C-257/78

EVELYN DEVRED, NÉE KENNY-LEVICK, Official of the Commission of the European Communities, assisted and represented by Edmond Lebrun, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Tony Biever, Advocate, 83 Boulevard Grande-Duchesse Charlotte,

applicant,

Commission of the European Communities, represented by its Legal Adviser, Joseph Griesmar, acting as Agent, assisted by Daniel Jacob, of the Brussels Bar, with an address for service in Luxembourg at the office of Mario Cervino, Legal Adviser to the Commission, Jean Monnet Building, Kirchberg,

defendant,

APPLICATION for the annulment of the Commission's decision to

withdraw from the applicant the expatriation allowance and for the annulment of the implied decision rejecting the complaint submitted by her in that regard,

Facts and Issues

The facts of the case and the arguments months after the marriage. During the submitted by the parties in the course whole of the period from 6 March 1967 of the written procedure may be to 19 June 1972 she drew the expatri- summarized as follows: ation allowance, which at present is provided for and regulated by Annex VIII to the Staff Regulations, pursuant to Article 69 of the Staff Regulations.

I — Facts and procedure

3. On 1 December 1977, after taking 1. By a contract of 6 March 1967 the part in an open competition, she was applicant was engaged for the first time recruited a second time as a probationary to work for the European Communities, official in Grade C 4 in the employment in that instance the European Atomic of the Council but was transferred, with Energy Community, as an auxiliary effect from 16 December 1977, to the employee in Category C, Group VI, Commission where she was assigned to a Class 2. postin Grade C 4, Step 3, in the Directorate General for Personnel and Administration. On 11 January 1968 she was made a probationary official with effect from 1 January of the same year in Grade C 3, Step 1, pursuant to Regulation (EAEC) No 11 laying down the Staff Regulations 4. The expatriation allowance was of Officials and the Conditions of again paid to her from when she was Employment of Other Servants of the recruited for the second time until the time when the officers of the European Atomic Energy Community. By a decision of 28 July 1971, which Commission, considering that she no took effect on 15 September 1971, she longer met the requirements for receiving was transferred to the Joint Research that allowance on the date of her second

Court Registry on 27 November 1978, 1. Reject the application as inadmissible; was lodged by the applicant against the 2. Order the applicant to pay the costs. implied decision rejecting her complaint.

After hearing the report of the Judge Rapporteur and the views of the III — Submissions and argu- Advocate General, the Court decided to ments of the parties open the oral procedure without any preparatory inquiry. A — The application

The applicant submitted three arguments II — Conclusions of the parties in her original application. The first, presented as the principal argument, The applicant claims that the Court relates to the infringement of Article 119 should: of the EEC Treaty, of Article 4 (1) (a) of 1. Declare that the application is Annex VII to the Staff Regulations, and admissible and well-founded; to the principle of equality. The applicant complains that the expatriation 2. Primarily: Annul the Commission's allowance was withdrawn from her on decision to withdraw from the the ground, apparently, that she had applicant the expatriation allowance acquired by marriage the nationality of and the implied decision rejecting the the State in which she was employed. complaint made in this respect; She considers that the concept of nationality referred to in Article 4 (1) (a) 3. Alternatively: of Annex VII to the Staff Regulations (a) Decide that the applicant shall should be interpreted, in accordance remain entitled to receive the with Article 119 of the EEC Treaty, the expatriation allowance or at least principle of equality and the case-law of order the defendant to pay the the Court, in such a way as to avoid any applicant an allowance of an unwarranted difference of treatment

The second argument, presented as an alternative, relates to the infringement of Article 4 (1) (b) of Annex VII to the The third argument, presented as a Staff Regulations. The applicant further alternative, relates to the complains that the Commission decided infringement of the legal rule that the to deprive her of the expatriation administration is liable for any wrongful allowance on the ground that she did not act or omission and there arises a right habitually reside outside Belgian territory to compensation which may be paid in during the ten years ending at the date kind. of her entering the service. The applicant maintains that Article 4 (1) (b) of Annex VII to the Staff Regulations, under which an expatriation allowance is to be paid "to officials who are or have been nationals of the State in whose territory the place where they are employed is situated but who during the ten years ending at the date of their entering the The defendant was at fault in

service habitually resided outside the withdrawing the applicant's expatriation European territory of that State for allowance after having granted it; the reasons other than the performance of applicant entered into financial duties in the service of a State or of an commitments on the basis of her

international organization", must be remuneration — including the expatri- interpreted as meaning that for the ation allowance — in order to purchase purposes of applying that provision an a flat, and the withdrawal of that official is always deemed to reside in the allowance upsets the balance between her State of which he is a national or in his income and her financial commitments.

