Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

15 October 2020 (*)

(Civil service – Members of the contract staff – Remuneration – Decision refusing entitlement to the expatriation allowance, the daily subsistence allowance, the installation allowance and to reimbursement of removal expenses and travel costs on taking up duties – Article 4(1)(a) of Annex VII to the Staff Regulations – Diplomatic status – Five-year reference period – Concept of ‘habitual residence’)

In Case T‑249/19,

Marina Karpeta-Kovalyova, residing in Woluwe-Saint-Pierre (Belgium), represented by S. Pappas, lawyer,

applicant,

v

European Commission, represented by T. Bohr and D. Milanowska, acting as Agents,

defendant,

APPLICATION under Article 270 TFEU for annulment of the Commission decision of 14 June 2018 refusing the applicant entitlement to the expatriation allowance, the daily subsistence allowance, the installation allowance and to reimbursement of travel costs on taking up duties and of removal expenses,

THE GENERAL COURT (Eighth Chamber),

composed of J. Svenningsen, President, R. Barents and T. Pynnä (Rapporteur), Judges,

Registrar: E. Coulon,

gives the following

Judgment

 Background to the dispute

1        The applicant, Ms Marina Karpeta-Kovalyova, has had Ukrainian nationality since birth and acquired Greek nationality by marriage.

2        In August 2009, the applicant moved from Ukraine to Brussels (Belgium) with her family following her husband’s appointment to the Permanent Delegation of the Hellenic Republic to the North Atlantic Treaty Organisation (NATO). In August 2016, following the end of her husband’s mandate, the applicant moved to Athens (Greece), but returned to Brussels to work as an interim member of staff from November 2016 to February 2017 and subsequently from April 2017 to June 2017.

3        Following a recruitment procedure, the applicant received an offer of employment from the European Commission dated 7 July 2017 for a position as a member of the contract staff in the Directorate-General (DG) ‘Neighbourhood and Enlargement Negotiations’ for the period from 1 August 2017 to 31 July 2018.

4        On 1 August 2017 the applicant took up her duties as a member of the contract staff of the Commission for DG ‘Neighbourhood and Enlargement Negotiations’. In the form ‘Entry into service – determination of individual entitlements under the Staff Regulations’ dated 8 August 2017, the applicant stated the following in respect of her places of residence and employment:

–        From 1 August 2007 to 20 August 2009, economist in Marioupol (Ukraine);

–        From 1 September 2009 to 20 August 2016, unemployed in Brussels;

–        From 1 September 2016 to 1 November 2016, unemployed in Athens;

–        From 7 November 2016 to 3 February 2017, interim member of staff in Brussels for the Commission within DG ‘Neighbourhood and Enlargement Negotiations’;

–        From 18 April 2017 to 30 June 2017, interim member of staff in Brussels for the Single Resolution Board (SRB).

5        On 23 March 2018, the Commission’s Office for the Administration and Payment of Individual Entitlements (PMO) informed the applicant that, on the basis of the documents which she had provided, it had been confirmed that she did not fulfil the conditions conferring entitlement to the expatriation allowance, the daily subsistence allowance, the installation allowance, or to reimbursement of travel costs on taking up duties, as from 1 August 2017, as certain documents and information were missing. In order for her file to be reconsidered, the applicant was asked to provide information and documents as described in the note sent to her.

6        By note of 14 June 2018 (‘the contested decision’), the PMO informed the applicant that, following analysis of her file and the documents which she had submitted, her place of origin and of recruitment had been established as being Brussels and that she was not entitled to the expatriation allowance, the daily subsistence allowance, the installation allowance or to reimbursement of travel costs on taking up duties and of removal expenses. She was informed that she could have the place of origin modified by submitting a request and presenting appropriate documentary evidence within one year of taking up her duties.

7        On 12 September 2018, the applicant lodged a complaint against the PMO’s decision.

8        That complaint was rejected by the authority empowered to conclude contracts of employment within the Commission (‘the appointing authority’) on 10 January 2019. The appointing authority identified the five-year period expiring six months before the applicant took up her duties, referred to in the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), as being the period from 1 February 2012 to 1 February 2017 (‘the reference period’). According to the appointing authority, the applicant had not produced any documents to show adequately that her habitual residence during that reference period was not Brussels, given that her family lived there during almost the entire reference period and that sporadic absences do not affect habitual residence. In addition, the information provided by the applicant did not establish that the centre of her interests was Athens but that, rather, the centre of her interests was Brussels and that she had not changed residence on taking up her duties.

 Procedure and forms of order sought

9        By application lodged at the Court Registry on 12 April 2019, the applicant brought the present action.

10      The Commission lodged its defence on 4 July 2019.

11      On 3 September 2019, the applicant lodged her reply.

12      On 16 October 2019, the Commission lodged its rejoinder.

13      On 15 May 2020, by way of the measures of organisation of procedure provided for in Article 89 of its Rules of Procedure, the Court put written questions to the parties. The parties answered those questions by letters lodged at the Court Registry on 15 and 16 June 2020, respectively.

