Opinion of the Advocate General — ECLI:EU:C:2023:387
Date: 2023-05-04
Language of the case: English
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Appeal - unfounded;Staff cases

summary, I propose that the Court should order as follows: (1) The appeal is dismissed. (2) The appellant shall pay the costs of the appeal proceedings. 1 Original language: German. 2 Regulation No 31 (EEC) 11 (EAEC) laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community (OJ 1962 45, p. 1385). 3 Judgment in QB v Commission (T‑71/21, not published, EU:T:2021:868). 4 In that regard, it is appropriate to note, for example, the judgment of 30 March 1993, Vardakas v Commission (T‑4/92, EU:T:1993:29), in which the General Court held that the Comité européen de normalisation, an international non-profit association under Belgian law, is an ‘international organisation’ within the meaning of the second sentence of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations. 5 Judgments of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraph 61); of 14 January 2016, Vodafone (C‑395/14, EU:C:2016:9, paragraph 40); of 25 January 2018, Commission v Czech Republic (C‑314/16, EU:C:2018:42, paragraph 47); of 15 March 2022, Autorité des marchés financiers (C‑302/20, EU:C:2022:190, paragraph 63); and of 12 January 2023, Österreichische Post (Information regarding the recipients of personal data) (C‑154/21, EU:C:2023:3, paragraph 29). 6 See, to that effect, judgments of 26 January 2021, Hessischer Rundfunk (C‑422/19 and C‑423/19, EU:C:2021:63, paragraph 65), and of 17 January 2023, Spain v Commission (C‑632/20 P, EU:C:2023:28, paragraphs 40 to 42). 7 In certain cases, it is conceivable that a staff member’s main occupation cannot be determined because he or she carries on several occupations with the same time commitment. In such cases, carrying on one of those occupations in the subsequent country of employment during the reference period would not prevent the expatriation allowance being granted. 8 Judgments of 24 January 2008, Adam v Commission (C‑211/06 P, EU:C:2008:34, paragraphs 38 and 39); of 21 June 2007, Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:367, paragraphs 35 and 36); of 29 November 2007, Salvador García v Commission (C‑7/06 P, EU:C:2007:724, paragraphs 43 and 44); of 29 November 2007, Salazar Brier v Commission (C‑9/06 P, EU:C:2007:726, paragraphs 41 and 42); of 29 November 2007, Herrero Romeu v Commission (C‑8/06 P, EU:C:2007:725, paragraphs 37 and 38); of 29 November 2007, De Bustamante Tello v Council (C‑10/06 P, EU:C:2007:727, paragraphs 33 and 34); 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); see judgments of 15 September 1994, Magdalena Fernández v Commission (C‑452/93 P, EU:C:1994:332, paragraph 20), and of 15 September 2022, Brown v Commission and Council (C‑675/20 P, EU:C:2022:686, paragraph 46). 9 Opinion of Advocate General Mengozzi in Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:169, point 44, footnote 23). 10 See judgment of 28 February 2019, Pozza v Parliament (T‑216/18, not published, EU:T:2019:118, paragraph 39). 11 See, to that effect, judgments of 30 June 2005, Olesen v Commission (T‑190/03, EU:T:2005:264, paragraph 34), and of 28 February 2019, Pozza v Parliament (T‑216/18, not published, EU:T:2019:118, paragraph 50). 12 See, to that effect, judgment of 25 November 2020, UI v Commission (T‑362/19, not published, EU:T:2020:562, paragraph 53); similarly, judgment of 13 December 2004, E v Commission (T‑251/02, EU:T:2004:357, paragraphs 57 and 72). 13 Judgment of 31 May 1988, Nuñez v Commission (211/87, EU:C:1988:275, paragraph 10); judgments of 8 April 1992, Costacurta Gelabert v Commission (T‑18/91, EU:T:1992:56, paragraph 41); of 13 April 2000, Reichert v Parliament (T‑18/98, EU:T:2000:113, paragraph 25); of 3 May 2001, Liaskou v Council (T‑60/00, EU:T:2001:129, paragraph 52); of 30 June 2005, Olesen v Commission (T‑190/03, EU:T:2005:264, paragraph 61); and of 25 November 2020, UI v Commission (T‑362/19, not published, EU:T:2020:562, paragraph 37). 14 See order of 6 July 2021, Karpeta-Kovalyova v Commission (C‑717/20 P, not published, EU:C:2021:542, paragraphs 11 and 12). 