62019TJ0018_RES
Case T‑18/19
Colin Brown
v
European Commission
Judgment of the General Court (Fourth Chamber, Extended Composition) of 5 October 2020
(Civil service – Officials – Official with United Kingdom nationality at the date of entering the service – Withdrawal of the United Kingdom from the European Union – Acquisition of the nationality of the country of employment during the course of a career – Loss of the expatriation allowance – Equal treatment – Principle of non-discrimination – Article 4(1) of Annex VII to the Staff Regulations)
Officials – Remuneration – Expatriation allowance – Conditions for granting – Event warranting the administration’s review of the recipient’s situation – Acquisition of the nationality of the country of employment during the course of a career – Included
(Staff Regulations, Annex VII, Art. 4(1)(a))
(see paragraphs 36, 37, 39, 41-45, 50-52)
Officials – Remuneration – Expatriation allowance – Conditions for granting – Review of the recipient’s situation based on the acquisition of the nationality of the country of employment during the course of a career – Loss of entitlement to the expatriation allowance – Account taken of the circumstances behind the application for naturalisation – Risk of compulsory resignation linked to the withdrawal of a Member State from the European Union – Irrelevant
(Staff Regulations, Annex VII, Art. 4(1)(a))
(see paragraphs 64-69)
Officials – Remuneration – Expatriation allowance – Conditions for granting – Review of the recipient’s situation based on the acquisition of the nationality of the country of employment during the course of a career – Equated to the situation of officials who are or have been nationals of the country of employment – Infringement of the principle of equality and non-discrimination – None
(Staff Regulations, Annex VII, Art. 4(1)(b))
(see paragraphs 81-83, 86-90, 96, 97, 112-117)
Résumé
By the judgment in Brown v Commission (T‑18/19), delivered on 5 October 2020, the General Court, ruling in the extended five-judge composition, clarified the circumstances in which officials who acquire the nationality of the country of employment during the course of their career can, on that ground, have their entitlement to the expatriation allowance withdrawn, in the light of the conditions for granting laid down in Article 4(1) of Annex VII to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).
In this case, the applicant, Mr Colin Brown, began working at the Commission on 1 January 2001. He was at the time a national of the United Kingdom only. The Commission’s Office for the ‘Administration and Payment of Individual Entitlements’ (PMO) granted him the expatriation allowance in the light of the conditions required of officials ‘who are not and have never been nationals of the State in whose territory the place where they are employed is situated’, pursuant to Article 4(1)(a) of Annex VII to the Staff Regulations.
On 23 June 2016, the citizens of the United Kingdom of Great Britain and Northern Ireland voted in a referendum in favour of their State’s withdrawal from the European Union. On 29 March 2017, the United Kingdom notified the European Council of its intention to withdraw from the European Union. In those circumstances, on 27 June 2017, the applicant applied for Belgian nationality, which he obtained on 3 November 2017. Having been informed of this, PMO communicated to the applicant, on 23 February 2018, its decision to withdraw his entitlement to the expatriation allowance and, consequently, to the payment of his travel expenses, on the ground that he had obtained the nationality of his country of employment, namely Belgium. By amending decision of 19 March 2018 (‘the contested decision’), the effective date of the Decision of 23 February 2018 was set to 1 December 2017.
Since his complaint against the contested decision was unsuccessful, the applicant brought an action before the General Court seeking annulment of the contested decision and reinstatement of the benefits at issue as of 1 December 2017. In support of his claims for annulment, the applicant raised four pleas in law, first, disputing the possibility of reviewing his right to the expatriation allowance both as a matter of principle and in the light of the specific circumstances of this case, and, second, alleging infringement of the principle of equal treatment and non-discrimination stemming, in particular, from the conditions for granting applied in the context of the review and from their interpretation.
In the first place, the General Court ruled that PMO did not misinterpret Article 4(1)(a) of Annex VII to the Staff Regulations by taking the view that acquisition of the nationality of the country of employment in the course of a career must lead to a review of the right to the expatriation allowance. While that provision does not expressly provide for the possibility of such a review, the General Court emphasised, nevertheless, that the administration cannot continue to pay it every month where an event occurs that substantially alters the situation of the person receiving it in light of the conditions for granting that allowance. In that case and in the absence of any provision to the contrary, the administration must review the situation.
