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 in receipt of a retirement pension – Marriage entered into after termination of that official’s service – Condition that the marriage must have lasted for at least five years at the date of the official’s death – Article 18 of Annex VIII – Marriage entered into before termination of the official’s service – Condition that the marriage must have lasted for at least one year only – 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 on grounds of age – Article 52(1) – No arbitrary or manifestly inappropriate differentiation in the light of the objective pursued by the EU legislature)

In Joined Cases C‑341/21 P and C‑357/21 P,

TWO APPEALS under Article 56 of the Statute of the Court of Justice of the European Union, brought on 2 June and 7 June 2021 respectively,

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

appellant in Case C‑341/21 P,

the other parties to the proceedings being:

KM, represented by M. Müller‑Trawinski, Rechtsanwalt,

applicant at first instance,

European Parliament, represented by J. Van Pottelberge, acting as Agent,

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

interveners at first instance,

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

appellant in Case C‑357/21 P,

the other parties to the proceedings being:

KM, represented by M. Müller‑Trawinski, Rechtsanwalt,

applicant at first instance,

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

defendant at first instance,

European Parliament, represented by J. Van Pottelberge, acting as Agent,

intervener 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

1.By their appeals, the European Commission (C‑341/21 P) and the Council of the European Union (C‑357/21 P) seek to have set aside the judgment of the General Court of the European Union of 24 March 2021, KM v Commission (T‑374/20, not published, EU:T:2021:162; ‘the judgment under appeal’), by which the General Court annulled the Commission’s decision of 7 October 2019 rejecting the application for the grant of a survivor’s pension to KM (‘the decision in question’).

Legal context

2.Article 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.’

Article 35 of the Staff Regulations provides:

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

(a)Active employment;

(b)Secondment;

(c)Leave on personal grounds;

(d)Non-active status;

(e)Leave for military service;

(f)Parental leave or family leave;

(g)Leave in the interests of the service.’

Article 47 of the Staff Regulations provides:

‘Services shall be terminated by:

(a)resignation;

(b)compulsory resignation;

(c)retirement in the interests of the service;

(d)dismissal for incompetence;

(e)removal from post;

(f)retirement; or

The 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 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 decision in question

12.In 2004 the applicant, KM, concluded with an official of an EU institution a notarised partnership agreement in Germany, which was subsequently registered in Brussels (Belgium) as a declaration of legal cohabitation. That official retired in 2016.

13.In 2017 that official and KM married. The official died less than five years after the date on which their marriage was concluded.

14.KM, 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.

15.By the decision in question, the Commission’s Office for the Administration and Payment of Individual Entitlements (PMO) rejected the application made by KM on the ground that she 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 her marriage to the deceased official, entered into after termination of that official’s service, had lasted less than five years.

16.The objection lodged by KM against that decision was rejected.

The actions at first instance and the judgment under appeal

17.By application lodged at the Registry of the General Court on 15 June 2020, KM brought an action for annulment of the decision in question concerning her.

* * *

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

In support of her action, KM raised, inter alia, a plea in law alleging, in essence, that Article 20 of Annex VIII to the Staff Regulations was unlawful in the light, in particular, of the principle of equal treatment and of the principle of non-discrimination on grounds of age.

Ruling on that plea, the General Court held that, for the purposes of granting a survivor’s pension, the situation covered by Article 18 of Annex VIII to the Staff Regulations, namely that of the surviving spouse of a former official of the European Union who married before termination of the latter’s service, was comparable to the situation covered by Article 20 of that annex, namely that of the surviving spouse of a former official who entered into marriage after termination of the latter’s service. 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 on condition that the marriage had lasted at least one year under Article 18 of Annex VIII to the Staff Regulations and at least five years under Article 20 of that annex. 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 termination of the latter’s service as compared with the surviving spouse of a former official who entered into marriage prior to such termination. The General Court also found a difference in the treatment of comparable situations based indirectly on the age of the former official on the date on which the marriage was entered into.

After 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 42 of the judgment under appeal.

