JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

27 September 2006 ( )

(Officials – Invalidity pension – Weighting – Determination of place of residence – Withdrawal of an administrative act – Legitimate expectations)

In Case T‑416/04,

Anna Kontouli, former official of the Council of the European Union, represented initially by V. Akritidis and M. Tragalou, and subsequently by V. Akritidis, lawyers,

applicant,

v

Council of the European Union, represented by M. Sims and D. Zahariou, acting as Agents,

defendant,

APPLICATION, first, for annulment of the Council’s decision of 5 December 2003 withdrawing the right to have the weighting fixed for the United Kingdom applied to the applicant’s invalidity pension and, second, for damages,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Fourth Chamber),

composed of H. Legal, President, P. Lindh and V. Vadapalas, Judges,

Registrar: B. Pastor, Deputy Registrar,

having regard to the written procedure and further to the hearing on 21 June 2006,

gives the following

Judgment

Background to the dispute

1 The applicant, Ms A. Kontouli, is a former grade C 3 official of the Council. At the time of her appointment, her place of origin, which was determined in accordance with Article 7(3) of Annex VII to the Staff Regulations of officials of the European Communities in the version applicable to this case (‘the Staff Regulations’), was Greece.

2 On 18 October 2002 the General Secretariat of the Council started an invalidity procedure against the applicant pursuant to Article 59(1) of the Staff Regulations.

3 On 13 March 2003, in response to a request by the applicant, the Council provided her with provisional calculations for her invalidity pension according to the weightings for five different Member States, namely Greece (EUR 3 561.76), Belgium (EUR 3 953.12), Germany (EUR 4 111.24), France (EUR 4 692.35) and the United Kingdom (EUR 5 905.96).

4 By decision of 8 April 2003, the applicant was pensioned with effect from 30 April 2003 and has been in receipt of an invalidity pension from 1 May 2003.

5 By notice determining entitlement to an invalidity pension of 17 April 2003, the Directorate-General (DG) ‘Personnel and Administration’ of the Council informed the applicant that the weighting in force for the United Kingdom would be applied to her pension after she had sent it the supporting documents referred to in the covering letter such as a tenancy agreement and a recent utility bill.

6 On 5 May 2003, the applicant submitted the following three documents for the purposes of establishing that her permanent residence was in the United Kingdom (hereinafter ‘the first set of evidence’):

– a declaration signed by the applicant’s uncle and aunt stating that she and her children live with them in the United Kingdom;

– a request to be added to the Register of Electors of Epsom Ewell Borough Council (‘the EEBC’) (United Kingdom);

– a declaration by the Consulate General of Greece in London (United Kingdom), dated 30 April 2003, confirming that, according to supporting evidence submitted by the applicant, she had been living in the United Kingdom since 28 April 2003.

7 By decision of 6 May 2003, the Council fixed the United Kingdom as the applicant’s new place of origin.

8 On 13 May 2003, a conversation took place between a Council official and the applicant with regard to the possibility of her keeping vehicles used by her in Belgium and by her children in Greece registered in Belgium and, to that end, maintaining her residence in Belgium.

9 By decision of 21 May 2003, the Council declared the weighting for the United Kingdom applicable to the applicant’s pension from 1 May 2003.

10 By letter of 10 July 2003, the Council asked the applicant to explain the reasons for her request for individual attestations for herself, her husband and their three children for the purposes of being registered as residents in Belgium, since she had informed the Council at the time of her retirement that she was residing in the United Kingdom and had submitted supporting documents to that effect.

11 By letter of 23 July 2003, the applicant replied that she was obliged to have a residence in Belgium in order to be able to maintain the registration in Belgium of a car which she used in Belgium and of cars used by her daughters in Greece. She stated that her main residence was still situated in the United Kingdom and that her residence in Belgium was only secondary.

12 By letter of 5 August 2003, the DG ‘Personnel and Administration’ informed the applicant that, although she was allowed to have several residences, it was not possible under Belgian law for her to keep a car registered in Belgium if her main residence was not there.

13 On the same day, the DG ‘Personnel and Administration’ sent a letter to the Ministry concerned requesting the annulment of the five attestations of residence in Belgium of the applicant and her family which were annexed to the request.

14 By letter of 6 August 2003, the Council asked the applicant to send to it, by 15 September 2003, additional evidence of her residence in the United Kingdom, namely a copy of her tenancy agreement with proof of payment of rent together with copies of her water, electricity, gas, cable television and telephone bills, failing which the application of the weighting established in respect of her pension would be suspended.

15 By facsimile of 22 August 2003, the applicant set out, inter alia, the reasons which led her to take up residence in the United Kingdom and stated that she considered that she had provided, on 5 May 2003, all the necessary evidence in accordance with the instructions previously given. She also observed that, according to its wording, the decision of 21 May 2003 applying the weighting for the United Kingdom was neither provisional nor subject to fresh assessment or approval at a later stage.

16 By letter of 4 September 2003, the applicant explained to the Council the reasons why she was unable to provide a tenancy agreement or utility bills in her name; she stated that she needed, in so far as it was possible, to maintain her residence in Belgium in order to be able to keep two cars registered in that country and, lastly, indicated that she would consider the matter settled if the Council agreed to maintain the United Kingdom weighting.

17 By decision of 25 September 2003, the Council suspended the application to the applicant’s pension of the weighting for the United Kingdom as of 1 October 2003 on the ground that it could not at that stage be considered that the applicant had her main, actual and long-term residence in the United Kingdom.

18 By letter of 8 October 2003, the applicant reiterated her statements of 22 August and 4 September 2003.

19 Following a meeting between the Council and the applicant on 13 October 2003, the applicant sent the following additional evidence on 29 and 30 October 2003 (‘the second set of evidence’):

– a letter from the applicant to her lawyer dated 30 October 2003 in which she describes the procedure followed by the HSBC Bank in order to establish that she was resident in the United Kingdom;

– a blank HSBC bank cheque in the applicant’s name;

– an attestation by Doctor L., a doctor established in the United Kingdom, of 24 October 2003 stating that the applicant had been ‘seen at surgery’ and a prescription bearing the same date;

– an attestation by Doctor A., a doctor established in the United Kingdom, of 28 October 2003 stating that the applicant had been his patient since May 2003;

– payment receipts for medicinal products;

– receipts and credit card receipts, in particular, restaurant, supermarket and shop receipts dated 23, 25 and 28 October 2003;

– a letter from the EEBC dated 16 October 2003 concerning the applicant’s addition to the Register of Electors in respect of European elections for 2004.

20 By decision of 5 December 2003, notified to the applicant on 22 December 2003, the Council, first, withdrew its decision of 6 May fixing the United Kingdom as the applicant’s new place of origin and, secondly, decided that the applicant’s place of origin could not be changed and remained the place determined at the time when she took up employment, namely Greece.

21 By decision of the same date, notified to the applicant on 22 December 2003, the Council ended the suspension of the application of the weighting to the applicant’s invalidity pension and decided that the weighting applicable to the pension was that in force for Greece with retroactive effect from 1 May 2003 to 30 April 2004, the date on which those weightings were to be abolished. It also informed the applicant that it would recover the sums unduly paid in respect of the period from May to December 2003, an amount of EUR 15 240 to be repaid in instalments of EUR 500 per month. The Council took the view that the second set of evidence did not prove that her main, ‘long-term, actual’ residence was in the United Kingdom. Furthermore, it considered that the fact that her place of origin prior to her retirement had always been Greece, that her daughters were living in Athens and that, on 13 October 2003, she had informed Council staff that she was no longer resident in Belgium gave rise to a presumption that her main residence was in Greece.

22 On the same day, the applicant sent to the Council the following additional evidence (hereinafter ‘the third set of evidence’):

– two letters dated 20 November 2003 from the EEBC by which it informed the applicant that she appeared in the Register of Electors for 2003-2004;

– a National Health Service (‘NHS’) card dated 6 November 2003 made out in the applicant’s name;

– supermarket receipts dated 19, 21 and 29 November 2003;

– a credit card statement in the applicant’s name containing a breakdown of payments made in euro and pounds sterling for the period 25 to 28 October 2003;

– an HSBC bank statement in the applicant’s name for the period from 28 October to 26 November 2003;

– copies of return air tickets between London and Athens issued in November 2003, with departure on 9 December 2003 and return on 20 January 2004.

