22 December 2022 (*1)

(Appeal – Article 182 of the Rules of Procedure of the Court of Justice – Civil service – Pension – Staff Regulations of Officials of the European Union – Article 20 of Annex VIII – Grant of a survivor’s pension – Surviving spouse of a former official who had been in receipt of invalidity allowance – Marriage entered into after that official had become eligible for invalidity allowance – Condition that the marriage must have lasted for at least five years at the date of the official’s death – Article 19 of Annex VIII – Marriage entered into before the official became eligible for invalidity allowance – No condition as to the minimum duration of the marriage – Plea of illegality in respect of Article 20 of Annex VIII – Charter of Fundamental Rights of the European Union – Article 20 – Principle of equal treatment – Article 21(1) – Principle of non-discrimination – Article 52(1) – No arbitrary or manifestly inappropriate differentiation in the light of the objective pursued by the EU legislature)

In Joined Cases C‑313/21 P and C‑314/21 P,

TWO APPEALS under Article 56 of the Statute of the Court of Justice of the European Union, brought on 19 May 2021,

Council of the European Union, represented by M. Alver and M. Bauer, acting as Agents,

appellant in Case C‑313/21 P,

the other parties to the proceedings being:

FI,

applicant at first instance,

European Commission, represented by T.S. Bohr and B. Mongin, acting as Agents,

defendant at first instance,

European Parliament,

intervener at first instance,

European Commission, represented by T.S. Bohr and B. Mongin, acting as Agents,

appellant in Case C‑314/21 P,

the other parties to the proceedings being:

FI,

applicant at first instance,

European Parliament,

Council of the European Union, represented by M. Alver and M. Bauer, acting as Agents,

interveners at first instance,

THE COURT (Eighth Chamber),

composed of M. Safjan (Rapporteur), President of the Chamber, N. Piçarra and N. Jääskinen, Judges,

Advocate General: A. Rantos,

Registrar: A. Calot Escobar,

having decided, after hearing the parties and the Advocate General, to give a decision by reasoned order, pursuant to Article 182 of the Rules of Procedure of the Court of Justice,

makes the following

1By their appeals, the Council of the European Union (C‑313/21 P) and the European Commission (C‑314/21 P) seek to have set aside the judgment of the General Court of the European Union of 10 March 2021, FI v Commission (T‑694/19, not published, EU:T:2021:122; ‘the judgment under appeal’), by which the General Court annulled the Commission’s decisions of 8 March 2019 and 1 April 2019 rejecting the application for the grant of a survivor’s pension to FI (‘the decisions in question’).

Legal context

2Article 1d of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) is worded as follows:

‘1. In the application of these Staff Regulations, any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, or sexual orientation shall be prohibited.

For the purposes of these Staff Regulations, non-marital partnerships shall be treated as marriage provided that all the conditions listed in Article 1(2)(c) of Annex VII are fulfilled.

…

6. While respecting the principle of non-discrimination and the principle of proportionality, any limitation of their application must be justified on objective and reasonable grounds and must be aimed at legitimate objectives in the general interest in the framework of staff policy. Such objectives may in particular justify stipulating a mandatory retirement age and a minimum age for drawing a retirement pension.’

3Article 35 of the Staff Regulations provides:

‘Officials shall be assigned one of the following administrative statuses:

Active employment;

Secondment;

Leave on personal grounds;

Non-active status;

Leave for military service;

Parental leave or family leave;

Leave in the interests of the service.’

4Article 47 of the Staff Regulations provides:

‘Services shall be terminated by:

resignation;

compulsory resignation;

retirement in the interests of the service;

dismissal for incompetence;

removal from post;

retirement; or

5The first and second paragraphs of Article 52 of the Staff Regulations state:

‘Without prejudice to the provisions of Article 50, an official shall be retired:

(a)either automatically on the last day of the month in which he reaches the age of 66, or

(b)at his own request on the last day of the month in respect of which the request was submitted where he has reached pensionable age or where he is between 58 and pensionable age and satisfies the requirements for immediate payment of a pension in accordance with Article 9 of Annex VIII. The second sentence of the second paragraph of Article 48 shall apply by analogy.

However, an official may at his own request, and where the appointing authority considers it justified in the interests of the service, carry on working until the age of 67, or exceptionally, until the age of 70, in which case he shall be retired automatically on the last day of the month in which he reaches that age.’

Article 53 of the Staff Regulations is worded as follows:

‘An official to whom the Invalidity Committee finds that the provisions of Article 78 apply shall automatically be retired on the last day of the month in which the appointing authority recognises his permanent incapacity to perform his duties.’

Under the first paragraph of Article 78 of the Staff Regulations:

‘An official shall be entitled, in the manner provided for in Articles 13 to 16 of Annex VIII, to an invalidity allowance in the case of total permanent invalidity preventing him from performing the duties corresponding to a post in his function group.’

Article 1(2)(c) of Annex VII to the Staff Regulations provides:

‘The household allowance shall be granted to:

(c)an official who is registered as a stable non-marital partner, provided that:

(i)the couple produces a legal document recognised as such by a Member State, or any competent authority of a Member State, acknowledging their status as non-marital partners,

(ii)neither partner is in a marital relationship or in another non-marital partnership,

(iii)the partners are not related in any of the following ways: parent, child, grandparent, grandchild, brother, sister, aunt, uncle, nephew, niece, son-in-law, daughter-in-law,

(iv)the couple has no access to legal marriage in a Member State; a couple shall be considered to have access to legal marriage for the purposes of this point only where the members of the couple meet all the conditions laid down by the legislation of a Member State permitting marriage of such a couple;

…’

Annex VIII to the Staff Regulations, which concerns the ‘pension scheme’, includes a Chapter 4, entitled ‘Survivor’s pension’, which contains Articles 17 to 29 of that annex. Article 17 is worded as follows:

‘Where an official dies having one of the administrative statuses set out in Article 35 of the Staff Regulations, the surviving spouse shall be entitled, provided that the couple were married for at least one year at the time of his death and subject to the provisions of Article 1(1) and Article 22, to a survivor’s pension equal to 60% of the retirement pension which the official would have been paid if he had qualified, irrespective of length of service or of age, for such pension at the time of death.

The duration of the marriage shall not be taken into account if there are one or more children of the marriage or of a previous marriage of the official provided that the surviving spouse maintains or has maintained those children, or if the official’s death resulted either from physical disability or sickness contracted in the performance of his duties or from accident.’

Article 18 of Annex VIII to the Staff Regulations provides:

‘Where a former official was in receipt of a retirement pension the surviving spouse shall be entitled, provided that the couple were already married before the official left the service of an institution and that the marriage had lasted at least one year, and subject to the provisions of Article 22, to a survivor’s pension equal to 60% of the retirement pension which he was receiving at the time of his death. The minimum survivor’s pension shall be 35% of the last basic salary; the amount of the survivor’s pension shall in no case, however, exceed the amount of the retirement pension which the spouse was receiving at the time of death.

The duration of the marriage shall not be taken into account if there are one or more children of a marriage contracted by the official before he left the service, provided that the surviving spouse maintains or has maintained those children.’

Article 19 of Annex VIII to the Staff Regulations provides:

‘Where a former official was in receipt of invalidity allowance the surviving spouse shall be entitled, subject to the provisions of Article 22 of this Annex, provided that the couple were married when the official became eligible for the allowance, to a survivor’s pension equal to 60% of the invalidity allowance which the spouse was receiving at the time of death.

The minimum survivor’s pension shall be 35% of the final basic salary; the amount of the survivor’s pension shall in no case, however, exceed the amount of the invalidity allowance which the spouse was receiving at the time of death.’

