JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

9 March 2010

Case F-33/09

Aglika Tzvetanova

v

European Commission

(Civil service — Temporary staff — Remuneration — Expatriation allowance — Conditions laid down in Article 4 of Annex VII to the Staff Regulations — Habitual residence before entering the service — Stay as a student in the place of employment during the reference period — Training periods outside the place of employment during the reference period — Account taken of actual residence)

Application: brought under Articles 236 EC and 152 EA, in which Mrs Tzvetanova, née Sabeva, seeks annulment of the Commission’s decision to refuse her the benefit of the expatriation allowance provided for in Article 4 of Annex VII to the Staff Regulations of Officials of the European Union, as shown in the form determining the applicant’s individual entitlements, drawn up on 10 July 2008 by the Office for the Administration and Payment of Individual Entitlements.

Held: The Commission’s decision of 10 July 2008 to refuse the applicant the benefit of the expatriation allowance provided for in Article 4 of Annex VII to the Staff Regulations is annulled. The Commission is to pay all the costs.

Summary

Officials — Remuneration — Expatriation allowance — Conditions for granting

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

Even if the terms ‘reside’ and ‘carry on their main occupation’ are used in Article 4(1)(a) of Annex VII to the Staff Regulations, that provision must be interpreted as adopting as the essential criterion for the grant of the expatriation allowance the official’s habitual residence (rather than his home or simply where he lived) prior to taking up employment. The place of habitual residence is that 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.

Registration in a locality is a purely formal element which does not prove that the person concerned is actually resident in that locality. Likewise, documents reflecting a person’s ties with a given country or even giving an address in that country, such as certificates relating to the exercise of rights as a citizen or the registration of a vehicle and the payment of related taxes and fees, have no evidential value if the authorities or the natural or legal persons who drew up those documents did not verify the actual residence of the person concerned.

Although, as a rule, the fact of residing in a country, in particular in order to complete university studies and undergo practical professional training, both of which are by definition temporary and supplementary parts of a person’s education, does not lead to the presumption that that person intends to move the centre of his interests to that country, it is still possible, however, that such a stay 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. Where those other ‘relevant facts’ include the fact that the student continued to reside in the country where he studied almost uninterruptedly after those studies ended, and even beyond the reference period, the studies in themselves do not create the presumption that he definitely intended to move the permanent centre of his interests to the country where he studied, but at the very most a still uncertain prospect that he might do so.

An official 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 place of employment throughout the reference period.

(see paras 39, 43, 45, 46, 48, 57)

See:

201/88 Atala-Palmerini v Commission [1989] ECR 3109, para. 10

T-18/91 Costacurta Gelabert v Commission [1992] ECR II-1655, para. 42; T-72/94 Diamantaras v Commission [1995] ECR-SC I-A-285 and II-865, para. 48; T-317/99 Lemaître v Commission [2000] ECR-SC I-A-191 and II-867, para. 51; T-60/00 Liaskou v Council [2001] ECR-SC I-A-107 and II-489, paras 52, 55 and 56; T-124/01 and T-320/01 Del Vaglio v Commission [2003] ECR-SC I-A-157 and II-767, para. 85; T-299/02 Dedeu i Fontcuberta v Commission [2005] ECR-SC I-A-303 and II-1377, para. 66; T-416/04 Kontouli v Council [2006] ECR-SC I-A-2-181 and II-A-2-897, paras 90, 105 and 106; T-473/04 Asturias Cuerno v Commission [2007] ECR-SC I-A-2-139 and II-A-2-963, paras 73 and 74 and the case-law cited therein

F-134/06 Bordini v Commission [2008] ECR-SC I-A-1-87 and II-A-1-435, paras 74, 76 and 77