HE HAD QUALIFIED FOR IT AT THE TIME OF HIS DEATH . THIS RIGHT IS INDEPENDENT OF THE WIDOW ' S OWN RESOURCES AND THE SURVIVOR ' S PENSION CAN EVEN BE COMBINED WITH ANY SALARY SHE MAY HAVE AS A COMMUNITY OFFICIAL . ON THE OTHER HAND , ARTICLE 23 OF ANNEX VIII TO THE STAFF REGULATIONS PROVIDES THAT THE HUSBAND OF A DECEASED FEMALE OFFICIAL MAY ONLY RECEIVE A SURVIVOR ' S PENSION IF HE HAS NO INCOME OF HIS OWN AND IS PERMANENTLY INCAPACITATED BY INVALIDITY OR SERIOUS ILLNESS FROM ENGAGING IN GAINFUL EMPLOYMENT . FURTHERMORE , THIS SURVIVOR ' S PENSION IS PAYABLE AT A RATE OF 50% RATHER THAN THE 60% PAID TO A WIDOW . FINALLY , ALTHOUGH BOTH TYPES OF PENSION CEASE TO BE PAID IF THE SURVIVOR REMARRIES , A WIDOW WHO REMARRIES CAN OBTAIN THE IMMEDIATE PAYMENT OF A CAPITAL SUM EQUAL TO TWICE THE ANNUAL AMOUNT OF HER SURVIVOR ' S PENSION . THE PROVISIONS OF THE STAFF REGULATIONS THUS PROVIDE FOR TWO FUNDAMENTALLY DIFFERENT SURVIVOR ' S PENSION SCHEMES , ACCORDING TO WHETHER THE DECEASED OFFICIAL WAS MALE OR FEMALE .
16 THE APPLICANT IS THEREFORE JUSTIFIED IN HIS SUBMISSION THAT THESE PROVISIONS ARE CONTRARY TO THE PRINCIPLE OF EQUAL TREATMENT OF BOTH SEXES , A PRINCIPLE WHICH , AS THE COURT HELD IN ITS JUDGMENT OF 15 JUNE 1978 ( CASE 149/77 , DEFRENNE V SABENA , ( 1978 ) ECR 1365 ), FORMS PART OF THE FUNDAMENTAL RIGHTS THE OBSERVANCE OF WHICH THE COURT HAS A DUTY TO ENSURE .
17 IN THAT JUDGMENT , AS IN THE JUDGMENTS OF 7 JUNE 1972 ( CASE 20/71 SABBATINI , NEE BERTONI , V EUROPEAN PARLIAMENT , ( 1972 ) ECR 345 ) AND OF 20 FEBRUARY 1975 ( CASE 21/74 , AIROLA V COMMISSION , ( 1975 ) ECR 221 ), THE COURT RECOGNIZED THE NEED TO ENSURE EQUAL TREATMENT OF MEN AND WOMEN EMPLOYED BY THE COMMUNITY ITSELF WITHIN THE FRAMEWORK OF THE STAFF REGULATIONS . CONSEQUENTLY , IN RELATIONS BETWEEN THE COMMUNITY INSTITUTIONS , ON THE ONE HAND , AND THEIR EMPLOYEES AND THE DEPENDANTS OF EMPLOYEES , ON THE OTHER , THE REQUIREMENTS IMPOSED BY THE PRINCIPLE OF EQUAL TREATMENT ARE IN NO WAY LIMITED TO THOSE RESULTING FROM ARTICLE 119 OF THE EEC TREATY OR FROM THE COMMUNITY DIRECTIVES ADOPTED IN THIS FIELD .
18 THE COMMISSION ' S DECISION OF 3 JULY 1981 MUST THEREFORE BE ANNULLED ON THE GROUND THAT IT IS BASED ON PROVISIONS OF THE STAFF REGULATIONS WHICH ARE CONTRARY TO A FUNDAMENTAL RIGHT AND THEREFORE INAPPLICABLE IN SO FAR AS THEY TREAT SURVIVING SPOUSES OF OFFICIALS UNEQUALLY ACCORDING TO THE SEX OF THE PERSONS CONCERNED .
19 FOLLOWING UPON THAT ANNULMENT , IT IS FOR THE COMMUNITY LEGISLATURE TO ACCEPT THE CONSEQUENCES OF THE PRESENT JUDGMENT AND TO TAKE THE NECESSARY MEASURES TO ESTABLISH EQUALITY BETWEEN THE SEXES AS REGARDS THE COMMUNITY PENSION SCHEME . IN THE MEANTIME ,