Judgment of the Court (Second Chamber) of 2 May 1985. - Claudia De Angelis v Commission of the European Communities. - Official - Place of origin. - Case 144/84.



European Court reports 1985 Page 01301



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - PLACE OF ORIGIN - PLACE OF USUAL RESIDENCE PRIOR TO RECRUITMENT - DIFFERENT CONCEPTS - DETERMINATION OF THE PLACE OF ORIGIN - CRITERIA - OFFICIAL ' S CENTRE OF INTERESTS

( STAFF REGULATIONS , ANNEX VII , ARTS . 7 ( 3 ))

2 . OFFICIALS - PLACE OF ORIGIN - CENTRE OF INTERESTS - DETERMINATION - CRITERIA - PERMANENT FAMILY TIES AND INTERESTS

( STAFF REGULATIONS , ANNEX VII , ART . 7 ( 3 ))

Summary

1 . THE EXPRESSION ' PLACE OF ORIGIN ' REFERRED TO IN THE FIRST SUBPARAGRAPH OF ARTICLE 7 ( 3 ) OF ANNEX VII TO THE STAFF REGULATIONS IS A TECHNICAL TERM USED TO DETERMINE AN OFFICIAL ' S PECUNIARY RIGHTS SO AS TO AVOID CONFUSION BETWEEN THE OFFICIAL ' S PLACE OF ORIGIN AND THE PLACE WHERE HE WAS PERMANENTLY RESIDENT AND PREVIOUSLY EMPLOYED PRIOR TO HIS RECRUITMENT

ACCORDING TO THE AFORESAID PROVISION , THE OFFICIAL ' S PLACE OF ORIGIN IS DETERMINED WHEN HE TAKES UP HIS APPOINTMENT , ACCOUNT BEING TAKEN OF WHERE HE WAS RECRUITED OR THE CENTRE OF HIS INTERESTS .

THE LATTER CONCEPT IS BASED ON THE GENERAL PRINCIPLE OF THE LAW GOVERNING THE PUBLIC SERVICE TO THE EFFECT THAT IT MUST BE POSSIBLE FOR AN OFFICIAL TO RETAIN HIS PERSONAL LINKS WITH THE PLACE WHERE HIS PRINCIPAL INTERESTS ARE SITUATED , NOTWITHSTANDING HIS ENTRY INTO THE SERVICE AND THE DISTANCE BETWEEN THAT PLACE AND THE PLACE OF EMPLOYMENT .

2 . FOR THE DETERMINATION OF THE OFFICIAL ' S CENTRE OF INTERESTS WITHIN THE MEANING OF ARTICLE 7 ( 3 ) OF ANNEX VII TO THE STAFF REGULATIONS , THE PLACE WHERE THE MARITAL AND FAMILY RESIDENCE OF THE HUSBAND AND WIFE WAS ACTUALLY SITUATED BEFORE EITHER OR BOTH OF THEM ENTERED THE SERVICE CANNOT BE DISREGARDED AS IT IS EVIDENCE OF THE OFFICIAL ' S MAIN FAMILY TIES . SIMILARLY , ACCOUNT MAY BE TAKEN OF PERMANENT HERITABLE INTERESTS OTHER THAN A RIGHT IN REM RECORDED IN PUBLIC REGISTERS .

Parties

IN CASE 144/84

CLAUDIA DE ANGELIS , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING IN BRUSSELS , REPRESENTED BY JEAN-NOEL LOUIS OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF NICOLAS DECKER , 16 AVENUE MARIE-THERESE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , DIMITRIOS GOULOUSSIS , AND BY MARIE-ANNE CONINSX , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENTS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MANFRED BESCHEL , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE COMMISSION ' S EXPRESS DECISION OF 9 AUGUST 1983 REFUSING THE APPLICANT ' S REQUEST THAT ISCHIA SHOULD BE FIXED AS HER PLACE OF ORIGIN ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 7 JUNE 1984 , CLAUDIA DE ANGELIS , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , BROUGHT AN ACTION SEEKING IN SUBSTANCE THE ANNULMENT OF THE COMMISSION ' S DECISION OF 9 AUGUST 1983 REFUSING HER REQUEST THAT ISCHIA ( ITALY ) SHOULD BE FIXED AS HER ' PLACE OF ORIGIN ' FOR THE PURPOSE OF ESTABLISHING HER RIGHTS UNDER THE STAFF REGULATIONS CONCERNING TRAVEL AND LEAVE BY REFERENCE TO THAT CONCEPT .

