JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

22 March 1995

Case T-43/93

Sylviane Dachy and Others, Successors to Mario Lo Giudice

v

European Parliament

‛Officials — Expatriation allowance — Services performed for an international organization’

Full text in French II-189

Application for:

annulment of a decision of the Parliament refusing the payment to the applicant of the expatriation allowance.

Decision:

Application dismissed.

Abstract of the Judgment

Mr Lo Giudice resided in Belgium from 1 December 1980, with die exception of the periods from 30 June 1981 to 16 September 1981 and end February 1982 to 1 October 1982. During the reference period, as an employee of private companies, he did work, widiin die meaning of die last sentence of Article 4(1 )(a) of Annex VII to the Staff Regulations, for the Commission and for the Parliament in the context of contracts concluded between those companies and those institutions.

On 16 July 1990 he was recruited as an official by the Parliament and assigned to Luxembourg. He was transferred to Brussels with effect from 1 September 1992. Following his assignment to Belgium, his expatriation allowance was withdrawn by a decision of the Parliament of 29 September 1992, on the ground that, during the five years ending six months before entering the service, he habitually resided and carried on his main occupation in Belgium.

The sole plea in law, alleging infringement of the last sentence of Article 4(1) (a) of Annex VII to the Staff Regulations

Since the concept of ‘circumstances arising from work done for another State or for an international organization’ used in the last sentence of Article 4(l)(a) of Annex VII to the Staff Regulations constitutes an exception to an exception as regards payment of the expatriation allowance, it must be construed broadly (paragraph 35).

See: T-4/92 Vardakasv Commission [1993] ECR II-357

None the less, the Staff Regulations lay down specific and precise criteria which must be satisfied by those who claim the expatriation allowance. When applying them, the appointing authority must base itself on objective factors. Consequently, the last sentence of Article 4(l)(a) of Annex VII to the Staff Regulations must be construed as requiring that, in order to benefit from the exception for which it provides, the person concerned should at least have had direct legal links with the institution in question (paragraph 36).

The fact that the application of the exception may create borderline situations in which officials are refused payment of the expatriation allowance when their circumstances are close to those defined by that provision cannot justify the conclusion that the provision makes an arbitrary differentiation (paragraph 37).

See: 1322/79 Vutera v Commission [1981] ECR 127

The Court of First Instance finds that the applicant was not engaged directly, during the reference period, by one of the European institutions but that he maintained contractual relations solely with private companies which, following invitations to tender, themselves concluded contracts for the provision of services with both the Commission and the Parliament. Since there is nothing to justify the conclusion that those contractual relations were merely formal, the Court finds that die services were provided by those companies, not by the applicant, who had entered into a contract of employment with them. Accordingly, the applicant did not find himself in circumstances ‘arising from work done for another State or for an international organization’ within the meaning of the last sentence of Article 4(1 )(a) of Annex VII to the Staff Regulations.

Therefore his expatriation allowance was correctly withdrawn on account of his lasting ties with Belgium since the object of the expatriation allowance is to compensate officials for the extra expense and inconvenience of taking up employment with the Communities and being thereby obliged to change their residence and move to the country of employment and to integrate themselves in their new environment (paragraph 42).

See: 211/87 Nunez v Commission [1988] ECR 2791

Operative part:

The application is dismissed.