CELEX: 62020CC0675
Language: en
Date: 2022-04-07 00:00:00
Title: Opinion of Advocate General Kokott delivered on 7 April 2022.###

OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 7 April 2022 (1)

Case C‑675/20 P

Colin Brown

v

European Commission

and

Council of the European Union

(Appeal – Civil service – Article 4(1) of Annex VII to the Staff Regulations – Expatriation allowance – Criteria – Acquisition of the nationality of the place of employment after entering the service – Withdrawal by the Commission of entitlement to receive the expatriation allowance)

I.      Introduction

1.        In order to take up employment with the European Union, its officials must often leave their Member State of origin and establish their residence in the Member State in which they are employed. With a view to compensating for the inconvenience associated with this and to permit the recruitment of nationals of Member States of the European Union on the broadest possible geographical basis, the EU legislature created the expatriation allowance, the conditions of which are set out in Article 4(1)(a) and (b) of Annex VII to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’). (2)

2.        According to that provision, the expatriation allowance is paid, first, to officials who are not nationals of their place of employment and who have not resided there continuously during the five years before they entered the service (subparagraph (a)). Secondly, it is paid to officials who are nationals of their place of employment but who have not resided there, even briefly, during the 10 years before entering the service (subparagraph (b)).

3.        But what is the situation when an official who was not a national of his or her place of employment when he or she entered the service, and thus came under subparagraph (a), then acquires that nationality later in his or her career? Does that acquisition of the nationality of the place of employment justify a reassessment of the entitlement to receive the expatriation allowance, this time under subparagraph (b)? Or is the nationality of the official at the time of entering the service the only relevant factor, so that subsequent acquisition of the nationality of the place of employment does not affect the entitlement to the expatriation allowance?

4.        That is the question to be answered by the Court of Justice in the present appeal.
II.    Legal context

5.        The Staff Regulations constitute the legal framework of this case.

6.        The first sentence of Article 69 of the Staff Regulations provides:
‘The expatriation allowance shall be equal to 16% of the total of the basic salary, household allowance and dependent child allowance to which the official is entitled.’

7.        Under Article 4(1) of Annex VII to the Staff Regulations, the expatriation allowance is paid subject to the following conditions:
‘1.      An expatriation allowance equal to 16% of the total of the basic salary, household allowance and dependent child allowance paid to the official shall be paid:
(a)      to officials:
–        who are not and have never been nationals of the State in whose territory the place where they are employed is situated, and
–        who during the five years ending six months before they entered the service did not habitually reside or carry on their main occupation within the European territory of that State. For the purposes of this provision, circumstances arising from work done for another State or for an international organisation shall not be taken into account;
(b)      to officials who are or have been nationals of the State in whose territory the place where they are employed is situated but who during the ten years ending at the date of their entering the service habitually resided outside the European territory of that State for reasons other than the performance of duties in the service of a State or of an international organisation.
…
2.      An official who is not and has never been a national of the State in whose territory he is employed and who does not fulfil the conditions laid down in paragraph 1 shall be entitled to a foreign residence allowance equal to one quarter of the expatriation allowance.
3.      For the purposes of paragraphs 1 and 2, an official who has by marriage automatically acquired and cannot renounce the nationality of the State in whose territory he or she is employed shall be treated in the same way as an official covered by the first indent of paragraph 1(a).’

8.        In accordance with the first subparagraph of Article 8(1) of Annex VII to the Staff Regulations, ‘officials entitled to the expatriation or foreign residence allowance shall be entitled, within the limit set out in paragraph 2, in each calendar year to a flat-rate payment corresponding to the cost of travel from the place of employment to the place of origin as defined in Article 7 for themselves and, if they are entitled to the household allowance, for the spouse and dependants within the meaning of Article 2’.
III. Background to the appeal

A.      Background to the dispute

9.        The General Court summarised the relevant aspects of the background to this dispute as follows in paragraphs 1 to 8 of the judgment of 5 October 2020, Brown v Commission (3) (‘the judgment under appeal).

10.      The appellant, Mr Colin Brown, was originally a national of the United Kingdom only and lived there until 1996. He studied in Italy in 1996 and 1997, and subsequently in Belgium from September 1997 to June 1998. He then served as a trainee with the European Commission in Brussels (Belgium) from 1 October 1998 to 28 February 1999. Lastly, he worked full time in the private sector in Belgium from 1 March 1999 to 31 December 2000.

11.      The appellant began working for the Commission on 1 January 2001. The Office for the Administration and Payment of Individual Entitlements (PMO) of the Commission granted him the expatriation allowance under Article 4(1)(a) of Annex VII to the Staff Regulations.

12.      On 23 June 2016, the citizens of the United Kingdom of Great Britain and Northern Ireland voted to withdraw from the European Union. On 29 March 2017, the Prime Minister of the United Kingdom notified the European Council of that Member State’s intention to withdraw from the European Union and the European Atomic Energy Community (Euratom).

13.      On 27 June 2017, the appellant applied for Belgian nationality, which he obtained on 3 November 2017. He notified the PMO of that change in circumstances on 19 January 2018.

14.      On 23 February 2018, the appellant was informed, first, that his entitlement to the expatriation allowance was withdrawn with effect from 31 October 2017 because he had obtained Belgian nationality and, secondly, that, as a consequence, he also lost his entitlement to payment of travel expenses pursuant to Article 8 of Annex VII to the Staff Regulations.

15.      Following a request for an explanation, the appellant received an email, on 5 March 2018, stating that withdrawal of the expatriation allowance was justified under Article 4(1)(b) of Annex VII to the Staff Regulations by the fact that he had resided in Belgium since 1997.

