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

JUDGMENT OF THE GENERAL COURT (Fourth Chamber)

14 July 2021 (*)

(Civil service – Members of the temporary staff – Remuneration – Expatriation allowance – Article 4(1)(a) of Annex VII to the Staff Regulations – Refusal to grant the expatriation allowance – Habitual residence – Period of training)

In Case T‑389/20,

KO, represented by S. Rodrigues and A. Champetier, lawyers,

applicant,

v

European Commission, represented by T. Bohr and A.‑C. Simon, acting as Agents,

defendant,

ACTION under Article 270 TFEU for annulment of the decision of the Commission’s Office for the Administration and Payment of Individual Entitlements (PMO) of 18 October 2019 refusing to grant the applicant the expatriation allowance,

THE GENERAL COURT (Fourth Chamber),

composed of S. Gervasoni (Rapporteur), President, L. Madise and R. Frendo, Judges,

Registrar: E. Coulon,

gives the following

Judgment

 Legal framework

1        Article 69 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), applicable by analogy to temporary staff pursuant to Article 20 of the Conditions of Employment of Other Servants of the European Union, provides:

‘The expatriation allowance shall be equal to 16% of the total of the basic salary, household allowance and dependent child allowance to which the official is entitled. The expatriation allowance shall not be less than EUR 538,87 per month.’

2        Article 4 of Annex VII to the Staff Regulations, also applicable by analogy to temporary staff pursuant to Article 21 of the Conditions of Employment of Other Servants of the European Union, is worded as follows:

‘1.      An expatriation allowance equal to 16% of the total of the basic salary, household allowance and dependent child allowance paid to the Established Official shall be paid:

(a)      to officials:

–        who are not and have never been nationals of the State in whose territory the place where they are employed is situated, and

–        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 that State. For the purposes of this provision, circumstances arising from work done for another State or for an international organisation shall not be taken into account;

…

2.      An official who is not and has never been a national of the State in whose territory he is employed and who does not fulfil the conditions laid down in paragraph 1 shall be entitled to a foreign residence allowance equal to one quarter of the expatriation allowance.’

 Background to the dispute

3        The applicant, KO, a Bulgarian national, has since 1 September 2019 held duties within the Directorate-General for Migration and Home Affairs of the European Commission in Brussels (Belgium), as a member of the temporary staff.

4        The applicant left Bulgaria in September 2010 to pursue her studies in Bruges (Belgium).

5        Between her studies in Bruges and her entry into service at the Commission, the applicant, while remaining registered in the municipal registers of several towns in Belgium, carried out the following activities and resided in the following locations:

–        from September 2010 to June 2011: studies in Bruges;

–        from July to September 2011: returned to Bulgaria;

–        from October 2011 to February 2012: traineeship at the Commission in Brussels;

–        from March to September 2012: traineeship at company A in Brussels;

–        from March to September 2013: traineeship at company B in Brussels;

–        from September 2013 to September 2014: interim work at company C in Brussels;

–        from October 2014 to March 2016: interim work at the Commission in Brussels;

–        from October 2016 to February 2018: contract agent at the Commission in Brussels;

–        from April 2018 to August 2019: seeking employment in Brussels, which is the place of residence declared by the applicant when she entered into service on 1 September 2019.

6        Following that entry into service, the Office for the Administration and Payment of Individual Entitlements (PMO) of the Commission, by decision of 18 October 2019, refused to grant the applicant the expatriation allowance (‘the contested decision’).

7        On 25 November 2019, the applicant lodged a complaint against the contested decision.

8        The Commission rejected that complaint by decision of 20 March 2020.

 Procedure and forms of order sought

9        By application lodged at the Court Registry on 23 June 2020, the applicant brought the present action. The Commission lodged its defence on 9 September 2020. The reply and the rejoinder were lodged on 12 November 2020 and 7 January 2021, respectively.

10      Having received an application made by the applicant on the basis of Article 66 of the Rules of Procedure of the General Court, the Court omitted that party’s name in the public version of the present judgment.

11      The General Court (Fourth Chamber) decided, pursuant to Article 106(3) of the Rules of Procedure, to rule on the action without an oral part of the procedure.

12      The applicant claims that the Court should:

–        annul the contested decision and the decision rejecting her complaint;

–        order the Commission to pay the costs, even if the action is dismissed.

