JUDGMENT OF THE COURT (Seventh Chamber)

16 December 2020 ([\*](#Footnote*))

(Civil service – Officials – Surviving spouse – Survivor’s pension – Articles 18 and 20 of Annex VIII to the Staff Regulations – Conditions for eligibility – Duration of the marriage – Plea of illegality – Equal treatment – Principle of non-discrimination on grounds of age – Proportionality – Concept of ‘spouse’)

In Case T‐442/17 RENV,

**RN,** represented by F. Moyse, lawyer,

applicant,

v

**European Commission,** represented by G. Gattinara and B. Mongin, acting as Agents,

defendant,

supported by

**European Parliament,** represented by M. Ecker and E. Taneva, acting as Agents,

intervener,

APPLICATION under Article 270 TFEU for annulment of the Commission’s decision of 24 September 2014 rejecting the applicant’s application for a survivor’s pension,

THE GENERAL COURT (Seventh Chamber),

composed of R. da Silva Passos, President, I. Reine (Rapporteur) and L. Truchot, Judges,

Registrar: E. Coulon,

gives the following

**Judgment**

I.      **Legal background**

1        The first paragraph of Article 79 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) provides:

‘The surviving spouse of an official or of a former official shall be entitled in the manner provided in chapter 4 of Annex VIII [to the Staff Regulations] to a survivor’s pension equal to 60% of the retirement or disability pension which was paid to the deceased, or which, irrespective of length of service or of age, would have been payable to him if he had qualified for it at the time of his death.’

2        Article 18 of Annex VIII to the Staff Regulations states:

‘Where a former official was in receipt of 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 [of this annex], to a survivor’s pension equal to 60% of the retirement pension which he was receiving at the time of his 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.’

3        Article 20 of Annex VIII to the Staff Regulations reads:

‘For the purpose of [Article 18 of Annex VIII to the Staff Regulations], 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.’

4        Finally, the first and third paragraphs of Article 27 of Annex VIII to the Staff Regulations provide:

‘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 divorced spouse’s entitlement [to the survivor’s pension] shall cease if he or she remarries before the former spouse dies. ...’

II.    **Background to the dispute**

5        The applicant, RN, and her husband, an official of the European Commission, lived as a couple from 1985. On 10 June 1987, the couple had a child. On 7 May 1988, they entered into their first marriage. The spouses divorced on 29 April 1996. On 20 August 2012, the applicant, who had not entered into another marriage since her divorce, remarried her ex-husband.

6        Between 11 September 1998 and 22 December 2011, the applicant’s ex-husband was married to a third person.

7        The applicant’s husband entered the Commission’s service in 1991 and was entitled to claim his pension rights on 1 October 2007. He died on 2 August 2014.

8        Following her husband’s death, the applicant, as the surviving spouse of a former official, applied on 3 September 2014 for a survivor’s pension under Chapter 4 of Annex VIII to the Staff Regulations.

9        On 24 September 2014, the Head of the Pensions Unit of the Commission’s Office for the Administration and Payment of Individual Entitlements (PMO) rejected the applicant’s application for a survivor’s pension (‘the contested decision’). That Head of Unit considered, in essence, that, in assessing the applicant’s entitlement to a survivor’s pension in respect of her deceased husband, account had to be taken not of the date of her first marriage, which had been dissolved by a divorce judgment and could therefore no longer have any effect, but of the date of her second marriage, which had been entered into on 20 August 2012. Consequently, having noted that the second marriage had been concluded after her husband had left the service and had lasted only about two years on the date of his death, the Head of the PMO’s Pensions Unit concluded that the conditions laid down in Articles 18 and 20 of Annex VIII to the Staff Regulations had not been met, so the applicant was not entitled to a survivor’s pension.

10      On 22 December 2014, the applicant lodged a complaint against the contested decision. She submitted additional evidence in support of her complaint on 23 December 2014.

11      On 10 April 2015, the Commission’s Appointing Authority rejected the complaint and confirmed the assessment of the Head of the PMO’s Pensions Unit (‘the decision rejecting the complaint’).

III. **Proceedings before the Civil Service Tribunal and before the Court on appeal**

12      By application lodged at the Registry of the Civil Service Tribunal on 17 July 2015, the applicant brought an action seeking annulment of the contested decision and the decision rejecting the complaint and an order that the Commission pay the costs. The action was registered as Case F‐104/15.

13      In support of her action, the applicant raised three pleas, alleging: (i) an error of law, or else a manifest error of assessment, in the application of Articles 18 and 20 of Annex VIII to the Staff Regulations; (ii) illegality, and breach of the principles of equal treatment, non-discrimination on grounds of age and proportionality; and (iii) an error of interpretation of the concept of ‘spouse’ within the meaning of the rules applicable to the survivor’s pension.

14      The Commission contended that the action should be dismissed and asked that the applicant be ordered to pay the costs.

15      By decision of 9 November 2015, the European Parliament was granted leave to intervene in support of the form of order sought by the Commission.

16      By judgment of 20 July 2016, *RN* v *Commission* (F‐104/15, EU:F:2016:163, ‘the initial judgment’), the Civil Service Tribunal annulled the contested decision. It also ordered the Commission to bear its own costs and to pay those incurred by the applicant. The Parliament was ordered to bear its own costs.

17      In the initial judgment, the Civil Service Tribunal found, in essence, that, although the applicant’s particular situation was not expressly covered by Article 20 of Annex VIII to the Staff Regulations, the very wording of that article did not preclude an interpretation requiring the administration to take into account the cumulative duration of the periods of marriage in question, namely those of the first and second marriages to the same official, in order to ascertain whether the condition of five years’ marriage laid down by that provision for the purpose of qualifying for a survivor’s pension had been satisfied.

