# C_2009032EN.01001502.xml

| 7.2.2009 | EN | Official Journal of the European Union | C 32/15 |
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7.2.2009

EN

Official Journal of the European Union

C 32/15

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Appeal brought on 11 November 2008 by Claudia Gualtieri against the judgment of the Court of First Instance (Fourth Chamber) of 10 September 2008 in Case T-284/06 Gualtieri v Commission

(Case C-485/08 P)

(2009/C 32/25)

Language of the case: Italian

Parties

Appellant: Claudia Gualtieri (represented by: P. Gualtieri and M. Gualtieri, avvocati)

Appellant:

Other party to the proceedings: Commission of the European Communities

Other party to the proceedings:

Form of order sought

| — | Dismiss all other claims, defences and pleas in law; |
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Dismiss all other claims, defences and pleas in law;

| — | make the appropriate findings and orders; |
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make the appropriate findings and orders;

| — | uphold the pleas in law concerning the various questions dealt with and grant each of the forms of order relating to them, which are repeated in full, in any event, herein; |
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uphold the pleas in law concerning the various questions dealt with and grant each of the forms of order relating to them, which are repeated in full, in any event, herein;

| — | state the principles of law that the relationship between seconded national experts (‘SNE’) and the Commission of the European Communities is one of employment comparable to that of temporary staff and that the corresponding allowances paid to SNE are in the nature of remuneration; |
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state the principles of law that the relationship between seconded national experts (‘SNE’) and the Commission of the European Communities is one of employment comparable to that of temporary staff and that the corresponding allowances paid to SNE are in the nature of remuneration;

| — | declare that, under Community law, there should be equal pay for equal work and that, in any event, the payment to married persons of any remuneration different from that paid to single or co-habiting persons gives rise to discrimination against members of a family as defined by law; |
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declare that, under Community law, there should be equal pay for equal work and that, in any event, the payment to married persons of any remuneration different from that paid to single or co-habiting persons gives rise to discrimination against members of a family as defined by law;

| — | in the alternative, declare that the allowances under Article 17 of the Decision on SNE are payable in full to the appellant from the date of her separation in fact or from the lodgement of the divorce agreement before the Tribunal de Bruxelles; |
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in the alternative, declare that the allowances under Article 17 of the Decision on SNE are payable in full to the appellant from the date of her separation in fact or from the lodgement of the divorce agreement before the Tribunal de Bruxelles;

| — | consequently set aside, in full or in part, the judgment under appeal delivered by the Court of First Instance of the European Communities on 10 September 2008 and served on the following day, and uphold and grant, in full or in part, the claims and forms of order sought at first instance and on appeal, or refer the case back to the Court of First Instance for it to make all necessary decisions on the merits; |
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consequently set aside, in full or in part, the judgment under appeal delivered by the Court of First Instance of the European Communities on 10 September 2008 and served on the following day, and uphold and grant, in full or in part, the claims and forms of order sought at first instance and on appeal, or refer the case back to the Court of First Instance for it to make all necessary decisions on the merits;

| — | order the Commission of the European Communities to pay all the costs of the proceedings both at first instance and on appeal or, in the alternative, those of the proceedings at first instance. |
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order the Commission of the European Communities to pay all the costs of the proceedings both at first instance and on appeal or, in the alternative, those of the proceedings at first instance.

Pleas in law and main arguments

First of all, it is indisputable and clear on the basis of all the provisions governing the legal status of SNE that the link with the administration of origin is suspended throughout the secondment, and that during that period the national expert is fully integrated into the Commission's organisation, for the exclusive benefit of which the expert is required to perform his or her specific duties, with the consequent obvious equiparation (more precisely: identity) of his or her legal position to that of staff (at least temporary staff) who are, in their turn, equiparated to officials as regards conditions of employment and matters of remuneration.

For that reason, and by virtue of the provisions of Article 141(2) EC (under which the concept of ‘pay’ includes any other consideration, whether in cash or in kind, which the worker receives directly or indirectly in respect of his employment, from his employer), which is a rule that takes precedence over Article 17 of the Decision on SNE, and of the Staff Regulations of officials and other servants of the European Union [sic] (third paragraph of Article 62: ‘remuneration shall comprise basic salary, family allowances and other allowances’), the corresponding allowances paid to SNE are in the nature of remuneration, like the equivalent allowances to which officials and other staff are entitled.

any other consideration

directly or indirectly

other allowances

The appellant therefore submitted that there was a general principle enshrined, in Community and other law, that there should be equal pay for equal work, which is apparent from the provisions of Article 14 of the ECHR, from Directive 2000/43/EC (1) of 29 June 2000, from Directive 2000/78/EC (2) of 27 November 2000 and from Articles 3(2), 136, 137(1)(i) and 141(1) EC.

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On the other hand, the interpretation followed by the Court of First Instance leads to two workers who perform the same work being paid unequally if the spouse of one of them is already resident in Brussels on the date of the act of secondment, causing serious discrimination against members of a family as defined by law, in spite of the strong protection which the family receives in national and international legislation, and the tendency of the laws of the various Member States, of the Staff Regulations (Article 1(1) and (2)(c) of Annex VII) and of the case-law of the European Court of Human Rights to equiparate cohabitation to it.

Moreover, the allowances should have been paid in full, at the very least, from the date of cessation of cohabitation, since there is no indication, in the rules, of the alleged necessity to refer to the starting point of the relationship, without taking account of later changes.

As regards the plea of illegality of Article 20 of the Decision on SNE, the appellant submitted, referring to Article 241 EC, that the grounds of fact and law on which that plea was based were set out in fully detailed and easily comprehensible fashion, so that the respondent had raised no objection, and that the reference to the said Article 241 EC was clearly intended to obtain, in any event, a decision on the disputed issues, even on the contested basis that the action was out of time.

In addition, the appellant withdrew the plea in law concerning breach of the principle of legitimate expectations and applied for variation of the decision on the costs of the proceedings, which, under Articles 87 and 88 of the Rules of Procedure of the Court of First Instance, should have been fully recovered. Finally, she asserted that the fact that the Court of First Instance had considered and decided the dispute on the merits was unequivocal recognition of the action's admissibility, which can no longer be put in issue at this stage.

Having stated the principles of law according to which the relationship between SNE and the Commission is one of employment, comparable to that of temporary staff, and that the allowances paid to SNE are remuneration, the appellant therefore claims that the Court should declare that, under Community law, there should be equal pay for equal work and that, in any event, the payment to married persons of any remuneration different from that paid to single or co-habiting persons leads to discrimination against members of a family as defined by law or, in the alternative, that the allowances under Article 17 of the Decision on SNE are payable in full to the appellant from the date of her separation in fact or from the lodgement of the divorce agreement before the Tribunal de Bruxelles.

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(1)  Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22).

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(2)  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).

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