61983J0188

1 . OFFICIALS - REMUNERATION - EXPATRIATION ALLOWANCE - OBJECT - CONDITIONS GOVERNING GRANT - CUMULATIVE

( STAFF REGULATIONS OF OFFICIALS , ANNEX VII , ART . 4 ( 1 ))

2 . OFFICIALS - REMUNERATION - EXPATRIATION ALLOWANCE - LACK OF ENTITLEMENT - HABITUAL RESIDENCE OUTSIDE THE MEMBER STATE TO WHICH THE OFFICIAL IS POSTED - TEMPORARY RESIDENCE OUTSIDE THAT STATE - CIRCUMSTANCES NOT AFFECTING HABITUAL NATURE OF RESIDENCE

( STAFF REGULATIONS OF OFFICIALS , ANNEX VII , ART . 4 ( 1 ))

1 . THE EXPATRIATION ALLOWANCE IS INTENDED TO COMPENSATE OFFICIALS FOR THE SPECIAL EXPENSE AND INCONVENIENCE RESULTING FROM TAKING UP EMPLOYMENT WITH THE COMMUNITIES AND BEING THEREBY OBLIGED TO CHANGE THEIR RESIDENCE . AN OFFICIAL WHO IS NOT AND HAS NEVER BEEN A NATIONAL OF THE STATE IN WHOSE TERRITORY THE PLACE WHERE HE IS EMPLOYED IS SITUATED CAN THEREFORE CLAIM THE ALLOWANCE ONLY IF HE HAS NEITHER HABITUALLY RESIDED NOR CARRIED ON HIS MAIN OCCUPATION WITHIN THE EUROPEAN TERRITORY OF THAT STATE .

2 . SPORADIC AND BRIEF ABSENCES FROM THE COUNTRY OF EMPLOYMENT , NOT ACCOMPANIED BY AN INTENTION ON THE PART OF THE PERSON CONCERNED TO ESTABLISH THE PERMANENT CENTRE OF HIS INTERESTS IN ANOTHER STATE , CANNOT BE CONSIDERED SUFFICIENT TO DEPRIVE THE OFFICIAL ' S RESIDENCE IN THE STATE OF EMPLOYMENT OF ITS HABITUAL NATURE WITHIN THE MEANING OF THE STAFF REGULATION AND THUS ENTITLE HIM TO PAYMENT OF THE EXPATRIATION ALLOWANCE .

IN CASE 188/83

HERMANN WITTE , AN OFFICIAL OF THE EUROPEAN PARLIAMENT , RESIDING AT OLM , GRAND DUCHY OF LUXEMBOURG , REPRESENTED BY VICTOR BIEL , OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE AT THE LATTER ' S CHAMBERS , 18 A RUE DES GLACIS ,

APPLICANT ,

V

EUROPEAN PARLIAMENT , REPRESENTED BY MANFRED PETER , HEAD OF THE LEGAL AND ADMINISTRATIVE QUESTIONS DIVISION , ASSISTED BY ALEX BONN , OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE AT THE LATTER ' S CHAMBERS , 22 COTE D ' EICH ,

DEFENDANT ,

APPLICATION FOR THE GRANT OF THE EXPATRIATION ALLOWANCE PROVIDED FOR IN ARTICLE 4 OF ANNEX VII TO THE STAFF REGULATIONS OF OFFICIALS ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 8 SEPTEMBER 1983 , HERMANN WITTE , AN OFFICIAL OF THE EUROPEAN PARLIAMENT SINCE 17 MAY 1982 AND EMPLOYED IN THAT CAPACITY IN LUXEMBOURG , BROUGHT AN ACTION FOR THE GRANT OF THE EXPATRIATION ALLOWANCE PROVIDED FOR IN ARTICLE 4 ( 1 ) OF ANNEX VII TO THE STAFF REGULATIONS OF OFFICIALS .