13      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

14      It should be borne in mind at the outset that, according to settled case-law, claims for annulment formally directed against a decision rejecting a complaint have the effect, where that decision lacks any independent content, of bringing before the Court the act against which the complaint was submitted (judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8, and of 6 April 2006, Camós Grau v Commission, T‑309/03, EU:T:2006:110, paragraph 43).

15      In the case at hand, the decision rejecting the complaint lacks any independent content, since it merely confirms the contested decision and sets out its reasoning by responding to the applicant’s criticisms of it. The claim for annulment must therefore be regarded as being directed solely against the contested decision, the legality of which must, however, be examined taking into account the statement of reasons contained in the decision rejecting the complaint, which is deemed to be the same as that of the contested decision (see, to that effect, judgments of 9 December 2009, Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paragraphs 58 and 59, and of 16 January 2018, SE v Council, T‑231/17, not published, EU:T:2018:3, paragraph 22).

16      The applicant puts forward two pleas in law in support of her claim for annulment of the contested decision. The first plea alleges infringement of Article 69 of the Staff Regulations and of Article 4(1) and (2) of Annex VII to the Staff Regulations and the second alleges breach of the principle of good administration and of the duty of care.

 First plea: infringement of Article 69 of the Staff Regulations and of Article 4(1) and (2) of Annex VII to the Staff Regulations

17      It is settled case-law that the purpose of the expatriation allowance is to compensate staff members 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 (see judgment of 24 January 2008, Adam v Commission, C‑211/06 P, EU:C:2008:34, paragraph 38 and the case-law cited; judgment of 13 July 2018, Quadri di Cardano v Commission, T‑273/17, EU:T:2018:480, paragraph 44).

18      The reason why Article 4(1)(a) of Annex VII to the Staff Regulations, for the purpose of determining cases of expatriation, is based on the concepts of the habitual residence and main occupation of the staff member on the territory of the State of employment during a certain reference period is in order to lay down simple, objective criteria to cover the situation of staff members who are obliged, as a result of taking up employment with the European Union, to change their place of residence and to integrate themselves in their new environment (judgments of 31 May 1988, Nuñez v Commission, 211/87, EU:C:1988:275, paragraph 10; of 8 April 1992, Costacurta Gelabert v Commission, T‑18/91, EU:T:1992:56, paragraph 42; and of 30 June 2005, Olesen v Commission, T‑190/03, EU:T:2005:264, paragraph 61).

19      According to the case-law, it is sufficient for only one of the criteria set out in Article 4(1)(a) of Annex VII to the Staff Regulations to be met, that is to say, for a staff member to have either his or her habitual residence or his or her main occupation in his or her place of employment for him or her not to receive the expatriation allowance (see judgment of 28 February 2019, Pozza v Parliament, T‑216/18, not published, EU:T:2019:118, paragraph 29 and the case-law cited). It is apparent from the wording and purpose of the provision in question that the expatriation allowance must be granted only where none of the situations referred to therein is established. Therefore, the staff member can claim that allowance only if he or she has not habitually resided or carried on his or her main occupation in the State of his or her place of employment during the reference period (see judgment of 28 February 2019, Pozza v Parliament, T‑216/18, not published, EU:T:2019:118, paragraph 30 and the case-law cited).

20      The case-law has also made it clear that the expatriation allowance is refused only if the habitual residence or main occupation in the country of employment lasted throughout the five-year reference period (see, to that effect, judgments of 14 December 1995, Diamantaras v Commission, T‑72/94, EU:T:1995:212, paragraph 48, and of 28 November 2019, Wywiał-Prząda v Commission, T‑592/18, EU:T:2019:820, paragraph 23).

21      It is also settled case-law that it is for the staff member concerned to show that the conditions laid down in Article 4(1) of Annex VII to the Staff Regulations are met (see, to that effect, judgments of 27 September 2000, Lemaître v Commission, T‑317/99, EU:T:2000:218, paragraph 48, and of 13 September 2005, Recalde Langarica v Commission, T‑283/03, EU:T:2005:315, paragraph 142).

22      It should be recalled that the Commission refused in this case to grant the applicant the expatriation allowance on the following grounds:

–        the applicant is a Bulgarian national and her place of employment is in Belgium, which entails verification of the conditions laid down in Article 4(1)(a) of Annex VII to the Staff Regulations;

–        the five-year reference period runs from 1 March 2012, taking into account the disregarding of the two-year period of activity as a contract agent in the service of the Commission (see paragraph 5, second-last indent, above), until 1 March 2019, or six months before the entry into service at issue;

–        the applicant resided continuously in Belgium during the reference period and carried out paid professional activities there.

