JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
8 December 2021 (*)
(Civil service – Temporary staff – Remuneration – Expatriation allowance – Article 4(1)(a) of Annex VII to the Staff Regulations – Refusal to grant the expatriation allowance – Main occupation – Work done for another State)
In Case T‑71/21,
QB, represented by R. Wardyn, lawyer,
applicant,
v
European Commission, represented by T. Bohr and A.‑C. Simon, acting as Agents,
defendant,
ACTION under Article 270 TFEU for annulment of the decision of the Commission’s Office for the ‘Administration and Payment of Individual Entitlements’ (PMO) of 6 April 2020 refusing to grant the expatriation allowance to the applicant,
THE GENERAL COURT (Fourth Chamber),
composed of S. Gervasoni (Rapporteur), President, L. Madise and J. Martín y Pérez de Nanclares, Judges,
Registrar: E. Coulon,
gives the following
Judgment
Legal context
1 Article 69 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), applicable by analogy to temporary staff pursuant to Article 20 of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), provides:
‘The expatriation allowance shall be equal to 16% of the total of the basic salary, household allowance and dependent child allowance to which the official is entitled. The expatriation allowance shall not be less than 538.87 EUR per month’.
2 Article 4(1)(a) of Annex VII to the Staff Regulations, also applicable by analogy to temporary staff pursuant to Article 21 of the CEOS, reads as follows:
‘1. An expatriation allowance equal to 16% of the total of the basic salary, household allowance and dependent child allowance paid to the official shall be paid:
‘(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’.
Background to the dispute
3 The European Judicial Training Network (‘the EJTN’) is an international, non-profit association governed by Belgian law. It lacks legal personality and is established in Brussels (Belgium). Its purpose is the development of training programmes with a European dimension for members of the judiciary and for court staff. Member State institutions responsible for training judges and prosecutors or those involved in judicial training at European Union level may become members of the EJTN.
4 From 2005, the applicant, QB, a Polish national, served as a judge in a district court in Poland.
5 From March 2009, pursuant to a decision of the Polish Ministry of Justice, the applicant was seconded to the Krajowa Szkola Sadownictwa i Prokuratury (National School of Judiciary and Public Prosecution, ‘the KSSiP’). The latter is a central state body established by a law which purpose is to train members of the ordinary courts and members of the public prosecutor’s office in Poland.
6 In December 2013, the Polish Ministry of Justice and the EJTN entered into an agreement whereby the applicant, seconded by the KSSiP, was appointed as Secretary General of the EJTN. Regarding the place of performance of his duties, it was anticipated that the applicant’s presence would be required not only at KSSiP’s head office in Poland but also at the EJTN’s premises in Brussels and in any other place where EJTN activities took place or where the applicant’s presence would be regarded as being in the EJTN’s interest.
7 In addition, from 1 January 2014 to 31 December 2019, the applicant held the position of chief specialist within the International Cooperation Centre. He was responsible for ensuring good cooperation with and the implementation of activities stemming from the KSSiP’s membership of the EJTN.
8 The applicant lived with his family in Brussels between 1 January 2014 and 30 June 2019. Following the expiry of his mandate within the EJTN in June 2019, the applicant and his family returned to Poland.
9 On 1 January 2020, the applicant joined the European Commission in Brussels as a member of the temporary staff.
10 By decision of 6 April 2020 (‘the contested decision’), after the applicant had taken up employment within the Commission, the Office for the ‘Administration and Payment of Individual Entitlements’ (PMO) granted the applicant the foreign residence allowance but refused to grant him the expatriation allowance.
11 On 16 June 2020, the applicant requested a mediation with the PMO regarding the expatriation allowance, which the PMO refused.
12 On 3 July 2020, the applicant lodged a complaint against the contested decision in accordance with Article 90(2) of the Staff Regulations.
13 By decision of 3 November 2020 (‘the decision rejecting the complaint’), the authority empowered to conclude contracts of employment for the Commission (‘the AECE’) dismissed that claim. It stated that the reference period of five years preceding the applicant’s entry into service with the Commission was from 1 July 2014 to 30 June 2019. It considered that, throughout that period, the applicant had performed the duties of Secretary General of the EJTN in Brussels. It stated that the applicant was not disputing the PMO’s finding that the EJTN could not be regarded as an international organisation within the meaning of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations. It considered that, although the applicant had remained subject to the instructions of his hierarchical superiors in the KSSiP during the reference period, his link to the EJTN was, nevertheless, an independent legal relationship. It emphasised that, since the applicant had not been integrated into the permanent representation of the Polish State in Belgium, the performance of his duties as Secretary General of the EJTN could not be regarded as work carried out for the Polish State, within the meaning of Article 4(1)(a) of Annex VII to the Staff Regulations. Accordingly, his main occupation during the reference period had been carried out in Belgium. The AECE considered that, since the expatriation allowance could be refused under the single criterion of the place of performance of the main occupation, it was not necessary to examine the criterion of the place of habitual residence.
