JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (First Chamber)

11 July 2007

Case F-7/06

B

v

Commission of the European Communities

(Civil service – Officials – Remuneration – Expatriation allowance – Conditions in Article 4(1) of Annex VII to the Staff Regulations)

Application: brought under Articles 236 EC and 152 EA, in which B essentially seeks annulment of the Commission appointing authority’s decision of 26 April 2005 to refuse to pay the applicant an expatriation allowance, together with the appointing authority’s decision of 10 October 2005 rejecting the applicant’s complaint against the decision of 26 April 2005.

Held: The action is dismissed. The parties are ordered to bear their own costs.

Summary

Officials – Remuneration – Expatriation allowance – Conditions for granting

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

In the exercise of the broad discretion it has to fix the conditions for entitlement to payment of the expatriation allowance, the Community legislature may subject officials with dual nationality to the normal rules – even if they are not in a comparable situation to that of persons of single nationality – in order to restrict the number of people receiving the expatriation allowance payable pursuant to Article 4(1)(b) of Annex VII to the Staff Regulations. Strict conditions, such as not having any habitual residence in the country of employment for 10 years prior to entering the service, are intended to ensure that the allowance is granted to officials with the nationality of their country of employment only where the presumption is rebutted that a person’s nationality is a serious indication that he has numerous ties with the country of his nationality, and where it is established that any lasting tie between the official and that country has been broken.

That restriction of the number of people receiving the expatriation allowance does not constitute arbitrary or inappropriate discrimination in relation to the objective pursued by Article 4 of Annex VII to the Staff Regulations. The fact that the application of the categories laid down in Article 4 of Annex VII to the Staff Regulations may give rise to marginal cases in which officials find that payment of the expatriation allowance is denied to them when their circumstances are close to those defined by that article does not imply that the provisions in question contain arbitrary differentiation, when, based on objective factors, they apply in the same manner to all officials who are placed in the situation contemplated by the Staff Regulations.

(see paras 39-41, 45-46)

See:

147/79 Hochstrass v Court of Justice [1980] ECR 3005, para. 12; 1322/79 Vutera v Commission [1981] ECR 127, para. 9; C-148/02 Garcia Avello [2003] ECR I‑11613, paras 31 to 37

T-18/91 Costacurta Gelabert v Commission [1992] ECR II‑1655, para. 42; T‑18/98 Reichert v Parliament [2000] ECR-SC I‑A‑73 and II‑309, para. 25; T‑317/99 Lemaître v Commission [2000] ECR-SC I‑A‑191 and II‑867, para. 50; T‑251/02 E v Commission [2004] ECR-SC I‑A‑359 and II‑1643, paras 124 and 126