Chehab Razzouk and Abbas Beydoun v European Commission (75/82, 117/82)

1.Submissions pleaded by both applicants

The applicants' first submission is based on Article 119 of the EEC Treaty, Article 79 of the Staff Regulations and on the principle of equality of treatment. According to the applicants, Article 79 of the Staff Regulations, which grants a survivor's pension to the widow of an official or a former official under the conditions set out in Chapter 4 of Annex VIII to the Staff Regulations, must be interpreted in conformity both with the principles laid down in Article 119 of the EEC Treaty and confirmed jn judgments of the Court, and with the general principle of nondiscrimination. In accordance with those principles, all persons to whom the Staff Regulations apply, be they officials or otherwise, must be treated in the same way when they are in the same situation, and a difference of sex should not imply a difference of treatment.It is for the Commission to ensure that the Community rules are applied in conformity with the principles set out above. That is all the more reason why it should apply the provisions at issue in the present case in conformity with those principles, adopting, if necessary, a liberal interpretation or an interpretation by analogy. If Article 79 of the Staff Regulations cannot be interpreted liberally or by analogy, the limitation for which it provides is invalid and, as such, cannot be relied on against the applicants.Moreover, an application of Article 79 confining the right to a survivor's pension to widows would introduce an element of discrimination against female officials. The latter would in effect be making much higher contributions, in relation to the benefits received, than would male officials. This practice of equal contributions for different benefits constitutes discrimination, irrespective of whether the pension scheme is contributory or operates on the principle of capitalization.Finally, the applicants point out that the survivor's pension is not a benefit designed to guarantee a source of income to persons who have no other, but derives from a right to which the survivors are entitled and which is justified by the professional activity of the official in the service of the Communities. Not only are the Staff Regulations silent as regards the alleged purpose of this pension as a form of assistance but the fact that the pension is provided for regardless of the financial, social or professional situation of the recipient excludes such a purpose.The Commission observes, in its defence, that the applicants are wrong to claim that Article 119 of the EEC Treaty, which enshrines the principle that men and women should receive equal pay for equal work also applies to survivor's pensions for the dependants of deceased officials.It refers in this context to the judgment of 15 June 1978 and 25 May 1971 (Case 149/77, Defrenne v Sabena, [1978] ECR 1365, and Case 18/70, Defrenne v Belgium, [1971] ECR 445) and it emphasizes that social security is amongst the matters mentioned in Article 118 of the Treaty. With regard to those matters, and in particular with regard to retirement and survivor's pension schemes, the elimination of discrimination based on the worker's sex is presented as a goal to be achieved. Furthermore, the Commission states that survivor's benefits are also not covered by the Council Directive of 19 December 1978 on the progressive implementation of the principle of equal treatment főimen and women in matters of social security.The Commission refutes the applicant's reference to the Court's judgment of 9 February 1982 (Case 12/81, Garland v British Rail Engineering, [1982] ECR 359), because the Advocate General's opinion in that case demonstrates that the judgment does not depart from the Court's earlier decisions in this field. In particular, that judgment in no way contradicts that of 25 May 1971 (De/renne), which held that retirement pensions are not included in the concept of pay within the meaning of Article 119.In the present case, moreover, the pensions paid by the European Communities to their officials and dependants derive from the Staff Regulations. They are paid solely on the basis that the officials meet the conditions laid down in those regulations. On that basis, the lack of proportionality between pensions and contributions cannot be regarded as discrimination. The Commission refers in this connection to the Advocate General's opinion in the Grogan, De Pascale and Curtis cases ([1982] ECR 886).Finally, the survivor's pension scheme in the Staff Regulations was set up with certain social considerations in mind, namely to ensure a decent standard of living for the spouse of the deceased official. Whereas a surviving wife is presumed not to have sufficient resources for this purpose, a surviving husband must prove that he does not have such resources.The applicants contend, in their reply, that the Commission is wrong to assume that the applicants seek to have Article 119 applied to their case and they point out that the application uses the words “in conformity with the principles laid down in Article 119 of the EEC Treaty...”