JUDGMENT OF 5. 2. 1981 — CASE 40/79 MRS P. v COMMISSION
In Case 40/79
THE COURT (First Chamber) composed of: T. Koopmans, President of Chamber, A. O'Keeffe and G. Bosco, Judges, Advocate General: J.-P. Warner Registrar: J. A. Pompe, Deputy Registrar
gives the following
JUDGMENT
Facts and Issues
The facts of the case, the course of the procedure, the conclusions, submissions and arguments of the parties may be summarized as follows:
I — Facts and procedure
The applicant is an official in Grade C 4 of the Commission of the European Communities.
On 27 April 1963 in Woluwe-Saint-Lambert, Brussels, she married Manfredo C, also an official of the Commission and an Italian national.
Through her marriage the applicant acquired Italian nationality, whilst retaining her German nationality.
On 13 June 1975 the Fifteenth Chamber of the Tribunal de Première Instance [Court of First Instance], Brussels, authorized the divorce of the spouses by a judgment which :
Ruled that the petition for divorce submitted by the applicant was admissible and, before pronouncing judgment on the substance of the case, permitted the applicant to establish by any evidence, including witnesses, ten facts which, taken together, were relevant and sufficiently precise and capable of rebuttal; Ruled that the cross-petition for divorce submitted by the husband of the applicant was admissible and well-founded and consequently authorized the divorce, stating that the applicant was to blame; and Reserved the entire costs.
Under that judgment the applicant was granted custody of the two children of the marriage, Cristina and Renato C, and was entrusted with the management of their property.
The applicant did not appeal and the divorce was finally pronounced and registered on 27 August 1975 by the Officier de l'État Civil [Registrar of Births, Deaths and Marriages], Woluwe-Saint-Lambert, in accordance with Article 1275 of the Code Judiciaire Belge [Belgian Code of Civil Procedure].
On the other hand there were no proceedings for recognition of that decree either in the Federal Republic of Germany or in Italy.
Manfredo C. died in Schaerbeek, Brussels, on 31 October 1977. No further steps had been taken in the original divorce proceedings instituted by the applicant.
By a letter of 25 May 1978 signed by the Head of the Individual Rights and Privileges Division the applicant was notified that an orphan's pension would be paid to each of her two children, Cristina and Renato, but that, pursuant to Article 27 of Annex VIII to the Staff Regulations of Officials of the European Communities, she would not be granted a survivor's pension.
The above-mentioned Article 27 acquired its present form as a result of Council Regulation (Euratom, ECSC, EEC) No 912/78 of 2 May 1978 amending the Staff Regulations of Officials of the European Communities and the Conditions of Employment of Other Servants of the European Communities (Official Journal 1978, L 119, p. 1) which entered into force on 4 May 1978. It is worded as follows:
“The divorced wife of an official shall be entitled on his death to a survivor's pension, as defined in this chapter, provided that the court which pronounced the decree of divorce did not find that the divorced wife in question was solely to blame ...”.
The earlier version of Article 17 of Annex VIII stated that the divorced wife of an official should be granted a survivor's pension “provided that the court which pronounced the decree of divorce found that the official was solely to blame”.
On 11 August 1978 the applicant lodged a complaint against the above-mentioned decision. That complaint was followed by supplementary notes dated 20 November and 4.December 1978.
Following the implied rejection of the complaint the applicant instituted these proceedings on 9 March 1979.
By an application lodged on 27 July 1979 Mrs C, née C, requested permission to intervene in Case 40/79 in support of the submissions of the defendant on the grounds that she was entitled to intervene in the case pursuant to Article 93 of the Rules of Procedure in her capacity as “subrogée-tutrice” [person supervising the guardian] of Cristina and Renato C, that she had actual custody of Cristina C. and that she also had a moral interest in ensuring that the applicant was not recognized as the widow of her son.
By an order of 4 October 1979 the Court (First Chamber) allowed the intervention of Mrs C. only in so far as she acted in her capacity as subrogée-tutrice of Cristina and Renato C. The Court considered that if the applicant's claim succeeded the orphan's pension paid to Cristina and Renato C. would be reduced by half in accordance with the third paragraph of Article 80 of the Staff Regulations.
On hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court (First Chamber) decided to open the oral procedure without any preparatory inquiry.
