JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
18 October 2023 (*)
(Civil service – Officials – EUIPO staff – Remuneration – Family allowances – Payment of allowances to a third person in the name and on behalf of the official – Decision no longer to pay certain allowances to a third person in the  name and on behalf of the official)
In Case T‑606/22,
RN, represented by S. Moya Felix, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by A. Lukošiūtė, acting as Agent,
defendant,
THE GENERAL COURT (Fifth Chamber),
composed of J. Svenningsen, President, C. Mac Eochaidh (Rapporteur) and J. Martín y Pérez de Nanclares, Judges,
Registrar: V. Di Bucci, Registrar,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1        By his action based on Article 270 TFEU, the applicant, RN, seeks annulment of the decision of the European Union Intellectual Property Office (EUIPO) of 4 July 2022 in so far as it rejected, first, the application for payment of the education allowance for September 2021 and for the period from 1 to 7 October 2021 and, secondly, recognition of the applicant’s right to receive, from 8 October 2021, half of one third of the household allowance, half of the dependent child allowance and half of the education allowance (‘the contested decision’).
I.      Background to the dispute
2        The applicant and A, an official of EUIPO, are the parents of B, who was born on [confidential]. (1)
3        By judgment of 27 October 2020, the Tribunale di Roma, prima sezione civile (District Court, Rome, First Civil Chamber, Italy) found that B resided exclusively with his father. In those circumstances, that court held that A was required to pay the applicant a maintenance allowance in respect of B.
4        On 14 December 2020, EUIPO informed the applicant that, pursuant to the judgment of 27 October 2020 and in accordance with Articles 1 to 3 of Annex VII to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), it would pay him, retroactively from 1 September 2020, the amounts corresponding to the family allowances to which A was entitled for B, namely one third of the household, dependent child and education allowances. Those family allowances were paid to the applicant as from February 2021.
5        On 30 August 2021, A informed EUIPO that B no longer wished to live with the applicant, that he had enrolled at a school in [confidential] (Spain) and, lastly, that she herself was going to pay the costs of his education. A also applied to EUIPO for the family allowances to be paid to her again.
6        On 14, 15, 22 and 27 September and 5 October 2021, the applicant sent several emails to EUIPO stating that he had not yet received family allowances for the months of July and August 2021.
7        On 16 November 2021, A informed EUIPO that B was living with her. She produced several items of evidence, in particular the payment of education costs for the academic year 2021/2022. Consequently, she requested that the family allowances be paid to her again.
8        On 28 November 2021, the Tribunale di Roma, prima sezione civile (District Court, Rome, First Civil Chamber) held that A’s obligation to pay maintenance to the applicant for B had ceased on 8 October 2021. It also ordered A and the applicant to provide directly for B’s ordinary maintenance during the period when B was with each of them, without prejudice to the obligation to contribute equally to the payment of additional expenditure.
9        On 2 December 2021, EUIPO received a copy of the judgment of 28 November 2021 of the Tribunale di Roma, prima sezione civile (District Court, Rome, First Civil Chamber).
10      On 16 December 2021, the applicant asked EUIPO to confirm that the family allowances would be paid to him during that month.
11      On 20 December 2021, EUIPO replied to the applicant that, in accordance with the judgment of 28 November 2021 of the Tribunale di Roma, prima sezione civile (District Court, Rome, First Civil Chamber), family allowances had to be paid to A from the beginning of the current academic year.
12      On 21 December 2021, the applicant disputed EUIPO’s position. In his view, the family allowances should have been paid to him in full for the months of July, August and September 2021, since, according to the judgment of 28 November 2021 of the Tribunale di Roma, prima sezione civile (District Court, Rome, First Civil Chamber), the amendment of the applicant’s and A’s maintenance obligations was effective only as from 8 October 2021. The applicant also stated that, according to that judgment, with effect from 8 October 2021, half of the family allowances were to be paid to him and half to A.
13      On 25 January 2022, first of all, EUIPO replied to the applicant that, in accordance with the applicable legal framework, where the child’s normal residence changes after having reached the age of majority, the staff member may request that the allowance be paid to him or her again. In such a case, the administration shall pay the family allowances to the staff member after informing the third party concerned. Next, EUIPO stated that A had requested that the allowances at issue be paid to her and that it had granted that application since B was an adult and that, in the light of the evidence provided by A, it was established that he had resided with her since August 2021. EUIPO also recalled that, on 20 December 2021, it had informed the applicant of those new arrangements for the payment of family allowances. Lastly, EUIPO stated that any disagreement between the applicant and A, in particular as regards their financial obligations, had to be settled between them and that it could not intervene in that regard.
