CELEX: 62006FO0129
Language: en
Date: 2007-09-26 00:00:00
Title: Order of the Civil Service Tribunal (First Chamber) of 26 September 2007. # Rocío Salvador Roldán v Commission of the European Communities. # Staff cases - Officials - Remuneration - Expatriation allowance - Conditions laid down by Article 4(1)(a) of Annex VII to the Staff Regulations - Habitual residence - Action manifestly devoid of any legal basis. # Case F-129/06.

ORDER OF THE CIVIL SERVICE TRIBUNAL (First Chamber)
      26 September 2007 
      Case F-129/06
      Rocío Salvador Roldán
      v
      Commission of the European Communities 
      (Civil service – Officials – Remuneration – Expatriation allowance – Conditions laid down by Article 4(1)(a) of Annex VII to the Staff Regulations – Habitual residence – Action manifestly devoid of any legal basis)
      Application: brought under Articles 236 EC and 152 EA, in which Mrs Salvador Roldán seeks, first, annulment of the decision of the appointing
         authority of the Commission of 18 August 2006, dismissing her complaint brought on 15 May 2006 against the Commission’s decision
         of 6 April 2006 not to pay her the expatriation allowance and, second, an order that the Commission pay her amounts corresponding
         to that allowance, with effect from 1 April 2006, plus interest.
      
      Held: The action is dismissed as manifestly unfounded. The parties are ordered to bear their own costs.
      
      Summary
      Officials – Remuneration – Expatriation allowance – Conditions for granting 
      (Staff Regulations, Annex VII, Art. 4(1)(a)))
      The habitual residence to which Article 4(1)(a) of Annex VII to the Staff Regulations refers for the purpose of the grant
         of the expatriation allowance corresponds 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, 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 place where a person carries on their occupation, apart from its relevance as an independent criterion for the application
         of Article 4(1)(a) of Annex VII to the Staff Regulations, is an important indicator for determining habitual residence.
      
      The fact that an official might have the intention of looking for a job other than in his country of residence is not such
         as to call into question the determination of his habitual residence, since it is not disputed that, throughout the reference
         period, that official maintained the centre of his interests at the place of his subsequent employment, where he had his home
         and where, for most of the period, he carried on his occupation. Accordingly, that requirement of an intention to confer stability
         on the centre of his interests is not to be interpreted as meaning that the official concerned must have excluded the possibility
         of returning to his country of origin or leaving for another Member State of the European Union.
      
      An official’s other ties with his country of origin, such as ownership of a car, medical consultations, property owned by
         his parents in that country, the fact of having renewed his official identity papers there, the exercise of his rights as
         a citizen or the fact of having his tax domicile, financial interests and assets there, including a bank account, and the
         visits which he makes to it are only those normal ties which people retain with the country in which their parents live and
         where they have lived for a long time, but are insufficient to establish that they are habitually resident in that country.
      
      (see paras 48, 51, 56, 59)
      See:
      T-18/91 Costacurta Gelabert v Commission [1992] ECR II‑1655, para. 42; T‑90/92 Magdalena Fernández v Commission [1993] ECR II‑971, para. 30; T‑18/98 Reichert v Parliament [2000] ECR‑SC I‑A‑73 and II‑309, para. 25; T‑60/00 Liaskou v Council [2001] ECR-SC I‑A‑107 and II‑489, paras 53 and 64; T‑283/03 Recalde Langarica v Commission [2005] ECR-SC I‑A‑235 and II‑1075, para. 114; T-83/03 Salazar Brier v Commission [2005] ECR-SC I‑A‑311 and II‑1407, paras 56 and 71, under appeal to the Court of Justice, C‑9/06 P; T-259/04 Koistinen v Commission [2006] ECR-SC I-A-2-177 and II-A-2-879, para. 34; T‑324/04 F v Commission [2007] ECR-SC I-A-2-0000 and II-A-2-0000, para. 87
      
ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (First Chamber)
      26 September 2007 (*)
      
      (Staff cases – Officials – Remuneration – Expatriation allowance – Conditions laid down by Article 4(1)(a) of Annex VII to the Staff Regulations – Habitual residence – Action manifestly devoid of any legal basis)
      In Case F‑129/06,
      ACTION under Articles 236 EC and 152 EA,
      Rocío Salvador Roldán, official of the Commission of the European Communities, residing in Brussels (Belgium), represented by F. Tuytschaever and
         H. Burez, lawyers,
      
      applicant,
      v
      Commission of the European Communities, represented by J. Currall and K. Herrmann, acting as Agents,
      
      defendant,
      THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (First Chamber),
      composed of H. Kreppel, President, H. Tagaras (Rapporteur) and S. Gervasoni, Judges,
      Registrar: W. Hakenberg,
      makes the following
      Order
      1        By application lodged at the Registry of the Civil Service Tribunal on 16 November 2006, Ms Salvador Roldán brought an action
         seeking, first, annulment of the decision of the appointing authority of the Commission of the European Communities of 18 August 2006,
         dismissing her complaint brought on 15 May 2006 against the Commission’s decision of 6 April 2006, not to pay her the expatriation
         allowance and, second, an order that the Commission pay her amounts corresponding to that allowance, with effect from 1 April 2006,
         plus interest.
      