16.      On 19 March 2018, the PMO replaced the decision of 23 February 2018 by a new decision setting 1 December 2017 as the date on which entitlement to the expatriation allowance and payment of travel expenses were withdrawn from the appellant (‘the decision at issue’).

17.      On 17 June 2018, the appellant filed a complaint, which was rejected by decision of the appointing authority of 15 October 2018.
B.      The judgment under appeal

18.      By application lodged at the Registry of the General Court on 11 January 2019, the appellant brought an action under Article 270 TFEU seeking annulment of the decision at issue withdrawing his entitlement to the expatriation allowance and to the payment of travel expenses. Furthermore, he requested that the General Court order the restoration of those benefits with effect from 1 December 2017, as well as the payment of the allowances which were not paid between 1 December 2017 and the date of re-establishment of his entitlement to those benefits, together with interest.

19.      By the judgment under appeal, the General Court dismissed the action and ordered the parties to bear their own respective costs.
IV.    The appeal proceedings and forms of order sought

20.      By statement of appeal lodged at the Registry of the Court of Justice on 11 December 2020, the appellant brought an appeal against the judgment under appeal.

21.      The appellant claims that the Court should:
–        set aside the judgment under appeal in which the General Court refused to annul the decision at issue;
–        annul the decision at issue on the basis of the complete record before it and order that his entitlement to the expatriation allowance and to payment of his travel expenses be restored with effect from 1 December 2017 and that the allowances which were not paid between 1 December 2017 and the date of re-establishment of his entitlement to those benefits be paid to him, together with interest;
–        order the Commission to pay the costs incurred by the appellant before the General Court and the Court of Justice.

22.      The Commission and the Council contend that the Court should:
–        dismiss the appeal;
–        order the appellant to pay the costs.

23.      The parties submitted written observations on the appeal before the Court and presented oral arguments at a hearing held on 2 February 2022.
V.      Assessment

A.      The appeal

24.      As mentioned above, Article 4(1)(a) and (b) of Annex VII to the Staff Regulations provides for the payment of the expatriation allowance to EU officials in two situations:

25.      First, where the officials concerned are not and have never been nationals of their place of employment and, during the five years ending six months before they entered the service, did not habitually reside or carry on their main occupation there. For the purposes of that provision, circumstances arising from work done for another State or for an international organisation are not to be taken into account (subparagraph (a)). The criteria of carrying on the main occupation and of habitual residence are equally relevant; (4) however, since that is not at issue here, I will refer only to the criterion of habitual residence below. Under that provision, officials who are not nationals of their country of employment are refused the expatriation allowance only if they have habitually resided in that country throughout the entire five-year reference period. (5)

26.      Secondly, the expatriation allowance is paid to officials who are or have been nationals of their place of employment but who, during the 10 years ending at the date of their entry into service, did not habitually reside there for reasons other than the performance of duties in the service of a State or of an international organisation (subparagraph (b)). Under that provision, maintenance of the habitual residence in the country of employment only very briefly during the 10-year reference period is sufficient to justify refusal of that allowance. (6)

27.      On entering the service in Brussels in 2001, the appellant, who was originally only a British national, was granted an entitlement to the expatriation allowance under Article 4(1)(a) of Annex VII to the Staff Regulations, because he was not and had never been a Belgian national and had not lived or worked continuously in Belgium for the five years before entering the service.

28.      After the appellant acquired Belgian nationality in 2017, the PMO of the Commission reassessed his entitlement to the expatriation allowance and found that he was no longer covered by subparagraph (a) of Article 4(1) of Annex VII, since he was now a national of his country of employment.

29.      The PMO also assessed whether the appellant was entitled to the expatriation allowance under Article 4(1)(b) of Annex VII to the Staff Regulations. However it found that he was not so entitled, because he had resided in Belgium from 1997 to 2000, and thus during the 10 years immediately before he entered the service in 2001.

30.      The appellant challenged that decision unsuccessfully before the General Court and now challenges the General Court’s rejection of his first-instance arguments on two grounds of appeal.
1.      The first ground of appeal

31.      In his first ground of appeal, the appellant submits that the General Court erred in confirming the Commission’s view that Article 4(1) of Annex VII to the Staff Regulations must be interpreted as meaning that he had lost his entitlement to the expatriation allowance because he had acquired the nationality of his place of employment 17 years after entering the service.

32.      According to the General Court’s reasoning in paragraphs 36, 41, 45 and 47 to 51 of the judgment under appeal, the wording of the provision at issue does not expressly provide that entitlement to the expatriation allowance must be reassessed when the nationality of the place of employment is acquired. This allowance, it found, had also been conceived as compensation for the inconvenience caused by the official moving away from his or her place of origin; since that inconvenience lasts throughout his or her career, the integration of the official in his or her place of employment after entering into the service could not prevent the payment of the expatriation allowance.

33.      Nevertheless, according to the General Court, by using the present tense in Article 4(1) of Annex VII to the Staff Regulations (‘who are not … nationals of the State in whose territory the place where they are employed is situated’; emphasis added) and given the iterative nature of the payment of that allowance, the legislature did not preclude the officials concerned from having to continue throughout their career to fulfil the requirement of not being nationals of the country of employment in order to retain their entitlement to that allowance. (7) Hence it could not be ruled out that the specific form of integration that is the acquisition of the nationality of the country of employment after entry into service could constitute a substantial change in circumstances capable of leading to the loss of the expatriation allowance.