18      Furthermore, the Civil Service Tribunal held that, if they were to be interpreted as preventing the consideration of the cumulative duration of the applicant’s periods of marriage, Articles 18 and 20 of Annex VIII to the Staff Regulations would introduce a difference in treatment between former officials’ surviving spouses depending on whether their marriages had been concluded before or after the officials left the service. Thus, the Civil Service Tribunal held that, in so far as such an interpretation was not explicitly precluded by the wording of that article, Article 20 of Annex VIII to the Staff Regulations must be interpreted in accordance with the principle of equal treatment, meaning that it required the Appointing Authority, for the purpose of ascertaining whether the condition of the minimum duration of marriage had been met, to total the different periods of marriage, where, as in the present case, the applicant had been married twice to the same official, the first time before the termination of his or her service and the second time after it.

19      Accordingly, the Civil Service Tribunal upheld the first plea, alleging an error of law, and annulled the contested decision.

20      By document lodged at the Court Registry on 29 September 2016, the Commission brought an appeal against the initial judgment, registered as Case T‐695/16 P. The Commission requested the Court to: (i) set aside the initial judgment; (ii) dismiss the action as unfounded, in the event that the Court considered that the state of the proceedings permitted final judgment; and (iii) order the applicant to pay the costs.

21      By judgment of 18 July 2017, *Commission* v *RN* (T‐695/16 P, not published, EU:T:2017:520, ‘the judgment on appeal’), the Court (Appeal Chamber) upheld the first part of the second ground of appeal and the third part of the third ground of appeal, which alleged, in essence, that the Civil Service Tribunal had committed an error of law in the interpretation of Article 20 of Annex VIII to the Staff Regulations.

22      According to the Court, in holding that the contested provision did not preclude an interpretation which required the administration, in a particular case such as the present one, to take into account the cumulative length of periods of marriage for the purpose of verifying compliance with the requirement as to the duration of marriage, the Civil Service Tribunal had interpreted that provision particularly broadly. Such an interpretation ran counter to settled case-law, according to which provisions of EU law which confer entitlement to financial benefits must be interpreted strictly. Moreover, in the Court’s view, that interpretation placed an obligation on the administration which was not apparent from that provision and was contrary to the principle of legal certainty.

23      Furthermore, the Court held that the interpretation of Article 20 of Annex VIII to the Staff Regulations adopted by the Civil Service Tribunal amounted to compelling the administration to consider that a marriage dissolved by a divorce judgment was still capable of having effects on entitlement to a survivor’s pension under that article. The Court noted that such a possibility existed on the basis of the first paragraph of Article 27 of Annex VIII to the Staff Regulations, which, however, was inapplicable in the present case, in accordance with the third paragraph of that provision, by reason of the applicant’s remarriage to her spouse on 20 August 2012.

24      The Court added that there was no need to rule on the applicant’s argument relating to the alleged breach of the principle of proportionality examined by the Civil Service Tribunal, in so far as that argument was based on the interpretation of Article 20 of Annex VIII to the Staff Regulations adopted in the initial judgment, which was vitiated by an error of law.

25      The Court therefore annulled the initial judgment. Furthermore, observing that the Civil Service Tribunal had not considered the applicant’s third plea, it held that the state of the proceedings did not permit final judgment and referred the case back to a chamber of the Court other than the one which had ruled on the appeal and reserved the costs.

26      The present action was thus registered as Case T‐442/17 RENV.

IV.    **Procedure and forms of order sought by the parties after referral**

27      Following the judgment on appeal, the parties were invited to submit their written observations on the remainder of the proceedings in accordance with Article 217(1) of the Rules of Procedure of the Court.

28      By document lodged at the Court Registry on 6 September 2017, the applicant waived her right to lodge additional written observations. By document lodged on the same day, the Parliament also waived its right to submit written observations. The Commission lodged its written observations late, on 4 October 2017. Following the explanations provided by the Commission, the President of the Fourth Chamber of the Court decided to enter those observations in the file of the present case.

29      On 19 December 2017, the Court requested the parties, by way of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, to state their views on whether the applicant maintained her interest in bringing proceedings in the present case.

30      By document lodged at the Court Registry on 4 January 2018, the Parliament informed the Court that it did not wish to submit answers to the questions put on 19 December 2017. The applicant and the Commission responded to the measures of organisation of procedure on 5 January 2018 and 8 January 2018 respectively. They submitted that the applicant maintained her interest in bringing proceedings.

31      On 20 November 2018, the Court sent new questions to the parties by way of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure. The parties replied within the prescribed period.

32      By decision of 11 March 2019, the President of the Fourth Chamber of the Court ordered that the present case be stayed pending delivery of the final judgment in Case C‐460/18 P, *HK* v *Commission*.

33      Following a change in the composition of the chambers of the Court, the Judge-Rapporteur was assigned to the Seventh Chamber, to which the present case was accordingly allocated.

34      By letters of 23 December 2019, the Registry of the Court informed the parties that, following delivery of the judgment of 19 December 2019, *HK* v *Commission* (C‐460/18 P, EU:C:2019:1119), the proceedings had been resumed and invited them to submit their observations on the conclusions to be drawn from that judgment for the present case. The parties complied with that request within the prescribed period.

35      Having regard to the fact that no request for a hearing was submitted by the main parties, the Court, considering that it was sufficiently informed by the documents in the file, decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure.

36      The applicant claims that the Court should:

–        annul the contested decision;

–        annul the decision rejecting the complaint;

–        order the Commission to pay the costs.

37      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

38      The Parliament contends that the Court should dismiss the action.

V.      **Law**

A.      **Subject matter of the dispute and its scope after referral**

39      In the first place, it should be borne in mind that, according to settled case-law, a claim for annulment formally directed against the decision rejecting a complaint has the effect of bringing before the Court the act against which the complaint was submitted, where that claim, as such, lacks any independent content (see judgments of 6 April 2006, *Camós Grau* v *Commission*, T‐309/03, EU:T:2006:110, paragraph 43, and of 13 July 2018, *Curto* v *Parliament*, T‐275/17, EU:T:2018:479, paragraph 63 and the case-law cited).

