JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

19 March 2013

Case F‑10/12

SF

v

European Commission

(Civil service — Remuneration — Daily subsistence allowance — Transfer — Grant of the daily subsistence allowance — Official owning accommodation located at the new place of employment — Proof of expenses incurred due to provisional installation at the new place of employment)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which SF essentially seeks annulment of the decision of 24 May 2011 by which the European Commission refused to grant him the daily subsistence allowance.

Held:      The action is dismissed. The Commission is to bear its own costs and is ordered to pay half the costs incurred by SF. SF is to bear half of his own costs.

Summary

1.      Officials — Reimbursement of expenses — Daily subsistence allowance — Conditions for granting

(Staff Regulations, Arts 20 and 71; Annex VII, Art. 10(1))

2.      Officials — Reimbursement of expenses — Daily subsistence allowance — Conditions for granting — Expense and inconvenience occasioned by the need to travel and establish a provisional residence at the place of employment — Burden of proof on the official — Administration’s respect for official’s choice of accommodation

(Staff Regulations, Art. 20; Annex VII, Art. 10(1))

3.      Officials — Reimbursement of expenses — Daily subsistence allowance — Conditions for granting — Expense occasioned by the obligation to reside at the place of employment — Definition — Expense occasioned by obligations arising from official’s status as owner of an apartment at the new place of employment — Not included

(Staff Regulations, Art. 20; Annex VII, Art. 10(1))

1.      The purpose of Article 71 of the Staff Regulations, which provides that an official is entitled to reimbursement of expenses incurred by him inter alia on transfer, is to prevent him from having to bear on his own expenses incurred in connection with the performance of his duties.

It is in the light of that purpose that Article 10(1) of Annex VII to the Staff Regulations must be applied, which provides for a daily subsistence allowance to be granted to an official who furnishes evidence that a change in the place of residence is required in order to comply with Article 20 of the Staff Regulations, which requires him to reside either in the place where he is employed or at no greater distance therefrom than is compatible with the proper performance of his duties.

The daily subsistence allowance is granted subject to two conditions: first, a change in the place of residence must be required in order to comply with Article 20 of the Staff Regulations, and second, the allowance must cover the expense and inconvenience occasioned by the need to travel and establish a provisional residence at the place of employment. Since those two conditions are cumulative, the daily subsistence allowance cannot, in particular, be paid to an official who does not prove that he has been exposed to such expense or inconvenience.

However, the Union legislature has never made the grant of the daily subsistence allowance subject to the condition that the official concerned must prove that he has been obliged provisionally to maintain a residence in his place of origin or his previous place of employment which is also, provisionally, a source of expense. It would therefore be contrary to the fundamental principle of legal certainty as well as to the wording of Article 10(1) of Annex VII to the Staff Regulations for the institution to impose the additional condition of a ‘second’ expense in order for the officials concerned to qualify for the daily subsistence allowance.

Furthermore, if established officials are not to be automatically excluded from receiving the daily subsistence allowance, contrary to the Staff Regulations, it may not be considered that only persons linked to the institutions by a precarious employment relationship (probationary officials, temporary or contract staff, seconded national experts) might be regarded as having a provisional residence at the place of employment as long as no removal has taken place. What is decisive in that respect is not the precarious nature of the employment relationship, but the precarious accommodation situation of a person who is required, by the Staff Regulations, to reside in the place of employment where he is to perform his duties with a Union institution, body, office or agency. Precarious accommodation is a different concept from precarious employment. It must therefore be possible to regard an established official who changes his place of employment as establishing a provisional residence at that new place of employment.

(see paras 27-29, 39, 44)

See:

5 February 1987, 280/ 85 Mouzourakis v Parliament, paras 9 and 12

26 September 1990, T‑48/89 Beltrante and Others v Council, para. 28; 10 July 1992, T‑63/91 Benzler v Commission, paras 20 and 21

2.      Although, in the context of an application for the daily subsistence allowance as a result of an official’s reassignment, it is for that official to provide evidence that he has borne the expense and inconvenience occasioned by the need to travel and establish a provisional residence at his place of employment, the administration must respect the official’s choice, that is, his freedom to reside as and where he wishes during that period. Consequently, except where there are serious suspicions and clear indications that the expenses claimed are not actually consistent with the official’s real situation, it is not for the administration to call into question the official’s choice, which may be to find provisional accommodation that involves costs, such as a hotel room or a rented furnished apartment, or that does not involve costs, such as by staying with a family member or friend or in an apartment which he owns.

(see para. 30)

3.      In the context of an application for the daily subsistence allowance as a result of an official’s reassignment, the costs which the official must in any event pay as the owner of an apartment located at his place of employment, such as the costs of repaying a mortgage taken out to purchase the apartment, communal charges, maintenance costs or electricity costs, cannot be regarded as expense occasioned by the obligation to reside at the place of employment laid down in Article 20 of the Staff Regulations.

In order to receive the daily subsistence allowance, the official must furnish proof that he has borne expense occasioned by the obligation to reside at his place of employment and not by obligations arising from his status as owner of an apartment located at that same place.

(see paras 33-34)