14      As neither party requested that a hearing be held, the Court, considering that it had sufficient information available to it from the case file, decided, pursuant to Article 106(3) of the Rules of Procedure, to give judgment in the case without an oral part of the procedure.

15      The applicant claims that the Court should:

–        annul the contested decision and the decision of 10 January 2019 rejecting her complaint against the contested decision, in order for the Commission to re-evaluate her status and grant her the expatriation allowance, the daily subsistence allowance, the installation allowance and reimbursement of the travel costs on taking up her duties and of her removal expenses;

–        order the Commission to pay the costs.

16      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

17      As a preliminary point, the reference in the application to Article 263 TFEU notwithstanding, it is appropriate to consider that the present action has been brought under Article 270 TFEU and to reclassify it accordingly.

 Admissibility

 Subject matter of the action

18      It is settled case-law that claims for annulment formally brought against a decision rejecting a complaint have the effect of bringing before the Court the act against which the complaint was submitted, where those claims, as such, lack any independent content (see, to that effect, judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 72 and the case-law cited).

19      In the present case, given that the decision rejecting the complaint merely confirms the contested decision, it must be held that the claim for annulment of the decision rejecting the complaint has no independent content and that it is therefore not appropriate to rule specifically on that claim even though, when examining the legality of the contested decision, it is appropriate to take into consideration the reasons set out in the decision rejecting the complaint, as that reasoning is deemed to coincide with that of the contested decision (see, to that effect, judgment of 16 January 2018, SE v Council, T‑231/17, not published, EU:T:2018:3, paragraph 22 and the case-law cited).

20      Consequently, it is indeed the legality of the contested decision that will be examined, taking into consideration the reasons set out in the decision rejecting the complaint.

 Admissibility of the claim in so far as it concerns the daily subsistence allowance, the installation allowance and the reimbursement of travel costs on taking up duties and of removal expenses

21      As regards the benefits other than the expatriation allowance, namely the daily subsistence allowance, the installation allowance and the reimbursement of travel costs on taking up duties and of removal expenses, the Commission contends that the applicant has failed to put forward specific arguments relating to those benefits, which constitutes a failure to comply with the requirement laid down in Article 76(d) of the Rules of Procedure.

22      In the reply, the applicant claims, with regard to the installation allowance and the daily subsistence allowance, that the word ‘residence’ used in the context of Articles 5 and 10 of Annex VII to the Staff Regulations should be understood as referring to the centre of the interests of the official or staff member. Consequently, by proving that the centre of her interests was not in Brussels but in Athens, the applicant satisfies the sole condition for the grant of those allowances, namely the fact of having changed her place of residence.

23      Similarly, the applicant submits that, regarding the reimbursement of travel costs and removal expenses referred to in Articles 7 and 9 of Annex VII to the Staff Regulations, given that travel costs are reimbursed from the place of recruitment, that is, the place where the official was habitually resident when he or she was recruited, the applicant, by arguing that she was habitually resident in Athens, has shown that she is entitled to the reimbursement of those costs and expenses.

24      According to Article 76(d) of the Rules of Procedure, an application of the kind referred to in Article 21 of the Statute of the Court of Justice of the European Union must contain the subject matter of the proceedings, the pleas in law and the arguments relied on.

25      According to case-law, that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, even without further information. In addition, it is necessary that the basic legal and factual particulars on which the action is based be indicated coherently and intelligibly in the application itself, so as to guarantee legal certainty and sound administration of justice (see, to that effect, judgment of 6 October 2015, Corporación Empresarial de Materiales de Construcción v Commission, T‑250/12, EU:T:2015:749, paragraph 101 and the case-law cited).

26      In the present case, the applicant claims, as set out in paragraph 15 above, that the Court should annul the contested decision in order for the Commission to re-evaluate the applicant’s status and grant her the expatriation allowance, the daily subsistence allowance and the installation allowance and to reimburse her travel costs on taking up duties and her removal expenses. Further, in support of that head of claim, she set out facts and arguments in the application which can be regarded as sufficiently clear and precise to assess that head of claim on the grounds submitted by the applicant. It must be noted that, even though the Commission has raised a plea of inadmissibility in that regard, it has in any event provided a detailed response to the application regarding the other benefits, in particular the daily subsistence allowance, the installation allowance and the reimbursement of removal expenses.

27      It follows that the action is admissible in so far as it concerns the daily subsistence allowance, the installation allowance and the reimbursement of travel costs on taking up duties and of removal expenses.

 Admissibility of the annexes to the reply

28      In the rejoinder, the Commission contends that the three documents annexed by the applicant to the reply should be considered inadmissible, since the applicant could have submitted those documents at an earlier stage in the procedure and, at the latest, as part of the application. Consequently, it argues, their submission fails to comply with Article 85(1) of the Rules of Procedure.

