FAR AS EXPATRIATION IS CONCERNED BETWEEN HIS SITUATION AS A FOREIGNER WHO AT THE TIME OF HIS RECRUITMENT HAD RESIDED FOR MORE THAN FIVE YEARS AND SIX MONTHS IN THE COUNTRY IN WHICH HE IS EMPLOYED , AND THAT OF AN OFFICIAL WHO HAD RESIDED THERE FOR A SHORTER TIME , OR WHO , ALTHOUGH HAVING ALSO RESIDED FOR MORE THAN FIVE YEARS AND SIX MONTHS IN THE COUNTRY IN WHICH HE IS EMPLOYED , PERFORMED DUTIES IN THE SERVICE OF ANOTHER STATE OR OF AN INTERNATIONAL ORGANIZATION . MOREOVER , HE SAYS , THE COUNCIL HAD ITSELF ACKNOWLEDGED THIS DISCRIMINATION VITIATING THE CONTESTED PROVISION BY GRANTING A FOREIGN RESIDENCE ALLOWANCE TO AN OFFICIAL WHO IS NOT AND NEVER HAS BEEN A NATIONAL OF THE STATE IN WHOSE TERRITORY THE PLACE WHERE HE IS EMPLOYED IS SITUATED AND WHO DOES NOT FULFIL THE CONDITIONS LAID DOWN BY ARTICLE 4 ( 1 ) OF ANNEX VII TO THE STAFF REGULATIONS ; BUT THAT ALLOWANCE MERELY REDUCED THE INEQUALITY WITHOUT REMOVING IT . IN ADDITION , THE APPLICANT IS OF THE OPINION THAT IT IS WRONG TO CONTEND THAT THE EXPATRIATION ALLOWANCE DEPENDS ESSENTIALLY ON THE CRITERION OF RESIDENCE SINCE IT IS ALSO PAYABLE EVEN WHEN AT THE TIME OF HIS RECRUITMENT THE OFFICIAL HAS ALREADY BEEN IN THE COUNTRY IN WHICH HE IS EMPLOYED EITHER FOR LESS THAN FIVE YEARS AND SIX MONTHS OR FOR A LONGER PERIOD , PROVIDED THAT HE PERFORMED DUTIES IN THE SERVICE OF ANOTHER STATE OR AN INTERNATIONAL ORGANIZATION . THIS BREACH OF A SUPERIOR RULE OF LAW MUST LEAD TO THE INAPPLICABILITY OF ARTICLE 4 ( 1 ) OF ANNEX VII TO THE STAFF REGULATIONS AND CONSEQUENTLY TO THE ANNULMENT OF THE COMMISSION ' S DECISION OF 26 SEPTEMBER 1979 .
5 IN ORDER TO DEAL WITH THAT SUBMISSION IT IS NECESSARY TO EXAMINE THE SYSTEM SET UP BY THE COMMUNITY LEGISLATURE .
6 THE PROVISIONS OF ARTICLE 4 CONSIDERED AS A WHOLE INDICATE THAT , WHILST THE COMMUNITY LEGISLATURE MADE THE FACT OF FOREIGN ORIGIN THE SOLE BASIS FOR THE GRANT OF THE FOREIGN RESIDENCE ALLOWANCE , FOR THE PURPOSES OF THE GRANT OF THE EXPATRIATION ALLOWANCE IT ADOPTED ACTUAL CHANGE OF RESIDENCE AS THE PRIMARY CRITERION AND REGARDED NATIONALITY AS MERELY OF SECONDARY IMPORTANCE .
7 THIS PRIMACY OF THE CRITERION OF RESIDENCE OVER THAT OF NATIONALITY IS CONFIRMED BY ARTICLE 4 ( 1 ) ( B ), WHEREBY THE EXPATRIATION ALLOWANCE IS EVEN GRANTED TO OFFICIALS WHO ARE NATIONALS OF THE COUNTRY IN WHICH THEY ARE EMPLOYED , PROVIDED THAT THEY RESIDED IN ANOTHER STATE DURING THE TEN YEARS PRECEDING THEIR RECRUITMENT .
8 FOR THE PURPOSE OF APPLYING THAT CRITERION THE REGULATIONS ESTABLISHED SPECIFIC CATEGORIES WITH FIGURES , RESULTING NECESSARILY IN THE NEED TO FIX APPROPRIATE LIMITS . IN FACT , THE CONDITION OF NON-RESIDENCE TAKES INTO ACCOUNT A PERIOD OF FIVE YEARS ENDING SIX MONTHS BEFORE ENTRY INTO THE SERVICE ; IN THIS REGARD AN EXCEPTION IS PROVIDED FOR IN