Judgment of the Court (Fourth Chamber) of 31 May 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



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

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Officials - Remuneration - Expatriation allowance - Conditions of grant - No habitual residence and main occupation in the place where an official is employed before entry into service - Exception - Period spent in the service of another State or an international organization - Limits - Officials who already had lasting ties with the place where they are employed

( Staff Regulations, Annex VII, Art . 4 ( 1 ) ( a ) )

Summary

In providing for an exception to be made in applying the criteria for the grant of an expatriation allowance as regards habitual residence and main occupation in the country of employment for a reference period preceding entry into service in favour of an official who, during that period, has resided in the said country because he has been in the service of another State or an international organization, Article 4 ( 1 ) ( a ) of Annex VII to the Staff Regulations is intended to avoid penalizing persons who have established themselves in the country of employment for the abovementioned reason without having a lasting tie with that country .

The exception in question cannot apply to a case where an official, while having been employed by another State or an international organization within the territory of the country of employment, already had lasting ties with that country, since he had been habitually resident and carried on his occupation there for a long period of time previously .

Parties

In Case 211/87

Miguel Vicente Nuñez, an official of the Commission of the European Communities, represented by Edmond Lebrun of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Tony Biever, 83 boulevard Grande-Duchesse Charlotte,

applicant,

v

Commission of the European Communities, represented by its Legal Adviser, Joseph Griesmar, acting as Agent, with an address for service in Luxembourg at the office of G . Kremlis, Jean Monnet Building, Kirchberg,

defendant,

APPLICATION for the annulment of the Commission decisions notified to the applicant by letters of 16 December 1986 and 5 June 1987, for an order requiring the Commission to pay to the applicant an expatriation allowance and an installation allowance, together with default interest at 8% on both amounts, and for an order requiring the Commission to pay the costs,

THE COURT ( Fourth Chamber )

composed of : G . C . Rodríguez Iglesias, President of Chamber, T . Koopmans and C . Kakouris, Judges,

Advocate General : Sir Gordon Slynn

Registrar : D . Louterman, Administrator

having regard to the Report for the Hearing and further to the hearing on 20 April 1988,

after hearing the Opinion of the Advocate General delivered at the sitting of the same date,

gives the following

Judgment

Grounds

1 By application lodged at the Court Registry on 9 July 1987, Miguel Vicente Nuñez, an official in category B of the Commission of the European Communities, brought an action for the annulment of the Commission decisions of 16 December 1986 and 5 June 1987 refusing to grant him an expatriation allowance and an installation allowance and rejecting his complaint against that decision and for an order requiring the Commission the pay the allowances in question, together with default interest .

2 Reference is made to the Report for the Hearing for a fuller account of the background to the case and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

3 Under Article 4 ( 1 ) ( a ) of Annex VII to the Staff Regulations of Officials of the European Communities ( hereinafter referred to as the "Staff Regulations "), an expatriation allowance is to be paid 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 did not habitually reside or carry on their main occupation within the European territory of that State "during the five years ending six months before they entered the service ". For the purposes of that provision "circumstances arising from work done for another State or for an international organization" are not to be taken into account .

4 According to Article 5 ( 1 ) of Annex VII to the Staff Regulations, an installation allowance is to be paid to an official who qualifies for expatriation allowance or who furnishes evidence of having been obliged to change his place of residence in order to comply with Article 20 of the Staff Regulations . That provision lays down that an official is to reside either in the place where he is employed or at no greater distance therefrom as is compatible with the proper performance of his duties .

5 In his submissions the applicant claims, first, that those two provisions of Annex VII to the Staff Regulations have been infringed and, secondly, that the appointing authority has disregarded general principles of law, in particular the principle of equality and the principle that any administrative measure must be based on reasons that are permissible in law . Those two submissions are based on the argument that the applicant qualified under Article 4 of Annex VII to the Staff Regulations for the expatriation allowance and consequently was entitled to be granted an installation allowance in accordance with Article 5 of the said Annex .

6 To that effect Mr Nuñez claims that the reference period to be taken into account for the purposes of Article 4 of Annex VII to the Staff Regulations is the period from 1 April 1981 to 31 March 1986, the applicant having taken up his duties six months after that latter date, that is to say on 1 October 1986 . During that reference period, Mr Nuñez, who does not have and never has had Belgian nationality, resided and carried on his occupation on Belgian territory, but for the whole period in question he carried on that occupation in the service of the Embassy of the Kingdom of Spain in Brussels . Under Article 4 that circumstance should not be taken into account; it follows that the applicant cannot be regarded as a person who has resided and worked in Belgium during the reference period .

7 The Commission points out that the applicant has lived in Belgium since 1961 and received part of his schooling and his higher education there . Since he has been living continuously in the country of employment, the applicant has no right to an expatriation allowance or to an installation allowance . The effect of the exception set out in the last sentence of Article 4 ( 1 ) ( a ) of Annex VII to the Staff Regulations is that the period during which he was in the service of the Kingdom of Spain is neutralized in the sense that it may not be taken into account; it follows that the reference period of five years must be shifted back in time to the period before the applicant entered the service of the Spanish Embassy .

8 It is apparent from the documents before the Court that the applicant has resided on Belgian territory since his youth and carried on his occupation there, first as an executive secretary for a private employer in Brussels then, from 1976 to his entry into service with the Commission, initially under an employment contract and then as a civil servant, in the Spanish Embassy in Brussels .

9 It should be recalled that the Court has consistently held that the object of granting an 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 and to integrate themselves in their new environment ( see the judgment of 2 May 1985 in Case 246/83 De Angelis v Commission (( 1985 )) ECR 1253 ). It is in the light of that objective that Article 4 ( 1 ) ( a ) of Annex VII to the Staff Regulations must be interpreted .

10 It follows, in the first place, that although, for the purpose of determining cases of expatriation, that provision refers to the habitual residence and main occupations of officials in the State in whose territory the place where they work is situated over a certain reference period, it takes those connecting factors in order to establish simple, objective criteria to cover the situation of officials who are obliged, as a result of taking up employment with the Communities, to change their place of residence and to integrate themselves in their new environment .

11 In the second place it follows that although the provision in question provides for an exception to be made in applying those criteria in the case of an official who, during the reference period, resided in the country of employment while he was in the service of another State or an international organization, the purpose of that exception is to avoid penalizing persons who have established themselves in the country of employment in order to work in the service of another State or an international organization but do not have any lasting tie with that country, by depriving them of the expatriation allowance .

12 In the light of the foregoing, the exception in question cannot apply to a case such as this, where an official, while having worked in the embassy of another State within the territory of the country of employment, already had lasting ties with that country, since he had been habitually resident and carried on his occupation there for a long period of time previously .

13 The interpretation of the provision in question put forward by the applicant must therefore be rejected . Hence he did not satisfy the conditions laid down for the grant of an expatriation allowance .

14 It also follows that an installation allowance was not payable to the applicant, since he did not qualify for an expatriation allowance and, as is not contested, could not furnish evidence that he had to change his place of residence to meet the obligation of residing in the place where he is employed .

15 In those circumstances the application must be dismissed .

Decision on costs

Costs

16 Under Article 69 ( 2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs . However, under Article 70 of those same rules, the institutions are to bear their own costs in proceedings brought by servants of the Communities .

Operative part

On those grounds,

THE COURT ( Fourth Chamber )

hereby :

( 1 ) Dismisses the application;

( 2 ) Orders the parties to bear their own costs .