CELEX: 61983CC0188
Language: en
Date: 1984-07-11
Title: Opinion of Mr Advocate General Mancini delivered on 11 July 1984. # Hermann Witte v European Parliament. # Official - Grant of expatriation allowance. # Case 188/83.

OPINION OF MR ADVOCATE GENERAL MANCINI
      DELIVERED ON 11 JULY 1984 (
            1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      
               1. 
            
            
               This action, brought on 6 September 1983, concerns the expatriation allowance which Hermann Witte, an employee of the European Parliament, claims should be paid to him by the Community administration.
               It should first be stated that that allowance is provided for by Article 69 of the Staff Regulations and is equal to 16% of the total of the basic salary, household allowance and dependent child allowance. Its payment is subject to the conditions laid down in Article 4 (1) of Annex VII to the Staff Regulations. According to that provision, it is awarded to officials who are nationals of a Member State other than the State in whose territory the place where they are amployed is situated and who “during the five years ending six months before they entered ”the ‘servite’ did not “habitually reside or carry on their main occupation within the European territory of that State”.
            
         
               2. 
            
            
               Mr Witte, a German national, was born in 1950 in Mainz, and came with his family to Luxembourg in 1958 when his father entered the service of the European Parliament. He recieved his elementary and secondary education in Luxembourg at the European School, which he attended until 1970, and in that year he married a Luxembourg national. He then went with his wife to Münster in the Federal Republic of Germany, where he attended the Faculty of Law at the University of Münster from October 1970 to December 1974 and passed the “erste juristische Staatsprüfung”. From March 1975 onwards Mr Witte and his wife lived in Luxembourg. In March and April of that year he took part in a training course in the Terminology Division of the European Parliament. Having been appointed “Rechtsrefe-rendar” by a decision of the president of the Oberlandesgericht Koblenz of 21 April 1975, Mr Witte worked in that capacity from 1 May 1975 to 30 September 1977; he worked in a lawyer's office in Trier, completed a training period in the secretariat of the European Parliament in Luxembourg, and after completing a course in Saarburg he passed the “zweite juristische Staatsprüfung”. He was then unemployed until 1 March 1979, when he found employment in Luxembourg with the Belgian company Burroughs.
               After being successful in a competition Mr Witte was appointed an official of the European Parliament on 17 May 1982. On the basis of the documents provided by him the Parliament decided that he had been habitually resident in Luxembourg during the period referred to in Article 4 (1) of Annex VII to the Staff Regulations, and was therefore not entitled to receive the expatriation allowance. Pursuant to Article 90 (1) of the Staff Regulations, Mr Witte then made a request for award of the allowance (14 July 1982); on the implied rejection of his request resulting from the administration's failure to reply, he made a complaint within the meaning of Article 90 (2) of the Staff Regulations on 11 February 1983. That complaint was rejected by a letter signed by the President of the Parliament on 6 September 1983, when the four month period laid down by that article had already expired.
            
         
               3. 
            
            
               As I have noted, the Staff Regulations provide that in orde to be entitled to the payment of the allowance, employees who are nationals of a Member State other than that in which they are employed must fulfil two conditions for an unbroken period of five years (in this case, from 17 November 1976 to 17 November 1981): (a) they must not habe habitually resided within the territory of the State where they are employed; (b) they must not have carried on their main occupation in that State. I should point out that those conditions are concurrent, and not alternative as the applicant argues.
               Before considering whether those conditions were met in this case, I think it useful to outline the way in which the administrative authority applied Article 4 of Annex VII.
               The Parliament's representative did not in fact provide the Court with sufficiently clear information on that point. From what we are given to understand, in July 1974 the heads of administration of the major Community institutions decided to give the provision of the Staff Regulations referred to a generous interpretation; they therefore decided to grant the allowance to employees who could show that their residence or employment in the Member State in which they were required to work had been interrupted for a period of six consecutive months, provided that that interruption did not take place at the beginning or at the end of the five-year period. That practice was altered by a decision of the same heads of administration on 18 March 1977. That is, they decided that the condition of six months' absence should no longer be regarded as a mandatory condition for the grant of the allowance but only as a fact which the administration would take into account in determining the habitual residence of the employee.
               The heads of administration were induced to make that change by the judgment of the Court of 17 February 1976 in Case 42/75, Delvaux v Commission, [1976] ECR 167. That case too concerned entitlement to the expatriation allowance ás provided for by Article 4 (1) (b) of Annex VII to the Staff Regulations. The Court was required to assess, for the purpose of the reference period (10 years in that case), certain periods during which an employee had lived abroad; it held that the employee was not entitled to the allowance and rejected the application since he had “lived outside the State in which he is employed for a period of less than 10 years ending on his entry into the service of the Communities” (paragraph 11). Since the employee had shown that he had lived abroad for more than eight years, it is obvious that the period laid down in the Staff Regulations cannot be derogated from or reduced, and the heads of administration of the Community institutions took note of that fact.
               It is worth mentioning a further change in the administrative practice regarding the expatriation allowance, which took place in Spring 1981. Until that time it appears that for the purposes of the allowance in question the various Community institutions did not differentiate between employees and their children and spouses. In practice, for the period during which they were resident in the Member State where their parent or spouse was employed (but in the case of children only until they reached 18 years of age), they were deemed not to reside in that State. The Court of Auditors considered that interpretation improper (Special Report on Expatriation and Foreign Residence Allowances, March 1981) and the heads of administration complied with its views. The Court will shortly be called upon to conside the lawfulness of that alteration in Case 246/83, De Angelis v Commission.
               
