C-37/74
ECLI:EU:C:1975:25
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JUDGMENT OF THE COURT (SECOND CHAMBER) 20 FEBRUARY 1975 1
Chantal Van den Broeck
v Commission of the European Communities
Case 37/74
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 of officials, 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 Case 37/74
CHANTAL VAN DEN BROECK, official of the Commission of the European Communities, represented by Rita Dieudonné, of the Brussels Bar, with an address for service in Luxembourg at the chambers of Jacques Loesch, 2 rue Goethe,
applicant
V
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Robert Fischer and Joseph Griesmar, its legal advisers, with an address for service in Luxem- bourg at the office of its legal adviser Pierre Lamoureux, 4, bd. Royal,
defendant
1 — Language of the Case: Dutch.
JUDGMENT OF 20. 2. 1975 — CASE 37/74
Application, principally, for payment of expatriation allowance to the appli- cant with effect from 1 July 1972,
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
The facts and arguments developed by provided for under Article 69 of the Staff the parties in the course of the written Regulations and Article 4 of Annex VII procedure may be summarized as thereof. follows: Following the judgments of the Court in Bertoni v European Parliament and Bauduin v Commission (Cases 20/71 and I — Facts 32/71, Rec. 1972 pp. 345 and 363) in which two decisions in individual cases refusing an expatriation allowance The applicant was born in France on 29 pursuant to Article 4 (3) of Annex VII May 1937. She has lived in Belgium since were annulled as being without legal September 1961. foundation, the defendant took the When, on 28 October 1961, she married appropriate steps in consequence of a Belgian national, she simultaneously these judgments by rendering nugatory acquired Belgian nationality and lost her in practice, on a general basis, with French nationality acquired by birth, not effect from 1 July 1972, the provision having made a declaration within six criticized by the Court, and at the same months of the marriage that she wished time initiating the procedure which led to to retain French nationality. She abrogation of Article 4 (3) in February acquired Belgian nationality by virtue of 1973. the Franco-Belgian agreement of 9 January 1947 in conjunction with the In the summer of 1972 the individual
Belgian law of 24 December 1932. position of certain female officials was The applicant entered the service of the systematically regularized and they were Commission on 11 May 1965. She was paid the expatriation allowance for the not, on taking up her duties, granted the period since 1 July 1972. The applicant benefit of the expatriation allowance was not among their number.
VAN DEN BROECK v COMMISSION
On 6 May 1973 the applicant submitted 4. Order the defendant to pay the costs. a request to the appointing authority for In its statement of defence, the payment of an expatriation allowance in Commission contended that the Court accordance with the new Article 4 of should:
Annex VII of the Staff Regulations, with 1. Dismiss the appeal as without effect from 1 July 1972. In support of foundation. this request she drew attention to the fact that Regulation No 558/73 had, 2. Order the applicant to pay the costs. with effect from 1 July 1972, abolished paragraphs 2 and 3 of Article 4 of Annex VII of the Staff Regulations. III — Submissions and argu- As this request was followed by an ments of the parties implied decision rejecting it, the applicant, on 6 November 1973, The applicant relies on two submissions: submitted a complaint under Article 90 first, the illegality of Article 4 of Annex (2) of the Staff Regulations reiterating VII of the Staff Regulations and, second, the claims set out in her request of May infringement of Articles 1 and 4 of 1973. Annex VII, as amended by Regulation On 27 May 1974, the applicant No 558/73, and misuse of powers. submitted the present appeal. The written procedure followed the 1. Legality of Article 4 normal course. Having heard the report of the Judge Rapporteur and the opinion (a) Applicant's arguments of the Advocate-General, the Court According to the applicant, as marriage (Second Chamber) decided to open the is no longer inconsistent with the state of oral procedure without preparatory expatriation, the cessation of this state inquiry. should, for one and all, be governed by uniform considerations regardless of sex — Bertoni and Bauduin (already cited). II — Conclusions of the Expatriation is a de facto state which parties cannot be identified solely on the basis of nationality. This is apparent from the In the words of the application new Article 4 of the Staff Regulations originating proceedings, the applicant because, under it, nationality counts only claims that the Court should: in relation to