Article 20 of Annex VIII to the Staff Regulations states:

‘For the purpose of Articles 17a, 18, 18a, and 19 the duration of the marriage shall not be taken into account where the marriage, though contracted after termination of the official’s service, has lasted at least five years.’

Under Article 27 of Annex VIII to the Staff Regulations:

‘The divorced spouse of an official or a former official shall be entitled to a survivor’s pension, as defined in this Chapter, provided that, on the death of the former spouse, he/she can justify entitlement on his/her own account to receive maintenance from him by virtue of a court order or as a result of an officially registered settlement in force between himself/herself and his/her former spouse.

The survivor’s pension may not, however, exceed the amount of maintenance paid at the time of death of the former spouse, the amount having been updated in accordance with the procedure laid down in Article 82 of the Staff Regulations.

The divorced spouse’s entitlement shall cease if he or she remarries before the former spouse dies. Article 26 shall apply in the event of remarriage after the death of the former spouse.’

Background to the disputes and the decisions in question

14From 2001 FI cohabited with an official of an EU institution, who was retired automatically on grounds of invalidity in 2005 and became eligible for invalidity allowance.

15On 12 May 2014, FI and that official married. The official died on 25 January 2019, less than five years after the date on which the marriage had been concluded.

16FI, as the surviving spouse of a former official of the European Union, applied for a survivor’s pension under Chapter 4 of Annex VIII to the Staff Regulations.

17By the decisions in question, the Commission’s Office for the Administration and Payment of Individual Entitlements (PMO) rejected the application made by FI on the ground that he did not satisfy the conditions laid down in Article 20 of Annex VIII to the Staff Regulations for entitlement to a survivor’s pension, since his marriage to the deceased official, entered into after termination of that official’s service, had lasted less than five years.

18The objection lodged by FI against those decisions was rejected.

The action at first instance and the judgment under appeal

The divorced spouse of an official or a former official shall be entitled to a survivor’s pension, as defined in this Chapter, provided that, on the death of the former spouse, he/she can justify entitlement on his/her own account to receive maintenance from him by virtue of a court order or as a result of an officially registered settlement in force between himself/herself and his/her former spouse.

By application lodged at the Registry of the General Court on 9 October 2019, FI brought an action for annulment of the decisions in question.

20The European Parliament and the Council were granted leave to intervene in support of the form of order sought by the Commission.

21In support of his action, FI raised three pleas in law, the first alleging, in essence, that Article 20 of Annex VIII to the Staff Regulations was unlawful in the light of the principle of equal treatment.

22Ruling on that first plea, the General Court held that, for the purposes of granting a survivor’s pension, the situation covered by Article 19 of Annex VIII to the Staff Regulations, namely that of the surviving spouse of a former official of the European Union in receipt of invalidity allowance who married before the latter’s invalidity, was comparable to the situation covered by Article 20 of that annex, namely that of the surviving spouse of a former official in receipt of invalidity allowance who entered into marriage after invalidity. The General Court then held that there was a difference in the treatment of comparable situations depending on the date on which the marriage was entered into, in that the survivor’s pension is granted to the surviving spouse without a condition as to the minimum duration of the marriage under Article 19 of Annex VIII to the Staff Regulations whereas under Article 20 of that annex it is granted to him or her only on condition that the marriage had lasted at least five years. The General Court added that such a difference in treatment gave rise to a disadvantage for the surviving spouse of a former official who married after the latter’s invalidity as compared with the surviving spouse of a former official who entered into marriage prior to such invalidity.

23After stating that the difference in treatment introduced in Article 20 of Annex VIII to the Staff Regulations was provided for by law, within the meaning of Article 52(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’), the General Court examined whether the difference in treatment found to exist could be justified by a general-interest objective and whether it was proportionate in the light of the objective pursued, in particular in the light of the case-law referred to in paragraph 48 of the judgment under appeal.

24In that connection, as regards the general-interest objective of preventing fraud, the General Court – while acknowledging that the condition that the marriage must have lasted for a minimum period of time before it gives rise to an entitlement to a survivor’s pension makes it possible to ensure that that marriage is not based exclusively on considerations unrelated to a common project of life, such as purely financial considerations or considerations connected with obtaining a right of residence – held that it is unreasonable to take the view that the condition, provided for under Article 20 of Annex VIII to the Staff Regulations, that the marriage must have lasted for a minimum of five years, which is absent from Article 19 of Annex VIII to the Staff Regulations and is not subject to any exception enabling the absence of fraud to be established, irrespective of the objective evidence adduced, may be necessary in order to achieve the objective of combating fraud.

25The General Court concluded that Article 20 of Annex VIII to the Staff Regulations infringed the principle of equal treatment. In those circumstances, it upheld the plea of illegality raised by FI and annulled the decisions in question.

Forms of order sought in the appeals and procedure before the Court of Justice

26By its appeal in Case C‑313/21 P, the Council claims that the Court should:

–uphold the appeal and set aside the judgment under appeal;

–give final judgment in the dispute and dismiss the action at first instance as unfounded; and

–order FI to pay the costs incurred at first instance and on appeal.

27By its appeal in C‑314/21 P, the Commission claims that the Court should:

–set aside the judgment under appeal;

–dismiss the action at first instance; and

–order FI to pay the costs incurred at first instance and on appeal.

28By decision of the President of the Court of Justice of 30 June 2021, the proceedings in the present cases were stayed pending delivery of the judgment in Joined Cases C‑116/21 P to C‑118/21 P, C‑138/21 P and C‑139/21 P. Following delivery of the judgment of 14 July 2022, Commission v VW and Others (C‑116/21 P to C‑118/21 P, C‑138/21 P and C‑139/21 P), the proceedings were resumed by decision of the President of the Court of 19 July 2022.

29Pursuant to Article 54(2) of the Rules of Procedure of the Court of Justice, the President of the Court decided, on 30 June 2021, to join Cases C‑313/21 P and C‑314/21 P for the purposes of the written and oral parts of the procedure and the judgment.

The appeals

Application of Article 182 of the Rules of Procedure

30Under Article 182 of the Rules of Procedure, where the Court has already ruled on one or more questions of law identical to those raised by the pleas in law of the appeal or cross-appeal and considers the appeal or cross-appeal to be manifestly well founded, it may, acting on a proposal from the Judge-Rapporteur and after hearing the parties and the Advocate General, decide by reasoned order in which reference is made to the relevant case-law to declare the appeal or cross-appeal manifestly well founded.

31The Commission states that it has no objection to that article being applied.

32The Council and FI did not respond to the request made by the Court to take a view on this matter.

33The pleas in law of the appeal relied on in the present cases raise questions of law identical to those on which the Court ruled in the judgment of 14 July 2022, Commission v VW and Others (C‑116/21 P to C‑118/21 P, C‑138/21 P and C‑139/21 P). Consequently, Article 182 of the Rules of Procedure should be applied in the present cases.

Substance

34Under Article 182 of the Rules of Procedure, where the Court has already ruled on one or more questions of law identical to those raised by the pleas in law of the appeal or cross-appeal and considers the appeal or cross-appeal to be manifestly well founded, it may, acting on a proposal from the Judge-Rapporteur and after hearing the parties and the Advocate General, decide by reasoned order in which reference is made to the relevant case-law to declare the appeal or cross-appeal manifestly well founded.

In support of its appeal in Case C‑313/21 P, the Council raises three grounds of appeal, alleging, first, errors of law as regards the existence of a difference in treatment, second, errors of law concerning the extent of the General Court’s review of the choices made by the EU legislature and, third, errors of law as regards the justification for the difference in treatment.