II — Conclusions of the parties
The applicant claims that the Court should :
Annul the decision of 25 May 1978 refusing to grant the applicant the survivor's pension and the implied decision rejecting the complaint submitted by her on 11 August 1978;
Order the defendant to award the applicant a survivor's pension and to pay her the monthly instalments thereof which have fallen due, with interest on the arrears at the legal rate of 8%;
Order the defendant to pay the costs.
The defendant contends that the Court should :
Dismiss the application as unfounded;
Order the applicant to pay the costs.
The intervener requests the Court to:
Declare that the applicant's claims are unfounded;
Order the applicant to bear the intervener's costs.
Ill — Submissions and arguments of the parties
In substance the applicant pleads three grounds for annulment:
1) The invalidity of Article 27 of Annex VIII to the Staff Regulations.
2) Infringement of Article 79 of the Staff Regulations and of Articles 17 and 27 of Annex VIII thereto, infringement of the Convention concluded on 6 April 1962 between the Kingdom of Belgium and the Italian Republic on the recognition and enforcement of judgments and other enforceable instruments in civil and commercial matters, in particular Article 1 thereof; infringement of the Convention concluded on 30 June 1958 between the Federal Republic of Germany and the Kingdom of Belgium on the mutual recognition and enforcement of judgments, arbitration awards and authentic instruments in civil and commercial matters, in particular Article 2 thereof; infringement of Article 18 of the “Disposizioni sulla Legge in Generale” [Provisions on the Law in General] which form an introduction to the Italian Civil Code; finally, infringement of the rules and principles of private international law in particular those whereby, in order to determine whether two persons are married or divorced, reference must be made to their common national law.
3) Infringement of Article 79 of the Staff Regulations and of Article 27 of Annex VIII thereto, infringement of certain principles of law, in particular the rules concerning the authority of res judicata and the probative status of documents and misuse of powers.
1. The first ground
(a) Application
The applicant relies on this submission under Article 184 of the Treaty, claiming that Article 27 of Annex VIII to the Staff Regulations, in its present version, is illegal since it is in breach of principles of law, in particular the principles of equality, distributive justice and equity and because it constitutes a misuse of powers.
In fact Article 27 of Annex VIII establishes an arbitrary difference in the treatment of divorced wives of officials of the Communities since certain national legal systems no longer provide for divorce on the ground of the misconduct of one of the spouses. Consequently wives who are divorced under such systems are always entitled to a survivor's pension whatever the circumstances of the divorce, unlike women who are divorced under other systems which continue to ascribe blame to one of the parties.
(b) Defence
The defendant submits that in fact the only legal principle which can be relevant is that which prohibits arbitrary discrimination, that is to say discrimination unrelated to any objective criteria, rather than the principle of equality (cf. judgment of 20 October 1977 in Case 5/76 Jänsch v Commission [1977] ECR 1827).
Article 27 of Annex VIII cannot be described as discriminatory: the difference in the treatment of a divorced wife depending on whether in the decree of divorce she was held solely to blame is in fact connected with situations which are not comparable; in the one case the deceased official would not have been obliged to provide maintenance, whereas in the other case he would or might have been subject to such an obligation.
Moreover, Article 27 of Annex VIII to the Staff Regulations is based on objective criteria since the inequality complained of results solely from differences between the national legal systems. That circumstance is unrelated to the intention of the Community legislature.
Finally, in cases where divorce is decreed on the ground of the irretrievable breakdown of the marriage there is nothing to prevent the competent Community officials called upon to implement the Staff Regulations from finding on the basis of the wording and the grounds of the decree that the breakdown of the marriage was the result of the misconduct of one of the spouses without the need for an express statement to that effect in the decree.
(c) Reply
The applicant emphasizes that, depending on the legal system applicable to the divorce, certain wives of officials may be divorced with a finding that they are solely to blame since their national legal systems provide for divorce on the ground of the misconduct of one of the parties, whilst others may never be divorced with such a finding, no matter how great their fault, because their national legal systems provide for divorce only on the ground of the irretrievable breakdown of the marriage.
The defendant's contention that the situations are not comparable is based on the postulate that the survivor's pension is merely a substitute for the obligation to provide maintenance which would have been incumbent on the official had he not died. However, that postulate is unfounded, having regard to the provisions of the Staff Regulations as they are now worded (judgment of 17 May 1972 in Case 27/71 Meinhardt v Commission [1972] ECR 269, at p. 276, paragraph 3).