34.      According to the appellant, this conclusion is vitiated by an error of law. He pleads that it is clear from the wording of Article 4(1) of Annex VII to the Staff Regulations, in conjunction with the scheme of the expatriation allowance and the rationale behind it, that the criterion of ‘foreignness’ or ‘expatriation’ in the place of employment is to be assessed at the time of entering the service. Subsequent acquisition of the nationality of the country of employment, on the other hand, does not affect entitlement to the expatriation allowance. That entitlement, he argues,  could be reassessed only if an official who was originally entitled to the expatriation allowance moved to a place of employment in his or her country of origin and thus no longer fulfilled the criterion of expatriation in the place of employment.
(a)    The scheme of the expatriation allowance and the rationale behind it

35.      According to the settled case-law of the Court of Justice, in interpreting a provision of EU law it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part. (8) Furthermore, the legislative history of a provision must also be taken into account, in so far as it reveals the true intention of its author. (9)

36.      It is clear from the scheme of Article 4(1) of Annex VII to the Staff Regulations set out in points 25 and 26 of this Opinion that the fact of not being and having never been a national of the country of employment is not an absolute criterion for obtaining the expatriation allowance. Rather, as the Court  has also already expressly stated, it is a secondary criterion. The paramount criterion for determining entitlement to an expatriation allowance is, in fact, habitual residence during the 5 or 10 years before entering the service. (10)

37.      Accordingly, even officials who are not and have never been nationals of their country of employment are not entitled to receive the expatriation allowance if they already resided continuously in that country during the five years before entering the service (Article 4(1)(a)). Conversely, officials who are nationals of their country of employment may obtain an entitlement to receive the expatriation allowance if they have not resided, even briefly, in that country during the 10 years before entering the service (Article 4(1)(b)). (11)

38.      As the General Court also held in paragraph 75 of the judgment under appeal, the criterion of nationality of the country of employment is thus only the mechanism used to determine whether habitual residence during the 5 years or, instead, the 10 years before entering the service is relevant. That is because a person who is or has been a national of a country is assumed to have a special connection with that country and not to be foreign or an ‘expatriate’ there. Conversely, not being or not having ever been a national of a country creates a presumption that the person concerned has no special connection with that country and is therefore foreign or an ‘expatriate’ there. (12)

39.      However, that presumption of the existence or absence of a special connection with the country of employment, depending on whether or not the official is or has ever been a national of that country, can now be either confirmed or disproved by the criterion of habitual residence in the place of service in the years before entering the service.

40.      Thus, it is presumed that officials who are not and have never been nationals of their country of employment, but who resided there continuously during the five years before entering the service, have in the meantime established a special connection with that country, although it is not their country of origin, and are therefore no longer foreign or ‘expatriates’ there.

41.      Conversely, officials who are or have been nationals of their country of employment, but who have not habitually resided there, even briefly, during the 10 years immediately before entering the service, will be deemed to have broken the special connection which they originally had with that country, by virtue of holding its nationality, as a result of their continuous 10-year absence; when they return to that country to enter the service of the European Union they will therefore satisfy the criterion of being ‘foreign’ or ‘expatriates’. (13)

42.      The main criterion for the right to receive the expatriation allowance is therefore the criterion of foreignness or expatriation in the place of employment at the time of entering the service; the fulfilment of that criterion depends on habitual residence during the relevant period before entering the service. Therefore, in the words of Advocate General Mengozzi, ‘the condition governing the grant of the expatriation allowance is not the fact that the official is not a national of the State in which the place of employment is situated but the circumstance of de facto “expatriation” in which the official finds himself on entering the service’. (14)

43.      As the Court of Justice has held, and as the General Court held in paragraph 48 of the judgment under appeal, that is because ‘the purpose of [that] allowance is to compensate for the extra expense and inconvenience of taking up employment with the European Union of officials who are [thereby] obliged to change their residence’. (15) As the General Court also stated in paragraph 49 of the judgment under appeal, this is intended to allow for recruitment on the broadest possible geographical basis from among nationals of Member States of the European Union and thereby ensure geographical balance within the EU civil service.

44.      That rationale behind the expatriation allowance is confirmed by the legislative history of the provision in question. As the General Court mentioned in paragraph 47 of the judgment under appeal, it is apparent from a Council information note of 11 December 1959 that the expatriation allowance was conceived as an allowance ‘given as compensation for material expenses and moral inconvenience resulting from the fact that the official is away from his place of origin’ and that ‘officials generally maintain family ties … with their region of origin’.
(b)    Irrelevance, for entitlement to the expatriation allowance, of subsequent integration in the place of employment after entering the service

45.      Integration in the place of employment after entering the service also does not alter this. As the General Court rightly stated in paragraph 47 of the judgment under appeal, the inconvenience and extra expense resulting from the fact that the official is away from his or her place of origin are likely to last throughout his or her career and even intensify over the course thereof, despite integration in the country of employment. Therefore, as the General Court stated in paragraph 50 of the judgment under appeal, the integration of officials in their place of employment at a later stage of their career is irrelevant for the right to receive the expatriation allowance.