14      On the same day, the applicant asked EUIPO to adopt a formal decision which could be challenged before the Court of Justice of the European Union. He also stated that EUIPO gave greater weight to A’s statements than to the judgment of 28 November 2021 of the Tribunale di Roma, prima sezione civile (District Court, Rome, First Civil Chamber). According to the applicant, A claimed that B had resided with her since August 2021, whereas the Tribunale di Roma, prima sezione civile (District Court, Rome, First Civil Chamber) held, in that judgment of 28 November 2021, that he resided exclusively with the applicant until 8 October 2021 and then, from that date, spent half of the time with each of his parents.
15      On 21 February 2022, EUIPO confirmed its decision addressed to the applicant on 25 January 2022, namely that the family allowances due from September 2021 would be paid to A. By contrast, the applicant would receive family allowances for the months of July and August 2021. EUIPO also stated that the decision of 28 November 2021 of the Tribunale di Roma, prima sezione civile (District Court, Rome, First Civil Chamber) provided for the financial obligations incumbent on the applicant and A, but that it was not conclusive in the light of EU law applicable to children over 18 years of age. Lastly, EUIPO stated that, to date, no decision adversely affected the applicant. By contrast, the statement of family allowances which he was going to receive in April 2022 would constitute a formal decision against which a complaint could be lodged under Article 90(2) of the Staff Regulations.
16      On 5 March 2022, the applicant lodged a complaint under Article 90(2) of the Staff Regulations. By his first claim, the applicant maintained that ‘the full kids allowances’ should be paid to him for the period from July 2021 to 7 October 2021. By his second claim, the applicant maintained that ‘half of the education and kids allowances’ should be paid to him as from 8 October 2021.
17      In April 2022, EUIPO sent the applicant the statement of family allowances No 04/2022, which, according to that office, constituted the formal decision against which a complaint could be lodged.
18      In the contested decision, the Executive Director of EUIPO, acting as appointing authority, noted, as regards the first claim, that the applicant had already received the education allowance for the entire academic year 2020/2021 as well as the dependent child allowance and one third of the household allowance for July and August 2021. In so doing, the appointing authority considered that the subject matter of the first claim related exclusively to the payment of those last two allowances only for the month of September 2021 and for the period from 1 to 7 October 2021. The appointing authority upheld that first claim as well founded. On the other hand, the second claim was rejected as unfounded.
II.    Forms of order sought
19      The applicant claims that the General Court should:
–        annul the contested decision in so far as it rejected, first, the request for payment of the education allowance for the month of September 2021 and for the period from 1 to 7 October 2021 and, secondly, recognition of the applicant’s right to receive half of one third of the household allowance, half of the dependent child allowance and half of the education allowance from 8 October 2021;
–        consequently, recognise the applicant’s entitlement to receive the education allowance for September 2021 and for the period from 1 to 7 October 2021, together with half of one third of the household allowance, half of the dependent child allowance and half of the education allowance with effect as of 8 October 2021;
–        order EUIPO to pay the costs.
20      EUIPO contends that the Court should:
–        dismiss the action as unfounded;
–        order the applicant to pay the costs.
III. Law
A.      The first head of claim
1.      The subject matter of the first head of claim
21      According to settled case-law, claims for annulment formally directed against the rejection of a complaint lack, in principle, any independent content and have the effect of bringing before the Court the act adversely affecting the applicant against which the complaint was submitted (see, to that effect, judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8, and of 25 October 2018, KF v SatCen, T‑286/15, EU:T:2018:718, paragraph 115 and the case-law cited).
22      However, an express decision rejecting a complaint may, in view of its content, not be confirmatory of the measure challenged. That is the case where the decision rejecting the complaint contains a re-examination of the situation of the person concerned in the light of new elements of law or of fact, or where it changes or adds to the original decision. In such circumstances, the rejection of the complaint constitutes a measure subject to review by the judicature, which will take it into consideration when assessing the legality of the contested measure or will even regard it as an act adversely affecting the applicant replacing the contested measure (see judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 71 and the case-law cited).
23      In the present case, EUIPO stated, in its emails of 20 December 2021, 25 January 2022 and 21 February 2022, that all the family allowances would be paid retroactively to A from the month of September 2021. By contrast, in the contested decision, the appointing authority granted the applicant’s first request, taking the view that he was entitled to one third of the household allowance and the dependent child allowance for the month of September 2021 and for the period from 1 to 7 October 2021. In so doing, the contested decision is based on a re-examination of the applicant’s situation and does not constitute an act confirming the position initially expressed by EUIPO, as expressed in the statement of family allowances No 04/2022.
