OPINION OF MR ADVOCATE GENERAL WARNER

DELIVERED ON 10 JULY 1980

My Lords,

The applicant in this case, Mrs P., is a member of the Commission's staff (in Grade C 4), but that is not the foundation of her claim. The foundation of her claim lies in the fact that her former husband, the late Mr Manfredo C, was also a Commission official (in Grade D 2). I call him “her former husband”, but it is an issue in this case whether she is his widow or his divorced wife.

Essentially the question that Your Lordships have to decide is whether she is, as a result of his death, entitled to a survivor's pension under Annex VIII to the Staff Regulations.

Articles 17 to 20 of Annex VIII provide for the payment of a survivor's pension to the widow of an official or former official. Article 26 provides that a widow's entitlement to a survivor's pension shall cease on her remarriage, subject, in certain circumstances, to her receiving then a small capital sum. Article 27 is in the following terms:

“The divorced wife of an official shall be entitled on his death to a survivor's pension, as defined in this chapter, provided that the court which pronounced the decree of divorce did not find that the divorced wife in question was solely to blame. This entitlement shall cease if she remarries before her former husband dies. The provisions of Article 26 shall apply if she remarries after her former husband dies.”

That wording results from an amendment to the Staff Regulations made in 1978 by Council Regulation (ECSC, EEC, Euratom) No 912/78. It cannot therefore be said either that the wording was chosen in the light of the laws only of the original six Member States or that it was chosen on the basis only of the laws of the Member States as they stood when the Staff Regulations were first enacted in 1968.

The facts of the present case are briefly these.

The applicant and her former husband were both born in Silesia, she in 1936, he in 1939. She was by birth a German national, he an Italian. They were married at Woluwe-Saint-Lambert, a suburb of Brussels, on 27 April 1963. As a result of the marriage she acquired Italian nationality, but she kept her German nationality also. There are two children of the marriage, both born in Belgium, one on 2 October 1963 and the other on 19 September 1968.

On 2 February 1971 the applicant filed a divorce petition in the Tribunal de Première Instance of Brussels. In support of that petition she relied on ten allegations of fact, mostly allegations of cruelty and of adultery on the part of her husband. At or about the same time he instituted criminal proceedings against her for adultery. (It appears that, under Belgian law, it is open to a husband to do that to his wife.) The criminal proceedings ended in a judgment of the Cour d'Appel of Brussels of 14 May 1974 by which she was acquitted of adultery. Apparently, however, that judgment (no copy of which is among the papers placed before this Court) established the existence of what were described as “des relations gravement injurieuses à l'égard de” Mr C. between the applicant and a certain “M... B...”. On the strength of that finding Mr C. brought a cross-petition for divorce against the applicant in the Tribunal de Première Instance.

By a judgment dated 13 June 1975 (a copy of which is among the papers before us — Annex 1 to the Application) the Tribunal de Première Instance did four things. First, it gave leave to the applicant to adduce evidence to prove her ten allegations. Secondly, it “authorized” a divorce “aux torts de” the applicant. It was explained to us that that was because in Belgium no court actually decrees a divorce; the marriage is dissolved by the registration of the judgment authorizing the divorce on the “registres de l'état civil” of the place where the marriage was celebrated. In this case the judgment was registered at Woluwe-Saint-Lambert (see Annex 1 to the Defence). Thirdly, the Tribunal maintained in force interim orders made by its President whereby custody of the two children of the marriage and the management of their property were granted to the applicant, and whereby Mr C. had been ordered to make monthly payments for their maintenance and education. Lastly the Tribunal reserved the costs.

The applicant did not avail herself of the leave given to her by the judgment to adduce evidence in support of the allegations in her petition. We were told on her behalf that that was because she had obtained all she wanted from the judgment, a divorce and the custody of her children, together with the order requiring Mr C. to make payments for their maintenance and education, so that there was no reason why she should wish to incur the expense and anxiety of further litigation.

On 31 October 1977 Mr C. died.

By letter dated 25 May 1978 (Annex 2 to the Application) the Head of the Individual Rights and Privileges Division of the Commission's Directorate-General of Personnel and Administration informed the applicant that, in view of the terms of Article 27 of Annex VIII to the Staff Regulations, she was not entitled to a survivor's pension, but that orphan's pensions would be paid in respect of the two children pursuant to Article 80 of the Staff Regulations.

On 11 August 1978 the applicant submitted a complaint under Article 90 (2) of the Staff Regulations against the refusal to pay her a survivors pension (Annex 5 to the Application). She received no reply to that complaint, so that it is to be deemed to have been impliedly rejected.

In this action the applicant claims:

(i) a declaration that the decision of 25 May 1978 by which she was refused a survivor's pension was void;

(ii) a declaration that the implied decision rejecting her complaint of 11 August 1978 was void;

(iii) an order that the Commission grant her a survivor's pension; and

(iv) interest on the arrears of that pension.

