FOCUS : The installation and resettlement allowance

The EU Staff Regulations provide for the possibility of paying an installation allowance to officials who are required to relocate in order to work within an institution (art. 5 of Annex VII of the Staff Regulations). The purpose of this allowance is to enable officials who have had to change their place of residence in order to meet their professional obligations in covering the inevitable expenses related to integrating into a new workplace for a substantial period (FH / Parliament, F-26/15). It should be noted, however, that the costs directly associated with the relocation process itself are subject to another specific reimbursement.

The amount of the installation allowance corresponds to one month’s basic salary if the official is not entitled to the household allowance, or two months if he or she is entitled to it. When two officials are spouses and are entitled to this compensation, it will be paid only to the person with the higher basic salary.

If the official voluntarily leaves the service within two years of joining the Institutions, part of the installation allowance will have to be repaid in proportion to the part of the period still to run.

In addition, in order to avoid accumulation with other allowances, the official is obliged to declare any other sums received enabling him to offset the costs associated with his installation. If this is the case, it must be deducted from the amount of the installation allowance.

Finally, if an official who is entitled to a household allowance does not settle with his family in the place where he is employed, he will only receive half of the installation allowance to which he would normally be entitled. The second half may be paid if the family moves to the place of employment within three years.

The European legislator provided for the payment of the installation allowance also to temporary agents on the premise that, even without the job security of a permanent official, temporary agents whose foreseeable working time is at least one year may want to integrate into their place of employment in a permanent and lasting way. It is with the aim of meeting the costs resulting from the effort made with a view to such integration that the installation allowance is paid, even if only partially in the case of a foreseeable period of employment of less than three years (Baniel-Kubinova and Others / Parliament, F-131/07).

The resettlement allowance is paid to civil servants when they leave the service. The purpose of this allowance is to offset the costs that the former official has had to bear as a result of changing his or her main residence after leaving the service.

As with the installation allowance, it is equal to two months’ basic salary if the official is entitled to the household allowance, and one month’s basic salary if he or she is not entitled to this allowance, provided that the official has completed four years’ service and is not entitled to a similar allowance in his or her new job.

As in the case of the installation allowance, where both spouses are official or other staff members, the resettlement allowance will only be paid to the person with the higher basic salary.

The allowance is paid on production of proof that the official has resettled in a locality at least 70 km from his or her place of employment within three years of leaving the service.

In order to qualify for this allowance, there must be an actual transfer of the official’s habitual residence to the new location indicated as the place of resettlement.

As regards the burden of proof, it is for the official to establish, by any legal means, that he has actually changed residence within three years of leaving the service (W / Parliament, T-69/03).

Case-law : Family allowances and dependent children

In a judgment of 18 October 2023 (RN / EUIPO, T-606/22), the General Court of the European Union recalls certain principles relating to the entitlement to family allowances of a child over 18 years of age within the meaning of Article 2(3)(b) of Annex VII to the Staff Regulations of Officials of the European Union.

In the present case, the claimant asked the EUIPO to pay the household allowance, the dependent child allowance and the education allowance for his over 18 years old child, following a judgment of 28 November 2021 by the Tribunale di Roma, prima sezione civile, according to which parents must provide direct maintenance for their child during the period when the latter is with each of them, without, however, claiming that custody of the child is shared between them.

Firstly, it should be remembered that family allowances consist of a household allowance, a dependent child allowance and an education allowance.

Even if these allowances are paid to the official, they are not intended for his or her own maintenance, but for that of the children or family members in his or her care. In this respect, it is important to establish who is actually maintaining the person for whom these allowances are paid.

With regard to the household allowance, the Court points out that divorced or legally separated civil servants with one or more dependent children are entitled to the household allowance. By way of derogation, this allowance is paid, on behalf of and in the name of the official, to the other parent if the adult children habitually reside with the latter and he or she is responsible for their maintenance. Case law has specified that the decisive factor in granting the household allowance is the fact that the official has to assume additional burdens due to the fact that he or she has to support his dependants (Pavan / Parliament, T-147/95).