46.      That irrelevance of subsequent integration in the place of employment follows, first, from the rationale behind the expatriation allowance set out above. In other words, as the General Court expressly stated in an earlier judgment, the ‘purpose of the expatriation allowance is to compensate for the extra expense and inconvenience of taking up permanent employment in a country with which the official has established no lasting tie before his entry into service. The expenses incurred on first entering into service are compensated once only for each posting to one place by the reimbursement of removal expenses and payment of the installation allowance. By contrast, the expatriation allowance is paid throughout the period of the official’s service even though he may have integrated himself in the country of employment’. (16)

47.      Secondly, the irrelevance of subsequent integration in the place of employment after entering the service is also apparent from the scheme of Article 4(1) of Annex VII to the Staff Regulations. Under that provision, foreignness or expatriation in the place of employment is determined solely on the basis of the habitual residence during the period before entering the service. In the words of the General Court in paragraph 50 of the judgment under appeal, ‘by providing that clarification, the legislature ruled out the possibility that integration resulting from the fact that, during the course of their career, the officials concerned established their habitual residence in the country of employment and work there could prevent such payment’. Otherwise, as the appellant rightly points out, if the habitual residence after entering the service were relevant to obtaining the expatriation allowance, no EU official would be entitled to that allowance by the end of a period of five years after they entered the service.
(c)    Irrelevance, for entitlement to the expatriation allowance, of subsequent acquisition of the nationality of the country of employment

48.      Nevertheless, as already mentioned in point 33 of this Opinion, the General Court ruled that the use of the present tense in Article 4(1) of Annex VII to the Staff Regulations (‘officials who are not … nationals of the State in whose territory the place where they are employed is situated’; emphasis added), in conjunction with the iterative nature of the expatriation allowance, does not preclude the specific form of integration that is the acquisition of the nationality of the country of employment after entry into the service from being a substantial change in circumstances which could entail the loss of the expatriation allowance.

49.      The appellant is correct when he argues that the General Court thus interpreted the wording of Article 4(1) of Annex VII to the Staff Regulations in a manner that is contrary to the scheme of that provision and the rationale behind it, as determined by the General Court itself.

50.      It is clear from that scheme and rationale that the criterion of being or not being a national of the country of employment and that of habitual residence during the relevant period before entering the service are both to be assessed solely at the time of entering the service. As explained above, the fact of being or not being a national determines only which period is relevant to the assessment of habitual residence before entering the service and thus to the criterion of foreignness in the place of employment at the time of entering the service. (17) As the General Court itself has already acknowledged, entitlement to the expatriation allowance is therefore to be assessed at the time of entering the service. (18)

51.      The Civil Service Tribunal’s statement that the conditions set out in the two indents of Article 4(1)(a) of Annex VII to the Staff Regulations (not being a national of the place of employment and not having resided there for five years before entering the service) must be satisfied cumulatively throughout the official’s entire career (19) is therefore incorrect.

52.      Rather, as the appellant rightly points out, the present tense is used in Article 4(1)(a), first indent, and (b) of Annex VII to the Staff Regulations simply because it concerns the nationality which the official ‘holds’ at the relevant time of entry into the service. The use of the present tense is logical, since an official is either a national or not a national at a given time (that of entering the service). It is common for conditions governing entitlement in abstract and general regulations to be formulated in the present indicative; the grammar used does not convey any meaning.

53.      The iterative nature of the expatriation allowance does not suggest otherwise. The Civil Service Tribunal is, it is true, correct when it states that an allowance to compensate for a particular inconvenience must cease to be paid when that inconvenience ends. (20) However, the inconvenience for which the expatriation allowance is to compensate, namely that of being away from the place of origin, does not, in fact, end on acquisition of the nationality of the country of employment. This is because even that type of integration does not change the fact of expatriation at the time of entering the service, which is the criterion for obtaining the expatriation allowance.

54.      Therefore, contrary to the Council’s reasoning, it can also not be inferred from the fact that Article 4(1) of Annex VII to the Staff Regulations refers not only to the official ‘being’ a national, but also to him or her ‘having been’ a national, that this relates to the official’s nationality throughout his or her entire career. The fact of having been a national of the country of employment, like that of being a national, is also an indicator of an original special relationship with that country, the existence of which is either confirmed or disproved by habitual residence during the relevant reference period before entering the service.

55.      The fact that the legislature referred specifically to ‘having been’ a national of the country of service, but not to ‘becoming’ a national of that country in the future, suggests, rather, that the subsequent acquisition of the nationality of the country of service is not relevant to entitlement to the expatriation allowance.

56.      The rules governing the ‘foreign residence allowance’ also suggest, a contrario, that the legislature did not, in fact, intend to attach any particular legal consequences to the subsequent acquisition of the nationality of the country of service for the purposes of the expatriation allowance. Under Article 4(2) of Annex VII to the Staff Regulations, the foreign residence allowance is paid to officials who are not and have never been nationals of the State in whose territory they are employed but who do not fulfil the conditions for receiving the expatriation allowance laid down in paragraph 1, because they lived in their country of employment continuously during the five years before they entered the service. Since the foreign residence allowance thus depends solely on whether or not an official is a national of the country of employment, it necessarily ceases to be payable once that nationality is acquired. (21) However, no such clear legal consequence is provided for with regard to the expatriation allowance.

57.      The interpretation that the acquisition of the nationality of the place of employment at a later point in the career does not affect entitlement to the expatriation allowance is also confirmed by the fact that the reassessment of that entitlement in that situation implies that the criteria for obtaining that allowance are assessed at different moments. If, as is the case here, an official acquires the nationality of his or her country of employment years after entering the service, that nationality will be assessed, accordingly, at that time (in this case, 2017), but the main criterion of habitual residence in the place of employment will still be assessed in the relevant period before entering the service (in this case, before 2001).

58.      However, as the appellant rightly points out, the rationale behind the interplay between nationality and place of residence in the context of Article 4(1) of Annex VII to the Staff Regulations is thereby rendered absurd. The purpose of that interplay is to determine whether, in spite of not being a national of his or her place of employment before entering the service, an official has established such a close connection with that place that he or she is no longer foreign there (subparagraph (a)) or, in spite of being a national of that country before entering the service, has severed the connection with that place and, as a result, is now foreign there (subparagraph (b)). (22)

59.      By reassessing the entitlement to expatriation allowance at the time of acquisition of the nationality of the country of employment, the Commission sought to determine, at that time (in this case, 2017), whether, during the 10 years before he entered the service (in this case, 1990 to 2000), the appellant had severed a connection which did not exist during that period. As the Commission and the Council concede, that is only possible if the appellant is treated as if he was already a Belgian national when he entered the service.

