61984C0144
OPINION OF MR ADVOCATE GENERAL DARMON
delivered on 14 February 1985 (
*1
)
Mr President,
Members of the Court,
1.
Mrs Claudia De Angelis, née Bautz is asking the Court to review the Commission's decision of 9 August 1983 refusing to fix Ischia (Italy) as her place of origin within the meaning of Article 7 (3) of Annex VII to the Staff Regulations, as implemented by Article 2 (2) of the Decision of 15 July 1980.
Article 7 (3) of Annex VII to the Staff Regulations provides that:
‘An official's place of origin shall be determined when he takes up his appointment, account being taken of where he was recruited or the centre of his interests.’
Article 2 (2) of the Decision of 15 July 1980, which was adopted in order to give effect to that provision, provides that:
‘place of recruitment’ shall mean the place where the official was usually resident at the time of recruitment...
—
‘centre of interests’ shall mean the place where an official retains:
(a)
his main family ties
...;
(b)
heritable interests in the form of immovable property already built;
(c)
essential citizen's interests, both active and passive.
‘If all three requirements are not fulfilled by the same place, the centre of an official's interests shall be taken as the place where at least two of the above three requirements are met... ’.
2.
Miss Claudia Bautz married Mr Francesco De Angelis in 1969. At the time the couple lived in Ischia. On 1 April 1970 Mr de Angelis was appointed as an official at the Council of the European Communities and was posted to Brussels which became the couple's new place of residence. On 1 December 1982 Mrs de Angelis was appointed as an official at the Commission of the European Communities and was posted to Brussels.
On 11 April 1983, Mrs De Angelis invoked the heritable interests and essential citizen's interests which she claimed bound her to Ischia in support of her request that the Commission should fix Ischia as her place of origin.
The Commission, which does not deny that the applicant has ‘citizen's interests’ in Ischia, refused her request on the ground that she was unable to furnish any proof of ‘heritable interests in the form of immovable property already built’.
In order to give judgment in this case, therefore, the Court will have to interpret the second indent, under (b), of the aforesaid Decision of 15 July 1980.
3.
In support of her application Mrs De Angelis claims that:
(i)
before the marriage her husband had bought land in Ischia on which he had constructed a building;
(ii)
in order to spend their holidays there with their three children the couple enlarged and equipped the building partly with their common savings and partly with a loan which they contracted jointly;
(iii)
she therefore has substantial rights in that building, which can be expressed in money terms;
(iv)
she has thus furnished proof of her heritable interests in Ischia which are in the form of immovable property already built.
The Commission contends that the application should be dismissed on the following grounds:
(i)
in order to satisfy the requirement in (b) an official must be the holder of a right in rem, a right of ownership or a life interest in the immovable property in question, and not of a mere right in personam;
(ii)
the objective pursued by the relevant provision presupposes the existence of ‘permanent’ heritable interests in immovable property which are vested in the official, whilst a lien which an official could create at his convenience merely by taking property on lease in the country of his choice in order to compel the Commission to treat that country as his place of origin is not sufficient;
(iii)
to ensure legal certainty the criterion which serves to determine the place of origin must not be subjective but objective.
In reply, the applicant maintains that:
(i)
the Commission's excessively restrictive interpretation entails an accretion to the text of the provision in question whose purpose, as is clear from the wording, is to enable an official to rely, in support of his request, on any interest in property which constitutes proof of his links with the ‘place of origin’;
(ii)
the provision in question must be interpreted by considering in every individual case whether or not the official intended to acquire permanent interests in the ‘place’ concerned.
4.
Recognition of a place of origin distinct from the place of recruitment entitles an official to the reimbursement of his travel expenses, calculated on a flat-rate basis, from the place of employment to the place of origin, in this case twice in each calendar year regard being had to the distance involved (
1
) and also, as regards annual leave spent at the place of origin, to travelling time which in this case amounts to five days. (
2
) Understandably, therefore, verification is necessary in order to ensure that the place of origin is correctly determined, hence criteria which are as accurate as possible are used for this purpose.
It must be stated that the provision in question, which establishes the criterion of ‘heritable interests in the form of immovable property already built’, does not specify that such interests must consist of a right in rem in the property in question, vested in the official.
It follows, therefore, that an official who is able to furnish proof of heritable interests in the form of a right in personam cannot be deprived a priori of the benefit of the provisions in question. Such interests, even in that form, may be evidence of a permanent link which is to be assessed in every individual case. In that regard, the Commission's argument to the effect that this would lead to an ‘unverifiable and therefore unacceptable’ situation in which an official could, merely by taking property on a lease, compel the Commission to treat the country of his choice as his place of origin cannot be upheld. In addition to the rule fraus omnia corrumpit, which makes it possible to thwart manœuvres of that kind, it should be borne in mind that a link based on property interests alone is not sufficient to determine the place of origin and that in order to do so it is necessary to satisfy at least the further requirement pertaining to family ties or citizen's interests.
Hence, in my view, the Commission's decision refusing the applicant's request is not well founded.
5.
In conclusion, therefore, I consider that the Court should:
—
Annul the express decision of 9 August 1983 refusing the request submitted by the applicant on 11 April 1983;
—
Order the Commission to pay the whole of the costs.
(
*1
)	Translated from the French.
(
1
)	Articless 7 and 8 of Annex VII to the Staff Regulation.
(
2
)	Anicle 7 (1) and (3) of Annex V to the Staff Regulations.