In 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 five times longer than the minimum duration provided for in Article 18 of Annex VIII to the Staff Regulations, and which 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.

The General Court concluded that Article 20 of Annex VIII to the Staff Regulations infringed the principle of equal treatment as well as the principle of non-discrimination on grounds of age. In those circumstances, it upheld the plea of illegality raised by KM and annulled the decision in question.

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

By its appeal in Case C‑341/21 P, the Commission claims that the Court should:

set aside the judgment under appeal;

dismiss the action at first instance; and

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

By its appeal in Case C‑357/21 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 KM to pay the costs incurred at first instance and on appeal.

By decision of the President of the Court of Justice of 14 September 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.

Pursuant to Article 54(2) of the Rules of Procedure of the Court of Justice, the President of the Court decided, on 1 September 2022, to join Cases C‑341/21 P and C‑357/21 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

Under 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.

The Commission and KM state that they have no objection to that article being applied. The Council did not respond to the request made by the Court to take a view on this matter.

The grounds of 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

In support of its appeal in Case C‑341/21 P, the Commission puts forward three grounds of appeal, alleging, first, an error of law regarding the criteria for assessing the lawfulness of the decisions taken 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.

For its part, in support of its appeal in Case C‑357/21 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.

The third part of the first ground of appeal and the second ground of appeal in Case C‑341/21 P and the first ground of appeal in Case C‑357/21 P

– Arguments of the parties

By these grounds of appeal and parts thereof, the Commission and the Council 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 18 and 20 of Annex VIII to the Staff Regulations were comparable and that there was therefore a difference in treatment arising from the application of different schemes to those comparable situations.

Those institutions take the view that the General Court, in paragraphs 49 and 50 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 18 or Article 20 of Annex VIII to the Staff Regulations and that, therefore, the situations covered by those provisions were indeed 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 have ceased to be in the service of an EU institution, relating 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.

In particular, both the Commission and the Council 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. The Commission also states that, unlike Article 20 of Annex VIII to the Staff Regulations, Article 18 of that annex provides that the condition relating to the duration of the marriage is not to be taken into account if, in the official’s family, a child was born of the marriage entered into by the official before termination of his or her service, which shows that the situations covered by those two provisions are radically different. All of those considerations show that the situation of a former official who marries after 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.

The Commission also considers that the situation of officials in service and the situation of officials who have left the service of an EU institution can be distinguished from each other on an individual level. First, officials covered by Article 18 of Annex VIII to the Staff Regulations are younger than officials covered by Article 20 of that annex, such that the shorter life expectancy of the latter increases the risk of fraud concerning them and there is thus a significant difference between the situations covered by those two provisions. Second, the Commission asserts that someone who marries an official before termination of the official’s service has supported the spouse for the entire duration of the marriage, which makes a risk of abuse or fraud unlikely, in contrast to the situation of someone who marries an official after termination of the official’s service.

The Commission further submits that, in paragraph 48 of the judgment under appeal, the General Court wrongly disregarded, in its analysis, the purpose of the minimum duration of marriage laid down in Articles 18 and 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 (C‑460/18 P), that of preventing agreements as to succession and, therefore, entry 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 termination of service 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 18 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 having left the service, the risk of fraud and abuse is greater than in the case of an official who married prior to such termination.

– Findings of the Court

As 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).

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 (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).

It is in the light of that case-law that it is necessary to examine the claims of the Commission and the Council that the General Court erred in finding, in the judgment under appeal, that the situations covered by the provisions of Articles 18 and 20 of Annex VIII to the Staff Regulations are comparable and that there is a difference in treatment of those comparable situations depending on the date on which the marriage was entered into.