2 THE APPLICANT , WHO IS AN ITALIAN NATIONAL RESIDING IN BRUSSELS , WAS APPOINTED AN OFFICIAL OF THE COMMISSION ON 1 DECEMBER 1982 AND WAS POSTED TO BRUSSELS . SHE HAS BEEN MARRIED SINCE 22 MAY 1969 UNDER THE SYSTEM OF COMMUNITY OF PROPERTY GOVERNED BY ITALIAN LAW TO F . DE ANGELIS , WHO IS ALSO AN OFFICIAL OF THE EUROPEAN COMMUNITIES AND HAS BEEN POSTED TO BRUSSELS SINCE 1 APRIL 1970 . UNTIL THAT DATE THE COUPLE RESIDED IN ISCHIA ( ITALY ).

3 BY NOTE OF 11 APRIL 1983 THE APPLICANT SUBMITTED TO THE APPOINTING AUTHORITY UNDER ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS A REQUEST THAT ISCHIA SHOULD BE FIXED AS HER PLACE OF ORIGIN , INSTEAD OF BRUSSELS WHERE SHE HAD BEEN RECRUITED . THAT REQUEST WAS ACCOMPANIED BY SUPPORTING DOCUMENTS , IN PARTICULAR , A CERTIFICATE ISSUED BY THE MUNICIPALITY OF ISCHIA STATING THAT MR AND MRS DE ANGELIS OWNED PROPERTY THERE .

4 THE APPLICANT ' S REQUEST WAS BASED ON THE FIRST SUBPARAGRAPH OF ARTICLE 7 ( 3 ) OF ANNEX VII TO THE STAFF REGULATIONS , CONCERNING THE DETERMINATION OR MODIFICATION OF THE PLACE OF ORIGIN , WHICH 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 . THE PLACE OF ORIGIN AS SO DETERMINED MAY BY SPECIAL DECISION OF THE APPOINTING AUTHORITY BE CHANGED WHILE THE OFFICIAL IS IN SERVICE OR WHEN HE LEAVES THE SERVICE . WHILE HE IS IN THE SERVICE , HOWEVER , SUCH DECISION SHALL BE TAKEN ONLY EXCEPTIONALLY AND ON PRODUCTION BY THE OFFICIAL OF APPROPRIATE SUPPORTING EVIDENCE . '

5 ARTICLE 7 ( 3 ) OF ANNEX VII TO THE STAFF REGULATIONS WAS IMPLEMENTED IN GREATER DETAIL BY THE COMMISSION DECISION OF 15 JULY 1980 CONCERNING GENERAL IMPLEMENTING PROVISIONS FOR GIVING EFFECT TO ARTICLE 7 ( 3 ) OF ANNEX VII TO THE STAFF REGULATIONS . ARTICLE 2 OF THAT DECISION PROVIDES AS FOLLOWS :

' ( 1 ) AN OFFICIAL ' S PLACE OF ORIGIN SHALL , WHEN HE TAKES UP HIS APPOINTMENT , BE ASSUMED TO BE THE PLACE WHERE HE WAS RECRUITED . IF THE OFFICIAL SO REQUESTS , WITHIN ONE YEAR AFTER HE TAKES UP HIS APPOINTMENT , AND ON PRODUCTION OF DOCUMENTARY EVIDENCE IN SUPPORT OF HIS REQUEST , HIS PLACE OF ORIGIN SHALL BE DETERMINED AS HIS CENTRE OF INTERESTS IF THE LATTER IS NOT HIS PLACE OF RECRUITMENT .