2 PURSUANT TO THAT PROVISION AN EXPATRIATION ALLOWANCE , EQUAL TO 16% OF THE TOTAL AMOUNT OF THE BASIC SALARY AND OF CERTAIN ALLOWANCES , IS PAID TO OFFICIALS ' ' WHO ARE NOT AND HAVE NEVER BEEN NATIONALS OF THE STATE IN WHOSE TERRITORY THE PLACE WHERE THEY ARE EMPLOYED IS SITUATED , AND WHO DURING THE FIVE YEARS ENDING SIX MONTHS BEFORE THEY ENTERED THE SERVICE ' ' , IN THIS CASE THE PERIOD 17 NOVEMBER 1976 TO 17 NOVEMBER 1981 , ' ' DID NOT HABITUALLY RESIDE OR CARRY ON THEIR MAIN OCCUPATION WITHIN THE EUROPEAN TERRITORY OF THAT STATE ' ' .

3 THE APPLICANT CONSIDERS THAT HE FULFILS THE CONDITIONS REFERRED TO FOR THE GRANT OF THE EXPATRIATION ALLOWANCE ; HE SUCCESSIVELY MADE A REQUEST , IN ACCORDANCE WITH ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS , FOR THE GRANT OF THE ALLOWANCE , AND ON THE REJECTION OF THAT REQUEST , A COMPLAINT IN ACCORDANCE WITH ARTICLE 90 ( 2 ). THE COMPLAINT ALSO WAS REJECTED AND THE APPLICANT HAS THEREFORE BROUGHT THIS ACTION .

4 IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT THE APPLICANT , WHO IS OF GERMAN NATIONALITY AND HAS NEVER HELD LUXEMBOURG NATIONALITY , HAS BEEN RESIDENT IN THE GRAND DUCHY OF LUXEMBOURG SINCE 1958 , SINCE HIS FATHER WAS EMPLOYED THERE AS AN OFFICIAL OF THE EUROPEAN PARLIAMENT . IN MARCH 1975 THE APPLICANT ESTABLISHED HIS MATRIMONIAL HOME IN LUXEMBOURG . DURING THE FIVE-YEAR PERIOD IN QUESTION , THAT IS , BETWEEN 17 NOVEMBER 1976 AND 17 NOVEMBER 1981 , HE HELD THE POST OF RECHTSREFERENDAR IN THE FEDERAL REPUBLIC OF GERMANY UNTIL SEPTEMBER 1977 , AND RESIDED THERE FOR THAT PURPOSE FROM 17 NOVEMBER UNTIL THE END OF NOVEMBER 1976 , FROM 1 MARCH TO 28 APRIL 1977 AND FROM MID-MAY UNTIL THE END OF AUGUST 1977 . DURING ALL THOSE PERIODS OF RESIDENCE IN THE FEDERAL REPUBLIC OF GERMANY , HOWEVER , HE MAINTAINED HIS MATRIMONIAL HOME IN LUXEMBOURG .

5 THE APPLICANT WAS SUBSEQUENTLY UNEMPLOYED FROM OCTOBER 1977 UNTIL THE END OF FEBRUARY 1979 ; DURING THAT TIME HE AND HIS FAMILY ONCE MORE LIVED IN LUXEMBOURG , EXCEPT FOR A PERIOD OF THREE OR FOUR MONTHS , FROM NOVEMBER OR DECEMBER 1977 UNTIL THE END OF FEBRUARY 1978 , DURING WHICH HE LOOKED FOR WORK IN THE FEDERAL REPUBLIC OF GERMANY . FINALLY , FROM 1 MARCH 1979 TO 17 NOVEMBER 1981 , THE END OF THE REFERENCE PERIOD , HE WAS EMPLOYED BY A PRIVATE FIRM IN LUXEMBOURG AND LIVED THERE WITH HIS FAMILY .

6 THE APPLICANT ARGUES FRIST THAT THE PARLIAMENT INFRINGED THE STAFF REGULATIONS OF OFFICIALS IN REFUSING TO GRANT HIM THE EXPATRIATION ALLOWANCE . THE CONDITIONS LAID DOWN BY THE RELEVANT PROVISION OF THE STAFF REGULATIONS , THAT IS , THAT THE OFFICIAL CONCERNED MUST NOT HAVE HABITUALLY RESIDED OR CARRIED ON HIS MAIN OCCUPATION WITHIN THE TERRITORY OF THE PLACE IN WHICH HE IS EMPLOYED , ARE , HE SAYS , ALTERNATIVE CONDITIONS , AND IT IS SUFFICIENT TO FULFIL ONE OF THEM IN ORDER TO BE ENTITLED TO THE ALLOWANCE . IN THIS CASE THE APPLICANT CONTENDS THAT HE FULFILS BOTH CONDITIONS .

