JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
25 November 2020 (*)
(Civil service – Officials – Expatriation allowance – Article 4(1)(a) of Annex VII to the Staff Regulations – Refusal to grant the expatriation allowance – Habitual residence – Place where the person’s main occupation is carried on – Five-year reference period)
In Case T‑362/19,
UI, represented par J. Diaz Cordova, lawyer,
applicant,
v
European Commission, represented by T. Bohr and A.-C. Simon, acting as Agents,
defendant,
ACTION under Article 270 TFEU for (i) annulment of the decision of the Commission’s Office for the Administration and Payment of Individual Entitlements (PMO) of 27 August 2018 refusing to grant the applicant the expatriation allowance and (ii) compensation for the harm that the applicant claims to have suffered as a result,
THE GENERAL COURT (Fourth Chamber),
composed of S. Gervasoni, President, L. Madise (Rapporteur) and P. Nihoul, Judges,
Registrar: E. Coulon,
gives the following
Judgment
Background to the dispute
1 The applicant, UI, is a Romanian national who took up his duties at the European Commission in Brussels (Belgium) as a probationary official on 16 August 2018.
2 On his recruitment by the Commission, the applicant completed and signed, without indicating a date, an application form for employment as official or other servant. In that form, the applicant stated that his previous employment was as follows:
– from 27 October 2008 to 31 August 2010, development manager at …, Brussels;
– from 1 September 2010 to 30 September 2015, self-employed in Romania;
– from 1 October 2015 to 15 July 2018, official at the Council of the European Union in Brussels.
3 In addition, on 22 August 2018, the applicant filled in and signed the form of entry into service for the determination of entitlements under the Staff Regulations of Officials of the European Union, in the version applicable to the present dispute (‘the Staff Regulations’). The applicant declared in that form that, before entering into service at the Commission, Romania was his place of residence, his place of recruitment, the centre of his interests and the place where he exercised his civil rights and owned immovable property. He added that he has been married since … 2011 with a Romanian national employed at the Commission and has a child born in 2016 in Belgium. More specifically, regarding his habitual residence at the time of his recruitment at the Commission, the applicant stated that he had lived in Bucharest (Romania) from 16 August 2008 to 2 March 2014 and Suceava (Romania) from 3 March 2014 to 15 August 2018. The applicant further stated that, on 11 February 2008, he had registered an individual company with the Oficiul Naţional al Registrului Comerţului (National Office for the Registry of Commerce, Romania) and that, on 10 March 2011, he had renewed that registration with that office. Regarding his employment prior to his recruitment by the Commission, the applicant stated as follows:
– from 27 October 2008 to 31 August 2010, employee of …, Brussels;
– from 31 August 2010 to 2014, self-employed in Bucharest;
– from 2014 to 1 October 2015, self-employed in Suceava;
– from 1 October 2015 to 16 August 2018, official at the Council in Brussels.
4 In addition, according to the information available on the Human Resource Management information system, Sysper (‘Sysper’) the applicant was employed as ‘intra-muros staff’ from 7 July 2014 to 12 January 2015 by the Commission in Brussels as the employee of an external services provider.
5 By decision of 27 August 2018 (‘the contested decision’), the Commission’s Office for the Administration and Payment of Individual Entitlements (PMO) decided not to grant the applicant the expatriation allowance (16% of the total amount of the basic salary plus household allowance and dependent child allowance to which he is entitled) under Article 69 of the Staff Regulations. However, the applicant was granted the foreign residence allowance (one quarter of the expatriation allowance) under Article 4(2) of Annex VII to the Staff Regulations.
6 The applicant requested a meeting with the PMO and received a response on 4 September 2018 stating, first, that the contested decision repeated the Council decision of 7 April 2016, where the applicant had worked as an official and second, that the documents produced by the applicant had not been examined.
7 On 28 August 2018, the applicant contacted the PMO to request a meeting. In the following weeks, the applicant and the PMO exchanged several emails. On 13 September 2018, the PMO confirmed its decision not to grant the applicant the expatriation allowance. In that regard, the PMO stated that the applicant’s registration as self-employed in Romania did not prove that, during the reference period, he had his habitual residence in Romania. Further, the PMO specified that the documents provided by the applicant did not show that he was present in Romania during that period.
8 On 4 October 2018, the applicant replied to the PMO’s letter of 13 September 2018 providing, in support of his request to be granted entitlement to the expatriation allowance, several arguments on the basis of case-law and expressed his hope that an amicable solution could be found.
9 On 26 November 2018, in the absence of a response from the PMO, the applicant lodged a complaint against the contested decision under Article 90(2) of the Staff Regulations.
