C-201/88

OPINION OF MR JACOBS —CASE 201/88

OPINION OF MR ADVOCATE GENERAL JACOBS delivered on 22 June 1989 *

My Lords, in Brussels on 16 April 1987. She now claims that the Commission should pay her an expatriation allowance.

1. This case concerns a claim for expatri­ 3. Expatriation allowance is governed by ation allowance by a Commission official, Article 4(1)(a) of Annex VII to the Staff Mrs Atala-Palmerini. Regulations in the following terms:

An expatriation allowance shall be paid, equal to 16% of the total amount of the 2. Mrs Atala-Palmerini, who was born in basic salary plus household allowance and Peru in 1949 of Peruvian nationality, came the dependent child allowance paid to the to Belgium and pursued university studies official : for a degree there from September 1970 to June 1973. She returned to Peru between 7 July and 25 August 1973. She came back to Belgium and carried out a traineeship ('stage') at the Commission from (a) to officials: 1 September 1973 to 31 January 1974. From September 1973 to October 1974 she also followed courses for a Master's degree at the University of Antwerp. On (i) who are not and have never been 7 December 1974 she married a nationals of the State in whose territory Commission official of Italian nationality, the place where they are employed is thereby acquiring Italian nationality herself. situated, and In November 1974 she was accepted at the University of Paris for doctoral studies, which she pursued whilst residing in Belgium. The Court is told that she was accepted for a second year of studies at the (ii) who during the five years ending six University of Paris for the academic year months before they entered the service 1975/76 and that she carried out no paid did not habitually reside or carry on work until 6 March 1978. It is not specified their main occupation within the exactly how she spent her time between European territory of that State. For the 1975 and 1978 but it is not disputed that she purposes of this provision, circum­ continued to reside in Belgium. From stances arising from work done for 6 March 1978 to 30 March 1987 she another State or for an international worked at the Peruvian Embassy in Brussels. organization shall not be taken into She entered the service of the Commission account.'

4. Mrs Atala-Palmerini plainly fulfils the 6. Before considering the part of the nationality requirement under the first reference period prior to Mrs Atala- indent of Article 4(1)(a). The question is Palmerini's marriage, I should point out that whether she habitually resided or carried on the approach followed by the Commission her main occupation in Belgium during the of constructing an earlier five-year reference five-year reference period stipulated in the period by excluding her traineeship at the second indent of that provision. The Commission and her employment at the Commission takes the view that the Peruvian Embassy is not expressly required reference period is established in the by Article 4(1)(a). A different approach was following way. Two periods must be left out adopted by the Court on somewhat similar of account (or 'neutralized') pursuant to the facts in the judgment of 31 May 1988 in second sentence of the second indent of Case 211/87 Nunez v Commission [1988] Article 4(1)(a): the period of Mrs Atala- ECR 2791. There the Court held (at para­ Palmerini's traineeship at the Commission graphs 11 and 12) that the exception from September 1973 to January 1974 and provided for by the second sentence of the the period of her employment at the second indent of Article 4(1 )(a) had as its Peruvian Embassy from 6 March 1978 to purpose not to penalize persons who have 15 October 1986. The reference period established themselves in the country of which results is 6 October 1972 to 5 March employment in order to work in the service 1978, excluding a five-month interlude for of another State or an international organ­ the traineeship from September 1973 to ization but do not have any lasting tie with January 1974. that country, by depriving them of the ex­ patriation allowance, and that the exception could not apply where an official, while having worked in the embassy of another State within the territory of the country of employment, already had lasting ties with that country, since he had been habitually resident and carried on his occupation there for a long period of time previously. On that approach, although the period which Mrs Atala-Palmerini had spent in Belgium before working at the Peruvian Embassy was considerably shorter than the corre­ sponding period in the Nunez case, she must in my view be regarded as having already had lasting ties with Belgium by virtue of her marriage and her habitual residence there. Moreover, since the exception requires that account shall not be taken of 'circumstances arising' from work done for another State, it is doubtful on the facts of the present case whether Mrs Atala- 5. Within that reference period, it is clear, Palmerini's residence in Belgium during her and Mrs Atala-Palmerini has expressly period of employment at the Peruvian admitted, that she was habitually resident in Embassy should be discounted as circum­ Belgium from the date of her marriage on stances arising from that employment, 7 December 1974, that is, for the last three precisely because she was already habitually years and three months of the reference resident there. period.

