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

ORDER OF THE COURT (Eighth Chamber)

6 July 2021 (*)

(Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Civil service – Members of the contract staff – Spouse of a Greek diplomat who resided in Brussels prior to the recruitment – Definition of the place of recruitment and the centre of interests – Refusal to grant the appellant the expatriation allowance and related benefits – Appeal manifestly unfounded)

In Case C‑717/20 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 28 December 2020,

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

appellant,

the other party to the proceedings being:

European Commission,

defendant at first instance,

THE COURT (Eighth Chamber),

composed of N. Wahl, President of the Chamber, L.S. Rossi (Rapporteur) and J. Passer, Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1        By her appeal, Ms Marina Karpeta-Kovalyova asks the Court of Justice to set aside the judgment of the General Court of the European Union of 15 October 2020, Karpeta-Kovalyova v Commission (T‑249/19, not published, EU:T:2020:490; ‘the judgment under appeal’), by which the General Court dismissed as unfounded her action for annulment of the European Commission’s decision of 14 June 2018 refusing her entitlement to the expatriation allowance, the daily subsistence allowance, the installation allowance, and the repayment of travel expenses incurred in taking up employment and removal expenses.

 The appeal

2        Pursuant to Article 181 of the Rules of Procedure of the Court, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.

3        It is appropriate to apply that provision in the present proceedings.

4        On 27 April 2021, the Advocate General adopted the following position:

‘1.      For the reasons set out below, I propose that the Court dismiss the appeal in the present proceedings as manifestly unfounded, in accordance with Article 181 of the Rules of Procedure.

2.      In support of her action, the appellant raises a single ground of appeal, alleging infringement of Article 4(1)(a) of Annex VII to the Staff Regulations of Officials of the European Union (“the Staff Regulations”). She submits that the General Court erred in law in holding that she had not established, in order to be able to claim the expatriation allowance, that, during the reference period from 1 February 2012 to 1 February 2017, her habitual residence was outside Brussels (Belgium).

3.      In accordance with the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations, the expatriation allowance is granted to officials and, pursuant to Articles 20 and 92 of the Conditions of Employment of Other Servants of the European Union, to members of the contract staff who during the five years ending six months before they entered the service did not habitually reside or carry on their main occupation within the European territory of the State in whose territory the place where they are employed is situated. For the purposes of this provision, circumstances arising from work done for another State or for an international organisation are not to be taken into account.

4.      It should be borne in mind, at the outset that, in accordance with settled case-law, the purpose of the expatriation allowance is to compensate officials and other members of staff for the extra expense and inconvenience of taking up employment with the European Union if they have been thereby obliged to change their residence from their State of 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 or other member of staff, 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. The grant of the expatriation allowance is thus intended to correct actual instances of inequality arising between officials who are integrated into the society of the country of employment and those who are not (judgments of 21 June 2007, Commission v Hosman-Chevalier, C‑424/05 P, EU:C:2007:367, paragraphs 35 and 36, and of 25 March 2021, Alvarez y Bejarano and Others v Commission, C‑517/19 P and C‑518/19 P, EU:C:2021:240, paragraph 69).

5.      The criterion for awarding an expatriation allowance is habitual residence. In that regard, the place of habitual residence is that in which 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, it being understood that, for the purposes of determining habitual residence, all the factual circumstances which constitute such residence must be taken into account (judgment of 15 September 1994, Magdalena Fernández v Commission, C‑452/93 P, EU:C:1994:332, paragraphs 21 and 22).

6.      It is in the light of the purpose of the expatriation allowance as set out above that the single ground of appeal, which comprises five parts, must be examined. By the first part, the complaint is that the General Court misapplied the condition of habitual residence. By the second part, the complaint is that the General Court failed to take account of the appellant’s diplomatic status. By the third part, the complaint is that the General Court failed to take account of the fact that the appellant did not work during the reference period. By the fourth part, the complaint is that the General Court disregarded the case-law on the consequences of sporadic absences from the State of employment on the habitual nature of the residence in that State. By the fifth and last part, the complaint is that the General Court erred in its determination of the appellant’s place of habitual residence.