       Legal context
      2        Article 69 of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’) provides:
      
      ‘The expatriation allowance shall be equal to 16% of the total of the basic salary, household allowance and dependent child
         allowance to which the official is entitled. The expatriation allowance shall be not less than EUR 445.88 per month.’
      
      3        Article 4(1) of Annexe VII to the Staff Regulations provides:
      
      ‘1. An expatriation allowance shall be paid, equal to 16% of the total amount of the basic salary plus household allowance
         and the dependent child allowance paid to the official:
      
      (a)      to officials:
      –        who are not and have never been nationals of the State in whose territory the place where they are employed is situated, and
      –        who during the five years ending six months before they entered the service did not habitually reside or carry on their main
         occupation within the European territory of that State. For the purposes of this provision, circumstances arising from work
         done for another State or for an international organisation shall not be taken into account;
      
      (b)      to officials who are or have been nationals of the State in whose territory the place where they are employed is situated
         but who during the 10 years ending at the date of their entering the service habitually resided outside the European territory
         of that State for reasons other than the performance of duties in the service of a State or of an international organisation.
      
      The expatriation allowance shall not be less than EUR 445.88 per month.’
       Facts giving rise to the dispute
      4        The applicant was born in Spain and has been a Spanish national since birth.
      
      5        Having studied law in Spain, the applicant attended a specialised European law programme at Bruges (Belgium) from September
         1998 to June 1999, after which, from October 1999 to March 2000, she completed a traineeship at the Commission.
      
      6        In April 2000, after that traineeship had come to an end, the applicant, who had been a member of the Madrid bar since 29 December 1998,
         began providing services to the Brussels office of an international law firm (‘the Brussels law firm’). On 15 May 2002, she
         set up a private limited company for lawyers (‘the SPRL’), the registered office of which was in Brussels, through which she
         pursued her collaboration with the Brussels law firm.
      
      7        According to documents drawn up by the Civil Registration Officer for the municipality of Ixelles, Brussels, from 9 December
         1999, the applicant was registered consecutively as being resident in the Brussels municipalities of Saint‑Josse‑ten‑Noode,
         Saint‑Gilles and Ixelles. Initially living in rented accommodation, the applicant purchased her own flat in Brussels in 2003.
      
      8        On 1 April 2006, the applicant entered into service as a probationary official at the Commission.
      
      9        On 6 April 2006, the Office for administration and payment of individual entitlements (PMO) adopted a decision not to pay
         the applicant the expatriation allowance. On 15 May 2006, she brought a complaint under Article 90(2) of the Staff Regulations
         against the PMO’s decision. In her complaint she indicated that, from 2000 to 2005, she had been living as much in Spain as
         in Belgium and that, in the latter country, she was working not as an employee, but as a provider of services to a Brussels
         law firm. According to the applicant, her lack of job stability or lasting ties with Belgium during a period in which she
         incurred expenses in Spain proved that she had maintained her residence in that country and that, in those circumstances,
         she was entitled to the expatriation allowance.
      
      10      On 20 April 2006, the applicant requested the amendment of her place of origin, initially fixed as Brussels. The appointing
         authority granted that request by decision of 3 July 2006 and fixed her place of origin as Astorga (Spain).
      
      11      By decision of 18 August 2006, the appointing authority dismissed the complaint on the ground that the applicant was habitually
         resident in Belgium during the reference period provided for by Article 4(1)(a) of Annex VII to the Staff Regulations (‘the
         reference period’), fixed in the present case from 1 October 2000 to 30 September 2005.
      
       Form of order sought 
      12      The applicant claims that the Tribunal should:
      
      –        annul the appointing authority’s decision of 18 August 2006 dismissing her complaint;
      –        order the Commission to pay her the amounts corresponding to the expatriation allowance, with effect from 1 April 2006, plus
         default interest at the rate of 7% from the date each amount became due until the date of actual payment;
      
      –        order the Commission to pay the costs.
      13      The Commission contends that the Tribunal should:
      
      –        dismiss the application;
      –        give a ruling as to costs in accordance with the relevant rules.
       The Tribunal’s decision to rule by way of reasoned order
      14      Under Article 111 the Rules of Procedure of the Court of First Instance of the European Communities, applicable mutatis mutandis
         to the Civil Service Tribunal, by virtue of Article 3(4) of Council Decision 2004/752/EC, Euratom of 2 November 2004 establishing
         the European Union Civil Service Tribunal (OJ 2004 L 333, p. 7), until the entry into force of the Tribunal’s own rules of
         procedure, where the Tribunal has no jurisdiction to take cognisance of an action or where the action is manifestly inadmissible
         or manifestly lacking any foundation in law, the Tribunal may, by reasoned order, without taking further steps in the proceedings,
         give a decision on the action.
      
      15      The final situation covered by that provision includes all actions manifestly bound to fail for reasons connected with the
         substance of the case. The dismissal of such an action by reasoned ordered pursuant to Article 111 the Rules of Procedure
         of the Court of First Instance not only contributes to the economy of the procedure but also spares the parties the costs
         involved in holding a hearing.
      