10 By decision of 22 March 2019, the appointing authority rejected the applicant’s complaint, finding that the information produced by the latter did not establish that, during the reference period laid down in Article 4(1)(a) of Annex VII to the Staff Regulations, from 1 October 2010 to 30 September 2015 in the present case, he had lived or carried on his main occupation in Romania. In contrast, it followed from the various pieces of evidence examined that the applicant had lived and carried on his main occupation in Belgium, that is to say, in the State in whose territory the place where he is employed is situated. For the sake of completeness, the appointing authority pointed out that, by decision of 13 October 2015, the Council, the applicant’s former employer, refused to grant him the expatriation allowance. In that regard, the appointing authority recalled that, on 16 December 2015, the applicant had lodged a complaint against that decision and that, on 7 April 2016, that complaint had been rejected, on the ground that, according to the Council, the applicant had habitually resided in Brussels during the reference period laid down in Article 4(1)(a) of Annex VII to the Staff Regulations, running in that case from 1 April 2010 to 31 March 2015.
11 By email of 23 April 2019, the applicant was informed of the decision rejecting his complaint of 22 March 2019.
Procedure
12 By application lodged at the Court Registry on 15 June 2019, the applicant brought the present action. The application was definitively put in order on 4 December 2019.
13 On 22 October 2019, pursuant to Article 27(3) of the Rules of Procedure of the General Court, the case was assigned to a new Judge-Rapporteur sitting in the Fourth Chamber.
14 On 17 February 2020, the Commission lodged its defence.
15 The written part of the procedure was closed on 15 April 2020.
16 Since no request for a hearing was submitted by the parties and the Court considers that it has sufficient information from the material in the case file, it has decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure.
Forms of order sought
17 The applicant claims that the Court should:
– annul the contested decision;
– order the Commission to pay him the entirety of the expatriation allowance equal to 16% of the total of the basic salary, household allowance and dependent child allowance to which he is entitled;
– make an appropriate order as to costs.
18 The Commission contends that the Court should:
– dismiss the action in its entirety;
– order the applicant to pay the costs.
Law
The plea of inadmissibility raised by the Commission
19 The Commission raises a plea of inadmissibility of the arguments set out in paragraph 37 of the application, contending that they are unclear on the ground that they make a general reference to arguments contained in an annex to the application.
20 It should be borne in mind that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union and Article 76(d) of the Rules of Procedure, the application initiating proceedings must contain a brief statement of the pleas in law on which the application is based. According to settled case-law, the information given must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to give a ruling, if necessary, without other supporting information. In order to ensure legal certainty and sound administration of justice, it is necessary, for an action to be admissible, that the basic matters of fact and law relied on appear coherently and intelligibly in the text of the application itself. Whilst specific points in this text can be supported and supplemented by references to specific passages in the documents attached, a general reference to other documents, even those annexed to the application, cannot compensate for the lack of essential information in the application. It is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (see judgment of 30 September 2009, Skareby v Commission, T‑193/08 P, EU:T:2009:377, paragraph 59 and the case-law cited).
21 In paragraph 37 of the application, the applicant claims that he intentionally maintained the centre of his interests and, as a result, his habitual residence in Romania during the reference period. He states that this is shown by, inter alia, the ‘facts described in his complaint [paragraphs] 4, 7, 8, 10, 11, 12[,] 16, 18’, which are based on settled case-law. He adds that, as those facts were explained in his complaint, they would not be developed in the application.
22 In that regard, first, it must be noted that, contrary to the Commission’s claim, paragraph 37 of the application contains a specific, not overall, reference to a list of factual circumstances mentioned in the complaint, namely that:
– the applicant was self-employed in several Member States such as Belgium, Spain, Ireland, Hungary, the Netherlands and Luxembourg (paragraph 4 of the complaint);
– the centre of interests of his wife, as an official at the Commission, was established as Romania (paragraph 7 of the complaint);
– between October 2011 and June 2012, he carried on his main occupation in Alicante (Spain) for the European Union Intellectual Property Office (EUIPO) (paragraph 8 of the complaint);
– he paid his health insurance contributions in Romania (paragraph 10 of the complaint);
– he purchased immovable property with his wife in Romania (paragraph 11 of the complaint);
– since 2002, he is the sole owner of immovable property (paragraph 12 of the complaint);
– by decision of 20 November, the Council, his previous employer, fixed the centre of his interests and place of origin in Suceava (Romania), as the place where he had his family ties and heritable interests in the form of a residence (paragraph 16 of the complaint);
– he requested a meeting with the PMO in order to understand the reasons why he was refused the expatriation allowance (paragraph 18 of the complaint).
23 Second, it is relevant to note that the factual circumstances mentioned in the complaint and referred to in paragraph 37 of the application are also referred to in the application itself, corresponding to paragraphs 5, 8, 9, 11 to 13, 18 and 20 of the application.
24 Third, it must be stated that, in the defence, the Commission was able to comment on the factual circumstances in question.
25 In the light of the foregoing considerations, it must be found that the applicant did not make a general reference to other documents in paragraph 37 of the application and that the basic matters of law and fact raised in that paragraph are stated coherently and intelligibly in the text thereof. Those arguments are therefore sufficiently clear and precise to enable the defendant and the Court to understand them.
