OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 16 October 2019 ( 1 )

Case C‑427/18 P

European External Action Service (EEAS)

v

Ruben Alba Aguilera,

Simone Barenghi,

Massimo Bonannini,

Antonio Capone,

Stéphanie Carette,

Alejo Carrasco Garcia,

Francisco Carreras Sequeros,

Carl Daspect,

Nathalie Devos,

Jean-Baptiste Fauvel,

Paula Cristina Fernandes,

Stephan Fox,

Birgitte Hagelund,

Chantal Hebberecht,

Karin Kaup-Laponin,

Terhi Lehtinen,

Sandrine Marot,

David Mogollon,

Clara Molera Gui,

Daniele Morbin,

Charlotte Onraet,

Augusto Piccagli,

Gary Quince,

Pierre-Luc Vanhaeverbeke,

Tamara Vleminckx,

Birgit Vleugels,

Robert Wade,

Luca Zampetti

(Appeal — Civil service — Officials and members of staff — European External Action Service — Remuneration — Staff posted to a third country — Allowance for living conditions for staff posted to Ethiopia — Reduction from 30% to 25%)

1. By its appeal, the European External Action Service (EEAS) seeks to have set aside the judgment of the General Court of the European Union of 13 April 2018, Alba Aguilera and Others v EEAS, ( 2 ) by which the General Court annulled the decision of the EEAS Director-General for Budget and Administration of 19 April 2016 setting the allowance for living conditions referred to in Article 10 of Annex X to the Staff Regulations of Officials of the European Union — Financial Year 2016 [ADMIN(2016) 7], in so far as that decision reduces, as of 1 January 2016, the allowance for living conditions (‘the ALC’) paid to European Union staff posted to Ethiopia from 30% to 25% of the reference amount (‘the decision at issue’).

I. Legal framework

A. The Staff Regulations and the Conditions of Employment of Other Servants of the European Union

2. 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 EEAS is, for the purposes of those Staff Regulations, to be treated as an institution of the European Union.

3. Article 10 of the Staff Regulations sets up a Staff Regulations Committee, consisting of representatives of the institutions of the European Union and an equal number of representatives of their Staff Committees.

4. Article 101a is the sole provision of Title VIIIb of the Staff Regulations. That article provides that, without prejudice to the other provisions of the Staff Regulations, Annex X to the Staff Regulations lays down the special and exceptional provisions applicable to officials serving in a third country.

5. Article 110 of the Staff Regulations provides: ‘1. The general provisions implementing these Staff Regulations shall be adopted by the appointing authority of each institution after consulting the Staff Committee and the Staff Regulations Committee. 2. Implementing rules adopted by the Commission to give effect to these Staff Regulations, including the general implementing provisions referred to in paragraph 1, shall apply by analogy to the agencies. …’

6. Annex X to the Staff Regulations, entitled ‘Special and exceptional provisions applicable to officials serving in a third country’, provides in the first and third paragraphs of Article 1 thereof: ‘This Annex lays down the special and exceptional provisions applicable to officials of the European Union serving in a third country. … General implementing provisions shall be adopted in accordance with Article 110 of the Staff Regulations.’

7. Article 10 of that annex provides: ‘1. An [ALC] 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 [ALC] 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 [ALC] 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. … 3. Detailed provisions for the application of this Article shall be decided by the appointing authority.’

8. The Conditions of Employment of Other Servants of the European Union, in the version applicable to the dispute (‘the Conditions of Employment’), state, in Article 10(5) thereof, that Title VIIIb of the Staff Regulations is to apply by analogy to temporary staff serving in a third country. Moreover, Article 118 of the Conditions of Employment 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.

B. The decisions of the EEAS

9. The Decision of the High Representative of the Union for Foreign Affairs and Security Policy of 17 December 2013 on the allowance for living conditions and the supplementary premium under 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 Conditions of Employment, in particular Article 10 itself, and states that it was adopted after consulting the Staff Committee. According to the first and only recital of the Decision of 17 December 2013, its objective is to adopt internal guidelines relating in particular to the ALC.

10. According to Article 2 of that decision: ‘After consulting the EEAS and Commission Staff Committees, [the appointing authority] shall determine the percentages of the [ALC] for the different places of employment. …’

11. Under the first paragraph of Article 12 of that decision, its provisions are to apply by analogy to temporary staff and contract staff.

12. The Chief Operating Officer ad interim of the EEAS adopted Decision EEAS DEC(2014) 049 of 3 December 2014 on the guidelines establishing the method for setting, inter alia, the ALC (‘the decision of 3 December 2014’), on the basis of the Decision of 17 December 2013 and Annex X to the Staff Regulations, in particular Articles 8 and 10 thereof, after consulting the EEAS Staff Committee and the Commission Staff Committee.