For its part, in support of its appeal in Case C‑314/21 P, the Commission puts forward three grounds of appeal, alleging, first, an error of law regarding the criteria for assessing the lawfulness of the choices made by the EU legislature and an infringement of the obligation to state reasons, second, an error of law in the interpretation of the principle of non-discrimination and, third, an error of law in the interpretation of Article 52(1) of the Charter and several infringements of the obligation to state reasons.

The first ground of appeal in Case C‑313/21 P and the third part of the first ground of appeal and the second ground of appeal in Case C‑314/21 P

– Arguments of the parties

36By these grounds of appeal and parts thereof, the Council and the Commission submit that, by the judgment under appeal, the General Court erred in law in its interpretation of the principle of equal treatment and of the principle of non-discrimination in that it wrongly concluded that the situations covered by the provisions of Articles 19 and 20 of Annex VIII to the Staff Regulations were comparable and, therefore, that there was a difference in treatment arising from the application of different schemes to those comparable situations.

37Those institutions take the view that the General Court, in paragraphs 57 and 58 of the judgment under appeal, erred in law in finding that the date on which the marriage was entered into was the only factor determining the application of Article 19 or Article 20 of Annex VIII to the Staff Regulations and that, therefore, the situations covered by those provisions were comparable. If the General Court had taken into account all the factors characterising those situations, it would have had to find that there is an essential and objective difference between officials in service and those who are in receipt of invalidity allowance and have ceased to be in the service of an EU institution. That difference relates to the respective legal situations of those officials, in particular having regard to the professional rights and obligations to which the former, unlike the latter, are bound under the provisions of the Staff Regulations throughout the duration of their service.

38In particular, both the Council and the Commission stress the fact that officials in service, unlike former officials who are no longer obliged to work, must contribute to the pension scheme, receive a basic salary that is higher than the retirement pension which will be granted to them during their retirement, are obliged to reside in their place of employment and are entitled to expatriation, foreign residence and travel allowances. Those considerations show that the situation of a former official who marries after his or her invalidity and the termination of his or her service does not require, as evidently as in the case of an official who marries while still working, a replacement income to be offered to the surviving spouse by the grant of the survivor’s pension.

39The Commission also considers that the situation of officials covered by Article 19 and the situation of officials covered by Article 20 of Annex VIII to the Staff Regulations can be distinguished from each other on an individual level. First, former officials who are in receipt of invalidity allowance have a generally shorter life expectancy than officials who are not in receipt of that allowance, which inevitably contributes to increasing the risk of fraud and thus helps to explain the difference in treatment at issue. Second, the Commission asserts that the risk of abuse or fraud is lower where the surviving spouse married before the invalidity of his or her spouse and subsequently assisted the spouse for the entire duration of the marriage until the spouse’s death, whereas in the case of a union entered into after the spouse’s invalidity and the termination of his or her service, it is not manifestly inappropriate to require that the marriage lasts five years so as to wait for solidarity and mutual support between the spouses to be objectively established.

40The Commission and the Council add that the General Court was wrong to refuse, in paragraph 55 of the judgment under appeal, to draw the appropriate conclusions from paragraph 33 of its judgment of 17 June 1993, Arauxo-Dumay v Commission, in which it had highlighted the existence of a difference between the situations governed, respectively, by Article 19 and Article 20 of Annex VIII to the Staff Regulations. The logic underlying that judgment is, they argue, transposable to the present cases despite the difference in the facts at issue.

41The Commission further submits that, in paragraph 56 of the judgment under appeal, the General Court wrongly disregarded, in its analysis, the purpose of the minimum duration of marriage laid down in Article 20 of Annex VIII to the Staff Regulations, namely, as is apparent from paragraphs 87 and 88 of the judgment of 19 December 2019, HK v Commission, that of preventing agreements as to succession and, therefore, entering into marriage with the sole aim of being able to receive a survivor’s pension without that marriage corresponding to any reality or stability in the relationship between the persons concerned. Thus, it is submitted, the General Court failed to comply with the criterion that, in the assessment of the comparability of situations, all the elements which characterise them and all the rules of law governing the positions of each of the situations to be compared must be taken into consideration. In particular, by holding, in the same paragraph of the judgment under appeal, that a marriage entered into after eligibility for invalidity allowance has arisen does not fundamentally alter the situation of a surviving spouse as regards his or her property rights in comparison with the situation covered by Article 19 of Annex VIII to the Staff Regulations, the General Court, in addition to failing entirely to give reasons for that consideration, disregarded the risk that such a marriage might be the pretext for the conclusion of agreements as to succession. It cannot be denied that, in the light of the situation of an official who marries after such eligibility has arisen, the risk of fraud and abuse is greater than in the case of an official who married prior to such eligibility.

– Findings of the Court

42As a preliminary point, it is necessary to recall the settled case-law of the Court according to which equality before the law, set out in Article 20 of the Charter, is a general principle of EU law which requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 14 July 2022, Commission v VW and Others, C‑116/21 P to C‑118/21 P, C‑138/21 P and C‑139/21 P, paragraph 95 and the case-law cited).

43The requirement that situations must be comparable, for the purpose of determining whether there is a breach of the principle of equal treatment, must be assessed in the light of all the elements that characterise them and, in particular, in the light of the subject matter and purpose of the act that makes the distinction in question, while the principles and objectives of the field to which the act relates must also be taken into account. In so far as the situations are not comparable, a difference in treatment of the situations concerned does not infringe equality before the law as enshrined in Article 20 of the Charter (judgment of 14 July 2022, Commission v VW and Others, C‑116/21 P to C‑118/21 P, C‑138/21 P and C‑139/21 P, paragraph 96 and the case-law cited).

44It is in the light of that case-law that it is necessary to examine the claims of the Council and the Commission that the General Court erred in finding, in the judgment under appeal, that the situations covered by the provisions of Articles 19 and 20 of Annex VIII to the Staff Regulations were comparable and that there was a difference in treatment of those comparable situations depending on the date on which the marriage was entered into.

45In that regard, it should be noted that, in paragraphs 50, 51 and 54 of the judgment under appeal, the General Court found that the purpose of Articles 19 and 20 of Annex VIII to the Staff Regulations, subject to compliance with the condition relating to the minimum duration of the marriage laid down in the second of those provisions, is to grant a survivor’s pension to the surviving spouse exclusively on the basis of the legal nature of the ties linking that spouse to the deceased spouse. The General Court also stated that those provisions pursue the objective of granting the surviving spouse a replacement income intended to compensate in part for the loss of the deceased spouse’s income, the latter having been, before his or her death, a former official who was no longer in service.

Therefore, the General Court held, in essence, that those two provisions of Annex VIII to the Staff Regulations had an appreciably identical subject matter and purpose in the light of the case-law referred to in paragraph 43 of the present order and referred to by the General Court itself in paragraph 44 of the judgment under appeal. According to the General Court, the main element characterising the survivor’s pensions in question lies in the legal nature of the links between the surviving spouse, as a person on whom those provisions confer a right, and the deceased former official. Again according to the General Court, the only difference in the application of Articles 19 and 20 of Annex VIII to the Staff Regulations, as can be seen clearly from paragraph 52 of the judgment under appeal, relates to whether the marriage was entered into before or after the date on which the official became eligible for invalidity allowance, since Article 20 of that annex lays down a condition as to the minimum duration of the marriage, unlike Article 19 of that annex.