26 The plea of inadmissibility raised by the Commission is therefore rejected.
Substance
27 In support of his action and in the context of the single plea alleging infringement of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations, the applicant claims that the Commission wrongly considered that, throughout the reference period, he had carried on his main occupation and habitually resided in Belgium. The applicant claims that his employment and residence in Belgium were temporary and the Commission failed to consider all the evidence showing that, during the reference period, he had also carried on his occupation outside Belgium and that his intention was to maintain his habitual residence in Romania. According to the applicant, the decision not to grant him the expatriation allowance fails to have regard to the EU case-law which interpreted and applied that provision.
28 More specifically, first, the applicant claims that the contested decision runs counter to the principle in the judgment of 14 December 1995, Diamantaras v Commission (T‑72/94, EU:T:1995:212, paragraph 50), according to which an official loses the benefit of the expatriation allowance only if he or she had his or her habitual residence or carried on his or her main occupation in the country of his or her place of employment throughout the reference period. The contested decision fails to have regard to that case-law on the ground that the PMO failed to consider the fact that the applicant did not carry on his main occupation in Belgium throughout the reference period.
29 Second, it is apparent from the case-law that registering a company in a State or purchasing immovable property in that State establish a lasting tie with that State (order of 26 September 2007, Salvador Roldán v Commission, F‑129/06, EU:F:2007:166, paragraph 57). The applicant claims that the contested decision fails to have regard to that case-law in so far as the fact that the applicant had registered a company and purchased immovable property in Romania had not been duly taken into account.
30 Third, according to case-law, registration in a commune is a purely formal element which does not prove that the person concerned is actually resident in that commune (see, to that effect, judgment of 9 March 2010, Tzvetanova v Commission, F‑33/09, EU:F:2010:18, paragraph 43). The applicant claims that the contested decision fails to have regard to that case-law on the ground that, in order to find that, during the reference period, the applicant had habitually resided in Belgium, the PMO took into account the applicant’s registrations in various communes in that State.
31 Fourth, intention is, according to the case-law, fundamental to establishing the place of habitual residence (judgment of 15 March 2011, Mioni v Commission, F‑28/10, EU:F:2011:23, paragraphs 32 and 33). However, the applicant claims that the contested decision failed to have regard to that case-law on the ground that the PMO failed to consider the evidence demonstrating the applicant’s intention to maintain his habitual residence in Romania and his intention to consider his employment and presence in Belgium as temporary.
32 The Commission disputes the applicant’s arguments and contends that the information available to it shows that the applicant lived and carried on his main occupation habitually in Belgium during the reference period.
33 As a preliminary matter, it must be borne in mind that Article 69 of the Staff Regulations provides that ‘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’.
34 Article 4(1)(a) of Annex VII to the Staff Regulations provides that an expatriation allowance, equal to 16% of the total amount of the basic salary plus the household allowance and the dependent child allowance, is to be paid 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 that provision, circumstances arising from work done for another State or for an international organisation are not to be taken into account.
35 Paragraph 2 of that article provides that ‘an official who is not and has never been a national of the State in whose territory he is employed and who does not fulfil the conditions laid down in paragraph 1 shall be entitled to a foreign residence allowance equal to one quarter of the expatriation allowance’.
36 It is settled case-law that 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 from their State of residence and move to the State of employment and to integrate themselves in a new environment. The concept of expatriation also depends on the personal position of an official, that is to say, on the extent to which he is integrated in his new environment, which is demonstrated, for example, by habitual residence or by the main occupation carried on (see judgment of 24 January 2008, Adam v Commission, C‑211/06 P, EU:C:2008:34, paragraph 38 and the case-law cited; judgment of 13 July 2018, Quadri di Cardano v Commission, T‑273/17, EU:T:2018:480, paragraph 44). The grant of the expatriation allowance is thus intended to correct actual instances of inequality arising between officials who are integrated into the society of the country of employment and those who are not (see judgment of 29 November 2007, Salvador García v Commission, C‑7/06 P, EU:C:2007:724, paragraph 44 and the case-law cited; judgment of 15 March 2011, Mioni v Commission, F‑28/10, EU:F:2011:23, paragraph 24 and the case-law cited).
37 The reason why Article 4(1)(a) of Annex VII to the Staff Regulations, for the purpose of determining cases of expatriation, is based on the concepts of the habitual residence and main occupation of the official on the territory of the State of employment during a certain reference period is in order to lay down simple, objective criteria to cover the situation of officials who are obliged, as a result of taking up employment with the European Union, to change their place of residence and to integrate themselves in their new environment (see judgment of 30 June 2005, Olesen v Commission, T‑190/03, EU:T:2005:264, paragraph 61 and the case-law cited).
38 According to settled case-law on the expatriation allowance, habitual residence within the meaning of the provision referred to above is the place in which the official or staff member 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 the purposes of determining habitual residence, all the factual circumstances which constitute such residence and, in particular, the actual residence of the official concerned must be taken into account (see order of 7 December 2011, Mioni v Commission, T‑274/11 P, EU:T:2011:719, paragraph 24 and the case-law cited; see judgment of 15 March 2011, Mioni v Commission, F‑28/10, EU:F:2011:23, paragraph 22 and the case-law cited).
