JUDGMENT OF THE GENERAL COURT (Second Chamber)

13 July 2018 ( *1 )

(Civil service — Members of the contract staff — Expatriation allowance — Article 4(1)(b) of Annex VII to the Staff Regulations — 10‑year reference period — Nationality of the State of employment — Residence in the State of employment — Duties in an international organisation — Temporary employment contract)

In Case T‑273/17,

Alessandro Quadri di Cardano, member of the contract staff of the Innovation and Networks Executive Agency (INEA), residing in Alicante (Spain), represented initially by N. de Montigny and J.-N. Louis, and subsequently by N. de Montigny, lawyers,

applicant,

v

European Commission, represented initially by T. Bohr and M. Mensi, and subsequently by T. Bohr and L. Radu Bouyon, acting as Agents,

defendant,

ACTION under Article 270 TFEU for the annulment of the decision dated 19 July 2016 of the Commission’s Office for the Administration and Payment of Individual Entitlements (PMO), in so far as it refused to grant the applicant the expatriation allowance on his entry into the service of INEA,

THE GENERAL COURT (Second Chamber),

Composed of M. Prek, President, F. Schalin and M.J. Costeira (Rapporteur), Judges,

Registrar: G. Predonzani, Administrator,

having regard to the written part of the procedure and further to the hearing on 10 April 2018,

gives the following

Judgment

Background to the dispute

The applicant’s personal details

1

The applicant, Mr Alessandro Quadri di Cardano, was born on 19 April 1980 in Bologna (Italy), to an Italian father and a Belgian mother, and holds dual Italian and Belgian nationality.

2

Until 2006 the applicant resided in Italy, where he completed his primary, secondary and university education.

3

From 13 September 2006 until 22 June 2007, the applicant took a Master’s degree course at the College of Europe, Bruges (Belgium).

4

Since 21 September 2007, the applicant has been registered with the Italian consulate in Brussels (Belgium). On 6 December 2008, he was married in Brussels, to a Belgian national who was resident in Brussels, and with whom he had three children, born in Brussels in 2010, 2013 and 2015. The applicant’s wife works in Brussels. Since 18 February 2009, the applicant has been listed on the population register of Schaerbeek (Belgium).

The applicant’s professional career

5

From 2 May to 28 July 2006, the applicant carried out an internship at the EU institutions liaison office in Brussels for the Provincia Autonoma di Bolzano-Alto Adige (Autonomous Province of Bolzano-South Tyrol, Italy).

6

The applicant worked for the European Parliament from 4 September 2007 to 27 August 2008 as an intern and then from 28 August 2008 to 31 July 2009 as a parliamentary assistant.

7

From 1 August 2009 to 31 January 2010, the applicant worked for the Parliament as an accredited parliamentary assistant.

8

From 1 February 2010 to 31 January 2013, the applicant was engaged by the European Commission as an auxiliary contract agent in the Directorate-General (DG) for Research and Innovation. The applicant reached the maximum period of 3 years’ service as a contract agent, according to the rules in force at the time.

9

The applicant’s name was included on the list of contract agents put forward for interim employment contracts with the DG for Research and Innovation.

10

By letter of 20 November 2012, the Director of Directorate R at the DG for Research and Innovation informed the applicant that an interim employment contract could be offered to him with effect from 1 February 2013, for an initial period of 6 months (with a break in August).

11

On 29 January 2013, the applicant created a profile with Agency R. and signed his first temporary employment contract with that agency.

12

Overall, the temporary employment contracts concluded between the applicant and Agency R. cover an initial period from 1 February to 31 July 2013 and a second period from 1 to 13 September 2013 (together, ‘the period of temporary work’).

13

During the period of temporary work, the applicant worked as an interim staff member at the DG for Research and Innovation.

14

During the period of temporary work, the applicant took part in various training opportunities offered to Commission staff.

15

During the month of August 2013, the applicant received European unemployment benefits, having been unable to claim Belgian unemployment benefits.

16

Between 2012 and 2013, the applicant applied to various EU institutions and bodies located outside Belgium.

17

The Head of Unit R.1 at the DG for Research and Innovation issued a certificate, dated 5 October 2016, which confirmed that the applicant had been engaged by the Commission in the DG for Research and Innovation and assigned to Unit RTD.B2 as a contract agent for the period from 1 February 2010 to 31 January 2013 and as an interim staff member for the periods from 1 February to 31 July 2013 and from 1 to 13 September 2013.

18

From 16 September 2013 to 15 May 2014, the applicant worked at the Parliament as a contract agent.

19

From 16 May 2014 to 15 July 2016, the applicant worked at the Executive Agency for SMEs (EASME) as a contract agent.

