Appeal brought on 26 February 2021 by Council of the European Union against the judgment of the General Court (Seventh Chamber) delivered on 16 December 2020 in Case T-315/19, BT v Commission

(Case C-138/21 P)

(2021/C 182/60)

Language of the case: French

Parties

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

Other parties to the proceedings: BT, European Commission, European Parliament, International Association of Former Officials of the European Union (AIACE International)

Form of order sought

The appellant submits that the Court should:

— allow the appeal and set aside the judgment under appeal;

— dispose of 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.

Grounds of appeal and main arguments

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

The first, and main, ground of appeal alleges errors of law regarding the existence of 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, between, on the one hand, the surviving spouse of a former official who married before the latter’s employment ceased and, on the other hand, the surviving spouse of a former official who married after the latter’s employment ceased. According to the Council, the General Court failed to assess the comparability of the situations at issue having regard to all the elements which characterise them, including their respective legal situations, in the light of the subject matter and purpose of the EU act which makes the distinction in question, namely the Staff Regulations as a whole. The General Court therefore erred in law in so far as it declared that the date on which the marriage was concluded is the sole element which determines the application of Article 18 or Article 20 of Annex VIII to the Staff Regulations, while the difference in treatment is justified by the fundamental factual and legal difference between the legal situation of an official who has one of the administrative statuses set out in Article 35 of the Staff Regulations and that of a former official.

The second ground of appeal, raised in the alternative, alleges errors of law concerning the extent of the judicial review of choices 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 appropriate and necessary to achieve the intended aim’. However, the EU Courts acknowledge 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 and social choices, and in which it is called upon to undertake complex assessments and evaluations, which is the case for the organisation of a social security system. 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. Through a review that went beyond the manifestly inappropriate nature of the measure at issue, the General Court substituted its own assessment to that of the legislature and thus exceeded the limits of its power of judicial review.

The third ground of appeal, raised in the alternative, 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 the error committed by the General Court in so far as concerns the definition of the extent of its review of the choices made by the legislature. Second, the General Court disregarded the case-law which establishes that it is for the applicant to demonstrate the conflict of a legislative provision with primary law, and not for the institutions which drafted the act to demonstrate the lawfulness of the latter. Third, the General Court erred in law when assessing whether the difference in treatment is justified in the light of case-law which states that 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 to the Staff Regulations establishes a ‘general and non-rebuttable presumption of fraud against marriages of less than five years’.

The fourth ground of appeal alleges errors of law and infringement of the obligation to state reasons in so far as concerns the findings of the General Court on the infringement of the prohibition of discrimination on grounds of age. In the first place, in paragraph 61 of the contested judgment, the General Court talks either of the age of the surviving spouse, or of the age of the official or of the former official, thus failing to fulfil the obligation to state reasons. In the second place, the finding of a particular disadvantage for people of a particular age or of a specific age range depends, in particular, upon proof that the regulations at issue negatively affect a significantly greater portion of persons of a certain age compared to persons of a different age/age group, and there is no such proof in the present case. Lastly, assuming that there is a difference in treatment based indirectly on the age of the former official on the date of the marriage, the General Court failed to examine whether that difference was nonetheless in conformity with Article 21(1) of the Charter of Fundamental Rights and whether it satisfied the criteria set out in Article 52(1) thereof.