More Brexit Consequences: the Situation of British EU Officials Having Acquired Belgian Nationality
02/06/2021

The withdrawal of the United Kingdom (UK) from the European Union (EU) has had – and will still have – numerous legal consequences in various areas. One of the dimensions that have less come under the spotlights concerns the UK nationals recruited by the EU institutions prior to the Brexit. In a judgment of 5 October 2020 (Case T‑18/19, Brown v. Commission), the General Court of the European Union (Luxembourg) held that an EU official with UK nationality, who had acquired Belgian nationality to make sure he could keep his employment with the European Commission in Brussels despite the Brexit, is no longer entitled to an expatriation allowance.

The applicant began working for the Commission in 2001, while he was a UK national only. Upon recruitment, he was granted a monthly expatriation allowance, in accordance with Article 4(1)(a) of Annex VII to the EU Staff Regulations – i.e. the set of rules governing the employment of EU officials. After the UK notified its intention to leave the EU, he applied for Belgian nationality, and obtained it, in 2017. From that moment on, the Commission withdrew his entitlement to the expatriation allowance, because he had obtained Belgian nationality and due to the fact that he had resided in Belgium since 1997 (prior to his entering service). The Commission relied, in this respect, on Article 4(1)(b) of Annex VII to the Staff Regulations.

In his action before the General Court to challenge the validity of the Commission’s decision, the applicant submitted, among other arguments, that Article 4(1)(a) of Annex VII does not allow an official’s entitlement to the expatriation allowance to be reassessed on the ground that he/she has acquired, during the course of his or her career, the nationality of the country where he/she is employed. Article 4(1)(a) provides, in essence, that the allowance shall be paid to officials who are not and have never been nationals of the State where they are employed, and who during the five years ending six months before they entered the service did not habitually reside or carry on their main occupation in that State.

The General Court considered that, since the expatriation allowance is paid on a monthly basis, the administration cannot continue to pay it where an event occurs that substantially alters the situation of the person receiving that benefit in so far as it affects the conditions governing the grant of that allowance – in this case, the condition of not being a national of the country of employment. After recalling that the purpose of the expatriation allowance is to compensate for the extra expense and inconvenience of taking up employment with EU institutions, for officials who are obliged to change their residence to the State of employment, the Court also held that the acquisition of the nationality of the country of employment after entry into service is a specific form of integration in that country, and may constitute a substantial change in circumstances capable of leading to the loss of the expatriation allowance. Therefore, the Commission, according to the Court, did not misinterpret Article 4(1)(a) by finding that the acquisition of Belgian nationality during the course of the applicant’s career triggered the reassessment of his entitlement to the allowance.

The applicant further argued that he was constrained to apply for Belgian nationality – a constraint that would amount to force majeure – because it seemed to him at that time to be the only solution in order to remain employed in the event of the Brexit becoming effective. In this regard, the General Court recognized that, under relevant provisions of the Staff Regulations, officials who cease to fulfil the requirement of being nationals of an EU Member State may indeed be required to resign; and that it is only in 2018 – i.e. after the applicant applied for (and obtained) Belgian nationality – that the Commission decided that it would not exercise its discretion to require resignation by officials with British nationality, except in specific cases. However, the Court rejected the argument based on force majeure: it ruled that it is not apparent that the loss of the expatriation allowance constituted an unreasonable burden, having regard to the full and complete guarantee obtained by the applicant that he would remain employed in the event of the UK’s withdrawal from the EU by acquiring Belgian nationality.

Other pleas by the applicant were rejected as well, which led the General Court to dismiss the action. The applicant has lodged an appeal before the EU Court of Justice, which to date is still pending (Case C-675/20 P).

Zie ook : Monard Law ( Bert Theeuwes ,  Mr. FrĂ©dĂ©ric Dopagne )

[+ http://www.monardlaw.be]

 Bert Theeuwes Bert Theeuwes
Partner
[email protected]
Mr. Frédéric Dopagne Mr. Frédéric Dopagne
Counsel
[email protected]

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