In that regard, it should be noted that, in paragraphs 44, 45 and 48 of the judgment under appeal, the General Court found that the purpose of Articles 18 and 20 of Annex VIII to the Staff Regulations, subject to compliance with the condition relating to the minimum duration of the marriage, is to grant survivor’s pensions 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 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 39 of the present order and referred to by the General Court itself in paragraph 38 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 18 and 20 of Annex VIII to the Staff Regulations relates to the condition of a minimum duration of the marriage, which for its part depends on the date on which the marriage was entered into in the light of the official’s position under the Staff Regulations on that date, as can be seen clearly from paragraph 46 of the judgment under appeal.

In those circumstances, the General Court did not err in law when it considered, first, in paragraph 49 of the judgment under appeal, that the situations covered by the provisions of Articles 18 and 20 of Annex VIII to the Staff Regulations were comparable and, second, in paragraphs 46 and 50 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 official’s position under the Staff Regulations.

44

The Commission and the Council state, however, in the first place, that the situations referred to in Articles 18 and 20 of Annex VIII to the Staff Regulations differ in an essential and objective manner by reason of the fact that, on the date on which the marriage was entered into, the official was, in the context of the first provision, still working for an EU institution, whereas in the context of the second provision he or she was no longer working for an EU institution. The General Court, they submit, thus failed to take sufficient account of that characteristic element in its assessment of the comparability of the situations.

45

However, as the General Court correctly stated, in paragraph 47 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, on the date on which the marriage was entered into, the official was in active employment or not. Similarly, as the General Court held in paragraph 48 of the judgment under appeal, whether the deceased official married before or after termination of his or her service 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.

46

The 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 made 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 Commission and the Council, the issue of whether or not that official was in service on that date 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 39 of the present order and, in particular, in the light of the subject matter and purpose of Articles 18 and 20 of Annex VIII to the Staff Regulations, as set out in paragraph 41 of the present order. In that regard, the General Court’s reasoning, 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 42 of the present order.

47

It is true that, as is apparent from paragraph 42 of the present order, the position of an official under the Staff Regulations at the date on which the marriage is entered into affects the condition relating to the minimum duration of that marriage. Whereas the required duration is only one year in the case where the marriage is entered into while the official is still in service, it is extended to five years in the case where the official marries after having ceased to be in the service of an EU institution.

48

However, as is apparent from paragraphs 45 and 46 of the present order, neither the position of an official under the Staff Regulations 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 18 and 20 of Annex VIII to the Staff Regulations.

49

It is for that reason 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 (C‑460/18 P, EU:C:2019:1119), that the grant of the survivor’s pension depends ‘solely’, in principle, on the legal nature of the ties 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 a minimum duration of the marriage.

50

It 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.

51

The General Court was therefore right, in paragraphs 45 and 47 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 the official’s position under the Staff Regulations has no effect on that link.

The Commission and the Council claim, in the second place, that the situation of a former official who marries after termination of his or her service 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 he or she is still in service. In that regard, it is sufficient to bear in mind, as the General Court correctly stated in paragraph 48 of the judgment under appeal, by referring to paragraph 69 of the judgment of 19 December 2019, HK v Commission (C‑460/18 P, EU:C:2019:1119), 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.

53

The 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 Articles 18 and 20 of Annex VIII to the Staff Regulations, which, as is apparent from paragraph 89 of the judgment of 19 December 2019, HK v Commission (C‑460/18 P, EU:C:2019:1119), 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 greater or lesser period of time for which the marriage must have lasted, 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.

54

As regards, moreover, the Commission’s argument that the lack of comparability of the situations is also evidenced by the fact that, by contrast to what is provided for in Article 20 of Annex VIII to the Staff Regulations, the condition relating to the minimum duration of the marriage ceases to operate, under Article 18 of that annex, when the surviving spouse provides or has provided for the needs of the children of the former official, that factor has no bearing on the assessment of the comparability of the situations covered by those two articles. The condition relating to the maintenance of children, provided for only in Article 18 of Annex VIII to the Staff Regulations, has, by analogy with what has been stated in paragraphs 47 and 49 of the present order, the same ancillary nature as the condition relating to the minimum duration of the marriage, which it replaces. It thus has no direct link with the subject matter, purpose and main element of the right to a survivor’s pension referred to in Articles 18 and 20 of that annex.

