Judgment of the Court (First Chamber) 17 February 1976 Jean-Louis Delvaux v Commission of the European Communities
In Case 42/75
THE COURT (First Chamber) composed of: A. M. Donner, acting President of Chamber, J. Mertens de Wilmars and A. O'Keeffe, Judges, Advocate-General: J.-P. Warner Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts
The facts and the arguments put forward by the parties during the written procedure may be summarized as follows:
I — Facts and procedure
The applicant, who is a Belgian national, entered the service of the Commission on 16 July 1974 as a temporary servant; he was employed as an assistant translator in the Danish translation section of the Commission. On the basis of the results of a competition he was made a probationer in Grade L/A 7, as from 1 January 1975, with the task of translating into Danish. He claimed entitlement to an expatriation allowance under Article 4 (1) (b) of Annex VII to the Staff Regulations, on the ground that since July 1964 he had habitually resided outside Belgium. This claim was rejected on 9 August 1974.
In a letter registered at the Secretariat of the Commission on 2 October 1974 he submitted a complaint under Article 90 (2) of the Staff Regulations in which he requested ‘that the Commission interpret liberally the text of the Article in question and grant me an expatriation allowance’. In a letter dated 12 February 1975 he emphasized that ‘since July 1964’ he had regarded ‘Denmark as my main centre of interest, which should be plainly apparent from the fact that I stayed many times in Denmark before settling there permanently in May 1966’.
The applicant's personal file shows that he resided:
from 16 to 19 July 1964 (4 days) in Belgium (the applicant disputes this, and claims that these days had been spent in Germany en route for Denmark);
From 20 July to 24 August 1964 (1 month, 5 days) in Denmark;
From 25 August to 12 December 1964 (3 months, 18 days) in Belgium;
From 13 December 1964 to 23 January 1965 (1 month, 11 days) in Denmark;
From 24 January to 9 April 1965 (2 months, 16 days) in Belgium;
From 10 April to 1 May 1965 (21 days) in Denmark;
Between 1 May 1965 and 25 April 1966, first, in Germany and then, as from 8 September 1965, in France at Rocquencourt with SHAPE where he did his military service in the Belgian army (11 months, 26 days); during this period he had short periods of leave in Denmark where he married a Danish national on 7 April 1966;
From 26 April to 7 May 1966 (11 days) in Belgium;
From 8 May 1966 to 13 July 1974 (8 years, 2 months, 5 days) in Denmark where he studied and was variously employed; he was divorced on 17 April 1972;
From 13 to 16 July 1974 (3 days) in Belgium.
The Commission made no reply to the complaint received officially on 2 October 1974, which amounts to an implied decision rejecting the complaint.
On 30 April 1975 the applicant brought the present action.
II — Conclusions of the parties
The applicant claims that the Court should:
a) declare the opposite party's implied rejection of his complaint of 2 October 1974 to be null and void;
b) declare and adjudge that the applicant is entitled to an expatriation allowance as from 16 July 1974;
c) order the opposite party to pay to the applicant the increments to his salary resulting from the grant of the said allowance, that is to say, (subject to the right to amend the figure in the course of the proceedings) Bfr 100000;
d) order the opposite party to pay the costs;
Alternatively
order the following facts to be proved by witnesses:
1) that when the applicant left Brussels on 16 July 1964 he was accompanied by his fiancée, Miss Margrethe Pade, with whom he had to go to Denmark in order to take the necessary measures to settle there permanently;
2) that his return to Belgium in August 1964 and his subsequent visits were only intended to have his call-up advanced and to enable him to return to Denmark permanently at the earliest possible date.
The Commission contends that the Court should:
a) dismiss the application as unfounded;
b) order the applicant to pay the costs;
III— Submissions and arguments of the parties
The applicant claims that the administration disregarded Article 4 (1) (b) of Annex VII to the Staff Regulations, in that it failed to take account of the fact that he has habitually resided outside Belgian territory either since July 1964, if the relevant date is that of his entry into the service of the Commission on 16 July 1974, or (following the opinion of the Advocate-General in Case 33/72, [1973] ECR 487) since January 1965, if the relevant date is to be that of his appointment as a probationer on 1 January 1975.
In fact, he decided ‘as a result of various contacts and his interest in Denmark to go to that country in July. 1964, as he wished to live and pursue his higher education there’. If there were to be any dispute over the scope of the phrase ‘habitually reside’ it must be noted that the applicant still maintains all his links with Denmark where he has his home (he rents a furnished apartment in Brussels) and that he has applied for Danish nationality.
The defendant maintains, first of all, that the case to which the applicant refers concerned the position of an individual who entered the service of the Commission for the first time as an official and not, as in this instance, as a temporary servant who was later appointed an official.
