Opinion of Mr Advocate General Ruiz-Jarabo Colomer delivered on 18 March 1999. - Jutta Johannes v Hartmut Johannes. - Reference for a preliminary ruling: Amtsgericht Köln - Germany. - Officials - Pension rights - Apportionment of pension rights in divorce proceedings. - Case C-430/97.



European Court reports 1999 Page I-03475



Opinion of the Advocate-General

1 The Amtsgericht Köln (Local Court, Cologne), Germany, has referred two questions for a preliminary ruling under Article 177 of the EC Treaty; it asks the Court of Justice to interpret Article 6 of the EC Treaty and Article 27 of Annex VIII to the Staff Regulations of Officials of the European Communities, (1) in the version contained in Regulation (ECSC, EEC, Euratom) No 2799/85 (2) (hereinafter `the Staff Regulations').

I - The facts in the main proceedings

2 Those questions have arisen in proceedings before the national court between the petitioner Mrs Johannes and the respondent Mr Johannes, her former husband from whom she is divorced. Mrs Johannes is claiming apportionment of the respondent's pension rights on a pro rata basis in accordance with the duration of the marriage, pursuant to certain provisions of German law, specifically Article 1587 f et seq. of the Bürgerliches Gesetzbuch (German Civil Code, hereinafter `the BGB') and Article 2 of the Gesetz zur Regelung von Härten im Versorgungsausgleich (Law on the Prevention of Hardship in the Adjustment of Pension Rights).

3 The parties were married on 18 April 1963 in the United States. Both are German nationals. On 16 October 1963 the respondent was recruited as a member of the auxiliary staff of the Commission of the European Economic Community and on 1 January 1964 he was appointed an official.

4 The marriage was dissolved on 28 April 1986 under Belgian law, as the law of the last common place of residence, by a judgment of the Tribunal de Première Instance (Court of First Instance), Brussels. The decree became absolute on 28 October 1988 and was recognised by the Ministry of Justice of Land Nordrhein-Westfalen on 21 April 1995. Both during and after the divorce the parties' three children remained with the respondent and in his care.

5 According to the details given by the national court in the order for reference, a claim by Mrs Johannes against her ex-husband for maintenance has not yet been legally determined.

6 Since 1 June 1996 the respondent has been receiving a retirement pension from the European Communities, following his attaining the age of sixty-five on 20 May 1996. (3)

7 The parties are agreed that the pension rights acquired by the respondent in Germany with the Bundesversicherungsanstalt für Angestellte (Federal Insurance Office for Salaried Employees) are subject to German law which provides for their apportionment in the event of divorce. The questions referred for a preliminary ruling do not relate to those rights, which he acquired as a consequence of the compulsory contributions he paid prior to his appointment as a Community official and the voluntary contributions he made subsequently.

8 The petitioner also claims that the basis of the respondent's retirement pension from the European Communities should be apportioned. However, in a letter to Mr Johannes dated 18 May 1985, the Commission stated that, under the regulations as they stand, a divorced wife has no direct entitlement to the retirement pension acquired by an official.

II - The questions referred for a preliminary ruling

9 In order to resolve the problems of Community law which have arisen in the case, the Amtsgericht Köln, Family Division, considered it necessary to stay the proceedings and refer the following two questions for a preliminary ruling:

`1. Do the Staff Regulations of Officials of the European Communities, in particular Annex VIII thereto (Pension scheme) and more especially Article 27 of that annex, constitute an exhaustive set of rules governing the pension entitlements of a divorced spouse of an official which excludes further claims under national law (in this case, apportionment of pension rights under the German law of obligations)?

2. Is it compatible with the Staff Regulations of Officials of the European Communities and Article 6 of the EC Treaty for the laws of a Member State (in this case Germany) regarding the consequences of divorce to place a heavier burden on an official who is faced with a claim for pension apportionment under the law of obligations solely because he is a German national?'

III - Community law

10 The national court has asked for an interpretation of Article 6 of the EC Treaty, which provides:

`Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.

...'

11 Chapter 3 of Title V of the Staff Regulations provides for the pension rights of officials and, in specific cases, of the members of their families. Annex VIII to the Staff Regulations (hereinafter `Annex VIII') gives effect to the provisions relating to the pension scheme; Chapter 4 of Annex VIII regulates the survivor's pension. So far as is relevant to this case, Article 27 thereof states:

`The divorced wife 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 her former husband, she can justify entitlement on her own account to receive maintenance from him by virtue of a court order or as a result of a settlement between herself and her former husband.'