            
         
               4. 
            
            
               I therefore go on to consider the first of the two conditions laid down by the Staff Regulations. It requires the determination of the “abitazione abituale” [habitual residence] of the person concerned — an expression which is not only cacophonous (at least in Italian) but is technically imprecise and may raise problems of interpretation. According to the applicant the expression “abitazione” corresponds to the “domicile” of French law and to the “ständiger Wohnsitz” of German law: it is therefore the place in which a person actually lives and carries on his occupation. The Parliament's representative, on the other hand, understands “abitazione” as a mere factual situation, or, better, expressed as the place in which the person concerned leads his personal life and does not necessarily pursue his occupation.
               For my part, I think, having regard to other provisions of the Staff Regulations (cf. Article 20 together with Article 5 of Annex VII, which deal with the “installation” of the official and his family), that the expression in question must be interpreted as synonymous with “residenza”. (
                     2
                  ) The Court, moreover, has been of that view for some time. It has held that it must be inferred from the general scheme of Article 4 of Annex VII that that provision takes as its basic criterion for determining the right to the expatriation allowance the residence of the official prior to his entry into the service. The purpose of the allowance is in fact to alleviate the financial burdens to be borne by employees who, on entering the service of the Communities, are obliged to change their place of residence (see the judgments of 7.6.1972 in Case 20/71, Sabbatini v Parliament, [1972] ECR 345 and Case 32/71, Chollet (née Bauduin) v Commission, [1972] ECR 363; 20.2.1975 in Case 21/74, Airola v Commission, [1975] ECR 221, and Case 37/74, Van den Broeck v Commission, [1975] ECR 235; 16.10.1980 in Case 147/79, Hochstrass v Court of Justice, [1980] ECR 3005; and 15.1.1981 in Case 1332/79, Vutera v Commission, [1981] ECR 127).
               It is therefore necessary to examine the concept of residence. As the Court will recall, it has dealt with it in a series of judgments regarding social security for migrant workers, and has defined it as the “habitual or permanent centre of a person's interests”. A person may be said to reside in a place when he has occupational and emotional ties there; the length of time during which he stays is not decisive except in so far as it may be evidence of such ties (cf. the judgments of 12.7.1973 in Case 13/73, Angenieux v Hackenberg, [1973] ECR 935, and 17.2.1977 in Case 76/76, Di Paolo v Office National de l'Emploi, [1977] ECR 315; see also the opinion of Mr Advocate General Capotorti in the Di Paolo case).
               Unlike the determination of one's present address, therefore, residence is not a simple question of fact; the significant point is the intent to confer on it a stable basis. As a result one mayreside in a place even if only a few months are spent there; conversely, one may live in a place for a long time without its becoming one's residence. The latter is true, for example, where the person concerned prolongs his stay for purposes of study, work, medical treatment or recreation, but does not intend it to take on a stable character. On the other hand, his frequent returns to the place in which he formerly lived may indicate his intention to maintain the social links which he had established there, and in that way show that he intended and still intends to make his own residence there.
            
         
               5. 
            