In fact, the entry into service in question is nothing more than the taking up of his duties by the person concerned in a capacity entitling him to an expatriation allowance: that is, in this case, the date on which he took up his duties as a temporary servant. The relevant date is therefore that of 16 July 1974 and it is immaterial that the person concerned was subsequently appointed an official. If the opposite party decided to adopt 1 January 1975 as the relevant date he would destroy the bases of his own conclusions for the annulment of the rejection of his complaint and of his claims in respect of the earlier period. Furthermore, the Court would be led to declare the application inadmissible on the ground that it follows a premature complaint made in the absence of any measure affecting him adversely.
As regards the substance of the action, the defendant considers that although, during the ten years preceding the applicant's entry into the service of the Commission, he had his principle place of residence outside Belgium for 8 years, 5 months and 12 days in such circumstances as to satisfy the conditions necessary for the application of the article in question, there can still be no question of any ‘habitual’ residence. By their very nature the applicant's occasional short visits to Denmark between July 1964 and May 1966 cannot constitute the beginning of habitual residence outside Belgium. Until he settled permanently outside Belgium in May 1966 he had lived in that country for 6 months, 20 days as a civilian (it is during that time that he was employed, for the first time, in Antwerp) and in Germany and France for 11 months, 26 days as a member of the armed forces in circumstances which may be regarded as equivalent to residing in Belgium. An actual or deemed period of residence in Belgium, of more than 18 months out of a total period of more than 10 years cannot thus be reduced to the level of an exceptional, adventitious or purely episodic stay. It would be to distort the meaning of the adverb ‘habitually’ to accept that the person concerned has ‘habitually’ lived outside Belgium since July 1964.
The applicant bases his claim to the expatriation allowance on a provision which constitutes an exception to the principle that the allowance is not due to nationals of the country which is the place of employment.
This governs the method of interpretation of the article in question: exceptio est strictissimae interpretationis.
The applicant states that his application only concerns the period during which he was a temporary servant. He is making forthwith, as a purely conservatory measure, another application in respect of the period after 1 January 1975. As regards the facts, the applicant must point out that the reasons why he went to Denmark in July 1964 were not solely cultural but were ‘fundamental and such as to influence the whole course of his life and to lead him to take all the necessary measures to settle there permanently’. In this respect the applicant submits a declaration by his former wife that his return to Belgium on 24 August 1964 enabled him to ‘take steps in order either to obtain his exemption from military service or to hasten his call-up (which did occur) so as to bring forward the time when his objectives’ (marriage and pursuit of studies in Denmark) would be realized.
The term ‘to reside’ has no precise legal meaning. As the residence must be habitual it has to be accepted that even if it does not have to be of long duration it must not be purely episodic in character, such as a business or holiday trip. In order to determine whether one or several stays may be taken into account for the purposes of the grant of an expatriation allowance it is necessary to verify whether they are purely episodic or rather of significance (even if not of long duration). If they satisfy a single, consistent objective and are followed by permanent establishment in that country, several stays in the same country amount to ‘integration’ (‘Einbürgerung’). The result of the applicant's assimilation into Danish society (he is still involved in naturalization proceedings although divorced from the Danish woman whom he had married) has been that he is treated in the translation department as Danish and translates into the Danish language from various foreign languages.
In short, it is clear that the applicant's absence from Belgian territory began on 16 July 1964. His stays in Belgium from that date were episodic in nature (visits to his parents, military service; he was employed in Antwerp on trial, without a contract). As regards his military service, the provision in question refers to officials and servants who carry out their duties outside the European territory of the State in question, or who carry out diplomatic duties or the duties of a person undertaking service overseas in lieu of military service (‘coopérant’). It does not, on the other hand, refer to a member of the armed forces who is performing a service imposed on him by law.
Furthermore, the applicant enlisted before he was called up, in order to settle more quickly in Denmark, and opted for military service abroad. As the performance of this service was not voluntary the period in question must be regarded as residence abroad.
If reference is made to a statistical yardstick, then, according to the definition in ‘Le Petit Robert’ the applicant has ‘almost always, usually, very often’ resided abroad and, in the light of the very special features of this case, he is entitled to the expatriation allowance.
In its rejoinder the defendant states that it would not be able to refuse the applicant in Case 107/75 which was brought in respect of the period after 1 January 1975 any allowance which the Court might have awarded him in the present case.
This being so, the problem raised by the applicant of when the period of habitual residence began is a false one: the fact that he has since been appointed an official is of no importance as his appointment does not affect the extent of the earlier rights of a temporary servant.
However important it may be for the applicant on the psychological level, the element of intention which is shown in the declaration by his former wife is irrelevant for the purposes of a correct application of the provisions of the Staff Regulations. Article 4 (1) (b) requires that attention be concentrated on the sole material factor, namely that of the residence itself.
Taken to its logical extreme, the scheme proposed by the applicant would, for example, lead to the expatriation allowance's being awarded to an official of Belgian nationality, assigned to Brussels, who did not satisfy the conditions of habitual residence outside Belgium, but who convincingly demonstrated that his actual stay in Belgium had been a reluctant one at a time when his emotional interests were centred outside Belgium and this was making life in that country burdensome to him.