47In those circumstances, the General Court did not err in law when it considered, first, in paragraph 57 of the judgment under appeal, that the situations covered by the provisions of Articles 19 and 20 of Annex VIII to the Staff Regulations were comparable and, second, in paragraphs 52 and 58 of the judgment under appeal, that the situations covered by those provisions differed only with regard to the date on which the marriage was entered into in relation to the date on which the official became eligible for invalidity allowance.

48The Council and the Commission state, however, in the first place, that the situations referred to in Articles 19 and 20 of Annex VIII to the Staff Regulations differ in an essential and objective manner precisely by the fact that, on the date on which the marriage was entered into, the official performs his or her duties for an EU institution in the context of the first provision, whereas in the context of the second provision the official is prevented from performing his or her duties on account of his or her invalidity and eligibility for invalidity allowance. The General Court, they submit, thus failed to take sufficient account of that characteristic element in its assessment of the comparability of the situations.

49However, as the General Court correctly stated, in paragraph 53 of the judgment under appeal, the legal nature of the links between the surviving spouse and the deceased official does not differ according to whether or not, on the date on which the marriage was entered into, the official was in active employment or not and according to the amount of contributions to the EU pension scheme which had been paid or which were still due. Similarly, as the General Court held in paragraph 56 of the judgment under appeal, whether the deceased official married before or after becoming eligible for invalidity allowance is not a fact capable of altering substantially the situation of the surviving spouse as regards his or her property rights, which include the right to a survivor’s pension as replacement income.

50The date on which the marriage was entered into is determined solely by the will of the future spouses. That decision is the result of a free choice on the part of the official on the basis of multiple considerations which do not necessarily or solely require account to be taken of circumstances connected with whether or not he or she is actively employed. Contrary to the assertions of the Council and the Commission, the issue of whether or not that official’s invalidity was established on that date and he or she is thus prevented from performing his or her duties cannot therefore have a decisive influence on the assessment of the comparability of the situations at issue in the light of the criteria set out in paragraph 43 of the present order and, in particular, in the light of the subject matter and purpose of Articles 19 and 20 of Annex VIII to the Staff Regulations, as set out in paragraph 45 of the present order. In that regard, the General Court’s reasoning, as set out in the preceding paragraph of the present order, is based, in essence, on that subject matter, on that purpose and on the main element of the right to a survivor’s pension, referred to in paragraph 46 of the present order.

51It is true that, as is apparent from paragraph 46 of the present order, the issue of whether or not, on the date on which the marriage was entered into, the official is eligible for invalidity allowance and is thus prevented from performing his or her duties affects the condition as to the minimum duration of the marriage. Whereas that condition is not imposed in the case where the marriage is entered into at a time when the official is not yet eligible for invalidity allowance and therefore performs his or her duties, the marriage must have lasted at least five years in the case where the official marries after becoming eligible for invalidity allowance and is thus no longer able to perform his or her duties.

52However, as is apparent from paragraphs 49 and 50 of the present order, neither the issue of performance of duties nor the date on which the marriage is entered into is relevant at the stage of comparability of the situations in that they have no direct link with the subject matter, purpose and main element of the right to a survivor’s pension referred to in Articles 19 and 20 of Annex VIII to the Staff Regulations.

53It is for that reason that it is necessary to hold, by analogy, as the Court has indicated, as regards the survivor’s pension provided for in Article 17 of Annex VIII to the Staff Regulations, in paragraph 70 of the judgment of 19 December 2019, HK v Commission, that the grant of the survivor’s pension depends ‘solely’, in principle, on the legal nature of the ties which existed between the person concerned and the deceased official, even though the Court acknowledged, in paragraph 89 of that judgment, that the grant of the survivor’s pension is also dependent on the minimum duration of the marriage.

54It is the legal nature of the ties between the spouses which underlies the EU civil service’s survivor’s pension scheme, in that that condition for granting the pension is common to all the survivor’s pensions referred to in Articles 17 to 20 and Article 27 of Annex VIII to the Staff Regulations. For its part, the condition as to the minimum duration of the marriage is ancillary to the condition relating to the legal nature of the ties between the spouses, in so far as it seeks merely to specify the period during which the legal relationship must have persisted for the purposes of the grant of the survivor’s pension. Furthermore, that ancillary condition is not repeated in some of the survivor’s pensions, such as those referred to in Articles 19 and 27 of Annex VIII to the Staff Regulations.

55The General Court was therefore right, in paragraphs 51 and 53 of the judgment under appeal, to emphasise, in its statement of reasons, the importance of the legal link between the spouses as a main feature characterising the EU survivor’s pension scheme and to conclude that eligibility for invalidity allowance or performance of duties has no effect on that link.

56The Council and the Commission claim, in the second place, that the situation of a former official who marries after becoming eligible for invalidity allowance and who is thus prevented from performing his or her duties does not require that a replacement income be offered to the surviving spouse as evidently as in the case of an official who marries while performing his or her duties. In that regard, it is sufficient to bear in mind, as the General Court correctly stated in paragraph 56 of the judgment under appeal, by referring to paragraph 69 of the judgment of 19 December 2019, HK v Commission, that entitlement to the survivor’s pensions referred to in Articles 18 and 20 of Annex VIII to the Staff Regulations is not subject to conditions of resources or assets which should characterise the surviving spouse’s inability to meet his or her needs and thereby demonstrate his or her past financial dependence on the deceased.

57The Commission claims, in the third place, that the General Court did not take account of the purpose of the minimum duration of marriage laid down in Article 20 of Annex VIII to the Staff Regulations, unlike Article 19 of that annex, which, as is apparent from paragraph 89 of the judgment of 19 December 2019, HK v Commission, is to prevent the conclusion of fraudulent or abusive agreements as to succession, such risk of abuse or fraud distinguishing the situations covered by those two articles from each other on an individual level. In that regard, it is sufficient to note that that aspect is not relevant at the stage of assessing the comparability of the situations. That argument relates to the justification of the condition as to the minimum duration of the marriage, with the result that it can come into consideration only at the stage of assessing the proportionality of any difference in treatment found to exist.

58It follows from the foregoing considerations that, contrary to what the Commission and the Council contend, the conclusions reached by the General Court in paragraphs 57 and 58 of the judgment under appeal are not vitiated by an error of law.

59In those circumstances, the argument of the Council and the Commission that the General Court wrongly refused, in paragraph 55 of the judgment under appeal, to draw the appropriate conclusions from paragraph 33 of the judgment of 17 June 1993, Arauxo-Dumay v Commission, must be regarded as ineffective. Even if that argument were well founded, the General Court’s conclusions relating to the comparability of the situations are sufficiently based on the reasoning set out in paragraphs 50 to 54 and 56 of the judgment under appeal, irrespective of the considerations set out in paragraph 55 of that judgment.

60It follows that the first ground of appeal in Case C‑313/21 P and the third part of the first ground of appeal and the second ground of appeal in Case C‑314/21 P must be rejected as unfounded.

The second ground of appeal in Case C‑313/21 P and the first two parts of the first ground of appeal in Case C‑314/21 P

– Arguments of the parties

61By these grounds of appeal, the Council and the Commission claim, in essence, that the General Court erred in law in the judgment under appeal as regards the scope of judicial review.

Those two institutions take the view that, in the second sentence of paragraph 48 of the judgment under appeal, the General Court applied EU case-law developed in the radically different context of staff-policy choices in situations where several options are open to the legislature. Thus, they argue, the General Court, in particular in paragraph 80 of the judgment under appeal, wrongly concluded that the choice made by the EU legislature in relation to the minimum duration of marriage mandated in Article 20 of Annex VIII to the Staff Regulations was simply ‘unreasonable’. In so doing, it carried out a review which went beyond the ‘manifestly unsuitable or inappropriate’ nature of the measure at issue in the light of the objective pursued by the competent institutions, namely, in the present cases, to prevent abuse of rights and fraud. The General Court, it is argued, thereby substituted its own assessment for that of the EU legislature and therefore exceeded the limits of the review of legality.

