61978J0257

1 . OFFICIALS - EXPATRIATION ALLOWANCE - CONDITIONS OF PAYMENT - FAILURE TO EXERCISE THE OPTION OF RENOUNCING THE NATIONALITY , ACQUIRED BY MARRIAGE , OF THE MEMBER STATE IN WHICH THE OFFICIAL IS EMPLOYED - NO ENTITLEMENT TO THE ALLOWANCE - RETENTION OF THE NATIONALITY OF ORIGIN - NO RELEVANCE

( STAFF REGULATIONS , ANNEX VII , ART . 4 ( 1 ) ( A ))

2 . OFFICIALS - EXPATRIATION ALLOWANCE - CONDITIONS OF PAYMENT - RESIDENCE OUTSIDE THE MEMBER STATE IN WHICH THE OFFICIAL IS EMPLOYED - CONCEPT - PRIOR RESIDENCE IN THAT STATE BY REASON OF A PREVIOUS TERM OF SERVICE WITH THE COMMUNITIES - EXCLUSION

( STAFF REGULATIONS , ANNEX VII , ART . 4 ( 1 ) ( B ))

3 . NON-CONTRACTUAL LIABILITY - ACT FOR WHICH THE ADMINISTRATION IS LIABLE - CONCEPT - RECTIFICATION OF AN UNLAWFUL SITUATION - EXCLUSION

1 . AN OFFICIAL WHO IS ABLE TO RENOUNCE THE NATIONALITY ACQUIRED BY MARRIAGE OF THE MEMBER STATE IN WHICH SHE IS EMPLOYED BUT WHO CHOSE NOT TO EXERCISE THAT OPTION IS TO BE CONSIDERED AS BEING A NATIONAL OF THAT STATE WITHIN THE MEANING OF ARTICLE 4 ( 1 ) ( A ) OF ANNEX VII TO THE STAFF REGULATIONS , WHETHER OR NOT SHE RETAINS HER NATIONALITY OF ORIGIN . WHERE THE PERSON CONCERNED IS ABLE TO RENOUNCE THE NATIONALITY WHICH CAUSED HER TO LOSE THE BENEFIT OF THE EXPATRIATION ALLOWANCE , THERE IS NO REASON ASSOCIATED WITH THE PURPOSES FOR WHICH THAT ALLOWANCE WAS GRANTED FOR DISREGARDING THE FACT THAT , BY AN ACT OF HER OWN VOLITION SUBSEQUENT TO , BUT DISTINCT FROM THE MARRIAGE , THE OF- FICIAL DECIDED TO ASSUME THE NATIONAL- ITY OF THE PLACE IN WHICH SHE IS EM- PLOYED .

2 . ARTICLE 4 ( 1 ) ( B ) OF ANNEX VII TO THE STAFF REGULATIONS CANNOT BE INTERPRETED AS ALLOWING AN EARLIER PERIOD DURING WHICH THE OFFICIAL RESIDED IN THE MEMBER STATE IN WHICH THE OFFICIAL IS EMPLOYED BY REASON OF A PREVIOUS TERM OF SERVICE WITH THE COMMUNITIES TO BE TREATED AS A PERIOD OF RESIDENCE OUTSIDE THAT MEMBER STATE .

3 . AN ADMINISTRATIVE AUTHORITY WHICH REMEDIES AN UNLAWFUL SITUATION CANNOT BE CONSIDERED AS COMMITTING AN ACT WHICH IS WRONGFUL OR SUCH AS TO RENDER IT LIABLE .

IN CASE 257/78

EVELYN DEVRED , NEE KENNY-LEVICK , OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , ASSISTED AND REPRESENTED BY EDMOND LEBRUN , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER , ADVOCATE , 83 BOULEVARD GRANDE-DUCHESSE CHARLOTTE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , JOSEPH GRIESMAR , ACTING AS AGENT , ASSISTED BY DANIEL JACOB , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , LEGAL ADVISER TO THE COMMISSION , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF THE COMMISSION ' S DECISION TO WITHDRAW FROM THE APPLICANT THE EXPATRIATION ALLOWANCE AND FOR THE ANNULMENT OF THE IMPLIED DECISION REJECTING THE COMPLAINT SUBMITTED BY HER IN THAT REGARD ,

1 THE PRINCIPAL OBJECT OF THE APPLICATION IS THE ANNULMENT OF THE COMMISSION ' S DECISION TO WITHDRAW FROM THE APPLICANT , WITH EFFECT FROM 1 FEBRUARY 1978 , THE EXPATRIATION ALLOWANCE PROVIDED FOR IN ARTICLE 69 OF THE STAFF REGULATIONS FOR OFFICIALS OF THE EUROPEAN COMMUNITIES AND , ALTERNATIVELY : TO ENSURE , IN ANY EVENT , THAT PAYMENT OF THE EXPATRIATION ALLOWANCE IS CONTINUED UNTIL SUCH TIME AS THE APPLICANT SHALL HAVE REPAID A LOAN WHICH SHE CONTRACTED ON THE BASIS OF HER RESOURCES AS CONSTITUTED BY , INTER ALIA , THAT ALLOWANCE , OR TO ORDER THE COMMISSION TO PAY AN EQUIVALENT SUM AS COMPENSATION .