60.      As will be seen in point 71 et seq. of this Opinion, in the context of the second ground of appeal, this ‘fiction’ (in the words of the General Court) (23) results in an infringement of the principle of equal treatment. This is because the appellant is treated in the same way as officials who actually were nationals of the country of employment when they entered the service and are thus in a different position. That is another argument against the General Court’s interpretation of Article 4(1) of Annex VII to the Staff Regulations.

61.      The situation is different when an official returns to his or her home country as a result of a change in the place of employment. The case must then be reassessed, since the conditions for the expatriation allowance can logically be examined only in relation to a place; if the place changes, a fresh examination must be carried out in order to determine whether the change revives a previous connection with that place. (24)

62.      However, in a case such as the present, in which an official is entitled to the expatriation allowance under Article 4(1)(a) of Annex VII to the Staff Regulations because he or she is not a national of his or her place of employment, did not live there continuously for five years before entering the service and did not acquire the nationality of his or her place of employment until years after entering the service, there is no previous connection with that place of employment from the time before he or she entered the service which could be revived. Accordingly, there is no reason here to reassess the entitlement of the official concerned to the expatriation allowance, this time under subparagraph (b) of that provision.

63.      The inappropriateness of a subsequent assessment under Article 4(1)(b) of Annex VII to the Staff Regulations, such as that carried out in this case, is also demonstrated by the fact that officials who, like the appellant, acquire the nationality of their place of employment years after entering the service but who – unlike the appellant – did not live there during the 10 years before entering the service retain the expatriation allowance. In spite of ‘the specific form of integration that is the acquisition of the nationality of the country of employment after entry into service’ – as the General Court puts it in paragraph 51 of the judgment under appeal – the officials who find themselves in that situation (and who are numerous, as the General Court found in paragraphs 94 and 95 of that judgment) may retain their expatriation allowance because they did not live in that country during the years before entering the service.

64.      All of these considerations show, as the appellant rightly pointed out at the hearing, that there is simply no indication that the acquisition of the nationality of the country of employment would constitute an exception to the principle that integration in the place of employment after entering the service is irrelevant to the expatriation allowance.

65.      While it is true that acquisition of the nationality of the place of employment can be a particularly strong form of integration, that is not the point. The expatriation allowance is conceived in such a way that, while not denying that EU officials become integrated in the place of employment, it also recognises that the expense resulting from being away from their home country continues in spite of that integration.

66.      Moreover, maintaining legitimate ties with the State of origin may even become more expensive over time, irrespective of the strength of integration in the host State. This applies, for example, to officials who must care for elderly and increasingly infirm parents or other relatives. Nor can it be assumed that the EU legislature intended to discourage EU officials from becoming strongly integrated into their host Member State by ‘penalising’ the acquisition of the nationality of that State with the loss of the expatriation allowance. On the contrary, the optimum integration of EU officials into their Member State of employment is consistent with the spirit of the European Union and the encouragement of a closer relationship between its Member States.

67.      Hence, the argument bluntly expressed by the Council at the hearing, to the effect that ‘a person who lives in “his own country” cannot be an “expat”’, ignores the scheme of the expatriation allowance. It is clear from that scheme that the concept of ‘foreignness’ or ‘expatriation’ within the meaning of the Staff Regulations covers the situation in which an official leaves his or her home country to enter the service of the European Union, irrespective of any subsequent integration in the country of employment and even if the official then acquires the nationality of that country so that it becomes his or her ‘own country’.

68.      Moreover, contrary to the Council’s view, the interpretation that acquisition of nationality after entering the service does not affect entitlement to the expatriation allowance does not deprive the nationality criterion in  Article 4(1) of Annex VII to the Staff Regulations of its effet utile, since that criterion is still relevant to the assessment of foreignness in the place of employment at the time of entering the service.

69.      In its judgment in Airola v Commission, the relevant passage of which was also quoted by the General Court in the judgment under appeal, the Court of Justice held that ‘the concept of an official’s present or previous nationality under Article 4(a) of Annex VII [to the Staff Regulations] [excludes] nationality imposed by law on a female official upon her marriage with a national of another State, when she has no possibility of renouncing it’. (25) In the present case it must be held, mutatis mutandis, that that provision similarly does not relate to the nationality of the place of employment acquired by an EU official after entering the service.

70.      It follows from all of the foregoing that the General Court committed an error of law in confirming the Commission’s view that the appellant’s acquisition of Belgian nationality justified a reassessment of his entitlement to the expatriation allowance. The first ground of appeal is therefore well founded.
2.      The second ground of appeal

71.      By his second ground of appeal, the appellant submits that, by its application of Article 4(1) of Annex VII to the Staff Regulations, the General Court infringed the principle of equal treatment, since it treated him in the same way as officials who were nationals of their place of employment at the time when they entered the service.

72.      The second ground of appeal is examined only in the alternative since, if the Court of Justice shares my view on the first ground of appeal, the judgment must already be set aside on that ground.

73.      The principle of equal treatment prohibits comparable situations from being treated differently or different situations from being treated in the same way, unless such treatment, whether different or equal as the case may be, is objectively justified. The comparability of the situations must be assessed in the light of the subject matter and purpose of the EU measure which makes the distinction. (26)

74.      In paragraphs 87 to 90 of the judgment under appeal, the General Court took the view that it had to reassess the appellant’s entitlement to the expatriation allowance following his acquisition of Belgian nationality. Otherwise, he would be treated more favourably than native Belgians who had entered the service of the European Union in Belgium.

