ddrg/super_eurlex huggingface dataset:
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.

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)

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
The rule of correspondence between a complaint under Article 91(2) of the Staff Regulations and the subsequent action requires that, for a plea before the EU judicature to be admissible, it must have already been raised in the pre-litigation procedure, enabling the authority empowered to conclude contracts of employment to know the criticisms made by the person concerned of the contested decision.

It is clear from Article 85 of the Staff Regulations that, for a sum paid without justification to be recovered, evidence must be produced to show that the recipient was actually aware that there was no due reason for the payment or that the fact of the overpayment was patently such that he could not have been unaware of it.

The words ‘patently such’, used of the irregularity of the payment, in Article 85 of the Staff Regulations do not mean that an official in receipt of an undue payment does not need to make any effort to reflect or check, but mean that repayment is required where the error is one which would not escape the notice of an official exercising ordinary care, who is deemed to know the rules governing his salary.

Article 85 of the Staff Regulations must be interpreted as meaning that it is not a question of whether or not the error was patent to the administration, but of whether it was patent to the person concerned. The situation of the administration, which is responsible for the payment of thousands of salaries and allowances of all kinds to its officials and other staff, cannot be compared to that of the official, who has a personal interest in checking the payments made to him every month. Accordingly, the fact that the administration did not cease to pay the education allowance does not affect the conclusion that the official concerned knew or could have known of that failure, and the official cannot, on the basis of good faith, escape the obligation to repay an allowance paid without justification.

(see paras 50, 56-58)

See:

Judgments of 10 February 1994 in White v Commission, T‑107/92, EU:T:1994:17, paras 32, 33, 38 and 50; 27 February 1996 in Galtieri v Parliament, T‑235/94, EU:T:1996:22, para. 49; of 17 January 2001 in Kraus v Commission, T‑14/99, EU:T:2001:10, paras 36-38, and 5 November 2002 in Ronsse v Commission, T‑205/01, EU:T:2002:269, paras 45 and 46

Judgment of 27 January 2016 in DF v Commission, T‑782/14 P, EU:T:2016:29, paras 25 and 26

Judgment of 9 September 2008 in Ritto v Commission, F‑18/08, EU:F:2008:110, para. 40
Article 41(2)(b) of the Charter of Fundamental Rights of the European Union provides that every person has the right to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy.

Moreover, the adversarial nature of disciplinary proceedings and the rights of the defence in such proceedings require that the person in question and, as appropriate, his lawyer are able to familiarise themselves with all the facts on which the administration is likely to rely in the decision concluding those proceedings, in sufficient time to submit their observations. Observance of the rights of the defence requires not only that the person concerned be placed in a position in which he may effectively make known his views on the relevant circumstances, but also that he should at least be able to put his own case on the documents taken into account by the institution and which disclose facts important to the exercise of his rights of the defence.

In that regard, when he instructed a member of the institution to conduct a mediation procedure, the current president of the institution acted in his capacity as the authority empowered to conclude contracts of employment. Then, where it is evident from the content of that member’s report that he interviewed a number of the institution’s officials and other staff as well as members of the institution, and that he has included in his report the findings of fact resulting from his investigations, those elements indicate that his activity went beyond mediation and was instead more like an administrative investigation. Similarly, the report has the characteristics of a report on the basis of which the authority empowered to conclude contracts of employment subsequently decided to open an administrative investigation properly speaking.

That being so, it must be considered that the report should also, pursuant to Article 41(2)(b) of the Charter of Fundamental Rights, have been communicated to the applicant, since it comes under the concept of ‘his or her file’ within the meaning of that provision.

(see paras 47, 48, 50-52)

See:

Judgment of 17 March 2015 in AX v ECB,F‑73/13, EU:F:2015:9, para. 115 and the case-law cited therein
The dialogue between the reporting officer and the staff member under appraisal, which must take place annually as part of the appraisal procedure and which relates specifically to the efficiency, ability and conduct of the staff member concerned over a particular appraisal period, cannot be likened to the discussion between the authority authorised to conclude contracts of employment and the staff member concerned prior to a decision to terminate or not to renew a contract, a discussion that should be based on an assessment of overall performance over the periods of activity completed by that staff member.

