C-40/79

JUDGMENT OF T H E COURT (FIRST CHAMBER) OF 5 FEBRUARY 1981 1

Mrs P. v Commission of the European Communities "Official — Survivor's pension"

Case 40/79

1. Measures adopted by institutions —Amendment of an earlier provision — Situations arising under that latter provision — Future effects —Application of the amendment 2. Officiais — Pensions — Survivor's pension for a divorced wife — Conditions for grant — Decree of divorce not finding that the wife was solely to blame — Concept of "sole" blame (Staff Regulations of Officials, Annex VIII, Art. 27)

1. According to a generally accepted worded in Article 27 of Annex VIII, principle a law amending a legislative applies only where the decree of provision applies, save as otherwise divorce found that the wife was solely provided, to the future effects of to blame. A decree which decided situations which arose under the what blame was to be attached to the previous law. wife, whilst reserving judgment as to the blame to be attached to the husband, may not be considered as 2. The proviso denying the divorced having found that the wife was wife a survivor's pension, as it is "solely" to blame.

In Case 40/79

defendant,

in the presence of

MRS C. (NÉE C ) , WIDOW OF C , an official of the Commission of the European Communities residing in Brussels, represented by Marcel Slusny of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Mr Arendt, Advocate, Centre Louvigny, 34/B/IV Rue Philippe II,

intervener,

APPLICATION for the annulment of the decision of 25 May 1978 refusing to grant the applicant a survivor's pension and of the implied decision rejecting the complaint lodged by the applicant on 11 August 1978 and for an order that the defendant grant the applicant the survivor's pension with interest on the arrears,

T H E COURT (First Chamber)

The facts of the case, the course of the — Reserved the entire costs. procedure, the conclusions, submissions and arguments of the parties may be Under that judgment the applicant was summarized as follows: granted custody of the two children of the marriage, Cristina and Renato C , and was entrusted with the management I — Facts and procedure of their property. The applicant did not appeal and the The applicant is an official in Grade C 4 divorce was finally pronounced and of the Commission of the European registered on 27 August 1975 by the Communities. Officier de l'État Civil [Registrar of Births, Deaths and Marriages], Woluwe- On 27 April 1963 in Woluwe-Saint- Saint-Lambert, in accordance with Lambert, Brussels, she married Manfredo Article 1275 of the Code Judiciaire Belge C , also an official of the Commission [Belgian Code of Civil Procedure]. and an Italian national. On the other hand there were no Through her marriage the applicant proceedings for recognition of that acquired Italian nationality, whilst decree either in the Federal Republic of retaining her German nationality. Germany or in Italy. Manfredo C. died in Schaerbeek, On 13 June 1975 the Fifteenth Chamber Brussels, on 31 October 1977. No of the Tribunal de Première Instance further steps had been taken in the [Court of First Instance], Brussels, auth- original divorce proceedings instituted by orized the divorce of the spouses by a the applicant. judgment which : By a letter of 25 May 1978 signed by the — Ruled that the petition for divorce Head of the Individual Rights and submitted by the applicant was Privileges Division the applicant was admissible and, before pronouncing notified that an orphan's pension would judgment on the substance of the be paid to each of her two children, case, permitted the applicant to Cristina and Renato, but that, pursuant establish by any evidence, including to Article 27 of Annex VIII to the Staff witnesses, ten facts which, taken Regulations of Officials of the European together, were relevant and Communities, she would not be granted sufficiently precise and capable of a survivor's pension. rebuttal; The above-mentioned Article 27 — Ruled that the cross-petition for acquired its present form as a result of divorce submitted by the husband of Council Regulation (Euratom, ECSC, the applicant was admissible and EEC) No 912/78 of 2 May 1978 well-founded and consequently auth- amending the Staff Regulations of orized the divorce, stating that the Officials of the European Communities applicant was to blame; and and the Conditions of Employment of

