JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Full Court)

1 July 2010

Case F-45/07

Wolfgang Mandt

v

European Parliament

(Civil service — Officials — Pension for surviving spouse — Article 79 of the Staff Regulations — Article 18 of Annex VIII to the Staff Regulations — Surviving spouse — Recognition of two persons as having the status of surviving spouse — Reduction to 50% — Legitimate expectations — Rule of correspondence between complaint and action)

Application: brought under Articles 236 EC and 152 EA, in which Mr Mandt requests in substance annulment of the decision of the appointing authority of the Parliament of 8 February 2007 rejecting his complaint against the decision of 8 September 2006 whereby the Parliament decided to reduce to 50%, as from 1 April 2006, the survivor’s pension which he received as the surviving spouse of the late Mrs Mandt, née Neumann, a former official of the Parliament, on the ground that, by decision of 8 September 2006, the Parliament, in response to a request from the late Mr Braun-Neumann for the grant of a survivor’s pension, also as a surviving spouse of the late Ms Neumann, had decided to pay Mr Braun-Neumann, as from 1 April 2006, 50% of such a pension.

Held: There is no need to adjudicate on the claim that the Parliament should pay the applicant the full survivor’s pension in so far as that claim relates to the period after 31 October 2009. The remainder of the action is dismissed. Each party, including the intervener in support of the Parliament, that is to say, the late Mr Braun-Neumann, is to bear its own costs.

Summary

1. Officials — Pensions — Pension for surviving spouse — Status of surviving spouse — Assessment under national law

(Staff Regulations, Art. 79; Annex VIII, Art. 18)

2. Officials — Pensions — Pension for surviving spouse — Procedure for apportioning where there is more than one surviving spouse

(Staff Regulations, Art. 79; Annex VIII, Arts 18 and 28)

3. Officials — Actions — Prior administrative complaint — Correspondence between complaint and action

(Staff Regulations, Arts 90 and 91)

1. The need for uniform application of Union law and the principle of equality require that where a provision of Union law contains no express reference back to the law of the Member States for the purpose of determining its meaning and scope, it must normally be given an autonomous and uniform interpretation throughout the Union, which must be sought in the light of the context of the provision and the objective pursued by the rules in question. However, it is also accepted that, even in the absence of an express reference back, the application of Union law may, where appropriate, involve making a reference to the laws of the Member States, in particular where the courts of the European Union cannot identify in Union law or in the general principles of Union law the elements which would allow it to define the content and scope of Union law by an autonomous interpretation. That is the case, in particular, in relation to personal status and family, as the legal order of the Union has no written rules on such matters.

Having regard to the absence of a complete set of rules of private international law within Union law and to the divergences of the national systems of private international law, the identification by an administrative authority of the Union, for the purposes of the application of a provision of secondary law, such as Article 79 of the Staff Regulations or Article 18 of Annex VIII thereto, of the national legal order which would alone be ‘competent’ to determine a person’s marital status would be a particularly complex and extremely uncertain task in legal terms. The courts of the European Union should also refrain from undertaking such an exercise, which, in particular, would amount to judicial legislation.

Thus, it is not the place of the courts of the European Union or the Union institutions, when they apply the Staff Regulations, to review the merits of the decisions delivered by the national courts.

The fact that a Union institution recognises that two persons have the status of surviving spouse of one and the same deceased former official, for the purposes of granting a pecuniary benefit, does not in any way constitute even implicit acceptance at Union level of multiple marriage, an acceptance that might raise a question of compatibility with higher principles and rules of law, in particular if each of the persons concerned was in receipt of the entire pecuniary benefit provided for ‘the surviving spouse’. In any event, the institution concerned merely determines the implications of the application of national family law.

(see paras 62, 63, 68, 84, 87)

See:

40/79 P. v Commission [1981] ECR 361, Opinion of Mr Advocate General Warner, pp. 382 and 383; 327/82 Ekro [1984] ECR 107, para. 11; 59/85 Reed [1986] ECR 1283, para. 15; C-122/99 P and C-125/99 P D and Sweden v Council [2001] ECR I-4319, paras 34 to 38

T-43/90 Díaz García v Parliament [1992] ECR II-2619, para. 36; T-342/04 Adam v Commission [2006] ECR-SC I-A-2-23 and II-A-2-107, para. 32

2. In the absence of any rule in the Staff Regulations on the procedure for apportioning the survivor’s pension where there are two surviving spouses, it is for the institution to determine a method of apportionment.