23 By letter of 23 December 2003, the official of the service for the administration and payment of individual entitlements responsible for the matter informed the applicant that the sums unduly paid, amounting to EUR 12 503.70, would be recovered in instalments of EUR 410 per month in respect of the period January 2004 to June 2006, and of EUR 203.70 in July 2006.

24 By letter of 18 February 2004, the applicant referred to irregularities in her personal file and, in particular, in the minutes of the meeting on 13 October 2003.

25 By letter of the same date, the applicant sent the following additional evidence to the Council (hereinafter ‘the fourth set of evidence’):

– a letter relating to the connection of a fixed line residential telephone service by BT from 28 January 2004;

– an attestation by the HSBC bank certifying that the applicant has been the holder of an account since October 2003 and that the bank had checked that she was resident in the United Kingdom;

– technical compliance and registration certificates for a car in the United Kingdom, issued in December 2003, and also a payment receipt for car insurance, issued in November 2003 in the applicant’s name;

– an international consignment note mentioning the registration number MK SM 109 in respect of a vehicle;

– a ticket for a Calais to Dover crossing of 22 to 24 April 2003 in respect of a vehicle with the number plate MK SM 109;

– an extrajudicial declaration by the applicant of 3 September 2002 concerning her de facto separation from her husband and the fact that she has not been living with him at the marital home in Greece since September 2002;

– a letter stating that the applicant’s daughters are studying in Greece albeit with the status of Greek nationals living abroad and that her son lives with her husband.

26 On 19 March 2004, the applicant submitted a complaint to the appointing authority pursuant to Article 90(2) of the Staff Regulations in which she refers to the decision of 5 December 2003 fixing as the weighting for her pension that applicable to Greece. She considered, in particular, that by adopting that decision the Council had infringed Article 82(1) of the Staff Regulations, its duty to have regard for the welfare of officials and the principles of legal certainty and good administration. The applicant also referred to irregularities in her personal file.

27 On 22 March 2004, the applicant submitted additional evidence to the Council for the purposes of establishing that she was actually resident in the United Kingdom, namely the following documents (hereinafter ‘the fifth set of evidence’):

– telephone line connection bills and telephone bills for February and March 2004;

– an NHS prescription dated 4 January 2004 in the applicant’s name bearing the address of Manon Court (United Kingdom);

– a certificate of 13 January 2004 certifying that the applicant had not made use of the right to tax-free repatriation of goods to Greece;

– a motor insurance certificate issued in the United Kingdom for the period 30 December 2003 to 14 November 2004.

28 By decision of 16 July 2004 (‘the decision of 16 July 2004’), notified to the applicant on 24 July 2004, the appointing authority, after examining the evidence submitted by the applicant by 22 March 2004, rejected the complaint.

Procedure and forms of order sought by the parties

29 By application lodged at the Registry of the Court of First Instance on 18 October 2004, the applicant brought this action.

30 On 21 December the applicant requested that the Court of First Instance order measures of organisation of procedure.

31 On 18 January 2006, the Council lodged its observations regarding that request.

32 Upon reading the Report of the Judge-Rapporteur, the Court of First Instance (Fourth Chamber) decided to open the oral procedure without first ordering the measures of organisation of procedure proposed by the applicant. However, it addressed written questions to the parties to which they replied within the period prescribed.

33 The parties presented oral argument and answered questions put to them by the Court at the hearing on 21 June 2006.

34 The applicant claims that the Court of First Instance should:

– annul the Council’s decision of 16 July 2004;

– order the Council to pay her an amount equal to the difference between the amounts of pension paid until the action was brought and the amounts of pension which should have been paid to her pursuant to the weighting for the United Kingdom from 1 May 2003, increased by default interest equal to the interest rate set by the European Central Bank for its refinancing operations, increased by two per cent;

– order the Council to pay the applicant the sum of EUR 100 000 as compensation for non-contractual and non-material damage suffered in the course of the administrative proceedings preceding the application;

– order the Council to pay the costs.

35 The Council contends that the Court of First Instance should:

– dismiss the action as unfounded;

– order each party to bear its own costs.

The application for annulment

1. The subject-matter of the application for annulment

36 It must be observed that the applicant is requesting the annulment of the decision of 16 July 2004 rejecting her complaint. In that regard, according to settled case-law, an action by an official which is formally directed against the express or implied rejection of a prior administrative complaint brought under Article 91(2) of the Staff Regulations has the effect of bringing before the Court of First Instance the decision adversely affecting the applicant against which the complaint was submitted (Case 293/87 Vainker v Parliament [1989] ECR 23, paragraph 8, and Case T-33/91 Williams v Court of Auditors [1992] ECR II-2499, paragraph 23).

37 As the parties have confirmed in writing and at the hearing, the act against which the complaint was directed in this case was the decision of 5 December 2003, notified to the applicant on 22 December 2003, determining that the weighting applicable to her pension was that for Greece with retroactive effect from 1 May 2003 to 30 April 2004 (hereinafter ‘the contested act’).

2. Substance

38 In support of her application for annulment the applicant relies on five pleas in law. An examination has to be made in turn of the pleas which relate to (i) a failure to state reasons, (ii) a manifest error of assessment of the facts, (iii) infringement of Article 82(1) of the Staff Regulations and the principle of equal treatment, (iv) infringement of the principle of good administration and of the duty to have regard for the welfare of officials and (v) infringement of the principles of legal certainty and the protection of legitimate expectations.

The plea relating to failure to state reasons

Arguments of the parties

39 The applicant claims that the Council did not comply with its obligation to state reasons in that it failed to set out, at any time during the administrative procedure, the reasons why it decided to cease applying the United Kingdom weighting to her pension and chose to apply the weighting for Greece.

40 The Council considers that it complied with its obligation to state reasons in the present case.

Findings of the Court

41 It must be borne in mind that, according to settled case-law, the purpose of the obligation to state the reasons on which a decision adversely affecting an official is based, laid down in Article 253 EC and in Article 25 of the Staff Regulations, is to provide the official concerned with sufficient information to determine whether the decision is well founded or if it is defective, making it possible for its legality to be challenged and to enable the Community judicature to review the legality of the contested decision (Case 195/80 Michel v Parliament [1981] ECR 2861, paragraph 22; Case T-80/92 Turner v Commission [1993] ECR II‑1465, paragraph 62; and Case T-351/99 Brumter v Commission [2001] ECR-SC I-A-165 and II-757, paragraph 28).

42 It is also settled case-law that the extent of the duty to state reasons must, in each case, be determined not only by taking into consideration the contested decision but also the particular circumstances surrounding its adoption (Case 69/83 Lux v Court of Auditors [1984] ECR 2447, paragraph 36; Case C-169/88 Prelle v Commission [1989] ECR 4335, paragraph 9; and Case T-589/93 Ryan-Sheridan v EFILWC [1996] ECR-SC I-A-27 and II-77, paragraph 95).

43 Thus, a decision is sufficiently reasoned if the act covered by the application took place in circumstances known to the official concerned which make it possible for him to understand the scope of the measure adopted with regard to him (Case 125/80 Arning v Commission [1981] ECR 2539, paragraph 13, and Case T‑100/00 Campoli v Commission [2001] ECR-SC I-A-71 and II-347, paragraph 53; see also, to that effect, Case T-86/97 Apostolidis v Court of Justice [1998] ECR-SC I‑A‑167 and II-521, paragraphs 73 to 77).

44 In the present case, even although the contested act contains only a brief statement of the reasons why the decision of 21 May 2003 was unlawful and why the evidence submitted subsequently was considered to be insufficient, in it the Council made reference to documents submitted by the applicant to conclude that those documents do not constitute sufficient proof of her residence in the United Kingdom and set out the circumstances which, in its opinion, gave rise to a presumption that her residence was in Greece.

45 Furthermore, the contested act was adopted in circumstances well known to the applicant. In the decision of 5 December 2003 withdrawing the decision of 6 May 2003 which established the applicant’s place of origin as the United Kingdom, a decision referred to in the contested act, the Council considered that the decision of 6 May 2003 was based on documents which enabled it to presume that she had taken up residence in the United Kingdom and that, following a re-examination of those documents in the light of the Court of First Instance’s case-law, it was no longer established that the United Kingdom was the applicant’s main, stable and actual place of residence.

46 Lastly, in the decision of 16 July 2004, the Council set out in detail the considerations which led it to doubt the actual residence stated by the applicant and to reject as insufficient the new evidence she had submitted during the administrative proceedings.