7 ACCORDING TO THE EUROPEAN PARLIAMENT , ON THE OTHER HAND , NEITHER OF THE TWO SITUATIONS REFERRED TO IN THE RELEVANT PROVISION MUST EXIST IN THE CASE OF THE OFFICIAL CONCERNED . THE PARLIAMENT CONTENDS THAT THE APPLICANT BOTH HABITUALLY RESIDED AND CARRIED ON HIS MAIN OCCUPATION IN LUXEMBOURG .

8 IT IS CLEAR FROM THE OBJECT OF THE RELEVANT PROVISION OF THE STAFF REGULATIONS AND FROM ITS WORDING IN THE VARIOUS LANGUAGES THAT THE EXPARTRIATION ALLOWANCE MAY BE GRANTED ONLY WHERE NEITHER OF THE SITUATIONS REFERRED TO IS ESTABLISHED . AS THE COURT HAS REPEATEDLY HELD ( SEE INTER ALIA THE JUDGMENT OF 20 . 2 . 1975 , CASE 21/74 AIROLA ( 1975 ) ECR 221 ), THE EXPATRIATION ALLOWANCE IS INTENDED TO COMPENSATE OFFICIALS FOR THE SPECIAL EXPENSE AND INCONVENIENCE RESULTING FROM TAKING UP EMPLOYMENT WITH THE COMMUNITIES AND BEING THEREBY OBLIGED TO CHANGE THEIR RESIDENCE . THE APPLICANT CAN THEREFORE CLAIM THE ALLOWANCE ONLY IF HE HAS NEITHER HABITUALLY RESIDED NOR CARRIED ON HIS MAIN OCCUPATION IN LUXEMBOURG .

9 IN THIS CASE IT IS SUFFICIENT TO FIND THAT THE APPLICANT MAINTAINED HIS PERMANENT RESIDENCE IN LUXEMBOURG DURING THE WHOLE OF THE REFERENCE PERIOD AND THAT HIS RESIDENCE THERE WAS INTERRUPTED ONLY BY A FEW BRIEF PERIODS THE LONGEST OF WHICH WAS THREE OR FOUR MONTHS AND WHICH ALTOGETHER DID NOT EXCEED NINE OR 10 MONTHS .

10 THE TRANSIENT NATURE OF THOSE PERIODS DURING WHICH HE STAYED OUTSIDE LUXEMBOURG IS MADE ALL THE MORE CLEAR BY THE FACT THAT DURING THOSE PERIODS THE APPLICANT STAYED EITHER WITH A MEMBER OF HIS FAMILY OR IN AN HOTEL , AND THAT HE WAS NOT ACCOMPANIED BY HIS WIFE . THAT APPEARS FROM THE STATEMENTS PROVIDED BY THE APPLICANT HIMSELF AND FROM THE DECISION OF THE PRESIDENT OF THE OBERLANDESGERICHT KOBLENZ APPOINTING HIM RECHTSREFERENDAR , WHICH SHOWS THAT THE APPLICANT HAD WAIVED HIS RIGHT TO REMOVAL , TRANSPORTATION AND SEPARATION ALLOWANCES FOR THE DURATION OF THAT EMPLOYMENT , WITH THE EXCEPTION OF CERTAIN TRAINING COURSES ORGANIZED IN CONNECTION WITH HIS WORK .

11 SUCH SPORADIC AND BRIEF ABSENCES FROM THE COUNTRY OF EMPLOYMENT , WHICH MOREOVER WERE NOT ACCOMPANIED BY ANY INTENTION ON THE PART OF THE PERSON CONCERNED TO ESTABLISH THE PERMANENT CENTRE OF HIS INTERESTS IN ANOTHER STATE , CANNOT BE CONSIDERED SUFFICIENT TO DEPRIVE THE APPLICANT ' S RESIDENCE IN THE STATE OF EMPLOYMENT OF ITS HABITUAL NATURE WITHIN THE MEANING OF THE RELEVANT PROVISION OF THE STAFF REGULATIONS .

