JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (First Chamber)

27 November 2007

Case F-122/06

Anton Pieter Roodhuijzen

v

Commission of the European Communities

(Civil service – Officials – Social security – Joint Sickness Insurance Scheme – Partner – Article 72 of the Staff Regulations – Article 1 of Annex VII to the Staff Regulations – Article 12 of the Rules on sickness insurance for officials of the European Communities)

Application: brought under Articles 236 EC and 152 EA, in which Mr Roodhuijzen seeks annulment of the Commission decision of 28 February 2006, confirmed on 20 March 2006, refusing to recognise his partnership with Ms Maria Helena Astrid Hart and, consequently, refusing to allow her to be covered by the Joint Sickness Insurance Scheme of the European Communities, and the decision to reject his complaint, taken by the appointing authority on 12 July 2006.

Held: The Commission decision of 28 February 2006, confirmed on 20 March 2006, refusing to recognise the applicant’s partnership with Ms Hart as a non-marital partnership for the purposes of the Joint Sickness Insurance Scheme of the European Communities is annulled. The Commission is ordered to pay the costs.

Summary

Officials – Social security – Sickness insurance – Scope ratione personae – Unmarried partner of an official

(Staff Regulations, Art. 72; Annex VII, Arts 1(2)(c) and 2(4); Council Regulation No 723/2004; Rules on sickness insurance for officials of the European Communities, Art. 12)

In order to define the term ‘unmarried partner of an official’ the text of Article 72 of the Staff Regulations, relating to the Joint Sickness Insurance Scheme of the European Communities, itself refers directly to the first three conditions of Article 1(2)(c) of Annex VII to the Staff Regulations, since the registration of the partnership, referred to in the introductory sentence of Article 1(2)(c) of Annex VII to the Staff Regulations, cannot be considered to be a prerequisite. If the legislature had wished to provide otherwise, Article 72 of the Staff Regulations and Article 12 of the Joint Rules on sickness insurance for officials of the European Communities would have referred respectively not to the ‘unmarried’ and ‘recognised’ partner of an official, but to his ‘registered’ partner, a term used in Article 1(2)(c) of Annex VII to the Staff Regulations. Moreover, recital 8 in the preamble to Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of Officials of the European Communities and the Conditions of Employment of Other Servants of the European Communities, concerning the extension of the benefits enjoyed by married couples to forms of union other than marriage, refers to ‘[o]fficials in a non‑marital relationship recognised by a Member State as a stable partnership’, without making any mention of the conditions for the registration of the relationship in question. In that same context, there is, in essence, no difference between an unmarried partner of an official, as stated in Article 72 of the Staff Regulations, and a recognised partner of an official, within the meaning of Article 12 of the Joint Rules.

Thus, in order to decide whether the right to be covered by the Joint Sickness Insurance Scheme should be extended to the unmarried partner of an official, the task of the Community judicature is to review whether the first three conditions only of Article 1(2)(c) of Annex VII to the Staff Regulations have been complied with .

The first condition states that the couple are to produce a legal document recognised as such by a Member State, or any competent authority of a Member State, proving their status as non‑marital partners. That condition has three parts

– the first part concerns the production of a ‘legal’ document regarding the status of the persons;

– the second part adds the requirement that the legal document be ‘recognised’ as such by a Member State;

– lastly, the third part requires that the legal document, concerning the status of the persons, acknowledge that the persons concerned have the status of ‘non‑marital partners’.

The question whether two persons are ‘non-marital partners’ within the meaning of the third part cannot be solely a matter for the discretion of the national authorities of a Member State. Thus, the requirements to be met in order to attain the status of ‘non‑marital partners’ cannot be satisfied by the mere fact that an official document, recognised as such by a Member State, asserts that such a status exists .

On the other hand, in order to fall within Article 72 of the Staff Regulations and Article 12 of the Joint Rules on sickness insurance for officials of the European Communities a partnership must have a certain resemblance to a marriage. It is in the light of that criterion that the third part of the first condition must be understood as comprising three cumulative sub‑conditions. First, the third part of that condition presupposes, and the term itself as used in the provisions of the Staff Regulations applicable confirms that interpretation, that the partners must form a ‘couple’, in other words a union of two persons, distinct from other unions of persons. Further, the use of the term ‘status’ shows that the partners’ relationship must have public and formal aspects. Linked in part to the first part of the first condition, concerning the production of a legal document regarding the status of the persons, the requirement that the persons concerned should have the status of non-marital partners goes however beyond the mere requirement of an ‘official’ document. Lastly, the term ‘non-marital partners’ must be understood as referring to a situation where the partners’ cohabitation is characterised by a certain stability and they are linked, during that cohabitation, by reciprocal rights and obligations, relating to their cohabitation.

Such an interpretation is, moreover, consistent with developments in social attitudes. In that regard, extending the right to be covered by the Joint Sickness Insurance Scheme to the stable partner of an official pursues the objectives of solidarity and social cohesion, which differ from the objectives pursued by the provisions conferring on officials purely pecuniary advantages, in the form of additional salary such as, for example, the household allowance granted to the partner of an official, provided for by Article 1(2)(c) of Annex VII to the Staff Regulations; it is thus not unreasonable for stricter conditions regarding the relationship between the official and his unmarried partner to be applied to the grant of the last mentioned advantages than to the advantage consisting in the extension to that unmarried partner of the right to be covered by the Joint Sickness Insurance Scheme.

