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

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OFFICIALS - REMUNERATION - EXPATRIATION ALLOWANCE - PURPOSE - OFFICIAL NOT A NATIONAL OF THE MEMBER STATE IN WHICH HIS PLACE OF EMPLOYMENT IS SITUATED - HABITUAL RESIDENCE IN HIS PLACE OF EMPLOYMENT BEFORE ENTRY INTO SERVICE - ABSENCE OF SHORT DURATION - RETURN NOT GIVING RISE TO EXTRA EXPENSE AND INCONVENIENCE - CONDITIONS FOR THE GRANTING OF THE ALLOWANCE NOT FULFILLED .
( STAFF REGULATION OF OFFICIALS, ANNEX VII, ART . 4 ( 1 ) ( A ) )

IN CASE 105/87
ANTONIO MORABITO, AN OFFICIAL OF THE EUROPEAN PARLIAMENT, RESIDING IN LUXEMBOURG, REPRESENTED BY MARC MODERT, OF THE LUXEMBOURG BAR, 45A BOULEVARD JOSEPH II,
APPLICANT,
V
EUROPEAN PARLIAMENT, REPRESENTED BY ITS JURISCONSULT, MR PASETTI BOMBARDELLA, ACTING AS AGENT, ASSISTED BY M . PETER, HEAD OF DIVISION IN THE LEGAL DEPARTMENT,
DEFENDANT,
APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE PARLIAMENT REFUSING TO GRANT THE APPLICANT AN EXPATRIATION ALLOWANCE,
THE COURT ( FOURTH CHAMBER )
COMPOSED OF : G . C . RODRIGUEZ IGLESIAS, PRESIDENT OF CHAMBER, T . KOOPMANS AND C . KAKOURIS, JUDGES,
ADVOCATE GENERAL : G . F . MANCINI
REGISTRAR : D . LOUTERMAN, ADMINISTRATOR
HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 20 JANUARY 1988,
AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 20 JANUARY 1988,
GIVES THE FOLLOWING
JUDGMENT

