C-42/75

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Joseph Griesmar, acting as Agent, with an address for service in Luxembourg at the office of its Legal Adviser, Mario Cervino, Bâtiment CFL, place de la Gare,

defendant,

Application for a declaration that the applicant is entitled to an expatriation allowance;

THE COURT (First Chamber)

composed of: A. M. Donner, acting President of Chamber, J. Mertens de Wilmars and A. O'Keeffe, Judges,

Advocate-General: J.-P. Warner Registrar: A. Van Houtte

The facts and the arguments put forward spent in Germany en route for by the parties during the written Denmark); procedure may be summarized as — From 20 July to 24 August 1964 (1 follows: month, 5 days) in Denmark; — From 25 August to 12 December 1964 (3 months, 18 days) in Belgium; I — Facts and procedure — From 13 December 1964 to 23 January 1965 (1 month, 11 days) in The applicant, who is a Belgian national, Denmark; entered the service of the Commission — From 24 January to 9 April 1965 (2 on 16 July 1974 as a temporary servant; months, 16 days) in Belgium; he was employed as an assistant — From 10 April to 1 May 1965 (21 translator in the Danish translation days) in Denmark; section of the Commission. On the basis — Between 1 May 1965 and 25 April of the results of a competition he was 1966, first, in Germany and then, as made a probationer in Grade L/A 7, as from 8 September 1965, in France at from 1 January 1975, with the task of Rocquencourt with SHAPE where he translating into Danish. He claimed did his military service in the Belgian entitlement to an expatriation allowance army (11 months, 26 days); during under Article 4 (1) (b) of Annex VII to this period he had short periods of the Staff Regulations, on the ground that leave in Denmark where he married a since July 1964 he had habitually resided Danish national on 7 April 1966; outside Belgium. This claim was rejected — From 26 April to 7 May 1966 (11 on 9 August 1974. days) in Belgium; — From 8 May 1966 to 13 July 1974 (8 In a letter registered at the Secretariat of years, 2 months, 5 days) in Denmark the Commission on 2 October 1974 he where he studied and was variously submitted a complaint under Article 90 employed; he was divorced on 17 (2) of the Staff Regulations in which he April 1972; requested 'that the Commission interpret — From 13 to 16 July 1974 (3 days) in liberally the text of the Article in Belgium. question and grant me an expatriation allowance'. In a letter dated 12 February The Commission made no reply to the 1975 he emphasized that 'since July complaint received officially on 2 1964' he had regarded 'Denmark as my October 1974, which amounts to an main centre of interest, which should be implied decision rejecting the complaint. plainly apparent from the fact that I stayed many times in Denmark before On 30 April 1975 the applicant brought settling there permanently in May 1966'. the present action.

by his fiancée, Miss Margrethe Pade, official and not, as in this instance, as a with whom he had to go to Denmark temporary servant who was later in order to take the necessary appointed an official. measures to settle there permanently; (2) that his return to Belgium in August In fact, the entry into service in question 1964 and his subsequent visits were is nothing more than the taking up of only intended to have his call-up his duties by the person concerned in a advanced and to enable him to return capacity entitling him to an expatriation to Denmark permanently at the allowance: that is, in this case, the date earliest possible date. on which he took up his duties as a temporary servant. The relevant date is The Commission contends that the therefore that of 16 July 1974 and it is Court should: immaterial that the person concerned (a) dismiss the application as unfounded; was subsequently appointed an official. (b) order the applicant to pay the costs; If the opposite party decided to adopt 1 January 1975 as the relevant date he would destroy the bases of his own III— Submissions and arguments conclusions for the annulment of the of the parties rejection of his complaint and of his claims in respect of the earlier period. The applicant claims that the Furthermore, the Court would be led to administration disregarded Article 4 (1) declare the application inadmissible on (b) of Annex VII to the Staff Regulations, the ground that it follows a premature in that it failed to take account of the complaint made in the absence of any fact that he has habitually resided outside measure affecting him adversely. Belgian territory either since July 1964, if the relevant date is that of his entry As regards the substance of the action, into the service of the Commission on the defendant considers that although, 16 July 1974, or (following the opinion during the ten years preceding the of the Advocate-General in Case 33/72, applicant's entry into the service of the

Commission, he had his principle place such as to influence the whole course of of residence outside Belgium for 8 years, his life and to lead him to take all the 5 months and 12 days in such necessary measures to settle there circumstances as to satisfy the conditions permanently'. In this respect the necessary for the application of the applicant submits a declaration by his article in question, there can still be no former wife that his return to Belgium question of any 'habitual' residence. By on 24 August 1964 enabled him to 'take their very nature the applicant's steps in order either to obtain his occasional short visits to Denmark exemption from military service or to between July 1964 and May 1966 cannot hasten his call-up (which did occur) so as constitute the beginning of habitual to bring forward the time when his residence outside Belgium. Until he objectives' (marriage and pursuit of settled permanently outside Belgium in studies in Denmark) would be realized. May 1966 he had lived in that country for 6 months, 20 days as a civilian (it is The term 'to reside' has no precise legal during that time that he was employed, meaning. As the residence must be for the first time, in Antwerp) and in habitual it has to be accepted that even if Germany and France for 11 months, 26 it does not have to be of long duration it days as a member of the armed forces in must not be purely episodic in character, circumstances which may be regarded as such as a business or holiday trip.

