JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

13 April 2011

Case F-30/09

Dhikra Chaouch

v

European Commission

(Civil service — Remuneration — Installation allowance — Determination of rights — Entry into service as a probationary official — Taking into account of a change of residence after establishment — Residence obligation of an official under Article 20 of the Staff Regulations)

Application: brought under Articles 236 EC and 152 EA whereby Ms Chaouch seeks, in substance, annulment of the decision of the Commission refusing to grant her the installation allowance.

Held: The applicant’s application is dismissed. The applicant is ordered to pay all the costs.

Summary

1. Officials — Reimbursement of expenses — Installation allowance — Conditions for granting

(Staff Regulations, Art. 20; Annex VII, Art. 5)

2. Officials — Reimbursement of expenses — Installation allowance — Conditions for granting

(Staff Regulations, Art. 20; Annex VII, Art. 5)

1. Three cumulative conditions must be satisfied in order for an official to receive the installation allowance. First of all, he must be an established official. He must also show that he was required to change his residence in order to satisfy the requirements of Article 20 of the Staff Regulations. The latter condition may be broken down into two conditions: first, the person concerned must have been required to change his residence owing to the inconvenience caused, for the performance of his duties, by the distance between his residence and the place where he is employed and, second, he must show that he has in fact changed his residence.

(see para. 55)

2. In view of the reference which Article 5 of Annex VII to the Staff Regulations makes to Article 20 of the Staff Regulations, it is clear that the same assessment criteria must be applied, first, in order to determine whether an official is or is not required to ‘change [his] place of residence’ in order to be entitled to receive the installation allowance and, second, in order to determine whether an official does or does not comply with his residence obligations under Article 20 of the Staff Regulations, in particular the obligation to reside ‘at no greater distance [from the place where he is employed] as is compatible with the proper performance of his duties’.

The use of the same assessment criteria for the application, first, of Article 5 of Annex VII to the Staff Regulations and, second, of Article 20 of the Staff Regulations therefore carries the risk that taking a favourable approach to the rights of certain officials wishing to benefit from the installation allowance would have the automatic consequence of requiring other officials, in a comparable situation but preferring to remain at a certain distance from their place of employment, to change their place of residence.

Furthermore, Article 20 of the Staff Regulations and Article 5 of Annex VII to the Staff Regulations provide, respectively, that the official ‘shall’ change his residence or that a change in the place of residence ‘was required’, which implies a necessity and restricts the administration’s scope for manoeuvre. The administration can therefore grant the installation allowance only where it is clear that the performance of the official’s duties is disrupted owing to the distance between his place of residence and his place of employment.

Last, the legislature did not intend to fix a spatial limit, determined in kilometric units, as is the case, for example, in respect of the re-installation allowance. While it is therefore for the administration, and then for the Court in the event of a dispute, to rely essentially, in its assessment, on the kilometric distance between the official’s place of residence and his place of employment, it is not precluded that factual circumstances specific to each case, for example the actual difficulties encountered in making the daily journey between the place of residence and the place of employment, will also be taken into account for the purpose of determining whether the distance in question is such that it is not ‘compatible with the performance of [the official’s] duties’.

(see paras 60-63)