C-188/83

JUDGMľNT ΟΓ 9. 10. 1984 — CASE 188/83

establish the permanent centre of his employment of its habitual nature interests in another State, cannot be within the meaning of the Staff Regu­ considered sufficient to deprive the lation and thus entitle him to payment official's residence in the State of 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 Luxem­ bourg 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 Luxem­ bourg Bar, with an address for service at the latter's Chambers, 22 Côte d'Eich, defendant,

Facts and Issues

The facts of the case, the course of been an official of the European Parlia­ the procedure and the conclusions, ment in Grade A 7. In that capacity he submissions and arguments of the parties is employed in Luxembourg. may be summarized as follows: The main issue in the case is whether the applicant fulfils the condition laid down I — Facts and written p r o c e d u r e in the second indent of Article 4 (1) (a) of Annex VII to the Staff Regulations, that is, did not habitually reside or carry 1. This case concerns the grant of the on his main occupation in the Grand expatriation allowance provided for in Duchy of Luxembourg during the re­ Article 4 (1) of Annex VII to the Staff levant period, in this case from 17 No­ Regulations of Officials. The relevant vember 1976 to 17 November 1981. portion of that provision states as follows : The facts of the case are not disputed and are as follows: "An expatriation allowance shall be paid, equal to 16% of the total amount of the The applicant was born in Germany in basic salary plus household allowance 1950 and came-with his family to live in and the dependent child allowance paid Luxembourg in 1958; he attended the to the official: European School until 1970. After his marriage to a Luxembourg national in (a) to officials: September 1970 he studied law at the University of Münster (Federal Republic of Germany) from October 1970 to Who are not and have never been December 1974. In March 1975 he nationals of the State in whose and his wife established their home in territory the place where they are Luxembourg. employed is situated, and

judge, public prosecutor or higher grade 1982, that is, until he was appointed a administrative officer . . ." probationary official at the European Parliament. The decision further stated: On 14 July 1982 the applicant made a "I accept your waiver of removal, trans- request as provided for in Article 90 (1) portation and separation allowances for of the Staff Regulations for the grant of the duration of your training, with the the expatriation allowance; his request exception of the introductory and final met with no reply and was therefore courses. During those courses you may deemed to be rejected. claim costs from Trier only." By letter of 11 February 1983 the During his period of service as applicant submitted a complaint within Rechtsreferendar, in so far as it falls the meaning of Article 90 (2) of the Staff within the period referred to in the Regulations against the rejection of his second indent of Article 4 (1) (a) of request. Annex VII to the Staff Regulations, the applicant was assigned as follows : The complaint was rejected by a letter of 6 September 1983 from the President of (i) 1 September 1976 to 31 November the European Parliament. 1976: Training in the chambers of a lawyer in Trier; 3. This action was brought by ap- (ii) 1 December 1976 to 28 February plication lodged at the Court Registry on 1977: Training course at the Euro- 8 September 1983. pean Parliament in Luxembourg; Upon hearing the report of the Judge- (iii) 1 March 1977 to 28 April 1977: Rapporteur and the views of the "Referendarlehrgang" [training Advocate General, the Court (Third course for Rechtsreferendars] in Chamber) decided to open the oral Saarburg (Rhineland Palatinate) ; procedure without any preparatory inquiry. (iv) Mid May 1977 to the end of August 1977: Preparation for and com- pletion of the "Zweite juristische Π — C o n c l u s i o n s of t h e p a r t i e s Staatsprüfung" [Second State exam- ination in law]; The applicant claims that the Court (v) September 1977: Holiday. .should:

Ill — Submissions and arguments (iii) In September and October 1977 he of t h e p a r t i e s was on holiday in Southern Europe.

(iv) From March 1978 until the end of The admissibility of the action is not February 1979 he travelled all over disputed. The submissions and arguments Germany looking for work. regarding the substance of the case may be summarized as follows: The applicant adds that a Rechts- referendar is a civil servant under 1. Issues of/act German civil service law. Pursuant to that law the applicant was obliged (a) The applicant argues that he carried to maintain his permanent residence on his main occupation (Rechtsrefe- (ständiger Wohnsitz) in Germany. The rendar) in Germany from the beginning President of the Oberlandesgericht of the reference period (17 November simply authorized him to keep his 1976) until the end of September 1977. dwelling in Luxembourg. His employment in Luxembourg from 1 March 1979 until the end of the reference period (17 November 1981) (b) With regard to the occupational was, he says, only casual employment history of the applicant during the with no relation to his legal training and reference period, the European Parlia- cannot therefore be considered his "main ment points out that occupation". (i) he was a Rechtsreferendar for With regard to his residence during the ten and a half months (from 17 reference period, he says that he was November 1976 until the end of actually resident in Luxembourg for September 1977); about 21 months, which may be compared with 39 months during which (ii) he was unemployed for more than his residence was not fixed and he 17 months (from October 1977 until worked in Germany or looked for work the end of February 1979); there. (iii) he was an employee in the private More specifically, he resided outside sector in Luxembourg for 33 months Luxembourg during the following (from 1 March 1979 to 17 Novem- periods and in the following places: ber 1981).

Even assuming those periods of residence In that regard the applicant points out to be established, their transient nature is that the position of Rechtsreferendar is a shown by the fact that in Germany the full-time, salaried, principal occupation applicant stayed either with a member of which follows university legal training. A his family or in an hotel. Rechtsreferendar is considered a civil servant under German law and receives remuneration for his support and that of his family. 2. Issues of law In the past, the settled administrative practice was to consider an interruption (a) The applicant argues first that the of six months in a person's residence in two conditions for the award of the the country of employment during the expatriation allowance laid down in the reference period as sufficient for the second indent of Article 4 (1) (a) of grant of the expatriation allowance. The Annex VII to the Staff Regulations, that discontinuance of that practice consti- is, that candidates did not "reside" or tutes unequal and discriminatory treat- "carry on their main occupation" within ment. the territory of the State in which they are employed, are alternative and not cumulative. That, he says, is clear from (b) In opposition to the applicant's the French and English versions, and submission, the European Parliament perhaps also from the German version. submits that the two conditions laid

WITTE ν PARLIAMENT

Decision

ι By application lodged at t h e C o u r t Registry o n 8 September 1983, H e r m a n n Witte, an official of t h e E u r o p e a n P a r l i a m e n t since 17 M a y 1982 a n d employed in t h a t capacity in L u x e m b o u r g , b r o u g h t an action for t h e g r a n t of the expatriation allowance provided for in Article 4 (1) of A n n e x V I I t o t h e Staff Regulations of Officials.

JUDGMENT OF 9. 10. 1984 — CASE 188/83

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.

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.

io 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.

JUDGMENT OF 9. 10. 1984 — CASE 188/83

n 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.

π Since the applicant therefore habitually resided in Luxembourg during the period in question, the argument alleging infringement of the Staff Regu­ lations 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.

OTITE ν PARLIAMENT

argument alleging a breach of the principle of equal treatment must therefore also be rejected.

i6 For those reasons the application must be dismissed.

Costs

i7 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.

is 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.

Delivered in open court in Luxembourg on 9 October 1984.

For the Registrar

H. A. Rühi C. Kakouris Principal Administrator President of the Third Chamber