 The first part of the single ground of appeal, alleging misapplication of the condition of habitual residence

7.      By the first part of her single ground of appeal, the appellant submits that the General Court erred in law in interpreting the condition of habitual residence outside the place of employment laid down in the first sentence of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations. The General Court did not examine the issue of whether the appellant had proved that she did not have her habitual residence in Brussels during the reference period, but, as is apparent from paragraph 65 of the judgment under appeal, reviewed whether the appellant had demonstrated that, during that period, her habitual residence was in Athens (Greece).

8.      That line of argument must be rejected as manifestly unfounded, since the appellant, first, has not stated that she had places of residence other than Athens and Brussels and, second, has not adduced sufficient evidence which would justify finding Athens as the place of her habitual residence.

 The second part of the single ground of appeal, alleging failure to take account of the appellant’s diplomatic status

9.      By the second part of her single ground of appeal, the appellant claims that the General Court did not take account of the fact that, as the spouse of a diplomatic agent, she enjoyed diplomatic status. According to the appellant, account should have been taken of it in determining her habitual residence.

10.      The appellant states that the work of a diplomat is unforeseeable and unstable, since he or she is periodically called upon to change his or her place of employment, and that, as a result, she did not intend to achieve continuity by physically remaining in Brussels. Accordingly, she submits that the status enjoyed by diplomats must be extended to their spouse in order to avoid a break in family life contrary to the right to respect for private and family life enshrined in Article 7 of the Charter of Fundamental Rights of the European Union.

11.      It should be noted that entitlement to the expatriation allowance is granted only to officials and other members of staff who satisfy the two cumulative negative conditions laid down in Article 4(1)(a) of Annex VII to the Staff Regulations. It follows from the second sentence of the second indent of that provision that, in respect to the application of the second condition, circumstances arising from work done for another State or for an international organisation are not to be taken into account. The ratio legis of the exception laid down in that sentence lies in the particular status of persons attached to a State or an international organisation. The very existence of that status prevents the establishment of a lasting tie with the country of employment and, consequently, integration to the requisite degree in the society of that country (see, to that effect, judgment of 21 June 2007, Commission v Hosman-Chevalier, C‑424/05 P, EU:C:2007:367, paragraphs 43 and 44). However, that exception benefits only persons who have resided in the country of employment before entering the service, while having been in the service of another State or an international organisation in that country. An exception of that kind to a general rule cannot therefore be extended to anyone other than the person specifically concerned by the provision in question (judgment of 2 May 1985, De Angelis v Commission, 246/83, EU:C:1985:165, paragraph 14).

12.      Therefore, the General Court was right to hold, in paragraphs 59, 60 and 62 of the judgment under appeal, that only an official or other member of staff who has worked for a State other than that of the place of employment or an international organisation, and not his or her spouse, may claim entitlement to that exception. Consequently, the appellant cannot rely on work performed by her husband to show that she satisfied the conditions to be granted an expatriation allowance. It follows that the appellant’s arguments must be rejected as manifestly unfounded.

 The third part of the single ground of appeal, alleging failure to take account of the fact that the appellant did not work during the reference period

13.      By the third part of her single ground of appeal, the appellant submits that the General Court erred in law in failing to take account of the fact that she had not worked during the first part of the reference period. In that regard, she submits that the General Court merely stated, in paragraph 66 of the judgment under appeal, that although an occupation is “indeed an objective criterion referred to in [the second indent of] 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 …, it is given only by way of an example”, without specifying the scope of that statement and without applying it to the facts of the case. Since the exercise of an occupation is only one of the criteria on which determination of habitual residence may be dependent, the General Court was not required to take it into account.

14.      It must be held that the appellant’s line of arguments is based on a misreading of the judgment under appeal. The General Court did indeed take account of the fact that the appellant had not worked during the period up to August 2016. Furthermore, it follows from the very wording of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations that that provision also covers circumstances in which the person concerned has “resided” in the State of employment. In any event, as it follows from the examination of the second part of the single ground of appeal, since the appellant did not satisfy the condition laid down in the second sentence of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations, whether or not she worked during the period in question is irrelevant. The third part of that ground is thus manifestly unfounded.

