C-33/72

MONIQUE GUNNELLA, an official of the Commission of the European Com­ munities, resident at Via Alberto 17, in Ranco (Varese, Italy), represented by Marcel Slusny, advocate at the Brussels Court of Appeal, having chosen her address for service in Luxembourg c/o Mlle Victoria Zandona, 1 rue Gillaume Schneider,

applicant,

v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its legal adviser, Pierre Lamoureux, acting as agent, having chosen its address for service in Luxembourg at the office of its legal adviser Emil Reuter, 4 boulevard Royal,

defendant,

Application for the grant of expatriation allowance

JUDGMENT

Issues of fact and of law

I — Facts and procedure service of the Commission of the European Communities and posted to The facts and procedure may be the Joint Research Centre at Ispra in summarized as follows: Italy. The applicant was born at Calais On this occasion the several components (France) in 1925 of an Italian father and of her remuneration were fixed by a a French mother. She had dual decision of 5 October 1965. A copy of nationality, Italian and French, until, on this decision was filed in the personal file attaining her majority in 1946, she of the applicant, and another copy was elected for French nationality. sent to her, according to the note at the foot of this document. This After passing most of her youth in Italy, administrative document contains a where she declares she was resident from series of items of information 1930 to 1945, the applicant returned to appropriate to fix the individual status live in that country in 1949. After being of the official: category, grade, recruited by the Allied High Commission incremental step and seniority, and in for Germany, she was employed in addition the basic salary and allowances Rome by that organization until August he is legally entitled to claim. An 1951. For the next ten years she examination of this document shows continued to live in that city, where she that under the symbol 'ID', meaning worked as a secretary at the French expatriation allowance, there was Embassy. written 'no'. On 1 April 1961 she was engaged by the By letter dated 30 August 1971, Commission of the European Atomic addressed to the Directorate of Energy Community as a shorthand-typist Personnel of the Commission, the and posted to Brussels. After being applicant asked for payment of the granted special leave she returned to expatriation allowance provided for in Rome on 15 November 1962 to work Article 69 of the Staff Regulations, on there in the accounts department of the the basis of Article 4 of Annex VII to the French Ministry of Finance. Regulations, which reads: On 20 September 1965 at her own '1. An expatriation allowance shall be request she was taken back into the paid equal to 16% of the total

service of a State or of an In addition the applicant asks that the international organization, Commission be ordered to pay the costs. ......'

The Commission asks that the

By letter dated 9 March 1972, the application be rejected as unfounded and Directorate of Personnel replied that the that the applicant be ordered to pay the costs. expatriation allowance asked for could not be granted so long as she remained posted to Ispra. Her case was considered to be governed by the provisions of III — Pleas and arguments sub-paragraph (b) of the first paragraph of the parties of Article 4, since she had not only been of French nationality but also of Italian The pleas and arguments of the parties nationality until the age of 21. may be summarized as follows: Moreover, since she had lived in Italy from 1949 to 1961 — that is for the last A — Admissibility twelve years before entering the service of the European Communities — she did In the course of the oral proceedings, the not fulfil the condition expressly Commission raised two pleas of

JUDGMENT OF 8.5. 1973 — CASE 33/72

B — Merits The applicant should therefore have contested that decision of 5 October 1965, either by a complaint through 1. First plea: Infringement of Article 4 official channels within two months or (1) (a) of Annex VII to the Staff by an appeal to the Court of Justice Regulations. within three months, under the provisions of Article 91 of the Staff The applicant maintains that her case Regulations then in force. should be governed not by Article 4 (1) (b) of Annex VII to the Staff Regulations The Commission secondly maintains but by sub-paragraph (a) of the same that, in accordance with the

nationality. The position is different made against the express rejection of when, as in the present case, an her request on 9 March 1972. The Court involuntary dual nationality is at issue, a has ruled on several occasions that fortiori when as here the applicant applications made against express renounced her dual nationality as soon rejections, which have become final by as the law enabled her to do so. reason of not being contested within the time limit for contentious applications, The application of sub-paragraph (b) of are inadmissible. the above-mentioned Article to such a case is not only unjust but would also The applicant counters by saying that an lead to inequality of treatment as official cannot be prevented from raising between officials. Following this line of a personal problem on the basis of a thought, the applicant invokes the fresh submission.