            
               The problem of Mr Witte's “habitual residence” must be resolved on the basis of those simple criteria. The official believes that he fulfils the requirements of residence in the Federal Republic of Germany in view of the way in which the Parliament applies Article 4 (1) of Annex VII (six months' continuous residence during the five-year reference period in a Member State other than that in which the official is employed). More specifically, he states that during the period 17 November 1976 to 17 November 1981 he spent 39 months in Germany, where he: (a) worked as a Rechtsreferendar; (b) prepared for, then passed the “zweite juristische Staatsprüfung”; (c) sought employment. With regard in particular to the first of those activities, Mr Witte reminds the Court that according to German public service law a Rechtsreferendar must have a place of abode in the Federal Republic.
               That argument cannot however be accepted. It is true that during the reference period the applicant stayed in Germany in order to prepare for the “zweite juristische Staatsprüfung”; it is equally true that that nine-month stay had no effect on the question of Mr Witte's habitual residence. That is, it does not seem that, while preparing for the examinations, he intended to establish the permanent centre of his interests in the Federal Republic. That is shown by at least three circumstances :
               
                        (a)
                     
                     
                        the matrimonial home, established by him in Luxembourg in March 1975, was not moved;
                     
                  
                        (b)
                     
                     
                        his wife did not go with him, as she had done when he was studying at the University of Münster;
                     
                  
                        (c)
                     
                     
                        during his stays in Germany he always stayed in hotels or with relatives.
                     
                  Nor do the periods spent in Germany in search of employment affect the issue of Mr Witte's residence. I think Mr Advocate General Warner's remarks in his opinion in the Delvaux case are relevant here: “To go to a country to investigate the possibilities of ... living there is ... consistent with residence there later”, but cannot by itself be regarded as residence ([1976] ECR 167 at p. 179).
               As to the argument which the applicant based on German public service law, I note that in Germany, too, the rules distinguish between address and residence, and I would refer to a passage in the decision by which the President of the Oberlandesgericht Koblenz appointed Mr Witte as Rechtsreferendar. It states : “I accept your waiver of removal, transportation and separation allowances for the duration of your training, with the exception of the introductory and final courses. During those courses you may claim costs from Trier only”. The Court invited Mr Witte to shed light on that passage, but received no convincing explanation. It seems to me obvious, however, that it must be understood as a reply to a request by Mr Witte to be permitted to maintain his residence in Luxembourg. Only the intention to continue to reside in the Grand Duchy can explain his being willing not to move to Germany and to claim the resulting allowance.
               Finally, the argument relating to the practice in applying Article 4 (1) of Annex VII seems to me to be very fragile, if not downright irrelevant. I doubt very much if that practice was correct, above all in view of the Court's judgment in the Delvaux case. But even supposing that the practice was a proper one and that the administration was still following it when Mr Witte was employed, he is precluded from relying on it. Even when reduced from five years to six months, it required a period of residence in a State other than that in which the place of employment was situated. As has been seen, however, Mr Witte's numerous stays in Germany do not entail “residence” there in the technical sense of the expression.
            
         
               6. 
            
            
               The applicant, then, has not shown that he fulfilled the first of the two conditions laid down in Article 4 of Annex VII. It is not therefore necessary for me to examine the question whether he fulfilled the condition regarding the place of his “main occupation”. For the sake of completeness, however, I shall go into that question also.
               According to Mr Witte, his main occupation during the reference period was that of Rechtsreferendar; conversely, his employment in Luxembourg with the Burroughs undertaking was a casual one which had no relation to his legal studies or professional training. The Parliament takes the opposite view. In its opinion, it is his employment with Burroughs which must be considered riis main occupation. His post as a Rechtsreferendar was merely a paid training period which German law requires as the indispensible complement of legal studies and a prerequisite for practising as a notary or Rechtsanwalt or becomming a judge.
               The applicant's argument is unfounded. Two points may be made against it. The first is that, in defining the concept of“main occupation”, the Staff Regulations do not by any means require that the duties carried out be commensurate with the education of the person concerned (to take an extreme example: there is no reason why the main occupation of a physics graduate should not be that of streetsweeper). The second is that, by the nature of the work required of him, a Rechtsreferendar is not yet engaging in an occupation but is only preparing for one, even though he is paid.
            
         
               7. 
            
            
               On the basis of all the foregoing observations I propose that the Court dismiss the action brought by application of 6 September 1983 against the European Parliament by Hermann Witte.
               In view of the nature of the action, moreover, my view is that each party should bear its own costs.
            
         (
            1
         )	Translated from the Italian.
      (
            2
         )	Translator's note: the expressions “abitazione” and “residenza” are both rendered in the English version as “residence”.