61971J0024

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1 . OFFICIALS - WIDOW AND DIVORCED WIFE - SURVIVOR' S PENSION - NATURE - CALCULATION

( STAFF REGULATIONS OF OFFICIALS OF THE EC, ANNEX VIII, ARTICLES 27, 28 )

2 . OFFICIALS - WIDOW AND DIVORCED WIFE - SURVIVOR' S PENSION - DIVISION - OBLIGATION TO PAY MAINTENANCE ENSUING FROM DIVORCE - EXTENT - PROOF

( STAFF REGULATIONS OF OFFICIALS, ANNEX VIII, ARTICLE 28 )

3 . RIGHT CONFERRED ON INDIVIDUALS BY A PROVISION OF COMMUNITY LAW - PROOF OF EXISTENCE OF SUCH RIGHT GOVERNED BY NATIONAL LAW - JURISDICTION OF THE COMMUNITY ADMINISTRATION AND THE COURT OF JUSTICE

1 . ARTICLES 27 AND 28 OF ANNEX VIII TO THE STAFF REGULATIONS OF OFFICIALS ARE NOT INTENDED TO PRESERVE IN A DIFFERENT FORM, FOR THE BENEFIT OF A WIDOW OR DIVORCED SPOUSE, AN OBLIGATION TO PAY MAINTENANCE WHICH STEMS FROM THE MARRIAGE OR THE DIVORCE, BUT ESTABLISH A RIGHT WHICH THE PARTIES CONCERNED HOLD DIRECTLY UNDER THE STAFF REGULATIONS AND AS REGARDS WHICH THE CLAIM TO MAINTENANCE AGAINST THE DECEASED OFFICIAL IS ONLY A FACTOR FOR THE PURPOSE OF CALCULATING THE DIVISION OF THE PENSION .

2 . THE FINAL SENTENCE OF THE FIRST PARAGRAPH OF ARTICLE 28 CANNOT BE INTERPRETED AS ONLY ACCEPTING A JUDICIAL DECISION BY WAY OF PROOF AND AS EXCLUDING OTHER MEANS OF PROVING THE OBLIGATION TO PAY MAINTENANCE WHICH ARE REQUIRED OR ACCEPTED BY THE LAW GOVERNING THE CONSEQUENCES OF DIVORCE .

3 . IF THE EVIDENCE OF THE EXISTENCE OF A RIGHT GRANTED BY A PROVISION OF COMMUNITY LAW IS GOVERNED BY THE NATIONAL LAW TO WHICH THE PERSON CONCERNED IS SUBJECT, IT IS FOR THE COMMUNITY ADMINISTRATION AND, IN THE CASE OF AN ACTION BEFORE THE COURT OF JUSTICE, FOR THAT COURT, TO CONSIDER, IN ORDER TO ENSURE A CORRECT APPLICATION OF THE SAID PROVISION, WHETHER THE CONDITIONS REQUIRED BY THE NATIONAL LAW ARE SATISFIED .

IN CASE 24/71

ELFRIEDE MEINHARDT, NEE FORDERUNG, RESIDING AT 62 WIESBADEN, BURGSTRASSE 6, REPRESENTED AND ASSISTED BY MR ROSSMEISSL, K . WEIDMANN AND MR WAHL OF THE WIESBADEN BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR WINTERSDORFF, ADVOCATE, 22 AVENUE DE LA LIBERTE, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, JUERGEN UTERMANN, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF EMILE REUTER, LEGAL ADVISER, 4 BOULEVARD ROYAL, DEFENDANT,

IN THE PRESENCE OF MARIANNE MEINHARDT, NEE PRANGE, RESIDING AT TERVUREN, CHAUSSEE DE BRUXELLES 73, REPRESENTED BY MR ZIMMER OF THE WIESBADEN BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR WENNMACHER, 17 BOULEVARD ROYAL, INTERVENER,

APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE COMMISSION OF THE EUROPEAN COMMUNITIES OF 18 FEBRUARY 1971 CONCERNING THE DIVISION OF A WIDOW' S PENSION IN ACCORDANCE WITH ARTICLE 28 OF ANNEX VIII TO THE STAFF REGULATIONS OF OFFICIALS .

