C-228/97

ORDER OF 8. 10. 1998 — CASE C-228/97 P

O R D E R O F T H E C O U R T (Fourth Chamber) 8 October 1998 *

In Case C-228/97 P,

Hedwig Kuchlenz-Winter, the ex-spouse of a former official of the European Par- liament, residing at Kehlen (Luxembourg), represented by Dieter Rogalla, Recht- sanwalt, Sprockhövel, with an address for service in Luxembourg at the Chambers of Decker, Braun & Wagner, 16 Avenue Marie-Thérèse,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (First Chamber) of 16 April 1997 in Case T-66/95 Kuchlenz-Winter v Commission [1997] ECR II-637, seeking to have that judgment set aside,

composed of: P. J. G. Kapteyn, President of the Chamber, H . Ragnemalm (Rap- porteur) and K. M. Ioannou, Judges,

Advocate General: P. Léger, Registrar: R. Grass,

after hearing the Opinion of the Advocate General,

makes the following

Order

1 By application lodged at the Court Registry on 20 June 1997, Mrs Kuchlenz- Winter brought an appeal under Article 49 of the EC Statute of the Court of Justice against the judgment of the Court of First Instance of 16 April 1997 in Case T-66/95 Kuchlenz-Winter v Commission [1997] E C R II-637 ('the judgment appealed against'), by which it dismissed her application for a declaration that the Commis- sion is in principle under a duty, on the one hand, to continue to guarantee the appellant cover under the Common Sickness Insurance Scheme of the institutions of the European Communities ('the Common Scheme') and, on the other hand, to use its right of initiative vis-à-vis the Council with a view to enabling persons in the appellant's position to qualify for cover under the Common Scheme and, in the alternative, for a statement drawing the German Government's attention to the gap in its national legislation on sickness insurance and calling upon it to take appro- priate measures to rectify that situation.

6 As a Luxembourg resident, Mrs Kuchlenz-Winter is also entitled to be affiliated to the Luxembourg statutory social security scheme (paragraph 5).

7 However, since she has not completed the requisite periods of insurance in Ger- many, she is not entitled to be affiliated to the German statutory social security scheme. Furthermore, she does not satisfy the requirements for voluntary affilia-

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tion to such a scheme and private sickness insurance schemes refuse to insure her because she is seriously ill (paragraph 5).

8 O n 7 February 1994, Mrs Kuchlenz-Winter submitted to the Parliament and the Commission requests that they take a decision which would enable her to retain her social security cover under the Common Scheme beyond the one-year period laid down in Article 72 of the Staff Regulations. After the request submitted to the Commission had been rejected, by implication, the appellant submitted a complaint against that decision on 26 July 1994 which the Commission rejected by letter of 11 January 1995 (paragraphs 6 to 8).

12 However, since the Community judicature is not entitled to issue directions to a Community institution, the Court of First Instance interpreted that head of claim as seeking annulment of the acts of the Commission rejecting the request made by the appellant to continue to be affiliated to the C o m m o n Scheme (paragraph 24).

1 3 In support of that head of claim, the appellant raised four pleas in law before the Court of First Instance: breach of the duty to have regard for her welfare; breach of the principle of free movement of persons; breach of the principle of equal treat- ment; and entitlement to a pension in her own right.

1 4 With regard to the first plea, the Court of First Instance pointed out that the duty to have regard for the welfare of the person concerned had to be performed within the framework established by the provisions in force and, in particular, it could not enable an applicant to obtain from the institutions a different result from that dic- tated by provisions whose sense is clear. In view of the clarity of Article 72(1 b) of the Staff Regulations, the Court of First Instance decided that the applicant could not have her cover under the Common Scheme maintained beyond the period pre- scribed by that provision on the basis of the duty to have regard for her welfare (paragraph 43). The first plea was therefore rejected.

15 In her second plea, Mrs Kuchlenz-Winter had claimed that her right to move freely in the Community was seriously restricted by the fact that, if she left Luxembourg, she would lose the only sickness cover available to her.

19 In that connection, the Court of First Instance pointed out that there was a breach of the principle of equal treatment where two classes of persons whose factual and legal situations were not essentially different were treated differently (paragraph 55). In the present case, it took the view that, since the relationship attaching officials to the institutions was not limited in time, the situation of officials was not the same as that of the persons to whom Regulation N o 2426/91 applied, whose term of office was limited in time (paragraphs 56 and 57). The Court therefore concluded that there was no breach of the principle of equal treatment.

