Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT (First Chamber)

10 June 1999 (1)

(Officials - Pension rights - Apportionment of pension rights in divorce proceedings)

In Case C-430/97,

REFERENCE to the Court under Article 234 EC (ex Article 177) by the Amtsgericht Köln (Germany) for a preliminary ruling in the proceedings pending before that court between

Jutta Johannes

and

Hartmut Johannes

on the interpretation of Article 6 of the EC Treaty (now, after amendment, Article 12 EC) and of Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission (OJ, English Special Edition 1968 (I), p. 30), as amended by Council Regulation (ECSC, EEC, Euratom) No 2799/85 of 27 September 1985 (OJ 1985 L 265, p. 1), in particular Article 27 of Annex VIII thereto,

THE COURT (First Chamber),

composed of: P. Jann, President of the Chamber, L. Sevón (Rapporteur) and M. Wathelet, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

- Hartmut Johannes, by Hansmanfred Boden, Rechtsanwalt, Cologne, and Jochim Sedemund, Rechtsanwalt, Berlin,

- the German Government, by Alfred Dittrich, Ministerialrat in the Federal Ministry of Justice, and Claus-Dieter Quassowski, Regierungsdirektor in the Federal Ministry of Economic Affairs, acting as Agents,

- the Commission of the European Communities, by Christine Berardis-Kayser, of its Legal Service, acting as Agent, assisted by Bertrand Wägenbaur, Rechtsanwalt, Hamburg,

having regard to the Report for the Hearing,

after hearing the oral observations of Hartmut Johannes, represented by Hansmanfred Boden and Thomas Lübbig, Rechtsanwalt, Berlin, and of the Commission, represented by Bertrand Wägenbaur, at the hearing on 25 February 1999,

after hearing the Opinion of the Advocate General at the sitting on 18 March 1999,

gives the following

Judgment

1. By order of 3 September 1997, received at the Court on 19 December 1997, the Amtsgericht Köln (Cologne Local Court) referred to the Court for a preliminary ruling under Article 234 EC (ex Article 177) two questions on the interpretation, first, of Article 6 of the EC Treaty (now, after amendment, Article 12 EC) and, second, of Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission (OJ, English

   Special Edition 1968 (I), p. 30), as amended by Council Regulation (ECSC, EEC, Euratom) No 2799/85 of 27 September 1985 (OJ 1985 L 265, p. 1, hereinafter 'the Staff Regulations'), in particular Article 27 of Annex VIII thereto.

2. Those questions have been raised in proceedings between Mrs Johannes and her former husband, from whom she is divorced, concerning the payment to her of apportioned pension rights acquired by Mr Johannes during their marriage.

3. The first paragraph of Article 6 of the Treaty provides:

   'Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.'

4. The first paragraph of Article 27 of Annex VIII to the Staff Regulations is in the following terms:

   'The divorced wife of an official or a former official shall be entitled to a survivor's pension, as defined in this chapter, provided that, on the death of her former husband, she can justify entitlement on her own account to receive maintenance from him by virtue of a court order or as a result of a settlement between herself and her former husband.'

5. The petitioner and the respondent in the main proceedings, both of whom are German nationals, married on 18 April 1963 in the United States of America.

6. The marriage was dissolved by a decree of divorce pronounced by the Tribunal de Première Instance (Court of First Instance), Brussels, on 28 April 1986 against the petitioner under Belgian law, as the law of the last common place of residence of the parties. That decree became absolute on 28 October 1988 and was recognised by the Ministry of Justice of the Land Nordrhein-Westfalen on 21 April 1995.

7. The respondent in the main proceedings, a former official of the Commission, has been in receipt of a retirement pension from the European Community since 1 June 1996.

8. Mrs Johannes is claiming, pursuant to Paragraph 1587 et seq. of the Bürgerliches Gesetzbuch (German Civil Code, hereinafter 'the BGB') and Paragraph 2 of the Gesetz zur Regelung von Härten im Versorgungsausgleich (Law on the Prevention of Hardship in the Adjustment of Pension Rights) of 21 February 1983, apportionment on a pro rata basis of the pension rights acquired during the marriage by the parties to the main proceedings, including those acquired by Mr Johannes in his capacity as a Commission official.

