61974J0021

++++

OFFICIALS - EXPATRIATION ALLOWANCE - MALE AND FEMALE OFFICIALS - COMPARABLE SITUATION - NATIONALITY IMPOSED BY LAW ON A FEMALE OFFICIAL UPON HER MARRIAGE - DIFFERENCE OF TREATMENT - INADMISSIBILITY

( STAFF REGULATIONS, ANNEX VII, ARTICLE 4 )

THE CONCEPT OF 'NATIONALS' CONTAINED IN ARTICLE 4 ( A ) OF ANNEX VII OF THE STAFF REGULATIONS OF OFFICIALS MUST BE INTERPRETED IN SUCH A WAY AS TO AVOID ANY UNWARRANTED DIFFERENCE OF TREATMENT AS BETWEEN MALE AND FEMALE OFFICIALS WHO ARE, IN FACT, PLACED IN COMPARABLE SITUATIONS . IT IS, THEREFORE, NECESSARY TO EXCLUDE NATIONALITY IMPOSED BY LAW ON A FEMALE OFFICIAL UPON HER MARRIAGE WITH A NATIONAL OF ANOTHER STATE AND WHICH SHE WAS UNABLE TO RENOUNCE .

IN CASE 21/74

JEANNE AIROLA, OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY MARCEL GREGOIRE, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER, 83 BD . GRANDE-DUCHESSE CHARLOTTE, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, JOSEPH GRIESMAR, WITH AN ADDRESS FOR SERVICE AT THE OFFICE OF PIERRE LAMOUREUX, DEFENDANT,

INTIT2.IN THE MATTER OF

PRINCIPALLY, PAYMENT OF EXPATRIATION ALLOWANCE TO THE APPLICANT WITH EFFECT FROM 1 JUNE 1973,

1 THE APPLICANT SEEKS ANNULMENT OF THE DECISION OF 23 MAY 1973 BY WHICH THE COMMISSION WITHDREW THE DECISION GRANTING HER THE EXPATRIATION ALLOWANCE PROVIDED FOR UNDER THE STAFF REGULATIONS OF OFFICIALS .

2 SHE IS ALSO SEEKING AN ORDER THAT THE COMMISSION SHALL PAY HER THE EXPATRIATION ALLOWANCE WITH EFFECT FROM 1 JUNE 1973 .

3 SHE CONTENDS THAT THE CONDITION LAID DOWN IN ARTICLE 4 ( A ) OF ANNEX VII OF THE STAFF REGULATIONS, WHEREBY AN EXPATRIATION ALLOWANCE SHALL BE PAID TO OFFICIALS WHO, IN THE WORDS OF THE ARTICLE, 'ARE NOT AND HAVE NEVER BEEN NATIONALS OF THE STATE IN WHOSE EUROPEAN TERRITORY THE PLACE WHERE THEY ARE EMPLOYED IS SITUATED' DOES NOT APPLY IF, OWING TO CIRCUMSTANCES OUTSIDE HER CONTROL AND SOLELY AS THE RESULT OF NATIONAL LAWS, THE INDIVIDUAL CONCERNED ACQUIRES DUAL NATIONALITY .

4 IN THE CASE OF A FEMALE OFFICIAL WHO IS GRANTED THE NATIONALITY OF HER HUSBAND AS A RESULT OF HER MARRIAGE WITH A NATIONAL OF ANOTHER STATE, THE APPLICATION OF THAT CONDITION RESULTS IN DISCRIMINATION, SINCE UNDER NO NATIONAL LEGISLATION DOES THE MALE OFFICIAL ACQUIRE THE NATIONALITY OF HIS WIFE .

5 ON THE QUESTION OF NATIONALITY, THE PROVISIONS OF NATIONAL LEGISLATIONS ARE NOT UNIFORM; SOME LAWS, PARTICULARLY THOSE OF RECENT DATE, PROVIDE THAT A FOREIGN WIFE DOES NOT AUTOMATICALLY ACQUIRE THE NATIONALITY OF HER HUSBAND, WHEREAS, UNDER OTHER LEGISLATIONS, IT IS STILL PROVIDED THAT, AS WAS ONCE THE COMMON RULE, THE NATIONALITY OF A MARRIED WOMAN DEPENDS UPON THAT OF HER HUSBAND .

6 IN ACCORDANCE WITH THE GENERAL PATTERN OF ARTICLE 4 OF ANNEX VII THIS PROVISION ADOPTS THE OFFICIAL'S HABITUAL RESIDENCE BEFORE HE ENTERED THE SERVICE AS THE PARAMOUNT CONSIDERATION IN DETERMINING ENTITLEMENT TO AN EXPATRIATION ALLOWANCE .

7 THE OFFICIAL'S NATIONALITY IS REGARDED AS BEING ONLY A SUBSIDIARY CONSIDERATION, I.E . AS SERVING TO DEFINE THE EFFECT OF THE LENGTH OF SUCH RESIDENCE OUTSIDE THE TERRITORY IN WHICH THE PLACE WHERE HE IS EMPLOYED IS SITUATED .

