C-452/93

Mr President, 2. By its judgment of 28 September 1993 1 Members of the Court, the Court of First Instance dismissed the action, holding that the applicant failed to satisfy the conditions upon which entitle­ ment to the expatriation allowance depends, that is to say, that for the duration of the ref­ erence period he neither habitually resided nor pursued his main occupation in the ter­ ritory of the State in which the place of 1. Mr Magdalena Fernández, a Commission employment was situated (paragraphs 24 to official of Spanish nationality, brought pro­ 30). ceedings before the Court of First Instance against the administration's refusal, by deci­ sion of 24 July 1992, to grant him the expa­ triation allowance under Article 4(1 )(a) of Annex VII to the Staff Regulations applica­ ble to officials of the European Communities (hereinafter the 'Staff Regulations'). In particular, the Court of First Instance rejected the argument based on the fact that the applicant had spent the first eight months 2 of the reference period in Spain, and held that to be irrelevant since 'the applicant con­ tinued thereafter to live and work in Liège. An absence of that kind from the country of The provision in question, I would remind employment, being of an episodic and brief the Court, states that an expatriation allow­ nature, cannot be considered sufficient to ance is to be paid to officials 'who are not deprive the applicant's residence in the State and have never been nationals of the State in of employment of its habitual nature for the whose territory the place where they are purposes of the provision of the Staff Regu­ employed is situated, and who during the lations mentioned above. That absence con­ five years ending six months before they cerns only the first eight months of the entered the service did not habitually reside or cany on their main occupation within the European territory of that State. For the pur­ poses of this provision, circumstances arising 1 — Case T-90/92 Magdalena Fernandez v Commission [19931 ECR II-971. from work done for another State or for an 2 — To be more precise, the Court of First Instance found that international organization shall not be taken the applicant did indeed live in Belgium from 1965 until 1 May 1986, except for the period from 1 October 1980 into account'. until 28 June 1981 in which he returned 'temporarily' — as a certificate from the Spanish Consulate attests — to Spain. Since in this instance the reference period runs from 1 November 1980 until 30 October 1985, it follows that the applicant was not living in Belgium during the first eight months of the reference period (see paragraph 28 of the * Original language: Italian. judgment).

4. In my opinion, however, the objection misses the point. The appellant does not, in fact, seek to dispute that for almost the entire duration of the reference period he effec­ That said, I would first of all point out that it tively resided in Belgium, but rather the is settled case-law that 'the object of granting finding contained in the judgment of the an expatriation allowance is to compensate Court of First Instance to the effect that the officials for the extra expense and inconve­ period of eight months spent in Spain was nience of taking up employment with the Communities and being thereby obliged to change their residence and move to the country of employment and to integrate 3 — See paragraph 28 of the judgment of the Court of Firs Instance. themselves in their new environment. Fur-

I - 4298

MAGDALENA FERNANDEZ v COMMISSION

On the contrary, it is necessary to ascertain, in the light of the case-law mentioned above, whether an interruption of that nature is suf­ ficient basis for holding that the official con­ It is true that the relevant provision of the cerned has transferred the permanent centre Staff Regulations does not define the concept of his interests to another State. of habitual residence, and merely refers to the place in which the official had 'habitually resided'. Nevertheless, the Court of Justice has consistently held — albeit in other areas of Community law — that habitual residence must be regarded 'as the place where a per­ 8. In that connection, I would recall that the son has established his permanent centre of Court of First Instance arrived at the conclu­ interests' 5and that, for proof of residence, it sion that the stay in Spain 'cannot be consid­ ered sufficient to deprive the official's resi­ dence in the State of employment of its 4 — See judgment in Case 201/88 Atala Palmenm v Commission habitual nature' (paragraph 29). I find myself [1989] ECR 3109, paragraph 9. See also, more recently, judg­ ments in Case T-18/91 Costacttrta Gelabert v Commission [1992] ECR II-1655, paragraph 42, and in Case T-4/92 VW- akas v Commission [1993] II-357, paragraph 39. 5 — See, most recently, judgment in Case C-297/89 Ryborg 6 — See judgment in Case 248/87 Schaflein v Commission [1988] [1991] ECR I-1943, paragraph 19; also judgment in Case ECR 4475, paragraph 10. T-63/91 Dender v Commission [1992] ECR II-2095, para­ 7 — On that point, sec judgment in Case 188/83 Witte v Parlia- graph 25. ment [1984] ECR 3465, paragraphs 9 to 12.