IV - Observations submitted during the preliminary-ruling proceedings

12 The respondent in the main proceedings, the German Government and the Commission submitted written observations within the period prescribed for that purpose by Article 20 of the EC Statute of the Court of Justice. At the hearing on 25 February 1999 the respondent's representative and the Commission's representative submitted their oral observations.

13 The respondent in the main proceedings maintains that the pension scheme established by the Staff Regulations constitutes a comprehensive and closed system leaving no room for divergent regulations under national law and that, should national law nevertheless lay down divergent regulations, the latter must give way to the precedence of Community law. In his opinion, Community law does not tolerate its effects being indirectly circumvented. If Article 27 of Annex VIII does not provide for any apportionment of pension rights but only makes provision for a survivor's pension for the divorced spouse, it is not for national law to seek to achieve the same result by making an official's pension subject to apportionment. Furthermore, to apply the German provisions would constitute discrimination on grounds of nationality.

14 Neither the German Government nor the Commission agrees with this point of view.

15 The German Government observes that, under German law, apportionment of pension rights is based on the consideration that they are the result of a common effort. The objective is to ensure that, in the event of divorce, each of the spouses receives half of the pension rights acquired during the marriage. Accounts are drawn up and settled after all the retirement or invalidity pension rights acquired by both parties have been assessed. It believes that there is no reason to exclude rights acquired from an international or supranational pension scheme. Compensatory adjustment does not have any direct bearing on pension rights because it is governed by the law of obligations. A person who benefits from an apportionment acquires a claim against a former spouse, who must pay him or her a monthly sum equal to half of the difference, in terms of value, of the rights which are subject to apportionment.

It adds that, even if the international or supranational social security scheme makes provision for a specific benefit for a divorced spouse, such as a survivor's pension, there is nothing to prevent the pension rights acquired under that scheme being included in the calculation when the apportionment is made. The nature of apportionment prevents the divorced spouse from accumulating the rights arising from apportionment and the right to a survivor's pension: while the official is still alive the event giving rise to payment of the survivor's pension has not taken place, and the claim created by the apportionment of pension rights is, as a rule, extinguished by the death of the official.

Lastly, the German Government states that neither the Staff Regulations nor Article 6 of the Treaty preclude the conflict rules of a Member State from taking the nationality of the spouses as a criterion for determining the law applicable to the consequences of divorce.

16 The Commission considers that Article 27 of Annex VIII does not affect the provisions applicable to the main proceedings, which provide for the apportionment of pension rights between spouses, because, as Community law now stands, family law falls within the competence of the Member States. We should therefore construe Article 27 of Annex VIII as having no bearing on the financial rights arising out of divorce proceedings between a working or retired official and his former spouse.

It takes the view that Article 6 of the Treaty is not applicable to a situation like the one which has given rise to the main proceedings, because there is nothing on which to base any cross-border connection.

V - The first question referred for a preliminary ruling

17 By this question the national court seeks essentially to ascertain whether Article 27 of Annex VIII to the Staff Regulations precludes a claim brought before the courts of a Member State by the former wife of a retired official of the European Communities for apportionment of pension rights under family law.

18 I should like to point out, first of all, that the Community provision whose interpretation is sought by the national court is not applicable to this case. Article 27 of Annex VIII recognises the right of the divorced wife of an official to a widow's pension provided that, at the time of his death, she is entitled to receive maintenance from him. However, according to the order for reference, the respondent has not died and is not required to pay maintenance to his former wife. I believe, therefore, that there is no need to interpret this provision.

19 I agree with the German Government that the objective of the survivor's pension granted under Article 27 of Annex VIII is different from that of apportionment. In fact, payment of the pension begins only after the death of the official and provided that the surviving spouse was previously entitled to receive maintenance. The amount of the pension may not exceed the amount already received as maintenance. The right to a survivor's pension ceases if the survivor remarries and, if there is more than one divorced spouse entitled to a survivor's pension on the death of a Community official, the pension is shared between them in proportion to the length of the marriages.

On the other hand, the objective of the apportionment of pension rights is to allocate the rights acquired during the marriage. A claim thereby arises which must be paid to the person entitled to receive the benefit by the person who owes it. The right arises when the event leading to apportionment occurs, allowing the recipient to share equally in the rights acquired jointly. For the right to be granted, the recipient does not have to be in need. The amount is not fixed according to the other spouse's ability to contribute. The fact that the recipient remarries does not affect the apportionment of pension rights and the right is not in the nature of maintenance, but makes up for the disadvantage, in respect of pension rights, suffered by the spouse who has acquired fewer of them than the other spouse during the marriage.

