2.

As for the merits, I have already explained that the main question is whether the system set up by Article 4(3) of Annex VII can be considered to be in accordance with the law. In view of the arguments advanced by the applicants in this connexion, my analysis must be divided into several stages. In their applications Mrs Sabbatini and Mrs Chollet alleged, first, that the provision at issue was illegal because it disregarded a superior principle of law, that which requires equality of treatment between men and women or which, in other words, prohibits any discriminations on grounds of sex. At the hearing, this principle of law was not mentioned, so that one might well ask whether the applicants have abandoned this submission. That would be perfectly understandable since, despite all the arguments which they have developed before the Court, it must be recognized that they have not discharged the onus of proof incumbent upon them in this connexion. They have certainly not done so in their applications. And even the further arguments which the applicants devoted to this matter in their replies are not such as to show that the precept on which they rely exists in the form of a general principle of law which is binding in all circumstances. In short, the parties concerned have merely referred very vaguely to sociological concepts which are accepted in all the Member States and to the present level of social development. As for the concrete factors which they have adduced in an attempt to supplement their demonstration, they concern a narrower principle, that of equal pay for male and female workers, which is a specific problem and one with which I shall deal later. Such is the objection which may be made to the applicants' arguments, both when they rely on Article 119 of the EEC Treaty and when they refer to Convention No 100 of 1951 of the International Labour Organization, to the fact that, following the resolution of the Conference of Member States of 30 December 1961, the Commission made the attainment of equal pay for male and female workers an important objective of its policy, and finally to the report drawn up by the Commission for the Council regarding the application of the principle of equal pay. On the other hand, by many references to national law the Commission (the defendant in Case 32/71) has been able to show that the applicants' argument is not well-founded and that the legal systems of the Member States do not recognize any general principle imposing in absolute terms equality of treatment as between men and women. Allow me to refer you in this connexion to the Commission's observations on the constitutional law of Member States and to its examples of different treatment sanctioned by the laws relating to military service, by labour law, by social security laws, by the law of public administration and by the legal provisions governing nationality. Furthermore, even in the field of family law (law of matrimonial relations and matrimonial property) we see that, not only at the time when the Staff Regulations were adopted, but even at the present day, certain Member States, which recognize the concept of head of household and the wife's duty to follow her husband, are still very far from legal equality as between men and women, and that even the ‘more progressive’ legal systems, despite the abolition of the concept of ‘head of household’, confirm male supremacy in certain situations (for example in the management of jointly owned property, in the obligation to provide for the family and in the choice of residence). Consequently, I believe that, without dwelling further on the first argument advanced in the applications, I should now deal at once with the question whether the provision of the Staff Regulations here in issue violates the principle of equal pay for men and women which, on the basis of the Convention of the International Labour Organization of which I was speaking earlier, has been sanctioned by Article 119 of the EEC Treaty in the following terms: ‘Each Member State shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work. For the purpose of this article, “pay” means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment from his employer.’ In this connexion, a preliminary question arises: it is whether, first of all, an indemnity of the nature of the expatriation allowance provided for by the Staff Regulations can be considered as properly falling within the ambit of Article 119 of the Treaty. This is what the applicants maintain when they assert that Article 119 covers any consideration received by workers, the word ‘consideration’ being interpreted widely. On the other hand, the Commission made certain objections at the hearing, pointing out that the expatriation allowance represents, not the counterpart of service rendered, but compensation for the expatriate situation of officials outside their countries of origin, a situation which is independent of the work which they accomplish. With regard to this controversy, I will frankly admit that I began by sharing the doubts of the Commission on the possibility of relying on Article 119 of the Treaty, since it is quite certain that the expatriation allowance does not constitute payment for service rendered. However, the origin of Article 119, which our eminent and lamented colleague, Mr Advocate-General Dutheillet de Lamothe, so clearly explained to the Court in his Opinion in Case 80/70 (preliminary ruling in Defrenne v Belgian State, [1971] ECR at pages 456 to 457), seems to indicate that it is an error to take so ‘minimalist’ a view of the scope of this article of the Treaty. It seems in fact that the relevant question is what constitutes consideration received from the employer for service rendered, and that, for the application of Article 119, it is necessary to have regard not only to pay as such, but also to any other remuneration paid by reason of the links binding the worker to his employer. This might apply in the case of the expatriation allowance, since it is closely linked to the performance of duties by an official of the Communities, for whom it is designed to provide some compensation in the event of his being required to carry out his duties abroad, that is, in surroundings different from those with which he was familiar in his former home. I therefore fail to see why Article 119 should not be applied to a situation such as that which exists in the present case. But, as, on the other hand, it is impossible to go into detail here with regard to the obscure and little known problems raised by Article 119, I think that it is preferable to leave open for the moment questions raised in this context and to continue my analysis on the basis that the principles embodied in this provision of the Treaty are also applicable to the expatriation allowance. If we examine the system of expatriation allowances in the light of the principles set out in Article 119 of the Treaty, we must no doubt agree with the defendants that the provision which governs this allowance does not discriminate between the sexes, since it merely speaks of the ‘official’, without distinguishing between male and female officials. And this is also true of paragraph (3), which deals with the hypothesis of an official's marriage. The only special feature of this paragraph (3) is that the status of head of household plays a part in it. As the Court is aware, the status of head of household is determined in accordance with the provisions of Article 1 of Annex VII to the Staff Regulations. This provides that it is normally the married male