various conditions connected with length of stay. 1. Annul the decision rejecting the complaint implied by absence of reply Change of nationality consequent on to the complaint lodged by the marriage is not the deciding factor. It is applicant on 4 November 1973. not acquired nationality but original nationality which is the deciding factor 2. Rule that the defendant has in assessing the meaning and effect of wrongfully declined to pay an expatriation. expatriation allowance to the Because Article 4 (1) of Annex VII of the applicant since 1 July 1972. Staff Regulations makes grant of the 3. Order the defendant to pay the expatriation allowance to a female expatriation allowance with effect official who acquired her husband's from 1 July 1972 as well as legal nationality on marriage subject to the interest on arrears of the expatriation same residential conditions as the official allowance calculated from the date who acquired the nationality of the each instalment fell due up to the country in which he works by birth or date of payment. by naturalization, the article represents a
JUDGMENT OF 20. 2. 1975 — CASE 37/74
departure from the principles recognized incompatible with the principles of by the Court. Community law. As no national legislation in fact The applicant refers to the Charter of provides that the husband acquires the United Nations and the Universal another nationality by marriage, the Declaration of Human Rights and Article results in different treatment of concludes therefrom that equal rights for officials according to whether they are men and women are enshrined in male or female. international law. Thus Article 1 of the international convention on the Secondly, the applicant makes the plea that to apply the nationality test when nationality of the married woman nationality has been acquired by provides that 'each contracting State
marriage disregards national provisions agrees that neither the conclusion nor concerning nationality. The applicant the dissolution of the marriage between explains that a woman who acquires foreign subjects, nor the husband's Belgian nationality by marriage is not in change of nationality during the the same position as a woman who marriage, shall ipso facto affect the acquires it by birth. The former does not nationality of the wife'. As this have full and unconditional nationality. convention was signed by five Member She does not possess all civil rights, for States of the EEC and ratified by four of instance, the right to vote, until she has them, the Community, too, should be stayed in Belgium for ten years; she can animated by the universal principle of be deprived of Belgian nationality; and, law and by the spirit of the times. finally, she ceases to be a Belgian upon (b) Arguments of the Commission marrying a national of another country. The fact that a woman has not made a In the Commission's view, the
declaration renouncing Belgian national- applicant's first submission is intended ity within six months of the marriage to demonstrate the illegality, in that it does not have the effect of making gives rise to discrimination, of an involuntary acquisition of nationality interpretation and of an application of into a voluntary one. the provision of the Regulations concerned which takes the nationality By way of contrast, the applicant quotes acquired by law through marriage into the position of a woman who marries an account. The Commission does not deny Italian. She concludes from it that, under that, in view of the fact that women can national law, nationality acquired acquire a second nationality through through marriage is not on all fours with marriage, they alone, therefore, are liable nationality by birth. to suffer loss of their right under the The Regulations must be uniformly Staff Regulations to an expatriation applied and it is not reasonable to take allowance and that there can, national legislation into account on accordingly, be de facto discrimination some occasions and not on others: vide between male and female officials. the opinion of Mr Advocate-General But though the more or less avoidable Roemer in Meinhardt v Commission acquisition by the wife of her husband's (Case 24/71, Rec. 1972 p. 283). nationality is something which tends to Since the constitutions of the various create discrimination between officals, Member States all recognize the this is not the fault of the Staff principle of equality of the sexes before Regulations, which did not introduce the law and prohibit all discrimination any discrimination whatever in law based on sex, the principle of equality between officials, certainly not on can be regarded as part of the general grounds of sex or of the legislation principles of law. The Court should applicable on the subject of acquisition ignore national rules which are of a new nationality through marriage.