8 THE OBJECT OF THE EXPATRIATION ALLOWANCE IS TO COMPENSATE OFFICIALS FOR THE EXTRA EXPENSE AND INCONVENIENCE OF TAKING UP EMPLOYMENT WITH THE COMMUNITIES AND BEING THEREBY OBLIGED TO CHANGE THEIR RESIDENCE .

9 THOUGH 'EXPATRIATION' IS A SUBJECTIVE STATE CONDITIONED BY THE OFFICIAL'S ASSIMILATION INTO NEW SURROUNDINGS, THE STAFF REGULATIONS OF OFFICIALS CANNOT TREAT OFFICIALS DIFFERENTLY IN THIS RESPECT ACCORDING TO WHETHER THEY ARE OF THE MALE OR OF THE FEMALE SEX SINCE, IN EITHER CASE, PAYMENT OF THE EXPATRIATION ALLOWANCE MUST BE DETERMINED BY CONSIDERATIONS WHICH ARE UNIFORM AND DISREGARD THE DIFFERENCE IN SEX .

10 THE CONCEPT OF 'NATIONALS' CONTAINED IN ARTICLE 4 ( A ) MUST THEREFORE BE INTERPRETED IN SUCH A WAY AS TO AVOID ANY UNWARRANTED DIFFERENCE OF TREATMENT AS BETWEEN MALE AND FEMALE OFFICIALS WHO ARE, IN FACT, PLACED IN COMPARABLE SITUATIONS .

11 SUCH UNWARRANTED DIFFERENCE OF TREATMENT BETWEEN FEMALE OFFICIALS AND OFFICIALS OF THE MALE SEX WOULD RESULT FROM AN INTERPRETATION OF THE CONCEPT OF 'NATIONALS' REFERRED TO ABOVE AS ALSO EMBRACING THE NATIONALITY WHICH WAS IMPOSED BY LAW ON AN OFFICIAL OF THE FEMALE SEX BY VIRTUE OF HER MARRIAGE, AND WHICH SHE WAS UNABLE TO RENOUNCE .

12 IT IS THEREFORE NECESSARY TO DEFINE THE CONCEPT OF AN OFFICIAL'S PRESENT OR PREVIOUS NATIONALITY UNDER ARTICLE 4 ( A ) OF ANNEX VII AS EXCLUDING NATIONALITY IMPOSED BY LAW ON A FEMALE OFFICIAL UPON HER MARRIAGE WITH A NATIONAL OF ANOTHER STATE, WHEN SHE HAS NO POSSIBILITY OF RENOUNCING IT .

13 IN THE PRESENT CASE THE APPLICANT, ON HER MARRIAGE, HAD THE NATIONALITY OF HER HUSBAND CONFERRED ON HER WITHOUT THE RIGHT TO RENOUNCE IT BUT BY AN EXPRESS DECLARATION SHE RETAINED HER BELGIAN NATIONALITY OF ORIGIN .

14 CONSEQUENTLY, IN APPLYING THE PROVISION IN QUESTION, THE APPLICANT'S ITALIAN NATIONALITY HAS NOT TO BE TAKEN INTO ACCOUNT .

15 THE APPLICANT, ACCORDINGLY, FULFILS THE CONDITION OF ARTICLE 4 ( A ) OF ANNEX VII OF THE STAFF REGULATIONS .

16 THE DECISION OF 23 MAY 1973 BY WHICH THE COMMISSION WITHDREW ITS ORIGINAL DECISION TO PAY THE APPLICANT THE EXPATRIATION ALLOWANCE PROVIDED FOR BY THE STAFF REGULATIONS OF OFFICIALS MUST, THEREFORE, BE ANNULLED .

APPLICATION FOR LEGAL INTEREST

17 IN CONCLUSION THE APPLICANT APPLIES FOR LEGAL INTEREST ON THE ARREARS OF EXPATRIATION ALLOWANCE CALCULATED FROM THE DATE WHEN EACH BECAME DUE UNTIL THE DATE OF ACTUAL PAYMENT .

18 IN THE COURSE OF THE PROCEEDINGS THE APPLICANT HAS MADE NO ATTEMPT TO JUSTIFY THIS REQUEST .

19 AS THE DEFENDANT INTERPRETED THE PROVISION IN QUESTION ERRONEOUSLY BUT IN GOOD FAITH, IT SHOULD NOT BE CALLED UPON TO PAY INTEREST .

20 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

21 AS THE DEFENDANT HAS FAILED ON THE SUBSTANCE OF THE CASE, IT MUST BE ORDERED TO PAY THE WHOLE OF THE COSTS .

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . ANNULS THE DECISION OF 23 MAY 1973 IN WHICH THE COMMISSION WITHDREW ITS ORIGINAL DECISION GRANTING AN EXPATRIATION ALLOWANCE TO THE APPLICANT;

2 . ORDERS THE DEFENDANT TO PAY THE EXPATRIATION ALLOWANCE TO THE APPLICANT WITH EFFECT FROM 1 JUNE 1973;

3 . DISMISSES THE APPLICATION FOR LEGAL INTEREST;

4 . ORDERS THE DEFENDANT TO PAY THE WHOLE OF THE COSTS OF THE ACTION .