JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

16 January 2007

Case F-126/05

Andrea Borbély

v

Commission of the European Communities

(Officials – Reimbursement of expenses – Installation allowance – Daily subsistence allowance – Travel expenses on taking up an appointment – Place of recruitment – Unlimited jurisdiction)

Application: brought under Articles 236 EC and 152 EA, in which Mrs Borbély seeks, first, annulment of the Commission’s decision refusing her the benefit of the daily subsistence allowance and the installation allowance, and reimbursement of the travel expenses incurred when she took up her appointment, and, secondly, an order directing the Commission to pay those allowances and reimburse the abovementioned travel expenses.

Held: The decision of the Commission of 2 March 2005 is annulled in so far as it refuses to grant the applicant the installation allowance provided for in Article 5(1) of Annex VII to the Staff Regulations and the daily subsistence allowance provided for in Article 10(1) of that Annex. The Commission is ordered to pay the applicant, in accordance with the rules of the Staff Regulations in force, those allowances plus default interest, from the dates on which they were payable respectively and up to the date of their payment, at the rate set by the European Central Bank for its main refinancing transactions, as applicable during the relevant period, increased by two points. The action as to the remainder is dismissed. Each party is ordered to bear its own costs.

Summary

1.      Officials – Reimbursement of expenses – Installation allowance – Daily subsistence allowance

(Staff Regulations, Annex VII, Arts 5 and 10; Council Regulation No 723/2004)

2.      Officials – Reimbursement of expenses – Travel expenses from the place of recruitment to the place of employment

(Staff Regulations, Annex VII, Arts 4, 5, 7(1)(a) and 10)

3.      Officials – Actions – Subject-matter – Direction to the administration – Unlimited jurisdiction – Claim for payment

(Staff Regulations, Art. 91(1); Annex VII, Arts 5 and 10)

1.      The removal by Regulation No 723/2004 amending the Staff Regulations of Officials of the European Communities and the Conditions of Employment of other servants of the European Communities of the first alternative condition of Article 5 of Annex VII to the Staff Regulations, which made the granting of the installation allowance subject to recognition of the right to the expatriation allowance, can at the most be interpreted as meaning that the legislature wished to restore equality as regards the conditions for the grant of the installation allowance between all those taking up an appointment at a Community institution after having lived or worked in the territory of the State in which that institution is situated. From now on, persons who worked for a State or international organisation prior to taking up an appointment in the Community civil service must, in the same way as other Communities officials, prove that they fulfil the single condition set out in the new version of Article 5 of Annex VII to the Staff Regulations, which is that they must have had to change their place of residence in order to satisfy the requirements of Article 20 of the Staff Regulations. However, that similar treatment of two categories of officials does not in any way imply that the legislature also wished to amend the actual content of the condition in question, which is formulated in precisely the same terms in both the former and the latter versions of Article 5 of Annex VII to the Staff Regulations. The term ‘residence’ must therefore always be understood to mean the centre of interests of the official or other servant.

Actual residence constitutes one factor which, among others, determines the centre of an official’s interests. Such an approach is borne out by the objective of Article 5 of Annex VII to the Staff Regulations, which the amendment of the conditions for the grant of the installation allowance has not changed and was not intended to change, which was to make up for the expenses associated with the situation of an established official who passes from a precarious status to a permanent status and must therefore enable himself to live in and become integrated into his place of employment in a permanent and lasting manner for an indeterminate but substantial period of time. Consequently, having a temporary residence, inter alia for professional purposes, at the place where the institution of employment is located does not necessarily conflict with the aim of the installation allowance, which reflects constraints to which persons whose centre of interests is in their place of posting are not normally subject.

The same is true concerning the objective of the daily subsistence allowance, which is intended to make up for the expense and inconvenience occasioned by the precarious situation of a probationary official, particularly where he must retain his previous residence at the same time. This applies a fortiori because the condition requiring a change of residence under Articles 5 and 10 of Annex VII to the Staff Regulations must be interpreted in the same way.