40      In the present case, given that the decision rejecting the complaint merely confirms the contested decision and specifies grounds in support thereof, it must be considered that the claim for annulment of the decision rejecting the complaint is devoid of independent content and that there is therefore no need to rule specifically on it. However, when examining the legality of the contested decision, the statement of reasons for the decision rejecting the complaint should be taken into account, as it is deemed to cover the statement of reasons in the contested decision (see, to that effect, judgment of 30 April 2019, *Wattiau* v *Parliament*, T‐737/17, EU:T:2019:273, paragraph 43 and the case-law cited).

41      In the second place, as regards the scope of the dispute after referral, it must be recalled that, according to the case-law, following the annulment of a decision and the referral of the case to the Court, the latter is seised of the case by the judgment on appeal and must rule again on all the pleas in law in support of annulment raised by the applicant, apart from those elements of the operative part not set aside by the judgment on appeal and the considerations on which those elements are essentially founded, as those elements have acquired the authority of *res judicata* (see, by analogy, judgment of 14 September 2011, *Marcuccio* v *Commission*, T‐236/02, EU:T:2011:465, paragraph 83).

42      In the present case, the first point of the operative part of the judgment on appeal annuls the initial judgment, having upheld the first part of the second ground of appeal and the third part of the third ground of appeal. In those pleas, the Commission argued, in essence, that the Civil Service Tribunal had erred in law in interpreting Article 20 of Annex VIII to the Staff Regulations to mean that the administration was required to take into account the cumulative length of the applicant’s two periods of marriage, and that it had adopted an interpretation contrary to the clear wording of that provision. By contrast, the judgment on appeal did not rule on the other parts of the first and second grounds of appeal or on the third ground of appeal.

43      It is therefore for the Court to rule again on all the pleas for annulment of the applicant, in the light of the points of law decided by the judgment on appeal, which are binding on the Court in the context of the referral.

44      In that regard, the Commission submits that the judgment on appeal also dealt with the applicant’s second plea, alleging breach of the principles of equal treatment, non-discrimination on grounds of age and proportionality.

45      It is true that the Court found, in paragraph 63 of the judgment on appeal, that the Civil Service Tribunal had examined the applicant’s arguments in respect of the principle of non-discrimination for the purposes of interpreting Article 20 of Annex VIII to the Staff Regulations. However, the Court stated that the Civil Service Tribunal had carried out that examination only after first having found that an interpretation whereby the cumulative length of the applicant’s periods of marriage was taken into account was not precluded by the provision in question. The Court thus held that, in so far as that prior analysis was vitiated by an error of law and the initial judgment had to be set aside for that reason, there was no need to rule on the applicant’s argument relating to the alleged breach of the principle of proportionality.

46      Thus, in the judgment on appeal, the Court did not rule on the parts of the second plea alleging breach of the principles of equal treatment, non-discrimination on grounds of age and proportionality.

B.      **Merits**

1.      ***First plea, alleging an error of law in the interpretation of Articles 18 and 20 of Annex VIII to the Staff Regulations***

47      As regards the applicant’s first plea in support of her action, alleging an error of law in the interpretation of Article 18 of Annex VIII to the Staff Regulations, as the Civil Service Tribunal ruled, without the judgment on appeal finding fault on that point, the applicant cannot validly rely on her status as a surviving spouse to claim, on the basis of that provision, a survivor’s pension in respect of her first marriage contracted on 7 May 1988 and dissolved on 29 April 1996 (see, to that effect, judgment on appeal, paragraph 11, and initial judgment, paragraphs 28 and 30).

48      As regards an alleged error of law in the interpretation of Article 20 of Annex VIII to the Staff Regulations, as is apparent from paragraph 42 above, in the judgment on appeal, the Court held that Article 20 of Annex VIII to the Staff Regulations could not be interpreted as meaning that the administration was required to take into account the cumulative length of the applicant’s two periods of marriage (see, to that effect, judgment on appeal, paragraphs 49 and 57).

49      It must therefore be held that, contrary to what the applicant claims in her first plea, the Commission did not err in interpreting Article 20 of Annex VIII to the Staff Regulations when it considered that only the duration of the applicant’s second marriage to her deceased spouse should be taken into account, after the termination of his service, for the purpose of verifying whether the condition of a minimum of five years’ marriage for entitlement to a survivor’s pension, laid down in Article 20 of Annex VIII to the Staff Regulations, was met.

50      The first plea is therefore unfounded.

2.      ***The second plea, alleging that Article 20 of Annex VIII to the Staff Regulations is unlawful on the ground of breach of the principles of equal treatment, non-discrimination on grounds of age and proportionality***

51      The applicant claims that Article 20 of Annex VIII to the Staff Regulations, on the basis of which the contested decision was adopted, is unlawful. She submits, in essence, that that article breaches the principles of equal treatment and non-discrimination on the grounds of age as safeguarded in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 1d of the Staff Regulations, among other provisions.

52      The applicant submits that Article 20 of Annex VIII to the Staff Regulations requires older couples to have been married for at least five years for the surviving spouse of a retired official to be entitled to a survivor’s pension, whereas in the case of couples who were younger at the time of their marriage, contracted when the spouse who was an official was still working, the surviving spouse is entitled to a survivor’s pension after a single year of marriage on the basis of Article 18 of that annex. However, such couples are in a comparable family situation, irrespective of when they choose to marry, that is to say, before or after the official leaves the service. In that regard, the applicant submits that the length of contributions to the EU pension scheme does not enable the difference in treatment at issue to be justified.

53      In addition, the applicant claims that the difference in treatment cannot be objectively and reasonably justified by the aim of counteracting marriages of convenience and fraud. The difference in treatment between couples, based on when the marriage is contracted, goes beyond the limits of what is appropriate and necessary to attain that objective, since no account is taken of the surviving spouse’s individual situation. The applicant emphasises in particular that there is no way to rebut the presumption of fraud. She adds that the objective of maintaining the financial balance of the EU pension scheme cannot justify the condition of five years’ marriage either, since the Commission has not shown that cases such as that in the present case are liable to undermine that balance. In any event, the Court does not accept justifications of a purely budgetary nature.