23      It is appropriate to approve the fixing of the reference period as running from 1 March 2012 to 1 March 2019. The applicant, moreover, does not dispute this, nor does she dispute the continuity of her residence in Belgium during that period. She also acknowledges having carried out an activity in Belgium as an interim worker between September 2013 and March 2016, including several months in the service of the Commission through employment contracts with interim agencies (see paragraph 5, seventh indent, above), those circumstances of an interim agency worker supplied to an EU institution having been considered, rightly, not to amount to circumstances ‘arising from work done for an international organisation’ within the meaning of Article 4(1)(a) of Annex VII to the Staff Regulations (see, to that effect, judgment of 13 July 2018, Quadri di Cardano v Commission, T‑273/17, EU:T:2018:480, paragraph 68).

24      The applicant disputes, however, that the traineeships carried out at companies A and B between March 2012 and September 2013 (together, the ‘two traineeships at issue’) can be taken into account as a habitual residence or as a principal professional activity in Belgium. She argues in that regard that those periods of training followed and were linked to her education and, therefore, do not give rise to a presumption that she intended to move the centre of her interests to Belgium.

25      It should be noted in that regard that, in the decision rejecting the complaint, the Commission referred in a general manner to the applicant’s residence and work in Belgium (see paragraph 22, second indent, above), without specifying whether the two traineeships at issue had been taken into account as her habitual residence or as attesting to her principal professional activity in that State. The fact remains that the Commission mainly referred, in that decision, to the criterion of habitual residence, in particular by citing the case-law relevant in that regard, and concluded that the applicant had habitually resided in Belgium during the reference period before confirming the refusal of the expatriation allowance. It is therefore appropriate to begin by examining whether the Commission was right to consider that the applicant had her habitual residence in Belgium during the reference period.

26      It should be borne in mind that, according to settled case-law, the concept of habitual residence corresponds to the place 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 and, in particular, the actual residence of the person concerned must be taken into account (judgments of 15 September 1994, Magdalena Fernández v Commission, C‑452/93 P, EU:C:1994:332, paragraph 22, and of 3 May 2001, Liaskou v Council, T‑60/00, EU:T:2001:129, paragraph 53). Thus, as the applicant pertinently observes, 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 (judgments of 16 May 2007, F v Commission, T‑324/04, EU:T:2007:140, paragraph 48, and of 13 July 2018, Quadri di Cardano v Commission, T‑273/17, EU:T:2018:480, paragraph 48).

27      It is therefore appropriate to determine in the present case whether the two traineeships at issue carried out by the applicant in Brussels make it possible to establish, combined with her actual residence in that city – which is undisputed and, moreover, established by a residence certificate – that she set up the permanent or habitual centre of her interests there.

28      It is apparent from the case-law that, in so far as, at the present time, university education includes or is frequently followed by a period of additional education or training abroad, the mere fact of residing in a foreign country as a trainee does not give grounds for presuming the existence of an intention to transfer the permanent or habitual centre of a person’s interests. On the other hand, where such a period of study and training is followed by a period of employment in the same place, the continuous presence of the person concerned abroad may create the presumption of a possible intention on his or her part to transfer the permanent or habitual centre of his or her interests there and thus his or her habitual residence. However, that presumption may be rebutted where other factors deriving from professional or personal circumstances relating to the person concerned show that he or she has retained the permanent or habitual centre of his or her interests in his or her country of origin (see, to that effect, judgments of 25 October 2005, Salvador García v Commission, T‑205/02, EU:T:2005:368, paragraphs 71 and 72; of 15 October 2020, Karpeta-Kovalyova v Commission, T‑249/19, not published, under appeal, EU:T:2020:490, paragraph 78; and of 20 January 2016, Proia v Commission, F‑61/15, EU:F:2016:2, paragraph 50).

29      In the first place, the applicant disputes the formation of such a presumption in the present case. She states, in that regard, that she returned to Bulgaria between the end of her studies in Belgium and the beginning of the two traineeships at issue in order to seek employment there. She also states, first, that her place of residence prior to the start of the reference period is irrelevant, especially since that residence corresponded to a traineeship at the Commission, which cannot be taken into account for the purposes of the grant of the expatriation allowance and, second, that she changed accommodation a number of times between 2011 and 2013. The applicant emphasises, last, that her intention to transfer the permanent centre of her interests to Belgium during the period of study cannot be assessed ex post facto in the light of the facts which occurred after the end of that period.