II. The background to the dispute and the decision at issue

13. Mr Ruben Alba Aguilera and the other persons whose names are included on the list of applicants at first instance, are officials or agents working in the EU delegation in Ethiopia.

14. On 19 April 2016, the EEAS Director-General for Budget and Administration adopted, pursuant to Article 10 of Annex X to the Staff Regulations, the decision at issue revising the amount of the ALC paid to agents posted to third countries. By that decision, the ALC rate applicable to EU staff working in Ethiopia was reduced from 30% to 25% of the reference amount. Furthermore, it is apparent from the decision adopted on the same day by the EEAS Director-General for Budget and Administration on the granting of rest leave to officials and temporary and contractual agents posted to third countries that rest leave is granted only if the place of employment is regarded as difficult or very difficult. Given that the rate of the ALC applicable to EU staff posted to Ethiopia had been reduced, the applicants also lost the benefit of rest leave.

15. Pursuant to Article 90(2) of the Staff Regulations, each of the applicants at first instance lodged, between 13 and 18 July 2016, a complaint against the decision at issue with the appointing authority or the authority empowered to conclude contracts of employment (the AECE).

16. By a decision of 9 November 2016, the appointing authority and the authority empowered to conclude contracts of employment rejected those complaints.

III. The procedure before the General Court and the judgment under appeal

17. By their action, the applicants at first instance requested the General Court to annul the decision at issue in so far as it reduces, as of 1 January 2016, the ALC paid to EU staff posted to Ethiopia from 30% to 25% of the reference amount; to order the EEAS to make a lump-sum payment, to be determined ex aequo et bono by the General Court, in respect of the non-pecuniary harm suffered; and to order the EEAS to pay the costs.

18. The EEAS contended that that action should be dismissed and that the applicants at first instance should be ordered to pay the costs.

19. The General Court annulled the decision at issue, dismissed the remainder of the action and ordered the EEAS to pay the costs.

IV. The procedure before the Court of Justice and the forms of order sought

20. By application lodged at the Registry of the Court on 26 June 2018, the EEAS brought the present appeal. In this appeal, the EEAS asks the Court to set aside the judgment under appeal, to grant the form of order sought by the EEAS at first instance and to order the applicants at first instance to pay the costs of both sets of proceedings.

21. The applicants at first instance contend that the Court should dismiss the appeal and order the EEAS to pay the costs or, in the alternative, if the appeal is upheld, refer the case back to the General Court.

V. Analysis

22. The EEAS puts forward two grounds in support of its appeal, alleging errors of law in the interpretation, first, of Article 1 of Annex X to the Staff Regulations and, secondly, of Article 10 of that annex. By those grounds of appeal, it argues, in essence, that the General Court was wrong to hold that, in implementing the provisions governing the grant of the ALC provided for in Article 10 of Annex X to the Staff Regulations, the EEAS was required to adopt general implementing provisions (‘general implementing provisions’) in accordance with the third paragraph of Article 1 of that annex.

23. In those grounds of appeal, the EEAS refers to paragraphs 28 and 29 of the judgment under appeal, in which the General Court, referring to its case-law, recalled that the adoption of general implementing provisions is mandatory in two situations: when the legislature expressly provides for it (express obligation to adopt general implementing provisions) or where it is required by the very nature of the provision to be applied (implied obligation to adopt general implementing provisions). That interpretation has already been established by the Court in its case-law. ( 3 )

A. The first ground of appeal

24. By its first ground of appeal, alleging an error of law in the interpretation of Article 1 of Annex X to the Staff Regulations, the EEAS criticises the General Court for having considered, primarily in paragraphs 30 and 31 of the judgment under appeal, that the third paragraph of that provision expressly establishes an obligation to adopt general implementing provisions for the whole of that annex.

25. The applicants at first instance contest the admissibility of the first ground of appeal. Consequently, before analysing the merits of that ground of appeal, it is necessary to examine the arguments of those applicants seeking, in essence, to have that ground of appeal rejected as inadmissible.

1. Admissibility

26. The applicants at first instance argue that the first ground of appeal is inadmissible on the ground that the obligation to adopt general implementing provisions in relation to Article 10 of Annex X to the Staff Regulations pursuant to the third paragraph of Article 1 of that annex is based on the case-law resulting from the judgment in Vanhalewyn, ( 4 ) which was not challenged by the EEAS before the General Court. The first ground of appeal thus alters the subject matter of the dispute.