75.      The appellant, who was not a Belgian national before he entered the service in Belgium and did not acquire Belgian nationality until years later, is indeed in a different position in the light of the rationale behind the expatriation allowance, which is to compensate for the inconvenience of changing residence to the place of employment and of being a foreigner there. (27) Since he was not originally a national of his country of employment, he also had no special connection with it, which could have been interrupted only by a 10-year continuous absence prior to entering the service. (28)

76.      Nor is the appellant in the same situation as a former Belgian working in Belgium who has renounced his Belgian nationality, contrary to what the Commission and the Council have submitted in that regard, in particular at the hearing. Here, too, ‘having been’ a national of the place of employment is an indication that the person concerned originally had a special connection with that country; whether or not that connection still exists is determined by examining the habitual residence during the reference period before entry into the service. However, since the appellant did not acquire Belgian nationality until years after  he had entered the service, he cannot be presumed to have an original connection, the continued existence or severance of which could be examined.

77.      As set out above, the same applies to the comparison made by the Commission with the situation of a Belgian originally working in another country who moves to a place of employment in his or her home country. (29)

78.      Contrary to the arguments of the Council, in particular, at the hearing, it is not true, in the context of the expatriation allowance, that all officials who are nationals of their country of employment must be treated equally, regardless of when they acquired that nationality. That is because, for the purposes of that allowance, ‘nationalities are not, in fact, always equal’. Rather, the nationality of the country of employment determines only which period before entering the service is relevant to the assessment of whether the criterion of expatriation  at the time of entering the service has been met. (30)

79.      The fact that the appellant is, indeed, no longer in the same position as EU officials who have not acquired the nationality of their country of employment is therefore irrelevant to entitlement to the expatriation allowance. Since the sole relevant factor in that regard is the lack of integration at the time of entry into the service, officials who acquire the nationality of the place of employment after entering the service and those who do not are in the same position with regard to the rationale behind the expatriation allowance.

80.      The Commission and the Council cite passages from judgments stating that the expatriation allowance is intended ‘to correct actual instances of inequality arising between officials who are integrated into the society of the State of employment and those who are not’. (31) However, these passages must be read in their context, from which it is clear that this relates to integration in the society of the country of employment before entering the service. By contrast, the General Court itself has already held that integration after entering the service is irrelevant to the expatriation allowance. (32) Therefore, for the purposes of this allowance, the integration of officials in the country of employment must be compared before, and not after, entering the service.

81.      The Commission and the Council themselves conceded at the hearing that the appellant’s situation was ‘borderline’, because Article 4(1) of Annex VII to the Staff Regulations could only be applied to it in the manner which they advocated if the appellant were treated as if he was already a Belgian national at the time when he entered the service. However, as the appellant rightly notes, the examination of unequal treatment cannot be based on such an assumption, which does not reflect the reality of the situation.

82.      As the General Court itself acknowledged in paragraphs 83, 91 and 92 of the judgment under appeal, the legislature has created categories for entitlement to the expatriation allowance and an assessment must be carried out to determine the category to which EU officials belong. It is unacceptable for an official to be transferred from one category to another, or to be treated in the same way as officials in that category, on the basis of assumptions that do not reflect the reality, although his or her situation does not place him or her in that category.

83.      It follows from all of the foregoing that the General Court infringed the principle of equal treatment by its application of Article 4(1) of Annex VII to the Staff Regulations and thus committed an error of law. The second ground of appeal is, therefore, also well founded.
B.      The action before the General Court

84.      Under the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the decision of the General Court is quashed, the Court of Justice may give final judgment in the matter where the state of the proceedings so permits.

85.      That is the position in the present case.

86.      The appellant claims that the Court should annul the contested decision and order that his expatriation allowance and payment of his travel expenses be restored with effect from 1 December 2017, and that the allowances which were not paid between 1 December 2017 and the date of re-establishment be paid to him, together with interest.

87.      As regards, first, the application for annulment of the contested decision, it follows from the foregoing that the decision of 19 March 2018 of the PMO, withdrawing the appellant’s entitlement to the expatriation allowance and to the payment of travel expenses with effect from 1 December 2017, must be annulled.

88.      As regards, next, the application for an order restoring the appellant’s expatriation allowance and payment of his travel expenses with effect from 1 December 2017, it follows from the foregoing, equally, that the appellant’s acquisition of Belgian nationality on 3 November 2017 did not affect his entitlement to receive the expatriation allowance under Article 4(1)(a) and to payment of his travel expenses under Article 8 of Annex VII to the Staff Regulations. Thus, the restoration of his entitlement to those benefits will result from the judgment of the Court, if the Court follows the solution advocated here, without the Court having to determine this separately. Rather, it is for the Commission to take the measures necessary to comply with the judgment of the Court in accordance with Article 266 TFEU. (33)

89.      Lastly, with regard to the application for an order for payment of the allowances not paid between 1 December 2017 and the date of re-establishment, together with interest, it should be pointed out that, under the second sentence of Article 91(1) of the Staff Regulations, the Court of Justice has unlimited jurisdiction in civil service disputes of a financial character, in the context of which it may order the EU institutions to pay sums owing under the Staff Regulations, together with any interest. (34) If a decision denying an official’s entitlement to receive the expatriation allowance is annulled, the Court of Justice therefore has the power to order the Commission to pay the allowances that it should have paid since that decision was taken. (35)

90.      Accordingly, the Commission must be ordered to pay the appellant the expatriation allowances and travel expenses which he did not receive between 1 December 2017 and the date of re-establishment of his rights in that regard.