Procedure and forms of order sought
14 The applicant brought the present action by application lodged at the Court Registry on 2 February 2021. The Commission lodged its defence on 19 May 2021.
15 On receipt of an application made by the applicant under Article 66 of the Rules of Procedure of the General Court, the Court upheld the request for anonymity and partially upheld the request for omission of other personal data with regard to the public.
16 The applicant claims that the Court should:
– annul the contested decision and the decision rejecting the complaint in so far as the Commission refused to grant him the expatriation allowance;
– order the Commission to pay the costs.
17 The Commission contends that the Court should:
– dismiss the application;
– order the applicant to pay the costs.
Law
18 The applicant seeks the annulment of the contested decision and of the decision rejecting the complaint.
19 In that regard, it should be borne in mind that, according to settled case-law, claims for annulment formally directed against the decision rejecting a complaint have the effect, where that decision lacks any independent content, of bringing before the Court the act against which the complaint was submitted (see, to that effect, judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8, and of 6 April 2006, Camós Grau v Commission, T‑309/03, EU:T:2006:110, paragraph 43).
20 In the present case, the decision rejecting the complaint lacks any independent content since it merely confirms the contested decision and sets out its reasoning by responding to the applicant’s criticisms thereof.
21 The claim for annulment must therefore be regarded as being directed solely against the contested decision, the legality of which must, however, be examined taking into account the statement of reasons contained in the decision rejecting the complaint, which is deemed to be the same as that of the contested decision (see, to that effect, judgments of 9 December 2009, Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paragraphs 58 and 59, and of 16 January 2018, SE v Council, T‑231/17, not published, EU:T:2018:3, paragraph 22).
22 The applicant relies on three pleas in law in support of his claim for annulment of the contested decision. The first plea in law alleges infringement of the obligation to state reasons, the second, infringement of Article 4(1)(a) of Annex VII to the Staff Regulations, and the third, a manifest error of assessment.
The first plea in law, alleging infringement of the obligation to state reasons
23 The applicant submits that the contested decision and the decision to reject the complaint, by which the grant of the expatriation allowance was refused, were insufficiently reasoned by the AECE, with the result that he was unable to understand those decisions.
24 Regarding the contested decision, the applicant considers that the PMO did not refer to the arguments he put forward in relation to work carried out for another State.
25 Regarding the decision to reject the complaint, the applicant considers that, although the AECE examined his situation in depth, its decision is based on case-law that cannot be applied to his situation. Reference to such case-law, combined with preliminary remarks of a general nature, could not have led to a genuine analysis of his personal situation. The applicant adds that the AECE did not mention the constitutional and legal provisions applicable to Polish judges and, de facto, to his situation.
26 According to the applicant, the result of the foregoing is that the AECE adopted general reasoning that does not refer to specific aspects of his personal situation, such that the AECE failed to comply with its obligation to state reasons.
27 Lastly, the applicant adds that the PMO’s refusal to proceed to mediation did not mitigate the lack of reasons for the contested decision or for the decision rejecting the complaint, such that he was unable to understand those decisions.
28 The Commission disputes the applicant’s arguments.
29 It must be stated that the contested decision is a form completed by the PMO, which grants the applicant the foreign residence allowance and thus implicitly refuses to grant him the expatriation allowance.
30 However, according to settled case-law on the matter, the lack of reasons in the contested decision may be supplemented by additional reasoning in the decision to reject the complaint. The additional reasoning, at the stage of the decision to reject the complaint, is consistent with the purpose of Article 90(2) of the Staff Regulations, in terms of which the decision on the complaint is itself to be reasoned. That provision necessarily implies that the authority required to rule on the complaint is not bound solely by the reasons stated for the decision that is the subject of the complaint, which may be inadequate or non-existent in the case of an implied rejection decision (judgment of 7 July 2011, Longinidis v Cedefop, T‑283/08 P, EU:T:2011:338, paragraph 72; see also judgment of 17 January 2017, LP v Europol, T‑719/15 P, not published, EU:T:2017:7, paragraph 19 and the case-law cited).