      16      In the present case, the Tribunal considers itself to be sufficiently informed by the contents of the case‑file to give a
         decision on the action, pursuant to Article 111 the Rules of Procedure of the Court of First Instance, without taking further
         steps in the proceedings.
      
       The claim for annulment
      17      The applicant claims annulment of the appointing authority’s decision of 18 August 2006 by which it dismissed her complaint
         against the decision not to pay her the expatriation allowance. In that respect, it is necessary to state at the outset that,
         although the action is formally directed against the rejection of the complaint, it has the effect of bringing before the
         Court the act adversely affecting the applicant against which the complaint was submitted (see, to that effect, Case 293/87
         Vainker v Parliament [1989] ECR 23, paragraph 8, and Case F‑100/05 Chatziioannidou v Commission [2006] ECR II‑0000, paragraph 24). Consequently, the form of order sought by the applicant must be understood as also seeking
         the annulment of the decision of 6 April 2006 refusing to grant her the expatriation allowance.
      
      18      In support of her application, the applicant advances two pleas in law alleging, first, manifest errors of assessment when
         examining the evidence she submitted regarding her place of habitual residence during the reference period and, second, breach
         of the principle of non‑discrimination.
      
       The plea in law alleging manifest errors of assessment
       Arguments of the applicant
      19      The applicant states, first, that it is settled case‑law that the concept of habitual residence depends on the personal position
         of the official, more specifically on his intention to establish lasting ties with a particular country, and that a person
         can have two residences, one being his habitual residence and the other connected with his occupation.
      
      20      The applicant goes on to structure her argument in two parts. She denies the existence of lasting ties with Belgium and she
         submits that she maintained such ties with Spain.
      
      –       Whether there are lasting ties with Belgium
      21      The applicant denies the existence of lasting ties with Belgium, submitting, first, that the fact that, during the reference
         period, she provided services to the Brussels law firm, as a result of which she frequently spent time in Belgium, did not
         lead her to establish lasting ties with that country and, secondly, that Belgium cannot be considered to be her place of ‘habitual
         residence’.
      
      22      In support of the first part of her argument, the applicant puts forward three specific arguments. 
      
      23      The applicant submits, first, that the Commission’s assessment to the effect that her main occupation was in Belgium during
         the reference period, is vitiated by an error of assessment, since the institution failed to take account of the fact that
         an important part of that occupation related to Spain or to questions of Spanish law and that she also derived her professional
         income from providing services in Spain on behalf of the Brussels law firm.
      
      24      By her second argument, the applicant claims that the Commission failed properly to appreciate the nature of her employment
         relationship with the Brussels law firm. That employment relationship was not a stable one, as the applicant had the status
         of an independent lawyer and was consequently responsible for paying her own tax and national insurance contributions. The
         applicant relies on case‑law according to which the lack of a stable employment relationship rebuts the presumption of an
         intention to settle in a particular country and claims that she could not, in the conditions in which she provided services
         to the Brussels law firm, have established lasting ties with Belgium. Moreover, there is no conflict between her argument
         derived from the lack of a stable employment relationship and the fact that she took steps to end that employment relationship.
         Indeed, it was owing to difficulties she experienced in ending that relationship before securing another source of income
         that the applicant made efforts to build a professional reputation in Spain.
      
      25      Finally, the applicant claims that the Commission failed to interpret correctly the reasons for the creation of the SPRL,
         through which since 2002 she continued her collaboration with the Brussels law firm. She submits that her purpose in establishing
         the SPRL was to improve her tax position. Incorporation cannot be taken as an indication that her employment relationship
         with the Brussels law firm was stable or that she had the intention of establishing lasting ties with Belgium, particularly
         in view of the ease with which such a company could be formed and wound up and the fact that the Brussels law firm was the
         SPRL’s only source of revenue.
      
      26      As regards the second part of her argument regarding whether lasting ties existed with Belgium, the applicant seeks to demonstrate
         that she had no habitual residence in that country by submitting that the case‑law relied on by the Commission does not support
         the conclusion that she had her residence in Belgium and that that institution failed to assess properly the evidence that
         she put forward.
      
      27      The applicant submits that the case‑law which the Commission relies on is not particularly relevant to her case, in which,
         first, there are no ties with the country of recruitment other than the fact that she provided services to the Brussels law
         firm and, second, there are lasting ties with Spain. Conversely, the officials concerned in the case‑law cited by the Commission
         were in radically different situations from that of the applicant, having lived for long periods in the country of recruitment,
         with which they had family ties. The applicant submits that, contrary to the Commission’s assertions, this case‑law establishes
         that, for the purpose of determining the place of ‘habitual residence’, account must be taken of the official’s personal situation,
         in particular, his intention to establish lasting ties with a place. Thus, the case‑law actually supports the applicant’s
         claim, since her periods outside Spain, for the purpose of providing services to the Brussels law firm, were not accompanied
         by an intention to move permanently the centre of her interests and that, consequently, her habitual residence could only
         be Spain.
      
      28      Furthermore, the Commission failed properly to assess the evidence submitted to the effect that Belgium was not the place
         of her habitual residence.
      
