T-65/92

JUDGMENT OF 17. 6. 1993 — CASE T-65/92

Court to widen the judicial interpretation only be made by the Community legisla­ of the specific terms used in the provi­ ture if it considers such a change to be sions in question in order to bring cohab­ necessary. itation within the definition of marriage. Any extension of that concept would alter 2. The duty to have regard to the interests of the legal basis of the provisions in ques­ officials cannot lead the administration to tion, with serious legal and financial con­ interpret a Community provision in a sequences for the Communities and for manner contrary to the specific wording third parties. A change on that scale can of that provision.

J U D G M E N T O F T H E C O U R T O F FIRST I N S T A N C E (Fourth Chamber) 17 J u n e 1 9 9 3 "

In Case T-65/92,

M o n i q u e A r a u x o - D u m a y , w i d o w of Louis D u m a y , a former official of the C o m ­ mission of t h e E u r o p e a n C o m m u n i t i e s , residing at Saint-Flovier (France), repre­ sented b y Georges Vandersanden, of t h e Brussels Bar,

applicant,

ARAUXO-DUMAY ν COMMISSION

further entailing withdrawal of her cover under the Joint Sickness Insurance Scheme as from 1 April 1992,

THE C O U R T O F FIRST INSTANCE O F T H E EUROPEAN COMMUNITIES (Fourth Chamber),

composed of: C. W. Bellamy, President, H. Kirschner and A. Saggio, Judges,

Registrar: J. Palacio González,

having regard to the written procedure and further to the hearing on 23 March 1993,

JUDGMENT OF 17. 6. 1993 — CASE T-65/92

salary before deduction, pursuant to Article 4(7) of Regulation N o 3518/85 in con- junction with Article 83(2) of the Staff Regulations, of a contribution to the fund- ing of the pension scheme under the Staff Regulations, calculated by reference to the salary for his grade and step.

3 Mr Dumay was married for the first time in 1952, but cohabited with the applicant from the early 1980s. He lodged a petition for separation from his first wife in 1981, but his divorce decree of 3 April 1989 was entered in the registers of births, deaths and marriages only on 10 July 1989.

4 On 27 July 1989 he married the applicant with whom he had continued to live in the meantime. Consequently the marriage had only lasted a little more than two years and four months when Mr Dumay died.

5 Following Mr Dumay's death, the applicant was informed of the consequences thereof in relation to her rights by a letter of 16 December 1991 from the Head of the 'Pensions and Relations with Former Officials' Unit at the Commission's Directorate General for Personnel and Administration. In particular, the letter stated:

'I regret to inform you that as you were married was for less than five years, you do not qualify for a widow's pension. This also means that you will no longer be covered by the Community Sickness Fund as from 1 April 1992.'

9 The written procedure followed the normal course. Upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure without any pre­ paratory inquiry, but requested the parties to explain at the hearing their position regarding the relevant provisions of the Staff Regulations.

10 The oral procedure took place on 23 March 1993. The parties' representatives pre­ sented oral argument and replied to the questions put to them by the Court.

Forms of order sought by the parties

11 The applicant claims that the Court should:

— declare the application admissible and well founded;

— accordingly, annul the Commission's decision, notified to the applicant by let­ ter of 16 December 1991, refusing her a widow's pension and further entailing withdrawal of her cover under the Joint Sickness Insurance Scheme as from 1 April 1992;

Substance

12 In support of her claims, the applicant relies on two pleas in law, based respectively on infringement of the Staff Regulations and breach of the duty to have regard to the interests of officials.

First plea: infringement of the Staff Regulations

Arguments of the parties

1 3 The applicant states first of all that her husband had to pay contributions to the pension scheme and that Article 4(7) of Regulation N o 3518/85 allows the acqui­ sition of further pension rights, thereby encouraging officials to request the appli­ cation of measures concerning termination of their service (see the judgments in Case T-4/90 Lestelle ν Commission [1990] ECR ΙΙ-689, paragraphs 38 to 40 and 43, and in Case T-21/90 Generlich ν Commission [1991] ECR ΙΙ-1323, paragraphs 37 and 40). The Community legislature was therefore concerned not to deny the advantages linked to the pension scheme to officials benefiting from measures to terminate their service.

1 4 As for the provisions applicable, the applicant claims in her application that Arti­ cles 17a and 20 of Annex VIII to the Staff Regulations apply to her case. Article 17a provides as follows:

15 The applicant accepts that neither the condition as to the duration of the marriage for a minimum of one year prior to the date of termination of service, provided for by Article 17a of Annex VIII to the Staff Regulations, nor the condition as to a marriage of at least five years' duration on the date of death provided for by Arti­ cle 20 of Annex VIII is fulfilled if the word 'married' is given its legal meaning, but contends that her long-standing cohabitation with Mr Dumay since at least 1982 reflects the existence of a factual situation meeting either of those conditions. She claims that she would have married Mr Dumay much earlier had it not been for his first wife's vigorous opposition to the divorce.

16 In support of her argument for taking the factual circumstances into account, the applicant cites various provisions of Belgian law which are said to recognize cohab­ itation as having certain legal effects. These provisions relate, in particular, to pater­ nity, social security, the definition of 'head of the household', entitlement to pen­ sion arrears not paid to a deceased recipient, calculation of a child maintenance allowance and the existence of a natural obligation of maintenance as between cohabitees.

17 Moreover, the rule in Belgian law is said to be that, in order for the surviving spouse of an employed person to be able to claim a survivor's pension, the mar­ riage must have lasted for at least one year prior to death. The requirement of a prior duration of five years is therefore discriminatory to the extent that it denies the applicant the right to a pension to which she would have been entitled under the Belgian system.

