JUDGMENT OF THE GENERAL COURT (Seventh Chamber, Extended Composition)
19 April 2023 (*)
(Civil service – Officials – Health crisis linked to the COVID-19 pandemic – Decision authorising part-time work in order to take care of relatives outside the place of employment – No possibility of teleworking full time outside the place of employment – Irregularity in the pre-litigation procedure – Decision granting a request to work part time – No legal interest in bringing proceedings – Inadmissibility – Remuneration – Suspension of the expatriation allowance – Articles 62 and 69 of the Staff Regulations – Infringement of Article 4 of Annex VII to the Staff Regulations)
In Case T‑39/21,
PP,
PQ,
PR,
PS,
PT,
represented by M. Casado García-Hirschfeld, lawyer,
applicants,
v
European Parliament, represented by S. Seyr, D. Boytha and M. Windisch, acting as Agents,
defendant,
THE GENERAL COURT (Seventh Chamber, Extended Composition),
composed, at the time of the deliberations, of R. da Silva Passos, President, V. Valančius, I. Reine (Rapporteur), L. Truchot and M. Sampol Pucurull, Judges,
Registrar: H. Eriksson, Administrator,
having regard to the written part of the procedure,
further to the hearing on 14 July 2022,
gives the following
Judgment
1 By their action under Article 270 TFEU, the applicants, PP, PS, PQ, PR and PT, seek, in essence, first, annulment of the decisions of the European Parliament of 14 April 2020 authorising PQ and PS to work part time outside their place of employment due to the COVID-19 pandemic and of 18 May 2020 authorising PP to work part time outside his place of employment due to the COVID-19 pandemic (together, ‘the decisions authorising part-time work’), the decisions of 7, 15, 16 April and 19 May 2020 suspending payment of the applicants’ expatriation allowance during the period they were working outside their place of employment (together, ‘the decisions suspending the expatriation allowance’) and the decisions of 6 May 2020 to recover the sums overpaid to PR and PT (together, ‘the decisions to recover overpayments’) and, second, compensation for the damage which they claim to have suffered as a result of those decisions.
I. Background to the dispute
2 The applicants are officials of the European Parliament. On their entry into service, they were granted the expatriation allowance.
3 On 11 March 2020, due to the alarming levels of circulation and severity of the coronavirus disease brought about by the SARS-CoV-2 virus, namely COVID-19, the World Health Organisation (WHO) stated that the COVID-19 outbreak was a pandemic due to the rapidly rising case numbers outside China and the growing number of countries affected.
4 By email of the same date, the Secretary-General of the Parliament (‘the Secretary-General’) informed all members of staff that, in view of the health situation, he had instructed the Directors-General to introduce 70% teleworking for all colleagues whose physical presence on the Parliament’s premises was not absolutely necessary. The email also stated that that measure would take effect on 16 March 2020 and that, depending on further developments in the situation, teleworking could be increased to 100% of working time.
5 On 16 March 2020, the Secretary-General informed members of staff that, in view of the development of the health situation, the teleworking time of colleagues whose physical presence on the Parliament’s premises was not essential, and who were already teleworking for 70% of their working time, was being increased to 100%.
6 On 19 March 2020, the Secretary-General sent an email to all members of staff pursuant to which, in the context of the COVID-19 pandemic, they were allowed to work half time in order to take care of their direct family members. Contrary to usual practice, this half-time work could be carried out from any Member State of the European Union in line with the established residence of the close relatives for whom the official or staff member wished to care. That decision entered into force immediately and was to apply for as long as the COVID-19 pandemic might last.
7 On 31 March 2020, the Secretary-General adopted a new decision on temporary part-time work away from the place of employment for family reasons in response to the COVID-19 pandemic (‘the Secretary-General’s decision of 31 March 2020’). That decision, which replaced the decision on half-time work of 19 March 2020, was worded as follows:
‘Having regard to Rule 234(2) of the Rules of Procedure of the European Parliament:
Colleagues wishing to take more intensively care of direct relatives like parents, children or spouses for the duration of this special situation caused by COVID-19 are herewith authorised to work 75% part-time.
Contrary to customary practice, this part-time work can be done from within whatever Member State of the European Union in line with the established residence of those relatives and until the end of the transitional period on 31 December 2020 from the United Kingdom.
Please submit a formal request to your Resource Director as soon as possible prior to the requested starting date.
The request shall specify the name of the relative, family ties as well as the period requested.
For the period covered by the authorisation, the staff member shall be entitled to 75% of his or her remuneration. Article 3 of Annex IVa to the Staff Regulations [of Officials of the European Union] shall apply. The expatriation allowance or the foreign residence allowance according to Article 4 of Annex VII to the Staff Regulations cannot be granted.
This decision applies to officials employed by the [European Parliament] Secretariat.
This decision applies by analogy to officials who left their place of employment and are able to telework. In this case, the Appointing Authority may decide without a formal request.
As regards requests submitted in line with Article 6(2) of the internal rules on part-time working, the Appointing Authority reserves its right to refuse them.
The authorisation to work part-time is given for three months renewable.
This decision enters into force on 1 April 2020 and shall apply as long as the COVID-19 pandemic lasts. This decision replaces the decision of 19 March 2020.’
A. PP’s situation
8 PP is an official of the Parliament in Luxembourg (Luxembourg).
9 On 14 March 2020, in view of the imminent closure of the boarding school where his son was studying, PP travelled to Hungary with his family to join his son there.
10 On 12 May 2020, in the light of the Secretary-General’s decision of 31 March 2020, PP submitted a request for authorisation to work part time (75%) from Hungary, retroactively with effect from 1 April 2020. On 18 May 2020, that request was granted for the period from 1 April to 30 June 2020.