( 2)FOR THE PURPOSES OF APPLYING THIS ARTICLE :

' PLACE OF RECRUITMENT ' SHALL MEAN THE PLACE WHERE THE OFFICIAL WAS USUALLY RESIDENT AT THE TIME OF RECRUITMENT . PLACES OF TEMPORARY RESIDENCE , E.G . FOR THE PURPOSE OF STUDY , MILITARY SERVICE , TRAINING PERIODS OR HOLIDAYS , SHALL NOT BE REGARDED AS PLACES OF USUAL RESIDENCE ;

' CENTRE OF INTERESTS ' SHALL MEAN THE PLACE WHERE AN OFFICIAL RETAINS :

( A ) HIS MAIN FAMILY TIES WHICH , BARRING DULY SUBSTANTIATED EXCEPTIONS , SHALL MEAN :

MOTHER AND FATHER OR EITHER PARENT ; FAILING THAT GRANDPARENTS , OR ONE GRANDPARENT ; FAILING THAT PARENTS-IN-LAW , OR EITHER PARENT-IN-LAW ; FAILING THAT BROTHERS AND SISTERS ;

CHILDREN , OR ONE OR MORE OF THEM ;

( 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 OR FAILING THAT THE PLACE WHERE THE OFFICIAL RETAINS HIS MAIN FAMILY TIES , CONFINED IN THIS INSTANCE TO THE OFFICIAL ' S FATHER , MOTHER OR CHILDREN .

( 3)IF AN OFFICIAL ' S CENTRE OF INTERESTS CANNOT BE ESTABLISHED BY MEANS OF THE CRITERIA LISTED IN PARAGRAPH ( 2 ), HIS PLACE OF ORIGIN SHALL BE HIS PLACE OF RECRUITMENT .

... '

6 BY MEMORANDUM OF 9 AUGUST 1983 THE HEAD OF THE COMMISSION ' S FINANCIAL AND ADMINISTRATIVE RIGHTS DIVISION , ACTING AS THE APPOINTING AUTHORITY , REFUSED THE APPLICANT ' S REQUEST POINTING OUT THAT UNLESS SHE PRODUCED PROOF OF LEGAL OWNERSHIP ESTABLISHING THAT THE PROPERTY WHICH SHE CLAIMED TO OWN ON ISCHIA HAD BELONGED TO HER , EITHER WHOLLY OR IN PART , SINCE HER ENTRY INTO SERVICE , ISCHIA COULD NOT BE FIXED AS HER PLACE OF ORIGIN . THAT REFUSAL WAS FURTHER CLARIFIED BY A MEMORANDUM OF 12 OCTOBER 1983 FROM THE SAME HEAD OF DIVISION STATING THAT ' ONLY A CERTIFICATE FROM THE LAND REGISTER OR A NOTARIAL DEED SHOWING A PERSON TO BE THE OWNER OF REAL PROPERTY MAY BE RECOGNIZED AS PROOF OF LEGAL OWNERSHIP FOR THE PURPOSES OF THE RELEVANT PROVISIONS OF THE STAFF REGULATIONS . '

7 IN A MEMORANDUM WHICH WAS RECEIVED BY THE COMMISSION ON 8 NOVEMBER 1983 THE APPLICANT LODGED A COMPLAINT AGAINST THE COMMISSION ' S MEMORANDUM OF 9 AUGUST 1983 , CLAIMING THAT ISCHIA SHOULD BE FIXED AS HER PLACE OF ORIGIN .

8 THE APPLICANT ' S COMPLAINT EVOKED NO RESPONSE WITHIN THE PERIOD PRESCRIBED BY ARTICLE 90 OF THE STAFF REGULATIONS .

9 THE APPLICANT RECALLS THAT AN OFFICIAL ' S CENTRE OF INTERESTS IS DETERMINED BY HIS FAMILY TIES , HERITABLE INTERESTS AND ESSENTIAL CITIZEN ' S INTERESTS . AS FAR AS HER CITIZEN ' S INTERESTS ARE CONCERNED , THE APPLICANT REFERS TO HER ITALIAN NATIONALITY AND TO THE FACT THAT HER NAME IS ENTERED IN THE POPULATION REGISTER AND THE ELECTORAL ROLL OF THE MUNICIPALITY OF ISCHIA . AS FAR AS HER HERITABLE INTERESTS ARE CONCERNED , THE APPLICANT POINTS OUT THAT BY COMMON AGREEMENT SHE AND HER HUSBAND ESTABLISHED THEIR MARITAL AND FAMILY RESIDENCE IN ISCHIA SINCE IT HAD BEEN FIXED AS HER HUSBAND ' S PLACE OF ORIGIN .

