Report for the Hearing delivered in Case 330/85

I — Facts of the Case

1. Article 4 (1) (b) of Annex VII to the Staff Regulations reads as follows:

2. The applicant, a Luxembourg national, has been an official of the Commission (Grade L/A 7) since 16 April 1984. He is employed in Luxembourg. The dispute is concerned, in essence, with the question whether the applicant habitually resided outside the territory of the Grand Duchy of Luxembourg between 15 April 1974 and 15 April 1984.

3. The applicant was born in 1953 in Luxembourg, where he lived until 15 October 1973. From 15 October 1973 until 1 October 1977 he resided in Strasbourg for the purpose of his studies. From 4 October 1977 until 1 May 1984 his name was entered, without interruption (ununterbrochen), in the population register (Melderegister) of Germersheim in Germany.

4. During the period from October 1977 until March 1981 the applicant attended the University of Mainz in order to study languages. In his application for employment, completed on 30 March 1983, Mr Richter stated that he worked between September 1978 and April 1983 as a freelance translator for a company known as BBK Gesellschaft für Moderne Sprachen mbH in Germersheim, that he was a trainee with the Terminology Division of the Commission in Luxembourg between September 1981 and February 1982 and that he was also a freelance translator for the Commission in Luxembourg between March 1982 and April 1983. On the same application form the applicant stated that both his permanent address (ständiger Aufenthaltsort) and his address for correspondence (Anschrift für die Korrespondenz) were in Luxembourg. His judicial record issued by the Ministry of Justice [extrait de easier judiciaire], attached to his personal file and dated 31 March 1983, refers to him as living in Luxembourg.

5. The applicant learnt from his salary statement for September 1984 that the expatriation allowance had not been granted to him. Pursuant to Article 90 (1) of the Staff Regulations, he submitted a request for the allowance which was refused by the administration. He then lodged a complaint under Article 90 (2) of the Staff Regulations which was rejected by a decision dated 7 August 1985 received by him on 9 August 1985.

II — Written procedure and conclusions of the parties

The written procedure followed the normal course. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court (Second Chamber) decided to open the oral procedure without any preparatory inquiry.

The applicant claims that the Court should:

The Commission claims that the Court should dismiss the application as unfounded and make an appropriate order as to costs.

III — Submissions and arguments of the parties

1. The applicant adduces as his sole submission the infringement of Article 4(1) (b) of Annex VII to the Staff Regulations.

2. The Commission contends in the first place that the term habitually resided in Article 4 (1) (b) refers to a de facto situation, namely the official's physical absence from the territory of the State in which his place of employment lies. The fact that the official resided habitually — albeit partially — in the territory of that State during the period under consideration is enough to disqualify him from receiving the expatriation allowance. Consequently, an absence from the country of employment for the purpose of university studies does not have the automatic effect of interrupting the period of habitual residence. It follows that the applicant's studies at Strasbourg and Mainz did not interrupt his period of residence in Luxembourg.

1 Language of the Case: French.