1 By their respective appeals, Ms María Álvarez y Bejarano, Ms Ana-Maria Enescu, Ms Angelica Livia Salanta, Ms Svetla Shulga, Ms Soldimar Urena de Poznanski, Ms Angela Vakalis, Ms Luz Anamaria Chu, Ms Marli Bertolete, Ms María Castro Capcha, Ms Evelyne Vandevoorde, Mr Lucian Micu and Mr Hassan Orfe El, on the one hand (C‑517/19 P), and Mr Jakov Ardalic, Mr Christian Stouraitis, Mr Abdelhamid Azbair, Mr Abdel Bouzanih, Mr Bob Kitenge Ya Musenga, Mr El Miloud Sadiki, Mr Cam Tran Thi, Ms Liliana Bicanova, Ms Monica Brunetto, Ms Claudia Istoc, Ms Sylvie Jamet and Ms Despina Kanellou, on the other (C‑518/19 P), ask the Court of Justice to set aside the judgments of the General Court of the European Union of 30 April 2019, Alvarez y Bejarano and Others v Commission (T‑516/16 and T‑536/16, not published, EU:T:2019:267) (‘the first judgment under appeal’), and of 30 April 2019, Ardalic and Others v Council (T‑523/16 and T‑542/16, not published, EU:T:2019:272) (‘the second judgment under appeal’), by which it dismissed their actions seeking annulment of the respective decisions of the European Commission and of the Council of the European Union no longer to grant them, from 1 January 2014, the right to two and a half days of additional leave each year to visit their home country (‘travelling time’) and the right to a flat-rate payment equivalent to the annual cost of travel from the place of employment to the place of origin (‘the reimbursement of annual travel expenses’) (‘the decisions at issue’).
2 Article 7 of Annex V, entitled ‘Leave’, to the Staff Regulations of Officials of the European Union, in the version preceding the entry into force of Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 amending the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union (OJ 2013 L 287, p. 15) (‘the old Staff Regulations’) was worded as follows: ‘To the period of [annual leave] shall be added travelling time based on the distance by rail between the place of leave and the place of employment, calculated as follows: … For the purposes of this Article, the place of leave in respect of annual leave is the official’s place of origin. The preceding provisions shall apply to officials whose place of employment is within the territories of the Member States. If the place of employment is outside these territories, the travelling time shall be fixed by special decision taking into account particular needs.’
3 In accordance with the combined provisions of Article 57 of the old Staff Regulations and Articles 16 and 91 of the Conditions of Employment of Other Servants of the European Union, in the version preceding the entry into force of Regulation No 1023/2013, Article 7 of Annex V to the old Staff Regulations was applicable, by analogy, to members of the contract staff.
4 Article 7 of Annex VII to the old Staff Regulations, entitled ‘Remuneration and reimbursement of expenses’, provided: ‘1. An official shall be entitled to reimbursement of travel expenses for himself, his spouse and his dependants actually living in his household: (a) on taking up his appointment, from the place where he was recruited to the place where he is employed; (b) on termination of service within the meaning of Article 47 [of the old Staff Regulations], from the place where he is employed to the place of origin as defined in paragraph 3 below; (c) on any transfer involving a change in the place where he is employed. … 3. An official’s place of origin shall be determined when he takes up his appointment, account being taken of where he was recruited or the centre of his interests. The place of origin as so determined may by special decision of the appointing authority be changed while the official is in service or when he leaves the service. While he is in service, however, such decision shall be taken only exceptionally and on production by the official of appropriate supporting evidence.’
5 Article 8 of Annex VII to the old Staff Regulations provided: ‘1. Officials shall be entitled to be paid in each calendar year a sum equivalent 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. … 2. The flat-rate payment shall be based on an allowance per kilometre of distance between the official’s place of employment and place of recruitment or origin; … 4. The preceding provisions shall apply to officials whose place of employment is within the territories of the Member States. … These travel expenses shall be reimbursed in the form of a flat-rate payment based on the cost of air travel in the class immediately superior to economy class.’
6 In accordance with the combined provisions of Articles 22, 26 and 92 of the Conditions of Employment of Other Servants of the European Union, in the version preceding the entry into force of Regulation No 1023/2013, Articles 7 and 8 of Annex VII to the old Staff Regulations were applicable, in principle, by analogy, to members of the contract staff.
