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)
In Case T‑466/20,
LF, represented by S. Orlandi, lawyer,
applicant,
v
European Commission, represented by T. Bohr and A.-C. Simon, acting as Agents,
defendant,
ACTION under Article 270 TFEU for annulment of the decision of the Office for the Administration and Payment of Individual Entitlements (PMO) of the Commission of 11 September 2019 refusing to grant the applicant the expatriation allowance,
THE GENERAL COURT (Fourth Chamber),
composed of S. Gervasoni, President, P. Nihoul (Rapporteur) and R. Frendo, Judges,
Registrar: M. Marescaux, Administrator,
having regard to the written part of the procedure and further to the hearing on 23 April 2021,
gives the following
Judgment
Legal framework
1 Article 69 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), applicable by analogy to members of the contract staff under Article 20(2) and Article 92 of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), 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 538.87 per month.’
2 Article 4 of Annex VII to the Staff Regulations, also applicable by analogy to members of the contract staff under Articles 21 and 92 of the CEOS, is worded as follows:
‘1. An expatriation allowance equal to 16% of the total of the basic salary, household allowance and dependent child allowance paid to the official shall be paid:
(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 ten 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.
…’
Background to the dispute
3 The applicant, LF, is a Belgian national and was born in Belgium.
4 In 1982, at the age of four, he moved with his family to France where he studied and worked until 31 March 2013, except between 1 June 2002 and 31 May 2003 when he worked in Peru for the French Ministry of Foreign Affairs.
5 Between 1 April 2009 and 30 March 2013, he worked at the French Ministry of Ecology, Sustainable Development and Energy in Paris (France) and, between 1 and 30 April 2013, he was registered as a jobseeker in France.
6 On 1 May 2013, he entered the service of the European Commission in Brussels (Belgium) as a member of the contract staff in function group IV, first in the Directorate-General (DG) for Research and Innovation and then in the DG for Agriculture and Rural Development, under a fixed-term contract renewed on several occasions without any break in service. That contract expired on 30 April 2019.
7 Throughout that period, the applicant received the expatriation allowance under Article 4(1)(b) of Annex VII to the Staff Regulations, in view of his Belgian nationality and his absence from Belgium during the 10-year period preceding his employment with the Commission.
8 In 2014, the applicant married a French national in Belgium with whom he had two children, born in Brussels in 2015 and 2017. His wife, who was self-employed in France, worked in Belgium under an indefinite-term contract. According to the information provided by the applicant at the hearing and noted in the hearing minutes, the applicant’s wife is resident for tax purposes in Belgium.
9 On 20 November 2018, the Commission published internal competition notice COM/03/AD/18, open to contract staff, for the recruitment of officials at grade AD 6. The applicant entered that competition and his name was included on the list of successful candidates on 3 December 2019.
10 In addition, on 25 January 2019, the applicant submitted an application in response to the publication on 7 January 2019 of inter-agency vacancy notice REA/INTER-CA/2018/PA/A-B/FGIV/09 for the recruitment of contract staff in function group IV to the European Research Executive Agency (REA). According to that vacancy notice, only members of the contract staff in the service of an EU institution could participate in the procedure.
11 In May 2019, the applicant asked the REA about the outcome of that recruitment procedure. On 16 May 2019, the REA replied that a decision in that procedure had not yet been taken and asked him to remain ‘patient and committed’.
12 By email of 7 June 2019, the REA sent the applicant an offer of employment for a position as a member of the contract staff from 1 September 2019, for a renewable term of one year. The applicant accepted that offer on 11 June 2019.
13 Between 1 May and 31 August 2019, the applicant was registered as a jobseeker in Belgium, his allowances being paid by the European Union. He also continued to be covered by the European Union’s sickness insurance scheme.
14 On 1 September 2019, the applicant entered the service of the REA.
15 On 11 September 2019, the Office for the Administration and Payment of Individual Entitlements (PMO) of the Commission decided that the applicant was not entitled to the expatriation allowance (‘the contested decision’).
16 On 9 December 2019, the applicant lodged a complaint with the Commission against the contested decision. That complaint was rejected by decision of 7 April 2020, notified the following day, on the ground that the applicant did not satisfy the conditions laid down in Article 4(1)(b) of Annex VII to the Staff Regulations.
17 Relying on the judgment of 13 July 2018, Quadri di Cardano v Commission (T‑273/17, EU:T:2018:480), the Commission took the view that the period between 1 May 2013 and 30 April 2019, during which the applicant had worked at the Commission, was not to be disregarded and that that period had to be taken into account for the purposes of establishing the official’s habitual residence, since it was presumed to hinder the creation of lasting ties between him and the country of employment. The Commission added that, in the light of the case-law criteria relating to habitual residence, namely the applicant’s occupation and personal ties, the links with France on which he relied could not call into question the genuineness of his habitual residence in Belgium.