1 THE APPLICATION SEEKS IN THE FIRST PLACE THE ANNULMENT OF THE DECISION CONTAINED IN THE LETTER DATED 18 FEBRUARY 1971 AND ADDRESSED TO THE APPLICANT BY THE DIRECTOR-GENERAL FOR PERSONNEL OF THE COMMISSION . BY THIS DECISION THE DEFENDANT REFUSED TO AWARD TO THE APPLICANT A SHARE IN THE SURVIVOR' S PENSION WHICH, UNDER ARTICLES 27 AND 28 OF ANNEX VIII TO THE STAFF REGULATIONS OF OFFICIALS, IS PAYABLE IN CERTAIN CIRCUMSTANCES TO THE DIVORCED WIFE OF A DECEASED OFFICIAL WHO ALSO LEAVES A WIDOW .

2 UNDER ARTICLE 79 OF THE STAFF REGULATIONS, THE WIDOW OF AN OFFICIAL IS ENTITLED TO A SURVIVOR' S PENSION UNDER THE CONDITIONS LAID DOWN IN ANNEX VIII TO THESE REGULATIONS . ARTICLE 17 OF THIS ANNEX GOVERNS THE ENTITLEMENT TO A PENSION OF THE WIDOW OF A DECEASED OFFICIAL . ARTICLE 27 OF THIS ANNEX STATES THAT THE DIVORCED WIFE OF AN OFFICIAL SHALL BE ENTITLED ON HIS DEATH TO A SURVIVOR' S PENSION PROVIDED THAT THE DECREE OF DIVORCE FOUND THAT THE OFFICIAL WAS SOLELY TO BLAME AND THAT THE DIVORCED WIFE HAS NOT REMARRIED BEFORE THE DEATH OF HER FORMER HUSBAND . ARTICLE 28 OF ANNEX VIII GOVERNS THE AWARD OF THE SURVIVOR' S PENSION WHERE THE DECEASED OFFICIAL LEAVES A WIDOW AND A DIVORCED WIFE . IN SUCH A CASE THE SURVIVOR' S PENSION IS IN PRINCIPLE DIVIDED IN PROPORTION TO THE DURATION OF EACH MARRIAGE .

3 THESE PROVISIONS ARE NOT INTENDED TO PRESERVE IN A DIFFERENT FORM, FOR THE BENEFIT OF A WIDOW OR DIVORCED WIFE, AN OBLIGATION TO PAY MAINTENANCE WHICH STEMS FROM THE MARRIAGE OR THE DIVORCE, BUT ESTABLISH A RIGHT WHICH THE PARTIES CONCERNED HOLD DIRECTLY UNDER THE STAFF REGULATIONS IN THEIR CAPACITY AS THE WIDOW OR THE DIVORCED WIFE WHO HAS NOT REMARRIED . HOWEVER, UNDER ARTICLE 28 THE AMOUNT TO WHICH THE DIVORCED WIFE IS ENTITLED IF SHE HAS NOT REMARRIED SHALL NOT BE MORE THAN THE AMOUNT OF THE MAINTENANCE AWARDED TO HER UNDER THE DECREE OF DIVORCE .

4 THE REASONS FOR THE COMMISSION' S REJECTION OF THE APPLICANT' S CLAIM ARE, ON THE ONE HAND THAT THE APPLICANT HAS NOT SHOWN THAT THE MONTHLY MAINTENANCE PAYMENTS OF DM 200 MADE BY HER HUSBAND WERE DUE TO HER BY WAY OF " MAINTENANCE AS A RESULT OF ( THEIR ) DIVORCE " AND ON THE OTHER HAND THAT UNDER ARTICLE 28 OF THE ABOVEMENTIONED ANNEX THE MAINTENANCE HAD TO BE AWARDED AND ITS AMOUNT FIXED BY THE DECREE OF DIVORCE, WHICH WAS NOT SO IN THE PRESENT CASE .

5 ARTICLE 28 DOES NOT CONCERN THE EXISTENCE OF THE RIGHT TO THE SURVIVOR' S PENSION, BUT HOW THE SHARE TO BE PAID TO THE DIVORCED WIFE IS TO BE DETERMINED WHERE HER RIGHT IS IN COMPETITION WITH THAT OF THE WIDOW . THIS IS CONFIRMED BY THE SECOND PARAGRAPH OF THIS PROVISION WHICH STATES THAT IF ANY OF THE PERSONS ENTITLED TO PENSION DIES, HER SHARE SHALL ACCRUE TO THE SHARE OF THE OTHER PERSON . MOREOVER, THE DEFENDANT ACKNOWLEDGES THAT THE PROVISION IN DISPUTE CANNOT BE CONSTRUED LITERALLY IN SO FAR AS IT REQUIRES THAT THE AMOUNT OF THE PENSION MUST BE DETERMINED BY THE DECREE OF DIVORCE ITSELF, BUT MAINTAINS THAT, AT ALL EVENTS, THE PRODUCTION OF A JUDICIAL DECISION IS NECESSARY .

