JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

15 March 2011

Case F-28/10

Gaëtan Barthélémy Maxence Mioni

v

European Commission

(Civil service — Contract staff — Remuneration — Expatriation allowance — Conditions laid down in Article 4 of Annex VII to the Staff Regulations — Habitual residence before entering the service)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Mioni essentially seeks annulment of the Commission’s decision of 18 June 2009 terminating, from 1 July 2009, payment of the expatriation allowance which he had received since entering the service on 1 July 2005.

Held: The applicant’s action is dismissed. The applicant is to bear all the costs.

Summary

1. Officials — Remuneration — Expatriation allowance — Purpose — Habitual residence in the Member State of employment during the reference period — Definition

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

2. Officials — Principles — Protection of legitimate expectations — Scope

(Staff Regulations, Art. 85)

1. For the purpose of the expatriation allowance, the habitual residence to which Article 4(1)(a) of Annex VII to the Staff Regulations refers 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 purpose of the expatriation allowance is to compensate officials for the extra expense and inconvenience of taking up employment with one of the institutions of the European Union if they have been thereby obliged to change their residence and move from their home country to the country of employment and to integrate themselves in a new environment. The concept of expatriation also depends on the personal position of an official, that is to say, on the extent to which he is integrated in his new environment, which is demonstrated, for example, by habitual residence or by the pursuit of his main occupation. Moreover, the grant of the expatriation allowance is also intended to correct factual inequalities arising between officials who are integrated into society in their country of employment and those who are not.

As a rule, it cannot be assumed from the fact that an official is resident in a country, in particular for the purposes of study, by definition on a temporary basis, that he wishes to transfer the centre of his interests there, but, at the very most, that there is an as yet uncertain prospect that he might do so. The situation might be otherwise if the fact of residing in a country as a student, taken into consideration with other relevant facts, demonstrated that the official had lasting social and professional ties with the country in question; in that context, 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 22, 24, 31, 32)

See:

29 November 2007, C-7/06 P Salvador García v Commission, paras 43 and 44

27 September 2000, T-317/99 Lemaître v Commission, para. 51; 3 May 2001, T-60/00 Liaskou v Council, para. 55; 13 September 2005, T-283/03 Recalde Langarica v Commission, para. 114; 25 October 2005, T-205/02 Salvador García v Commission, para. 72

25 October 2005, T-299/02 Dedeu i Fontcuberta v Commission, para. 67; 26 September 2007, F-129/06 Salvador Roldán v Commission, para. 48; 9 March 2010, F-33/09 Tzvetanova v Commission, para. 48

2. The fact that the official or other staff member was paid financial benefits by the administration, even for several years, cannot in itself be considered a precise, unconditional and consistent assurance, since otherwise, any decision of the administration refusing for the future, and possibly with retroactive effect, to pay a pecuniary benefit unduly paid to the person concerned for several years would be systematically annulled by the Union courts for non-compliance with the principle of legitimate expectations, with the consequence that Article 85 of the Staff Regulations, on the recovery of undue payment, would be largely deprived of any practical effect.

(see para. 41)

See:

1 July 2010, F-45/07 Mandt v Parliament, para. 125