29      Requested by the Court to submit her observations in that respect, the applicant states that she provided those documents in response to the Commission’s doubts set out in the defence regarding her accommodation situation in Brussels for the period beginning in November 2016.

30      In that regard, it must be borne in mind that Article 85(1) of the Rules of Procedure provides that ‘evidence produced or offered shall be submitted in the first exchange of pleadings’.

31      Article 85(2) of the Rules of Procedure provides that ‘in reply or rejoinder a main party may produce or offer further evidence in support of his arguments, provided that the delay in the submission of such evidence is justified’.

32      Two of those documents are self-declarations according to which the applicant was hosted by her friend at her house situated in Woluwe-Saint-Lambert (Belgium) for the period from 1 November 2016 to 1 June 2017. The self-declarations are dated 3 September 2019, the date on which the reply was lodged. The third document is a new certificate of former residence issued on 17 June 2019 by the commune of Woluwe-Saint-Pierre (Belgium).

33      It must be stated that the Commission had already requested the applicant on two occasions during the pre-litigation procedure to provide a rental agreement for her accommodation in Brussels (on 23 November 2017 and 23 March 2018) and the certificate of de-registration from the commune in August 2016 (in its email of 23 November 2017). It should also be stated that, according to the Commission, the applicant had already submitted a certificate of former residence, dated 6 June 2018, in her complaint, and that the Commission produced that residence certificate in the annex to its defence.

34      The applicant thus had the opportunity to provide evidence on her residence in Brussels, not only in the application, but also during the administrative procedure. The Commission had, moreover, expressly asked her to do so.

35      In the light of the foregoing, the three documents submitted by the applicant as annexes to the reply must be regarded as documents which could have been submitted in the first exchange of pleadings and, as a result, those annexes must be considered to be inadmissible.

 Substance

36      In support of her action, the applicant raises two pleas in law alleging, first, infringement of the applicable legislation and incorrect classification of the facts that led to the contested decision and, second, manifest error of assessment.

 The first plea in law, alleging infringement of the applicable legislation and incorrect classification of the facts that led to the contested decision

–       The expatriation allowance

37      The applicant claims that the Commission’s interpretation of Article 4(1)(a) of Annex VII to the Staff Regulations is incorrect. Further, the Commission wrongly classified the facts on which the definition of her habitual residence was based. She states that she was not habitually resident in Brussels during the entire reference period and that, consequently, she meets the eligibility requirements for the grant of the expatriation allowance provided for in Article 4 of Annex VII to the Staff Regulations.

38      The applicant claims that, between 22 August 2009 and 30 August 2016, she had diplomatic status, the legal consequence of which was not taken into account in the contested decision.

39      She argues that the second sentence of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations, according to which ‘circumstances arising from work done for another State or for an international organisation shall not be taken into account’ should be applied directly to her. According to the applicant, no member of the family could be considered to have been habitually residing in the place of assignment during her husband’s diplomatic mission, particularly in view of the fact that none of them had been in a gainful occupation there. By contrast, the applicant claims that all the members of her family had their centre of interests in Greece and should have been regarded as residing permanently in Greece.

40      Further, the applicant submits that that provision could be applied to her by analogy. She was granted diplomatic status under the Vienna Convention on Diplomatic Relations of 18 April 1961 and enjoyed the same immunities and privileges as her husband. She submits that that status in itself creates an obstacle which prevents the person concerned from forming a lasting tie linking him or her to the State to which he or she is posted.

41      The applicant notes that the individual assessment of her situation does not prevent account from being taken of the fact that her husband is a member of the diplomatic staff. By taking a different approach, the Commission fails properly to determine the applicant’s habitual residence and disregards her right to respect for her private and family life enshrined in Article 7 of the Charter of Fundamental Rights of the European Union.

42      Invited by the Court to submit her observations on the potential repercussions of the judgment of 28 November 2019, Wywiał-Prząda v Commission (T‑592/18, EU:T:2019:820), the applicant submits that her situation differs from that of the applicant in that case, inter alia because she had not worked during her husband’s mission in Brussels and had moved to Greece immediately after she no longer had diplomatic status. Consequently, in contrast to the applicant in that case, she had not established her habitual residence in Brussels.

43      The applicant goes on to state that, after the end of her husband’s mandate in Brussels at the end of August 2016, the whole family moved to Greece, to where her husband had been assigned by the Greek Ministry of Foreign Affairs. The applicant submits that she returned to Greece with no certainty that they would all be able to return subsequently to Brussels.

44      The applicant submits that the period from 1 September 2016 to 1 February 2017, during which she had no durable occupation, but merely worked under interim employment contracts, could in no event permit her stay in Brussels to be defined as habitual. She argues that her interim employment contracts should be treated as equivalent to professional traineeships, which cannot contribute to habitual residence. She notes that she decided to accept those short-term contracts in order to help her family during the economic crisis in Greece and to enhance her curriculum vitae.