20 The Staff Regulations were adopted as a regulation. Therefore, under the provisions of the second paragraph of Article 189 of the Treaty, they are of general application, binding in their entirety and directly applicable in all Member States. From this the Court of Justice has inferred that the Regulations, as well as having an effect within the Community administration, are also binding on the Member States to the extent to which their involvement is necessary in order to ensure their application. (4)

21 The Staff Regulations are intended only to regulate legal relations between the European institutions and their officials, by establishing a series of reciprocal rights and obligations and by affording certain members of an official's family rights which they may assert in relation to the European Communities. Most of those rights are financial and consist, for example, of health insurance, the orphan's pension, the survivor's pension for the spouse who survives the official or the widow's pension under Article 27 of Annex VIII for a divorced wife who fulfils certain requirements.

The Court of Justice has held that the objective of Article 27 is not to ensure that the divorced wife continues to receive, in a different guise, maintenance paid as a consequence of divorce, but to recognise a right which the Staff Regulations grant directly to the party concerned in her capacity as a divorced wife who has not remarried. (5)

22 On the other hand, the Staff Regulations do not govern the rights and obligations which an official may have, under family law or private law, in relation to a member of his family or a third party.

23 It cannot be conceded that the pension scheme established by the Staff Regulations constitutes, as the respondent maintains, an autonomous and comprehensive system whose provisions must prevail over national law by virtue of the principle of the primacy of Community law. Those provisions contain no rules applicable to an official's financial rights and obligations in respect of his former spouse, as a consequence of divorce, or to the substance of such rights or the procedures for implementing them under family law.

24 Moreover, as the Commission rightly says, the Community legislature has no competence to lay down the rights of spouses in divorce proceedings, including those resulting from any apportionment of pension rights as provided for under German law. The rules of private law and family law still fall within the purview of the Member States.

25 The Court of First Instance has recently given judgment in a case (6) which may serve to illustrate the working of the apportionment of pension rights in the event of divorce under German civil law, when one of the pensions is payable by the European Communities. The divorced wife of a retired official of the European Parliament applied to remain affiliated to the officials' health insurance scheme, in spite of the fact that a year had passed since the divorce decree. (7)

26 Paragraph 3 of the judgment sets out the following facts: (i) the Cour d'Appel (Court of Appeal), Luxembourg, dissolved the marriage of the applicant and her former husband; (ii) both were German nationals; (iii) the couple agreed to apportion the retirement pension which the former husband received from the European Communities, pursuant to the provisions of the BGB which regulate the apportionment of pension rights in the event of divorce; (iv) the Luxembourg Juge de Paix (Magistrate), endorsed that agreement.

27 In paragraph 65 of that judgment the Court of First Instance states that the German rule providing for the apportionment, in the event of divorce, of the pension rights acquired by a married couple is intended only to give the spouse who has not paid contributions to a pension scheme the right to share the rights acquired by the other spouse. It adds that this aim is satisfied by the Community institutions in so far as the Parliament pays part of the retired official's pension directly to his ex-wife pursuant to the divorce decree.

I deduce from these statements that the apportionment of pension rights for which German law provides in the event of divorce is a concept which is not unknown to the Community institutions. In practice, the institutions pay part of a retired official's pension to whomever is entitled to it pursuant to a court order or a settlement between the spouses, without such payment implying the acquisition of a direct personal right in relation to the European Communities.

28 The Court of Justice, in its decision in the appeal proceedings in that case, (8) pointed out that the apportionment of pension rights, whether carried out pursuant to a court order or to a settlement between the spouses or as the direct result of the application of national law, cannot confer a pension right on the ex-wife of an official, that being a matter governed by the Staff Regulations.

29 I must conclude, therefore, that neither Article 27 of Annex VIII to the Staff Regulations, which the national court has asked this Court to interpret, nor any other provision of the Staff Regulations, precludes a claim by the ex-wife of a retired official of the European Communities before the courts of a Member State for apportionment, under the family law of that State, of the pension rights acquired during the marriage.

VI - The second question referred for a preliminary ruling

30 By this question the national court seeks essentially to ascertain whether Article 6 of the Treaty precludes the conflict rules of a Member State from taking the nationality of the spouses as a criterion for determining the law applicable to the consequences of divorce, having regard to the fact that application of the family law of the State of which the Community official is a national may place a heavier burden on him than if he were a national of another Member State.