39 Although the fact of having lived, before the reference period, in the territory of the State where the place of employment of the person concerned is situated cannot play a decisive role as to whether that person is entitled to the expatriation allowance, the fact remains that that circumstance is an additional factor which can be taken into account with other relevant facts (see, to that effect, judgment of 25 October 2005, Salvador García v Commission, T‑205/02, EU:T:2005:368, paragraph 86 and of 15 March 2011, Mioni v Commission, F‑28/10, EU:F:2011:23, paragraph 23 and the case-law cited).
40 According to the case-law, it is sufficient for only one of the criteria set out in Article 4 of Annex VII to the Staff Regulations to be met, that is to say, for an official to have either his habitual residence or his main occupation in his place of employment for him not to receive the expatriation allowance (see judgment of 28 February 2019, Pozza v Parliament, T‑216/18, not published, EU:T:2019:118, paragraph 29 and the case-law cited).
41 It is apparent from the wording and purpose of the provision in question that the expatriation allowance must be granted only where none of the situations referred to therein is established. Therefore, the applicant can claim that allowance only if he or she has not habitually resided or carried on his or her main occupation in the State of his or her place of employment during the reference period (see judgment of 28 February 2019, Pozza v Parliament, T‑216/18, not published, EU:T:2019:118, paragraph 30 and the case-law cited).
42 Last, according to case-law, the provisions of EU law which confer entitlement to financial benefits must be interpreted strictly. As European integration currently stands – in its advanced state – and having regard to modern methods of communication, including new technologies, that case-law is further supported regarding a financial benefit such as the expatriation allowance, on account, in particular, of the purpose of that allowance, compared to the foreign residence allowance that the applicant receives, intended to compensate officials for the inconvenience they suffer due to their status as foreigners (see judgment of 15 March 2011, Mioni v Commission, F‑28/10, EU:F:2011:23, paragraph 37 and the case-law cited).
43 In the present case, it is not disputed that the applicant has Romanian nationality and is not and has never been a national of the State in whose territory the place where he is employed is situated, namely Belgium. The applicant’s situation therefore comes within the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations.
44 It is therefore appropriate to examine whether, in the light of the case-law set out in paragraphs 36 to 42 above, the PMO erred in its assessment when it considered that, during the reference period, the applicant had habitually resided and carried on his main occupation in Belgium and was therefore not entitled to the expatriation allowance.
The reference period
45 It is apparent from the decision rejecting the complaint that the five-year reference period laid down in the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations should, in principle, have run from 16 February 2013 to 15 February 2018, that is to say, five years ending six months before 16 August 2018, when the applicant was recruited by the Commission.
46 However, in the decision rejecting the complaint, the appointing authority specified that, in the present case, the period during which the applicant had worked for the Council had to be disregarded. The beginning of the reference period was therefore brought back by that amount of time and the appointing authority held that the reference period ran from 1 October 2010 to 30 September 2015.
47 As regards the definition of the reference period, it is clear from the case-law that, in view of the exception contained in Article 4(1)(a) of Annex VII to the Staff Regulations, the performance of work for another State or an international organisation has the effect of preserving a specific tie of the party concerned linking him or her to that other State or that international organisation, thereby hindering the creation of a lasting tie to the State of employment and thus his or her sufficient integration in the society of the State of employment (see judgment of 13 July 2018, Quadri di Cardano v Commission, T‑273/17, EU:T:2018:480, paragraph 49 and, to that effect, order of 21 October 2015, Arsène v Commission, F‑89/14, EU:F:2015:124, paragraph 34 and the case-law cited).
48 In relation to the concept of ‘international organisation’, it should be noted that duties performed within the EU institutions and bodies are regarded as duties performed for an international organisation within the meaning of Article 4(1) of Annex VII to the Staff Regulations (see judgment of 13 July 2018, Quadri di Cardano v Commission, T‑273/17, EU:T:2018:480, paragraph 50 and the case-law cited).
49 The case-law relating to the exception laid down in Article 4(1)(a) of Annex VII to the Staff Regulations supports disregarding periods of service for a State or an international organisation, the effect of which is to extend the five-year reference period by an equivalent amount (see judgment of 30 January 2014, Ohrgaard v Commission, F‑151/12, EU:F:2014:8, paragraph 33 and the case-law cited).
50 In the light of the foregoing, it must be found that the reference period was correctly established by the appointing authority as running from 1 October 2010 to 30 September 2015. Moreover, it must be noted that, although the applicant claims that the contested decision infringed Article 4(1)(a) of Annex VII to the Staff Regulations and is vitiated by errors of assessment, he does not raise any specific arguments seeking to call into question the reference period thus established.
