C-430/97

2. Those questions have arisen in proceed- ings before the national court between the 4. The marriage was dissolved on 28 April petitioner Mrs Johannes and the respon- 1986 under Belgian law, as the law of the dent Mr Johannes, her former husband last common place of residence, by a from whom she is divorced. Mrs Johannes judgment of the Tribunal de Première is claiming apportionment of the respon- Instance (Court of First Instance), Brussels. dent's pension rights on a pro rata basis in The decree became absolute on 28 October accordance with the duration of the mar- 1988 and was recognised by the Ministry of riage, pursuant to certain provisions of Justice of Land Nordrhein-Westfalen on 21 April 1995. Both during and after the divorce the parties' three children remained * Original language: Spanish. with the respondent and in his care. 1 — Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down the Staff Regulation of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to offi- cials of tne Commission (OJ, English Special Edition 1968 5. According to the details given by the (I), p. 30). national court in the order for reference, a 2 — Council Regulation (ECSC, EEC, Euratom) No 2799/85 of 27 September 1985 amending the Staff Regulations of claim by Mrs Johannes against her ex- Officials and the Conditions of Employment of Other Servants of the European Communities (OJ 1985 L 265, husband for maintenance has not yet been p. 1). legally determined.

9. In order to resolve the problems of Community law which have arisen in the case, the Amtsgericht Köln, Family Divi- sion, considered it necessary to stay the 7. The parties are agreed that the pension proceedings and refer the following two rights acquired by the respondent in Ger- questions for a preliminary ruling: many with the Bundesversicherungsanstalt für Angestellte (Federal Insurance Office for Salaried Employees) are subject to German law which provides for their apportionment in the event of divorce. The questions referred for a preliminary ruling do not relate to those rights, which he acquired as a consequence of the com- '1. Do the Staff Regulations of Officials of pulsory contributions he paid prior to his the European Communities, in parti- appointment as a Community official and cular Annex VIII thereto (Pension the voluntary contributions he made sub- scheme) and more especially Article 27 sequently. of that annex, constitute an exhaustive set of rules governing the pension entitlements of a divorced spouse of an official which excludes further claims under national law (in this case, apportionment of pension rights under the German law of obligations) ? 8. The petitioner also claims that the basis of the respondent's retirement pension from the European Communities should be apportioned. However, in a letter to Mr Johannes dated 18 May 1985, the Com- mission stated that, under the regulations as they stand, a divorced wife has no direct 2. Is it compatible with the Staff Regula- entitlement to the retirement pension tions of Officials of the European acquired by an official. Communities and Article 6 of the EC Treaty for the laws of a Member State (in this case Germany) regarding the 3 — Under Article 40 of Annex VIII to the Staff Regulations, the consequences of divorce to place a institution for which the official was working when he heavier burden on an official who is retired calculates the amount of retirement pension payable and gives an itemised breakdown to the official or his faced with a claim for pension appor- dependants and to the Commission, which is responsible for ensuring payment of pensions. Article 45 provides that the tionment under the law of obligations payments are to be made on behalf of the European solely because he is a German Communities by the institution designated by the budgetary authorities. national?'

...' 13. The respondent in the main proceed­ ings maintains that the pension scheme established by the Staff Regulations consti­ tutes a comprehensive and closed system leaving no room for divergent regulations under national law and that, should 11. Chapter 3 of Title V of the Staff national law nevertheless lay down diver­ Regulations provides for the pension rights gent regulations, the latter must give way to of officials and, in specific cases, of the the precedence of Community law. In his members of their families. Annex VIII to opinion, Community law does not tolerate the Staff Regulations (hereinafter 'Annex - its effects being indirectly circumvented. If VIII') gives effect to the provisions relating Article 27 of Annex VIII does not provide to the pension scheme; Chapter 4 of for any apportionment of pension rights Annex VIII regulates the survivor's pen­ but only makes provision for a survivor's sion. So far as is relevant to this case, pension for the divorced spouse, it is not for Article 27 thereof states: national law to seek to achieve the same result by making an official's pension subject to apportionment. Furthermore, to apply the German provisions would con­ stitute discrimination on grounds of nation­ 'The divorced wife of an official or a ality. former official shall be entitled to a survi­ vor's pension, as defined in this chapter, provided that, on the death of her former husband, she can justify entitlement on her own account to receive maintenance from him by virtue of a court order or as a result 14. Neither the German Government nor of a settlement between herself and her the Commission agrees with this point of former husband.' view.