45      She argues that the temporary nature of her stay in Brussels is also evidenced by the fact that she did not rent an apartment but was hosted by friends. Moreover, the residence certificate issued by the Greek State confirms the temporary nature of her stay in Brussels. That certificate has particularly high evidential value, in particular because it is issued only after the administrative authorities have verified the actual place of residence. In that regard, the applicant explains that, in order to be able to work as an interim member of staff, she had to register with a Belgian commune and obtain a Belgian national registration number.

46      Lastly, the applicant submits that, after the latest temporary employment contract in July 2017, she decided to return definitively to Greece to rejoin her family, even though she had just received an offer of employment from DG ‘Neighbourhood and Enlargement Negotiations’ comprising a contract for the period from 1 August 2017 to 31 July 2018. However, given that her husband had been asked by the Greek Ministry of Foreign Affairs to return to Brussels, to the Greek Embassy, she decided to accept the contract that had been offered to her. She re-registered with her commune in Belgium and [confidential]. (1)

47      The Commission, for its part, notes that, first, the applicant cannot rely on her diplomatic status in order to circumvent the establishment of habitual residence in Brussels and the creation of close ties to Belgium. The derogation in the second sentence of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations, it submits, applies only to persons who were in the service of another State or an international organisation before taking up their duties.

48      Second, the Commission submits that the applicant was habitually resident in Brussels even after her husband’s diplomatic mandate had ended. It takes the view that the applicant left Belgium for a brief period of two months only (September and October 2016) – a sporadic and short-term absence that cannot be regarded as sufficient for the applicant’s residence in Brussels to lose its habitual nature – and that she then returned there in order to rent an apartment and work in Brussels. The Commission considers that the temporary employment contract is an employment contract executed in Brussels, where the applicant worked full-time, provided administrative support to the Commission and was remunerated, and it therefore cannot be equated to a traineeship.

49      The Commission contends that, even though the applicant relies on the Greek certificate of former residence, the Belgian residence certificate shows that she was living in Brussels from 1 November 2016 at an address used in a temporary employment contract in June 2017 and in the offer of employment sent in July 2017.

50      As a preliminary point, it should be recalled that, according to settled case-law, the purpose of the expatriation allowance provided for by Article 69 of the Staff Regulations, the conditions for the grant of which are set out in Article 4(1) of Annex VII to those regulations, applicable to contract staff by virtue of Articles 20 and 92 of the Conditions of Employment of Other Servants of the European Union, 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 or she is integrated in his or her new environment, which is demonstrated, for example, by habitual residence or by the main occupation pursued (judgment of 13 July 2018, Quadri di Cardano v Commission, T‑273/17, EU:T:2018:480, paragraph 44; see also, to that effect, judgment of 24 January 2008, Adam v Commission, C‑211/06 P, EU:C:2008:34, paragraph 38 and the case-law cited).

51      The concept of habitual residence has been consistently interpreted by the case-law as being the place where the person concerned has established, with the intention that it should be of a lasting character, the permanent or habitual centre of his or her 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 13 July 2018, Quadri di Cardano v Commission, T‑273/17, EU:T:2018:480, paragraph 48 and the case-law cited).

52      It has also been observed in the case-law that there are two parts to Article 4(1)(a) of Annex VII to the Staff Regulations. The first part sets out the two cumulative conditions which officials must, as a rule, fulfil in order to qualify for the expatriation allowance: to have never been nationals of the State in whose territory the place where they are employed is situated and not to have habitually resided or carried on their main occupation within the European territory of that State, during the five years ending six months before they entered the service; the second part provides, by way of an exception to that principle, that circumstances arising from work done for another State or for an international organisation are not to be taken into account. Periods relating to such work are, therefore, left out of account (judgment of 28 November 2019, Wywiał-Prząda v Commission, T‑592/18, EU:T:2019:820, paragraph 22).

53      Furthermore, under Article 4(1)(a) of Annex VII to the Staff Regulations, the official or staff member concerned is to lose entitlement to the expatriation allowance only if he or she had his or her habitual residence or carried on his or her main occupation in the country of his or her place of employment throughout the reference period (judgment of 28 November 2019, Wywiał-Prząda v Commission, T‑592/18, EU:T:2019:820, paragraph 23 and the case-law cited).

54      Finally, it is well-established 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 13 July 2018, Quadri di Cardano v Commission, T‑273/17, EU:T:2018:480, paragraph 51 and the case-law cited). Further, EU legal measures which create a right to financial benefits, such as those at issue in the present case, must be given a strict interpretation (judgments of 8 March 1990, Schwedler v Parliament, T‑41/89, EU:T:1990:19, paragraph 23, and of 16 January 2018, SE v Council, T‑231/17, not published, EU:T:2018:3, paragraph 36).

55      In the present case, out of the requirements set out in paragraph 52, the requirement of nationality is not disputed. By contrast, the applicant claims that she was habitually resident in Greece during the entire reference period.

