C-32/71

In Case 32/71

Monique Chollet, née Bauduin, an official of the Commission of the European Communities, residing in Overijse (Belgium), 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

Commission of the European Communities, represented by its Legal Adviser, Pierre Lamoureux, acting as Agent, with an address for service in Luxembourg at the office of its Legal Adviser, Emile Reuter, 4 boulevard Royal,

defendant,

Application for the annulment of two decisions of the Commission depriving the applicant of the benefit of an expatriation allowance,

gives the following

JUDGMENT

Issues of fact and of law

I — Facts Chollet submitted to the President of the Commission, through official channels, a Miss Monique Bauduin, who is of French complaint against the withdrawal of her nationality, entered the service of the Com­ expatriation allowance. mission of the European Communities in By memorandum of 12 March 1971 an Brussels on 2 July 1962. official of the Salary, Pensions and Allow­ ances Branch of the Financial Administra­ On her appointment she was awarded an tion Directorate at the Directorate-General expatriation allowance as prescribed by for Personnel and Administration of the Article 69 of the Staff Regulations, which, Commission informed Mrs Chollet that under Article 4(1) (a) of Annex VII to the following the withdrawal of the expatria­ said Staff Regulations, is granted in par­ tion allowance recalculation of her salary ticular to officials for the period from 1 November 1970 to 31 January 1971 showed that she had been — who are not and have never been na­ overpaid a matter of Bfrs 9240 and that tionals of the State in whose European this sum would be deducted by monthly territory the place where they are em­ instalments from her salary for the months ployed is situated, and of March to July 1971. — who during the five years ending six Since no reply was sent to her complaint of months before they entered the service 2 March 1971 Mrs Chollet instituted these did not habitually reside or carry on proceedings before the Court. their main occupation within the Euro­ pean territory of that State. II — Procedure On 31 October 1970 Miss Bauduin married José Abel Chollet, a Belgian national, who The application instituting the proceedings is not an official of the Communities. was lodged at the Registry of the Court on The monthly salary slip sent to Mrs Chollet 18 June 1971. in February 1971 indicated that she would The written procedure followed the normal have to repay the sum of Bfrs 9240 received course.

(a) annul the decision of the Commission depriving her of the expatriation allow­ (a) The Court of Justice has the special ance as from 1 November 1970; task of ensuring the observance of the general principles of law, even though these are not necessarily embodied in any written (b) annul the implied decision of the Com­ text. General legal principles can be relied mission rejecting the complaint which upon against measures adopted by the she had made on 2 March 1971 against Community institutions. They derive not the first decision ; solely from the written or unwritten law of the Community but also from international (c) rule that notwithstanding her marriage law and from references to principles en­ she has and has always had the right to shrined in the legal systems of the Member the expatriation allowance by virtue of States. Article 4 of Annex VII to the Staff There can be no doubting the existence in Regulations; Community law of the general principle of law sanctioning the equality of the sexes as (d) order the defendant to bear the costs. regards the remuneration, in the widest sense, of workers. The defendant contends that the Court should : (b) This principle is further sanctioned by several written texts, such as Convention (a) dismiss the application in its totality as No 100 (1951) of the International Labour unfounded; Organization (ILO), the Resolution of the Conference of Member States of the Com­

(b) order the applicant to bear the costs. munity of 30 December 1961 and Article