. Those principles are designed to ensure equality of treatment for both men and women and the application seeks neither more nor less than that. It is perfectly possible that the principles referred to, as regards the factors mentioned and other related factors, can be made more concrete. The Court can thus use them as a suitable basis to regulate the equality of male and female officials of the European Economic Community in regard to pension rights. That would also constitute a useful contribution to the law governing the European civil service.The Commission, in its rejoinder, notes that the applicants do not rely on Article 119 in support of their claims and also that they did not dispute its argument that the said article was not applicable.The applicant's second submission is based on an interpretation of the principle of equal treatment for men and women. In their view, the Commission has not followed the guidelines laid down by the Court to help the institutions to interpret the Staff Regulations when it is a question of adapting them to factual, legal or economic situations which do not appear to correspond to the carefully thought-out objectives of the legislature. The applicants refer in this connection to the judgment of 31 May 1979 (Case 156/78, Newth v Commission, [1979] ECR 1941), in which the Court held that, where the application of an article is likely to result in a breach of a superior rule of law, as in the present case, the Commission is obliged, in order to avoid such a result, not to apply the article in question.The aforementioned guidelines are favourable to the applicants' case, particularly in view of the Commission's own proposal of 13 June 1974 (Official Journal 1974, C 88, p. 25), seeking to insert an express right to a widower's pension in the Staff Regulations. It is this fact which justifies the claim for interest at 9% from 1 May 1981, the date at which the pension rights of Mr Razzouk and his son Michel should have arisen, and from 1 October 1980 in the case of Mr Beydoun.The applicants then refer to the Garland judgment (paragraph 11), concerning equal pay for men and women, which, in their view, reinforces the arguments presented above.Finally, the applicants point out that the Court held in that judgment, referring to the judgment of 31 March 1981 (Case 96/80, Jenkins v Kingsgate, [1981] ECR 911, paragraph 17), that Article 119 of the Treaty applies directly to all forms of discrimination which may be identified solely with the aid of the criteria of equal work and equal pay. These considerations should of themselves ensure mutatis mutandis, the applicants' rights to a pension.The Commission states, in its defence, that the application of the general principle of equality between the sexes is an extremely delicate question. The objective difference between the factual situations in which a widow and a widower find themselves can be advanced to justify the present provisions of the Staff Regulations on this point. It is still true that the major part of a household's resources come from the husband's work, such that, upon his death, the widow is likely to find herself in a difficult financial situation.Against that, it could be argued that since the amendment of the Staff Regulations in 1972 the widow of an official can combine the benefit of a survivor's pension with a salary paid by the European institutions. The survivor's pension is therefore of a hybrid nature in the sense that it is not only intended to provide maintenance (which would entail its forfeiture on remarriage) but is also a pecuniary advantage, linked to the public office held by the deceased spouse and independent of the survivor's means. In its present form, the Staff Regulations suffer from an internal contradiction.Furthermore, the traditional concept of the family and of the women's place within it and within society is in the process of changing, so that any legislative discrimination based on sex is considered unjustified, which means, in the present case, that the survivor's pension scheme is discriminatory because it does not grant the same advantages to both widows and widowers of officials of the European Communities.It was that strictly egalitarian concept which caused the Commission to propose, on 13 June 1974, that the Council should insert, in Title V of the Staff Regulations, after Article 79, an Article 79a making the provisions of Article 79 applicable mutatis mutandis to the widower of an official or former official. That proposal was approved by the European Parliament (Official Journal 1974, C 140, p. 20). In two later resolutions the Parliament reiterated its opinion of 13 November 1974 (sec the resolution of 18 January 1980 relating to the social security scheme applicable to temporary staff, Official Journal 1980, C 34, p. 56, and the resolution of 10 April 1981 on the special and temporary measures taken in consequence of the accession of Greece, Official Journal 1981, C 101, p. 104). Finally, when the 1982 budget was being adopted, the Parliament, at the second reading on 17 December 1981, passed Amendment No 77 which sought to allow the appropriation to cover the survivor's pensions of widows of officials to be used also for widower's pensions (Official Journal 1982, C 11, pp. 56 and 121).The Council's position on the Commission proposal was less explicit. While declaring itself anxious to respect the principle of equal treatment for men and women in the area covered by the Staff Regulations, it considers that that aspiration poses complex problems in relation to survivor's pensions and that, in the present social context, it is doubtful whether the provisions