62017TJ0119(01)
JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
12 May 2021 (
*1
)
(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% – Regional coherence – Manifest errors of assessment)
In Case T‑119/17 RENV,
Ruben Alba Aguilera, residing in Addis-Ababa (Ethiopia), and the other parties whose names are listed in the annex, (
1
) represented by S. Orlandi, lawyer,
applicants,
v
European External Action Service (EEAS), represented by S. Marquardt and R. Spac, acting as Agents, and by M. Troncoso Ferrer, C. García Fernández and F.‑M. Hislaire, lawyers,
defendant,
APPLICATION pursuant to Article 270 TFEU seeking the annulment of EEAS Decision ADMIN(2016) 7 of 19 April 2016 fixing the allowance for living conditions referred to in Article 10 of Annex X to the Staff Regulations – Financial Year 2016, in so far as it reduces, as of 1 January 2016, the allowance for living conditions paid to European Union staff posted to Ethiopia,
THE GENERAL COURT (Fourth Chamber),
composed of S. Gervasoni, President, P. Nihoul and J. Martín y Pérez de Nanclares (Rapporteur), Judges,
Registrar: M. Marescaux, Administrator,
having regard to the written part of the procedure and further to the hearing on 11 November 2020,
gives the following
Judgment
Legal framework
Staff Regulations
1
The Staff Regulations of Officials of the European Union, in the version applicable to the dispute (‘the Staff Regulations’), state, in Article 1b(a) thereof that, save as otherwise provided in the Staff Regulations, the European External Action Service (EEAS) is, for the purposes of the Staff Regulations, be treated as an institution of the European Union.
2
Article 101a of the Staff Regulations is the sole provision of Title VIIIb of those regulations. That article provides that, ‘without prejudice to the other provisions of the Staff Regulation, Annex X lays down the special and exceptional provisions applicable to officials serving in a third country’.
3
Article 110(1) of the Staff Regulations provides that ‘the general provisions implementing [the] Staff Regulations shall be adopted by the appointing authority of each institution after consulting the Staff Committee and the Staff Regulations Committee’.
4
Article 8 of Annex X to the Staff Regulations, entitled ‘Special and exceptional provisions applicable to officials serving in a third country’, provides that ‘by way of exception, the appointing authority may, by special reasoned decision, grant an official rest leave on account of particularly difficult living conditions at his place of employment. For each such place, the appointing authority shall determine the town(s) where rest leave may be taken’.
5
Article 10 of Annex X to the Staff Regulations states:
‘1.   An allowance for living conditions shall be fixed, according to the official’s place of employment, as a percentage of a reference amount. That reference amount shall comprise the total basic salary, plus the expatriation allowance, household allowance and dependent child allowance, less the compulsory deductions referred to in the Staff Regulations or in the regulations adopted to implement them.
Where an official is employed in a country in which living conditions can be deemed equivalent to those normally obtaining in the European Union, no such allowance shall be payable.
In the case of other places of employment, the allowance for living conditions shall be fixed taking into account, inter alia, the following parameters:
–
health and hospital environment,
–
security,
–
climate,
–
degree of isolation,
–
other local living conditions.
The allowance for living conditions fixed for each place of employment shall be reviewed and, where appropriate, adjusted each year by the appointing authority after the opinion of the Staff Committee has been obtained.
The appointing authority may decide to grant a supplementary premium in addition to the allowance for living conditions in cases where an official has had more than one assignment to a place of employment considered difficult or very difficult. …
2.   If living conditions at the place of employment are such as to put the official at personal risk, a temporary additional allowance shall be paid to him by special reasoned decision of the appointing authority. …
3.   Detailed provisions for the application of this Article shall be decided by the appointing authority.’
The CEOS
6
Article 10(5) of the Conditions of employment of other servants of the European Union (‘the CEOS’), in the version applicable to the dispute, states that Title VIIIb of the Staff Regulations is to apply by analogy to temporary staff serving in a third country.
7
Article 118 of the CEOS provides that Annex X to the Staff Regulations is to apply by analogy to contract staff serving in third countries, subject, in certain circumstances, to Article 21 of that annex. That provision concerns the payment by the institution of certain costs relating to the accommodation of officials at their places of employment.
The decisions of the EEAS
8
The Decision of the High Representative of the Union for Foreign Affairs and Security Policy of 17 December 2013 on the living conditions allowance and the additional allowance referred to in Article 10 of Annex X to the Staff Regulations (HR DEC(2013) 013) (‘the Decision of 17 December 2013’) refers to the Staff Regulations and the CEOS, in particular Article 10 itself, and states that it was adopted after consulting the Staff Committee. According to the only recital of the Decision of 17 December 2013, its objective is to adopt internal guidelines relating in particular to the allowance for living conditions (‘the ALC’).
9
Article 1 of the Decision of 17 December 2013 provides that ‘the parameters set out in Article 10(1) of Annex X to the Staff Regulations shall be assessed by the appointing authority, using, for example, information provided by reliable public or private international sources, by the Member States, or by the Union delegations and the departments of the institutions and bodies of the European Union’.
10
Under the first and second paragraphs of Article 2 of the Decision of 17 December 2013:
‘After consulting the EEAS and Commission Staff Committees, the appointing authority shall determine the percentages of the [ALC] for the different places of employment. Those percentages shall be divided into eight categories (0, 10, 15, 20, 25, 30, 35 and 40%), depending on the parameters, …
Where an official is employed in a country in which living conditions can be deemed equivalent to those normally obtaining in the European Union, no such allowance shall be payable.’
11
The second paragraph of Article 7 of the Decision of 17 December 2013 lists, by way of example, the parameters which, among others, are taken into account when the ALC is fixed, which correspond to the parameters set out in the third subparagraph of Article 10(1) of Annex X to the Staff Regulations. The third to fifth paragraphs of that article state:
‘For each parameter, the appointing authority shall determine the degree of difficulty using a points system. These data are then transposed into a comparison table, giving a final score from which the percentage assigned for the [ALC] is derived.
The methodology used is embodied in guidelines adopted by the EEAS in agreement with the Commission departments responsible, after consulting the [ALC] Technical Group.
The [ALC] Technical Group is an ad hoc consultative body comprising members of the administration and staff representatives of both the Commission and the [EEAS]. The staff representatives shall be appointed by the Staff Committee of their institution. Decisions reached by the [ALC] Technical Group shall take the form of recommendations at the request of the appointing authority. The Technical Group shall be consulted in particular in relation to the decisions referred to in the first and third paragraphs of Article 2.’
12
The first paragraph of Article 12 of the Decision of 17 December 2013 states that the provisions of that decision are to apply by analogy to temporary staff and contract staff.
13
The Chief Operating Officer ad interim of the EEAS adopted Decision EEAS DEC(2014)049 of 3 December 2014 on the guidelines establishing the methodology to fix, inter alia, the ALC (‘the Guidelines’), on the basis of the Decision of 17 December 2013, in particular Articles 2 and 7 thereof, and on the basis of Annex X to the Staff Regulations, in particular Articles 8 and 10 thereof, and after consulting the Staff Committees of the EEAS and of the European Commission.
14
Article 1(1) of the Guidelines lists the parameters to be taken into account when the ALC is fixed, which correspond to the parameters set out in the third subparagraph of Article 10(1) of Annex X to the Staff Regulations. Article 1(2) and (3) of the Guidelines provides:
‘2.   Each of the parameters shall be assessed and shall receive the following score:
–
1 where living conditions are equivalent to those in the EU
–
2 where living conditions are rather difficult compared to those in the EU
–
3 where living conditions are difficult compared to those in the EU
–
4 where living conditions are very difficult compared to those in the EU
–
5 where living conditions are extremely difficult compared to those in the EU
3.   The overall score resulting from this assessment may be adjusted based on considerations referred to in Article 3, [Step] 3. The maximum total score for a country will be 25 points. The [ALC] shall be fixed in accordance with the following scale:…
–
25% where the score is 12 or 13 [points].
