62022TJ0448_RES
Case T‑448/22
PW
v
European External Action Service
Judgment of the General Court (Fourth Chamber) of 2 October 2024
(Civil service – Contract staff – Refusal to reimburse annual travel expenses for dependent children – Article 8(1) of Annex VII to the Staff Regulations – Action for annulment – Act adversely affecting an official – Decision which definitively lays down the position of the administration – Admissibility – Principle of sound administration – Duty to have regard for the welfare of staff)
Actions brought by officials – Act adversely affecting an official – Concept – Response from the administration that cannot be regarded as definitively establishing the position of the institution on account of the absence of relevant information – Not included
(Staff Regulations of Officials, Arts 90 and 91)
(see paragraphs 31, 33, 34, 41, 42)
Officials – Reimbursement of expenses – Annual travel expenses – Conditions and procedures – Discretion of the EU legislature – Adoption of general implementing provisions providing for the payment in a specific month on the basis of the family circumstances of the recipient – Determination by the administration of a reasonable deadline allowing the recipient to communicate that information – Whether permissible
(Staff Regulations of Officials, Annex VII, Art. 8(1))
(see paragraphs 57-62, 65, 66)
Acts of the institutions – Internal directives – Concept – Rule published on an institution’s intranet site – Included – Legal effects
(see paragraphs 64, 68, 72)
Actions brought by officials – Pleas in law – Plea in law alleging infringement of the duty to have regard for the welfare of staff – Challenge to the administration’s application of a time limit in respect of the applicant – No explanation of the errors allegedly made in the balancing of interests – General reference to the effects of the COVID-19 pandemic – Rejection
(Staff Regulations of Officials, Annex VII, Art. 8)
(see paragraphs 78-80)
Judicial proceedings – Costs – Costs caused unreasonably or vexatiously – Conduct of an institution making a dispute more likely
(Rules of Procedure of the General Court, Art. 135(2))
(see paragraph 85)
Résumé
In this judgment, the General Court dismisses the action brought by PW, a member of the contract staff of the European External Action Service (EEAS), against the EEAS’s implied decision rejecting his request for payment of annual travel expenses for his dependent children for the whole of 2020.
On this occasion, the Court supplements the existing case-law in relation to the concept of ‘act adversely affecting an official’. It also provides clarification with regard to the nature of annual travel expenses and the interpretation of Article 8 of Annex VII to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) which governs the payment of those expenses, and the legal force of rules available on the institutions’ intranet.
In February 2020, the applicant joined the Delegation of the European Union in Washington, DC (United States). The applicant’s wife was working for the European Parliament in Brussels (Belgium). Since she was on a higher salary grade, it was she who received the family allowances and, as a result, the payment of annual travel expenses.
In June, the applicant contacted the EEAS to request the payment of annual travel expenses for his four dependent children and, subsequently, took a number of steps in accordance with the instructions of the EEAS and the Office for the Administration and Payment of Individual Entitlements (PMO) in order that those expenses would be paid to him.
Since the deadline laid down for changing the recipient of the payment of annual travel expenses for the current year, namely 2 May, had not been complied with by the applicant, the payment of the annual travel expenses for the couple’s children, calculated on the basis of the distance between Brussels and Madrid (Spain), was paid by the Parliament in July 2020 to the applicant’s wife.
The applicant requested correction of the payment of those expenses. By email of 18 January 2021, the EEAS informed the applicant that a payment of ‘2/12’ for his dependent children would be made with his salary for February.
Having not received the payment expected with his salary for February or March, the applicant repeated his request several times. By email of 29 March 2021, the PMO informed him that a detailed analysis of his file had revealed that a reimbursement of annual travel expenses for his dependent children had already been received with his salaries for August 2020, December 2020 and February 2021.
By email of 30 March 2021, the applicant, being of the view that he was entitled to receive payment of the full annual travel expenses for his dependent children in respect of the year 2020, disputed the amount indicated by the PMO. The EEAS did not reply to that e-mail.
The applicant lodged a complaint against the implied decision refusing to correct the calculation of the reimbursement of the expenses in question. That complaint was deemed inadmissible, on the ground that it was lodged out of time, by the EEAS, which considered that the act adversely affecting the applicant was the email of 18 January 2021.