(see paras 29-30, 32, 35-40, 49)

JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (First Chamber)

27 November 2007 ( )

(Staff cases – Officials – Social security – Joint Sickness Insurance Scheme – Partner – Article 72 of the Staff Regulations – Article 1 of Annex VII to the Staff Regulations – Article 12 of the Rules on sickness insurance for officials of the European Communities)

In Case F‑122/06,

ACTION under Articles 236 EC and 152 EA,

Anton Pieter Roodhuijzen, official of the Commission of the European Communities, residing in Luxembourg, represented by É. Boigelot, lawyer,

applicant,

v

Commission of the European Communities, represented by J. Currall and D. Martin, acting as Agents,

defendant,

THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (First Chamber),

composed of H. Kreppel, President, H. Tagaras (Rapporteur) and S. Gervasoni, Judges,

Registrar: S. Boni, Administrator,

having regard to the written procedure and further to the hearing on 12 June 2007,

gives the following

Judgment

1 By application lodged at the Registry of the Civil Service Tribunal on 23 October 2006, Mr Roodhuijzen, an official of the Commission of the European Communities, brought an action for annulment of the Commission decision of 28 February 2006, confirmed on 20 March 2006, refusing to recognise his partnership with Ms Maria Helena Astrid Hart and, consequently, refusing to allow her to be covered by the Joint Sickness Insurance Scheme of the European Communities (‘JSIS’), and the decision to reject his complaint, taken by the appointing authority on 12 July 2006.

Legal context

2 Article 72(1) of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’) states:

‘An official, his spouse, where such spouse is not eligible for benefits of the same nature and of the same level by virtue of any other legal provision or regulations, his children and other dependants within the meaning of Article 2 of Annex VII are insured against sickness up to 80% of the expenditure incurred subject to rules drawn up by agreement between the institutions of the Communities after consulting the Staff Regulations Committee. This rate shall be increased to 85% for the following services: consultations and visits, surgical operations, hospitalisation, pharmaceutical products, radiology, analyses, laboratory tests and prostheses on medical prescription with the exception of dental prostheses. It shall be increased to 100% in cases of tuberculosis, poliomyelitis, cancer, mental illness and other illnesses recognised by the appointing authority as of comparable seriousness, and for early detection screening and in cases of confinement. However, reimbursement at 100% shall not apply in the case of occupational disease or accident having given rise to the application of Article 73.

The unmarried partner of an official shall be treated as the spouse under the sickness insurance scheme, where the first three conditions in Article 1(2)(c) of Annex VII are met.

…’

3 Article 1(2) of Annex VII to the Staff Regulations provides:

‘The household allowance shall be granted to:

(a) a married official;

(b) an official who is widowed, divorced, legally separated or unmarried and has one or more dependent children within the meaning of Article 2(2) and (3) below;

(c) an official who is registered as a stable non‑marital partner, provided that:

(i) the couple produces a legal document recognised as such by a Member State, or any competent authority of a Member State, acknowledging their status as non-marital partners,

(ii) neither partner is in a marital relationship or in another non‑marital partnership,

(iii) the partners are not related in any of the following ways: parent, child, grandparent, grandchild, brother, sister, aunt, uncle, nephew, niece, son-in-law, daughter‑in‑law;

(iv) the couple has no access to legal marriage in a Member State; a couple shall be considered to have access to legal marriage for the purposes of this point only where the members of the couple meet all the conditions laid down by the legislation of a Member State permitting marriage of such a couple.

…’

4 Article 12 of the Rules on sickness insurance for officials of the European Communities (‘the Joint Rules’) is worded as followed:

‘The following are covered by members’ insurance under the conditions set out in Articles 13 and 14:

– spouses, unless they are already full members of the Scheme,

– recognised partners of members of the Scheme even if they do not satisfy the last indent of Article 1(2)(c) of Annex VII to the Staff Regulations,

– spouses or recognised partners taking unpaid leave on personal grounds as provided for in the Staff Regulations’

5 In the Netherlands, as appears from the brochure which the Commission has annexed to its Defence and which, in its submission, was produced by the Netherlands authorities, alongside traditional marriages, national law provides for two types of union, namely registered partnerships (‘geregistreerd partnerschap’) and cohabitation agreements (‘samenlevingsovereenkomst’). Whilst the first have legal, pecuniary and non‑pecuniary consequences which are largely similar to those created by the bond of marriage, the second form of union arises, however, from the free will of the parties and gives rise between them, in the main, only to those consequences which result from the rights and obligations for which the parties provide in the agreements.

Factual background

6 The applicant, a citizen of the Netherlands, has been an official in Eurostat since 15 February 2006. On 20 February 2006, he requested that his partnership with Ms Maria Helena Astrid Hart, governed by a cohabitation agreement (‘samenlevingsovereenkomst’) entered into in the Netherlands before a notary on 29 December 2005, be recognised by the Commission in order to enable his partner to be covered by the JSIS.