–
30% where the score is 14 or 15 [points].
…’
15
Article 2(1) and (5) of the Guidelines reads as follows:
‘1.   Health and hospital environment
The score for [the parameter] “Health and hospital environment” shall be determined on the basis of the comparative “Health Map” established by “International SOS” and, where appropriate, [on the basis of] other information obtained from reliable international public or private sources.
The “Health Map” from “International SOS” assigns medical ratings to countries by assessing a range of factors including the standard of local medical and dental care available, access to prescription drugs, the presence of serious infectious disease and cultural, language or administrative barriers, according to a five level scale ranging from “low risk” to “extreme risk”.
…
5.   Other local living conditions
The score for [the parameter] “Other local living conditions” shall be determined on the basis of data communicated by the delegations in reply to a questionnaire and, where appropriate, [on the basis of] other information obtained from reliable international public or private sources.
The data to be communicated by the delegations will be concerning
–
Supply conditions
–
Public services
–
Education facilities for children of staff
–
Employment opportunities for spouses
–
Sports and cultural activities’
16
Article 3 of the Guidelines, entitled ‘The 3 steps system’, provides:
‘The assessment of the countries will be organised in 3 steps
1.   First assessment per country at administrative level …
2.   Intermediary assessment: Verification of the first assessment for regional coherence and compatibility with similar countries (… with EEAS and Commission geographical services).
3.   Final assessment and comparison with Member States data through the consultation of the Steering Committee for Delegations “EUDEL”.
STEP 1: The first assessment
Administrative services prepare an initial assessment of each parameter, attributing a score from 1 to 5 according to the system described under Article 2. The results are entered into a comparative table and an estimation of the budgetary impact will be established.
STEP 2: Verification of the assessment for regional coherence and compatibility with similar countries.
The regional assessment will take into account regional similarities or disparities, specific isolation factors or local conditions that are comparable in the region. The geographical services will evaluate whether the results of Step 1 appear appropriate from a regional perspective. Similarly, at this stage of the method, the results of comparable countries (comparable in size, level of development, emerging countries, OECD countries, small territories or islands …) will be verified.
A report concluding the Step 2 phase will be established, including a summary of the opinions received, and an estimation of the budgetary impact.
STEP 3: The final assessment
In the final assessment phase the Steering Committee for Delegations “EUDEL” has at its disposal the intermediate results following Step 1 and Step 2. At this stage of the procedure the EUDEL proceeds with a comparative analysis and issues the final assessment based on:
–
The degree of coherence of the score results with comparable hardship schemes of member States, or other comparable public or private hardship ratings,
–
An in depth verification whether the general policy objectives, recruitment problems and other elements that are not included in the classic parameters like atypical crisis situations (epidemic, crisis, etc.) are sufficiently taken into account in the intermediate results of Step 1 and Step 2;
This final assessment allows adjusting the scores. A final report will be established with a description of the proceedings and the conclusions, including a justification of the scores that have been adjusted and an estimation of the budgetary impact.’
17
Article 4 of the Guidelines provides:
‘Pursuant to Article 7 of [the Decision of 17 December 2013], the [ALC] Technical Group shall be consulted.
The Appointing Authority shall determine the percentages of the [ALC] for the different places of employment.’
18
Article 5 of the Guidelines reads as follows:
‘Pursuant to Article 8 of Annex X to the Staff Regulation[s], the Appointing Authority may grant rest leave on account of particularly difficult living conditions at the place of employment. Rest leave will be granted in accordance with the score [established for the purpose of fixing the ALC] and the following scale:
–
1 [day of] rest leave where the score is greater than 13 [points] but not greater than 17 [points]
…’
Background to the dispute
19
The applicants, Mr Ruben Alba Aguilera and the other persons whose names appear in the annex, are officials or temporary or contractual agents of the European Union who were posted to Ethiopia when the decision referred to in paragraph 20 below was adopted.
20
On 19 April 2016, the EEAS Director-General for Budget and Administration adopted Decision ADMIN(2016) 7, fixing the ALC referred to in Article 10 of Annex X to the Staff Regulations – Financial Year 2016 [ADMIN(2016) 7] (‘the contested decision’), adjusting the amount of the ALC paid to agents posted to third countries with effect from 1 January 2016. By that decision, the ALC rate applicable to EU staff posted to Ethiopia was reduced from 30% to 25% of the reference amount.
21
On the same day, the EEAS Director-General for Budget and Administration adopted a decision on the granting of rest leave to officials and to temporary and contractual agents posted to third countries. In accordance with Article 5 of the Guidelines, the reduction in the ALC rate applicable to EU staff posted to Ethiopia resulted in the applicants’ losing the benefit of rest leave.
22
Between 13 and 18 July 2016, pursuant to Article 90(2) of the Staff Regulations, each of the applicants lodged a complaint with the appointing authority or the authority empowered to conclude contracts of employment against the contested decision, challenging the reduction, with effect from 1 January 2016, of the ALC rate applicable to EU staff posted to Ethiopia.
23
By a single decision of 9 November 2016, the appointing authority rejected the applicants’ complaints (‘the decision rejecting the complaints’).
Procedure before the General Court and the Court of Justice
24
By application lodged at the Registry of the General Court on 20 February 2017, the applicants brought an action seeking annulment of the contested decision in so far as it reduced, with effect from 1 January 2016, the ALC rate applicable to EU staff posted to Ethiopia from 30% to 25% of the reference amount, an order that the EEAS pay a lump sum to be determined ex aequo et bono by the Court in respect of the non-material damage suffered, and an order that the EEAS pay the costs.
25
In support of their claims for annulment before the General Court, the applicants had raised three pleas in law. The first plea alleged infringement of the obligation to adopt general implementing provisions (‘GIPs’) concerning Article 10 of Annex X to the Staff Regulations. The second plea alleged infringement of Article 10 of Annex X to the Staff Regulations, in so far as the method used by the EEAS, in the Guidelines, to fix the amount of the ALC in a particular place of employment took account of the principle of regional coherence. Finally, the third plea alleged multiple manifest errors of assessment of the parameters referred to in the third subparagraph of Article 10(1) of Annex X to the Staff Regulations in fixing the ALC at issue.
26
By judgment of 13 April 2018, Alba Aguilera and Others v EEAS (T‑119/17, EU:T:2018:183; ‘the original judgment’), the Court upheld the first plea raised before it and annulled the contested decision to the extent requested, without it being necessary to examine the second and third pleas. In addition, it dismissed the claims for damages and ordered the EEAS to pay the costs.
27
On 26 June 2018, the EEAS brought an appeal against the original judgment before the Court of Justice. In its appeal, the EEAS referred to that judgment in so far as it annulled the contested decision and, consequently, ordered it to pay the costs. In its appeal, the EEAS did not refer to the grounds of that judgment by which the General Court had rejected the claims for damages. Thus, since the applicants did not lodge a cross-appeal, the considerations concerning the claim for damages in the original judgment have acquired the force of res judicata.
28
The EEAS put forward two grounds in support of its appeal. The first alleged an error of law in construing the obligation, contained in the third paragraph of Article 1 of Annex X to the Staff Regulations, to adopt GIPs in accordance with Article 110 of the Staff Regulations as being equivalent to an obligation to adopt GIPs for the whole of that annex. The second alleged an error of law in interpreting Article 10 of Annex X as constituting a provision that is so unclear and imprecise that any application of it must be arbitrary, making it necessary, therefore, to adopt GIPs.