applicable to widows could be extended without amendment to widowers.The general principle of nondiscrimination between men and women has developed, in the social legislation of the Member States, under the influence of Community law. However, in the present state of development, discrimination between the sexes in the Member States' legislative provisions dealing with survivor's benefits would not be an infringement of Article 119 and would not be contrary to Community law, as is clear from the Defrenne judgment (Case 149/77, cited above).The Commission wonders, however, if the fact that discrimination based on sex in relation to survivor's pensions, which continues to exist in the internal law of the Member States, cannot at the moment be regarded as being contrary to Community law necessarily means that the same discrimination in the Staff Regulations and the rules applicable to other servants cannot be regarded as a breach, not of the social provisions of the Treaty, but of the fundamental rights which the Court has repeatedly held to be part of the general principles of Community law whose observance it must ensure. In support of this theory, the Commission cites the judgments of 7 June 1972 (Case 20/71, Sabbatini, née Bertoni, v European Parliament, [1972] ECR 345) and of 20 February 1975 (Case 21/74, Airola v Commission, [1975] ECR 221).It wonders, on the other hand, whether this discrimination should be gradually eliminated, according to the same timetable, under the terms of the directives adopted on the points set out in Article 118 of the Treaty. Doubts on this subject are not unreasonable.The Commission states that in the present situation, while aware that, in the view of the Court, the Staff Regulations must be interpreted so as to conform to a superior rule of law, as is clear from the Airola and Newth judgments, cited above, and from the judgment of 20 February 1975 (Case 37/74, Van den Broeck v Commission, [1975] ECR 235), it feels obliged to apply the provisions as they stand. Such a course of conduct is all the more justified because the provisions are sufficiently clear as not to require further interpretation and, in any event, they have not been declared illegal by the Court.Finally, if the Court finds that the present system is without legal foundation, the Commission suggests that it should invite the competent institutions to take the measures which they consider necessary, within a time-limit to be fixed by the Court, to eliminate all discrimination between the sexes in the provisions of the Staff Regulations dealing with pensions for the survivors of officials and other servants of the European Communities.The applicants, in their reply, present a synopsis of the evolution of the law in the Member States and elsewhere. Thus, in Belgium provisions meeting the requirements of equality between men and women have existed for Senators since 1976. In Italy a judgment of the Constitutional Court of 25 January 1980 declared unconstitutional a provisions stipulating that the widower of an official is entitled to a pension only under conditions resembling those in Article 23 of Annex VIII to the Staff Regulations. In Ireland úit Labour Court ruled on 7 May 1979 that male and female Senators had an equal right to a survivor's pension. The United Kingdom pension scheme has provided for absolute equality of treatment for men and women since 1975. In the United States a Supreme Court decision of 29 April 1980 declared unconstitutional a provision resembling Article 23 of Annex VIII of the Staff Regulations.The Commission answers, in its rejoinder, that, as regards Belgium the equality relied on by the applicants is based not on a law or a royal decree but on a rule of the Senator's pension fund. In Italy equality with regard to survivor's pensions is regulated by Law No 908 of 9 December 1977. As regards Ireland, the Commission notes that the Department of the Public Service has decided to extend the existing survivor's pension scheme so as to apply the same conditions to widows and widowers of officials.In addition, the Commission appended a table to its rejoinder summarizing the position in the Member States on 1 September 1982. It can be seen from that table that in four Member States there is complete equality between widows and widowers of officials. In two Member States the widower of an official is not at present entitled to a survivor's pension. Two other Member States grant such a right to widowers, but under certain restrictive conditions, particularly as regards the beneficiary's means. In one Member State there is no public-law scheme of survivor's pensions for the dependants of officials. Finally, in yet another Member State the widower of an official has a right to an ordinary widow's pension. This right is however suspended as long as there is a dependent child entitled to a pension and it is deferred until the normal age of entitlement to a pension (60 years), unless the person concerned is unable to work.As for the rest, the Commission merely repeats that the question must, in its view, be dealt with by legislation. For it, the most serious doubts are due to the contradiction which, in its opinion, would arise from the immediate application of a single scheme of widow's and widower's pensions in the institutions while the absence of similar schemes in the Member States continues not to be contrary to Community law.