Avis juridique important

61971J0032

European Court reports 1972 Page 00363 Danish special edition Page 00097 Portuguese special edition Page 00123

Summary

THE WITHDRAWAL OF THE EXPATRIATION ALLOWANCE FOLLOWING THE MARRIAGE OF THE RECIPIENT, WHICH MIGHT BE JUSTIFIED IN CASES IN WHICH THIS CHANGE IN THE FAMILY SITUATION IS SUCH AS TO BRING TO AN END THE STATE OF " EXPATRIATION ", MUST HOWEVER BE DEPENDENT ON UNIFORM CRITERIA, IRRESPECTIVE OF SEX . CONSEQUENTLY, BY RENDERING THE RETENTION OF THE ALLOWANCE SUBJECT TO THE ACQUISITION OF THE STATUS OF " HEAD OF HOUSEHOLD " - AS IT IS DEFINED IN ARTICLE 1 ( 3 ) OF ANNEX VII - THE STAFF REGULATIONS HAVE CREATED AN ARBITRARY DIFFERENCE OF TREATMENT BETWEEN OFFICIALS .

Parties

IN CASE 32/71 MONIQUE CHOLLET, NEE BAUDUIN, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING IN OVERIJSE ( BELGIUM ), REPRESENTED BY MARCEL GREGOIRE, ADVOCATE AT THE COUR D' APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER, 83 BOULEVARD GRANDE-DUCHESSE-CHARLOTTE, APPLICANT, V COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, PIERRE LAMOUREUX, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, EMILE REUTER, 4 BOULEVARD ROYAL, DEFENDANT,

Subject of the case

APPLICATION FOR THE ANNULMENT OF TWO DECISIONS OF THE COMMISSION DEPRIVING THE APPLICANT OF THE BENEFIT OF AN EXPATRIATION ALLOWANCE,

