2.

The substance of the case concerns the question whether the Commission was justified in refusing the applicant a share in the survivor's pension. As we know, it did so on the ground that the Commission was not in a position to establish whether the deceased husband of the applicant was under an obligation to pay her maintenance, as such an obligation must issue from the decree of divorce or from some other order of the court. Failing this it can only be held, according to the Commission, that there was no obligation to pay maintenance and that an essential prerequisite for the award of a survivor's pension is lacking. The applicant considers this view to be incorrect on several grounds. She maintains that, as regards questions concerning the obligation to pay maintenance, Article 28 of the Staff Regulations refers to national law, that is, in the present case, to the requirements of paragraph 58 of the Ehegesetz (Marriage Law), which were in fact satisfied. Moreover, it is necessary, according to the applicant, to regard the payments of certain monthly sums by the deceased husband of the applicant over a period of years as the performance of an implied maintenance agreement within the meaning of Article 72 of the Ehegesetz and to recognize this as sufficient for the purposes of the Staff Regulations of the Community. On the other hand, it is not possible to require proof of the obligation pay maintenance in the form of a decree of divorce, since this is never done under German law. Also, it is not possible to require the production of other judicial decisions because it was impossible to obtain them or at least unreasonable to call for this to be done. Finally, it is necessary to proceed from the principle that the applicant ought not to be placed in a worse position than she would be under the national law governing public servants. The decisive factor here is that under paragraph 125 of the Bundesbeamtengesetz (Federal Law on Public Servants) the actual payment of maintenance by the divorced husband is sufficient to found a claim to a survivor's pension. If we consider what to make of these arguments it is very quickly apparent that the final point put forward by the applicant can be dismissed as irrelevant, since such a principle is nowhere to be found in the Staff Regulations. Moreover, there are good reasons for this. In this connexion, as the Commission and the intervener have pointed out, it must not only be clear that the Staff Regulations are based upon a different construction than that which forms the basis of Article 125 of the Bundesbeamtengesetz, referred to by the applicant. It must also be remembered that if the principle advocated by the applicant were generally applied the different structures of the national laws governing public servants would result in different rules according to the country of origin of the official concerned. This would, however, be scarcely compatible with the principle of the uniform application of the Staff Regulations of Officials of the Community. For this reason there is no need to give further consideration to the conclusions drawn from paragraph 125 of the Bundesbeamtengesetz. The consideration of the remaining arguments at issue is not so easy. It calls for a careful analysis of Articles 27 and 28 of the pension scheme contained in the Staff Regulations. From this there emerge in the first place the following points. There is a clear distinction under the Staff Regulations between the cases covered by Article 27, in which the divorced wife of an official is entitled to a survivor's pension, and those covered by Article 28 in which, apart from the widow of a deceased official, a first, divorced wife is entitled to a share in the survivor's pension. The entitlement under Article 27 is subject to the sole condition that ‘the decree of divorce found that the deceased official was solely to blame’. Article 28, however, requires that ‘the amount to which the divorced wife is entitled if she has not remarried shall not be more than the amount of the maintenance awarded to her under the decree’. The Commission regards this as an additional requirement for the acquisition of the right and on this point its view must be accepted. At all events it would be incorrect to ascribe to the sentence in Article 28 to which I have just referred the sole function of limiting, only in so far as its scope is concerned, a right to a survivor's pension which exists in principle. As is shown by a glance at the national law, for example, paragraph 58 of the German Ehegesetz, it is quite conceivable that a husband who is declared solely to blame is not always bound to pay maintenance. If in such a case the title to maintenance (whatever is to be understood by this term) referred to in Article 28 of the pension scheme is absent, there is accordingly no right to a share in the survivor's pension. Considered in this light, this means that as the proof referred to in Article 28 has only to be produced by the first wife of an official who marries more than once, it is not unreasonable to speak, as the Commission does, of the privileged position enjoyed by the wife of an official. Furthermore, it also seems clear to me that the meaning and purpose of the condition stipulated in Article 28, which is important for the division of the survivor's pension, is to relieve the administrative authorities and the Court of Justice of the Communities of the task of assessing, in the light of national law, the existence and scope of an obligation to pay maintenance which a divorced official must fulfil. In fact, considered from the point of view of the essential duties of the institutions of the Community, this assessment not only involves an unfamiliar subject-matter; it also concerns what is unquestionably an extremely complicated area of law. In dealing with this area of law many delicate questions of fact and of law arise and it can therefore be said that it is only possible to deal with it appropriately in the context of continuous experience, such as the national authorities alone possess. There is no need to look further than the wording of paragraph 58 of the German Ehegesetz, according to which the question turns upon the ‘maintenance appropriate to the standard of living of the spouses’ and which requires both earned and unearned income to be taken into account. This becomes clearer if one looks at the extensive case-law on this subject and observes that the important factors are not only the evaluation of assets and income but also whether the divorced wife can be required to take up gainful employment, the taking into account