C-21/74

JUDGMENT OF THE COURT (SECOND CHAMBER) 20 FEBRUARY 1975 1

Jeanne Airola v Commission of the European Communities

Case 21/74

Summary

Officials — Expatriation allowance — Male and female officials — Comparable situation — Nationality imposed by law on a female official upon her marriage — Difference of treatment — Inadmissibility (Staff Regulations, Annex VII, Article 4)

The concept of 'nationals' contained in are, in fact, placed in comparable Article 4 (a) of Annex VII of the Staff situations. It is, therefore, necessary to Regulations of officials must be exclude nationality imposed by law on a interpreted in such a way as to avoid any female official upon her marriage with a unwarranted difference of treatment as national of another State and which she between male and female officials who was unable to renounce.

in the matter of

1 — Language of the Case: French.

JUDGMENT OF 20. 2. 1975 — CASE 21/74

principally, payment of expatriation allowance to the applicant with effect from 1 June 1973,

THE COURT (Second Chamber)

composed of: A. J. Mackenzie Stuart, President of Chamber (Rapporteur), H. Kutscher and M. Sørensen, Judges,

AIROLA v COMMISSION

course, of the advice they would be completed and that no definite decision tendering to the appointing authority has yet been taken. when it took its decision on the Under the circumstances, there is applicant's request. obviously no justification for the On 4 September 1972 the applicant payment which you have just received again requested the Head of the and which, on investigation, appears to Personnel Department to be good have been caused by erroneous enough to make the necessary information inadvertently supplied by arrangements for her to be paid the one of my colleagues to the Salaries, Pensions and Allowances Division at the expatriation allowance. She also asked Centre. whether failure on his part to reply to the request was to be taken as an In the hope that you will accept our implied decision rejecting it. apologies, I have to inform you that I have given immediate instructions to the On 22 September 1972 the Head of the Administration and Personnel Division Division mentioned to stop payment of the allowance concerned. Meanwhile replied as follows: action on your case has been held 'Although this is merely an interim reply, over until the Commission has ruled on

I believe it may be regarded as sufficient your complaint.' to make your question unnecessary'. On 24 May 1973 the applicant addressed a request to the appointing authority On 19 December 1972 the applicant under Article 90 of the Staff Regulations addressed a complaint to the appointing to be paid the expatriation allowance. authority requesting to be paid the expatriation allowance with effect from On 16 August 1973 the applicant 7 June 1972, the date of the submitted a complaint to the appointing abovementioned decision of the Court of authority against the decision of 23 May Justice. 1973 cancelling the expatriation allowance and its subsequent non-pay- On 22 March 1973, as the result of an ment.

of the applicant; The applicant believes that she possesses (2) As necessary, annul the decision of all the qualifications for grant of the the defendant communicated on 23 expatriation allowance as laid down in May 1973 cancelling the decision Article 4 (1) (a) of Annex VII of the Staff communicated on 18 May 1973 to Regulations and that, therefore, the grant the applicant the privilege of expatriation allowance could have been the expatriation allowance with withheld from her up to 1 July 1972 effect from 1 July 1972 or, in the only by virtue of the provision under alternative, declare that the Article 4 (3) of Annex VII, from which defendant is acting unlawfully in not it must follow that she was entitled to

deciding to grant the applicant the the expatriation allowance when that expatriation allowance with effect provision was abrogated. from 1 July 1972 and, accordingly, In its statement of defence, the order the defendant so to decide; Commission denies that when she

(1) Dismiss the appeal as without territory the place where they are em- foundation; ployed is situated, Article 4 (1) (b) pro- vides that 'an allowance shall be paid if (2) Order the applicant to pay the costs. during the ten years ending at the date of their entering the service they habitual- ly resided outside the territory of that State'. Ill — Submissions and argu- The applicant cannot reasonably claim ments of the parties that she is not and never has been a national of the State in whose territory The applicant submits that 'the Commission acted contrary to Article 1 the place where she is employed is (g) of Regulation (ECSC, EEC, situated. Her rights must be determined EURATOM) No 558/73 of the Council in the light of the conditions provided for under Article 4 (1) (b). of 26 February 1973 in that it abrogated paragraph 3 of Article 4 of Annex VII of In the Commission's view, it cannot be the Staff Regulations, with effect from 1 said that she has habitually resided