24      It follows that the contested decision constitutes the act adversely affecting the applicant, submitted for examination by the Court in the present action, since that decision replaced EUIPO’s initial positions.
2.      Substance
25      In support of the first head of claim, the applicant raises two pleas in law. The first plea alleges infringement of Article 67 of the Staff Regulations, read in conjunction with Article 63 of those regulations. The second plea alleges infringement of Articles 1 to 3 of Annex VII to the Staff Regulations.
(a)    The first plea, alleging infringement of Article 67 of the Staff Regulations, read in conjunction with Article 63 of those regulations
26      By his first plea, the applicant submits that the appointing authority was wrong to consider that he had already received the full education allowance for the academic year 2020/2021. Therefore, the applicant should receive the education allowance for the month of September 2021 and for the period from 1 to 7 October 2021. Furthermore, the applicant claims that the appointing authority failed to comply with the judgment of 28 November 2021 of the Tribunale di Roma, prima sezione civile (District Court, Rome, First Civil Chamber) in so far as the appointing authority considered that, as from 8 October 2021, all the family allowances had to be paid to A, and not half to the applicant.
27      EUIPO disputes those arguments.
28      In that regard, Article 63 of the Staff Regulations provides, inter alia, that officials’ remuneration is to be expressed in euros.
29      Article 67 provides that:
‘1.      Family allowances shall comprise:
(a) household allowance;
(b) dependent child allowances;
(c) education allowance.
…
4.      Where, by virtue of Articles 1, 2 and 3 of Annex VII, such family allowances are paid to a person other than the official, these allowances shall be paid in the currency of the country in which that person is resident, calculated where applicable on the basis of the exchange rates referred to in the second subparagraph of Article 63. …
…’
30      The Court observes that the applicant has not put forward any argument showing how the appointing authority infringed Article 67 of the Staff Regulations, read in conjunction with Article 63 of those regulations. In particular, the applicant does not claim in his written pleadings that, contrary to what is provided for in Article 67(4) of the Staff Regulations, EUIPO paid or intended to pay the education allowance in a currency other than the euro.
31      At most, by his arguments, the applicant complains that the appointing authority wrongly considered that he had already received the education allowance for the entire academic year 2020/2021.
32      Assuming that, despite its title, the first plea must thus be understood as alleging a manifest error of assessment on the part of the appointing authority, it is for the applicant to adduce evidence rendering implausible the assessments made by the administration (see, to that effect, judgment of 2 April 2019, Fleig v EEAS, T‑492/17, EU:T:2019:211, paragraph 55 (not published) and the case-law cited).
33      However, the applicant has not put forward any specific argument or submitted any evidence showing that the appointing authority committed a manifest error of assessment in finding that he had already received the education allowance for the entire academic year 2020/2021. In particular, the applicant has not shown that, as he claims, the appointing authority failed to take into account the fact that July and August 2021 were included in the academic year 2020/2021. In any event, an alleged failure to pay the education allowance for July and August 2021 falls outside the scope of the first head of claim (see paragraph 19 above), as defined in paragraphs 54 and 55 of the application.
34      Moreover, contrary to what the applicant claims, the appointing authority did not fail to take into account the fact that B was still a student. On the contrary, the appointing authority expressly noted that it was proven that B received educational or vocational training (‘it was proven that he receives educational/vocational training’) and that A paid his education costs (‘the proof … that the school fees of your son are paid by her’).
35      Finally, in so far as the applicant also complains that the appointing authority failed to have regard to the judgment of 28 November 2021 of the Tribunale di Roma, prima sezione civile (District Court, Rome, First Civil Chamber), in that it did not grant him half of the family allowances with effect from 8 October 2021, it must be held that that argument is indistinguishable from the arguments put forward in the context of the second plea. Reference is therefore made to paragraphs 48 to 51 below.
36      Consequently, the first plea in law must be rejected.
(b)    The second plea, alleging infringement of Articles 1 to 3 of Annex VII to the Staff Regulations
37      By his second plea, the applicant claims, in essence, that the appointing authority disregarded the judgment of 28 November 2021 of the Tribunale di Roma, prima sezione civile (District Court, Rome, First Civil Chamber), in that it did not grant him half of the family allowances due from 8 October 2021. In so doing, the appointing authority arbitrarily favoured A to the detriment of the applicant.
38      EUIPO disputes those arguments.
39      In that regard, it is common ground that B is an adult under the age of 26 and that he was attending school during the academic year 2021/2022. Consequently, and as the appointing authority has already pointed out, B fulfils the conditions for classification as an adult dependent child within the meaning of Article 2(3)(b) of Annex VII to the Staff Regulations.