30      It should be recalled, first of all, that, before the beginning of the reference period, the applicant completed her studies in Bruges (until June 2011) and then stayed in Bulgaria for approximately three months, before commencing a traineeship at the Commission in Brussels (between October 2011 and February 2012), the end of which marks the start of the reference period (1 March 2012). The two traineeships at issue in Brussels were followed, during that reference period, by a period of approximately three months during which the applicant remained in Belgium, and then by various periods of employment in Brussels (see paragraph 5 above).

31      It is important to bear in mind, next, that, although the data relating to a period prior to the reference period cannot play a decisive role in the question of whether the person concerned is entitled to the expatriation allowance, they constitute important factual elements which must be taken into consideration together with other relevant facts. They can inter alia contribute to proving that the reference period is part of a continuity as regards the presence and professional activity of the applicant in a given State (see judgments of 16 May 2007, F v Commission, T‑324/04, EU:T:2007:140, paragraph 67 and the case-law cited, and of 15 March 2011, Mioni v Commission, F‑28/10, EU:F:2011:23, paragraph 23 and the case-law cited). Moreover, the applicant herself argues that she returned to Bulgaria between the end of her studies in Bruges and the start of her traineeships Brussels – a return which took place before the start of the reference period – in order to deny the presumption that the centre of her interests moved to Belgium.

32      In this case specifically, however, other than a summer stay in Bulgaria following the end of her studies (see paragraph 33 below), the applicant was resident and registered in the municipal registers and was a trainee and then employed in the country of her studies continuously after the end of those studies, from before the start of the reference period until the employment which gave rise to the refusal of the expatriation allowance, that is to say, from September 2010, from which it may be presumed, in accordance with the case-law cited in paragraph 28 above, that she intended to set up the permanent or habitual centre of her interests in Belgium, including at the time of the two traineeships at issue.

33      First, that consideration is not called into question by the applicant’s short stay in Bulgaria, corresponding to the summer period following the end of her studies (July to September 2011). That stay, after all, may be regarded as having been provisional from the outset, since the applicant was offered from the start of that summer stay, on 8 July 2011, the traineeship at the Commission in Brussels that she started in October 2011 and for which she therefore would have applied before her departure for Bulgaria. In addition, such a stay in Bulgaria attests to the social and family ties maintained by the applicant with her native country, which are the normal ties which people retain with the country in which their parents live and where they have lived (see, to that effect, judgment of 16 May 2007, F v Commission, T‑324/04, EU:T:2007:140, paragraph 87). It thus cannot suffice to call into question the continuity between the period of study and the traineeship at the Commission begun in October 2011 and the two traineeships at issue which followed, especially since traineeships at the Commission are intended to be a period of specialisation supplementing either a university course or the knowledge necessary for the exercise of a post (judgment of 30 January 2014, Ohrgaard v Commission, F‑151/12, EU:F:2014:8, paragraph 43).

34      It should be pointed out, in that regard, that the fact that the first traineeship following the end of the applicant’s studies was carried out at the Commission and thus corresponds to work done for an international organisation not to be taken into account for the purposes of applying Article 4(1)(a) of Annex VII to the Staff Regulations cannot prevent the Court from assessing the applicant’s degree of integration in Belgium, among other factors, in the light of that situation (see, to that effect, judgment of 3 May 2001, Liaskou v Council, T‑60/00, EU:T:2001:129, paragraph 61) and, in the case at hand, from taking it into account for the abovementioned continuity of periods of study, training and employment in Belgium.

35      Moreover, even if the applicant had returned to Bulgaria to seek employment there as she claims, it must be pointed out that she provides no evidence to prove it, that that claim is contradicted by the traineeship offer of July 2011 (see paragraph 33 above) and that, in any event, those unsuccessful steps at finding employment in Bulgaria correspond at most to a very hypothetical prospect of transferring the permanent centre of the applicant’s interests to that country, which must be supported by other evidence to establish such a transfer (see, to that effect, judgment of 15 March 2011, Mioni v Commission, F‑28/10, EU:F:2011:23, paragraph 33), which is not the case here.