7 The Staff Regulations of Officials of the European Union, in the version resulting from Regulation No 1023/2013 (‘the Staff Regulations’), entered into force on 1 January 2014.
8 Under recitals 2, 12 and 24 of Regulation No 1023/2013: ‘(2) … it is necessary to ensure a framework for attracting, recruiting and maintaining highly qualified and multilingual staff, drawn on the broadest possible geographical basis from among citizens of the Member States, and with due regard to gender balance, who are independent and who adhere to the highest professional standards, and to enable such staff to carry out their duties as effectively and efficiently as possible. In that respect, it is necessary to overcome the current difficulties experienced by the institutions in recruiting officials or staff from certain Member States. … (12) In its conclusions of 8 February 2013 on the multiannual financial framework, the European Council pointed out that the need to consolidate public finances in the short, medium and long term requires a particular effort by every public administration and its staff to improve efficiency and effectiveness and to adjust to the changing economic context. That call reiterated in fact the objective of the 2011 Commission proposal for amendment of the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Union, which strove to ensure cost-efficiency and acknowledged that challenges currently faced by the European Union require a particular effort by each and every public administration and each and every member of its staff to improve efficiency and to adjust to the changing economic and social context in Europe. The European Council called moreover, as part of the reform of the Staff Regulations, for the adjustment of remuneration and pensions of all staff of the Union institutions through the method to be suspended for two years and for the new solidarity levy to be reintroduced as part of the reform of the salary method. … (24) The rules on travelling time and annual payment of travel expenses between the place of employment and the place of origin should be modernised, rationalised and linked with expatriate status in order to make their application simpler and more transparent. In particular, the annual travelling time should be replaced by home leave and limited to a maximum of two and a half days.’
9 Article 7 of Annex V to the Staff Regulations, entitled ‘Leave’, provides: ‘Officials who are entitled to the expatriation or foreign residence allowance shall be entitled to two and a half days of supplementary leave every year, for the purpose of visiting their home country. The first paragraph shall apply to officials whose place of employment is within the territories of the Member States. If the place of employment is outside those territories, the duration of the home leave shall be fixed by special decision taking into account particular needs.’
10 In accordance with the combined provisions of Articles 16 and 91 of the Conditions of Employment of Other Servants of the European Union, in the version resulting from Regulation No 1023/2013 (‘the CEOS’), Article 7 of Annex V to the Staff Regulations is applicable, by analogy, to members of the temporary and contract staff.
11 Article 4 of Annex VII to the Staff Regulations, entitled ‘Remuneration and reimbursement of expenses’, applicable, by analogy, to members of the contract staff in accordance with the combined provisions of Articles 21 and 92 of the CEOS, is worded as follows: ‘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).’
12 Article 7 of Annex VII to the Staff Regulations provides: ‘1. An official shall be entitled to a flat-rate payment corresponding to the cost of travel for himself, his spouse and his dependants actually living in his household: (a) on taking up his appointment, from the place where he was recruited to the place where he is employed; (b) on termination of service within the meaning of Article 47 of the Staff Regulations, from the place where he is employed to the place of origin as defined in paragraph 4 of this Article; (c) on any transfer involving a change in the place where he is employed. In the event of the death of an official, the surviving spouse and the dependants shall be entitled to the flat-rate payment under the same conditions. … 4. An official’s place of origin shall be determined when he takes up his appointment, account being taken in principle of where he was recruited or, upon express and duly reasoned request, the centre of his interests. The place of origin as so determined may by special decision of the appointing authority be changed while the official is in service or when he leaves the service. While he is in the service, however, such decision shall be taken only exceptionally and on production by the official of appropriate supporting evidence. …’
13 Article 8 of Annex VII to the Staff Regulations states: ‘1. 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. … 2. … Where the place of origin as defined in Article 7 is outside the territories of the Member States of the Union as well as outside the countries and territories listed in Annex II to the Treaty on the Functioning of the European Union and the territories of the Member States of the European Free Trade Association, the flat-rate payment shall be based on an allowance per kilometre of geographical distance between the official’s place of employment and the capital city of the Member State whose nationality he holds. … 4. Paragraphs 1, 2 and 3 of this Article shall apply to officials whose place of employment is within the territories of the Member States. … The flat-rate payment shall be based on the cost of air travel in economy class.’
