61982CJ0075_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN JOINED CASES 75 AND 117/82
C . RAZZOUK AND A . BEYDOUN, ASSISTED AND REPRESENTED BY DIETER ROGALLA, RECHTSANWALT, OF MUNSTER AND STEINFORT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER, 83 BOULEVARD GRANDE-DUCHESSE-CHARLOTTE,
APPLICANTS,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY JOHN FORMAN, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, ASSISTED BY ROBERT ANDERSEN OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATIONS FOR :
( I ) THE ANNULMENT OF THE COMMISSION ' S DECISIONS OF 25 NOVEMBER 1981 AND 9 MARCH 1982 REFUSING TO GRANT THE APPLICANTS WIDOWER ' S PENSIONS ; AND
( II)AN ORDER DIRECTING THE COMMISSION TO GRANT THEM WIDOWER ' S PENSIONS, WITH INTEREST FOR LATE PAYMENT, OR IN THE ALTERNATIVE, A SUM EQUIVALENT TO THE PENSION CONTRIBUTIONS PAID BY MRS RAZZOUK AND MRS BEYDOUN,
Grounds
1 BY APPLICATIONS LODGED AT THE COURT REGISTRY ON 22 FEBRUARY 1982 AND 2 APRIL 1982 RESPECTIVELY, MR RAZZOUK AND MR BEYDOUN, BOTH WIDOWERS OF OFFICIALS WHO HAD BEEN IN THE SERVICE OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, BROUGHT ACTIONS SEEKING, FIRST, THE ANNULMENT OF THE DECISIONS OF 25 NOVEMBER 1981 AND 9 MARCH 1982, BY WHICH THE COMMISSION REJECTED THE COMPLAINTS THAT THEY HAD SUBMITTED AGAINST THE DECISIONS REFUSING TO RECOGNIZE THEIR RIGHT TO A SURVIVOR ' S PENSION AND, SECONDLY, AN ORDER REQUIRING THE COMMISSION TO GRANT THEM A WIDOWER ' S PENSION OR, IN THE ALTERNATIVE, TO PAY THEM A SUM EQUIVALENT TO THE PENSION CONTRIBUTIONS PAID BY THEIR RESPECTIVE WIVES .
2 AS REGARDS MR RAZZOUK, THE COURT HAS BEEN TOLD THAT HE WROTE TO THE PRESIDENT OF THE COMMISSION ON 3 APRIL 1981 SEEKING, AS A RESULT OF THE DEATH OF HIS WIFE, THE SURVIVOR ' S PENSION WHICH ARTICLE 79 OF THE STAFF REGULATIONS GRANTS TO THE WIDOWS OF OFFICIALS . BY A LETTER DATED 3 JULY 1981 THE HEAD OF THE FINANCIAL AND ADMINISTRATIVE RIGHTS DIVISION REPLIED THAT, HAVING REGARD TO THE EXISTING PROVISIONS OF THE STAFF REGULATIONS DEALING WITH THE PENSION SCHEME, THE ADMINISTRATION DID NOT FEEL ABLE TO GRANT HIS REQUEST . ON 24 JULY 1981 THE APPLICANT SUBMITTED A COMPLAINT TO THE COMMISSION PURSUANT TO ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS . THAT COMPLAINT WAS REJECTED BY A LETTER OF 25 NOVEMBER 1981, IN WHICH THE COMMISSION STATED THAT THE PROVISIONS OF THE STAFF REGULATIONS ENTITLED WIDOWERS TO A PENSION ONLY ON THE CONDITIONS LAID DOWN IN ARTICLE 23 OF ANNEX VIII TO THOSE REGULATIONS AND THAT THOSE CONDITIONS WERE NOT MET IN THE APPLICANT ' S CASE . THE COMMISSION ADDED THAT, ALTHOUGH IT HAD SUBMITTED TO THE COUNCIL IN 1974 A PROPOSAL TO AMEND THE STAFF REGULATIONS SO AS TO ACCORD WIDOWS AND WIDOWERS OF OFFICIALS THE SAME RIGHTS, IT HAD NO CHOICE BUT TO APPLY THE STAFF REGULATIONS AS THEY STOOD .