54      The Commission disputes the admissibility of the plea of illegality in respect of Article 20 of Annex VIII to the Staff Regulations on the ground that neither the issue of discrimination on grounds of age nor that of breach of the principle of proportionality was raised in the complaint. The applicant has therefore failed to comply with the rule that the complaint and the application must correspond.

55      In the alternative, the Commission submits that the plea of illegality in question is unfounded. It takes the view that the difference in treatment at issue is not based on an official’s age, but on whether or not he or she has retired. Moreover, an official and a former official, and their respective spouses, are not in comparable situations, since, in the first case, that official is expected to see his or her career progress and to continue to work and make contributions to his or her pension, whereas that no longer applies in the second case. That difference in situations was recognised in the judgment of 17 June 1993, *Arauxo-Dumay* v *Commission* (T‐65/92, EU:T:1993:47).

56      In any event, the difference in treatment at issue is justified in so far as the survivor’s pension is acquired indirectly as a result of contributions paid into the pension scheme by the official before he or she retires. According to the Commission, the Staff Regulations require a pre-existing financial link between the institution and the surviving spouse who claims entitlement to a survivor’s pension, which is created where, by the marriage, the spouse of the deceased official has indirectly borne the burden of the contributions deducted from his or her salary during his or her periods of employment.

57      Moreover, the difference in treatment is justified in the light of the very objective of the survivor’s pension, which is to ensure the material welfare of an official’s surviving spouse. There is a greater risk of that welfare being compromised in the case of the surviving spouse of an official who was taken unawares by the latter’s death while he or she was still working than in the case of the surviving spouse of a former official, who had time to take the necessary steps to ensure such financial security.

58      Furthermore, the condition of a minimum duration of five years’ marriage placed on the surviving spouse where the marriage was contracted after the official’s termination of service is intended to discourage fraud and maintain the financial balance of the pension scheme. According to the Commission, the risk of fraud is higher when a marriage is concluded after the termination of service owing to the greater predictability of death. The condition of five years’ marriage is thus intended to prevent marriages *in extremis* with the primary aim of conferring entitlement to a survivor’s pension on a former official’s surviving spouse.

59      The Parliament adds that the condition of a minimum duration of five years’ marriage makes it possible to prevent a younger person from abusing the weakness of an older official in receipt of a pension in the expectation of rapid entitlement to a survivor’s pension for life.

(a)    ***Admissibility of the plea of illegality in respect of Article 20 of Annex VIII to the Staff Regulations***

60      Under the case-law, as a rule, the broad logic of the incidental legal remedy justifies a plea of illegality being declared admissible where it is raised for the first time before the Courts of the European Union, by derogation from the rule of correspondence between the application and the complaint (see, to that effect, judgment of 27 October 2016, *ECB* v *Cerafogli*, T‐787/14 P, EU:T:2016:633, paragraph 47). Therefore, the mere fact that the plea of illegality of Article 20 of Annex VIII to the Staff Regulations was raised for the first time at the application stage does not mean that the plea is inadmissible.

61      However, the possibility of invoking a plea of illegality in connection with a dispute between a staff member and an institution is subject to several conditions of admissibility. With regard to an incidental legal remedy, that requires that (i) an independent action has been brought, (ii) it is brought against a decision adversely affecting the official, (iii) that independent action is admissible, (iv) the staff member was not able to seek annulment of the act of general application that served as the basis for the decision adversely affecting him or her, and (v) there is a sufficient connection between the act of general application and the contested individual decision (judgment of 27 October 2016, *ECB* v *Cerafogli*, T‐787/14 P, EU:T:2016:633, paragraph 67).

62      In the present case, it must be observed that the plea of illegality in respect of Article 20 of Annex VIII to the Staff Regulations was raised by the applicant in an admissible main action. That action seeks annulment of the contested decision, which adversely affects the applicant in so far as it refuses to grant her a survivor’s pension. Moreover, the applicant, as an individual, was not in a position directly to seek annulment of Article 20 of Annex VIII to the Staff Regulations. Finally, there is plainly a sufficient connection between Article 20 of Annex VIII to the Staff Regulations and the contested decision, since that decision is based on that provision.

63      In the light of the foregoing, it must be held that the plea of illegality raised by the applicant in respect of Article 20 of Annex VIII to the Staff Regulations is admissible.

(b)    ***The merits of the plea of illegality in respect of Article 20 of Annex VIII to the Staff Regulations***

64      It should be borne in mind 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 particular expression. That principle requires that comparable situations should not be treated differently and that different situations should not be treated equally, unless such treatment is objectively justified (see judgment of 5 July 2017, *Fries*, C‐190/16, EU:C:2017:513, paragraphs 29 and 30 and the case-law cited).

65      According to the case-law, for the EU legislature to be accused of breaching the principle of equal treatment, it must have treated comparable situations differently, thereby subjecting some persons to disadvantages as opposed to others (see, to that effect, judgment of 14 December 2018, *FV* v *Council*, T‐750/16, EU:T:2018:972, paragraph 89 and the case-law cited).

66      As regards the requirement that situations must be comparable, that requirement must be assessed with regard to all the elements which characterise them. Those elements must, in particular, be determined and assessed in the light of the subject matter and purpose of the EU act which makes the distinction in question. The principles and objectives of the field to which the act relates must also be taken into account (see judgment of 19 December 2019, *HK* v *Commission*, C‐460/18 P, EU:C:2019:1119, paragraph 67 and the case-law cited).

67      Moreover, in determining whether the treatment by the Staff Regulations of the situations to be compared breaches the principle of equal treatment, regard must be had to an analysis focusing on all the rules of law governing the positions of each of the situations to be compared, taking into account in particular the purpose of the contested provision (see, by analogy, judgment of 9 March 2017, *Milkova*, C‐406/15, EU:C:2017:198, paragraph 58).

