JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

9 June 2009

Case F-12/08

Thierry Nardin

v

European Parliament

(Civil service – Officials – Remuneration – Expatriation allowance – Refusal to grant – Condition laid down in Article 4(1)(a) of Annex VII to the Staff Regulations – Application for annulment – Unlawfulness of the recruitment procedure – Ineffectiveness – Claim for damages)

Application: brought under Articles 236 EC and 152 EA, in which Mr Nardin essentially seeks, first, annulment of the Parliament’s decision of 2 April 2007 fixing his rights on taking up his appointment and refusing to grant him the expatriation allowance, and, second, an order that the Parliament pay the expatriation allowance from April 2007 together with the sum of EUR 10 000 to make good the non-material damage allegedly suffered.

Held: The action is dismissed. The applicant and the Parliament are to bear their own costs. The Commission of the European Communities, which intervened in support of the Parliament, is to bear its own costs.

Summary

1.      Officials – Remuneration – Expatriation allowance – Purpose – Conditions for granting – No habitual residence or main occupation at the place of employment prior to taking up appointment – Concept

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

2.      Officials – Actions – Pleas in law – Plea based on the unlawfulness of the official’s recruitment procedure

1.      The fundamental reason for the expatriation allowance provided for in Article 4(1)(a) of Annex VII to the Staff Regulations is to compensate officials for the extra expense and inconvenience of taking up permanent employment in a country with which the official had no permanent ties prior to taking up his appointment. Where it is required, for a finding that such ties existed, that the official in question must have habitually worked in the country of his future employment with the Communities for the whole of a given period, that means that professional services provided in other countries involving sporadic and brief absences during that period are not sufficient to deprive the official’s exercise of his main occupation in his State of employment of its habitual nature.

(see paras 32-33)

See:

188/83 Witte v Parliament [1984] ECR 3465, para. 11

T-72/94 Diamantaras v Commission [1995] ECR-SC I‑A‑285 and II‑865, para. 51 and the case-law cited therein

2.      An official cannot rely on the unlawfulness of the procedure for his recruitment by a Community institution to apply for the annulment of the decision by that institution fixing his rights on taking up his appointment and refusing him the expatriation allowance, given that there is no adequate causal link between the official’s recruitment procedure and the contested decision. Illegalities vitiating the recruitment procedure might support claims for annulment of a recruitment decision; however, the question of the lawfulness of a decision fixing an official’s rights on taking up his appointment is separate from the lawfulness of the procedure by which the official concerned was recruited by that institution.

(see para. 39)