      29      The applicant insists, in particular, that the Commission wrongly treated her purchase of a flat as an indication that she
         was resident in Brussels, whilst that purchase was only made so that she could deduct her accommodation costs for tax purposes.
         The decision to purchase a flat came after the applicant discovered that she was unable to deduct the rent she was paying
         because her landlord refused to register the tenancy agreement. The applicant claims that she did not purchase the flat with
         the aim of maximising her investment, something which would have required a long stay in Belgium, but in the light of the
         fact that, if her employment relationship with the Brussels law firm had ended, market conditions should have enabled her
         to recover the cost of that investment. That is the reason why she did not seek to exploit the tax advantages which would
         have been entailed either by the purchase of the bare title to the flat with a transfer of the usufruct to the SPRL, a solution
         which would require the usufruct to be of a minimum duration of 15 years, or by the purchase of the flat on behalf of the
         SPRL, which would subsequently rent it back to her, a solution which would entail the risk of substantial costs, were she
         to break her employment relationship with the Brussels law firm, with the flat being transferred to her and treated as one
         of her personal assets until a purchaser was found.
      
      30      The applicant also puts forward other evidence relied on at the stage of the complaint – namely the conditions under which
         she collaborated with the Brussels law firm, the fact of not transferring to the SPRL the goodwill she had built up as an
         independent lawyer, the lack of group insurance or of a car in Belgium – to show that she had no intention of establishing
         lasting ties with Belgium.
      
      –       Whether there are lasting ties with Spain 
      31      In order to prove the existence of lasting ties with Spain, the applicant submits, first, that, in its response to the earlier
         complaint, the Commission did not take into consideration the evidence showing that those ties existed, secondly, that the
         Commission misquoted her in that respect and, thirdly, that the Commission made untrue allegations.
      
      32      According to the applicant, first, the Commission did not take into account evidence showing that she retained lasting ties
         with Spain, as shown by her national identity card, her passport and her driving licence, all of which indicated the town
         of Astorga as her place of residence. The Commission also failed to take account of evidence indicating that the applicant
         retained a family doctor in Spain, as well as a bank account, an active correspondence address, a car and a mobile phone.
      
      33      Second, the Commission misinterpreted the applicant’s reliance on the existence in Spain of a family property. The applicant
         maintains that she relied on this circumstance for the sole purpose of proving her family ties with Spain. The Commission,
         moreover, wrongly attributed to the applicant the admission that she had her residence in Brussels during the reference period,
         when actually she referred to long stays in that city, whilst proving that her residence remained in Spain.
      
      34      Third, the applicant claims that the Commission made untrue and speculative allegations about her, questioning the efforts
         which she had made to find a job in Spain, despite the evidence she submitted that her job search was genuine. Moreover, according
         to the applicant, the Commission wrongly interpreted her participation in the selection procedure for a position with a Community
         agency in London as proof of the insufficiency of her ties with Spain. That application, on the contrary, confirmed that she
         did not intend to remain in Belgium and establish lasting ties there. In addition, the Commission wrongly ascribed importance
         to the fact that the applicant did not have a property in Spain, whether as proprietor or as tenant. Such a circumstance has
         little relevance for finding whether the applicant maintained lasting ties with Spain. The applicant submits, in particular,
         that the fact of having used a flat placed free at her disposal by her parents does not preclude her residence in Spain being
         taken into account.
      
       Arguments of the Commission
      35      The Commission contends, first, that the evidence which the applicant adduces for the purpose of showing that she maintained
         lasting ties with Spain merely discloses the ordinary ties which everyone retains with his country of origin and are insufficient
         to demonstrate that the applicant’s habitual residence was Spain.
      
      36      The Commission emphasises the fact that the applicant admits that she was resident and worked in Brussels during the reference
         period, even though she considers that that residence cannot be considered to be habitual in the absence of an intention to
         make Brussels the permanent centre of her interests. The Commission contends in that respect that Community case‑law has laid
         down simple and objective criteria for determining an official’s habitual residence, specifically in order to avoid the administration
         having to investigate the official’s personal motivation and that, in the present case, the simple hope of settling down in
         Spain or elsewhere is insufficient to call into question the fact that the applicant was habitually resident in Belgium. The
         Commission adds that the applicant failed to have regard to the fact that the grounds for exclusion laid down in Article 4(1)(a)
         of Annex VII to the Staff Regulations do not relate only to the habitual residence of the person concerned during the reference
         period, but also to the place where he carries on his main occupation during that period.
      
      37      For the purpose of establishing whether it had correctly assessed the applicant’s situation as regards her habitual residence,
         the Commission began by reviewing her employment relationship with the Brussels law firm, went on to assess her actual residence,
         and ended by considering the arguments regarding lasting ties with Spain.
      
      38      The Commission contends, first, that the employment relationship which the applicant maintained during the reference period
         with the Brussels law firm was of a permanent nature, in view of the prospect that in time it would lead to her being made
         a partner of that firm. It contends that the applicant’s main area of work was not Spanish law, her continued membership of
         the Madrid bar merely enabling her occasionally to appear in court in Spain on behalf of the Brussels law firm, and that in
         any event the applicant had failed to show that she had made use of her membership of the Madrid bar in that respect. Her
         self‑employed status in no way altered the fact that, until her recruitment by the Commission, her only source of work and
         the only income of the SPRL which she set up was the Brussels law firm, her work for other clients being marginal and occasional.
         Her main occupation was in Brussels, a finding which was substantiated by the incorporation of the SPRL, which had its registered
         office there.
      