29
By its judgment of 26 February 2020, EEAS v Alba Aguilera and Others (C‑427/18 P, EU:C:2020:109; ‘the judgment on appeal’), first, the Court of Justice upheld the first plea raised by the EEAS and thus considered that, by holding that the third subparagraph of Article 1 of Annex X to the Staff Regulations constituted a provision which lays down an express obligation to adopt GIPs for the whole of that annex, and by concluding that the EEAS was required to adopt GIPs for Article 10 of that annex before it could lawfully adopt the decision at issue, the General Court had erred in law (the judgment on appeal, paragraph 83).
30
Secondly, the Court of Justice held that the second ground of appeal was based on an erroneous reading of the original judgment and dismissed it as unfounded. In that regard, the Court of Justice held that the considerations set out by the General Court in the original judgment did not relate to the nature of Article 10 of Annex X to the Staff Regulations (the judgment on appeal, paragraphs 93 and 94).
31
Since the first ground of appeal was well founded, first of all, the Court of Justice set aside the original judgment in part. Next, in so far as, by the original judgment, the General Court had upheld the applicants’ first plea without examining the second and third pleas, the Court of Justice held that the state of the proceedings did not permit a decision by that court and referred the case back to the General Court. Finally, the Court of Justice reserved the costs.
Procedure and forms of order sought by the parties in the present proceedings following referral
32
By letter of 2 March 2020, the Court Registry, in accordance with Article 217(1) of the Rules of Procedure of the General Court, informed the applicants that they had a period of 2 months, extended on account of distance by a single period of 10 days, from the time at which the judgment on appeal was served, within which to lodge their written observations on the inferences to be drawn from the judgment on appeal for the outcome of the case.
33
The EEAS and the applicants lodged written observations on the inferences to be drawn from the judgment on appeal with the Court Registry on 6 May 2020.
34
On 30 September 2020, in the context of the measures of organisation of procedure provided for in Article 89(3)(a) and (d) of the Rules of Procedure, the Court asked the parties to answer a series of questions and the EEAS to produce certain documents. The parties answered the questions and complied with the request for production of documents within the deadline.
35
The parties presented oral argument and replied to the questions put by the Court at the hearing which took place on 11 November 2020.
36
The applicants claim that the Court should:
–
annul the contested decision, in so far as it reduces, with effect from 1 January 2016, the ALC paid to staff posted to Ethiopia;
–
order the EEAS to pay the costs.
37
The EEAS contends that the Court should:
–
dismiss the action as unfounded;
–
order the applicants to pay the costs of the original proceedings, the appeal proceedings and the referral proceedings.
Law
38
The applicants put forward three pleas in law in support of their action. The first plea alleges infringement of the obligation to adopt GIPs concerning Article 10 of Annex X to the Staff Regulations. The second plea alleges infringement of Article 10 of Annex X to the Staff Regulations, in so far as the method used by the EEAS, in the Guidelines, to fix the amount of the ALC in a particular place of employment takes account of the principle of regional coherence. Lastly, the third plea alleges manifest errors of assessment of the parameters referred to in the third subparagraph of Article 10(1) of Annex X to the Staff Regulations in fixing the ALC at issue.
The first plea, alleging infringement of the obligation to adopt GIPs concerning Article 10 of Annex X to the Staff Regulations
39
It must be noted at the outset that the Courts of the European Union are entitled to assess, according to the circumstances of each case, whether the proper administration of justice justifies the dismissal of a plea on the merits without first ruling on its admissibility (see, to that effect, judgments of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraphs 51 and 52, and of 5 April 2017, France v Commission, T‑344/15, EU:T:2017:250, paragraph 92).
40
The Court takes the view that, in the light of the circumstances of the case and in the interests of procedural economy, the merits of the present plea must be examined without first ruling on its admissibility, which is called into question by the EEAS on the ground that the arguments in support of that plea were not put forward until after the judgment on appeal, since that plea must, in any event and for the reasons set out below, be rejected on the merits.
41
The applicants maintain that Article 10 of Annex X to the Staff Regulations is so unclear and imprecise that any application of it must be arbitrary, making it necessary to adopt GIPs.
42
In the first place, they consider, in essence, that, in the context of the legislative development of Article 10 of Annex X to the Staff Regulations, the non-exhaustive nature of the list of parameters in the third subparagraph of Article 10(1) of Annex X and the fact that the appointing authority or the authority empowered to conclude contracts of employment has a broad discretion to establish the ALC are circumstances which require the adoption of GIPs. More specifically, according to the applicants, that broad discretion includes determination of the method used, the parameters to be taken into account and their values, along with the weighting and percentages applicable to the ALC.
43
In the second place, the applicants submit, in essence, that the fact that Article 10(3) of Annex X to the Staff Regulations provides that the appointing authority is to lay down ‘detailed provisions for the application’ of that article does not preclude, for the purposes of fixing the ALC, those detailed rules from taking the form of GIPs.
44
In that regard, they consider, in essence, that, since Article 10 of Annex X to the Staff Regulations provides for various types of allowances or premiums the granting of which is subject to different types of decision, the adoption of GIPs is not required for the whole of that provision. According to the applicants, that fact may explain why the legislature lays down an obligation for the appointing authority or the authority empowered to conclude contracts of employment to adopt ‘detailed provisions for the application’ of that provision. In particular, the applicants observe that the fifth subparagraph of Article 10(1) of Annex X to the Staff Regulations provides for a supplementary premium to be granted in cases where an official has had more than one assignment to a place of employment considered difficult or very difficult, and that Article 10(2) provides for an additional allowance to be paid to an official if living conditions at the place of employment are such as to put him or her at personal risk. According to the applicants, unlike the decisions concerning the ALC, these supplementary premiums and additional allowances are granted on the basis of individual decisions which do not require the adoption of GIPs.
45
In the third place, the applicants consider that the fact that the annual adjustment of the ALC requires consultation of the Staff Committee does not prevent the appointing authority or the authority empowered to conclude contracts of employment from adopting, in advance, GIPs concerning that provision after consulting the Staff Committee and the Staff Regulations Committee. Furthermore, they consider that the opinion of the Staff Regulations Committee is required to ensure that the criteria, according to which living conditions in third countries are determined, are established abstractly and independently of any procedure the purpose of which is to revise the amount of the ALC, in order to avoid the risk that the criteria chosen might be influenced by the outcome which the administration hoped to obtain.
46
Finally, in the fourth place, the applicants submit that the adoption of Decision ADMIN(2018) 35 of the High Representative of the Union for Foreign Affairs and Security Policy of 20 December 2018 laying down general implementing decisions on the living conditions allowance and the additional allowance referred to in Article 10 of Annex X to the Staff Regulations (‘the 2018 GIPs’) tends to confirm their analysis. They submit, in essence, that, although the EEAS did not consider that it was under an obligation to adopt GIPs under the third paragraph of Article 1 of Annex X to the Staff Regulations, by ultimately adopting the 2018 GIPs, it implicitly but necessarily acknowledged that it had to do so, in so far as any application of Article 10 of that annex was arbitrary.
47
The EEAS disputes the applicants’ arguments.
48
It is clear from the case-law that, in the absence of any express provision, the obligation to adopt implementing measures subject to the formal requirements of Article 110 of the Staff Regulations can be recognised only in exceptional circumstances, that is, when the provisions of the Staff Regulations are so unclear and imprecise that any application of them must necessarily be arbitrary (see judgment of 17 March 2016, Vanhalewyn v EEAS, T‑792/14 P, EU:T:2016:156, paragraph 29 and the case-law cited).
49
It is appropriate to note the exceptional nature of the obligation to adopt implementing measures subject to the formal requirements of Article 110 of the Staff Regulations. In that regard, it should be observed that the case-law has acknowledged the existence of defects which have left the institutions with a certain freedom of action, that freedom being limited by the obligation to ensure that the person concerned has a fair chance to defend himself or herself (judgment of 8 July 1965, Willame v Commission, 110/63, EU:C:1965:71, p. 658).
50
Therefore, in the present case, it is necessary to examine whether Article 10 of Annex X to the Staff Regulations is so unclear and imprecise that any application of it must be arbitrary.