A method chosen by the institution whereby the survivor’s pension is shared equally between the surviving spouses is contrary neither to the letter, nor to the scheme, nor to the purpose of Article 79 of the Staff Regulations and Article 18 of Annex VIII, nor even to the letter, scheme and purpose of the entire chapter on survivors’ pensions in that annex, especially since the criterion of the duration of the marriage, as laid down in Article 28 of Annex VIII to the Staff Regulations, would be difficult to apply by analogy to a case where there are a number of surviving spouses and would run counter to the purpose of Article 79 of the Staff Regulations.

(see paras 97, 104)

3. The rule of correspondence between prior administrative complaint and legal action requires that the relief sought and the cause of action should be the same. The rule is justified by the very purpose of the pre-contentious procedure, which is to enable the administration to review its decision and thus to obtain a non-judicial resolution, described as an ‘amicable settlement’.

Since the pre-contentious procedure is informal in character and those concerned are able to act without the assistance of an advocate at that stage, the administration must not interpret the complaints restrictively, but must do so with an open mind. While the claims submitted in the proceedings before the courts of the European Union may seek only the same relief as that sought in the complaint and may include only ‘heads of claim’ based on the same cause of action as that of the heads of claim in the complaint, those heads of claim may, however, be developed before the courts of the European Union by means of pleas and arguments which did not necessarily appear in the administrative complaint but are closely linked to it .

The correspondence rule can apply only where the judicial action alters the relief sought in the complaint or its cause of action, and the concept of ‘cause of action’ must be given a broad interpretation. Consequently, and subject to pleas alleging illegality of a legislative or regulatory text, and of course to grounds raising a public-policy issue, the cause of action of the dispute will normally be altered, and the action therefore inadmissible on the ground that it fails to observe the correspondence rule, only where the applicant, who criticises in his administrative complaint solely the formal validity of the act adversely affecting him, including in its procedural aspects, raises substantive pleas in the originating application, or in the opposite case where the applicant, after having disputed in the complaint only the substantive legality of the act adversely affecting him, submits an application containing pleas relating to the formal validity of that act, including in its procedural aspects.

Furthermore, given the intrinsically legal nature of a plea alleging illegality of a legislative or regulatory text, and also of the reasoning which underlies contemplating and then pleading illegality of this nature, the official or servant who lodges the complaint, and who does not necessarily have the appropriate legal expertise, cannot be required to formulate such a plea at the pre-contentious stage, failing which it will be declared inadmissible in the legal proceedings.

(see paras 109-111, 119-121)

See:

58/75 Sergy v Commission [1976] ECR 1139, paras 31 to 33; 75/82 and 117/82 Razzouk and Beydoun v Commission [1984] ECR 1509, para. 9; 52/85 Rihoux and Others v Commission [1986] ECR 1555, paras 12 and 14; 224/87 Koutchoumoff v Commission [1989] ECR 99, para. 10; 133/88 Del Amo Martinez v Parliament [1989] ECR 689, paras 10 and 11; C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I-1719, para. 67; C-316/97 P Parliament v Gaspari [1998] ECR I-7597, paras 17 and 18

T-496/93 Allo v Commission [1995] ECR-SC I-A-127 and II-405, para. 26; T-353/03 Nielsen v Council [2005] ECR-SC I-A-95 and II-443, para. 23; T-284/02 Dionyssopoulou v Council [2005] ECR-SC I-A-131 and II-597, para. 62

F-31/07 Putterie-De-Beukelaer v Commission [2008] ECR-SC I-A-1-53 and II-A-1-261, para. 57 et seq., on appeal before the General Court of the European Union, Case T-160/08 P; F-135/07 Smadja v Commission [2008] ECR-SC I-A-1-299 and II-A-1-1585, para. 40, on appeal before the General Court of the European Union, Case T-513/08 P; F-138/06 and F-37/08 Meister v OHIM [2009] ECR-SC I-A-1-131 and II-A-1-727, para. 145