Avis juridique important

61974J0037

European Court reports 1975 Page 00235 Greek special edition Page 00093 Portuguese special edition Page 00103

Summary

THE CONCEPT OF 'NATIONALS' CONTAINED IN ARTICLE 4 ( A ) OF ANNEX VII OF THE STAFF REGULATIONS OF OFFICIALS MUST BE INTERPRETED IN SUCH A WAY AS TO AVOID ANY UNWARRANTED DIFFERENCE OF TREATMENT AS BETWEEN MALE AND FEMALE OFFICIALS WHO ARE IN FACT, PLACED IN COMPARABLE SITUATIONS . IT IS, THEREFORE, NECESSARY TO EXCLUDE NATIONALITY IMPOSED BY LAW ON A FEMALE OFFICIAL UPON HER MARRIAGE WITH A NATIONAL OF ANOTHER STATE AND WHICH SHE WAS UNABLE TO RENOUNCE .

Parties

IN CASE 37/74 CHANTAL VAN DEN BROECK, OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY RITA DIEUDONNE, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF JACQUES LOESCH, 2 RUE GOETHE, APPLICANT, V COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ROBERT FISCHER AND JOSEPH GRIESMAR, ITS LEGAL ADVISERS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER PIERRE LAMOUREUX, 4, BD . ROYAL, DEFENDANT,

Subject of the case

APPLICATION, PRINCIPALLY, FOR PAYMENT OF EXPATRIATION ALLOWANCE TO THE APPLICANT WITH EFFECT FROM 1 JULY 1972,

Grounds

1 THE APPLICANT SEEKS ANNULMENT OF THE DECISION REJECTING HER COMPLAINT LODGED ON 4 NOVEMBER 1973 IN WHICH SHE ASKED TO BE GRANTED THE EXPATRIATION ALLOWANCE PROVIDED FOR UNDER THE STAFF REGULATIONS OF OFFICIALS .

2 SHE ALSO SEEKS AN ORDER FOR THE COMMISSION TO PAY HER THE EXPATRIATION ALLOWANCE WITH EFFECT FROM 1 JULY 1972 .

3 SHE CONTENDS THAT THE CONDITION LAID DOWN IN ARTICLE 4 ( A ) OF ANNEX VII OF THE STAFF REGULATIONS, WHEREBY AN EXPATRIATION ALLOWANCE SHALL BE PAID TO OFFICIALS WHO, IN THE WORDS OF THE ARTICLE, 'ARE NOT AND HAVE NEVER BEEN NATIONALS OF THE STATE IN WHOSE EUROPEAN TERRITORY THE PLACE WHERE THEY ARE EMPLOYED IS SITUATED' DOES NOT APPLY WHEN THE INDIVIDUAL CONCERNED ACQUIRED THE NATIONALITY OF HER HUSBAND BY MARRIAGE .

4 IN THE CASE OF A FEMALE OFFICIAL WHO IS GRANTED THE NATIONALITY OF HER HUSBAND AS A RESULT OF HER MARRIAGE WITH A NATIONAL OF ANOTHER STATE, THE APPLICATION OF THAT CONDITION RESULTS IN DISCRIMINATION, SINCE UNDER NO NATIONAL LEGISLATION DOES THE MALE OFFICIAL ACQUIRE THE NATIONALITY OF HIS WIFE .

5 ON THE QUESTION OF NATIONALITY, THE PROVISIONS OF NATIONAL LEGISLATION ARE NOT UNIFORM; SOME LAWS, PARTICULARLY THOSE OF RECENT DATE, PROVIDE THAT A FOREIGN WIFE DOES NOT AUTOMATICALLY ACQUIRE THE NATIONALITY OF HER HUSBAND, WHEREAS UNDER OTHER LEGISLATIONS IT IS STILL PROVIDED THAT, AS WAS ONCE THE COMMON RULE, THE NATIONALITY OF A MARRIED WOMAN DEPENDS UPON THAT OF HER HUSBAND .

6 IN ACCORDANCE WITH THE GENERAL PATTERN OF ARTICLE 4 OF ANNEX VII THIS PROVISION ADOPTS THE OFFICIAL'S HABITUAL RESIDENCE BEFORE HE ENTERED THE SERVICE AS THE PARAMOUNT CONSIDERATION IN DETERMINING ENTITLEMENT TO AN EXPATRIATION ALLOWANCE .

7 THE OFFICIAL'S NATIONALITY IS REGARDED AS BEING ONLY A SUBSIDIARY CONSIDERATION, I.E . AS SERVING TO DEFINE THE EFFECT OF THE LENGTH OF SUCH RESIDENCE OUTSIDE THE TERRITORY IN WHICH THE PLACE WHERE HE IS EMPLOYED IS SITUATED .

