C-105/87
ECLI:EU:C:1988:22
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MORABITO v PARLIAMENT
OPINION OF MR ADVOCATE GENERAL MANCINI delivered o n 20 J a n u a r y 1988 *
Mr President, Luxembourg of his intention to leave, which Members of the Court, he subsequently put back by two weeks at the request of his employer. His reason for leaving was his decision to return to his home town (Vinco, Reggio Calabria) to assist his mother, who died on 29 July 1986 after a long illness and a stay in hospital. 1. This is the first case since the setting-up of the Court of Justice in which the defendant is in default. The European Parliament's application for an extension of the time-limit for the lodging of its defence reached the Court after the expiry of the In the mean time, since he had not found said time-limit. Consequently, by an work in Italy, Mr Morabito sought application of 19 June 1987 under Article 94 employment from the European Parliament (1) of the Rules of Procedure, the applicant, (16 July 1985). In 1979, he had taken part Antonio Morabito, applied for judgment by in a competition for the recruitment of default. The application, which was received skilled employees (messengers) and was on at the Court Registry on 6 April 1987, seeks the reserve list. His application was accepted principally the annulment of the decision of on 15 October 1985. He entered the service 8 January 1987 by which the Secretary- on 1 November 1985, informed the City of General of the Parliament confirmed the Luxembourg of his arrival three days later refusal to grant Mr Morabito an expa- and went to live in the flat which, before triation allowance. In the alternative, the returning to Italy, he had shared for about applicant asked the Court to declare that he three years with a friend, also an employee was entitled to that allowance on the basis of the Parliament. of the criteria applied by the institution to all its officials and other staff and to order the Parliament to make good the damage suffered.
The Parliament granted Mr Morabito a foreign residence allowance but not an expatriation allowance. In a memorandum of 19 August 1986 it informed him that he 2. The facts are as follows. Mr Morabito, did not fulfil the conditions for entitlement an Italian national, was enrolled for the first to that allowance laid down in the Staff time in the population register of the City of Regulations. It is stated in that memo- Luxembourg on 1 August 1975. From that randum that with the exception of the last date until 1 January 1985, he worked as a four months, Mr Morabito had resided and barman at the Holiday Inn in that city. At worked in Luxembourg during the reference the beginning of December 1984, he period (from 1 May 1980 to 30 April 1985). resigned from his position and on 12 However, in order to be taken into account December 1984 he informed the City of for the purposes of the allowance at issue,
* Translated from the Italian.
OPINION OF MR MANCINI —CASE 105/87
an absence from the territory of the 4. The admissibility of the originating Member State in which the institution has application and compliance with the its seat must be of at least six months. T h e procedural formalities, which the Court is memorandum added that the temporary required to verify under Article 94 (2) of the nature of the absence was demonstrated by Rules of Procedure, pose no problem. two circumstances: the official had not removed his effects to Italy and he had not taken up paid employment in that country.