68      For a difference in treatment to be compatible with the general principles of equal treatment and non-discrimination, that difference must be justified on the basis of an objective and reasonable criterion and must be proportionate to the aim pursued by that difference (see, to that effect, judgment of 15 February 2005, *Pyres* v *Commission*, T‐256/01, EU:T:2005:45, paragraph 61). In that regard, Article 52(1) of the Charter provides that 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.

69      According to the case-law, the principle of proportionality requires that measures adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see judgment of 26 February 2016, *Bodson and Others* v *EIB*, T‐240/14 P, EU:T:2016:104, paragraph 116 and the case-law cited).

70      It should nevertheless be added that, in order to combat abuse or even fraud, the EU legislature has a margin of discretion in establishing entitlement to a survivor’s pension (see judgment of 19 December 2019, *HK* v *Commission*, C‐460/18 P, EU:C:2019:1119, paragraph 89). The recognition of such discretion on the part of the legislature implies the need to verify whether it does not appear unreasonable for the EU legislature to consider that the difference in treatment may be appropriate and necessary in order to achieve the objective pursued (see, to that effect and by analogy, judgment of 14 December 2018, *FV* v *Council*, T‐750/16, EU:T:2018:972, paragraph 114 and the case-law cited).

71      It is having regard to all those principles that it must be determined whether the condition of the minimum duration of marriage provided for in Article 20 of Annex VIII to the Staff Regulations runs counter to the general principles of equal treatment and non-discrimination on grounds of age in the light of the objectives pursued by that condition. Therefore, it must be established whether that condition is provided for by law and respects the essence of the right to equal treatment and the prohibition of discrimination, whether the situations referred to in Articles 18 and 20 of Annex VIII to the Staff Regulations are comparable and, if so, whether the condition as to a minimum duration of five years of marriage provided for in Article 20 of Annex VIII to the Staff Regulations pursues an objective of general interest. In that regard, it must be ascertained whether it does not appear unreasonable for the EU legislature to take the view that the difference in treatment may be appropriate and necessary to achieve such an objective.

(1)    *Existence of a difference in treatment*

72      It must be recalled that, in its judgment of 19 December 2019, *HK* v *Commission* (C‐460/18 P, EU:C:2019:1119, paragraph 68), the Court of Justice found that the purpose of the survivor’s pension was to grant the surviving spouse a replacement income intended to partially compensate for the loss of the deceased spouse’s income. According to the Court, that entitlement is not subject to conditions of resources and/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 (see, to that effect, judgment of 19 December 2019, *HK* v *Commission*, C‐460/18 P, EU:C:2019:1119, paragraph 69).

73      The grant of the survivor’s pension, in contrast, depends solely on the legal nature of the ties between the person concerned and the deceased official (see, to that effect, judgment of 19 December 2019, *HK* v *Commission*, C‐460/18 P, EU:C:2019:1119, paragraph 70). The condition of the minimum duration of the marriage – in this case one year under Article 18 of Annex VIII to the Staff Regulations and five years under Article 20 of Annex VIII to the Staff Regulations – must be added to that condition.

74      That being said, it must be observed that Articles 18 and 20 of Annex VIII to the Staff Regulations treat the surviving spouses of former officials differently depending on whether the marriage was contracted before or after the official’s termination of service. As the General Court also stated in paragraph 47 of the judgment on appeal, the date of marriage is therefore the criterion used by the legislature to distinguish between the two situations.

75      However, the legal nature of the ties between the surviving spouse and the deceased official is identical, whether the marriage was concluded before or after the termination of that official’s service. That legal nature does not differ according to whether or not officials were employed and according to the amount of contributions to the EU pension scheme which have been paid or which are still due.

76      In addition, Articles 18 and 20 of Annex VIII to the Staff Regulations both confer the right to a survivor’s pension on the surviving spouse of a former official who is no longer working and therefore no longer contributing to the EU pension scheme at the time of his or her death.

77      Thus, the Commission cannot rely on the judgment of 17 June 1993, *Arauxo-Dumay* v *Commission* (T‐65/92, EU:T:1993:47), to show that the situations referred to in Articles 18 and 20 of Annex VIII to the Staff Regulations are different. As paragraph 33 of that judgment shows, the Court compared, first, the situation of the surviving spouse of a former official who died after his or her service was terminated and after he or she had received the benefits and advantages provided for by a regulation governing that situation, and, secondly, the situation of the surviving spouse of an official who died while he or she was still working, as provided for by Article 17 of Annex VIII to the Staff Regulations.

78      It follows that the Commission’s arguments that the difference in treatment at issue is linked to the official’s career progression and contributions to the pension scheme must be dismissed.

79      Furthermore, the purpose of the survivor’s pension, the rules governing which are laid down in Articles 18 and 20 of Annex VIII to the Staff Regulations, is to compensate the surviving spouse for the loss of income resulting from the former official’s death. The aim is therefore to grant a replacement income to the surviving spouse (see paragraph 72 above). Thus, the fact that the deceased official married before or after his or her termination of service does not substantially alter the surviving spouse’s situation with regard to his or her property rights. Moreover, as is clear from paragraph 72 above, the Court of Justice held that the extent of the surviving spouse’s financial needs and his or her possible financial dependence on the deceased official or former official was not a criterion to be taken into account.

80      Thus, it must be found that the situation of the surviving spouse of a former official who married before that official left the service is no different from that of the surviving spouse of a former official who married after the termination of service for the purposes of granting a survivor’s pension under Article 18 or Article 20 of Annex VIII to the Staff Regulations.

81      It follows from all the above that there is a difference in treatment of comparable situations depending on the date on which the marriage was concluded, since that is the only factor determining the application of the conditions as to different minimum durations of marriage under Articles 18 and 20 of Annex VIII to the Staff Regulations.