AIROLA v COMMISSION

outside Italy in view of the fact that she satisfies the same conditions, which are has lived there since 1 January 1964. In the most favourable, in Article 4 (1) (a). the ten-year period referred to, from 22 Although this does not apply as far as November 1956 to 22 November 1966, the female official is concerned and

acquired, there is no reason for treating As the applicant had Belgian nationality nationality acquired by marriage when she entered the service, Italian differently from nationality acquired by nationality was accordingly a second parentage or place of birth. nationality acquired not only by the fact In support of this contention, the of her marriage but also by irrevocable Commission quotes the opinion of Mr operation of law, notwithstanding the Advocate-General Mayras in Case 33/72 wish expressed and implemented when Gunnella v Commission (Rec. 1973, p. she married to retain Belgian nationality. 475). It is the Staff Regulations which The Commission nevertheless recognizes introduced a condition which, owing to that as women alone may acquire second the effect of the national laws to which nationality through marriage and alone it relates, discriminates between officials may thereby suffer possible loss in terms on grounds of sex and which, in certain of their statutory entitlement to the cases, such as nationality acquired expatriation allowance, there is a de through marriage, has nothing to do facto discrimination between male and with the state of expatriation. female officials. The applicant believes that, as used in The marriage of a female official to a this provision and in Article 4 (1) (a) man who is the subject of the State in which is associated with it, the word which she is based does not in itself in 'nationality' must be understood only in any way constitute a development the limited sense of nationality of origin, putting an end to or alleviating the state i.e. to have a meaning into which of expatriation which is the raison d'être discrimination on grounds of sex cannot of the concession with which we are enter and which can be regarded as dealing. Whether unmarried, or married being associated with the state of to a subject of the State in which he is expatriation. based, the male official, not being a In support of this contention, the subject of that State, is always applicant deploys three arguments: recognized as in principle entitled to the expatriation allowance, provided that, (1) The meaning of a general term must, whether married or unmarried, he notwithstanding its generality, be

limited to what is required by position was governed by Article 4 (1) legality and above all, in this case, (b) of Annex VII, it would have to the overriding principle of the right decide whether she did not fulfil the of officials to be treated alike. condition laid down therein of having Words which, originally, had a wide habitually resided outside Italy during meaning should, as a result of the ten years ending at the date of changes in prevailing attitudes on entering the service. the subject concerned, be given a During the period concerned, not only narrower meaning which does not was the length of time which she lived permit discrimination between men outside Italy much longer than that in and women. Italy — more than two-thirds of the total time — but it was closer to the (2) The law should go no further than its purpose requires. If nationality meaning of living in the sense that, while acquired by marriage has no living in Belgium, she obviously did not relevance to the state of return to Italy whereas, when living in expatriation, the word nationality in Italy, she frequently returned to Belgium Article 4 (1) (b) should not and where, moreover, she married. cannot be taken to refer to anything The defendant's answer is that, by other than nationality of origin and reason of the adoption of the test of not nationality acquired by nationality, there may in fact be many marriage. instances of de facto discrimination, but this does not amount to a de jure (3) With two interpretations to choose discrimination introduced by the Staff from, one of which is consistent Regulations. with legality and the other is not, the first must prevail. The applicant When the Staff Regulations were drawn maintains that, in view of this, the up, nationality, however acquired, was Court is not bound by words whose regarded as part of belonging to a given meaning is clear and that therefore it State and the intention was, has the power and the duty to consequently, that a subject of the circumscribe their meaning in country on whose territory he is accordance with the requirements of employed should not, as a general rule, legality and its underlying purpose. receive the expatriation allowance. As those who have to interpret the Alternatively the applicant maintains Regulations did not wish to introduce that in a case of dual nationality, the any exception, distinction or variation Commission should make a choice of when applying the general wording used nationality by applying the doctrine of by the legislators, they have no power to 'effective nationality'. make a distinction or a variation where

The Commission takes the view that the most part outside Italy during the concept of 'effective nationality' has no ten-year period referred to (about 7 relevance in the interpretation of Article years) this does not mean that she has 4 of Annex VII (Mr Advocate-General habitually resided outside Italy for ten Mayras in Gunnella v Commission, Case years. The Staff Regulations lay as much 33/72, [1973] ECR 486). stress on the length of residence as on its Moreover, under international law, the habitual character. From this point of view there can be no doubt that from determination of effective nationality is a November 1956 to November 1966 the question of fact which is generally settled on the basis of considerations applicant did not live for ten years such as the habitual residence of the outside Italy. person concerned, his place of business, and the language he speaks, including the express or implied preference he has IV — Oral procedure shown in this respect. In the event that the concept of effective The applicant, represented by Mr nationality might be taken into account Lebrun, and the Commission, represent- in applying the Staff Regulations, the ed by Mr Griesmar, presented oral defendant would deny that Belgian arguments at the hearing on 14 nationality is at this time the effective November 1974. nationality of the applicant. The Advocate-General delivered his Although the applicant has lived for the opinion at the same hearing.

Law

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.

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.

AIROLA v COMMISSION

11 Such unwarranted difference of treatment between female officials and officials

Application for legal interest

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.

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

JUDGMENT OF 20. 2. 1975 — CASE 21/74

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

Costs

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.

Mackenzie Stuart Kutscher Sørensen

Delivered in open court in Luxembourg on 20 February 1975.

A. Van Houtte A. J. Mackenzie Stuart