20 The defendant notes that the applicant does not deny that she fails to satisfy the conditions laid down in that provision or in Articles 17a and 20 of Annex VIII to the Staff Regulations, even if those provisions are considered, by means of a wide interpretation, to be applicable in the present case, although they do not refer to Regulation N o 3518/85.

21 Furthermore, the defendant denies the relevance of the applicant's arguments con­ cerning her factual situation. The relevant provisions refer quite clearly to the con­ cept of 'spouse', and cohabitation cannot, by way of interpretation, be treated as marriage. The defendant refers in particular to the judgment in Case 59/85 Reed [1986] ECR 1283, paragraph 15, and the judgment in Case T-43/90 Diaz Garcia ν Parliament [1992] ECR 11-2619, paragraph 43.

II - 604

ARAUXO-υυ.ΜΑΥ ν COMMISSION'

22 As for the applicant's references to the recognition by Belgian law of t h e legal effects of cohabitation, the defendant also denies that this is relevant, particularly because the Staff Regulations must in its view be applied uniformly to all persons w h o rely u p o n them, regardless of their nationality or their ties with a national pension scheme. T h e defendant also denies the relevance of particular examples taken by the applicant from Belgian law and notes that she has not cited any case- law to s u p p o r t the interpretation which she wishes to be applied in the present case.

23 T h e defendant concludes by pointing out that the Lestelle and Generlich judg­ ments, cited above, deal with completely different problems. T h e fact that the C o m m u n i t y legislature did not intend to deprive former officials whose service was terminated of their benefits u n d e r the Staff Regulations does not mean that the sur­ viving spouse of such an official can receive a pension on preferential conditions, that is to say, as if the deceased had remained in his post until his death, which would allow his w i d o w to receive a w i d o w ' s pension pursuant to Article 17 of Annex VIII to the Staff Regulations which requires a marriage of at least of one year's duration as a precondition.

27 Under Article 4(8) of Regulation N o 3518/85, the 'surviving spouse' of a deceased official is entitled to a survivor's pension provided that he or she had been the 'spouse' of the deceased official for at least one year when the former official left the service of an institution. The same condition is laid down, using the terms 'wid- ow' and 'married', in Article 17a of Annex VIII of the Staff Regulations, subject to the exception provided for in Article 20 of that annex, under which the condition as to prior duration does not apply where the 'marriage', even if contracted after termination of the official's service, lasted at least five years.

28 T h e legal definition, as m u c h as the ordinary meaning of the w o r d s 'spouse', 'wid- o w ' and 'married', refers t o persons w h o have formally contracted a civil marriage recognized b y law, w i t h all the rights and obligations which that entails. However, it is c o m m o n g r o u n d that such a civil marriage was not contracted b y the applicant and M r D u m a y until 27 July 1989, that is to say after M r D u m a y ' s service was ter- minated o n 1 O c t o b e r 1986 and less than five years before his death o n 1 D e c e m -

II - 606

ARAĽXO-DĽMAY i COMMISSION

ber 1991. F u r t h e r m o r e , at tlie relevant date for determining the rights to a survi­ vor's pension u n d e r Article 17 of Annex VIII t o the Staff Regulations and u n d e r Article 4(8) of Regulation N o 3518/85, that is to say on the date when he left the service of an institution and for part of the five-year period referred to in the con­ text of the exception u n d e r Article 20 of Annex VIII t o the Staff Regulations, M r D u m a y had a spouse within the meaning of the abovementioned definition and that spouse was not the applicant.

II - 607

JUDGMENT OF 17. 6. 1993 — CASE T-65/92

32 With regard to the applicant's argument based on the fact that Mr Dumay had to continue paying contributions to the pension scheme after the termination of his service, the Court observes that this is an obligation laid down by Article 4(7) of Regulation N o 3518/85, which aims to allow those concerned to acquire further rights to a retirement pension. Although the payment of such contributions affects the amount of the survivor's pension, it is irrelevant to the question whether or not such a pension is payable under the Staff Regulations.

33 Finally, regarding the applicant's reliance on the principle of equal treatment, it must be borne in mind that in the present case it is necessary to determine whether the right to a survivor's pension can be claimed by the surviving spouse of a former official who died after his service was terminated and after he had received the ben- efits and advantages provided for by a regulation governing that situation, charac- terized by the fact that there was no obligation to carry on working. This situation differs fundamentally from that of the surviving spouse of an official who contin- ued to perform his duties until his death.

34 It follows that the first plea in law is unfounded and must therefore be rejected.

Second plea in law: breach of the duty to have regard to the interests of officials

3 7 As stated above (paragraphs 28 and 30), the meaning of the relevant provisions in this case is clear and the applicant cannot, by invoking the d u t y of an institution to have regard to the interests of officials, seek to obtain a different result from that which must follow from applying those provisions, since they circumscribe the powers of that institution.

38 However, the C o u r t observes that at the hearing the defendant drew attention to the provisions of Article 76 of the Staff Regulations, which are quite distinct, whereby gifts, loans or advances may be made, where an official has died, to those entitled under him w h o are in a difficult position by reason of family circumstances.

39 It follows from all the foregoing considerations that the application must be dis- missed in its entirety.

Costs

40 In accordance with Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been applied for in the successful party's pleadings. However, under Article 88 of those Rules, in proceedings between the C o m m u n i t i e s and their servants the institutions are to bear their o w n costs.

II - 609

Bellamy Kirschner Saggio

Delivered in open court in Luxembourg on 17 June 1993.

H. Jung C. W. Bellamy

Registrar President

II-610