In this regard, the General Court observed that the interpretation of Article 4(1)(a) of Annex VII to the Staff Regulations supports that analysis, in so far as it does not indicate anything capable of precluding a review of the right to the expatriation allowance following the acquisition, by an official, of the nationality of the country of employment in the course of his or her career. First, since the negative condition relating to the nationality of the country of employment is formulated in the present tense, that wording does not rule out the fact that the official in question must continue to satisfy that condition throughout his or her career to remain entitled to the expatriation allowance. Second, as regards the legislature’s choice of conditions for granting the expatriation allowance, the General Court noted, in the light of the travaux préparatoires (
1
) of the former Staff Regulations, (
2
) that the nationality requirement was adopted because it was precise and easy to apply, without ignoring its limitations, in particular in cases of dual nationality. Thus, taking account of the principle that provisions of EU law which confer entitlement to financial benefits must be interpreted strictly, the General Court took the view that the exclusion of any review of the right to the expatriation allowance following acquisition, by an official, of the nationality of the country of employment in the course of a career would have required the provision in question to be drafted differently. Third, the General Court found that such a review also is in line with the purpose of the expatriation allowance, which is to compensate for the extra expense and inconvenience resulting from the fact that, throughout the course of their career, officials are away from their place of origin for the performance of their duties with the European Union at their place of employment. In so far as the EU legislature was called upon to reflect that purpose in the definition of the conditions for granting the expatriation allowance, the General Court observed, in the light of the wording adopted in that regard in Article 4(1)(a) of Annex VII to the Staff Regulations, that an official’s integration resulting from the fact that, during the course of his or her career, that official has established his or her habitual residence in the country of employment and works there cannot prevent payment of the expatriation allowance. However, that choice does not apply in the event of acquisition of the nationality of the country of employment during the course of a career, given the special form of integration that such naturalisation entails.
Finally, the General Court rejected the applicant’s argument criticising PMO for not relieving itself of the review in his respect, given the reasons that led him to apply for naturalisation, which he presented as a constraint constituting force majeure. In that regard, having pointed out that the procedure for naturalisation followed by the applicant aimed to counter the risk of being required to resign, which he faced, as the case may be, in the event of the United Kingdom’s withdrawal from the European Union, the General Court considered that the review in question could not be deemed to have caused, with respect to the applicant, an unreasonable burden meeting the requirements of force majeure and, accordingly, one capable of relieving PMO of its obligation to review. That was all the less so because the acquisition of Belgian nationality now fully guaranteed the applicant that he would remain employed. In that regard, the General Court recalled, lastly, that no one can make a claim to offset the effects of a Member State’s withdrawal from the European Union.
In the second place, the General Court ruled that neither the application to the applicant, in the context of the review, of the conditions for granting applicable to officials having the nationality of the country of employment nor the interpretation thereof infringed the principle of equality and non-discrimination.
The General Court emphasised, first of all, that the difference of treatment resulting from the choice of nationality as the first criterion, in the exercise of the broad discretion conferred on the legislature for the purpose of laying down the conditions of employment of officials, did not appear to be manifestly inappropriate or arbitrary, in the light of the purpose of the expatriation allowance. Moreover, the frequency of its payment, which is not limited in time, requires compliance with the principle of equal treatment and non-discrimination, not only upon entering the service, but also whenever the right to the allowance is reviewed.
However, in view of the strict conditions imposed on officials who are nationals of the country of employment in order to be able to qualify for the expatriation allowance, namely the absence of any residence or professional activity in the European territory of that country during a 10-year reference period prior to entering the service, the General Court did not find any reason exempting the applicant from this from the time of his naturalisation. Thus, from that date, he must be treated in the same way as any other Belgian national or former Belgian national whose residence in Belgium, even briefly during the 10-year reference period, may preclude him from entitlement to the allowance under Article 4(1)(b) of Annex VII to the Staff Regulations. Conversely, the General Court took the view that the situation of officials who acquired the nationality of the country of employment during the course of their career is no longer comparable to that of officials who have not expressed the intention of formalising their ties with that country by obtaining that nationality.
In any event, the General Court rejected the argument alleging discrimination against officials who are nationals of the United Kingdom, having verified that the interpretation criticised was followed, in practice, irrespective of the official’s nationality initially taken into account and that, moreover, it is completely unrelated to any consideration as to how relations between the European Union and the United Kingdom developed. Finally, in response to the plea alleging infringement of the principle of equal treatment and non-discrimination stemming from a misinterpretation of Article 4(1)(b) of Annex VII to the Staff Regulations, the General Court observed that the interpretation advocated, in that regard, is incompatible with the actual wording of that provision and with its scope, with the result that it must be rejected.
Drawing the appropriate conclusions from these considerations, the General Court dismissed the other heads of claim and, consequently, the action in its entirety.
(
1
)	Council Information Notice of 11 December 1959.
(
2
)	Council Regulation No 31 (EEC), 11 (EAEC) of 18 December 1961 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, English Special Edition, Series I Volume 1959-1962, p. 135).