9. The parties are agreed that Mr Johannes' pension rights in respect of the Bundesversicherungsanstalt für Angestellte (Federal Insurance Office for Salaried Employees), relating to a period of employment prior to his appointment as a Community official, are subject to German law as regards apportionment of those rights. However, Mr Johannes contends that the pension paid to him by the European Commission should not be apportioned, relying on arguments based on Community law, in particular Article 6 of the Treaty and Article 27 of Annex VIII to the Staff Regulations.

10. In those circumstances, the Amtsgericht Köln decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:

    '1. Do the Staff Regulations of Officials of the European Communities, in particular Annex VIII thereto (Pension scheme) and more especially Article 27 of that annex, constitute an exhaustive set of rules governing the pension entitlements of a divorced spouse of an official which excludes further claims under national law (in this case, apportionment of pension rights under the German law of obligations)?

    2. Is it compatible with the Staff Regulations of Officials of the European Communities and with Article 6 of the EC Treaty for the laws of a Member State (in this case Germany) regarding the consequences of divorce to place a heavier burden on an official who is faced with a claim for pension apportionment under the law of obligations solely because he is a German national?'

    The first question

11. By its first question, the national court is asking essentially whether the Staff Regulations, and in particular Article 27 of Annex VIII thereto, preclude the application of rules of national law, such as Paragraph 1587 et seq. of the BGB, which provide for apportionment of pension rights between divorced spouses.

12. Mr Johannes maintains that the Staff Regulations constitute an autonomous and comprehensive system which cannot be affected by the laws of the Member States. He argues that the right of a divorced spouse to claim apportionment of pension rights, as provided for by German law, is incompatible with that system. In particular, the exercise of that right would result in an accumulation of pensions, contrary to the Staff Regulations, when the divorced widow of an official reaches retirement age, since she would then be simultaneously entitled to a survivor's pension under Article 27 of Annex VIII to the Staff Regulations and to the apportionment provided for by German law.

13. The German Government states that apportionment of pension rights between divorced spouses is based on the consideration that the pension rights acquired by

    each of the spouses during the marriage are the result of a common effort. For that reason, German law grants the spouse whose pension rights are lower a right to have the difference, in terms of value, between the pension rights acquired during the marriage adjusted. The obligation to take into account all pension rights acquired by each of the spouses during the marriage means that rights acquired during the marriage from a foreign social security institution, whether international or supranational, must be included in the adjustment. According to the German Government, such foreign pension rights remain unaffected, since the compensatory adjustment does not have any direct bearing on them but results from the application of the law of obligations to a balancing and settling of accounts as between former spouses.

14. As regards the survivor's pension granted to a divorced spouse under Article 27 of Annex VIII to the Staff Regulations, the German Government maintains that the objective pursued by that pension, and the regime by which it is governed, are different from those applicable to the compensatory adjustment of pension rights. Moreover, even after the death of the spouse who is required to make compensatory payments, there cannot be any cumulation of the rights arising from the compensatory adjustment of pension entitlements and of the divorced spouse's right to receive the survivor's pension.

15. Lastly, the German Government states that the German system of compensatory adjustment of pension rights takes into account the intentions expressed by the European Parliament in its Resolution A3-0418/93 of 21 January 1994 on the entitlement of divorced or separated women to share their ex-husband's pension rights in the Community Member States (OJ 1994 C 44, p. 218).

16. The Commission submits that the Staff Regulations govern only the legal relations between the European institutions and their respective officials. By contrast, the rules governing the rights and obligations of an official in relation to a member of his family or a third party, which may arise from family law or from other provisions of private law, fall within the exclusive competence of the Member States.

17. As regards Article 27 of Annex VIII to the Staff Regulations, the Commission states that this is an expression of the duty of the appointing authority to have regard for the welfare and interests of the former spouse of a deceased official. Consequently, that article does not regulate the financial obligations owed by an official to his former spouse under national family law, and cannot have the effect, either by virtue of the principle of the primacy of Community law or by virtue of any other principle of Community law, of rendering inapplicable a provision of the kind contained in Paragraph 1587 et seq. of the BGB, relating to the compensatory adjustment of pension rights.

18. As the Advocate General states in point 24 of his Opinion, the Community legislature has no competence to lay down the rights of spouses in divorce proceedings, including those resulting from any compensatory adjustment of pension rights as provided for under German law. Those rights are governed by the rules of private law and family law applying in the Member States, which fall within the competence of those Member States.