31 Therefore, since the contested decision failed to state reasons, it is appropriate to assess whether the decision to reject the complaint satisfies AECE’s obligation to state reasons.
32 The obligation to state reasons is intended, on the one hand, to provide the person concerned with sufficient information to determine whether the decision taken by the administration was well founded and whether it is appropriate to bring proceedings before the Court, and on the other, to enable the Court to carry out its review. The extent of the obligation must be considered in the light of the specific circumstances of the case, in particular the content of the measure, the nature of the grounds relied upon and the interest which the addressee might have in receiving an explanation (see judgment of 25 October 2005, Herrero Romeu v Commission, T‑298/02, EU:T:2005:369, paragraph 67 and the case-law cited).
33 In the present case, AECE took into consideration in the decision to reject the complaint all the relevant aspects of the applicant’s professional situation during the reference period. That decision states unequivocally, as was partly noted in paragraph 13 above, the reasons why the applicant has no right to the expatriation allowance. It emphasises that the applicant’s professional activity within the EJTN in Brussels cannot fall within the scope of the exception relating to ‘work done for another State’ referred to in Article 4(1)(a) of Annex VII to the Staff Regulations, considering, in particular, that the applicant was part of the EJTN through an independent legal relationship and that he had not been integrated into the permanent representation of the Polish State in Belgium, with the result that the applicant’s professional situation cannot correspond to the Court of Justice’s interpretation of that concept of ‘work done for another State’.
34 In so far as the applicant claims that the AECE bases the contested decision on case-law that cannot be applied to his situation, it should be borne in mind that the obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (judgments of 5 December 2006, Angelidis v Parliament, T‑416/03, EU:T:2006:375, paragraph 91, and of 10 June 2020, Sammut v Parliament, T‑608/18, EU:T:2020:249, paragraph 34).
35 Regarding the applicant’s argument that the AECE did not mention the constitutional and legal provisions applicable to Polish judges, the AECE responded sufficiently to that argument by reference to the case-law according to which the terms of the last sentence of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations cannot, in the absence of an express reference, be interpreted by reference to the law of a Member State.
36 It follows that the applicant was fully aware of the reasons why the AECE refused him the benefit of the expatriation allowance, that he was able to consider whether it was appropriate to institute proceedings and that the Court is able to exercise its power of review.
37 Consequently, the plea in law alleging infringement of the obligation to state reasons must be rejected as unfounded.
The second plea in law, alleging infringement of Article 4(1)(a) of Annex VII to the Staff Regulations
38 According to the applicant, in refusing to grant him the expatriation allowance, the Commission infringed Article 4(1)(a) of Annex VII to the Staff Regulations, since neither his habitual residence nor his main occupation was established in Brussels during the reference period. The applicant considers, furthermore, that his work should be regarded as work done for the Polish State.
39 The applicant states that, since he entered into service on 1 January 2020, the reference period referred to in Article 4(1)(a) of Annex VII to the Staff Regulations therefore extends from 1 July 2014 to 30 June 2019.
40 In the first place, the applicant considers that his place of habitual residence, during the reference period, was still in Poland. The relocation of his family to Brussels was temporary in nature, as evidenced by his children receiving Polish education and by his wife retaining her employment at a Polish court.
41 Moreover, the applicant emphasises the fact that the accommodation he lived in with his family in Brussels during the reference period had been made available to him by the EJTN, but that he and his family had retained their main residence in Poland. The applicant adds that, during the reference period, he continued to pay income tax and local and property taxes in Poland. Moreover, the applicant voted in local, national and European elections in Poland.
42 Furthermore, the applicant considers that, since his appointment as a judge in 2005, he had retained his position as a public official in Poland, as evidenced by the payment of his remuneration by a Polish district court and the latter’s supervision of his annual leave or sick leave, his social benefits and his promotions.
43 Thus, taken together, those factors would not support the conclusion that the applicant had established his habitual residence in Belgium.
44 In the second place, the applicant claims that, during the reference period, he worked for the Polish State and that, under Polish law, a judge cannot enter into legal relationships with any private law body in Poland or abroad: therefore, he could not be regarded as working for an authority other than the Polish district court to which he was attached. The applicant adds that his remuneration came exclusively from that district court.