The applicant in fact considers that on the basis of Article 27 of Annex VIII, in the version at present in force, the divorced wife of an official may qualify for a survivor's pension even if her former husband was not obliged to pay maintenance or she may not qualify for the pension even if he was under such an obligation. For example Article 301 of the Belgian Civil Code does not apply to cases of divorce where both parties are to blame, which means that in that case there is no longer any obligation on the spouses to provide maintenance. Nevertheless in cases where both parties are to blame the divorced wife qualifies for the survivor's pension. On the other hand, according to the applicant, Article 5 (4) of the Italian Law No 898 of 1 December 1970 must be interpreted as meaning that it does not automatically deprive a divorced wife of a maintenance allowance even though she is held solely to blame for the divorce.
The applicant considers that the inequality follows not from the difference between the national legal systems but from the Staff Regulations. In fact Article 27 of Annex VIII lays down a ground for refusing the survivor's pension and that ground is based on a test (whether the official concerned was held solely to blame or not) which inevitably brings about discrimination because of the differences in the national legal systems and because of its necessarily arbitrary application. In fact a provision may be discriminatory through the reference which it makes to another provision where the result of that reference is to introduce a distinction between the two categories which has no objective connexion with the matter in question (judgments of 7 June 1972 in Case 20/71 Sabbatini, née Bertoni and in Case 32/71 Chollet, née Bandititi [1972] ECR 345 and 363 respectively).
Despite the contention of the defendant, in the case of divorce on the ground of the irretrievable breakdown of the marriage the competent authorities of the Communities cannot decide, on the basis of the wording and grounds of the judgment, that one of the spouses is to blame for the breakdown.
In such a case the decree cannot by definition contain a finding that one of the spouses was to blame for the divorce. In advancing that argument the defendant disregards the clear wording of Article 27 of Annex VIII and the status of res judicata of the decree of divorce.
(d) Rejoinder
The defendant contends that the position of a wife who was found solely to blame in a decree of divorce is neither identical nor comparable to that of a wife who is not divorced or a wife who was not found solely to blame in the decree of divorce.
Although the Staff Regulations grant a pension to wives who, having been divorced by a decree which did not ascribe blame or which blamed both parties, do not perhaps in all cases deserve that pension, there is no reason to extend entitlement to it to wives who were held solely to blame for the divorce and certainly do not deserve it.
When the Commission submitted to the Council a proposed amendment to the Staff Regulations it suggested as a new condition for the grant of the survivor's pension that a wife who was divorced without being found solely to blame should have to establish that prior to the death of her former husband she was entitled to claim from him maintenance for herself fixed by a court or by an agreement concluded between the former spouses. The purpose of that proposal was not to provide a pension for wives in the situation of the applicant but to withdraw it from wives who are in a different situation which sometimes does not justify the pension.
The Meinhardt judgment (in Case 24/71, cited above) must be placed in its context: in that case there was no court order requiring the husband in question to pay maintenance to his former wife. In fact the Court of Justice considered that the voluntary payments made by the husband to his former wife were made in performance of an obligation to pay maintenance arising from the divorce and that the applicant was therefore entitled to a survivor's pension. The link between the survivor's pension and the obligation to provide maintenance following the divorce was thus expressly stated.
The defendant maintains that the inequality does not result from the Staff Regulations but from differences between the national legal systems.
Article 27 of Annex VIII lays down a general test applicable to all wives in the same position. Furthermore, that test is objective because it withholds the survivor's pension from wives who would certainly not have been entitled to maintenance from their husbands.
The defendant challenges the applicant's criticism to the effect that by virtue of the Staff Regulations as they now stand, certain wives qualify for the survivor's pension because the decree of divorce did not make a finding as to the blame which may really have attached to them, whilst in other countries there might have been a finding of blame in the decree. That situation may also occur within the same country if for example the national legal system makes provision both for divorce by mutual consent and divorce on specified grounds, as is the case under French law.
(e) Observations of the intervener
The intervener considers that there is no arbitrary discrimination. Within the Member States of the European Community different systems exist; some provide for divorce on the ground of irretrievable breakdown, whilst others grant divorce on the ground of misconduct. It does not follow from this that one or other of the systems is contrary to the principle of equality before the law as between European citizens since each of them is subject to the same national law before the respective courts. The same is true of the European institutions in so far as the Staff Regulations which they apply refer to decisions of the national courts.
