# EUR-Lex - 61979J0040 - EN

Avis juridique important

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# 61979J0040

**Judgment of the Court (First Chamber) of 5 February 1981. - Mme P v Commission of the European Communities. - Officials: Survivor's pension. - Case 40/79. **

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European Court reports 1981 Page 00361 *

Summary
Parties
Subject of the case
Grounds
Decision on costs
Operative part

## Keywords

1 . MEASURES ADOPTED BY INSTITUTIONS - AMENDMENT OF AN EARLIER PROVISION - SITUATIONS ARISING UNDER THAT LATTER PROVISION - FUTURE EFFECTS - APPLICATION OF THE AMENDMENT

2 . OFFICIALS - PENSIONS - SURVIVOR ' S PENSION FOR A DIVORCED WIFE - CONDITIONS FOR GRANT - DECREE OF DIVORCE NOT FINDING THAT THE WIFE WAS SOLELY TO BLAME - CONCEPT OF ' ' SOLE ' ' BLAME

( STAFF REGULATIONS OF OFFICIALS , ANNEX VIII , ART . 27 )

Summary

1 . ACCORDING TO A GENERALLY ACCEPTED PRINCIPLE A LAW AMENDING A LEGISLATIVE PROVISION APPLIES , SAVE AS OTHERWISE PROVIDED , TO THE FUTURE EFFECTS OF SITUATIONS WHICH AROSE UNDER THE PREVIOUS LAW .

## Summary

2 . THE PROVISO DENYING THE DIVORCED WIFE A SURVIVOR ' S PENSION , AS IT IS WORDED IN ARTICLE 27 OF ANNEX VIII , APPLIES ONLY WHERE THE DECREE OF DIVORCE FOUND THAT THE WIFE WAS SOLELY TO BLAME . A DECREE WHICH DECIDED WHAT BLAME WAS TO BE ATTACHED TO THE WIFE , WHILST RESERVING JUDGMENT AS TO THE BLAME TO BE ATTACHED TO THE HUSBAND , MAY NOT BE CONSIDERED AS HAVING FOUND THAT THE WIFE WAS ' ' SOLELY ' ' TO BLAME .

Parties

IN CASE 40/79

## Parties

MRS P ., OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING IN BRUSSELS , REPRESENTED BY EDMOND LEBRUN , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER , ADVOCATE , 83 BOULEVARD GRANDE-DUCHESSE CHARLOTTE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , JOSEPH GRIESMAR , ACTING AS AGENT , ASSISTED BY RAYMOND VANDER ELST , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

IN THE PRESENCE OF

MRS C . ( NEE C .), WIDOW OF C ., AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES RESIDING IN BRUSSELS , REPRESENTED BY MARCEL SLUSNY OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR ARENDT , ADVOCATE , CENTRE LOUVIGNY , 34/B/IV RUE PHILIPPE II ,

INTERVENER ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DECISION OF 25 MAY 1978 REFUSING TO GRANT THE APPLICANT A SURVIVOR ' S PENSION AND OF THE IMPLIED DECISION REJECTING THE COMPLAINT LODGED BY THE APPLICANT ON 11 AUGUST 1978 AND FOR AN ORDER THAT THE DEFENDANT GRANT THE APPLICANT THE SURVIVOR ' S PENSION WITH INTEREST ON THE ARREARS ,

## Subject of the case

Grounds

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 9 MARCH 1979 MRS P ., DIVORCED WIFE OF THE LATE MANFREDO C ., AN OFFICIAL OF THE COMMISSION , BROUGHT AN ACTION FOR THE ANNULMENT OF THE COMMISSION ' S DECISION OF 25 MAY 1978 REFUSING TO GRANT HER A SURVIVOR ' S PENSION AND FOR AN ORDER THAT THE COMMISSION AWARD HER A SURVIVOR ' S PENSION AND PAY HER THE MONTHLY INSTALMENTS THEREOF WHICH ARE DUE , WITH INTEREST THEREON AT 8% .

