Appeal brought on 7 June 2021 by the Council of the European Union against the judgment of the General Court (Seventh Chamber) delivered on 24 March 2021 in Case T-374/20, KM v European Commission

(Case C-357/21 P)

(2021/C 310/18)

Language of the case: German

Parties

Appellant: Council of the European Union (represented by: M. Bauer and M. Alver, acting as Agents)

Other parties to the proceedings: KM, European Commission, European Parliament

Form of order sought

The appellant submits that the Court should:

— uphold the appeal and set aside the judgment of the General Court of the European Union of 24 March 2021 (Seventh Chamber), KM v Commission, in Case T-374/20;

— give a final decision in the case and dismiss the action brought at first instance as unfounded;

— order the applicants at first instance to pay the costs incurred by the Council in the course of the present proceedings and the proceedings at first instance.

Pleas in law and main arguments

In support of its appeal, the Council puts forward four grounds of appeal.

In its first ground of appeal the Council alleges an error of law regarding a difference in treatment for the purposes of the grant of a survivor’s pension under Article 18 or Article 20 of Annex VIII to the Staff Regulations, of the surviving spouse of a former official who married before leaving the service, and the surviving spouse of a former official, who married after leaving the service. The General Court did not, however, assess the comparability of the situations at issue, having regard to all the elements which characterise them, in particular their respective legal situations, in the light of the subject matter and purpose of the EU act in question. The General Court thus erred in law, by declaring that the date on which the marriage was concluded is the only element which determines the application of Article 18 or Article 20 of Annex VIII of the Staff Regulations, while the difference in treatment is justified by the basic factual and legal difference between the status of an official, who is covered by any administrative status listed in Article 35 of the Staff Regulations, and that of a former official.

In the alternative, the Council raises the second and third grounds of appeal.

In its second ground of appeal, the Council puts forward an error of law with regard to the scope of judicial review by the General Court of decisions made by the EU legislature. The General Court referred to the existence of a ‘simple’ discretion on the part of the EU legislature, which implies the need to ensure, that it does not appear unreasonable for the EU legislature to consider that the difference in treatment introduced is necessary and appropriate in order to achieve the intended aim. The General Court failed to appreciate that the EU legislature, in the exercise of the powers conferred on it, has a broad discretion, in areas in which its action involves political, economic or social choices and in which it is called upon to undertake complex evaluations and assessments, which is the case for the arrangement of a social insurance scheme. Thus, the criterion to be applied is not whether a measure adopted in this area was the only or the best possible measure. The lawfulness of a measure can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institutions are seeking to pursue. By conducting a review that went beyond the manifestly inappropriate nature of the measure at issue, the General Court substituted its own assessment for that of the legislature and exceeded the limits of its power of judicial review.

In its third ground of appeal, the Council alleges that the General Court erred in law in its examination as to whether the difference in treatment is justified. First, that assessment is vitiated by an error of law in the definition of the scope of judicial review of decisions made by the EU legislature. Next, the General Court failed to appreciate the case-law which establishes that it is for the applicant to demonstrate the conflict of a legislative provision with primary law, and not a matter for the institution which drafted that act, to demonstrate its lawfulness. In addition, the General Court erred in law when assessing whether the difference in treatment is justified in the light of case-law which states a general presumption of fraud is not sufficient to justify a measure which undermines the objectives of the FEU Treaty, finding that Article 20 of Annex VIII of the Staff Regulations introduced a general and non-rebuttable presumption of fraud against marriages of less than five years. Lastly it follows that it is irrelevant in the present case that the judgment under appeal ruled on whether it was possible to bring objective evidence to rebut the presumption of fraud given that Article 20 of Annex VIII of the Staff Regulations does not set out a presumption of fraud or a presumption of the absence of fraud relating to a marriage.

Finally, in its fourth ground of appeal, the Council also alleges an error of law and a breach of the obligation to state reasons with regard to the conclusion of the General Court for the prohibition of discrimination on grounds of age. In the judgment under appeal, the General Court refers alternatively to the age of the surviving spouse, the age of the official or of the former official and fails to appreciate its obligation to state reasons. The finding of a particular disadvantage for persons of a certain age or a certain age group depends in particular on proof that the provision in question has an unfavourable effect on a significantly higher proportion of persons of a certain age in comparison to persons of another age; however, that proof is not provided in the present case. Even assuming that such a difference in treatment arises, indirectly based on the age of the former official at the time of the marriage, nevertheless the General Court also failed to examine whether that difference in treatment is consistent with Article 21(1) of the Charter of Fundamental Rights (1) and satisfied the criteria in Article 52(1) of the Charter.

(1) Charter of Fundamental Rights of the European Union (OJ 2012 C 326, p. 391).