91.      Furthermore, it follows from the case-law that sums owed under the Staff Regulations which are paid late are subject to interest from the date on which the complaint was submitted under Article 90(2) of the Staff Regulations. (36) Consequently, claims which were already due on the date on which the complaint was lodged, namely, in this case, on 17 June 2018, (37) are subject to interest from that date, while arrears which became payable after that date are subject to interest from the dates on which they became payable. (38) Lastly, as regards the interest rate, it is clear from recent case-law that the sums due are subject to interest at the rate applied by the European Central Bank (ECB) to its main refinancing operations in the relevant period, increased by three and a half percentage points. (39)
VI.    Costs

92.      Under Article 184(2) of the Rules of Procedure of the Court of Justice, the Court is to make a decision as to costs where the appeal is well founded and the Court itself gives final judgment in the case.

93.      Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

94.      Since the appellant has applied for the Commission to be ordered to pay the costs of the proceedings before the General Court and the Court of Justice, and since the Commission has been unsuccessful in its pleadings, the Commission must be ordered to pay the appellant’s costs and its own costs both at first instance and on appeal.

95.      Under Article 140(1) of the Rules of Procedure, which applies to the appeal proceedings by virtue of Article 184(1) thereof, the institutions which have intervened in the proceedings are to bear their own costs. The Council must therefore be ordered to bear its own costs at first instance and on appeal.
VII. Conclusion

96.      In the light of the foregoing considerations, I propose that the Court:
(1)      set aside the judgment of the General Court of the European Union (Fourth Chamber, Extended Composition) of 5 October 2020, Brown v Commission (T‑18/19, EU:T:2020:465);
(2)      annul the decision of the Office for the Administration and Payment of Individual Entitlements (PMO) of the European Commission of 19 March 2018 withdrawing Mr Colin Brown’s entitlement to the expatriation allowance and to the payment of travel expenses with effect from 1 December 2017;
(3)      order the Commission to pay Mr Brown the expatriation allowance and travel expenses not paid to him between 1 December 2017 and the date of re-establishment of his entitlement to the expatriation allowance and to the payment of travel expenses;
(4)      order that the sums to be paid by the Commission to Mr Brown from 17 June 2018 are to bear interest at the rate fixed by the European Central Bank for its main refinancing operations during the relevant period, plus three and a half percentage points. Amounts already due on 17 June 2018 are to bear interest from that date, and amounts that become payable after that date are to bear interest from the dates on which they become payable;
(5)      order the Commission to bear its own costs and to pay the costs incurred by Mr Brown in the proceedings at first instance and on appeal;
(6)      order the Council of the European Union to bear its own costs in the proceedings at first instance and on appeal.

1      Original language: German.

2      Regulation No 31 (EEC) 11 (EAEC) 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 1959-1962, p. 135).

3      T‑18/19, EU:T:2020:465.

4      For the relationship between the criteria of habitual residence and of habitually carrying on the main occupation, see judgment of the General Court of 28 February 2019, Pozza v Parliament (T‑216/18, not published, EU:T:2019:118, paragraph 28 et seq. and the case-law cited therein).

5      See judgments of the General Court of 15 September 2021, LF v Commission (T‑466/20, EU:T:2021:574, paragraph 40 and the case-law cited therein); and of the Civil Service Tribunal of 11 July 2007, B v Commission (F‑7/06, EU:F:2007:129, paragraph 38 and the case-law cited therein); and paragraph 76 of the judgment under appeal. However, for ‘sporadic and brief absences’ while retaining residence at the subsequent place of employment, see judgment of 9 October 1984, Witte v Parliament (188/83, EU:C:1984:309, paragraphs 9 to 11).

6      See judgments in  LF v Commission and B v Commission cited in the previous footnote.

7      See also, similarly, judgment of the Civil Service Tribunal of 26 June 2013, Achab v EESC (F‑21/12, EU:F:2013:95, paragraph 28).

8      Judgments of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraph 61); of 14 January 2016, Vodafone (C‑395/14, EU:C:2016:9, paragraph 40); and of 25 January 2018, Commission v Czech Republic (C‑314/16, EU:C:2018:42, paragraph 47).

9      See, to that effect, judgment of 22 October 2009, Zurita García and Choque Cabrera (C‑261/08 and C‑348/08, EU:C:2009:648, paragraph 54 and the case-law cited therein).

10      Judgments of 20 February 1975, Airola v Commission (21/74, EU:C:1975:24, paragraph 6); of 16 October 1980, Hochstrass v Court of Justice (147/79, EU:C:1980:238, paragraph 12); and of 2 July 1981, Garganese v Commission (185/80, EU:C:1981:161, paragraph 11); see also judgments of the General Court of 28 February 2019, Pozza v Parliament (T‑216/18, not published, EU:T:2019:118, paragraph 37), and of the Civil Service Tribunal of 11 July 2007,  B v Commission (F‑7/06, EU:F:2007:129, paragraph 35).

11      See judgments of the General Court of 15 September 2021, LF v Commission (T‑466/20, EU:T:2021:574, paragraph 35 et seq. and the case-law cited therein), and of the Civil Service Tribunal of 11 July 2007, B v Commission (F‑7/06, EU:F:2007:129, paragraph 36 et seq. and the case-law cited therein).

12      See judgment of 11 July 2007, B v Commission (F‑7/06, EU:F:2007:129, paragraph 39 and the case-law cited therein); see also paragraph 82 of the judgment under appeal.