11 On 18 May 2020, PP resumed full-time work in Luxembourg.
12 By decision of 19 May 2020, following PP’s request referred to in paragraph 10 above and as a direct consequence of the application of the Secretary-General’s decision of 31 March 2020, the Head of the Individual Entitlements Unit of the Directorate-General (DG) for Personnel of the Parliament suspended PP’s expatriation allowance with effect from 1 April 2020, for the period during which he had been authorised to work part time in Hungary.
13 On 12 June 2020, PP lodged a complaint against, inter alia, the decisions referred to in paragraphs 10 and 12 above.
14 On 27 October 2020, the Secretary-General, in his capacity as appointing authority, rejected PP’s complaint in so far as it was directed against the decisions referred to in paragraphs 10 and 12 above.
B. PQ’s situation
15 PQ is an official of the Parliament in Luxembourg.
16 On 10 March 2020, PQ travelled to Denmark by aeroplane before the imposition of the first travel restrictions in the European Union owing to the COVID-19 pandemic. She could not return on 22 March 2020 as planned because all flights between Luxembourg and Denmark had been cancelled. In view of her wish to remain with her husband, who was considered to be a person at risk from the virus, PQ was exceptionally allowed to work temporarily from Denmark, pending the adoption of general measures by the Parliament concerning the health situation.
17 On 6 April 2020, in the light of the Secretary-General’s decision of 31 March 2020, PQ submitted a request for authorisation to work part time (75%) from Denmark for a period of three months with effect from 1 April 2020.
18 On 14 April 2020, the Director-General of DG Translation of the Parliament granted PQ’s request to work part time (75%) for the period from 1 April to 30 June 2020.
19 On 15 April 2020, following PQ’s request referred to in paragraph 17 above and as a direct consequence of the application of the Secretary-General’s decision of 31 March 2020, the Head of the Individual Entitlements Unit of the DG for Personnel of the Parliament suspended PQ’s expatriation allowance with effect from 1 April 2020 for the duration of the period for which she had been authorised to work part time in Denmark.
20 On 27 May 2020, PQ lodged a complaint against the decisions referred to in paragraphs 17 and 19 above.
21 On 1 July 2020, PQ resumed her full-time work in Luxembourg.
22 On 16 October 2020, the Secretary-General, in his capacity as appointing authority, rejected PQ’s complaint.
C. PR’s situation
23 PR is an official of the Parliament in Luxembourg.
24 On 27 March 2020, she travelled to France to care for her parents.
25 On 2 April 2020, following the adoption of the Secretary-General’s decision of 31 March 2020, PR submitted a request for authorisation to work part time (75%) for a period of three months, which was granted by decision of the same day.
26 By decision of 7 April 2020, following PR’s request referred to in paragraph 25 above and as a direct consequence of the application of the Secretary-General’s decision of 31 March 2020, the Head of the Individual Entitlements Unit of the Parliament’s DG for Personnel suspended PR’s expatriation allowance with effect from 2 April 2020 for the duration of the period for which she had been authorised to work part time.
27 By email of 6 May 2020, PR was informed that, following the change in her working time due to the COVID-19 pandemic, she had received an overpayment in the amount of EUR 2 173.40, and that that amount would be recovered by means of a deduction from her remuneration for May 2020.
28 On 3 June 2020, PR lodged a complaint against the decision to suspend her expatriation allowance and the decision to recover the amount overpaid, referred to in paragraphs 26 and 27 above, respectively.
29 On 1 July 2020, PR returned to Luxembourg.
30 On 22 October 2020, the Secretary-General, in his capacity as appointing authority, rejected PR’s complaint.
D. PS’s situation
31 PS is an official of the Parliament in Luxembourg.
32 At the end of March 2020, he travelled to Malta to enable him to look after his daughter.
33 On 7 April 2020, in the light of the Secretary-General’s decision of 31 March 2020, PS submitted a request for authorisation to work part time (75%) in Malta. That request was granted on 14 April, for a period of three months from 23 March 2020 to 23 June 2020.
34 By decision of 15 April 2020, following PS’s request referred to in paragraph 33 above and as a direct consequence of the application of the Secretary-General’s decision of 31 March 2020, the Head of the Individual Entitlements Unit of the Parliament’s DG for Personnel suspended PS’s expatriation allowance with effect from 23 March 2020 for the period during which he would be working part time in Malta.
35 On 4 July 2020, PS resumed his full-time work in Luxembourg.
36 On 13 July 2020, PS lodged a complaint against the decisions referred to in paragraphs 33 and 34 above.
37 By decision of 24 November 2020, issued by letter to PS on 2 December 2020, the Secretary-General, in his capacity as appointing authority, rejected PS’s complaint.
E. PT’s situation
38 PT is an official of the Parliament in Brussels (Belgium).
39 On 13 March 2020, PT travelled to Ireland to join her children there.
40 On 14 April 2020, PT submitted a request for authorisation to work part time (75%) in Ireland, on the basis of the Secretary-General’s decision of 31 March 2020. That request was granted on the same day, for a period starting on 15 April 2020.
41 By decision of 16 April 2020, following PT’s request referred to in paragraph 40 above and as a direct consequence of the application of the Secretary-General’s decision of 31 March 2020, the Head of the Individual Entitlements Unit of the Parliament’s DG for Personnel suspended PT’s expatriation allowance with effect from 15 April 2020, for the period during which she would be working part time in Ireland.
42 By email of 6 May 2020, PT was informed that, following the change in her working time due to the COVID-19 pandemic, she had received an overpayment in the amount of EUR 931.01, and that that amount would be recovered by means of a deduction from her remuneration for May 2020.
43 On 23 June 2020, PT lodged a complaint against the decision to suspend her expatriation allowance, referred to in paragraph 41 above, and sought the annulment of all the effects of that decision.
44 By decision of 27 October 2020, received by PT on 20 December 2020, the Secretary-General, in his capacity as appointing authority, rejected PT’s complaint.