The purpose of the provision in question is in fact to define a presumption of expatriation: a person is assumed to be an expatriate in his own country when he comes to live there having remained away habitually for the 10 years preceding his return. As regards the time spent in Belgium or on Belgian military service, this cannot be altered on the pretext that the applicant then intended to settle subsequently in Denmark.
The essential point of the argument is whether, in spite of the 18 months actually spent in Belgium, the applicant may be regarded as having habitually resided outside Belgium for 10 years. The 18 months in question cannot, however, be regarded as episodic or adventitious. As regards the concept of gradual ‘integration’ into Danish society, did he feel correspondingly out of place in his own country on his return to Belgium?
The conditions which give rise to the presumption are not satisfied in this instance. The allowance in question is not intended to compensate for the applicant's feeling out of place on leaving Denmark. The ‘integration’ into Danish society is thus immaterial to the present argument, since ‘integration’ into a foreign country does not necessarily go together with a simultaneous feeling of being out of place in the country of origin.
The fact that the applicant occupies a post involving translation into Danish is not relevant to this argument for the same reason as that set out above.
The distinction drawn by the applicant between the performance of the duties referred to by the provision in question is not justified either by reference to the authors of the Staff Regulations, who did not draw such a distinction, or on grounds of fairness. As regards the latter point, must a distinction be made between the position of a young diplomat sent (often against his will) to a distant embassy and that of a young soldier who performs the military service required by law outside his country but on its behalf? Moreover, the disadvantages suffered by the applicant as a result of having to perform his military service abroad have been compensated for by the fact that, for this reason, his period of service was reduced (12 months instead of 15). Furthermore, although it is true that he was required by law to do military service, the applicant chose to carry out his service abroad by enlisting before he was called up.
For this reason, no distinction can be introduced into the provision in question, since it is clear that, as much if not more than employment in the civil sector, military service involves the performance of duties under difficult conditions in the name of and on behalf of the State or an international organization. Moreover, as compared with the phrase ‘to have one's principle place of residence’, the phrase ‘to reside habitually’ implies longer duration or greater continuity, that is, quasi-permanent or constant residence with only rare absences.
The applicant, represented by Marcel Slusny, and the Commission, represented by Joseph Griesmar, submitted their oral observations at the hearing on 15 January 1975.
The Advocate-General delivered his opinion at the hearing on 3 February 1976.
Law
1. The applicant, who is a Belgian national, is seeking the annulment of the implied decision rejecting his complaint, which was registered on 2 October 1974, and in which he requested payment of the expatriation allowance provided for by the Staff Regulations of Officials.
2. He also requests that the Commission be ordered to pay him the expatriation allowance as from 16 July 1974, the date on which he entered the service of the defendant as a temporary servant in the Danish translation section, until 1 January 1965, when he was made a probationer.
3. He maintains that, as he has habitually resided outside Belgian territory since July 1964, he satisfies the conditions laid down in Article 4 (b) of Annex VII to the Staff Regulations of Officials, and, as regards his particular case, in Article 21 of the Conditions of Employment of other servants of the European Communities.
4. The parties are agreed on the fact that from 8 May 1966 to 16 July 1974 the applicant was actually resident in Denmark.
5. On the other hand, they do not agree in respect of the period from 16 July 1964 to 8 May 1966.
6. As regards, first, the period from 16 July 1964 to 1 May 1965, it appears from his file that the applicant visited Denmark several times in order to consider whether it was possible to ‘settle there permanently’.
7. However, he spent more than six months, that is, approximately two-thirds of this period, in Belgium, of which part was spent in Antwerp where he was employed.
8. This period cannot be deemed to be residence outside Belgium solely on the ground that the person concerned had the intention of settling subsequently in Denmark, particularly as at that time he did not even claim to have a place of residence in that country.
9. Secondly, by performing his military service in the Belgian armed forces, first in Germany from 1 May to 8 September 1965 and then in France with SHAPE from 8 September 1965 to 25 April 1966, the applicant was in a position comparable to that of a conscript serving in the national territory and he was performing duties similar to those which are declared to be an exception to the abovementioned Article 4 (b): ‘duties in the service of a State or of an international organization’.
10. Therefore, during his military service the applicant cannot be regarded as having been resident outside Belgium, the country in which he was domiciled before this service.
11. As the applicant has lived outside the State in which he is employed for a period of less than 10 years ending on his entry into the service of the Communities, the application must be dismissed.
Costs
12. Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.
13. The applicant has failed in his submissions.
14. However, under Article 70 of the Rules of Procedure, in proceedings by servants of the Communities, institutions shall bear their own costs.
On those grounds, THE COURT (First Chamber) hereby:
1 Dismisses the application
2 Orders the parties to bear their own costs.
1 Language of the Case: French.