51
In that regard, the Court considers that the applicants’ arguments should be understood to relate to Article 10 of Annex X to the Staff Regulations only in so far as it governs the ALC, and not in so far as it concerns the supplementary premium and additional allowance provided for, respectively, in the fifth paragraph of Article 10(1) and in Article 10(2) of that annex.
52
In the first place, it should be noted that even if the parameters set out in the third subparagraph of Article 10(1) of Annex X to the Staff Regulations are not exhaustive, they are clear and precise. The health and hospital environment, security, climate and degree of isolation are all concrete and sufficiently objective factors, so that they cannot be applied arbitrarily.
53
As regards the ‘other local living conditions’ parameter, although it is true that it is not precisely determined in the third subparagraph of Article 10(1) of Annex X to the Staff Regulations, its content can nevertheless be determined by reason of the fact that that parameter must be used to compare living conditions in the places of employment with the living conditions normally obtaining in the European Union.
54
The same is true of the non-exhaustive nature of the list of parameters. The very purpose of those parameters, which is to compare living conditions, implies that they are such as to enable such a comparison to be made. That limits the available choices and helps to avoid those parameters being applied arbitrarily.
55
In the second place, and as was pointed out in the Opinion of Advocate General Szpunar in EEAS v Alba Aguilera and Others (C‑427/18 P, EU:C:2019:866, point 69), the third subparagraph of Article 10(1) of Annex X to the Staff Regulations must be read in conjunction with Article 10(3) of Annex X to the Staff Regulations, according to which ‘detailed provisions for the application of this Article shall be decided by’ the appointing authority. The detailed provisions for the application of Article 10, in particular the third and fourth subparagraphs of paragraph 1 thereof, established by the appointing authority, may be regarded as rules established abstractly and independently of the procedure the purpose of which is to determine, in a specific case, whether the living conditions in one country are equivalent to those normally obtaining in the European Union.
56
Lastly, in the third place, it should be recalled that the fixing of the ALC is subject to an annual assessment and, where appropriate, to an adjustment, after the opinion of the Staff Committee has been obtained. The regularity of assessments and the involvement of representatives of the staff to whom the ALC is paid, and who could therefore be affected by an adjustment of the ALC, also constitute safeguards designed to avoid the risk of Article 10 of Annex X to the Staff Regulations being implemented arbitrarily.
57
In the light of the foregoing, the Court considers that, by reason of its wording, its objectives and the procedural guarantees which it provides for the adjustment of the ALC, on an annual basis and after the opinion of the Staff Committee has been obtained, Article 10 of Annex X to the Staff Regulations, in so far as it governs the ALC, does not require the adoption, in exceptional circumstances, of GIPs within the meaning of the case-law cited in paragraph 48 above.
58
That finding cannot be called into question by the applicants’ other arguments.
59
In that regard, it should be noted that, according to the judgment on appeal, it is evident from the latest legislative development of Article 10 of Annex X to the Staff Regulations and of Article 110 thereof that if the EU legislature had intended to require the adoption of GIPs for Article 10, and not the adoption of detailed provisions for the application of that article, it would have stated so expressly when it simplified the content of that provision (the judgment on appeal, paragraph 81).
60
Furthermore, although, as the applicants rightly point out, the fact that Article 10(3) of Annex X to the Staff Regulations requires ‘detailed provisions for the application’ of that article to be adopted does not preclude those provisions from taking the form of GIPs within the meaning of Article 110 of the Staff Regulations, an obligation for them to take the form of GIPs may be imposed only in the event that it is found that one of the provisions of that annex is so unclear and imprecise that any application of it must be arbitrary. As was concluded in paragraph 57 above, that is not the case with Article 10 of Annex X to the Staff Regulations in so far as it governs the ALC.
61
Furthermore, the applicants’ argument that the adoption of the 2018 GIPs confirms that the application of Article 10 of Annex X to the Staff Regulations must be arbitrary, and therefore requires the adoption of GIPs, must be rejected. In that regard, it is apparent from the EEAS’ replies to the Court’s questions at the hearing that the adoption of the 2018 GIPs was intended to comply with the hitherto settled case-law of the Court which was set aside by the judgment on appeal after the adoption of those GIPs. According to that case-law, the provisions of the third paragraph of Article 1 of Annex X to the Staff Regulations were considered to be of general application, and the GIPs it provides are to be adopted concerned the whole of Annex X to the Staff Regulations (judgment of 17 March 2016, Vanhalewyn v EEAS, T‑792/14 P, EU:T:2016:156, paragraph 25). Furthermore, it should be noted that none of the recitals of the 2018 GIPs mentions a lack of clarity or precision in Article 10 of Annex X to the Staff Regulations which the GIPs are intended to remedy. By contrast, the reference made, in recital 4 of the 2018 GIPs, to the‘detailed provisions for the application’ of Article 10 suggests that the EEAS could have decided, in the absence of any obligation, that, in any event, such ‘detailed provisions for the application’ of that article would take the form of GIPs subject to the procedural requirements set out in Article 110 of the Staff Regulations (see, to that effect, Opinion of Advocate General Szpunar in EEAS v Alba Aguilera and Others, C‑427/18 P, EU:C:2019:866, point 53).
62
Lastly, the applicants’ argument that the opinion of the Staff Regulations Committee is necessary must also be rejected. Indeed, it follows from the above that, contrary to what the applicants submit, the establishment of abstract and independent rules of procedure for the purpose of adjusting the amount of the ALC does not necessarily require the opinion of the Staff Regulations Committee. Moreover, it is clear that the 2018 GIPs, which were the subject of a consultation of the Staff Regulations Committee, essentially have the same content as the Decision of 17 December 2013 and the Guidelines.
63
In the light of the foregoing, the first plea must be rejected, without there being any need to rule on its admissibility.
The second plea, alleging infringement of Article 10 of Annex X to the Staff Regulations in so far as the method used by the EEAS, in the Guidelines, to fix the amount of the ALC in a particular place of employment took account of the principle of regional coherence
64
The applicants assert that, in accordance with Article 10 of Annex X to the Staff Regulations, the ALC rate should reflect the more or less challenging nature of the environment to which officials and agents are exposed in a third country in which living conditions are not equivalent to those normally obtaining in the European Union.
65
They consider that, by means of the Step 2 phase, provided for in Article 3 of the Guidelines, which consists of verifying whether the scores obtained by each delegation are consistent from a regional perspective, the EEAS no longer carries out an assessment of living conditions solely on the basis of the place of employment, but on the basis of the region in which the EU delegation is located. In so doing, the EEAS is assessing the parameters set out in Article 10 of Annex X to the Staff Regulations in relative terms, and favouring a comparative, arbitrary and subjective analysis of different places of employment in the same region. In addition, they submit that the fact that the principle of regional coherence is applied after the detailed assessment of the living conditions in a particular place of employment has been carried out distorts the assessment of the parameters referred to in the third subparagraph of Article 10(1) of Annex X to the Staff Regulations.
66
The EEAS disputes the applicants’ arguments.
67
First of all, it should be noted that the applicants do not formally raise a plea of illegality, under Article 277 TFEU, against Article 3 of the Guidelines in the application. The fact remains that, according to the actual substance of their plea, they seek the annulment of the contested decision on the ground that it is based on that article, which, according to the applicants, infringes Article 10 of Annex X to the Staff Regulations in so far as it takes into account the principle of regional coherence.
68
In those circumstances, it is necessary, first, to examine the admissibility of the plea of illegality raised by the applicants and secondly, if that plea is admissible, to examine whether it is well founded.