Grounds

1 THE APPLICATION SEEKS THE ANNULMENT OF THE DECISIONS BY WHICH THE ADMINISTRATION OF THE COMMISSION OF THE EUROPEAN COMMUNITIES WITHDREW, WITH EFFECT FROM 1 NOVEMBER 1970, THE EXPATRIATION ALLOWANCE WHICH THE APPLICANT HAD PREVIOUSLY RECEIVED . 2 IN SUPPORT OF HER APPLICATION, THE APPLICANT HAS ADVANCED TWO SUBMISSIONS, BASED ON THE ILLEGALITY OF ARTICLE 4 ( 3 ) OF ANNEX VII TO THE STAFF REGULATIONS AND, ALTERNATIVELY, ON AN INFRINGEMENT OF THAT PROVISION . 3 AS HER PRINCIPAL SUBMISSION THE APPLICANT CLAIMS THAT ARTICLE 4 ( 3 ) OF ANNEX VII TO THE STAFF REGULATIONS, ON WHICH THE CONTESTED DECISIONS APPEAR TO BE FOUNDED, IS ILLEGAL BECAUSE IT IS CONTRARY TO A GENERAL PRINCIPLE OF LAW PROHIBITING ANY DISCRIMINATION ON GROUNDS OF SEX AND, MORE PARTICULARLY, BECAUSE IT IS CONTRARY TO ARTICLE 119 OF THE EEC TREATY RELATING TO THE PRINCIPLE OF EQUAL PAY FOR MALE AND FEMALE WORKERS . 4 UNDER ARTICLE 4 ( 3 ) OF ANNEX VII AN OFFICIAL " WHO MARRIES A PERSON WHO AT THE DATE OF MARRIAGE DOES NOT QUALIFY FOR THE ALLOWANCE SHALL FORFEIT THE RIGHT TO EXPATRIATION ALLOWANCE UNLESS THAT OFFICIAL THEREBY BECOMES A HEAD OF HOUSEHOLD ". 5 ALTHOUGH THIS PROVISION DOES NOT OF ITSELF CREATE ANY DIFFERENCE OF TREATMENT AS BETWEEN THE SEXES, IT MUST HOWEVER BE EXAMINED IN CONJUNCTION WITH ARTICLE 1 ( 3 ) OF THE SAME ANNEX, WHICH PROVIDES THAT THE TERM " HEAD OF HOUSEHOLD " NORMALLY REFERS TO A MARRIED MALE OFFICIAL, WHEREAS A MARRIED FEMALE OFFICIAL IS CONSIDERED TO BE HEAD OF HOUSEHOLD ONLY IN EXCEPTIONAL CIRCUMSTANCES, IN PARTICULAR IN CASES OF INVALIDITY OR SERIOUS ILLNESS OF THE HUSBAND . 6 IT IS THUS CLEAR THAT THE PROVISION THE VALIDITY OF WHICH IS CONTESTED DOES IN FACT CREATE A DIFFERENCE OF TREATMENT AS BETWEEN MALE AND FEMALE OFFICIALS INASMUCH AS IT RENDERS THE RETENTION OF THE EXPATRIATION ALLOWANCE CONDITIONAL UPON THE ACQUISITION OF THE STATUS OF HEAD OF HOUSEHOLD WITHIN THE MEANING OF THE STAFF REGULATIONS . 7 IT IS THEREFORE NECESSARY TO EXAMINE WHETHER THIS DIFFERENCE OF TREATMENT IS SUCH AS TO AFFECT THE VALIDITY OF THE CONTESTED PROVISION OF THE STAFF REGULATIONS . 8 THE PURPOSE OF THE EXPATRIATION ALLOWANCE IS TO COMPENSATE FOR THE SPECIAL EXPENSES AND DISADVANTAGES RESULTING FROM ENTRY INTO THE SERVICE OF THE COMMUNITIES FOR THOSE OFFICIALS WHO - IN THE CONDITIONS MORE FULLY SET OUT IN ARTICLE 4 ( 1 ) OF ANNEX VII - ARE THEREBY OBLIGED TO CHANGE THEIR PLACE OF RESIDENCE . 9 ARTICLE 4, TAKEN AS A WHOLE, INDICATES THAT THE EXPATRIATION ALLOWANCE IS PAID TO MARRIED OFFICIALS NOT ONLY IN CONSIDERATION OF THE PERSONAL SITUATION OF THE RECIPIENT, BUT ALSO OF THE FAMILY SITUATION CREATED BY THE MARRIAGE . 10 THUS ARTICLE 4 ( 3 ) TAKES INTO ACCOUNT THE NEW FAMILY SITUATION ENTERED UPON BY THE OFFICIAL WHEN HE OR SHE MARRIES A PERSON WHO DOES NOT SATISFY THE CONDITIONS FOR THE GRANT OF THE EXPATRIATION ALLOWANCE . 11 THE WITHDRAWAL OF THE ALLOWANCE FOLLOWING THE MARRIAGE OF THE RECIPIENT MIGHT BE JUSTIFIED IN CASES IN WHICH THIS CHANGE IN THE FAMILY SITUATION IS SUCH AS TO BRING TO AN END THE STATE OF " EXPATRIATION " WHICH IS THE JUSTIFICATION FOR THE BENEFIT IN QUESTION . 12 IN THIS RESPECT, THE STAFF REGULATIONS CANNOT HOWEVER TREAT OFFICIALS DIFFERENTLY ACCORDING TO WHETHER THEY ARE MALE OR FEMALE, SINCE THE TERMINATION OF THE STATUS OF EXPATRIATE MUST BE DEPENDENT FOR BOTH MALE AND FEMALE OFFICIALS ON UNIFORM CRITERIA, IRRESPECTIVE OF SEX . 13 CONSEQUENTLY, BY RENDERING THE RETENTION OF THE ALLOWANCE SUBJECT TO THE ACQUISITION OF THE STATUS OF " HEAD OF HOUSEHOLD " - AS IT IS DEFINED IN ARTICLE 1 ( 3 ) - THE STAFF REGULATIONS HAVE CREATED AN ARBITRARY DIFFERENCE OF TREATMENT BETWEEN OFFICIALS . 14 CONSEQUENTLY, THE DECISIONS TAKEN WITH REGARD TO THE APPLICANT ARE DEVOID OF ANY LEGAL BASIS AND MUST BE ANNULLED IN PURSUANCE OF ARTICLE 184 OF THE EEC TREATY . 15 IN THESE CIRCUMSTANCES, THERE IS NO NEED TO GIVE A DECISION ON THE ALTERNATIVE SUBMISSION .

Decision on costs

16 UNDER THE FIRST SUBPARAGRAPH OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . 17 SINCE THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS, IT MUST BE ORDERED TO PAY THE COSTS .

Operative part

THE COURT ( SECOND CHAMBER ) HEREBY : 1 . ANNULS THE DECISIONS BY WHICH THE COMMISSION OF THE EUROPEAN COMMUNITIES WITHDREW THE APPLICANT' S EXPATRIATION ALLOWANCE; 2 . ORDERS THE COMMISSION TO BEAR THE COSTS OF THE PROCEEDINGS .