Case T‑119/17 RENV
Ruben Alba Aguilera and Others
v
European External Action Service
Judgment of the General Court (Fourth Chamber), 12 May 2021
(Civil service – Officials – Members of the temporary staff – Members of the contract staff – Remuneration – EEAS staff posted to a third country – Article 10 of Annex X to the Staff Regulations – Annual assessment of the allowance for living conditions – Decision reducing the allowance for living conditions in Ethiopia from 30% to 25% – Regional coherence – Manifest errors of assessment)
1. Officials – Staff Regulations – General implementing provisions – Obligation to adopt such provisions – Exceptional nature
(Staff Regulations of Officials, Art. 110 and Annex X)
(see paragraphs 48-50)
2. Officials – Remuneration – Financial rules applicable to officials posted to a third country – Allowance for living conditions – Conditions for granting – Annual revision and assessment – No obligation for the institutions to adopt general implementing provisions
(Staff Regulations of Officials, Art. 110 and Annex X, Art. 10)
(see paragraphs 55-57, 59-61)
3. Officials – Staff Regulations – General implementing provisions – Procedure for adopting – No obligation for the authority to seek the opinion of the Staff Regulations committee
(Staff Regulations of Officials, Art. 110)
(see paragraph 62)
4. Plea of illegality – Scope – Measures the illegality of which may be pleaded – General measure providing the basis of the contested decision – Need for a legal connection between the contested measure and the contested general measure – Guidelines for the adoption of the contested decision – Admissibility
(Arts 263 and 277 TFEU)
(see paragraphs 69-77, 79)
5. Officials – Remuneration – Financial rules applicable to officials posted to a third country – Allowance for living conditions – Fixing – Administration's discretion – Judicial review – Limits
(Staff Regulations, Arts 1b(a) and 62 and Annex X, Art. 10; European Parliament and Council Regulation No 1023/2013, recital 27)
(see paragraphs 81, 82, 85, 87, 88, 102-104)
6. Officials – Remuneration – Financial rules applicable to officials posted to a third country – Allowance for living conditions – Fixing – Criteria – Application of the principle of regional coherence prior to the examination of living conditions
(Staff Regulations of Officials, Annex X, Art. 10)
(see paragraphs 90-93)
Resume
The applicants, Mr Ruben Alba Aguilera and others, are officials or agents of the European External Action Service (EEAS) who were posted to Ethiopia when the EEAS adopted the decision revising the amount of the allowance for living conditions (‘the ALC’) paid to agents posted to third countries with effect from 1 January 2016 (‘the contested decision’). (1)
By that decision, the ALC rate applicable to EU staff posted to Ethiopia was reduced from 30% to 25% of the reference amount. That reduction resulted, for the applicants, in the loss of the benefit of rest leave. (2)
In order to challenge the reduction in the ALC rate, the applicants each lodged complaints against the contested decision, in so far as it reduces, with effect from 1 January 2016, the ALC paid to EU staff posted to Ethiopia. Since those complaints were not upheld, the applicants brought an action before the General Court seeking, in essence, annulment of the contested decision.
The Court annuls the contested decision and rules for the first time on the issue of the principle of regional coherence in order to fix the ALC in a place of employment.
Findings of the Court
First of all, the Court rules on the alleged obligation of the EEAS to adopt general implementing provisions concerning Article 10 of Annex X to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), which refers to the ALC. In that regard, the Court considers that, on account of its wording, its objectives and the procedural safeguards which it lays down for the revision of the ALC, each year and after the opinion of the Staff Committee, that article, in so far as it governs the ALC, is not lacking in clarity or precision in order to prevent it from being applied arbitrarily and, therefore, does not require the adoption, exceptionally, of general implementing provisions.
Next, as regards the detailed rules for the application of Article 10 of Annex X to the Staff Regulations, the Court notes that the appointing authority has a broad discretion as regards the factors and elements to be taken into consideration when adjusting the remuneration of officials. As a consequence, the Court holds that the guidelines adopted by the EEAS and establishing the methodology for fixing, in particular, the ALC (‘the Guidelines’), in so far as they take account of the principle of regional coherence, do not infringe Article 10 of Annex X to the Staff Regulations.
In that regard, the Court notes that the principle of regional coherence is intended, in accordance with the purpose of the ALC, to ensure the objectivity of the comparison between the living conditions in the places of employment with those in the European Union, while respecting the purpose of the ALC. The application of that principle is intended to ensure that similar conditions obtaining in two countries situated in the same region are assessed in a similar manner.
Lastly, the General Court rules on the assessment made by the EEAS of the ‘health and hospital environment’ and the ‘other local living conditions’ parameters.
In that connection, the Court notes that the Guidelines provide that the score for the ‘health and hospital environment’ parameter is to be determined on the basis of the comparative Health Map established by International SOS, but does not require the levels on the scale used by that Health Map to correspond to the score to be given for that parameter. Accordingly, the EEAS’s decision to award Ethiopia a score of four points out of a total of five does not exceed the limits of the discretion which the legislature intended to confer on the EEAS in fixing the ALC.
Finally, the General Court ruled on the ‘public services’ criterion which led to a change in the score awarded to the ‘other local conditions’ parameter. In that regard, taking into account, first, the applicants’ arguments that the quality of the public services in Ethiopia did not improve between 2014 and 2015 and, second, the EEAS’s failure to provide any explanation justifying the reduction in the score awarded to that criterion, the Court concludes that the EEAS made a manifest error of assessment with regard to the assessment of that criterion. That error is such as to justify the annulment of the contested decision, given that it was the ‘public services’ criterion that led to a reduction of one point in the score awarded to the ‘other local conditions’ parameter, so that the total score given to Ethiopia fell below the threshold of 14 points required for fixing the ALC rate at 30%.