ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

21 October 2015

Maria Lucia Arsène

v

European Commission

‛Civil service — Remuneration — Expatriation allowance — Condition laid down in Article 4(1)(b) of Annex VII to the Staff Regulations — Ten-year reference period — Starting point — Periods spent in the service of an international organisation to be left out of account — Application by analogy of Article 4(1)(a) of Annex VII to the Staff Regulations — Habitual residence outside the State of employment prior to service in an international organisation — Article 81 of the Rules of Procedure — Action manifestly unfounded’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, by which Ms Arsène seeks, first, annulment of the decision of the European Commission of 11 November 2013 refusing her the benefit of the expatriation allowance and, secondly, and order that the Commission pay her that allowance as from the commencement of her entry into service, together with default interest.

Held:

The action is dismissed as being manifestly unfounded. Ms Arsène is to bear her own costs and is ordered to pay the costs incurred by the European Commission.

Summary

Officials — Remuneration — Expatriation allowance — Conditions for granting — Habitual residence outside the Member State of employment during the reference period — Calculation of the period — Periods spent in the service of a State or international organisation to be left out of account

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

In determining the starting point for the ten-year reference period provided for in Article 4(1)(b) of Annex VII to the Staff Regulations, and in the absence of any specific indication in that provision, any period during which an official has been in the service of a State or international organisation must, by analogy with Article 4(1)(a) of Annex VII to the regulations, be left out of account. This means that the fact of an official having been in the service of a State or international organisation does not deprive the official concerned of the right to the expatriation allowance, but that the starting point for the reference period must be brought forward, in order to ascertain that the official has indeed spent ten years outside the European territory of the State of which he is or was a national, without, during those ten years, having been in the service of a State or international organisation.

If the official did indeed habitually reside outside the territory of the State of employment, but while in the service of a State or of an international organisation, he cannot be regarded as having interrupted the lasting ties which he had established with the country of employment of which he is or was a national. It is therefore the simple fact of having been in the service of a State or international organisation during the ten-year reference period which overturns the presumption that the lasting ties established with the country of employment of which the official concerned is or was a national may be regarded as having been interrupted.

(see paras 36, 46)

See:

Judgments of 25 September 2007 in Cavallaro v Commission, F‑108/05, EU:F:2007:164, paragraph 74; 5 December 2012 in Grazyte v Commission, F‑76/11, EU:F:2012:173, paragraphs 50 and 54, and the case-law cited therein, and 30 January 2014 in Ohrgaard v Commission, F‑151/12, EU:F:2014:8, paragraph 36