must be given by continuing to pay the of Articles 21 and 35 of Regulation No expatriation allowance to the applicant 912/78 of 2 May 1978, Official Journal or, at least, by according her an L 119, p. 1) which provides, in accord- allowance of an equivalent amount for ance with the case-law of the Court, the period of the above-mentioned loan that, for the purposes of the provisions or else until the increases in her basic which govern the conditions for granting salary make good the loss of the expatri- the expatriation allowance, it is only ation allowance. where a female official has by marriage "automatically acquired and cannot renounce the nationality of the State in whose territory she is employed” that she may be considered not to have that B — The defence nationality. The applicant's argument goes beyond the intention of the Community legislature which was to follow the case-law established by the In its statement of defence the judgment in the Van den Broeck case Commission replies with regard to the referred to above, and infringes Article 4 first argument that the interpretation (3) of Annex VII to the Staff Regu- given by the applicant to Article 4 (1) (a) lations.

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date of their entering the service habi- act. The applicant fails to explain why tually resided outside the European the fact that the expatriation allowance territory of that State for reasons other was paid by mistake should constitute an than the performance of duties in the exceptional instance of a wrongful act; service of a State or of an international on the contrary, the officers of the organization". The Commission main- Commission realized their error in less

tains that according to that provision the than two months and rectified it

As to the wrongful act, the case-law of retain her nationality of origin. The the Court, especially the judgments of 28 applicant goes on to observe that even if May 1970 (Joined Cases 19, 20, 25 and she had renounced the nationality 30/69, Richez-Parise and Others [1970] acquired by marriage, that renunciation ECR 325) and 9 July 1970 (Case 23/79 would not have eliminated the discrimi-

Fiehn [1970] ECR 547) states that apart natory treatment criticized by the Court from the exceptional instance, the because, according to Belgian law, the adoption of an incorrect interpretation renunciation would not have retroactive

does not constitute in itself a wrongful effect so that in any case she would for a

JUDGMENT OF 14. 12. 1979 — CASE 257/78

certain time have had the nationality nationality would not have enabled her which was conferred by her marriage. to "recover" her British nationality, as she has retained it. Her situation is much closer to that which the Court dealt with

in the judgment in the Airola case cited As the object of the expatriation above.

issue concerned only one nationality, by side. There exists therefore a that acquired by marriage, whereas in “positive” conflict of nationality since this case there is dual nationality and the recognition of a right depends on the the applicant's renunciation of Belgian nationality. In order to resolve the

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conflict international courts have further taken into account when that residence is

developed the notion of' "active" or due to the performance of duties with an "effective" nationality which had already international organization. She considers been established by the national courts. that her previous residence in Belgium For an official of the Communities who while working for the Communities has has dual nationality the "active" or therefore been "cancelled out". From

The applicant maintains that in point of Drawing support from the view put fact she had already entered into definite forward by Advocate General Mayras in financial commitments before she his opinion in Case 33/72 (Gunnelia received her salary slip for February [1973] ECR 475) the applicant claims 1978, even though the first loan contract that only her situation at the time when was only formally signed on 17 February she first entered the service is relevant; in 1978. She claims that it was impossible her case, prior to her first appointment, for her to cancel everything and not to when she was posted to Brussels, she had proceed with the transaction she had never possessed Belgian nationality and commenced, particularly because the had never resided in Belgium. defendant had failed, in violation of the provisions of Article 25 (2) of the Staff Regulations, to notify her in writing and with a statement of reasons of the As to the second argument decision to withdraw from her the ex-

patriation allowance.

The applicant draws a comparison between subparagraphs (a) and (b) of Article 4 (1) and concludes from it that The applicant concludes that damage the general scheme of the article shows was occasioned and that there is a causal

that residence in a particular place is not connexion between that damage and the

JUDGMENT OF 14. 12. 1979 — CASE 257/78

wrongful act or omission. As to the contrary to the view expressed by some existence of a wrongful act or omission of the legal writers cited by the she claims that the defendant has applicant, it is evident from the work of acknowledged that it failed, when the an eminent author (De Page, Vol. I, No applicant was recruited for the second 361, published 1962) that the renun- time, to check whether she met the ciation in question does have retroactive conditions for the granting of the ex- effect. Even if the renunciation does not