47 It follows that the applicant was in a position to assess whether the contested act was legal and well founded and also given the opportunity of submitting it for the judicial review provided for in Article 91 of the Staff Regulations. Furthermore, the Court of First Instance is able to assess its legality.

48 Therefore, the brevity of the statement of reasons in the contested act is not capable of affecting its legality in this case.

49 It follows that the plea relating to failure to state reasons must be rejected.

The plea relating to a ‘manifest error of assessment of the facts’

Arguments of the parties

50 The applicant submits that the Council made several manifest errors of assessment of the facts. In that regard, she criticises the majority of the assessments of fact contained in the reasons for the decision of 16 July 2004 concerning the status of items of evidence and the alleged inconsistencies in the information and statements which she submitted during the proceedings preceding the application.

51 First of all, she disputes the assertion in paragraph 19 of the decision of 16 July 2004 that the documents resulting from her declarations are not acceptable as proof of residence. The judgment in Joined Cases T‑124/01 and T-320/01 Del Vaglio v Commission [2003] ECR-SC I-A-157 and II-767, which is referred to in support of that assertion, had not yet been delivered at the time when the first set of evidence was submitted. Furthermore, the declaration from the Greek consulate in London was not issued on the basis of declarations by the applicant but on the basis of evidence.

52 She also criticises the assertion that the extrajudicial declaration concerning her de facto separation from her husband cannot be used as proof of residence. Such a declaration produces specific legal effects, namely that it causes a four-year period to begin to run at the end of which the applicant will be divorced automatically. Furthermore, that declaration was served formally by a court clerk.

53 Secondly, the applicant disputes the claim, referred to in paragraph 21 of the decision of 16 July 2004, that possession of an HSBC Bank account in the United Kingdom is insufficient proof. No major bank in the United Kingdom would give a credit card and an account to a citizen who does not have permanent residence where the bank has its headquarters as strict checks as to residence are carried out. In the present case, it is apparent from the HSBC Bank certificate that it carried out checks as regards the applicant’s place of residence. The applicant considers that it is disproportionate to deny that the certificate has any evidential value on the ground that the bank refused, for reasons of confidentiality, to explain the verification procedure followed.

54 As regards the assertion in paragraph 22 of the decision of 16 July 2004 that ‘unidentified’ bills are not sufficient to demonstrate a daily life pattern in London, the applicant points out that those bills were paid with her credit card, which means that her identity and signature were checked at the time of each purchase. Furthermore, to require the name of the purchaser to appear on the bills is unreasonable since the only bills which meet such requirements are those issued where the purchaser is liable to VAT. Lastly, as regards the requirement that the applicant should have provided boarding cards and not only tickets to establish that she travelled from London to Greece in December 2003, she contends that the Council never asked her to submit them.

55 In reply to the Council’s assertion in paragraph 23 of the decision of 16 July 2004 that she systematically failed to provide ‘adequate documents’ in order to prove that she was permanently resident in the United Kingdom, the applicant contends that the evidence she supplied, namely proof that her car is registered in the United Kingdom, is more conclusive that that which was required in Del Vaglio v Commission.

56 The applicant disputes the assertion in paragraph 25 of the decision of 16 July 2004 that she consistently provided the Council with incoherent and contradictory evidence and declarations. She submits that she merely followed the instructions of various Council officials. Moreover, the evidence provided is not incoherent.

57 Furthermore, the Council never specified what would constitute the sufficient and coherent evidence it required in spite of the applicant’s repeated efforts to comply with its instructions. According to case-law, a tenancy agreement and utility bills are not in themselves sufficient evidence that a person has settled in a given place on a permanent basis.

58 In addition, the statement in the same paragraph that the applicant produced evidence of her presence in the United Kingdom ‘[only] on a number of occasions’ is contrary to case-law, according to which the centre of interests of a retired official should be assessed irrespective of the purely quantitative data on the time spent by that person in one or another Member State (Del Vaglio v Commission, paragraph 71), thus allowing retired officials to travel, to go on holiday or travel in an official capacity, or to visit their family and friends.

59 Contrary to the assertion contained in paragraph 26 of the decision of 16 July 2004, the applicant maintains that the fact that before her retirement she requested that Council staff inform her of the weightings applicable to the pension in different Member States cannot call into question the evidence as a whole which she has provided. She maintains, in that regard, that she made informal enquiries long before it was certain that she would receive an invalidity pension and also intended to inform other interested colleagues.

60 On the contrary, the applicant had ‘substantial’ reasons for settling in the United Kingdom as her state of health constituted a reason for staying near family members who would be able to take care of her as attested to by Doctor S. in his medical report of 7 April 2003 and by the Council’s doctor, Doctor G., in his report of 16 November 2004.

61 The Council was wrong to find (paragraphs 7 and 26 of the decision of 16 July 2004) that the applicant asked for Belgian residence attestations. She merely followed the instructions which she had been given, namely to declare her residence in Belgium in order to keep the Belgian number plates for the cars used by her children in Greece. Furthermore, contrary to what is stated in paragraph 9 of the decision of 16 July 2004, the applicant never stated in her letter of 23 July 2003 that she had found another residence in Belgium. She merely stated that the address given was an address for correspondence with the Belgian authorities regarding the registration of her car.

62 The applicant also disputes the Council’s assertion (in paragraph 5 of its defence) that attestations issued by the Belgian Ministry of Foreign Affairs were sent to her on 23 May 2003. Furthermore, such attestations do not appear in the defence or in her personal file and are therefore inadmissible as evidence in this case.

63 The point, raised in paragraph 27 of the decision of 16 July 2004, that only one of the payments for medical expenses incurred between 17 June 2003 and 26 January 2004 was made in the United Kingdom and in pounds sterling is explained by the fact that the other payments were made during a brief stay in Belgium, in particular to make a copy of her medical file, and during holidays in Greece. Moreover, as regards the fact that she consulted a specialist in Greece, the applicant maintains that she is entitled to choose and continue her treatment irrespective of the place where that treatment is carried out and that the treatment in question started well before her retirement.

64 The point raised in the same paragraph that the NHS prescription of 4 January 2004 bore a different address from that given as her place of residence is explained by the fact that the applicant, following a consultation in a hospital in Birmingham (United Kingdom), had to buy medicinal products which was possible only if she stated a local address. She therefore gave the address of her daughter, who had joined her in the United Kingdom to seek employment. In any event, irrespective of the address given, it is still an NHS prescription issued by a medical authority and accepted by a pharmacy in the United Kingdom.

65 The applicant disputes the assertion, in paragraph 28 of the decision of 16 July, that the evidence she provided leaves open the question of whether only part of her household effects was transferred to the United Kingdom. The invoice issued by the removal company states ‘1 partie household articles’ and the relevant weight (7 500 kg) and volume thereof (75 m³). Contrary to the Council’s claims, that invoice does not mention ‘part’ but ‘partie’, which means ‘full lot’ in accordance with the terminology in use. Furthermore, the volume and weight of the goods removed show that this was a full removal.

66 The applicant refers, in that regard, to a statement of 28 August 2004 by the removal company certifying that all her furniture and other goods were delivered to her address in London. The Council is wrong to call into question the accuracy of the English translation of that statement because the company has confirmed that ‘the term “partie” is mentioned on all [its] travelling documents and on [its] invoices when [it removes] full households and by no means does it bear the meaning of a part of the household’. That is moreover confirmed by a statement by that company of 16 May 2005. Furthermore, she is of the opinion that, by acknowledging receipt of the goods transported to London within four weeks, she carried out that procedural requirement immediately after having received the goods.

67 The applicant likewise disputes the assertion in paragraph 30 of the decision of 16 July 2004 that the free movement of persons in the European Union means that registering a car in a Member State is not sufficient proof of the owner’s residence in the country of registration. Registration of a vehicle is not allowed in any of the Member States if the vehicle’s owner is not permanently resident there. She refers, in that regard, to the problems encountered in keeping registered in Belgium the cars used by her children in Greece.

68 Lastly, the applicant maintains that, by stating in paragraph 31 of the decision of 16 July 2004 that the evidence relating to the connection and use of a fixed telephone line is insufficient as no dates appear on those bills, the Council has examined those items of evidence in isolation whilst seeking to deprive them of their substance, without analysing the overall impression created by the evidence as a whole as required by the case-law (Del Vaglio v Commission).