56      She submits that, due to her diplomatic status, the period from August 2009 to August 2016 cannot be taken into account for the purposes of the relevant period in order to assess whether she was habitually resident in Brussels.

57      In that regard, the Court has previously held that the expatriation of a person, giving rise to an entitlement to an expatriation allowance, is independent of the diplomatic status which he or she enjoys under international law. That is all the more true where, like the applicant in the present case, that person benefits from that status without being a member of the staff of an international organisation or of the representation of a State other than the State of employment (judgment of 28 November 2019, Wywiał-Prząda v Commission, T‑592/18, EU:T:2019:820, paragraph 47).

58      It is apparent from settled case-law that functional integration within the permanent representation constitutes a decisive factor in order for a new staff member to be considered to have worked for another State within the meaning of the second sentence of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations (see, to that effect, judgment of 28 November 2019, Wywiał-Prząda v Commission, T‑592/18, EU:T:2019:820, paragraph 31 and the case-law cited).

59      Further, and as has been noted by the Commission, the Court of Justice has held that the second sentence of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations covers only circumstances arising from work done by the actual official entering the service and cannot be extended to any other person (see, to that effect, judgment of 2 May 1985, De Angelis v Commission, 246/83, EU:C:1985:165, paragraph 14).

60      Moreover, and as has correctly been pointed out by the Commission, the very fact that the second sentence of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations does not apply to a third party who does not provide those services precludes it from being applicable by analogy, as the applicant argues, to the partner of the person who performs duties for another State or an international organisation.

61      Even though, in the case-law cited in that respect by the applicant (judgment of 21 June 2007, Commission v Hosman-Chevalier, C‑424/05 P, EU:C:2007:367, paragraph 43), the Court of Justice referred to the privileges, immunities and special status from which the party concerned benefited, it is from a number of factors that the Court of Justice deduced that she had a specific tie linking her to another State which hindered her integration in the country of employment. It held that the special status of the person concerned could not be understood as deriving solely from the privileges and immunities from which that person had benefited. On the contrary, the Court of Justice placed more emphasis on the fact that she had worked for the Republic of Austria in its Permanent Representation (see, to that effect, judgment of 28 November 2019, Wywiał-Prząda v Commission, T‑592/18, EU:T:2019:820, paragraph 30).

62      In the present case, the applicant had diplomatic status without being a member of the staff of an international organisation or of the representation of a State other than the State of employment. Consequently, it cannot be accepted that the applicant’s situation arose from ‘work done for another State or for an international organisation’ within the meaning of Article 4(1)(a) of Annex VII to the Staff Regulations. Further, that finding cannot be affected by the issue of whether or not she worked during that period.

63      Moreover, in the light of the foregoing, the applicant and her husband were not in the same legal and factual situation and it cannot be held that the individual assessment of the applicant’s situation in the context of the potential granting of a benefit relating to salary infringes her right to respect for her private and family life enshrined in Article 7 of the Charter of Fundamental Rights.

64      Since it has been found that the derogation in the second sentence of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations did not apply to the applicant, it is next necessary to assess whether she has successfully shown that she did not habitually reside or carry on her occupation in Brussels, for the purposes of the first sentence of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations, during the reference period.

65      The applicant claims that she was habitually resident in Athens during the entire reference period. However, in respect of the period up to August 2016, she supported that claim by referring to her diplomatic status and to her husband’s employment without providing any other evidence to support her degree of integration in Greece rather than in Brussels during that period.

66      As for the fact that she did not work during that period, it should not be forgotten that, although ‘occupation’ is indeed an objective criterion referred to in Article 4(1)(a) of Annex VII to the Staff Regulations for the purpose of assessing the situation of newly recruited officials and members of the temporary staff (see, to that effect, judgment of 28 February 2019, Pozza v Parliament, T‑216/18, not published, EU:T:2019:118, paragraph 25), it is given only by way of an example (see, to that effect, judgments of 21 June 2007, Commission v Hosman-Chevalier, C‑424/05 P, EU:C:2007:367, paragraph 35, and of 13 July 2018, Quadri di Cardano v Commission, T‑273/17, EU:T:2018:480, paragraph 44).

67      As regards the period from September 2016 to February 2017, the applicant states that, after her husband’s mandate ended, at the end of August 2016, she returned to Greece. She claims that her work in Brussels for a brief period of three months as an interim member of staff did not in any way affect her habitual residence in Greece.

68      In that regard, the appointing authority of the Commission found, in the contested decision, that the applicant had kept her habitual residence in Brussels during the reference period and that, contrary to what the applicant claimed, her brief absence of two months, during which time she resided in Greece, was irrelevant.

69      On that point, it is not disputed that, after her husband’s diplomatic mission in Brussels, the applicant’s family moved to Greece and that, approximately two months later, the applicant returned to Brussels in order to work there as an interim member of staff from November 2016 to February 2017 and from April 2017 to June 2017.