The result of the applicant's assimilation into The applicant bases his claim to the Danish society (he is still involved expatriation allowance on a provision in naturalization proceedings although which constitutes an exception to the divorced from the Danish woman whom principle that the allowance is not due to he had married) has been that he is nationals of the country which is the treated in the translation department as place of employment. Danish and translates into the Danish language from various foreign languages. This governs the method of interpretation of the article in question: In short, it is clear that the applicant's exceptio est strictissimae interpretationis. absence from Belgian territory began on

1975. As regards the facts, the applicant duties outside the European territory of must point out that the reasons why he the State in question, or who carry out went to Denmark in July 1964 were not diplomatic duties or the duties of a solely cultural but were 'fundamental and person undertaking service overseas in

performance of this service was not voluntary the period in question must be The purpose of the provision in question regarded as residence abroad. is in fact to define a presumption of expatriation: a person is assumed to be If reference is made to a statistical an expatriate in his own country when yardstick, then, according to the he comes to live there having remained definition in 'Le Petit Robert' the away habitually for the 10 years applicant has 'almost always, usually, very preceding his return. As regards the time often' resided abroad and, in the light of spent in Belgium or on Belgian military the very special features of this case, he is service, this cannot be altered on the entitled to the expatriation allowance. pretext that the applicant then intended to settle subsequently in Denmark. In its rejoinder the defendant states that it would not be able to refuse the applicant in Case 107/75 which was The essential point of the argument is brought in respect of the period after 1 whether, in spite of the 18 months January 1975 any allowance which the actually spent in Belgium, the applicant Court might have awarded him in the may be regarded as having habitually present case. resided outside Belgium for 10 years. The 18 months in question cannot, however, This being so, the problem raised by the be regarded as episodic or adventitious. applicant of when the period of habitual As regards the concept of gradual residence began is a false one: the fact 'integration' into Danish society, did he that he has since been appointed an feel correspondingly out of place in his official is of no importance as his own country on his return to Belgium? appointment does not affect the extent of the earlier rights of a temporary servant. The conditions which give rise to the presumption are not satisfied in this However important it may be for the instance. The allowance in question is applicant on the psychological level, the not intended to compensate for the element of intention which is shown in applicant's feeling out of place on the declaration by his former wife is leaving Denmark. The 'integration' into irrelevant for the purposes of a correct Danish society is thus immaterial to the application of the provisions of the Staff present argument, since 'integration' into Regulations. Article 4 (1) (b) requires that a foreign country does not necessarily go attention be concentrated on the sole together with a simultaneous feeling of material factor, namely that of the being out of place in the country of residence itself. origin.

between the position of a young organization. Moreover, as compared with diplomat sent (often against his will) to a the phrase 'to have one's principle place distant embassy and that of a young of residence', the phrase 'to reside soldier who performs the military service habitually' implies longer duration or required by law outside his country greater continuity, that is, but on its behalf? Moreover, the quasi-permanent or constant residence disadvantages suffered by the applicant as with only rare absences. a result of having to perform his military The applicant, represented by Marcel service abroad have been compensated Slusny, and the Commission, represented for by the fact that, for this reason, his by Joseph Griesmar, submitted their oral period of service was reduced (12 months observations at the hearing on 15 instead of 15). Furthermore, although it January 1975. is true that he was required by law to do military service, the applicant chose to The Advocate-General delivered his carry out his service abroad by enlisting opinion at the hearing on 3 February before he was called up. 1976.

Law

1 The applicant, who is a Belgian national, is seeking the annulment of the implied decision rejecting his complaint, which was registered on 2 October 1974, and in which he requested payment of the expatriation allowance provided for by the Staff Regulations of Officials.

2 He also requests that the Commission be ordered to pay him the expatriation allowance as from 16 July 1974, the date on which he entered the service of the defendant as a temporary servant in the Danish translation section, until 1 January 1965, when he was made a probationer.

8 This period cannot be deemed to be residence outside Belgium solely on the ground that the person concerned had the intention of settling subsequently in Denmark, particularly as at that time he did not even claim to have a place of residence in that country.

9 Secondly, by performing his military service in the Belgian armed forces, first in Germany from 1 May to 8 September 1965 and then in France with SHAPE from 8 September 1965 to 25 April 1966, the applicant was in a position comparable to that of a conscript serving in the national territory and he was performing duties similar to those which are declared to be an exception to the abovementioned Article 4 (b): 'duties in the service of a State or of an international organization'.

10 Therefore, during his military service the applicant cannot be regarded as having been resident outside Belgium, the country in which he was domiciled before this service.

11 As the applicant has 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, the application must be dismissed.

JUDGMENT OF 17. 2. 1976 — CASE 42/75

Costs

1. Dismisses the application

2. Orders the parties to bear their own costs.

O'Keeffe Donner Mertens de Wilmars

Delivered in open court in Luxembourg on 17 February 1976.

A. Van Houtte A. O'Keeffe

Registrar President of the First Chamber