The Commission submits, further, that the General Court, when it asserted that it based its assessment of the lawfulness of Article 20 of Annex VIII to the Staff Regulations on Articles 20 and 21 of the Charter, departed from the case-law of the Court of Justice according to which the assessment of the legality of an EU measure in the light of fundamental rights cannot, in any event, be based on allegations drawn from the consequences of that act in a particular case. The General Court, it argues, relied on the specific nature of the factual circumstances of the case in question, in paragraph 77 of the judgment under appeal, in order to find Article 20 of Annex VIII to the Staff Regulations unlawful.

– Findings of the Court

It should be noted that the General Court recalled, in paragraphs 46 to 48 of the judgment under appeal, the requirements referred to in Article 52(1) of the Charter and the case-law applicable for the purposes of reviewing the proportionality of a difference in treatment. It then held, in paragraph 49 of the judgment under appeal, that, if the situations referred to respectively in Articles 19 and 20 of Annex VIII to the Staff Regulations were comparable, it would then have to verify that it did not appear unreasonable for the EU legislature to take the view that the difference in treatment introduced may be appropriate and necessary in order to achieve the general-interest objective pursued by the condition relating to the minimum duration of marriage laid down in Article 20 of Annex VIII to the Staff Regulations. Having concluded that the situations were comparable, it carried out that analysis beginning in paragraph 62 of the judgment under appeal.

As the Council and the Commission argue, it is clear from the case-law of the Court that, when provisions of the Staff Regulations such as those at issue in the present cases are involved, and in the light of the broad discretion which the EU legislature enjoys in that regard, there is a breach of the principle of equal treatment, as enshrined in Article 20 of the Charter, only where the EU legislature makes a distinction which is arbitrary or manifestly inappropriate in relation to the objective pursued by the rules in question (judgment of 14 July 2022, Commission v VW and Others, C‑116/21 P to C‑118/21 P, C‑138/21 P and C‑139/21 P, EU:C:2022:557, paragraph 127 and the case-law cited).

That case-law is applicable in the context of the verification of the requirement of proportionality imposed by Article 52(1) of the Charter (judgment of 14 July 2022, Commission v VW and Others, C‑116/21 P to C‑118/21 P, C‑138/21 P and C‑139/21 P, EU:C:2022:557, paragraph 128).

In the present cases, the General Court considered, in paragraph 49 of the judgment under appeal, that it had to ascertain whether it seemed not unreasonable for the EU legislature to take the view that the difference in treatment established could be appropriate and necessary for the purposes of attaining the general-interest objective pursued by the condition relating to the minimum duration of a marriage laid down in Article 20 of Annex VIII to the Staff Regulations.

However, in accordance with the case-law recalled in paragraphs 65 and 66 of the present order, it ought to have confined itself to ascertaining whether the distinction made in that provision, read in conjunction with Article 19 of that annex, seemed to be neither arbitrary nor manifestly inappropriate in the light of the general-interest objective pursued. By incorrectly examining the requirement of proportionality, the General Court misunderstood the scope of its power of judicial review and thus erred in law. Had it not been for that error, the General Court would have been led to adopt different reasoning and possibly to reach conclusions other than those which it reached in paragraphs 80, 81 and 83 of the judgment under appeal.

That misunderstanding of the scope of judicial review was also reflected in paragraph 67 of the judgment under appeal. The General Court sought to examine, starting from that paragraph, whether the condition of a minimum duration of five years’ marriage laid down in Article 20 of Annex VIII to the Staff Regulations, taken in isolation and independently of Article 19 of that annex, was, in the context of Article 52(1) of the Charter, proportionate in that it did not manifestly go beyond what is necessary to achieve the objective pursued by the EU legislature. As is apparent from paragraph 66 of the present order, even in the context of that provision of the Charter, the General Court should have confined itself to examining whether the distinction established in this instance, namely the fact that the requirement relating to the minimum duration of the marriage is imposed in the situations covered by Article 20 of Annex VIII to the Staff Regulations whereas it is not imposed in the situations covered by Article 19 of that annex, all those situations being otherwise comparable, had to be regarded as arbitrary or manifestly inappropriate in the light of the objective, as shared by those two provisions, pursued by the EU legislature.

In those circumstances, and without it being necessary to examine the other arguments raised by the Council and the Commission, the second ground of appeal in Case C‑313/21 P and the second part of the first ground of appeal in Case C‑341/21 P must be upheld.

Accordingly, it is appropriate, without there being any need to examine the third ground of appeal in Case C‑313/21 P or the first part of the first ground of appeal and the third ground of appeal in Case C‑314/21 P, to uphold the appeals and to set aside the judgment under appeal.

The action before the General Court

In accordance with the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the decision of the General Court is set aside, the Court of Justice may itself give final judgment in the matter, where the state of the proceedings so permits.

In the present cases, having regard in particular to the fact that the action for annulment in Case T‑694/19 is based on pleas which have been the subject of an exchange of arguments before the General Court, the examination of which does not require the adoption of any additional measure of organisation of procedure or of inquiry, it must be held that that action is ready for judgment and that final judgment must be given on it.

In support of his action before the General Court, FI raised four pleas in law alleging, first, that Article 20 of Annex VIII to the Staff Regulations is unlawful, second, an error of law in the application of Articles 18 and 20 of that annex, third, an error of interpretation of the notion of ‘spouse’ as used in the EU survivor’s pension scheme and, fourth, a manifest error of assessment as a result of failure to take into account his specific situation.

The first plea, alleging that Article 20 of Annex VIII to the Staff Regulations is unlawful

In accordance with the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the decision of the General Court is set aside, the Court of Justice may itself give final judgment in the matter, where the state of the proceedings so permits.

75By his first plea, FI claims that, by imposing a condition that the marriage must have lasted for at least five years, Article 20 of Annex VIII to the Staff Regulations breaches the principles of equal treatment and non-discrimination on grounds of age, the nature of the legal relationship of a couple’s life together and disability.

The first part of the first plea, alleging a breach of the principle of equal treatment

76By this part, FI asserts that, by excluding payment of a survivor’s pension to the surviving spouse in the case where the marriage entered into after his or her spouse became eligible for invalidity allowance lasted less than five years, whereas under Article 19 of Annex VIII to the Staff Regulations that condition as to the minimum duration of the marriage is not imposed where the marriage is concluded prior to such eligibility, Article 20 of that annex breaches the principle of equal treatment laid down in, inter alia, Article 20 of the Charter and Article 1d of the Staff Regulations and is thus unlawful.

77The Commission, supported by the Parliament and by the Council, disputes that argument.

78It should be borne in mind that, under Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and must respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.

79Furthermore, the principle of equal treatment is a general principle of EU law, enshrined in Article 20 of the Charter, of which the principle of non-discrimination laid down in Article 21(1) of the Charter is a specific expression. Those two principles are also reiterated in Article 1d of the Staff Regulations (judgment of 14 July 2022, Commission v VW and Others, C‑116/21 P to C‑118/21 P, C‑138/21 P and C‑139/21 P, EU:C:2022:557, paragraph 140 and the case-law cited).