3 MR BEYDOUN, FOR HIS PART, APPLIED TO THE COMMISSION ON 16 JULY 1980 FOR A SURVIVOR ' S PENSION UNDER THE TERMS OF ARTICLE 23 OF ANNEX VIII TO THE STAFF REGULATIONS, POINTING OUT IN PARTICULAR HIS OWN LIMITED RESOURCES AND HIS HEALTH PROBLEMS, WHICH INCAPACITATED HIM FROM ENGAGING IN GAINFUL EMPLOYMENT . BY A LETTER OF 12 AUGUST 1981 THE DEPUTY HEAD OF THE RELEVANT DIVISION INFORMED THE APPLICANT THAT ARTICLE 23 DID NOT APPLY TO HIS CASE . ON 9 SEPTEMBER 1981 THE APPLICANT SUBMITTED A COMPLAINT TO THE COMMISSION
PURSUANT TO ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS . THAT COMPLAINT WAS REJECTED BY A LETTER OF 9 MARCH 1982, WHICH, APART FROM THE EXPLANATION AS TO WHY THE APPLICANT DID NOT SATISFY THE CONDITIONS LAID DOWN IN ARTICLE 23, WAS IDENTICAL TO THE ONE SENT TO MR RAZZOUK ON 25 NOVEMBER 1981 .
4 BOTH APPLICANTS SEEK THE ANNULMENT OF THE DECISIONS REJECTING THEIR COMPLAINTS . THEY ALSO CLAIM THAT THE COMMISSION SHOULD BE ORDERED TO GRANT THEM A WIDOWER ' S PENSION ON THE SAME CONDITIONS AS THOSE APPLICABLE TO WIDOWS AND TO PAY THEM INTEREST IN COMPENSATION FOR DELAY IN PAYMENT . IN THE ALTERNATIVE, THEY CLAIM REIMBURSEMENT OF A SUM EQUIVALENT TO THE PENSION CONTRIBUTIONS PAID BY THEIR WIVES UNDER ARTICLE 83 OF THE STAFF REGULATIONS DURING THEIR EMPLOYMENT WITH THE EUROPEAN INSTITUTIONS . MR RAZZOUK ALSO WISHES TO OBTAIN AN ORPHAN ' S PENSION FOR HIS SON, BORN OF HIS MARRIAGE WITH THE DECEASED OFFICIAL, WHILE MR BEYDOUN CLAIMS, IN THE ALTERNATIVE, A RIGHT TO A PENSION PURSUANT TO ARTICLE 23 OF ANNEX VIII OF THE STAFF REGULATIONS .
ADMISSIBILITY
MR RAZZOUK ' S APPLICATION
5 AS REGARDS THE CLAIM FOR AN OPHAN ' S PENSION, THE COMMISSION HAS PRODUCED A COPY OF A DECISION GRANTING SUCH A PENSION FROM THE DATE INDICATED BY THE APPLICANT . THIS CLAIM HAS THUS BECOME POINTLESS AND THE COURT IS DISPENSED FROM ADJUDICATING ON IT .
6 AS REGARDS THE CLAIM FOR ANNULMENT, THE COMMISSION POINTS OUT THAT IT IS DIRECTED SOLELY AGAINST THE DECISION OF 25 NOVEMBER 1981 WHEREBY THE COMMISSION REJECTED THE COMPLAINT SUBMITTED BY THE APPLICANT PURSUANT TO ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS AGAINST THE DECISION OF 3 JULY 1981 . IN THE COMMISSION ' S VIEW, THE CLAIM SHOULD HAVE BEEN DIRECTED AGAINST THE LATTER DECISION, WHICH IS THE ACT ADVERSELY AFFECTING THE APPLICANT, THE DECISION OF 25 NOVEMBER 1981 BEING PURELY CONFIRMATORY .