70      In that regard, it is, indeed, settled case-law that absence of a sporadic and brief nature from an official’s country of employment cannot be considered sufficient to deprive his or her residence in the State of employment of its habitual nature (see, to that effect, judgments of 9 October 1984, Witte v Parliament, 188/83, EU:C:1984:309, paragraph 11, and of 28 September 1993, Magdalena Fernández v Commission, T‑90/92, EU:T:1993:78, paragraph 29). Furthermore, the fact that residence in the place of employment can retain its habitual nature has been recognised, including in the case of absences of several months from the country of employment (see, to that effect, judgment of 25 October 2005, Salvador García v Commission, T‑205/02, EU:T:2005:368, paragraph 76 and the case-law cited).

71      However, the Court has also held that relatively short absences from the country of employment may, when combined with other factors, indicate that the official has not maintained his or her habitual residence in the place of employment during the entire reference period (see, to that effect, judgment of 27 September 2006, Koistinen v Commission, T‑259/04, EU:T:2006:279, paragraphs 41 to 43).

72      It should be noted that the documents provided by the applicant in that regard support her claim that she moved with her family to Greece, where her husband, the member of the family who was consistently in gainful employment, had been assigned by his employer and where he owned a house.

73      Nevertheless, it has not been demonstrated clearly that the applicant intended to establish her habitual residence in Greece. Her intention to stay in Greece is disputed by the Commission, which stressed that she had chosen to return to Brussels, where she had already lived for the previous seven years, in order to work there after an absence of approximately two months only, even though her family stayed in Greece.

74      The applicant explained that she had returned to Brussels in order to help her family during the economic crisis and to enhance her curriculum vitae. She states that she intended to return to her family after the contracts had ended.

75      That argument supports her claim that she wished to be habitually resident in Greece. However, it cannot, in itself, demonstrate sufficiently her intention to move to Greece and to maintain her centre of interests there, given that she made the personal choice to return to Brussels after only two months.

76      As regards the applicant’s professional activity, she has not indicated that she worked or looked for work in any place other than Brussels during the reference period.

77      That notwithstanding, the applicant submits that her interim employment contracts should be treated as equivalent to professional traineeships and cannot lead to the conclusion that she had established herself permanently in Brussels.

78      In that regard, the Court has held that, even though, in principle, the fact that a person resides in a country particularly in order to supplement university studies and to undergo practical professional training, both of which are by definition temporary and supplementary parts of a person’s education, does not lead to the presumption that that person intends to move the centre of his or her interests to that country (see, to that effect, judgment of 19 June 2007, Asturias Cuerno v Commission, T‑473/04, EU:T:2007:184, paragraph 74 and the case-law cited), it is still possible, nevertheless, that such a stay may constitute habitual residence in that country if, taken into consideration with other relevant facts, it shows that the person concerned has lasting social and professional ties with the country in question (see, to that effect, judgments of 27 September 2000, Lemaître v Commission, T‑317/99, EU:T:2000:218, paragraph 51, and of 3 May 2001, Liaskou v Council, T‑60/00, EU:T:2001:129, paragraphs 55 and 56).

79      In the present case, as the Commission notes, the applicant’s periods of employment in Brussels, although of short duration, were not carried out in the context of practical training and their purpose was not to supplement university studies. Even though her two temporary employment contracts were for fixed periods of only a few months, they related to work for which the applicant received remuneration in return for professional services that were not performed in the context of practical professional training.

80      As regards her accommodation in Brussels during that period, it must be recalled that the applicant explained that, during that period of interim work, she stayed with friends and did not rent an apartment in Brussels, which she claims attests to the temporary nature of her stay in that city.

81      However, the Commission noted that it was only in the application that the applicant indicated that she had stayed with friends, even though the Commission had asked her on two occasions to provide the rental agreement for her accommodation in Brussels.

82      In that regard, in her complaint, the applicant claimed that she moved to Brussels in November 2016. The residence certificate dated 6 June 2018 stated that the applicant was registered at an address in Woluwe-Saint-Lambert from 22 August 2008 and then at another address in the same commune from 1 November 2016. The certificate does not indicate that the applicant had been removed from the register between those two periods.

83      While it is for the applicant to prove that the conditions referred to in Article 4(1) of Annex VII to the Staff Regulations are satisfied, it must be noted that she has not demonstrated that she did not have a consistent place of residence in Brussels during that period. Even if she did not rent an apartment, she could have indicated and provided evidence of her accommodation during the administrative procedure when the Commission asked her to submit additional documents attesting to her situation in respect of accommodation.

84      As regards the residence certificate and tax certificate provided by the Greek State, it should be noted that, according to case-law, registration in a locality is a purely formal element which does not prove that the person concerned is actually resident in that locality (see, to that effect, judgment of 3 May 2001, Liaskou v Council, T‑60/00, EU:T:2001:129, paragraph 62).

