Judgment of the Court (Second Chamber) of 10 October 1989. - Carmen Palmerini, née Atala v Commission of the European Communities. - Officials - Expatriation allowance. - Case 201/88.



European Court reports 1989 Page 03109



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

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Officials - Remuneration - Expatriation allowance - Object - Concept of expatriation - Habitual residence in the place of employment before taking up duties - Residence as student - Circumstance having no determining effect

( Staff Regulations of Officials, Annex VII, Art . 4(1 ) )

Summary

The object of granting an expatriation allowance, which is independent of the fixing of the place of origin of the person concerned, 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 . Furthermore, the concept of expatriation also depends on the personal position of an official, that is to say on the extent to which he is integrated in his new environment, which is demonstrated, for example, by habitual residence or by the main occupation pursued .

Consequently, the fact that an official was in the country of employment merely as a student during the first part of the reference period referred to in Article 4(1)(a ) of Annex VII to the Staff Regulations is not sufficient to preclude his having habitually resided there, if, already being there at the start of that period, he has continued to reside there almost without interruption throughout, and even after the end of, that period .

Parties

In Case 201/88

Carmen Palmerini, née Atala, represented by Jean-Noël Louis, with an address for service in Luxembourg at the Chambers of Yvette Hamilius, 11 boulevard Royal,

applicant

v

Commission of the European Communities, represented by Sean van Raepenbusch, a member of its legal department, acting as Agent, with an address for service in Luxembourg qt the office of Georgios Kremlis, a member of its legal department, Wagner Centre, Kirchberg,

defendant,

APPLICATION for the annulment of the Commission' s decision refusing to grant the applicant an expatriation allowance under Article 4(1)(a ) of Annex VII to the Staff Regulations of Officials,

THE COURT ( Second Chamber )

composed of : O . Due, President of Chamber, F . A . Schockweiler and G . F . Mancini, Judges,

Advocate General : F . G . Jacobs

Registrar : D . Louterman, Principal Administrator

having regard to the Report for the Hearing and further to the hearing on 14 June 1989,

after hearing the Opinion of the Advocate General delivered at the sitting on 22 June 1989,

gives the following

Judgment

Grounds

1 By an application lodged at the Court Registry on 21 July 1988, Carmen Palmerini, née Atala, an official in Category A of the Commission of the European Communities, brought an action for the annulment of the Commission' s decision of 9 July 1987 refusing to grant her an expatriation allowance and, in so far as is necessary, the Commission' s decision of 21 April 1988, in which the complaint lodged as a result of that refusal was rejected .

2 The applicant, a Peruvian national by birth and an Italian national by marriage, completed her secondary and university education in Peru . From September 1970 to June 1973, she studied at a Belgian university . After returning to Peru for a short time, she once again came to Belgium, where she was a trainee with the Commission from 1 September 1973 to 31 January 1974 and attended courses for a master' s degree in development economics .

3 On 7 December 1974, she married a Commission official of Italian nationality posted to Brussels . During the 1974/75 and 1975/76 academic years, she was enrolled at the University of Paris X-Nanterre for the purpose of preparing a doctorate . From 6 March 1978 to 30 March 1987, she worked at the Peruvian Embassy in Belgium . On 16 April 1987, Mrs Palmerini entered the service of the Commission and was posted to Brussels .

4 Reference is made to the Report for the Hearing for a fuller account of the facts of 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 .

5 According to 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 never have 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 . 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 ".

6 In this case, it must be accepted, as the Commission has argued, that the reference period of five years is composed of the time between 6 October 1972 and 31 August 1973 and between 1 February 1974 and 5 March 1978, because the period as a trainee with the Commission and the period of service in the Peruvian Embassy are not to be taken into account .

7 The applicant claims that the contested decisions infringe the abovementioned provisions of Annex VII to the Staff Regulations of Officials . She claims in particular that during that part of the reference period when she was a student in Belgium, she never had any intention of establishing durable links with that country and maintained her family, social and professional ties with Peru .

8 The Commission replies that the criteria laid down in the said provision are simple and objective, with the result that the administration does not have to consider whether or not the persons concerned had any intention of integrating themselves into the State in question . In this case, the applicant has in fact habitually resided in Belgium since September 1970 . Her short stays in other countries have no effect in that regard . Furthermore, the applicant' s marriage to a Commission official assigned to Brussels reinforced her integration into Belgium .

9 It should be pointed out, that, in regard to the matter in dispute, according to established case-law of the Court, reaffirmed inter alia in the judgment of 31 May 1988 in Case 211/87 Nuñez v Commission (( 1988 )) ECR 2791, 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 . Furthermore, the concept of expatriation also depends on the personal position of an official, that is to say on the extent to which he is integrated in his new environment, which is demonstrated, for example, by habitual residence or by the main occupation pursued ( see the judgment of 2 May 1985 in Case 246/83 De Angelis v Commission (( 1985 )) ECR 1253 ).

10 In that regard, it should be observed that the applicant had already been in Belgium for two years at the start of the reference period and continued to reside there, almost without interruption throughout, and even after the end of, that period . Furthermore, Mrs Palmerini admitted that, following her marriage, she established her habitual residence in Belgium .

11 In those circumstances, the fact that the applicant was in Belgium merely as a student during the first part of the reference period is not sufficient to preclude her having habitually resided there . Thus, as the Commission rightly pointed out, there was no particular expense or inconvenience for which the granting of an expatriation allowance could compensate .

12 Moreover, the applicant insisted at the hearing that the Commission had agreed to fix her place of origin in a place other than Belgium .

13 In that regard, it should be stated that, in any event, such a circumstance can have no effect on the subject-matter of these proceedings, since the fixing of a place of origin and the granting of an expatriation allowance meet different needs and are subject to different criteria .

14 The application must therefore be dismissed .

Decision on costs

Costs

15 Under Article 69(2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party' s pleading . However, Article 70 of those Rules provides that institutions are to bear their own costs in proceedings brought by servants of the Communities .

Operative part

On those grounds,

THE COURT ( Second Chamber )

hereby :

( 1 ) Dismisses the application;

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