II. Forms of order sought
45 The applicants claim, in essence, that the Court should:
– annul, first, the decisions authorising part-time work, second, the decisions suspending the expatriation allowance and, third, the decisions to recover overpayments (together, ‘the contested decisions’);
– annul, in so far as necessary, the decisions by which the Parliament rejected the complaints which they had lodged against the contested decisions;
– order the Parliament to pay compensation for the non-material damage suffered, assessed, ex aequo et bono, at EUR 1 000 for each of them;
– order the Parliament to pay compensation for the material damage suffered, corresponding to 25% of their respective remuneration, together with compensatory interest and default interest accrued;
– order the Parliament to pay the costs.
46 The Parliament contends, essentially, that the Court should:
– reject the claims for compensation for non-material damage as partly inadmissible and partly unfounded;
– dismiss the action as being, in any event, unfounded;
– order the applicants to pay the costs.
III. Law
A. The claims for annulment
1. The subject matter of the claims for annulment
47 By their second head of claim, the applicants seek annulment, in so far as necessary, of the decisions by which the Parliament rejected their respective complaints.
48 It should be borne in mind that, according to settled case-law, an administrative complaint, such as that referred to in Article 90(2) of the Staff Regulations, and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the judicature. Consequently, the action before the judicature, even if formally directed against the rejection of the complaint, has the effect of bringing before the judicature the act adversely affecting the applicant against which the complaint was submitted, except where the scope of the rejection of the complaint differs from that of the measure against which that complaint was made (see judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 70 and the case-law cited).
49 An express decision rejecting a complaint may, in the light of its content, not be confirmatory of the measure contested. That is the case where the decision rejecting the complaint contains a re-examination of the situation of the person concerned in the light of new elements of law or of fact, or where it changes or adds to the original decision. In such circumstances, the rejection of the complaint constitutes a measure subject to review by the judicature, which will take it into consideration when assessing the legality of the contested measure or will even regard it as an act adversely affecting the applicant replacing the contested measure (see judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 71 and the case-law cited).
50 In the present case, the decision rejecting PP’s complaint directed against the decision of 18 May 2020 authorising part-time work and the decision of 19 May 2020 suspending his expatriation allowance, in so far as it rejected the complaint against those two decisions, merely confirmed those decisions.
51 In addition, the decisions rejecting the complaints of PS, PR and PT merely confirm the decisions against which each of those complaints was directed, by stating the reasons in support of them.
52 Accordingly, the claim for annulment of the decisions rejecting the complaints of PP, PS, PR and PT lack independent content with regard to the contested decisions referred to in paragraph 50 above and there is therefore no need to rule on that claim specifically. However, when examining the legality of each of the contested decisions, the statement of reasons for the decision rejecting the complaint should be taken into account, as it is deemed to cover the statement of reasons in the contested decision in question (see, to that effect, judgment of 30 April 2019, Wattiau v Parliament, T‑737/17, EU:T:2019:273, paragraph 43 and the case-law cited).
53 In the decision rejecting PQ’s complaint, the Secretary-General examined not only the complaint directed, in essence, against the decision of 14 April 2020 permitting her to work part time, but also PQ’s request, made for the first time in her complaint, for authorisation to work, in the future, on a full-time basis outside her place of employment. It is apparent from the scheme of that decision that the Secretary-General rejected that request on the same grounds as those relied on in support of the rejection of the complaint.
54 Thus, in so far as it rejects the request for authorisation to work full time outside the place of employment, the decision rejecting PQ’s complaint cannot be confirmatory of the contested act and therefore constitutes a measure that is subject to review by the General Court.
2. Admissibility
(a) Admissibility of the claims for annulment in general
55 The Parliament considers that the application lacks clarity as regards the decisions referred to in the various pleas of the claims for annulment. It therefore doubts whether the requirements of clarity imposed by Article 76(d) of the Rules of Procedure of the General Court have been met.
56 The Parliament also takes the view that, in the reply, the applicants extended the scope of the plea of illegality in respect of the Secretary-General’s decision of 31 March 2020 to the second, third and fourth pleas, raised to challenge the lawfulness of the contested decisions. Such a clarification at the stage of the reply, it submits, amounts to an amendment of the application, which is inadmissible.
57 It should be recalled that, in accordance with Article 21 of the Statute of the Court of Justice of the European Union and Article 76(d) of the Rules of Procedure, the application initiating proceedings must contain the subject matter of the dispute and a brief statement of the pleas in law on which the application is based. According to the case-law, the information given must be sufficiently clear and precise to enable the defendant to prepare its defence and the General Court to rule on the application, if necessary without any further supporting information (see, to that effect, judgment of 2 April 2019, Fleig v EEAS, T‑492/17, EU:T:2019:211, paragraph 41 (not published)).
58 Furthermore, the pleas may be expressed in terms of their substance rather than of their legal classification, provided, however, that the application sets those pleas out with sufficient clarity (judgment of 13 May 2020, Agmin Italy v Commission, T‑290/18, not published, EU:T:2020:196, paragraph 96). Moreover, a plea of illegality is raised implicitly in so far as it is quite clear that the applicant is in fact raising such a plea (see judgment of 30 June 2021, GY v ECB, T‑746/19, not published, EU:T:2021:390, paragraph 21 and the case-law cited).
59 In the present case, while it is true that the body of the application does not always expressly identify the measures against which the various pleas and arguments are directed, it is nevertheless clear from paragraphs 2 to 6 of the application and from the form of order sought that the decisions covered by the claims for annulment are the contested decisions, as defined in paragraph 45 above, and, in so far as is necessary, in essence, the decisions rejecting each of the applicants’ complaints against those decisions. Moreover, the applicants confirmed in the reply that those decisions formed the subject matter of the dispute, formal note of which was taken by the Parliament in the rejoinder.
60 Moreover, it is sufficiently clear from the application and the reply that the first plea concerns a plea of illegality in respect of the Secretary-General’s decision of 31 March 2020.