82      That difference in treatment results in a disadvantage, within the meaning of the case-law cited in paragraph 65 above, for the surviving spouse of a former official who married after that official’s termination of service, to whom the rules under Article 20 of Annex VIII to the Staff Regulations apply, compared with the surviving spouse of a former official who married before that termination of service and who fall under Article 18 of that annex.

83      In that connection, it must also be observed that the condition as to a minimum duration of five years’ marriage laid down in Article 20 of Annex VIII to the Staff Regulations places a surviving spouse who married a former official at a particular disadvantage because, in the vast majority of cases, an official’s termination of service corresponds to his or her retirement, the age of which is fixed by the Staff Regulations, meaning that a former official is older than a serving official. Thus, former officials to whom Article 20 of Annex VIII to the Staff Regulations applies have generally married at a higher age than former officials to whom Article 18 of Annex VIII to the Staff Regulations applies, who have married before the termination of their service. Consequently, surviving spouses who have married former officials generally have more difficulty in meeting the condition as to the minimum duration of marriage laid down in Article 20, which is five years, than surviving spouses who have married officials before the termination of service and for whom Article 18 of Annex VIII to the Staff Regulations specifies a minimum duration of marriage of only one year.

84      Thus, owing to the minimum duration of five years of marriage which it requires, the treatment in Article 20 of Annex VIII to the Staff Regulations for surviving spouses who married former officials after the latter’s termination of service is less favourable than the treatment provided for in Article 18 of that annex for surviving spouses who married while the officials were still working and generally younger than former officials.

85      There is therefore also a difference in the treatment of comparable situations based indirectly on the age of former officials on the date on which they married.

(2)    *Compliance with the criteria set out in Article 52(1) of the Charter and justification of the difference in treatment*

86      As a preliminary point, it must be observed that the difference in treatment established by Article 20 of Annex VIII to the Staff Regulations is provided for by the ‘law’ within the meaning of Article 52(1) of the Charter, in so far as that provision originates in the Staff Regulations.

87      Furthermore, in order to justify the difference in treatment at issue, first, the Commission argues that there is a greater risk that the surviving spouse’s welfare will be compromised in the case of an official’s surviving spouse who was taken unawares by that official’s death while he or she was still working than in the case of a former official’s surviving spouse, who had the time to take the necessary steps to ensure such financial security.

88      On that point, it is sufficient to observe that Articles 18 and 20 of Annex VIII to the Staff Regulations both refer to the payment of a survivor’s pension to the surviving spouse of a former official in receipt of a retirement pension. Thus, in both cases the surviving spouse applies for a survivor’s pension when his or her spouse has already left the service. The Commission’s argument that the surviving spouse would be more taken unawares by the death of a serving official than by the death of a retired former official is therefore irrelevant.

89      Secondly, the Commission, supported by the Parliament, submits that the condition as to a minimum duration of five years of marriage provided for in Article 20 of Annex VIII to the Staff Regulations is intended to prevent fraud and to maintain the financial balance of the EU’s pension scheme. It is appropriate to examine each of those two objectives in turn in the light of the case-law referred to in paragraph 70 above.

(i)    *The objective of preventing fraud*

90      As a preliminary point, it should be borne in mind that, according to the Court of Justice, the principle of the prohibition of fraud and abuse of rights is a general principle of EU law which individuals must comply with (judgment of 19 December 2019, *HK* v *Commission*, C‐460/18 P, EU:C:2019:1119, paragraphs 88 and 89). Combating fraud is therefore an objective of general interest.

91      In that regard, it follows, in essence, from the judgment of 19 December 2019, *HK* v *Commission* (C‐460/18 P EU:C:2019:1119, paragraphs 89 and 90), that a condition that the marriage must have lasted for at least one year, such as that laid down in Article 17 of Annex VIII to the Staff Regulations, is intended to ensure the reality and stability of the relationship between the persons concerned and does not, as such, appear manifestly inadequate in relation to the objective of combating fraud.

92      Thus, it does not seem unreasonable to make the entitlement of the surviving spouse of an official or former official to a survivor’s pension conditional on the marriage having lasted for a minimum period of time. Such a condition ensures that the marriage is not based solely on considerations unrelated to a plan to share a life together, such as purely financial considerations or considerations relating to obtaining a right of residence.

93      However, it must be observed that Article 20 of Annex VIII to the Staff Regulations, which applies where the marriage was concluded after the official left the service, imposes a requirement for a minimum duration of marriage five times longer than that laid down in Article 18 of Annex VIII to the Staff Regulations, which applies where the marriage was concluded before the official left the service.

94      Thus, it is still necessary to determine whether the requirement as to the length of the marriage laid down by Article 20 of Annex VIII to the Staff Regulations, which applies without any possible exception, manifestly goes beyond what is necessary to ensure the absence of fraud.

95      In that regard, first of all, it must be observed that the documents before the General Court do not contain any convincing explanation or evidence to support the premiss, put forward by the Commission and the Parliament, that the likelihood of entering into a fraudulent marriage increases after an official’s termination of service, so that, for example, an official who marries the day before he or she leaves the service is less likely to enter into a fraudulent marriage than an official who marries the day after his or her departure. Nor have the Commission and the Parliament explained why an official who has left the service is less able to protect himself or herself against the fraudulent intentions of a person wishing to marry him or her than a serving official, with the result that it is necessary to require a minimum length of marriage five times longer where the marriage is contracted after the official’s termination of service.

96      Next, according to settled case-law, a general presumption of fraud is not sufficient to justify a measure which compromises the objectives of the FEU Treaty (see judgment of 19 December 2012, *Commission* v *Belgium*, C‐577/10, EU:C:2012:814, paragraph 53 and the case-law cited).

97      Moreover, it must be observed that the duration of the marriage is not necessarily the only element representative of its sincerity (see, by analogy, judgments of 20 June 2013, *Giersch and Others*, C‐20/12, EU:C:2013:411, paragraphs 72 and 73 and the case-law cited, and of 18 July 2013, *Prinz and Seeberger*, C‐523/11 and C‐585/11, EU:C:2013:524, paragraphs 36 and 37 and the case-law cited).

