Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. This action, brought on 6 September 1983, concerns the expatriation allowance which Hermann Witte, an employee of the European Parliament, claims should be paid to him by the Community administration.

2. Mr Witte, a German national, was born in 1950 in Mainz, and came with his family to Luxembourg in 1958 when his father entered the service of the European Parliament. He recieved his elementary and secondary education in Luxembourg at the European School, which he attended until 1970, and in that year he married a Luxembourg national. He then went with his wife to Münster in the Federal Republic of Germany, where he attended the Faculty of Law at the University of Münster from October 1970 to December 1974 and passed the erste juristische Staatsprüfung. From March 1975 onwards Mr Witte and his wife lived in Luxembourg. In March and April of that year he took part in a training course in the Terminology Division of the European Parliament. Having been appointed Rechtsrefe-rendar by a decision of the president of the Oberlandesgericht Koblenz of 21 April 1975, Mr Witte worked in that capacity from 1 May 1975 to 30 September 1977; he worked in a lawyer's office in Trier, completed a training period in the secretariat of the European Parliament in Luxembourg, and after completing a course in Saarburg he passed the zweite juristische Staatsprüfung. He was then unemployed until 1 March 1979, when he found employment in Luxembourg with the Belgian company Burroughs.

3. As I have noted, the Staff Regulations provide that in orde to be entitled to the payment of the allowance, employees who are nationals of a Member State other than that in which they are employed must fulfil two conditions for an unbroken period of five years (in this case, from 17 November 1976 to 17 November 1981): (a) they must not habe habitually resided within the territory of the State where they are employed; (b) they must not have carried on their main occupation in that State. I should point out that those conditions are concurrent, and not alternative as the applicant argues.

4. I therefore go on to consider the first of the two conditions laid down by the Staff Regulations. It requires the determination of the abitazione abituale [habitual residence] of the person concerned — an expression which is not only cacophonous (at least in Italian) but is technically imprecise and may raise problems of interpretation. According to the applicant the expression abitazione corresponds to the domicile of French law and to the ständiger Wohnsitz of German law: it is therefore the place in which a person actually lives and carries on his occupation. The Parliament's representative, on the other hand, understands abitazione as a mere factual situation, or, better, expressed as the place in which the person concerned leads his personal life and does not necessarily pursue his occupation.

5. The problem of Mr Witte's habitual residence must be resolved on the basis of those simple criteria. The official believes that he fulfils the requirements of residence in the Federal Republic of Germany in view of the way in which the Parliament applies Article 4 (1) of Annex VII (six months' continuous residence during the five-year reference period in a Member State other than that in which the official is employed). More specifically, he states that during the period 17 November 1976 to 17 November 1981 he spent 39 months in Germany, where he: (a) worked as a Rechtsreferendar; (b) prepared for, then passed the zweite juristische Staatsprüfung; (c) sought employment. With regard in particular to the first of those activities, Mr Witte reminds the Court that according to German public service law a Rechtsreferendar must have a place of abode in the Federal Republic.

6. The applicant, then, has not shown that he fulfilled the first of the two conditions laid down in Article 4 of Annex VII. It is not therefore necessary for me to examine the question whether he fulfilled the condition regarding the place of his main occupation. For the sake of completeness, however, I shall go into that question also.

7. On the basis of all the foregoing observations I propose that the Court dismiss the action brought by application of 6 September 1983 against the European Parliament by Hermann Witte.

1 Translated from the Italian.

2 Translator's note: the expressions abitazione and residenza are both rendered in the English version as residence.