7 WHILE IT IS TRUE THAT THE REJECTION OF THE COMPLAINT, BECAUSE OF ITS PURELY CONFIRMATORY NATURE, IS NOT OF ITSELF AN ACT CAPABLE OF BEING CONTESTED, IT MUST ALSO BE RECOGNIZED THAT THE APPLICATION, WHICH WAS LODGED WITHIN THE TIME-LIMITS LAID DOWN IN ARTICLES 90 AND 91 OF THE STAFF REGULATIONS, IS CLEARLY
SEEKING THE ANNULMENT OF THE REFUSAL TO GRANT A PENSION UNDER ARTICLE 79 OF THE STAFF REGULATIONS . THERE IS THUS NO DOUBT ABOUT THE REAL SUBJECT-MATTER OF THE DISPUTE AND, HENCE, ABOUT THE ADMISSIBILITY OF THE APPLICATION, IN THIS REGARD .
8 FINALLY, THE COMMISSION EXPRESSES DOUBT ABOUT THE ADMISSIBILITY OF THE ALTERNATIVE CLAIM FOR REIMBURSEMENT OF THE PENSION CONTRIBUTIONS PAID BY THE APPLICANT ' S WIFE DURING HER WORKING LIFE . THE COMMISSION CONSIDERS THAT THIS IS A NEW CLAIM WHICH HAS NOT BEEN THE SUBJECT OF A COMPLAINT .
9 IT MUST BE POINTED OUT IN THIS CONNECTION, AS THE COURT DID IN ITS JUDGMENT OF 1 JULY 1976 ( CASE 58/75, SERGY V COMMISSION, ( 1976 ) ECR 1139 ), THAT, ALTHOUGH A COMPLAINT THROUGH ADMINISTRATIVE CHANNELS IS AN INDISPENSABLE PRELIMINARY TO BRINGING AN ACTION AGAINST AN ACT ADVERSELY AFFECTING A PERSON TO WHOM THE STAFF REGULATIONS APPLY, IT IS NOT THE FUNCTION OF THAT COMPLAINT TO BIND STRICTLY AND ABSOLUTELY THE JUDICIAL STAGE OF THE PROCEEDINGS, PROVIDED THAT THE CLAIMS SUBMITTED AT THIS LATTER STAGE CHANGE NEITHER THE CAUSE NOR THE OBJECT OF THE COMPLAINT . GRANTED THAT THE PENSION CONTRIBUTIONS ARE FIXED AT THE SAME PERCENTAGE OF BASIC SALARY FOR BOTH MALE AND FEMALE OFFICIALS, A CLAIM FOR REIMBURSEMENT OF A PART OF THOSE CONTRIBUTIONS IS NO MORE THAN THE LOGICAL CONSEQUENCE OF THE COMMISSION ' S REFUSAL TO GRANT A WIDOWER ' S PENSION ON THE SAME CONDITIONS AS IT GRANTS WIDOW ' S PENSIONS . THIS CLAIM IS THEREFORE ADMISSIBLE BECAUSE IT IS EMBODIED IN THE PRINCIPAL CLAIM .
MR BEYDOUN ' S APPLICATION
10 IN LIMINE THE COMMISSION OBJECTS THAT MR BEYDOUN ' S COMPLAINT IS OUT OF TIME, HAVING REGARD TO THE TIME-LIMITS LAID DOWN BY ARTICLES 90 AND 91 OF THE STAFF REGULATIONS . THE REQUEST WAS SUBMITTED ON 16 JULY 1980 AND MUST BE DEEMED TO HAVE BEEN IMPLICITLY REJECTED ON 16 NOVEMBER 1980, SINCE NO EXPRESS DECISION HAD BEEN GIVEN BEFORE THAT DATE . MR BEYDOUN OUGHT THEREFORE TO HAVE LODGED HIS COMPLAINT WITHIN THE FOLLOWING THREE MONTHS, THAT IS TO SAY BEFORE 17 FEBRUARY 1981 . HOWEVER, THE COMPLAINT WAS NOT LODGED UNTIL 9 SEPTEMBER 1981, FOLLOWING THE EXPRESS REJECTION .
