61987J0284

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Officials - Final termination of service - Allowance - Weightings - Aim - Concept of residence - Centre of interests - Determination

( Council Regulation No 1679/85, Art . 3 ( 3 ) )

The concept of residence which makes it possible to determine, in accordance with Article 3 ( 3 ) of Regulation No . 1679/85, the weighting applicable to the allowance to which an official is entitled pursuant to that regulation on final termination of service must be understood as meaning the place in which the formal official has in fact established the centre of his interests . The weightings are designed to ensure that all former officials receive benefits which have the same purchasing power, irrespective of their place of residence .

In furnishing proof of residence, the person concerned may refer to all the factual circumstances which constitute residence and furnish whatever evidence he considers appropriate . Although an uninterrupted stay for most of the year or an official residence permit may, in that regard, constitute evidence of actual residence, those factors cannot in themselves be decisive where other evidence suggests that the centre of the former official' s interests is located elsewhere .

In Case 284/87

Oskar Schaeflein, 20 via al Roccolo, CH-6000 Massagno, represented by B . Potthast, H.-J . Rueber and A . Potthast, Rechtsanwaelte, Cologne, Federal Republic of Germany, with an address for service in Luxembourg at the Chambers of E . Arendt, 4 avenue Marie-Thérèse,

applicant,

v

Commission of the European Communities, represented by H . Etienne, Principal Legal Adviser at the Commission, with an address for service in Luxembourg at the office of G . Kremlis, a member of the Commission' s Legal Department, Jean Monnet Building, Kirchberg,

defendant,

APPLICATION for a declaration that the weighting for Switzerland should be applied to the allowance payable to the applicant,

THE COURT ( Second Chamber )

composed of : O . Due, President of Chamber, K . Bahlmann and T . F . O' Higgins, Judges,

Advocate General : G.F . Mancini

Registrar : B . Pastor, Administrator

having regard to the Report for the Hearing and further to the hearing on 15 June 1988,

after hearing the Opinion of the Advocate General delivered at the sitting on the same date,

gives the following

Judgment

1 By application lodged at the Court Registry on 24 September 1987, Mr Schaeflein, a former official of the Commission of the European Communities employed at the Joint Research Centre in Ispra ( Italy ), brought an action essentially for a declaration that he is entitled to have the weighting for Switzerland applied to his termination of service allowance .

2 After leaving the Commission' s service at the end of 1986 pursuant to Council Regulation ( ECSC, EEC, Euratom ) No 1679/85 of 19 June 1985 introducing special and temporary measures to terminate the service of certain officials in the scientific and technical services of the European Communities ( Official Journal 1985, L 162, p . 1 ), the applicant received a salary statement for January 1987 based on the weighting for Switzerland . In January 1987, however, the Commission informed him that in future it would no longer apply that weighting since he did not have his main residence in Switzerland .

3 Accordingly, as from February 1987, the applicant' s allowance was calculated on the basis of a lower weighting . On 15 April 1987 the applicant submitted a complaint against his salary statements for February and March 1987, in which he requested the Commission to apply the weighting for Switzerland to his salary for those two months and to pay him the difference . The Commission did not take a decision on that complaint . Subsequently, it withheld the sum of SFR 3 054.87 from his allowance on the ground that it had been overpaid to him in January 1987 .

4 In those circumstances the applicant brought this action in which he seeks essentially :

a declaration that the salary statements issued by the Commission for February and March 1987 are void in so far as the weighting applied to the allowance payable to him was other than that for Switzerland;

an order requiring the Commission to pay him the amount corresponding to the difference between the allowance actually paid and that to which he has been entitled since January 1987 by application of the weighting for Switzerland .

5 In support of his application, the applicant claims that Massagno in Switzerland is the centre of his interests . In those circumstances, it is irrelevant that, for the purposes of the Swiss rules on registration, his residence in Switzerland is described as "secondary" and that his "main" residence is his brother' s house in the Federal Republic of Germany, since he gave his brother' s address in Germany as his residence because he is not permitted to have his main residence in Switzerland until his 60th birthday . Until that time, he may lawfully spend only six months of the year in Switzerland .