20

On 16 July 2016, the applicant was recruited as a contract agent by the Innovation and Networks Executive Agency (INEA).

Contested decision and other decisions concerning the expatriation allowance

21

For the period from 1 August 2009 to 31 January 2010, under the contract with the Parliament as an accredited parliamentary assistant referred to in paragraph 7 above, the applicant received the expatriation allowance under Article 4 of Annex VII to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).

22

On 28 October 2010, the applicant’s place of origin was determined as Bologna, with effect from 1 February 2010.

23

For the period from 1 February 2010 to 31 January 2013, under the contract as an auxiliary contract agent in the DG for Research and Innovation referred to in paragraph 8 above, the applicant received the expatriation allowance.

24

For the period from 16 September 2013 to 15 May 2014, under the contract as a contract agent at the Parliament referred to in paragraph 18 above, the expatriation allowance was not granted to the applicant, by decision of the Parliament of 24 October 2013. The applicant did not appeal against the decision of the Parliament rejecting his complaint against the decision not to grant him the expatriation allowance.

25

For the period from 16 May 2014 to 15 July 2016, under the contract as a contract agent at EASME referred to in paragraph 19 above, the applicant received the expatriation allowance.

26

For the period from 16 July 2016 onwards, under the contract as a contract agent at INEA referred to in paragraph 20 above, the expatriation allowance was not granted to the applicant, pursuant to a decision of 19 July 2016 of the Commission’s Office for the Administration and Payment of Individual Entitlements (PMO) (‘the contested decision’).

27

On 17 October 2016, the applicant lodged a complaint under Article 90(2) of the Staff Regulations against the contested decision.

28

By decision of 3 February 2017, the authority empowered to conclude contracts of employment (AECE) of the Commission rejected that complaint on the ground, in essence, that it could not be said that the applicant, who had Belgian as one of his nationalities, had not maintained or established a link with Belgium during the reference period under Article 4(1)(b) of Annex VII to the Staff Regulations. According to the AECE, during that period, running from 15 July 2006 to 15 July 2016, the applicant had made his home in Brussels, where he had married and had three children. What is more, for 6 months and 2 weeks, between February and September 2013, the applicant carried out a private occupation in Brussels as an interim member of staff and that period of work could not be regarded as duties carried out in the service of an international organisation. Furthermore, for the period covering August 2013, during which the applicant was unemployed, he failed to show that his habitual residence was outside Belgium.

29

On 28 February 2017, the PMO took a decision, by way of recovery of undue payments, to recoup the expatriation allowance referred to in paragraph 25 above, paid to the applicant under the contract as a contract agent at EASME.

Proposal for temporary employment contracts for certain contract agents

30

On 30 May 2012, the Vice-President of the Commission issued a note for the attention of trade union and professional organisations concerning, in particular, the ongoing legislative process to reform the Staff Regulations and ‘the transitional measures affecting contract agents who will reach the maximum period of three years’ service with the Commission in the coming months’. In that regard, the note both stated that it was ‘impossible to make exceptions to the regulations in force’ and also reminded services that ‘appropriations from the overall budget [could] be used to finance interim contracts in compliance with applicable national provisions’.

31

By a note of 16 October 2012, the Director-General of the DG for Research and Innovation informed the Directors of that DG that, pending full political agreement on the Staff Regulations, it was recommended that certain contract agents whose contracts were to expire during the first half of 2013 and whose work was crucial to the good functioning of the DG should be offered an interim position.

32

During 2012 and 2013, the Commission made several requests for temporary employment contracts, including the one relating to the applicant.

Procedure and forms of order sought

33

The applicant brought this action by application lodged at the Court Registry on 8 May 2017.

34

On 17 July 2017, the Commission’s defence was lodged at the Court Registry.

35

On 7 September and 18 October 2017, the reply and the rejoinder were respectively lodged at the Court Registry.

36

The parties presented oral argument and answered the questions put by the Court at the hearing on 10 April 2018.

37

The applicant claims that the Court should:

annul the contested decision;

order the Commission to pay the costs.

38

The Commission contends that the Court should:

dismiss the application;

order the applicant to pay the costs.

Law

39

The applicant puts forward four pleas in law in support of its action. The first plea alleges an error of law, the infringement of the Belgian statutory provisions relating to temporary employment contracts and misuse of the law. The second plea alleges a misuse of powers and abuse of powers. The third plea alleges a manifest error of assessment and the infringement of the principle of sound administration. The fourth plea alleges the infringement of the applicant’s legitimate expectations and the principles of the protection of legitimate expectations, legal certainty and acquired rights.

40

The Court considers it expedient to examine the first and third pleas together.