19. So, the Staff Regulations are intended only to regulate the legal relations between the European institutions and their officials, by establishing a series of reciprocal rights and obligations and by affording certain members of an official's family rights which they may assert in relation to the European Communities.

20. It follows that the Staff Regulations do not in any way preclude the application of national rules of law of the kind contained in Paragraph 1587 et seq. of the BGB, providing for the compensatory adjustment of pension rights between divorced spouses.

21. As regards, in particular, Article 27 of Annex VIII to the Staff Regulations, it must be concluded that that provision is not applicable to the main proceedings and that it is not designed to pursue the same objective as the apportionment of pension rights sought by Mrs Johannes. Consequently, it does not preclude the application of national rules such as those in question in the main proceedings.

22. It must therefore be held that the Staff Regulations, and in particular Article 27 of Annex VIII thereto, do not preclude the application, in proceedings between two former spouses, of national rules of law of the kind contained in Paragraph 1587 et seq. of the BGB, providing for the apportionment of pension rights between divorced spouses.

    The second question

23. By its second question, the national court is asking essentially whether Article 6 of the Treaty precludes the laws of a Member State regulating the consequences of divorce between an official of the Communities and his former spouse from causing the official to bear a heavier burden, on account of his nationality, than would be borne by an official of a different nationality in the same situation.

24. Mr Johannes compares his situation to that of a European official possessing Belgian nationality and subject to Belgian law. Since there exists no machinery under Belgian law for the apportionment of pension rights, such an official could not be required to pay sums as great as those which Mr Johannes may be ordered to pay. Mr Johannes infers from this the existence of discrimination on grounds of nationality, since the difference between the two situations rests solely on the difference in nationality.

25. The German Government and the Commission point out that, according to settled case-law, Article 6 of the Treaty is applicable only in situations falling within the scope of Community law. They submit that that is not the position in the present case, since the provisions relating to the compensatory adjustment of pension rights are rules of civil law which fall outside the competence of the Community legislature and remain within the purview of the Member States. The difference in the situations referred to by Mr Johannes results from the application of different national laws. The nationality of the parties to the proceedings is taken into consideration solely as a connecting factor applied by the rules of private international law for the purposes of determining the substantive national law applicable to the effects of the divorce.

26. It should be noted in that regard that the prohibition of all discrimination on grounds of nationality laid down by Article 6 of the Treaty applies only within the Treaty's area of application (Case C-291/96 Grado and Bashir [1997] ECR I-5531, paragraph 13).

27. Neither the national provisions of private international law determining the substantive national law applicable to the effects of a divorce nor the national provisions of civil law substantively regulating those effects fall within the scope of the Treaty.

28. It follows that Article 6 of the Treaty does not preclude the laws of a Member State from taking the spouses' nationality into consideration as a connecting factor for the purposes of determining the substantive national law applicable to the effects of a divorce.

29. The answer to the second question must therefore be that Article 6 of the Treaty does not preclude the laws of a Member State regulating the consequences of divorce between an official of the Communities and his former spouse, regard being had to the spouses' nationality as a connecting factor, from causing the official concerned to bear a heavier burden than would be borne by an official of a different nationality in the same situation.

    Costs

30. The costs incurred by the German Government and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (First Chamber),

in answer to the questions referred to it by the Amtsgericht Köln by order of 3 September 1997, hereby rules:

1. Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission, as amended by Council Regulation (ECSC, EEC, Euratom) No 2799/85 of 27 September 1985, in particular Article 27 of Annex VIII thereto, does not preclude the application, in proceedings between two former spouses, of national rules of law of the kind contained in Paragraph 1587 et seq. of the Bürgerliches Gesetzbuch, providing for the apportionment of pension rights between divorced spouses.

2. Article 6 of the EC Treaty (now, after amendment, Article 12 EC) does not preclude the laws of a Member State regulating the consequences of divorce between an official of the Communities and his former spouse, regard being had to the spouses' nationality as a connecting factor, from causing the official concerned to bear a heavier burden than would be borne by an official of a different nationality in the same situation.

JannSevón Wathelet

Delivered in open court in Luxembourg on 10 June 1999.

R. Grass P. Jann

Registrar President of the First Chamber

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1: Language of the case: German.