Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. This is the first case since the setting-up of the Court of Justice in which the defendant is in default. The European Parliament's application for an extension of the time-limit for the lodging of its defence reached the Court after the expiry of the said time-limit. Consequently, by an application of 19 June 1987 under Article 94 (1) of the Rules of Procedure, the applicant, Antonio Morabito, applied for judgment by default. The application, which was received at the Court Registry on 6 April 1987, seeks principally the annulment of the decision of 8 January 1987 by which the Secretary-General of the Parliament confirmed the refusal to grant Mr Morabito an expatriation allowance. In the alternative, the applicant asked the Court to declare that he was entitled to that allowance on the basis of the criteria applied by the institution to all its officials and other staff and to order the Parliament to make good the damage suffered.

2. The facts are as follows. Mr Morabito, an Italian national, was enrolled for the first time in the population register of the City of Luxembourg on 1 August 1975. From that date until 1 January 1985, he worked as a barman at the Holiday Inn in that city. At the beginning of December 1984, he resigned from his position and on 12 December 1984 he informed the City of Luxembourg of his intention to leave, which he subsequently put back by two weeks at the request of his employer. His reason for leaving was his decision to return to his home town (Vinco, Reggio Calabria) to assist his mother, who died on 29 July 1986 after a long illness and a stay in hospital.

3. In support of his application, Mr Morabito argues that the reasons on which the decision is based are incorrect. However, that submission would be more properly expressed as an infringement of the Staff Regulations of Officials. The applicant considers that the expatriation allowance must be paid once the official can show that he definitively left the territory on which the place where he is employed is situated six months before he entered the service and there is no doubt that he was in Italy during the 10 months preceding his entry into service as an official of the Parliament. Mr Morabito also denies that that stay was temporary. His intention to live permanently in Italy is demonstrated by the declaration made to the City of Luxembourg at the time he left the Grand Duchy and by the termination of his affiliation to the local social security scheme. He explains the fact that he did not remove his effects by two circumstances: at the time, he did not have any furniture and he lived in a flat rented by a friend.

4. The admissibility of the originating application and compliance with the procedural formalities, which the Court is required to verify under Article 94 (2) of the Rules of Procedure, pose no problem.

5. Let me consider the applicant's position in the light of those principles. It is clear that he fulfils the nationality condition. It remains therefore to verify whether the other two conditions are fulfilled, namely the condition concerning habitual residence and that concerning main occupation.

6. On the basis of the foregoing considerations, I propose that the Court should dismiss the application brought by Antonio Morabito against the European Parliament on 6 April 1987.

1 Translated from the Italian.