The first and third pleas, alleging an error of law, the infringement of the Belgian statutory provisions relating to temporary employment contracts, misuse of the law, a manifest error of assessment and the infringement of the principle of sound administration

41

In the context of the first and third pleas, the applicant submits, in essence, that the contested decision is vitiated by an error of law, by the infringement of the Belgian statutory provisions relating to temporary employment contracts, by misuse of the law, by a manifest error of assessment and by the infringement of the principle of sound administration.

42

The Commission disputes the applicant’s arguments. In addition, in its rejoinder, in relation to the third plea, the Commission submits that the complaint alleging an infringement of the principle of sound administration is inadmissible.

43

The first and third pleas can be divided into three parts. The first part relates to the calculation of the 10-year reference period. The second part relates to the applicant’s work during the period of temporary work not being defined as the performance of duties in the service of an international organisation, within the meaning of Article 4 of Annex VII to the Staff Regulations. The third part relates to the applicant’s habitual residence during the 10-year reference period.

44

As a preliminary point, it should be recalled that the Court of Justice has consistently held that the purpose of the expatriation allowance provided for by Article 69 of the Staff Regulations 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 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 pursued (see judgment of 24 January 2008, Adam v Commission, C‑211/06 P, EU:C:2008:34, paragraph 38 and the case-law cited).

45

It must also be recalled that the conditions for granting the expatriation allowance, set out in Article 4(1) of Annex VII to the Staff Regulations, apply to temporary staff and contract staff by virtue of Article 20 of the Staff Regulations and Article 92 of the Conditions of Employment of Other Servants of the European Union respectively.

46

More particularly in relation to the conditions for granting the expatriation allowance, defined in Article 4(1)(b) of Annex VII to the Staff Regulations, officials who are or who have been nationals of the State in whose territory the place where they are employed is situated must show that, during the 10 years ending at the date of their entering the service, they 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.

47

Furthermore, for officials with the nationality of their country of employment, the fact that they kept or established their habitual residence there, albeit 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 (judgment of 27 February 2015, EESC v Achab, T‑430/13 P, EU:T:2015:122, paragraph 54).

48

With particular regard to the concept of habitual residence, this has been consistently interpreted by the case-law as 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. In addition, irrespective of the purely quantitative element of the time spent by the person in a particular country, residence implies not only the actual fact of living in a given 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 judgment of 16 May 2007, F v Commission, T‑324/04, EU:T:2007:140, paragraph 48 and the case-law cited).

49

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 to that other State or that international organisation, thereby hindering the creation of a lasting tie to the State of employment and thus his sufficient integration in the society of the State of employment. Since it is the work for a State or an international organisation which is presumed to hinder the creation of lasting ties between the party concerned and the country of employment, such a presumption is equally valid in relation to Article 4(1)(b) of Annex VII to the Staff Regulations, despite the fact that the two provisions are worded differently. Consequently, when calculating the 10-year reference period, account must be taken of periods in which the official performed duties in the service of a State or international organisation. An approach in which the fact of having worked for a State or an international organisation had no effect on the definition of the reference period would infringe both the wording and the purpose of Article 4(1)(b) of Annex VII to the Staff Regulations, since it would, in practice, treat such work in the same way as work for any other employer (see judgment of 25 September 2014, Grazyte v Commission, T‑86/13 P, EU:T:2014:815, paragraph 50 and the case-law cited).

50

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, to that effect, judgment of 25 September 2014, Grazyte v Commission, T‑86/13 P, EU:T:2014:815, paragraphs 33 and 34 and the case-law cited).

51

Finally, it is settled case-law that it is for the official concerned to show that the conditions laid down in Article 4(1) of Annex VII to the Staff Regulations are met (see judgment of 21 January 2014, Jelenkowska-Luca v Commission, F‑114/12, EU:F:2014:3, paragraph 15 and the case-law cited).

52

It is in the light of the legal framework and the case-law referred to above that the substance of the applicant’s arguments in the first and third pleas must be examined.

The first part, concerning the calculation of the reference period

53

By the first part of the first and third pleas, the applicant submits, in essence, that the contested decision wrongly determined the 10-year reference period as 2006 to 2016. The applicant states in that regard that he does not dispute the fact that his entitlements under the Staff Regulations needed to be re-determined at the time he entered the service of INEA but contests the fact that the Commission calculated the 10-year reference period without disregarding those periods during which he was in the service of an international organisation by means of an equivalent extension to the reference period. According to the applicant, the 10‑year reference period should be determined as beginning in 1999 and ending in 2009, since the period from his entering the service of the Parliament (in 2009) to his entering the service of INEA (in 2016) should be disregarded. His residence within the territory of Belgium throughout that period was justified by his duties in the service of an international organisation, including during the period of temporary work.

54

The Commission disputes the applicant’s arguments.

