Judgment — ECLI:EU:F:2016:2
Date: 2016-01-20
Language of the case: French
Court formation: Second Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - successful

Summary 1. Officials — Remuneration — Expatriation allowance — Conditions for granting — No habitual residence or main occupation in the Member State of employment during the reference period — Concept of habitual residence — Sporadic, brief absence from that State — Circumstance having no effect on the habitual character of the residence (Staff Regulations, Annex VII, Art. 4(1)(a)) 2. Officials — Remuneration — Expatriation allowance — Conditions for granting — No habitual residence or main occupation in the Member State of employment during the reference period — Period of university study in the State of employment followed by a period of training or employment in that same State — Intention of the person concerned to move the permanent centre of his interests to that State during the period of study — Ex post facto assessment in the light of the facts and circumstances during period of training or employment — Not permissible (Staff Regulations, Annex VII, Art. 4(1)(a)) 1. Article 4(1)(a) of Annex VII to the Staff Regulations must be interpreted as adopting the habitual residence of the official or other staff member concerned prior to taking up employment as the criterion for the grant of the expatriation allowance. In that regard, the place of habitual residence is that in which the official or other staff member concerned has established, with the intention that it should be of a lasting character, the permanent or habitual centre of his interests, it being understood that for the purposes of determining habitual residence, all the factual circumstances which constitute such residence and, in particular, the actual residence of the official concerned must be taken into account. The official or staff member concerned loses the benefit of the expatriation allowance only if he had his habitual residence or carried on his main occupation in the country of his employment throughout the reference period, it being understood that sporadic and brief absences cannot be deemed sufficient to deprive the applicant’s residence in the State of employment of its habitual character. (see paras 44-45) See: Judgments of 9 March 2010 in Tzvetanova v Commission, F‑33/09, EU:F:2010:18, para. 39; of 15 March 2011 in Mioni v Commission, F‑28/10, EU:F:2011:23, para. 22; and 18 June 2015 in Pondichie v Commission, F‑50/14, EU:F:2015:62, paras 34 and 35 and the case law cited therein 2. It may not be inferred from the mere fact that a person is resident in a country in order to complete university studies, which are by definition temporary, that he intends to move the permanent centre of his interests to that country. It is still possible, however, that a stay as a student constitutes habitual residence in that country if, taken into consideration with other relevant facts, it shows that the person concerned has lasting social and professional ties with the country in question. Thus, where a period of study is followed by a period of training and/or employment in the same State, the continued presence of the person concerned may create the presumption, albeit one that might be proved wrong, that he intended to transfer the permanent or habitual centre of his interests, and thus his habitual residence, to that State. However, the intention of the person concerned to transfer the permanent centre of his interests to that country during the period of study cannot be assessed ex post facto, in the light of the facts and circumstances which occurred at the end of that period of study. Such an approach would essentially amount to ignoring the facts of the situation of the person concerned during his period of actual study. Accordingly, the fact that the person concerned had his habitual residence in the State of his employment during the period of training or employment does not in any way allow the conclusion to be drawn retrospectively that he transferred the permanent centre of his interests from the time of his period of study. (see paras 49, 50, 61) See: Judgments of 4 December 2008 in Blais v ECB, F‑6/08, EU:F:2008:160, para. 90; of 9 March 2010 in Tzvetanova v Commission, F‑33/09, EU:F:2010:18, para. 45; of 15 March 2011 in Mioni v Commission, F‑28/10, EU:F:2011:23, paras 31 and 32; and of 18 June 2015 in Pondichie v Commission, F‑50/14, EU:F:2015:62, para. 39