40      It is therefore necessary to ascertain whether the applicant was entitled to receive, with effect from 8 October 2021, half of one third of the household allowance, half of the dependent child allowance and half of the education allowance.
(1)    Household allowance
41      Article 1(2)(b) of Annex VII to the Staff Regulations provides, inter alia, that an official who is divorced or legally separated and has one or more adult dependent children is entitled to the household allowance.
42      By way of derogation, the last sentence of the first subparagraph of Article 1(5) of Annex VII to the Staff Regulations provides that the household allowance is to be paid, in the name and on behalf of the official, to the other parent if the adult dependent children have their normal residence with the latter.
43      In the present case, the appointing authority concluded that B did not have his normal residence with the applicant. In reaching that conclusion, the appointing authority relied on a statement by B that he had resided exclusively with A since August 2021. The appointing authority also relied on A’s statements that B had his normal residence at her home. Finally, the appointing authority took into account the evidence submitted by A showing, inter alia, that she had paid B’s education costs.
44      The appointing authority also referred to the judgment of 28 November 2021 of the Tribunale di Roma, prima sezione civile (District Court, Rome, First Civil Chamber). However, it took the view that, contrary to what the applicant claims, that judgment did not specify that B resided exactly half of the time with the applicant or even primarily with him. According to the appointing authority, the judgment of 28 November 2021 of the Tribunale di Roma, prima sezione civile (District Court, Rome, First Civil Chamber) merely states that he moves between the homes of his parents, spending sometimes more time in one of them and sometimes more in the other.
45      The Court notes that the applicant has not adduced any evidence, either in the complaint or in the context of the present action, to show that B normally resided with him as from 8 October 2021.
46      At most, the applicant asserts that such evidence is apparent from the judgment of 28 November 2021 of the Tribunale di Roma, prima sezione civile (District Court, Rome, First Civil Chamber).
47      However, the detailed rules for the payment of family allowances to a person other than an official are governed by the Staff Regulations, which are of general application, are binding in their entirety and directly applicable in all Member States (see, to that effect, judgment of 14 February 2008, Gysen, C‑449/06, EU:C:2008:90, paragraphs 23 to 25). It follows that the judgment of 28 November 2021 of the Tribunale di Roma, prima sezione civile (District Court, Rome, First Civil Chamber) cannot be decisive for the purposes of assessing the merits of the present action, since the administration cannot make a payment outside the conditions expressly laid down by the Staff Regulations. The legality of the contested decision must therefore be reviewed in the light of the conditions laid down in Articles 1 to 3 of Annex VII to the Staff Regulations.
48      In any event, the applicant’s argument is based on a misreading of the judgment of 28 November 2021 of the Tribunale di Roma, prima sezione civile (District Court, Rome, First Civil Chamber). In that judgment, the Tribunale di Roma, prima sezione civile (District Court, Rome, First Civil Chamber) merely found ‘that [B] moves between the homes of his parents in [confidential] [(Spain)], spending more time with one or the other’.
49      Thus, contrary to what the applicant claims, it cannot be inferred from that single phrase, which is at least vague, that B has been living with him half the time since 8 October 2021.
50      Moreover, the fact, highlighted by the Tribunale di Roma, prima sezione civile (District Court, Rome, First Civil Division), that B lived intermittently with the applicant tends rather to confirm that he does not have his ‘normal’ residence there, as required, however, by the last sentence of the first subparagraph of Article 1(5) of Annex VII to the Staff Regulations.
51      The appointing authority did not therefore make an error of assessment in finding that the Tribunale di Roma, prima sezione civile (District Court, Rome, First Civil Chamber) had not found that B resided exactly half of the time with the applicant. The appointing authority was also right to point out that, unlike the judgment of 27 October 2020, the judgment of 28 November 2021 had not found that B resided exclusively or primarily with the applicant.
52      Finally, the Court cannot take into account either the judgment of 3 November 2022 of the Tribunale di Roma, prima sezione civile (District Court, Rome, First Civil Chamber) or B’s written statement dated 29 September 2022. Those documents postdate the adoption of the contested decision. Moreover, those documents do not contain any information of which the appointing authority was aware and which it did not take into account before adopting that decision. According to settled case-law, the legality of the contested measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted (see judgment of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 148 and the case-law cited).
53      Having regard, in particular, to the statements made by B and A and the evidence submitted by A during the administrative procedure (see paragraph 43 above), and the fact that the applicant has not provided any evidence to the contrary (see paragraph 45 above), the appointing authority was entitled to take the view that B no longer had his normal residence with the applicant since 8 October 2021.