7 By note of 28 February 2006, the Office for the Administration and Payment of Individual Entitlements (PMO) rejected his request on the ground that the cohabitation agreement which the applicant and his partner had entered into could not be considered to be a partnership recognised by the legislation of the Netherlands (Law on ‘geregistreerd partnerschap’, which entered into force on 1 January 1998), as required by Article 1(2)(c) of Annex VII to the Staff Regulations.

8 On 13 March 2006, the applicant challenged the decision to dismiss his request and provided a certificate from the Embassy of the Netherlands in Luxembourg, stating that the ‘samenlevingsovereenkomst’ signed in the presence of a notary between the applicant and his partner was recognised by the Netherlands and, therefore, confirmed their status as non‑marital partners.

9 However, by note of 20 March 2006, the Commission confirmed its decision of 28 February 2006. It contended that, although the cohabitation agreement constituted a formal confirmation of the status of the applicant and his partner as non-marital partners, the fact remained that it gave rise only to those rights and obligations to which the parties agreed in writing. The signature of the contract in the presence of a notary does not alter the fact that it is merely a private contract, with no legal consequences for third parties and not subject to the requirement of registration. Article 1(2)(c) of Annex VII to the Staff Regulations makes non‑marital partnerships subject to such a requirement, as registration creates rights and obligations comparable to the legal consequences of a marriage.

10 On 31 March 2006, the applicant lodged a complaint in which he challenged what he claimed to be the overly strict interpretation by the Commission of Article 1(2) of Annex VII to the Staff Regulations. In that complaint, he claimed that the registration of the agreement before a notary was a sufficient condition and pointed to certain facts which demonstrated that there are few differences between his partnership and the institution of marriage. He submitted, in particular, that the relationship with his partner had existed for more than two years already, that together they had a child which he had officially recognised and they were expecting a second. The applicant added that he and his partner had made mutual wills and that he had taken out life assurance from which his partner would benefit.

11 By opinion of 1 June 2006, the JSIS Management Committee (‘the management committee’) – basing itself on the documents provided by the applicant, in particular his cohabitation agreement entered into before a notary and the certificate issued by the Embassy of the Netherlands in Luxembourg – recommended that the partnership at issue be recognised as fulfilling the conditions laid down by Article 12 of the Joint Rules, particularly the requirement provided for in Article 1(2)(c)(i) of Annex VII to the Staff Regulations.

12 Despite that positive opinion of the management committee, the appointing authority, by decision of 12 July 2006, dismissed the applicant’s complaint. It contended that the provisions of the Staff Regulations had the purpose of limiting the right to be covered by the JSIS to partners who had committed themselves to a relationship similar to marriage entailing reciprocal rights and obligations, as defined by law. It held that the cohabitation agreement constituted a merely private contract, capable of being concluded by more than two persons, the content of which could be decided by the parties and that, although registered before a notary, that de facto partnership had no legal effect and thus could not be considered to be a non-marital partnership, within the meaning of Article 1(2)(c) of Annex VII to the Staff Regulations.

13 The decision of the appointing authority was notified to the applicant on 13 July 2006.

Forms of order sought

14 The applicant claims that the Tribunal should:

– annul the decision of 28 February 2006, confirmed on 20 March 2006, not to recognise the applicant’s partnership with Ms Maria Helena Astrid Hart as a non‑martial partnership for the purposes of the JSIS;

– annul the decision of the appointing authority of 12 July 2006 rejecting the complaint brought by the applicant on 27 March 2006 pursuant to Article 90(2) of the Staff Regulations, dating from 12 July 2006 and notified on 13 July 2006;

– in any event, order the defendant to pay all the costs, in accordance with Article 87(2) of the Rules of Procedure of the Court of First Instance.

15 The Commission contends that the Tribunal should:

– declare the action unfounded;

– make an appropriate order as to costs.

Subject‑matter of the proceedings

16 The applicant seeks annulment of the decision of 28 February 2006, confirmed on 20 March 2006, not to recognise the applicant’s partnership with his companion and, consequently, denying her the right to be covered by the JSIS, and annulment of the decision of the appointing authority of 12 July 2006 to dismiss the complaint. In that regard, it should be stated that, in such circumstances, according to settled case‑law, it is the acts adversely affecting the applicant against which the complaint was submitted which are actually brought before the Tribunal (see, to that effect, Case 293/87 Vainker v Parliament [1989] ECR 23, paragraph 8 and Case F‑100/05 Chatziioannidou v Commission [2006], not yet published in the ECR, paragraph 24). Consequently, the forms of order sought by the applicant must be understood as seeking the annulment of the decision of 28 February 2006, as confirmed on 20 March 2006.

Law

17 In support of his claims, the applicant relies on infringement of Article 72 of the Staff Regulations, Article 1(2)(c)(i) of Annex VII to the Staff Regulations, and Article 12 of the Joint Rules, a manifest error of assessment, breach of the duty to state reasons and disregard of general principles of law, such as the principle of equal treatment between officials, the principle of sound administration and the duty to have regard for the interests of officials, and the principles which require the appointing authority to hand down decisions only on the basis of legally admissible grounds, by which is meant grounds which are relevant and not vitiated by manifest errors of assessment, fact or law.

18 The Tribunal considers it appropriate to deal first with the ground alleging infringement of Article 72 of the Staff Regulations, Article 1(2)(c)(i) of Annex VII to the Staff Regulations and Article 12 of the Joint Rules.