11 THE APPLICANT CONTENDS THAT ARTICLE 90 OF THE STAFF REGULATIONS IS NOT APPLICABLE IN THE PRESENT CASE AND THAT THE EXPRESS DECISION OF 12 AUGUST 1981 SET IN MOTION THE PERIOD FOR LODGING A COMPLAINT . HE REFERS IN PARTICULAR TO THE OPENING SENTENCE OF THAT DECISION, WHICH SPEAKS OF AN EXCHANGE OF
CORRESPONDENCE AND OF INTERVIEWS WHICH HE HAD ON SEVERAL OCCASIONS WITH OFFICIALS OF THE COMMISSION . HE SUBMITS THAT IN THOSE CIRCUMSTANCES AN IMPLIED REJECTION CANNOT BE PRESUMED .
12 ACCORDING TO ARTICLE 91 ( 2 ) OF THE STAFF REGULATIONS, AN APPLICATION IS ONLY ADMISSIBLE IF THE APPOINTING AUTHORITY HAS PREVIOUSLY HAD A COMPLAINT SUBMITTED TO IT PURSUANT TO ARTICLE 90 ( 2 ) WITHIN THE PERIOD PRESCRIBED THEREIN . ARTICLE 90 ( 1 ) PROVIDES THAT, IF NO REPLY HAS BEEN RECEIVED TO A REQUEST WITHIN FOUR MONTHS, THIS SHOULD BE DEEMED TO CONSTITUTE AN IMPLIED DECISION REJECTING IT AND, PURSUANT TO PARAGRAPH 2 OF THE SAME ARTICLE, THAT DECISION SETS IN MOTION A PERIOD OF THREE MONTHS FOR LODGING A COMPLAINT . THAT PERIOD IS NOT EXTENDED BY THE SOLE FACT THAT THE REQUEST IS FOLLOWED BY INTERVIEWS OR CORRESPONDENCE WHICH DO NOT PROVIDE A REPLY TO THE REQUEST, UNLESS IT IS SHOWN THAT THE FAILURE TO COMPLY WITH THE TIME-LIMIT CAN BE IMPUTED TO THE COMMISSION, WHICH IS NOT SO IN THIS CASE . NOR DOES TIME START TO RUN AGAIN AS A RESULT OF A LATER EXPRESS DECISION DOING NO MORE THAN REJECTING THE REQUEST .
13 ARTICLES 90 AND 91 OF THE STAFF REGULATIONS GOVERN GENERALLY THE ADMINISTRATIVE PROCEDURE WHICH MUST PRECEDE AN APPLICATION TO THE COURT CHALLENGING A DECISION OF THE APPOINTING AUTHORITY AND THEY ARE THUS APPLICABLE IN THE PRESENT CASE ALSO . AS THE COURT HAS HELD ON MANY OCCASIONS, INTER ALIA IN THE JUDGMENT OF 19 FEBRUARY 1981 ( JOINED CASES 122 AND 123/79, SCHIAVO V COUNCIL, ( 1981 ) ECR 473 ), THE TIME-LIMITS PRESCRIBED BY THESE ARTICLES ARE MANDATORY IN NATURE AND ARE NOT SUBJECT TO THE DISCRETION OF THE PARTIES OR OF THE COURT .
14 CONSEQUENTLY, MR BEYDOUN ' S APPLICATION IS INADMISSIBLE AND THE SUBSTANCE OF THE CASE WILL BE EXAMINED SOLELY IN THE CONTEXT OF MR RAZZOUK ' S APPLICATION .