14 In accordance with the combined provisions of Articles 22, 26 and 92 of the CEOS, Articles 7 and 8 of Annex VII to the Staff Regulations are, under certain conditions, applicable to members of the temporary staff and, by analogy, to members of the contract staff.
15 The background to the disputes, as set out in paragraphs 8 to 14 of the first judgment under appeal and in paragraphs 8 to 14 of the second judgment under appeal, can be summarised as follows.
16 The appellants in Cases C‑517/19 P and C‑518/19 P, who are officials or members of the contract staff of the Commission and of the Council respectively, are employed in Belgium. Their place of origin is outside the territory of that Member State. They have dual nationality, including Belgian nationality. None of them receives an expatriation or foreign residence allowance.
17 While they were entitled, before the entry into force of Regulation No 1023/2013, to travelling time and the reimbursement of annual travel expenses, the appellants are no longer entitled to those benefits following the entry into force of that regulation, on the ground that they do not satisfy the condition which is now laid down in Article 7 of Annex V and Article 8 of Annex VII to the Staff Regulations, whereby those benefits are granted only to officials who are entitled to an expatriation or foreign residence allowance.
18 The appellants, who became aware of those amendments by consulting their personal files, lodged complaints with their respective institutions pursuant to Article 91 of the Staff Regulations. Those complaints were rejected.
19 By two applications lodged at the Registry of the European Union Civil Service Tribunal on 26 August 2014 and 26 January 2015, the appellants in Case C‑517/19 P brought two actions, registered as Cases F‑85/14 and F‑13/15, seeking the annulment of the decisions at issue concerning them.
20 By an application lodged at the Registry of the Civil Service Tribunal on 29 September 2014, the appellants in Case C‑518/19 P brought an action, registered as Case F‑100/14, seeking the annulment of the decisions at issue concerning them. By another application lodged at the Registry of that Tribunal on 16 February 2015, nine of those appellants brought an action, registered as Case F‑27/15, seeking the annulment of the decisions no longer to grant them the reimbursement of annual travel expenses.
21 Pursuant to Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), those four actions were transferred to the General Court as they stood on 31 August 2016. They were registered as Cases T‑516/16, T‑523/16, T‑536/16 and T‑542/16 respectively.
22 In support of their respective actions at first instance, the appellants in Cases C‑517/19 P and C‑518/19 P raised three pleas in law, worded identically in all cases, pleading illegality in respect of Article 7 of Annex V and Article 8 of Annex VII to the Staff Regulations. The first plea was based on the illegality of those provisions arising from a ‘reconsideration of the appellants’ place of origin’, the second was based on the illegality of the condition linked to the expatriation or foreign residence allowance, and the third was based on breach of the principles of proportionality, legal certainty, acquired rights and protection of legitimate expectations, as well as breach of the right to respect for family life.
23 In the first and second judgments under appeal, the General Court rejected, on materially identical grounds, all the pleas put forward by the appellants and dismissed the actions.
24 In respect of the first plea, the General Court found, in essence, that the amendments made by Regulation No 1023/2013 had not called into question the determination of the appellants’ place of origin, which continues to produce effects with regard to, inter alia, the transport of the body to the place of origin in the event of an official’s death during his or her service, and moving to the place of origin at the time of the termination of the official’s service (paragraphs 49 to 54 of the first judgment under appeal and paragraphs 47 to 52 of the second judgment under appeal).
25 As regards the second plea, by which the appellants complained that the EU legislature had made the reimbursement of annual travel expenses and the grant of travelling time contingent on being entitled to an expatriation or foreign residence allowance, in breach of the principle of equal treatment, the General Court found, first of all, with reference to the judgment of the Civil Service Tribunal of 23 January 2007, Chassagne v Commission (F‑43/05, EU:F:2007:14, paragraph 61), that the setting of the conditions and detailed rules for the reimbursement of such expenses and the grant of such travelling time falls within an area of legislation in which the legislature enjoys a broad discretion (paragraph 66 of the first judgment under appeal and paragraph 64 of the second judgment under appeal). It noted that, in such an area, the EU judicature must confine itself to ascertaining, ‘as regards the principle of equality and the principle of non-discrimination, whether the institution concerned has applied a distinction which is arbitrary or manifestly inappropriate and, as regards the principle of proportionality, whether the measure adopted is manifestly inappropriate in relation to the objective pursued by the rules’ (paragraph 67 of the first judgment under appeal and paragraph 65 of the second judgment under appeal).
