Odbor kompatibility s právem ES Úřad vlády ČR	I S A P Informační Systém pro Aproximaci Práva
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	Číslo (Kód CELEX): Number (CELEX Code):		61974C0021

	Název: Title:		OPINION OF MR ADVOCATE-GENERAL TRABUCCHI DELIVERED ON 14 NOVEMBER 1975. JEANNE AIROLA V COMMISSION OF THE EUROPEAN COMMUNITIES. CASE 21-74. CHANTAL VAN DE BROECK V COMMISSION OF THE EUROPEAN COMMUNITIES. CASE 37-74.

	Publikace: Publication:		European Court Reports 1975 page 0221

	Předmět (klíčová slova): Keywords

	Související předpisy: Corresponding acts:

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		Defrenne II Case 43/75 Defrenne v Sabena [1976] ECR 455 · Defrenne III Case 149/77 Defrenne v Sabena [1978] ECR 1365 · Barber Case C-262/88 Barber v Guardian Royal Exchange [1990] ECR I-1889


	Plný text: Fulltext:		Ne

Fakta:
On 1 January 1964, Mrs Jeanne Airola, born in Belgium in 1933, became a student trainee at the Joint Research Centre at Ispra, Italy. On 26 April 1965 she married an Italian. Under Italian Law, this marriage had the legal consequence that Mrs Airola acquired Italian nationality. Upon her application, however, she also retained the Belgian nationality. Since Mrs Airola was as of the date of her marriage (also) of Italian nationality, the Commission by decision of 23 May 1973 withdrew the decision granting her an expatriation allowance. This expatriation allowance is provided for in Article 4 (a) of Annex VII of the Staff Regulation, 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”. The withdrawal was based on the ground that Mrs Airola had now acquired Italian nationality.
Mrs Airola contended that Article 4 (a) should be interpreted differently. She argued that she had obtained Italian nationality owing to circumstances outside her control and solely as the result of national laws. Said Article in conjunction with the applicable national regulations on nationality would have a discriminatory effect on women because under some legislations - such as the Italian - it is still provided that, as was once the common rule, the nationality of a married woman depends upon that of her husband. Mrs Airola therefore under Article 179 of the EEC Treaty brought an action before the European Court of Justice asking for payment of the expatriation allowance as from 1 June 1973 plus legal interest on the arrears.

Názor soudu a komentář:
The Court in the main part grants Mrs Airola’s request. It bases its decision on the purpose and the systematic of Article 4 of Annex VII on the one hand and on the prohibition of discrimination on the basis of sex on the other.
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.” The “general pattern” of Article 4 of Annex VII is to adopt the official’s habitual residence before he entered the service as the paramount consideration in determining entitlement to an expatriation allowance. “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.”While arguably these considerations could have justified Mrs Airola’s request, the Court nonetheless goes on to also found its judgement on the argument that Article 4 may not be interpreted so as to violate the prohibition of discrimination on the basis of sex: “[T]he 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. 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.” Such differences would indeed result if also the nationality which is being imposed by law on a female - but not on a male - official by virtue of the marriage, and which cannot be renounced. In the light of these considerations, the Court finds that Mrs Airola fulfils the conditions of Article 4 (a) of Annex VII of the Staff Regulations.
This approach is rather noteworthy. First, the Court apparently took the opportunity to establish the principle of non-discrimination as a general principle: As has been pointed out, the Court arguably could have decided the case without any reference to the principle of non-discrimination. Secondly, the Court, though without further argumentation, in this judgement lays the foundation for the recognition of the principle of non-discrimination as a fundamental right under Community law (cf. also Defrenne III). The principle of non-discrimination, in the view of the Court, apparently ranks above the Staff Regulations which have to comply with said principle.
The Court, however, rejects the application for legal interst on the arrears of expatriation allowance. It argues that Mrs Airola had not attempted to justify this claim, the Commission, on the other hand, had interpreted the provision of Article 4 (a) “erroneously but in good faith” and therefore should not be obliged to pay interest. This latter part of the judgement appears rather unconvincing, in particular taking into account the Court’s subsequent rulings on the temporal limitation of its judgements: The Court has pointed out on several occasions (e.g. Defrenne II; Barber), that its interpretation of the law, for reasons of the objectivity of the law, also applies retroactively; only under exceptional circumstances may a temporal limitation be ordered. It has thus provided for a temporal limitation in cases where (a) one party was entitled to rely on a different interpretation because of special circumstances, in particular a practice observed by Community institutions and where (b) the retroactive effect would have severe economic consequences. Neither of those conditions is presently fulfilled. Furthermore, the Court has usually not ordered a temporal limitation for those who had instituted legal proceedings before the date of the judgement. The negation of the request for legal cannot therefore be taken as representative for the Court’s case law.

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