      39      Concerning the applicant’s actual residence, the Commission infers from the documents entitled ‘Certificat de residence’ (Certificate
         of residence) and ‘Historique des adresses’ (List of past addresses), annexed to the complaint and the application, that,
         at least since 9 December 1999, she has continuously lived in Brussels. The rental and subsequent purchase of a flat in that
         city were signs of her need to live in proximity to her place of work. The reference to reasons of a tax nature confirms that
         her occupation was in Belgium and that she was subject to Belgian tax. Conversely, the absence of Spanish tax considerations
         provides an indication that she lacked occupational and other ties with Spain.
      
      40      The Commission contends that the applicant gave her Brussels addresses in her application for the competition which led to
         her recruitment as a Community official and that she would not have been able to give the Commission a ‘Certificat de bonne
         conduite, vie et mœurs’ (Certificate of good character), issued by the municipality of Ixelles, unless she was resident there.
      
      41      The Commission contends, moreover, that the case‑law on the distinction between habitual residence and occupational residence
         would only support the applicant’s position if she were to prove the existence of such a double residence. The applicant has,
         however, neither claimed nor proved that to be the case. The Commission states that, in the declaration which she made on
         entering the service, the applicant gave Brussels as one of the places in which she had been habitually resident during the
         10 years immediately preceding her entry into service. 
      
      42      Concerning the existence of lasting ties with Spain, the Commission contends that, in accordance with the Community case‑law,
         neither (i) the reference in official documents to an address, (ii) the fact of having consulted a doctor, possibly whilst
         on holiday, (iii) the existence of a bank account, (iv) the intention of looking for work in Spain or elsewhere nor (v) the
         fixing by the Commission of her place of origin are relevant for the purpose of determining the applicant’s centre of interests.
      
       Findings of the Court
      43      The conditions for granting the expatriation allowance are laid down by Article 4(1) of Annexe VII to the Staff Regulations,
         which envisages two situations:
      
      –        that of officials who ‘are not and have never been nationals of the State in whose territory the place where they are employed
         is situated’;
      
      –        that of officials who ‘are or have been’ such nationals.
      44      In the present case, the applicant, who entered into service at the Commission in Brussels, has had Spanish nationality from
         birth, and has never acquired Belgian nationality. Consequently, she comes within the first situation above, provided for
         by Article 4(1)(a) of Annex VII to the Staff Regulations. 
      
      45      Under that provision, recognition of the right to the expatriation allowance is subject to a double negative condition that,
         during the five years ending six months before he entered the service, the official concerned did not habitually reside or
         carry on his main occupation within the territory of that State. It is enough for that negative condition to be met in respect
         of the first or the second part in order for the official to be denied entitlement to the expatriation allowance (see, to
         that effect, Case T‑324/04 F v Commission [2007] ECR II‑0000, paragraph 54).
      
      46      As the applicant entered the service on 1 April 2006, the reference period extends, subject to the applicant’s plea of illegality
         raised against the provision on services provided to a State or to an international organisation (see paragraphs 63 to 74
         of the present order), during the period from 1 October 2000 to 30 September 2005.
      
      47      Since the decision of 6 April 2006 refusing the applicant’s entitlement to the expatriation allowance failed to state reasons
         for that refusal, the applicant chose to challenge it on the issue of ‘habitual residence’, namely on the first part of the
         double negative condition laid down by Article 4(1)(a) of Annex VII to the Staff Regulations. In the complaint and the present
         application, the plea in law alleging errors of assessment in the application of the provision is based solely on issues relating
         to the applicant’s habitual residence. Likewise, the decision dismissing the complaint and the Commission’s defence confine
         themselves to the issue of the applicant’s habitual residence, merely replying to the arguments set out by her on that subject.
         In those circumstances, the Tribunal will also confine itself to that issue, which is the only one in respect of which the
         parties are in dispute. It will examine in particular whether, during the reference period, the applicant can be considered
         to have had her habitual residence in Belgium.
      
      48      It is settled case‑law that the concept of habitual residence corresponds 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,
         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. (see, concerning
         the expatriation allowance, Case T‑60/00 Liaskou v Council [2001] ECR‑SC I‑A‑107 and II‑489, paragraph 53; Case T‑283/03 Recalde Langarica v Commission [2005] ECR‑SC I‑A‑235 and II‑1075, paragraph 114; and Case T‑83/03 Salazar Brier v Commission [2005] ECR‑SC I‑A‑311 and II‑1407, paragraph 56, and on appeal as Case C‑9/06 P; and Case T‑259/04 Koistinen v Commission [2006] ECR‑SC I‑A‑0000 and II‑0000, paragraph 34; see, concerning the installation allowance Case T‑37/99 Miranda v Commission [2001] ECR‑SC I‑A‑87 and II‑413, paragraphs 31 and 32; see, also, concerning the application of weighting to pensions, Joined
         Cases T‑124/01 and T‑320/01 Del Vaglio v Commission [2003]ECR‑SC I‑A‑157 and II‑767, paragraph 71).
      