26 Next, as far as the objective pursued by Article 7 of Annex V and Article 8 of Annex VII to the Staff Regulations is concerned, the General Court recalled that the possibility for an official to retain personal links with the place where his or her principal interests are situated has become a general principle of EU civil service law, while highlighting the fact that, in order to achieve that objective, the EU legislature had intended to modernise and rationalise the rules on travelling time and reimbursement of annual travel expenses and to link them to ‘expatriate’ or ‘foreign resident’ status in order to make them simpler to apply and more transparent (paragraphs 68 and 69 of the first judgment under appeal and paragraphs 66 and 67 of the second judgment under appeal).
27 In the light of that objective and of the broad discretion which the EU legislature enjoys, the General Court noted that the situation of officials and members of staff who receive an expatriation or foreign residence allowance could not be compared to the situation of officials and members of staff who, like the appellants, have two nationalities, including that of their State of employment, even if their place of origin is not situated there. While an official or member of staff who does not take the nationality of his or her State of employment expresses a certain desire to maintain his or her ties with his or her place of origin, the fact that an official or member of staff has applied for and obtained the nationality of the Member State of employment demonstrates, if not the existence of matrimonial ties in that country, at least the desire to establish the centre of his or her main interests there. The General Court inferred from this that the situation of an expatriate or foreign resident and the appellants’ situation were two distinct legal situations justifying a difference in treatment on the basis of the presumption that the nationality of a person constitutes a clear indication of that person’s numerous close ties with the country of his or her nationality (paragraphs 71 to 73 of the first judgment under appeal and paragraphs 69 to 71 of the second judgment under appeal).
28 In addition, the General Court stated that the right to an expatriation or foreign residence allowance is also contingent on specific factual circumstances being established which are peculiar to the official in question with regard to that official’s place of origin, and that an official who is completely integrated into his or her State of employment, and who thus does not receive an expatriation or foreign residence allowance, cannot claim to have a closer connection with his or her place of origin than an official who is entitled to that allowance. Thus, in the General Court’s view, it is not the nationality of the official, which only provides evidence of that official’s connection with the place of employment, but the factual situation which justifies the grant of an allowance, which thus intends 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 (paragraph 73 of the first judgment under appeal and paragraph 71 of the second judgment under appeal).
29 Lastly, the General Court concluded that, ‘having regard for the aim of the system as a whole and in the light of the broad discretion of the legislature, it [was appropriate] to consider that the system making the receipt of travelling time and the reimbursement of annual travel expenses contingent on entitlement to the expatriation or foreign residence allowance [was] neither manifestly unsuitable nor manifestly inappropriate in the light of its objective’ and that, therefore, ‘there [had been] no breach of the principle that every member of staff must have the possibility of retaining a personal link with the centre of his or her main interests or of the principle of equal treatment or non-discrimination’ (paragraph 75 of the first judgment under appeal and paragraph 73 of the second judgment under appeal).
30 As regards the third plea, based in particular on breach of the principle of proportionality, the General Court found that it could not be held that, in the exercise of its broad discretion, the legislature had introduced measures which were manifestly disproportionate in the light of its intended objective (paragraph 86 of the first judgment under appeal and paragraph 84 of the second judgment under appeal).
31 In particular, the General Court found that it was entirely proportionate, in the light of the objective recalled in recital 24 of Regulation No 1023/2013, to state that a member of staff who has the nationality of his or her place of employment cannot, strictly speaking, be regarded as an expatriate member of staff and that, furthermore, the new Staff Regulations enabled the appellants, first, to maintain links with their place of origin, the determination of which is not changed by the introduction of those regulations, and, second, also to retain links with the Member State of which they are nationals and with which their links are considered to be strongest (paragraph 82 of the first judgment under appeal and paragraph 80 of the second judgment under appeal).
32 Moreover, in the light of recitals 2 and 12 of Regulation No 1023/2013, according to which it is for the legislature, in the context of the recruitment of highly qualified staff, to select that staff ‘on the broadest possible geographical basis from among citizens of the Member States’ and ‘to ensure cost-efficiency’, the General Court noted that the legislature had, in the exercise of its broad discretion, decided to limit the reimbursement of annual travel expenses to members of staff‘who were most in need thereof’, which is to say those ‘who were expatriates or foreign residents and who were the least integrated into their country of employment, so that they could retain links with the Member State of which they were nationals and with which they had the strongest ties’ (paragraph 84 of the first judgment under appeal and paragraph 82 of the second judgment under appeal).