10 AS REGARDS HER HERITABLE INTERESTS , THE APPLICANT CLAIMS THAT SHE HAS IN FACT AN INTEREST IN A SERIES OF RIGHTS AND DUTIES RELATING TO IMMOVABLE PROPERTY ALREADY BUILT . SHE MAINTAINS THAT IN 1975 , TOGETHER WITH HER HUSBAND , SHE ENLARGED AND EQUIPPED A BUILDING IN ISCHIA WHICH HAD BEEN CONSTRUCTED BY HER HUSBAND BEFORE THEY WERE MARRIED . THE WORK WAS FINANCED BY A LOAN CONTRACTED BY HUSBAND AND WIFE UNDER THEIR MATRIMONIAL PROPERTY SYSTEM . THE COUPLE THEREFORE HAVE A CHARGE OVER THAT BUILDING . THE APPLICANT ADDS THAT SHE IS ENTITLED UNDER ITALIAN LAW TO RESIDE IN THE BUILDING , TO USE IT AND TO OBJECT TO ITS SALE , WHICH ARE FEATURES OF A RIGHT IN REM . FINALLY , THE APPLICANT EMPHASIZES THAT UNDER THE ITALIAN CIVIL CODE , SHE INHERITS A PROPERTY RIGHT IN REM .

11 THE APPLICANT ALSO POINTS OUT THAT THE COMMISSION ' S REFUSAL TO FIX ISCHIA AS HER PLACE OF ORIGIN , AS HAS BEEN DONE FOR HER HUSBAND , ENTAILS , SINCE HER HUSBAND ' S LEAVE IS INCREASED BY FIVE DAYS ' TRAVELLING TIME , AN UNJUSTIFIED SEPARATION OF THE FAMILY . IT IS UNTHINKABLE THAT A HUSBAND AND WIFE LIVING TOGETHER SHOULD ESTABLISH THEIR CENTRE OF INTERESTS IN SEPARATE PLACES . IN THE APPLICANT ' S VIEW , THE COMMISSION ' S ATTITUDE IS ALL THE MORE CONTRADICTORY SINCE IT HAS ACCORDED HER TRAVELLING TIME TO ENABLE HER TO VOTE IN ELECTIONS IN ISCHIA BUT REFUSES TO GRANT HER TIME FOR TRAVELLING TO THE MARITAL RESIDENCE THERE .

12 THE COMMISSION DOES NOT DENY THAT THE APPLICANT FULFILS THE REQUIREMENT RELATING TO CITIZEN ' S INTERESTS . HOWEVER , IT CONSIDERS THAT IT IS ERRONEOUS TO INTERPRET THE CONCEPT OF HERITABLE INTERESTS AS INCLUDING EVERY KIND OF PROPERTY INTEREST WHICH AN OFFICIAL MAY HAVE IN A GIVEN PLACE . ON THE CONTRARY , THE MEANING OF THAT CONCEPT IS THAT AN OFFICIAL MUST BE THE HOLDER OF A RIGHT IN REM IN IMMOVABLE PROPERTY AND NOT NECESSARILY OF A RIGHT OF OWNERSHIP SINCE A LIFE INTEREST IS SUFFICIENT . IN ANY EVENT , A MERE CHARGE RELATING IN GENERAL TERMS TO IMMOVABLE PROPERTY IS NOT SUFFICIENT . IT CONTENDS THAT THE APPLICANT ' S ARGUMENT IN THAT REGARD IS TANTAMOUNT TO ASSERTING THAT AN OFFICIAL CAN ESTABLISH A PROPERTY INTEREST OF ANY KIND IN A GIVEN COUNTRY BY MEANS OF A CHARGE WHICH HE COULD CREATE HIMSELF . A SITUATION OF THAT KIND IS , IN ITS VIEW , UNVERIFIABLE AND UNACCEPTABLE . MOREOVER , THE COMMISSION CONSIDERS THAT THE CRITERIA CONCERNING PERMANENT HERITABLE INTERESTS MUST BE OBJECTIVE AND THE CORRESPONDING RIGHTS IN REM MUST BE CLEARLY DEFINED AND RECORDED IN PUBLIC REGISTERS ( LAND REGISTERS ) IN ORDER TO PROVIDE A SOUND BASIS FOR THE EXAMINATION OF THE CRITERIA IN QUESTION . IN THE COMMISSION ' S VIEW , THERE IS NO GENERAL PRINCIPLE REQUIRING A HUSBAND AND WIFE , BOTH OF WHOM ARE OFFICIALS , TO BE TREATED IN THE SAME MANNER FOR ALL ADMINISTRATIVE PURPOSES . IF IN A SPECIFIC CASE THE INTERPRETATION OF A PROVISION OF THE STAFF REGULATIONS LEADS TO THE SEPARATION OF A FAMILY , THAT INTERPRETATION MUST NONE THE LESS BE UPHELD . FINALLY , SPECIAL LEAVE TO VOTE IN ELECTIONS IS NOT COMPARABLE TO ANNUAL LEAVE . IT IS ENTIRELY LOGICAL TO GRANT THE APPLICANT TRAVELLING TIME SINCE SHE CAN VOTE ONLY IN ISCHIA .

