Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. This dispute concerns the conditions governing the application of the weighting to the allowance granted on the basis of Council Regulation (ECSC, EEC, Euratom) No 1679/85 of 19 June 1985 introducing special and temporary measures to terminate the service of certain officials in the scientific and technical services of the European Communities (Official Journal 1985, L 162, p. 1).

2. The issue which the Court is called upon to resolve is whether, at the time when he lodged his official complaint (15 April 1987), the applicant was able to show proof that he was resident in Switzerland. Article 3 (3) of Regulation No 1679/85 provides that the allowance ... shall be adjusted by the weighting fixed for the country inside or outside the Communities in which the recipient proves that he is resident (emphasis added).

3. The Commission takes the opposite view. It points out in the first place: (a) that for pensioners living in Switzerland proof of residence must be provided by way of an official document (residence permit) the issue of which has never given rise to difficulties; (b) that the applicant has not in any event asked the Commission to intercede with the Swiss authorities in order to request the grant of a permit of that kind; and (c) that the documents produced by the applicant are not sufficient to support his contention and merely show that, even before he left the service, he had a secondary residence in Massagno.

4. The Commission's argument cannot be accepted. In the first place, I would point out that, according to the case-law of the Court, a person resides in the place in which he has established, with animus manendi, the permanent or habitual centre of his interests (judgment of 12 July 1973 in Case 13/73 Angenieux v Hakenberg [1973] ECR 935, and judgment of 17 February 1977 in Case 76/76 Di Paolo v Office national de l'emploi [1973] ECR 315). I would also point out that the place of residence cannot be determined on the basis of the purely quantitative factor of the time spent by the person concerned in the territory of one country or another, with the result that the country in which that person spends most of the year is recognized as the State of residence. From that point of view, recourse to a minimum period of 185 days, which, for one thing, is prescribed for situations that are utterly different from the one under consideration, is not suited to a situation governed by a provision (Article 3 (3) of Regulation No 1679/85) which is devoid of any reference to time.

5. In the light of the foregoing considerations I propose that the Court uphold the action brought on 24 February 1987 by Mr Oskar Schäflein against the Commission of the European Communities and, accordingly:

1 Translated from the Italian.

2 Translator's now: the expression used in Article 3 (3) is the country in which ... he is resident.