55

In the present case, it is common ground that the applicant is seeking the expatriation allowance with effect from the date he entered the service of INEA, on 16 July 2016. In addition, the information on file shows that the applicant is a national of the State in whose territory the place where he is employed is situated, Belgium, and a national of another Member State, Italy.

56

Since he is a national of the State in whose territory the place where he is employed is situated, he falls into the category of officials ‘who are or have been nationals of the State in whose territory the place where they are employed is situated’, under Article 4(1)(b) of Annex VII to the Staff Regulations.

57

Therefore, the relevant reference period is that laid down in Article 4(1)(b) of Annex VII to the Staff Regulations, being ‘the ten years ending at the date of … entering the service’.

58

Furthermore, it should be noted that the applicant does not dispute that his individual entitlements, including entitlement to the expatriation allowance, should be determined at the date of his entering the service of INEA.

59

It follows that the 10-year reference period expires on the date when the applicant entered the service of INEA.

60

However, despite the applicant’s assertions to the contrary, there is no need, in the present case, to ‘disregard’ the period during which duties were performed in the service of a State or of an international organisation, by means of an equivalent extension of the reference period.

61

In that respect, it should be noted that the case-law referred to in paragraph 49 above and according to which, in the context of Article 4(1)(b) of Annex VII to the Staff Regulations, the period during which duties were performed in the service of a State or of an international organisation is to be ‘disregarded’ in the same way as in Article 4(1)(a) of that annex, leading to an equivalent extension of the reference period, cannot be transposed to the present case (see, to that effect, judgment of 25 September 2014, Grazyte v Commission, T‑86/13 P, EU:T:2014:815, paragraph 51). That is because, in the situation covered by that case-law, the purpose of ‘disregarding’ periods of service for an international organisation and of extending the reference period by an equivalent amount is to ascertain whether the individual concerned has indeed spent 10 years outside the European territory of the State of which he or she is or was a national without working, during those 10 years, in the service of a State or an international organisation (see, to that effect, judgment of 30 January 2014, Ohrgaard v Commission, F‑151/12, EU:F:2014:8, paragraphs 36 and 38 and the case-law cited).

62

It follows that, in the context of Article 4(1)(b) of Annex VII to the Staff Regulations, the only periods that can justifiably be disregarded are those during which the individual concerned has performed duties in the service of a State or of an international organisation situated ‘outside’ the State of employment. Consequently, in the present case, when calculating the 10-year reference period provided for in Article 4(1)(b) of Annex VII to the Staff Regulations, it is unnecessary to disregard the periods during which the applicant performed duties in the service of an international organisation situated in the State of employment of which he is a national or to extend the reference period by an equivalent amount.

63

By contrast, it is necessary, in the present case, to take into account the performance of duties in an international organisation when determining the applicant’s habitual residence, to the extent that that is presumed to hinder the creation of a lasting tie between him and the country of employment (see, to that effect, judgment of 25 September 2014, Grazyte v Commission, T‑86/13 P, EU:T:2014:815, paragraph 50). This question will be examined in the context of the third part of the plea, concerning habitual residence.

64

It follows from the foregoing that the Commission was right to determine the 10‑year reference period as 15 July 2006 to 15 July 2016, in other words, ending on the date the applicant entered the service of INEA and commencing 10 years previously.

The second part, concerning the definition of the applicant’s work during the period of temporary work

65

By the second part of the first and third pleas, the applicant disputes the fact that his work during the period of temporary work was defined as not constituting the performance of duties in the service of an international organisation, within the meaning of Article 4 of Annex VII to the Staff Regulations. According to the applicant, during that period of temporary work, there was a ‘direct legal relationship’ between him and the Commission, resulting, in particular, from the fact that he had been recruited as a temporary member of staff to serve as his own replacement in the DG for Research and Innovation, that he received his instructions directly from the Commission and that he had no prior connection with Agency R. In addition, the applicant claims that all the evidence in the present case points to the conclusion that, during the period of temporary work, his employer was not the temporary employment Agency R. but the Commission, which failed to comply with Belgian law on temporary employment contracts. Therefore, according to the applicant, for the purposes of Article 4(1) of Annex VII to the Staff Regulations, he should be regarded as not having had any occupation other than working for the EU institutions from the time he entered the service of the Parliament in 2009.

66

The Commission disputes the applicant’s arguments.

67

In the present case, it must be stated that, as is apparent from paragraphs 8 to 13 above, because the applicant had reached the maximum period of 3 years’ work as a contract agent with the DG for Research and Innovation, his name was included on the list of contract agents put forward by the DG for an interim contract. The applicant subsequently signed temporary employment contracts with Agency R. and, under those contracts, worked at the DG for Research and Innovation of the Commission for an initial period from 1 February to 31 July 2013 and a second period from 1 to 13 September 2013.