69 The Council disputes the applicant’s arguments while in essence reiterating the claims contained in the contested act and the decision of 16 July 2004.

Findings of the Court

70 It must be borne in mind, as a preliminary point, that it follows from the very wording of Article 82 of the Staff Regulations that pensioners are entitled to have applied to their pensions the weighting laid down for the country in which they provide proof that they are resident (Case T-285/94 Pfloeschner v Commission [1995] ECR II-3029, paragraph 46, and Del Vaglio v Commission, paragraph 70).

71 According to settled case-law, the concept of residence relates to the place 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. Furthermore, the concept of residence implies, irrespective of the purely quantitative factor of the time spent by that official in the territory of one country or another, besides the physical act of living in a certain place, the intention of conferring on that act the continuity which arises from a way of life and the development of normal social relationships (Case T-29/01 Puente Martín v Commission [2002] ECR-SC I‑A‑157 and II-833, paragraph 60, and Del Vaglio v Commission, paragraph 71).

72 That is thus a question of fact which requires that the official’s actual residence be taken into account (Case T-60/00 Liaskou v Council [2001] ECR-SC I-A-107 and II-489, paragraph 53, and Del Vaglio v Commission, paragraph 72). Furthermore, that concept of residence is specific to the Community civil service and is not necessarily the same as national meanings of that term (Del Vaglio v Commission, paragraph 72).

73 As is clear from the case-law, to prove his residence the official concerned may refer to all the factual circumstances which constitute residence and furnish whatever supporting evidence he considers appropriate (Case 284/87 Schäflein v Commission [1988] ECR 4475, paragraph 10).

74 Lastly, as the applicant has expressly based this plea on the manifest error of assessment of the facts which the Council allegedly made in denying her the right to have the weighting for the United Kingdom applied to her invalidity pension, it must be borne in mind that the provisions of Article 82 of the Staff Regulations do not confer on the competent authority any discretion as to whether or not to grant the application of the weighting, but confer on it circumscribed powers in so far as its mandatory wording makes it clear that the authority is bound to grant the advantage in question if it finds that the conditions listed by those provisions are satisfied (see, to that effect, Schäflein v Commission, cited above, paragraph 14, and Case T‑302/01 Birkhoff v Commission [2003] ECR-SC I-A-245 and II‑1185, paragraph 38).

75 It follows from that that the Community judicature carries out a full judicial review when it examines the facts accepted by the competent authority and its treatment of those facts for the purposes of answering the question whether the conditions to which the grant of the right to have a particular weighting applied is subject have been met.

76 In the present case it must be pointed out, first, that the contested act in essence contains two separate decisions. Firstly, that act contains a decision withdrawing the decision of 21 May 2003 which determined that the weighting applicable to the applicant’s pension was that for the United Kingdom. Secondly, it contains an express decision refusing, after examination of the new evidence submitted by the applicant subsequent to the adoption of the withdrawn decision, to grant her the application of that weighting for the future. Those two decisions will be examined separately.

77 As regards the withdrawal decision, it is apparent from the contested act, inter alia, that the Council could not ‘on that date’ consider that the applicant’s long-term, actual residence was in the United Kingdom. Furthermore, it considered that all the circumstances of the case, in particular the fact that her place of origin before her retirement had always been Greece, that her daughters lived in Athens and that, on 13 October 2003, she had informed the Council that she was no longer resident in Belgium, gave rise to a presumption that her main residence was neither in the United Kingdom nor in Belgium, but in Greece.

78 Thus, the Council, the task of which it is to prove the unlawfulness of the withdrawn decision (see, to that effect, Case T‑197/99 Gooch v Commission [2000] ECR-SC I-A-271 and II‑1247, paragraph 53), has not identified any matter which is capable of calling into question the validity of that decision. The fact that the applicant’s place of origin was Greece during her service at the Council was not a new and unknown circumstance at the time of the adoption of the withdrawn decision and, in any event, does not cast doubt on the conclusion that the applicant had chosen to be resident on a long-term basis in the United Kingdom during her retirement. Furthermore, as regards the place of residence of the applicant’s children, the Council has not explained the reasons why that factor calls into question the evidence the applicant submitted to show that she lives in the United Kingdom. Lastly, the fact that the applicant was no longer resident in Belgium at that time is clearly irrelevant to the question whether she is resident in Greece or the United Kingdom.

79 Furthermore, none of the matters raised in paragraphs 25, 26 and 29 of the decision of 16 July 2004 rejecting the complaint, namely the contradictions and inconsistencies in the applicant’s requests and declarations, is capable of calling into question the validity of the withdrawn decision.

80 The fact that the applicant asked for information about the weightings applicable in various Member States before the adoption of the withdrawn decision was not a new factor of which the Council was not aware at the time of the adoption of the withdrawn decision.

81 Furthermore, the fact, raised by the Council and disputed by the applicant, that she asked the Council to provide her with attestations of residence in Belgium, although she did not meet the conditions for obtaining them, does not cast doubt on the validity of the withdrawn decision either. As is apparent, in particular from the contested act, it is established that the applicant was not resident in Belgium at the time of her retirement. Thus, any question relating to whether the applicant asked the Council for attestations of residence in that country before the adoption of the contested act is no longer of relevance as regards an assessment of her residence. Consequently, there is no need to examine the applicant’s argument concerning the inadmissibility of such documents in this case.

82 On the same ground, there is no need to order the measures of organisation of procedure proposed by the applicant aimed at clarifying the circumstances which led the Council to ask the competent Belgian ministry to issue attestations of residence in Belgium for the applicant and her family.

83 However, although the Council has not identified facts capable of calling in question the validity of the withdrawn decision, according to the documents before the Court, in particular the decision of the same day establishing the applicant’s place of origin and the decision of 16 July 2004, there is sufficient evidence to support the conclusion that the Council’s decision to withdraw the application of the United Kingdom weighting was valid.

84 In paragraphs 19 and 20 of the decision of 16 July 2004, the Council, referring to Del Vaglio v Commission, states that the documents and declarations submitted by the applicant on 5 May 2003 are not ‘accept[able]’ as proof. Furthermore, in the decision of 5 December 2003 withdrawing the decision which established the applicant’s place of origin as the United Kingdom, a decision which is referred to in the contested act, the Council refers to case‑law in support of its conclusion that the applicant did not establish that her main place of residence was the United Kingdom.

85 In that regard, it must be pointed out that the Council was right in considering, in essence, that the evidence submitted by the applicant before the adoption of the withdrawn decision did not constitute sufficient proof of her residence in the United Kingdom. Firstly, that material comes from the applicant’s family or was issued on the basis of declarations or information provided by the applicant, namely a declaration signed by the applicant’s aunt and uncle and the applicant’s request to be added to the EEBC’s Register of Electors. Secondly, the declaration by the Consulate General of Greece in London suggests that it was issued on the basis of supporting evidence produced by the applicant and, in any event, nothing in the case-file leads to the conclusion that the consulate carried out checks as regards her residence.

86 The applicant’s argument that the judgment in Del Vaglio v Commission, to which the Council refers in the decision of 16 July 2004, is not applicable on the ground that it had not yet been delivered at the time the withdrawn decision was adopted is irrelevant. It is sufficient to note that the right which retired officials have to the application to their pensions of a particular weighting and the necessary requirements for proof of residence do not derive from case-law, but from the provision contained in Article 82(1) of the Staff Regulations. It follows from this that the fact that the abovementioned judgment was delivered after the adoption of the withdrawn decision is not capable of calling into question the validity of the contested act in this case.

87 Therefore, it must be held that the Council could lawfully withdraw the decision of 21 May 2003 reserving judgment as to the retroactive effect of that withdrawal which is analysed in the context of the plea relating to infringement of the principles of legal certainty and the protection of legitimate expectations.

88 Secondly, it is necessary to examine the second decision contained in the contested act, namely that refusing to grant the application of the United Kingdom weighting, after an examination of the evidence submitted after the adoption of the withdrawn decision.

89 In that regard, as is apparent from the grounds for the decision of 16 July 2004, the Council examined all the evidence provided by the applicant during the administrative proceedings including that submitted after the adoption of the contested act and before the adoption of the decision of 16 July 2004. Therefore, all that evidence must be examined together.

