Opinion of Mr Advocate General Sir Gordon Slynn delivered on 20 April 1988. - Miguel Vicente Nuñez v Commission of the European Communities. - Officials - Grant of expatriation allowance and installation allowance. - Case 211/87.



European Court reports 1988 Page 02791



Opinion of the Advocate-General

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My Lords,

Mr Nuñez, a Spanish national, became employed by the Commission with effect from 1 October 1986 and he worked in Brussels . He claimed the expatriation allowance, which is provided for in Article 4 of Annex VII to the Staff Regulations, and he also claimed an installation allowance under Article 5 of the same Annex .

The Commission rejected both applications and also rejected his complaint against the initial decision . In these proceedings before the Court he challenges the decisions of the Commission .

Article 4 ( 1 ) of Annex VII provides that the expatriation allowance shall be paid :

"( a ) to officials :

( i ) who are not and have never been nationals of the State in whose territory the place where they are employed is situated, and

( ii ) who during the five years ending six months before they entered the service did not habitually reside or carry on their main occupation within the European territory of that State . For the purposes of this provision, circumstances arising from work done for another State or for an international organization shall not be taken into account ."

Mr Nuñez was born in 1953 and it seems that from about 1961 he went to live in Belgium where he received his secondary education . He stayed there until, in 1973, he took up employment apparently with a private employer in Brussels . That employment lasted until 1976 when he became employed in one capacity or another by the Spanish Government . From September 1980 he was established as a civil servant in the Spanish Embassy in Brussels .

His case, shortly, is that during the five years, which expired six months before he took up employment with the Commission, he was employed by another Member State . He says that accordingly by reason of the provisions of Article 4 his residence and his work during that period have to be left out of account and he can claim the various allowances . In effect he is to be treated as not resident in Brussels during that time .

If one looks at the wording of Article 4 literally there is clearly some force in the arguments which have been put forward . It can be said, as he has said, that the second sentence of the second indent of Article 4 ( 1 ) ( a ) is directing the institutions of the Community to ignore not only the work which is done but also the residence which is prescribed . In other words, if during the period of five years ending six months before his appointment by the Commission, he was employed by another Member State then he succeeds . If it had been intended to ignore the period spent in the service of a Member State whilst resident in another Member State and to look at an earlier period, that could clearly have been specified . In the circumstances what is ignored is not the period of employment but the place of residence during the five years ending six months before his appointment by the Commission .

That literal view, however, has to be seen in the context of a number of decisions of this Court . In Case 246/83 De Angelis v Commission (( 1985 )) ECR 1253, the Court stressed that the object of the expatriation allowance is to compensate officials for the extra expense and inconvenience of taking up employment with the Communities and being thereby obliged to change their residence and move to the country of employment . The words "thereby obliged to change their residence and move" give the key to the purpose and object of the expatriation allowance .

The Court also, in that case, explained that the reason for the exception, to which I have referred, in the second indent was that an official should not be deemed to have established a lasting tie with the country in which he is employed by another Member State or an international organization, since in such capacity he does not develop the kind of connection with the country, which somebody who goes to work there permanently would establish .

That decision of the Court has more recently been followed and adopted in the judgment in Case 105/87 Morabito v European Parliament, which was given on 23 March 1988 .

The language of Article 4 ( 1 ) ( a ) in the second indent is certainly ambiguous, indeed loose . I do not find the French text any clearer in indicating what is intended . It seems to me, however, that having regard to what has been said already by the Court in the two decisions to which I have referred, it is right to construe Article 4 ( 1 ) ( a ) in the sense which is contended for by the Commission . It is obvious that someone who already resides in the country where he eventually becomes employed as a Community official but interrupts his period of residence by a period of employment in the same country by another Member State is in no real sense being expatriated . He does not move to that country for the purpose or change his residence; he does not in the ordinary way incur the extra expense and inconvenience of taking up employment in another State .

I would therefore construe the article in the sense which is contended for by the Commission . One leaves out of account the period during which he was employed by the Spanish Embassy and one then considers whether in the previous period he was actually resident and employed in Belgium .

If that were not so it seems to me there would be much force in the argument of the Commission that inequality would result between officials in what are really comparable situations . If two persons go to live in Brussels at an early age and stay there for virtually the whole of their childhood and adolescence and even their early working lives, and one then by chance works there for a period for his own Member State or some other Member State whereas the other works for a private employer, it would be very strange if they were treated differently . On the arguments of the applicant in this case they would be treated differently . On the arguments of the Commission they would be treated in the same way .

The applicant relies on what was said by this Court in Case 1322/79 Vutera (( 1981 )) ECR 127 . Having referred, in paragraph 8 on page 138, to the basic provision of Article 4, the Court went on : "An exception is provided for in favour of officials who during that period resided in the country in which they are employed, where they were in the service of another State or of an international organization, account having been taken of the fact that under those circumstances they cannot be deemed to have established a lasting tie with the country in which they are employed ".

Counsel for the applicant stresses the phrase "that period ". It does not seem to me that in Vutera the Court had in mind the question which arises in the present case and, in any event, even that passage in the judgment leaves open the very question which is in issue in the present case .

Finally, the applicant has stressed the connections which he has maintained with Spain during his residence in Brussels . That does not seem to me to be a factor which goes against the interpretation which is put forward by the Commission, nor does the fact, in my view, that as an official of the Spanish Embassy he might have been recalled to Spain and might have incurred expenses, undermine what seems to me to be the object and purpose of this particular article . He did not incur the extra expenditure which such a course would have produced, and even if there is an argument that someone recalled might have extra expenses, that is not something which falls for a decision in this case . He would in any event be likely to cease to be resident in the relevant Member State .

Accordingly, in my view, the Commission interpreted the second indent of Article 4 ( 1 ) ( a ) correctly and it would be right to hold that the reference period which is relevant in this case is the five years immediately prior to the applicant' s period of employment with the Spanish Embassy in Brussels . Since it is not disputed that he failed to fulfil the relevant conditions during that period his claim to be entitled to expatriation allowance falls to be rejected .

He also claims the installation allowance under Article 5 . Under that article the allowance is payable to an established official on one of two conditions : either he must qualify for expatriation allowance or he must furnish evidence of having been obliged to change his place of residence in order to comply with Article 20 of the Staff Regulations .

Since, in my view, the applicant does not qualify for expatriation allowance the first condition is not fulfilled . The alternative condition cannot be fulfilled in any event, as it is not contested that the applicant has lived at the same address in Brussels since 1978 .

Accordingly, in my view, this application should be dismissed and each party ordered to bear its own costs under Article 70 of the Rules of Procedure .