By order dated 4 October 1979 the Court allowed Mr C.'s mother, Mrs C, to intervene in the proceedings in her capacity as “subrogée-tutrice” of the two children. They have an interest in the outcome of the proceedings in that, under the provisions of Article 80 of the Staff Regulations, their orphan's pensions would be halved if the applicant received a survivor's pension.

I will say at once, in order to get the point out of the way, that in my opinion the applicant's claim relating to the implied decision rejecting her complaint is misconceived. As was recently pointed out by the Third Chamber in Joined Cases 33 and 75/79 Kuhner v Commission (28 May 1980, not yet reported — see paragraph 9 of the judgment) such a decision, being merely confirmatory of the act complained of, is not itself open to challenge under Article 91 of the Staff Regulations. That, however, is but a formal matter.

In support of her substantive claims three main contentions were put forward on the applicant's behalf.

First it was contended, in reliance on Article 184 of the EEC Treaty, that the condition in Article 27 of Annex VIII to the Staff Regulations on which the Commission had based its refusal to grant her a pension, i.e. the condition “that the court which pronounced the decree of divorce did not find that the divorced wife in question was solely to blame”, was invalid. In the Application it was contended that that was so on a number of grounds, but in the Reply and at the hearing the applicant confined herself to contending that it was so because the condition in question infringed the principle of equal treatment, in that it could affect only women who were divorced in a country where it was open to the court to ascribe blame to one or the other of the parties to the marriage.

Secondly and in the alternative, the applicant contended that the Commission had been wrong to treat her as the divorced wife of Mr C. rather than as his widow, because the Belgian divorce would be recognized neither in Italy, the country of their common nationality, nor in Germany, of which she was a national.

Thirdly and in the further alternative, she contended that, properly interpreted, the judgment of 13 June 1975 did not find that she was “solely to blame” for the divorce, so that the condition in Article 27 was, in fact, satisfied.

I have come to the conclusion that the applicant's first contention is correct.

The relevant laws of the Member States may be summarized as follows. In one Member State, Ireland, the law makes no provision for divorce. In three, Belgium, France und Luxembourg, the court authorizing or decreeing a divorce may ascribe blame to one or the other or both of the parties, though the possibility of divorce by mutual consent also exists. In the remaining five Member States divorce is decreed on the ground of the irretrievable breakdown of the marriage without attribution of blame to anyone. In Italy that has always been so since divorce was first introduced in 1970. In the other four of these Member States it is the result of comparatively recent reform aimed at abolishing the concept of matrimonial offence or fault. Such abolition took place in 1969 in Denmark and in England and Wales, in 1971 in the Netherlands, in 1976 in Germany and in Scotland, and in 1978 in Northern Ireland. That is not to say of course that the conduct of the parties may not be taken into account by the courts in some of those countries in deciding whether the marriage has broken down irretrievably or in deciding upon such matters as maintenance and the custody of children of the marriage. The crux is however that blame is not ascribed for the breakdown of the marriage. Thus it is only to women who are subject to the divorce jurisdiction of the courts of Belgium, France and Luxembourg (or of any non-member State where the concept of matrimonial offence still subsists) that the condition in Article 27 can apply. In other words Article 27 provides for women whose own behaviour has been the same to be treated differently according to whether their personal circumstances (nationality, domicile, etc.) bring them within the jurisdiction of the courts of one country or of another. Indeed in some cases there may be a choice of jurisdiction, so that the applicability or otherwise of the condition may depend on how that choice is exercised. Moreover, even where the divorce is granted in Belgium, France or Luxembourg, it will depend on the choice of procedure, i.e. on whether the divorce is obtained in contentious proceedings or by consent.

It was argued on behalf of the Commission that that discrimination (which I have no hesitation in describing as arbitrary) arose not from the provisions of Article 27, which in themselves applied uniformly to everyone, but from the fact, from which the Community institutions were powerless to escape, that the laws of different countries were different. I cannot accept that argument. The judgment of this Court in Case 21/74 Airola v Commission [1975] 1 ECR 221 shows that provisions of the laws of Member States must not be allowed to give rise to discrimination where that can be avoided. The laws of the Member States (and perhaps also of other States) are facts of life which the Community institutions must take into account, where relevant, in framing their legislation. There are no doubt cases where it is impossible to frame that legislation in such a way as entirely to avoid differences in treatment due to differences in those laws. But here a formula was adopted which by its very nature must lead to discrimination because it could operate to exclude from benefit only women in whose cases particular national laws applied. On behalf of the Commission we were given a number of examples of matters on which, it was said, disparities in national laws might give rise to differing treatment under Community law. One was the age of majority. That was not, in my opinion, a happily chosen example, because Article 2 (3) of Annex VII to the Staff Regulations gets over any problem arising from the fact that the age of majority is not the same in all countries by specifying particular ages up to which family allowances are to be paid. If, instead, it had provided that they should be paid until each child attained majority, it would almost certainly have been discriminatory. I need not, I think, take up Your Lordships' time with the Commission's other examples. They did not convince me that it was permissible for the Staff Regulations to provide for officials or their dependants to be treated differently on the basis of the national laws applicable to them where that was avoidable.