 The fourth part of the single ground of appeal, alleging misapplication of the case-law on the consequences of sporadic absences from the State of employment on the habitual nature of residence in that State

15.      By the fourth part of her single ground of appeal, the appellant submits, in essence, that the General Court disregarded the case-law on the consequences, for the determination of the place of habitual residence, of sporadic absences from the place of employment. According to the appellant, since her habitual residence was not located in Brussels during the first part of the reference period, there was no need to examine the impact of any sporadic absences from the State of employment on her habitual residence.

16.      In the present case, the appellant’s argument is based on the premiss that it is demonstrated, to the requisite legal standard, that she actually transferred her habitual residence from Brussels to Athens in August 2016. However, as the General Court held in paragraph 86 of the judgment under appeal, the appellant did not establish that such a transfer had taken place. That line of argument will be examined together with the first complaint of the fifth part of the single ground of appeal.

 The fifth part of the single ground of appeal, alleging errors in the determination of the place of habitual residence

17.      By the fifth and last part of her single ground of appeal, the appellant submits that the General Court erred in law, in paragraph 86 of the judgment under appeal, in finding that she had not sufficiently demonstrated her intention to settle in Greece. That part contains three complaints, by which the appellant alleges that the General Court took into account irrelevant elements, ignored other elements and incorrectly assessed relevant elements.

 The alleged consideration of irrelevant elements

18.      As regards the alleged consideration of irrelevant elements, the appellant takes the view that three elements should not have been examined by the General Court. She submits, first, that the issue of whether she had worked or sought work in any place other than Brussels during the reference period was not relevant, contrary to what is indicated in paragraph 76 of the judgment under appeal. Since judicial review by the Courts of the European Union is limited to an examination of the legality of the decision of the administration in the light of the facts as they existed on the date when that decision was taken, the General Court cannot take into consideration elements subsequent to that date. Second, the General Court erred in law by taking into account, in paragraph 85 of the judgment under appeal, the certificate of residence issued by a Belgian commune, although it stated, in paragraph 84 of the judgment under appeal, that such certificates do not make it possible to establish the actual residence of the person concerned in the locality. Lastly, she takes the view that the General Court misinterpreted, in paragraph 75 of the judgment under appeal, the fact that she decided to return to Brussels after two months spent in Greece. The appellant submits that her return to Brussels does not imply that she did not intend to transfer her centre of interests to another country and that she did not intend to establish her habitual residence in that country. Consequently, the personal decision to return to Brussels after only two months is not a relevant element to be taken into account in order to assess whether the appellant had successfully shown that she did not have her habitual residence in Brussels, but that she intended to establish her habitual residence in Greece.

19.      As has already been pointed out in point 5 of this position, in order to determine habitual residence, all the factual circumstances which constitute that residence must be taken into account. Thus, contrary to what the appellant claims, the General Court did not err in law in assessing, in paragraphs 76 to 79 of the judgment under appeal, the evidence submitted by the appellant relating to her occupation during the reference period and its impact on the determination of her habitual residence.

20.      As regards the element relating to the appellant’s accommodation during that period, namely the certificate of residence of 6 June 2018 which shows that the appellant resided at an address located in a commune of the Brussels-Capital Region from 22 August 2008, and then at another address in the same commune from 1 November 2016, it should be borne in mind that, in accordance with settled case-law, entry in the population register does not of itself prevent the person concerned from in fact having his or her actual residence elsewhere (judgment of 14 July 1988, Schäflein v Commission, 284/87, EU:C:1988:414, paragraph 12). However, in accordance with the case-law referred to in point 5 of this position, certificates of residence are a factual element which, taken together with other elements, are capable of establishing the habitual residence of the person concerned. That is all the more so in the present case because the certificate in question indicates that the appellant was not removed from the municipal register between 22 August 2008 and 6 June 2018. Thus, the General Court did not err by taking it into account.