61 The second plea concerns both the legality of the Secretary-General’s decision of 31 March 2020 and the lawfulness of the contested decisions. Although, in the reply, it is stated that the second part of the second plea is raised only in the event that the plea of illegality in respect of the Secretary-General’s decision of 31 March 2020 is rejected, the fact remains that the arguments put forward in that part of the plea also concern the lawfulness of that decision.
62 Furthermore, it is apparent from the arguments raised in the context of the third plea, both in the application and in the reply, that the applicants there challenge the lawfulness of the contested decisions on the ground that they were adopted in breach, first, of the principles of equal treatment and non-discrimination and, second, of the principle of sound administration and the duty to have regard for the welfare of officials. As the applicants confirmed at the hearing, those complaints are directed, in a similar manner in the application and in the reply, at the lawfulness of the contested decisions.
63 Furthermore, the fourth plea, relating to the failure to satisfy the conditions laid down in Article 85 of the Staff Regulations for the recovery of sums unduly paid to an official or other staff member, is raised in the alternative, in the event that the first three pleas should be rejected. This plea concerns only the lawfulness of the decisions to recover overpayments.
64 Therefore, contrary to what the Parliament claims, it must be held that the requirements of Article 76(d) of the Rules of Procedure have been complied with in the present case, and that the reply does not contain any amendment of the scope of the plea of illegality in respect of the Secretary-General’s decision of 31 March 2020.
(b) Admissibility of the claims for annulment of the decisions authorising part-time work and of the decision rejecting PQ’s complaint in so far as it rejects her request to work full time
65 In its replies to the measures of organisation of procedure, the Parliament challenges the admissibility of the claims for annulment of the decisions authorising part-time work. The Parliament considers, in particular, that, by adopting those decisions, it granted the requests of PP, PS and PQ, and that those applicants therefore have no interest in bringing proceedings against those decisions.
66 As a preliminary point, it should be noted that only PP, PS and PQ seek annulment of the decisions authorising part-time work adopted in their regard.
67 It should be borne in mind that an action for annulment brought by a natural or legal person is not admissible unless the applicant establishes a vested and present interest in seeing the contested measure annulled. Such an interest presupposes, inter alia, that the contested measure adversely affects the person who has brought the action and that, accordingly, the annulment of that measure must be capable of procuring an advantage for that person. Therefore, a measure which gives full satisfaction to that person is not, by definition, capable of adversely affecting him or her and that person has no interest in seeking its annulment (see judgment of 1 February 2012, mtronix v OHIM – Growth Finance (mtronix), T‑353/09, not published, EU:T:2012:40, paragraph 16 and the case-law cited; see also, to that effect, judgment of 11 March 2009, TF1 v Commission, T‑354/05, EU:T:2009:66, paragraph 85 and the case-law cited).
68 In the present case, it should be noted that the decisions authorising part-time work in respect of PP, PS and PQ were adopted at the request of those parties, on the basis of the Secretary-General’s decision of 31 March 2020, so that they could join their relatives outside their place of employment, and that the Parliament granted those requests in full.
69 Since the Parliament granted the requests of the applicants concerned, the latter have no interest in seeking annulment of the decisions authorising part-time work, with the result that their claims to that end must be rejected as inadmissible.
70 It is true that the applicants argued that they had been forced to submit requests for part-time work on the basis of the Secretary-General’s decision of 31 March 2020, since that decision constituted the only opportunity to leave their place of employment in order to join their relatives while continuing to work.
71 However, while it is true that the Secretary-General of the Parliament took no decision providing officials with the opportunity to submit a request for permission to work full time outside their place of employment, the fact remains that it was possible for the applicants to submit a request to that effect to the appointing authority, on the basis of Article 90(1) of the Staff Regulations, setting out the specific grounds for their request.
72 Accordingly, the claims for annulment of the decisions authorising part-time work must be rejected as inadmissible.
73 Furthermore, as is apparent from paragraphs 53 and 54 above, PQ, in her complaint, asked the Parliament if she could be given the opportunity to work full time outside her place of employment. She therefore submitted a request to the appointing authority asking it to take a decision relating to her, within the meaning of Article 90(1) of the Staff Regulations, which was rejected in the decision rejecting her complaint.
74 That said, it must be borne in mind that, according to settled case-law, the admissibility of an action brought before the General Court under Article 270 TFEU and Article 91 of the Staff Regulations depends upon the pre-litigation procedure being conducted in the proper manner and upon compliance with the time limits prescribed for that procedure (see judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 64 and the case-law cited). In particular, any action challenging an act adversely affecting an applicant and originating from the appointing authority must, as a general rule, necessarily be preceded by a pre-litigation complaint which has been rejected by an express or implied decision (see, to that effect, judgment of 23 March 2000, Rudolph v Commission, T‑197/98, EU:T:2000:86, paragraph 53).
75 In the present case, however, PQ did not lodge a complaint against the decision rejecting her request to work full time, as contained in the express decision rejecting the complaint at issue. Since the mandatory pre-litigation procedure was not followed, the action for annulment of that decision refusing her request to work full time is manifestly inadmissible.
76 Moreover, if the applicants seek to criticise the Parliament for having exerted psychological pressure on them to request application of the Secretary-General’s decision of 31 March 2020, such pressure would constitute, not an act adversely affecting an official against which an action for annulment could be brought, but conduct not in the nature of a decision on the part of the Parliament which it would be open to the applicants to challenge in an action for damages.