JUDGMENT OF 7.6.1972 — CASE 32/71

ployer'. It is incontestable that the expa the rules ; that is not the case here. triation allowance constitutes a part of the Since the Community institutions have the worker's pay, within the meaning of this task of eradicating any discrimination as provision. to pay which still exists between male and female workers at the level of domestic (c) By providing that 'An official who legislative systems, those same institutions marries a person who at the date of mar cannot be allowed to apply to their own riage does not qualify for the allowance officials a legal provision which clearly shall forfeit the right to expatriation allow sanctions the sanctions same discrimination. the same discrimination. ance unless that official thereby becomes a The defendant observes that the submission head of household', Article 4(3) of Annex of illegality advanced by the applicant chal VII to the Staff Regulations creates a fla lenges the legality not only of Article 4(3) grant inequality between male and female of Annex VII to the Staff Regulations but officials placed in the same position. The also of several other provisions of the Staff link between the retention of the right to Regulations which also render the grant or the allowance and the status of head of the amount of an allowance conditional household leads to different results accord upon the status of head of household (in ing to the sex of the official concerned; in stallation and reinstallation allowances; fact, a married male official is automatically travel expenses to the place of origin). considered by the Staff Regulations to be This submission is however unfounded. a head of household (Article 1(3) (a) of Annex VII), whereas a married female (a) The applicant has established neither official is so regarded only on a very ex the existence nor, still less, the direct ap ceptional basis. This link is entirely artifi plicability and generality of the 'superior cial, since the expatriation allowance is principle of law' prohibiting any discrimi justified by changes in the living conditions nation based on sex which it claims to find of officials and is intended to compensate in the legal systems of Member States and for the additional expenditure which offi in Community law. cials incur in maintaining family, financial On the contrary, the manner in which the and other ties with their country of origin laws of the Member States govern, in many —which do not come to an end upon spheres, the respective legal position of

BAUDUIN ν COMMISSION

Male and female offi does not have the status of head of house cials have exactly the same right to the hold cannot, in this case, claim the benefit allowance. The contested provision sub of that allowance. jects the retention of this right by the newly The link between the retention of the right married official—where the spouse (wheth to the allowance and the acquisition of the er male or female without distinction) does status of head of household is therefore not satisfy the conditions for the grant of based on reality. In the present state of the allowance—to the sole condition of economics and sociology, the institution acquisition on marriage of the status of of the family and that of marriage are, save head of household. for rare exceptions, closely linked to the Female officials may, just like male officials, head of household, whose fate and move have the status of head of household ; it is ments, in particular in relation to place of not a masculine attribute. work and residence, are normally followed The criticisms of the applicant are directed by the family. not so much against Article 4(3) of Annex Consequently, the link established between VII as against Article 1 (3) and against the the retention of the expatriation allowance fact that in marriage the female official and the status of head of household is acquires less often than her husband the neither discriminatory nor artificial. status of head of household.

JUDGMENT OF 7.6.1972 — CASE 32/71

complains that the contested decisions mis­ The defendant asserts that the applicant's interpreted Article 4(3) of Annex VII to argument has only the appearance of logic. the Staff Regulations and consequently wrongly applied it. That provision relates (a) The very wording of Article 4(2) and only to the case of marriage of a Commu­ (3) of Annex VII to the Staff Regulations nity official to another Community official is at variance with the parallelism which who does not, at the date of marriage, the applicant claims to discern between satisfy the requirements for entitlement to these two provisions : first, by its use of the the expatriation allowance. term 'person', which is unusual in the Staff Regulations, Article 4(3) indicates that it (a) The question whether, at a given date, does not relate solely to officials or servants a person satisfies the requirements for en­ of the Communities but also to all other titlement to the expatriation allowance can persons : secondly, the reference to the date relate, by definition, only to officials of the of marriage would have no purpose if it Community institutions. The terminology applied solely to officials. of Article 4(3) of Annex VII is by no means In addition, there is nothing to prevent an decisive. The first requirement for the grant examination as to whether a person who is of the allowance is that the person con­ not in the service of the Communities but cerned should be in the service of the Com­ who, let it be supposed, enters the service munities; the other conditions are unas­ of the Communities at the date of marriage, certainable with regard to a person who is satisfies the requirements (as to nationality, not in the service of the Communities un­ residence, occupation or performance of less the provisions are to be distorted and duties) laid down by Article 4(1) of Annex interpreted in an arbitrary manner. VII for the grant of the expatriation allow­ ance.

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 discrim­ ination 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 acqui­ sition of the status of head of household within the meaning of the Staff Regula­ tions.

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.

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 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.

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.

Kutscher Trabucchi Pescatore

Delivered in open court in Luxembourg on 7 June 1972.

A. Van Houtte H. Kutscher

Registrar President of the Second Chamber