Opinion of Mr Advocate General Mancini delivered on 20 January 1988. - Antonio Morabito v European Parliament. - Official - Expatriation allowance. - Case 105/87.



European Court reports 1988 Page 01707



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . This is the first case since the setting-up of the Court of Justice in which the defendant is in default . The European Parliament' s application for an extension of the time-limit for the lodging of its defence reached the Court after the expiry of the said time-limit . Consequently, by an application of 19 June 1987 under Article 94 ( 1 ) of the Rules of Procedure, the applicant, Antonio Morabito, applied for judgment by default . The application, which was received at the Court Registry on 6 April 1987, seeks principally the annulment of the decision of 8 January 1987 by which the Secretary-General of the Parliament confirmed the refusal to grant Mr Morabito an expatriation allowance . In the alternative, the applicant asked the Court to declare that he was entitled to that allowance on the basis of the criteria applied by the institution to all its officials and other staff and to order the Parliament to make good the damage suffered .

2 . The facts are as follows . Mr Morabito, an Italian national, was enrolled for the first time in the population register of the City of Luxembourg on 1 August 1975 . From that date until 1 January 1985, he worked as a barman at the Holiday Inn in that city . At the beginning of December 1984, he resigned from his position and on 12 December 1984 he informed the City of Luxembourg of his intention to leave, which he subsequently put back by two weeks at the request of his employer . His reason for leaving was his decision to return to his home town ( Vinco, Reggio Calabria ) to assist his mother, who died on 29 July 1986 after a long illness and a stay in hospital .

In the mean time, since he had not found work in Italy, Mr Morabito sought employment from the European Parliament ( 16 July 1985 ). In 1979, he had taken part in a competition for the recruitment of skilled employees ( messengers ) and was on the reserve list . His application was accepted on 15 October 1985 . He entered the service on 1 November 1985, informed the City of Luxembourg of his arrival three days later and went to live in the flat which, before returning to Italy, he had shared for about three years with a friend, also an employee of the Parliament .

The Parliament granted Mr Morabito a foreign residence allowance but not an expatriation allowance . In a memorandum of 19 August 1986 it informed him that he did not fulfil the conditions for entitlement to that allowance laid down in the Staff Regulations . It is stated in that memorandum that with the exception of the last four months, Mr Morabito had resided and worked in Luxembourg during the reference period ( from 1 May 1980 to 30 April 1985 ). However, in order to be taken into account for the purposes of the allowance at issue, an absence from the territory of the Member State in which the institution has its seat must be of at least six months . The memorandum added that the temporary nature of the absence was demonstrated by two circumstances : the official had not removed his effects to Italy and he had not taken up paid employment in that country .

In a complaint dated 21 August 1986, Mr Morabito contested the above decision but, by decision of 8 January 1987, the Secretary-General of the Parliament confirmed the refusal to grant him the allowance at issue, pointing out that the applicant' s brief stay in Italy did not cause him to cease to reside habitually in the Grand Duchy .

3 . In support of his application, Mr Morabito argues that the reasons on which the decision is based are incorrect . However, that submission would be more properly expressed as an infringement of the Staff Regulations of Officials . The applicant considers that the expatriation allowance must be paid once the official can show that he definitively left the territory on which the place where he is employed is situated six months before he entered the service and there is no doubt that he was in Italy during the 10 months preceding his entry into service as an official of the Parliament . Mr Morabito also denies that that stay was temporary . His intention to live permanently in Italy is demonstrated by the declaration made to the City of Luxembourg at the time he left the Grand Duchy and by the termination of his affiliation to the local social security scheme . He explains the fact that he did not remove his effects by two circumstances : at the time, he did not have any furniture and he lived in a flat rented by a friend .

4 . The admissibility of the originating application and compliance with the procedural formalities, which the Court is required to verify under Article 94 ( 2 ) of the Rules of Procedure, pose no problem .