– The applicant’s inclusion in the EEBC’s Register of Electors

90 It is apparent from the documents before the Court that the applicant submitted evidence of her inclusion in the EEBC’s Register of Electors in 2003 and 2004. In that regard, it must however be pointed out that, according to the Council, which has not been contradicted on that point by the applicant, the competent authorities do not verify the residence of people who have been included in Registers of Electors in the United Kingdom. Thus, as such inclusion is capable of resulting from a unilateral declaration by the applicant, it is insufficient to prove stable residence in the United Kingdom.

– The opening of a bank account

91 It is apparent from the documents before the Court that the applicant held a bank account with the HSBC Bank at the material time and that the bank carried out checks as to residence for the purposes of the opening of that account. In an attestation dated 22 January 2004, the HSBC confirmed that the applicant was the holder of an account with the bank and that, after undertaking the usual checks, it had concluded that the applicant’s residence was ‘85 Cheam Road, East Ewell, Epsom, Surrey. KT17 3EG’. Nevertheless, the evidential value of that attestation is insufficient since the bank did not explain what constituted the checks which it carried out in that case.

92 Furthermore, the applicant’s declaration referring to the checks as to residence carried out by the bank which is contained in her letter to her lawyer of 30 October 2003 is obviously not, for the reasons set out previously, capable of remedying the absence of such details.

93 It follows from this that the fact that the applicant is the holder of a bank account in the United Kingdom cannot prove that she had taken up residence in that country at the time of the opening of the account.

– The receipts, credit card receipts and plane tickets

94 It is apparent from the documents before the Court that the applicant provided the Council with receipts for payment by credit card and checkout receipts showing purchases which took place in the periods from 23 to 28 October 2003 and 19 to 29 November 2003. Furthermore, the bank statement submitted by the applicant refers to transactions carried out in October 2003 in the United Kingdom, Belgium and Greece.

95 In that regard, even if the traders checked the customer’s identity at the time of the payments in question, it must be pointed out that those receipts and invoices only establish that the applicant made purchases in London and on one occasion in Epsom, Surrey, in the course of a limited number of days in October and November 2003. The Council was thus right to consider that that evidence is insufficient to prove the stable and permanent nature of the applicant’s residence in the United Kingdom.

96 The applicant is wrong to maintain that the Council cannot complain that she provided only a plane ticket and not a boarding card with a view to proving that she actually travelled from London to Greece in December 2003 since she had never been asked to provide a boarding card. It is for the applicant to submit the evidence which she considers appropriate. Moreover, such a boarding card, which can only establish that the applicant left London in December 2003 in order to return there in January 2004, does not constitute proof of a stable residence in London.

– The NHS card and medical expenses

97 It is apparent from the documents before the Court that the applicant was the holder of an NHS card dated 13 November 2003. When it stated its views in that regard at the hearing, the Council claimed, without being contradicted by the applicant, that the fact that someone is the holder of such a card does not constitute proof of registration with the United Kingdom social security system. According to the Council such a card giving rise to the right to have medical expenses reimbursed by the sickness insurance fund can be issued, inter alia, by the doctor consulted by the applicant on the basis of information as to residence which she has provided and without prior registration with the United Kingdom social security system. Consequently, in the absence of checks, the NHS card does not constitute sufficient proof of stable residence.

98 Furthermore, it is also apparent, as the Council rightly states, that the medical expenses for which the applicant requested reimbursement under the Sickness Insurance Scheme of the European Communities during the period 17 June 2003 to 26 January 2004 were all, with one sole exception, incurred in euro and related to services carried out in Belgium or in Greece.

99 It is true that the applicant plausibly explained that those services had been carried out during trips to Belgium or Greece. Although that factor does not necessarily cast doubt on the fact that the applicant was residing in the United Kingdom it raises doubts at least as regards her stable place of residence. The possibility also remains that the medical consultation was carried out and the expenses were incurred in the United Kingdom during a temporary stay.

– The removal of the applicant’s household effects

100 It is apparent from the documents before the Court that the applicant submitted a consignment note and also a ticket issued for a Calais to Dover crossing of 22 to 24 April 2003 in respect of the vehicle mentioned in that note.

101 In that connection, the applicant rightly disputes the Council’s interpretation that the terminology used in the consignment note, namely ‘1 partie household articles’, means that a part only of the applicant’s household effects was removed to the United Kingdom.

102 Such an interpretation is based on a terminological misunderstanding, as the term ‘partie’ which is used in the present case refers to an indeterminate quantity of goods and does not allow it to be specified whether that quantity constitutes a part of the whole of the household effects.

103 Furthermore, the removal company’s statement of 16 May 2005 submitted by the applicant backs up her interpretation that all her household effects were removed to London.

104 However, although it may be indicative of the applicant’s place of residence, the removal of all of her household effects to the United Kingdom does not on its own constitute sufficient proof of her residence in that country. Furthermore, when she stated her views in that regard at the hearing, the applicant did not adduce any evidence capable of refuting the Council’s statement concerning her delay in acknowledging receipt of her household effects.

– The registration of a motor vehicle in the United Kingdom

105 It is apparent from the evidence submitted by the applicant that in December 2003 she registered in the United Kingdom a car which had been brought into conformity with British standards and that she concluded a car insurance contract, facts which are not disputed by the Council.

106 Such matters are not, however, capable of establishing that the applicant actually took up residence in the United Kingdom. A vehicle can be used in another country even if it has been brought into line with national driving requirements. The fact that some of the actions undertaken by the applicant imply that she stated an address in the United Kingdom does not affect the validity of the Council’s conclusion, since the applicant has not proved that those actions required that she actually establish that the address mentioned corresponds to her main, stable place of residence.

– The telephone bills compiled by BT

107 It is apparent from the documents before the Court that the bills submitted in the present case, which were issued in February and March 2004, relate to the connection of a telephone line in the name of the applicant and to calls made by her. A letter from BT of 28 January 2004 concerning the installation of that telephone line also appears in the file.

108 In that regard, the Court of First Instance has already held in Del Vaglio v Commission (paragraph 101) that a bill for the connection of a fixed telephone line in a country is relevant evidence to prove that the person concerned established, with the intention that it should be of a lasting character, the permanent or habitual centre of his interests there. However, according to the same judgment, the evidential value of such a bill can be accepted only in the light of a body of evidence linked to it.

109 The other evidence provided by the applicant, namely a declaration regarding the situation of the applicant’s children, an extrajudicial declaration concerning her de facto separation from her husband and a certificate that she has not made use of the right to tax-free repatriation of goods to Greece do not prove that her place of residence is in the United Kingdom.

110 It follows that the items of evidence submitted by the applicant, taken as a whole, do not sufficiently establish that she actually took up stable residence in the United Kingdom as of 1 May 2003 or as of another date prior to that of the rejection of her complaint, namely 16 July 2004.

111 It follows that the applicant has not succeeding in establishing that the Council erred in refusing to apply to her pension the weighting laid down for the United Kingdom.

112 This plea must therefore be rejected.

The plea relating to infringement of Article 82(1) of the Staff Regulations and the principle of equal treatment

The first part concerning infringement of Article 82(1) of the Staff Regulations

– Arguments of the parties

113 The applicant submits that the Council had infringed Article 82(1) of the Staff Regulations by withdrawing her entitlement to the application of the United Kingdom weighting even though she had provided the Council with proof of her permanent residence in that country.

114 She submits, in this respect, that this case is similar to that which gave rise to the judgment in Del Vaglio v Commission, according to which the concept of permanent residence for the purposes of Article 82(1) of the Staff Regulations implies an overall assessment of the facts and the evidence. It is also apparent from that judgment that registration with the sickness insurance scheme in the United Kingdom, accompanied by other evidence, constitutes sufficient overall proof to establish her residence in the United Kingdom. By contrast, the fact that the applicant concluded a tenancy agreement is not in itself a determining factor for the purposes of establishing where she is resident.

115 In the present case, although the decision of 16 July 2004 appears to state in paragraph 32 that a tenancy agreement is only one of many means of proving her main place of residence, the Council, throughout all the administrative proceedings, considered such a document as the only valid means of proof, whilst dismissing the other items of evidence submitted.

116 In this connection the applicant provided proof of her registration with the sickness insurance scheme in the United Kingdom, the connection of a telephone line in that country, compliance with the technical specifications in the United Kingdom and the fact that her car was registered in the United Kingdom and also provided bills and receipts for payment by credit card of purchases made in London. In that regard, she contests the Council’s statement that this evidence can be gathered during a brief stay in the United Kingdom.