98      However, Article 20 of Annex VIII to the Staff Regulations uses the sole condition of a minimum duration of five years of marriage, without providing for any exception, so that it is impossible for a surviving spouse who married after the former official left the service to argue that the marriage was concluded in good faith, whatever objective evidence he or she may submit in that regard. That provision thereby establishes a general and irrebuttable presumption of fraud for marriages lasting less than five years.

99      By contrast, the second paragraph of Article 18 of Annex VIII to the Staff Regulations sets out objective circumstances in which no minimum duration of marriage is required, namely the birth of children of a marriage contracted by an official before he or she left the service, provided that the surviving spouse maintains or has maintained those children. The legislature therefore considered, in the case of a marriage concluded before the former official left the service, that there were objective circumstances which allowed the presumption of fraud to be reversed.

100    The objective circumstances referred to in the previous paragraph constitute clear criteria for the effective management of survivor’s pensions, in compliance with the principle of legal certainty.

101    In the present case, although the applicant’s second marriage was concluded after her spouse left the service, there are several objective factors capable of showing that the marriage was not fraudulent. The applicant and her spouse lived as a couple from 1985. On 10 June 1987, they had a child. On 7 May 1988, they entered into their first marriage. Although they were divorced on 29 April 1996, they resumed living together in 2002 and remarried on 20 August 2012. Moreover, neither the Commission nor the Parliament has argued that the case in question was fraudulent.

102    Furthermore, the applicant did not remarry a third person after her divorce. Thus, as the Court observed in paragraph 56 of the judgment on appeal, if the applicant had not remarried her former husband, she would have been entitled to a survivor’s pension in her capacity as a divorced spouse, under Article 27 of Annex VIII to the Staff Regulations, an entitlement that she lost owing to her remarriage.

103    Moreover, in view of the generally higher age of former officials covered by Article 20 of Annex VIII to the Staff Regulations, the requirement of a minimum of five years’ marriage is particularly difficult to meet for surviving spouses who have married such former officials. It is thus likely to prevent a significant number of such spouses from receiving a survivor’s pension, even though they could have established the absence of fraud.

104    Finally, it must be recalled that the legislature has not always ruled out an individual assessment in the Staff Regulations. Article 1(2)(d) of Annex VII to the Staff Regulations provides that an official who does not meet the conditions for the household allowance may, ‘by special reasoned decision of the appointing authority based on supporting documents’, be granted the allowance if he or she actually assumes family responsibilities.

105    It follows from all of the foregoing that it is unreasonable to consider that the requirement of a minimum duration of five years of marriage laid down by Article 20 of Annex VIII to the Staff Regulations, which is five times longer than that laid down by Article 18 of Annex VIII to the Staff Regulations and which does not permit any exceptions making it possible to establish the absence of fraud, irrespective of the objective evidence adduced, may be necessary to attain the objective of combating fraud.

(ii) *The objective of maintaining the financial balance of the EU pension scheme*

106    At the outset, it must be observed that it has been held that the objective of maintaining the financial balance of the EU’s pension scheme can be regarded as legitimate (see, to that effect, judgment of 15 February 2005, *Pyres* v *Commission*, T‐256/01, EU:T:2005:45, paragraphs 64 and 65). However, it should be added that such an objective, which is based on budgetary considerations, cannot in itself warrant a derogation from the general principle of equal treatment (see, to that effect and by analogy, judgment of 21 July 2011, *Fuchs and Köhler*, C‐159/10 and C‐160/10, EU:C:2011:508, paragraph 74).

107    However, as established in paragraph 105 above, the condition as to the minimum duration of marriage laid down in Article 20 of Annex VIII to the Staff Regulations cannot be justified by the objective of combating fraud. Consequently, the difference in treatment introduced by that provision cannot be justified solely on the grounds of maintaining the financial balance of the EU’s pension scheme.

108    In any event, it should be noted that the Commission and the Parliament have not adduced any prima facie evidence to show that the financial balance of the EU’s pension scheme would be jeopardised if the surviving spouses of former officials who married after the latter’s termination of service could receive a survivor’s pension without having been married for at least five years. Nor has it been shown that that financial balance could not be achieved if Article 20 of Annex VIII to the Staff Regulations set out exceptions to the condition that the marriage must have lasted at least five years.

109    Furthermore, as regards the Commission’s argument that the surviving spouse of a former official who married after the latter’s termination of service did not contribute to the EU pension scheme, it must be pointed out that it is not apparent from the wording or context of Article 20 of Annex VIII to the Staff Regulations that the survivor’s pension is conditional on a sufficiently strong financial link between the surviving spouse and the institution in whose service the official or former official was employed. On the contrary, it is sufficient for a marriage entered into before an official’s termination of service to have lasted one year for the surviving spouse to be entitled to such a pension, even if the death occurs, for example, at the beginning of the official’s career (pursuant to Article 17 of Annex VIII to the Staff Regulations) or if the marriage was contracted a few days before the official left the service (pursuant to Article 18 of Annex VIII to the Staff Regulations).

110    Consequently, Article 20 of Annex VIII to the Staff Regulations introduces a difference in treatment between surviving spouses of former officials which is not justified either by the objective of combating fraud, since it is not necessary to achieving that objective, or by the objective of maintaining the financial balance of the EU pension scheme.

111    Furthermore, in establishing a general, irrebuttable presumption of fraud against couples whose marriage has lasted less than five years, even though a general presumption of fraud cannot suffice to justify a measure which undermines the objectives of the FEU Treaty, Article 20 of Annex VIII to the Staff Regulations does not respect the essence of the right to equal treatment and the prohibition of any discrimination.

112    Article 20 of Annex VIII to the Staff Regulations therefore breaches the general principle of equal treatment as well as the principle of non-discrimination on grounds of age. The applicant’s plea of illegality must therefore be upheld.