33 Lastly, the General Court recalled, referring to paragraph 14 of the judgment of 16 October 1980, Hochstrass v Court of Justice (147/79, EU:C:1980:238), that although in borderline cases fortuitous problems must arise from the introduction of any general and abstract system of rules, there were no grounds for taking exception to the fact that the legislature had resorted to categorisation, provided that it [was] not in essence discriminatory having regard to the objective pursued (paragraph 85 of the first judgment under appeal and paragraph 83 of the second judgment under appeal).
34 In Case C‑517/19 P, the appellants claim that the Court should: - set aside the first judgment under appeal; - annul the decisions at issue, in so far as they concern them; - order the Commission to pay the costs.
35 The Commission contends that the Court should: - dismiss the appeal and - order the appellants to pay the costs.
36 The European Parliament and the Council, which, as interveners at first instance, have lodged a response in accordance with Article 172 of the Rules of Procedure of the Court of Justice, also contend that the appeal should be dismissed and the appellants ordered to pay the costs.
37 In Case C‑518/19 P, the appellants claim that the Court should: - set aside the second judgment under appeal; - annul the decisions at issue, in so far as they concern them; - order the Council to pay the costs.
38 The Council contends that the Court should: - dismiss the appeal and - order the appellants to pay the costs.
39 The Parliament, which, as an intervener at first instance, has lodged a response in accordance with Article 172 of the Rules of Procedure, also contends that the appeal should be dismissed and the appellants ordered to pay the costs.
40 Pursuant to Article 54(2) of the Rules of Procedure, the President of the Court decided on 1 October 2019 to join Cases C‑517/19 P and C‑518/19 P for the purposes of the written and oral parts of the procedure and of the judgment.
41 In support of their respective appeals, the appellants in Cases C‑517/19 P and C‑518/19 P raise three grounds of appeal, which are identical in both cases, alleging (i) an error in law in the definition of the scope of the judicial review, (ii) breach of the principle of equal treatment and the concept of comparability peculiar to that principle, and (iii) breach of the principle of proportionality.
42 In that regard, and although that third ground of appeal is, like the second ground, put forward, in the appeal, under a more general heading relating to breach of the principle of equality, it is apparent, both from the arguments put forward in support of that third ground, and from the annex to the appeal which consists of a summary of the grounds put forward, that the third ground alleges breach of the principle of proportionality only, and not breach of the principle of equal treatment.
43 The appellants claim that the General Court erred in law by limiting the review of the legality of Regulation No 1023/2013, which it carried out in the light of the principle of equal treatment, to determining whether the measures at issue were ‘arbitrary’ or ‘manifestly’ unsuitable or inappropriate in relation to the objective pursued. They specify in that regard that the General Court erred, in paragraph 67 of the first judgment under appeal and paragraph 65 of the second judgment under appeal, by considering that it was required to confine itself, in the areas in which the legislature enjoys a broad discretion, to carrying out such a limited review.
44 According to the appellants, the fact that the legislature enjoys a broad discretion is irrelevant for the purpose of examining whether the provisions of Regulation No 1023/2013 relating to the grant of travelling time and the reimbursement of annual travel expenses are compatible with the principle of equal treatment.
45 Since equal treatment is a general principle which applies to the EU civil service, the legislature must observe that principle in any event, as part of the comprehensive review of legality which must be carried out by the EU judicature.
46 The appellants add that the present cases differ from the case which gave rise to the judgment of the Civil Service Tribunal of 23 January 2007, Chassagne v Commission (F‑43/05, EU:F:2007:14), on which the General Court based its reasoning in the judgments under appeal. Whereas in that case only the legality of the amendment of the detailed rules for reimbursement of annual travel expenses was at issue, the present cases concern the actual substance of the right to that reimbursement.
47 Lastly, by placing the legislature’s discretion above the principle of equal treatment, the General Court demonstrated ‘unjustified deference’ to that discretion, which had a decisive influence on the outcome of the disputes. On that subject, the appellants observe that the General Court held in ‘very general terms’ that, having regard for the ‘aim of the system as a whole’ and in the light of the ‘broad discretion of the legislature’, Regulation No 1023/2013 was not ‘manifestly’ incompatible with the general principle of equal treatment, having regard to its objective.