117 Lastly, as regards the assertion in paragraph 21 of the defence that it is for the Council to carry out checks in order to prevent abuses, the applicant states that, at the meeting on 13 October 2003, she invited the Council to carry out checks in the United Kingdom, which it declined to do on the ground that it was not for the Council to verify the facts relied on by an official and that it was for the official to prove them.

118 The Council denies that it infringed Article 82(1) of the Staff Regulations. It submits that it is under an obligation to take all necessary steps to ensure the correct, rigorous and uniform application of Article 82(1) of the Staff Regulations (order of the Court of 29 April 2004 in Case C‑187/03 P Drouvis v Commission, not published in the ECR, and Case T-184/00 Drouvis v Commission [2003] ECR-SC I-A-51 and II‑297).

119 Since the identification of a former official’s residence is a question of fact, the burden of proof of residence lies with him. In the present case, the applicant has not adequately discharged her obligation to prove her main residence since, by the date of the decision rejecting her complaint, she had failed to provide the Council with the essential elements which it had requested, namely proof of a tenancy agreement, proof of payment of rent and copies of bills, in particular water, electricity and telephone bills spread over a period of time. The documents submitted by the applicant could be obtained by any citizen of the European Union on a short visit to the United Kingdom. Furthermore, the information relating to her legal situation is inconsistent.

120 As regards the alleged similarity between this case and Del Vaglio v Commission, the Council submits that, in that judgment, the decisive proof that Mr Del Vaglio was resident in the United Kingdom was his registration with the social security system in the United Kingdom (paragraphs 101 and 104). The applicant has not put forward such evidence in the present case. The only similarity between the cases arises from the fact that the Council rightly considered that the attestations by the consulate, declarations by individuals known to the applicant and her registration in the Register of Electors did not constitute sufficient proof of residence.

– Findings of the Court

121 It must be pointed out that the applicant maintains, in essence, in the first part of this plea, that the Council infringed Article 82(1) of the Staff Regulations by failing to carry out an overall assessment of all the facts and items of evidence submitted, as provided for by case-law, and by favouring as the only means of proof of residence a copy of a tenancy agreement and water, electricity and gas bills.

122 Therefore, the applicant complains that the Council examined only the items of evidence concerning the fact that she was a tenant and had incurred running expenses for electricity, water and gas relating to the lease in order to assess residence.

123 That claim cannot be upheld.

124 In that regard, first, it is apparent from the grounds of the contested act that the Council informed the applicant that it considered that the documents which she submitted on 29 October 2003 did not constitute sufficient proof of her stable residence in the United Kingdom.

125 Secondly, as shown by the examination of the previous plea, it is apparent from the relevant grounds of the decision of 16 July 2004 that the Council made an overall and detailed examination of the evidence submitted by the applicant throughout the administrative proceedings. It examined individually the probative value of the evidence put forward by the applicant to come to the conclusion, on the basis on an overall assessment of all the evidence submitted in the present case, that the applicant had not put forward sufficient proof of her stable residence in the United Kingdom.

126 It follows from those considerations that the first part of this plea must be rejected.

The second part concerning infringement of the principle of equal treatment

– Arguments of the parties

127 The applicant asserts that by applying the weighting for Greece to her pension although she is resident in the United Kingdom the Council infringed the principle of equal treatment. She submits, in that regard, that the establishment of the weighting is a manifestation of that principle as it is aimed at ensuring that retired officials will have the same purchasing power irrespective of the place of residence (Joined Cases T‑238/95 to T-242/95 Mongelli and Others v Commission [1998] ECR‑SC I-A-319 and II-925).

128 Thus, as she is not able to obtain the United Kingdom weighting, the applicant is placed at a disadvantage compared with any retired former official who is resident in the United Kingdom.

129 The Council denies that it has infringed the principle of equal treatment. It asserts in that regard that the applicant has put forward no arguments to demonstrate the precise manner in which she has been treated differently as against officials in similar situations or in which precise manner her case is so different from similar situations as to justify a difference in treatment.

130 The Council adds that the applicant could plead such unequal treatment only if she were able to discharge the burden of proof that she had effectively established her residence in the United Kingdom.

– Findings of the Court

131 As the applicant has not been able to show that she has established her stable residence in the United Kingdom, she is wrong to allege that she suffered discrimination as against officials permitted to obtain the rights relating to such residence.

132 Therefore, the second part of this plea and, consequently, the plea in its entirety must be rejected.

The plea relating to infringement of the duty to have regard for the welfare of officials and of the principle of good administration

Arguments of the parties

133 The applicant observes that, according to settled case-law, the duty to have regard for the welfare of officials with which the Community institutions are required to comply means that those institutions are obliged not only to take account of the interest of the service but also the interests of their officials (Joined Cases C‑193/87 and C-194/87 Maurissen and Union Syndicale v Court of Auditors [1990] ECR I-95, paragraph 23; Joined Cases T-39/93 and T-553/93 Baltsavias v Commission [1995] ECR-SC I-A-233 and II-695, paragraphs 58 and 59; Joined Cases T‑78/96 and T‑170/96 W v Commission [1998] ECR-SC I-A-239 and II-745, paragraph 116; and Joined Cases T-112/96 and T-115/96 Séché v Commission [1999] ECR-SC I-A-115 and II-623, paragraphs 147 to 149). The applicant adds in this connection that the principle of good administration is frequently linked to the duty to have regard for the welfare of officials (Case T-100/92 La Pietra v Commission [1994] ECR-SC I-A-83 and II‑275, paragraphs 58 to 60).

134 In the present case, the Council failed to comply with its duty to have regard for the welfare of officials and the principle of good administration. First of all, it failed to give clear instructions and its officials expressed contradictory views regarding the evidence which the applicant had to provide to establish that she was resident in the United Kingdom.

135 Furthermore, there were irregularities in the applicant’s medical file and also in her personal file. As regards the personal file, the minutes of the meeting of 13 October 2003 are incomplete inasmuch as they do not mention all the matters discussed.

136 Lastly, the Council infringed the principle of good administration by starting, after the adoption of the contested act, to send all correspondence to the applicant’s lawyer in Greece notwithstanding her repeated requests to send all documents to her address in the United Kingdom.

137 The Council submits that the duty to have regard for the welfare of officials cannot be interpreted in such a way that it prevents it from requiring the applicant to provide it with sufficient evidence of her residence for the purposes of Article 82 of the Staff Regulations. On the contrary, when it is faced with a case such as this, it must respond with the rapidity and solicitude required by the circumstances, with a view to ascertaining the true facts and taking appropriate action.

138 Thus, the applicant’s contradictory statements entitled the Council to demand solid evidence of her stable and effective residence in the United Kingdom and to take the precautionary measures it deemed appropriate, inter alia the suspension of the application to her pension of the United Kingdom weighting whilst awaiting such proof.

139 The Council submits that the administrative procedure intended to verify whether the evidence provided by the applicant demonstrated the existence of circumstances warranting the application of a particular weighting was neither initiated nor applied unlawfully.

140 Rather, the Council would have been failing in its duty of good administration as a Community institution, and thus ultimately answerable to the European taxpayers, had it continued, notwithstanding the absence of sufficient proof of an effective and stable residence in the United Kingdom, to permit the applicant to benefit from the application of the weighting for that country.

Findings of the Court

141 It must be borne in mind as a preliminary point that, according to settled case-law, a particular consequence of the duty to have regard for the welfare of officials and the principle of good administration is that when the competent authority takes a decision concerning the situation of an official it should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also those of the official concerned (Case 321/85 Schwiering v Court of Auditors [1986] ECR 3199, paragraph 18; La Pietra v Commission, paragraph 58; Case T-7/01 Pyres v Commission [2003] ECR-SC I-A-37 and II-239, paragraph 51; and Case T-14/03 Di Marzio v Commission [2004] ECR-SC I-A-43 and II‑167, paragraph 99).

142 In the present case, even if the Council has not managed the file in an entirely satisfactory way, none of the applicant’s claims allows a finding of infringement of the duty to have regard for the welfare of officials or the principle of good administration.