Main occupation
51 Regarding the place where the applicant carried on his main occupation during the reference period, first, he submits that he was self-employed in Romania from 1 September 2010 to 30 September 2015. Second, he states that, on 11 February 2008, he registered an individual company with the National Office for the Registry of Commerce in Romania) and that, on 10 March 2011, he renewed that registration with that office. Third, during the reference period, the applicant claims that he worked in several Member States such as Belgium, Ireland, Spain, Luxembourg, Hungary and the Netherlands, and never registered a company in those countries. Fourth, he worked on the premises of the Commission as an ‘intra-muros’ contractor and, consequently, interrupted his occupation in Belgium during the reference period, because the work done for the Commission cannot be regarded as having been carried out in Belgium. Fifth, between October 2011 and June 2012, he worked in Alicante in Spain at EUIPO. Sixth, on 14 September 2012, he signed a declaration in the context of the Landenoverschrijdend Informatiesysteem ten behoeve van Migratieonderzoek bij de Sociale Administratie (Limosa, cross-border information system for the investigation of migration by the social security administration) (‘the Limosa declaration’), required when persons work temporarily and on a part-time basis in Belgium. Seventh, he paid his health insurance contributions and taxes in Romania.
52 The Commission disputes the applicant’s arguments and contends that the evidence shows that, throughout the reference period, the applicant carried on his main occupation in Belgium.
53 In order to identify the place where the applicant carried on his main occupation within the meaning of Article 4(1)(a) of Annex VII to the Staff Regulations, it is appropriate to take into account, along with other factors, the place where the applicant worked under the various contracts he signed, with the exception of those which do not, for the reasons set out in paragraphs 45 to 50 above, fall within the relevant period.
54 In that regard, first, it must be noted that, as set out in the decision rejecting the complaint, the applicant concluded two successive contracts with companies established in Belgium to provide them with secretarial services. Under those contracts, performed during the reference period, the applicant was required to work principally in Belgium. Under the first contract, entitled ‘convention de collaboration’ (collaboration agreement), concluded on 9 October 2009 with a first Belgian company, the applicant’s secretarial duties had to be carried out principally at that company’s office situated in Belgium, with potential travel within a 5km radius of the company’s office and any missions outside Belgium being exceptional and lasting a maximum of three days. Under the second contract, entitled ‘accord de partenariat’ (partnership agreement), concluded by the applicant on 2 April 2013 with a second Belgian company established in Brussels, for a renewable term of one year, the applicant’s services had to be provided at that company’s office and, where the services were to be provided to a client of that company, the latter agreed to provide the applicant with the necessary infrastructure.
55 As regards the contracts referred to above, it is apparent from the Council’s decision of 7 April 2016 that the applicant provided invoices to the Council addressed to the first Belgian company and dated November 2009, March 2010, December 2010, February 2011, December 2011, January 2012, December 2012 and January 2013 and invoices addressed to the second Belgian company and dated June 2013, December 2013, January 2014 and May 2014.
56 In addition, it should be noted that the contracts in question were signed by the applicant as a natural person, not in the name of a company registered in Romania, and there is no evidence of the manner in which he actually performed those contracts. Thus, as the Commission rightly contends, the applicant cannot claim that the companies with which he concluded those contracts were clients of his company registered in Romania. Moreover, in the second contract, namely the partnership agreement concluded with the second Belgian company, the applicant states that his address in Belgium is his place of residence.
57 In addition, as set out by the appointing authority in the decision rejecting the complaint, the declaration of taxes paid in Romania for 2012-2013 cannot establish that, during the reference period, the applicant carried on his main occupation in that country, as that declaration shows merely that the applicant paid certain taxes in Romania.
58 What is more, the appointing authority, in the decision rejecting the complaint, correctly pointed out that, although it is possible to acknowledge that the applicant had organised his various activities by travelling between Romania and Belgium, he did not, however, provide evidence of the fact that he had travelled frequently between those Member States.
59 Second, in the defence, the Commission contends that, according to the information available in Sysper, from 7 July 2014 to 12 January 2015, the applicant worked for the Commission as intra-muros staff. In that respect, the Commission states that the applicant was hired on account of his work for a Belgian company providing its services to the Commission.
60 In that regard, first of all, it must be borne in mind that the case-law regarding a period of work at the EU institutions does not consider it comparable to an interruption in the exercise of the person’s main occupation during the reference period in the territory of the place of employment, but provides that the starting point of the reference period is to be moved in order to disregard the corresponding period of work at those institutions (see paragraphs 47 to 50 above).
61 Next, it should be stated that the situation of the applicant, who worked as intra-muros staff at the Commission, cannot be compared to that of a person hired by an international organisation. Moreover, it should be noted that the applicant seeks to claim, without providing evidence, that his occupation at the Commission was carried on as an external subcontractor via his company registered in Romania, whereas the Commission contends that the applicant worked for a Belgian company providing its services to the Commission. In both cases, it cannot be claimed that the applicant established direct legal connections with the Commission. Thus, those activities cannot be considered to be ‘work done for an international organisation’ within the meaning of the exception provided for in the last sentence of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations (see, to that effect, judgment of 28 February 2019, Pozza v Parliament, T‑216/18, not published, EU:T:2019:118, paragraph 51 and the case-law cited). It is, moreover, for that reason that the period during which the applicant carried on his occupation as intra-muros staff at the Commission was rightly disregarded and cannot be considered to have ‘interrupted’ the exercise of his main occupation in the territory of his place of employment either.