45 Thus, according to the applicant, his main occupation during the reference period was that carried out for the KSSiP, so that it cannot be considered that his main occupation was established in Brussels.
46 In the third place, the applicant claims that the exception provided in Article 4(1)(a) of Annex VII to the Staff Regulations is applicable since the work done during the reference period had to be regarded as ‘work done for another State’.
47 First of all, the applicant considers that, in the decision to reject the complaint, the AECE interpreted the concept of ‘work done for another State’ too restrictively. In considering that that concept was limited to work done within a permanent representation of a State, the AECE assessed the relevant case-law incorrectly. According to the applicant, it is apparent from the case-law that the concept of ‘work done for another State’, first, does not necessarily imply that the person is employed by the central administration of that other State and, secondly, covers all the circumstances arising from work done for another State or for another international organisation, since the interested party had direct legal links with the State or the international organisation in question.
48 The applicant recalls, as confirmed by the decision to reject the complaint, that, notwithstanding his secondment to the EJTN, he had retained his position as a judge, as well as his rights and obligations arising from that position. Therefore, during the reference period, the applicant continued to work for the Polish State, so that his work should be regarded as ‘work done for another State’, within the meaning of Article 4(1)(a) of Annex VII to the Staff Regulations.
49 Next, the applicant considers that the KSSiP, the central institution responsible for the training of judges and prosecutors in Poland, which is supervised and funded by the Ministry of Justice in Poland, should be regarded as a central state body and, consequently, that the work carried out in the course of his secondment to the KSSiP should be regarded as falling under ‘work done for another State’.
50 Lastly, the applicant considers that the AECE erred in finding that the work done as Secretary General of the EJTN constituted his main occupation and cannot be classified as ‘work done for another State’.
51 The applicant emphasises that, in the decision to reject the complaint, the AECE recognised that he had retained his specialist position within the KSSiP and had remained under the hierarchical authority of the latter during the reference period.
52 According to the applicant, the KSSiP’s International Cooperation Centre aims to ensure the representation of the Republic of Poland within the EJTN. That is the context in which he occupied the post of Secretary General of the EJTN, a post for which the director of the KSSiP nominated the applicant.
53 The applicant considers that the duties performed within the EJTN, such as ensuring good cooperation between the two entities and implementing activities connected with the affiliation of the KSSiP with the EJTN, were in the KSSiP’s interest. The applicant adds that those activities ensured a solid training in European Union law for Polish judges and contributed to the KSSiP’s objectives.
54 Moreover, according to the applicant, the EJTN lacks legal personality, as the AECE confirmed in the decision rejecting the complaint, and sought to train European legal bodies, such that the work undertaken as Secretary General of the EJTN was merely subsidiary to that carried out for the KSSiP.
55 The Commission disputes the applicant’s arguments.
56 According to settled case-law, the purpose of the expatriation allowance is to compensate staff members for the extra expense and inconvenience of taking up employment with the European Union if they have been thereby obliged to change their residence from their State of residence and move to the State of employment and to integrate themselves in a new environment (see judgment of 25 March 2021, Alvarez y Bejarano and others v Commission, C‑517/19 P and C‑518/19 P, EU:C:2021:240, paragraph 69 and the case-law cited; judgment of 13 July 2018, Quadri di Cardano v Commission, T‑273/17, EU:T:2018:480, paragraph 44). The grant of the expatriation allowance is thus intended to correct actual instances of inequality arising between officials who are integrated into the society of the State of employment and those who are not (judgments of 21 June 2007, Commission v Hosman-Chevalier, C‑424/05 P, EU:C:2007:367, paragraphs 35 and 36, and of 25 March 2021, Alvarez y Bejarano and others v Commission, C‑517/19 P and C‑518/19 P, EU:C:2021:240, paragraph 69).
57 Although Article 4(1)(a) of Annex VII to the Staff Regulations refers, for the purpose of determining cases of expatriation, to the concepts of ‘habitual residence’ and ‘main occupation’ of the staff member on the territory of the State of employment during a certain reference period, it is in order to lay down simple, objective criteria to cover the situation of staff members who are obliged, as a result of taking up employment with the European Union, to change their place of residence and to integrate themselves in their new environment (see, to that effect, judgments of 31 May 1988, Nuñez v Commission, 211/87, EU:C:1988:275, paragraph 10; of 8 April 1992, Costacurta Gelabert v Commission, T‑18/91, EU:T:1992:56, paragraph 42; and of 30 June 2005, Olesen v Commission, T‑190/03, EU:T:2005:264, paragraph 61).
