Opinion of Mr Advocate General Mancini delivered on 18 March 1987. - Tamara Urhausen, née von Neuhoff von der Ley, v Commission of the European Communities. - Official - Expatriation allowance. - Case 61/85.



European Court reports 1987 Page 02853



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . This case, brought on 7 March 1985, concerns a claim by Tamara Urhausen, née von Neuhoff von der Ley, a translator in the service of the Commission of the European Communities, for the payment of expatriation allowance .

That allowance is provided for under Article 69 of the Staff Regulations of Officials, and its payment is subject to the conditions set out in Article 4*(1)*(a ) of Annex VII . According to that provision the allowance is paid to officials who ( a ) have never been nationals of the State in whose territory the place where they are employed is situated; ( b ) 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 .

2 . Mrs Urhausen is and has always been a German national . She was born in March 1956 of a German father and a Luxembourgish mother in Munich, where she lived until the age of nine, when her parents were divorced . She then moved to the Grand Duchy of Luxembourg with her mother and lived there until July 1975, completing her secondary schooling there .

From September 1975 until July 1980 the applicant studied translation and interpreting at a school in Innsbruck, Austria; in September 1980 she married a Luxembourg national and from then until February 1981 taught in a primary school in Luxembourg . She also had her name placed on the list of court experts there ( in November 1980 ), and then worked as a translator at the Commission, first as a trainee and then on a free-lance basis until her final appointment on 16 April 1984 .

On entering the service of the Commission Mrs Urhausen found that she was not granted the allowance in question, and on 31 August 1984 she submitted a request for its payment . The Commission did not reply to her request, and she therefore submitted a complaint against that implied rejection on 7 November 1984 . The Commission rejected the complaint by a decision of 13 December . She has therefore brought these proceedings in which she seeks, inter alia, the annulment of that decision .

3 . There is no dispute between the parties with regard to the facts of the case, and it is clear that the applicant meets the first of the two conditions laid down by the Staff Regulations for the grant of the allowance . The dispute thus concerns the second condition . In other words, it must be determined whether Mrs Urhausen "habitually resided or carried on her main occupation" in the Grand Duchy of Luxembourg during the five years "ending six months before she entered the service", that is to say during the period from 16 November 1978 to 16 November 1983 .

In that regard the applicant points out first of all that she moved to Luxembourg only because her mother had custody of her following the divorce of her parents . When she reached the age of majority the centre of her interests became and remained Munich, where her father and grandfather lived, the latter being in his nineties . That is proved by the fact that she owns an apartment in Munich, bought in February 1979, and by a certificate of residence issued by the local authorities there .

Her decision to undertake further studies in Innsbruck was motivated by that city' s relative proximity to Munich and thus by her intention to maintain her habitual residence in Munich . Nor, she says, does her marriage with a Luxembourg national indicate the contrary, since their matrimonial home was in Munich .

Her periods of employment in Luxembourg are also insignificant, she argues . Her few assignments as a substitute teacher were obtained through contacts of her mother ( illegally, moreover, since she was a foreign national ) and certainly cannot be regarded as her "main occupation ". Her work at the Commission is irrelevant for two reasons : first of all, with regard to her "training period" at the Commission, the last phrase of Article 4 ( 2 ) ( a ) provides that work done for an international organization, which the Community must be considered to be for these purposes, is not to be taken into account; secondly, under her free-lance contract most of her work was to be done at home .

At the hearing the applicant raised the argument that the exception laid down in the last phrase of Article 4 ( 2 ) ( a ) also applies to the period during which she worked as a free-lance translator . That argument is clearly a new one and is therefore inadmissible under Article 42 of the Rules of Procedure .

4 . The action is unfounded . As the Court has frequently held, the expatriation allowance is intended to "compensate officials for the extra expense and inconvenience of taking up employment with the Communities and being thereby obliged to change their residence" ( judgments of 20 February 1975 in Case 21/74 Airola v Commission (( 1975 )) ECR 221 at paragraph 8; 16 October 1980 in Case 147/79 Hochstrass v Court of Justice (( 1980 )) ECR 3005 at paragraph 12; 13 November 1986 in Case 330/85 Richter v Commission (( 1986 )) ECR 3439 at p . 3445, paragraph 6 ). That principle is quite clear and entirely applicable to the case now before us .

As I have already stated, the applicant was born of a Luxembourgish mother and lived in Luxembourg from the age of nine until her adulthood, when she went to Innsbruck to study languages; subsequently she spent long and frequent periods in Luxembourg, to be near her mother or - above all - to work . Her only employment before her appointment as an official at the Commission was in Luxembourg .

In particular, it is not disputed that for the purposes of the rule in the Staff Regulations reference must be made to the five-year period from 16 November 1978 to 16 November 1983 . The applicant spent about a third of that period in Innsbruck : a relatively small part, and one which was, moreover, devoted to an objective - studies in interpreting and translation - which, it is well-established, does not mark a break in a person' s relations and interests; that is to say, it does not dissolve the network of connections which make up the concept of "habitual residence" in any given country .

As for the other two-thirds of the period in question, we know that Mrs Urhausen taught in a school in Luxembourg for about six months; for our purposes it is not relevant whether she was lawfully given such employment and whether the number of lessons which she taught was in fact very small . Furthermore, in November 1980 the applicant requested and obtained the inclusion of her name on the list of court experts, a qualification which obliged her to be available in Luxembourg . From the second half of 1981 until April 1984 she worked on a free-lance basis for the Commission . It is true that that work could be done at home, but it is equally beyond dispute that it required the applicant to be in contact with Luxembourg continuously .

A recent judgment of the Second Chamber ( Case 330/85 Richter v Commission, referred to above ) concerned a dispute regarding the applicability of Article 4*(1)*(b ) which in a number of aspects resembles this case . Mr Richter, too, had worked for the Commission as a "trainee" or as a free-lance translator and had left the Grand Duchy to study abroad; the Court held that he could not rely on such circumstances in order to establish an interruption in his social and occupational links with Luxembourg and thus entitle him to the allowance .

In conclusion, it is clear that since September 1980 - that is to say since the beginning of her first employment - Mrs Urhausen has "habitually resided" in Luxembourg and carried on her "main occupation" there as, successively, a teacher, a court expert and a free-lance translator . Indeed, since the applicant has had no employment outside the Grand Duchy, it may be said that all her occupational activity until April 1984 was carried on in Luxembourg .

5 . As I have already pointed out, the applicant puts forward two pieces of evidence in support of her argument : the apartment she owns in Munich and the certificate of residence issued by the municipal authorities there . Let me say right away that the second is of little or no weight . Regardless of what counsel for the applicant may have said, it is clear that the Aufenthaltsbescheinigung simply reproduces the information contained in the register of inhabitants, and as a rule the correctness of that information is not checked .

The first argument is equally fragile . The fact that one is the owner of property in no way implies that one lives in the place where that property is situated, especially where a third party ( in our case, the applicant' s grandfather ) has the use of that property . It may be added that, as the application itself shows, Mrs Urhausen and her husband rented an apartment in the city of Luxembourg and gave the Commission its address when Mrs Urhausen was appointed to a post there . In view of the fact that Mrs Urhausen' s mother owns a house in Luxembourg, it is clear that the couple would not have needed to rent an appartment in Luxembourg if they had not been obliged to live there on a continuous basis .

6 . In the light of the foregoing considerations I propose that the Court should dismiss Mrs Urhausen' s action against the Commission of the European Communities and order the parties to bear their own costs in accordance with Article 70 of the Rules of Procedure .

(*) Translated from the Italian .