Arguments of the parties

19 First, the applicant claims that it follows from Article 72 of the Staff Regulations, Article 1(2)(c)(i) of Annex VII to the Staff Regulations and Article 12 of the Joint Rules, which must be read in combination and in a consistent manner, that, by virtue of Article 72 of the Staff Regulations and Article 12 of the Joint Rules, in order to be covered by the JSIS, the unmarried partner of an official must simply fulfil the first three conditions provided for by sub‑paragraphs (i), (ii) and (iii) of Article 1(2)(c) of Annex VII to the Staff Regulations. During the hearing, the applicant also pointed out that a literal interpretation of the provisions in question confirmed that analysis. Consequently, contrary to the PMO’s contention in its decision rejecting the request for recognition of the applicant’s partnership and subsequently that of the appointing authority in its decision rejecting the complaint, it is possible for non‑marital partners to be accepted for the purposes of the JSIS without necessarily being registered other than by way of notarised act; the Commission cannot thus add to the Article cited above conditions which are not to be found there. Accordingly, unmarried partners who are recognised as such by a Member State, which is clearly the case of the partnership between the applicant and his companion, should be in a position to benefit from the advantages laid down by the Staff Regulations.

20 The applicant claims in that regard that, in addition to the conditions provided for in sub‑paragraphs (ii) and (iii), which do not present any difficulties in his case, he also fulfils the condition laid down by Article 1(2)(c)(i) of Annex VII to the Staff Regulations. He submitted an official document recognised as such by a Member State, in this case the cohabitation agreement, duly notarised, which attests to his status as a non‑marital partner; moreover, alongside that official document, which in his submission is sufficient in itself, the file includes a certificate from the Embassy of the Netherlands in Luxembourg, confirming recognition of the partnership. The Commission is, in any event, required to take into account the cohabitation agreement submitted for inclusion in the file and cannot refuse to accord to the applicant’s situation the effects which flow from the status of being a recognised partner or act as if it were a legal expert on the national law of the Netherlands.

21 The applicant also claims that the Commission itself recognised, in its note of 20 March 2006, that the cohabitation agreement between him and his partner was formal confirmation of their status as non‑marital partners. Therefore, it would be surprising if the Commission persisted in refusing to allow the applicant and his partner the established right which flows from this finding. In so far as the provisions of the Staff Regulations refer to recognition by a Member State of a document and a situation, the Commission is not entitled to hide behind the principle of the autonomous interpretation of Community law to justify its refusal to take into consideration the documents provided and the situation they attest. In addition, the contract that he entered into with his companion is a notarised act, in other words, an act drawn up by a person invested with a measure of public authority and even authorised to draw up enforceable notarial acts.

22 In addition, the applicant submits that Article 1(2)(c)(iv) of Annex VII to the Staff Regulations, concerning the condition that the partners should have no access to legal marriage in a Member State, is expressly excluded by Article 72 of the Staff Regulations and Article 12 of the Joint Rules, clearly demonstrating that the question of marriage is not essential in order to recognise the partnership for the purposes of extending the right to be covered by the JSIS to the partner of an official, contrary to the Commission’s contention. Whether there is a possibility of marriage or not, persons are free to choose and to prefer partnership, since the two institutions are not identical, their resemblances being limited to public declaration and the recognition which goes with it.

23 Finally, citing the judgment in Case 59/85 Reed [1986] ECR 1283, paragraph 15, the applicant considers that the change in social attitudes in a number of Member States justifies a broad interpretation of the terms ‘spouse’ and ‘unmarried partner’, so as to include partners of opposite sexes who are in a recognised stable relationship.

24 The Commission contends that, contrary to the applicant’s arguments, it was not the intention of the legislature to extend the right to be covered by the JSIS to all stable partners of officials once their partnership was ‘recognised’, but only to those whose partnership was to a very large extent treated as a ‘marriage’ in the Member State in which it was concluded.

25 First, the Commission contends that it is settled case-law that, in interpreting a provision of Community law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part. Second, in the Commission’s view it can hardly be denied that the objective of both Article 72 of the Staff Regulations and Article 1 of Annex VII to the Staff Regulations is to refer to persons who are ‘capable of being treated’ as ‘spouses’ of officials. According to the Commission, that objective is moreover apparent in Article 72 of the Staff Regulations, which refers to the unmarried partner of an official who may be ‘treated’ as his spouse. Second, the Commission contends that the ‘neutral’ wording of Article 1(2)(c)(i) of Annex VII to the Staff Regulations is in fact explained by the great diversity of national legislation on the ‘partnerships treated as a marriage’ which exist in the Member States and, consequently, by the fact that it is impossible for the legislature to adopt a more specific formulation which, because it is too precise, would run the risk of omitting partnerships set up to that end in certain Member States.

26 Further, if the Community legislature had wished to extend the right to be covered by the JSIS to other categories of stable partners, it would have done so expressly. In that regard, the Commission notes that only one type of ‘registered partnership’ is treated in the Netherlands as marriage. The cohabitation agreement entered into by the applicant does not legally constitute that kind of registered partnership, but is instead a ‘cohabitation agreement’ or contract which can be concluded by two or more persons, a possibility which is however precluded in ‘registered partnership’. The Commission also contends that, except where the grant of certain advantages is sought, there is no requirement that a cohabitation agreement be registered by a notary. In addition, while the ‘registered partnership’ itself originates in statute, the cohabitation agreement arises from the unfettered free will of the parties. Likewise, whereas rights and obligations flow from the former, as they do in a marriage, the latter only affects property rights.