VAN DEN BROECK v COMMISSION
The Staff Regulations did no more than The Commission concludes that, draw a uniform conclusion from although the Staff Regulations must be situations which were not created by the uniformly applied, in matters where the Staff Regulations but by the various definition of rights under the Staff national laws governing the way in Regulations is itself conditioned by the which different nationalities can be law applicable to the person concerned, acquired. In the Commission's view, it is this principle does not mean that the impossible in this connexion to talk of personal rights and obligations of the discrimination in law created by the Staff individual concerned are ignored. The Regulations themselves and deserving to national law to which the official is
be declared illegal by the Court. subject cannot be ignored in defining On this point the Commission explains rights under the Staff Regulations. If that it applies the rules in Article 4 proof of the existence of a right granted (1) (b) uniformly in the case of an under a provision of the Staff official who has acquired the nationality Regulations is governed by the national of the country where he is employed law to which the person concerned is
before or after taking up his duties. subject, the Community administrative authorities must, to apply the provision In fact, the Staff Regulations go no correctly, decide whether the require- further than to give the official's present ments of national law are satisfied: or subsequent nationality the status of a Meinhardt v Commission (Case 24/71, legal presumption of expatriation or of already cited). non-expatriation: see the opinion of the Advocate-General in the Gunnella case, The Commission stresses that, for (33/72, [1973] ECR 483). reasons which are personal to her, the applicant freely chose not to exercise her The principle of non-discrimination has option not to acquire Belgian nationality never had the effect of preventing de and to remain French. facto discrimination between officials. As far as the general law in the various The Commission quotes several Member States is concerned, the examples of provisions in the Staff Commission points out that there is no Regulations which, taken in conjunction legislation in the Member States under with national law, may depend upon de which marriage automatically confers his facto discrimination, for example: wife's nationality on the husband. It the allowance for a person treated as if observes that by an exceptional kind of he were a dependent child under Article naturalization, the husband can often 2 (4) of Annex VII; acquire nationality at the time of his — military service: Article 42 of the marriage. Similarly, the Commission Staff Regulations; points out that in Belgian law there are provisions favouring the foreigner who — transfer of pension rights: Article 11 marries a Belgian subject by birth by of Annex VIII; enabling him to acquire naturalization — the disadvantage at which an official more easily. The object of this provision is in certain circumstances placed is to encourage the assimilation of when he transfers currency to his foreign spouses living in Belgium. country of origin shortly after the As the applicant, for reasons arising currency of that country has been from her freedom of choice, did not see revalued: on this point the fit to retain her French nationality and Commission cites the judgment of refuse Belgian nationality, Article 15 of the Court in Bode v Commission the Universal Declaration of Human (Case 63-75/70, Rec. 1971 p. 556); Rights has no relevance. In view of the — rights of succession: Article 73 (2) (a) option secured for the applicant under of the Staff Regulations. the Franco-Belgian Convention, it does
JUDGMENT OF 20. 2. 1975 — CASE 37/74
not see how the convention can be applied and, by means of a device, the criticized for having made it possible for legal test of 'head of household' is being the applicant, to her cost, to be deprived reintroduced or kept in force. In these of her nationality arbitrarily and against circumstances expatriation is being her will. exclusively assessed on the basis of the The Commission is also unable to accept husband's position and not on the basis the reference to the UNO Convention on of the relationship between the wife's the nationality of the married woman. In position and the concept of expatriation. so far as it retains an option for the wife, In this case, therefore, the difference in the Franco-Belgian Convention of 1947 emoluments is the result of a change in domestic circumstances. does not conflict with the underlying objective of the UNO Convention. Subsidiarily, the applicant alleges that there is a difference in emoluments
according to the nationality of the 2. Interpretation of Article 4 official, because the change in domestic circumstances has consequences only (a) Applicant's arguments when the marriage is between subjects of The applicant maintains that the certain countries where legislation Commission's interpretation of Article 4 requires the woman to take the infringed Articles 1 and 4 of Annex VII, husband's nationality. as amended by Regulation No 558/73, Since Regulation No 558/73 came into and was a misuse of power. force there have been two conditions for The defendant, in breach of the rules of grant of the expatriation allowance: law, withholds the benefit of the nationality, and a period of stay or its expatriation allowance from officials of absence in the country where the place female sex who, when they take up their of employment is situated. duties, are already married to a subject These