Against that background, the applicant brought an action before the Court for annulment of the implied decision.
Findings of the Court
First, the Court notes that only measures which come from the competent authority and which produce binding legal effects of such a kind as to directly and immediately affect the applicant’s interests by bringing about a distinct change in his or her legal position constitute acts adversely affecting him or her, and definitively establish the position of the institution. Classification as an act adversely affecting an official does not depend on the form or title of that act, but is determined by its substance.
The Court finds, in that regard, that the information given by the EEAS in the email of 18 January 2021 did not make it possible for the applicant to understand that payment of the remainder of the sum was being refused. Accordingly, that email could not be regarded as laying down the EEAS’s definitive position on the payment of annual travel expenses for the applicant’s dependent children. It could not therefore constitute the event from which the three-month period provided for by Article 90(2) of the Staff Regulations began to run.
It follows that the applicant was entitled to submit to the administration, on 30 March 2021, a request that it take a decision relating to him. Failure to reply to that request within a period of four months from the date on which it was made constitutes, in accordance with Article 90(2) of the Staff Regulations, an implied decision rejecting it and the applicant was entitled to lodge a complaint seeking its annulment on 28 October 2021, which was within the three-month period provided for in Article 90(2) of the Staff Regulations.
Second, as regards Article 8 of Annex VII to the Staff Regulations, the Court notes that its objective is to enable the official and his or her dependants to return to the official’s place of origin once or twice a year in order to maintain family, social and cultural links there. However, it was in the exercise of its discretion that the legislature decided that members of the EU civil service would be reimbursed for the annual travel expenses incurred in connection with their annual leave, even though no higher rule of EU law or of international law required it to confer such an entitlement on officials and members of their families. Accordingly, it has a wide discretion to determine the conditions and arrangements for such reimbursement.
Thus, in order to manage the payment of annual travel expenses for dependent children within the time limit laid down by the general implementing provisions giving effect to Article 8 of Annex VII to the Staff Regulations (‘the general implementing provisions’), adopted by the European Commission and applicable to the EEAS, the PMO set the deadline of 2 May for submitting the request provided for by that article, which determines which of the parents’ places of origin will be taken into account as the basis for payment. Setting such a deadline is both reasonable and necessary to ensure that the administration is able to manage a large number of files and pay annual travel expenses within the time limit provided for by the general implementing provisions.
In that regard, the rule set out on the intranet page referring to the 2 May deadline reflects the implied decision of the EEAS to make no distinction between staff posted within the European Union and those posted outside the European Union. It thus constitutes an internal directive aimed at ensuring that the officials concerned receive the same treatment as regards the payment of annual travel expenses. The decision of an institution communicated to all its staff and setting out the applicable procedure as part of its discretion constitutes an internal directive which must, as such, be regarded as a rule of conduct which the administration imposes on itself and from which it may not depart without specifying the reasons for doing so, since otherwise the principle of equality of treatment would be infringed.
Moreover, in view of the flat-rate nature of the payment and the deadline set by the general implementing provisions for making it, the PMO did not exceed its discretion when it stipulated that the request provided for in Article 8(1) of the Staff Regulations could not be applied retroactively. Compliance with that deadline is not a precondition for the payment of annual travel expenses, which is a right provided for in the Staff Regulations and which will be made to one or other of the parents, but merely aims to enable the administration to have information in good time relating to the geographical distance on the basis of which the amount of the payment is calculated.
Moreover, the applicant cannot validly claim that he was unaware of the deadline for making the joint request provided for in Article 8(1) of Annex VII to the Staff Regulations. That time limit is accessible to EEAS staff on the intranet page of that institution, which is sufficient to establish the knowledge of officials and other staff members in post who have access to it.
Accordingly, in the light of the late submission of the applicant and his wife’s joint request, EEAS did not infringe Article 8(1) of Annex VII to the Staff Regulations by failing to pay in full the annual travel expenses for the applicant’s dependent children on the basis of the distance between Madrid and Washington, DC.