JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

15 July 2004

Case T-384/02

Fernando Valenzuela Marzo

v

Commission of the European Communities

(Officials – Pay – Installation allowance – Article 9(3) of Annex VII to the Staff Regulations – Period of one year)

Full text in French II - 0000

Application:         for, first, annulment of the Commission’s decisions of 16 November 2001 and 13 February 2002 refusing the applicant the second half of the installation allowance on the ground that his family did not settle at his place of employment within the period laid down in the regulations of one year from his taking up his post and, second, an order that the Commission pay him the second half of the installation allowance with interest thereon at an annual rate of 8%.

Held:         The action is dismissed. The parties are to pay their own costs.

Summary

1.     Officials – Actions – Act adversely affecting an official – Concept – Purely confirmatory act – Exclusion

(Staff Regulations, Art. 91(1))

2.     Officials – Actions – Act adversely affecting an official – Decision rejecting a complaint – Pure and simple rejection – Confirmation of act adversely affecting an official – Action inadmissible

(Staff Regulations, Art. 91(1))

3.     Officials – Reimbursement of expenses – Installation allowance – Conditions for granting – Actual transfer of habitual residence – Transfer of residence of official’s family – Concept of habitual residence – Burden of proof that installation has taken place incumbent on official

(Staff Regulations, Annex VII, Arts 5(1) and (4) and 9(3))

4.     Officials – Actions – Assessment of the legality of the contested measure on the basis of the facts and the law as they stood at the time when it was adopted

(Staff Regulations, Art. 91)

5.     Officials – Reimbursement of expenses – Installation allowance – Conditions for granting – Officials with dependent families – Installation of the official’s family in the place of employment – Period of one year following the end of the probationary period – Extension for officials not required to complete probationary period – None

(Staff Regulations, Annex VII, Arts 5(1) and (4) and 9(3))

1.     A decision is a mere confirmation of an earlier decision and therefore does not adversely affect an official within the meaning of Article 91(1) of the Staff Regulations where it contains no new factors as compared with the earlier measure and is not preceded by any re-examination of the situation of the addressee of the earlier measure.

(see para. 32)

See: T‑321/01 Internationaler Hilfsfonds v Commission [2003] ECR II-3225, para. 23

2.     Every decision purely and simply rejecting a complaint, whether it be express or implied, only confirms the act or failure to act to which the complainant takes exception and is not, by itself, a decision which may be challenged. It is only when this decision upholds all or part of the complaint of the person concerned that it will, in appropriate circumstances, constitute by itself a decision against which an action can be brought.

(see para. 36)

See: 371/87 Progoulis v Commission [1988] ECR 3081, para. 17; T-196/95 H v Commission [1997] ECR-SC I-A-133 and II‑403, para. 40

3.     The place of habitual residence is that in which the official concerned has established, with the intention that it should be of a lasting character, the permanent or habitual centre of his interests, it being understood that for the purposes of determining habitual residence, all the factual circumstances which constitute such residence must be taken into account. The concept of residence, whilst not based on a purely quantitative factor, namely the length of time spent by the person in a particular country, does nevertheless involve, apart from the actual fact of physically living in a given place, the intention of thereby achieving the continuity which stems from a stable way of life and from the course of normal social relations.

Whether installation or the transfer of a habitual residence has taken place is therefore a question of fact and may be established using any appropriate means. It is incumbent on the official claiming the benefit of an installation allowance equal to two months’ basic salary to establish, either by irrefutable evidence or by a body of consistent, unambiguous and non-contradictory evidence, that the habitual residence of his family has been transferred to the place he is employed within one year of his appointment.

Given that provisions conferring entitlement to financial benefits must be strictly interpreted, the administration may demand a high standard of proof that the official’s family has been installed, and may refuse to pay the installation allowance if it has serious doubts as to whether this installation has actually happened within the period laid down by the Staff Regulations.

(see paras 81-83, 104)

See: C‑452/93 P Magdalena Fernández v Commission [1994] ECR I‑4295, para. 22; T‑37/99 Miranda v Commission [2001] ECR-SC I‑A‑87 and II‑413, para. 32; T‑221/02 Lebedef and Others v Commission [2003] ECR-SC I‑A‑211 and II‑1037, para. 38

4.     The legality of a contested measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted. If the Court had to examine that legality in the light of facts that did not exist at that time, it would be assuming the role of the institution which took the measure in question. However, it is not for the Court to substitute itself for the institutions.

(see para. 98)

See: 15/76 and 16/76 France v Commission [1979] ECR 321, para. 7; C‑449/98 P IECC v Commission [2001] ECR I‑3875, para. 87; T‑19/90 Von Hoessle v Court of Auditors [1991] ECR II‑615, para. 30; T‑177/94 and T‑377/94 Altmann and Others v Commission [1996] ECR II‑2041, para. 119

5.     It is clear from the wording of Article 5(1) of Annex VII to the Staff Regulations that the installation allowance is payable to an established official, and that the period to which paragraph 4 of that article refers is, as laid down in Article 9(3) of that annex, within one year of the end of his probationary period. The clarity of this wording precludes the extension of this period by the duration of a probationary period that the official was not required to complete.

Indeed, both for officials who are required to complete a probationary period and for officials exempted from that obligation, the second half of the installation allowance granted to officials with families is paid under the same condition as regards time, that is that the family’s place of residence is changed within one year of the official’s appointment.

The situation of officials not required to complete a probationary period is objectively different, in law and in fact, from that of officials required to complete such a period, owing to the precarious nature of the latter’s situation before they are appointed. The situation of both categories of official becomes identical only when the probationary period ends and thus puts an end to the precarious situation of the officials required to complete that period. The principle of equal treatment requires, therefore, that the period of one year laid down in the Staff Regulations should begin for both categories of official from the moment they are appointed.

(see paras 119-120, 122)