69
It should be borne in mind that, in accordance with settled case-law, Article 277 TFEU expresses a general principle conferring upon any party to proceedings the right to challenge, for the purpose of obtaining the annulment of a decision of direct and individual concern to that party, the validity of previous acts of the institutions which, although they are not in the form of a regulation, form the legal basis of the contested decision, if that party was not entitled under Article 263 TFEU to bring a direct action challenging those acts, by which it was thus affected without having been in a position to ask that they be annulled (see judgments of 25 April 2013, Inuit Tapiriit Kanatami and Others v Commission, T‑526/10, EU:T:2013:215, paragraph 24 and the case-law cited, and of 28 February 2018, Paulini v ECB, T‑764/16, not published, EU:T:2018:101, paragraph 28 and the case-law cited).
70
Furthermore, it follows from settled case-law that, since Article 277 TFEU is not intended to enable a party to challenge the applicability of any act of general application in support of any action whatsoever, the general act claimed to be illegal must be applicable, directly or indirectly, to the issue with which the action is concerned and there must be a direct legal connection between the contested individual decision and the general act in question (see judgments of 19 June 2015, Italy v Commission, T‑358/11, EU:T:2015:394, paragraph 181 and the case-law cited, and of 28 February 2018, Paulini v ECB, T‑764/16, not published, EU:T:2018:101, paragraph 29 and the case-law cited).
71
More specifically, the plea of illegality must be directed against provisions of the general act which have a bearing on the resolution of the dispute and a direct legal link with the latter (judgment of 19 June 2015, Italy v Commission, T‑358/11, EU:T:2015:394, paragraph 181; see also, to that effect, order of 29 August 2013, Iran Liquefied Natural Gas v Council, T‑5/13 R, not published, EU:T:2013:395, paragraph 32).
72
It is also settled case-law that the existence of such a link may be inferred from the finding that the contested individual decision rests in essence on a provision of the act whose legality is challenged, even if the latter did not formally constitute the legal basis thereof (see judgment of 28 February 2018, Paulini v ECB, T‑764/16, not published, EU:T:2018:101, paragraph 30 and the case-law cited).
73
Moreover, the Court has held that guidelines, although not constituting the legal basis of the contested act, may be challenged by means of an plea of illegality if they have served for the adoption of that act (see judgment of 28 February 2018, Paulini v ECB, T‑764/16, not published, EU:T:2018:101, paragraph 31 and the case-law cited).
74
Finally, it follows from the case-law that an act of general application within the meaning of Article 277 TFEU is an act which applies to objectively determined situations and produces legal effects with respect to categories of persons envisaged in the abstract (see judgment of 28 February 2018, Paulini v ECB, T‑764/16, not published, EU:T:2018:101, paragraph 32 and the case-law cited).
75
In the present case, the Guidelines are an act of general application, since they apply to a category of persons envisaged in the abstract, namely officials and agents of the European Union, when they are in an objectively determined situation, namely when they are posted to third countries.
76
In the light of the case-law cited in paragraphs 70 and 71 above, it is necessary to examine whether there is a link between, on the one hand, the provision of the general act at issue – in the present case Article 3 of the Guidelines, in that it takes into account the principle of regional coherence – and, on the other hand, the contested decision.
77
In that regard, it should be noted that, in a note of 7 April 2016 from the appointing authority to the Heads of Delegations of the European Union in Ethiopia (‘the note of 7 April 2016’), the following is stated:
‘based on [the Guidelines], an additional verification of the overall assessment should take into account [the principle of] regional coherence and the results of comparable countries, as well as any other relevant elements. Consequently, the final recommendations have taken such considerations into account, including input provided by geographical … services of the EEAS and the Commission.’
78
Moreover, in the decision rejecting the complaints, the appointing authority states that ‘the slight decrease in the score for [the “other local living conditions” parameter] is also related to the quality of public services in Ethiopia which, according to the information provided by the delegation of the European Union, and having regard [to the principle of] regional coherence, seems to have been [underestimated]’.
79
Thus, it follows from the foregoing that there is a link between, on the one hand, the provision of the general act at issue – in the present case Article 3 of the Guidelines, in that it takes account of the principle of regional coherence – and, on the other hand, the contested decision. Moreover, that fact is not disputed by the EEAS.
80
Accordingly, it must be held that the plea of illegality raised by the applicants is admissible and the substance of that plea must be examined.
81
First of all, it should be stated that, according to settled case-law, the institutions have a broad discretion as regards the factors and elements to be taken into consideration when adjusting the remuneration of officials of the European Union (see judgment of 25 September 2002, Ajour and Others v Commission, T‑201/00 and T‑384/00, EU:T:2002:224, paragraph 47 and the case-law cited).
82
In the present case, the ALC must be regarded as forming part of the remuneration of officials and agents posted to third countries. Under Article 62 of the Staff Regulations, the remuneration of officials is to comprise basic salary, family allowances and other allowances. According to Article 1b(a) of the Staff Regulations, save as otherwise provided in the Staff Regulations, the EEAS is, for the purposes of the Staff Regulations, to be treated as an institution of the European Union. Since Annex X to the Staff Regulations makes no provision to the contrary as regards the components of remuneration, the ALC must be regarded as forming part of the remuneration of officials and agents serving in third countries.
83
Secondly, it must be stated that Article 10 of Annex X to the Staff Regulations, in the version applicable to the dispute, results from the amendments introduced by Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 amending the Staff Regulations and the CEOS (OJ 2013 L 287, p. 15). As to the justifications for those changes, recital 27 of Regulation No 1023/2013 states that ‘it is appropriate to modernise working conditions for staff employed in third countries and to render them more cost-effective whilst generating cost savings’ and that ‘provision should be made for the possibility of including a wider range of parameters to fix the [ALC], without affecting the overall aim of generating cost savings’.
84
To that end, Article 10 of Annex X to the Staff Regulations, as amended by Council Regulation (Euratom, ECSC, EEC) No 3019/87 of 5 October 1987 laying down special and exceptional provisions applicable to officials of the European Communities serving in a third country (OJ 1987 L 286, p. 3), was simplified. In essence, the list of parameters to be taken into account when fixing the ALC was made non-exhaustive, the details relating to the weighting, the values of those parameters and the percentages of the reference amount were deleted, and paragraph 3, under which the appointing authority is to lay down detailed provisions for the application of that article, was added (the judgment on appeal, paragraph 79).
85
It follows that the intention of the EU legislature was to allow the appointing authority a certain amount of discretion to take account of factors and elements relating to more general purposes, including, but not limited to, that of ensuring that the overall aim of generating savings is attained while still fulfilling the purpose of the ALC, which is to compensate the official concerned, by means of an allowance, when the living conditions in his or her place of employment are more difficult than those normally obtaining in the European Union.
86
In that regard, it should be noted that, in accordance with Article 3 of the Guidelines, in addition to the principle of regional coherence, the appointing authority is to take into account, on the one hand, other factors and elements not strictly relating to the comparison between the living conditions in the places of employment in third countries and the living conditions normally obtaining in the European Union – namely the budgetary impact, degree of coherence with comparable hardship schemes of Member States, or other comparable public or private hardship ratings, general policy objectives and, lastly, recruitment problems – and, on the other hand, other elements that are not included in the classic parameters, like atypical crisis situations (epidemic, crises, and so forth). The applicants do not dispute the application of those factors and those elements.
87
In addition, it should be noted that the principle of regional coherence is intended, in accordance with the purpose of the ALC, to ensure the objectivity of the comparison between the living conditions in the places of employment with those in the European Union. The application of that principle is intended to ensure that similar conditions obtaining in two countries situated in the same region are assessed in a similar manner.
88
In the light of the foregoing and having regard to the appointing authority’s broad discretion as to the factors and elements to be taken into account when adjusting the remuneration of officials, the Court considers that Article 3 of the Guidelines, in so far as it takes into account the principle of regional coherence, does not infringe Article 10 of Annex X to the Staff Regulations and cannot therefore be regarded as unlawful.
89
That conclusion cannot be called into question by the applicants’ other arguments.