143 The argument that the Council’s officials provided contradictory instructions and assurances or that the procedure to establish the applicant’s stable residence was carried out in an unlawful manner cannot succeed. As stated above, to prove his residence the official concerned may refer to all the factual circumstances which constitute residence and furnish whatever supporting evidence he considers appropriate (Schäflein v Commission, paragraph 10). Therefore, the Council cannot be required to inform the applicant of the precise evidence necessary or to provide her with the assurance, even before the adoption of the decision, that such evidence will be regarded as sufficient.

144 As for the alleged irregularities in the applicant’s medical and personal files and the letters to the applicant at the wrong address, they are not capable of affecting the validity of the contested act. As regards the medical file, it is apparent from the documents before the Court that the Council filed a document concerning another official in the applicant’s medical file. As regards the personal file, the applicant maintains that the minutes of the meeting of 13 October 2003 between herself and the Council are incomplete. In this connection, it is apparent from the grounds of the decision of 16 July 2004 that the Council took into account the information allegedly missing in the minutes, namely the items of evidence as to residence which were discussed at that meeting. That matter, therefore, has no effect on the validity of the contested act.

145 Lastly, the applicant has put forward no other argument which allows the Court to infer that the alleged irregularities identified above adversely affected her.

146 It follows from the above that the plea relating to infringement of the duty to have regard for the welfare of officials and the principle of good administration must be rejected.

The plea relating to infringement of the principles of legal certainty and the protection of legitimate expectations

Arguments of the parties

147 The applicant submits that the withdrawal of the weighting applicable for the United Kingdom constitutes an infringement of the principles of legal certainty and the protection of legitimate expectations.

148 It follows from that principle that legal acts conferring subjective rights, such as the acquired right in the present case, cannot as a rule be withdrawn unless the act in question is unlawful and that, in the case of unlawful acts, retroactive withdrawal requires that the principle of legal certainty is given particular consideration.

149 The applicant claims in this respect that, in accordance with the case-law, the withdrawal of a measure conferring an acquired right requires that two conditions be fulfilled, namely, first, that the addressee be accorded a reasonable time-limit beyond which such an acquired right cannot be withdrawn and, second, that due regard be had to the legitimate expectations of the person concerned (Joined Cases 7/56 and 3/57 to 7/57 Algera and Others v Common Assembly [1957] ECR 39, 55, and Case 14/81 Alpha Steel v Commission [1982] ECR 749, 764; Case T‑227/95 AssiDomän Kraft Products and Others v Commission [1997] ECR II‑1185, paragraph 90). In Case C‑90/95 P De Compte v Parliament [1997] ECR I‑1999, paragraphs 32 to 40, the Court of Justice went even further by holding that unless it was clear to the person concerned, at the time of the adoption of the act, that this act was illegal, it can never be withdrawn, not even within a reasonable time-limit.

150 In the present case, by adopting the decision applying the weighting for the United Kingdom unconditionally and without temporal limitation, the Council gave the applicant the clear impression that that decision was lawful and that it would remain in force.

151 The Council’s statement that the evidence initially provided by the applicant was re-examined clearly indicates that it recognises the legality of that decision. Moreover, the first time that the Council claimed that new case-law required it to withdraw a benefit previously granted to the applicant is in its defence before the Court of First Instance.

152 On the basis of those assurances, the applicant took steps to arrange her personal life and financial plans accordingly, in particular the financing of her children’s university studies. Her fixed monthly costs, leaving aside household expenses are, first, the repayment of debts in the sum of EUR 2 474.05 and, second, her children’s expenses amounting to EUR 1 100.

153 Contrary to the Council’s assertions, the applicant disputes in this respect that she stated that she ‘needs’ the weighting for the United Kingdom to pay for her daily subsistence costs. On the contrary, she arranged her life in the light of the decision to apply the weighting for the United Kingdom to her pension. The obligation to repay the debts arose after that decision and therefore constitutes a relevant factor in the present case.

154 The decision to suspend and then to withdraw the application of the weighting for the United Kingdom infringes the principle of the protection of legitimate expectations as it was applied retroactively. In addition, the time-limit to provide evidence granted by the Council and the transitional period before the suspension took effect were too short.

155 Finally, the applicant submits that Case T-498/93 Dornonville de la Cour v Commission [1994] ECR-SC I-A-257 and II-813, to which the Council refers in its defence, can be distinguished from this case because in that case, in contrast to the circumstances here, the right which had been granted was subject to conditions and limited in time, which led the Court of First Instance to find, at paragraph 46 of the judgment, that there were no precise assurances on the part of the competent Community institution that the right in question would continue to be granted. In the present case, since the grant of the weighting for the United Kingdom was not limited in time, the applicant could deduce from it that, as long as her factual situation remained unchanged, the United Kingdom weighting would continue to apply to her pension.

156 Although the Council acknowledges the substantial monthly difference resulting from the application of the two weightings in question, it contends that the existence of the obligation to repay debts does not constitute a relevant factor in the present case.

157 It recalls in this connection that, according to the case-law, no official can invoke the principle of the protection of legitimate expectations in the absence of precise assurances provided by the authority. Further, it also follows from the case-law that the subsequent withdrawal of a benefit, which was granted on the basis of an irregular situation with respect to the Staff Regulations, cannot be considered to be a breach of acquired rights, nor should such withdrawal be accompanied by the maintenance in force of the benefit on a transitional basis (Dornonville de la Cour v Commission, paragraphs 46 to 49 and 58).

158 In the present case, no precise assurances concerning the maintenance of the application of the weighting to the applicant’s pension were ever given. Rather, because of inconsistencies and contradictions in her statements, as early as May 2003 the applicant was requested on several occasions to furnish proof of her residence in the United Kingdom and was specifically warned that if she did not do so, its application would be suspended. Accordingly, by withdrawing the application of the weighting in question, the Council acted in a manner consistent with the abovementioned case-law.

159 The disputed benefit was not withdrawn too precipitately in the present case because the applicant was granted six weeks to submit supporting documents.

160 Lastly, the Council disputes the applicant’s statement that she could infer from this that as long as her factual situation was unchanged, the United Kingdom weighting would continue to be applied to her pension. It is precisely the change in the factual situation which is crucial in the present case since the applicant has failed to demonstrate conclusively her stable and effective residence in the United Kingdom.

Findings of the Court

161 It must be pointed out at the outset that, according to settled case-law, while it must be acknowledged that any Community institution which finds that a measure which it has just adopted is tainted by illegality has the right to withdraw it within a reasonable period, with the retroactive effect which applies to such a withdrawal, that right may be restricted by the need to fulfil the legitimate expectations of a beneficiary of the measure, who has been led to rely on the lawfulness thereof (De Compte v Parliament, paragraph 35; Gooch v Commission, paragraph 53; and Case T-251/00 Lagardère and Canal+ v Commission [2002] ECR II-4825, paragraph 140).

162 It is also apparent from the case-law that the relevant date as regards whether the addressee of an administrative act has acquired legitimate expectations is not the date on which the act was adopted or withdrawn but the date on which it was notified (De Compte v Parliament, paragraph 36).

163 Furthermore, the beneficiary cannot rely on legitimate expectations in so far as he has provoked the adoption of the measure by means of false or incomplete information (Joined Cases 42/59 and 49/59 Snupat v High Authority [1961] English Special Edition page 53, 87; Case 14/61 Hoogovens v High Authority [1962] English Special Edition page 253, 269; and De Compte v Parliament, paragraph 37).

164 In the present case, as it has been held that the decision of 21 May 2003 was tainted by illegality, it must further be established whether by the date on which it was notified the applicant could have had legitimate expectations as regards its legality.

165 In that regard, although the Council has stated that there were contradictions in the evidence provided by the applicant during the administrative procedure, it did not maintain, in the statement of reasons for the contested act or in the decision of 16 July 2004, that the withdrawn decision was provoked by false and misleading declarations by the applicant as regards her residence. Furthermore, no item in the file serves to establish that that is the case. On the contrary, when it stated its views in that regard at the hearing, the Council admitted that the adoption of the decision in question was caused not by the fact that the applicant had provided incorrect or misleading information, but by its own negligence in concluding that the applicant was resident in the United Kingdom on a stable basis notwithstanding the insufficient nature of the evidence initially adduced.

166 Furthermore, neither the withdrawn decision nor the circumstances in which that decision was notified to her disclose any objective matters which could have led the applicant to be aware of that error.