36      It is also important to point out that, contrary to what the applicant claims on the basis of the judgment of 20 January 2016, Proia v Commission (F‑61/15, EU:F:2016:2, paragraph 61), as is apparent from paragraphs 32 to 35 above, the foregoing considerations are based on factual elements enabling a continuity of the periods of study and training to be inferred for the purposes of determining the applicant’s habitual residence during the two traineeships at issue and do not seek to establish, as the Commission was criticised for doing in that judgment, the applicant’s habitual residence in Belgium as from the beginning of her studies in the light of facts and circumstances which occurred after the end of the period of study.

37      Second, the formation of the presumption of habitual residence in the State in which the applicant’s periods of study, training and employment followed one another is not called into question by the fact that she has lived in a plurality of dwellings in Belgium, either. Such a plurality has certainly been considered, in certain circumstances, as evidence of the absence of a desire to give a stable character to the residence in that State (see, to that effect, judgments of 18 June 2015, Pondichie v Commission, F‑50/14, EU:F:2015:62, paragraph 41, and of 20 January 2016, Proia v Commission, F‑61/15, EU:F:2016:2, paragraphs 52 to 54). However, the circumstances of the present case do not denote the temporary and precarious nature of successive dwellings used by the EU Courts to make such an inference.

38      Indeed, during the period in which she completed the two traineeships at issue, that is to say, between March 2012 and September 2013, the applicant changed her place of residence for the first time between the two traineeships. However, in so far as that change occurred when she had been occupying the previous dwelling for more than a year and had prospects of continuing her activities in Brussels, as evidenced by her signing of the agreement for the second traineeship prior to the move in question, it does not introduce any element of instability to her residence in Brussels. The applicant moved a second time approximately four months later, while her second traineeship was still in progress, to rent a dwelling which she then occupied for more than five years, which does not, as such, make it possible to link that move to an uncertainty as to the sustainability of her presence in Brussels. Furthermore, the leases concerned not having been produced (see paragraph 21 above), it is not possible to establish either their short duration or that they relate to precarious accommodation, in particular the conditions of occupation of that dwelling.

39      Third, it is irrelevant that the applicant was inactive between 1 March 2012 and the start of her traineeship at company A on 26 March 2012 and that the two traineeships at issue were not followed by jobs at the companies concerned during the reference period, as she claims in the reply.

40      It may be noted, after all, that the applicant remained in Belgium during that period of inactivity and that she does not claim – let alone prove – that she took any steps to leave that country, in particular by seeking work outside it (see, to that effect, judgment of 15 October 2020, Karpeta-Kovalyova v Commission, T‑249/19, not published, under appeal, EU:T:2020:490, paragraph 76). Moreover, the presumption of habitual residence in the country where periods of study, training and employment follow one another is based on the temporal continuity between those different periods, which is liable to attest to a stability of the centre of a staff member’s interests, and not on their material correlation which would result from obtaining employment at the entity at which a traineeship has been previously carried out.

41      In the second place, the applicant submits that a number of factors are such in this case as to rebut the presumption of habitual residence in Belgium during the two traineeships at issue, including the facts that she remained registered in the Bulgarian administrative register of civic and electoral rights and was affiliated to the Bulgarian public health insurance scheme until the end of 2012.

42      As for the applicant’s continued inclusion in the Bulgarian administrative register of civic and electoral rights, it is settled case-law that such a link of a staff member with his or her native country corresponds to the normal ties which people retain with the country where they have lived for a long time, but that it does not, as such, establish that the habitual residence is in that country (see, to that effect, judgment of 25 October 2005, De Bustamante Tello v Council, T‑368/03, EU:T:2005:372, paragraph 62 and the case-law cited).

43      As regards the applicant’s continued affiliation to the Bulgarian health insurance scheme, it is apparent from the case-law that remaining covered by the sickness insurance scheme in one’s country of origin does not in itself prove that the permanent centre of a staff member’s interests is still in that country. While revealing lasting ties with the country, that purely formal element is not in fact capable of proving effective residence there (see, to that effect, judgments of 3 May 2001, Liaskou v Council, T‑60/00, EU:T:2001:129, paragraph 63, and of 16 May 2007, F v Commission, T‑324/04, EU:T:2007:140, paragraphs 75 and 76). It may be noted, moreover, that that affiliation ended at the beginning of the second traineeship, which is an indication of the applicant’s wish to move the centre of her interests to Belgium.

44      It follows from all the foregoing that the Commission was right to take the view that the applicant had fixed the habitual centre of her interests in Belgium, including during the two traineeships at issue, and that her habitual residence was established there during the reference period.

