JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Second Chamber)

30 January 2014

Case F‑151/12

Jakob Ohrgaard

v

European Commission

(Civil service — Remuneration — Expatriation allowance — Residence condition laid down in Article 4(1)(b) of Annex VII to the Staff Regulations — Performance of duties in an international organisation — Concept — Work experience period of five months at the Commission — Not included)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Mr Ohrgaard seeks annulment of the decision of 6 March 2012 by which the European Commission refused him entitlement to the expatriation allowance, and, in so far as is necessary, annulment of the decision of 31 August 2012 rejecting his complaint.

Held:      The decision of the European Commission of 6 March 2012 refusing Mr Ohrgaard entitlement to the expatriation allowance, as amended by the decision of 31 August 2012 rejecting his complaint, is annulled. The European Commission is to bear its own costs and is ordered to pay the costs incurred by Mr Ohrgaard.

Summary

1.      Actions brought by officials — Act adversely affecting an official — Action against a decision rejecting a complaint — Decision taken after reconsideration of an earlier decision — Admissibility

(Staff Regulations, Arts 90 and 91)

2.      Officials — Remuneration — Expatriation allowance — Conditions for granting — Work done for another State or for an international organisation — Definition — Completion of a period of work experience in an institution — Not included

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

1.      Where the decision rejecting a complaint contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the original decision, the rejection of the complaint constitutes a measure subject to review by the court, which will take it into consideration when assessing the lawfulness of the contested measure, and may even regard it as an act adversely affecting the complainant and replacing the contested measure.

(see paras 13, 16)

See:

9 December 2009, T‑377/08 P Commission v Birkhoff, para. 55; 21 September 2011, T‑325/09 P Adjemian and Others v Commission, para. 32

2.      In order to determine whether an official is entitled to the expatriation allowance, it is clear from the wording of Article 4(1)(a) and (b) of Annex VII to the Staff Regulations that, so that periods of residence, respectively, in the State in whose territory the place of employment of the official or other staff member is situated or outside that territory may be disregarded, the legislature drew a distinction depending on whether residence was because of circumstances arising from work done for another State or for an international organisation, or for the performance of duties in the service of a State or an international organisation.

Work experience at the Commission, which is designed to be a period of specialisation supplementing either a university education or the knowledge required to fill a post, may not be regarded as coming under the concept of performance of duties, since that concept requires that the work must contribute mainly to the achievement of the objectives of the State or international organisation in question. In view of the main aim of work experience at the Commission, that finding is not called into question by the fact that some trainees receive an allowance, depending on the funding available and their family situation, or, for public or private sector employees, that they continue to be paid their salary.

Moreover, it is true that this is a different approach from that laid down in Article 4(1)(a) of Annex VII to the Staff Regulations for officials who have never been nationals of the State where they are employed, and that this approach results in a difference in treatment, mainly on the ground of the nationality of the person concerned.

However, the fact remains that that difference in treatment is justified, first, by the difference in the actual wording given by the legislature to Article 4(1)(a) and (b) of Annex VII to the Staff Regulations, and second, by the difference in the length of the reference period, which is considerably longer for officials who have been nationals of the State in which they are employed.

(see paras 40, 43-45, 47, 49)