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.
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