68

In that respect, first, it should be noted that the Court has already held that the circumstances of temporary agency workers supplied to the EU institutions did not amount to circumstances ‘arising from work done for an international organisation’ within the meaning of Article 4(1)(a) of Annex VII to the Staff Regulations (see, to that effect, judgment of 11 September 2002, Nevin v Commission, T‑127/00, EU:T:2002:211, paragraphs 4, 6, 21, 32 and 52 to 58). That temporary work is characterised by a triangular relationship between the worker, an external agency and the EU institution or body which involves two contracts being signed: one between the temporary employment agency and the EU institution or body and a second between the temporary worker and the temporary employment agency (see, to that effect, judgment of 11 September 2002, Nevin v Commission, T‑127/00, EU:T:2002:211, paragraph 53). That relationship is therefore characterised by the presence of a private intermediary business which makes a profit by making a worker available to the EU institution or by assigning the worker to perform specific tasks in or on behalf of that institution. The intervention of those external businesses as intermediaries prevents a finding of a direct legal relationship between the individual concerned and the EU institution or body (see, to that effect, judgment of 19 June 2007, Asturias Cuerno v Commission, T‑473/04, EU:T:2007:184, paragraph 50).

69

Secondly, it should be noted that, with regard to the different provisions of Article 4(1) of Annex VII to the Staff Regulations, it is apparent from the case-law that the expression ‘circumstances arising from work done for an international organisation’ in Article 4(1)(a) of Annex VII to the Staff Regulations is much broader in scope than the phrase ‘performance of duties in the service of an international organisation’ in Article 4(1)(b) of Annex VII to the Staff Regulations (judgment of 3 May 2001, Liaskou v Council, T‑60/00, EU:T:2001:129, paragraph 47).

70

The case-law cited in paragraph 68 above is applicable to the present case, since the period of temporary work in question is also characterised by a triangular relationship between the applicant, the external Agency R. and the Commission. The intervention of Agency R., with whom the applicant signed the temporary employment contracts, therefore prevents a finding of a direct legal relationship between the applicant and the Commission during the period of temporary work.

71

Furthermore, as the Commission submits, the case-law cited in paragraph 68 above applies a fortiori to the present case, since the applicant’s situation falls within Article 4(1)(b) of Annex VII to the Staff Regulations, in which the expression ‘performance of duties in the service of an international organisation’ is narrower in scope than the expression used in Article 4(1)(a) of Annex VII to the Staff Regulations, as noted in paragraph 69 above. Therefore, the period of temporary work, based on employment contracts between the applicant and a private agency, cannot be regarded as amounting to the performance of duties ‘in the service of an international organisation’.

72

This legal assessment of the temporary work is unaffected by the applicant’s arguments that, in the present case, there was a direct subordinate relationship between the Commission and himself, based on the allegation that the temporary contracts were unlawful in view of applicable Belgian law, and that, under those contracts, the Commission was not the ‘user’ within the meaning of Belgian law, but rather his ‘employer’.

73

In that regard, it should be noted first of all that the subject matter of this action is not the examination of the alleged unlawfulness of the interim employment contracts, which the applicant has not submitted to the jurisdiction of the relevant Belgian courts, but only the decision refusing to grant the applicant the expatriation allowance with effect from the date he entered the service of INEA.

74

Therefore, the applicant’s arguments alleging that the temporary employment contracts were unlawful must, from the outset, be held to be irrelevant for the purposes of annulment of the contested decision (see, to that effect and by analogy, judgment of 9 June 2009, Nardin v Parliament, F‑12/08, EU:F:2009:57, paragraph 38).

75

Next, it should be noted that, in the context of the temporary work, the relationship between the applicant and the Commission was ‘purely factual’ in nature, since it was the temporary employment agency that had the legal ability to exercise the control of an employer over the temporary worker and that effectively transferred part of that control to the user during the period when the worker was supplied (see, to that effect, judgment of 11 September 2002, Nevin v Commission, T‑127/00, EU:T:2002:211, paragraph 57). The fact that the applicant took part in the Commission’s internal training sessions during the period of temporary work does not affect that assessment since the training can simply be regarded as part of the de facto relationship between the applicant and the Commission.

76

In addition, even though it is true that the applicant received instructions directly from the Commission, that is in keeping with the nature of temporary work and compatible with the triangular relationship described in paragraph 68 above (see, to that effect, judgment of 11 September 2002, Nevin v Commission, T‑127/00, EU:T:2002:211, paragraph 65).