18 As regards the four-month period between 30 April 2019, when his contract with the Commission expired, and 1 September 2019, when he took up employment at the REA, the Commission stated that the applicant had kept his residence in Belgium with his wife and children, in the same accommodation as he had previously occupied, with the intention of remaining there.
19 On 17 March 2020, after passing internal competition COM/03/AD/18 organised by the Commission, the applicant was appointed an official of that institution with effect from 16 April 2020. The Commission also refused to grant him the expatriation allowance. That decision is the subject of a separate action brought by the applicant before the Court, registered as Case T‑178/21.
Procedure and forms of order sought
20 By application lodged at the Court Registry on 20 July 2020, the applicant brought the present action. The Commission lodged its defence on 23 October 2020. By letter of 25 November 2020, the applicant waived his right to lodge a reply.
21 By letter of 31 July 2020, the applicant made an application for anonymity under Article 66 of the Rules of Procedure of the General Court. By decision of 14 September 2020, the Court granted that application.
22 On a proposal from the Judge-Rapporteur, the General Court (Fourth Chamber) decided to open the oral part of the procedure.
23 By letter of 3 March 2021, the Court put a number of questions to the parties, under Article 89 of the Rules of Procedure, relating, in particular, to the case-law they considered to be applicable to the present case. The parties replied to those questions within the prescribed period.
24 The parties presented oral argument and answered the questions put to them by the Court, including concerning that case-law, at the hearing on 23 April 2021.
25 The applicant claims that the Court should:
– annul the contested decision;
– order the Commission to pay the costs.
26 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
Preliminary observation
27 Article 2(2) of the Staff Regulations provides that one or more institutions may entrust to one of them or to an inter-institutional body the exercise of some or all of the powers conferred on the appointing authority other than decisions relating to appointments, promotions or transfers of officials. In addition, pursuant to Article 91a of the Staff Regulations, appeals relating to the areas in which Article 2(2) has been applied are to be brought against the institution to which the appointing authority entrusted with the exercise of powers is answerable.
28 By virtue of Articles 6 and 117 of the CEOS, Article 2(2) and Article 91a of the Staff Regulations are applicable by analogy to authorities empowered to conclude contracts of employment.
29 By Decision 2003/522/EC of 6 November 2002 (OJ 2003 L 183, p. 30), the Commission established the PMO.
30 On 12 December 2018, pursuant to Article 2(2) of the Staff Regulations and Articles 6 and 117 of the CEOS, the REA concluded a service level agreement with the PMO under which the PMO is to establish the individual entitlements of members of the contract staff of the REA, in particular those stemming from Article 69 of, and Annex VII to, the Staff Regulations (Section E of Part II B of that agreement). Article 5(1) of Part II A of the service level agreement provides that where the REA has delegated to the PMO the exercise of the powers conferred on the appointing authority or the authority empowered to conclude contracts of employment, actions under Article 91 of the Staff Regulations must be brought against the Commission, in accordance with Article 91a of the Staff Regulations.
31 The action was therefore properly brought against the Commission in the present case.
The single plea alleging infringement of Article 4(1)(b) of Annex VII to the Staff Regulations
32 The applicant argues that, by refusing to grant him the expatriation allowance, the PMO infringed Article 4(1)(b) of Annex VII to the Staff Regulations.
33 That plea is disputed by the Commission.
34 In that regard, it must be recalled that the conditions for granting the expatriation allowance are set out in Article 4(1) of Annex VII to the Staff Regulations, applicable by analogy to members of the contract staff by virtue of Article 20(2) and Articles 21 and 92 of the CEOS.
35 That provision distinguishes between two situations that depend on the nationality of the official.
36 The first situation, which is governed by Article 4(1)(a) of Annex VII to the Staff Regulations, concerns officials who ‘are not and have never been nationals of the State in whose territory the place where they are employed is situated’. In that situation, in order to be eligible to receive the expatriation allowance, the official or other staff member must not have habitually resided or carried on his or her main occupation within the European territory of the State of employment during the five years ending six months before he or she entered into service.
37 The second situation, which is governed by Article 4(1)(b) of Annex VII to the Staff Regulations, concerns officials who ‘are or have been nationals of the State in whose territory the place where they are employed is situated’. In that situation, the grant of the expatriation allowance is subject to conditions which are more stringent, in two respects, than those laid down in Article 4(1)(a) of Annex VII to the Staff Regulations.
38 Those conditions are as follows.
39 First, the reference period is 10 years for nationals of the country of employment compared with 5 years for officials who are not nationals of the country of employment (see, to that effect, judgment of 11 July 2007, B v Commission, F‑7/06, EU:F:2007:129, paragraph 37).
