions are not satisfied sets in motion the consequences which, as in this instance. regards maintenance, stem from the In the alternative, they reply that even if it apportionment of blame in the decree of were accepted that the applicant is entitled divorce. Therefore, the abovementioned to a pension, it could not exceed the sum of Article 28, which could not lay down a DM 200 previously paid as maintenance final and exclusive rule in contradiction every month. with the national legislation, was drafted in terms sufficiently general to include those (a) The need for a judicial decision cases in which the right to maintenance is founded on the decree of divorce. The Commission accepts that the above­ The specific question whether the applicant mentioned Article 28 refers principally to is entitled to maintenance must be con­ those legal systems in which maintenance sidered in the light of internal law, which is, is awarded in the decree of divorce itself. in this instance, German law. This provision must be interpreted in the

light of those legislative systems, such as Meinhardt in respect of the period preced the German system, in which the decree of ing his death and that this denies her any divorce makes no ruling on maintenance. possibility of a direct claim against the Although it is, therefore, true that it is Community. impossible to require the decree of divorce The intervener espouses the interpretation to provide in every case for the payment of of Article 28 suggested by the Commission maintenance (as the wording of Article and accepts that a maintenance order 28 may suggest) evidence, in the form of a following the divorce or, in certain cir judicial decision, of the existence of an cumstances, a judicially authenticated obligation to pay a certain sum by way of maintenance agreement, may replace the maintenance cannot be dispensed with. decree which is required by Article 28. In support of this contention the defendant In addition, she puts forward the follow refers to the difficulties inherent in a ing points: system in which, in fulfilling the obligations set out in Article 28, the institution is — A maintenance agreement concluded in unable to refer to any specific decision from accordance with Article 72 of the a national court on the existence and extent Ehegesetz can in no way replace the of the deceased servant's obligation to pay 'maintenance awarded .

awarding maintenance. cant is in accordance with the underlying principles of the Staff Regulations which Furthermore, under Article 70(2) of the accord to the widow a privileged position Ehegesetz, in conjunction with Article 58 as against the divorced wife. Simply to thereof, the applicant may even now bring accept any form of evidence of the obliga a claim for maintenance against the heirs tion to pay maintenance would put the of the deceased (in this instance, the widow — who is in this instance the inter intervener and her son, who is a minor) vener — who has not been able to have the and obtain in this way a title which situation clarified before a German court, recognizes her claim and which, in into an unfavourable position. appropriate circumstances, combined with Finally, the defendant adds that in practice Article 28, may give her a right against the a decision by the Court dismissing the Community.

JUDGMENT OF 17.5.1972 — CASE 24/71

The European Communities. unconditional payments of DM 200 per month over a period of eight years are not — Finally, the applicant's gross income is sufficient to establish the existence of such at present at least DM 1300 (and not an obligation within the meaning of DM 580 as the applicant claims and Article 58 of the Ehegesetz. should have proved). Article 58 only gives rise to a right to maintenance if certain conditions con In the alternative, the intervener states cerning the income of the spouses are that even if it were shown that the applicant fulfilled and if the husband is held to be to was entitled to DM 200 per month by way blame. of maintenance before Mr Meinhardt's The defendant maintains that the facts death, under Article 70(2) of the Ehegesetz, referred to by the applicant in order to which requires the maintenance to be fixed justify her claim to maintenance—which at a fair and reasonable amount after the are, moreover, submitted out of time in death of the spouse liable to pay it, this the light of Article 42(2) of the Rules of claim must be considerably reduced. Procedure—cannot justify such a claim within the meaning of Article 58. At the (c) Conditions of division of the pension time of the divorce Mr Meinhardt's income only amounted to approximately As regard the possible division of the DM 1500 whereas at the same period the pension the defendant and the intervener applicant's income exceeded DM 500. maintain that the application contains The applicant must take into account the nothing to support a claim to a greater new burdens imposed on Mr Meinhardt share in the survivor's pension than the through his marriage with Miss Prange and DM 200 which represent the amount the birth of a child, burdens which would paid by Mr Meinhardt until his death. have justified an application for the varia They add that after the applicant with tion of the maintenance agreement and drew this head of claim in the reply she reduced the amount due to the divorced could not in her oral submissions to the

When they were divorced the 58 and 72 of the Ehegesetz the divorced incomes of the spouses were not such as to spouses are perfectly free to come to an qualify her for maintenance under para agreement concerning the consequences of graph 58 of the Ehegesetz. divorce from the point of view of mainte nance. It is unreasonable to require, as — Before his divorce Mr Meinhardt's net does the Commission, that the wife have income was DM 1575; thereafter it was the question decided by the court when in DM 1490. fact there was an agreement between the parties as to maintenance.

MEINHARDT ν COMMISSION

therefore be interpreted as meaning that of the party required to pay it, the income the divorced wife is entitled to maintenance of the wife entitled thereto and the normal in the sum awarded by the decree of standard of living of the spouses at the divorce, but that where it is implied or time of their separation. In the light of required by the national legal system of her earned income of 580 DM per month the parties concerned, the existence and and Mr Meinhardt's income, which the amount of maintenance due under law amounted to DM 2200 at the time of the may be proved by other means. divorce, the applicant considers that a sum of DM 200 would give her the one third (b) The de facto obligation to pay mainte­ part of her husband's income which was nance and the payments of DM 200 the sum usually granted to the innocent seen as maintenance wife. The applicant therefore concludes that the The applicant maintains that under para­ sum of DM 200 is clearly in the nature of a graph 58 of the Ehegesetz, which is the maintenance payment. conclusive provision in this matter, Mr Meinhardt was obliged to make monthly (c) The manner of payment of the pension payments of DM 200. In principle this obligation stems from the In the reply the applicant withdrew her decree of divorce and its specific content is claim to a share in the survivor's pension derived from a correct application of the in excess of DM 200 but in her oral principles contained in paragraph 58 of address to the Court she repeated her the Ehegesetz. original claim contained in her application, According to this paragraph, tor the pur­ and seeks the payment of one half of the poses of determining the amount of the widow's pension. She makes this claim on maintenance to be paid, it is necessary to the ground that the deterioration in her take into account the financial resources, state of health justifies an increased pay­ at the time when the divorce was granted, ment.

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 above­ mentioned Annex the maintenance had to be awarded and its amount fixed by the decree of divorce, which was not so in the present case.

s 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.

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 agree­ ment 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.

Costs

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.

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 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 :

Delivered in open court in Luxembourg on 17 May 1972.

A. Van Houtte J. Mertens de Wilmars

Registrar President of the First Chamber

OPINION OF MR ADVOCATE-GENERAL ROEMER DELIVERED ON 16 MARCH 1972<apnote>1</apnote>

I — Translated from the German.