JUDGMENT OF THE COURT OF FIRST INSTANCE (Single Judge)

27 September 2000

Case T-317/99

Franz Lemaître

v

Commission of the European Communities

‛Officials — Expatriation allowance — Installation allowance — Article 4(1)(b) and Article 5 of Annex VII to the Staff Regulations’

Full text in French   II-867

Application for:

annulment of the decisions contained in the Commission's letters of 18 February 1999 and 12 March 1999 refusing the applicant an expatriation allowance and installation allowance, respectively.

Held:

The Commission's decision of 12 March 1999 refusing the applicant an installation allowance is annulled. The remainder of the action is dismissed. The Commission is ordered to bear its own costs and to pay one half of the applicant's costs. The applicant is ordered to bear one half of his costs.

Summary

1. Officials — Remuneration — Expatriation allowance — Object — Concept of expatriation

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

2. Officials — Reimbursement of expenses — Installation allowance — Official not entitled to the expatriation allowance

   (Staff Regulations, Annex VII, Art. 5(1))

3. Officials — Reimbursement of expenses — Installation allowance — Purpose

   (Staff Regulations, Annex VII, Art. 5(1))

1.  The concept of expatriation depends on the personal situation of an official, notably, in the case of an official who is a national of the Member State of his place of employment, on whether he has actually broken his social and professional ties with that State by moving completely and on a long-term basis his habitual residence outside the European territory of that State. The exception provided for in Article 4(1)(b) of Annex VII to the Staff Regulations covers only persons who had to move their permanent centre of interests outside the State where they are employed and can therefore be regarded as no longer having permanent links with that State.

   It is clear from the wording of Article 4(1)(b) of Annex VII to the Staff Regulations and its interpretation in the case-law that it is for the official concerned to reverse a simple presumption of ‘non-expatriation’ by showing that he severed all permanent ties with the State in which he is employed. The fact, referred to in Article 4(1)(b) of Annex VII to the Staff Regulations, of having habitually resided, during the period of 10 years expiring on his entry into the service, outside the European territory of the State in which he is employed is therefore evidence that such ties were severed.

   (see paras 49 and 50)

   See: 330/85 Richter v Commission [1986] ECR 3439, para. 6

2.  Under Article 5(1) of Annex VII to the Staff Regulations, any established official who qualifies for expatriation allowance is thereby also entitled to the installation allowance. An official who is granted an expatriation allowance is, at least in principle, in a situation characterised by the absence of permanent and lasting installation at the place of employment.

   An official who is not entitled to the expatriation allowance, because, for example, he is a national of the State of employment, may also be in the situation of being required to instai himself at his place of employment on a permanent basis. It is for that reason that Article 5(1) of Annex VII to the Staff Regulations provides, as a second condition, that an installation allowance is to be paid to an official who furnishes evidence of having been obliged to change his place of residence in order to comply with Article 20 of the Staff Regulations.

   (see paras 62 and 63)

3.  The installation allowance is intended to compensate for the expenses associated with the situation of a duly 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.

   In that regard, it is reasonable to assume that an official whose situation becomes stable after having been precarious will incur certain additional expenditure, in particular in arranging appropriate accommodation for a long-term stay, which he did not have to incur while his situation remained precarious.

   (see paras 66 and 67)

   See: T-33/95 Lozano Palacios v Commission [1996] ECRSC I-A-575 and II-1535, para. 63; T-74/95 Monteiro Da Silva v Commission [1996] ECRSC I-A-583 and II-1559, para. 63; T-137/95 Mozzaglia v Commission [1996] ECRSC I-A-619 and II-1657, para. 56