90
In that regard, it should be noted, as the EEAS did, that the application of the principle of regional coherence does not run counter to the fact that the living conditions in the places of employment are examined in comparison with those normally obtaining in the European Union, and is not incompatible with such an examination. In the application of that principle, the EEAS geographical services merely verify whether the results obtained following that examination are appropriate, taking into account comparable circumstances in the places of employment located in the same region.
91
Thus, the application of the principle of regional coherence is intended to verify and, where appropriate, make adjustments – not only downwards, but also upwards – to the examination of living conditions in the places of employment, but not to distort the results of that examination. In that sense, the application of the abovementioned principle cannot, in principle, lead to a substantial change in the results obtained from examining living conditions in the places of employment. In that regard, it should be noted that, in the present case, on a scale of hardship from one to eight, Ethiopia was downgraded by only one level as a result of the application of the principle of regional coherence.
92
Furthermore, the applicants’ argument that the fact that the principle of regional coherence is applied after the detailed assessment of living conditions in a particular place of employment distorts the assessment of the parameters referred to in Article 10(1) of Annex X to the Staff Regulations, must be rejected. Since the objective is to compare the scores allocated to the places of employment and, where appropriate, to adjust them during the Step 3 phase, provided for in Article 3 of the Guidelines, that principle must necessarily be applied after an initial examination of living conditions.
93
Lastly, the applicants’ argument that the application of the principle of regional coherence would lead to an arbitrary and subjective analysis or solution must be rejected. As is apparent from the examination of the first plea, the EU legislature has introduced several measures to eliminate the risk of arbitrary implementation of the third and fourth subparagraphs of Article 10(1) of Annex X to the Staff Regulations (see, to that effect, Opinion of Advocate General Szpunar in EEAS v Alba Aguilera and Others, C‑427/18 P, EU:C:2019:866, point 69).
94
The second plea must therefore be rejected.
The third plea, alleging manifest errors of assessment
95
The applicants claim that the contested decision is vitiated by several manifest errors of assessment concerning, in particular, the assessment of the ‘health and hospital environment’ and the ‘other local living conditions’ parameters referred to in the third subparagraph of Article 10(1) of Annex X to the Staff Regulations. The applicants submit that those manifest errors of assessment also arise from the fact that only the EEAS considered that living conditions in Ethiopia had improved between 2014 and 2016, whereas several Member States considered that they had remained unchanged and one Member State even found that they had deteriorated.
96
In the first place, as regards the ‘health and hospital environment’ parameter, the applicants state that Ethiopia scored four out of five, and was classified as a ‘high medical risk country’ according to the comparative Health Map established by International SOS. However, countries like Madagascar, Uganda, Zambia, Zimbabwe and the Comoros, also classified as ‘high medical risk countries’ by that organisation, scored five out of five. The applicants complain that the EEAS did not make any attempt to justify that difference in treatment, which appears, therefore, to be purely arbitrary.
97
In the second place, as regards the ‘other local living conditions’ parameter, the applicants claim that their replies to the questionnaires completed in 2014 and 2015 were not sufficiently taken into consideration by the EEAS. The EEAS merely found that the other local living conditions in other places of employment were more difficult than in Ethiopia, which is not supported by any evidence capable of enabling the applicants or the Court to ascertain whether that finding is well founded.
98
The applicants claim that the ‘other local living conditions’ in Ethiopia did not improve in 2015 and are not merely ‘rather difficult’ in comparison with those obtaining in the European Union.
99
In that connection, first, as regards supply conditions, the applicants note that the situation remains critical, given the strict rules on the import of products, particularly food, into a country where the economy is wholly controlled by the State. Secondly, as regards the quality of public services, the applicants state that the situation remains equally critical. In that regard, the applicants state that internet access is unreliable, with frequent outages, and very expensive, that there are daily power cuts, that access to drinking water is complicated, that the spread of diseases such as cholera is common, that there is no safe public transport and that waste collections are carried out very irregularly. Thirdly, they note that employment opportunities for spouses are non-existent, since Ethiopian legislation prohibits spouses from taking up employment. Fourthly, the applicants claim that the quality of sports and cultural activities has deteriorated as a result of the security risks since 2014. Fifthly, they assert that there has been no improvement in education facilities since 2014. Lastly, sixthly, the applicants submit that the fact that Ethiopia has not ratified the Vienna Convention for Consular Relations of 24 April 1963 should be taken into account when determining the level of hardship endured by officials and agents of the European Union who are posted there.
100
In the third place, as regards the data communicated by the Member States, which must be taken into consideration by the EEAS in the context of the Step 3 phase provided for in Article 3 of the Guidelines, the applicants submit that only the EEAS considered that living conditions in Ethiopia had improved between 2014 and 2016. Accordingly, they assert that that assessment is manifestly contradicted by those data, since the Kingdom of Belgium, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, Ireland, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Poland, the Republic of Finland, the United Kingdom of Great Britain and Northern Ireland and the United States of America considered that living conditions in Ethiopia had remained unchanged. The Republic of Austria, for its part, found a deterioration in living conditions.
101
The EEAS disputes the applicants’ arguments.
Preliminary observations
102
It should be borne in mind, first of all, that, according to settled case-law, in areas in which the EU legislature has a broad discretion, the judicial review carried out by the EU Courts is limited to ensuring that the procedure is conducted in a regular manner, the facts are materially correct, and there is no manifest error of assessment or misuse of powers (judgments of 15 May 1997, N v Commission, T‑273/94, EU:T:1997:71, paragraph 125; of 16 July 1998, Y v Parliament, T‑144/96, EU:T:1998:173, paragraph 34; and of 14 May 2002, Antas de Campos v Parliament, T‑194/00, EU:T:2002:119, paragraph 37).
103
Where an institution has a broad discretion, the review of observance of guarantees conferred by the EU legal order in administrative procedures is of fundamental importance. Those guarantees include, in particular for the competent institution, the obligations to examine carefully and impartially all the relevant elements of the individual case and to give an adequate statement of the reasons for its decision (judgments of 21 November 1991, Technische Universität München, C‑269/90, EU:C:1991:438, paragraph 14; of 7 May 1992, Pesquerias De Bermeo and Naviera Laida v Commission, C‑258/90 and C‑259/90, EU:C:1992:199, paragraph 26; and of 8 September 2009, ETF v Landgren, T‑404/06 P, EU:T:2009:313, paragraph 163).
104
Furthermore, it is apparent from the case-law that, in order to establish that an institution has committed a manifest error in assessing complex facts so as to justify the annulment of that act, the evidence adduced by the applicant must be sufficient to make the factual assessments used in the act implausible. Subject to that review of plausibility, it is not the Court’s role to substitute its assessment of complex facts for that made by the institution which adopted the decision (see, to that effect, judgment of 11 February 2015, Spain v Commission, T‑204/11, EU:T:2015:91, paragraph 32 and the case-law cited).
105
Furthermore, it is settled case-law that, first, an administrative act is presumed to be lawful (see, to that effect, judgment of 13 July 2000, Griesel v Council, T‑157/99, EU:T:2000:192, paragraph 25 and the case-law cited) and that, secondly, the burden of proof lies, in principle, with the person claiming it to be unlawful, so that it is for the applicants to provide at the very least sufficiently precise, objective and consistent information to corroborate the truth or likelihood of the facts in support of their claim (see, to that effect, judgment of 6 March 2001, Connolly v Commission, C‑274/99 P, EU:C:2001:127, paragraph 113).
106
It is in the light of those case-law principles that the arguments raised by the applicants in support of the third plea, alleging manifest errors of assessment, must be examined.
107
In the present case, it is apparent from the case file that Ethiopia scored a total of 15 points in its 2015 assessment. As this score is higher than the 14-point threshold required by Article 1(3) of the Guidelines for fixing the ALC rate at 30% of the reference amount, the European Union staff posted to Ethiopia were entitled to receive payment of the ALC at that rate.