40 Secondly, the fact that an official has kept his or her residence in the country of employment for a very short time in the 10-year reference period is sufficient to result in the loss or refusal of the grant of the expatriation allowance (see, to that effect, judgments of 17 February 1976, Delvaux v Commission, 42/75, EU:C:1976:21, paragraphs 6 to 11; of 13 July 2018, Quadri di Cardano v Commission, T‑273/17, EU:T:2018:480, paragraph 47; and of 5 October 2020, Brown v Commission, T‑18/19, under appeal, EU:T:2020:465, paragraph 112). By contrast, an official who is not a national of that country will lose or be refused the expatriation allowance only if he or she had his or her habitual residence in the future country of employment throughout the five-year reference period (see, to that effect, judgments of 14 December 1995, Diamantaras v Commission, T‑72/94, EU:T:1995:212, paragraph 48, and of 27 February 2015, EESC v Achab, T‑430/13 P, EU:T:2015:122, paragraph 54).
41 In the present case, it is not disputed that, since he is a national of the State of employment (Belgium), the applicant is covered by the second situation and, therefore, by Article 4(1)(b) of Annex VII to the Staff Regulations. The applicant is thus subject to the strict conditions set out in paragraphs 39 and 40 above.
42 According to the case-law, it is for the official or other staff member who is claiming the expatriation allowance to show that he or she satisfies the conditions for its grant by proving that his or her habitual residence was outside the State of employment throughout the reference period (see, to that effect, judgment of 27 September 2000, Lemaître v Commission, T‑317/99, EU:T:2000:218, paragraph 50).
Definition of the reference period
43 The present action is directed against the decision by which the PMO refused to grant the applicant the expatriation allowance on the ground that he had failed to prove that his habitual residence was outside Belgium throughout the reference period, contrary to the requirements of Article 4(1)(b) of Annex VII to the Staff Regulations concerning officials who are or have been nationals of the State of employment.
44 In order to apply that provision, it is necessary to define the reference period to be taken into account.
45 According to that provision, that period expires upon the entry into service of the official or other staff member at the institution or agency concerned.
46 In the present case, the applicant entered the service of the REA on 1 September 2019, so that the 10-year reference period expired on 31 August 2019.
47 It should therefore start, in principle, on 1 September 2009.
48 However, Article 4(1)(b) of Annex VII to the Staff Regulations precludes account being taken of periods during which the official habitually resided outside the State of employment in order to perform duties in the service of a State or an international organisation (see paragraph 2 above).
49 Therefore, in such a situation, in order to determine when the reference period begins, it is necessary to ‘disregard’ those periods by extending the reference period by an equivalent length (see, to that effect, judgment of 25 September 2014, Grazyte v Commission, T‑86/13 P, EU:T:2014:815, paragraph 51).
50 In the present case, between 1 September 2009 and 30 March 2013, that is, for a period of three years and seven months, the applicant worked in France for the French Ministry of Ecology, Sustainable Development and Energy.
51 Since that work was performed for a State outside the territory of the State of employment, the reference period must be extended to 1 February 2006 pursuant to Article 4(1)(b) of Annex VII to the Staff Regulations.
52 The applicant also worked as a member of the contract staff at the Commission between 1 May 2013 and 30 April 2019.
53 However, the reference period should not be increased as a result because, unlike periods corresponding to work performed outside the State of employment, Article 4(1)(b) of Annex VII to the Staff Regulations does not provide for periods during which the official worked in the service of a State or an international organisation in that State of employment to be ‘disregarded’ (see, to that effect, judgment of 13 July 2018, Quadri di Cardano v Commission, T‑273/17, EU:T:2018:480, paragraphs 60 and 62).
54 In the light of the foregoing, it must be held that, in the present case, the reference period began on 1 February 2006 and expired on 31 August 2019.
Determination of the applicant’s habitual residence between 1 May 2013 and 31 August 2019
55 It is common ground that, from 1 February 2006 to 30 April 2013, the day before the applicant began working at the Commission as a member of the contract staff, he was habitually resident in France and, therefore, outside the State of employment.
56 However, in order to reach a decision on the dispute, it is necessary to determine whether that residence was relocated to Belgium after 1 May 2013.
57 In their exchanges, the parties divided the reference period into two parts corresponding to:
– the period during which the applicant worked at the Commission on a contractual basis (from 1 May 2013 to 30 April 2019);
– the period between the expiry of his contract with the Commission and his starting work at the REA (from 1 May 2019 to 31 August 2019).