two factors cannot be affected by of the country where they work. The changes in family circumstances. The applicant believes that she has suffered applicant accordingly claims the benefit loss through application of these of the expatriation allowance by virtue provisions relating to expatriation in of Article 4 (1) (a). that they are discriminatory and entail a difference in her emoluments, a situation For a definition of nationality the which, in her view, is incompatible with applicant quotes the judgment delivered the spirit of the treaties, the uniform by the International Court of Justice in the Nottebohm case: application of the Staff Regulations, and the arrangements provided for under 'Nationality is a legal bond having as its Article 4 of Annex VII of the Staff basis a social fact of attachment, a Regulations. genuine connexion of existence, interests In order to avoid having to continue to and sentiments, together with the apply the 'head of household' test, which existence of reciprocal rights and duties. the Court has held to be discriminatory, It may be said to constitute the juridical the state of expatriation should be expression of the fact that the individual determined on the basis of the upon whom it is conferred, either nationality of a female official before her directly by the law or as the result of an marriage and not on the basis of the act of the authorities, is in fact more nationality acquired by marriage. closely connected with the population of When the Commission determines the the State conferring nationality than with that of any other State'. state of expatriation onof the basis nationality acquired by marriage, not on The condition of de facto nationality is the basis of the previous nationality, a also provided for under the United different standard of assessment is being Nations Charter: when an official has
VAN DEN BROECK v COMMISSION
more than one nationality, the Following the denunciation of the Secretary-General must establish the Franco-Belgian convention of 9 January effective or de facto nationality of the 1947, the applicant regained her French individual concerned. Again, the nationality on 24 January 1974 under condition of de facto nationality is also Article 17 (4) of the Code of 9 January clearly referred to in the decision 1973 concerning French nationality. She adopted by the Commission of the further points out that she was born in European Communities on 27 July 1968 France of French parents and that she concerning the review of place of origin. stayed in France for an uninterrupted The applicant sees no reason why there period of 24 years. should be reference to de facto The applicant quotes the opinion of Mr nationality in assessing a situation Advocate-General Roemer in Bertoni concerned with nationality whereas the (Case 20/71, already cited) that 'the idea is rejected when it is a question of setting up of a home, that is to say determining expatriation. definite integration into the community The applicant concludes that regard of the State in question, has the effect of must be paid to her de facto nationality removing or mitigating the factor of which, she says, has always been French. expatriation, and with it the physical At the time the applicant took up her and psychological inconveniences of duties, the Commission was aware of her such expatriation'. links with France:
The applicant does not deny that marriage with a subject of the State 1. A preliminary inquiry was made in France in order to confirm her French undoubtedly makes it easier for a person to adapt to life in that State, but though nationality. marriage makes adaptation easier it does 2. The applicant held a certificate of not extinguish the state of expatriation. secondary education and a University The applicant does not understand why degree, both of which she obtained as the consequences of marriage are taken a French subject and not as an alien. into account only in the case of a
3. Her French University degree was woman official. From the psychological recognized in Belgium. point of view expatriation is exactly the same for a woman as for a man. 4. The applicant was engaged as a member of the auxiliary staff, whose (b) Arguments of the Commission main working language was French. 5. Her personal file contains the The Commission denies that, on entry following information relating to her into the service, the applicant fulfilled nationality: nationality at birth: the general conditions for grant of the French; present nationality: Belgian. expatriation allowance as set out in Article 4 (1) of Annex VII. The applicant goes on to explain the As regards the official who is not and reasons why, at the time when she never has been a national of the State in married in 1961, she saw fit not to whose territory the place where he is renounce Belgian nationality. employed is situated, Article 4 (1) (a) After she took up her duties the provides that the allowance shall be paid Commission acknowledged her links to officials who, during the five years
with France. This is evidenced by a ending six months before they enter the request for review of her place of origin. service, did not habitually reside or carry Under the decision taken, her place of on their main occupation within the origin was established as being in France European territory of that State. and no longer in Belgium as it was when In the case of officials who are or have
she took up her duties. been nationals of the State in whose
JUDGMENT OF 20. 2. 1975 — CASE 37/74
territory the place where they are evidence of connexion with a given employed is situated, Article 4 (1) (b) State.