77 In that regard, it should be borne in mind that an action for damages which seeks compensation for damage caused not by an act adversely affecting the applicant the annulment of which is sought, but by conduct not in the nature of a decision of the administration, must, if it is not to be declared inadmissible, be preceded by a two-stage administrative procedure. It is mandatory for that procedure to begin with the submission of a request, for the purposes of Article 90(1) of the Staff Regulations, asking the appointing authority to make good the alleged damage, and be followed, where appropriate, with the lodging of a complaint for the purposes of Article 90(2) of the Staff Regulations against the decision rejecting the request (see, to that effect, judgment of 19 May 1999, Connolly v Commission, T‑214/96, EU:T:1999:103, paragraph 34). Officials or other staff members must submit such a request to the institution within a reasonable period from the time at which they became aware of the situation of which they complain. The reasonableness of a period of time must be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the parties to the case (see, to that effect, judgment of 28 February 2013, Review of Arango Jaramillo and Others v EIB, C‑334/12 RX‑II, EU:C:2013:134, paragraph 28).
78 In the present case, the applicants have not submitted a claim for compensation in respect of the conduct of the Parliament which allegedly put pressure on them to submit a request for permission to work part time.
3. Substance
79 In support of their claims for annulment, the applicants put forward four pleas in law, alleging, first, the unlawfulness of the Secretary-General’s decision of 31 March 2020, second, infringement of Article 4 of Annex VII to the Staff Regulations, a manifest error of assessment, a manifest misinterpretation of the concept of ‘expatriation’, infringement of Articles 62 and 69 of the Staff Regulations and failure to observe the principles of legality and legal certainty, third, failure to observe the principles of equal treatment and non-discrimination, failure to observe the principle of sound administration and breach of the duty to have regard for the welfare of officials, and, fourth, infringement of Article 85 of the Staff Regulations and failure to observe the principle of the protection of legitimate expectations.
80 At the outset, it should be noted that only the first three pleas concern the decisions suspending the expatriation allowance, with the result that the lawfulness of those decisions will be examined in the light of those three pleas.
81 The fourth plea, which relates to the decisions to recover overpayments, is raised in the alternative, in the event that the claims for annulment of the other contested decisions are rejected. It will therefore be necessary to examine this fourth plea only if and in so far as the first three pleas in law, inasmuch as they concern the other contested decisions, are rejected.
(a) The claims for annulment of the decisions suspending the expatriation allowance
82 As is apparent from paragraphs 79 and 80 above, the applicants put forward three pleas in law in support of their claims for annulment of the decisions suspending the expatriation allowance.
83 In particular, in the context of the first plea, the applicants claim that the Secretary-General could not rely on Rule 234(2) of the Rules of Procedure of the Parliament to alter the rights which they derive from the provisions of the Staff Regulations concerning the expatriation allowance.
84 In addition, by the first part of the second plea, the applicants submit that the general suspension of the expatriation allowance, as provided for in the Secretary-General’s decision of 31 March 2020, is contrary to Article 4(1)(a) of Annex VII to the Staff Regulations. Entitlement to the expatriation allowance is, they argue, assessed by reference to the situation of each official or member of staff on the date on which he or she entered the service of the European Union, and is acquired when the conditions laid down in that provision of the Staff Regulations are satisfied. In the present case, there was no event substantially altering the applicants’ situations which would have enabled the Parliament to review their situations as regards the grant of the expatriation allowance.
85 The applicants also claim that, in order to be entitled to the expatriation allowance, an official is not required to reside in the place where he or she is employed. At most, an official is obliged to reside at no greater distance from the place where he or she is employed as is compatible with the proper performance of his or her duties, in accordance with Article 20 of the Staff Regulations. At the time when the decisions suspending the expatriation allowance were adopted, all staff were subject to compulsory teleworking arrangements as a result of the health situation. Thus, the distance from the place from which an official carries out his or her work had to be interpreted taking into consideration the exceptional circumstances arising from the COVID-19 pandemic.
86 The Parliament replies that, although Rule 234(2) of its Rules of Procedure does not contain any delegation of power directly authorising the Secretary-General to adopt specific measures concerning the working conditions of the staff of the Parliament’s Secretariat, the Secretary-General was nevertheless empowered, by a delegation from the Bureau of the Parliament, to adopt internal rules on the working conditions of officials. He was also charged to that effect, by decision of the President of the Parliament, in the light of the rapid development of the COVID-19 pandemic.
87 The Parliament adds that the Secretary-General’s decision of 31 March 2020 does not provide for the withdrawal of the expatriation allowance, but merely for its suspension for the duration of the part-time work arrangement authorised at the request of the person concerned. There was no revision of the applicants’ entitlement to the expatriation allowance, since neither their place of employment nor their degree of integration in the place of employment had changed.
88 According to the Parliament, payment of the expatriation allowance is intended to compensate for the consequences of the official being away from his or her place of origin. The payment of that allowance was therefore no longer justified in respect of the officials who were teleworking outside their place of employment.
89 Furthermore, the obligation to reside at the place of employment, laid down in Article 20 of the Staff Regulations, applies to all officials, including the applicants who are employed in DG ‘Translation’ and those who have recourse to part-time working arrangements, as provided for in Article 55a of and Annex IVa to the Staff Regulations. That obligation is justified by the need to ensure the proper functioning of the institution. In addition, teleworking is not a right under the Staff Regulations and it does not release officials from their obligation to be available to their institution at any time. At the beginning of the health crisis, the proximity of officials to their workplace was essential in order to ensure the continuity of the Parliament’s work.
90 In the present case, it is apparent from the Secretary-General’s decision of 31 March 2020 that, for the period covered by the authorisation to work part time pursuant to that decision, the official would not receive the expatriation allowance provided for in Article 4 of Annex VII to the Staff Regulations, to which he or she was normally entitled. That decision therefore derogates from that provision in relation to the relevant members of staff of the Parliament.
91 Article 4(1) of Annex VII to the Staff Regulations, in the version applicable to the present case (as at 1 January 2020), provides as follows:
‘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,
– 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;
(b) to officials who are or have been nationals of the State in whose territory the place where they are employed is situated but who during the ten years ending at the date of their entering the service habitually resided outside the European territory of that State for reasons other than the performance of duties in the service of a State or of an international organisation.