13 IN VIEW OF THOSE DIFFERENCES OF OPINION , IT MUST BE BORNE IN MIND IN THE FIRST PLACE THAT THE PLACE OF ORIGIN OF AN OFFICIAL IS TO BE DETERMINED , UNDER THE FIRST SUBPARAGRAPH OF ARTICLE 7 ( 3 ) OF ANNEX VII TO THE STAFF REGULATIONS , WHEN HE TAKES UP HIS APPOINTMENT , ACCOUNT BEING TAKEN OF WHERE HE WAS RECRUITED OR THE CENTRE OF HIS INTERESTS . SECONDLY , IT IS NECESSARY TO POINT OUT THAT THE EXPRESSION ' PLACE OF ORIGIN ' IS A TECHNICAL TERM WHICH HAS AS ITS PURPOSE TO INDICATE THE PLACE WHICH MUST BE TAKEN INTO CONSIDERATION FOR THE FLAT-RATE PAYMENT WHICH IS TO BE MADE ONCE OR TWICE EACH YEAR IN RESPECT OF THE COST OF TRAVEL FROM THE PLACE OF EMPLOYMENT TO THE PLACE OF ORIGIN ( ARTICLE 8 ( 1 ) OF ANNEX VII ), FOR THE REIMBURSEMENT OF TRAVEL EXPENSES FOR THE OFFICIAL ' S SPOUSE AND ANY DEPENDANTS FROM THE PLACE OF EMPLOYMENT TO THE PLACE OF ORIGIN ON TERMINATION OF SERVICE ( ARTICLE 7 ( 1 ) OF ANNEX VII ), FOR THE TRAVELLING TIME WHICH IS TO BE ADDED TO THE PERIOD OF ANNUAL LEAVE ( FOURTH PARAGRAPH OF ARTICLE 7 OF ANNEX V TO THE STAFF REGULATIONS ) AND , IN THE EVENT OF THE DEATH OF AN OFFICIAL , FOR THE REIMBURSEMENT BY THE INSTITUTION OF THE COSTS INVOLVED IN TRANSPORTING THE BODY TO THE OFFICIAL ' S PLACE OF ORIGIN ( ARTICLE 75 OF THE STAFF REGULATIONS ). AS IS APPARENT FROM THE JUDGMENT OF THE COURT OF 9 MARCH 1978 IN CASE 54/77 HERPELS V COMMISSION ( 1978 ) ECR 585 , THE CONCEPT OF THE ' PLACE OF ORIGIN ' IS DIFFERENT FROM THAT OF THE PLACE WHERE THE OFFICIAL WAS PERMANENTLY RESIDENT BEFORE HE ENTERED THE SERVICE AND WHERE HE WAS PREVIOUSLY EMPLOYED . IT FOLLOWS THAT A CLEAR DISTINCTION MUST BE DRAWN BETWEEN THE PLACE WHERE THE OFFICIAL WAS USUALLY RESIDENT AT THE TIME OF RECRUITMENT AND HIS CENTRE OF INTERESTS . THE LATTER CONCEPT IS BASED ON THE GENERAL PRINCIPLE OF THE LAW GOVERNING THE PUBLIC SERVICE TO THE EFFECT THAT IT MUST BE POSSIBLE FOR AN OFFICIAL TO RETAIN HIS PERSONAL LINKS WITH THE PLACE WHERE HIS PRINCIPAL INTERESTS ARE SITUATED , NOTWITHSTANDING HIS ENTRY INTO THE SERVICE AND THE DISTANCE BETWEEN THAT PLACE AND THE PLACE OF EMPLOYMENT .