55

It follows from the foregoing considerations that, contrary to what the Commission and the Council contend, the conclusions reached by the General Court in paragraphs 49 and 50 of the judgment under appeal are not vitiated by any error of law.

56

It follows that the third part of the first ground of appeal and the second ground of appeal in Case C‑341/21 P and the first ground of appeal in Case C‑357/21 P must be rejected as unfounded.

The first two parts of the first ground of appeal in Case C‑341/21 P and the second ground of appeal in Case C‑357/21 P

– Arguments of the parties

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

58

Those two institutions take the view that, in the second sentence of paragraph 42 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, the General Court, in particular in paragraph 78 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.

59

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 relied on the specific nature of the factual circumstances of the case in question, in paragraph 72 of the judgment under appeal, in order to find that Article 20 of Annex VIII to the Staff Regulations was unlawful.

– Findings of the Court

60

It should be noted that the General Court recalled, in paragraphs 40 to 42 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 43 of the judgment under appeal, that, if the situations referred to respectively in Articles 18 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 58 of the judgment under appeal.

61

As the Commission and the Council 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).

62

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).

63

In the present cases, the General Court considered, in paragraph 43 of the judgment under appeal, that it had to ascertain whether it appeared 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.

64

However, according to the case-law recalled in paragraphs 61 and 62 of the present order, it ought to have confined itself to ascertaining whether the distinction made in that provision, read in conjunction with Article 18 of that annex, appeared 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 78, 79 and 81 of the judgment under appeal.

65

That misunderstanding of the scope of its judicial review was also reflected in paragraph 63 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 the minimum duration of one year laid down in Article 18 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. However, as is apparent from paragraph 62 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, in the situations covered by Article 20 of Annex VIII to the Staff Regulations, is five times greater than that in the situations covered by Article 18 of that annex, even though all those situations are 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.

66

In those circumstances, and without it being necessary to examine the other arguments raised by the Commission and the Council, the second part of the first ground of appeal in Case C‑341/21 P and the second ground of appeal in Case C‑357/21 P must be upheld.

67

Accordingly, it is appropriate, without there being any need to examine the first part of the first ground of appeal and the third ground of appeal in Case C‑341/21 P or the third ground of appeal in Case C‑357/21 P, to uphold the appeals and to set aside the judgment under appeal.

The action before the General Court

68

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.

69

In the present cases, having regard in particular to the fact that the action for annulment in Case T‑374/20 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.

70

In support of her action before the General Court, KM raised two pleas in law alleging that, first, Article 18 of Annex VIII to the Staff Regulations and, second, Article 20 of that annex are unlawful.

The first plea, alleging that Article 18 of Annex VIII to the Staff Regulations is unlawful

71

By this first plea, KM alleges, in essence, an infringement of the principles of equal treatment and non-discrimination on the ground of sexual orientation because, if she and her deceased spouse had formed a same-sex couple which had been denied access to marriage, she could, given that their notarised partnership agreement, which was subsequently registered as a declaration of legal cohabitation, was concluded before termination of her spouse’s service and more than one year before her spouse’s death, have been entitled to a survivor’s pension on the basis of the combined provisions of Article 1 of Annex VII to the Staff Regulations and Article 18 of Annex VIII to the Staff Regulations. It was therefore, she submits, discriminatory to require different-sex couples to marry, whereas a form of declared longstanding cohabitation was sufficient for same-sex couples to form the basis for entitlement to the survivor’s pension.

72

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

73

In this regard, it must be recalled that 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).

As has already been stated in paragraph 38 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 should not be treated differently and that different situations should 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 it 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).

As was set out in paragraph 39 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 will not be in breach of equality before the law as enshrined in Article 20 of the Charter.

In order to determine whether, as KM claims, Article 18 of Annex VIII to the Staff Regulations, read in conjunction with the second subparagraph of Article 1d(1) of the Staff Regulations and Article 1(2)(c) of Annex VII thereto, is discriminatory and therefore unlawful because its scope covers only certain couples in a non-marital regime, it must first be examined whether the categories of couples at issue are in a comparable situation.