58 In their pleadings, the parties focused on that second period, with a view to determining the State in which the applicant had then established his habitual residence. In that context, the Commission maintains in particular that, as it stated in the contested decision, the applicant’s habitual residence was in Belgium, since he had continued to live in Brussels in the apartment that he had hitherto occupied with his wife and children and had registered as a jobseeker there. The applicant argues that he did not move to France because he was waiting for the results of the applications he had submitted to the REA and the Commission when he was still a member of the contract staff at the Commission.
59 Those arguments are based on considerations, such as the fact that the applicant continued to reside in the same place when his contract with the Commission came to an end, which have as their consequence that the two periods mentioned in paragraph 57 above should not be examined separately.
60 Before the Court, the parties maintain that a separate examination is, however, required by the case-law. Thus, the applicant states in paragraph 31 of the application that the work he performed for the Commission between 1 May 2013 and 30 April 2019 is presumed to have hindered the creation of lasting ties between him and Belgium. In the following paragraph, he states that, throughout that period, his presence in Belgium was exclusively linked to that work. That position is borne out, according to the applicant, by the judgment of 13 July 2018, Quadri di Cardano v Commission (T‑273/17, EU:T:2018:480).
61 In response to that argument, the Commission, relying on the same case-law, submits in paragraph 21 of the defence that, during the six years he spent working at the Commission, the applicant cannot be regarded as having been habitually resident in Belgium.
62 However, that institution maintains, in its reply to a question put by the Court, that the presumption arising from the judgment of 13 July 2018, Quadri di Cardano v Commission (T‑273/17, EU:T:2018:480, paragraph 63), according to which work performed in an international organisation hinders the creation of lasting ties between the person concerned and the State of employment, is rebutted when the person concerned stops working in the international organisation, so that, from that point forward, the links with the State of employment may no longer be disregarded when establishing his or her habitual residence.
63 In the light of those differences and divergences, it is necessary to clarify the extent to which work performed for an international organisation in the State of employment may be taken into account, in the case of a person who, like the applicant, was employed by an institution or agency situated in his or her State of nationality, in order to determine his or her place of habitual residence during the reference period.
– Inferences to be drawn from work performed for an international organisation in the State of employment by a person who is a national of that State
64 In examining the difficulties raised by the parties, it must be recalled that Article 4(1)(b) of Annex VII to the Staff Regulations, as it has been interpreted by the case-law, provides, in respect of officials or other staff members who are or have been nationals of the State of employment, that the period during which they performed duties in the service of a State or an international organisation outside the State of employment may not be taken into account when calculating the reference period and must be disregarded (see paragraphs 48 and 49 above).
65 As is apparent from its wording, the abovementioned provision does not contain a similar rule in respect of the performance of duties in an international organisation in the State of employment, as is the present case.
66 According to the judgment of 13 July 2018, Quadri di Cardano v Commission (T‑273/17, EU:T:2018:480, paragraph 63), however, it is necessary to take into account the performance of duties in an international organisation when determining an applicant’s habitual residence, since that is presumed to hinder the creation of lasting ties between him or her and the country of employment.
67 It is admittedly possible, in some cases, that work performed in an international organisation may not facilitate, or may even prevent, the establishment of such ties.
68 But the fact remains that, in determining habitual residence, the Court noted in its judgment of 13 July 2018, Quadri di Cardano v Commission (T‑273/17, EU:T:2018:480, paragraphs 84 to 93), that the applicant had resided in the State of employment with his family during the reference period, in particular when he worked in EU institutions or agencies and, therefore, within an international organisation.
69 In its analysis of the facts of that case, the Court held, in spite of the presumption set out in paragraph 66 above, that in the case before it the Commission had rightly decided that the applicant’s habitual residence was in the State of employment during the reference period.
70 The determination of habitual residence continues to be a process that must be based on a factual analysis, in which the personal and professional ties created by the official or other staff member concerned are examined.
71 In that factual analysis, the presumption underpinning Article 4(1)(b) of Annex VII to the Staff Regulations, according to which a person’s nationality is a compelling indication of the existence of multiple and close links between that person and his or her country of nationality, plays a more decisive role (see judgment of 5 October 2020, Brown v Commission, T‑18/19, under appeal, EU:T:2020:465, paragraph 82 and the case-law cited).
72 In short, the judgment of 13 July 2018, Quadri di Cardano v Commission (T‑273/17, EU:T:2018:480), must be interpreted, in the light of the foregoing, as indicating that work performed in an international organisation, where that occurs 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 the country of employment during the reference period under Article 4(1)(b) of Annex VII to the Staff Regulations, even if it cannot be construed in itself as entailing the establishment of ties with that State.
73 Furthermore, in order to determine the applicant’s habitual residence in the present case, no inference can be drawn from the judgment of 25 September 2014, Grazyte v Commission (T‑86/13 P, EU:T:2014:815), which concerned a Lithuanian national who had acquired Italian nationality and was recruited by the European Institute for Gender Equality (EIGE), a body whose seat is in Vilnius (Lithuania).