80As has already been stated in paragraph 42 of the present order, the general principle of equal treatment requires from the EU legislature, in accordance with the requirements of Article 52(1) of the Charter, that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. A difference in treatment is justified if it is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by the legislation in question, and is proportionate to the aim pursued by the treatment in question (judgment of 14 July 2022, Commission v VW and Others, C‑116/21 P to C‑118/21 P, C‑138/21 P and C‑139/21 P, EU:C:2022:557, paragraph 142 and the case-law cited).

81As was set out in paragraph 43 of the present order, the requirement that situations must be comparable, for the purpose of determining whether there is a breach of the principle of equal treatment, must be assessed in the light of all the elements that characterise them and, in particular, in the light of the subject matter and purpose of the act that makes the distinction in question, while the principles and objectives of the field to which the act relates must also be taken into account. In so far as the situations are not comparable, a difference in treatment of the situations concerned does not infringe equality before the law as enshrined in Article 20 of the Charter.

82In addition, it is necessary to bear in mind the case-law of the Court, referred to in paragraph 65 of the present order, according to which, when provisions of the Staff Regulations such as those at issue in the present cases are involved, and in the light of the broad discretion which the EU legislature enjoys in that regard, there is a breach of the principle of equal treatment only where the EU legislature makes a distinction which is arbitrary or manifestly inappropriate in relation to the objective pursued.

83It is in the light of that case-law and of the requirements of Article 52(1) of the Charter that it is necessary to examine the plea of illegality raised by FI in respect of Article 20 of Annex VIII to the Staff Regulations, having regard to the principle of equal treatment enshrined in Article 20 of the Charter and reiterated in Article 1d of the Staff Regulations.

84As regards, in the first place, the comparability of the situations referred to in Articles 19 and 20 of Annex VIII to the Staff Regulations, it must be held, for the reasons stated in paragraphs 45 to 60 of the present order, that those situations are comparable.

85In the second place, it should be noted that, by not laying down a condition as to the minimum duration of the marriage in Article 19 of Annex VIII to the Staff Regulations, unlike in Article 20 of that annex, the EU legislature treated comparable situations differently.

86In the third place, it is necessary to examine whether that difference in treatment is compliant with Article 20 of the Charter in that it meets the criteria set out in Article 52(1) thereof and referred to in paragraph 78 of the present order.

87First, it is common ground that that difference in treatment is provided for by law, within the meaning of Article 52(1) of the Charter, since it results from Article 20 of Annex VIII to the Staff Regulations, read in conjunction with Article 19 of that annex. While the latter article does not lay down a condition as to the minimum duration of the marriage, Article 20 of Annex VIII to the Staff Regulations does lay down a precisely quantified condition relating to the minimum duration of marriage, which defines the scope of the limitation on the exercise of the right to equal treatment (see, as regards the scope of the requirement that any limitation on the exercise of fundamental rights must be provided for by law, judgment of 26 April 2022, Poland v Parliament and Council, C‑401/19, EU:C:2022:297, paragraph 64 and the case-law cited).

88Second, the limitation introduced to the survivor’s pension scheme by the difference in treatment at issue respects the essence of the principle of equal treatment in accordance with Article 52(1) of the Charter. That limitation does not call into question that principle as such, since it concerns only the limited matter of the condition of the minimum duration of marriage which surviving spouses of officials or former officials who have died must satisfy in order to be able to receive a survivor’s pension, without those spouses covered by Article 20 of Annex VIII to the Staff Regulations being deprived of the possibility of receiving such a pension, like those covered by Article 19 of that annex.

89Third, that limitation meets an objective of general interest, within the meaning of Article 52(1) of the Charter, namely that of preventing abuse of rights and fraud, the prohibition of which is a general principle of EU law with which individuals must comply (see, to that effect, judgment of 6 February 2018, Altun and Others, C‑359/16, EU:C:2018:63, paragraph 49).

The Court has, in fact, already held that the condition that the marriage must have lasted for a certain period of time in order for the surviving spouse to be entitled to the survivor’s pension is intended to ensure the reality and stability of the relationship between the persons concerned (see, to that effect, judgment of 19 December 2019, HK v Commission, C‑460/18 P, EU:C:2019:1119, paragraph 89). This is a uniform criterion applicable without distinction to all surviving spouses covered by Article 20 of Annex VIII to the Staff Regulations, which is designed, not to presume the existence of abuse or fraud on the part of surviving spouses, but to prevent the commission of such abuses or fraud.

As regards, fourth, the assessment of proportionality, it is necessary, in the context of the review of the legality of a provision of EU law in the light of the principle of equal treatment and by reason of the broad discretion enjoyed by the EU legislature in relation to rules of the Staff Regulations, to ascertain, as has been pointed out in paragraphs 65 and 82 of the present order, whether, by imposing on surviving spouses who married an official after the latter had become eligible for invalidity allowance a requirement to have been married for a minimum duration of five years, whereas Article 19 of Annex VIII to the Staff Regulations does not lay down such a requirement for a marriage entered into with an official prior to such eligibility, Article 20 of that annex provides for an arbitrary or manifestly inappropriate differentiation in relation to the general-interest objective referred to in the preceding paragraph of the present order.

As the Commission, supported by the Parliament and the Council, indicated, in essence, in its written pleadings, it appears neither arbitrary nor manifestly inappropriate to require a minimum duration of marriage in Article 20 of Annex VIII to the Staff Regulations, whereas such a condition as to duration is not imposed by Article 19 of that annex. In the situation referred to in Article 20, which is characterised by the fact that the marriage was entered into after the official had become eligible for invalidity allowance, there is likely to be greater incentive to commit abuses or fraud, first, as a result of the possible weakness and dependency of an official who has become so seriously sick as to have been accorded invalidity status and who is thus prevented from performing his or her duties within the meaning of Article 78(1) of the Staff Regulations and, second, as a result of the financial implications that may arise from such invalidity status, whereby the official’s spouse could be led to enter into marriage in the hope that, depending on the illness suffered by the official, his or her life expectancy will be much lower than average, thereby enabling the spouse to receive a survivor’s pension at an early age and potentially for a very long time.

On the other hand, the fact that Article 19 of Annex VIII to the Staff Regulations, unlike Article 20 of that annex, does not lay down a condition as to the minimum duration of the marriage can be explained, as is apparent from the written pleadings of the Commission and the Parliament, by the fact that, since in most cases the invalidity of an official of the European Union is unforeseeable for an already married couple and dramatically changes their situation, the risk of abuse or fraud appears negligible, such that the EU legislature wished to disregard that condition, just as it also disregarded it in the context of the second paragraph of Article 17 and the second paragraph of Article 18 of Annex VIII to the Staff Regulations in order to take account of situations in which the official’s death resulted from physical disability or sickness contracted in the performance of his or her duties or from an accident and the surviving spouse maintains or has maintained children of a marriage entered into before the termination of the official’s service.

In those circumstances, it must be held that, by providing in Article 20 of Annex VIII to the Staff Regulations that the marriage must have lasted for a minimum of five years in order to prevent abuse and fraud, whereas no minimum duration of marriage is provided for in the situations covered by Article 19 of that annex, the EU legislature, in the exercise of its broad discretion, did not draw arbitrary or manifestly inappropriate distinctions.

The second part of the first plea, alleging a breach of the principle of non-discrimination on grounds of age

FI claims a breach of the principle of non-discrimination on grounds of age, as enshrined in Article 21(1) of the Charter and reiterated in Article 1d(1) of the Staff Regulations, in so far as Article 20 of Annex VIII to the Staff Regulations covers older officials by virtue of the fact that they marry after their retirement, whereas Article 19 of that annex applies in the case of a marriage celebrated before the official became eligible for invalidity allowance and thus covers officials still in service, who are therefore much younger. To impose a condition as to the minimum duration of the marriage, which is what Article 20 of Annex VIII to the Staff Regulations does, in situations in which the marriage has been entered into after termination of the deceased official’s duties thus discriminates against couples covered by that provision on account of their age.