It should be noted in this regard that, according to its wording, Article 18 of Annex VIII to the Staff Regulations covers, in principle, only couples who have married, although it should be pointed out that both different-sex spouses and same-sex spouses may come within the scope of that provision depending on the arrangements provided for in the law of the Member States.

However, through the combined 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, the EU legislature has explicitly extended the application of the provisions of the Staff Regulations relating to married persons, under certain conditions, to persons linked by a registered non-marital partnership (see, to that effect, judgment of 19 December 2019, HK v Commission, C‑460/18 P, EU:C:2019:1119, paragraph 74).

Thus, under the second subparagraph of Article 1d(1) of the Staff Regulations, for the purposes of those Staff Regulations, non-marital partnerships are to be treated as marriage provided that all the conditions listed in Article 1(2)(c) of Annex VII to the Staff Regulations are fulfilled, those conditions being, in particular, the production by the couple in question of a legal document recognised as such by a Member State, or by any competent authority of a Member State, acknowledging their status as non-marital partners, and the impossibility for the couple to have access to legal marriage in a Member State.

It follows that Article 18 of Annex VIII to the Staff Regulations, read in conjunction with the provisions mentioned in the preceding paragraph, covers not only married couples, but also couples linked by a registered non-marital partnership where they are denied access to marriage. By contrast, Article 18 does not cover couples linked by such a partnership where, like KM and her spouse before their marriage, those couples are not denied the possibility of marrying in the Member State under whose jurisdiction they fall.

It must therefore be stated that couples linked by a registered non-marital partnership are treated differently under Article 18 of Annex VIII to the Staff Regulations depending on whether or not it is possible for them to enter into marriage in their Member State. This possibility of entering into marriage is the criterion adopted by the EU legislature to distinguish the two situations. As KM maintains in essence, that criterion is based indirectly on sexual orientation as contemplated in Article 21(1) of the Charter and Article 1d(1) of the Staff Regulations in so far as different-sex couples are not denied the possibility of entering into marriage in any of the EU Member States, in contrast to same-sex couples, who are still unable to marry in some of those Member States.

However, these situations cannot be considered to be comparable.

The purpose of the second subparagraph of Article 1d(1) of the Staff Regulations and of Article 1(2)(c) of Annex VII to the Staff Regulations is to treat registered non-marital partnerships as marriage in order to enable persons who do not have access to marriage in the Member State under whose jurisdiction they fall to benefit from the provisions of the Staff Regulations relating to married persons (see, to that effect, judgment of 19 December 2019, HK v Commission, C‑460/18 P, EU:C:2019:1119, paragraphs 74 to 76). Such analogous treatment is in keeping with the fundamental objective of the Staff Regulations, as set out in the cardinal provision, Article 1d thereof, which is to guarantee the principle of equal treatment, and in particular to prevent any discrimination on grounds of a person’s sexual orientation. The EU legislature thus considered it necessary, in pursuing that objective, to enable persons who, although denied the possibility of marrying in a Member State, have opted for a form of union that is closest to marriage to benefit from the provisions of the Staff Regulations relating to married persons.

By contrast, such analogous treatment and such protection are not at all necessary in the case where a couple linked by a registered non-marital partnership are not denied the possibility of marrying and thus of benefitting from the provisions of the Staff Regulations relating to married persons. As the Commission stated in its defence before the General Court, in such a case the choice to opt for a registered non-marital partnership rather than marriage stems from a conscious decision by the two partners regarding the legal consequences associated with that choice, such that where a couple does not opt for marriage even though that possibility is available to them under national law, they cannot be considered to be in a situation comparable to that of couples who have opted for marriage or who have been denied the possibility of marrying by law.

