JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

19 June 2007

Case T-473/04

Cristina Asturias Cuerno

v

Commission of the European Communities

(Officials – Pay – Expatriation allowance – Article 4(1)(a) of Annex VII to the Staff Regulations – Work done for an international organisation – Installation allowance – Daily subsistence allowance)

Application: for annulment of the Commission’s decision of 25 August 2004 not to accept the applicant’s complaint of 27 April 2004 and not to grant her the expatriation allowance provided for in Article 4(1)(a) of Annex VII to the Staff Regulations of Officials of the European Communities and the allowances associated therewith.

Held: The Commission’s decisions of 28 January and 25 August 2004 are annulled. The applicant is entitled to the expatriation allowance provided for by Article 4(1)(a) of Annex VII to the Staff Regulations and the installation allowance provided for by Article 5 of that Annex. The remainder of the action is dismissed. The Commission is ordered to pay the costs.

Summary

1.      Officials – Actions – Unlimited jurisdiction

2.      Officials – Remuneration – Expatriation allowance – Conditions for granting

(Art. 189 EC; Staff Regulations, Annex VII, Art. 4(1)(a))

3.      Officials – Remuneration – Expatriation allowance – Conditions for granting

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

4.      Officials – Reimbursement of expenses – Daily subsistence allowance – Conditions for granting

(Staff Regulations, Art. 20; Annex VII, Art. 10)

1.      The last sentence of Article 91(1) of the Staff Regulations confers on the Court unlimited jurisdiction in disputes of a financial character. As part of that unlimited jurisdiction the Court has the power to recognise the existence of a right to the expatriation allowance and the other allowances associated therewith.

(see para. 23)

See: T‑18/91 Costacurta Gelabert v Commission [1992] ECR II‑1655, para. 50; T-15/93 Vienne v Parliament [1993] ECR II‑1327, para. 41; T-33/95 Lozano Palacios v Commission [1996] ECR‑SC I‑A‑575 and II‑1535, para. 67

2.      The work done by an official as an assistant to a Member of the European Parliament before entering the service of the Communities is equivalent to work done for an international organisation for the purposes 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 concerning the grant of the expatriation allowance. Firstly, a parliamentary assistant does work for Parliament, since he collaborates, in the tasks he performs and within the bounds of his responsibilities, in the performance and implementation of the duties conferred on Parliament and its Members by the Treaty. Secondly, he has a direct link with that institution, since Members of Parliament cannot be regarded as third parties in relation to the institution itself. As is stated in Article 189 EC, Parliament consists of ‘representatives of the peoples of the States’, namely ‘Members of the European Parliament’. The Members thus constitute a consubstantial element of the institution itself and, in exercising their powers, are indissociable from Parliament. It is in pursuance of their mandates as elected representatives that Members recruit assistants in order to have the help they need to perform their duties.

That conclusion cannot be invalidated either by the rules requiring Members and assistants to conclude a private contract expressly stipulating that Parliament cannot be regarded as the assistant’s employer or co-contractor and that the institution is not liable in the event of complaints by the assistant, or by the clauses of the contract putting those rules into practice. The sole aim of those rules and clauses appears to be to ensure that Parliament has no liability for matters relating to parliamentary assistants’ contracts, tax and social security. Nevertheless, whether or not there is a legal bond between two parties depends on the nature and substance of the relationship between them, the characterisation of which it is for the Court alone to assess, rather than for the parties themselves to decide. On the other hand, the fact that Parliament regulates the main aspects of the status of assistants, carries out administrative checks on their employment by Members and is, in principle, directly responsible for paying the remuneration corresponding to their work or the services they provide shows how artificial it would be to regard Parliament as a third party in respect of assistants and to consider there to be no direct legal bond between the institution and its Members’ parliamentary assistants.

(see paras 48, 51-52, 57, 60-61, 63, 69-70)

See: T‑1/90 Pérez-Mínguez Casariego v Commission [1991] ECR II‑143, para. 38; T-115/92 Hogan v Parliament [1993] ECR II‑895, para. 36; T-586/93 Kotzonis v ESC [1995] ECR II‑665, para. 21; T‑276/01 Garroni v Parliament [2004] ECR-SC I‑A‑177 and II‑795, para. 52

3.      Article 4(1)(a) of Annex VII to the Staff Regulations must be interpreted as adopting the official’s habitual residence prior to taking up employment as the essential criterion for the grant of the expatriation allowance, the place of habitual residence being the place where the official concerned has established, with the intention that it should be of a lasting character, the permanent or habitual centre of his interests. The mere fact that an official resided in a foreign country in order to complete his university studies or to undergo practical professional training does not lead to the presumption of an intention to move the permanent centre of his interests to that country.

(see paras 73-74)

See: C-452/93 P Magdalena Fernández v Commission [1994] ECR I‑4295, para. 21; T-251/02 E v Commission [2004] ECR‑SC I‑A‑359 and II‑1643, para. 53; T‑229/02 Dedeu i Fontcuberta v Commission [2005] ECR-SC I‑A‑303 and II‑1377, para. 66

4.      In order to determine, for the purpose of granting the daily subsistence allowance, whether the official has had to change his residence in order to meet the requirements of Article 20 of the Staff Regulations, the residence that must be taken into account is the residence where he has the centre of his interests. It is possible that he may have two residences for a certain period, the first as his habitual residence and the second in connection with his main professional activity. It cannot therefore be deduced from the mere fact that the official concerned worked in a different place from his place of employment during the period prior to his taking up that employment that he intended to establish the permanent centre of his interests there if evidence from his personal and professional circumstances contradict that intention.

(see paras 84, 87)

See: C‑43/94 P Parliament v Vienne [1995] ECR I‑2441, para. 21; Lozano Palacios v Commission, para. 47; E v Commission, para. 73