The expatriation allowance shall not be less than EUR 567.38 per month.’
92 The Secretary-General’s decision of 31 March 2020 was adopted on the basis of Rule 234(2) of the Rules of Procedure of the Parliament. Under that provision, the Secretary-General is to head a secretariat the composition and organisation of which are to be determined by the Bureau of the Parliament.
93 It should be recalled that Rule 234(2) of the Rules of Procedure of the Parliament cannot be interpreted as meaning that the Secretary-General has the power, even in exceptional circumstances such as those linked to the COVID-19 pandemic, to adopt internal directives which derogate from higher-ranking provisions, such as the provisions of the Staff Regulations (see, to that effect and by analogy, judgments of 20 November 2007, Ianniello v Commission, T‑308/04, EU:T:2007:347, paragraph 38, and of 20 March 2018, Argyraki v Commission, T‑734/16, not published, EU:T:2018:160, paragraphs 66 and 67).
94 Furthermore, it should be noted that Article 4(1) of Annex VII to the Staff Regulations does not expressly provide that entitlement to the expatriation allowance may be reassessed in the light of a change in circumstances during the course of an official’s career (judgment of 5 October 2020, Brown v Commission, T‑18/19, EU:T:2020:465, paragraph 36), nor, a fortiori, that payment of that allowance to an official may be suspended where he or she finds it necessary, in the course of his or her career, temporarily to telework outside his or her place of employment.
95 That said, it in no way follows from the wording of Article 4(1) of Annex VII to the Staff Regulations that payment of the expatriation allowance constitutes an established right (see, to that effect, judgment of 28 September 1993, Magdalena Fernández v Commission, T‑90/92, EU:T:1993:78, paragraph 32). An official may have his or her financial rights revised by the institution employing him or her in the event of an irregular grant or irregular continued payment of an element of remuneration (see, to that effect, judgment of 9 March 1978, Herpels v Commission, 54/77, EU:C:1978:45, paragraph 39).
96 In addition, an allowance is paid on a monthly basis to officials who satisfy the conditions for it. The administration cannot therefore continue to pay it where an event occurs which substantially alters the situation of the person receiving it in so far as it affects the conditions governing the grant of that allowance. By contrast to the retroactive withdrawal of a decision, revocation as regards the future is always possible where the circumstances that justified that decision no longer exist (judgment of 5 October 2020, Brown v Commission, T‑18/19, EU:T:2020:465, paragraph 37).
97 It is therefore necessary to ascertain whether, in the present case, the temporary practice of teleworking outside the place of employment in the context of the COVID-19 pandemic constituted an event capable of substantially altering the factual or legal situation of an official receiving an expatriation allowance under Article 4(1) of Annex VII to the Staff Regulations.
98 In that regard, the purpose of the expatriation allowance provided for in Article 69 of the Staff Regulations, the conditions for the granting of which are set out in Article 4(1) of Annex VII to the Staff Regulations, is to compensate officials for the extra expense and inconvenience of taking up employment with the European Union if they have been thereby obliged to change their residence and move to the country of employment and to integrate themselves in a new environment (see judgments of 2 May 1985, De Angelis v Commission, 246/83, EU:C:1985:165, paragraph 13 and the case-law cited; of 29 November 2007, Salvador García v Commission, C‑7/06 P, EU:C:2007:724, paragraph 43 and the case-law cited; and of 24 January 2008, Adam v Commission, C‑211/06 P, EU:C:2008:34, paragraph 38 and the case-law cited).
99 The concept of ‘extra expense and inconvenience’ was explained in Council Information Note GS/84/59 of 11 December 1959 on the expatriation or separation allowance. As the Parliament has observed, it is apparent from that note, which is part of the travaux préparatoires relating to Article 4 of Annex VII to the Staff Regulations, that the ‘expatriation or separation’ allowance is given as compensation for material expenses and moral inconvenience resulting from the fact that the official is away from his or her place of origin and that officials generally maintain family ties with their region of origin.
100 In the light of the foregoing, it is necessary to ascertain whether, in the context of the COVID-19 pandemic, officials who, like the applicants, temporarily changed their actual place of residence in order to care for their close relatives, continued to bear the financial burdens and moral disadvantages resulting from their taking up employment with the European Union in a new environment.
101 As regards the financial burdens, it is apparent from the documents before the Court that the applicants worked outside their place of employment for a brief period, during which they continued to bear costs connected with their residence at their place of employment, such as rent or repayment of a loan, energy bills, water bills and co-ownership maintenance bills. They remained responsible for those costs in view of the fact that the Secretary-General’s decision of 31 March 2020, which constituted an exceptional measure of a temporary nature, allowed them to work outside their place of employment only for an initial period of three months, during the COVID-19 pandemic the duration of which nobody could have foreseen.
102 Thus, in the exceptional circumstances linked to the COVID-19 pandemic, the payment of the expatriation allowance to the applicants had in no way lost its raison d’être.
103 It is true that the grant of the expatriation allowance under Article 4(1) of Annex VII to the Staff Regulations is intrinsically linked to the residence obligation imposed on officials of the European Union, laid down in Article 20 of the Staff Regulations, under which, first, every official is required to reside either in the place where he or she is employed or at no greater distance therefrom as is compatible with the proper performance of his or her duties and, second, an official is required to notify the appointing authority of his or her address and inform it immediately of any change of address.
104 However, Article 20 of the Staff Regulations must be read in conjunction with Article 55(1) thereof, according to which officials in active employment are required at all times to be at the disposal of their institution. It follows that an official who does not reside in his or her place of employment must nevertheless be in a position to travel to his or her workplace at any time, in accordance with the rules governing the organisation of work applicable to him or her, in order to carry out there the duties assigned to him or her in the interests of the service.