provides that the allowance shall be On the basis of the principle that, granted to officials who, during the ten subject to the qualification of habitual years ending at the date of their entering residence, one is not an expatriate in the the service, habitually resided outside the State of which one is a national, those territory of that State. who drew up the Staff Regulations The applicant cannot reasonably claim intended that, as a general rule, the that she is not and never been a national expatriation allowance should not be of the State in whose territory the place paid to nationals of the country in where she is employed is situated. The whose territory the place where they are conditions provided for under Article 4 employed is situated. (1) (b) must be taken into account in As those responsible for the Staff determining the position. Regulations did not wish to introduce In the Commission's view it is any exception, differentiation or impossible to say that she has habitually variation in the application of the resided outside Belgium in view of the general terms they used, no one fact that she has lived in Belgium since interpreting it is entitled to make distinctions or variations where none is September 1961. During the material period of 10 years, from 11 May 1955 to made by the law and in this way to limit 11 May 1965, the applicant lived 6 years, the application of a law couched in
4 months, and 20 days outside Belgium general terms. and 3 years, 7 months, and 10 days in In the Commission's view, the concept Belgium. of effective nationality has no relevance Though she had lived for most of the time in the interpretation of Article 4 of An- outside Belgium the relative length of nex VII; see Mr Advocate-General her residence in Belgium seems to make Mayras in Gunnella v Commission (Case 33/72, [1973] ECR 483). it impossible to regard her habitual residence during these ten years as Moreover, the Commission points out having been outside Belgium. In the that, according to the decisions of Commission's view the applicant does international and national courts, not appear to satisfy the conditions laid effective nationality is far from being down in Article 4 (1) (b) of Annex VII synonymous with nationality of origin. of the Staff Regulations for grant of an Effective nationality is a question of fact expatriation allowance. As Article 4 (1) which generally includes factors such as makes no distinction or exception as the individual's habitual residence, his regards the way in which nationality is place of business, the language he speaks acquired, there is no justification for and also any preference, expressed or treating nationality acquired by marriage implied, he has shown in this respect. differently from nationality acquired through parentage or place of birth. Though French nationality is the applicant's nationality of origin it does In support of this contention the not follow that this nationality can Commission cites the opinion of Mr without further ado be regarded as her Advocate-General Mayras in Gunnella v effective nationality. The applicant has Commission (Case 33/72, [1973] ECR lived in Belgium for thirteen years. She 483). was married there a long time ago to a In making no distinction between the Belgian subject, enjoys civil rights there, methods by which nationality is pursued a professional career there for acquired, those who drew up the Staff several years in the private sector, has Regulations clearly indicated that they attended university courses there regarded nationality as substantial sufficient for her French degree to be
VAN DEN BROECK v COMMISSION
recognized and, by not exercising the interest is sufficient reason for setting right to retain her French nationality, aside the application. has implicitly indicated that she intended In support of this contention the to acquire Belgian nationality and to lose Commission cites the Judgment of the her French nationality. Court in Capolongo (Case 27/59 and In the event that the concept of 39/59, Rec. 1960 p. 826). effective nationality could be taken into account in applying the Staff Regulations, the defendant would deny IV — Oral procedure that French nationality is the applicant's effective nationality at this time. The oral observations of the applicant, represented by Rita Dieudonné, and of 3. Application for legal interest the Commission, represented by Robert The Commission takes the view that the Fischer, were made at the hearing on 14 November 1974. absence of any provision in Community law concerning the possibility, the The Advocate-General delivered his
admissibility or the rate of accrued opinion at the same hearing.
Law
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.
JUDGMENT OF 20. 2. 1975 — CASE 37/74
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.
VAN DEN BROECK v COMMISSION
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.
Costs
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.
OPINION OF MR TRABUCCHI — CASE 37/74
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.
Mackenzie Stuart Kutscher Sørensen
Delivered in open court in Luxembourg on 20 February 1975.
A. Van Houtte A. J. Mackenzie Stuart
Registrar President of the Second Chamber
OPINION OF MR ADVOCATE-GENERAL TRABUCCHI
(See case 21/74, p. 231)