Even less convincing to my mind was the argument submitted on behalf of the Commission that a survivor's pension must be regarded as a substitute for an obligation to provide maintenance incumbent on the deceased official during his lifetime. Such a pension, it was said, was denied to divorced wives who had been found solely to blame for their divorces because they would not normally be entitled to maintenance. That argument seems to me to fly in the face of what the Court said in Case 24/71 Meinhardt v Commission [1972] 1 ECR 269 (in paragraph 3 of the judgment) to the effect that the provisions of Annex VIII were not intended to preserve in a different form, for the benefit of a widow or divorced wife, an obligation to pay maintenance stemming from the marriage or the divorce, but created a right held directly by the woman concerned from the Staff Regulations in her capacity as widow or divorced wife. Nor is the premise on which the argument rests in fact correct. Manifestly, if one looks at the laws of the Member States as a whole, it is impossible to say, even in general, that a divorced wife's entitlement to maintenance from her former husband depends upon whether or not she has been found solely to blame.

The Commission indeed recognized that that was so and we were told on its behalf that it had proposed to the Council an amendment of Article 27 whereby that Article would confer on a divorced wife the right to a survivor's pension only if she was, at the time of her former husband's death, entitled to maintenance from him by virtue either of a court order or of an agreement — though it appears that, under the proposal as at present formulated, the condition that she should not have been found solely to blame would be retained. It seems to me, if I may say so, that such a formula, without the condition of course, would probably be unobjectionable, but I think that before it is adopted a careful study should be made of the laws of the Member States (at least) as to rights of maintenance in order to make sure that it would not give rise to avoidable differences of treatment.

If Your Lordships share my view on that first question, that is enough to dispose of the case. But I would add that I have come, after some hesitation, to the conclusion that, if the condition in Article 27 is valid, the applicant is entitled to succeed on the basis of her third contention, i.e. on the ground that the judgment of the Tribunal de Première Instance does not contain a finding that she was solely to blame.

Counsel treated that question as one of interpretation of the judgment, but I think it is really a question of interpretation of Article 27. The meaning of the judgment is clear enough: it authorized a divorce “aux torts de” (but not “aux torts exclusifs de”) the applicant, it gave her leave to proceed with her own petition, it made interim provision for the custody, maintenance and education of the children, and it reserved the costs. In other words it found that the applicant was to blame but left open the question whether Mr C. was also to blame. The question is whether the condition in Article 27 does or does not apply in such a situation. In seeking to answer that question it is helpful I think to consider the wording of the condition in all six languages. It is as follows:

Danish:“såfremt hun ved skilsmissedommen ikke har fået tillagt hele skylden”;

Dutch:“mits het echtscheidingsvonnis niet alleen de vrouw als schuldige partij aanmerkt”;

English:“provided that the court which pronounced the decree of divorce did not find that the divorced wife in question was solely to blame”;

French:“sous réserve que le jugement prononçant le divorce n'ait pas été rendu à ses torts exclusifs”;

German:“sofern sie in dem Scheidungsurteil nicht für allein schuldig erklärt worden ist”;

Italian:“a condizione che la sentenza di divorzio non sia stata pronunciata esclusivamente per colpa del coniuge divorziato”.

What emerges, in my opinion, is that for the condition to apply there has to be a finding in the decree of divorce that the wife is solely to blame. That condition would in my opinion have been statisfied here if there had been no petition by the applicant or if her petition had been dismissed. It is not, in my opinion, enough that, at the date of Mr C.'s death, the only positive finding made by the Tribunal was that she was to blame, for that falls short of being a finding that she was solely to blame.

I turn to the applicant's second contention, which was, Your Lordships remember, that she should be treated as the widow of Mr C. and not as his divorced wife because the Belgian divorce would be recognized neither in Italy nor in Germany.

That contention was founded on the following argument.

Various provisions of the Staff Regulations, including those on survivor's pensions, refer to the status of individuals for the purpose of either granting or denying advantages. Personal status is governed by national laws and it may happen that a person has particular status under the law of one of the Member States and a different status under the law of another Member State. Such conflicts can only be resolved by applying the rules of private international law, and it is a general rule of private international law that the status of an individual is governed by the law of the country of which he is a national.