official who is considered to be the head of household, whereas the married female official is accorded this status only on certain conditions: either where her ‘husband is unable to engage in gainful employment owing to invalidity or serious illness’, or where the female official is separated from her husband and has one or more dependent children within the meaning of Article 2(2) and (3) of Annex VII, or where, by reason of exceptional circumstances, the female official assumes the responsibilities of a head of household and where her spouse does not receive an allowance of the same nature. In spite of the distinction which these rules manifestly draw between the sexes, the applicants do not consider them discriminatory in so far as they regulate the right to family allowances. But they do consider that the link between the provisions of Article 4(3) and the provisions of Article 1 is artificial and devoid of any objective justification because they believe that the status of head of household is irrelevant to the position of an ‘expatriate’ official, in other words one who has been uprooted from his country of origin. It is this belief which leads them to maintain that the fact that married male and female officials are treated differently in regard to the grant of the expatriation allowance (a difference which the Commission does not deny) must be regarded as discriminatory. Having thus defined the problem raised by the two cases before the Court, it is important first of all, in order to resolve it correctly, to elucidate the nature and role of the expatriation allowance. These emerge from an analysis of the conditions imposed for the grant of this allowance and from consideration of the cases in which it is refused, as well as from a combination of these factors with the other provisions of the Staff Regulations. Such an analysis shows that the expatriation allowance cannot be claimed by an official whose nationality and place of residence display very close links between him and the country in which he is employed. It is when such links do not exist that an official may claim the expatriation allowance, which is thus designed to compensate him to some extent for the change in his living conditions, in other words for the disadvantages resulting from having to live in a strange milieu, which are not only material, involving extra expense, but also of a non-material nature. That represents the main justification for the expatriation allowance. On the other hand, it would appear to be wrong to lay too much stress on the idea that officials should be given compensation to enable them to maintain links with their countries of origin. The achievement of that objective is mainly ensured by another allowance, namely the annual refund of travelling expenses provided for in Article 8 of Annex VII to enable officials to return to their countries of origin, which, in fact, is granted in all cases, even after the marriage of the official. One factor implying that this is the proper way to regard this matter is the fact that the expatriation allowance is not calculated on the basis of the distance from the place of origin. Furthermore, in the case of the marriage of two officials who could both claim the expatriation allowance, it is granted to only one of them, and this rule can be explained only on the ground that the maintenance of links with the country of origin is irrelevant to the allowance and that account is taken only of changes in the way of life resulting from the permanent residence in a foreign country. The nature of the expatriation allowance having thus been clarified, it appears to be right that the Staff Regulations should provide for its withdrawal in cases where close and durable links are forged with the country in which the place of employment is situated, not only as a result of a long period of residence in that country but also by reason of ties of a personal nature, such as marriage with one of its nationals. In such a case, it must be recognized that the establishment of a household, in other words definite integration within the State in question, has the effect of eliminating or reducing both the element of expatriation and the material and non-material disadvantages deriving from it. But it also appears that in this context it is equally justifiable to attach importance to the status of head of household within the meaning which I have set out above and not to consider as abnormal and artificial the rule which brings this factor into play. In this connexion, that person should be considered as head of household who assumes the major responsibility for providing for the family, whose role it essentially is to ensure the defence of the family's interests and whose destiny the family shares, both from the economic and the geographical points of view. If it is the married official who acquires this status, it follows that the question of expatriation should be answered mainly in relation to that person. If, on the other hand, it is the person whom the official marries who becomes head of household and if that person has the close links with the country of employment and residence mentioned in Article 4(1) of Annex VII to the Staff Regulations, it would be justifiable to conclude that, through the person whom the Community official has married, that official is thereafter also closely linked to the State in which he or she resides by so close ties as to eliminate the element of expatriation. Of course (as I have noted), this rule has the effect that notwithstanding their marriage, in general male officials retain their entitlement to the expatriation allowance whereas female officials placed in the same situation are entitled more rarely to this benefit. However, it must be observed firstly that this differentiation was justified in 1962 and that, in spite of advances made by the principle of equality between men and women, it is still justified at present by reason of the pre-eminence given to the husband in the family law of most Member States. Secondly, and this point seems to me to be even more important, this result is moreover in accordance with a primarily economic view of the problem (the issue of who is responsible for supporting the family), as well as with an assessment of the situation from the sociological and psychological points of view (ascertaining who is the person on whom family life is centred and who decides in what environment the family is to live). Consequently, although it cannot be denied that the system in force at the moment cannot be described as ideal and that the legislature could establish more subtle distinctions varying according to the facts of individual cases (an improvement which will perhaps be sought when the Staff Regulations come to be revised), I still believe that a purely legal analysis, carried out in relation to the principle prohibiting discrimination, can lead only to the following conclusion: taking into account both the nature of the expatriation allowance and the principles which justify it, there can be no violation of the principle of equal pay for men and women in the fact that on marriage the grant of the expatriation allowance is related to the status of head of household and to the links which bind the head of household to the State in which the place of employment is situated. Consequently, it is impossible to maintain that Article 4(3) of Annex VII to the Staff Regulations of Officials is illegal and the applicants may not therefore rely on such illegality as the ground for the annulment of the contested decisions.