62 Third, regarding the applicant’s claim that he carried on his main occupation outside Belgium and therefore interrupted, during the reference period, the exercise of his occupation in that State, it must be noted that, as the decision rejecting the complaint rightly states, the applicant did not submit any specific documents that would have enabled the identification of the occupation carried on and the place in which his tasks for his company registered in Romania were carried out. Neither did the applicant provide documents relating to his alleged self-employed business activity in Ireland, Luxembourg, Hungary and the Netherlands.
63 Regarding the alleged period of work in Spain, the documents produced by the applicant, namely restaurant receipts, taxi receipts and a statement, dated 22 September 2016, that the applicant rented a one-room apartment from October 2011 to June 2012 via a Spanish rental agency, that he travelled in taxis and went to restaurants, the following should be noted.
64 Although the documents in question can indicate that the applicant stayed in Spain, they do not, however, prove that the applicant interrupted the period during which he carried on his main occupation in Belgium. The stated period of work in Spain coincides with the period during which the applicant carried on his occupation under the collaboration agreement concluded with the first Belgian company, in respect of which the applicant provided the invoices of December 2011 and January 2012. Thus, as contended by the Commission, the time spent in Spain constitutes only a sporadic absence from Belgium. Contrary to the applicant’s claims, it is not apparent from case-law that, in order to show that he interrupted the exercise of his main occupation in Belgium, he is required to prove merely that he worked for a few days or during a short period in another State.
65 Fourth, so far as concerns the applicant’s argument that the signature of a Limosa declaration in 2011 shows that he perceived his work in Belgium to be only temporary, first, it must be observed, as did the Commission, that the period covered by that declaration, namely the period from 1 October 2012 to 1 October 2013, coincides with the period during which the applicant had concluded the collaboration agreement with the first Belgian company, requiring him to be physically present in Brussels (see paragraph 54 above). Moreover, that declaration does not appear to constitute sufficient proof that the applicant considered his work in Belgium to be temporary. It does not preclude the documents showing that, throughout the reference period, the applicant agreed, under two successive contracts, to carry on his main occupation in Belgium and that he subsequently continued to work in Brussels as intra-muros staff at the Commission.
66 Fifth, the applicant cannot rely on the criteria set out in the guide on determining habitual residence, which concerns the situation of employees and self-employed workers travelling from one Member State to another and relates to those workers’ social security benefits, in order to show that the place of his main occupation was Romania. As the Commission correctly submits, the applicant’s situation must be assessed on the basis of the Staff Regulations as interpreted by EU case-law.
67 In the light of all the foregoing, it must be found that, whilst having registered a company in Romania, the applicant signed, as a natural person, two contracts with companies established in Brussels under which he was required to work in Belgium. He stated in one of those contracts that his residential address was situated in a commune in Belgium and did not provide the address of his company registered in Romania. In addition, he maintained that he worked in Spain during the same period as that during which he was required to work in Brussels under the collaboration agreement signed with the first Belgian company, travel being contractually limited to a few days only. Moreover, regarding the occupation carried on as intra-muros staff at the Commission, as set out in paragraphs 60 and 61 above, it must be considered that the applicant’s main occupation was carried on in Belgium.
68 Thus, the applicant has not established, either by an irrefutable piece of evidence or by a consistent and unambiguous body of evidence that, during the reference period, he carried on his main occupation outside the State where his place of employment is situated (see, to that effect and by analogy, judgment of 29 September 2005, Thommes v Commission, T‑195/03, EU:T:2005:344, paragraph 70 and the case-law cited).
69 It is apparent from the foregoing that, in the decision rejecting the complaint, the appointing authority did not infringe Article 4(1)(a) of Annex VII to the Staff Regulations when it held that, from early October 2010 to late September 2015, the applicant had carried on his main occupation in Belgium and therefore did not meet one of the criteria in Article 4(1)(a) of Annex VII to the Staff Regulations entitling him to the expatriation allowance.
Habitual residence
70 Regarding the place where the applicant habitually resided during the reference period, the latter claims that the matters recalled in paragraph 22 above show that he maintained lasting ties with Romania, where he established his habitual residence, and that he never had the intention to move that residence to Belgium. He specifies, inter alia, that the registration in various communes in Belgium is a purely formal element which does not enable his actual residence to be established in Belgium and that, by contrast, the registration of a company and the purchase of immovable property in Romania clearly show his intention to establish lasting ties with that State, rather than with Belgium. Moreover, the applicant emphasises that he did not register any individual company in Belgium and that the Limosa declaration he signed in 2011 confirms that he perceived his work and presence in that State as temporary. In addition, the applicant observes that it follows from the Council decision of 20 November 2015 that, on his recruitment, the latter considered that Romania was not only his place of origin but also the centre of his interests on the ground that he had family ties and heritable interests constituted by immovable property in that State. Last, according to the applicant, since his wife is an official at the Commission with a special identity card limited to her period of service with the Commission, his wife’s rights have been transferable to him since September 2011 and their shared address in Belgium must therefore be considered to be temporary.