2. The second ground
(a) Application
The applicant submits that in order to determine whether two persons are married or divorced reference must be had to their common national law, in this case Italian law. Under Italian law the applicant is a widow and not a divorced person because the judgment authorizing the divorce delivered by the Tribunal de Première Instance, Brussels, on 13 June 1975 has no effect in Italy unless proceedings for its recognition are instituted.
Furthermore, under the conventions applicable in this sphere the judgment cannot be recognized in either Italy or Germany.
(b) Defence
The defendant submits that the Brussels court enjoyed territorial jurisdiction to entertain the divorce proceedings since both spouses resided in Brussels. Article 4 of the Italian Code of Civil Procedure, like Article 635 of the Belgian Code of Civil Procedure and point 1 of Article 2 (1) of the Convention between Belgium and Italy signed at Rome on 6 April 1962, adopted the maxim actor sequitur forum rei. Furthermore, the applicant herself chose that court and her husband submitted to its jurisdiction in accordance with point 3 of Article 2 (1) of the above-mentioned Convention.
The defendant contends that in Italy public policy does not preclude recognition of the judgment authorizing divorce pronounced by the Brussels court (Article 1 (6) of the above-mentioned Convention) provided that the judgment was pronounced in circumstances which clearly permitted the Belgian court to find that the marriage of the spouses had irretrievably broken down. That is indeed so in this case.
Furthermore, for the purposes of the Staff Regulations of the European Communities the probative force, authority and effects of a decree of divorce must be appraised in terms of Community law and not in accordance with the concepts of one or other of the Member States. The objection relating to public policy in international law is always strictly territorial and can only have effect within the national frontiers.
The defendant considers that it is sufficient for the Court to find that on the basis of the general principles of international law and the rules generally recognized in the legal systems of the Member States:
1) The jurisdiction -of the court which pronounced the decree of divorce was not excluded in favour of any other court;
2) The rights of the defence were respected;
3) The court did not arbitrarily apply rules of law which are at variance with the principles of international law and in particular with the public policy of the Community.
(c) Reply
The applicant does not dispute that the Tribunal de Première Instance, Brussels, enjoyed territorial jurisdiction.
The defendant wrongly contended that the application of the concept of public policy in Italian law is irrelevant and of no importance. The defendant's contention may be sustained if the matter in question is governed by Community law but not when it belongs to a sphere which, like personal status, falls outside the scope of Community law.
The contention of the defendant that public policy constitutes a “nationalist” objection which cannot be taken into consideration in Community law would result in recognition by the Community institutions of a decree of divorce affecting an Irish official and his Irish wife pronounced by a Belgian or German court although Irish law does not recognize divorce.
Since Article 27 of Annex VIII to the Staff Regulations lays down a test concerning a matter of personal status, if there is a conflict of laws with regard to such status the Community authority must settle that conflict in accordance with the rules of private international law. The three national legal systems concerned, Belgian law (lex fori), German law (the law of the State of which the applicant was originally a national) and Italian law (the law of the common nationality of the spouses), uphold the rule of private international law that divorce is governed by the national legal system common to the spouses.
The applicant claims that in Italy there is no decision recognizing the decree of divorce pronounced by the Tribunal de Première Instance, Brussels, and that recognition of that decree is not possible.
(d) Rejoinder
The defendant denies that the general principle of private international law in divorce is that the national law common to the spouses should be applied. There are a number of Member States in which the lex fori is applied. As an example the defendant refers to Article 310 of the French Civil Code, in accordance with which divorce is governed by French law when the spouses both reside in French territory.
(e) Observations of the intervener
The intervener supports the defendant's submissions.
3. The third ground
The applicant submits that the decree of 13 June 1975, whereby the Tribunal de Première Instance, Brussels, authorized the divorce, did not contain a finding that the applicant was solely to blame. That judgment reserved the question whether the husband might also be held to blame for the divorce.
The defendant replies that the applicant failed to pursue the proceedings. On the death of the husband only the decree authorizing the divorce with a finding that the applicant was to blame had been pronounced.
The applicant replies that since the judgment of 13 June 1975 left open the possibility of a further divorce decree blaming the husband, with the result that the ultimate finding would be that both parties were to blame, that judgment cannot constitute a decree with a finding that one of the parties was solely to blame; in fact the effect of such a decree would be that a further judgment ascribing blame to both parties would be legally impossible without disregarding the status of res judicata of the original decree.
The intervener supports the observations submitted by the defendant.
IV — Oral procedure
The parties presented oral argument at the sitting on 12 June 1980.