the automatic acquisition of nationality without any option to renounce it. As far as compensation for the damage is concerned, the applicant maintains the argument she put forward in the As to the alleged incompatibility of application and adds, in the alternative, that if the Court considers that she Article 4 of Annex VII to the Staff Regu- lations with Article 119 of the EEC ought, as far as possible, to have cancelled the commitment she had Treaty and the principle of equality, the Commission maintains that in the entered into prior to receiving her salary judgment in the Van den Broeck case the slip for February 1978, the defendant Court did not distinguish between female should pay her compensation of an officials on the basis of whether or not, amount equal to the penalty she would following their marriage, they possessed have had to pay for doing so. one or two nationalities, but confined itself to deciding that for the purposes of the expatriation allowance the nationality automatically imposed on an official on D — The rejoinder her marriage must be left out of account. According to the Commission, as the applicant has not renounced Belgian nationality as Belgian law allows her to do, she possesses the nationality of the The Commission first replies to the State in which she is employed within the applicant's arguments concerning the fact meaning of Article 4 (1) (a) of Annex that when a foreign woman exercises the VII to the Staff Regulations. option to renounce the nationality acquired by marriage it does not have retroactive effect. It points out, first, that since she did not exercise that option the The Commission then points out that, applicant is in the situation not of an contrary to what the applicant maintains, official who "has had" the nationality of there is nothing to support the statement the State in which she is employed, but that the wording of Article 4 (3) of of an official who still possesses such Annex VII fails to convey properly the nationality. It points out, secondly, that intention of the Community legislature

— priority should be given to her British consideration by the defendant for her nationality which is her "effective" recruitment and career progress must be nationality, the Commission, basing itself rejected, because according to the last on the opinion of Advocate General part of Article 27 of the Staff Regu- Mayras in Case 33/72, Gunnelia, cited lations, no posts shall be reserved for above, points out that the circumstance nationals of any specific Member State. of nationality must be evident on a plain and simple examination and that, moreover, there is no question here of resolving a “positive conflict of nati- onalities”, which is a concept taken from The truth is, the Commission continues, private international law. These that the applicant has no residence in proceedings concern only the scope of Great Britain and has never lived there, regulations which apply within an inter- and she has no voting rights nor is she national organization and which govern eligible to stand in elections there. In the rights and duties of its officials and Belgium, on the contrary, she is entitled employees. The condition of having "the to vote in the communal, district, prov- nationality of the State where he is incial, legislative and European elections employed” must therefore be considered and may be called to serve on a jury of a to be fulfilled by the mere fact that an Cour d'Assizes. On the applicant's own official has that nationality, even if he test the Belgian State accords her the has another. benefit of political rights to a considerably greater degree than does Great Britain. On the basis of the factors listed in its statement of defence the Commission concludes that there is a Finally, further in the alternative, the "social fact of attachment" to Belgium Commission maintains that the British going beyond the ordinary consequences nationality which the applicant claims to of being employed in that country which, have is not her "active" or "effective" in conjunction with the absence of nationality within the meaning assigned connexion with Great Britain, establishes

into consideration, the applicant is obliged to juxtapose artificially subpara- According to the Commission the most graphs (a) and (b) of Article 4 (1), which elementary prudence should have led the relate to two different cases and the applicant to refrain from entering into wording of which itself contradicts the the commitment on 17 February 1978, interpretation put forward, for the something which she was perfectly closing words of Article 4 (1) (a) relate entitled to do without incurring any only to subparagraph (a). According to penalty at all. the Commission the applicant cannot be considered as having habitually resided outside the territory of the State in As to the causal connexion, the which she was employed during the ten Commission recalls that it showed in its years prior to when she took up her post statement in defence that there is no for the second time, for she habitually connexion between the mistaken in- resided, or is to be considered as having so resided, outside Belgium only for less terpretation adopted by its staff and the damage alleged to have occurred which, than seven years during that time. even if it is established, is due to the irresponsible manner in which the As to the third argument, relating to the applicant entered into financial existence of a wrongful act or omission, commitments which she now finds to be

the Commission first points out, drawing disproportionate to her income.

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As regards the compensation which has the Brussels Bar, and the Commission of been asked for, the Commission notes the European Communities, represented that the applicant has not produced any by D. Jacob, of the Brussels Bar. evidence to show that she is virtually unable to meet her commitments, or that At the request of the Court the applicant failure to enter into the first commitment produced a number of documents, in addition to those which she had on 17 February 1978 could have rendered her liable to pay a penalty. submitted previously, concerning the conditions under which she took out the

3 When she was engaged by the European Communities in March 1967 she fulfilled the conditions for the granting of an expatriation allowance, which was in fact paid to her without interruption until the moment she terminated her employment by resigning with effect from 19 June 1972.

JUDGMENT OF 14. 12. 1979 — CASE 257/78

4 On 1 December 1977 she once again entered the service of the Communities at Brussels. The competent officers of the Commission first paid her the expatriation allowance but shortly afterwards, taking the view that because she had acquired Belgian nationality by marriage she no longer fulfilled the conditions for receiving the allowance, they notified her that it was to be withdrawn with effect from February 1978.

