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Judgment of the Court of First Instance (Third Chamber) of 15 July 2004. # Fernando Valenzuela Marzo v Commission of the European Communities. # Officials. # Case T-384/02.

ECLI:EU:T:2004:239

62002TJ0384

July 15, 2004
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(Officials – Pay – Installation allowance – Article 9(3) of Annex VII to the Staff Regulations – Period of one year)

Full text in French II - 0000

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

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

Summary

(Staff Regulations, Art. 91(1))

(Staff Regulations, Art. 91(1))

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

(Staff Regulations, Art. 91)

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

(see para. 32)

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

(see para. 36)

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

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

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

(see paras 81-83, 104)

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

(see para. 98)

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

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

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

(see paras 119-120, 122)

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