20 In her fourth and final plea, Mrs Kuchlenz-Winter had maintained that her right under German divorce law to half of her ex-husband's retirement pension entitled her to a pension in her own right, so that the Commission was under an obligation to award her cover under the Common Scheme.

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21 The Court of First Instance held that the scope of the Common Scheme was a matter for the Community legislature and that a decision of a court of a Member State could not have the effect of conferring a status the conditions for the acquire- ment of which are laid down by Community measures (paragraph 64). Since Mrs Kuchlenz-Winter did not fulfil the conditions for the acquirement of a pen- sion laid down by the Staff Regulations (paragraphs 61 to 63), the last plea was rejected.

The appeal

25 Furthermore, under the first paragraph of Article 51 of the EC Statute of the Court of Justice, an appeal is to be limited to points of law and is to lie on the grounds of lack of competence of the Court of First Instance, a breach of procedure before it which adversely affects the interests of the appellant or the infringement of C o m - munity law by the Court of First Instance. Article 112(1)(c) of the Rules of P r o - cedure states that the appeal must contain the pleas in law and legal arguments relied on.

26 It follows from those two provisions that an appeal must indicate precisely the contested elements of the judgment and the legal arguments in support of the request to have it set aside.

27 It is settled case-law that that requirement is not satisfied by an appeal which con- fines itself to repeating or reproducing word for word the pleas in law and argu- ments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court; in reality, such an appeal amounts to no more than a request for reexamination of the application submitted to the Court of First Instance, a matter which falls outside the jurisdiction of the Court, by virtue of Article 49 of its Statute (order in Case C-26/94 P Mrs X v Commission [1994] ECR I-4379, paragraph 13).

28 As regards the first plea alleging breach of the duty to have regard for her welfare, the appellant submits that the Court of First Instance failed to comply with the obligation of the Community judicature to develop the law. However, she does not give any indication of the basis for that alleged obligation or a clear explanation of its content. O n the one hand, the appellant maintains that the obligation should have prompted the Court of First Instance to amend the Community legislation in force in order to enable her to benefit from the Common Scheme. O n the other hand, she states that that obligation requires the Community judicature to draw the attention of the Community institutions to gaps and weaknesses in Community legislation with a view to prompting them to amend it.

32 As regards the third plea, concerning breach of the principle of equal treatment, the appellant maintains that there is no fundamental difference between officials and the persons to w h o m Regulation N o 2426/91 applies, since the relationship attaching the latter class of person to the institutions may be terminated for a number of reasons and the same is true of officials.

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33 In that connection, it should be noted that the arguments put forward by the appel- lant do not call in question the finding of the Court of First Instance that the situ- ation of officials is not the same as that of the persons to whom Regulation N o 2426/91 applies, whose term of office is limited in time, and that there was therefore no infringement of the principle of equal treatment. It follows that that plea is manifestly unfounded.

34 Finally, in her fourth plea, to the effect that she is entitled in her own right to a pension, the appellant claims that the Court of First Instance wrongly based its finding on the decisions relating to her divorce, whereas the basis of the entitle- ment in question is the adjustment of pension rights prescribed by the Bürgerliches Gesetzbuch. Moreover, the appellant maintains that, by continuing to pay her part of her ex-husband's retirement pension, the Community has already recognised that entitlement.

35 In that regard, it should be noted that the question whether the adjustment of pen- sion rights arises from a decision of a national court, whether it arises from an agreement between the spouses or whether it stems directly from national legisla- tion is not decisive for the purpose of appraising this plea. That adjustment of pen- sion rights could not have the effect of conferring on the appellant a pension entitle- ment which is dependent on requirements laid down by the Staff Regulations. The fact that the pension is paid directly to the appellant by the institutions of the C o m - munity does not lead to a different conclusion. The fourth plea is therefore mani- festly unfounded.

T H E C O U R T (Fourth Chamber)

hereby:

1) Dismisses the appeal;

2) Orders the appellant to pay the cost of the appeal proceedings.

Luxembourg, 8 October 1998.

R. Grass P. J. G. Kapteyn