JUDGMENT OF THE COURT OF FIRST INSTANCE (Single Judge)

25 May 2004

Case T-69/03

W

v

European Parliament

(Officials – Resettlement allowance – Definition of residence – Evidence)

Full text in French II - 0000

Application: for annulment of the decision of the European Parliament of 3 June 2002 refusing to grant the applicant a resettlement allowance.

Held: The application is dismissed. The parties are ordered to bear their own costs.

Summary

1. Officials – Actions – Subject-matter – Directions issued to the administration – Inadmissibility

(Staff Regulations, Art. 91)

2. Officials – Actions – Assessment of the legality of the contested measure on the basis of the facts and the law as they stood at the time when it was adopted

(Staff Regulations, Art. 91)

3. Officials – Reimbursement of expenses – Resettlement allowance – Conditions for granting – Actual transfer of habitual residence – Definition of habitual residence – Burden of proving that resettlement actually took place falling on official – Three-year time-limit imposed for the transfer, but not for proof that it took place

(Staff Regulations, Annex VII, Art. 6)

1. The Court may not issue directions to the Community institutions or assume the role assigned to them. Thus a claim by a former official for an institution to be ordered to grant him a resettlement allowance must be declared inadmissible.

(see paras 20, 22)

See: C-5/93 P DSM v Commission [1999] ECR I-4695, para. 36; T-145/98 ADT Projekt v Commission [2000] ECR II-387, para. 83

2. The legality of an individual measure contested before the Community judicature must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted. If the Court had to examine that legality in the light of facts that did not exist at that time, it would be assuming the role of the institution which took the measure in question. However, it is not for the Court to substitute itself for the institutions.

(see para. 28)

See: C-449/98 P IECC v Commission [2001] ECR I-3875, para. 87; T-19/90 Von Hoessle v Court of Auditors [1991] ECR II-615, para. 30

3. Although Article 6 of Annex VII to the Staff Regulations makes granting of the resettlement allowance conditional only upon transfer of the residence of the official concerned to a place situated not less than 70 kilometres from the place where he or she was employed, the transfer of residence referred to by that provision implies, however, an actual transfer of the official’s habitual residence to the new place indicated as being that of resettlement.

The concept of habitual residence must be interpreted as meaning the place where the person concerned has established, and intends to maintain, the permanent or habitual centre of his or her interests. In addition, the concept of residence, whilst not based on a purely quantitative factor, namely the length of time spent by the person in a particular country, does nevertheless involve, apart from the actual fact of living in a given place, the intention of thereby achieving the continuity which stems from a stable way of life and from the course of normal social relations, so that the renting of an apartment is not sufficient evidence of the actual transfer of the habitual residence.

It is for the official to show, by any legally permissible means, that he actually changed his place of residence in the three years following the termination of his service, though it is pointed out that the evidence that resettlement actually took place within that period may be provided after it has expired. However, that evidence is relevant only in so far as it proves that the official actually changed his place of residence in the three years following the termination of his service.

(see paras 41-43, 48)

See: T‑57/92 and T-75/92 Yorck von Wartenburg v Parliament [1993] ECR II‑925, paras 65 and 66; T-37/99 Miranda v Commission [2001] ECR-SC I-A-87 and II-413, paras 30, 31 and 32