C-284/87

Mr President, 1987) against the fact that his salary for Members of the Court, February had been calculated on the basis of the weighting for Italy. The Commission did not react. However, it withheld from the allowance for April the sum of 1. This dispute concerns the conditions SFR 3 054.87 being the amount which, in governing the application of the weighting its view, the applicant had been overpaid in to the allowance granted on the basis of January when the weighting for Switzerland Council Regulation (ECSC, EEC, Euratom) was applied. No 1679/85 of 19 June 1985 introducing special and temporary measures to terminate the service of certain officials in the scientific and technical services of the European Communities (Official Journal 1985, L 162, p. 1). By an application lodged at the Court Registry on 24 September 1987, the applicant contested the salary statements for February and March 1987 and requested the The facts of the case. In December 1986, Court (a) to annul the Commission's calcu­ Mr Oskar Schäflein, who was employed at lation of the sums owed to him, (b) to the Joint Research Centre in Ispra, was declare that as from February 1987 he is considered to be eligible for early retirement entitled to an allowance adjusted by the from the service for the purposes of that weighting for Switzerland, and (c) to order regulation. In calculating the allowance the Commission to pay him the difference granted to him for January 1987, the between the sums paid and the sums owed, Commission applied the weighting for Swit­ including the sum of SFR 3 054.87 which it zerland, but subsequently informed him had deducted from the allowance for April. that, as from the following month, it would apply the weighting for Italy since it did not appear that the applicant had transferred his main residence to Switzerland. Once again that measure proved to be short-lived. Following a meeting in February between 2. The issue which the Court is called upon Mr Schäflein and officials of the to resolve is whether, at the time when he Commission, the relevant department lodged his official complaint (15 April determined that the weighting of 100 should 1987), the applicant was able to show proof be applied until the applicant had decided that he was resident in Switzerland. Article where he was going to live. 3 (3) of Regulation No 1679/85 provides that 'the allowance ... shall be adjusted by the weighting fixed for the country inside or outside the Communities in which the The applicant was dissatisfied with that recipient proves that he is resident (emphasis solution and submitted a complaint (in April added).

The applicant claims to reside in Massagno and (c) that the documents produced by the (Canton of Ticino) and, in support of that applicant are not sufficient to support his contention, has produced: (a) a statement contention and merely show that, even from the population bureau of that munici­ before he left the service, he had a pality issued on 5 February 1987 to the 'secondary' residence in Massagno. effect that he 'owns a secondary apartment in 20 via al Roccolo which he occupies consecutively for periods of less than three months but not exceeding six months in More generally, the defendant points out aggregate over a period of 12 months'; (b) that, by resorting like Article 82 of the Staff two invoices relating to his apartment, Regulations of Officials to the expression namely the telephone bill for the period 'his residence', Article 3 (3) ' of Regulation from 17 October to 16 December 1986 and No 1679/85 proceeds from the premiss that the electricity bill for the period from April people reside in a single place. Accordingly, to September 1986, and (c) two statements if a pensioner has more than one home, the made by his brother Rudolf and an Commission considers that person to be acquaintance in Darmstadt respectively resident in the place in which he lives for at which are to the effect that Switzerland is least 185 days per year. Moreover, that the centre of the applicant's interests and procedure is in conformity with the rule laid that, when he lives in his brother's down by certain provisions of secondary apartment in Gerbrunn (Federal Republic of legislation that are not applicable to the Germany), he has the use of only one room public service. For instance, Article 7 (1) of there. Council Directive 83 / 182 / EEC of 28 March 1983 on tax exemptions within the Community for certain means of transport temporarily imported into one Member According to the applicant, those documents State from another provides that '"normal show that he has established his residence in residence" means the place where a person Switzerland, where he owns an apartment usually lives, that is for at least 185 days in the running costs of which, including the each calendar year, because of personal and housekeeper's salary, absorb a large part of occupational ties . . . ' (Official Journal his income. The fact that he does not spend 1983, L 105, p. 61 ; see also Article 6 of more than six months of the year there and Council Directive 83 / 183 / EEC of 28 spends the other six months with his brother March 1983 on tax exemptions applicable to is the result of Swiss law. As is well known, permanent imports from a Member State of Swiss law prohibits foreigners aged under the personal property of individuals, Official 60 from residing in Switzerland for periods Journal 1983, L 105, p. 64). longer than six months.

4. The Commission's argument cannot be which help to identify the link over and accepted. In the first place, I would point above the purely physical factor of time if out that, according to the case-law of the the factors of appearance, a degree of Court, a person resides in the place in which permanence, intention and so on are not he has established, with animus manendi, the also present'. Residence is not based simply 'permanent' or 'habitual' centre of his on the actual fact of living in a given place. interests (judgment of 12 July 1973 in Case It also involves the intention of thereby 13/73 Angenieux v Hakenberg [1973] ECR achieving the continuity which stems from a 935, and judgment of 17 February 1977 in stable way of life and from the course of Case 76/76 Di Paolo v Office national de normal social relations. From that point of l'emploi [1973] ECR 315). I would also view, therefore, the passage of a certain point out that the place of residence cannot period of time can at most constitute an be determined on the basis of the purely indication of residence; it is by no means a quantitative factor of the time spent by the constituent element thereof. person concerned in the territory of one country or another, with the result that the country in which that person spends most of the year is recognized as the State of . Turning to this case, I consider that the residence. From that point of view, recourse documents produced by the applicant when to a minimum period of 185 days, which, he lodged his complaint constitute sufficient for one thing, is prescribed for situations proof of the fact that he is resident in Swit­ that are utterly different from the one under zerland. Quite apart from the adjective used consideration, is not suited to a situation by the Swiss authorities to describe his governed by a provision (Article 3 (3) of apartment ('secondary') and the temporal Regulation No 1679/85) which is devoid of limits within which they authorize him at any reference to time. this stage of his life to remain in Swit­ zerland, it seems indisputable to me that, As Mr Advocate General Trabucchi stated when he left the service, the applicant estab­ in his Opinion in Case 13/73 ([1973] ECR lished the permanent centre of his interests 953, at p. 960), in order to determine the in that State. It is noteworthy, incidentally, place of residence in cases where the link that the Commission acknowledges that it between the person's life and the territory is was aware of the applicant's removal to not clear, 'use must be made of yardsticks Massagno in 1981.