2 THE APPLICANT , WHO IS BRITISH BY BIRTH , MARRIED A BELGIAN CITIZEN IN BELGIUM ON 8 APRIL 1970 THEREBY AUTOMATICALLY ACQUIRING BELGIAN NATIONALITY . SHE HAD THE OPTION OF RENOUNCING IT BY MAKING AN AD HOC DECLARATION IN THE MANNER PRESCRIBED BY BELGIAN LAW , BUT DID NOT EXERCISE THAT OPTION , SO THAT SHE HAS DEFINITIVELY ACQUIRED BELGIAN NATIONALITY WITHOUT HAVING THEREBY LOST HER BRITISH NATIONALITY HOWEVER .

3 WHEN SHE WAS ENGAGED BY THE EUROPEAN COMMUNITIES IN MARCH 1967 SHE FULFILLED THE CONDITIONS FOR THE GRANTING OF AN EXPATRIATION ALLOWANCE , WHICH WAS IN FACT PAID TO HER WITHOUT INTERRUPTION UNTIL THE MOMENT SHE TERMINATED HER EMPLOYMENT BY RESIGNING WITH EFFECT FROM 19 JUNE 1972 .

4 ON 1 DECEMBER 1977 SHE ONCE AGAIN ENTERED THE SERVICE OF THE COMMUNITIES AT BRUSSELS . THE COMPETENT OFFICERS OF THE COMMISSION FIRST PAID HER THE EXPATRIATION ALLOWANCE BUT SHORTLY AFTERWARDS , TAKING THE VIEW THAT BECAUSE SHE HAD ACQUIRED BELGIAN NATIONALITY BY MARRIAGE SHE NO LONGER FULFILLED THE CONDITIONS FOR RECEIVING THE ALLOWANCE , THEY NOTIFIED HER THAT IT WAS TO BE WITHDRAWN WITH EFFECT FROM FEBRUARY 1978 .

THE APPLICATION FOR THE ANNULMENT OF THE DECISION

5 IN SO FAR AS THE APPLICATION SEEKS THE ANNULMENT OF THE DECISION AT ISSUE , IT IS BASED PRINCIPALLY ON THE INFRINGEMENT OF THE PROVISIONS OF SUBPARAGRAPH ( A ) OF ARTICLE 4 ( 1 ) OF ANNEX VII TO THE STAFF REGULATIONS AND OF THE GENERAL PRINCIPLE OF EQUALITY AND , IN THE ALTERNATIVE , ON THE INFRINGEMENT OF THE PROVISIONS OF SUBPARAGRAPH ( B ) OF THE SAME PARAGRAPH .

6 UNDER ARTICLE 62 OF THE STAFF REGULATIONS AN OFFICIAL ' S REMUNERATION COMPRISES ' ' BASIC SALARY , FAMILY ALLOWANCES AND OTHER ALLOWANCES ' ' . AMONGST THOSE ALLOWANCES , ARTICLE 69 PROVIDES FOR AN EXPATRIATION ALLOWANCE , DETAILED RULES FOR THE PAYMENT OF WHICH ARE LAID DOWN BY ARTICLE 4 ( 1 ) OF ANNEX VII TO THE STAFF REGULATIONS WHICH PROVIDES THAT THE ALLOWANCE SHALL BE PAID :

' ' ( A ) TO OFFICIALS :

- WHO ARE NOT AND HAVE NEVER BEEN NATIONALS OF THE STATE IN WHOSE EUROPEAN TERRITORY THE PLACE WHERE THEY ARE EMPLOYED IS SITUATED , AND

- WHO 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 . FOR THE PURPOSES OF THIS PROVISION , CIRCUMSTANCES ARISING FROM WORK DONE FOR ANOTHER STATE OR FOR AN INTERNATIONAL ORGANIZATION SHALL NOT BE TAKEN INTO ACCOUNT ;

( B ) TO OFFICIALS WHO ARE OR HAVE BEEN NATIONALS OF THE STATE IN WHOSE TERRITORY THE PLACE WHERE THEY ARE EMPLOYED IS SITUATED BUT WHO DURING THE TEN YEARS ENDING AT THE DATE OF THEIR ENTERING THE SERVICE HABITUALLY RESIDED OUTSIDE THE EUROPEAN TERRITORY OF THAT STATE FOR REASONS OTHER THAN THE PERFORMANCE OF DUTIES IN THE SERVICE OF A STATE OR OF AN INTERNATIONAL ORGANIZATION ' ' .