15 Joined Opinion of Advocate General Bot in Salvador García v Kommission (C‑7/06 P); Herrero Romeu v Commission (C‑8/06 P); Salazar Brier v Commission (C‑9/06 P); and De Bustamante Tello v Council (C‑10/06 P) (EU:C:2007:324, points 123 to 131). 16 Judgments of 29 November 2007, Salvador García v Commission (C‑7/06 P, EU:C:2007:724, paragraph 42); of 29 November 2007, Herrero Romeu v Commission (C‑8/06 P, EU:C:2007:725, paragraph 36); and of 29 November 2007, Salazar Brier v Commission (C‑9/06 P, EU:C:2007:726, paragraph 40); Joined Opinion of Advocate General Bot in Salvador García v Commission (C‑7/06 P); Herrero Romeu v Commission (C‑8/06 P); Salazar Brier v Commission (C‑9/06 P); and De Bustamante Tello v Council (C‑10/06 P) (EU:C:2007:324, point 136). 17 Judgments of 21 June 2007, Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:367, paragraph 37); of 29 November 2007, Salvador García v Commission (C‑7/06 P, EU:C:2007:724, paragraph 45); of 29 November 2007, Herrero Romeu v Commission (C‑8/06 P, EU:C:2007:725, paragraph 39); of 29 November 2007, Salazar Brier v Commission (C‑9/06 P, EU:C:2007:726, paragraph 43); of 29 November 2007, De Bustamante Tello v Council (C‑10/06 P, EU:C:2007:727, paragraph 35); and of 24 January 2008, Adam v Commission (C‑211/06 P, EU:C:2008:34, paragraph 40). 18 Judgments of 21 June 2007, Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:367, paragraph 38); of 29 November 2007, Salvador García v Commission (C‑7/06 P, EU:C:2007:724, paragraph 46); of 29 November 2007, Herrero Romeu v Commission (C‑8/06 P, EU:C:2007:725, paragraph 40); of 29 November 2007, Salazar Brier v Commission (C‑9/06 P, EU:C:2007:726, paragraph 44); of 29 November 2007, De Bustamante Tello v Council (C‑10/06 P, EU:C:2007:727, paragraph 36); and of 24 January 2008, Adam v Commission (C‑211/06 P, EU:C:2008:34, paragraph 41). 19 See, on those considerations, Opinion of Advocate General Mengozzi in Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:169, points 54 to 56). 20 Opinion of Advocate General Mengozzi in Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:169, point 57). 21 To that effect, Opinion of Advocate General Mengozzi in Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:169, point 57). 22 The case under consideration falls within the scope of Article 4(1)(a) of Annex VII to the Staff Regulations, since the appellant is not a national of his country of employment (Belgium) but is a Polish national. Nevertheless, since he carried on his main occupation in Belgium during the reference period, he is not entitled to the expatriation allowance unless he worked for another State (or an international organisation). In those circumstances, a broad interpretation of the phrase ‘work done for another State’ would benefit him. If, however, an entry into service in Poland were at issue, and the appellant had carried on his main occupation in Belgium for a period of at least 10 years, he would be entitled to the expatriation allowance only if he had not performed duties in the service of a State or of an international organisation. In that scenario – which is not the one in the present case – a broad interpretation of that phrase would therefore be detrimental to him. 23 See, in extenso my Opinion in Brown v Commission (C‑675/20 P, EU:C:2022:287, points 36 to 42 and 50). 24 See my Opinion in Brown v Commission (C‑675/20 P, EU:C:2022:287, points 40 and 41). 25 See Opinion of Advocate General Mengozzi in Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:169, point 90); on that consideration with regard to the interpretation of the criterion of ‘main occupation’, see also above under point 53. 26 See judgment of 15 January 1981, Vutera v Commission (1322/79, EU:C:1981:6, paragraph 9) and judgment of the General Court of 13 December 2004, E v Commission (T‑251/02, EU:T:2004:357, paragraph 126). 27 An example of that would be the temporary secondment of an employee of a private company to a foreign office of that company. Thus, in the judgment of 13 December 2004, E v Commission (T‑251/02, EU:T:2004:357) the General Court held that a person who had been an employee of an English law firm in London (England) and had been temporarily seconded to the Brussels office of that firm did not benefit from the neutralisation rule. 28 Judgment of 21 June 2007, Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:367, paragraph 39). 