77

Similarly, the fact that the Commission had the ability to select or approve the applicant and that selection or approval was a prerequisite to the applicant’s recruitment by the temporary employment agency has no bearing on the legal assessment concerning the temporary work according to the applicable national law and the contracts in question and does not prevent, in particular, the employer from being the legal person with whom the employment contract was concluded and not the user institution (see, to that effect, judgment of 11 September 2002, Nevin v Commission, T‑127/00, EU:T:2002:211, paragraph 66 and the case-law cited).

78

In the light of all the foregoing considerations, it must be held that, during the period of temporary work, the applicant had a direct legal relationship of subordination with the temporary employment agency to which he was successively bound by temporary employment contracts.

79

Consequently, it cannot be accepted that the applicant’s situation amounted to ‘the performance of duties in the service of an international organisation’ within the meaning of Article 4(1)(b) of Annex VII to the Staff Regulations.

80

Accordingly, the Commission was correct to find that the applicant had not performed duties in the service of an international organisation, within the meaning of Article 4(1)(b) of Annex VII to the Staff Regulations, during the period of temporary work, from 1 February to 31 July 2013 and from 1 to 13 September 2013.

The third part, concerning habitual residence

81

By the third part of the first and third pleas, the applicant submits that the Commission erred in finding that he had established his habitual residence in Belgium and fixed his centre of interests there for reasons other than the performance of duties in the service of an international organisation. According to the applicant, the fact that he married a Belgian national and that his children were born in Brussels was simply the consequence of his moving to Brussels in 2009 with the aim of performing his duties in the EU institutions over an extended period. In addition, the applicant submits that the only period during which he was not in the service of an EU institution was for the month of August 2013, during which he registered as unemployed.

82

The Commission disputes the applicant’s arguments.

83

As a preliminary point, it should be noted that, as explained in paragraph 47 above, since the applicant is a national of the country of employment, the fact that he established his habitual residence there, albeit for a very short time in the 10‑year reference period, is sufficient to result in the loss of the grant of the expatriation allowance.

84

As a result of the information on the file, it must be found that, during the 10-year reference period from 2006 to 2016, on a personal level, the applicant registered with the Italian consulate in Brussels on 21 September 2007. On 6 December 2008, he was married in Brussels to a Belgian national, who lived and worked in Brussels, and with whom he had three children, born in Brussels in 2010, 2013 and 2015. Since 18 February 2009, the applicant has been listed on the population register of Schaerbeek. It must also be found that, on a professional level, the applicant worked from 1 August 2009 to 31 January 2010 for the Parliament as an accredited parliamentary assistant, then from 1 February 2010 to 31 January 2013 for the DG for Research and Innovation as an auxiliary contract agent. From 1 February to 31 July 2013 and from 1 to 13 September 2013, he signed temporary employment contracts with Agency R. and worked as an interim member of staff at the DG for Research and Innovation. During August 2013, the applicant claimed unemployment benefit. The applicant then worked as a contract agent for the Parliament from 16 September 2013 to 15 May 2014, then for EASME from 16 May 2014 to 15 July 2016. Lastly, on 16 July 2016, the applicant was recruited as a contract agent by INEA (see paragraphs 4, 7, 8, 12, 13 and 18 to 20 above).

85

The Commission found that the facts referred to in paragraph 84 above showed that, during the 10-year reference period, the applicant, first, had established his home in Belgium, secondly, had pursued private employment in Brussels as a temporary agent and, thirdly, had not shown that he had a habitual residence outside Belgium during the month when he was unemployed.

86

The applicant’s claims cannot invalidate that analysis.

87

The matters concerning the applicant’s personal life, referred to in paragraph 84 above, are objective facts demonstrating the existence of the applicant’s lasting social ties with his country of employment. In the light of those facts, it cannot be held that the applicant had shown that his stay in Belgium during the 10‑year reference period was provisional or that it did not amount to a lasting relocation of the permanent or habitual centre of his interests.

88

Moreover, the matters concerning the applicant’s personal life must be taken into account in conjunction with the other facts relating to his professional life referred to in paragraph 84 above, all of those matters together leading to the conclusion that the applicant failed to show that, during the 10-year reference period, his residence was in Belgium for reasons relating solely to the performance of duties in the service of a State or of an international organisation.

89

As was pointed out in paragraph 79 above, it cannot be accepted that, during the period of temporary work, the applicant’s situation amounted to the ‘performance of duties in the service of an international organisation’ within the meaning of Article 4(1)(b) of Annex VII to the Staff Regulations.

90

What is more, it should be recalled that the actual reasons which caused the applicant to remain in the country of employment of which he is a national must not be taken into account for the purposes of the grant of the expatriation allowance. A detailed examination of the various reasons which led the person concerned to move to the country of which he or she is a national would necessarily be based on assessments of a subjective nature, which is not consistent with either the wording or the purpose of Article 4(1)(b) of Annex VII to the Staff Regulations (see, to that effect and by analogy, judgment of 25 September 2014, Grazyte v Commission, T‑86/13 P, EU:T:2014:815, paragraphs 56 to 58). Therefore, the subjective reasons which led the applicant, first, to marry and have children in Belgium, while living there continuously, and, secondly, to accept temporary work contracts, are irrelevant when examining the conditions for granting the expatriation allowance.

