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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Salazar Brier v Commission (Staff Regulations) [2007] EUECJ C-9/06 (29 November 2007) URL: https://www.bailii.org/eu/cases/EUECJ/2007/C906.html Cite as: ECLI:EU:C:2007:726, [2007] EUECJ C-9/6, [2007] EUECJ C-9/06, EU:C:2007:726 |
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(Appeals Officials Remuneration Expatriation allowance Condition laid down by Article 4(1)(a), second indent, of Annex VII to the Staff Regulations Concept of 'work done for another State')
In Case C-9/06 P,
APPEAL under Article 56 of the Statute of the Court of Justice, brought on 5 January 2006,
Tomás Salazar Brier, represented by R. García-Gallardo Gil-Fournier, D. Domínguez Pérez and A. Sayagués Torres, abogados,
appellant,
the other party to the proceedings being:
Commission of the European Communities, represented by J. Currall, acting as Agent, assisted by J. Gutiérrez Gisbert, J. Rivas Andrés and M. Canal, abogados, with an address for service in Luxembourg,
defendant at first instance,
composed of K. Lenaerts, Presidents of the Chamber, G. Arestis, R. Silva de Lapuerta, J. Malenovský (Rapporteur) and T. von Danwitz, Judges,
Advocate General: Y. Bot,
Registrar: L. Hewlett, Principal Administrator,
having regard to the written procedure and further to the hearing on 22 March 2007,
after hearing the Opinion of the Advocate General at the sitting on 7 June 2007,
gives the following
Legal context
'(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.
...'
Facts
'3 The applicant, a Spanish national, worked in Brussels from 3 October 1994 to 31 August 1998 for the Sociedad Canaria de Fomento Económico, Sofesa SA (Canary Islands economic development company, 'Sofesa'), a company entrusted with the management of the interests of the autonomous community of the Canary Islands (Comunidad Autónoma de Canarias) and of the representative office of the government of that autonomous community in Brussels. From 3 October 1994 to 3 October 1995, he worked in the office of Sofesa in Brussels under a training contract and, from 15 November 1995 to 31 August 1998, under an employment contract signed on 15 November 1995. The parties do not agree on the actual place of residence and employment of the applicant while the tasks set out in the latter contract were performed.
4 On 1 September 1998 the applicant signed a fixed term contract as a member of the temporary staff of the government of the autonomous community of the Canary Islands, which ended on 31 May 2002. That contract provided for the secondment of the applicant to Brussels. However, the parties do not agree on the actual place of residence and employment of the applicant during the first 10 months of the performance of that contract.
5 On 1 June 2002, the applicant took up his duties at the Commission as an official. The period of five years referred to in the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations for the purposes of payment of the expatriation allowance, termed 'the reference period', was, in the present case, between 1 December 1996 and 30 November 2001.
6 On 6 June 2002, the applicant had an interview with the Directorate-General (DG) Personnel and Administration to determine his rights and to complete his individual record sheet on entering the service. During that meeting, he was informed verbally that the expatriation allowance could not be paid to him. The individual record sheet drawn up on 25 July 2002 also showed that he was refused the allowance.
7 By letter registered on 24 October 2003, the applicant lodged a complaint under Article 90(2) of the Staff Regulations, against the record sheet of 25 July 2002
8 On 24 February 2003, that complaint was the subject of an implied rejection.
9 On 24 March 2003, the Commission adopted an express decision rejecting the applicant's complaint.'
The procedure before the Court of First Instance and the judgment under appeal
Forms of order sought in the appeal
annul the judgment under appeal, remit the case back to the Court of First Instance, and
order the Commission to pay the costs both at first instance and on appeal.
dismiss the appeal in its entirety;
order the appellant to pay the costs.
The appeal
Arguments of the parties
Findings of the Court
Admissibility
Merits
Costs
On those grounds, the Court (Fourth Chamber) hereby:
1. Dismisses the appeal;
2. Orders Mr Salazar Brier to pay the costs.
[Signatures]
* Language of the case: Spanish.