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Case:
CE, Ass., 28 juin 2002 Case V
Date:
28 June 2002
Translated by:
J T Brown
Copyright:
Professor B. S. Markesinis

In view of (..) the petition, filed on 26 April 2000 (……) by Monsieur Jacques V… of (…); M. V… petitions for the annulment for ultra vires (“excès de pouvoir”) of the “diplomatic telegram” 16781 dated 3 March 2000, issued by the Ministry of Foreign Affairs to the extent that (i) it describes agreements for civil union as “contracts which are patrimonial in nature” and (ii) it excludes for this reason persons who are bound by such a contract to agents of the Ministry

In view of the writ, filed on 21 September 2000, (…) by which M. V… claims the annulment of the decision of 27 July 2000 by which the Foreign Minister reject his application for the benefit of the supplementary family allowance in respect of his partner following the agreement for civil union into which he had entered on 25 April 2000;

(….)

Concerning petition no 220361:

Given that M. V… claims the annulment for ultra vires of the circular mentioned above issued by the Ministry of Foreign Affairs to the extent that (i) it describes agreements for civil union as “contracts which are patrimonial in nature” and (ii) it excludes for this reason persons bound under such an agreement to agents of the ministry in posts abroad from the benefit of travelling expenses, the baggage allowance, and the family allowance added to salary as provided respectively by the decrees of 16 March 1986, 18 December 1992 and 28 March 1967;

Given that where an interpretation of regulations which an administrative authority has the duty to apply is given by that authority through binding and generally applicable pronouncements, such interpretation may be referred to a court for ultra vires only if, and to the extent that, such interpretation misconceives the sense and effect of the legislative or regulatory provisions it is attempting to explain, or offends against requirements which are inherent to the hierarchy of legal norms;

Concerning the nature ascribed to agreements for civil union;

Given that, (i) to the extent that it describes agreements for civil union as “contracts which are patrimonial in nature” and states that the law of 15 November 1999 “sets out above all a series of rights and obligations which are patrimonial in nature”, the circular in question limits itself to making a commentary which is not binding in nature (“dénué de tout caractère impératif”); and (ii) consequently, cannot be brought before the court for ultra vires;

Concerning the right to travelling expenses, baggage allowance and supplementary family allowance:
Given that, (i) pursuant to Article 515-1 of the Civil Code, introduced by Law no. 99-944 of 15 November 1999, “an agreement for civil union is a contract entered into by two adult persons, of different sexes or the same, in order to organise their life in common”; (ii) pursuant to Article 515-4 of that Code, “partners bound by an agreement for civil union furnish each other with mutual and material aid…. The partners are jointly liable towards third parties for debts contracted by one of them to meet the needs of everyday life and for expenses relating to their common place of abode”; and (iii) Article 515-5 creates a system of joint ownership of property acquired after the date on which the agreement was entered into;

Given that, in the first place, the Law of 15 November 1999, which created a new type of legal union between two adults which is distinct from the institution of marriage , cannot be interpreted as generally assimilating partners bound by an agreement for civil union to married persons;

Given that, in the second place, (i) the legal relations uniting persons who have entered into an agreement for civil union have been organised by Parliament differently, in particular from the point of view of their intensity and stability, from those which exist between two spouses; and (ii) these two types of persons being thus placed in different legal situations, the principle of equality does not require that they be treated , in every case in an identical way;

Given that (i) it results from the foregoing that partners bound by an agreement for civil union cannot, merely by reason of the passing of the Law of 15 November 1999, be considered to be “spouses” (“conjoints”) for the purposes of regulatory texts which reserve rights or advantages for the benefit of those who have such status; and (ii) the body of these regulatory texts has not become illegal for being contrary to the principle of equality, from the moment of the entry into force of that law;