The Commission, supported by the Parliament and by the Council, disputes those arguments.

In this regard, as the Commission pointed out in its defence before the General Court, the second part of the first plea raised by FI is based on a false premiss.

As was stated in paragraph 47 of the present order, the situations covered by Articles 19 and 20 of Annex VIII to the Staff Regulations differ only with regard to the date on which the marriage was entered into, not in relation to the date of termination of the official’s service through retirement, but in relation to the date on which the official became eligible for invalidity allowance.

The official’s eligibility for invalidity allowance does not depend on the age of the official since officials of any age can become eligible for that allowance.

The same applies where, pursuant to Article 53 of the Staff Regulations, the official is automatically retired, as happened in this instance, at the same time as his or her invalidity is established and he or she becomes eligible for invalidity allowance. In such a case, the retirement is not based on the retirement age referred to in Article 52 of the Staff Regulations but solely on the date of eligibility for invalidity allowance, which, as was stated in the preceding paragraph, may occur at any age.

It follows from the foregoing that the alleged breach of equal treatment claimed by FI is not based on grounds of age within the meaning of Article 21(1) of the Charter and Article 1d(1) of the Staff Regulations and that Article 20 of Annex VIII to the Staff Regulations cannot therefore be considered unlawful by reason of discrimination based on the criterion of age. The second part of the first plea must therefore be rejected as unfounded.

The third part of the first plea, alleging a breach of the principle of non-discrimination based on the nature of the legal relationship of a couple’s life together

In this part, FI claims, first, that he is subject to discrimination by reason of his civil status as a result of the distinction which Article 20 of Annex VIII to the Staff Regulations makes between married spouses and cohabiting spouses, given that the day-to-day factual, real and practical situation of those categories of spouses is exactly the same.

Second, FI asserts that the scope of the Staff Regulations has been extended through the effect of the second subparagraph of Article 1d(1) of the Staff Regulations and Article 1(2)(c) of Annex VII to the Staff Regulations to forms of life union other than civil marriage, namely to certain registered non-marital partnerships. In those circumstances, he argues, the principle of non-discrimination should be interpreted in line with developments in social mores and Article 20 of Annex VIII to the Staff Regulations should be applied to all non-marital couples who are in a comparable situation and should thus be treated in the same manner.

The Commission, supported by the Parliament and by the Council, disputes those arguments.

It is sufficient to note in this respect that the Court has ruled that, with regard to the survivor’s pension, cohabitants are not in a situation comparable to that of married persons or to that of partners who have entered into a registered non-marital partnership, within the meaning of the second subparagraph of Article 1d(1) of the Staff Regulations, with a view to benefiting from the application of Article 20 of Annex VIII to the Staff Regulations, and that that provision does not therefore infringe the general principle of equal treatment or the principle of non-discrimination. Moreover, FI does not claim, in any event, that cohabitation would give rise, under the national law to which he is subject, to obligations of the same nature as those arising from marriage (see, by analogy, judgment of 19 December 2019, HK v Commission, C‑460/18 P)

EU:C:2019:1119

paragraphs 80, 84 and 85.

Furthermore, for the same reasons as those set out in paragraphs 91 to 94 of the order of 22 December 2022, Commission v KM and Council v KM (C‑341/21 P and C‑357/21 P), a cohabiting couple who, like FI and his spouse before their marriage, are not denied the possibility of marrying in the Member State under whose jurisdiction they fall are not in a situation that is comparable to that of a same-sex couple linked by a registered non-marital partnership but denied that possibility and Article 20 of Annex VIII cannot therefore be unlawful by reason of a breach of the principle of non-discrimination based on sexual orientation.

As regards the broad interpretation which FI seeks to suggest, in the light of developments in social mores, for the principle of non-discrimination and for Article 20 of Annex VIII to the Staff Regulations, to the effect that the latter provision should cover all non-marital couples, including cohabiting couples, it is sufficient to note that in the different EU Member States at present there is still an absence of any general assimilation of marriage and other forms of statutory and common-law union. In so far as the sole intention of the EU legislature was to grant entitlement to survivor’s pensions to married persons and to persons who have entered into a registered non-marital partnership within the meaning of the second subparagraph of Article 1d(1) of the Staff Regulations, it is not for the EU Courts to interpret the Staff Regulations in such a way that legal and factual situations distinct from marriage and such partnerships are treated in the same way as them. On the contrary, only the legislature can, where appropriate, adopt measures to alter that situation (see, by analogy, judgment of 31 May 2001, D and Sweden v Council, C‑122/99 P and C‑125/99 P, paragraphs 37, 38 and 50).

It follows from the foregoing considerations that the third part of the first plea must be rejected as unfounded.

The fourth part of the first plea, alleging a breach of the principle of non-discrimination based on disability

By this part, as is also clarified in the observations submitted by FI on the statements in intervention lodged by the Parliament and the Council and in the response by FI of 23 November 2020 to the questions to be answered in writing asked by the General Court, FI asserts, first, that, while surviving spouses covered by Article 19 and Article 20 of Annex VIII to the Staff Regulations, respectively, are in the same situation in that they assisted a disabled official who was in receipt of invalidity allowance at the time of his or her death, the second of those provisions breaches the principle of non-discrimination on grounds of disability in that it denies surviving spouses such as FI entitlement to a survivor’s pension simply because they entered into marriage with such an official after the official had become entitled to invalidity allowance.

Second, FI submits that he is subject to discrimination ‘by association’ on account of the disability suffered by his deceased spouse and relies in this regard on the judgment of 17 July 2008, Coleman (C‑303/06, EU:C:2008:415). FI states that he cared for a person with a disability on a daily and full-time basis as if the couple had been married from the very first day of their life together and with the same dedication as is demonstrated by surviving spouses covered by Article 19 of Annex VIII to the Staff Regulations. FI states in this regard that his spouse’s disability was the factual reason which, because it had priority over any other consideration relating to the couple’s legal status, led to their belated marriage.

The Commission, supported by the Parliament and by the Council, disputes those arguments.

It should be recalled that, according to the case-law of the Court, any case of discrimination based on disability within the meaning of Article 21(1) of the Charter and Article 1d(1) of the Staff Regulations requires that, in comparable situations, less favourable treatment or a particular disadvantage must be or have been suffered by a person on the basis of the disability suffered by that person or by a family member (see, to that effect and by analogy, judgments of 17 July 2008, Coleman, C‑303/06, EU:C:2008:415, paragraph 56, and of 26 January 2021, Szpital Kliniczny im. dra J. Babińskiego Samodzielny Publiczny Zakład Opieki Zdrowotnej w Krakowie, C‑16/19, EU:C:2021:64, paragraph 29).

Even assuming that the sickness that resulted in the invalidity of FI’s spouse and in her eligibility for invalidity allowance could be classified as a disability, the alleged breach of equal treatment which FI claims to have suffered by reason of his spouse’s disability is not in any way based on that disability.

As the Commission explained in its written pleadings before the General Court, its refusal to grant a survivor’s pension to FI is not linked to the disability of FI’s spouse, but to the fact that the couple decided to continue to cohabit and, only after his spouse had become entitled to invalidity allowance, to enter into a marriage which lasted less than five years before her death.

