CELEX: 62008FJ0012
Language: en
Date: 2009-06-09
Title: Judgment of the Civil Service Tribunal (First Chamber) of 9 June 2009. # Thierry Nardin v European Parliament. # Public service - Officials - Remuneration. # Case F-12/08.

JUDGMENT OF THE CIVIL SERVICE TRIBUNAL 
      (First Chamber)
      9 June 2009 
      Case F-12/08
      Thierry Nardin
      v
      European Parliament
      (Civil service – Officials – Remuneration – Expatriation allowance – Refusal to grant – Condition laid down in Article 4(1)(a) of Annex VII to the Staff Regulations – Application for annulment – Unlawfulness of the recruitment procedure – Ineffectiveness – Claim for damages)
      Application: brought under Articles 236 EC and 152 EA, in which Mr Nardin essentially seeks, first, annulment of the Parliament’s decision
         of 2 April 2007 fixing his rights on taking up his appointment and refusing to grant him the expatriation allowance, and,
         second, an order that the Parliament pay the expatriation allowance from April 2007 together with the sum of EUR 10 000 to
         make good the non-material damage allegedly suffered.
      
      Held: The action is dismissed. The applicant and the Parliament are to bear their own costs. The Commission of the European Communities,
         which intervened in support of the Parliament, is to bear its own costs.
      
      Summary
      1.      Officials – Remuneration – Expatriation allowance – Purpose – Conditions for granting – No habitual residence or main occupation
            at the place of employment prior to taking up appointment – Concept
      (Staff Regulations, Annex VII, Art. 4(1)(a))
      2.      Officials – Actions – Pleas in law – Plea based on the unlawfulness of the official’s recruitment procedure
      1.      The fundamental reason for the expatriation allowance provided for in Article 4(1)(a) of Annex VII to the Staff Regulations
         is to compensate officials for the extra expense and inconvenience of taking up permanent employment in a country with which
         the official had no permanent ties prior to taking up his appointment. Where it is required, for a finding that such ties
         existed, that the official in question must have habitually worked in the country of his future employment with the Communities
         for the whole of a given period, that means that professional services provided in other countries involving sporadic and
         brief absences during that period are not sufficient to deprive the official’s exercise of his main occupation in his State
         of employment of its habitual nature.
      
      (see paras 32-33)
      See:
      188/83 Witte v Parliament [1984] ECR 3465, para. 11
      
      T-72/94 Diamantaras v Commission [1995] ECR-SC I‑A‑285 and II‑865, para. 51 and the case-law cited therein
      
      2.      An official cannot rely on the unlawfulness of the procedure for his recruitment by a Community institution to apply for the
         annulment of the decision by that institution fixing his rights on taking up his appointment and refusing him the expatriation
         allowance, given that there is no adequate causal link between the official’s recruitment procedure and the contested decision.
         Illegalities vitiating the recruitment procedure might support claims for annulment of a recruitment decision; however, the
         question of the lawfulness of a decision fixing an official’s rights on taking up his appointment is separate from the lawfulness
         of the procedure by which the official concerned was recruited by that institution.
      
      (see para. 39)