JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

25 September 2014

Bruno Julien-Malvy

v

European External Action Service (EEAS)

‛Civil service — Remuneration — Staff of the EEAS assigned to a third country — Decision of the appointing authority amending the list of third countries in respect of which the living conditions are equivalent to those normally obtaining in the European Union — Measure of general application — Admissibility of the action — Annual assessment of the allowance for living conditions — Abolition’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Julien-Malvy and the other applicants whose names are set out in the annex request that the Tribunal annul the decision of 19 December 2012 of the European External Action Service (EEAS) in so far as it abolishes, from 1 January 2014, payment of the allowance for living conditions (‘the ALC’) to staff employed in Argentina, Hong Kong, Chile, Japan, Malaysia, Singapore and Taiwan and, consequently, order the payment of sums which they consider to be due to them in respect of the ALC.

Held:

The action is dismissed. Mr Julien-Malvy and the other applicants whose names are set out in the annex are to bear their own costs. The European External Action Service is to bear its own costs.

Summary

Officials — Remuneration — Emoluments applicable to officials serving in a third country — Allowance for living conditions — Conditions for granting — Obligation for the institutions to adopt general implementing provisions — Infringement — Reliance on infringement by an official challenging the legality of a decision concerning the grant of the allowance — Conditions

Officials and other members of staff are entitled to bring an action against a measure of a general nature adopted by the appointing authority which adversely affects them in so far as, first, that measure does not, in order to produce legal effects, require any implementing measure or leave any discretion, as regards its application, to the authorities responsible for implementing it and, secondly, it affects officials’ interests directly by bringing about a distinct change in their legal position. That is true of a decision taken by the appointing authority pursuant to Article 10 of Annex X to the Staff Regulations, resulting in the abolition of the allowance for living conditions for officials assigned to certain delegations and offices of the European Union in third countries. Such a decision seems to be sufficiently precise and unconditional not to require any special implementing measure in order to produce legal effects for officials posted in the third countries concerned. In that regard, although the implementation of the decision requires the adoption of administrative measures, of individual application, to end the grant of the allowance, the adoption of such measures, which does not leave the managing authorities any discretion, is not such as to prevent the legal position of the officials concerned from being directly affected, and they must necessarily expect to lose entitlement to the allowance for living conditions from the actual date of the decision. (see paras 14-16) See: 29 September 1976, 54/75 de Dapper and Others v Parliament; 27 October 1987, 146/85 and 431/85 Diezler and Others v ESC, paras 6 and 7; 8 March 1988, 125/87 Brown v Court of Justice, para. 16

General implementing provisions for the purpose of Article 110 of the Staff Regulations are, primarily, the implementing measures expressly provided for by certain special provisions of the Staff Regulations, and, in the absence of any express provision, the obligation to adopt implementing measures subject to the formal requirements of that article can be recognised only in exceptional circumstances, that is, when the provisions of the Staff Regulations are so unclear and imprecise that any application of them must be arbitrary. In that regard, the third paragraph of Article 1 of Annex X to the Staff Regulations is of general application and the general implementing provisions whose adoption it provides for concern the whole of Annex X to the Staff Regulations, including the provisions governing the grant of the allowance for living conditions. Consequently, a Union body implementing those provisions is under an obligation to adopt general implementing provisions for Article 10 of Annex X to the Staff Regulations, in accordance with the third paragraph of Article 1 of that annex. However, an official challenging a decision revising the amount of the allowance paid to officials serving in third countries cannot usefully rely on the lack of general implementing provisions unless the alleged irregularity is liable to affect him personally. In that regard, it must be pointed out that the main purpose of general implementing provisions is to set appropriate criteria to guide the administration in the exercise of its discretion or to make clear the scope of provisions of the Staff Regulations which are so unclear and imprecise that any application of them must be arbitrary. In so far as the fact that a provision is imprecise is not sufficient in itself to lead to that provision being applied arbitrarily, the person concerned would have no legal interest in raising such a plea unless the failure by the European External Action Service to adopt general implementing provisions had adversely affected him personally by leading the appointing authority to apply the provisions of Article 10 of Annex X to the Staff Regulations to his situation in a biased and arbitrary manner. (see paras 21, 23, 29, 33) See: judgment in Deboeck v Commission, 90/74, EU:C:1975:109 judgment in Ianniello v Commission, T‑308/04, EU:T:2007:347, para. 38 judgment in Behmer v Parliament, F‑47/07, EU:F:2009:103, para. 47

As regards the allowance for living conditions referred to in Annex X to the Staff Regulations, by not fixing any criterion for the determination of whether living conditions in third countries were equivalent to those in the countries of the European Union, the EU legislature intended to leave the appointing authority a wide discretion as regards the general implementing provisions which it was required to adopt in the future. That being so, where a Union body is in a period of adjustment on the date when a decision is adopted revising the amount of the allowance paid to officials serving in third countries, that fact could validly explain why, at that date, there were still no general implementing provisions capable of guiding its discretion in the application of Article 10 of Annex X to the Staff Regulations. Likewise, that body could, without committing any error of law and without exceeding its discretion, take account of criteria other than the parameters explicitly listed in the fourth subparagraph of Article 10(1) of Annex X to the Staff Regulations to assess that equivalence. In that regard, the use of data on the level of economic development achieved by the third countries at issue and of the method favouring a general economic approach based on the comparison of levels of economic development and taking account of the analyses made by other international organisations or some States for their diplomatic staff, in order to determine whether living conditions in third countries are equivalent to those in the countries of the European Union, does not appear to be contrary to Article 10(1) of Annex X to the Staff Regulations. That finding cannot be called into question by the fact that that method is different from that used in the past, since the method used fell within the limits of the appointing authority’s discretion and no rule obliged that authority to maintain its method unaltered. (see paras 53, 54, 56, 57)