74 The situations at issue are different as the member of staff concerned in that case worked in an international organisation situated outside the State of employment, whereas, in the present case, the applicant worked in an international organisation established in that State. That difference cannot be underestimated since the objective pursued by Article 4(1)(b) of Annex VII to the Staff Regulations is to ensure that the diversity of staff recruited to the institutions, bodies, offices and agencies of the European Union is as wide as possible in terms of backgrounds and nationalities.
– Factual evidence for determining the applicant’s place of habitual residence during the reference period
75 Having thus clarified the applicable rules, it is necessary to examine whether, as the applicant submits, the Commission was entitled to find that he had relocated his habitual residence to Belgium during the reference period.
76 To that end, it is necessary to apply the rule of evidence referred to in paragraph 42 above, according to which it is for the official or other staff member who is claiming the expatriation allowance to show that he or she satisfies the conditions laid down in Article 4(1) of Annex VII to the Staff Regulations.
77 In the second situation described in paragraph 37 above, that provision requires the official concerned to show that he or she habitually resided outside the State of employment, of which he is a national, without interruption throughout the reference period specified by that provision.
78 According to the case-law, habitual residence is the place where the person concerned has established, with the intention that it should be of a lasting character, the permanent or habitual centre of his or her interests, the concept of residence implying not only the actual fact of living in a certain 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 (see, to that effect, judgment of 16 May 2007, F v Commission, T‑324/04, EU:T:2007:140, paragraph 48).
79 In order to identify the place of habitual residence, it is necessary to consider objective facts relating to the private and professional life of the person concerned (see, to that effect, judgment of 13 July 2018, Quadri di Cardano v Commission, T‑273/17, EU:T:2018:480, paragraphs 87 and 88).
80 In the present case, the parties agree that, between 1 May 2013 and 31 August 2019:
– the applicant continuously resided in Belgium;
– his wife joined him there in 2014;
– they were married there;
– his wife worked there under an indefinite-term contract;
– they had two children there;
– one child attended school and the other attended nursery there.
81 Against that background, the Commission stated in its reply to the complaint that, having regard to the case-law criteria, in particular occupation and personal ties, the applicant’s habitual residence had to be considered to be in Belgium.
82 The applicant puts forward the following arguments to demonstrate that, notwithstanding the above, his habitual residence remained in France throughout the reference period and was not relocated to Belgium:
– he lived in France during his childhood, he studied and later worked in that State and he had the possibility of becoming an established official in the French civil service;
– his parents and siblings reside in France and it was there he met his wife, a French national;
– he purchased property in France before leaving for Belgium, he continued to own that property while working at the Commission and he did not lease it out; he also continued to have a mobile telephone number and a bank account in France;
– during his period of service at the Commission, he worked only under a renewable fixed-term contract, the total duration of which could not exceed six years and which thus placed him in a precarious employment situation; moreover, during that period, he received the expatriation allowance.
83 In that regard, it must be observed that the information thus provided by the applicant shows that, as he submits, he had forged close links with France.
84 However, such links do not in themselves mean that the applicant actually maintained his habitual residence in that State during the reference period.
85 In the first place, the applicant’s habitual residence cannot be situated in France because he lived, studied and worked there at the beginning of his professional career, before the beginning of the reference period. The fact that the applicant lived in a particular State and carried on activities there commensurate with his age at the time is part of his personal history, but it does not in itself mean that he maintained his habitual residence there.
86 The same is true of the fact that, in the second place, the applicant’s close relatives live in France. That fact does not show that he did not forge lasting relationships outside that State. In that regard, it must be observed that parent-child relationships are not necessarily decisive for the purpose of ascertaining the habitual residence of a person who has founded his or her own family. Without denying the importance of such relationships, the fact that an official or other staff member lives in a particular State with his or her spouse and children, each of whom carry on activities appropriate to their stage in life (work, school, nursery), may be significant when determining the place of habitual residence within the meaning of Article 4(1)(b) of the Staff Regulations.
87 It is true that the applicant states that he met his wife in France. However, that did not prevent her from joining the applicant in Brussels on 25 August 2014, as the applicant himself stated, in order to start a family there, by entering into an indefinite-term employment contract and establishing her residence for tax purposes in Belgium. In an area in which EU citizens may move freely and where discrimination on grounds of nationality is prohibited, the habitual residence of an official or other staff member cannot be determined on the basis of his or her spouse’s nationality.
88 In that connection, the applicant added, in reply to a question put by the Court, that although his wife joined him in Brussels in 2014, that is to say, more than a year after he entered the service of the Commission, it was not because they had decided to establish the main centre of their interests in Belgium, but because she was three months pregnant and wished to live with her husband during her pregnancy. She was also said to have kept a company in France, which remained inactive for the rest of the reference period.