(see paras 44, 47-49)

See:

T-74/95 Monteiro da Silva v Commission [1996] ECR-SC I‑A‑583 and II‑1559, paras 63 and 64; T-137/95 Mozzaglia v Commission [1996] ECR-SC I‑A‑619 and II‑1657, para. 57; T-132/97 Collins v Committee of the Regions [1998] ECR‑SC I‑A‑469 and II‑1379, para. 41; T-251/02 E v Commission [2004] ECR‑SC I‑A‑359 and II‑1643, para. 100; T-283/03 Recalde Langarica v Commission [2005] ECR-SC I‑A‑235 and II‑1075, para. 176

2.      In order to take account of the purpose of Article 7(1)(a) of Annex VII to the Staff Regulations, which is to make the Community employer bear the travel expenses incurred by the official in travelling to his place of employment from his place of recruitment, the search for the centre of the official’s interests, which determines his habitual residence and thereby his place of recruitment, must, in the same way as the means of determining habitual residence for the purposes of applying Article 4 of Annex VII to the Staff Regulations, confer particular importance on the official’s actual residence, in particular the place where he was working at the time of taking up the appointment. The official would thus not incur such expenses where, regardless of the centre of his interests for the purpose of Articles 5 and 10 of Annex VII to the Staff Regulations, he, when taking up the appointment, was already in the place of his future posting, inter alia for professional reasons.

The same would apply even if the future official had been absent from his former place of employment for a short period prior to taking up the appointment, for example, by making use of the annual leave entitlement to return to the country of his centre of interests. The expenses which he would subsequently incur in order to return to the place where he had been working which, in addition, would also be the place where he would be employed by a Community institution, could not give rise to a reimbursement under Article 7(1)(a) of Annex VII to the Staff Regulations. The reimbursement of those expenses, generated by the official himself, is not in conformity with the objective of that provision.

(see paras 66-68)

See:

C-452/93 P Magdalena Fernández v Commission [1994] ECR-SC I‑4295, para. 22

T-63/91 Benzler v Commission [1992] ECR II‑2095, paras 23 and 24; Monteiro da Silva, paras 70 and 71; T-28/98 J v Commission [1999] ECR-SC I‑A‑185 and II‑973, para. 47; T-299/02 Dedeu i Fontcuberta v Commission [2005] ECR-SC I‑A‑303 and II‑1377, para. 77

3.      The Community judicature cannot, without encroaching on the prerogatives of the administrative authority, issue directions to a Community institution by ordering it to take the measures necessary for the enforcement of a judgment by which a decision is annulled. However, in disputes of a financial character, the Community judicature has unlimited jurisdiction under the second sentence of Article 91(1) of the Staff Regulations, allowing it to order the defendant institution to pay specified amounts together with default interest, where appropriate.

In an application for annulment of a refusal to grant the applicant the benefit of the installation allowance and the daily subsistence allowance, the head of claim seeking an order for the administration to pay the amounts due for those two allowances together with default interest is sufficiently precise and must be declared admissible even if the applicant has not submitted any calculation of the amounts claimed, since those can be directly and objectively ascertained by applying two clear and indisputable parameters, namely the applicant’s basic monthly salary and whether or not he qualifies for the household allowance, at the time of and during the relevant periods for the purpose of each of the provisions setting out those allowances.

(see paras 71-72)

See:

T-94/92 X v Commission [1994] ECR-SC I‑A‑149 and II‑481, para. 33; T-130/96 Aquilino v Council [1998] ECR-SC I‑A‑351 and II‑1017, para. 39; T-197/98 Rudolph v Commission [2000] ECR-SC I‑A‑55 and II‑241, paras 32 and 33; T‑29/01 Puente Martín v Commission [2002] ECR-SC I‑A‑157 and II‑833, para. 87; T-14/03 Di Marzio v Commission [2004] ECR-SC I‑A‑43 and II‑167, para. 63