## Grounds

2 THE APPLICANT HAD GERMAN NATIONALITY WHEN SHE MARRIED MR C ., AN ITALIAN NATIONAL , IN BELGIUM . SHE ACQUIRED ITALIAN NATIONALITY THROUGH HER MARRIAGE , BUT SHE RETAINED HER GERMAN NATIONALITY . ON 27 AUGUST 1975 THE MARRIAGE WAS DISSOLVED BY REGISTRATION , ON THE REGISTRES DE L ' ETAT CIVIL ( REGISTER OF BIRTHS , DEATHS AND MARRIAGES ) OF THE BELGIAN DISTRICT WHERE THE MARRIAGE WAS CELEBRATED , OF A JUDGMENT OF THE TRIBUNAL DE PREMIERE INSTANCE ( COURT OF FIRST INSTANCE ), BRUSSELS , AUTHORIZING A DIVORCE .

3 THAT JUDGMENT WAS DELIVERED ON 13 JUNE 1975 ON THE PETITION OF THE APPLICANT AND ON THE CROSS-PETITION OF HER HUSBAND . ACCORDING TO THE OPERATIVE PART OF THAT JUDGMENT THE COURT AUTHORIZED THE DIVORCE ON THE CROSS-PETITION , FINDING THAT THE DEFENDANT IN THE CROSS-ACTION WAS TO BLAME ; AS REGARDS THE ORIGINAL PETITION THE APPLICANT WAS PERMITTED , BEFORE ANY RULING WAS GIVEN AS TO THE SUBSTANCE , TO PROVE BY WITNESSES OR ANY OTHER EVIDENCE A NUMBER OF ALLEGATIONS . SHE TOOK NO FURTHER ACTION AND HER HUSBAND DIED ON 31 OCTOBER 1977 .

4 BY A LETTER OF 25 MAY 1978 THE COMMISSION NOTIFIED THE APPLICANT THAT , HAVING REGARD TO ARTICLE 27 OF ANNEX VIII TO THE STAFF REGULATIONS , SHE WAS NOT ENTITLED TO THE SURVIVOR ' S PENSION . THE APPLICANT ' S COMPLAINT WAS NOT ANSWERED AND AN APPLICATION CHALLENGING THAT DECISION WAS LODGED .

5 THE PRESENT VERSION OF THE SAID ARTICLE 27 WAS INTRODUCED BY COUNCIL REGULATION ( EURATOM , ECSC , EEC ) NO 912/78 OF 2 MAY 1978 AMENDING THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES AND THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES ( OFFICIAL JOURNAL 1978 , L 119 , P . 1 ) WHICH ENTERED INTO FORCE ON 4 MAY 1978 . THAT PROVISION STATES THAT THE DIVORCED WIFE OF AN OFFICIAL SHALL BE ENTITLED ON HIS DEATH TO A SURVIVOR ' S PENSION , ' ' PROVIDED THAT THE COURT WHICH PRONOUNCED THE DECREE OF DIVORCE DID NOT FIND THAT THE DIVORCED WIFE IN QUESTION WAS SOLELY TO BLAME ' ' . THE PREVIOUS VERSION OF THAT ARTICLE MADE PROVISION FOR THE GRANT OF THE SURVIVOR ' S PENSION ' ' PROVIDED THAT THE COURT WHICH PRONOUNCED THE DECREE OF DIVORCE FOUND THAT THE OFFICIAL WAS SOLELY TO BLAME ' ' .

6 THE THREE GROUNDS RELIED ON BY THE APPLICANT ARE BASED ON THE INVALIDITY OF ARTICLE 27 OF ANNEX VIII , ON THE INVALIDITY OF THE DECREE OF DIVORCE , WHICH THE APPLICANT CLAIMS IS NOT RECOGNIZED UNDER ITALIAN LAW , THE NATIONAL LAW COMMON TO THE SPOUSES , AND ON THE ERRONEOUS INTERPRETATION OF THE DECREE , WHICH , IT IS ARGUED , DID NOT AUTHORIZE THE DIVORCE WITH A FINDING THAT THE APPLICANT WAS ' ' SOLELY ' ' TO BLAME .