THE SUBSTANCE
15 ACCORDING TO ARTICLE 79 OF THE STAFF REGULATIONS, THE WIDOW OF AN OFFICIAL OR OF A FORMER OFFICIAL IS, IN GENERAL, ENTITLED TO A SURVIVOR ' S PENSION EQUAL TO 60 % OF THE RETIREMENT OR INVALIDITY PENSION WHICH WAS PAID TO HER HUSBAND OR WHICH, IRRESPECTIVE OF LENGTH OF SERVICE, WOULD HAVE BEEN PAYABLE TO HIM IF HE HAD QUALIFIED FOR IT AT THE TIME OF HIS DEATH . THIS RIGHT IS INDEPENDENT OF THE WIDOW ' S OWN RESOURCES AND THE SURVIVOR ' S PENSION CAN EVEN BE COMBINED
WITH ANY SALARY SHE MAY HAVE AS A COMMUNITY OFFICIAL . ON THE OTHER HAND, ARTICLE 23 OF ANNEX VIII TO THE STAFF REGULATIONS PROVIDES THAT THE HUSBAND OF A DECEASED FEMALE OFFICIAL MAY ONLY RECEIVE A SURVIVOR ' S PENSION IF HE HAS NO INCOME OF HIS OWN AND IS PERMANENTLY INCAPACITATED BY INVALIDITY OR SERIOUS ILLNESS FROM ENGAGING IN GAINFUL EMPLOYMENT . FURTHERMORE, THIS SURVIVOR ' S PENSION IS PAYABLE AT A RATE OF 50% RATHER THAN THE 60% PAID TO A WIDOW . FINALLY, ALTHOUGH BOTH TYPES OF PENSION CEASE TO BE PAID IF THE SURVIVOR REMARRIES, A WIDOW WHO REMARRIES CAN OBTAIN THE IMMEDIATE PAYMENT OF A CAPITAL SUM EQUAL TO TWICE THE ANNUAL AMOUNT OF HER SURVIVOR ' S PENSION . THE PROVISIONS OF THE STAFF REGULATIONS THUS PROVIDE FOR TWO FUNDAMENTALLY DIFFERENT SURVIVOR ' S PENSION SCHEMES, ACCORDING TO WHETHER THE DECEASED OFFICIAL WAS MALE OR FEMALE .
16 THE APPLICANT IS THEREFORE JUSTIFIED IN HIS SUBMISSION THAT THESE PROVISIONS ARE CONTRARY TO THE PRINCIPLE OF EQUAL TREATMENT OF BOTH SEXES, A PRINCIPLE WHICH, AS THE COURT HELD IN ITS JUDGMENT OF 15 JUNE 1978 ( CASE 149/77, DEFRENNE V SABENA, ( 1978 ) ECR 1365 ), FORMS PART OF THE FUNDAMENTAL RIGHTS THE OBSERVANCE OF WHICH THE COURT HAS A DUTY TO ENSURE .
17 IN THAT JUDGMENT, AS IN THE JUDGMENTS OF 7 JUNE 1972 ( CASE 20/71 SABBATINI, NEE BERTONI, V EUROPEAN PARLIAMENT, ( 1972 ) ECR 345 ) AND OF 20 FEBRUARY 1975 ( CASE 21/74, AIROLA V COMMISSION, ( 1975 ) ECR 221 ), THE COURT RECOGNIZED THE NEED TO ENSURE EQUAL TREATMENT OF MEN AND WOMEN EMPLOYED BY THE COMMUNITY ITSELF WITHIN THE FRAMEWORK OF THE STAFF REGULATIONS . CONSEQUENTLY, IN RELATIONS BETWEEN THE COMMUNITY INSTITUTIONS, ON THE ONE HAND, AND THEIR EMPLOYEES AND THE DEPENDANTS OF EMPLOYEES, ON THE OTHER, THE REQUIREMENTS IMPOSED BY THE PRINCIPLE OF EQUAL TREATMENT ARE IN NO WAY LIMITED TO THOSE RESULTING FROM ARTICLE 119 OF THE EEC TREATY OR FROM THE COMMUNITY DIRECTIVES ADOPTED IN THIS FIELD .
