JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

14 October 2010

Case F-86/09

W

v

European Commission

(Civil service — Contract staff — Remuneration — Family allowances — Same-sex couple — Household allowance — Condition for granting — Access to legal marriage — Notion — Article 1(2)(c)(iv) of Annex VII to the Staff Regulations)

Application: brought under Articles 236 EC and 152 EA, in which W seeks annulment of the decisions of the Commission of 5 March 2009 and 17 July 2009 refusing to pay him the household allowance provided for in Article 1 of Annex VII to the Staff Regulations of Officials of the European Union.

Held: The decisions of the Commission of 5 March 2009 and 17 July 2009 refusing W the benefit of the grant of the household allowance provided for in Article 1 of Annex VII to the Staff Regulations of the European Union are annulled. The Commission is ordered to pay all the costs.

Summary

1. Officials — Actions — Act adversely affecting an official — Decision rejecting a complaint — Straightforward rejection — Confirmatory measure — Inadmissibility — Exception

(Staff Regulations, Arts 90 and 91)

2. Officials — Remuneration — Family allowances — Household allowance — Conditions for granting — Official registered as a stable, non-marital partner

(Art. 19(1) TFEU; Charter of Fundamental Rights of the European Union, Arts 7 and 21(1); Staff Regulations, Annex VII, Art. 1(2)(c)(iv); Council Regulation No 723/2004)

1. Claims for the annulment of a decision rejecting a complaint expressly or by implication have, as such, no content of their own and are in reality indissociable from claims for the annulment of the act adversely affecting the person concerned against which the complaint was lodged. Where it only confirms the act or failure to act to which the complainant takes exception, a decision rejecting a complaint, whether it be express or implied, is not, by itself, a decision which may be challenged.

A purely confirmatory measure, such as an act which contains no new factors as compared with a previous measure adversely affecting the applicant and which has not therefore replaced it, cannot be described as an act adversely affecting the applicant. However, an express decision rejecting a complaint may, in the light of its content, not be confirmatory of the measure contested by the applicant. That applies where the decision rejecting the complaint contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the original decision. In such circumstances, the rejection of the complaint constitutes a measure subject to review by the court, which will take it into consideration when assessing the legality of the contested measure.

(see paras 26-29)

See:

33/79 and 75/79 Kuhner v Commission [1980] ECR 1677, para. 9; 23/80 Grasselli v Commission [1980] ECR 3709, para. 18; 371/87 Progoulis v Commission [1988] ECR 3081, para. 17

T-608/97 Plug v Commission [2000] ECR-SC I-A-125 and II-569, para. 23; T-338/00 and T-376/00 Morello v Commission [2002] ECR-SC I-A-301 and II-1457, para. 34; T-14/03 Di Marzio v Commission [2004] ECR-SC I-A-43 and II-167, para. 54; T-258/01 Eveillard v Commission [2004] ECR-SC I-A-167 and II-747, para. 31; T-375/02 Cavallaro v Commission [2005] ECR-SC I-A-151 and II-673, paras 63 to 66

F-18/08 Ritto v Commission [2008] ECR-SC I-A-1-281 and II-A-1-1495, para. 17; F-7/09 Faria v OHIM [2010], para. 30 and the case-law cited therein

2. The extension of entitlement to the household allowance to officials registered as stable, non-marital partners, including those of the same sex, reflects the legislature’s concern, according to the seventh recital in the preamble to Regulation No 723/2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities, that compliance should be observed with the principle of non-discrimination enshrined in Article 19(1) TFEU, thus necessitating the further development of a staff policy ensuring equal opportunities for all, regardless of the person’s sexual orientation or marital status, which also corresponds to the prohibition of any discrimination based on sexual orientation provided for in Article 21(1) of the Charter of Fundamental Rights of the European Union. Furthermore, the extension of entitlement to the household allowance to officials registered as stable, non-marital partners, including those of the same sex, reflects the need to protect officials against the administration’s interference in the exercise of their right to respect for their family and private life, as recognised in Article 7 of the Charter of Fundamental Rights and Article 8 of the European Convention on Human Rights (ECHR).

As with protection of the rights ensured by the ECHR, the rules of the Staff Regulations extending entitlement to the household allowance to officials registered as stable, non-marital partners, including those of the same sex, must be interpreted in such a way as to make those rules as effective as possible, so that the right in question is not theoretical or illusory, but practical and effective.

For officials registered as stable, non-marital partners, including those of the same sex, the right to the household allowance laid down in Article 1(2)(c)(iv) of the Staff Regulations could prove theoretical and illusory if the notion of ‘access to legal marriage in a Member State’, the absence of which is one of the conditions for such an official to receive the household allowance, were construed in a purely formal sense, making the application of that provision contingent on whether the couple fulfils the statutory conditions laid down in the national legislation applicable, without any verification of whether their access to marriage is practical and effective, as defined in the judgments of the European Court of Human Rights.

It follows that, in investigating whether a same-sex couple has access to legal marriage under the legislation of a Member State, the administration cannot disregard the provisions of the law of another State with which the situation in question is closely connected because of the nationality of the persons concerned, where that law, although not applicable to matters relating to the formation of marriage, could render access to marriage and therefore the right to the household allowance theoretical and illusory. That is particularly true of a national law which criminalises homosexual acts without making any distinction according to the place where the homosexual act is committed.

(see paras 42-45)