The Advocate General delivered his opinion at the sitting on 10 July 1980.
V — Measure of inquiry
By a letter of 6 October 1980 the Court, pursuant to Article 60 of the Rules of Procedure, requested the parties to the action and the intervener to set out their views as to whether the former or the present wording of Article 27 of Annex VIII to the Staff Regulations applies.
The applicant replied that in this case the decision on her right to a survivor's pension should have been taken on the basis of the amended version of the provision since it came into force before that decision was taken.
The defendant stated that since Regulation No 912/78 did not contain any specific transitional provision the Administration considered that it was obliged to give immediate effect to that Regulation and consequently to apply the amended provision in future to situations which, when they came into being, were governed by the provision as originally worded.
The intervener considered that the original version of Article 27 should be applied because it would be contrary to the general principles of law to give retroactive effect to an amending provision.
Decision
1. By an application lodged at the Court Registry on 9 March 1979 Mrs P., divorced wife of the late Manfredo C, an official of the Commission, brought an action for the annulment of the Commission's decision of 25 May 1978 refusing to grant her a survivor's pension and for an order that the Commission award her a survivor's pension and pay her the monthly instalments thereof which are due, with interest thereon at 8%.
2. The applicant had German nationality when she married Mr C, an Italian national, in Belgium. She acquired Italian nationality through her marriage, but she retained her German nationality. On 27 August 1975 the marriage was dissolved by registration, on the Registres de l'État Civil [Register of Births, Deaths and Marriages] of the Belgian district where the marriage was celebrated, of a judgment of the Tribunal de Première Instance [Court of First Instance], Brussels, authorizing a divorce.
3. That judgment was delivered on 13 June 1975 on the petition of the applicant and on the cross-petition of her husband. According to the operative part of that judgment the court authorized the divorce on the cross-petition, finding that the defendant in the cross-action was to blame; as regards the original petition the applicant was permitted, before any ruling was given as to the substance, to prove by witnesses or any other evidence a number of allegations. She took no further action and her husband died on 31 October 1977.
4. By a letter of 25 May 1978 the Commission notified the applicant that, having regard to Article 27 of Annex VIII to the Staff Regulations, she was not entitled to the survivor's pension. The applicant's complaint was not answered and an application challenging that decision was lodged.
5. The present version of the said Article 27 was introduced by Council Regulation (Euratom, ECSC, EEC) No 912/78 of 2 May 1978 amending the Staff Regulations of Officials of the European Communities and the Conditions of Employment of Other Servants of the European Communities (Official Journal 1978, L 119, p. 1) which entered into force on 4 May 1978. That provision states that the divorced wife of an official shall be entitled on his death to a survivor's pension, “provided that the court which pronounced the decree of divorce did not find that the divorced wife in question was solely to blame”. The previous version of that article made provision for the grant of the survivor's pension “provided that the court which pronounced the decree of divorce found that the official was solely to blame”.
6. The three grounds relied on by the applicant are based on the invalidity of Article 27 of Annex VIII, on the invalidity of the decree of divorce, which the applicant claims is not recognized under Italian law, the national law common to the spouses, and on the erroneous interpretation of the decree, which, it is argued, did not authorize the divorce with a finding that the applicant was “solely” to blame.
7. In appraising whether these submissions are well founded it must first of all be determined whether the version of the said Article 27 which was introduced by Regulation No 912/78 is applicable to this case.
8. Article 24 of Annex VIII provides that the right to receive payment of a survivor's pension has effect from the first day of the calendar month following that in which the official died, but that if payment of the three months' salary provided for in Article 70 of the Staff Regulations is made on the death of the official the right to the pension takes effect on the first day of the fourth month following that in which the death occurred. In the present case those two dates are 1 November 1977 and 1 February 1978 and are thus prior to the entry into force of Regulation No 912/78.
9. The arguments of the parties were based exclusively on the amended version of Article 27, although a letter of 25 May 1978 from the Commission to the applicant's lawyer referred to the old version.
10. At the request of the Court the Commission explained why it considered that the amended version of Article 27 should be applied to the applicant's case. Having established that the discussions preceding the adoption of Regulation No 912/78 did not show that the legislature intended to restrict the reform introduced by that Regulation exclusively to situations occurring after its entry into force, the Commission considered it appropriate, in the absence of any transitional provision inserted into the Regulation, to apply the reform immediately to existing situations. For that reason it accepted that the amended version of Article 27 conferred pension rights on surviving divorced wives with immediate effect where the decree of divorce found that the spouses were both to blame or the divorce was by mutual consent, even if the husband died before 1 May 1978. This practice was, moreover, followed by all the institutions of the Community.
