Report for the Hearing delivered in Case 330/85

I — Facts of the Case

1. Article 4 (1) (b) of Annex VII to the Staff Regulations reads as follows:

‘1. An expatriation allowance shall be made, equal to 16% of the total amount of the basic salary plus household allowance and the dependent child allowance paid to the official, (a) ... (b) to officials who are or who have been nationals of the State in whose territory the place where they are employed is situated but who during the 10 years ending at the date of their entering the service habitually resided outside the European territory of that State for reasons other than the performance of duties in the service of a State or of an international organization.’

2. The applicant, a Luxembourg national, has been an official of the Commission (Grade L/A 7) since 16 April 1984. He is employed in Luxembourg. The dispute is concerned, in essence, with the question whether the applicant habitually resided outside the territory of the Grand Duchy of Luxembourg between 15 April 1974 and 15 April 1984.

3. The applicant was born in 1953 in Luxembourg, where he lived until 15 October 1973. From 15 October 1973 until 1 October 1977 he resided in Strasbourg for the purpose of his studies. From 4 October 1977 until 1 May 1984 his name was entered, without interruption (ununterbrochen), in the population register (Melderegister) of Germersheim in Germany.

4. During the period from October 1977 until March 1981 the applicant attended the University of Mainz in order to study languages. In his application for employment, completed on 30 March 1983, Mr Richter stated that he worked between September 1978 and April 1983 as a freelance translator for a company known as ‘BBK Gesellschaft für Moderne Sprachen mbH’ in Germersheim, that he was a trainee with the Terminology Division of the Commission in Luxembourg between September 1981 and February 1982 and that he was also a freelance translator for the Commission in Luxembourg between March 1982 and April 1983. On the same application form the applicant stated that both his permanent address (ständiger Aufenthaltsort) and his address for correspondence (Anschrift für die Korrespondenz) were in Luxembourg. His judicial record issued by the Ministry of Justice [extrait de easier judiciaire], attached to his personal file and dated 31 March 1983, refers to him as ‘living in Luxembourg’.

5. The applicant learnt from his salary statement for September 1984 that the expatriation allowance had not been granted to him. Pursuant to Article 90 (1) of the Staff Regulations, he submitted a request for the allowance which was refused by the administration. He then lodged a complaint under Article 90 (2) of the Staff Regulations which was rejected by a decision dated 7 August 1985 received by him on 9 August 1985. Against that decision the applicant has brought this action, which was registered at the Court of Justice on 8 November 1985.

II — Written procedure and conclusions of the parties

The written procedure followed the normal course. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court (Second Chamber) decided to open the oral procedure without any preparatory inquiry.

The applicant claims that the Court should:

1) Declare the application to be admissible;

2) Declare it to be justified in substance and, accordingly, annul the Commission's decision dated 7 August 1985;

3) Declare that the applicant satisfies the conditions for the grant of the expatriation allowance for officials who are nationals of the State in which they are employed;

4) Reserve the question of default interest;

5) In any event, order the Commission to pay the costs.

The Commission claims that the Court should dismiss the application as unfounded and make an appropriate order as to costs.

III — Submissions and arguments of the parties

1. The applicant adduces as his sole submission the infringement of Article 4(1) (b) of Annex VII to the Staff Regulations. He begins by explaining that the address he gave as his permanent address in the application form meant that he could at any time be contacted in Luxembourg at his mother's home. At the time he made his application for employment, however, he was resident in Germersheim, where he paid rent for his flat until April 1984 and was insured against sickness with a German student insurance fund. The applicant maintains that from the beginning of his studies he seldom returned to Luxembourg. As a result of living in Germany from October 1977 onwards he had become completely integrated into the German environment. He had therefore had to change residence in order to reside at his place of employment. The applicant takes the view that the six months he spent as a trainee in Luxembourg are not such as to interrupt his period of residence in Germany for the purposes of the relevant provisions of the Staff Regulations. Furthermore, during his studies in Strasbourg and his employment at Germersheim, he had not had links with Luxembourg. The residence certificate (Aufenthaltsbescheinigung) from the municipal authorities of Germersheim clearly stated that the applicant's period of residence in that town had been uninterrupted. The certificate was sufficient evidence of the fact that his habitual place of residence had been outside Luxembourg. The Luxembourg judicial record, on the other hand, was valueless as evidence of the applicant's permanent residence.

2. The Commission contends in the first place that the term ‘habitually resided’ in Article 4 (1) (b) refers to a de facto situation, namely the official's physical absence from the territory of the State in which his place of employment lies. The fact that the official resided habitually — albeit partially — in the territory of that State during the period under consideration is enough to disqualify him from receiving the expatriation allowance. Consequently, an absence from the country of employment for the purpose of university studies does not have the automatic effect of interrupting the period of habitual residence. It follows that the applicant's studies at Strasbourg and Mainz did not interrupt his period of residence in Luxembourg. Since the applicant resided in Luxembourg as a trainee between September 1981 and February 1982, he was right, according to the Commission, to give ‘Luxembourg’ as his permanent residence in his application for employment. The judicial record likewise gave ‘Luxembourg’ as the applicant's permanent residence. The residence certificate from the municipal authorities of Germersheim, on the other hand, did not constitute sufficient evidence of the applicant's having actually resided in that town. The certificate was drawn up on the basis of a declaration by the applicant, without any verification of the facts by the municipal authorities. It was revealing that the certificate stated that the applicant had resided in Germersheim until 1 May 1984, whereas he had taken up his duties in Luxembourg on 16 April 1984.

K. Bahlmann

Judge-Rapporteur

1 Language of the Case: French.