6 THE EXISTENCE AND EXTENT OF THE OBLIGATION ON THE PART OF THE OFFICIAL TO PAY MAINTENANCE TO HIS DIVORCED WIFE MUST IN PRINCIPLE BE DETERMINED IN ACCORDANCE WITH THE LAW WHICH GOVERNS THE CONSEQUENCES OF DIVORCE . IN MANY STATES, AND IN CERTAIN MEMBER STATES IN PARTICULAR, THE MAINTENANCE PAYABLE BY A SPOUSE AS A RESULT OF DIVORCE NEED NOT, AND EVEN IN CERTAIN CASES CANNOT, BE FIXED BY THE DECREE OF DIVORCE OR BY A SUBSEQUENT JUDICIAL DECISION, BUT MAY, INTER ALIA, BE ESTABLISHED BY AN AGREEMENT BETWEEN THE PARTIES . TO REQUIRE PROOF OF THE EXISTENCE AND EXTENT OF THE OBLIGATION TO PAY MAINTENANCE BY A JUDICIAL DECISION, WHEN THE LAW GOVERNING THE CONSEQUENCES OF THE DIVORCE DOES NOT RECOGNIZE OR, AT ALL EVENTS, DOES NOT REQUIRE RECOURSE TO SUCH A DECISION, WOULD IN CERTAIN CASES FRUSTRATE THE EXERCISE OF A RIGHT TO A SURVIVOR' S PENSION WHICH THE STAFF REGULATIONS CONFERS ON THE DIVORCED WIFE WHOSE HUSBAND IS FOUND SOLELY TO BLAME FOR THE DIVORCE . THIS COULD NOT HAVE BEEN THE INTENTION OF THE AUTHORS OF THE STAFF REGULATIONS . THEREFORE, THE FINAL SENTENCE OF THE FIRST PARAGRAPH OF ARTICLE 28 CANNOT BE INTERPRETED AS EXCLUDING OTHER MEANS OF PROVING THE OBLIGATION TO PAY MAINTENANCE WHICH ARE REQUIRED OR ACCEPTED BY THE LAW GOVERNING THE CONSEQUENCES OF DIVORCE . THE PURPOSE OF ARTICLE 28 IS THEREFORE TO ESTABLISH A RELIABLE POINT OF REFERENCE BASED ON THE INTERNAL LAW APPLICABLE TO THE PARTIES CONCERNED .

7 THEREFORE, BY REFUSING TO AWARD THE APPLICANT THE SHARE IN THE PENSION PROVIDED FOR IN ARTICLE 28 OF ANNEX VIII, WITHOUT HAVING CONSIDERED WHETHER THE LAW GOVERNING THE CONSEQUENCES OF THE DIVORCE REQUIRES A JUDICIAL DECISION AS PROOF OF THE RIGHT TO MAINTENANCE, THE DEFENDANT HAS INFRINGED THAT ARTICLE .

8 THE DECISION MUST THEREFORE BE ANNULLED .

9 IN THE SECOND PLACE THE APPLICATION ASKS THE COURT TO RULE THAT THE APPLICANT IS ENTITLED TO A SHARE IN THE SURVIVOR' S PENSION AND TO DETERMINE THE AMOUNT OF THAT SHARE . THE COURT HAS JURISDICTION UNDER ARTICLE 91 OF THE STAFF REGULATIONS TO ADJUDICATE UPON THIS CLAIM .

10 IT IS ESTABLISHED THAT THE APPLICANT' S HUSBAND WAS FOUND SOLELY TO BLAME FOR THE DIVORCE AND THAT SHE HAS NOT REMARRIED . MOREOVER, IT IS ACKNOWLEDGED BY THE PARTIES TO THE ACTION THAT MR WILLY MEINHARDT PAID THE APPLICANT DM 200 EVERY MONTH WITHOUT FAIL FROM THE DIVORCE TO HIS DEATH . THE APPLICANT AND THE DECEASED OFFICIAL WERE OF GERMAN NATIONALITY AND THE DECREE OF DIVORCE WAS PRONOUNCED IN THE FEDERAL REPUBLIC OF GERMANY .