11. In this connexion the Commission contends that any other solution would be contrary to the principle that persons covered by the Staff Regulations and in comparable situations must receive equal treatment. That principle does not permit a distinction to be drawn, as regards entitlement to the survivor's pension, between divorced wives in whose decree of divorce it is found that both parties were to blame or who were divorced by mutual consent, depending on whether the former husband died before or after a certain date.
12. According to a generally accepted principle a law amending a legislative provision applies, save as otherwise provided, to the future effects of situations which arose under the previous law. Thus the amendment to Article 27 of Annex VIII, which moreover reflects an alteration in the attitude of the law towards the divorced wife, must, save as otherwise provided, apply from the time of its entry into force to all divorced wives of deceased officials.
13. Although Article 24 of Annex VIII fixes the date for qualifying for a survivor's pension and the date from which the right to receive that pension has effect, it is not intended to lay down rules concerning subsequent alterations to pension rights. The Commission was thus correct in concluding that the amendment made to Article 27 by Regulation No 912/78 applies, in the absence of any transitional provision, with immediate effect to all the situations which it covers.
14. It is convenient to deal first with the third ground, in which it is claimed that the decree of divorce pronounced by the Tribunal de Première Instance, Brussels, on 13 June 1975 did not find that the applicant was “solely” to blame and that she is accordingly entitled to the survivor's pension under Article 27 of Annex VIII, as amended by Regulation No 912/78.
15. In support of that contention the applicant claims that although that judgment authorizing the divorce found that the applicant was to blame, it did not find that she was solely to blame. In permitting the applicant to prove facts capable of establishing that her husband was to blame the judgment reserved the question whether the divorce should be granted on the ground that the applicant was solely to blame or whether both parties were to blame.
16. The Commission replies that the judgment of 13 June 1975 has become final in so far as it authorized the divorce and found that the applicant was to blame. Since the applicant failed to exercise, before the death of her former husband, the right granted by the court to adduce evidence of the facts alleged by her, there remains only “the decree authorizing the divorce with a finding that the wife alone was to blame”.
17. This argument of the Commission cannot be upheld. The proviso denying the divorced wife a survivor's pension, as it is worded in Article 27 of Annex VIII, applies only where the decree of divorce found that the wife was solely to blame. In this case the Tribunal de Première Instance decided what blame was to be attached to the wife, whilst reserving judgment as to the blame to be attached the husband. In those circumstances the decree may not be considered as having found that the wife was “solely” to blame.
18. It follows from the foregoing that the third ground relied on in the application is well-founded and that the contested decision must be annulled in so far as it refused to grant the survivor's pension from 4 May 1978, the date when Regulation No 912/78 entered into force.
19. In those circumstances it is no longer necessary to consider the first and second grounds. In fact since the applicant relied in her application on the wording of Article 27 of Annex VIII as amended by Regulation No 912/78 and since she declared in response to the Court's request for clarification that in her view that version of the provision is the only one relevant to this case, her application must be considered as directed exclusively towards obtaining the monthly instalments of the survivor's pension which fell due after the date of the entry into force of the above-mentioned Regulation.
20. Consequently the Commission must be ordered to pay the applicant the monthly instalments of the survivor's pension which fell due after 4 May 1978 with interest thereon from the date of the commencement of the proceedings. The appropriate rate of interest is 8%.
Costs
21. Under Article 69 (2) of the Rules of Procedure the unsuccessful party must be ordered to pay the costs. Since the defendant has failed in its submissions it must be ordered to bear the costs with the exception of the costs entailed by the intervention. The intervener must be ordered to pay her own costs.
On those grounds, THE COURT (First Chamber) hereby:
1 Annuls the decision of the Commission of 25 May 1978 refusing to grant the applicant a survivor's pension in so far as it refused the grant of that pension with effect from 4 May 1978;
2 Orders the Commission to grant the applicant the survivor's pension referred to in Article 27 of Annex VIII to the Staff Regulations with effect from 4 May 1978 and to pay her the monthly instalments of that pension which are due, with interest at the rate of 8% with effect from 9 March 1979;
3 Orders the defendant to pay the costs with the exception of those entailed by the intervention;
4 Orders the intervener to bear her own costs.