Court of Justice of the European Communities (including Court of First Instance Decisions)

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URL: http://www.bailii.org/eu/cases/EUECJ/1976/C4275.html
Cite as: [1976] EUECJ C-42/75

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61975J0042
Judgment of the Court (First Chamber) of 17 February 1976.
Jean-Louis Delvaux v Commission of the European Communities.
Case 42-75.
European Court reports 1976 Page 00167
Greek special edition 1976 Page 00079
Portuguese special edition 1976 Page 00085

IN CASE 42/75
JEAN-LOUIS DELVAUX , A PROBATIONER WITH THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT ETTERBEEK , 1040 BRUXELLES , 78 AVENUE DU 11 NOVEMBRE , REPRESENTED BY MARCEL SLUSNY , ADVOCATE AT THE COURT D ' APPEL , BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MISS SYS ABRAHAMSEN , 50 ROUTE D ' ESCH , BATIMENT ESSONE ,
APPLICANT ,
V COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , JOSEPH GRIESMAR , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , BATIMENT CFL , PLACE DE LA GARE ,
DEFENDANT ,

APPLICATION FOR A DECLARATION THAT THE APPLICANT IS ENTITLED TO AN EXPATRIATION ALLOWANCE ;

1 THE APPLICANT , WHO IS A BELGIAN NATIONAL , IS SEEKING THE ANNULMENT OF THE IMPLIED DECISION REJECTING HIS COMPLAINT , WHICH WAS REGISTERED ON 2 OCTOBER 1974 , AND IN WHICH HE REQUESTED PAYMENT OF THE EXPATRIATION ALLOWANCE PROVIDED FOR BY THE STAFF REGULATIONS OF OFFICIALS .

2 HE ALSO REQUESTS THAT THE COMMISSION BE ORDERED TO PAY HIM THE EXPATRIATION ALLOWANCE AS FROM 16 JULY 1974 , THE DATE ON WHICH HE ENTERED THE SERVICE OF THE DEFENDANT AS A TEMPORARY SERVANT IN THE DANISH TRANSLATION SECTION , UNTIL 1 JANUARY 1965 , WHEN HE WAS MADE A PROBATIONER .

3 HE MAINTAINS THAT , AS HE HAS HABITUALLY RESIDED OUTSIDE BELGIAN TERRITORY SINCE JULY 1964 , HE SATISFIES THE CONDITIONS LAID DOWN IN ARTICLE 4 ( B ) OF ANNEX VII TO THE STAFF REGULATIONS OF OFFICIALS , AND , AS REGARDS HIS PARTICULAR CASE , IN ARTICLE 21 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES .

4 THE PARTIES ARE AGREED ON THE FACT THAT FROM 8 MAY 1966 TO 16 JULY 1974 THE APPLICANT WAS ACTUALLY RESIDENT IN DENMARK .

5 ON THE OTHER HAND , THEY DO NOT AGREE IN RESPECT OF THE PERIOD FROM 16 JULY 1964 TO 8 MAY 1966 .
6 AS REGARDS , FIRST , THE PERIOD FROM 16 JULY 1964 TO 1 MAY 1965 , IT APPEARS FROM HIS FILE THAT THE APPLICANT VISITED DENMARK SEVERAL TIMES IN ORDER TO CONSIDER WHETHER IT WAS POSSIBLE TO ' SETTLE THERE PERMANENTLY ' .

7 HOWEVER , HE SPENT MORE THAN SIX MONTHS , THAT IS , APPROXIMATELY TWO-THIRDS OF THIS PERIOD , IN BELGIUM , OF WHICH PART WAS SPENT IN ANTWERP WHERE HE WAS EMPLOYED .

8 THIS PERIOD CANNOT BE DEEMED TO BE RESIDENCE OUTSIDE BELGIUM SOLELY ON THE GROUND THAT THE PERSON CONCERNED HAD THE INTENTION OF SETTLING SUBSEQUENTLY IN DENMARK , PARTICULARLY AS AT THAT TIME HE DID NOT EVEN CLAIM TO HAVE A PLACE OF RESIDENCE IN THAT COUNTRY .

9 SECONDLY , BY PERFORMING HIS MILITARY SERVICE IN THE BELGIAN ARMED FORCES , FIRST IN GERMANY FROM 1 MAY TO 8 SEPTEMBER 1965 AND THEN IN FRANCE WITH SHAPE FROM 8 SEPTEMBER 1965 TO 25 APRIL 1966 , THE APPLICANT WAS IN A POSITION COMPARABLE TO THAT OF A CONSCRIPT SERVING IN THE NATIONAL TERRITORY AND HE WAS PERFORMING DUTIES SIMILAR TO THOSE WHICH ARE DECLARED TO BE AN EXCEPTION TO THE ABOVEMENTIONED ARTICLE 4 ( B ): ' DUTIES IN THE SERVICE OF A STATE OR OF AN INTERNATIONAL ORGANIZATION ' .

10 THEREFORE , DURING HIS MILITARY SERVICE THE APPLICANT CANNOT BE REGARDED AS HAVING BEEN RESIDENT OUTSIDE BELGIUM , THE COUNTRY IN WHICH HE WAS DOMICILED BEFORE THIS SERVICE .

11 AS THE APPLICANT HAS LIVED OUTSIDE THE STATE IN WHICH HE IS EMPLOYED FOR A PERIOD OF LESS THAN 10 YEARS ENDING ON HIS ENTRY INTO THE SERVICE OF THE COMMUNITIES , THE APPLICATION MUST BE DISMISSED .

COSTS
12 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

13 THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .

14 HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES , INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

ON THOSE GROUNDS ,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .

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