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 6 APRIL 1987, ANTONIO MORABITO, A SKILLED EMPLOYEE OF THE EUROPEAN PARLIAMENT, BROUGHT AN ACTION FOR THE ANNULMENT OF DECISION 22813 OF 19 AUGUST 1986 BY WHICH HE WAS REFUSED AN EXPATRIATION ALLOWANCE, AND DECISION 00365 OF 8 JANUARY 1987 BY WHICH HIS COMPLAINT FOLLOWING THAT REFUSAL WAS REJECTED .
2 SINCE THE DEFENDANT HAD FAILED TO LODGE A DEFENCE WITHIN THE TIME PRESCRIBED, THE APPLICANT APPLIED UNDER ARTICLE 94 ( 1 ) OF THE RULES OF PROCEDURE FOR JUDGMENT BY DEFAULT . THIS JUDGMENT IS THEREFORE DELIVERED BY DEFAULT .
3 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE BACKGROUND TO THE DISPUTE AND THE APPLICANT' S SUBMISSIONS AND ARGUMENTS, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
4 ACCORDING TO ARTICLE 4 ( 1 ) ( A ) OF ANNEX VII TO THE STAFF REGULATIONS, AN EXPATRIATION ALLOWANCE IS TO BE PAID TO OFFICIALS WHO ARE NOT NATIONALS OF THE STATE IN WHOSE TERRITORY THE PLACE WHERE THEY ARE EMPLOYED IS SITUATED AND WHO "DURING THE FIVE YEARS ENDING SIX MONTHS BEFORE THEY ENTERED THE SERVICE DID NOT HABITUALLY RESIDE OR CARRY ON THEIR MAIN OCCUPATION" WITHIN THE TERRITORY OF THAT STATE . IN THE CASE OF MR MORABITO, WHO ENTERED THE SERVICE ON 1 NOVEMBER 1985, THE FIVE YEAR REFERENCE PERIOD RAN FROM 1 MAY 1980 TO 30 APRIL 1985 .
5 IN THE CONTESTED DECISIONS, THE EUROPEAN PARLIAMENT TOOK THE VIEW THAT MR MORABITO HAD "RESIDED AND/OR WORKED IN LUXEMBOURG" DURING THE REFERENCE PERIOD, WITH THE EXCEPTION OF THE LAST FOUR MONTHS OF THAT PERIOD, THAT IS TO SAY, FROM 2 JANUARY TO 30 APRIL 1985 . HOWEVER, IN ORDER TO BE TAKEN INTO ACCOUNT FOR THE PURPOSES OF A RIGHT TO AN EXPATRIATION ALLOWANCE, THE ABSENCE, ACCORDING TO THE PARLIAMENT, MUST BE OF AT LEAST SIX MONTHS . THE TEMPORARY NATURE OF THAT ABSENCE AT THE BEGINNING OF 1985 IS CONFIRMED BY THE FACT THAT HE DID NOT MOVE HIS EFFECTS AND WAS NOT IN PAID EMPLOYMENT . IN THE DECISION REJECTING HIS COMPLAINT THE EUROPEAN PARLIAMENT STATED THAT "THE SHORT DURATION AND THE CIRCUMSTANCES" OF MR MORABITO' S ABSENCE FROM LUXEMBOURG TERRITORY DURING THE REFERENCE PERIOD DID NOT ALTER THE FACT THAT HE "HABITUALLY RESIDED IN THE CITY OF LUXEMBOURG ".
6 THE APPLICANT BASES HIS ACTION ON THE FOLLOWING FACTS . AN ITALIAN NATIONAL AND A BACHELOR, HE TOOK UP RESIDENCE IN THE GRAND DUCHY OF LUXEMBOURG IN 1975 . HE WAS EMPLOYED IN A HOTEL IN THE CITY OF LUXEMBOURG, WHERE HE RESIDED UNTIL 1983, AT WHICH TIME HE BEGAN TO SHARE A BED-SITTING ROOM WITH A FRIEND . IN 1979, HE TOOK PART IN A COMPETITION ORGANIZED BY THE EUROPEAN PARLIAMENT FOR THE PURPOSE OF RECRUITING SKILLED EMPLOYEES, FOLLOWING WHICH HIS NAME WAS PLACED ON THE RESERVE LIST FOR A POST IN THAT CAREER BRACKET . TOWARDS THE END OF DECEMBER 1984, WHEN HIS MOTHER, WHO RESIDED IN REGGIO CALABRIA, ITALY, BECAME SERIOUSLY ILL, THE APPLICANT LEFT HIS EMPLOYMENT IN THE HOTEL IN WHICH HE HAD WORKED IN ORDER TO GO TO ITALY TO ASSIST HIS MOTHER . HE INFORMED THE MUNICIPAL AUTHORITIES AND THE SOCIAL SECURITY INSTITUTION OF HIS DEPARTURE . HE THEN LIVED WITH HIS MOTHER IN REGGIO CALABRIA BUT WAS UNABLE TO FIND EMPLOYMENT THERE . IN THOSE CIRCUMSTANCES, HE MADE ENQUIRIES IN JUNE 1985 AT THE EUROPEAN PARLIAMENT AS TO THE POSSIBILITIES OF FINDING EMPLOYMENT ON THE BASIS OF THE COMPETITION IN WHICH HE HAD TAKEN PART . IN OCTOBER 1985, HE WAS OFFERED THE POST OF MESSENGER WHICH HE CURRENTLY OCCUPIES . AFTER TAKING UP HIS DUTIES ON 1 NOVEMBER 1985, HE INFORMED THE MUNICIPAL AUTHORITIES OF HIS RETURN . UNTIL HE FOUND SUITABLE ACCOMMODATION IN LUXEMBOURG, HE ONCE AGAIN OCCUPIED THE BED-SITTING ROOM WHICH HE HAD SHARED WITH A FRIEND BEFORE HIS DEPARTURE FOR ITALY . HE MOVED INTO A FLAT IN 1986 AND BOUGHT FURNITURE IN LUXEMBOURG AT THAT TIME .
