Judgment of the Court (First Chamber) 17 February 1976 Jean-Louis Delvaux v Commission of the European Communities

In Case 42/75

THE COURT (First Chamber) composed of: A. M. Donner, acting President of Chamber, J. Mertens de Wilmars and A. O'Keeffe, Judges, Advocate-General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and procedure

II — Conclusions of the parties

III— Submissions and arguments of the parties

Law

Costs

I —. Facts and procedure

II —. Conclusions of the parties

(a). declare the opposite party's implied rejection of his complaint of 2 October 1974 to be null and void;

(b). declare and adjudge that the applicant is entitled to an expatriation allowance as from 16 July 1974;

(c). order the opposite party to pay to the applicant the increments to his salary resulting from the grant of the said allowance, that is to say, (subject to the right to amend the figure in the course of the proceedings) Bfr 100000;

(d). order the opposite party to pay the costs;

(1). that when the applicant left Brussels on 16 July 1964 he was accompanied by his fiancée, Miss Margrethe Pade, with whom he had to go to Denmark in order to take the necessary measures to settle there permanently;

(2). that his return to Belgium in August 1964 and his subsequent visits were only intended to have his call-up advanced and to enable him to return to Denmark permanently at the earliest possible date.

(a). dismiss the application as unfounded;

(b). order the applicant to pay the costs;

III—. Submissions and arguments of the parties

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.

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.

1 Language of the Case: French.