1.

On the substance of the application the applicant submits that he was habitually resident in Luxembourg from 1962 until he entered the service in 1979 and that consequently he is entitled to the expatriation allowance under Article 4 (1) (b) of Annex VII to the Staff Regulations. The fact that he fulfilled his obligation to perform military service does not affect his position. Nevertheless, even if it is assumed that the twenty-three months spent in Italy in performance of his military service did interrupt his period of habitual residence, the fact still remains that for at least fifteen years before he entered the service he resided in a Member State other than than in which he was later to be employed. The defendant, relying upon the wording of the provision in question, takes the contrary view that the applicant did not habitually reside in Luxembourg during the relevant ten-year period preceding his engagement at Ispra, that is to say from 3 September 1969 to 3 September 1979, because between 5 May 1970 and 15 April 1972 he performed his military service in Italy, the State in which he was later to be employed. He returned to his country of origin for that period and was able to feel “at home” with the result that even according to the meaning and purpose of the provision in question he is not entitled to an expatriation allowance. In my view, the defendant's contention is unconvincing for the following reasons: as the Court of Justice has made clear in a consistent line of decisions (cf. judgment of 20 February 1975 in case 21/74 Jeanne Airola ν Commission [1975] ECR 221, judgment of 20 February 1975 in Case 37/74 Chantal van den Broeck ν Commission [1975] ECR 235, judgment of 16 October 1980 in Case 147/79 René Hochstrass ν Court of Justice [1980] ECR 3005 and judgment of 15 January 1981 in Case 1322/79 Gaetano Vutera ν Commission [1981] ECR 127), it follows from the general scheme of Article 4 of Annex VII to the Staff Regulations that the official's habitual residence before he entered the service constitutes the paramount consideration in determining his entitlement to an expatriation allowance. As the Court of Justice has pointed out, in particular in the Airola and Van den Broeck cases, 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 change their residence. On the other hand, as was also stated in the above-mentioned cases, the nationality of officials is only a secondary consideration and serves only to define the effect of the length of their residence outside the territory within which they perform their duties. That means that under Article 4 (1) (b), in order to receive an expatriation allowance, officials who are nationals of the State in whose territory they perform their duties must have habitually resided outside the European territory of that State during the period of at least ten years ending at the date of their entering the service for reasons other than the performance of duties in the service of a State or of an international organization. If that is the case and if as a result of entering the service they are obliged to change their residence, they are entitled to an expatriation allowance. In this case it is common ground that from 1962 until 1970 the applicant resided in Luxembourg, that is to say, in a Member State other than that in which he is employed in the service and of which he is a national, and that after performing his military service, which is an obligation pertaining to his status as a national, he returned immediately to his original place of residence, where he remained until he entered the service. Consequently, the sole point at issue is whether the fact that the twenty-three months spent by the applicant in the performance of his military service within the period referred to by Article 4 (1) (b) can be a reason for refusing to pay him the expatriation allowance, to which he would have been entitled if he had not fulfilled his military obligations. Such a view must however be rejected on the basis of the general consideration, that, as is common knowledge, conscription for military service depends on a certain age-limit and that therefore the individual has in principle no choice as to when he will perform it. The defendant's interpretation would lead to a position where the applicant would be treated differently as regards the expatriation allowance depending on whether the period of military service, which he was obliged to perform regardless of his own wishes, lay outside or within the ten-year period in question. That surely cannot have been intended. Moreover, the applicant cannot be criticized for failing to take advantage of a possible dispensation from military service for Italian nationals living abroad. Even if there such a possibility of exemption, it would not alter the fact that the applicant fulfilled his obligation to perform military service, even if he did so only to avoid the adverse consequences of a failure to fulfil that obligation which might ensue if he were later to return to Italy. Finally, it is clear from Article 42 of the Staff Regulations that an official who is called up to perform military service prescribed by law must suffer no disadvantages relating to his employment other than the loss of his salary. As the applicant correctly maintains, that must also hold true for a person who has discharged his military service obligation before entering the service. Also unconvincing in that regard is the defendant's argument that the applicant is not entitled to an expatriation allowance because during the ten-year period he gave up his habitual residence in Luxembourg and lived in his native country amongst his fellow countrymen whilst performing his military service. It is self-evident — without the need for a definition of the term “habitually resident” contained in the provision in question — that a person who leaves his place of residence for a limited time in order to perform compulsory military service and afterwards immediately returns to it does not give up his original habitual residence, around which his life centres. Consequendy, even if, contrary to the view which I have expressed, account were to be taken only of the period of ten years immediately preceding his entering the service, his performance of compulsory military service cannot cast doubt on the fact that throughout that period he retained his habitual residence in the Grand Duchy of Luxembourg. In particular, support for a contrary view cannot, as the defendant suggests, be found in the Court's judgment of 15 February 1976 in Case 42/75 Jean Louis Deivaux ν Commission [1976] ECR 167. In that case, during the ten-year period preceding his entering the service of the Commission in Brussels the applicant, a Belgian national, resided initially in Belgium, the country in which be was later to be employed, and then performed his military service in the Belgian army, first in Germany and later in France with Shape. In view of those facts the Court held that during his military service the applicant could not be regarded as having been resident outside Belgium, the country in which he was domiciled before this service. Consequently, for the term of military service spent outside Belgium, he was treated as if he had performed that service and retained his residence in Belgium. However, in the present case it must be taken into account that, in contrast to the above-mentioned case, during the ten-year period before he took up employment the applicant was not resident in the country in which he was subsequently to be employed. Further, he was not resident in the country in whose armed forces he served. Moreover, quite apart from that this case does not concern the question how a national of a particular State is to be treated for the purpose of residence if he performs military service for his native country in another State. If the case cited above can provide any assistance at all in this case, it is only to the effect that in principle the performance of military service leaves residence unaffected. Consequently, since it is established that the applicant was resident outside the State in whose territory he performs his duties during a period of more than ten years ending at the date of his entering the service of the Communities and that he was obliged to change his residence as a result of entering the service, the application must be upheld.