27 According to the Commission, the fact that the cohabitation agreement is registered by a notary and recognised by the Netherlands is irrelevant. Such recognition has no legal bearing on whether that ‘cohabitation agreement’ may oblige a Community employer to extend the right to be covered by the JSIS to an official’s partner.

28 Lastly, in reply to the applicant’s argument derived from the judgment in Reed, the Commission states that, in the judgment in Joined Cases (C‑122/99 P and C‑125/99 P D and Sweden v Council [2001] ECR I‑4319, paragraphs 37 and 38), the Court expressly stated that it was not for the Community judicature to give a broad interpretation to ‘marriage’ or ‘registered partnership’ but, on the contrary, for the Community legislature alone to amend the Staff Regulations in order for certain forms of registered partnership to be treated as marriage. The Commission adds that it was, moreover, clear from that judgment that the legislature wished to restrict the right to be covered by the JSIS to those persons only who are engaged in a stable non‑marital partnership of which the effects are equivalent to marriage.

Findings of the Tribunal

29 In order to define the term ‘unmarried partner of an official’ the text of Article 72 of the Staff Regulations itself refers directly to the first three conditions of Article 1(2)(c) of Annex VII to the Staff Regulations, since the registration of the partnership, referred to in the introductory sentence of Article 1(2)(c) of Annex VII to the Staff Regulations, cannot be considered to be a prerequisite. If the legislature had wished to provide otherwise, Article 72 of the Staff Regulations and Article 12 of the Joint Rules would have referred respectively not to the ‘unmarried’ and ‘recognised’ partner of an official, but to his ‘registered’ partner, a term used in Article 1(2)(c) of Annex VII to the Staff Regulations; it is moreover to be observed that recital 8 in the preamble to Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of Officials of the European Communities and the Conditions of Employment of Other Servants of the European Communities (OJ 2004 L 124, p. 1), concerning the extension of the benefits enjoyed by married couples to forms of union other than marriage, refers to ‘[o]fficials in a non‑marital relationship recognised by a Member State as a stable partnership’, without making any mention of conditions relating to the registration of the relationship in question. In that same context, it must be noted that, in essence, there is no difference between an unmarried partner of an official, as stated in Article 72 of the Staff Regulations, and a recognised partner of an official, within the meaning of Article 12 of the Joint Rules.

30 Thus, in order to decide whether the right to be covered by the JSIS should be extended to the unmarried partner of an official, the task of the Community judicature is to review whether the first three conditions only of Article 1(2)(c) of Annex VII to the Staff Regulations have been complied with.

31 Regarding the first three conditions set out in Article 1(2)(c) of Annex VII to the Staff Regulations, it is not in dispute that the last two of these, concerning respectively the fact that neither partner is in another non‑marital partnership and that they are not related, are fulfilled in this case.

32 In addition, the first condition, to which the differing interpretations of the parties relate (‘the contested condition’), states that the couple are to produce a legal document recognised as such by a Member State, or any competent authority of a Member State, proving their status as non‑marital partners. That condition has three parts:

– the first part concerns the production of a ‘legal’ document regarding the status of the persons;

– the second part adds the requirement that the legal document be ‘recognised’ as such by a Member State;

– lastly, the third part requires that the legal document, concerning the status of the persons, acknowledge that the persons concerned have the status of ‘non‑marital partners’.

33 In this case, the first two parts of the contested condition are fulfilled. The applicant produced a cohabitation agreement entered into with his partner before a notary of the Netherlands and an attestation from the Embassy of the Netherlands in Luxembourg, certifying that that document, which notes that the applicant and his partner have the status of non‑marital partners, is recognised in the Netherlands. For its part, the Commission disputes neither the ‘official’ nature of that cohabitation agreement, nor its ‘recognition’ by a Member State.

34 Regarding the third part, the applicant claims that, in so far as the certificate of the Embassy of the Netherlands in Luxembourg expressly states that the ‘samenlevingsovereenkomst’ grants him and his partner the status of ‘non-marital partners’, that document should be sufficient for a finding that the third part of the contested condition is also fulfilled.

35 The Tribunal cannot accept that argument. The question whether two persons are ‘non-marital partners’ within the meaning of the Staff Regulations cannot be solely a matter for the discretion of the national authorities of a Member State. Thus, with particular regard to the ‘samenlevingsovereenkomst’, the requirements to be met in order to attain the status of ‘non‑marital partners’ cannot be satisfied by the mere fact that an official document, recognised as such by a Member State, asserts that such a status exists. The cohabitation agreement under the law of the Netherlands is merely a contract freely arranged between the parties, subject to respect for the rules of public policy and good conduct. It can be entered into by two or more persons and there is no legal requirement to include certain undertakings or declarations, in particular with regard to the obligation to have a joint household. In addition, as a rule it binds the parties only in respect of the rights and obligations for which they have provided and its legal effects on third parties, which are in any event limited, require special declarations and procedures.

