{"id":12806,"date":"2023-12-21T16:34:23","date_gmt":"2023-12-21T15:34:23","guid":{"rendered":"https:\/\/www.daldewolf.com\/the-officil-nov-december-2023-number-89\/"},"modified":"2023-12-21T17:45:26","modified_gmt":"2023-12-21T16:45:26","slug":"the-officil-nov-december-2023-number-89","status":"publish","type":"post","link":"https:\/\/www.daldewolf.com\/en\/the-officil-nov-december-2023-number-89\/","title":{"rendered":"The OFFICI@L \u2013 Nov-\/December 2023 \u2013 Number 89"},"content":{"rendered":"

The OFFICI@L \u2013 nr 89\u00a0 \u2013 Nov-\/December 2023, the new issue of our newsletter, which is dedicated to EU civil servants, has just been published. It is available in English and French.<\/b><\/p>\n<\/div><\/div>

EDITO<\/h1>\n

Dear Readers,<\/em><\/p>\n

The concluding edition of 2023 focuses on the expatriation allowance<\/a>, accompanied by an analysis of a decision made by the EU General Court regarding the pension rights of parliamentary assistants<\/a>.<\/em><\/p>\n

We consider this newsletter as much yours as ours and are open to any ideas you might have for upcoming editions. Feel free to reach out to us via\u00a0e-mail at \u00a0theofficial@daldewolf.com<\/a><\/em><\/p>\n

We trust you will find this issue informative and wish you a joyous holiday season!<\/em><\/p>\n

The DALDEWOLF team<\/em><\/p>\n<\/div><\/div><\/div><\/div><\/div>

<\/div>
\"\"<\/div><\/div><\/div><\/div><\/div><\/div>

DALDEWOLF<\/strong>
\n– EU Law and Human Rights\u00a0<\/strong><\/em>
\nTHIERRY BONTINCK – ANA\u00cfS GUILLERME – MARIANNE BR\u00c9SART – LUCIE MARCHAL – LAUREN BURGUIN – FEDERICO PATUELLI – LOUISE BOUCHET
\n– Belgian Law<\/strong><\/em>
\nDOMINIQUE BOGAERT<\/p>\n

in partnership with PERSPECTIVES Law Firm<\/strong>:
\n– Family Law<\/strong><\/em>
\nCANDICE FASTREZ<\/p>\n<\/div><\/div>

<\/div><\/div><\/div><\/div><\/div><\/div><\/div><\/div><\/div><\/section>
<\/div>

FOCUS: Expatriation allowance<\/h1>\n

The expatriation allowance is equal to 16% of the total of the basic salary, household allowance and dependent child allowance of the EU official or servant. It is subject to specific criteria defined in Article 69 and Article 4 of Annex VII to the EU Staff Regulations.<\/strong><\/p>\n

Conditions of Eligibility<\/strong><\/h2>\n

Article 4 of Annex VII to the Staff Regulations sets out the eligibility criteria for receiving the expatriation allowance. Two main scenarios are outlined:<\/p>\n

The first scenario pertains to civil servants who do not hold the nationality of their employment state. This group encompasses individuals who have never possessed the nationality of their employment state and have not consistently lived or worked there in the five years leading up to their service commencement (reference period).<\/p>\n

The second scenario involves civil servants who do hold the nationality of their employment state. This category includes individuals who have held the nationality of their employment state but have lived abroad for at least ten years before starting their position, without maintaining substantial professional or social connections with that state.<\/p>\n

Neutralisation periods<\/strong><\/h2>\n

Article 4 of Annex VII introduces a “neutralisation rule”, excluding from the calculation of the reference period periods during which officials worked for other States or international organisations at their place of employment. Proof of a direct legal link with an international organisation or a third country is required to exclude periods worked for these entities from the calculation of the reference period.<\/p>\n

However, the simple condition of a direct link with the State is not always sufficient. For example, the period during which a national judge is seconded by his ministry to work in an international non-profit-making association based in Belgium and operating independently of a permanent representation, without granting privileges or immunities, is not considered to be neutralised (QB v Commission, C-88\/22 P).<\/p>\n

News: the approach of the European Court of Justice<\/strong><\/h2>\n

The courts of the European Union have recently ruled on several occasions on various issues relating to expatriation allowance, illustrating the upheavals in the organisation of everyone’s work.<\/p>\n

In order to determine an official’s eligibility for the expatriation allowance, the Court of the European Union adopts a rigorously factual approach to determine whether the official habitually resided or worked in or outside the territory of the State of employment throughout the reference period.<\/p>\n

This approach is justified by the purpose of the expatriation allowance.\u00a0 In accordance with established case law, this allowance is intended to compensate for the particular burdens and disadvantages resulting from the performance of duties within the European Union for officials who are, as a result, obliged to transfer their residence from their country of domicile to the country of employment and to integrate into a new environment, with which they had no lasting link before taking up their duties. Specifically, the allowance is granted to compensate for the material expenses and moral disadvantages resulting from the fact that the official is far from his place of origin and generally maintains family relations with his region of origin (PP and Others v Parliament, T-39\/21).<\/p>\n

Thus, the General Court closely examined concrete aspects to determine the habitual residence of the recruited official or servant and the intention to reside in the State concerned during the reference period. For example, in Case T-39\/21, where officials teleworked from another Member State during the Covid-19 pandemic, the Court carefully assessed the period of work away from the place of employment and the continuity of the financial burdens borne by the officials at the place of employment in order to establish continued entitlement to the allowance (PP and Others v Parliament, T-39\/21).<\/p>\n

In another case, the General Court considered the fact that the official lived with his family, each of whom engaged in activities corresponding to their respective situations, had a bank account in a specific country and sought employment in that same country to be significant in determining the location of the habitual residence. This approach highlights the importance attached to concrete facts rather than links with another State (LF v Commission, T-466\/20).<\/p>\n

Similarly, in order to establish the main place of work of the person concerned during the reference period, the General Court examined the agreement between the official’s employer and an international non-profit-making association under Belgian law, to which the official devoted a significant proportion of his working time and received substantial remuneration and benefits in kind (QB v Commission, C-88\/22 P), and concluded that the applicant’s main place of work was in the State to which he was assigned.<\/p>\n

To sum up, the allocation of the expatriation allowance for EU officials is dependent on a meticulous evaluation of the circumstances related to regular residence and assimilation in the employment country, to guarantee an equitable implementation of the qualifying conditions.<\/p>\n<\/div>