7 ARTICLE 21 ( 2 ) OF COUNCIL REGULATION NO 912/78 OF 2 MAY 1978 ( OFFICIAL JOURNAL L 119 , P . 1 ) ADDED TO ARTICLE 4 , INTER ALIA , A THIRD PARAGRAPH , WHICH WAS MADE APPLICABLE RETROACTIVELY WITH EFFECT FROM 1 JULY 1972 BY VIRTUE OF THE SECOND PARAGRAPH OF ARTICLE 35 OF REGULATION NO 912/78 . ARTICLE 4 ( 3 ) PROVIDES : ' ' FOR THE PURPOSES OF PARAGRAPHS 1 AND 2 , AN OFFICIAL WHO HAS BY MARRIAGE AUTOMATICALLY ACQUIRED AND CANNOT RENOUNCE THE NATIONALITY OF THE STATE IN WHOSE TERRITORY HE OR SHE IS EMPLOYED SHALL BE TREATED IN THE SAME WAY AS AN OFFICIAL COVERED BY THE FIRST INDENT OF PARAGRAPH 1 ( A ) ' ' .

THE INFRINGEMENT OF ARTICLE 4 ( 1 ) ( A ) OF ANNEX VII TO THE STAFF REGULATIONS AND OF THE PRINCIPLE OF EQUALITY

8 UNDER THE FIRST INDENT OF ARTICLE 4 ( 1 ) ( A ) OF ANNEX VII TO THE STAFF REGULATIONS , THE EXPATRIATION ALLOWANCE SHALL BE 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 ' ' .

9 IN ITS JUDGMENT OF 20 FEBRUARY 1975 IN CASE 21/74 ( AIROLA ( 1975 ) ECR 221 ) THE COURT ACKNOWLEDGED THAT ACCORDING TO THE GENERAL PRINCIPLE WHICH PROHIBITS ANY UNWARRANTED DIFFERENCE OF TREATMENT AS BETWEEN OFFICIALS ACCORDING TO WHETHER THEY ARE MALE OR FEMALE , THE FIRST INDENT OF ARTICLE 4 ( 1 ) ( A ), CITED ABOVE , SHOULD BE INTERPRETED AS MEANING THAT WHERE AN OFFICIAL RECEIVES THE EXPATRIATION ALLOWANCE ON THE BASIS OF THE FACT THAT HE OR SHE DOES NOT HAVE THE NATIONALITY OF THE STATE IN WHICH HE OR SHE IS EMPLOYED , THAT ALLOWANCE MAY NOT BE WITHDRAWN WHEN , AS A RESULT OF MARRIAGE WITH A NATIONAL OF THE MEMBER STATE WHERE THE OFFICIAL IS EMPLOYED , THE NATIONALITY OF THE SPOUSE IS AUTOMATICALLY IMPOSED ON HIM OR HER WITHOUT THE OFFICIAL BEING ABLE TO RENOUNCE IT .

10 IN A SECOND JUDGMENT DELIVERED ON THE SAME DAY , IN CASE 37/74 ( VAN DEN BROECK ( 1975 ) ECR 235 ), HOWEVER , THE COURT HELD THAT THE FIRST INDENT OF ARTICLE 4 ( 1 ) ( A ) CITED ABOVE , STILL APPLIES WHEN A FEMALE OFFICIAL IS ABLE TO RENOUNCE THE NATIONALITY SHE HAD ACQUIRED BY MARRIAGE , BUT CHOOSES NOT TO AVAIL HERSELF OF THAT OPPORTUNITY .

11 ACCORDING TO THE APPLICANT , THAT PROVISION SHOULD BE INTERPRETED , IN THE LIGHT OF THAT CASE-LAW , AS MEANING THAT SHE REMAINS ENTITLED TO RECEIVE THE EXPATRIATION ALLOWANCE EVEN THOUGH SHE DID NOT EXERCISE HER OPTION OF RENOUNCING THE BELGIAN NATIONALITY WHICH SHE ACQUIRED BY MARRIAGE . ACCOUNT IS IN FACT TO BE TAKEN OF THE FACT THAT SHE HAS RETAINED HER BRITISH NATIONALITY AND THAT CIRCUMSTANCE IS SUFFICIENT TO JUSTIFY CONTINUING PAYMENT OF THE EXPATRIATION ALLOWANCE .