27. I do not share the doubts expressed by the applicants at first instance in that regard.

28. Admittedly, in paragraph 25 of the judgment under appeal, the General Court stated that the EEAS did not dispute the fact that it is clear from the judgment in Vanhalewyn ( 5 ) that it was under an obligation to adopt general implementing provisions concerning Article 10 of Annex X to the Staff Regulations, given that the obligation under the third paragraph of Article 1 of that annex also covers the provisions governing the ALC.

29. However, as is apparent from paragraph 27 of the judgment under appeal, the EEAS argued in particular before the General Court that the decisions of 17 December 2013 and 3 December 2014 could be equated with general implementing provisions adopted in accordance with the requirements of the third paragraph of Article 1 of Annex X to the Staff Regulations. I infer from this that the EEAS maintained, in essence, that the third paragraph of Article 1 of Annex X to the Staff Regulations does not lay down an inescapable obligation to adopt general implementing provisions prior to adopting a decision on the basis of Article 10 of that annex. However, in the judgment in Vanhalewyn, ( 6 ) the General Court expressly rejected the interpretation of Article 1 of Annex X to the Staff Regulations according to which decisions adopted without complying with the procedural requirements of Article 110 of the Staff Regulations may be equated with general implementing provisions. Contrary to what is claimed by the applicants at first instance, it is therefore not possible to take the view that the EEAS did not contest the rule arising from that judgment.

30. I consider that the first ground of appeal is therefore admissible. Accordingly, it is necessary to examine the merits of that ground of appeal, in which the EEAS argues that the General Court wrongly held that the third paragraph of Article 1 of Annex X to the Staff Regulations expressly lays down the obligation to adopt general implementing provisions for the whole of that annex.

2. Substance

31. It should be noted at the outset that, so far as concerns the present case, it is important to answer not the question whether it is necessary to adopt general implementing provisions for the whole of that annex, but the question whether it is necessary to adopt general implementing provisions to give effect to the third and fourth subparagraphs of Article 10(1) of Annex X to the Staff Regulations, for the purpose of revising the amount of the ALC paid to agents posted to third countries. It is in that light that I shall analyse the first ground of appeal, which, in any event, also covers the criticism of the judgment under appeal in that specific regard.

32. It should be recalled that, the General Court found, in paragraphs 30 and 31 of the judgment under appeal, that the third paragraph of Article 1 of Annex X to the Staff Regulations expressly sets out the obligation to adopt general implementing provisions for the whole of that annex. Consequently, according to the General Court, an EU institution implementing the provisions governing the grant of the ALC provided for in Article 10 of Annex X to the Staff Regulations is under the obligation to adopt general implementing provisions in accordance with the third paragraph of Article 1 of that annex.

33. In support of its conclusion that the EEAS was under an obligation to adopt general implementing provisions prior to adopting the decision at issue, the General Court relied on the finding that while Article 10 of Annex X to the Staff Regulations, which is the legal basis for the decision at issue, does not contain any express stipulation providing for the adoption of general implementing provisions, by contrast the third paragraph of Article 1 of that annex does expressly set out such an obligation, which concerns the whole of that annex. The fact that the third paragraph of Article 1 is one of the ‘general provisions’ of Annex X to the Staff Regulations makes it of general application, so that that provision affects all the provisions of that annex, including those governing the grant of the ALC provided for in Article 10 of Annex X to the Staff Regulations. It should be noted that that is the reasoning which the General Court adopted in the judgment in Vanhalewyn, ( 7 ) to which it indeed refers on several occasions in the judgment under appeal.

34. Next, in paragraph 34 of the judgment under appeal, the General Court noted that the EEAS had still not adopted general implementing provisions for the implementation of Article 10 of Annex X to the Staff Regulations, in accordance with Article 110 of those regulations. Moreover, in paragraph 35 of the judgment under appeal, the General Court held that the decisions of 17 December 2013 and 3 December 2014 cannot be regarded as constituting general implementing provisions within the meaning of the third paragraph of Article 1 of Annex X to the Staff Regulations. According to the General Court, for the purposes of adopting merely internal guidelines, such as those decisions, the institutions are not bound to meet the procedural requirements set by Article 110 of the Staff Regulations and, in particular, to seek the opinion of the Staff Regulations Committee or consult the staff committee of the institution concerned by the measure. By contrast, Article 110 of the Staff Regulations provides that general implementing provisions cannot be adopted by an institution without the twofold requirement of consulting its staff committee and seeking the opinion of the Staff Regulations committee.

35. In that regard, it is true that the third paragraph of Article 1 of Annex X to the Staff Regulations is one of the general provisions of that annex. It is thus in principle capable of applying in relation to all the provisions of that annex.