      49      It must be held that the applicant’s actual residence was Brussels for the whole of the reference period. 
      
      50      It is apparent from the documents on the case‑file that, throughout the reference period, the applicant lived in Brussels,
         initially occupying a rented flat, and subsequently a flat which she bought. The applicant is not claiming in that respect
         that her use of those flats was only occasional. Conversely, the applicant is unable to show any property, occupied by her
         as tenant or owner, in Spain, merely asserting that, on her stays in that country, she used a flat placed at her disposal
         free of charge by her parents, without, however, adducing evidence, by means, for example, of domestic utility bills, of her
         actual use thereof.
      
      51      Similarly, it is apparent from the documents on the case‑file that the applicant’s occupation was in Brussels. The place where
         a person carries on their occupation, apart from its relevance as an independent criterion for the application of Article 4(1)(a)
         of Annex VII to the Staff Regulations (a criterion which, for the reasons set out at paragraph 47 of the present order, will
         not, however, be taken into account in the present case), is an important indicator for determining habitual residence. Accordingly,
         the fact that the applicant had worked in a stable manner for the Brussels law firm throughout the reference period, initially
         on a private basis and subsequently through an SPRL which she had set up under Belgian law for that purpose, is not in dispute.
         Nor is it in dispute that the applicant paid her national insurance contributions and taxes on earnings and fees to the Belgian
         State – a clear indication of the close territorial link that existed between the services she provided and Belgium.
      
      52      That link with Belgium is supported by the certificate of residence which the applicant produced herself and which is precisely
         the type of document which may validly be taken into consideration for the purpose of determining habitual residence, since
         registration as a resident demonstrates the intention of the official concerned to fix the permanent or habitual centre of
         his residence and of his interests in that place (see Case T‑368/03 De Bustamante Tello v Council [2005] ECR‑SC I‑A‑321 and II‑1439, paragraph 60, and on appeal as Case C‑10/06 P), all the more so since it concerns residence
         in a country other than the country of origin of the official concerned. Furthermore, the fact that the applicant used an
         address in Brussels for correspondence purposes in connection with an open competition for recruitment organised by the Community
         institutions is an indication of habitual residence in that city (Recalde Langarica v Commission, paragraph 127). 
      
      53      It is true that case‑law has, in certain cases, recognised that persons actually working in the country of their future employment
         as Community officials retain their residence in their country of origin. This, however, concerns people who had a stable
         employment relationship in the latter country, usually as civil servants, and were temporarily posted to Brussels, most frequently
         as national experts on secondment, whilst at the same time retaining their home in their country of origin (see, to that effect,
         Case T‑137/95 Mozzaglia v Commission [1996] ECR‑SC I‑A‑619 and II‑1657; see, also, under the system instituted by the provisions of the Staff Regulations applicable
         from 1 May 2004, Case F‑126/05 Borbély v Commission [2007] ECR‑SC I‑A‑0000 and II‑0000), a situation which differs clearly from that of the applicant. In addition, those cases
         mainly concern installation and daily subsistence allowances, although the payment of the expatriation allowance was, until
         the reform of the Staff Regulations in 2004, a necessary precondition for payment of the installation allowance.
      
      54      In those circumstances, it cannot reasonably be denied that the applicant’s habitual residence during the reference period
         was in her country of employment, Belgium, specifically, in Brussels.
      
      55      The converse arguments, which the applicant relies on, are in no way such as to call that finding into question.
      
      56      This is particularly the case for the contentions concerning the lack of intention on the part of the applicant to establish
         herself definitively in Brussels and the instability of her employment relationship with the Brussels law firm. Indeed, the
         case‑law on habitual residence, cited at paragraph 48 of the present order, also requires an element of stability, inasmuch
         as the interested party must evince the intention of conferring a lasting character on the centre of his interests, such as
         to fix his habitual residence; that same case‑law moreover states, on occasion (see Miranda v Commission, paragraphs 32 and 33, and Del Vaglio v Commission, paragraph 71), that the concept of residence implies, irrespective of the purely quantitative element of the time spent
         by the person in a particular country, not only the actual fact of living in a given place, but also the intention of thereby
         achieving the continuity which stems from a stable way of life and from the course of normal social relations. However, the
         Court of First Instance has expressly held that the circumstance that an official might have the intention of looking for
         a job other than in his country of residence is not such as to call into question the determination of his habitual residence,
         since it is not disputed that, throughout the reference period, that official maintained the centre of his interests at the
         place of his subsequent employment, where he had his home and where, for most of the period, he carried on his occupation
         (see Case T‑90/92 Magdalena Fernández v Commission [1993] ECR II‑971, paragraph 30). Accordingly, and in the light of the case‑law on the simple and objective criteria which
         must be applied to implement the system of Article 4(1) of Annex VII to the Staff Regulations (Case T‑18/91 Costacurta Gelabert v Commission [1992] ECR II‑1655, paragraph 42, and Case T‑18/98 Reichert v Parliament [2000] ECR‑SC I‑A‑73 and II‑309, paragraph 25), as well as the increased level of mobility in the European Union in the last
         few years, that requirement of an intention to confer stability on the centre of his interests is not to be interpreted as
         meaning that the official concerned must have excluded the possibility of returning to his country of origin or leaving for
         another Member State of the European Union. That requirement cannot have any other significance than to exclude from the negative
         condition in Article 4(1)(a) of Annex VII merely short‑term or temporary stays.
      