18 THE COMMISSION ' S DECISION OF 3 JULY 1981 MUST THEREFORE BE ANNULLED ON THE GROUND THAT IT IS BASED ON PROVISIONS OF THE STAFF REGULATIONS WHICH ARE CONTRARY TO A FUNDAMENTAL RIGHT AND THEREFORE INAPPLICABLE IN SO FAR AS THEY TREAT SURVIVING SPOUSES OF OFFICIALS UNEQUALLY ACCORDING TO THE SEX OF THE PERSONS CONCERNED .
19 FOLLOWING UPON THAT ANNULMENT, IT IS FOR THE COMMUNITY LEGISLATURE TO ACCEPT THE CONSEQUENCES OF THE PRESENT JUDGMENT AND TO TAKE THE NECESSARY MEASURES
TO ESTABLISH EQUALITY BETWEEN THE SEXES AS REGARDS THE COMMUNITY PENSION SCHEME . IN THE MEANTIME, THE COMMISSION MUST RE-EXAMINE THE APPLICANT ' S REQUEST, APPLYING TO IT THE PROVISIONS OF THE STAFF REGULATIONS DEALING WITH WIDOWS '
PENSIONS, WHICH REMAIN, FOR THE MOMENT, THE ONLY VALID FRAME OF REFERENCE . ANY SUMS WHICH MAY ULTIMATELY BE PAYABLE TO THE APPLICANT SHOULD BEAR INTEREST AT 6% FROM 27 JULY 1981, THE DATE ON WHICH THE COMMISSION RECEIVED THE APPLICANT ' S COMPLAINT UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS, OR FROM THE DATE ON WHICH THE PENSION BECAME PAYABLE, IF THAT DATE IS LATER .
Decision on costs
COSTS
20 UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER, PURSUANT TO ARTICLE 70 OF THE RULES OF PROCEDURE, THE COSTS INCURRED BY THE INSTITUTIONS IN CASES BROUGHT BY OFFICIALS OF THE COMMUNITIES ARE TO BE BORNE BY THE FORMER . THAT PROVISION IS ALSO APPLICABLE TO ACTIONS BROUGHT BY DEPENDANTS OF OFFICIALS SEEKING TO ASSERT A RIGHT UNDER THE STAFF REGULATIONS .
21 SINCE THE COMMISSION HAS FAILED IN ITS SUBMISSIONS, AS REGARDS MR RAZZOUK ' S APPLICATION, IT MUST BE ORDERED TO PAY THE COSTS IN CASE 75/82 . ON THE OTHER HAND, IN CASE 117/82 THE PARTIES MUST BEAR THEIR OWN COST .
Operative part
ON THOSE GROUNDS,
THE COURT
HEREBY MAKES THE FOLLOWING ORDER :
1 . AS REGARDS CASE 75/82 :
( A ) THE COMMISSION ' S DECISION OF 3 JULY 1981 REFUSING TO GRANT A WIDOWER ' S PENSION IS ANNULLED ;
( B)THE COMMISSION SHALL RE-EXAMINE THE APPLICANT ' S CLAIM FOR A SURVIVOR ' S PENSION, APPLYING TO IT THE PROVISIONS OF THE STAFF REGULATIONS DEALING WITH WIDOWS '
PENSIONS . ANY SUMS WHICH MAY BE
PAYABLE TO THE APPLICANT SHALL BEAR INTEREST AT 6% FROM 27 JULY 1981 OR FROM THE DATE ON WHICH THE PENSION BECAME PAYABLE, IF THAT DATE IS LATER ;
( C)IT IS NOT NECESSARY TO ADJUDICATE ON THE CLAIM FOR AN ORPHAN ' S PENSION ;
( D)THE COMMISSION SHALL PAY THE COSTS .
2.AS REGARDS CASE 117/82 :
( A)THE APPLICATION IS DISMISSED AS INADMISSIBLE ;
( B)THE PARTIES SHALL BEAR THEIR OWN COSTS .