As for dependent child allowances, they may be paid, under legal provisions or by decision of a court or administrative authority, to the care of another person, on behalf of and in the name of the official. Like the household allowance, this is based on the actual maintenance of a child. This is defined as the actual provision of all or part of the child’s basic needs, including accommodation, food, clothing, education and healthcare. Thus, when an official effectively takes charge of the essential needs of his spouse’s child, for example, he will be considered to be effectively maintaining that child and, consequently having the child in his or her care (Meyer / Commission, F-90/14).

Finally, an official may also receive an education allowance for each dependent child over the age of five attending a fee-paying school or university. In accordance with the general implementing provisions relating to the granting of this allowance, school fees cover the costs of enrolment and attendance at educational establishments.

In order to determine that the official is effectively responsible for the maintenance of his or her child, the authorities may rely on various types of evidence, such as declarations from the child or the parents, enrolment in a school, proof of payment of school fees by a parent, etc.

If a national court rules on the child’s residence, in this case the Court of Rome, it may allow the Appointing Authority to pay the allowance to the person who has custody of and maintains the child. However, the judge pointed out that a national court decision cannot rule on the terms and conditions of payment of the household allowance for officials. The European administration cannot make a payment outside the conditions expressly set out in the EU Staff Regulations, which are general and binding in all Member States.

In the present case, the Italian Court’s judgment merely stated that the applicant’s child resided with both parents, without them sharing custody, and that they had to support him directly. In the light of the various factors brought to the EUIPO’s attention, the Appointing Authority rightly held that the parent entitled to family allowances is the one where the child resides and who mainly contributes to the child’s various expenses, in particular those relating to his or her schooling.

BELGIAN LAW: PAYMENT FRAUD : PHISHING / SMISHING / VISHING … WHO IS RESPONSIBLE FOR WHAT?

Phishing” is a form of fraud perpetrated by e-mail, SMS, Messenger, WhatsApp, etc. (known as “smishing” or, in the case of voice mail, “vishing”) or other means of online communication in which hackers attempt to obtain the personal data of Internet users with a view to using it fraudulently.

With a view to protecting consumers who hold payment instruments (mainly bankcards and mobile payment applications), particularly against their abusive uses, the European legislator has drawn up various rules to determine who should bear the economic consequences of a payment made as a result of fraudulent manoeuvres by third parties.

When the security of a payment instrument appears to be compromised, in the event of theft or loss of a card, or leakage of data linked to an account or a card, it is the responsibility of the user of the payment instrument to notify his bank without delay, and CardStop, on +32.78.170.170 in order to block the means of payment in question. Any payment made after the customer has notified his bank will be charged to the latter. On the other hand, for all payment transactions that took place before this notification, the cost of these amounts, if they cannot be recovered from the beneficiary, is shared to varying degrees and subject to certain conditions.

With regard to the distribution of the economic consequences of card fraud, as a general rule, when a payment transaction is deemed to be “unauthorised”, it must be reimbursed by the bank to the account holder, subject to an excess of EUR 50.00, which remains payable by the customer. This excess would be reduced to zero if the holder of the payment instrument could not detect the loss, theft or misappropriation of the instrument prior to payment.
There are a few exceptions to this rule, the most notable being “serious negligence” on the part of the holder of the payment instrument. In this case, the customer will have to bear the full cost of the loss, and will be responsible for finding and prosecuting the perpetrator and claiming reimbursement. Serious negligence has been affirmed in certain cases, such as the use of a pin code that is partially identical to the telephone unlock code, the choice of a secret code that is linked to the account holder’s date of birth, or the fact of having written down the codes on the card or close to it.

In this respect, it should be noted that there are some discussions on the distinction between an “authorised” payment transaction (which does not give rise to any compensation) and an “unauthorised” transaction (which gives rise to the application of the regime described above). In payment services law, the notion of authorisation does not have the usual meaning that might be given to it. In fact, a transaction may be perfectly authorised by the holder of a payment instrument, even though he is unaware that he is in fact paying unspecified amounts to a fraudster. Under the law, authorisation is given by the holder of the payment instrument as soon as he complies with the “digital signature” procedure agreed with the bank.
In order to further strengthen consumer protection against fraud and to better understand the boundary between authorised and unauthorised transactions, the European institutions are preparing new instruments of European law, although these changes will not result in banks being held objectively liable in all cases where a customer disputes a payment transaction made in compliance with the procedure agreed between the customer and his bank.