108
Following the annual assessment to fix the ALC rate applicable from 1 January 2016, in accordance with the three-step system provided for in Article 3 of the Guidelines, Ethiopia scored 13 points, dropping below the threshold of 14 points, for which, in accordance with Article 1(3) of those guidelines, the applicable ALC rate is 25% of the reference amount.
109
Specifically, the two-point drop in Ethiopia’s score for 2016 was down to a reduction in the scores given for the ‘health and hospital environment’ parameter and the ‘other local living conditions’ parameter, which each fell by one point as compared with 2015 (dropping from five to four points for the first parameter, and from three to two points for the second). In accordance with Article 1(2) of the Guidelines, that reduction means that the ‘health and hospital environment’, initially considered to be ‘extremely difficult’ compared to that normally obtaining in the European Union, is now regarded as ‘very difficult’. The ‘other local living conditions’, initially considered to be ‘difficult’, are now regarded as ‘rather difficult’.
The ‘health and hospital environment’ parameter
110
It should be recalled that, in accordance with Article 2(1) of the Guidelines, the score for the ‘health and hospital environment’ must be determined on the basis of the comparative Health Map established by International SOS and, where appropriate, on the basis of other information obtained from reliable international public or private sources.
111
It is apparent from the case file that Ethiopia was classified as a ‘high medical risk country’ by the comparative Health Map established by International SOS in December 2015. In addition, according to the EEAS, that classification was confirmed by Falck Global Assistance, the company which provides medical evacuation services to the EEAS. At the hearing, the EEAS stated that places of employment in ‘high medical risk countries’ were given a score of four or five points.
112
Moreover, in the note of 7 April 2016, the appointing authority states that ‘the rating of 5 [points] (on a scale from 1 to 5 [points]) for the [health and hospital environment] parameter is reserved for very unsafe countries like South Sudan, Central African Republic and Somalia, where the potential exposure to health risks is considered most severe’.
113
Furthermore, in its decision rejecting the complaints, the appointing authority states:
‘It must be acknowledged that there are other countries in that region in which the potential exposure to health risks is even greater. These countries obtained the highest score for the parameter of the [“health and hospital environment”] parameter for 2016: Madagascar, Uganda, Zambia, Zimbabwe, the Comoros, Eritrea, Somalia, Sudan and South Sudan.’
114
The Court considers that, admittedly, the fact that Ethiopia is the only ‘high medical risk country’ on the comparative Health Map established by International SOS in December 2015, as it was given a score of four points, and not five points, may cast some doubt on the appointing authority’s assessment. Nevertheless, that doubt cannot lead to the conclusion that the EEAS exceeded the limits of the discretion that the legislature intended to confer on it in fixing the ALC.
115
Article 2(1) of the Guidelines provides that the score for the ‘health and hospital environment’ parameter is to be determined on the basis of the comparative Health Map established by International SOS, but that article does not require the levels on the scale used by that Health Map to correspond to the score to be given for that parameter. Accordingly, the EEAS’ decision to give Ethiopia a score of four points does not infringe that provision.
116
In addition, the EEAS used the information provided by Falck Global Assistance in order to confirm the assessment of the ‘health and hospital environment’ parameter in Ethiopia which was to be inferred from the comparative Health Map established up by International SOS.
117
Moreover, assessing the level of hardship in the health and hospital environment in a particular place of employment is a complex operation which requires an evaluation of a wide range of factors, such as, inter alia, the standard of available medical and dental care, access to prescription medicines, the presence of severe infectious diseases and the existence of cultural, linguistic or administrative barriers.
118
Lastly, it should be noted, as the EEAS rightly states, that neither the ALC Technical Group nor the EUDEL Committee issued a negative opinion on the reduction of the ALC for Ethiopia as from 1 January 2016.
119
Moreover, the applicants claimed at the hearing that the information provided by Falck Global Assistance was not reliable, given that it was apparent from that company’s website that it did not operate in Ethiopia. It should be noted that, although that argument was raised by the applicants in their complaints, which are annexed to the application, it was not raised in the body of the application.
120
In that regard, it should be borne in mind that, according to settled case-law, the annexes to the parties’ pleadings may be taken into consideration only in so far as they support or supplement pleas or arguments expressly set out by applicants in the body of their pleadings. Thus, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (see, to that effect, judgment of 10 July 2020, Sammut v Parliament, T‑608/18, EU:T:2020:249, paragraph 25 and the case-law cited).
121
However, it is apparent from the provisions of Article 84(1), of the Rules of Procedure that no new plea in law or argument may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure (see, to that effect, judgment of 15 July 2015, Dennekamp v Parliament, T‑115/13, EU:T:2015:497, paragraph 80) or it is a plea or an argument that amplifies a plea put forward previously, whether directly or by implication, in the original application, and which is closely connected therewith (see, to that effect, judgment of 29 November 2012, Thesing and Bloomberg Finance v ECB, T‑590/10, not published, EU:T:2012:635, paragraph 24 and the case-law cited).
122
The present case concerns a new argument put forward at the hearing which was not submitted at the stage of the application, although it is based on matters of fact which were already known to the applicants when that pleading was lodged (see, to that effect, judgment of 22 November 2017, von Blumenthaland Others v EIB, T‑558/16, not published, EU:T:2017:827, paragraph 50). In addition, that argument does not amplify a plea put forward previously, directly or by implication, in the application with which it is closely connected. It must therefore be rejected as inadmissible.
123
In any event, the information provided by Falck Global Assistance cannot be regarded as unreliable solely on the ground that that company does not operate in Ethiopia.
124
In those circumstances, it must be concluded, in the light of the foregoing, that it is not apparent from the case file that the EEAS committed a manifest error of assessment concerning the assessment of the ‘health and hospital environment’ parameter. More specifically, the Court cannot conclude, based on the documents in the case file, that the EEAS’ assessment that the health and hospital environment in Ethiopia is ‘very difficult’, whereas that of Madagascar, Uganda, Zambia, Zimbabwe and the Comoros, in particular, is ‘extremely difficult’, is implausible.
The ‘other local living conditions’ parameter
125
It should be recalled, as pointed out in paragraph 109 above, that Ethiopia’s score for the ‘other local living conditions’ parameter was reduced by one point, from three points for 2015 to two points for 2016. That means that the ‘other local living conditions’, initially considered to be ‘difficult’, are now considered ‘rather difficult’.
126
It should also be recalled that, in accordance with Article 2(5) of the Guidelines, the score for the ‘other local living conditions’ parameter is to be determined on the basis of data communicated by the delegations in reply to a questionnaire and, where appropriate, on the basis of other information obtained from reliable international public or private sources. In particular, the data to be communicated by the delegations concern five criteria, namely ‘supply conditions’, ‘public services’, ‘education facilities for children of staff’, ‘employment opportunities for spouses’ and ‘sports and cultural activities’.
127
As regards the system established for allocating a score to each of the five criteria covered by the ‘other local living conditions’ parameter and, thus, to that parameter, it is apparent from the score sheet drawn up by the EEAS on the basis of the data communicated by the EU delegations in Ethiopia that a maximum total score of 54 points may be allocated to all five criteria. A key on that score sheet establishes the correlation between, on the one hand, the scores (from 0 to 54 points, divided into 5 bands) which may be allocated to all five criteria and, on the other hand, the score (from 1 to 5 points, corresponding to each band) which must be given to the ‘other local living conditions’ parameter. It is apparent from that key that a score of between 11 and 21 points for all five criteria corresponds to a score of 2 points for the ‘other local living conditions’ parameter, while a score of between 22 and 29 points for all five criteria corresponds to a score of 3 points for that parameter.