91

In the light of the foregoing, it must be held that it is not apparent from the file that the applicant had the habitual and main centre of his interests outside Belgium during the 10-year reference period, given, first, that he has Belgian nationality, that he lived continuously in Brussels for the whole of the 10‑year reference period, that he married a Belgian national in Brussels with whom he had three children, also born in Brussels, and, secondly, that he pursued private employment in that country for part of that period. It must also be noted that the applicant failed to show that, during the 10-year reference period, his residence had been in Belgium for reasons relating solely to the performance of duties in the service of a State or of an international organisation.

92

It follows that, in addition to living in Brussels for years, the applicant demonstrated an intention to bestow continuity on that situation by making it the permanent or habitual centre of his interests.

93

Therefore, the Commission was correct in finding that the applicant had failed to show that, during the 10-year reference period, his habitual residence was outside the State of employment, Belgium, of which he is a national.

94

It follows that the contested decision is not vitiated by the errors and infringements alleged by the applicant in his first and third pleas.

95

In the light of the foregoing, the first and third pleas must be rejected as unfounded, without there being any need to examine the question of inadmissibility referred to in paragraph 42 above, since the courts of the European Union are entitled to assess, according to the circumstances of each case, whether the proper administration of justice justifies the dismissal of a plea in law on its merits without first ruling on its admissibility (judgment of 11 July 2014, DTS Distribuidora de Televisión Digital v Commission, T‑533/10, EU:T:2014:629, paragraph 170).

The second plea, alleging a misuse of powers and abuse of powers

96

In the context of the second plea, the applicant submits, in essence, that his recruitment as temporary worker with the DG for Research and Innovation constitutes a misuse of powers and an abuse of powers on the part of the Commission.

97

According to the applicant, the Commission misused its powers through a misuse of the Belgian law on temporary employment contracts, utilising it for purposes other than those for which it was adopted. The applicant maintains that the Commission’s objective in concluding interim contracts with auxiliary contract agents was to avoid losing qualified personnel who were crucial to the good functioning of the Directorates-General. That objective was an infringement of Belgian law and sought to replace the status of a contract agent by a precarious contractual framework, where the job, the employer and the salary remained the same. In using that precarious worker status in order to circumvent the applicant’s individual entitlements, the Commission misused its powers.

98

The applicant also submits that the Commission abused its powers by obliging him to sign successive temporary employment contracts in order to perform the same duties as those he previously performed at the DG for Research and Innovation as an auxiliary contract agent and then by using those contracts to circumvent his individual entitlements on his re-recruitment with INEA. The signature of temporary employment contracts was ‘obligatory’ for the applicant and his colleagues in the same position given that, first, it was the only way of not losing their employment with the EU institutions and, secondly, they were assured that they would subsequently regain their contractual posts as soon as the reforms to the Staff Regulations had been adopted.

99

The Commission disputes the applicant’s arguments.

100

It should be borne in mind that, in accordance with settled case-law, the concept of misuse of powers refers to cases where an administrative authority has used its powers for a purpose other than that for which they were conferred on it. A decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken for such a purpose. In addition, where more than one aim is pursued, even if the grounds of a decision include, in addition to proper grounds, an improper one, that would not make the decision invalid for misuse of powers, since it does not nullify the main aim (see judgment of 13 December 2017, Oltis Group v Commission, T‑497/15, not published, EU:T:2017:895, paragraph 52 and the case-law cited).

101

In the present case, it is clear that there is no causal link between the decision to use temporary employment contracts and the decision concerning the determination of the applicant’s individual entitlements on entering the service of INEA. Those were different decisions, taken by different entities and on the basis of different legal provisions which pursue their own objectives. In addition, at the end of the period of temporary work, it was by no means certain that the applicant would be recruited as an official or agent of an EU institution or body nor, therefore, that a decision would need to be taken about the grant of the expatriation allowance, since no link between the decisions in question could be found in the circumstances.

102

Therefore, the applicant’s unsubstantiated allegations, in particular with regard to the purported use of temporary work in order to circumvent the determination of his individual entitlements on a future recruitment by an EU institution or body, cannot be regarded as objective, relevant and consistent evidence of the fact that the contested decision was taken for purposes other than those concerning the analysis of the applicant’s individual entitlements with regard to the expatriation allowance.

