JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

5 December 2012

Case F‑6/12

Julien Bourtembourg

v

European Commission

(Civil service — Officials — Expatriation allowance — Concept of habitual residence — Permanent or habitual centre of interests — Temporary residence for the purpose of study — Place where professional activity is pursued — Fixed-term employment relationship)

Application: Action brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby Mr Bourtembourg seeks annulment of the decision of the appointing authority of the European Commission of 11 October 2011 rejecting his complaint against the Commission’s decision of 24 May 2011 refusing to award him the expatriation allowance.

Held: The Commission’s decision is annulled. The Commission is to bear its own costs and is ordered to pay the costs incurred by the applicant.

Summary

1.      Officials — Remuneration — Expatriation allowance — Purpose — Concept of expatriation — Officials having the nationality of the Member State of employment — Presumption of the existence of numerous close links with that State — Burden of proof borne by the official

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

2.      Officials — Remuneration — Expatriation allowance — Conditions for award — Officials having the nationality of the Member State of employment — Habitual residence outside the Member State of employment during the reference period — Concept of habitual residence — Residence during two periods limited to completion of a period of training and a fixed-term contract of employment — Circumstances not giving rise to a presumption of habitual residence in the place of employment

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

1.      The purpose of the expatriation allowance is to compensate officials for the extra expense and inconvenience of taking up employment with the European Union if they have been thereby obliged to change their residence and move to the country of employment and to integrate themselves in a new environment. The concept of expatriation depends on the personal position of an official, that is to say, on the extent to which he is integrated and, more specifically, on whether, although having the nationality of the Member State of employment, he has in fact severed his social and occupational links with that State.

In that regard, Article 4(1)(b) of Annex VII to the Staff Regulations is based on the presumption that a person’s nationality constitutes a serious indicium of the existence of numerous close links between that person and the country of his nationality. The presumption of lawfulness applicable as a matter of principle to the acts of the administration and that more specific presumption associated with nationality imply that the applicant must bear the burden of proof by showing that he established the centre of his interests in another country throughout the entire 10-year reference period and that by refusing to award him the expatriation allowance the institution infringed that provision.

(see paras 25-26, 29)

See:

2 May 1985, 246/83 De Angelis v Commission, para. 13; 13 November 1986, 330/85 Richter v Commission, para. 6; 15 September 1994, C‑452/93 Magdalena Fernández v Commission, paras 20 and 22

11 July 2007, F‑7/06 B v Commission, para. 39; 20 November 2007, F‑120/05 Kyriazis v Commission paras 47 and 48 and the case-law cited

2.      As regards the expatriation allowance, the place of habitual residence is that 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 an official with the nationality of the country of employment, the fact that he has maintained or established his habitual residence there, even for only a very short period during the 10-year reference period, is sufficient to entail the loss or refusal of the expatriation allowance.

However, temporary residence in the country of employment in the context of studies does not, in principle, imply the intention of transferring the centre of his interests to that country, unless that period of residence, taken into consideration together with other relevant facts, demonstrates that the official concerned has permanent social and occupational links with that country.

Furthermore, although the place in which an individual exercises his occupational activities is a serious factor in the determination of his habitual residence, the mere fact that he was resident in the country of employment for a limited period purely for the purpose of performing a fixed-term contract of employment does not give rise to a presumption that he intended to transfer the permanent or habitual centre of his interests to that country.

(see paras 28, 36, 39-40)

See:

Magdalena Fernández v Commission, para. 22

27 September 2006, T‑259/04 Koistinen v Commission, para. 38

B v Commission, para. 38 and the case-law cited; 26 September 2007, F‑129/06 Salvador Roldán v Commission, para. 51; Kyriazis v Commission, para. 47