21.      As regards the last element mentioned by the appellant, namely her personal decision to return to Brussels after a stay of two months in Greece, it should be borne in mind that the case-law that sporadic and brief absences from the country of employment, which do not reflect the intention of the person concerned to establish the permanent centre of his or her interests in another State, cannot be regarded as sufficient to deprive the residence of the person concerned in the State of employment of its habitual nature for the purposes of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations (judgment of 9 October 1984, Witte v Parliament, 188/83, EU:C:1984:309, paragraph 11). As has been held in respect of the other elements referred to above, the General Court did not err in law in taking into consideration the appellant’s decision to return to Brussels in November 2016, since it is a relevant factual circumstance forming part of the reference period. A return to the State in which the appellant had previously lived for eight years following a brief stay in Greece is a strong indication of her intention to maintain her centre of interests in Brussels, whatever the reason for that return.

 The alleged erroneous conclusions drawn from relevant elements

22.      As regards, next, the erroneous conclusions which the General Court allegedly drew, in paragraphs 77 to 79 of the judgment under appeal, from the elements relevant to the determination of habitual residence, the appellant submits that the three-month period from 7 November 2016 to 3 February 2017 which she spent as an interim member of staff in Brussels should be treated in the same way as practical professional training, which cannot contribute to the determination of her habitual residence. She alleges that the General Court found, on the basis of an examination of the nature and purpose of the interim contracts, that that was not the case here.

23.      According to settled case-law, the fact that a person has stayed in a Member State merely as a student does not rule out that such a stay may amount to habitual residence in that State (see, to that effect, judgment of 10 October 1989, Atala-Palmerini v Commission, 201/88, EU:C:1989:365, paragraph 11). It follows that, even assuming that the appellant’s period of work should be classified as practical professional training, that does not prevent the period in question from contributing to the determination of the place of her habitual residence. Accordingly, the appellant’s complaint in that regard cannot succeed.

 The alleged failure to take account of relevant elements

24.      The appellant claims that the General Court was wrong, in paragraph 35 of the judgment under appeal, to refuse to take account of evidence which she submitted at the stage of the reply. Those documents consist of two sworn statements, dated 3 September 2019, the day on which the reply was lodged, according to which the appellant stayed at a friend’s house located in the Brussels-Capital Region for the period from 1 November 2016 to 1 June 2017, and a new certificate of residence issued on 17 June 2019 by a commune of that region.

25.      Although, in accordance with the time-bar rule laid down in Article 85(2) of the Rules of Procedure of the General Court, the parties must state the reasons for the delay in submitting or offering new evidence, the Courts of the European Union have jurisdiction to review the merits of the reasons for the delay in submitting or offering that evidence and, depending on the case, the content of that evidence and also, if its belated production is not justified to the requisite legal standard or substantiated, jurisdiction to reject it. It follows from the case-law that although the appraisal by the General Court of the content of the evidence that is submitted to it does not, save where that evidence is distorted, constitute a point of law which is subject, as such, to review by the Court of Justice, the General Court’s examination of the admissibility of offers of evidence submitted to it does constitute such a point that is subject to review by the Court of Justice (judgment of 16 September 2020, BP v FRA, C‑669/19 P, not published, EU:C:2020:713, paragraphs 41 and 42).

26.      In the present case, the General Court did not err in law in declaring the three documents in question inadmissible. As the General Court correctly held, the appellant had had the opportunity to produce those documents not only in the application, but also during the administrative procedure. In that regard, it pointed out that the Commission had requested the appellant on two occasions during the pre-litigation procedure to provide evidence relating to her accommodation in Brussels and a certificate of de-registration from the Belgian commune in August 2016. Furthermore, the appellant had already produced a certificate of residence.

27.      It follows that the fifth part of the single ground of appeal and, consequently, the fourth part of that ground must be rejected as manifestly unfounded.

 Conclusion

28.      Since the five parts of the single ground of appeal have been rejected, the present appeal must be dismissed in its entirety as manifestly unfounded.’

5        For the same reasons as those given by the Advocate General, the appeal must be dismissed as manifestly unfounded.

 Costs

6        Under Article 137 of the Rules of Procedure, applicable to proceedings on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. In this instance, since the present order was adopted before the appeal was served on the Commission and, therefore, before it could have incurred costs, it is appropriate to decide that the appellant is to bear her own costs.

On those grounds, the Court (Eighth Chamber) hereby orders:

1.      The appeal is dismissed as manifestly unfounded.

2.      Ms Marina Karpeta-Kovalyova shall bear her own costs.

Luxembourg, 6 July 2021.

*      Language of the case: English.

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