From the time the authority authorised to conclude contracts of employment gives as a ground for its decision to dismiss a staff member, inter alia, alleged relationship problems encountered by the person concerned in his working environment, Article 41(2)(a) of the Charter of Fundamental Rights of the European Union requires that authority to hear the person concerned with regard to that ground also. Compliance with that obligation enables that authority to examine with the person concerned whether the problems associated with his conduct in the service can actually be attributed to him or whether they are also linked to other circumstances, possibly to the conduct of other colleagues of the person concerned. By giving the person concerned a prior hearing with regard to that additional ground for dismissal, the authority authorised to conclude contracts of employment may, if appropriate, tackle with him the matter of whether he would be interested in reassignment. Hence, it cannot be excluded that, if the person concerned is heard with regard to that ground, he will in fact have the possibility of influencing the decision-making process at issue.

Furthermore, the fact that, even if that authority had given the person concerned a prior hearing with regard to that additional ground for dismissal, it would have adopted a decision that was the same as the dismissal decision is irrelevant since that would amount to rendering nugatory the fundamental right to be heard affirmed in Article 41(2)(a) of the Charter, since that right implies that the person concerned should have the possibility of influencing the decision-making process at issue, particularly where his personal conduct or professional performance is expressly called into question in a dismissal decision.

(see paras 30- 31)

See:

Judgment of 1 July 2010 in Knauf Gips v Commission, C‑407/08 P, EU:C:2010:389, para. 23 and the case law cited

Judgment of 14 September 2011 in Marcuccio v Commission, T‑236/02, EU:T:2011:465, para. 115

Judgments of 14 May 2014 in Delcroix v EEAS, F‑11/13, EU:F:2014:91, para. 44, and of 5 February 2016, GV v EEAS, F‑137/14, EU:F:2016:14, para. 79
67

That conclusion is not invalidated by the fact that the applicant has not submitted any calculation of the amounts claimed for the allowances in respect of which the Tribunal has granted the claim for annulment. Pursuant to Article 24 of the CEOS, the applicant is entitled, depending on his expected period of service, to one third, two thirds or three thirds of the installation allowance, as provided for in Article 5 of Annex VII to the Staff Regulations and which corresponds to two or, in some circumstances, one month’s basic salary, the amount of which can be objectively ascertained by reference to the applicant’s grade. Likewise, the amount of the daily subsistence allowance and the period for which the applicant is entitled to it are set out in Article 10 of Annex VII to the Staff Regulations and Article 25 of the CEOS, the duration for which it is granted being calculated according to whether or not the person concerned receives the household allowance and his period of service. It follows that the amounts of those allowances can be directly and objectively ascertained by applying clear and indisputable parameters. It must therefore be held that the head of claim in question is sufficiently precise and must be declared admissible (see, to that effect, judgment in Borbély, paragraph 72).
Staff case summary



Staff case summary

Summary

Procedure – Costs – Taxation – Elements to be taken into consideration

(Rules of Procedure of the Court of First Instance, Art. 91(b); Council Decision 2004/752, Art. 3(4))

When assessing the scale of work involved in the proceedings before the Court in order to determine the amount of recoverable costs, the primary consideration of the Community judicature is the total number of hours of work which may appear to be objectively necessary for the purpose of those proceedings. The amount of an adviser’s fees cannot depend on the length of the documents he produces. Concise documents may be as much a reflection of their author’s ability to summarise, saving the Court and the other party time, as a sign of quick work. The brevity of a document cannot, in principle, be regarded as reflecting rapid or cursory work by the person who produces it.

(see paras 23-24)

See:

T-290/94 DEP Kaysersberg v Commission [1998] ECR II‑4105, para. 20; T-171/00 DEP Spruyt v Commission [2002] ECR‑SC I‑A‑225 and II‑1127, para. 29
ORDER OF THE PRESIDENT OF THE FIRST CHAMBER OF THE CIVIL SERVICE TRIBUNAL

29 September 2009

Case F-18/05 RENV

D

v

Commission of the European Communities

(Civil service – Officials – Referral back after setting aside – Occupational disease – Request for recognition that the aggravation of the disease from which the applicant is suffering is of occupational origin – Article 73 of the Staff Regulations – Removal from the register – Costs)

Application: brought under Articles 236 EC and 152 EA, in which D seeks annulment of the Commission’s decision of 4 May 2004 rejecting his request for recognition that the disease or the aggravation of the disease from which he is suffering and which is preventing him from filling a post in his category corresponding to his grade is of occupational origin.