58 According to the case-law, it is sufficient for only one of the criteria set out in Article 4(1)(a) of Annex VII to the Staff Regulations, that is, the habitual residence or the main occupation, to be met in the staff member’s place of employment, for the staff member not to receive the expatriation allowance (see judgment of 28 February 2019, Pozza v Parliament, T‑216/18, not published, EU:T:2019:118, paragraph 29 and the case-law cited). It is apparent both from the wording and the purpose of the provision in question that the expatriation allowance must be granted only where neither of the situations referred to therein is established. Therefore, the staff member is able to claim that allowance only if he or she has not habitually resided in or carried on his or her main occupation on the territory of the State of his or her place of employment during the reference period (see judgment of 28 February 2019, Pozza v Parliament, T‑216/18, not published, EU:T:2019:118, paragraph 30 and the case-law cited).
59 The case-law has also made it clear that the expatriation allowance is refused only if the habitual residence or main occupation in the country of employment lasted throughout the five-year reference period (see, to that effect, judgments of 14 December 1995, Diamantaras v Commission, T‑72/94, EU:T:1995:212, paragraph 48, and of 28 November 2019, Wywiał-Prząda v Commission, T‑592/18, EU:T:2019:820, paragraph 23).
60 It is also settled case-law that it is for the staff member concerned to show that the conditions laid down in Article 4(1) of Annex VII to the Staff Regulations are met (see, to that effect, judgments of 27 September 2000, Lemaître v Commission, T‑317/99, EU:T:2000:218, paragraph 48, and of 13 September 2005, Recalde Langarica v Commission, T‑283/03, EU:T:2005:315, paragraph 142).
61 In the present case, it should be determined first of all whether the activity of Secretary General of the EJTN performed by the applicant demonstrates that the applicant had his main occupation in Brussels, the only criterion on which the AECE based its refusal to grant him the expatriation allowance; then, if appropriate, to examine whether that main occupation falls within the scope of the exception relating to ‘work done for another State’ referred to in Article 4(1)(a) of Annex VII to the Staff Regulations.
62 In the first place, as regards identification of the place where the applicant carried on his main occupation within the meaning of Article 4(1)(a) of Annex VII to the Staff Regulations, it is appropriate to consider, among other factors, the place where the applicant worked under the various contracts binding him (see, to that effect, judgment of 25 November 2020, UI v Commission, T‑362/19, not published, EU:T:2020:562, paragraph 53).
63 It should be noted that the applicant, an official in a district court in Poland, seconded to the KSSiP, was nominated as Secretary General of the EJTN by an agreement concluded between the Polish Ministry of Justice and the EJTN.
64 It is evident from that agreement that the applicant had to carry out administrative duties and to represent the EJTN and that, in order to do so, his presence was required not only at the KSSiP in Poland but also at the EJTN premises in Brussels and in all the places where the interests of the EJTN so required.
65 It is apparent from the EJTN’s regulations that the Secretary General is required, inter alia, (i) to ensure sound management of the EJTN and of its finances; (ii) to maintain the link with the Commission, the Council of Europe and other organisations and bodies; (iii) to ensure the external representation of the EJTN; (iv) to act as head of the secretariat and (v) to sign all deeds binding the EJTN, with no requirement to justify the powers conferred on him to third parties.
66 The scope of the responsibilities thus placed on the applicant and the requirement that he devote a significant part of his work time in the place where the EJTN has its secretariat, in Brussels, are confirmed, first, by the level of remuneration to which he was entitled as Secretary General of the EJTN and, secondly, by the provision of benefits in kind corresponding to a requirement of presence in Brussels. In his role as Secretary General of the EJTN, the applicant received remuneration borne, in fine, by the EJTN up to a substantial maximum amount, namely EUR [confidential] (1) per annum, or EUR [confidential] per month. Such a level of remuneration precluded his duties as Secretary General being ancillary to the duties that the applicant continued to perform as a judge in Poland. Moreover, the applicant was afforded the use of a staff apartment in Brussels furnished by the EJTN which, as the applicant indicated in his application, he lived in with his family throughout the entirety of the reference period.