7 AT THE REQUEST OF THE COURT, THE APPLICANT PROVIDED ADDITIONAL INFORMATION, WITH SUPPORTING DOCUMENTS, WHICH CONFIRMS HIS STATEMENTS OF FACT . THE FACTS HE ALLEGES MUST THEREFORE BE REGARDED AS PROVED FOR THE PURPOSES OF THESE PROCEEDINGS .
8 THE APPLICANT CLAIMS THAT THE CONDITIONS LAID DOWN IN ARTICLE 4 ( 1 ) ( A ) OF ANNEX VII TO THE STAFF REGULATIONS ARE FULFILLED IN HIS CASE . DURING THE REFERENCE PERIOD, HE LEFT THE GRAND DUCHY WITHOUT MAINTAINING ANY CONNECTION WITH IT OR LEAVING PROPERTY THERE . BY RETURNING TO ITALY, HE TERMINATED HIS PERIOD OF RESIDENCE IN THE GRAND DUCHY, CEASING TO BE AFFILIATED TO THE LUXEMBOURG SOCIAL SECURITY SCHEME AND EVEN CHOOSING NOT TO CONTINUE THAT AFFILIATION ON A VOLUNTARY BASIS WITH A VIEW TO A POSSIBLE RETURN TO LUXEMBOURG . IT WAS ONLY WHEN HE DISCOVERED THAT IT WAS IMPOSSIBLE TO FIND EMPLOYMENT IN OR AROUND REGGIO CALABRIA THAT HE MADE CONTACT WITH THE EUROPEAN PARLIAMENT WITH A VIEW TO A POSSIBLE RETURN .
9 IT MUST BE OBSERVED FIRST THAT THE APPLICANT RESIDED IN LUXEMBOURG AND CARRIED ON OCCUPATIONAL ACTIVITIES THERE DURING THE ENTIRE REFERENCE PERIOD WITH THE EXCEPTION OF THE LAST FOUR MONTHS .
10 IT SHOULD ALSO BE BORNE IN MIND THAT, AS THE COURT HAS CONSISTENTLY HELD, THE OBJECT OF THE EXPATRIATION ALLOWANCE IS TO COMPENSATE OFFICIALS FOR THE EXTRA EXPENSE AND INCONVENIENCE OF TAKING UP EMPLOYMENT WITH THE COMMUNITIES AND BEING THEREBY OBLIGED TO CHANGE THEIR RESIDENCE AND MOVE TO THE COUNTRY OF EMPLOYMENT ( SEE THE JUDGMENT OF 2 MAY 1985 IN CASE 246/83 DE ANGELIS V COMMISSION (( 1985 )) ECR 1253 ).
11 IN THOSE CIRCUMSTANCES, THE PROBLEM ARISES WHETHER THE APPLICANT' S RETURN TO ITALY FOUR MONTHS BEFORE THE END OF THE REFERENCE PERIOD WITH THE INTENTION OF REMAINING THERE IS SUFFICIENT TO JUSTIFY THE CONCLUSION THAT THE EXTRA EXPENSE AND INCONVENIENCE FOR WHICH THE EXPATRIATION ALLOWANCE IS INTENDED TO COMPENSATE WERE INVOLVED IN THIS CASE .
12 IN THAT REGARD, THE FACT THAT THE APPLICANT' S ABSENCE FROM LUXEMBOURG DURING THE REFERENCE PERIOD WAS FOR A PERIOD OF LESS THAN SIX MONTHS IS NOT RELEVANT . THE CONDITIONS LAID DOWN IN ARTICLE 4 ( 1 ) ( A ) OF ANNEX VII MAY BE FULFILLED EVEN WHERE THE ABSENCE IS OF SHORT DURATION, PROVIDED THAT THE MOVE BY THE PERSON CONCERNED TO THE PLACE OF EMPLOYMENT AFTER SUCH AN ABSENCE IS NONE THE LESS SUCH AS TO GIVE RISE TO EXTRA EXPENSE AND INCONVENIENCE .
13 THAT IS NOT SO, HOWEVER, IN THIS CASE . AT THE TIME WHEN HE TOOK UP HIS DUTIES, THE APPLICANT WAS ACCUSTOMED TO LIVING AND RESIDING IN LUXEMBOURG . ON HIS RETURN TO LUXEMBOURG, HE WENT TO LIVE IN THE FLAT WHICH HE HAD LEFT AT THE BEGINNING OF 1985, THE FURNITURE IN WHICH BELONGED TO A FRIEND . WHATEVER MAY HAVE BEEN THE APPLICANT' S INTENTIONS WHEN HE LEFT THE GRAND DUCHY, THE COURSE OF EVENTS, VIEWED WITH THE BENEFIT OF HINDSIGHT, SHOWS THAT HE INTERRUPTED HIS PERIOD OF RESIDENCE AND OCCUPATIONAL ACTIVITY IN LUXEMBOURG ONLY IN ORDER TO ASSIST HIS MOTHER, WHO WAS ILL, FOR A FEW MONTHS .
14 IN THOSE CIRCUMSTANCES, IT HAS NOT BEEN PROVED THAT THE APPLICANT DID NOT HABITUALLY RESIDE IN LUXEMBOURG, AS REQUIRED BY ARTICLE 4 ( 1 ) ( A ) OF ANNEX VII .
15 IT FOLLOWS THAT THE APPLICATION MUST BE DISMISSED .

COSTS
16 UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THOSE RULES, INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN PROCEEDINGS COMMENCED BY SERVANTS OF THE COMMUNITY .

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