There is of course no such general rule. Under the laws of many countries (including the three new Member States) the personal status of an individual is governed, primarily, by the law of his domicile. But the fundamental fallacy underlying the argument is the assumption that there exists a single and universal body of rules of private international law that can be resorted to to solve any problem of conflict of laws. In fact of course each country has its own rules of private international law (which may or may not be modified by international conventions, such as the conventions between Belgium and Germany, and between Belgium and Italy, to which we were referred). So far as here relevant the private international law of each country exists to enable the courts of that country to decide whether they will recognize a foreign divorce.

The question therefore is whether this Court should evolve a set of rules of private international law to be applied at Community level. Certainly a simple rule that looked to the nationality of the person concerned would not suffice, firstly because it could produce artificial and unfair results in cases concerning nationals of, or persons domiciled in, Member States where domicile is the governing consideration, secondly because in the case of at least one Member State, the United Kingdom, such a rule, by itself, would be ineffective — United Kingdom nationals as defined for Community law purposes (as to which see Case 257/78 Devred v Commission,14 December 1979, not yet reported) being subject to a variety of different legal systems — and thirdly because it would not necessarily settle the status of a person, such as the applicant here, with dual nationality. Indeed the text of the Hague Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations, to which we were referred by Counsel for the Commission, vividly illustrates how complex such a set of rules would need to be. There are in my opinion good reasons why the Court should not embark on such an enterprise.

In the first place it would amount to judicial legislation. It might be otherwise if the Hague Convention had been ratified by all the Member States, or perhaps by most of them. But it appears to have been ratified by only two (Denmark and the United Kingdom).

Secondly, it would not necessarily absolve the personnel departments of the Community institutions, responsible for administering the Staff Regulations, from conducting enquiries as to whether a divorce obtained in one country would be effective in another. The potential complexities and uncertainties, as well as the expense, of such an enquiry are well illustrated by the discussion in this case of the questions whether and to what extent the Belgian divorce would be recognized in Germany and in Italy respectively, questions to which, despite all the expertise devoted to them, it did not seem to me that we were given entirely clear answers.

In any event it would, in a case like the present, be inappropriate. As the Court pointed out in its order of 4 October1979, allowing Mrs C.'s intervention, Your Lordships' judgment in this case cannot and will not have the effect of determining the applicant's status for all purposes. It will decide only whether she is entitled to a survivor's pension under the Staff Regulations. If I am wrong in the views I have expressed on her first and third contentions, that can only depend on whether she is to be regarded as a widow or as a divorced wife for the purposes of those Regulations. As to that, I have for my part no doubt that, as between himself (or herself) and a Community institution in a matter arising under the Staff Regulations, a person who has instituted proceedings in, or submitted to the jurisdiction of, the courts of a State (whether it be a Member State or not) cannot be heard to say that the decision of those courts is not binding. That is as far as Your Lordships need go in the present case, since the applicant herself instituted the proceedings before the Tribunal de Première Instance of Brussels. Nor do I think it necessary to enter into the questions that were broached in argument as to what the consequences would have been had it been shown that the Tribunal wrongly assumed jurisdiction even as a matter of Belgian law or that it acted in disregard of the rules of natural justice.

I would therefore reject the applicant's second contention.

Having regard, however, to the views I have expressed on her first and third contentions, I am of the opinion that Your Lordships should declare void the decision communicated to her by the letter of 25 May 1978 from the Head of the Individual Rights and Privileges Division of the Commission's Directorate-General of Personnel and Administration refusing her a survivor's pension.

As regards consequential relief Your Lordships have, by virtue of the last sentence of Article 91 (1) of the Staff Regulations, unlimited jurisdiction.

In particular Your Lordships have jurisdiction to order the Commission to grant the applicant a survivor's pension in accordance with the provisions of Annex VIII to the Staff Regulations (see the Meinhardt case) and I think Your Lordships should do so since she asks for such an order. In my opinion, however, the order should specify that there should be deducted from past instalments of the pension sums equal to half the orphan's pensions received by the applicant in respect of her children. For the future an adjustment of those pensions should, I apprehend, be automatic.

The applicant also claims interest at the rate of 8% on the arrears of her pension, without specifying from what date. As to the rate, I think that the last two cases in which the Court has awarded interest were Case 115/76 Leonardini v Commission [1978] ECR 735, where 8% was claimed and awarded, and Case 114/77 Jacquemart v Commission [1978] ECR 1697, where 6% was claimed and awarded. So I think that 8% could be awarded here. As to the date, I summarized the relevant principles in my opinion in the Jacquemart case (see [1978] ECR at pp. 1718-1719), and concluded that the appropriate date there would be that of the applicant's complaint to the Commission. The Court adopted that view.

In my opinion the same should apply here, so that interest on the arrears should run from 11 August 1978 in the case of instalments of the pension that fell due before that date.

Lastly the applicant asks for costs and the Commission should in my opinion be ordered to pay them.