67 The finding that the applicant’s main occupation was carried out for the EJTN in Brussels cannot be called into question by the fact that, in the course of his duties, the applicant interacted primarily with persons unconnected with Belgium, who, according to him, did not speak any of the official languages of that country fluently, and that he had to undertake numerous business trips in Europe in the course of his duties. Those facts are not such as to establish that the applicant carried on primarily activities other than those relating to his duties for the EJTN in Brussels. In that regard, the fact that the applicant’s wife retained her employment contract with a Polish district court is likewise irrelevant since, as was stated in paragraph 66 above, she lived with the applicant in the apartment made available by the EJTN in Brussels and the occupation relied upon is not that of the applicant.
68 In the light of those factors, contrary to what the applicant claims, it cannot be held that his main duties were those performed in the interest of the KSSiP, in Poland, and that they consisted of ensuring good cooperation between the KSSiP and the EJTN.
69 Even if the EJTN lacks legal personality, it must be stated, as is apparent from paragraph 65 above, that the post of Secretary General of the EJTN is a central position, with important duties and responsibilities, which cannot be conceived as a main occupation exercised on behalf of another organisation, in the present case the KSSiP, nor as a professional activity of a secondary or subsidiary nature.
70 Nor is that consideration called into question by the applicant’s arguments alleging that Polish legislative provisions do not permit a judge to form legal relationships with a private law body in Poland or abroad, such as to prevent the finding that his main occupation was not that of a judge in Poland.
71 In that regard, first of all, it should be stated that those legislative provisions did not, in any event, prevent the conclusion of an agreement between the Polish Ministry of Justice and the EJTN in order to confer on the applicant the position of Secretary General of the EJTN. Secondly, if it is not in dispute that the applicant did not lose his position as a judge during the period he performed his duties as Secretary General of the EJTN, such a position was not therefore incompatible with the responsibilities entrusted to him, in respect of which his profile and his experience as a judge were an asset. The applicant maintaining the position of judge in Poland did not therefore imply that the place where he pursued his main occupation was situated in Poland.
72 Furthermore, even if the applicant kept his specialist position within the KSSiP and remained subject to its hierarchical authority throughout the reference period, it must be stated that the applicant does not put forward evidence of duties or activities carried out on behalf of and primarily in the interest of the KSSiP in Poland during the reference period (see, to that effect, judgment of 13 April 2000, Reichert v Parlement, T‑18/98, EU:T:2000:113, paragraph 26), nor that those duties or activities were of a nature other than subsidiary or ancillary to his duties as Secretary General of the EJTN.
73 Moreover, it is apparent from the EJTN regulations that the applicant, as Secretary General, was subject to the review of EJTN’s steering committee, which had the power to suspend him and to propose to the general assembly that his mandate be terminated.
74 It follows from the foregoing that the applicant’s main occupation, during the reference period, was that of Secretary General of the EJTN and that the place it was pursued was Brussels.
75 In the second place, it is appropriate to examine whether the work carried out by the applicant within the EJTN in Brussels can be regarded as falling under the concept of ‘work done for another State or for an international organisation’, within the meaning of Article 4(1)(a) of Annex VII of the Staff Regulations.
76 That exception stems from the fact that the performance of ‘work done for another State or for an international organisation’ has the effect of preserving a specific tie of the party concerned linking him or her to that other State or that international organisation, thereby hindering the creation of a lasting tie to the State of employment and thus his or her sufficient integration in the society of that State (judgments of 21 June 2007, Commission v Hosman-Chevalier, C‑424/05 P, EU:C:2007:367, paragraph 38, and of 29 November 2007, Salvador García v Commission, C‑7/06 P, EU:C:2007:724, paragraph 46).
77 As a preliminary point, it is not in dispute that the work carried out by the applicant during the reference period did not correspond to ‘work done for an international organisation’.
78 Furthermore, it is apparent from the case-law that, for the purposes of applying Article 4(1)(a) of Annex VII to the Staff Regulations, the concept of ‘State’ relates only to the State as a legal person and unitary subject of international law and its government bodies (see, to that effect, judgments of 30 June 2005, Olesen v Commission, T‑190/03, EU:T:2005:264, paragraphs 40 and 51, and of 25 October 2005, Dedeu i Fontcuberta v Commission, T‑299/02, EU:T:2005:370, paragraph 41).
79 In the light of that approach, it is essential that the State be represented, vis-à-vis other States and international organisations, by a system of a single diplomatic representation, which reflects the unitary nature of the State concerned, at international level (see judgment of 24 January 2008, Adam v Commission, C‑211/06 P, EU:C:2008:34, paragraph 44 and the case-law cited).