167 Lastly, it must be pointed out that in the circumstances of the present case there is no public-policy interest, in particular that of the sound management and protection of the institution’s financial resources cited by the Council at the hearing as a reason for the retroactive withdrawal of the application to the applicant’s pension of the more favourable weighting, which overrides the beneficiary’s interest in the maintenance of a situation which he was entitled to regard as stable (see, to that effect, Snupat v High Authority; Hoogovens v High Authority; and De Compte v Parliament, paragraph 39).

168 It follows that, although the decision of 21 March 2003 determining that the weighting applicable to the applicant’s pension was that for the United Kingdom was tainted by illegality, the Council, by withdrawing it with retroactive effect, infringed the legitimate expectations which the applicant had been entitled, in the circumstances of the case, to entertain as regards its legality.

169 Therefore, the plea relating to an infringement of the principle of the protection of legitimate expectations must be upheld.

170 Consequently, the contested act must be annulled in so far as it withdraws the decision of 21 May 2003 for the period from 1 May to 31 December 2003.

The claim for directions to be issued

171 It is settled case-law that the conditions as to admissibility of an action laid down in Articles 90 and 91 of the Staff Regulations are a matter of public policy and that the Court of First Instance can therefore examine them of its own motion (Case T-37/93 Stagakis v Parliament [1994] ECR-SC I-A-137 and II-451, paragraph 17; Case T-109/98 A.V.M. v Commission [1999] ECR II-3383, paragraph 21; and Joined Cases T-437/04 and T-441/04 Standertskjöld-Nordenstam and Heyraud v Commission [2006] ECR II‑0000, paragraph 28).

172 It must be borne in mind that according to settled case-law it is not for the Court of First Instance to issue directions to the Community institutions in the context of an action brought pursuant to Article 91 of the Staff Regulations. Where an act is annulled, the institution concerned is required under Article 233 EC to take the measures necessary to comply with the judgment (Case T-94/92 X v Commission [1994] ECR-SC I-A-149 and II-481, paragraph 33; Di Marzio v Commission, paragraph 63; and Case T-80/04 Castets v Commission [2005] ECR II-0000, paragraph 17).

173 Consequently, the applicant’s claim that the Court of First Instance should order the Council to pay the sums allegedly due on account of the unlawfulness of the contested act, plus interest at the applicable rate, is inadmissible.

The claim for damages

1. Arguments of the parties

174 The applicant claims that, if the Court of First Instance finds that the contested act should be annulled, she is entitled to receive compensation for the material and non-material damage suffered in the sum of EUR 100 000.

175 The material damage suffered consists in the fact that, on account of the loss of income resulting for her from the contested act, her daughter had to abandon her doctoral studies in order to seek employment, which negatively affects her career as a doctor and her intention to pursue an academic career. There is a causal link between the Council’s unlawful conduct and the damage suffered.

176 The non-material damage consists in the suffering caused to the applicant during the 15 months before this action was brought on account of her legitimate expectation of her entitlement to have the United Kingdom weighting applied and the allegedly abusive conduct of the Council towards her during the administrative procedure, in the form of inconsistencies, contradictions and incompetent administration of her file, constituting a failure to comply with the duty incumbent upon the administration to have regard for the welfare of officials.

177 According to the applicant, the damage must be assessed by reference to her individual situation and the circumstances which gave rise to the damage caused in the present case. Having regard to her poor state of health, the manner in which her case has been dealt with is unacceptable, especially in view of the fact that she has three children pursuing university studies who are dependent on her.

178 The applicant asserts in this regard that all her consultations with her specialist followed major incidents involving the Council. As evidence she refers to Dr M.’s medical opinion of 10 February 2004, annexed to the application, in the words of which ‘predisposition factors, such as the inconsistencies of the EU services concerning the calculation of her pension, the financial trouble that this entails, [and] frictions within her family … have aggravated her situation’.

179 The Council recalls that, in accordance with settled case-law, in order for the Community to incur non-contractual liability, the applicant must prove the unlawfulness of the alleged conduct of the institution concerned, actual damage and the existence of a causal link between the contested conduct and the damage claimed.

180 In the present case, since the applicant has failed to prove any unlawfulness on the part of the Council, the first of the above conditions is not fulfilled. Accordingly, the Council submits that the claim for damages must be rejected and there is no need to consider the other conditions for incurring non-contractual liability.

2. Findings of the Court

Admissibility

181 It is apparent from the case-law that, under the system of remedies established by Articles 90 and 91 of the Staff Regulations, an action for damages, which constitutes an autonomous remedy, separate from the action for annulment, is admissible only if it has been preceded by a pre-litigation procedure in accordance with the provisions of the Staff Regulations. That procedure differs according to whether the damage for which reparation is sought results from an act adversely affecting the applicant within the meaning of Article 90(2) of the Staff Regulations or from conduct on the part of the administration which contains nothing in the nature of a decision. In the first case, it is for the person concerned to submit to the administration, within the prescribed time-limits, a complaint directed against the act in question. In the second case, on the other hand, the administrative procedure must commence with the submission of a request within the meaning of Article 90(1) of the Staff Regulations for compensation and continue, where appropriate, with a complaint against the decision rejecting that request (Case T‑500/93 Y v Court of Justice [1996] ECR-SC I-A-335 and II-977, paragraph 64).

182 Where there is a direct link between an action for annulment and an action for damages, the latter is admissible as being ancillary to the action for annulment, without necessarily having to be preceded by a request from the person concerned to the appointing authority for compensation for the damage allegedly suffered and by a complaint challenging the correctness of the implied or express rejection of that request (Joined Cases T-17/90, T-28/91 and T‑17/92 Camara Alloisio and Others v Commission [1993] ECR II-841, paragraph 46, and Y v Court of Justice, paragraph 66).

183 In the present case, the applicant did not submit a request for compensation to the appointing authority during the administrative procedure. Therefore, the question whether there is a direct link between that claim and the action for annulment must be examined.

184 As regards the material damage the applicant claims to have suffered, namely the financial consequences of the withdrawal of the application of the weighting for the United Kingdom which had an adverse impact on her daughter’s career, the claim for reparation thereof is ancillary to the applicant’s action for annulment and, consequently, admissible.

185 As for the non-material damage which she claims to have suffered, that essentially consists of the suffering caused both by the retroactive withdrawal of the application of the United Kingdom weighting and the Council’s allegedly abusive conduct towards her during the administrative procedure. That non-material damage thus arises only in part from the contested act as it concerns in part the conduct of the Council during the administrative procedure.

186 It follows from this that the claim for damages is inadmissible as regards the non-material damage allegedly suffered which was caused by the allegedly abusive conduct of the Council during the administrative procedure.

Substance

187 It must be observed that as regards, first, the non-material damage, it is settled case-law that, except in special circumstances, the annulment of an act challenged by an official constitutes appropriate and, generally, sufficient reparation for the harm which he may have suffered (Case C-343/87 Culin v Commission [1990] ECR I-225, paragraph 26, and Case T-140/97 Hautem v EIB [1999] ECR-SC I-A-171 and II-897, paragraph 82).

188 It must be pointed out that, in the present case, the annulment in part of the contested act constitutes appropriate and sufficient reparation for the non-material damage which the applicant could have suffered on account of its illegality. The claim for damages must therefore be dismissed as regards that part.

189 Secondly, as regards the material damage alleged, namely the adverse impact on the career of the applicant’s daughter, besides the fact that there is no direct and definite link between the contested act and the alleged damage, the applicant has not adduced any evidence which allows an assessment to be made of the extent of the harm suffered.

190 It follows from the above that the claim for damages must be dismissed as inadmissible in part and as unfounded as to the remainder.

Costs

191 Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Where each party succeeds on some and fails on other heads, the Court of First Instance may, under Article 87(3) of the Rules of Procedure, order that the costs be shared or that the parties bear their own costs.

192 As the Council has been unsuccessful in some of its pleadings, the Court orders it to bear one third of the applicant’s costs in addition to its own costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Fourth Chamber)

hereby:

1. Annuls the Council’s decision of 5 December 2003 withdrawing the application of the weighting for the United Kingdom to the applicant’s pension in so far as it withdraws that entitlement, with retroactive effect, for the period from 1 May 2003 to 31 December 2003;

2. Dismisses the action as to the remainder;

3. Orders the Council to bear one third of the applicant’s costs in addition to its own costs.





Legal Lindh Vadapalas

Delivered in open court in Luxembourg on 27 September 2006.





E. Coulon H. Legal