Held: Case F-18/05 RENV D v Commission is removed from the register of the Tribunal. The Commission is to pay, in addition to all its own costs relating to the proceedings before the Tribunal and the Court of First Instance, half of the costs incurred by the applicant relating to those proceedings. The applicant is ordered to bear half of his own costs relating to the proceedings before the Tribunal and the Court of First Instance. Axa Belgium, intervener for the Commission, is to bear its own costs.

Summary

Procedure – Costs – Withdrawal justified by the conduct of the opposite party

(Rules of Procedure of the Court of First Instance, Art. 87(5); Rules of Procedure of the Civil Service Tribunal, Art. 122)

Under Article 87(5) of the Rules of Procedure of the Court of First Instance, applicable mutatis mutandis to cases pending before the Civil Service Tribunal prior to the entry into force of its own Rules of Procedure, a party who discontinues or withdraws from proceedings is to be ordered to pay the costs if they have been applied for in the observations of the other party on the discontinuance. However, upon application by a party who discontinues or withdraws from proceedings, the costs are to be borne by the other party if this appears justified by the conduct of that party.

However, costs must be shared in the case of a withdrawal following a decision by an institution to review, after four years, its refusal to recognise the occupational origin of a disease against which the person concerned has brought proceedings, where the withdrawal was submitted only three working days prior to the hearing and almost a year after that decision, and where the institution has been successful in a decision on appeal in the same case.

(see paras 10-14)
ORDER OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

16 April 2007

Case F-82/05

Michel Thierry

v

Commission of the European Communities

(Officials – Promotion – Non‑inclusion in the list of officials promoted – 2004 promotion procedure – Priority points – Merit – Length of service – Admissibility)

Application: brought under Articles 236 EC and 152 EA, in which Mr Thierry seeks, principally, annulment of the list of officials promoted under the 2004 promotion procedure (published in Administrative Notices No 130-2004 of 30 November 2004), in so far as that list does not include the applicant’s name.

Held: The action is dismissed in part as manifestly inadmissible and in part as manifestly unfounded. Each party is to bear its own costs.

Summary

Officials – Actions – Interest in bringing proceedings

(Staff Regulations, Arts 90 and 91)

An official is not entitled to act in the interests of the law or of the institutions and may put forward, in support of an action for the annulment of a measure, only such claims as relate to him personally. An action brought by an official seeking annulment of the list of officials promoted to the higher grade in a promotion procedure for a given year because that list does not contain the applicant’s name is therefore inadmissible where the applicant has not shown why he has a personal interest in bringing the action, and has merely relied on the unlawfulness of certain categories of promotion points, without providing in his written submissions any specific information about his personal situation with regard to the promotion year in question, such as, in particular, the number of promotion points that he received in those categories. Such a finding cannot be called into question by the fact that the number of those promotion points is apparent from documents attached to the defence, since it is for the applicant to establish, in his written submissions, that he has an interest in bringing proceedings and, if appropriate, to refer to the corresponding evidence provided in an annex.

(see paras 30, 33)

See:

85/82 Schloh v Council [1983] ECR 2105, para. 14

T-436/04 Sanchez Ferriz v Commission [2006] ECR-SC I‑A‑2‑273 and II‑A‑2‑1423, para. 35; T-422/04 Lavagnoli v Commission, of 23 November 2006, not published in the ECR, para. 31
Staff case summary



Staff case summary

Summary

1. Officials – Actions – Prior administrative complaint – Time-limits

(Staff Regulations, Arts 90 and 91; Conditions of Employment of Other Servants, Art. 46)

2. Procedure – Costs – Set-off – Exceptional grounds

(Rules of Procedure of the Court of First Instance, Art. 87(3), first subpara.; Council Decision 2004/752, Art. 3(4))

1. An official or member of the temporary staff is not allowed to circumvent the time‑limits laid down by Articles 90 and 91 of the Staff Regulations for lodging a complaint and an appeal by calling into question, by means of a request, a previous decision which has not been challenged within the period prescribed, since only the existence of material new facts may justify the submission of a request for a review of a decision which has become definitive.