71 The Commission disputes the applicant’s arguments and takes the view that it is apparent from the documents submitted by the applicant that his residence in Belgium was uninterrupted throughout the reference period.
72 In the present case, first, as set out in the decision rejecting the complaint, it is apparent from the official residence certificates with a record of past addresses issued by the Zaventem communal authority (Belgium) that the applicant’s residence in Belgium from 11 February 2009 to 13 October 2015, that is to say, for a period of six years and eight months, was uninterrupted. According to those certificates, the applicant was registered in Brussels from 11 February 2009, then in the commune of Woluwe-Saint-Lambert (Belgium) from 29 September 2009, and, last, in the commune of Zaventem from 12 February 2013. Moreover, the applicant’s registration in Zaventem is supported by the partnership agreement concluded by the latter with the second Belgian company, in which the commune of Zaventem is stated as the applicant’s address (see paragraph 56 above). In accordance with the case-law set out in paragraph 39 above, the fact that the applicant lived in Belgium for an extended period of time before the reference period can be taken into consideration along with the other relevant facts.
73 Second, as specified in the decision rejecting the complaint and as rightly pointed out by the Commission, the certificate of 14 July 2015 issued by the Zaventem communal authority (Belgium) states that the applicant had a Belgian residence permit expiring on 22 February 2015. In so far as that residence permit was for a maximum period of five years from its issue date, that permit had been issued to the applicant in February 2010. The applicant cannot therefore claim that the Court should, on the one hand, recognise that he shares the rights that his wife derives from her special identity card from September 2011, merely because he married an EU official, and, on the other hand, not take into account the fact that he himself applied for and obtained a five-year residence permit expiring in February 2015.
74 Third, it is common ground that, since 3 September 2011, the applicant has been married to a Romanian national who has worked as an official at the Commission in Brussels since 2008. In that regard, the decision rejecting the complaint specifies that, since 12 February 2013, the applicant has been living with his wife at the same address in Zaventem. The applicant cannot claim that the fact that his wife works at the Commission makes it possible to establish that his residence in Brussels with her is temporary. It is not apparent from the case-law that the direct link that an official establishes with an institution must also be recognised in respect of his or her spouse. On the contrary, the last sentence of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations must be interpreted strictly, as recalled in paragraph 42 above, on the ground that it establishes an exception to the conditions for granting the expatriation allowance. Such an interpretation is required all the more since the provision in question governs the granting of a financial benefit (see, to that effect, judgment of 30 June 2005, Olesen v Commission, T‑190/03, EU:T:2005:264, paragraphs 47 and 48 and the case-law cited). Moreover, it must be noted that it is apparent from the documents in the case file that the applicant lived in Belgium before getting married and carried on his own occupation. Thus, the fact that he moved in with his wife cannot enable his residence in Belgium to be classified as temporary.
75 Fourth, as examined in paragraphs 54 to 58 above, the contracts signed by the applicant required him to be physically present in Brussels and thus habitually resident there. The same applies to the work done by the applicant for the Commission from 7 July 2014 to 12 January 2015 as intra-muros staff of an external services provider since, from 12 February 2013, the applicant lived with his wife at the same address in Zaventem (see paragraph 74 above).
76 Admittedly, it is apparent from the case-law referred to by the applicant (see paragraph 30 above) that registration in a commune in Belgium is a purely formal element which does not, of itself, establish the actual residence of the person concerned. However, in the present case, the finding that the applicant’s habitual residence was in Belgium is not based on the registration certificates, referred to in paragraph 72 above, alone. That finding follows from several pieces of evidence, such as the contracts signed by the applicant with companies established in Brussels, the fact that he lived together with his wife in Belgium, the birth of his child in that State and the application for a five-year residence permit in that State (see paragraph 73 above).
77 The PMO therefore correctly considered that, during the reference period, the applicant lived in Belgium and his intention was to confer continuity resulting from a stable way of life and from the course of normal social relations.
78 Regarding the evidence produced by the applicant in order to show that the PMO should have recognised that his habitual residence was in Romania, the following must be noted.
79 In order to establish his habitual residence during the reference period, the applicant produced
– a certificate of registration of an individual company with the National Office for the Registry of Commerce;
– a Limosa declaration for the period from 1 October 2012 to 1 October 2013;
– a contract for the purchase of immovable property in Romania on 27 January 2012;
– monthly bills from 2010 to 2015 for various services (gas, electricity, television) in the applicant’s name for an apartment in Bucharest;
– the decision of 2015 of his former employer, the Commission, establishing the centre of his interests in Suceava.
