C-211/87

OPINION OF SIR GORDON SLYNN — CASE 211/87

OPINION O F ADVOCATE GENERAL SIR G O R D O N SLYNN delivered on 20 April 1988

My Lords, that State. For the purposes of this provision, circumstances arising from work done for another State or for an international organization M r Nuñez, a Spanish national, became shall not be taken into account.' employed by the Commission with effect from 1 October 1986 and he worked in Brussels. H e claimed the expatriation allowance, which is provided for in Article 4 of Annex VII to the Staff Regulations, and he also claimed an installation allowance Mr Nuñez was born in 1953 and it seems under Article 5 of the same Annex. that from about 1961 he went to live in Belgium where he received his secondary education. He stayed there until, in 1973, he took up employment apparently with a The Commission rejected both applications private employer in Brussels. That and also rejected his complaint against the employment lasted until 1976 when he initial decision. In these proceedings before became employed in one capacity or the Court he challenges the decisions of the another by the Spanish Government. From Commission. September 1980 he was established as a civil servant in the Spanish Embassy in Brussels.

Article 4 (1) of Annex VII provides that the expatriation allowance shall be paid:

His case, shortly, is that during the five years, which expired six months before he '(a) to officials: took up employment with the Commission, he was employed by another Member State. H e says that accordingly by reason of the provisions of Article 4 his residence and his (i) who are not and have never been work during that period have to be left out nationals of the State in whose of account and he can claim the various territory the place where they are allowances. In effect he is to be treated as employed is situated, and not resident in Brussels during that time.

can be said, as he has said, that the second kind of connection with the country, which sentence of the second indent of Article somebody who goes to work there perma- 4 (1) (a) is directing the institutions of the nently would establish. Community to ignore not only the work which is done but also the residence which is prescribed. In other words, if during the period of five years ending six months before his appointment by the Commission, he was employed by another Member State That decision of the Court has more then he succeeds. If it had been intended to recently been followed and adopted in the ignore the period spent in the service of a judgment in Case 105/87 (Morabito v Member State whilst resident in another European Parliament [1988] ECR 1707). Member State and to look at an earlier period, that could clearly have been specified. In the circumstances what is ignored is not the period of employment but the place of residence during the five years ending six months before his appointment by the Commission. The language of Article 4 (1) (a) in the second indent is certainly ambiguous, indeed loose. I do not find the French text any clearer in indicating what is intended. It seems to me, however, that having regard to what has been said already by the Court in That literal view, however, has to be seen in the two decisions to which I have referred, the context of a number of decisions of this it is right to construe Article 4 (1) (a) in the Court. In Case 246/83 De Angelis v sense which is contended for by the Commission [1985] ECR 1253, the Court Commission. It is obvious that someone stressed that the object of the expatriation who already resides in the country where allowance is to compensate officials for the he eventually becomes employed as a extra expense and inconvenience of taking Community official but interrupts his period up employment with the Communities and of residence by a period of employment in being thereby obliged to change their the same country by another Member State residence and move to the country of is in no real sense being expatriated. H e employment. The words 'thereby obliged to does not move to that country for the change their residence and move' give the purpose or change his residence; he does key to the purpose and object of the expa- not in the ordinary way incur the extra triation allowance. expense and inconvenience of taking up employment in another State.

If that were not so it seems to me there Finally, the applicant has stressed the would be much force in the argument of the connections which he has maintained with Commission that inequality would result Spain during his residence in Brussels. That between officials in what are really does not seem to me to be a factor which comparable situations. If two persons go to goes against the interpretation which is put live in Brussels at an early age and stay forward by the Commission, nor does the there for virtually the whole of their fact, in my view, that as an official of the childhood and adolescence and even their Spanish Embassy he might have been early working lives, and one then by chance recalled to Spain and might have incurred works there for a period for his own expenses, undermine what seems to me to Member State or some other Member State be the object and purpose of this particular whereas the other works for a private article. He did not incur the extra expen- employer, it would be very strange if they diture which such a course would have were treated differently. On the arguments produced, and even if there is an argument of the applicant in this case they would be that someone recalled might have extra treated differently. On the arguments of the expenses, that is not something which falls Commission they would be treated in the for a decision in this case. H e would in any same way. event be likely to cease to be resident in the relevant Member State.

NUÑEZ v COMMISSION

Since, in my view, the applicant does not it is not contested that the applicant has qualify for expatriation allowance the first lived at the same address in Brussels since condition is not fulfilled. The alternative 1978. condition cannot be fulfilled in any event, as

Accordingly, in my view, this application should be dismissed and each party ordered to bear its own costs under Article 70 of the Rules of Procedure.