Given, however and in the third place, that, when, without however by itself voiding regulatory provisions which are incompatible with it, a law creates a new legal situation, it is the duty of the regulatory authority, in order to ensure that the law is fully applied, to draw all the consequences of that new situation by making, within a reasonable period, the amendments to applicable regulations which become necessary by reason of the requirements inherent to the hierarchy of norms, and, in particular, to general principles of law, such as the principle of equality;

Given that, in the case of the agreement for civil union, this obligation requires the regulatory authority to update the body of texts which confer rights, create advantages, or, more generally, fix a rule on the basis of the status of bachelor, concubine or spouse, in such a way, in the light of the object of each such text, as to bring the situation of a person who has signed an agreement for civil union nearer to that applicable to one of the statuses enumerated above;

Given that the principle of equality to which these texts must conform does not prevent the regulatory authority from dealing differently with different situations or from departing from equality for reasons of general interest, provided that, in both cases, the resulting difference of treatment is related to the object of the norm which created it;

Given that the objective pursued by the decrees of 16 March 1986, 18 December 1992 and 28 March 1967, which provide respectively for the payment of travelling expenses, baggage allowance and the supplementary family allowance for the spouse of a civil servant posted abroad, is to take account of the extra costs imposed on that spouse by the transfer of the residence of the couple to the country of posting where their life in common will continue;

Given that although, in the light of the differences described above between the legal situation of spouses and that of partners under an agreement for civil union, the principle of equality does not oblige the regulatory authority to extend such advantages in exactly the same way to the latter, and allows such authority, in particular, to subject such extension to the existence of a minimum period for the agreement, such authority may not, without creating a difference of treatment which is manifestly disproportionate when compared to the differences separating these two forms of organisation of life in common, exclude completely partners bound by an agreement for civil union from the benefit of the advantages mentioned in the circular;

Given, in the light of all this, that (i) when it interpreted existing law as not requiring an immediate amendment of the decrees of 1986,01992 and 1967, the circular under attack did not breach the hierarchy of norms, and, in particular, the requirements inherent in the principle of equality since, taking into account the discretion with which it was invested in this case, the reasonable period available to the government to draw the consequences of the Law of 15 November 1999 had not expired on 3 March 2000, the date on which the circular under attack was issued; and (ii) on the other hand, if the failure to act of the regulatory authority went beyond such reasonable period, such failure would be illegal;

Given that it follows from the above that the contested provisions of the circular, stating that the decrees of 1986, 1992 and 1967, which for the payment of the travel expenses, the baggage allowance and the supplementary family allowance, refer to “spouse” or to the “married agent”, do not apply, as things stand, to persons who have signed an agreement for civil union, do not constitute an act which can be the subject of an action for ultra vires;

Concerning petition no. 228325:

Given that, for the reasons given above, the petitioner has no grounds to maintain that the provisions of the decree of 28 March 1967, which refer to a “spouse” or to the “married agent” for the purposes of the allocation of the supplementary family allowance have become illegal because they are contrary to the principle of equality by the mere fact of the entry into force of the Law of 15 November 1999;

Given that (i) although, upon the expiry of the reasonable period available to the government to take account of the consequences of the Law of 15 November 1999, the Foreign Minister could not legally base himself upon the circumstance that Article 7 of the decree of 28 March 1967 reserved to married agents the benefit of the supplementary family allowance in order to refuse to grant that advantage to an agent in relation to a person bound to him by an agreement for civil union, such period had not expired on 27 July 2000, the date upon which M. V… was handed the decision which he contests; and (ii) the ground based upon the idea that such refusal had no basis in law must consequently be rejected;

Given, finally, that the decision under attack limits itself to stating that, in the present state of the regulations, the supplemental family allowance cannot be granted to an agent in relation to a person bound to him by the signature of an agreement for civil union and can not therefore be analysed as a refusal to take the regulatory measures to apply the law of 15 November 1999;

Given that it follows from the above that M. V… has no grounds to require the annulment of the decision of 27 July 2000 which refused him the benefit of the supplementary family allowance;

DECIDES:

Article 1: The petitions of M. V… are rejected;

(…)

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