12 THAT ARGUMENT MUST BE REJECTED . IN FACT WHERE THE PERSON CONCERNED WAS ABLE TO RENOUNCE THE NATIONALITY WHICH CAUSES HER TO LOSE THE BENEFIT OF THE EXPATRIATION ALLOWANCE , THERE IS NO REASON ASSOCIATED WITH THE PURPOSES FOR WHICH THAT ALLOWANCE WAS GRANTED FOR DISREGARDING THE FACT THAT , BY AN ACT OF HER OWN VOLITION SUBSEQUENT TO , BUT DISTINCT FROM , HER MARRIAGE , THE OFFICIAL DECIDED TO ASSUME THE NATIONALITY OF THE PLACE IN WHICH SHE IS EMPLOYED .

13 SECONDLY , THE APPLICANT CLAIMS THAT WHEN , AS A RESULT OF HER MARRIAGE , A FEMALE OFFICIAL , WHILST ACQUIRING A NEW NATIONALITY , RETAINS HER NATIONALITY OF ORIGIN AND THE LATTER ENTITLED HER TO THE EXPATRIATION ALLOWANCE , THE NATIONALITY OF ORIGIN SHOULD BE CONSIDERED AS THE PREPONDERANT NATIONALITY , THUS JUSTIFYING CONTINUANCE OF THE EXPATRIATION ALLOWANCE , OR IN ANY EVENT THAT THAT IS THE SOLUTION TO BE ADOPTED WHEN THE NATIONALITY OF ORIGIN APPEARS IN FACT TO BE THE ' ' EFFECTIVE ' ' NATIONALITY COMPARED WITH THE NATIONALITY ACQUIRED BY MARRIAGE .

14 THE CONCEPT OF EFFECTIVE NATIONALITY IS USED MAINLY IN PRIVATE INTERNATIONAL LAW IN ORDER TO RESOLVE POSITIVE CONFLICTS OF NATIONALITY . THE CONCEPT CANNOT BE TRANSFERRED TO A QUITE DIFFERENT SPHERE FROM THAT FOR WHICH IT WAS DEVELOPED , SPECIFICALLY THE SCOPE OF THE STAFF REGULATIONS FOR OFFICIALS OF THE COMMUNITIES , IN ORDER TO DETERMINE ENTITLEMENT TO RECEIVE THE EXPATRIATION ALLOWANCE , WHEN , APART FROM THE EXCEPTION EXPRESSLY PROVIDED FOR IN ARTICLE 4 ( 1 ) ( B ), AN OFFICIAL WHO HAS THE NATIONALITY OF THE PLACE IN WHICH HE IS EMPLOYED IS NOT ENTITLED TO THAT ALLOWANCE .

15 MOREOVER , EVEN IF THE APPLICANT ' S POINT OF VIEW WERE TO BE ADOPTED , IT SHOULD BE OBSERVED THAT SHE HAS FAILED TO SHOW THAT SHE IS CONSIDERED IN GREAT BRITAIN AS A ' ' PATRIAL ' ' , WHEREAS UNDER THE DECLARATION MADE BY THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND ON THE DEFINITION OF THE TERM ' ' NATIONALS ' ' ANNEXED TO THE FINAL ACT OF 22 JANUARY 1972 ON THE ACCESSION TO THE EUROPEAN COMMUNITIES OF THE NEW MEMBER STATES , THE TERM ' ' NATIONAL ' ' IS TO BE UNDERSTOOD , AS FAR AS THE UNITED KINGDOM IS CONCERNED , TO REFER ONLY TO PATRIALS AND TO GIBRALTARIANS .

16 THE APPLICANT FURTHER CLAIMS THAT WHEN AN OFFICIAL HAS DUAL NATIONALITY , THAT WHICH IS TO BE TAKEN INTO CONSIDERATION FOR THE GRANTING OF THE EXPATRIATION ALLOWANCE SHOULD BE THE NATIONALITY RELIED ON BY THE INSTITUTIONS FOR HER RECRUITMENT AND THE PROGRESS OF HER CAREER AND THAT IN THAT RESPECT SHE IS AND HAS ALWAYS BEEN CONSIDERED BY THOSE INSTITUTIONS AS BEING AN OFFICIAL OF BRITISH NATIONALITY .

17 THAT ARGUMENT CANNOT BE ACCEPTED . PAYMENT OF THE EXPATRIATION ALLOWANCE IS INDEPENDENT OF THE CONDITIONS IN WHICH THE CAREERS OF INDIVIDUAL OFFICIALS AND OTHER SERVANTS DEVELOP , FOR THOSE CONDITIONS MUST TAKE NO ACCOUNT OF CONSIDERATIONS BASED ON NATIONALITY .