12 SINCE THE APPLICANT THEREFORE HABITUALLY RESIDED IN LUXEMBOURG DURING THE PERIOD IN QUESTION , THE ARGUMENT ALLEGING INFRINGEMENT OF THE STAFF REGULATIONS MUST BE REJECTED , AND IT IS NOT NECESSARY TO EXAMINE WHETHER OR NOT THE APPLICANT ALSO HABITUALLY CARRIED ON HIS MAIN OCCUPATION IN LUXEMBOURG DURING THAT PERIOD .

13 AS A FURTHER BASIS FOR HIS CLAIM THE APPLICANT ALLEGES A BREACH OF THE PRINCIPLE OF EQUAL TREATMENT . HE SUBMITS THAT IT WAS THE SETTLED ADMINISTRATIVE PRACTICE OF THE COMMUNITY INSTITUTIONS , IN APPLYING THE DISPUTED PROVISION OF THE STAFF REGULATIONS , TO CONSIDER AN ABSENCE FROM THE COUNTRY OF EMPLOYMENT OF SIX MONTHS DURING THE REFERENCE PERIOD AS SUFFICIENT TO ENTITLE THE OFFICIAL CONCERNED TO THE EXPATRIATION ALLOWANCE . AS A MATTER OF SETTLED PRACTICE , MOREOVER , THE MEMBERS OF THE FAMILY OF COMMUNITY OFFICIALS WHO HAVE ACCOMPANIED THOSE OFFICIALS TO THE STATE IN WHICH THEY WERE EMPLOYED ARE CONSIDERED NOT TO HAVE RESIDED IN THAT STATE FOR THE PURPOSE OF THE GRANT OF THE EXPATRIATION ALLOWANCE .

14 DURING THE PROCEEDINGS THE EUROPEAN PARLIAMENT STATED IN THAT REGARD THAT ALTHOUGH THE HEADS OF THE ADMINISTRATION OF THE COMMUNITY INSTITUTIONS HAD AGREED IN 1974 THAT THE EXPATRIATION ALLOWANCE SHOULD BE GRANTED WHERE THE OFFICIAL CONCERNED HAD BEEN CONTINUOUSLY ABSENT FROM THE STATE OF EMPLOYMENT FOR A LEAST SIX MONTHS DURING THE FIVE YEARS IN QUESTION , THAT PRACTICE WAS ALTERED IN 1977 IN FAVOUR OF A MORE FLEXIBLE APPROACH BETTER SUITED TO THE SPECIAL CIRCUMSTANCES OF EACH CASE . FURTHERMORE , THE PRACTICE OF ASSIMILATING OFFICIALS OF INTERNATIONAL ORGANIZATIONS TO THEIR SPOUSES AND CHILDREN UNDER 18 YEARS OF AGE FOR THE PURPOSE OF THE GRANT OF THE EXPATRIATION ALLOWANCE WAS DISCONTINUED IN 1981 FOLLOWING A REPORT BY THE COURT OF AUDITORS .

15 APART FROM THE FACT THAT NO PERSON MAY RELY , IN SUPPORT OF HIS CLAIM , ON AN UNLAWFUL ACT COMMITTED IN FAVOUR OF ANOTHER , IT CANNOT BE CONLUDED IN THE CIRCUMSTANCES OF THIS CASE THAT IN REFUSING TO GRANT THE EXPATRIATION ALLOWANCE TO THE APPLICANT THE EUROPEAN PARLIAMENT DEPARTED FROM AN ADMINISTRATIVE PRACTICE WHICH WAS STILL IN FORCE AT THE TIME OF THE DECISION IN QUESTION . THE ARGUMENT ALLEGING A BREACH OF THE PRINCIPLE OF EQUAL TREATMENT MUST THEREFORE ALSO BE REJECTED .

16 FOR THOSE REASONS THE APPLICATION MUST BE DISMISSED .

COSTS

17 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING .

18 HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , THE INSTITUTIONS ARE TO BEAR THEIR OWN COSTS INCURRED IN PRCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES .

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .