Judgment of the General Court (Fourth Chamber) of 13 October 2021 –

Aupicon and Others v EEAS

(Case T‑655/18)

(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 – ‘Guidelines establishing the methodology to fix the living conditions allowances’ – Decision fixing the rate of the allowance for living conditions paid to staff posted to Ghana at 20% – Failure to draw up the questionnaire required by the guidelines – Procedural irregularity – Manifest error of assessment)

1. Action for annulment – Admissibility – Examining the substance of a plea without first giving a ruling on its admissibility – Discretion of the EU Courts (Art. 263 TFEU) (see paras 43, 44)

2. Officials – Remuneration – Financial rules applicable to officials posted to a third country – Allowance for living conditions – Conditions for granting – Annual revision and assessment – No obligation for the institutions to adopt general implementing provisions (Staff Regulations of Officials, Art. 110 and Annex X, Art. 10) (see paras 53-58)

3. Officials – Staff Regulations – General implementing provisions – Procedure for adopting – No obligation for the authority to seek the opinion of the Staff Regulations committee (Staff Regulations of Officials, Art. 110 and Annex X, Art. 10) (see para. 64)

4. Officials – Remuneration – Financial rules applicable to officials posted to a third country – Allowance for living conditions – Fixing – Discretion of the administration – Judicial review – Limits (see para. 77)

5. Officials – Acts of the administration – Presumption of validity – Challenge – Burden of proof – Obligation to put forward evidence capable of challenging the lawfulness of the act (see para. 80)

6. Officials – Remuneration – Financial rules applicable to officials posted to a third country – Allowance for living conditions – Conditions for granting – Obligation for the institutions to observe the procedure to set the allowance for living conditions – Infringement – Consequences (Staff Regulations of Officials, Annex X, Art. 10) (see paras 138, 139)

Re:

Application under Article 270 TFEU seeking annulment, first, of the decision of the EEAS Director-General for Budget and Administration of 19 December 2017 fixing the allowance for living conditions referred to in Article 10 of Annex X to the Staff Regulations of Officials of the European Union for the financial year 2018, inasmuch as that decision fixes the rate of the allowance for living conditions paid to EU staff posted to Ghana at 20% of the reference amount and, second, in so far as is necessary, of the applicants’ payslips for the month of January 2018, inasmuch as that decision is applied therein for the first time.

Operative part

The Court:

1. Annuls the decision of the European External Action Service (EEAS) Director-General for Budget and Administration of 19 December 2017 fixing the allowance for living conditions referred to in Article 10 of Annex X to the Staff Regulations of Officials of the European Union for the financial year 2018, inasmuch as that decision fixes, with effect from 1 January 2018, the rate of the allowance for living conditions paid to EU staff posted to Ghana at 20% of the reference amount;

2. Annuls the payslips of Ms Delphine Aupicon and of the other applicants whose names are listed in the annex to the judgment, issued by the EEAS for the month of January 2018, inasmuch as the decision of the EEAS of 19 December 2017 fixing, with effect from 1 January 2018, the rate of the allowance for living conditions paid to EU staff posted to Ghana at 20% of the reference amount is applied to those payslips;