As regards the effect which the alleged disability of FI’s spouse might have had on the couple’s decision to marry belatedly, it is sufficient to note that, as was stated in paragraph 50 of the present order, the date on which the marriage was entered into is determined solely by the will of the future spouses, their decision being the result of a free choice on the basis of multiple considerations which do not necessarily or solely require account to be taken of circumstances connected with the disability of one of them. The position could be otherwise only in exceptional circumstances, such as where the disabled person is unable to express his or her will to marry, although no such circumstances have been invoked by FI in this instance.

Consequently, the fourth part of the first plea must be rejected as unfounded and, therefore, the first plea, alleging that Article 20 of Annex VIII to the Staff Regulations is unlawful in the light of the principles of equal treatment and non-discrimination, must be rejected in its entirety.

The second and third pleas, alleging, respectively, an error of law in the application of Articles 18 and 20 of Annex VIII to the Staff Regulations and an error of interpretation of the notion of ‘spouse’ for the purposes of the survivor’s pension scheme under the Staff Regulations

By this part, as is also clarified in the observations submitted by FI on the statements in intervention lodged by the Parliament and the Council and in the response by FI of 23 November 2020 to the questions to be answered in writing asked by the General Court, FI asserts, first, that, while surviving spouses covered by Article 19 and Article 20 of Annex VIII to the Staff Regulations, respectively, are in the same situation in that they assisted a disabled official who was in receipt of invalidity allowance at the time of his or her death, the second of those provisions breaches the principle of non-discrimination on grounds of disability in that it denies surviving spouses such as FI entitlement to a survivor’s pension simply because they entered into marriage with such an official after the official had become entitled to invalidity allowance.

By these two pleas, which should be dealt with together, FI asserts that the articles of the Staff Regulations relating to the survivor’s pension scheme, such as Articles 18 and 20 of Annex VIII to the Staff Regulations, should be interpreted as referring to a couple’s life together, whether it be a statutory or common-law union. In particular, the same rights should be conferred on persons who, without being married or linked by a registered non-marital partnership within the meaning of the second subparagraph of Article 1d(1) of the Staff Regulations, lived together with an official of the European Union who has since died for the duration of five years provided for in Article 20 of Annex VIII to the Staff Regulations.

The assimilation of the notion of ‘spouse’ to all forms of statutory union and to common-law unions is, FI argues, justified, moreover, by social changes in recent years, which have led many Member States to align marriage with other forms of union or, at least, to harmonise the marital regime with non-marital regimes, with the result that it is now no longer possible to confine the notion of ‘couple’ solely to relationships based on civil marriage. FI adds that the EU legislature has itself followed those changes by amending the Staff Regulation in such a way that the unmarried partner of an official is treated as a spouse in the sickness insurance scheme for EU officials.

The Commission, supported by the Parliament and by the Council, disputes those arguments.

As a preliminary point, it should be stated that, although in his second plea FI claims an error of law in the application of Articles 18 and 20 of Annex VIII to the Staff Regulations, it is apparent both from the logical structure of the application and from the explanations provided by FI in his response of 23 November 2020 to the questions to be answered in writing asked by the General Court that FI also intended to include Article 19 of that annex in his arguments, in so far as Articles 18 to 20 of that annex form a set of inextricably linked rules. In the light of the fact that in their written pleadings the institutions also understood the second plea raised by FI to relate also to Article 19 of Annex VIII to the Staff Regulations, FI must be considered, in that plea, to be alleging that the Commission misapplied Article 20 of that annex, read in conjunction with Articles 18 and 19 thereof.

As to the substance, for similar reasons to those set out in paragraphs 105 to 107 of the present order, the second and third pleas must be rejected as unfounded because, as regards the argument put forward by FI that the unmarried partner of an official is treated in the same way as a spouse in the sickness insurance scheme for EU officials, it is sufficient to note that such assimilation, which is confined to a specific field of the Staff Regulations, stems from the will of the legislature alone and that, in the absence of express amendments made to the remainder of the Staff Regulations by the legislature, such assimilation cannot be relied on in support of a cross-generalisation in the remainder of the Staff Regulations.

The fourth plea, alleging a manifest error of assessment by the Commission as a result of failure to take into account the specific situation of FI

FI states that, until the death of his spouse in 2019, he cohabited with her before the couple entered into a marital relationship which lasted almost five years, falling short by around three months. For the entire duration of their life together, FI asserts that he provided care for his spouse. The fact that he lived alongside her in such circumstances demonstrates the particular unfairness of the refusal to grant him a survivor’s pension on the ground that he falls less than four months short of fulfilling the condition that the marriage must have lasted for a minimum of five years under Article 20 of Annex VIII to the Staff Regulations. In doing so, he submits, the Commission made a manifest error of assessment.

Without contradicting the facts put forward by FI, the Commission, supported by the Parliament and by the Council, disputes those arguments.

It should be recalled, as was stated in paragraph 89 of the present order, that the condition that the marriage must have lasted for a minimum of five years laid down in Article 20 of Annex VIII to the Staff Regulations is a uniform criterion applicable without distinction to all surviving spouses covered by that provision, which is designed, not to presume the existence of abuse or fraud on the part of surviving spouses, but to prevent the commission of such abuses or fraud.

It should also be noted that, without prejudice to the special cases expressly provided for by the EU legislature, there is no general legal principle in EU law that an EU provision which is in force may be disapplied if it causes the person concerned hardship which the EU legislature would clearly have sought to avoid if it had envisaged that eventuality when enacting the provision (judgment of 26 May 2016, Ezernieki, C‑273/15, EU:C:2016:364, paragraph 56 and the case-law cited).

Furthermore, the Court has already held that, although in borderline cases fortuitous problems must arise from the introduction of any general and abstract system of rules, there are no grounds for taking exception to the fact that the legislature has resorted to categorisation, provided that, as has been ruled in paragraphs 78 to 116 of the present order with regard to Article 20 of Annex VIII to the Staff Regulations, it is not in essence discriminatory having regard to the objective which it pursues (judgment of 15 April 2010, Gualtieri v Commission, C‑485/08 P, EU:C:2010:188, paragraph 81 and the case-law cited).

Accordingly, it cannot be alleged that the Commission made a manifest error of assessment by refusing to grant FI a survivor’s pension on the ground that the condition, laid down in Article 20 of Annex VIII to the Staff Regulations, that the marriage must have lasted for a minimum of five years was not fulfilled.

It follows that the fourth plea must be rejected as unfounded and that, consequently, the action brought by FI must be dismissed in its entirety.

Costs

Under Article 184(2) of the Rules of Procedure, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs.

Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

Since FI has been unsuccessful after the appeals have been allowed, and since the Council and the Commission have applied for costs, FI must be ordered to bear his own costs and to pay those incurred by those two institutions both at first instance and in the present appeals.

Although it did not participate in the appeal proceedings, the Parliament intervened at first instance before the General Court. Following the setting aside of the judgment under appeal and the ruling on Case T‑694/19 in the present order, it is necessary to make a new decision as to the costs of that institution at first instance in accordance with the combined provisions of Article 137 and Article 184(2) of the Rules of Procedure.

In this regard, pursuant to Article 140(1) of those Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs. In these circumstances, the Parliament must bear the costs which it incurred at first instance.

On those grounds, the Court (Eighth Chamber) hereby orders:

The judgment of the General Court of the European Union of 10 March 2021, FI v Commission (T‑694/19, not published, EU:T:2021:122), is set aside.

The action brought by FI in Case T‑694/19 is dismissed.

FI shall bear his own costs and shall pay those incurred by the Council of the European Union and the European Commission in Case T‑694/19 as well as in Cases C‑313/21 P and C‑314/21 P.

The European Parliament shall bear the costs which it incurred in Case T‑694/19.

[Signatures]

(*1) Language of the cases: French.