Other Servants of . the European tutrice of Cristina and Renato C. The Communities (Official Journal 1978, Court considered that if the applicant's L 119, p. 1) which entered into force on claim succeeded the orphan's pension 4 May 1978. It is worded as follows: paid to Cristina and Renato C. would be reduced by half in accordance with the "The divorced wife of an official shall be third paragraph of Article 80 of the Staff entitled on his death to a survivor's Regulations. pension, as defined in this chapter, provided that the court which pro- On hearing the report of the Judge- nounced the decree of divorce did not Rapporteur and the views of the find that the divorced wife in question Advocate General, the Court (First was solely to blame ...". Chamber) decided to open the oral procedure without any preparatory The earlier version of Article 17 of inquiry. Annex VIII stated that the divorced wife of an official should be granted a survivor's pension "provided that the court which pronounced the decree of II — Conclusions of the parties divorce found that the official was solely to blame". The applicant claims that the Court should : On 11 August 1978 the applicant lodged a complaint against the above-mentioned — Annul the decision of 25 May 1978 decision. That complaint was followed refusing to grant the applicant the by supplementary notes dated 20 No- survivor's pension and the implied vember and 4.December 1978. decision rejecting the complaint submitted by her on 11 August 1978; Following the implied rejection of the complaint the applicant instituted these — Order the defendant to award the proceedings on 9 March 1979. applicant a survivor's pension and to pay her the monthly instalments By an application lodged on 27 July thereof which have fallen due, with 1979 Mrs C, née C , requested interest on the arrears at the legal permission to intervene in Case 40/79 in rate of 8%; support of the submissions of the defendant on the grounds that she was — Order the defendant to pay the costs. entitled to intervene in the case pursuant to Article 93 of the Rules of Procedure The defendant contends that the Court in her capacity as "subrogée-tutrice" should : [person supervising the guardian] of Cristina and Renato C , that she had — Dismiss the application as un- actual custody of Cristina C. and that founded; she also had a moral interest in ensuring that the applicant was not recognized as — Order the applicant to pay the costs. the widow of her son.

(a) Application In substance the applicant pleads three grounds for annulment: The applicant relies on this submission under Article 184 of the Treaty, claiming (1) The invalidity of Article 27 of Annex that Article 27 of Annex VIII to the Staff VIII to the Staff Regulations. Regulations, in its present version, is illegal since it is in breach of principles (2) Infringement of Article 79 of the of law, in particular the principles of Staff Regulations and of Articles 17 equality, distributive justice and equity and 27 of Annex VIII thereto, and because it constitutes a misuse of infringement of the Convention powers. concluded on 6 April 1962 between the Kingdom of Belgium and the Italian Republic on the recognition In fact Article 27 of Annex VIII and enforcement of judgments and establishes an arbitrary difference in the other enforceable instruments in civil treatment of divorced wives of officials and commercial matters, in par- of the Communities since certain ticular Article 1 thereof; infringe- national legal systems no longer provide ment of the Convention concluded for divorce on the ground of the on 30 June 1958 between the Federal misconduct of one of the spouses. Republic of Germany and the Consequently wives who are divorced Kingdom of Belgium on the mutual under such systems are always entitled to recognition and enforcement of a survivor's pension whatever the judgments, arbitration awards and circumstances of the divorce, unlike authentic instruments in civil and women who are divorced under other commercial matters, in particular systems which continue to ascribe blame Article 2 thereof; infringement of to one of the parties. Article 18 of the "Disposizioni sulla Legge in Generale" [Provisions on the Law in General] which form an (b) Defence introduction to the Italian Civil Code; finally, infringement of the The defendant submits that in fact the rules and principles of private inter- only legal principle which can be relevant national law in particular those is that which prohibits arbitrary discrim- whereby, in order to determine ination, that is to say discrimination whether two persons are married or unrelated to any objective criteria, rather divorced, reference must be made to than the principle of equality (cf. their common national law. judgment of 20 October 1977 in Case 5/76 Jänsch v Commission [1977] ECR (3) Infringement of Article 79 of the 1827). Staff Regulations and of Article 27 of Annex VIII thereto, infringement Article 27 of Annex VIII cannot be of certain principles of law, in described as discriminatory: the differ- particular the rules concerning the ence in the treatment of a divorced wife

depending on whether in the decree of The defendant's contention that the divorce she was held solely to blame is in situations are not comparable is based on fact connected with situations which are the postulate that the survivor's pension not comparable; in the one case the is merely a substitute for the obligation deceased official would not have been to provide maintenance which would obliged to provide maintenance, whereas have been incumbent on the official had in the other case he would or might have he not died. However, that postulate

systems. That circumstance is unrelated the basis of Article 27 of Annex VIII, in to the intention of the Community the version at present in force, the legislature. divorced wife of an official may qualify for a survivor's pension even if her former husband was not obliged to pay Finally, in cases where divorce is decreed maintenance or she may not qualify for on the ground of the irretrievable the pension even if he was under such an breakdown of the marriage there is obligation. For example Article 301 of

On the other hand, statement to that effect in the decree. according to the applicant, Article 5 (4) of the Italian Law No 898 of 1 December 1970 must be interpreted as meaning that it does not automatically (c) Reply deprive a divorced wife of a maintenance allowance even though she is held solely to blame for the divorce. The applicant emphasizes that, depending on the legal system applicable The applicant considers that the to the divorce, certain wives of officials inequality follows not from the may be divorced with a finding that they difference between the national legal are solely to blame since their national systems but from the Staff Regulations. legal systems provide for divorce on the In fact Article 27 of Annex VIII lays ground of the misconduct of one of the down a ground for refusing the parties, whilst others may never be survivor's pension and that ground is divorced with such a finding, no matter based on a test (whether the official how great their fault, because their concerned was held solely to blame or national legal systems provide for not) which inevitably brings about divorce only on the ground of the irre- discrimination because of the differences trievable breakdown of the marriage. in the national legal systems and because

In such a case the decree cannot by definition contain a finding that one of The Meinhardt judgment (in Case 24/71, the spouses was to blame for the divorce. cited above) must be placed in its In advancing that argument the context: in that case there was no court defendant disregards the clear wording order requiring the husband in question of Article 27 of Annex VIII and the to pay maintenance to his former wife. status of res judicata of the decree of In fact the Court of Justice considered divorce. that the voluntary payments made by the husband to his former wife were made in performance of an obligation to pay maintenance arising from the divorce (d) Rejoinder and that the applicant was therefore entitled to a survivor's pension. The link between the survivor's pension and the The defendant contends that the position obligation to provide maintenance of a wife who was found solely to blame following the divorce was thus expressly in a decree of divorce is neither identical stated. nor comparable to that of a wife who is not divorced or a wife who was not found solely to blame in the decree of The defendant maintains that the divorce. inequality does not result from the Staff Regulations but from differences between the national legal systems. Although the Staff Regulations grant a pension to wives who, having been divorced by a decree which did not Article 27 of Annex VIII lays down a ascribe blame or which blamed both general test applicable to all wives in the parties, do not perhaps in all cases same position. Furthermore, that test is

(e) Observations of the intervener The defendant submits that the Brussels court enjoyed territorial jurisdiction to The intervener considers that there is no entertain the divorce proceedings since arbitrary discrimination. Within the both spouses resided in Brussels. Article Member States of the European Com- 4 of the Italian Code of Civil Procedure, munity different systems exist; some like Article 635 of the Belgian Code of provide for divorce on the ground of Civil Procedure and point 1 of Article 2 irretrievable breakdown, whilst others (1) of the Convention between Belgium grant divorce on the ground of and Italy signed at Rome on 6 April misconduct. It does not follow from this 1962, adopted the maxim actor sequitur that one or other of the systems is forum rei. Furthermore, the applicant contrary to the principle of equality herself chose that court and her husband before the law as between European submitted to its jurisdiction in accord- citizens since each of them is subject to ance with point 3 of Article 2 (1) of the the same national law before the above-mentioned Convention. respective courts. The same is true of the European institutions in so far as the Staff Regulations which they apply refer to decisions of the national courts. The defendant contends that in Italy public policy does not preclude recognition of the judgment authorizing divorce pronounced by the Brussels court 2. The second ground (Article 1 (6) of the above-mentioned Convention) provided that the judgment was pronounced in circumstances which (a) Application clearly permitted the Belgian court to find that the marriage of the spouses had The applicant submits that in order to irretrievably broken down. That is determine whether two persons are indeed so in this case.

Furthermore, for the purposes of the in question is governed by Community Staff Regulations of the European law but not when it belongs to a sphere Communities the probative force, which, like personal status, falls outside authority and effects of a decree of the scope of Community law. divorce must be appraised in terms of Community law and not in accordance with the concepts of one or other of the The contention of the defendant that Member States. The objection relating to public policy constitutes a "nationalist" public policy in international law is objection which cannot be taken into always strictly territorial and can only consideration in Community law would have effect within the national frontiers. result in recognition by the Community institutions of a decree of divorce affecting an Irish official and his Irish The defendant considers that it is wife pronounced by a Belgian or sufficient for the Court to find that on German court although Irish law does the basis of the general principles of not recognize divorce. international law and the rules generally recognized in the legal systems of the Member States: Since Article 27 of Annex VIII to the Staff Regulations lays down a test concerning a matter of personal status, if (1) The jurisdiction -of the court which there is a conflict of laws with regard to pronounced the decree of divorce such status the Community authority was not excluded in favour of any must settle that conflict in accordance other court; with the rules of private international law. The three national legal systems concerned, Belgian law (lex fori), (2) The rights of the defence were German law (the law of the State of respected; which the applicant was originally a national) and Italian law (the law of the common nationality of the spouses), uphold the rule of private international (3) The court did not arbitrarily apply law that divorce is governed by the rules of law which are at variance national legal system common to the with the principles of international spouses. law and in particular with the public policy of the Community. The applicant claims that in Italy there is no decision recognizing the decree of (c) Reply divorce pronounced by the Tribunal de Première Instance, Brussels, and that recognition of that decree is not possible. The applicant does not dispute that the Tribunal de Première Instance, Brussels, enjoyed territorial jurisdiction. (d) Rejoinder

The applicant submits that the decree of By a letter of 6 October 1980 the Court, 13 June 1975, whereby the Tribunal de pursuant to Article 60 of the Rules of Première Instance, Brussels, authorized Procedure, requested the parties to the the divorce, did not contain a finding action and the intervener to set out their that the applicant was solely to blame. views as to whether the former or the That judgment reserved the question present wording of Article 27 of Annex whether the husband might also be held VIII to the Staff Regulations applies. to blame for the divorce. The applicant replied that in this case the decision on her right to a survivor's The defendant replies that the applicant pension should have been taken on the failed to pursue the proceedings. On the basis of the amended version of the death of the husband only the decree provision since it came into force before authorizing the divorce with a finding that decision was taken. that the applicant was to blame had been pronounced. The defendant stated that since Regu- lation No 912/78 did not contain any specific transitional provision the Admin- The applicant replies that since the istration considered that it was obliged judgment of 13 June 1975 left open the to give immediate effect to that Regu- possibility of a further divorce decree lation and consequently to apply the blaming the husband, with the result that amended provision in future to situations the ultimate finding would be that both which, when they came into being, were parties were to blame, that judgment governed by the provision as originally cannot constitute a decree with a finding worded. that one of the parties was solely to blame; in fact the effect of such a decree The intervener considered that the would be that a further judgment original version of Article 27 should be ascribing blame to both parties would be applied because it would be contrary to legally impossible without disregarding the general principles of law to give the status of res judicata of the original retroactive effect to an amending decree. provision.

5 The present version of the said Article 27 was introduced by Council Regu- lation (Euratom, ECSC, EEC) No 912/78 of 2 May 1978 amending the Staff Regulations of Officials of the European Communities and the

JUDGMENT OF 5. 2. 1981 — CASE 40/79

Conditions of Employment of Other Servants of the European Communities (Official Journal 1978, L 119, p. 1) which entered into force on 4 May 1978. That provision states that the divorced wife of an official shall be entitled on his death to a survivor's pension, "provided that the court which pronounced the decree of divorce did not find that the divorced wife in question was solely to blame". The previous version of that article made provision for the grant of the survivor's pension "provided that the court which pronounced the decree of divorce found that the official was solely to blame".

6 The three grounds relied on by the applicant are based on the invalidity of Article 27 of Annex VIII, on the invalidity of the decree of divorce, which the applicant claims is not recognized under Italian law, the national law common to the spouses, and on the erroneous interpretation of the decree, which, it is argued, did not authorize the divorce with a finding that the applicant was "solely" to blame.

7 In appraising whether these submissions are well founded it must first of all be determined whether the version of the said Article 27 which was introduced by Regulation No 912/78 is applicable to this case.

8 Article 24 of Annex VIII provides that the right to receive payment of a survivor's pension has effect from the first day of the calendar month following that in which the official died, but that if payment of the three months' salary provided for in Article 70 of the Staff Regulations is made on the death of the official the right to the pension takes effect on the first day of the fourth month following that in which the death occurred. In the present case those two dates are 1 November 1977 and 1 February 1978 and are thus prior to the entry into force of Regulation No 912/78.

12 According to a generally accepted principle a law amending a legislative provision applies, save as otherwise provided, to the future effects of situations which arose under the previous law. Thus the amendment to Article 27 of Annex VIII, which moreover reflects an alteration in the attitude of the law towards the divorced wife, must, save as otherwise provided, apply from the time of its entry into force to all divorced wives of deceased officials.

13 Although Article 24 of Annex VIII fixes the date for qualifying for a survivor's pension and the date from which the right to receive that pension has effect, it is not intended to lay down rules concerning subsequent alterations to pension rights. The Commission was thus correct in concluding that the amendment made to Article 27 by Regulation No 912/78 applies, in the absence of any transitional provision, with immediate effect to all the situations which it covers.

1 4 It is convenient to deal first with the third ground, in which it is claimed that the decree of divorce pronounced by the Tribunal de Première Instance, Brussels, on 13 June 1975 did not find that the applicant was “solely” to

JUDGMENT OF 5. 2. 1981 — CASE 40/79

blame and that she is accordingly entitled to the survivor's pension under Article 27 of Annex VIII, as amended by Regulation No 912/78.

15 In support of that contention the applicant claims that although that judgment authorizing the divorce found that the applicant was to blame, it did not find that she was solely to blame. In permitting the applicant to prove facts capable of establishing that her husband was to blame the judgment reserved the question whether the divorce should be granted on the ground that the applicant was solely to blame or whether both parties were to blame.

MRS P. v COMMISSION

case, her application must be considered as directed exclusively towards obtaining the monthly instalments of the survivor's pension which fell due after the date of the entry into force of the above-mentioned Regulation.

20 Consequently the Commission must be ordered to pay the applicant the monthly instalments of the survivor's pension which fell due after 4 May 1978 with interest thereon from the date of the commencement of the proceedings. The appropriate rate of interest is 8%.

Costs

21 Under Article 69 (2) of the Rules of Procedure the unsuccessful party must be ordered to pay the costs. Since the defendant has failed in its submissions it must be ordered to bear the costs with the exception of the costs entailed by the intervention. The intervener must be ordered to pay her own costs.

On those grounds,

4. Orders the intervener to bear her own costs.

Koopmans O'Keeffe Bosco

Delivered in. open court in Luxembourg on 5 February 1981.

A. Van Houtte T. Koopmans Registrar President of the First Chamber

OPINION OF MR ADVOCATE GENERAL WARNER DELIVERED O N 10 JULY 1980

My Lords, Articles 17 to 20 of Annex VIII provide for the payment of a survivor's pension to the widow of an official or former official. Article 26 provides that a The applicant in this case, Mrs P., is a widow's entitlement to a survivor's member of the Commission's staff (in pension shall cease on her remarriage, Grade C 4), but that is not the foun- subject, in certain circumstances, to her dation of her claim. The foundation of receiving then a small capital sum. her claim lies in the fact that her former Article 27 is in the following terms: husband, the late Mr Manfredo C , was also a Commission official (in Grade D 2). I call him "her former husband", but it is an issue in this case whether she is his widow or his divorced wife. "The divorced wife of an official shall be entitled on his death to a survivor's pension, as defined in this chapter, provided that the court which pro- Essentially the question that Your nounced the decree of divorce did not Lordships have to decide is whether she find that the divorced wife in question is, as a result of his death, entitled to a was solely to blame. This entitlement survivor's pension under Annex VIII to shall cease if she remarries before her the Staff Regulations. former husband dies. The provisions of