48 The Commission, in Case C‑517/19 P, and the Council and the Parliament, in Cases C‑517/19 P and C‑518/19 P, contend that the first ground of appeal should be rejected.
49 It should be borne in mind that, according to the case-law of the Court, the legal link between an official and the administration is based upon the Staff Regulations and not upon a contract. Thus, the rights and obligations of officials may, subject to compliance with the requirements of EU law, be altered at any time by the legislature (judgments of 22 December 2008, Centeno Mediavilla and Others v Commission, C‑443/07 P, EU:C:2008:767, paragraph 60, and of 4 March 2010, Angé Serrano and Others v Parliament, C‑496/08 P, EU:C:2010:116, paragraph 82).
50 The same is true for members of the contract staff with regard to the provisions of the Staff Regulations which are applicable to them by analogy.
51 One of those requirements is the principle of equal treatment, enshrined in Article 20 of the Charter of Fundamental Rights of the European Union (see, to that effect, judgments of 22 December 2008, Centeno Mediavilla and Others v Commission, C‑443/07 P, EU:C:2008:767, paragraph 78, and of 4 March 2010, Angé Serrano and Others v Parliament, C‑496/08 P, EU:C:2010:116, paragraph 100).
52 That principle requires, according to settled case-law, that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgments of 17 July 2008, Campoli v Commission, C‑71/07 P, EU:C:2008:424, paragraph 50; of 19 December 2019, HK v Commission, C‑460/18 P, EU:C:2019:1119, paragraph 66; and of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 137).
53 Furthermore, it follows from the case-law of the Court that, when provisions of the Staff Regulations such as those at issue in this instance are involved, and in the light of the broad discretion which the EU legislature enjoys in that regard, there is a breach of the principle of equal treatment only where the legislature makes a distinction which is arbitrary or manifestly inappropriate in relation to the objective pursued (see, to that effect, judgments of 14 July 1983, Ferrario and Others v Commission, 152/81, 158/81, 162/81, 166/81, 170/81, 173/81, 175/81, 177/81 to 179/81, 182/81 and 186/81, EU:C:1983:208, paragraph 13; of 17 July 2008, Campoli v Commission, C‑71/07 P, EU:C:2008:424, paragraph 64; of 15 April 2010, Gualtieri v Commission, C‑485/08 P, EU:C:2010:188, paragraph 72; and of 19 December 2019, HK v Commission, C‑460/18 P, EU:C:2019:1119, paragraph 85).
54 Consequently, in the light of that case-law, the General Court did not err in law when it found, in paragraph 67 of the first judgment under appeal and in paragraph 65 of the second judgment under appeal, that it was required to confine itself to ascertaining, having regard to the principle of equal treatment, whether or not the legislature had, by adopting the contested provisions of Regulation No 1023/2013, made a distinction which was arbitrary or manifestly inappropriate.
55 As regards the argument derived from the fact that the General Court found, in paragraph 75 of the first judgment under appeal and in paragraph 73 of the second judgment under appeal, in very general terms, that, taking into account ‘the aim of the system as a whole’ and ‘the broad discretion of the legislature’, Regulation No 1023/2013 was not, having regard to its objective, ‘manifestly’ incompatible with the general principle of equal treatment, it should be noted that that argument is based on an incorrect reading of those judgments and must consequently be rejected as being manifestly unfounded.
56 Indeed, it was only after having determined, in paragraphs 65 to 74 of the first judgment under appeal and in paragraphs 63 to 72 of the second judgment under appeal, in accordance with the case-law referred to in paragraph 53 above, that officials and members of staff in receipt of an expatriation or foreign residence allowance were not in a situation comparable to the appellants’ situation, that the General Court found that the act of making the receipt of travelling time and the reimbursement of annual travel expenses, provided for in Article 7 of Annex V and in Article 8 of Annex VII to the Staff Regulations respectively, contingent on entitlement to the expatriation or foreign residence allowance was neither manifestly unsuitable nor manifestly inappropriate, in the light of the objective of those provisions, and thus was not in breach of the principle of equal treatment.