I can therefore proceed to consider whether the applicant' s conclusions are well founded . Let me refer first to the relevant provisions of the Staff Regulations . As the Court will be aware, the expatriation allowance is provided for in Article 69 and, as far as this case is concerned, payment thereof is subject to the conditions laid down in Article 4 ( 1 ) ( a ) of Annex VII . According to that provision, the allowance is granted to officials who "are not and have never been nationals of the State in whose territory the place where they are employed is situated and 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 ".

Let me recall that the Court has consistently held ( a ) that the conditions other than that concerning nationality must both be fulfilled ( judgment of 9 October 1984 in Case 188/83 Witte v European Parliament (( 1984 )) ECR 3465, paragraph 8; judgment of 2 May 1985 in Case 246/83 De Angelis v Commission (( 1985 )) ECR 1253, paragraph 14; judgment of 24 June 1987 in Case 61/85, Von Neuhoff von der Ley v Commission (( 1987 )) ECR 2853, paragraph 7 ), and ( b ) 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 move from their country of residence to the one in which their place of employment is situated ( judgment of 20 February 1975 in Case 21/74 Airola v Commission (( 1975 )) ECR 221, paragraph 8; judgment of 16 October 1980 in Case 147/79 Hochstrass v Court of Justice (( 1980 )) ECR 3005, paragraph 12; judgment in Von Neeuhoff von der Ley, cited above, paragraph 7 ).

The appraisal to be made is thus concerned with the solidity and permanence of the link between the official and the State in which he is to perform his duties . For that purpose, criteria such as habitual residence or main occupation are decisive ( judgment in Von Neuhoff von der Ley, cited above ) whereas absence from that State for a certain period or removal of effects are of no importance in that regard .

5 . Let me consider the applicant' s position in the light of those principles . It is clear that he fulfils the nationality condition . It remains therefore to verify whether the other two conditions are fulfilled, namely the condition concerning habitual residence and that concerning main occupation .

Let me begin with the second condition . It is apparent from the documents before the Court ( a ) that out of the five years of the reference period, Mr Morabito was employed principally, or rather exclusively, in Luxembourg for about four years and eight months and ( b ) that during the four months spent in Italy ( January to April 1985 ) he did not pursue an occupational activity . The condition in point cannot therefore be regarded as fulfilled .

That conclusion could dispense me from the need to determine whether Mr Morabito fulfils the condition concerning habitual residence . I will however consider that point because that is the condition on which the Parliament based the contested decision and on which the applicant built his defence .

As I have said, the subject of the dispute between the parties is the period which Mr Morabito spent in Italy . The Parliament considers it insufficient as a basis for regarding Italy as Mr Morabito' s place of habitual residence and it relies for that purpose on a practice in regard to the application of Article 4 ( 1 ) of Annex VII to the Staff Regulations which derives from decisions of the Community' s heads of administration and the legitimacy of which seems doubtful to me ( I expressed that view in my Opinion in Case 188/83 Witte v European Parliament (( 1984 )) ECR 3465 at p . 3476 ). The applicant claims however that those four months at the end of the reference period, which were marked by an intention to return definitively to Italy, fixed his habitual residence in his place of origin .

Both of those arguments are without foundation . As the Court has held on several occasions, the fact of having resided for a total of 20 months during the reference period in a Member State other than that in which the place of residence is situated is not sufficient to justify the view that the official habitually resided there ( judgment of 17 February 1976 in Case 42/75 Delvaux v Commission (( 1976 )) ECR 167; judgment in Von Neuhoff von der Ley, cited above, paragraph 9 ), and it is even more difficult to regard the four months which Mr Morabito spent in Italy as sufficient . The applicant could not possibly have had to bear, when returning to Luxembourg, the extra expense and inconvenience for which the expatriation allowance is intended to compensate .

6 . On the basis of the foregoing considerations, I propose that the Court should dismiss the application brought by Antonio Morabito against the European Parliament on 6 April 1987 .

Having regard to the nature of the proceedings, I propose that the parties should be ordered to bear their own costs .

(*) Translated from the Italian .