7 IN APPRAISING WHETHER THESE SUBMISSIONS ARE WELL FOUNDED IT MUST FIRST OF ALL BE DETERMINED WHETHER THE VERSION OF THE SAID ARTICLE 27 WHICH WAS INTRODUCED BY REGULATION NO 912/78 IS APPLICABLE TO THIS CASE .

8 ARTICLE 24 OF ANNEX VIII PROVIDES THAT THE RIGHT TO RECEIVE PAYMENT OF A SURVIVOR ' S PENSION HAS EFFECT FROM THE FIRST DAY OF THE CALENDAR MONTH FOLLOWING THAT IN WHICH THE OFFICIAL DIED , BUT THAT IF PAYMENT OF THE THREE MONTHS ' SALARY PROVIDED FOR IN ARTICLE 70 OF THE STAFF REGULATIONS IS MADE ON THE DEATH OF THE OFFICIAL THE RIGHT TO THE PENSION TAKES EFFECT ON THE FIRST DAY OF THE FOURTH MONTH FOLLOWING THAT IN WHICH THE DEATH OCCURRED . IN THE PRESENT CASE THOSE TWO DATES ARE 1 NOVEMBER 1977 AND 1 FEBRUARY 1978 AND ARE THUS PRIOR TO THE ENTRY INTO FORCE OF REGULATION NO 912/78 .

9 THE ARGUMENTS OF THE PARTIES WERE BASED EXCLUSIVELY ON THE AMENDED VERSION OF ARTICLE 27 , ALTHOUGH A LETTER OF 25 MAY 1978 FROM THE COMMISSION TO THE APPLICANT ' S LAWYER REFERRED TO THE OLD VERSION .

10 AT THE REQUEST OF THE COURT THE COMMISSION EXPLAINED WHY IT CONSIDERED THAT THE AMENDED VERSION OF ARTICLE 27 SHOULD BE APPLIED TO THE APPLICANT ' S CASE . HAVING ESTABLISHED THAT THE DISCUSSIONS PRECEDING THE ADOPTION OF REGULATION NO 912/78 DID NOT SHOW THAT THE LEGISLATURE INTENDED TO RESTRICT THE REFORM INTRODUCED BY THAT REGULATION EXCLUSIVELY TO SITUATIONS OCCURRING AFTER ITS ENTRY INTO FORCE , THE COMMISSION CONSIDERED IT APPROPRIATE , IN THE ABSENCE OF ANY TRANSITIONAL PROVISION INSERTED INTO THE REGULATION , TO APPLY THE REFORM IMMEDIATELY TO EXISTING SITUATIONS . FOR THAT REASON IT ACCEPTED THAT THE AMENDED VERSION OF ARTICLE 27 CONFERRED PENSION RIGHTS ON SURVIVING DIVORCED WIVES WITH IMMEDIATE EFFECT WHERE THE DECREE OF DIVORCE FOUND THAT THE SPOUSES WERE BOTH TO BLAME OR THE DIVORCE WAS BY MUTUAL CONSENT , EVEN IF THE HUSBAND DIED BEFORE 1 MAY 1978 . THIS PRACTICE WAS , MOREOVER , FOLLOWED BY ALL THE INSTITUTIONS OF THE COMMUNITY .

11 IN THIS CONNEXION THE COMMISSION CONTENDS THAT ANY OTHER SOLUTION WOULD BE CONTRARY TO THE PRINCIPLE THAT PERSONS COVERED BY THE STAFF REGULATIONS AND IN COMPARABLE SITUATIONS MUST RECEIVE EQUAL TREATMENT . THAT PRINCIPLE DOES NOT PERMIT A DISTINCTION TO BE DRAWN , AS REGARDS ENTITLEMENT TO THE SURVIVOR ' S PENSION , BETWEEN DIVORCED WIVES IN WHOSE DECREE OF DIVORCE IT IS FOUND THAT BOTH PARTIES WERE TO BLAME OR WHO WERE DIVORCED BY MUTUAL CONSENT , DEPENDING ON WHETHER THE FORMER HUSBAND DIED BEFORE OR AFTER A CERTAIN DATE .