36. However, the interpretation put forward by the General Court in the judgment under appeal is based on the premiss that the third paragraph of Article 1 of Annex X to the Staff Regulations constitutes an autonomous and sufficient source for the obligation to adopt general implementing provisions in relation to the whole of that annex. On the other hand, the EEAS challenges that premiss and argues in favour of interpreting the third paragraph of Article 1 of Annex X to the Staff Regulations as meaning that, where the relevant provisions of that annex require the adoption of general implementing provisions, those general implementing provisions are to be adopted in accordance with Article 110 of the Staff Regulations. In other words, the EEAS takes the view, as it explained at the hearing, that the third paragraph of Article 1 of Annex X to the Staff Regulations is merely a procedural reference. It is only where a provision at issue in Annex X to the Staff Regulations lays down an obligation to adopt general implementing provisions that the EEAS is obliged to adopt general implementing provisions prior to implementation of that provision. In such a case, general implementing provisions should be adopted in accordance with the procedural requirements laid down in Article 110 of the Staff Regulations.

37. In those circumstances, in order to determine whether, in the context of Annex X to the Staff Regulations, there is an express provision requiring the appointing authority to lay down general implementing provisions in the exercise of the decision-making power conferred on it by the third and fourth subparagraphs of Article 10(1) of that annex, the role of the third paragraph of Article 1 of Annex X to the Staff Regulations should be examined in relation to the other provisions of those Staff Regulations.

38. I would already point out at this point that, in my view, there are several arguments supporting the interpretation that the third paragraph of Article 1 of Annex X to the Staff Regulations does not lay down an express obligation to adopt general implementing provisions prior to adopting a decision revising the amount of the ALC paid to agents posted to third countries. Thus, that interpretation of the third paragraph of Article 1 of Annex X to the Staff Regulations is supported by the inferences to be drawn, first, from the distinction which the legislature made between general implementing provisions and detailed implementing provisions in the context of Annex X to the Staff Regulations (section (a)); secondly, from the use of general implementing provisions in connection with other provisions of that annex (section (b)); and, thirdly and finally, from respect for effectiveness of the third paragraph of Article 1 of that annex (section (c)).

(a) The distinction between general implementing provisions and detailed implementing provisions

39. As the EEAS notes in its appeal, it is apparent from an examination of Annex X to the Staff Regulations as a whole that Article 3 of that annex expressly provides that the appointing authority may adopt a decision on the basis of general implementing provisions. On the other hand, Article 10(3) of that annex uses different terminology and provides that detailed provisions for the application of Article 10 of that annex are to be decided by the appointing authority.

40. Such a terminological dichotomy has consequences on the methods of adopting general implementing provisions and detailed implementing provisions. Accordingly, Article 110 of the Staff Regulations states that general implementing provisions are to be adopted by the appointing authority after consulting the Staff Committee and the Staff Regulations Committee. On the other hand, the fourth subparagraph of Article 10(1) of Annex X to the Staff Regulations states that the ALC fixed for each place of employment is to be reviewed annually and, where appropriate, adjusted by the appointing authority after the opinion of the Staff Committee has been obtained; moreover, paragraph 3 of that article states that detailed provisions for the application of Article 10 of Annex X to the Staff Regulations are to be decided by the appointing authority.

41. Adopting the interpretation proposed by the General Court, which is supported in that regard by the applicants at first instance, would result in a multiplication of procedural requirements. In order to be able to adjust the ALC applicable to agents posted to third countries, the appointing authority would be required, first, to consult its Staff Committee and obtain the opinion of the Staff Regulations Committee in order to adopt general implementing provisions and, secondly, to establish detailed implementing provisions and obtain, once again, the opinion of the Staff Committee. Accordingly, if, as the General Court has held, the appointing authority must adopt general implementing provisions prior to adopting a decision revising the amount of the ALC, there necessarily arises the question of the reasons for the reference to detailed implementing provisions in Article 10(3) of Annex X to the Staff Regulations, which lays down procedural requirements which are less stringent than those provided for in Article 110 of the Staff Regulations.

42. That multiplication of procedural requirements may be an indication that the third paragraph of Article 1 of Annex X to the Staff Regulations does not lay down an express obligation as regards the adoption of a decision revising the amount of the ALC applicable to agents posted to third countries, such as the decision at issue. That point is not called into question by the arguments put forward by the applicants at first instance, who, in relying on the judgment in Osorio and Others v EEAS, ( 8 ) claim that a reading of the provisions of Annex X to the Staff Regulations as a whole and, more specifically, of Article 3 of that annex, does not confirm the interpretation proposed by the EEAS.

(b) The references to general implementing provisions in Annex X to the Staff Regulations

43. It is true that the Civil Service Tribunal interpreted Article 3 of Annex X to the Staff Regulations in its judgment in Osorio and Others, ( 9 ) and that the appeal against that judgment gave rise to the judgment of the General Court in Vanhalewyn. ( 10 ) In that first judgment, the Civil Service Tribunal held that, according to its wording, that provision is expressly laid down by way of derogation from the first paragraph of Article 1 of that annex. Consequently, the general implementing provisions to which Article 3 of Annex X to the Staff Regulations refers, and which concern the situation of officials reassigned temporarily to the seat or any other place of employment within the European Union, cannot, according to the Civil Service Tribunal, be applicable to the ‘special and exceptional provisions applicable to officials … serving in a third country’, mentioned in the first paragraph of Article 1 of that annex, or thereby refer to the general implementing provisions provided for by the third paragraph of Article 1 of that annex. ( 11 )

44. In that regard, it should be noted that, by stating that Annex X to the Staff Regulations lays down the special and exceptional provisions applicable to officials of the European Union serving in a third country, the first paragraph of Article 1 of that annex establishes its scope, with the result that the provisions of that annex are not, in principle, applicable to officials serving within the European Union. However, on the basis of Article 3 of Annex X to the Staff Regulations, the appointing authority may, by way of derogation from the first paragraph of Article 1 of that annex, make an official reassigned temporarily within the European Union subject to certain provisions of that annex, even though that annex was intended to govern the situation of officials serving in a third country.

45. Moreover, the derogation provided for in Article 3 of Annex X to the Staff Regulations concerns only the first paragraph of Article 1 of that annex. Consequently, that derogation allows the appointing authority to extend the scope ratione personae of that annex. ( 12 ) There is nothing to imply that Article 3 of Annex X to the Staff Regulations is not covered by the requirements of the third paragraph of Article 1 of that annex, which provides that general implementing provisions must be adopted in accordance with Article 110 of the Staff Regulations.

46. It follows from the foregoing that the third paragraph of Article 1 of Annex X to the Staff Regulations does not constitute an autonomous and sufficient source for an obligation to adopt general implementing provisions in accordance with Article 110 of the Staff Regulations. In my view, such an express or implied obligation can arise only from a combined reading of that provision and another provision of Annex X to the Staff Regulations. As is clear from point 23 of this Opinion, an obligation to adopt general implementing provisions exists where the legislature expressly provides for it or where it is necessitated by the very nature of the provision to be applied.

47. The foregoing considerations must be examined in the light of the argument, put forward at the hearing by the applicants at first instance, that that interpretation of the third paragraph of Article 1 of Annex X to the Staff Regulations would deprive that provision of all practical effect.

(c) The effectiveness of the third paragraph of Article 1 of Annex X to the Staff Regulations

48. It is clear that the interpretation that the third paragraph of Article 1 of Annex X to the Staff Regulations is, in the words of the EEAS, merely a ‘procedural reference’ may give rise to doubts as to the structure of that annex and, more specifically, as to the reasons for inserting the third paragraph of Article 1 into that annex. It could be argued that it is already apparent from Article 110 of the Staff Regulations that general implementing provisions are to be adopted in accordance with the procedure laid down in that provision. Moreover, the Staff Regulations also contain provisions which refer to general implementing provisions without expressly providing for their adoption in compliance with Article 110 of the Staff Regulations. ( 13 )

49. However, the legislative technique based on a reference to Article 110 of the Staff Regulations is not restricted to Annex X to the Staff Regulations. The Staff Regulations contain several provisions referring to the adoption of general implementing provisions in accordance with Article 110 thereof. ( 14 ) Accordingly, from the legislature’s point of view, there is always an interest in referring to Article 110 of the Staff Regulations in order to specify that general implementing provisions are to be adopted in accordance with the procedure laid down in that provision.

50. It is true that, in the context of those provisions of the Staff Regulations, a reference to Article 110 of the Staff Regulations is accompanied by the clarification that the general implementing provisions in question relate to a specific article or paragraph. ( 15 ) By contrast, the third paragraph of Article 1 of Annex X to the Staff Regulations does not contain a similar clarification as to whether it applies to the general implementing provisions for that annex or to the provisions of that annex as a whole. However, I am of the view that it is not possible to assume the role of the legislature and to add such a general clarification as regards all the provisions of the annex in question. As the EEAS observes, such an interpretation could render meaningless and incomplete the provisions of Annex X to the Staff Regulations which are self-contained.

51. After all, that Annex X is the only annex which expressly provides that its provisions constitute derogations from the other provisions of the Staff Regulations. It is true that Article 101a of the Staff Regulations provides that Annex X lays down the special and exceptional provisions applicable to officials of the European Union serving in a third country without prejudice to the other provisions of the Staff Regulations. It could thus be argued that the reaffirmation of the applicability of Article 110 of the Staff Regulations by the third paragraph of Article 1 of Annex X to those Staff Regulations is superfluous. However, without that reaffirmation, it would be difficult to determine whether, in referring to general implementing provisions in Article 3, Annex X to the Staff Regulation also derogates from the procedure laid down in Article 110 of the Staff Regulations.

52. Next, the obligation to adopt general implementing provisions may take the form of an express obligation or an implied obligation. It cannot be ruled out that, as a complement to Article 3 thereof, Annex X to the Staff Regulations also contains provisions which, by their very nature, require the adoption of general implementing provisions. In such circumstances, the third paragraph of Article 1 of Annex X to the Staff Regulations would require compliance with the procedural requirements in Article 110 of the Staff Regulations.

53. Lastly, the third paragraph of Article 1 of Annex X to the Staff Regulations may be interpreted as meaning that, where general implementing provisions are adopted in the absence of any obligation, the procedural requirements of Article 110 of the Staff Regulations must nonetheless be complied with.

54. It follows from the foregoing that the interpretation that the third paragraph of Article 1 of Annex X to the Staff Regulations does not constitute an autonomous and sufficient source for an obligation to adopt general implementing provisions does not render that provision meaningless.

55. In passing, it should be noted that that interpretation is, to some extent, confirmed by the recent case-law of the General Court.

56. It is true that, in the judgment in Vanhalewyn, ( 16 ) invoked on several occasions in the judgment under appeal, the General Court stated that there is an express obligation to adopt general implementing provisions as regards the whole of Annex X to the Staff Regulations, including the provisions governing the grant of the ALC.

57. However, the finding concerning the whole of that annex, contained in the judgment cited above, can be regarded only as an obiter dictum. The judgment in Vanhalewyn ( 17 ) concerned a decision updating the list of third countries for which the living conditions were deemed equivalent to those normally obtaining in the European Union. That decision thus related to the second subparagraph of Article 10(1) of Annex X to the Staff Regulations, which merely states that the ALC is not payable where an official is employed in a country in which living conditions can be deemed equivalent to those normally obtaining in the European Union. By contrast, the decision at issue relates to the third and fourth subparagraphs of Article 10(1) of Annex X, the content of which is more explanatory than that of the second subparagraph of Article 10(1) of that same annex.

58. Moreover, in the judgment in PO and Others v EEAS, ( 18 ) which was subsequent to the judgment in Vanhalewyn, ( 19 ) the General Court itself seems to have somewhat limited the scope of its case-law, in holding that the third paragraph of Article 1 of Annex X to the Staff Regulations cannot be interpreted as requiring the EEAS to adopt general implementing provisions relating to the exercise of the decision-making power conferred by the second sentence of Article 15 of that annex. In its judgment in PO and Others v EEAS, ( 20 ) the General Court stated that its findings in that judgment were consistent with those expressed in Vanhalewyn. ( 21 ) In view of the circumstances of the present case, I consider that it is not necessary to rule on that point. What is relevant in the present case, likewise in the light of the judgment in PO and Others v EEAS, ( 22 ) is the fact that the third paragraph of Article 1 of Annex X to the Staff Regulations does not lay down an obligation of general application concerning the whole of Annex X of those Regulations.

59. In the light of the foregoing, I consider that the first ground of appeal is well founded, in so far as the EEAS claims that the General Court was wrong to hold that the third paragraph of Article 1 of Annex X to the Staff Regulations imposes an express obligation to adopt general implementing provisions prior to the adoption, on the basis of the third subparagraph of Article 10(1) of that annex, of a decision revising the amount of the ALC paid to agents posted to third countries. However, I do not think that this constitutes a sufficient basis for setting aside the judgment under appeal without examining the second ground of appeal.

B. The second ground of appeal

60. It should be recalled that, in paragraphs 28 and 29 of the judgment under appeal, the General Court stated that the adoption of general implementing provisions is mandatory in two situations: when the legislature expressly provides for it or where it is required by the very nature of the provision to be applied.

61. The second ground of appeal echoes the findings set out by the General Court in paragraphs 28 and 29 of the judgment under appeal. By this ground of appeal, the EEAS argues that the General Court erred in law in finding that Article 10 of Annex X to the Staff Regulations is a provision of such a kind as to require the adoption of general implementing provisions, in so far as it is so unclear and imprecise that any application of it must necessarily be arbitrary.

62. By contrast, the applicants at first instance contend, primarily, that the second ground of appeal is ineffective. Since the General Court correctly held that the third paragraph of Article 1 of Annex X to the Staff Regulations expressly imposes an obligation on the EEAS to adopt the general implementing provisions provided for in Article 10 of that annex, the supposed clarity of Article 10 is irrelevant.

1. The effectiveness of the ground of appeal

63. I am sympathetic to the arguments of the applicants at first instance as to the effectiveness of the second ground of appeal, in so far as a reading of the judgment under appeal may not dispel all doubts as to the source of the obligation which, according to the General Court, was incumbent on the EEAS. Initially, in paragraphs 30 and 31 of the judgment under appeal, the General Court stated that the third paragraph of Article 1 of Annex X to the Staff Regulations expressly sets out an obligation to adopt general implementing provisions in relation to the whole of that annex, including the provisions governing the grant of the ALC provided for in Article 10 of that annex.

64. However, subsequently, in paragraph 32 of the judgment under appeal, the General Court put forward arguments in support of the obligation to adopt general implementing provisions in relation to Article 10 of Annex X to the Staff Regulations. For the General Court, that obligation is explained by the fact that that provision confers a particularly broad margin of appreciation on the appointing authority with respect to the determination of the living conditions in third countries. In that vein, in paragraph 38 of the judgment under appeal, the General Court seems to consider that the adoption of general implementing provisions is required to ensure that the criteria, according to which the 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.

65. In those circumstances, it cannot be ruled out that the General Court did not, at least implicitly, consider that Article 10 of Annex X to the Staff Regulations is also covered by the second situation referred to in point 60 of this Opinion.

66. If my reading of the judgment under appeal is correct and if the very nature of Article 10 of Annex X to the Staff Regulations imposes an obligation to adopt general implementing provisions, the second ground of appeal is not ineffective and the fact that the first ground of appeal is well founded cannot lead to the setting aside of the judgment under appeal. I therefore consider that the analysis of the appeal cannot be confined to the assessment of the first ground of appeal and that the second ground of appeal must also be examined.

2. Substance

67. It should be recalled that, by its second ground of appeal, the EEAS essentially argues that the General Court erred in law in finding that Article 10 of Annex X to the Staff Regulations is a provision of such a kind as to require the adoption of general implementing provisions. That provision is, according to the General Court, so unclear and imprecise that any application of it must necessarily be arbitrary. However, the EEAS argues that, in the context of the adoption of implementing rules relating to the ALC, the fourth subparagraph of Article 10(1) of Annex X to the Staff Regulations requires the opinion of the Staff Committee to be obtained, as it was when the decisions of 17 December 2013 and 3 December 2014 were adopted. According to the EEAS, that step in itself eliminates any risk of the criteria determining the rate of the ALC being imposed by the administration in order to secure a desired outcome. Moreover, the degree of detail in that Article 10, which sets out the parameters to be taken into account for the purpose of setting the ALC and establishes an annual assessment of those parameters, demonstrates in itself that the provisions in question leave no scope for arbitrary application.

68. The applicants at first instance argue that this ground of appeal — in so far as it is effective — is unfounded, since the adoption of general implementing provisions means that the opinion of the Staff Regulations Committee is able to influence the appointing authority’s decision.

69. In that regard, the third subparagraph of Article 10(1) of Annex X to the Staff Regulations states that ‘the [ALC] shall be fixed taking into account, inter alia, the following parameters …’. Admittedly, the term ‘inter alia’ indicates that the list of parameters out is not exhaustive. However, that provision 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. Moreover, as the EEAS observes, the setting of the ALC is subject to an annual assessment and, where appropriate, is adjusted, after the opinion of the Staff Committee has been obtained. The legislature therefore 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.

70. In the light of the foregoing considerations, I consider that the second ground of appeal is well founded. It thus follows from my analysis that the two grounds of the appeal brought by the EEAS are well founded.

71. Consequently, the judgment under appeal must be set aside on account of the errors of law vitiating that judgment, namely a misinterpretation of the third paragraph of Article 1 and of Article 10 of Annex X to the Staff Regulations, in so far as the General Court held that when implementing the latter provision and adopting a decision revising the amount of the ALC applicable to agents posted to third countries, such as the decision at issue, the EEAS was under an obligation to adopt general implementing provisions. In those circumstances, the appeal must be upheld and the first paragraph of the operative part of the judgment under appeal must be set aside.

72. Moreover, in accordance with Article 61 of the Statute of the Court of Justice of the European Union, if the appeal is well founded, the Court is to set aside the decision of the General Court. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.

73. I do not consider that the state of the proceedings is such as to permit the Court of Justice to give judgment. In the action brought before the General Court the applicants at first instance relied on three pleas in law. As stated in paragraph 44 of the judgment under appeal, the General Court delivered that judgment without examining the second and third pleas in law relied on before it. It is therefore appropriate to refer the case back to the General Court for it to rule on those pleas.

VI. Conclusion

74. In the light of the foregoing considerations, I consider that the grounds of appeal relied on by the European External Action Service (EEAS) must be upheld and I propose that the Court should: (1) Set aside both the first paragraph of the operative part of the judgment of the General Court of the European Union of 13 April 2018, Alba Aguilera and Others v EEAS (T‑119/17, EU:T:2018:183), by which the General Court annulled the decision of the European External Action Service (EEAS) of 19 April 2016 reducing, as of 1 January 2016, the allowance for living conditions paid to European Union staff posted to Ethiopia from 30% to 25% of the reference amount, and the third paragraph of the operative part of that judgment, by which the General Court ordered the EEAS to pay the costs; (2) Refer the case back to the General Court of the European Union; (3) Reserve the costs.

( 1 ) Original language: French.

( 2 ) T‑119/17, EU:T:2018:183, hereafter ‘the judgment under appeal’.

( 3 ) See also, in relation to those two situations, judgment of 8 July 1965, Willame v Commission (110/63, EU:C:1965:71).

( 4 ) Judgment of 17 March 2016, Vanhalewyn v EEAS (T‑792/14 P, EU:T:2016:156).

( 5 ) Judgment of 17 March 2016 (T‑792/14 P, EU:T:2016:156).

( 6 ) Judgment of 17 March 2016 (T‑792/14 P, EU:T:2016:156). According to paragraph 35 of that judgment, the fact that the appointing authority has fixed ‘appropriate criteria to guide its assessment as to the equivalence of living conditions’ is irrelevant, since those criteria were not set out in general implementing provisions.

( 7 ) Judgment of 17 March 2016 (T‑792/14 P, EU:T:2016:156, paragraphs 22 and 23).

( 8 ) Judgment of the Civil Service Tribunal of 25 September 2014 (F‑101/13, EU:F:2014:223).

( 9 ) Judgment of the Civil Service Tribunal of 25 September 2014 (F‑101/13, EU:F:2014:223, paragraphs 24 and 25).

( 10 ) Judgment of 17 March 2016 (T‑792/14 P, EU:T:2016:156).

( 11 ) Judgment of the Civil Service Tribunal of 25 September 2014, Osorio and Others v EEAS (F‑101/13, EU:F:2014:223, paragraph 25).

( 12 ) Incidentally, the fact that Article 3 of Annex X to the Staff Regulations provides for the possibility of extending the scope of the annex also explains why the appointing authority is required to adopt general implementing provisions prior to the adoption of a decision on the basis of that provision. The extension of the scope of that annex to officials reassigned, albeit temporarily, within the European Union could be contrary to the aim of Annex X of the Staff Regulations and infringe the principle of equal treatment. See, to that effect, judgment of 29 May 1997, de Rijk v Commission (C‑153/96 P, EU:C:1997:268, paragraphs 28 and 29).

( 13 ) See, by way of illustration, the third subparagraph of Article 9(1) and Article 13a of Annex VII to the Staff Regulations and the second subparagraph of Article 11(2) of Annex VIII to the Staff Regulations.

( 14 ) See the second paragraph of Article 27 and Article 45a(5) of the Staff Regulations and Article 2(3) of Annex IX to the Staff Regulations.

( 15 ) See footnote13.

( 16 ) Judgment of 17 March 2016 (T‑792/14 P, EU:T:2016:156, paragraphs 24 and 25).

( 17 ) Judgment of 17 March 2016 (T‑792/14 P, EU:T:2016:156, paragraphs 24 and 25).

( 18 ) Judgment of 25 October 2018 (T‑729/16, EU:T:2018:721, paragraphs 160 to 165).

( 19 ) Judgment of 17 March 2016 (T‑792/14 P, EU:T:2016:156).

( 20 ) Judgment of 25 October 2018 (T‑729/16, EU:T:2018:721, paragraphs 166 to 170).

( 21 ) Judgment of 17 March 2016 (T‑792/14 P, EU:T:2016:156).

( 22 ) Judgment of 25 October 2018 (T‑729/16, EU:T:2018:721).