103

What is more, the applicant’s assertion that the Commission abused its powers by obliging him to sign temporary employment contracts is not substantiated. In that respect, it is sufficient to note that, as is apparent from paragraphs 11 and 12 above, the creation of a profile with Agency R., the signing of temporary employment contracts with that agency and the end of those contracts on 13 September 2013 result purely from the applicant’s own will and the choices he made concerning his professional life.

104

Consequently, the second plea must be rejected as unfounded.

The fourth plea, alleging infringement of the applicant’s legitimate expectations and the principles of the protection of legitimate expectations, legal certainty and acquired rights

105

In the fourth plea, the applicant submits, in essence, that he has an acquired right to the grant of the expatriation allowance, since his factual circumstances did not change following the time of his first entry into the service of an EU institution in August 2009, that he always worked for an international organisation and that he never established his habitual residence in Belgium by fixing his centre of interests there for reasons other than the performance of duties in the service of an international organisation.

106

In that regard, the applicant states that by modifying its analysis of entitlement to the expatriation allowance, the Commission is infringing his acquired rights with respect to the effects of the temporary work contract which was, at that time, negotiated by the Commission in the interest of the service. It is precisely because their rights had been negotiated and were to be safeguarded that the applicant and his colleagues accepted interim posts as temporary staff.

107

The applicant submits in addition that the Commission’s analysis concerning the period of temporary work was incorrect, in that the Commission regarded that period as a ground to exclude the grant of the expatriation allowance provided for by Article 4 of Annex VII to the Staff Regulations. Despite his dual nationality, about which he was always entirely open, and despite his marriage and the birth of his children in Brussels, Belgium was never considered to be his home or the permanent centre of his interests, other than for the performance of his duties in the service of the EU institutions and bodies. The 6 months constituting the period of temporary work cannot change the definition of his habitual residence. In addition, the factors that were established in order to grant him an expatriation allowance are the same as those now being interpreted in relation to him, the Commission thus committing a ‘turnaround’ in the analysis of the file and omitting all the circumstances which justified his recruitment as a temporary member of staff.

108

The Commission disputes the applicant’s arguments.

109

It should be recalled that, according to settled case-law, the right to rely on the principle of the protection of legitimate expectations presupposes that precise, unconditional and consistent assurances originating from authorised, reliable sources have been given to the person concerned by the competent authorities of the European Union (see judgment of 13 June 2013, HGA and Others v Commission, C‑630/11 P to C‑633/11 P, EU:C:2013:387, paragraph 132 and the case-law cited).

110

Yet, in the present case, there is nothing in the evidence submitted to the Court establishing that any precise, unconditional and consistent assurances were given by an EU institution, body or agency to the applicant concerning the grant of the expatriation allowance. In that regard, it is sufficient to note that the contested decision was made after the decision of the Parliament referred to in paragraph 24 above, which had already refused to grant the expatriation allowance to the applicant.

111

It is clear from the evidence on file that the applicant was granted the expatriation allowance before the period of temporary work, but was refused the allowance after that period. In particular, it is clear from paragraphs 24 to 26, 28 and 29 above that the grant of the expatriation allowance was refused in the context of his contract with the Parliament for the period from 16 September 2013 to 15 May 2014 and that a decision was taken to recoup the expatriation allowance paid to him under his contract with EASME, by way of recovery of undue payments, for the period from 16 May 2014 to 15 July 2016.

112

What is more, in the circumstances of the present case, in the absence of continuity of the various contracts between the applicant and the EU institutions and bodies referred to in paragraphs 7, 8 and 18 to 20 above, the applicant’s financial entitlements, including the expatriation allowance, must be determined upon each entry into service (see, to that effect, judgment of 5 December 2012, Grazyte v Commission, F‑76/11, EU:F:2012:173, paragraphs 45 to 47). Consequently, the reference period and the facts relevant to the examination of the conditions under Article 4(1)(b) of Annex VII to the Staff Regulations are different for each contract. In those circumstances, on his entry into the service of INEA, the applicant could not rely on previous decisions concerning the expatriation allowance, nor, therefore, on the infringement of acquired rights.

113

It follows that the contested decision is not vitiated by an infringement of the applicant’s legitimate expectations or of the principles of the protection of legitimate expectations, legal certainty or of acquired rights. Consequently, the fourth plea in law must be rejected as unfounded.

114

As a result of all of the foregoing, the action must be dismissed in its entirety.

Costs

115

Under Article 134(1) of the Rules of Procedure of the General Court, 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 (Second Chamber)

hereby:

 

1.

Dismisses the action;

 

2.

Orders Mr Alessandro Quadri di Cardano to pay the costs.

 

Prek

Schalin

Costeira

Delivered in open court in Luxembourg on 13 July 2018.

[Signatures]


( *1 ) Language of the case: French.