45      That conclusion is not called into question by the fact, alleged by the applicant, that the Commission granted her the expatriation allowance upon her first entry into service at the Commission in 2016, which according to her shows that she was not habitually resident in Belgium before that date. In the absence of continuity of the various contracts concluded between a staff member and the EU institutions and bodies which employ him or her successively, the determination of the pecuniary rights of the person concerned, including entitlement to the expatriation allowance, must be made each time he or she enters into service with a new employer. Consequently, the reference period and the facts relevant to the examination of the conditions under Article 4(1)(a) of Annex VII to the Staff Regulations are different for each contract. In those circumstances, upon entering into service with an institution, the person concerned cannot rely on previous decisions concerning the expatriation allowance (judgment of 13 July 2018, Quadri di Cardano v Commission, T‑273/17, EU:T:2018:480, paragraph 112). Specifically in the present case, as the Commission appositely points out, the reference period taken into account in 2016, which is different from that used in 2019, included, in particular, a period during which the applicant was residing in Bulgaria before the start of her studies in Belgium (see also paragraph 36 above).

46      It follows, moreover, that, in so far as the Commission correctly considered that the applicant had her habitual residence in her place of employment during the reference period, there is no need to examine whether she had also carried out her principal professional activity there during that period, having regard to the alternative nature of the criterion of habitual residence and that of the principal professional activity referred to in Article 4(1)(a) of Annex VII to the Staff Regulations (see paragraph 19 above).

47      The first plea must therefore be rejected, without it being necessary, in any event, to examine the arguments relating to the exercise of the applicant’s principal professional activity in Belgium during the reference period and, in particular, to the classification of the two traineeships at issue as such.

 Second plea: breach of the principle of good administration and of the duty of care

48      The applicant submits that, contrary to the requirements laid down by Article 41 of the Charter of Fundamental Rights of the European Union, the Commission did not take into consideration all the relevant factors likely to determine the grant of the expatriation allowance, including the fact that the two traineeships at issue corresponded to periods of training and not to periods of professional activity. She also claims that the change of the Commission’s position from granting her the expatriation allowance in 2016 and refusing it to her in 2019, taking into account the same periods of training, does not reflect a fair treatment of her file.

49      It should be noted, as a preliminary point, that it is apparent from the examination of the first plea that the Commission was entitled, without infringing Article 4(1)(a) of Annex VII to the Staff Regulations, to refuse to grant the applicant the expatriation allowance in 2019 on the basis of her habitual residence in Belgium during the reference period, even though it had granted her that allowance in 2016.

50      It is settled case-law that the balancing of the interests of the service and the interests of the staff member concerned entailed by the administration’s duty of care towards its staff cannot apply where the administration has circumscribed powers and correctly applies a provision fixing pecuniary rights (see, to that effect, judgment of 16 May 2007, F v Commission, T‑324/04, EU:T:2007:140, paragraphs 168 to 170, and of 19 December 2019, Wehrheim v ECB, T‑100/18, not published, EU:T:2019:882, paragraph 87). Thus, the applicant cannot invoke the duty of care in order to obtain advantages which the abovementioned provision of the Staff Regulations does not allow her to obtain. It should be pointed out, in that regard, that, in view of the alternative nature of the criteria taken into account by that provision and the correct finding that the applicant was habitually resident in Belgium during the reference period, the Commission was not required to verify, moreover, whether she had carried out her principal professional activity there during that period and, in particular, whether the two traineeships at issue corresponded to such a principal professional activity.

51      Furthermore, as has been stated in paragraph 45 above, in view of the different reference periods taken into account in 2016 and 2019, the Commission cannot be accused of an unfair change of position contrary to Article 41(1) of the Charter of Fundamental Rights.

52      It follows that the second plea must be rejected.

53      It also follows that the present action must be dismissed.

 Costs

54      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, that provision must be applied by ordering her to pay the costs, in accordance with the form of order sought by the Commission, and not by ordering the Commission to pay all the costs pursuant to Article 135(2) of the Rules of Procedure, as the applicant claims. The emergence of the present dispute is not attributable to the conduct of the Commission, that institution having complied with EU rules, as is apparent from the foregoing considerations (see, to that effect, judgment of 26 April 2018, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑752/15, not published, EU:T:2018:233, paragraphs 175 to 178 and the case-law cited).

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders KO to pay the costs.

Delivered in open court in Luxembourg on 14 July 2021.

[Signatures]

* Language of the case: English.

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