31 The respondent states that, given that, of all the Member States, only Germany and the Netherlands make provision for the apportionment of pension rights, officials who are German or Dutch nationals and subject to their national law are in an unfavourable position in relation to the officials who are nationals of the other Member States. (9)

32 The Court has consistently held that Article 6 of the Treaty refers only to situations governed by Community law and may not be applied to activities which are wholly unrelated to Community law and are a matter for a single Member State. (10)

33 As the Commission rightly points out, the case in which this question has arisen does not satisfy the requirements for application of Article 6 of the Treaty. First, the law applicable to divorce and its consequences, one of which may be the apportionment of pension rights, is a matter for the national legislature; and, second, Article 6 of the Treaty may not be applied because there is no cross-border element such as to justify considering whether there is discrimination on grounds of nationality. German law is being applied by a German court to a divorce decree recognised in Germany, dissolving the marriage between two German nationals.

Furthermore, as the situation lies outside the scope of Community law, the court hearing the case is not required, under Community law, either to interpret its legislation in a way conforming with Community law or to disapply that legislation. (11)

34 In the circumstances I have to conclude that Article 6 of the Treaty does not preclude the conflict rules of a Member State from taking the nationality of the spouses as a criterion for determining the law applicable to the consequences of divorce.

VII - Conclusion

35 In the light of the foregoing, I propose that the Court of Justice reply to the two questions raised by the Amtsgericht Köln as follows:

(1) Neither Article 27 of Annex VIII to the Staff Regulations of Officials of the European Communities, in the version contained in Council Regulation (ECSC, EEC, Euratom) No 2799/85 of 27 September 1985 amending the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities, nor any other provision of the Staff Regulations precludes a claim brought before the courts of a Member State by the former wife of a retired official of the European Communities for apportionment of pension rights under the family law of that State.

(2) Article 6 of the EC Treaty does not preclude the conflict rules of a Member State from taking the nationality of the spouses as a criterion for determining the law applicable to the consequences of divorce.

(1) - Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down the Staff Regulation of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission (OJ, English Special Edition 1968 (I), p. 30).

(2) - Council Regulation (ECSC, EEC, Euratom) No 2799/85 of 27 September 1985 amending the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities (OJ 1985 L 265, p. 1).

(3) - Under Article 40 of Annex VIII to the Staff Regulations, the institution for which the official was working when he retired calculates the amount of retirement pension payable and gives an itemised breakdown to the official or his dependants and to the Commission, which is responsible for ensuring payment of pensions. Article 45 provides that the payments are to be made on behalf of the European Communities by the institution designated by the budgetary authorities.

(4) - Case 137/80 Commission v Belgium [1981] ECR 2393, paragraph 8, and Case 186/85 Commission v Belgium [1987] ECR 2029, paragraph 21.

(5) - Case 24/71 Meonhardt v Commission [1972] ECR 269, paragraphs 2 and 3.

(6) - Case T-66/95 Kuchlenz-Winter v Commission [1997] ECR II-637.

(7) - Article 72(1)b of the Staff Regulations provides that if the divorced spouse of an official can prove that she cannot obtain reimbursement under any other health insurance scheme, she may continue, for a year at most, to benefit from cover against health risks. That period runs from the date on which the divorce decree is made absolute.

(8) - Order of the Court of Justice of 8 October 1998 in Case C-228/97 P Kuchlenz-Winter v Commission [1998] ECR I-6047 which stated that the appeal was, in part, manifestly inadmissible and, in part, manifestly unfounded.

(9) - I do not agree with the respondent's contention that, in any event, officials who are German or Dutch nationals are in an unfavourable position in relation to the nationals of the other Member States owing to their nationality, because they may be required to carry out apportionment, in favour of a former spouse, of pension rights acquired during the marriage. I believe that when the accounts of the pension rights acquired by both spouses are balanced and settled, officials who are German or Dutch nationals may also gain from the operation, depending on the circumstances of each case.

(10) - Joined Cases 35/82 and 36/82 Morson and Jhanjan [1982] ECR 3723, paragraph 16, Case 147/87 Zaoui [1987] ECR 5511, paragraph 15, Case C-332/90 Steen [1992] ECR I-341, paragraph 9, Case C-153/91 Petit [1992] ECR I-4973, paragraph 8, Case C-206/91 Koua Poirrez [1992] ECR I-6685, paragraph 11, Joined Cases C-64/96 and C-65/96 Uecker and Jacquet [1997] ECR I-3171, paragraph 16.

(11) - Case C-264/96 ICI [1998] ECR I-4695, paragraphs 34 and 35.