Case T‑119/17

Ruben Alba Aguilera and Others

v

European External Action Service

(Civil service — Officials — Members of the temporary staff — Members of the contract staff — Remuneration — EEAS staff posted to a third country — Article 10 of Annex X to the Staff Regulations — Annual assessment of the allowance for living conditions — Decision reducing the allowance for living conditions in Ethiopia from 30% to 25% — Failure to adopt general implementing provisions giving effect to Article 10 of Annex X to the Staff Regulations — Liability — Non-material damage)

Summary — Judgment of the General Court (Fifth Chamber), 13 April 2018

1.      Officials — Remuneration — Financial rules applicable to officials posted to a third country — Allowance for living conditions — Conditions for granting — Obligation for the institutions to adopt general implementing provisions

(Staff Regulations of Officials, Art. 110 and Annex X, Art. 1, third para., and Art. 10)

2.      Officials — Staff Regulations — General implementing provisions — Procedure for adopting — Obligation for the authority to seek the opinion of the Staff Regulations committee — Scope

(Staff Regulations of Officials, Art. 110)

3.      Officials — Non-contractual liability of the institutions — Failure in the obligation to implement an annulling judgment — Maladministration giving rise, in itself, to non-material damage

(Arts 266 TFEU and 340, second para, TFEU)

4.      Actions brought by officials — Judgment annulling a measure — Scope — Absence of obligation for the institution concerned to re-examine decisions similar to the measure annulled but uncontested in judicial proceedings

(Art. 266(1) TFEU)

5.      Actions brought by officials — Actions for damages — Annulment of the illegal act in dispute — Whether appropriate reparation for non-material damage

(Staff Regulations of Officials, Art. 91)

1.      The obligation deriving from the third paragraph of Article 1 of Annex X to the Staff Regulations to adopt general implementing provisions relating to Article 10 of that annex prior to adopting a decision revising the amount of the allowance for living conditions (ALC) applicable to agents posted to third countries is explained by the fact that that Article 10 confers a particularly broad margin of appreciation on the appointing authority with respect to the determination of the living conditions in third countries.

Thus, in providing for such an obligation, the legislature intended, firstly, that the criteria to be applied in that determination should be established according to the procedure for adopting general implementing provisions described in Article 110(1) of the Staff Regulations, a procedure which allows the appointing authority to seek clarification about the relevant parameters by consulting its staff committee and seeking the opinion of the Staff Regulations committee. Secondly, the legislature intended the criteria to be established in the abstract, independently of any procedure designed to revise, in a specific case, the amount of the ALC applicable to agents posted to a third country, in order to avoid the risk that the choice of criteria might be influenced by the outcome which the administration hoped to obtain.

That being so, the third paragraph of Article 1 of Annex X to the Staff Regulations cannot be regarded as merely setting down a formal requirement to be met by a decision revising the amount of the ALC applicable to agents posted to third countries. Instead, it provides that the prior adoption of general implementing provisions in accordance with the procedure described in Article 110(1) of the Staff Regulations is a mandatory requirement which must be fulfilled in order for a decision to be legally adopted.

(see paras 32, 33)

2.      The EU legislature has expressly laid down, in Article 110 of the Staff Regulations, a mandatory provision which distinguishes clearly between the obligation on the part of the appointing authority or authority empowered to conclude contracts of employment to consult the staff committee of the institution concerned and the obligation to seek the opinion of the Staff Regulations committee. The fact that Article 110 of the Staff Regulations confers competence on the Staff Regulations committee to issue opinions on all general implementing provisions, which must be able to set out its own views on the criteria guiding the exercise by the administration of its broad discretionary power, necessarily implies that such an opinion is such as to influence the decision of the appointing authority or the authority empowered to conclude contracts.

The opinion of an external inter-institutional body, such as the Staff Regulations committee, is therefore necessary in order to ensure that the implementing measures of the Staff Regulations, taken by the different institutions, are consistent and respect the principle of the integrity of the Staff Regulations.

(see para. 37)

3.      See the text of the decision.

(see para. 47)

4.      Although the first paragraph of Article 266 TFEU requires the institution whose act was annulled by the EU courts to ensure that any act intended to replace the annulled act is not vitiated by the same irregularities as those identified in the judgment annulling the original act, that provision does not mean that it must re-examine identical or similar decisions allegedly affected by the same irregularity, addressed to addressees other than the applicant.

(see para. 48)

5.      See the text of the decision.

(see para. 50)