6 The Commission contends that the application should be dismissed on the ground that if a retired official stays, as in this case, in several places, his place of residence must correspond to an uninterrupted stay covering the greater part of the year . The Commission' s practice is therefore to require proof of an uninterrupted stay of at least 185 days per year . The applicant himself acknowledges that he is not authorized to reside in Switzerland for more than 180 days per year . Furthermore, proof of residence in Switzerland should be furnished by way of an official residence permit, which has not so far been produced by the applicant .

7 Reference is made to the Report for the Hearing for a fuller account of the facts of the case and of the submissions and arguments of the parties, which are mentioned hereinafter only in so far as is necessary for the reasoning of the Court .

8 It should be borne in mind that, according to Article 3 ( 3 ) of Regulation No 1679/85, the allowance to which a former official is entitled pursuant to that regulation upon termination of service "shall be adjusted by the weighting fixed for the country inside or outside the Communities in which the recipient proves that he is resident ". It is common ground that the dispute between the parties is limited to the question whether or not the applicant has provided proof that he is resident in Switzerland .

9 In that regard, it must be pointed out in the first place that the concept of residence, within the meaning of the aforesaid provision, must be understood as meaning the place in which the former official has in fact established the centre of his interests . The geographical weightings applicable to the aforesaid allowance are designed to ensure that all former officials receive benefits which have the same purchasing power, irrespective of their place of residence .

10 Next, it must be emphasized that proof of residence means all the factual circumstances which constitute residence and that the former official may furnish for those purposes whatever supporting evidence he considers appropriate . Neither the wording nor the purpose of the aforesaid provision permits such evidence to be limited to the formal and quantitative factors which are relied upon by the Commission and which consist in the requirement of an uninterrupted stay of 185 days per year and in the production of an official residence permit .

11 Although those two factors may be regarded as evidence of actual residence, they alone cannot be regarded as of decisive importance where other evidence exists which suggests that the centre of the former official' s interests is in fact located elsewhere .

12 It must be added that an official residence permit has a specific function in connection only with national provisions on registration and it does not of itself prevent the permit holder from in fact having his actual residence elsewhere . With regard to the criterion of a 185-day stay, it is sufficient to note that, if it were applied to a former official who for more than half of the year travels or pays visits abroad, the official would as a result not be recognized as having any residence within the meaning of the aforesaid provision even if he undoubtedly had a centre of his interests .

13 Finally, with regard to the question whether the applicant furnished proof at the time when he lodged his complaint of 15 April 1987 that he was resident in Switzerland, it must be borne in mind that, as is clear from the documents before the Court, the Commission was aware at the time that the applicant had moved from Ispra to Massagno in 1981 . Furthermore, the applicant has stated, without being contradicted, both in the pre-litigation procedure and in the proceedings before the Court, in particular

that he owned an apartment in Massagno ( Switzerland ) which he had to maintain throughout the year and had to pay all the taxes, charges and expenses relating to it,

that the centre of his vital interests, where, in particular, he used the greater part of his financial resources, was in Massagno,

that he resided there, with interruptions, for 180 days of the year and that, in the intervening periods, he went abroad for lengthy stays with his brother and with friends or visited other countries as a tourist ( travel for leisure or study purposes ).

14 In those circumstances, it must be held that the applicant has furnished sufficient proof that he is resident in Switzerland and his application must therefore be allowed .

Costs

15 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 . As the defendant has failed in its submissions, it must be ordered to pay the costs .

On those grounds,

THE COURT ( Second Chamber )

hereby :

( 1 ) Declares the applicant' s salary statements issued by the Commission for February and March 1987 void in so far as the weighting applied to the allowance payable to him was other than that for Switzerland;

( 2 ) Orders the Commission to pay the applicant the amount corresponding to the difference between the allowance actually paid and that to which he has been entitled since January 1987 by application of the weighting for Switzerland;

( 3 ) Orders the Commission to pay the costs .