It takes the view that Article 6 of the Treaty is not applicable to a situation like the one which has given rise to the main proceed- ings, because there is nothing on which to It adds that, even if the international or base any cross-border connection. supranational social security scheme makes provision for a specific benefit for a divorced spouse, such as a survivor's pen- sion, there is nothing to prevent the pension rights acquired under that scheme being included in the calculation when the appor- tionment is made. The nature of apportion- V — The first question referred for a ment prevents the divorced spouse from preliminary ruling accumulating the rights arising from appor- tionment and the right to a survivor's pension: while the official is still alive the event giving rise to payment of the survi- 17. By this question the national court vor's pension has not taken place, and the seeks essentially to ascertain whether Arti- claim created by the apportionment of cle 27 of Annex VIII to the Staff Regula- pension rights is, as a rule, extinguished tions precludes a claim brought before the by the death of the official. courts of a Member State by the former

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19. I agree with the German Government 20. The Staff Regulations were adopted as that the objective of the survivor's pension a regulation. Therefore, under the provi- granted under Article 27 of Annex VIII is sions of the second paragraph of Arti- different from that of apportionment. In cle 189 of the Treaty, they are of general fact, payment of the pension begins only application, binding in their entirety and after the death of the official and provided directly applicable in all Member States. that the surviving spouse was previously From this the Court of Justice has inferred entitled to receive maintenance. The that the Regulations, as well as having an amount of the pension may not exceed effect within the Community administra- the amount already received as mainte- tion, are also binding on the Member States nance. The right to a survivor's pension to the extent to which their involvement is ceases if the survivor remarries and, if there necessary in order to ensure their applica- is more than one divorced spouse entitled tion. 4 to a survivor's pension on the death of a Community official, the pension is shared between them in proportion to the length 4 — Case 137/80 Commission v Belgium [1981] ECR 2393, paragraph 8, and Case 186/85 Commission v Belgium of the marriages. [1987] ECR 2029, paragraph 21.

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25. The Court of First Instance has recently given judgment in a case 6 which may serve to illustrate the working of the apportion­ ment of pension rights in the event of divorce under German civil law, when one 22. On the other hand, the Staff Regula­ of the pensions is payable by the European tions do not govern the rights and obliga­ Communities. The divorced wife of a tions which an official may have, under retired official of the European Parliament family law or private law, in relation to a applied to remain affiliated to the officials' member of his family or a third party. health insurance scheme, in spite of the fact

5 — Case 24/71 Meonhardt ν Commission [1972] ECR 269, 6 — Case T-66/95 Kuch lenz-Winter ν Commission [1997] ECR paragraphs 2 and 3. II-637.

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27. In paragraph 65 of that judgment the Court of First Instance states that the German rule providing for the apportion- ment, in the event of divorce, of the pension 29. I must conclude, therefore, that neither rights acquired by a married couple is Article 27 of Annex VIII to the Staff Reg- intended only to give the spouse who has ulations, which the national court has not paid contributions to a pension scheme asked this Court to interpret, nor any other the right to share the rights acquired by the provision of the Staff Regulations, pre- other spouse. It adds that this aim is cludes a claim by the ex-wife of a retired satisfied by the Community institutions in official of the European Communities so far as the Parliament pays part of the before the courts of a Member State for retired official's pension directly to his ex- apportionment, under the family law of wife pursuant to the divorce decree. that State, of the pension rights acquired during the marriage. 7 — Article 72(1 )b of the Staff Regulations provides that if the divorced spouse of an official can prove that she cannot obtain reimbursement under any other health insurance 8 — Order of the Court of Justice of 8 October 1998 in Case scheme, she may continue, for a year at most, to benefit C-228/97 P Kuchlenz-Winter v Commission [1998] ECR from cover against health risks. That period runs from the I-6047 which stated that the appeal was, in part, manifestly date on which the divorce decree is made absolute. inadmissible and, in part, manifestly unfounded.

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Furthermore, as the situation lies outside the scope of Community law, the court 32. The Court has consistently held that hearing the case is not required, under Article 6 of the Treaty refers only to Community law, either to interpret its situations governed by Community law legislation in a way conforming with Com- and may not be applied to activities which munity law or to disapply that legisla- are wholly unrelated to Community law tion. 11

(1) Neither Article 27 of Annex VIII to the Staff Regulations of Officials of the European Communities, in the version contained in Council Regulation (ECSC, EEC, Euratom) N o 2799/85 of 27 September 1985 amending the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities, nor any other provision of the Staff Regulations precludes a claim brought before the courts of a Member State by the former wife of a retired official of the European Communities for apportionment of pension rights under the family law of that State.

(2) Article 6 of the EC Treaty does not preclude the conflict rules of a Member State from taking the nationality of the spouses as a criterion for determining the law applicable to the consequences of divorce.

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