      57      The applicant’s stay in Brussels was certainly not of such a nature, since she lived there continuously throughout the reference
         period, having, moreover, acquired a flat there, and carried on her occupation in that city, having even taken the steps necessary
         to benefit fully from the tax advantages afforded by the Belgian legislation. The incorporation of the SPRL and the purchase
         of real estate for tax purposes are clear indicators that far from considering her occupation in Brussels to be short‑term
         or temporary, she saw it as a lasting one. It is immaterial in that respect that the Belgian legislation offered, as the applicant
         submits, other means by which she could have reduced her tax bill to a greater extent (see paragraph 29 of the present order),
         but which, to be profitable, would have required her to work for longer periods in Belgium, especially as no tangible evidence
         exists that it was for that reason that the applicant did not avail herself of those means. Furthermore, her reluctance to
         use those means of reducing her tax bill to a greater extent may well be explained not by the prospect of her leaving Belgium,
         but by that of her leaving her work as a lawyer for another career in the same country.
      
      58      In addition, as regards the trips to Spain connected with her work, which the applicant relies on, it is necessary to point
         out that, according to the case‑law, occasional and short absences cannot be considered sufficient for the applicant’s residence
         in the Member State of employment to stop being habitual within the meaning of Article 4(1)(a) of Annex VII to the Staff Regulations
         (see Salazar Brier v Commission, paragraph 65). Moreover, the applicant has not succeeded in providing evidence of her systematic absence from Brussels,
         or her periods of work in Spain.
      
      59      As for the other ties with the country of origin, relied on by the applicant, such as, for example, ownership of a car, medical
         consultations, her parents’ real estate in that country, the fact of having renewed her official identity papers there, the
         exercise of her rights as a citizen or the fact of having her tax domicile, financial interests and assets there, including
         a bank account, it is necessary to point out that, according to Community case‑law, such ties which an official has with his
         country of birth and the visits which he makes to it are only those normal ties which people retain with the country in which
         their parents live and where they have lived for a long time, but which, on the other hand, are insufficient to establish
         that they are habitually resident in that country (see, to that effect, Liaskou v Council, paragraph 64; Salazar Brier v Commission, paragraph 71, and F v Commission, paragraph 87).
      
      60      Moreover, and contrary to the applicant’s submissions, the fact that the Commission determines her place of origin to be Spain
         cannot have any relevance to the solution of this dispute, as the determination of an official’s place of origin and the grant
         of an expatriation allowance meet different needs and interests (see Magdalena Fernández v Commission, paragraph 30 and the case‑law cited, and F v Commission, paragraph 53).
      
      61      It follows that, taken as a whole, the various items of evidence and information disclosed by the parties’ pleadings support
         the Commission’s proposition that the applicant was habitually resident in Brussels throughout the reference period.
      
      62      The first plea in law is therefore manifestly unfounded.
      
       The plea in law alleging breach of the principle of non‑discrimination
       Arguments of the applicant
      63      In support of this plea in law, the applicant outlines one argument alleging that the criteria set out in the second indent
         of Article 4(1)(a) of Annex VII to the Staff Regulations are discriminatory in nature and another alleging that the Commission
         applied those criteria in a discriminatory fashion.
      
      64      As a preliminary point, the applicant submits that the principle of non‑discrimination takes precedence over all other considerations
         concerning the interpretation and application of the rules of the Staff Regulations, such as the principle relied on by the
         Commission, pursuant to which the provisions on financial advantages are to be given a strict interpretation.
      
      –       Whether the criteria in the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations are discriminatory
      65      The applicant submits, first, that the situation of officials who have worked, prior to their recruitment, for a State or
         an international organisation in their subsequent country of employment does not differ materially from her own situation
         in terms of the possibility of forming lasting ties with that country, and that therefore she finds herself in a situation
         comparable to that of those other officials.
      
      66      Second, the applicant points out the difference in treatment provided for by Article 4(1)(a) of Annex VII to the Staff Regulations.
      
      67      Third, the applicant disputes the Commission’s justification for that different treatment, namely that the criteria are objective
         and apply in like manner to all persons coming under the abovementioned provision. According to the applicant, that reasoning
         makes nonsense of the principle of non‑discrimination and fails to ensure equal treatment within a group of officials. She
         submits that the derogation adopted at the time of the foundation of the European Communities in favour of persons working
         for a State or an international organisation can be explained by the fact that those persons then comprised the vast majority
         of individuals required to change their residence for work reasons. The derogation raises a presumption that such persons
         were incapable of forming lasting ties with the receiving country because they had stayed there for a limited period and for
         work reasons. Today, however, with free movement of workers a commonplace within the European Union, owing to the influence
         of the Treaty, the distinction upon which the derogation is based, and accordingly the derogation itself, is no longer justified.
      