36 On the other hand, it must be accepted, thereby endorsing to a certain extent the Commission’s position when it contends that Article 72 of the Staff Regulations and Article 12 of the Joint Rules refer to partnerships which are ‘capable of being treated as’ marriage, that in order to fall within those provisions a partnership must have a certain resemblance to a marriage.

37 It is in the light of that criterion that the Tribunal considers that the third part of the contested condition must be understood as comprising three cumulative sub‑conditions.

38 First, the third part of the contested condition presupposes, and the term itself as used in the provisions of the Staff Regulations applicable confirms that interpretation, that the partners must form a ‘couple’, in other words a union of two persons, distinct from other unions of persons capable of being parties to the cohabitation agreement under the law of the Netherlands. Clearly, such is the case in this dispute and the parties are in agreement on that point.

39 Further, the use of the term ‘status’ shows that the partners’ relationship must have public and formal aspects. Linked in part to the first part of the contested condition (see paragraph 32 of this judgment), the second sub‑condition of the third part goes however beyond the mere requirement of an ‘official’ document. It is nevertheless fulfilled in the present case. First, having been drawn up before a notary, without that being an actual requirement, the agreement which governs the cohabitation of the applicant and his partner benefits from the authentication conferred by its conclusion by notarial act; second, it governs the partners’ cohabitation in a structured and detailed way, following the drafting style of legal documents.

40 Lastly, the term ‘non-marital partners’ must be understood as referring to a situation where the partners’ cohabitation is characterised by a certain stability and they are linked, during that cohabitation, by reciprocal rights and obligations, relating to their cohabitation.

41 This is the case in the present dispute.

42 First, in the preamble to their ‘samenlevingsovereenkomst’, the applicant and his companion expressly declare that they will live together and run a joint household from the 1 July 2004. In addition, as the applicant made clear at the oral hearing, Article 7 of the cohabitation agreement imposes on the couple the obligation to live together.

43 The Tribunal further notes that the cohabitation agreement of the applicant and his companion lays down extensive rules as to the rights and obligations concerning their life together as a couple. In particular, pursuant to Article 3 of the agreement, the partners grant one another mutual authority for legal acts entered into for the day‑to‑day running of the household. Article 4 of the agreement, for its part, states that all items of property serving daily household purposes are to be jointly owned, except where they are referred to in the annex to the agreement or where the parties have agreed in writing otherwise. Those jointly owned items are listed in Article 4(2) of the agreement. The partners also undertake at Article 5 of the agreement to contribute monthly in proportion to their respective net incomes from employment to a joint fund so that day‑to‑day household expenses can be met. Moreover, Article 8 of the agreement provides that, in all cases where the ownership of an item of property is in dispute, it is to be considered to belong to both of them, each having an undivided half share. It is necessary, lastly, to mention Article 9 of the agreement, according to which each of the partners designates the other as beneficiary of the ‘surviving partner’s pension’, provided that the rules of their respective pensions recognise such a pension.

44 Regarding children, although nothing appears on the point in the cohabitation agreement, it is clear from the brochure annexed to the defence and mentioned at paragraph 5 of this judgment that, where the parents are simple partners, the law of the Netherlands permits the child’s father, by recognising the child and by means of certain procedures, to acquire the same rights over him as if he had been married to the mother. In particular, he acquires joint parental responsibility with the mother; in addition, the child may take the name of the father. In the present dispute, the applicant declared, without the Commission disputing the point, that he recognised his first child at birth thereby acquiring a father’s rights.

45 In addition, although the conclusion of a cohabitation agreement generally binds only the partners (see paragraph 35 of this judgment), it is appropriate to note that the abovementioned brochure, after indicating that the courts of the Netherlands have begun to treat couples who have entered into a cohabitation agreement in the same way as those who have entered into a registered partnership or a marriage (‘courts are starting to put couples with a cohabitation agreement on the same footing as married and registered couples’), expressly accepts that, with regard to couples who have entered into a cohabitation agreement, implications for third parties may be recognised regarding, in particular, retirement pensions, precisely, as referred to at paragraph 43 in fine of this judgment, as each of the partners to this dispute has designated the other as the beneficiary of the ‘surviving partner’s pension’ provided that the rules of their respective pension schemes include such a pension.

46 All those factors demonstrate that, even if the consequences flowing from the cohabitation agreement entered into between the applicant and his partner are not as extensive as those which exist within a marriage or even a ‘geregistreerd partnerschap’, they may be similar in numerous respects where the partners arrange things contractually, as is the case in the present dispute.

47 In view of the foregoing considerations (paragraphs 42 to 46 of this judgment), it must be found that the third sub‑condition of the third part of the contested condition, namely that concerning the term ‘non‑marital partners’, as defined at paragraph 40 of this judgment, is fulfilled and that, as a consequence, so is the third part of the contested condition.

48 It follows from all of the foregoing that, in the present case, the three first conditions laid down by Article 1(2)(c) of Annex VII to the Staff Regulations and referred to at Article 72 of the Staff Regulations are fulfilled.