of other obligations, fairness, and, where appropriate, the question whether there are other persons who are obliged to pay maintenance. However, if the purpose of the additional condition in Article 28 is seen in the manner outlined above, then there is no doubt that the applicant's argument that the Community authorities ought to have applied paragraph 58 of the Ehegesetz directly and established the extent of the obligation to pay maintenance is incorrect. At the same time it is clear that, at the most, the applicant may be entitled to a share in the survivor's pension to the extent of the amount referred to in the reply, that is, of the monthly payments made by her husband, and that any claim in excess of this must be dismissed as unfounded. In fact, in my opinion the central question in the present proceedings is whether, for the purpose of invoking Article 28 of the pension scheme, it is sufficient to refer to earlier payments as evidence of an implied maintenance agreement or whether — as the Commission considers — the production of a judgment of a court or — what the intervener considers would be sufficient — the production of a judicially authenticated settlement is necessary. If one tries to resolve this problem, the answer arising out of the wording of Article 28 appears at first sight to be simple, as it clearly speaks of the existence of a decree. It quickly becomes apparent, however, that it is impossible to rely on the wording alone. That is clear in the case of Article 27 of the pension scheme. If one starts with the premise, which is certainly correct, that the Staff Regulations did not alter national matrimonial law, and in view of the fact that in some of the Member States decrees of divorce do not contain a finding of guilt, it may be justified to assume that the wording used in Article 27, which I have already cited, is not of decisive importance. The same applies to Article 28. In its context the words ‘the decree’ used in the last sentence of the first paragraph can only relate to the decree of divorce mentioned in the previous sentence. However, the Commission and the intervener both acknowledge that such a strict interpretation is inappropriate since in several Member States obligation to pay maintenance is not dealt with in the decree of divorce but, if any dispute arises, in a special judgment or order. They therefore consider that, for the purposes of Article 28, some kind of court order or, in the opinion of the intervener, a judicially authenticated settlement, is sufficient. If, however, it is considered that a judicious interpretation of Article 28, which departs from the text is necessary, it is possible in the present context for the view to commend itself that the real purpose of the condition laid down in Article 28, with which I have just dealt, is solely to indicate, as regards the obligation to pay maintenance, a reliable point of reference deriving from national law, and from this point of view it is quite justifiable also to take maintenance agreements into consideration. Certain additional considerations make it clear that this view must not be rejected out of hand. As you are aware, the applicant has submitted that when there is no dispute over the obligations to pay maintenance, no possibility exists under national law of bringing an action or that it would at the very least be unreasonable require the institution of proceedings before a court. Of course it must be said in this respect that the first part of this statement can hardly be correct since (as is shown by paragraph 93 of the German Zivilprozeßordnung (Code of Civil Procedure)) an action for performance does not require the existence of a legally-protected interest and since an action for a declaration brought under paragraph 256 of this Code appears to meet with no objection, at least if it is introduced with reference to a legal relationship which may give rise to rights in the foreseeable future. It must, however, be admitted that the introduction of such proceedings may appear unreasonable if no dispute exists or if — for example because of the age of the defendant — it is unnecessary to take action to guarantee future rights against third parties. This factor ought not to be disregarded in a sensible interpretation of Article 28 of the pension scheme. On the other hand, and I consider this to be important as well, it is by no means the case that the existence and scope of the obligation to pay maintenance are always carefully examined during legal proceedings concerning the award of maintenance. As we have heard, the defendant may simply admit his obligation to pay maintenance, or this obligation may form the subject of an agreed arrangement. Thus, a judicial decision such as that required by the defendant does not necessarily contain reliable statements as to the fulfilment of the requirements of paragraph 58 of the Ehegesetz and the existence of an obligation to pay maintenance. From this it is only a small step to accept the applicant's argument that maintenance agreements under paragraph 72 of the Ehegesetz must be regarded as having the force of evidence for the purposes of Article 28, even when they are reached by implication (which can happen). Such agreements do not, of course, establish with absolute certainty the existence of an obligation to pay maintenance, as they may have been concluded for other reasons. If, however, they have been complied with over a period of years and if, in addition, the court has made a finding of guilt against the party liable to pay the maintenance, these factors may have for the purposes of Article 28 a probative value virtually equivalent to that of judgments of national courts in the matter of maintenance. To summarize, therefore, I consider that in view of the ratio legis of Article 28 of the pension scheme and the clear inadequacies of its wording, it appears reasonable to accept that maintenance agreements — whether they are made expressly or by implication — must be taken into account on the division of a survivor's pension. As, over a period of years, the applicant received regular monthly payments from her divorced husband, she must be regarded as entitled to share to this extent in the survivor's pension. It could only be otherwise if the second wife had succeeded in rebutting the circumstantial evidence presented by the applicant (which could certainly not be done solely by referring to the absence of the substantive condition contained in paragraph 58 of the Ehegesetz). As she has not done so, it is only possible to allow the application to the extent of the claim formulated in the reply.