11 THE PARTIES ALSO ACCEPT THAT UNDER GERMAN LAW, WHICH IN THE PRESENT CASE GOVERNS THE POSITION OF THE DIVORCED SPOUSES, THE MAINTENANCE WHICH THE WIFE IS ENTITLED TO CLAIM IN THE CIRCUMSTANCES LAID DOWN IN ARTICLE 58 OF THE GERMAN MARRIAGE LAW ( EHEGESETZ ) MAY FORM THE SUBJECT OF AN AGREEMENT BETWEEN THE PARTIES . THIS AGREEMENT MAY EVEN BE IMPLIED AND IT MAY BE PROVED BY THE CIRCUMSTANCES SURROUNDING ITS PERFORMANCE, AND IN PARTICULAR THOSE CONCERNING PAYMENT, IF THEY ARE SUCH AS TO SHOW THAT THE PAYMENTS WERE MADE BY WAY OF MAINTENANCE .

12 ALTHOUGH PROOF OF THE EXISTENCE AND OF THE AMOUNT OF THE MAINTENANCE PAYABLE AS A RESULT OF THE DIVORCE IS IN THE PRESENT CASE GOVERNED BY GERMAN LAW, IT IS FOR THE COMMISSION AND, IN THE CASE OF AN ACTION BEFORE THE COURT OF JUSTICE, FOR THE COURT, WHICH IS CHARGED WITH APPLYING ARTICLE 28 OF ANNEX VIII, TO CONSIDER, IN ORDER TO ENSURE THE CORRECT APPLICATION OF THE SAID ARTICLE 28, WHETHER THE CONDITIONS REQUIRED BY THE NATIONAL LAW ARE SATISFIED . THE FACT THAT THE PAYMENTS EXTENDED OVER A LONG PERIOD, THEIR REGULARITY, THE AMOUNT OF THE SUM IN RELATION TO THE SALARY OF THE OFFICIAL AND THE SUPPOSED INCOME OF THE DIVORCED WIFE, TOGETHER WITH THE FACT THAT THE OFFICIAL WAS FOUND SOLELY TO BLAME FOR THE DIVORCE, CONSTITUTE REASONABLE GROUNDS FOR CONCLUDING THAT THESE PAYMENTS WERE MADE IN PERFORMANCE OF AN OBLIGATION TO PAY MAINTENANCE ARISING FROM THE DIVORCE . FURTHERMORE, NEITHER THE DEFENDANT NOR THE INTERVENER HAVE PUT FORWARD ANY ACCEPTABLE REASON WHICH WOULD HAVE LED MR MEINHARDT TO MAKE THE PAYMENTS IN QUESTION IF HE HAD NOT CONSIDERED HIMSELF BOUND TO MAKE THEM AS A RESULT OF AN OBLIGATION TO PAY MAINTENANCE . THE APPLICANT IS, THEREFORE, ENTITLED TO A SHARE IN THE SURVIVOR' S PENSION .

13 THIS SHARE MUST BE FIXED AT DM 200 PER MONTH, WHICH CORRESPONDS TO THE AMOUNT OF THE PENSION PAID TO HER AT THE TIME WHEN HER DIVORCED HUSBAND DIED . THE QUESTIONS OF HER RESOURCES IN RELATION TO HER PRESENT NEEDS AND WHETHER SHE MAY POSSIBLY HAVE A MAINTENANCE CLAIM AGAINST THE HEIRS OF HER DIVORCED HUSBAND ARE IRRELEVANT TO THE APPLICATION OF ARTICLES 27 AND 28 OF ANNEX VIII TO THE STAFF REGULATIONS . THESE PROVISIONS DO NOT GOVERN THE CONTINUATION OF AN OBLIGATION TO PAY MAINTENANCE BUT A RIGHT WHICH THE DIVORCED WIFE AND THE WIDOW HOLD DIRECTLY UNDER THE STAFF REGULATIONS; IN THIS CONNEXION THE CLAIM TO MAINTENANCE AGAINST THE DECEASED OFFICIAL IS ONLY A FACTOR FOR THE PURPOSE OF CALCULATING THE DIVISION OF THE PENSION .

14 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO BEAR THE COSTS . THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS .

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . ANNULS THE DECISION OF THE COMMISSION CONTAINED IN THE LETTER OF 18 FEBRUARY 1971 .

2 . ORDERS THE COMMISSION OF THE EUROPEAN COMMUNITIES TO PAY TO THE APPLICANT A MONTHLY SUM OF DM 200 TO BE DEDUCTED FROM THE PENSION WHICH IT IS REQUIRED TO PAY UNDER ARTICLE 79 OF AND ANNEX VIII TO THE STAFF REGULATIONS .

3 . ORDERS THE COMMISSION OF THE EUROPEAN COMMUNITIES TO BEAR THE APPLICANT' S COSTS .

4 . ORDERS THE INTERVENER TO BEAR HER OWN COSTS .