89 It should be noted in that regard that, by putting forward that information, the applicant describes the personal reasons which led his wife to join him in Brussels in 2014. Such considerations cannot be taken into account, in the light of the case-law, in order to determine the place of habitual residence within the meaning of Article 4(1)(b) of Annex VII to the Staff Regulations. According to the case-law, the Court cannot take a view on the subjective reasons which led a person to settle with his or her family in a particular country (see, to that effect, judgment of 25 September 2014, Grazyte v Commission, T‑86/13 P, EU:T:2014:815, paragraphs 56 and 57).
90 In the third place, the substantive evidence put forward by the applicant also does not suggest that his habitual residence remained in France for the entire reference period. Thus, the fact that he retained the ownership of property in France does not prove that he intended to establish the permanent or habitual centre of his interests there. That property, which is close to where his parents and siblings live, might have been an investment or a second home where the applicant’s family could stay during weekends and holidays. In that regard, it is telling that when the applicant entered the Commission’s service in 2013, he did not declare the property in question, situated in Compiègne (France), to be his place of residence.
91 Similarly, the fact that he had a mobile telephone number and a bank account in France is not significant (see, to that effect, judgment of 28 November 2019, Wywiał-Prząda v Commission, T‑592/18, EU:T:2019:820, paragraph 65). The applicant might also have had a mobile telephone number in Belgium or might have taken the view that, with the abolition of international connection charges, it would be less expensive to continue to be subscribed to a French operator. Furthermore, the applicant had a bank account in Belgium. In that regard, it should be noted that the documents submitted by the applicant to prove that motorway tolls had actually been paid in France during the period under consideration reflected payments made using a card associated with an account opened with a Belgian bank.
92 In the fourth place, the fact that the applicant worked at the Commission under a fixed-term contract is not a bar to finding that, even though that contract could not be renewed beyond a period of six years, the applicant settled in Brussels with the intention of staying there. Proof of this is that, at the end of that contract, it was in Belgium, and not France, that he sought work in the EU institutions and registered as a jobseeker.
93 Furthermore, the fact that the applicant received the expatriation allowance while working at the Commission is irrelevant when assessing his entitlement to the expatriation allowance upon taking up employment at the REA. It is apparent from Article 4(1)(b) of Annex VII to the Staff Regulations that that entitlement must be examined at the time of entry into service. A period of four months having elapsed between the end of the contract concluded with the Commission and the start of the contract concluded with the REA, the entitlement to the expatriation allowance had to be re-examined when the applicant entered the service of that agency (see, to that effect, judgment of 13 July 2018, Quadri di Cardano v Commission, T‑273/17, EU:T:2018:480, paragraph 112).
94 Concerning the period after 30 April 2019, the applicant maintains that although he remained in Belgium until 31 August 2019, he did so because he was finishing his contract with the Commission and was waiting for the results of the recruitment procedures organised by the Commission and the REA, procedures in which he had participated during the performance of that contract.
95 In support of that argument, the applicant claims that on 16 May 2019, that is to say, around a fortnight after the expiry of his contract with the Commission, he received encouraging news from the REA, opening up the prospect of employment, and that an offer from that agency reached him on 7 June 2019, less than six weeks after his contract had expired. It thus became clear to him very quickly that he would be able to continue working for an EU agency.
96 In those circumstances, given the short period remaining before his entry into service at the REA, a period that, moreover, largely coincided with the summer holidays, he considered it unnecessary to move with his family to France, even though he kept his habitual residence there.
97 The Commission contends that, during the four-month period between 1 May and 31 August 2019, the applicant’s habitual residence was in Belgium. It submits that the applicant has not established that, during that period, his habitual residence was outside that country. In addition, he expressed his intention of achieving in respect of that residence the continuity which stems from a stable way of life by remaining in Belgium in the same apartment with his wife, who also worked in Belgium, and his children, who attended school and nursery. Lastly, he chose to register as unemployed in Belgium and to seek employment there.
98 In that regard, it must be observed that the evidence put forward by the applicant in relation to the period following his employment at the Commission does not call into question the analysis set out in paragraphs 80 to 93 above, at the end of which the Court found that, during the reference period, which includes the time spent by the applicant working at the Commission, the applicant had established his habitual residence, within the meaning of Article 4(1)(b) of Annex VII to the Staff Regulations, in Belgium, that is to say, in the State of employment, which is also his State of nationality.
99 On the contrary, far from casting doubt on the view that he had established his habitual residence in Belgium between 1 May 2013 and 31 August 2019, that evidence strengthens that view, by showing that it was not in France but in Belgium that he sought work, thus demonstrating his intention to remain in Belgium.