85      In that regard, the applicant has stated that that case-law does not apply to her since the Greek authorities verify the actual place of residence. It is sufficient to note that the certificate states that the husband, the applicant [confidential] had been living in Athens for two years, as is apparent from the tax certificate and utility bills for electricity and water. However, and as the Commission maintains, it is established that the applicant was physically present in Brussels between November 2016 and June 2017. In addition, the tax certificate and the utility bills for electricity and water are connected to the work of the applicant’s husband as a diplomatic agent and to his real estate in Athens, which he had acquired in 1999.

86      In the light of the foregoing, given that it is for the applicant to demonstrate that the conditions referred to in Article 4(1) of Annex VII are satisfied, it must be held that the applicant has not demonstrated that her habitual residence during the reference period was not in Brussels.

87      Consequently, the Commission was fully entitled to find that the applicant had failed to show that, during the reference period, her habitual residence was outside the State of employment, Belgium. As a result, the applicant was not entitled to the expatriation allowance, and the appointing authority was therefore fully entitled to refuse her that benefit in the contested decision.

–       The installation allowance, the daily subsistence allowance and the reimbursement of removal expenses and travel expenses on taking up duties

88      The applicant claims that the Commission confused the expatriation allowance with the installation allowance and the reimbursement of travel expenses under Article 5(1) and Article 7 of Annex VII to the Staff Regulations. According to the applicant, those articles refer to the place of residence or the place where the official was recruited, which are considered to be the same place.

89      In the reply, the applicant maintains, as regards the installation allowance and the daily subsistence allowance, that the word ‘residence’ used in the context of Articles 5 and 10 of Annex VII of the Staff Regulations should be understood as referring to the centre of the interests of the official or staff member. The applicant states, in addition, that the fact that she temporarily resided in Brussels, in particular for professional reasons, does not preclude the grant of the installation allowance or the daily subsistence allowance. The applicant claims that she resided in Greece in July 2017 and was recruited in August 2017. She adds that, even if it is considered that she was residing in Brussels at the time of her recruitment, that fact cannot deprive her of the right to the abovementioned allowances, in the light of their purpose.

90      With regards to travel costs on taking up duties from the place of recruitment to the place of employment, the applicant states, in the reply, that the intention is to make the European Union, as the employer, bear the travel expenses which the official has had to incur in order to reach his or her future posting. Given that the place of recruitment is to be understood as the place where the official habitually resided at the time of recruitment, and that the applicant’s habitual place of residence was in Athens and not in Brussels, she submits that she ought to be entitled to reimbursement of the travel costs and removal expenses.

91      For its part, the Commission submits that the word ‘residence’ for the purposes of Articles 5, 9 and 10 of Annex VII to the Staff Regulations corresponds to the centre of interests of the person concerned, which refers to the place where that person has established, with the intention that it should be of a lasting character, the permanent or habitual centre of his or her interests.

92      The Commission takes the view that the applicant did not change her place of residence in order to take up her appointment. The Commission notes that it found that the applicant was living in Brussels during the period preceding her recruitment. By moving to Brussels for the interim assignment and accepting, immediately afterwards, the position as a member of the contract staff for DG ‘Neighbourhood and Enlargement Negotiations’, the applicant kept her centre of interests in Brussels. The fact that the applicant had been living for a period in Athens before taking up her duties in no way changes that fact. Moreover, she had previously been living in Brussels, namely since September 2009.

93      The Commission maintains that the applicant received the offer of employment from DG ‘Neighbourhood and Enlargement Negotiations’ before leaving Brussels for Greece in July 2017. Consequently, she already knew that she would be returning to Brussels for her new job within that DG. It cannot be found that, by spending the summer in Athens, the applicant intended to end her residency in Brussels. In addition, the Commission states that the applicant has not indicated that she regularly returned to Greece.

94      As a preliminary point, it must be recalled that Articles 5, 7, 9 and 10 of Annex VII to the Staff Regulations apply to contract staff by virtue of Articles 22 to 25 and 92 of the Conditions of Employment of Other Servants of the European Union.

95      It is apparent from the wording of Article 5(1) and Article 10(1) of Annex VII to the Staff Regulations that an official or member of the temporary staff who furnishes evidence that a change in his or her place of residence was required in order to satisfy the requirements of Article 20 of the Staff Regulations, in particular that of residing either in the place where he or she is employed or at no greater distance therefrom as is compatible with the proper performance of his or her duties, is entitled to the installation allowance and to the daily subsistence allowance, respectively.

96      It is settled case-law that the word ‘residence’ used in the provisions setting out the conditions for the grant of the allowances provided for in Articles 5 and 10 of Annex VII to the Staff Regulations must be construed as referring to the centre of interests of the official or member of the temporary staff concerned (see, to that effect, judgments of 12 December 1996, Lozano Palacios v Commission, T‑33/95, EU:T:1996:196, paragraph 47; of 12 December 1996, Monteiro Da Silva v Commission, T‑74/95, EU:T:1996:197, paragraph 47; and of 9 July 2019, XF v Commission, T‑482/18, not published, EU:T:2019:487, paragraph 23).