8 THE OBJECT OF THE EXPATRIATION ALLOWANCE IS TO COMPENSATE OFFICIALS FOR THE EXTRA EXPENSE AND INCONVENIENCE OF TAKING UP EMPLOYMENT WITH THE COMMUNITIES AND BEING THEREBY OBLIGED TO CHANGE THEIR RESIDENCE .

9 THOUGH 'EXPATRIATION' IS A SUBJECTIVE STATE CONDITIONED BY THE OFFICIAL'S ASSIMILATION INTO NEW SURROUNDINGS, THE STAFF REGULATIONS OF OFFICIALS CANNOT TREAT OFFICIALS DIFFERENTLY IN THIS RESPECT ACCORDING TO WHETHER THEY ARE OF THE MALE OR OF THE FEMALE SEX SINCE, IN EITHER CASE, PAYMENT OF THE EXPATRIATION ALLOWANCE MUST BE DETERMINED BY CONSIDERATIONS WHICH ARE UNIFORM AND DISREGARD THE DIFFERENCE IN SEX .

10 THE CONCEPT OF 'NATIONALS' CONTAINED IN ARTICLE 4 ( A ) MUST THEREFORE BE INTERPRETED IN SUCH A WAY AS TO AVOID ANY UNWARRANTED DIFFERENCE OF TREATMENT AS BETWEEN MALE AND FEMALE OFFICIALS WHO ARE, IN FACT, PLACED IN COMPARABLE SITUATIONS .

11 SUCH UNWARRANTED DIFFERENCE OF TREATMENT BETWEEN FEMALE OFFICIALS AND OFFICIALS OF THE MALE SEX WOULD RESULT FROM AN INTERPRETATION OF THE CONCEPT OF 'NATIONALS' REFERRED TO ABOVE AS ALSO EMBRACING THE NATIONALITY WHICH WAS IMPOSED BY LAW ON AN OFFICIAL OF THE FEMALE SEX BY VIRTUE OF HER MARRIAGE, AND WHICH SHE WAS UNABLE TO RENOUNCE .

12 IT IS THEREFORE NECESSARY TO DEFINE THE CONCEPT OF AN OFFICIAL'S PRESENT OR PREVIOUS NATIONALITY UNDER ARTICLE 4 ( A ) OF ANNEX VII AS EXCLUDING NATIONALITY IMPOSED BY LAW ON A FEMALE OFFICIAL UPON HER MARRIAGE WITH A NATIONAL OF ANOTHER STATE .

13 ALTHOUGH, ON HER MARRIAGE, THE BELGIAN NATIONALITY OF HER HUSBAND HAD BEEN CONFERRED UPON HER, THE APPLICANT COULD HAVE RENOUNCED IT AND THUS RETAINED HER NATIONALITY OF ORIGIN .

14 AS THE APPLICANT CHOSE NOT TO AVAIL HERSELF OF THIS RIGHT, THERE ARE NO REASONS ASSOCIATED WITH EQUAL TREATMENT WHY HER BELGIAN NATIONALITY SHOULD NOT BE TAKEN INTO ACCOUNT IN APPLYING THE PROVISION CONCERNED .

15 AS SHE IS A NATIONAL OF THE STATE ON WHOSE TERRITORY THE PLACE WHERE SHE IS EMPLOYED IS SITUATED, THE APPLICANT'S POSITION FALLS TO BE CONSIDERED IN THE LIGHT OF THE CONDITIONS PROVIDED FOR UNDER ARTICLE 4 ( B ) OF ANNEX VII OF THE STAFF REGULATIONS .

16 AS THE APPLICANT DID NOT HABITUALLY RESIDE OUTSIDE BELGIAN TERRITORY DURING THE TEN YEARS ENDING AT THE DATE OF HER ENTERING THE SERVICE SHE DOES NOT FULFIL THE CONDITIONS LAID DOWN UNDER ARTICLE 4 ( B ) FOR PAYMENT OF AN EXPATRIATION ALLOWANCE .

17 HER APPLICATION MUST, ACCORDINGLY, BE DISMISSED .

Decision on costs

18 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

19 THE APPLICANT HAS FAILED IN HER PLEAS .

20 NEVERTHELESS, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN ACTIONS BY STAFF OF THE COMMUNITIES THE INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

Operative part

THE COURT ( SECOND CHAMBER ) HEREBY : 1 . DISMISSES THE APPLICATION; 2 . ORDERS EACH PARTY TO BEAR ITS OWN COST .