128
In the present case, out of the maximum total score of 54 points for all five criteria, the score for 2015 was 24 points, whereas it was 20 points for 2016. That four-point difference corresponds to a reduction in the scores for the ‘public services’ and ‘employment opportunities for spouses’ criteria, which dropped from five to two points for ‘public services’ and from three to two points for ‘employment opportunities for spouses’. The scores for the other three criteria remained unchanged.
129
However, the EEAS states, without being contradicted by the applicants on that point, that the criterion which actually led to a change in the score given to the ‘other local living conditions’ parameter is that relating to ‘public services’. It is apparent from the score sheet provided by the EEAS that, although the score for the ‘employment opportunities for spouses’ criterion had remained unchanged, the score for the ‘other local living conditions’ parameter would still have decreased by one point because of the reduction in the score for the ‘public services’ criterion. It is apparent from the case file that the EEAS asserted that it had taken into consideration the questionnaire completed by the EU delegations in Ethiopia concerning the ‘other living local conditions’ for the purpose of giving a score to that parameter, in accordance with Article 2(5) of the Guidelines. In that regard, in the note of 7 April 2016, the appointing authority stated as follows:
‘Information about “other local conditions” has in the first instance been taken into account during the initial evaluation based on the e-LCA contribution by the Delegation. Data described in the questionnaire related to other local conditions have been scored … According to this evaluation, the “other local conditions” parameter for Ethiopia is rated 2 (on a scale from 1 to 5).’
130
It is also clear from the case file that the answers provided by the EU delegations in Ethiopia to the 2014 questionnaire concerning the ‘public services’ criterion, including for the ‘other local living conditions’ parameter, for fixing the ALC applicable in 2015, are the same as their answers to the 2015 questionnaire for fixing the ALC applicable in 2016.
131
As regards the ‘public services’ criterion, it is apparent from the answers provided by the EU delegations in Ethiopia to the questionnaire, in essence, that in that country, neither public transport nor the taxi service can be used. In addition, the assistance of the local police force is not guaranteed, so that, in case of emergency, officials and agents of the EU delegations in Ethiopia are forced to use the delegation security service. Lastly, there is no waste management system: waste collection is organised locally in some parts of Addis-Ababa (Ethiopia).
132
It should be noted that assessing the quality of the public services in a particular place of employment is a complex operation which requires an evaluation of a wide range of factors, including the reliability of public and private transport, fire fighters, ambulance services, police and gendarmerie and waste management.
133
In that regard, in accordance with the case-law referred to in paragraph 104 above, when assessing complex facts so as to justify the annulment of an act, the Court’s review must be limited to verifying whether the applicants have succeeded in establishing that the assessment of the facts used in that act is implausible.
134
The applicants submit, in essence, that the quality of public services did not improve in 2015 and that the situation remains critical. Accordingly, internet access is unreliable, with frequent outages, and very expensive, there are daily power cuts, access to drinking water is complicated, the spread of diseases such as cholera is common, there is no safe public transport and waste collections are carried out very irregularly.
135
Furthermore, at the hearing, the applicants pointed out that the answers provided by the EU delegations in Ethiopia to the 2014 questionnaire concerning the ‘public services’ criterion for fixing the ALC applicable in 2015 were the same as their answers to the 2015 questionnaire for fixing the ALC applicable in 2016. The EEAS did not, however, explain the reduction in the score given to that criterion.
136
First, it should be noted that the EEAS has not adduced evidence capable of calling into question the arguments put forward by the applicants.
137
Secondly, the EEAS has not plausibly set out the reasons why it considered that the quality of public services had improved between 2014 and 2015, and that it was appropriate to reduce the score for that criterion from five to two points. Those reasons are not apparent from the case file and, when questioned in that regard at the hearing, the EEAS stated that it had no evidence other than that in the case file and, in essence, that it was therefore not in a position to answer the Court’s question on that point.
138
It is true that, in the decision rejecting the complaints, the appointing authority states that ‘the slight decrease in the score for [the “other local living conditions” parameter] is also related to the quality of public services in Ethiopia which, according to the information provided by the delegation of the European Union, and having regard [to the principle of] regional coherence, seems to have been [underestimated]’.
139
Nevertheless, it must be stated that Ethiopia is not one of the African countries whose scores were adjusted on the basis of the principle of regional coherence in the report drawn up after Step 2 of the assessment process, provided for in Article 3 of the Guidelines, in which the EEAS carries out a verification of the assessment of the scores obtained in Step 1. Furthermore, although the EEAS, when questioned in that regard at the hearing, did not dispute that the principle of regional coherence could have been applied in the present case, it stated, in essence, that it was not in a position to explain specifically how the application of that principle had influenced the contested decision.
140
Thus, taking into account, on the one hand, the applicants’ arguments that the quality of public services in Ethiopia did not improve between 2014 and 2015 and, on the other hand, the EEAS’ failure to provide explanations justifying the reduction in the score for the ‘public services’ criterion, it must be concluded that the EEAS made a manifest error of assessment with regard to the assessment of that criterion.
141
As regards the effect of such a manifest error of assessment on the contested decision, it should be recalled (see paragraph 128 above) that the criterion which led to the score for the ‘other local living conditions’ parameter being reduced by one point is the ‘public services’ criterion, so that Ethiopia’s total score for 2016 was 13 points. The reduction in the ALC rate effected by the contested decision results from the fact that Ethiopia’s score fell below the threshold of 14 points. In those circumstances, the manifest error in the assessment of the ‘public services’ criterion is such as to justify the annulment of the contested decision.
142
In the light of the foregoing, the contested decision must be annulled, without it being necessary to examine the other arguments raised in the context of the third plea.
Costs
143
Under Article 219 of the Rules of Procedure, where a judgment of the General Court is set aside and the case is referred back to it, the General Court is to decide on the costs relating to the proceedings instituted before it and to the proceedings on the appeal before the Court of Justice. Furthermore, under Article 134(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
144
By its appeal, the EEAS requested that the original judgment be set aside, in particular in so far as it ordered the EEAS to pay the costs. Since the case was being referred back to the General Court, in the judgment on appeal, the Court of Justice reserved the costs.
145
Consequently, it is for the General Court to decide, in the present judgment, on the costs incurred in the proceedings before the General Court which gave rise to the original judgment, the appeal proceedings in Case C‑427/18 P and the present proceedings on referral.
146
Since the EEAS has been unsuccessful, it must be ordered to pay the costs in relation to the present proceedings and the proceedings in Cases T‑119/17 and C‑427/18 P, in accordance with the form of order sought by the applicants.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1.
Annuls Decision ADMIN(2016) 7 of the Director-General for Budget and Administration of the European External Action Service (EEAS) of 19 April 2016 fixing the allowance for living conditions referred to in Article 10 of Annex X to the Staff Regulations – Financial Year 2016, in so far as it reduces, as of 1 January 2016, the allowance for living conditions paid to European Union staff posted to Ethiopia;
2.
Orders the EEAS to pay the costs incurred in Cases T‑119/17, C‑427/18 P and T‑110/17 RENV.
Gervasoni
Nihoul
Martín y Pérez de Nanclares
Delivered in open court in Luxembourg on 12 May 2021.
[Signatures]
Table of contents
Legal framework
Staff Regulations
The CEOS
The decisions of the EEAS
Background to the dispute
Procedure before the General Court and the Court of Justice
Procedure and forms of order sought by the parties in the present proceedings following referral
Law
The first plea, alleging infringement of the obligation to adopt GIPs concerning Article 10 of Annex X to the Staff Regulations
The second plea, alleging infringement of Article 10 of Annex X to the Staff Regulations in so far as the method used by the EEAS, in the Guidelines, to fix the amount of the ALC in a particular place of employment took account of the principle of regional coherence
The third plea, alleging manifest errors of assessment
Preliminary observations
The ‘health and hospital environment’ parameter
The ‘other local living conditions’ parameter
Costs
(
*1
)	Language of the case: French.
(
1
)	The list of the other applicants is annexed only to the version notified to the parties.