      –       Whether the Commission’s application of the criteria in the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations
         is discriminatory
      
      68      As to the allegation that the Commission applied the criteria laid down by Article 4(1)(a) of Annex VII to the Staff Regulations
         in a discriminatory way, the applicant maintains that, contrary to the Commission’s assertions, it enjoys a wide discretion
         in relation to the definition of the concept of ‘habitual residence’, which it failed to use in her case.
      
       Arguments of the Commission
      69      The Commission interprets that plea in law as a plea of illegality against the derogating provision in the final sentence
         of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations, on ‘work done for another State or for an international
         organisation’. It contends that, since the applicant has not established that her occupation was covered by the derogation,
         the lawfulness of that provision cannot be called into question in the present case and that, even if the derogation were
         to be unlawful, such a finding of illegality could not have any effect on the lawfulness of the decision refusing to grant
         her the expatriation allowance.
      
      70      In any event, the derogation in question is objectively justified, since the temporary nature of the employment of the persons
         covered by the derogation in the country of their future Community employment prevents them from establishing lasting ties.
      
       Findings of the Court
      71      As the Court of First Instance stated in its judgment in Case T‑251/02 E v Commission [2004] ECR‑SC I‑A‑359 and II‑1643, ‘E’, paragraphs 121 to 127), a plea in law such as that raised here constitutes a plea of illegality against Article 4(1)(a)
         of Annex VII to the Staff Regulations, which is admissible, but unfounded.
      
      72      The plea of illegality is admissible, because it is directed against a provision of general scope affecting the applicant
         but whose annulment she is not able to seek under Article 230 EC (E, paragraph 122; see, also, Joined Cases T‑94/01, T‑152/01 and T‑286/01 Hirsch and Others v ECB [2003] ECR‑SC I‑A‑1 and II‑27, paragraph 50 and the case‑law cited).
      
      73      That plea of illegality is, however, unfounded. Although the provisions concerned differentiate between officials, reserving
         more favourable treatment to those whose previous work in the country of employment was done for the benefit of a State or
         of an international organisation, that provision falls within the discretion left to the legislature for the purpose of determining
         categories of persons eligible to benefit from an allowance provided for by the Staff Regulations, and the differentiation
         which that provision lays down is neither arbitrary nor manifestly inappropriate in relation to the purpose of the expatriation
         allowance (see E, paragraphs 124 and 126), which is to compensate for the extra expense and inconvenience of taking up permanent employment
         in a country with which the official has established no lasting ties before his entry into service (Case T‑28/98 J v Commission [1999] ECR‑SC I‑A‑185 and II‑973, paragraph 32). As stated at paragraph 126 of E, the derogation provided by Article 4(1)(a) of Annex VII to the Staff Regulations in favour of an official who, during the
         reference period, lived in the country of employment whilst he was employed by another State or an international organisation
         finds its justification, necessarily, in the fact that, in such circumstances, that official cannot be considered to have
         established lasting ties with the country of employment. It is true that the application of the categories of Article 4 of
         Annex VII to the Staff Regulations may give rise to borderline situations in which the officials have payment of the expatriation
         allowance denied them even though they are in situations which are quite close to those which fall within that article, but,
         as is also stated at the same paragraph 126 of E, that circumstance does not justify the conclusion that the article contains an arbitrary differentiation, since the legislature
         is fully entitled to limit the presumption of the absence of lasting ties solely to situations arising from work done for
         another State or for an international organisation.
      
      74      It follows that the second plea in law must also be dismissed as manifestly unfounded.
      
       The claim for an order that the Commission pay the amounts corresponding to the expatriation allowance, plus default interest
      75      Inasmuch as the action for annulment cannot be upheld, this claim must also be dismissed.
      
      76      It follows from all of the foregoing that the entire action must be dismissed as manifestly unfounded.
      
       Costs
      77      As the Tribunal held in Case F‑16/05 Falcione v Commission [2006] ECR II‑0000, paragraphs 77 to 86, as long as the Rules of Procedure of the Tribunal, in particular the specific provisions
         concerning costs, have not come into force, in the interest of the sound administration of justice and in order to ensure
         that individuals are able to a sufficient extent to predict the costs of proceedings, only the Rules of Procedure of the Court
         of First Instance can be applied.
      
      78      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. Likewise, under Article 88 of those rules, in
         proceedings between the Communities and their servants the institutions are to bear their own costs.
      
      79      Since the Commission has applied for costs against the applicant and the latter has been unsuccessful in the present case,
         each party must be ordered to bear its own costs.
      
      On those grounds,
      THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (First Chamber)
      hereby orders:
      1.      The action is dismissed as manifestly unfounded.
      2.      The parties are ordered to bear their own costs.
      Luxembourg, 26 September 2007.
      
      
      
      
      
      
               W. Hakenberg 
            
             
            
                     H. Kreppel
            
         
               Registrar 
            
             
            
                     President
            
         
         The text of the present decision and the decisions of the Community judicature cited therein and not yet published in the
            ECR are available on the website of the Court of Justice: www.curia.europa.eu
         
      
      * Language of the case: English.