JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (First Chamber)

20 November 2007

Case F-120/05

Antonis Kyriazis

v

Commission of the European Communities

(Civil service – Officials – Remuneration – Expatriation allowance – Conditions for granting – Conditions laid down in Article 4(1)(a) of Annex VII to the Staff Regulations)

Application: brought under Articles 236 EC and 152 EA, in which Mr Kyriazis seeks, first, annulment of the Commission’s decision of 12 October 2005 rejecting his complaint seeking to obtain the expatriation allowance, second, recognition of his entitlement to receive that allowance with retroactive effect from 1 March 2005, and third, recognition of his entitlement to receive that allowance in the future.

Held: The action is dismissed. Each party is to bear its own costs.

Summary

1. Officials – Remuneration – Expatriation allowance – Conditions for granting

(Staff Regulations, Annex VII, Art. 4(1)(a))

2. Officials – Remuneration – Expatriation allowance – Conditions for granting

(Staff Regulations, Annex VII, Art. 4(1)(a))

3. Officials – Remuneration – Expatriation allowance – Conditions for granting

(Staff Regulations, Annex VII, Art. 4(1)(a))

1. Under the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations, if the expatriation allowance is to be granted, the person concerned must not have habitually resided or carried on his main occupation in the country of his place of employment during the five years ending six months before he entered the service. It follows that, in the case of an official, the period of six months provided for in that provision falls immediately prior to his entry into the service in that capacity.

That literal interpretation of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations is borne out by a teleological interpretation of that provision. The period of six months must be interpreted in the light of its aim, which is to prevent officials who have habitually and for practically the whole of the reference period resided or carried on their main occupation in the country of their desired place of employment, from changing their habitual residence or place where they carry on their main occupation only shortly before entering the service. In order to prevent such a risk, the period of six months falls immediately prior to entry into the service.

As regards the determination of the reference period, the total period of five years does not necessarily have to be continuous, but may be subdivided into different phases if the person concerned has worked in the past for a State or an international organisation.

(see paras 24-25, 31)

See:

201/88 Atala-Palmerini v Commission [1989] ECR 3109, paras 2 and 6

T-60/00 Liaskou v Council [2001] ECR-SC I‑A‑107 and II‑489, paras 42, 43, 45 and 50; T-473/04 Asturias Cuerno v Commission [2007] ECR-SC I-A-2-0000 and II-A-2-0000, para. 72

2. The habitual residence to which Article 4(1)(a) of Annex VII to the Staff Regulations refers for the purpose of the grant of the expatriation allowance corresponds to the place in which the official concerned has established, with the intention that it should be of a lasting character, the permanent or habitual centre of his interests. For the purposes of determining habitual residence, all the factual circumstances which constitute such residence must be taken into account.

Where he is refused the expatriation allowance, it is for the official to demonstrate that he fulfils the conditions for entitlement laid down in the Staff Regulations and to provide all possible evidence for that purpose. In that context and where there are factual circumstances constituting habitual residence in the Member State where the person concerned was employed during the reference period, visits to another Member State in order to prepare to resettle and find employment there are not sufficient, nor is a series of other factors demonstrating ties with that State which are the usual ones which exist between an official and his country of birth.

(see paras 47-48, 53, 56, 58-59)

See:

188/83 Witte v Parliament [1984] ECR 3465, paras 5, 9 and 11; C‑452/93 P Magdalena Fernández v Commission [1994] ECR I‑4295, para. 22

T-90/92 Magdalena Fernández v Commission [1993] ECR II‑971, para. 30; Liaskou v Council, paras 62 to 64; T-251/02 E v Commission [2004] ECR-SC I‑A‑359 and II‑1643, para. 61; T‑283/03 Recalde Langarica v Commission [2005] ECR-SC I‑A‑235 and II‑1075, para. 142; T-368/03 De Bustamante Tello v Council [2005] ECR-SC I‑A‑321 and II‑1439, paras 60 and 62 and the case-law cited therein; T-259/04 Koistinen v Commission [2006] ECR-SC I-A-2-177 II‑A‑2‑879, para. 34; T-324/04 F v Commission [2007] ECR-SC I‑A-2-0000 and II-A-2-0000, paras 63 and 87

F-129/06 Salvador Roldán v Commission [2007] ECR-SC I-A-1-0000 and II‑A‑1‑0000, para. 59 and the case-law cited therein

3. The derogation concerning the grant of the expatriation allowance provided for in the last sentence of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations cannot be restricted solely to persons who have been on the staff of another State or international organisation, because it refers to ‘circumstances arising from work done for another State or for an international organisation’. However, only circumstances involving a direct legal relationship between the person concerned and the organisation or State in question correspond to circumstances covered by ‘work done … for an international organisation’ within the meaning of that provision.

The involvement, as an intermediary, of a private company outside the Community institution does not lead to the conclusion that there was a direct legal relationship between the employee and the Community institution.

(see paras 74-75, 77-78)

See:

T-72/94 Diamantaras v Commission [1995] ECR-SC I‑A‑285 and II‑865, para. 52; Liaskou v Council, para. 50; T-127/00 Nevin v Commission [2002] ECR-SC I‑A‑149 and II‑781, para. 51; Asturias Cuerno v Commission, paras 45 and 48 to 52