Pursuant to the case-law referred to in paragraph 75 of the present order, it must therefore be stated that, in the light of the main element relating to whether or not it is possible to enter into marriage, the subject matter and purpose of the distinction in question, as set out in paragraph 83 of the present order, and the cardinal objective of the Staff Regulations of guaranteeing the principles of equal treatment and non-discrimination on the ground of sexual orientation, a couple linked by a registered non-marital partnership who, like KM and her 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 comparable to that of a couple linked by a registered non-marital partnership but denied that possibility.

In these circumstances, the first plea, alleging that Article 18 of Annex VIII to the Staff Regulations is unlawful, must be rejected.

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

By her second plea, KM claims that Article 20 of Annex VIII to the Staff Regulations infringes the principles of equal treatment and non-discrimination on grounds of age, in that, by imposing a condition that the marriage must have lasted for at least five years, whereas Article 18 of Annex VIII to the Staff Regulations requires the marriage to have lasted for only one year, it unduly denies her entitlement to a survivor’s pension.

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

It 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.

Furthermore, as has already been stated in paragraphs 73 to 75 of the present order, 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 also being reiterated in Article 1d of the Staff Regulations.

Lastly, according to the case-law of the Court referred to in paragraph 61 of the present order, 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 by the rules in question.

It 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 KM in respect of Article 20 of Annex VIII to the Staff Regulations, having regard to the principles of equal treatment and non-discrimination on grounds of age enshrined in Article 20 and Article 21(1) of the Charter, respectively, and reiterated in Article 1d of the Staff Regulations.

As regards, in the first place, the comparability of the situations referred to in Articles 18 and 20 of Annex VIII to the Staff Regulations, it must be held, for the reasons stated in paragraphs 41 to 56 of the present order, that those situations are comparable.

In the second place, it should be noted that, by providing, in those provisions of Annex VIII to the Staff Regulations, for different minimum periods for which the marriage must have lasted, the EU legislature treated comparable situations differently.

It should also be noted that this difference in treatment is also indirectly based on grounds of age.

First, the situations covered by the provisions of Articles 18 and 20 of Annex VIII to the Staff Regulations differ as regards the date on which the marriage was entered into in relation to whether or not the official’s service had terminated as a result of Article 47 of the Staff Regulations and, second, such termination of service occurs, for the most part, by the effect of being retired within the meaning of Article 52 of the Staff Regulations. In view of the fact that, in its widest application, Article 52 of the Staff Regulations provides that the retirement of officials entitled to receive a retirement pension, for the purposes of Article 20 of Annex VIII to the Staff Regulations, may take place between the ages of 58 and 70 years, it must be held that the former officials covered by that Article 20 have generally married at a more advanced age than former officials referred to in Article 18 of Annex VIII to the Staff Regulations (see, to that effect, 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 174).

It follows that Article 20 of Annex VIII to the Staff Regulations, read in conjunction with Article 18 of that annex, also establishes a difference in treatment indirectly based on the age of the official, it being noted that the fact that officials may, under Article 52 of the Staff Regulations, retire and receive a retirement pension at ages differing by 12 years in the most extreme cases cannot suffice to deny that that difference in treatment is indeed based on age (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 175 and the case-law cited).

In the third place, it is necessary to examine whether the difference in treatment noted in paragraphs 94 to 97 of the present order is compliant with Article 20 and Article 21(1) of the Charter in that it meets the criteria set out in Article 52(1) thereof and referred to in paragraph 89 of the present order.

First, 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 18 of that annex. Those provisions of EU law lay down precisely quantified conditions relating to the minimum duration of marriage, which define the scope of the limitation on the exercise of the right to equal treatment and to non-discrimination on grounds of age (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).

Second, 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 and the principle of non-discrimination on grounds of age, in accordance with Article 52(1) of the Charter. That limitation does not call into question those principles as such, since it concerns only the limited matter of the condition of the minimum duration of marriage which surviving spouses of officials or of former officials who have died must satisfy in order to be able to receive a survivor’s pension, without those spouses being deprived of the possibility of receiving such a pension in each of the situations contemplated in Articles 18 and 20 of Annex VIII to the Staff Regulations.