97      It has been held specifically that that term refers to the place where the interested party has established and intends to maintain the permanent or habitual centre of his or her interests and that it also implies, irrespective of the purely quantitative element of the time spent by the person concerned in a particular country, 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, to that effect, judgment of 9 July 2019, XF v Commission, T‑482/18, not published, EU:T:2019:487, paragraph 24 and the case-law cited).

98      Moreover, Article 7(1)(a) of Annex VII to the Staff Regulations provides for reimbursement of the cost of travel from the place of recruitment to the place of employment, on taking up duties. Article 2(2) of the Commission Decision of 16 December 2013 laying down general implementing provisions for giving effect to Article 7(4) of Annex VII to the Staff Regulations on determining the place of origin, defines the official’s place of recruitment as the place where the official was habitually resident at the time of recruitment.

99      As regards the removal expenses referred to in Article 9 of Annex VII to the Staff Regulations, it is apparent from the wording of that provision that the reimbursement of those expenses concerns officials who are obliged to change their place of residence in order to comply with Article 20 of the Staff Regulations.

100    In the present case, after the reference period, the applicant worked in Brussels until 3 February 2017 and again from 18 April to 30 June 2017. She has not demonstrated that she resided in or travelled to Greece between those periods of employment and, on the contrary, her actual residence in Brussels is supported by [confidential]. In addition, it should be borne in mind that the applicant did not, during the administrative phase, respond to the PMO’s requests that she provide evidence of her accommodation in Brussels during that period. First, it was for the applicant to provide the necessary documents when she sought the benefits in question. Second, and in any event, the legality of an EU measure, such as the contested decision, is to be assessed in the light of the information available to the institution when it was adopted, with the result that, in proceedings before the EU Courts, no one can thus rely on matters of fact which were not put forward in the course of the administrative procedure (see judgment of 3 October 2017, PM v ECHA, T‑656/16, not published, EU:T:2017:686, paragraph 36 and the case-law cited).

101    The applicant submits that, after her employment contract ended, on 30 June 2017, she stayed in Greece during July 2017. It is necessary to note, in this regard, that the applicant’s claims as regards her intention to return to Greece definitively did not materialise. She has not provided any documents attesting to her moving to Greece or even to her stay in Greece in July 2017. By contrast, the offer of employment, dated 7 July 2017 and preceded by a selection procedure, was sent to the applicant’s address in Brussels, which is also indicated, in the residence certificate provided by the commune of Woluwe-Saint-Pierre, as being the applicant’s address from 1 November 2016 and until she was registered at another address in Brussels on 31 August 2017.

102    In the light of the foregoing, the applicant has not demonstrated that she had been obliged to change her place of residence within the meaning of Articles 5, 9 and 10 of Annex VII to the Staff Regulations. In addition, the Commission did not commit an error in establishing the applicant’s place of recruitment as Brussels for the purposes of Article 7 of Annex VII to the Staff Regulations.

103    The Commission was therefore correct in finding that the applicant was not entitled to the installation allowance, the daily subsistence allowance or reimbursement of removal expenses and travel costs on taking up her duties.

104    It follows that the first plea in law must be rejected.

 The second plea in law, alleging a manifest error of assessment

105    By the second plea, the applicant claims that the Commission incorrectly assessed the facts and the documents which she had provided and which unequivocally prove that she had definitively moved away from Brussels. She claims that, even though deregistration from a Belgian commune or registration with a Greek municipality might be indicative, the fact that she moved all her furniture, the fact that her husband was called back to the headquarters of his employer and the fact that her husband obtained a new assignment to Brussels in September 2017 are matters which cannot be disputed.

106    The applicant also claims that, in the contested decision, the Commission makes a number of assumptions and draws incorrect conclusions. She states that the administration based its conclusion on assumptions and misinterpretations of the evidence provided, which led to manifest errors. She claims that the Commission reached its conclusion without really examining the supporting documents.

107    The Commission disputes the applicant’s arguments. It notes that it has already examined factual elements as part of the first plea and refers to the arguments relied on under that plea. In addition, the Commission contends that it is not correct to state that the PMO did not try to establish the situation as thoroughly as possible. On the contrary, the PMO contacted the applicant in order to obtain more supporting documents but the applicant did not provide the information requested.

108    In so far as the second plea in law alleges a manifest error of assessment of the facts and of the documents provided by the applicant, and in so far as the Court has assessed the applicant’s personal situation as part of the first plea, it is necessary to reject the second plea as unfounded on the same grounds.

109    In the light of the foregoing, the action must be dismissed as unfounded.

 Costs

110    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Ms Marina Karpeta-Kovalyova to pay the costs.

Delivered in open court in Luxembourg on 15 October 2020.

*      Language of the case: English.

1      Confidential information omitted.

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