13      Judgment of 13 November 1986, Richter v Commission (330/85, EU:C:1986:430, paragraph 6); judgment of the General Court of 27 September 2000, Lemaître v Commission (T‑317/99, EU:T:2000:218, paragraph 50); and judgment of the Civil Service Tribunal of 11 July 2007,  B v Commission (F‑7/06, EU:F:2007:129, paragraph 39). That time spent in the service of a State or of an international organisation is not to be taken into account in calculating the time spent in (subparagraph (a)) or outside (subparagraph (b)) the country of employment is based on the assumption that engaging in activities for a State or an international organisation does not create lasting ties between the person concerned and the State in which he or she engages in those activities; see, to that effect, Opinion of Advocate General Mengozzi in Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:169, points 50 and 51 and the case-law cited therein); see also judgment of the General Court of 13 July 2018, Quadri di Cardano v Commission (T‑273/17, EU:T:2018:480, paragraph 49).

14      Opinion of Advocate General Mengozzi in Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:169, point 44, footnote 23).

15      Judgments of 2 July 1981, Garganese v Commission (185/80, EU:C:1981:161, paragraph 11), and of 15 September 1994, Magdalena Fernández v Commission (C‑452/93 P, EU:C:1994:332, paragraphs 20 and 21).

16      Judgment of the General Court of 30 March 1993, Vardakas v Commission (T‑4/92, EU:T:1993:29, paragraph 39) (emphasis added).

17      See points 36 to 42 of this Opinion.

18      Judgment of the General Court of 13 July 2018, Quadri di Cardano v Commission (T‑273/17, EU:T:2018:480,  paragraph 58).

19      Judgment of the Civil Service Tribunal of 26 June 2013,  Achab v EESC (F‑21/12, EU:F:2013:95, paragraph 28).

20      Judgment of the Civil Service Tribunal of 26 June 2013,  Achab v EESC (F‑21/12, EU:F:2013:95, paragraph 26).

21      See judgment of 16 October 1980, Hochstrass v Court of Justice (147/79, EU:C:1980:238, paragraph 12).

22      See points 38 to 41 of this Opinion.

23      See paragraph 85 of the judgment under appeal.

24      For the withdrawal of the expatriation allowance from officials returning to their home country, see order of 14 July 2005, Gouvras v Commission (C‑420/04 P, EU:C:2005:482, paragraph 57), with reference to the judgment of the General Court of 15 July 2004, Gouvras v Commission (T‑180/02 and T‑113/03, EU:T:2004:238, paragraph 104; see also paragraph 85); see also judgment of the General Court of 28 September 1993, Magdalena Fernández v Commission (T‑90/92, EU:T:1993:78). Time spent in the service of the European Union outside the home country is classified as time spent in the service of an international organisation which does not break the link with the home country; see judgment of the General Court of 13 July 2018, Quadri di Cardano v Commission (T‑273/17, EU:T:2018:480, paragraph 50 and the case-law cited therein).

25      Judgment of 20 February 1975, Airola v Commission (21/74, EU:C:1975:24, paragraph 12). See also paragraph 61 of the judgment under appeal and, now, Article 4(3) of Annex VII to the Staff Regulations.

26      Judgment of 1 March 2011, Association Belge des Consommateurs Test-Achats and Others (C‑236/09, EU:C:2011:100, paragraphs 28 and 29); see also paragraph 80 of the judgment under appeal.

27      See point 43 of this Opinion.

28      See, in this regard, point 59 of this Opinion.

29      See point 61 of this Opinion.

30      See point 38 of this Opinion.

31      Judgments of 21 June 2007, Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:367, paragraph 26), and of 25 March 2021, Álvarez y Bejarano and Others v Commission (C‑517/19 P and C‑518/19 P, EU:C:2021:240, paragraph 69).

32      Judgment of the General Court of 30 March 1993, Vardakas v Commission (T‑4/92, EU:T:1993:29, paragraph 39); see, in that regard, point 46 of the present Opinion.

33      See, to that effect, judgment of 5 December 2012, Grazyte v Commission (F‑76/11, EU:F:2012:173, paragraph 24 and the case-law cited therein).

34      See judgments of 17 April 1997, de Compte v Parliament (C‑90/95 P, EU:C:1997:198, paragraph 45); of 18 December 2007, Weißenfels v Parliament (C‑135/06 P, EU:C:2007:812, paragraphs 65 to 68 and the case-law cited therein); and of 20 May 2010, Gogos v Commission (C‑583/08 P, EU:C:2010:287, paragraphs 44 to 46 and the case-law cited therein).

35      See, to that effect, judgment of 5 December 2012, Grazyte v Commission (F‑76/11, EU:F:2012:173, paragraphs 25 and 26).

36      See, in detail in this regard, Opinion of Advocate General Bot in Commission v IPK International (C‑336/13 P, EU:C:2014:2170, point 35 et seq., in particular point 68).

37      See point 17 of this Opinion.

38      See judgment of 15 January 1985, Battaglia v Commission (737/79, EU:C:1985:4, paragraph 10), and the other judgments cited in footnote 42  to the Opinion of Advocate General Bot in Commission v IPK International (C‑336/13 P, EU:C:2014:2170).

39      See, for example, in civil service law, judgments of the General Court of 3 July 2019, PT v EIB (T‑573/16, EU:T:2019:481, paragraph 444); of 3 October 2019, DQ and Others v Parliament (T‑730/18, EU:T:2019:725, paragraph 118); and of 19 December 2019, Wehrheim v ECB (T‑100/18, not published, EU:T:2019:882, paragraph 115); see also judgment of the Court of Justice of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39, paragraph 129). The interest rate applied by the ECB to its main refinancing operations, plus three and a half percentage points, corresponds to the interest rate laid down in Article 116(5)(a), in conjunction with Article 99(2)(b), of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union,  amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1), generally for EU payments made after the payment deadlines, for which no other provision is made.