49 Such an interpretation is, moreover, consistent with developments in social attitudes, the relevance of which for the interpretation of the Staff Regulations was underlined in the judgment in Reed, relied on by the applicant in his written submissions. In that regard, it must be stated that the broadening of the right to be covered by the JSIS to include the partner of an official applies equally where the partner is of the same sex, the authors of the Staff Regulations having thus accepted that new rights may be accorded to persons who are not united by marriage. Moreover, and contrary to the Commission’s contention, the interpretation set out above by the Tribunal – an interpretation which, in addition, particularly concerns the definition of ‘partnership’ – does not go against the case law according to which the Community judicature is not to give a broad interpretation to the term ‘marriage’ (see judgement in D and Sweden v Council paragraphs 37 to 39). In the present context, it is moreover appropriate to note that extending the right to be covered by the JSIS to the stable partner of an official pursues the objectives of solidarity and social cohesion, which differ from the objectives pursued by the provisions conferring on officials purely pecuniary advantages, in the form of additional salary such as, for example, the household allowance granted to the partner of an official, provided for by Article 1(2)(c) of Annex VII to the Staff Regulations; it is thus not unreasonable for stricter conditions regarding the relationship between the official and his unmarried partner to be applied to the grant of the last mentioned advantages than to the advantage consisting in the extension to that unmarried partner of the right to be covered by the JSIS.

50 Consequently, the Tribunal considers that the applicant’s partner is entitled, pursuant to Article 72 of the Staff Regulations and Article 12 of the Joint Rules, to be covered by the provisions of the JSIS concerning the ‘unmarried partner of an official’ and ‘recognised partners of members of the Scheme’.

51 The arguments to the contrary relied on by the Commission are not such as to vitiate that finding.

52 This is particularly the case for the argument that the right to be covered by the JSIS is reserved solely for partnerships which are ‘capable of being treated as’ marriage, an argument which the Commission derives from an interpretation of the applicable rules which takes account not only of their terms but also of their context along with the objectives pursued by the legislation of which they are a part. Whilst accepting that such an interpretation must prevail over a purely literal interpretation, the Tribunal sees no reason why it would have the effect of excluding the applicant’s partner from the right to be covered by the JSIS. On the contrary, it is precisely by following the method of interpretation suggested by the Commission, which is the subject of settled case‑law (see Case 292/82 Merck [1983] ECR 3781, paragraph 12 and Case F‑10/06 André v Commission [2006], not yet published in the ECR, paragraph 35), that the Tribunal, far from being satisfied with the assertion contained in the certificate of the Embassy of the Netherlands in Luxembourg, came to examine, at paragraphs 42 to 46 of the present judgment, the content itself of the partnership in question and concluded from this that there were resemblances to marriage entitling the applicant’s partner to benefit from Article 72 of the Staff Regulations, despite the fact that, in the national legal systems concerned, another type of registered partnership existed, even closer to marriage, which is automatically covered by that article. On the other hand, in so far as the argument that partnership must be capable of being treated as marriage goes beyond the requirement, accepted in this case, that points of resemblance should exist (see paragraph 36 and, for each of those points, paragraphs 38, 39 and 40 to 47 of this judgment), to uphold that argument would have the effect of adding an additional condition which does not exist under Article 72 of the Staff Regulations.

53 In the same context, the Commission’s argument based on the use of the expression ‘treated as the spouse’, in Article 72 of the Staff Regulations must be rejected, where it contends that the term ‘treated as’ must be understood as referring to partners essentially ‘capable of being treated’ as spouses and thus constitutes a condition to be fulfilled before the unmarried partner of an official is entitled to be covered by the JSIS. That interpretation cannot be upheld. In fact, and by analogy with the way in which the other provisions of the Staff Regulations are applied (such as, for example, Article 2(4) of Annex VII to the Staff Regulations, which entitles any person whom the official has a legal responsibility to maintain and whose maintenance involves heavy expenditure to be ‘treated as’ a dependent child), the expression ‘treated as the spouse’, used in Article 72 of the Staff Regulations, must simply be understood as meaning that, for the purposes of the JSIS, an unmarried partner and the spouse of an official are to be treated in the same way where the three conditions of Article 1(2)(c) of Annex VII to the Staff Regulations are fulfilled.

54 In connection, moreover, with the Commission’s contention that the reference in Article 72 of the Staff Regulation to Article 1(2)(c) of Annex VII to the Staff Regulations is not limited to Article 1(2)(c)(i) to (iii) alone but extends to the introductory phrase, which refers to a registration requirement, it must be noted that, even if such an interpretation of the reference in Article 72 of the Staff Regulations were to be justified, the applicant’s pleas in law would none the less have to be upheld. In the present case, as the applicant stated at the hearing, the cohabitation agreement was registered before a notary, in other words before a public official invested with a measure of public authority. By such registration before a notary, that document acquired a certain ‘official’ status, benefiting as a result from certain characteristics recognised by national laws and attaching to notarially authenticated acts, for example certification of the consent and signature of the parties as well as of the content of the agreement. Those characteristics are not only such as to foster the respect and performance of the cohabitation agreement between the partners, but also allow the effects of the cohabitation agreement as regards third parties to be extended; as is clear from the abovementioned brochure of the Netherlands authorities (see paragraph 45 of this judgment), third parties such as pension funds may make their recognition of a cohabitation agreement conditional upon such an agreement being entered into before a notary. Thus, even if the registration condition is necessary, that condition, contrary to the Commission’s contention, would not require that a ‘geregistreerd partnerschap’ be entered into, since registration before a notary satisfies the requirements of the text.