54      Accordingly, the appointing authority did not err in law in considering that the applicant could no longer receive the household allowance as from 8 October 2021.
(2)    Dependent child allowance and education allowance
55      Under Article 2(7) of Annex VII to the Staff Regulations, ‘if custody of the dependent child within the meaning of paragraphs 2 and 3 has been entrusted by law or by an order of court or of the competent administrative authority to another person, the dependent child allowance shall be paid to that person in the name and on behalf of the official’.
56      Moreover, the fifth subparagraph of Article 3(1) of Annex VII to the Staff Regulations provides that ‘if custody of the child in respect of whom the education allowance is paid has been entrusted by law or by an order of court or of the competent administrative authority to another person, the education allowance shall be paid to that person in the name and on behalf of the official’.
57      In the present case, the applicant submits that the fact that his son lives half of the time with him must be interpreted ‘as a shared custody’.
58      In that regard, apart from the fact that the judgment of 28 November 2021 of the Tribunale di Roma, prima sezione civile (District Court, Rome, First Civil Chamber) does not establish that B had been residing half the time with the applicant since 8 October 2021 (see paragraph 49 above), the Court finds that the applicant has not claimed, let alone proved, that the custody of his son had been entrusted to him pursuant to legal provisions or by an order of court or of the competent administrative authority. Furthermore, the judgment of 28 November 2021 of the Tribunale di Roma, prima sezione civile (District Court, Rome, First Civil Chamber) cannot be interpreted as conferring custody of B on the applicant.
59      Consequently, the applicant cannot receive the dependent child allowance and the education allowance.
(3)    The arbitrary nature of the contested decision
60      The applicant submits that the appointing authority partially rejected the complaint for arbitrary reasons in order to favour A.
61      Although that argument has no connection with any infringement of Articles 1 to 3 of Annex VII to the Staff Regulations and assuming that the application is to be interpreted as alleging a misuse of powers intended to favour A to the detriment of the applicant, it suffices to note that the applicant has not adduced any evidence to show that the appointing authority exercised its powers for a purpose other than that for which they were conferred upon it. According to that case-law, a measure is vitiated by misuse of powers only if it appears on the basis of objective, relevant and consistent evidence to have been taken with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (see, to that effect, judgments of 9 December 2020, Groupe Canal + v Commission, C‑132/19 P, EU:C:2020:1007, paragraph 31 and the case-law cited, and of 14 December 2022, TM v ECB, T‑440/21, not published, EU:T:2022:800, paragraphs 82 to 84 and the case-law cited).
62      In any event, there is no evidence in the documents before the Court that EUIPO or, subsequently, the appointing authority sought to favour A to the detriment of the applicant. On the contrary, as stated in paragraphs 39 to 59 above, the appointing authority correctly applied Articles 1 to 3 of Annex VII to the Staff Regulations.
63      Consequently, the second plea in law must be rejected and, consequently, the first head of claim must be rejected in its entirety.
B.      The second head of claim
64      By the second head of claim, the applicant asks the Court to recognise his entitlement to receive the education allowance for the month September 2021 and for the period from 1 to 7 October 2021, as well as half of one third of the household allowance, half of the dependent child allowance and half of the education allowance with effect from 8 October 2021.
65      Assuming that the second head of claim is distinct from the first head of claim and that its purpose is solely to have certain entitlements ‘recognised’ for the applicant, suffice it to recall that, according to settled case-law, the Court does not have jurisdiction to issue declaratory judgments in actions brought under Articles 263 or 270 TFEU nor, as regards the review of legality based on Article 91 of the Staff Regulations, does it have jurisdiction to issue directions to the administration (see judgments of 16 January 2018, SE v Council, T‑231/17, not published, EU:T:2018:3, paragraph 63 and the case-law cited, and of 29 November 2018, WL v ERCEA, T‑493/17, not published, EU:T:2018:852, paragraph 25 and the case-law cited).
66      The second head of claim must therefore be rejected on the ground that the Court has no jurisdiction to hear and determine it.
67      In the light of all of the foregoing considerations, the action is dismissed in its entirety.
IV.    Costs
68      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, he must be ordered to bear his own costs and to pay those incurred by EUIPO, in accordance with the form of order sought by the latter.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1.      Dismisses the action.
2.      Orders RN to bear his own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO).
Svenningsen
Mac Eochaidh
Martín y Pérez de Nanclares
Delivered in open court in Luxembourg on 18 October 2023.
[Signatures]
*      Language of the case: English.
1 Confidential information omitted.