14 IN THAT CONNECTION ARTICLE 2 OF THE COMMISSION DECISION OF 15 JULY 1980 CORRECTLY DEFINES IN GENERAL TERMS THE CENTRE OF INTERESTS AS BEING THE PLACE WHERE THE OFFICIAL RETAINS ( A ) HIS MAIN FAMILY TIES , ( B ) HIS HERITABLE INTERESTS AND ( C ) HIS ESSENTIAL CITIZEN ' S INTERESTS , BOTH ACTIVE AND PASSIVE .

15 AS REGARDS MORE PARTICULARLY AN OFFICIAL ' S HERITABLE INTERESTS , ARTICLE 2 PROVIDES THAT THEY MUST BE ' IN THE FORM OF IMMOVABLE PROPERTY ALREADY BUILT ' . THAT PHRASE HAS BEEN INTERPRETED BY THE COMMISSION DURING THESE PROCEEDINGS AS MEANING THAT , IN ORDER TO BENEFIT FROM ARTICLE 2 , AN OFFICIAL MUST BE THE HOLDER OF A RIGHT IN REM IN IMMOVABLE PROPERTY RECORDED IN PUBLIC REGISTERS ( LAND REGISTERS ) AND NOT MERELY OF A CHARGE RELATING IN GENERAL TERMS TO IMMOVABLE PROPERTY ALREADY BUILT .

16 THAT INTERPRETATION CANNOT BE UPHELD . THE COMMISSION DECISION OF 15 JULY 1980 MERELY INTERPRETS AND DEFINES ARTICLE 7 ( 3 ) OF ANNEX VII WHICH REFERS FOR THE DETERMINATION OF AN OFFICIAL ' S PLACE OF ORIGIN TO THE PLACE WHERE HIS CENTRE OF INTERESTS IS SITUATED . NEITHER ARTICLE 7 ( 3 ) OF ANNEX VII TO THE STAFF REGULATIONS NOR THE COMMISSION DECISION OF 15 JULY 1980 RULES OUT THE POSSIBILITY THAT PERMANENT HERITABLE INTERESTS OTHER THAN A RIGHT IN REM RECORDED IN PUBLIC REGISTERS MAY ALSO SERVE AS CRITERIA FOR THE DETERMINATION OF AN OFFICIAL ' S CENTRE OF INTERESTS .

17 IN THIS CASE THE APPLICANT HAS ESTABLISHED THAT CERTAIN HERITABLE INTERESTS IN IMMOVABLE PROPERTY ALREADY BUILT ARE ACTUALLY VESTED IN HER . IN 1975 , BY COMMON AGREEMENT WITH HER HUSBAND , SHE ENLARGED AND EQUIPPED THE BUILDING IN ISCHIA WHICH THE COUPLE REGARD AS THEIR MARITAL AND FAMILY RESIDENCE . THAT WORK WAS FINANCED BY A LOAN CONTRACTED BY HUSBAND AND WIFE UNDER THE SYSTEM OF COMMUNITY OF PROPERTY , WHICH , ACCORDING TO THE APPLICANT , WHOSE VERSION OF THE FACTS HAS NOT BEEN CHALLENGED BY THE COMMISSION , CONFERS ON THE MARRIED COUPLE A CHARGE OVER THE BUILDING IN QUESTION . FURTHERMORE , THE APPLICANT CONTENDS THAT UNDER ITALIAN LAW SHE IS ENTITLED IN THE FIRST PLACE TO OBJECT TO THE SALE OF THE BUILDING AND , SECONDLY , TO LIVE THERE AND TO USE IT , RIGHTS WHICH ARE FEATURES OF RIGHTS IN REM IN THAT BUILDING .