I can therefore proceed to consider whether the applicant's conclusions are well founded. Let me refer first to the relevant provisions In a complaint dated 21 August 1986, M r of the Staff Regulations. As the Court will Morabito contested the above decision but, be aware, the expatriation allowance is by decision of 8 January 1987, the provided for in Article 69 and, as far as this Secretary-General of the Parliament case is concerned, payment thereof is confirmed the refusal to grant him the subject to the conditions laid down in allowance at issue, pointing out that the Article 4 (1) (a) of Annex VII. According to applicant's brief stay in Italy did not cause that provision, the allowance is granted to him to cease to reside habitually in the officials who 'are not and have never been Grand Duchy. 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 did not habitually reside or carry on their main occupation within the European territory of 3. In support of his application, M r that State'. Morabito argues that the reasons on which the decision is based are incorrect. However, that submission would be more properly expressed as an infringement of the Staff Regulations of Officials. The applicant Let me recall that the Court has consistently considers that the expatriation allowance held (a) that the conditions other than that must be paid once the official can show that concerning nationality must both be fulfilled he definitively left the territory on which the (judgment of 9 October 1984 in Case place where he is employed is situated six 188/83 Witte v European Parliament [1984] months before he entered the service and ECR 3465, paragraph 8; judgment of 2 there is no doubt that he was in Italy during May 1985 in Case 246/83 De Angelis v the 10 months preceding his entry into Commission [1985] ECR 1253, paragraph service as an official of the Parliament. M r 14; judgment of 24 June 1987 in Case Morabito also denies that that stay was 61/85, von Neuhoff von der Ley v temporary. His intention to live permanently Commission [1987] ECR 2853, paragraph in Italy is demonstrated by the declaration 7), and (b) that the object of the expa- made to the City of Luxembourg at the time triation allowance is to compensate officials he left the Grand Duchy and by the termi- for the extra expense and inconvenience of nation of his affiliation to the local social taking up employment with the security scheme. H e explains the fact that he Communities and being thereby obliged to did not remove his effects by two circum- move from their country of residence to the stances: at the time, he did not have any one in which their place of employment is furniture and he lived in a flat rented by a situated (judgment of 20 February 1975 in friend. Case 21/74 Airola v Commission [1975]
MORABITO v PARLIAMENT
ECR 221, paragraph 8; judgment of 16 fulfils the condition concerning habitual October 1980 in Case 147/79 Hochstrass v residence. I will however consider that point Court of Justice [1980] ECR 3005, because that is the condition on which the paragraph 12; judgment in von Neuhoff von Parliament based the contested decision and der Ley, cited above, paragraph 7). on which the applicant built his defence.
The appraisal to be made is thus concerned As I have said, the subject of the dispute with the solidity and permanence of the link between the parties is the period which M r between the official and the State in which Morabito spent in Italy. The Parliament he is to perform his duties. For that considers it insufficient as a basis for purpose, criteria such as habitual residence regarding Italy as Mr Morabito's place of or main occupation are decisive (judgment habitual residence and it relies for that in von Neuhoff von der Ley, cited above) purpose on a practice in regard to the whereas absence from that State for a application of Article 4 (1) of Annex VII to certain period or removal of effects are of the Staff Regulations which derives from no importance in that regard. decisions of the Community's heads of administration and the legitimacy of which seems doubtful to me (I expressed that view in my Opinion in Case 188/83 Witte v European Parliament [1984] ECR 3465, at p. 5. Let me consider the applicant's position 3476). The applicant claims however that in the light of those principles. It is clear those four months at the end of the that he fulfils the nationality condition. It reference period, which were marked by an remains therefore to verify whether the intention to return definitively to Italy, fixed other two conditions are fulfilled, namely his habitual residence in his place of origin. the condition concerning habitual residence and that concerning main occupation.
Both of those arguments are without foun- dation. As the Court has held on several Let me begin with the second condition. It occasions, the fact of having resided for a is apparent from the documents before the total of 20 months during the reference Court (a) that out of the five years of period in a Member State other than that in the reference period, Mr Morabito was which the place of residence is situated is employed principally, or rather exclusively, not sufficient to justify the view that the in Luxembourg for about four years and official habitually resided there (judgment eight months and (b) that during the four of 17 February 1976 in Case 42/75 Deivaux months spent in Italy (January to April v Commission [1976] ECR 167; judgment in 1985) he did not pursue an occupational von Neuhoff von der Ley, cited above, activity. The condition in point cannot paragraph 9), and it is even more difficult to therefore be regarded as fulfilled. regard the four months which Mr Morabito spent in Italy as sufficient. The applicant could not possibly have had to bear, when returning to Luxembourg, the extra expense and inconvenience for which the expa- That conclusion could dispense me from the triation allowance is intended to need to determine whether Mr Morabito compensate.
OPINION OF MR MANCINI — CASE 105/87
6. On the basis of the foregoing considerations, I propose that the Court should dismiss the application brought by Antonio Morabito against the European Parliament on 6 April 1987.
Having regard to the nature of the proceedings, I propose that the parties should be ordered to bear their own costs.