GUNNELLA v COMMISSION

It was provision, viz. to prevent officials not until 20 September 1965 that she fabricating schemes concerning national took up duty at Ispra in Italian territory, ity with a view to obtaining the benefit and it was the taking up of this of an expatriation allowance, but to appointment in the territory of the State have regard to the fact, on the one hand, to which she was posted which must be that the absence of affinity with a State taken into account in determining is a factor of expatriation and, on the whether or no there was an expatriation. other hand, that nationality is a very The Commission has offered no close affinity with a State. In the present observations on the requirements of case, the affinity to Italy has been Article 4 (1) (a) particularly strong, the applicant having lived in that country for many years in 2.

The official's right to the expatriation Regulations are concerned with a single allowance is conditioned by habitual matter, the affinity which the official residence, outside the territory to which now has, or once could have had, with the official is posted for the period of ten the State in whose territory he is years expiring at the time of entering the employed, through the medium of a service. The 'entering the service' must present or former nationality, however be taken to mean entering the service in that nationality was acquired and the territory of the State where the whether or not it was a single official is employed as distinct from nationality. entering the service of the Community The authors of the Staff Regulations authority. In the present case, 20 recognized moreover the shades of September 1965 must be taken as the meaning covered by expatriation in date from which she was employed at relation to nationality, in adding to this Ispra on Italian territory, and not 1 April first factor a second relative to the 1961 on which she entered the service of territory in which the person concerned the Communities. habitually resided for a certain period The applicant maintains that, at the time before entering the service. she entered service in Italy in 1965, she As regards the requirement in the second had lived outside Italian territory for a indentation of Article 4 (1) (a) the certain period during the previous ten applicant maintains that she fulfils this years, viz. from 1 April 1961 to 15

JUDGMENT OF 8.5. 1973 — CASE 33/72

occasional, so that she had in fact herself of her stay in Brussels from 1 habitually resided outside Italian April 1961 to 15 November 1962, since territory during this period. this was due to her performing duties in the European Communities and Article 4 The Commission's reply is that the (1) (b) expressly excludes the applicant is putting forward a wrong performance of duties in the service of a interpretation of the requirements of State or of an international organization. sub-paragraph (b). The term 'entering the service' cannot be interpreted as 3. At the request of the applicant the meaning, for an official, being employed Court invited the Commission to give its in the territory in question, since this is observations on the specific case of two only a case of transfer and not one of female officials, who had acquired entering the service. The applicant can Italian nationality by marriage and to only have a claim to the expatriation whom the expatriation allowance had allowance under paragraph (1) (b) if, been restored in accordance with the during the ten years prior to entering the Court's judgment of 7 June 1972 in service of the Communities, that is to cases 20/71 and 32/71. In this respect the say before 1961, she had resided outside Commission replied that the restoration Italy for reasons other than the of the expatriation allowance took place performance of duties in the service of a not because no account had previously State or of an international organization. been taken of the Italian nationality of During the ten years preceding her the parties concerned but because they entering the service of the Communities had been considered as fulfilling she had on the contrary, resided in Italy. requirements of Article 4 (1) (b) as to In addition, even on the assumption that habitual residence during the period the time of her posting to Ispra must be ending at the date of their entering the considered, the applicant cannot avail service of the Community institutions.

5 The applicant having been granted special leave was taken back into the service of the Commission with effect from 20 September 1965 and posted to the Joint Research Centre at Ispra;

6 On this occasion the several components of her salary were fixed by a decision of 5 October 1965;

7 It appears from the document in which this decision was recorded a copy of which was sent to the applicant, that the expatriation allowance was not granted to her;

8 The applicant did not contest this decision either by a complaint through official channels within two months, or by an appeal to the Court of Justice within three months, as she could have done by virtue af Article 91 of the Staff Regulations then in force.

9 The applicant contests, by the present application, the letter dated 9 March 1972 in which the Directorate of Personnel of the Commission asserted, in reply to a note which the applicant addressed to it on 30 August 1971, that the applicant did not fulfil the requirements prescribed by Article 4 of Annex VII to the Staff Regulations so as to obtain the expatriation allowance;

10 That letter, while setting out in detail the facts it had taken into account, only confirmed the previous decision whereby the Commission refused to grant the applicant the expatriation allowance and informed her that this could not be paid so long as she was employed at Ispra;

15 However, under Article 70 of the Rules of Procedure, costs incurred by the institutions, in applications by servants of the Communities, shall be borne by the institutions;

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the submissions of the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Protocol on the Statute of the Court of Justice; Having regard to the Staff Regulations of the European Communities, especially Article 91; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69 and 70;

THE COURT (Second Chamber)

hereby:

1. Dismisses the application as inadmissible;