The application for the annulment of the decision

5 In so far as the application seeks the annulment of the decision at issue, it is based principally on the infringement of the provisions of subparagraph (a) of Article 4 (.1) of Annex VII to the Staff Regulations and of the general principle of equality and, in the alternative, on the infringement of the provisions of subparagraph (b) of the same paragraph.

6 Under Article 62 of the Staff Regulations an official's remuneration comprises "basic salary, family allowances and other allowances". Amongst those allowances, Article 69 provides for an expatriation allowance, detailed rules for the payment of which are laid down by Article 4 (1) of Annex VII to the Staff Regulations which provides that the allowance shall be paid:

7 Article 21 (2) of Council Regulation No 912/78 of 2 May 1978 (Official Journal L 119, p. 1) added to Article 4, inter alia, a third paragraph, which was made applicable retroactively with effect from 1 July 1972 by virtue of the second paragraph of Article 35 of Regulation No 912/78. Article 4 (3) provides: "For the purposes of paragraphs 1 and 2, an official who has by marriage automatically acquired and cannot renounce the nationality of the State in whose territory he or she is employed shall be treated in the same way as an official covered by the first indent of paragraph 1 (a)".

The infringement ofArticle 4 (1) (a) ofAnnex VII to the StaffRegulations and ofthe principle ofequality

8 Under the first indent of Article 4 (1) (a) of Annex VII to the Staff Regu- lations, the expatriation allowance shall be paid to officials "who are not and have never been nationals of the State in whose territory the place where they are employed is situated".

9 In its judgment of 20 February 1975 in Case 21/74 (Airola [1975] ECR 221) the Court acknowledged that according to the general principle which prohibits any unwarranted difference of treatment as between officials according to whether they are male or female, the first indent of Article 4 (1) (a), cited above, should be interpreted as meaning that where an official receives the expatriation allowance on the basis of the fact that he or she does not have the nationality of the State in which he or she is employed, that allowance may not be withdrawn when, as a result of marriage with a national of the Member State where the official is employed, the nationality of the spouse is automatically imposed on him or her without the official being able to renounce it.

14 The concept of effective nationality is used mainly in private international law in order to resolve positive conflicts of nationality. The concept cannot be transferred to a quite different sphere from that for which it was developed, specifically the scope of the Staff Regulations for Officials of the Communities, in order to determine entitlement to receive the expatriation allowance, when, apart from the exception expressly provided for in Article 4 (1) (b), an official who has the nationality of the place in which he is employed is not entitled to that allowance.

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15 Moreover, even if the applicant's point of view were to be adopted, it should be observed that she has failed to show that she is considered in Great Britain as a "patrial", whereas under the declaration made by the Government of the United Kingdom of Great Britain and Northern Ireland on the definition of the term "nationals" annexed to the Final Act of

22 January 1972 on the accession to the European Communities of the new Member States, the term "national" is to be understood, as far as the United Kingdom is concerned, to refer only to patrials and to Gibraltarians.

16 The applicant further claims that when an official has dual nationality, that which is to be taken into consideration for the granting of the expatriation allowance should be the nationality relied on by the institutions for her recruitment and the progress of her career and that in that respect she is and has always been considered by those institutions as being an official of British nationality.

residence in Belgium prior to her second engagement is to be treated as a period of residence outside Belgium on the ground that the previous residence was for reasons connected with her employment in the service of the Communities gives a meaning to subparagraph (b) which is contrary to its express terms and irreconcilable with both the wording and the aims of that provision.

The request that payment of the expatriation allowance should be temporarily continued or that damages should be awarded

21 The request for compensation which, in substance, this head of claim constitutes is founded on the allegation that the applicant took out a loan for the purpose of purchasing a dwelling on the basis of the level of her income including the expatriation allowance and that by first granting that allowance when she was engaged for the second time only to withdraw it afterwards, the Commission upset her plans and has therefore committed a wrongful act for which the applicant should be compensated.

22 That claim must also be rejected. An administrative authority which remedies an unlawful situation cannot be considered as committing an act which is wrongful or such as to render it liable.

23 Moreover, examination of the case and the documents produced by the applicant in the course of the oral proceedings show that she entered into the financial commitments involved in the loan to which she refers at a time

when the allowance in question had already been withdrawn from her.

THE COURT (First Chamber)

hereby:

1. Dismisses the application;

2. Orders each party to pay its own costs.

O'Keeffe Mertens de Wilmars Koopmans

Delivered in open court in Luxembourg on 14 December 1979.

Essentially she claims in this action: decision.