12 ACCORDING TO A GENERALLY ACCEPTED PRINCIPLE A LAW AMENDING A LEGISLATIVE PROVISION APPLIES , SAVE AS OTHERWISE PROVIDED , TO THE FUTURE EFFECTS OF SITUATIONS WHICH AROSE UNDER THE PREVIOUS LAW . THUS THE AMENDMENT TO ARTICLE 27 OF ANNEX VIII , WHICH MOREOVER REFLECTS AN ALTERATION IN THE ATTITUDE OF THE LAW TOWARDS THE DIVORCED WIFE , MUST , SAVE AS OTHERWISE PROVIDED , APPLY FROM THE TIME OF ITS ENTRY INTO FORCE TO ALL DIVORCED WIVES OF DECEASED OFFICIALS .

13 ALTHOUGH ARTICLE 24 OF ANNEX VIII FIXES THE DATE FOR QUALIFYING FOR A SURVIVOR ' S PENSION AND THE DATE FROM WHICH THE RIGHT TO RECEIVE THAT PENSION HAS EFFECT , IT IS NOT INTENDED TO LAY DOWN RULES CONCERNING SUBSEQUENT ALTERATIONS TO PENSION RIGHTS . THE COMMISSION WAS THUS CORRECT IN CONCLUDING THAT THE AMENDMENT MADE TO ARTICLE 27 BY REGULATION NO 912/78 APPLIES , IN THE ABSENCE OF ANY TRANSITIONAL PROVISION , WITH IMMEDIATE EFFECT TO ALL THE SITUATIONS WHICH IT COVERS .

14 IT IS CONVENIENT TO DEAL FIRST WITH THE THIRD GROUND , IN WHICH IT IS CLAIMED THAT THE DECREE OF DIVORCE PRONOUNCED BY THE TRIBUNAL DE PREMIERE INSTANCE , BRUSSELS , ON 13 JUNE 1975 DID NOT FIND THAT THE APPLICANT WAS ' ' SOLELY ' ' TO BLAME AND THAT SHE IS ACCORDINGLY ENTITLED TO THE SURVIVOR ' S PENSION UNDER ARTICLE 27 OF ANNEX VIII , AS AMENDED BY REGULATION NO 912/78 .

15 IN SUPPORT OF THAT CONTENTION THE APPLICANT CLAIMS THAT ALTHOUGH THAT JUDGMENT AUTHORIZING THE DIVORCE FOUND THAT THE APPLICANT WAS TO BLAME , IT DID NOT FIND THAT SHE WAS SOLELY TO BLAME . IN PERMITTING THE APPLICANT TO PROVE FACTS CAPABLE OF ESTABLISHING THAT HER HUSBAND WAS TO BLAME THE JUDGMENT RESERVED THE QUESTION WHETHER THE DIVORCE SHOULD BE GRANTED ON THE GROUND THAT THE APPLICANT WAS SOLELY TO BLAME OR WHETHER BOTH PARTIES WERE TO BLAME .

16 THE COMMISSION REPLIES THAT THE JUDGMENT OF 13 JUNE 1975 HAS BECOME FINAL IN SO FAR AS IT AUTHORIZED THE DIVORCE AND FOUND THAT THE APPLICANT WAS TO BLAME . SINCE THE APPLICANT FAILED TO EXERCISE , BEFORE THE DEATH OF HER FORMER HUSBAND , THE RIGHT GRANTED BY THE COURT TO ADDUCE EVIDENCE OF THE FACTS ALLEGED BY HER , THERE REMAINS ONLY ' ' THE DECREE AUTHORIZING THE DIVORCE WITH A FINDING THAT THE WIFE ALONE WAS TO BLAME ' ' .

