62023TJ1093_RES
Case T-1093/23
AH
v
European Commission
Judgment of the General Court (Fourth Chamber, Extended Composition) of 22 January 2025
(Civil service – Members of the contract staff – Remuneration – Expatriation allowance – Refusal to grant the expatriation allowance – Calculation of the five-year reference period – Article 4(1)(a) of Annex VII to the Staff Regulations – Liability)
Officials – Remuneration – Expatriation allowance – Conditions for granting – Habitual residence outside the Member State of employment during the reference period – Application in the event of successive contracts concluded between the person concerned and different institutions located at the place of employment – Refusal to grant the expatriation allowance
(Staff Regulations of Officials, Annex VII, Art. 4(1)(a))
(see paragraphs 32-34, 36-42, 44-47)
Actions brought by officials – Unlimited jurisdiction – Disputes of a financial character within the meaning of Article 91(1) of the Staff Regulations – Concept – Action seeking to obtain the retroactive payment of the expatriation allowance – Included
(Staff Regulations, Art. 91(1))
(see paragraphs 50-53)
Résumé
Hearing an action brought by AH, a contract agent, the General Court, sitting in extended composition, annuls the decision of the ‘Office for the Administration and Payment of Individual Entitlements’ (PMO) of the European Commission refusing to grant AH the expatriation allowance (‘the contested decision’). In doing so, the Court specifies the conditions under which the right to receive the expatriation allowance for contract agents must be granted.
The applicant, an Italian national who had been living in Brussels since May 2017, was recruited as a contract agent at the Committee of the Regions for the period from 1 October 2022 to 30 September 2023. In assessing his financial entitlements upon his entry into service at the Committee of the Regions, the latter granted him the expatriation allowance referred to in Article 69 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), calculated in accordance with Article 4(1)(a) of Annex VII to the Staff Regulations.
Since he was recruited for the position of contract agent at the General Secretariat of the Council (GSC), the applicant terminated his duties at the Committee of the Regions on 31 January 2023. He took up his duties at the GSC the following day.
Upon that latter entry into service, the PMO sent him the contested decision according to which he was not entitled to receive the expatriation allowance because, first, his engagement within the GSC was a new entry into service. Secondly, he had worked and lived in Belgium for the entire five-year reference period, which determines that right, provided for in the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations, which was set from 1 August 2017 to 31 July 2022, that is to say five years expiring six months before 1 February 2023, when the applicant was recruited by the GSC.
Findings of the Court
In the first place, the Court notes that the purpose of the expatriation allowance is to compensate officials and members of staff for the extra expense and inconvenience of taking up employment with the European Union if they have been thereby obliged to change their residence from their State of residence and move to the State of employment and to integrate themselves into a new environment.
In the present case, the applicant’s situation, as established at the time of his entry into service at the Committee of the Regions, had not changed when he took up his duties at the GSC. The same applies to the extra expense and inconvenience that the expatriation allowance seeks to compensate. Thus, there was no gap between the contract concluded with the Committee of the Regions and that concluded with the GSC. Furthermore, since the Committee of the Regions and the GSC are located in Belgium, the change of employment did not entail a change of State of employment.
In that regard, the absence of any interruption in time between the contracts concluded by the applicant successively with the Committee of the Regions and the GSC, and the fact that he did not change his State of employment, lead to the conclusion that, notwithstanding the change of employer, there was, in the present case, continuity between the applicant’s contracts which justified the renewal of his right to receive the expatriation allowance that had been assessed upon his entry into service at the Committee of the Regions
Consequently, the Court finds that the PMO made a manifest error of assessment and an error of law as regards the interpretation of Article 4(1) of Annex VII to the Staff Regulations, in refusing the applicant the right to receive the expatriation allowance upon his appointment at the GSC.
In the second place, the Court recalls that, in disputes of a financial character, it has unlimited jurisdiction under the second sentence of Article 91(1) of the Staff Regulations, which entrusts it with the task of providing a complete solution to the disputes brought before it, that is to say to rule on all the rights and obligations of the member of staff, save for leaving to the institution in question, under the control of the Court, the implementation of such part of the judgment, under such precise conditions as it shall determine.
‘Disputes of a financial character’ within the meaning of that provision include not only actions brought by members of staff seeking to have an institution held liable, but also all those seeking payment by an institution to a member of staff of a sum which he or she considers to be due to him or her under the Staff Regulations or other measure governing their working relations. It is for the EU judicature, where appropriate, to order an institution to pay a sum to which the applicant is entitled under the Staff Regulations or another legal measure.
Therefore, the Court concludes that the applicant is entitled to receive the expatriation allowance with effect from 1 February 2023, namely when he was appointed at the GSC.