29 Judgment of 21 June 2007, Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:367, paragraph 42). 30 Judgment of 21 June 2007, Commission v Hosman-Chevalier (C‑424/05 P EU:C:2007:367, paragraph 44). 31 Judgment of 21 June 2007, Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:367, paragraphs 42 and 43); see the judgments referring to the above of 29 November 2007, Salvador García v Commission (C‑7/06 P, EU:C:2007:724, paragraph 51); of 29 November 2007, Herrero Romeu v Commission (C‑8/06 P, EU:C:2007:725, paragraph 45); of 29 November 2007, Salazar Brier v Commission (C‑9/06 P, EU:C:2007:726, paragraph 49); and of 29 November 2007, De Bustamante Tello v Council (C‑10/06 P, EU:C:2007:727, paragraph 41). 32 Judgment of 21 June 2007, Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:367, paragraph 45). 33 Judgments of 29 November 2007, Salvador García v Commission (C‑7/06 P, EU:C:2007:724, paragraphs 50 and 60); of 29 November 2007, Herrero Romeu v Commission (C‑8/06 P, EU:C:2007:725, paragraphs 50 and 54); of 29 November 2007, Salazar Brier v Commission (C‑9/06 P, EU:C:2007:726, paragraphs 54 and 58); and of 29 November 2007, De Bustamante Tello v Council (C‑10/06 P, EU:C:2007:727, paragraphs 46 and 50). 34 Corresponding wording can also be found in the Italian-language version (‘servizi effettuati per un altro Stato’), the Spanish-language version (‘servicios prestados a otro Estado’) and the Portuguese-language version (‘serviços prestados a um outro Estado’). 35 Corresponding wording can also be found in the Italian-language version (‘esercizio di funzioni al servizio di uno Stato’), the Spanish-language version (‘ejercicio de funciones al servicio de un Estado’) and the Portuguese-language version (‘exercício de funções num serviço de qualquer Estado’). 36 Judgment of 30 March 1993, Vardakas v Commission (T‑4/92, EU:T:1993:29, paragraph 36), also judgment of 28 November 2019, Wywiał-Prząda v Commission (T‑592/18, EU:T:2019:820, paragraph 35). 37 Judgment of 21 June 2007, Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:367, paragraph 45). 38 In that respect, the General Court has ruled in one case that work as an independent adviser to the Commission falls within the scope of the exception relating to work for an international organisation, see judgment of 14 December 1995, Diamantaras v Commission (T‑72/94, EU:T:1995:212, paragraph 52). 39 Judgment of 21 June 2007, Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:367, paragraph 45). 40 Judgment of 21 June 2007, Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:367, paragraph 44). 41 Whether work for a political sub-unit of a State, such as regional governments, autonomous communities or other territorial authorities, falls under the neutralisation rule is not decisive in the present case. It can therefore be left open here whether the Court of Justice expressly rejected that in its judgments of 29 November 2007, Salvador García v Commission (C‑7/06 P, EU:C:2007:724); of 29 November 2007, Herrero Romeu v Commission (C‑8/06 P, EU:C:2007:725); of 29 November 2007, Salazar Brier v Commission (C‑9/06 P, EU:C:2007:726); and of 29 November 2007, De Bustamante Tello v Council (C‑10/06 P, EU:C:2007:727). 42 In that respect, it would be worth considering whether the respective work is accompanied by certain privileges and immunities, such as may arise from the Vienna Convention on Diplomatic Relations of 18 April 1961 or other treaties under international law. For in those cases at least, there is a sufficiently relevant difference from persons who are temporarily posted abroad by a private – natural or legal – person and work there, for example, in a branch office. Moreover, the criterion of the existence of certain privileges and immunities for the benefit of the person would allow an objective and clear application of the neutralisation rule. 43 See, in that regard, my comments in points 71 to 73.