Appeal brought on 25 February 2021 by the European Commission against the judgment of the General Court (Seventh Chamber) delivered on 16 December 2020 in Case T-442/17 RENV, RN v Commission

(Case C-118/21 P)

(2021/C 182/52)

Language of the case: French

Parties

Appellant: European Commission (represented by: B. Schima, B. Mongin and G. Gattinara, acting as Agents)

Other parties to the proceedings: RN and European Parliament

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of 16 December 2020, RN v Commission (T-442/17 RENV);

— dismiss the action at first instance;

— order the respondent to pay the costs of the proceedings at first instance;

— order the respondent to pay the costs of the proceedings on appeal.

Grounds of appeal and main arguments

The first ground of appeal alleges an error of law consisting in the fact that the General Court extended the scope of the case brought before it beyond the subject matter of the dispute referred as circumscribed by the appeal court (paragraphs 41 to 46 of the judgment under appeal). The Commission claims that:

— the scope of the referral is not to be left to the assessment of the court hearing the case following referral;

— the appeal court stated that Articles 18 and 20 of Annex VIII to the Staff Regulations referred to different situations. Those situations are to be treated differently; it therefore implicitly but necessarily ruled that there was no infringement of the principle of equal treatment;

— the judgment of the General Court following the referral contradicts the appeal judgment regarding the issue of the existence of discrimination, even though a definitive ruling had been given on that issue.

The second ground of appeal alleges an error of law concerning the criteria for assessing the legality of the choices made by the legislature, as well as a failure to fulfil the obligation to state reasons (paragraphs 68 to 71 and paragraph 79 of the judgment under appeal). According to the Commission:

— the General Court departed from the principle according to which the assessment of the legality of an EU measure in the light of fundamental rights may not be based on claims relating to the consequences of that measure in a specific case;

— the illegality of a provision of the Staff Regulations may not be based on the ‘unreasonable’ nature of the choice made by the legislature;

— the General Court did not take account of all the elements which characterise the two situations under comparison, in breach of the principles laid down by the judgment in HK v Commission (C-460/18 P).

The third ground of appeal alleges an error of law in the interpretation of the principle of non-discrimination, because the General Court judged the situations referred to in Articles 18 and 20 of Annex VIII to the Staff Regulations to be comparable (paragraphs 72 to 85 of the judgment under appeal). The Commission submits that:

— the date of the marriage is not the only criterion which distinguishes Article 18 of Annex VIII to the Staff Regulations from Article 20 of that annex. The distinction stems from a number of factors which the General Court refused to take into account;

— the General Court should have considered the purpose of the minimum duration of the marriage in the two provisions in question, which would have highlighted the differences between them;

— discrimination on grounds of age is not established.

The fourth ground of appeal alleges an error of law in the interpretation of Article 52(1) of the Charter of Fundamental Rights of the European Union, as well as several instances of failure to fulfil the obligation to state reasons (paragraphs 87 to 88 and 90 to 113 of the judgment under appeal):

— the first part of the ground alleges an error of law in the interpretation of Article 52(1) of the Charter of Fundamental Rights of the European Union consisting in a refusal to distinguish between the consequences of the death of the official for the surviving spouse depending on whether the marriage was contracted before or after the official left the service (paragraphs 87 to 88 of the judgment under appeal);

— the second part of the ground alleges an error of law in the interpretation of the objective of preventing fraud, as well as a failure to fulfil the obligation to state reasons (paragraphs 90 to 105 of the judgment under appeal);