The fact that the administration subsequently re-examined the case of the official or temporary staff member at his request in order to provide him with further information cannot be regarded as a new fact permitting derogation from the system of mandatory time-limits. A letter from the administration stating that an earlier decision of rejection remains unchanged is merely a confirmation of that earlier decision and cannot therefore have the effect of setting a new time-limit for appeal running.

(see paras 22, 27)

See:

127/84 Esly v Commission [1985] ECR 1437, para. 10; 153/85 Trenti v ESC [1986] ECR 2427, para. 13

T-144/03 Schmit v Commission [2005] ECR-SC I‑A‑101 and II‑465, para. 147; T-358/03 Krahl v Commission [2005] ECR-SC I‑A‑215 and II‑993, para. 52 and the case-law cited therein

F-11/05 Chassagne v Commission [2006] ECR-SC I-A-1-65 and II‑A-1-241, para. 24

2. Pursuant to the first subparagraph of Article 87(3) of the Rules of Procedure of the Court of First Instance, where the circumstances are exceptional, the Court of First Instance may order that the costs be shared.

The fact that, in an appeal that was rejected because the prior complaint was submitted late, the administration has, at least in part, occasioned the late complaint by encouraging the person concerned to lodge a complaint against a confirmatory act that did not adversely affect him, constitutes an exceptional circumstance justifying a sharing between the institution in question and the official who is the applicant of the costs incurred by the latter for the purposes of the proceedings.

Furthermore, although it is indisputable that a party may, at any time, rely on a rule of public policy concerning the admissibility of the action, it appears incompatible with the good faith that should govern the Community institutions’ relations with their officials for an institution to invoke before the court the confirmatory nature of an act after having given the official the mistaken impression that that act could form the subject of a complaint.

(see paras 30-33)
ORDER OF THE CIVIL SERVICE TRIBUNAL (First Chamber)

19 December 2007

Case F-84/06

Luigi Marcuccio

v

Commission of the European Communities

(Civil service – Officials – Social security – Sickness insurance – Repayment of medical expenses – Express rejection of the application)

Application: brought under Articles 236 EC and 152 EA, in which Mr Marcuccio, a former Commission official, seeks in particular annulment of the implied decision by which the appointing authority rejected his requests of 20 June and 18 July 2005 for the 100% reimbursement of various medical expenses under Article 72(1) of the Staff Regulations. The applicant further seeks an order that the Commission pay him the difference between the total amount of medical expenses at issue and the amount which has already been reimbursed to him in this respect, that is, the sum of EUR 89.56. Lastly, the applicant demands that 10% default interest with annual capitalisation from 21 June 2005 be added to that sum.

Held: The Civil Service Tribunal declines jurisdiction in Case F-84/06 Marcuccio v Commission, in order that the Court of First Instance may hear and determine that case. The costs are reserved.

Summary

Procedure – Allocation of jurisdiction among the various Community Courts

(Statute of the Court of Justice, Annex I, Art. 8(3); Staff Regulations of Officials, Art. 72)

Where the Civil Service Tribunal is seised of a case against the refusal to grant an official the 100% reimbursement of medical expenses to which he claims he is entitled on account of the mental illness from which he claims he is suffering, it is required, under the second paragraph of Article 8(3) of Annex I to the Statute of the Court of Justice, to decline jurisdiction in favour of the Court of First Instance where there are other cases pending before the Court of First Instance between the same parties, founded on the same legal basis and also concerning the right to 100% reimbursement of medical expenses. Those various cases constitute a single dispute and it is consistent with the sound administration of justice, which the provisions of Article 8(3) of Annex I to the Statute of the Court of Justice seek to ensure, to confer on one court only the power to determine the whole of that dispute.

(see paras 8-16)