100 It follows from that factual analysis that the evidence relied on by the applicant, taken together or in isolation, does not affect the validity of the Commission’s assessment of the place where he established his habitual residence during the reference period: the fact that he lived in Belgium with his wife and children, each of whom carried on activities appropriate to their stage in life, demonstrates, as the Commission pointed out, that the applicant’s habitual residence was in Belgium.
101 The Court’s decision would be the same if, as the applicant claimed, it had to be presumed that the work performed for the Commission between 1 May 2013 and 30 April 2019 was not capable of creating lasting ties with Belgium.
102 In those circumstances, it would have to be held, as the Commission concluded, that the fact that the applicant remained in Belgium with his wife and children when his contract with that institution expired and registered there as a jobseeker, albeit for a very short period, is sufficient to show that his habitual residence was in that State.
103 In that regard, it should be borne in mind that according to the case-law, the fact that the applicant maintained his residence in the country of employment for a very short time during the 10-year reference period is sufficient to result in the loss or refusal of entitlement to the expatriation allowance (see paragraph 40 above).
104 Thus, the presumption on which the applicant relies, if it were to apply, would be irrelevant because it would not alter the Commission’s assessment in the contested decision, as the evidence put forward by the Commission is sufficient for a finding that the applicant’s habitual residence was located in Belgium during part of the reference period.
105 To conclude, since the burden of proving that there were no lasting ties in the country of employment lies with the person claiming the expatriation allowance (see paragraph 42 above), it must be held that, in the present case, the applicant has not shown that his habitual residence was outside Belgium throughout the reference period.
– Comparison between the situation of the applicant in the present case and that of the applicant in the case which gave rise to the judgment of 13 July 2018, Quadri di Cardano v Commission (T‑273/17)
106 The applicant submits that, contrary to the Commission’s assertions, his situation is distinguishable from that of the applicant in the case which gave rise to the judgment of 13 July 2018, Quadri di Cardano v Commission (T‑273/17, EU:T:2018:480), to which the Commission refers in the contested decision. Unlike him, the applicant in that case married a Belgian national, studied, resided and worked in Belgium throughout the reference period, worked for the Commission during that period under a temporary employment contract and, therefore, worked for a Belgian company, and had previously received the expatriation allowance unlawfully.
107 The Commission disputes that line of argument.
108 In that regard, it must be recalled that in the case which gave rise to the judgment of 13 July 2018, Quadri di Cardano v Commission (T‑273/17, EU:T:2018:480, paragraph 91), the Court dismissed the action for annulment of the decision refusing to grant the applicant the expatriation allowance provided for in Article 4(1)(b) of Annex VII to the Staff Regulations when he entered the service of an EU agency located in Brussels.
109 That decision was taken on the ground that, in that case, the applicant had Belgian nationality, had lived continuously in Brussels throughout the 10-year reference period, had married a Belgian national in Belgium, had had three children there, born in Brussels, and had pursued private employment in Belgium for an interim period between two contracts concluded with the EU institutions.
110 Contrary to the applicant’s claims, his situation is similar to that of the applicant in the case which gave rise to the judgment of 13 July 2018, Quadri di Cardano v Commission (T‑273/17, EU:T:2018:480), in so far as both of them are Belgian nationals, they resided in Brussels for all or part of the reference period, married there, had children there, were employed there under temporary contracts with institutions and agencies of the European Union and remained there between two such contracts.
111 It is true that, in the case which gave rise to the judgment of 13 July 2018, Quadri di Cardano v Commission (T‑273/17, EU:T:2018:480), the applicant met his wife, a Belgian national, in Belgium, whereas, in the present case, the applicant met his wife, a French national, in France before leaving to work at the Commission. However, in both cases, the persons concerned lived, during the entire reference period or a substantial part thereof, in the country of employment with their wives and children.
112 It is also true that, in the case which gave rise to the judgment of 13 July 2018, Quadri di Cardano v Commission (T‑273/17, EU:T:2018:480), during the interim period between two contracts concluded with the European Union, the applicant worked for Belgian temporary employment agencies, whereas, in the present case, the applicant registered as an unemployed jobseeker in Belgium. That difference is not, however, relevant to the determination of the applicant’s habitual residence. The EU judicature cannot attach legal consequences, as regards the expatriation allowance, to the choice made by a staff member to register, in the same State, as a jobseeker (as the applicant did in the present case) or to work for an EU institution through a temporary employment agency, since that choice may be guided by subjective reasons relating to that person’s private life and, as such, cannot be taken into account for the purposes of applying Article 4(1)(b) of the Staff Regulations (see paragraph 89 above).
