Case T‑466/20
LF
v
European Commission
Judgment of the General Court (Fourth Chamber), 15 September 2021
(Civil service – Members of the contract staff – Remuneration – Expatriation allowance – Article 4(1)(b) of Annex VII to the Staff Regulations – Refusal to grant the expatriation allowance – Habitual residence – Duties performed in an international organisation established in the State of employment)
1. Officials – Remuneration – Expatriation allowance – Conditions for granting – Officials or other members of staff who are nationals of the Member State of employment – Habitual residence outside the Member State of employment during the reference period – Calculation of the period – Disregarding periods of service spent working for a State or international organisation – Whether permissible – Conditions – Work done outside the State of employment
(Staff Regulations of Officials, Annex VII, Art. 4(1)(b); Conditions of Employment of Other Servants, Arts 20(2), 21 and 92)
(see paragraphs 34, 39, 40, 48, 49, 53, 64, 65)
2. Officials – Remuneration – Expatriation allowance – Conditions for granting – Officials or other members of staff who are nationals of the Member State of employment – Habitual residence outside the Member State of employment during the reference period – Concept of habitual residence – Account taken of work done for an international organisation established in the State of employment – Whether permissible
(Staff Regulations of Officials, Annex VII, Art. 4(1)(b); Conditions of Employment of Other Servants, Arts 20(2), 21 and 92)
(see paragraphs 66-72)
3. Officials – Remuneration – Expatriation allowance – Conditions for granting – Habitual residence outside the Member State of employment during the reference period – Concept of habitual residence – Circumstances giving rise to a presumption of habitual residence in the place of employment – Circumstances not capable of calling into question the genuineness of that residence
(Staff Regulations of Officials, Annex VII, Art. 4(1)(b))
(see paragraphs 78, 79, 85-92, 102)
4. Officials – Remuneration – Expatriation allowance – Conditions for granting – Various non-successive contracts concluded between the member of staff and the institutions – Determination of entitlement to the expatriation allowance upon each entry into service – Account taken of previous decisions awarding the expatriation allowance – Precluded
(Staff Regulations of Officials, Annex VII, Art. 4(1)(b))
(see paragraphs 93, 113)
Résumé
The applicant, LF, is a Belgian national who lived in France between 1982 and 2013. On 1 May 2013, he entered the service of the European Commission in Brussels under a fixed-term contract as a member of the contract staff. That contract expired on 30 April 2019. He was subsequently registered as a jobseeker in Belgium until 1 September 2019, when he entered the service of the Research Executive Agency (REA).
By decision of 11 September 2019 (‘the contested decision’), the Commission’s Office for the Administration and Payment of Individual Entitlements refused to grant the applicant the expatriation allowance on the ground that he had failed to establish that his habitual residence had been outside the State of employment, namely Belgium, during the 10 years ending on the date on which he took up his duties at the REA, contrary to the requirements of Article 4(1)(b) of Annex VII to the Staff Regulations of Officials of the European Union (1) (‘the Staff Regulations’), applicable to officials who are or have been nationals of the State of employment.
Taking the view that his presence in Belgium was exclusively linked to the work he did for the Commission, which precludes the creation of lasting ties between him and that State and, therefore, the transfer of his habitual residence from France to Belgium, the applicant brought an action before the General Court for annulment of the contested decision.
By its judgment, the Court dismisses that action and provides clarification regarding the conditions under which an official or other staff member who is a national of the State of employment may obtain the expatriation allowance after having performed duties in an international organisation which is itself established in that State of employment.
Findings of the Court
In the first place, the Court defines the 10-year reference period to be taken into account for the purpose of applying Article 4(1)(b) of Annex VII to the Staff Regulations. It finds that that period covers 1 February 2006 to 31 August 2019 in the present case. In reaching that conclusion, the Court disregarded the period of three years and seven months during which the applicant had worked for a French ministry, in accordance with the provisions of the Staff Regulations which preclude account being taken of periods during which the official performed duties in the service of a State or in an international organisation outside the State of employment. (2) However, the period during which he had worked at the Commission was not disregarded, since the Staff Regulations do not provide for periods spent in the service of an international organisation in the State of employment itself to be disregarded.
That being the case, the Court states, in the second place, that work performed in an international organisation located in the State of employment may be taken into account in order to determine the habitual residence of an official or other staff member who is or has been a national of that State during the 10-year reference period. In that regard, while the performance of duties in such an organisation may hinder the creation of lasting ties between the official or other staff member and the State of employment, (3) the presumption that multiple and close ties exist between the person and his or her country of nationality plays a more decisive role in determining his or her place of habitual residence, (4) which requires an analysis of the personal and professional ties which that person has created in that country.
Thus, the Court considers, in the third place, the factual evidence concerning the applicant’s private and professional life in order to determine whether he kept his habitual residence in France throughout the reference period, despite moving to Belgium, and whether he should therefore receive the expatriation allowance.
It concludes from this, first, that contrary to the applicant’s claims, his habitual residence cannot be situated in France simply because he had lived, studied and worked there prior to the beginning of the reference period. That also applies, second, to the fact that his close relatives live in France. Without denying the importance of parent-child relationships, the fact that an official or other staff member has founded his or her own family, lives with that family in a particular State and is able to witness how its members carry on activities appropriate to their stage in life is significant for the purpose of determining his or her habitual residence. However, the subjective reasons which led that person to settle with his or her family in a particular State or his or her spouse’s nationality are not decisive in an area in which EU citizens may move freely without being subject to discrimination on grounds of nationality.
Third, the fact that the applicant still owns real estate in France and continues to have a mobile telephone number and a bank account there also do not prove that he intended to establish the permanent or habitual centre of his interests in France. Similarly, the fact that the applicant worked at the Commission only under a fixed-term contract does not prevent him from settling in Belgium with the intention of staying there. Proof of this is that, on the expiry of that contract, the applicant remained in Belgium with his family and registered as a jobseeker there for four months, which shows that he established his habitual residence in that State for at least part of the reference period. The Court points out, in that regard, that the fact that the applicant kept his residence in the State of employment of which he is a national, even briefly during the 10-year reference period, is sufficient to result in the loss or refusal of the grant of the expatriation allowance. Lastly, the fact that he received the expatriation allowance while employed at the Commission cannot invalidate that conclusion, since his entitlement to that allowance had to be re-examined when he entered into service at the REA.
Since the applicant has failed to show that he established his habitual residence outside the State of his employment throughout the entire 10-year reference period, the Court dismisses the action.