105 In the exceptional circumstances linked to the COVID-19 pandemic, the internal rules on teleworking and on the physical presence of staff members on Parliament premises were temporarily no longer applicable, as evidenced by the various decisions taken by the Secretary-General at the beginning of the pandemic, referred to in paragraphs 4 to 7 above. All members of staff whose presence was not considered essential were required to telework on a full-time basis from 16 March 2020, including the applicants, as is apparent from paragraph 5 above.
106 The Parliament cannot therefore maintain that the ‘general suspension’ of the payment, including to the applicants, of the expatriation allowance provided for in the Secretary-General’s decision of 31 March 2020 was linked to non-compliance with the residence obligation laid down in Article 20 of the Staff Regulations.
107 Furthermore, the Staff Regulations do not contain any provision allowing an EU institution, body, office or agency to suspend payment of the expatriation allowance, even in exceptional circumstances such as those linked to the COVID‑19 pandemic.
108 Thus, the suspension of the expatriation allowance provided for by the Secretary-General’s decision of 31 March 2020 is contrary to Article 4(1) of Annex VII to the Staff Regulations.
109 Moreover, it should be noted that, although the Secretary-General’s decision of 31 March 2020 did not definitively withdraw entitlement to the expatriation allowance, but merely suspended it for a limited period, that suspension nevertheless had the effect of reducing the applicants’ remuneration during that period, with no possibility of recovering it.
110 Therefore, the fact that the Secretary-General’s decision of 31 March 2020 provided for only the suspension of the expatriation allowance of the Parliament officials concerned, such as the applicants, and not the withdrawal of that allowance, is not such as to remove the unlawfulness of that decision.
111 In the light of the foregoing, it must be concluded that the Secretary-General’s decision of 31 March 2020 was adopted in infringement of higher-ranking provisions, with the result that the Secretary-General exceeded the limits of his powers in that regard. That decision infringes Article 4(1) of Annex VII to the Staff Regulations, in so far as that decision provides for the suspension of payment of the expatriation allowance to officials temporarily teleworking outside their place of employment in order to care for their close relatives in the context of the COVID-19 pandemic.
112 Consequently, the decisions suspending the expatriation allowance have no legal basis, with the result that they must be annulled, without it being necessary to rule on the other pleas and arguments raised by the applicants in support of their claims for annulment of those decisions.
(b) The claims for annulment of the decisions to recover overpayments
113 It should be recalled that only PT and PR seek the annulment of the decisions to recover overpayments contested by the present action for annulment.
114 In the fourth plea, which is the only plea invoked in support of the claims for annulment of the decisions to recover overpayments, the applicants submit, in the alternative, in the event that the claims for annulment of the other contested decisions are dismissed, that the conditions laid down in Article 85 of the Staff Regulations for recovery of undue payments are not satisfied. They add that, when the Secretary-General’s decision of 31 March 2020 was adopted, PT and PR had already made arrangements to travel to their respective families outside their place of employment, and that accordingly they had a legitimate expectation that they would retain their full remuneration.
115 The Parliament disputes the applicants’ arguments.
116 In the present case, as is apparent from paragraph 112 above, the decisions suspending the expatriation allowance have no legal basis and must be annulled. By contrast, the claims for annulment of the decisions authorising part-time work have been rejected as inadmissible, as has the action in so far as it was brought against the decision rejecting PQ’s request to work full time. Since the fourth plea is invoked only in the alternative, in the event the claims for annulment of the other contested decisions are rejected, it is necessary to examine this plea only in so far as it concerns the recovery of the part of PT and PR’s remuneration connected to the limitation of their working time to 75%.
117 In that regard, in the first place, it should be recalled that the first paragraph of Article 85 of the Staff Regulations provides that any sum overpaid is to be recovered if the recipient was aware that there was no due reason for the payment or if the fact of the overpayment was patently such that he or she could not have been unaware of it.
118 In the present case, it is clear from the Secretary-General’s decision of 31 March 2020 that the officials who were authorised to participate in the derogating regime established by that decision would receive remuneration calculated pro rata on the basis of the time worked, namely 75%. PR and PT, who had requested to benefit from the scheme established by that decision, could not therefore have been unaware, at the very least, of the financial consequences of the authorisation that would be granted to them.
119 In the second place, as regards the alleged failure to observe the principle of the protection of legitimate expectations, it should be borne in mind that three conditions must be satisfied in order to claim entitlement to such protection. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the EU administration. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules (judgment of 12 February 2020, ZF v Commission, T‑605/18, EU:T:2020:51, paragraph 151).
120 In the present case, however, the applicants do not put forward any evidence capable of demonstrating that precise, unconditional and consistent assurances were given to PR or PT by the Parliament giving rise to a legitimate expectation that their full remuneration would continue to be paid for the period during which they would be working part time outside their place of employment. Furthermore, such maintenance would be contrary to the first paragraph of Article 3 of Annex IVa to the Staff Regulations, which provides that an official is entitled, during the period for which part-time work is authorised, to a percentage of his or her remuneration corresponding to the percentage of the normal time worked.
121 The fourth plea in law is therefore unfounded.
122 Consequently, the claims for annulment of the decisions to recover overpayments, which are based on the fourth plea, must be rejected, without it being necessary to examine the admissibility of those claims in so far as they were made by PT.
4. Conclusion on the claims for annulment
123 It follows from the foregoing that the claims for annulment of the decisions suspending the expatriation allowance must be upheld on the basis of the first part of the second plea in law.
124 By contrast, the claims for annulment of the decisions authorising part-time work are rejected as inadmissible and the claim for annulment of the decision rejecting PQ’s complaint, in so far as it rejects her request for full time work, is rejected as manifestly inadmissible. In addition, the claims for annulment of the decisions to recover overpayments must be rejected as being, in any event, unfounded.