80 In that regard, first of all, it must be noted that the appointing authority did not commit any error of assessment when it considered, in the decision rejecting the complaint, that those documents were not incompatible with establishing the applicant’s habitual residence in Brussels.
81 The registration of a company in Romania is not sufficient to establish that the applicant’s habitual residence was in Romania during the reference period, as the public authorities do not necessarily verify the actual residence of the person receiving the certificate that shows such registration.
82 In addition, the fact that the applicant has an apartment in his country of origin cannot be sufficient to establish that he lived there or had the intention to establish himself in that country. On the contrary, it must be emphasised that EU officials frequently have a second residence in their Member State of origin. Moreover, it should be noted that, as stated in the decision rejecting the complaint, the bills from the companies providing electricity, gas and television services to an apartment belonging to the applicant in Romania are not sufficient, in this specific case, to preclude the applicant’s having established his habitual residence in Belgium where he had been working for several years and where his wife and child lived with him. Moreover, the decision rejecting the complaint rightly specifies that the applicant did not provide evidence of frequent travel between Belgium and Romania.
83 In addition, as stated in paragraph 65 above regarding the applicant’s main occupation, the signature of the Limosa declaration is not sufficient evidence to show that the applicant’s intention was to regard his residence in Belgium as temporary. First, that declaration covers a limited period coinciding with the applicant’s commitment, pursuant to the signature of the collaboration agreement with the first Belgian company, to work in Brussels. Second, several pieces of evidence show that the applicant established and maintained his habitual residence in Brussels throughout the reference period. These include the fact that he has worked without interruption in Belgium since 2009, the fact that his closest family ties, namely his wife and child, are in Belgium, and that it is not apparent from the evidence produced by the applicant that he travelled frequently between Romania and Belgium.
84 Last, as the decision rejecting the complaint correctly states, the applicant cannot claim that since the Council, his former employer, had recognised, by decision of 20 November 2015, that his place of origin for the purposes of Article 4(1)(a) of Annex VII to the Staff Regulations was Romania, considering that the applicant had maintained family ties there and heritable interests constituted by immovable property, this also means that the applicant had established his habitual residence there.
85 An official’s place of origin is determined when he takes up his appointment, account being taken of where he was recruited or the centre of his interests. It follows from the case-law that the expression place of origin is a technical term which has as its purpose to indicate the place which must be taken into consideration for the flat-rate payment which is to be made in respect of the cost of travel from the place of employment to the place of origin, for the reimbursement of travel expenses for the official’s spouse and any dependants from the place of employment to the place of origin on termination of service, for the travelling time which is to be added to the period of annual leave and, in the event of the death of an official, for the reimbursement by the institution of the costs involved in transporting the body to the official’s place of origin. The concept of the place of origin is different from that of the place where the official was permanently resident before he or she entered the service and where he or she was previously employed. It follows that a clear distinction must be drawn between the place where the official was habitually resident at the time of recruitment and his or her centre of interests in order to establish that official’s place of origin. The latter concept is based on the general principle of the law governing the public service to the effect that it must be possible for an official to retain his or her personal links with the place where his or her principal interests are situated, notwithstanding his or her entry into the service and the distance between that place and the place of employment (judgment of 2 May 1985, De Angelis v Commission, 144/84, EU:C:1985:171, paragraph 13).
86 It follows that, contrary to the applicant’s claim, the centre of his interests, taken into account in order to determine the place of origin in order to fix certain pecuniary rights of an official, must not be confused with the place where the official was permanently resident and previously carried on his or her occupation before he or she was recruited (see, to that effect, judgment of 11 November 2008, Speiser v Parliament, T‑390/07 P, EU:T:2008:480, paragraph 38 and the case-law cited).
87 In the light of all the foregoing, it must be held that the PMO did not infringe Article 4(1)(a) of Annex VII to the Staff Regulations or commit errors of assessment when it decided not to grant the applicant the expatriation allowance, finding that the evidence showing that his habitual residence was in Belgium throughout the reference period outweighed the evidence enabling the opposite conclusion to be drawn.
88 In any event, even assuming that the applicant wished to keep his habitual residence in Romania during the reference period, the fact remains that he carried on his main occupation in Belgium during the whole of that period. In accordance with the case-law set out in paragraphs 40 and 41 above, that finding alone is sufficient to consider that the applicant is not entitled to the expatriation allowance.
89 The single plea and the action in its entirety, including, as a result, the second head of claim, must therefore be rejected as unfounded.
Costs
90 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. As the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Dismisses the action;
2. Orders UI to pay the costs.
Delivered in open court in Luxembourg on 25 November 2020.
E. Coulon | | M. van der Woude |
Table of contents
Background to the dispute
Procedure
Forms of order sought
Law
The plea of inadmissibility raised by the Commission
Substance
The reference period
Main occupation
Habitual residence
Costs