JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

18 June 2015

Dana-Maria Pondichie

v

European Commission

‛Civil service — Contract staff — Remuneration — Expatriation allowance — Conditions laid down in Article 4(1)(a) of Annex VII to the Staff Regulations — Habitual residence — Sporadic, temporary absences’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Ms Pondichie seeks annulment of the decision of the European Commission of 3 October 2013 refusing to grant her the expatriation allowance under Article 4(1)(a) of Annex VII to the Staff Regulations of Officials of the European Union in the version applicable at the time (‘the Staff Regulations’).

Held:

The decision of the European Commission of 3 October 2013 refusing to grant Ms Pondichie the expatriation allowance under Article 4(1)(a) of Annex VII to the Staff Regulations is annulled. The European Commission is to bear its own costs and is ordered to pay the costs incurred by Ms Pondichie.

Summary

Officials — Remuneration — Expatriation allowance — Purpose — Conditions for granting — No habitual residence or main occupation in the Member State of employment during the reference period — Definition of habitual residence — Brief and episodic absence from that State — Circumstance having no effect on the habitual character of the residence — Period of university study followed by a period of training or employment — Rebuttable presumption of intention to transfer habitual residence

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

The object of granting the expatriation allowance provided for in Article 4(1) of Annex VII to the Staff Regulations is to compensate officials and other staff for the extra expense and inconvenience of taking up employment with the Union institutions and being thereby obliged to change their residence and move to the country of employment.

If Article 4(1)(a) of Annex VII to the Staff Regulations takes into account, for determining cases of expatriation, the concepts of habitual residence and main occupation of the person concerned prior to taking up employment, it is in order to establish simple, objective criteria. It follows, first, that that provision is to be interpreted as taking the person’s habitual residence during the reference period as a criterion for the grant of the expatriation allowance, and, second, that the concept of expatriation depends on the official’s personal position, that is to say, on the extent to which he is integrated in his new environment, which may be demonstrated, for example, by habitual residence or by the prior pursuit of a main occupation.

Habitual residence is the place in which the official or 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 place of employment throughout the reference period, it being understood that sporadic and brief absences from his country of employment cannot be deemed sufficient to deprive the applicant’s residence in the State of employment of its habitual character.

However, where a period of study is followed by a period of training or employment at the same place, the continued presence of the official in the country concerned may create the presumption, albeit one that might be proved wrong, that he may intend to transfer the permanent or habitual centre of his interests, and thus his habitual residence, to that country.

(see paras 32-35, 39)

See:

Judgment in Magdalena Fernández v Commission, C-452/93 P, EU:C:1994:332, para. 21

Judgments in Magdalena Fernández v Commission, T-90/92, EU:T:1993:78, para. 29; Reichert v Parliament, T-18/98, EU:T:2000:113, para. 25; Liaskou v Council, T-60/00, EU:T:2001:129, para. 52; E v Commission, T-251/02, EU:T:2004:357, para. 53; Salazar Brier v Commission, T-83/03, EU:T:2005:371, para. 65; De Bustamante Tello v Council, T-368/03, EU:T:2005:372, para. 52; F v Commission, T-324/04, EU:T:2007:140, para. 86; and Asturias Cuerno v Commission, T-473/04, EU:T:2007:184, para. 73

Judgments in Tzvetanova v Commission, F-33/09, EU:F:2010:18, para. 57; Mioni v Commission, F-28/10, EU:F:2011:23, paras 22 and 32; and Bourtembourg v Commission, F-6/12, EU:F:2012:175, paras 28 and 29

JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

18 June 2015

Dana-Maria Pondichie

v

European Commission

‛Civil service — Contract staff — Remuneration — Expatriation allowance — Conditions laid down in Article 4(1)(a) of Annex VII to the Staff Regulations — Habitual residence — Sporadic, temporary absences’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Ms Pondichie seeks annulment of the decision of the European Commission of 3 October 2013 refusing to grant her the expatriation allowance under Article 4(1)(a) of Annex VII to the Staff Regulations of Officials of the European Union in the version applicable at the time (‘the Staff Regulations’).

Held:

The decision of the European Commission of 3 October 2013 refusing to grant Ms Pondichie the expatriation allowance under Article 4(1)(a) of Annex VII to the Staff Regulations is annulled. The European Commission is to bear its own costs and is ordered to pay the costs incurred by Ms Pondichie.

Summary

Officials — Remuneration — Expatriation allowance — Purpose — Conditions for granting — No habitual residence or main occupation in the Member State of employment during the reference period — Definition of habitual residence — Brief and episodic absence from that State — Circumstance having no effect on the habitual character of the residence — Period of university study followed by a period of training or employment — Rebuttable presumption of intention to transfer habitual residence

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

The object of granting the expatriation allowance provided for in Article 4(1) of Annex VII to the Staff Regulations is to compensate officials and other staff for the extra expense and inconvenience of taking up employment with the Union institutions and being thereby obliged to change their residence and move to the country of employment.

If Article 4(1)(a) of Annex VII to the Staff Regulations takes into account, for determining cases of expatriation, the concepts of habitual residence and main occupation of the person concerned prior to taking up employment, it is in order to establish simple, objective criteria. It follows, first, that that provision is to be interpreted as taking the person’s habitual residence during the reference period as a criterion for the grant of the expatriation allowance, and, second, that the concept of expatriation depends on the official’s personal position, that is to say, on the extent to which he is integrated in his new environment, which may be demonstrated, for example, by habitual residence or by the prior pursuit of a main occupation.

Habitual residence is the place in which the official or 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 place of employment throughout the reference period, it being understood that sporadic and brief absences from his country of employment cannot be deemed sufficient to deprive the applicant’s residence in the State of employment of its habitual character.

However, where a period of study is followed by a period of training or employment at the same place, the continued presence of the official in the country concerned may create the presumption, albeit one that might be proved wrong, that he may intend to transfer the permanent or habitual centre of his interests, and thus his habitual residence, to that country.

(see paras 32-35, 39)

See:

Judgment in Magdalena Fernández v Commission, C-452/93 P, EU:C:1994:332, para. 21

Judgments in Magdalena Fernández v Commission, T-90/92, EU:T:1993:78, para. 29; Reichert v Parliament, T-18/98, EU:T:2000:113, para. 25; Liaskou v Council, T-60/00, EU:T:2001:129, para. 52; E v Commission, T-251/02, EU:T:2004:357, para. 53; Salazar Brier v Commission, T-83/03, EU:T:2005:371, para. 65; De Bustamante Tello v Council, T-368/03, EU:T:2005:372, para. 52; F v Commission, T-324/04, EU:T:2007:140, para. 86; and Asturias Cuerno v Commission, T-473/04, EU:T:2007:184, para. 73

Judgments in Tzvetanova v Commission, F-33/09, EU:F:2010:18, para. 57; Mioni v Commission, F-28/10, EU:F:2011:23, paras 22 and 32; and Bourtembourg v Commission, F-6/12, EU:F:2012:175, paras 28 and 29