7. Returning to the reference period habitual residence is established. Both in starting on 6 October 1972, I must now paragraph 9 of Urhausen and in consider the period before 7 December paragraph 8 of Case 330/85 Richter 1974, the date from which Mrs Atala- v Commission [1986] ECR 3439, at Palmerini accepts that she was habitually p. 3447, the Court treated the pursuit of resident in Belgium. She contends that in university studies abroad as a matter of fact that period, because she was a student, she to be weighed up along with all other cannot be regarded as 'habitually resident' relevant facts as a whole in ascertaining the in the place of her studies. She relies in this applicant's habitual residence. connection on trips back to Peru, the fact that she lived in a furnished room, the fact that she moved several times, the fact that she had only a provisional residence permit and the allegation that she had at that time no intention of staying in Belgium or even in Europe. She maintains that she has to be regarded as habitually resident in Peru at that time, notwithstanding her physical presence in Belgium. In that connection she relies in particular on paragraph 9 of the judgment in Case 61/85 Urhausen, née von 9. That approach to the question of Neuhoff von der Ley v Commission [1987] university studies abroad is consistent with ECR 2853, at p. 2864, where the Court the Court's overall approach to the matter held that some two-and-a-half years of habitual residence in the numerous university study in Innsbruck did not suffice judgments which it has delivered on the to interrupt the applicant's habitual point. The term 'habitual residence' in residence in Luxembourg. Mrs Atala- Article 4(1) of Annex VII to the Staff Palmerini argues that it follows from the Regulations is not a technical, legal concept case-law of the Court that a stay in a (see the Opinion of Advocate General particular country for the purpose of Warner in Case 42/75 Delvaux v studying cannot effectively interrupt the Commission [1976] ECR 167, at pp. 178 social and professional ties of the student and 179). Indeed, to my mind, the word with his own country. 'habitual' indicates that it should be approached as a straightforward question of fact. Moreover, the Court held at paragraph 10 of the judgment in Nuñez that 'although, for the purpose of deter­ mining cases of expatriation, [Article 4(1)(a)] refers to the habitual residence and main occupation of officials in the State in whose territory the place where they work is situated over a certain reference period, it takes those connecting factors in order to establish simple, objective criteria to cover the situation of officials who are obliged, as 8. To my mind the Court's case-law estab­ a result of taking up employment with the lishes no such principle. On the contrary, Communities, to change their place of that case-law treats the pursuit of university residence and to integrate themselves in studies abroad as a mere matter of fact their new environment'. Thus in my view which is to be taken into account along with the case-law shows that claims such as the other relevant facts in considering whether present one turn on the facts of each

11. That result is in accordance with the object of the expatriation allowance. As stated in the case-law of the Court, that 10. In the case of Mrs Atala-Palmerini it is object is to compensate officials for the relevant that she continued to live in extra expense and inconvenience of taking Belgium after the end of her university up employment with the Communities and studies. It is also relevant that at the being thereby obliged to change their beginning of the reference period, on 6 residence and move to the country of October 1972, she had already been in employment: see, for example, Case 246/83 Belgium for two years studying. De Angelis v Commission [1985] ECR Furthermore from that date onwards she 1253, at p. 1263. That formula, although was consistently in Belgium until the close often repeated in the decisions of the Court, of the reference period on 5 March 1978. to my mind overemphasizes the single event For most of the period in question she was of changing residence and moving to in Belgium and did not often return to Peru. another country and only indicates by impli­ During the reference period she apparently cation the true object of the allowance, returned to Peru once before her marriage, which is to compensate for the lasting for seven weeks in 1973, and once after her disadvantages of living as an expatriate. As I marriage, for four months in 1975. see it, the single event of changing the place Apparently she was also absent from of residence is primarily intended to be Belgium for two months in 1974, when she covered by the installation allowance under went to Italy. Such sporadic absences do not Article 5 of Annex VII to the Staff Regu­ suffice to deprive her residence in Belgium lations, which consists of a single payment. of its habitual nature within the meaning of The expatriation allowance, under Article Article 4(1)(a): see Case 188/83 Witte v 4(1) of Annex VII, is a continuing monthly Parliament [1984] ECR 3465, at p. 3474, payment and as such is intended to paragraph 11. Conversely, her trips back to compensate for the continuing disad­ Peru were far from sufficient to establish vantages which result from living in a that she was still habitually resident there as foreign country in order to work for the she contends. Finally, the maintenance of Communities. This is brought out better by family and possibly emotional links with the words used in paragraph 10 of Nuñez, Peru is not incompatible with the estab­ cited above. Moreover, in Case 147/79 lishment of habitual residence in Belgium. Hochstrass v Court of Justice [1980] ECR Weighing up the relevant facts in the case of 3005, at p. 3020, the Court explained that Mrs Atala-Palmerini, I consider that she the foreign residence allowance under was habitually resident in Belgium Article 4(2) of Annex VII was intended to throughout the whole of the reference compensate for the disadvantages which

13. Accordingly I consider that the application should be dismissed and that, pursuant to Article 69(2) and Article 70 of the Rules of Procedure , each party should be ordered to pay its own costs.