113 It is also irrelevant that, in the case which gave rise to the judgment of 13 July 2018, Quadri di Cardano v Commission (T‑273/17, EU:T:2018:480), the applicant had previously received the expatriation allowance unlawfully. As the Court held in paragraph 112 of that judgment, in the absence of continuity of the various contracts between the applicant and the EU institutions and bodies, the entitlement to that allowance must be reassessed upon each new entry into service. Thus, the fact that an official or other staff member has previously received the expatriation allowance unlawfully cannot affect the decisions subsequently taken on that allowance in respect of him or her. In those circumstances, the Court fails to see how that fact constitutes an argument that is relevant for the assessment to be carried out by the authority in a separate case.
114 The argument must therefore be dismissed.
– The consequences which the applicant claims follow from the position taken by the Commission
115 According to the applicant, the result of the Commission’s position that the applicant should be refused the expatriation allowance is unsatisfactory for the European Union and for its officials and other staff members. In support of its claim, the applicant puts forward the following four arguments:
– it would be sufficient for the Commission to defer, at its discretion, the entry into service of a staff member who was legally entitled to the expatriation allowance under a previous contract in order to deprive him of that allowance;
– staff members would be encouraged to incur costs in relocating to another State in order to continue to receive the expatriation allowance to which they were entitled under a previous engagement, even though they have already accepted an offer of employment taking effect a few months later in an agency situated in the same location;
– Article 27 of the Staff Regulations, which provides that officials must be recruited on the broadest geographical basis, would be infringed since contract staff with experience in the EU institutions would be likely to abandon their careers in those institutions in order to return to their country of origin;
– the context in which Article 4(1)(b) of Annex VII to the Staff Regulations was drawn up has radically changed over time; it is now more unusual for staff to join the EU institutions directly as officials.
116 The Commission disputes those arguments.
117 The Court takes the following view on them.
118 The first two arguments are based on the premiss that the applicant was unable to establish lasting ties with the country of employment while working as a member of the contract staff at the Commission.
119 It is clear from paragraphs 75 to 93 above that, at a certain point in time when the applicant was working for the Commission, he relocated his habitual residence to Belgium.
120 Since the applicant must be regarded as having established his habitual residence in Belgium during the period he spent working for the Commission, he would be unable to claim the expatriation allowance even if he had resettled in France between 1 May and 31 August 2019.
121 Against that background, institutions and agencies of the European Union cannot be impelled, in similar cases, to defer the entry into service of a staff member who was legally entitled to the expatriation allowance under a previous contract in order to deprive him of that allowance.
122 In any event, if an institution or agency were to proceed in that manner for that purpose alone, it would be in breach of its duty to have regard for the welfare of officials, which must guide its choices. A particular consequence of that duty is that when an institution or agency takes a decision concerning the situation of an official, it should take into consideration all the factors which may affect its decision and that, in so doing, it should take into account not only the interests of the service but also those of the official or other staff member concerned (see, to that effect, judgments of 28 May 1980, Kuhner v Commission, 33/79 and 75/79, EU:C:1980:139, paragraph 22, and of 29 June 1994, Klinke v Court of Justice, C‑298/93 P, EU:C:1994:273, paragraph 38).
123 In the same vein, it would be pointless for that staff member to incur costs in relocating to another State in order to continue to receive the allowance to which he or she was entitled under a previous engagement.
124 As regards the third argument put forward by the applicant, it must be observed that for the reasons given in relation to the first two arguments, there is no likelihood that staff with experience in those institutions or agencies would, after a break between two contracts, abandon their careers there solely because, under the new engagement, they would lose their entitlement to the expatriation allowance. In any event, Article 4(1) of Annex VII to the Staff Regulations seeks to ensure that a broad range of nationalities are represented in the institutions. Accordingly, that argument must also be dismissed.
125 The same applies to the applicant’s fourth argument. Even if they were proved, changes observed in officials’ careers cannot affect the application of rules whose legality is not in doubt, since the EU judicature has no jurisdiction to alter on its own initiative the conditions under which the expatriation allowance is payable.
126 Thus, the applicant’s arguments set out in paragraph 115 above must be dismissed.
127 In the light of all the foregoing considerations, the Court finds that the applicant has failed to demonstrate that he was habitually resident outside the country of employment throughout the reference period within the meaning of Article 4(1)(b) of Annex VII to the Staff Regulations.
128 Therefore, the single plea must be dismissed and, in consequence, the action must be dismissed.
Costs
129 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
130 Since the Commission has applied for costs and the applicant has been unsuccessful, the latter must be ordered to bear his own costs and to pay those incurred by the Commission.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Dismisses the action;
2. Orders LF to bear his own costs and to pay those incurred by the European Commission.
Delivered in open court in Luxembourg on 15 September 2021.
[Signatures]