17 THIS ARGUMENT OF THE COMMISSION CANNOT BE UPHELD . THE PROVISO DENYING THE DIVORCED WIFE A SURVIVOR ' S PENSION , AS IT IS WORDED IN ARTICLE 27 OF ANNEX VIII , APPLIES ONLY WHERE THE DECREE OF DIVORCE FOUND THAT THE WIFE WAS SOLELY TO BLAME . IN THIS CASE THE TRIBUNAL DE PREMIERE INSTANCE DECIDED WHAT BLAME WAS TO BE ATTACHED TO THE WIFE , WHILST RESERVING JUDGMENT AS TO THE BLAME TO BE ATTACHED THE HUSBAND . IN THOSE CIRCUMSTANCES THE DECREE MAY NOT BE CONSIDERED AS HAVING FOUND THAT THE WIFE WAS ' ' SOLELY ' ' TO BLAME .

18 IT FOLLOWS FROM THE FOREGOING THAT THE THIRD GROUND RELIED ON IN THE APPLICATION IS WELL-FOUNDED AND THAT THE CONTESTED DECISION MUST BE ANNULLED IN SO FAR AS IT REFUSED TO GRANT THE SURVIVOR ' S PENSION FROM 4 MAY 1978 , THE DATE WHEN REGULATION NO 912/78 ENTERED INTO FORCE .

19 IN THOSE CIRCUMSTANCES IT IS NO LONGER NECESSARY TO CONSIDER THE FIRST AND SECOND GROUNDS . IN FACT SINCE THE APPLICANT RELIED IN HER APPLICATION ON THE WORDING OF ARTICLE 27 OF ANNEX VIII AS AMENDED BY REGULATION NO 912/78 AND SINCE SHE DECLARED IN RESPONSE TO THE COURT ' S REQUEST FOR CLARIFICATION THAT IN HER VIEW THAT VERSION OF THE PROVISION IS THE ONLY ONE RELEVANT TO THIS CASE , HER APPLICATION MUST BE CONSIDERED AS DIRECTED EXCLUSIVELY TOWARDS OBTAINING THE MONTHLY INSTALMENTS OF THE SURVIVOR ' S PENSION WHICH FELL DUE AFTER THE DATE OF THE ENTRY INTO FORCE OF THE ABOVE-MENTIONED REGULATION .

20 CONSEQUENTLY THE COMMISSION MUST BE ORDERED TO PAY THE APPLICANT THE MONTHLY INSTALMENTS OF THE SURVIVOR ' S PENSION WHICH FELL DUE AFTER 4 MAY 1978 WITH INTEREST THEREON FROM THE DATE OF THE COMMENCEMENT OF THE PROCEEDINGS . THE APPROPRIATE RATE OF INTEREST IS 8% .

Decision on costs

21 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY MUST BE ORDERED TO PAY THE COSTS . SINCE THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO BEAR THE COSTS WITH THE EXCEPTION OF THE COSTS ENTAILED BY THE INTERVENTION . THE INTERVENER MUST BE ORDERED TO PAY HER OWN COSTS .

## Decision on costs

Operative part

ON THOSE GROUNDS ,

## Operative part

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . ANNULS THE DECISION OF THE COMMISSION OF 25 MAY 1978 REFUSING TO GRANT THE APPLICANT A SURVIVOR ' S PENSION IN SO FAR AS IT REFUSED THE GRANT OF THAT PENSION WITH EFFECT FROM 4 MAY 1978 ;

2 . ORDERS THE COMMISSION TO GRANT THE APPLICANT THE SURVIVOR ' S PENSION REFERRED TO IN ARTICLE 27 OF ANNEX VIII TO THE STAFF REGULATIONS WITH EFFECT FROM 4 MAY 1978 AND TO PAY HER THE MONTHLY INSTALMENTS OF THAT PENSION WHICH ARE DUE , WITH INTEREST AT THE RATE OF 8% WITH EFFECT FROM 9 MARCH 1979 ;

3 . ORDERS THE DEFENDANT TO PAY THE COSTS WITH THE EXCEPTION OF THOSE ENTAILED BY THE INTERVENTION ;

4 . ORDERS THE INTERVENER TO BEAR HER OWN COSTS .