B. The claims for compensation
125 In their claims for compensation, the applicants seek, first, compensation for the material damage corresponding to 25% of their remuneration, together with compensatory interest and default interest accrued and, second, compensation for the non-material damage suffered, which they assess ex aequo et bono at EUR 1 000 for each of them.
126 The applicants claim that that damage results from the absence of a legal basis and the unlawfulness of the Secretary-General’s decision of 31 March 2020, as well as from maladministration on the part of the Parliament and from the Parliament’s failure to have regard for their welfare. They also allege infringement of their right to working conditions that respect their health and dignity, and the existence of an administrative fault on the part of the Parliament, inasmuch as it did not entrust them with full-time work.
127 The Parliament disputes the applicants’ arguments.
128 As a preliminary point, it should be recalled that an action for compensation brought pursuant to Article 270 TFEU may succeed on its merits only if a number of factors are proven: the illegality of the allegedly wrongful act committed by the institutions; actual harm suffered; and the existence of a causal link between the act and the damage alleged to have been suffered (judgments of 1 June 1994, Commission v Brazzelli Lualdi and Others, C‑136/92 P, EU:C:1994:211, paragraph 42, and of 21 February 2008, Commission v Girardot, C‑348/06 P, EU:C:2008:107, paragraph 52). Those three conditions are cumulative, with the result that failure to satisfy one of them is sufficient for an action for damages to be dismissed.
1. Material damage
129 As regards the material damage alleged, it should be noted that the applicants seek solely compensation for material damage corresponding to 25% of their remuneration, together with compensatory interest and default interest accrued. That damage is linked, in essence, to the reduction in their working hours to 75% following the adoption of the decisions authorising part-time work.
130 According to settled case-law in civil service matters, a claim for compensation for damage must be dismissed where it is closely associated with a claim for annulment which has itself been dismissed either as inadmissible or as unfounded (judgment of 30 September 2003, Martínez Valls v Parliament, T‑214/02, EU:T:2003:254, paragraph 43; see also, to that effect, judgment of 9 April 2019, Aldridge and Others v Commission, T‑319/17, not published, EU:T:2019:231, paragraph 64).
131 In the present case, the claims for compensation for material damage are closely linked to the claims for annulment of the decisions authorising part-time work, which were rejected as inadmissible, and to the claim for annulment of the decision rejecting PQ’s complaint in so far as it rejected her request to work full time, which was rejected as manifestly inadmissible.
132 Furthermore, the applicants do not put forward any argument that would serve to explain how the Secretary-General’s decision of 31 March 2020, which allowed officials to work near their close relatives in the context of the COVID-19 pandemic, infringed their right to working conditions which respect their health and dignity.
133 Consequently, the claims for compensation for material damage must be rejected.
2. Non-material damage
134 The claims for compensation for non-material damage resulting from the adoption of the decisions authorising part-time work must be rejected for the same reasons as those set out in paragraphs 130 to 132 above.
135 As regards compensation for the non-material damage suffered as a result of the adoption of the decisions suspending the expatriation allowance, it is apparent from paragraph 112 above that those decisions must be annulled on the ground that the Secretary-General’s decision of 31 March 2020, on which they are based, is unlawful. The condition relating to the unlawfulness of the conduct of the administration, referred to in paragraph 128 above, is therefore satisfied.
136 However, it should be borne in mind that the annulment of an unlawful measure may constitute, in itself, adequate and, in principle, sufficient compensation for all non-material damage which that measure may have caused, unless the applicant shows that he or she has suffered non-material damage which is incapable of being entirely repaired by that annulment (judgment of 28 April 2021, Correia v EESC, T‑843/19, EU:T:2021:221, paragraph 86).
137 In the present case, the applicants submit that the annulment of the decisions suspending the expatriation allowance will not constitute adequate and sufficient compensation for the non-material damage suffered, in view of the adverse effect on their dignity and the quality of their professional life, as well as the anxiety caused and the health problems from which PP in particular has suffered. In the reply, the applicants add that the loss of part of their remuneration caused insomnia and stress attacks.
138 That said, it must be held that the applicants have not adduced any evidence capable of substantiating their assertions. Nor do they explain how the decisions suspending the expatriation allowance may have adversely affected their dignity and the quality of their professional life.
139 Consequently, the claims for compensation for material and non-material damage must be rejected.
IV. Costs
140 Under Article 134(3) of the Rules of Procedure, the parties are to bear their own costs where each party succeeds on some and fails on other heads. However, if it appears justified in the circumstances of the case, the General Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party.
141 In the present case, the claims for annulment are upheld as regards the decisions suspending the expatriation allowance. By contrast, the claims for annulment have been rejected in so far as concerned the decisions authorising part-time work and the decisions to recover overpayments, and in so far as those claims was directed against the decision rejecting PQ’s request to work full time contained in the decision rejecting her complaint. The claims for damages have also been rejected.
142 In the circumstances of the present case, the applicants must be ordered to bear half of their own costs. The Parliament, in addition to bearing its own costs, must pay half of the applicants’ costs.
On those grounds,
THE GENERAL COURT (Seventh Chamber, Extended Composition)
hereby:
1. Annuls the decision of the European Parliament of 19 May 2020 suspending PP’s expatriation allowance;
2. Annuls the decision of the Parliament of 7 April 2020 suspending PR’s expatriation allowance;
3. Annuls the decision of the Parliament of 15 April 2020 suspending PQ’s expatriation allowance;
4. Annuls the decision of the Parliament of 15 April 2020 suspending PS’s expatriation allowance;
5. Annuls the decision of the Parliament of 16 April 2020 suspending PT’s expatriation allowance;
6. Dismisses the remainder of the action;
7. Orders PP, PS, PR, PQ and PT to bear half of their own costs;
8. Orders the Parliament, in addition to bearing its own costs, to pay half of the costs of PP, PS, PR, PQ and PT.
da Silva Passos | Valančius | Reine |
Delivered in open court in Luxembourg on 19 April 2023.
[Signatures]