113    Consequently, the contested decision, adopted pursuant to Article 20 of Annex VIII to the Staff Regulations, has no legal basis and should therefore be annulled.

3.      ***The third plea, alleging misinterpretation of the concept of ‘spouse’ within the meaning of the rules applicable to the survivor’s pension***

114    The applicant submits that the concept of a couple cannot be reduced solely to relationships based on marriage given the general social developments that have taken place in that area over the last few years. Those developments are corroborated by the second subparagraph of Article 1d(1) of the Staff Regulations, which treats non-marital relationships as equivalent to marriage, and by the widespread recognition of registered partnerships within the European Union. Consequently, the duration of the applicant’s cohabitation with her deceased spouse, as attested by a number of documents, cannot be ignored.

115    The Commission, supported by the Parliament, disputes the applicant’s submissions.

116    It must be recalled that Article 20 of Annex VIII to the Staff Regulations limits entitlement to a survivor’s pension to the surviving ‘spouse’. That implies that the recipient of the survivor’s pension must have been connected to the deceased official in a civil relationship which has given rise to a set of rights and obligations between them (see, to that effect, judgment of 19 December 2019, *HK* v *Commission*, C‐460/18 P, EU:C:2019:1119, paragraph 71).

117    In that regard, the Court of Justice has pointed out that although de facto unions and legally recognised unions, such as marriage, may display similarities in certain respects, those similarities do not necessarily mean that those two types of union must be treated in the same way. Marriage is characterised by rigorous formalism and creates reciprocal rights and obligations between the spouses, of a high degree, including the duties of assistance and solidarity (judgment of 19 December 2019, *HK* v *Commission*, C‐460/18 P, EU:C:2019:1119, paragraphs 72 and 73).

118    In addition, 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. In that regard, it follows from the second subparagraph of Article 1d(1) of the Staff Regulations that, in order for a registered non-marital partnership to be treated as marriage within the meaning of the Staff Regulations, an official registered as a stable non-marital partner must satisfy the legal conditions laid down in that article (judgment of 19 December 2019, *HK* v *Commission*, C‐460/18 P, EU:C:2019:1119, paragraphs 74 and 76).

119    In contrast, in the Court’s view, a de facto union, such as cohabitation, does not satisfy those characteristics in so far as a de facto union is not, in principle, the subject of a statute laid down by law (see judgment of 19 December 2019, *HK* v *Commission*, C‐460/18 P, EU:C:2019:1119, paragraph 78).

120    In the present case, the applicant submits that she had cohabited with the deceased former official since 2002 before the couple remarried in 2012. However, the applicant does not claim the couple entered into a registered partnership before remarrying. Moreover, it is common ground between the parties that the deceased former official was married to a third person between 11 September 1998 and 22 December 2011.

121    Consequently, the applicant cannot take advantage of the second subparagraph of Article 1d(1) of the Staff Regulations.

122    Furthermore, it must be observed that, while the General Court takes account of the social context in which the present action was brought, it is not for it to extend the scope of the Staff Regulations in respect of the term ‘spouse’. It is for the legislature to make such an amendment (see, to that effect, judgment of 17 June 1993, *Arauxo-Dumay* v *Commission*, T‐65/92, EU:T:1993:47, paragraphs 30 and 31).

123    Moreover, as the Commission observes, the legislature has taken account of social developments when reforming the Staff Regulations. In particular, by Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (OJ 2004 L 124, p. 1), the legislature amended the second subparagraph of Article 1d(1) of the Staff Regulations so as to cover cases of non-marital partnerships.

124    Consequently, the third plea must be dismissed as unfounded.

125    It follows from all of the foregoing that the first and third pleas must be dismissed as unfounded and the contested decision must be annulled on the basis of the second plea.

**Costs**

126    Pursuant to Article 133 of the Rules of Procedure, a decision as to costs is to be given in the judgment which closes the proceedings. Pursuant to Article 219 of those rules, applicable by analogy to the present proceedings after referral, and in so far as, in the judgment on appeal, the Court reserved the costs, it is for the Court to rule on the costs relating to, first, the proceedings under Article 270 TFEU before the Civil Service Tribunal and the Court and, secondly, the appeal proceedings before the Court.

127    In that regard, under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

128    It is apparent from the grounds set out above that the Commission has been unsuccessful. Consequently, it must be ordered to pay the costs relating to, first, the initial proceedings before the Civil Service Tribunal in Case F‐104/15 and, secondly, the present proceedings after referral.

129    As regards the appeal proceedings in Case T‐695/16 P, pursuant to Article 211(3) of the Rules of Procedure, the Commission must bear its own costs. Furthermore, since the Court upheld the Commission’s appeal, the applicant must be ordered to pay the costs which she incurred in those proceedings.

130    Finally, under Article 138(1) of the Rules of Procedure, institutions which have intervened in the proceedings are to bear their own costs. The Parliament must therefore be ordered to bear its own costs relating to Case F‐104/15 and the present proceedings after referral. Furthermore, since the Parliament did not lodge a written submission in the appeal proceedings and since the Court gave judgment in those proceedings without an oral procedure, the Parliament did not participate in the appeal proceedings within the meaning of Article 211(5) of the Rules of Procedure and therefore did not incur costs in those proceedings.

On those grounds,

THE GENERAL COURT (Seventh Chamber)

hereby:

1.      **Annuls the decision of the European Commission of 24 September 2014 rejecting RN’s request for a survivor’s pension;**

2.      **Orders the Commission to pay, in addition to its own costs, the costs incurred by RN relating to Case F**‐**104/15 and the present proceedings after referral;**

3.      **Orders the Commission and RN each to bear their own costs relating to the proceedings in Case T**‐**695/16 P;**

4.      **Orders the European Parliament to bear its own costs relating to Case F**‐**104/15 and the present proceedings after referral.**

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| da Silva Passos | Reine | Truchot |

Delivered in open court in Luxembourg on 16 December 2020.

[Signatures]

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[\*](#Footref*)      Language of the case: French.