80 Whilst it is not essential, in order for the official concerned to be considered to have worked for ‘another State’, that he should have been employed by the central administration of that other State, his functional integration within the permanent representation of that State constitutes a decisive factor (judgments of 24 January 2008, Adam v Commission, C‑211/06 P, EU:C:2008:34, paragraph 45; of 28 November 2019, Wywiał-Prząda v Commission, T‑592/18, EU:T:2019:820, paragraph 33; and of 15 October 2020, Karpeta-Kovalyova v Commission, T‑249/19, not published, EU:T:2020:490, paragraph 58).
81 The Courts of the European Union thus considered that work done within the representative office of a sub-State authority not integrated within the permanent representation (judgments of 29 November 2007, Salvador García v Commission, C‑7/06 P, EU:C:2007:724, paragraph 60, and of 24 January 2008, Adam v Commission, C‑211/06 P, EU:C:2008:34, paragraph 49) or within the office of the Italian National Research Council, with its own legal personality and independent of the permanent representation (judgment of 30 November 2006, J v Commission, T‑379/04, EU:T:2006:368, paragraph 56) did not amount to ‘work done for another State’.
82 The expression ‘work done for another State’ referred to in Article 4(1)(a) of Annex VII to the Staff Regulations should therefore be interpreted as not referring to work provided for an international, non-profit association governed by Belgian law, such as the EJTN, which aims to promote training programmes with a genuine European dimension for members of the European judiciary and is not integrated in a permanent representation of a Member State.
83 Consequently, the exception for ‘work done for another State’, provided in Article 4(1)(a) of Annex VII to the Staff Regulations, does not apply to work done by the applicant within the EJTN.
84 It follows, moreover, that, in so far as the Commission rightly found that the applicant had pursued his main occupation in Brussels during the reference period, there is no need to examine whether the applicant also had his habitual residence there, taking into account the alternative nature of the criteria referred to in Article 4(1)(a) of Annex VII to the Staff Regulations, as is noted in paragraph 58 above. It applies a fortiori that the contested decision and the decision to reject the complaint are not based on the criterion of the applicant’s habitual residence, so that the applicant’s argumentation relating to his habitual residence is ineffective and must therefore be disregarded.
85 The second plea in law, alleging infringement of Article 4(1)(a) of Annex VII to the Staff Regulations, must, therefore, be rejected.
Third plea in law, alleging a manifest error of assessment.
86 The applicant claims that, in finding that his situation did not justify the grant of an expatriation allowance, the AECE committed a manifest error of assessment.
87 According to the applicant, the concept of ‘work done for another State’ should be interpreted in the light of the objective pursued by the expatriation allowance, that is, to remedy an inequality between staff members integrated in the society of the country and those who are not.
88 The applicant disputes the Commission’s finding that the duties of Secretary General within the EJTN cannot be regarded as ‘work done for another State’. First, the applicant emphasises that his duties of Secretary General of the EJTN put him in contact primarily with persons unconnected with Belgium. Moreover, the applicant states that he is not fluent in any of the official languages of that country. Lastly, the applicant undertook numerous business trips in Europe in the course of his duties. Secondly, the applicant emphasises that his wife retained her contract of employment with a Polish district court.
89 Thus, according to the applicant, the specific link that tied him to Poland, as a judge of a district court, prevented him from integrating long-term in Belgium, so that the AECE erred in finding that he could not have the benefit of the expatriation allowance.
90 The Commission disputes those arguments.
91 As was held in paragraphs 74 and 83 above, the AECE rightly considered that the applicant’s main occupation was that carried out for the EJTN and that the exception under Article 4(1)(a) of Annex VII to the Staff Regulations did not apply to his situation.
92 Since the conditions for applicability of the exception provided in Article 4(1)(a) of Annex VII to the Staff Regulations are expressly set out in that article, the AECE had no discretion in the present case, with the result that the applicant has no grounds for claiming that the AECE committed a manifest error of assessment in refusing him the benefit of the expatriation allowance.
93 Therefore, the third plea in law must be rejected as unfounded.
94 It follows that the action must be dismissed in its entirety.
Costs
95 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Dismisses the action;
2. Orders QB to pay the costs.
Gervasoni | Madise | Martín y Pérez de Nanclares |
Delivered in open court in Luxembourg on 8 December 2021.
E. Coulon | | M. van der Woude |