INFRINGEMENT OF ARTICLE 4 ( 1 ) ( B ) OF ANNEX VII TO THE STAFF REGULATIONS

18 UNDER ARTICLE 4 ( 1 ) ( B ) OF ANNEX VII TO THE STAFF REGULATIONS , THE EXPATRIATION ALLOWANCE SHALL BE PAID ' ' TO OFFICIALS WHO ARE OR HAVE BEEN NATIONALS OF THE STATE IN WHOSE TERRITORY THE PLACE WHERE THEY ARE EMPLOYED IS SITUATED BUT WHO DURING THE TEN YEARS ENDING AT THE DATE OF THEIR ENTERING THE SERVICE HABITUALLY RESIDED OUTSIDE THE EUROPEAN TERRITORY OF THAT STATE FOR REASONS OTHER THAN THE PERFORMANCE OF DUTIES IN THE SERVICE OF A STATE OR OF AN INTERNATIONAL ORGANIZATION ' ' .

19 THE APPLICANT HAS NOT ESTABLISHED THAT SHE HAS EVER FULFILLED THE FACTUAL CONDITIONS LAID DOWN BY THE PROVISIONS OF THE ABOVEMENTIONED SUBPARAGRAPH ( B ) FOR PAYMENT OF THE EXPATRIATION ALLOWANCE .

20 MOREOVER , THE INTERPRETATION OF THAT PROVISION PUT FORWARD BY HER , WHICH IS TO BE APPLIED TO HER AND ACCORDING TO WHICH A PERIOD OF EMPLOYMENT AND RESIDENCE IN BELGIUM PRIOR TO HER SECOND ENGAGEMENT IS TO BE TREATED AS A PERIOD OF RESIDENCE OUTSIDE BELGIUM ON THE GROUND THAT THE PREVIOUS RESIDENCE WAS FOR REASONS CONNECTED WITH HER EMPLOYMENT IN THE SERVICE OF THE COMMUNITIES GIVES A MEANING TO SUBPARAGRAPH ( B ) WHICH IS CONTRARY TO ITS EXPRESS TERMS AND IRRECONCILABLE WITH BOTH THE WORDING AND THE AIMS OF THAT PROVISION .

THE REQUEST THAT PAYMENT OF THE EXPATRIATION ALLOWANCE SHOULD BE TEMPORARILY CONTINUED OR THAT DAMAGES SHOULD BE AWARDED

21 THE REQUEST FOR COMPENSATION WHICH , IN SUBSTANCE , THIS HEAD OF CLAIM CONSTITUTES IS FOUNDED ON THE ALLEGATION THAT THE APPLICANT TOOK OUT A LOAN FOR THE PURPOSE OF PURCHASING A DWELLING ON THE BASIS OF THE LEVEL OF HER INCOME INCLUDING THE EXPATRIATION ALLOWANCE AND THAT BY FIRST GRANTING THAT ALLOWANCE WHEN SHE WAS ENGAGED FOR THE SECOND TIME ONLY TO WITHDRAW IT AFTERWARDS , THE COMMISSION UPSET HER PLANS AND HAS THEREFORE COMMITTED A WRONGFUL ACT FOR WHICH THE APPLICANT SHOULD BE COMPENSATED .

22 THAT CLAIM MUST ALSO BE REJECTED . AN ADMINISTRATIVE AUTHORITY WHICH REMEDIES AN UNLAWFUL SITUATION CANNOT BE CONSIDERED AS COMMITTING AN ACT WHICH IS WRONGFUL OR SUCH AS TO RENDER IT LIABLE .

23 MOREOVER , EXAMINATION OF THE CASE AND THE DOCUMENTS PRODUCED BY THE APPLICANT IN THE COURSE OF THE ORAL PROCEEDINGS SHOW THAT SHE ENTERED INTO THE FINANCIAL COMMITMENTS INVOLVED IN THE LOAN TO WHICH SHE REFERS AT A TIME WHEN THE ALLOWANCE IN QUESTION HAD ALREADY BEEN WITHDRAWN FROM HER .

24 AS THE APPLICANT HAS FAILED IN HER SUBMISSIONS , THE APPLICATION MUST BE REJECTED .

COSTS

UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . AS THE APPLICANT HAS FAILED IN HER SUBMISSIONS , SHE MUST BE ORDERED TO PAY THE COSTS .

HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES , INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS EACH PARTY TO PAY ITS OWN COSTS .