18 IT MUST BE HELD THAT SUCH INTERESTS MAY BE EVIDENCE OF A PERMANENT LINK , WHICH MUST BE ASSESSED IN EVERY INDIVIDUAL CASE BY THE INSTITUTION CONCERNED . THEIR EXISTENCE IS SUFFICIENTLY OBJECTIVE TO BE VERIFIED BY THE INSTITUTION AND THEY CANNOT , ANY MORE THAN RIGHTS IN REM RECORDED IN PUBLIC REGISTERS , BE USED TO CIRCUMVENT THE PROVISIONS OF THE STAFF REGULATIONS . IN THIS CASE , SUCH INTERESTS HAVE NOT BEEN TAKEN INTO ACCOUNT BY THE COMMISSION WHICH TOOK THE VIEW IN ITS MEMORANDUM OF 12 OCTOBER 1983 THAT ' ONLY A CERTIFICATE FROM THE LAND REGISTER OR A NOTARIAL DEED SHOWING A PERSON TO BE THE OWNER OF PROPERTY MAY BE RECOGNIZED AS PROOF OF LEGAL OWNERSHIP FOR THE PURPOSES OF THE RELEVANT PROVISIONS OF THE STAFF REGULATIONS ' .

19 IT FOLLOWS THAT IN THAT RESPECT THE CONTESTED DECISION IS VITIATED BY A MANIFEST ERROR OF LAW .

20 IT IS APPROPRIATE TO ADD THAT , FOR THE DETERMINATION OF THE CENTRE OF INTERESTS WITHIN THE MEANING OF ARTICLE 7 ( 3 ) OF ANNEX VII , THE PLACE WHERE THE OFFICIAL ' S MARITAL AND FAMILY RESIDENCE IS SITUATED , WHERE IT IS EVIDENCED BY THE OFFICIAL ' S MAIN FAMILY TIES , CANNOT BE DISREGARDED IF THE HUSBAND AND WIFE HAVE ACTUALLY ESTABLISHED THEIR PERMANENT RESIDENCE THERE BEFORE EITHER OR BOTH OF THEM ENTERED THE SERVICE . IT IS ILLOGICAL , WHEN THE SECOND INDENT , UNDER ( A ), OF ARTICLE 2 ( 2 ) OF THE DECISION OF 15 JULY 1980 PROVIDES THAT THE ' CENTRE OF INTERESTS ' IS TO MEAN THE PLACE WHERE AN OFFICIAL RETAINS INTER ALIA HIS OR HER MAIN FAMILY TIES , THAT IS TO SAY , FAILING THE PARENTS OR GRANDPARENTS , THE PARENTS-IN-LAW OR EITHER PARENT-IN-LAW ( IN DANISH ' SVIGERFORAELDRENE ELLER EN AF DISSE ' ; IN GERMAN ' SCHWIEGERELTERN ODER EINEN SCHWIEGERELTERNTEIL ' ; IN FRENCH ' SES BEAUX-PARENTS OU L ' UN D ' EUX ' ; AND IN DUTCH ' ZIJN SCHOONOUDERS OF EEN VAN BEIDEN ' ), TO EXCLUDE THE PLACE WHICH IS THE CENTRE OF INTERESTS OF THE OFFICIAL ' S SPOUSE , WITH WHOM THE OFFICIAL ' S FAMILY TIES ARE NECESSARILY CLOSER .

21 IN THE PRESENT CASE , BY REFUSING THE APPLICANT ' S REQUEST THAT ISCHIA SHOULD BE FIXED AS HER PLACE OF ORIGIN , THE COMMISSION MANIFESTLY ALSO DISREGARDED THE FACT THAT ISCHIA HAD BEEN FIXED AS HER HUSBAND ' S PLACE OF ORIGIN AND THAT THE COUPLE HAD , BY COMMON AGREEMENT , BEFORE THEY ENTERED THE SERVICE OF THE INSTITUTIONS , ESTABLISHED THEIR MARITAL RESIDENCE THERE .

22 IT FOLLOWS FROM ALL THE FOREGOING CONSIDERATIONS THAT THE COMMISSION ' S DECISION OF 9 AUGUST 1983 MUST BE ANNULLED AND THAT THE CASE MUST BE REMITTED TO THE COMMISSION TO ENABLE IT TO FIX THE APPLICANT ' S PLACE OF ORIGIN ANEW BY REFERENCE TO THE CRITERIA SET OUT ABOVE .

Decision on costs

COSTS

23 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE COMMISSION HAS BEEN UNSUCCESSFUL IN ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

( 1 ) ANNULS THE COMMISSION ' S DECISION OF 9 AUGUST 1983 ;

( 2 ) REMITS THE CASE TO THE COMMISSION FOR A FRESH DECISION ;

( 3 ) ORDERS THE COMMISSION TO PAY THE WHOLE OF THE COSTS .