55 In the present case, the applicant was thus not required to show the existence of a ‘geregistreerd partnerschap’ between him and his companion for her to acquire the right to be covered by the JSIS.

56 For the sake of completeness, the Tribunal observes that the Commission’s contention that an agreement of the ‘geregistreerd partnerschap’ type under the law of the Netherlands is required would lead to unequal treatment. Since many countries do not recognise forms of union comparable to that of ‘geregistreerd partnerschap’, in the case of unmarried couples who, particularly by reason of their place of residence or nationality, are more closely connected to those countries, to require a ‘registered’ partnership of that type, as the Commission does, would be to deprive partners of officials permanently of the right to be covered by the JSIS outside of marriage. On the other hand, were the Commission to accept partnerships concluded in the form of cohabitation agreements for those couples, its refusal to recognise ‘simple’ cohabitation agreements for couples who have very close links, in the sense mentioned above, with countries recognising forms of union other than marriage or ‘registered’ partnership, would mean that those couples were unequally treated; in other words, extending the entitlement to be covered by the JSIS to a partner would be refused, whereas it would be recognised for couples with connecting factors to countries which do not recognise ‘registered’ partnerships. Such inequalities would be even more difficult to justify in view of the existence of partnerships which, although not ‘registered’ in the sense used by the Commission, nevertheless resemble marriage more closely than ‘geregistreerd partnerschap’ under the law of the Netherlands. Moreover, although, according to case‑law, by prohibiting every Member State from applying its law differently on the ground of nationality, Articles 12 EC, 39 EC, 43 EC and 49 EC are concerned with any disparities in treatment which may arise between one Member State and another because of divergences existing between the laws of the different Member States, only if the latter affect all persons subject to them in accordance with objective criteria and without regard to their nationality (see, to that effect, Case 1/78 Kenny [1978] ECR 1489, paragraph 18; Joined Cases C‑251/90 and C‑252/90 Wood and Cowie [1992] ECR I‑2873, paragraph 19; Joined Cases 185/78 to 204/78 Van Dam en Zonen and Others [1979] ECR 2345, paragraph 10; and Case C‑177/94 Perfili [1996] ECR 161, paragraph 17), the inequalities of the type referred to in this paragraph do not come within that case‑law; first, and contrary to the premises on which the case‑law in question is based, the inequalities of treatment referred to in this paragraph originate in the nationality of the persons concerned and in their place of residence, second, in the cases giving rise to the case‑law cited above, the question of inequality of treatment arises in respect of the rules of free movement, whilst, the present case concerns the principle of equality of treatment as a principle of the law of the Community civil service.

57 In view of the foregoing, the Tribunal must uphold the applicant’s pleas in law based on infringement of Article 72 of the Staff Regulations, Article 1(2)(c)(i) of Annex VII to the Staff Regulations and Article 12 of the Joint Rules and annul the contested decision, without there being any need to rule on the other pleas in law, which, moreover, as the Commission rightly contends, were raised in a disordered way in the application, and in some cases gave no detail.

58 The Tribunal’s interpretation of Article 72 of the Staff Regulations, read in combination with Article 1(2)(c)(i) of Annex VII to the Staff Regulations and Article 12 of the Joint Rules could, in certain cases, lead those services called on to decide whether the right to be covered by the JSIS should be extended to the unmarried partner of an official to carry out investigations and reviews, despite the fact that, by adopting Regulation 723/2004, the Community legislature sought to simplify the administrative management of the institutions. However, that objective is largely met by the new rules on expenses and allowances, which are the only areas to which Regulation 723/2004, in recital 26 in the preamble thereto, refers on the subject of simplification, areas, moreover, not only distinct from that of extending the right to be covered by the JSIS, but also less sensitive than the latter from the social perspective (see, to that effect, paragraph 49 of this judgment). Moreover, the goal of simplification must, in any event, be reconciled with overriding principles of law and the rules of the Staff Regulations; the restrictions which may arise for the authorities from the interpretation upheld in the present case are merely the consequence of the application by the Tribunal of those principles and rules in order to determine the exact meaning of the term ‘unmarried partner’ in Article 72 of the Staff Regulations.

Costs

59 Under Article 122 of the Rules of Procedure of the Tribunal, published in the Official Journal of the European Union of 29 August 2007 (OJ 2007 L 225, p. 1), the provisions of the regulation on costs shall apply only to cases brought before the Tribunal from the date on which those Rules entered into force, namely, 1 November 2007. The relevant provisions of the Rules of Procedure of the Court of First Instance on the subject are to continue to apply mutatis mutandis to cases pending before the Tribunal before that date.

60 Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.

On those grounds,

THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (First Chamber)

hereby:

1. Annuls the decision of the Commission of the European Communities of 28 February 2006, confirmed on 20 March 2006, refusing to recognise Mr Anton Pieter Roodhuijzen’s partnership with Ms Maria Helena Astrid Hart as a non‑marital partnership for the purposes of the Joint Sickness Insurance Scheme of the European Communities;

2. Orders the Commission of the European Communities to pay the costs.

Kreppel Tagaras Gervasoni

Delivered in open court in Luxembourg on 27 November 2007.

W. Hakenberg H. Kreppel

Registrar President