57 It follows from the foregoing that the first ground of appeal must be rejected as unfounded.
58 By their second ground of appeal, directed against paragraphs 70 to 73 of the first judgment under appeal and against paragraphs 68 to 71 of the second judgment under appeal, the appellants claim that the General Court erred in law in finding that the situation of officials and members of staff who are not entitled to an expatriation or foreign residence allowance is not comparable to that of officials and members of staff who are entitled to such an allowance, although the first group, like the second group, has a place of employment which is different from the place of origin.
59 In that regard, the appellants submit that, in order to determine the comparability of different situations, account must be taken of the subject matter and the purpose of the act which introduces the distinction, as well as the principles and objectives of the field to which that act relates. Regulation No 1023/2013 makes the right of an official or member of staff to retain personal ties with his or her place of origin dependent on the extent to which he or she is integrated into his or her place of employment, even though, as the General Court found in paragraph 68 of the first judgment under appeal and in paragraph 66 of the second judgment under appeal, Article 7 of Annex V and Article 8 of Annex VII to the Staff Regulations still pursue the same objective and still have the same purpose, namely enabling officials and members of staff, as well as their dependants, to visit their place of origin at least once a year in order to retain their family, social and cultural ties there. Indeed, such a possibility has become, as the General Court also recalled in the judgments under appeal, a general principle of EU civil service law.
60 Consequently, according to the appellants, in light of the subject matter and the purpose of the provisions of Regulation No 1023/2013 at issue, all EU officials and members of staff whose place of origin is in a State other than their State of employment are in a comparable situation, whether or not they receive an expatriation or foreign residence allowance. Thus, by providing that only officials and members of staff who receive such an allowance are entitled to travelling time and the reimbursement of annual travel expenses, the legislature has made those benefits dependent on the extent to which those officials and those members of staff are integrated into their place of employment, that is to say, on a subjective criterion.
61 The appellants submit that determining that the place of origin of an official or member of staff is outside the territory of the State in which his or her place of employment is situated has no bearing on his or her entitlement to the expatriation or foreign residence allowance, and vice versa. In their view, the determination of the place of origin of an official or member of staff and the grant of the expatriation or foreign residence allowance respond to different needs and interests.
62 Therefore, in their view, the General Court wrongly assumed, in paragraphs 71 and 73 of the first judgment under appeal and in paragraphs 69 and 71 of the second judgment under appeal, that an official or member of staff who does not receive an expatriation allowance on the ground that he or she has, during the five years ending six months before he or she entered the service, resided or carried on his or her main occupation within the territory of the State in which his or her place of employment is situated, had the intention of severing his or her ties with his or her place of origin by making his or her place of employment the centre of his or her main interests. Likewise, the acquisition by an official or member of staff of the nationality of the State in which his or her place of employment is situated does not mean that that official or member of staff intended to change the centre of his or her interests and sever family or property-related ties with the place of origin.
63 The Commission, in Case C‑517/19 P, and the Council and the Parliament, in Cases C‑517/19 P and C‑518/19 P, contend that the second ground of appeal should be rejected.
64 As is stated in paragraph 52 above, the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified.
65 According to settled case-law, in order to be able to determine whether or not there is a breach of that principle, it is necessary to take into account, inter alia, the subject matter and purpose of the provision which allegedly breaches that principle (judgment of 6 September 2018, Piessevaux v Council, C‑454/17 P, not published, EU:C:2018:680, paragraph 79 and the case-law cited).
66 In that regard, it should be emphasised, as the Advocate General also noted in point 61 of his Opinion, that the subject matter and purpose of Article 7 of Annex V and Article 8 of Annex VII to the Staff Regulations remained, in essence, unchanged with the entry into force of Regulation No 1023/2013, since those provisions were still intended to grant benefits enabling an official and his or her dependants to visit, at least once a year, his or her place of origin, in order to maintain family, social and cultural ties there, since that place is determined, in accordance with Article 7(4) of Annex VII to those regulations, when the official takes up his or her appointment, account being taken in principle of where he or she was recruited or, upon express and duly reasoned request, the centre of the official’s interests.
67 That being the case, as is apparent from recital 24 of Regulation No 1023/2013, by amending Article 7 of Annex V and Article 8 of Annex VII to the Staff Regulations, the EU legislature wished, in the context of the reform of the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Union, to modernise and rationalise the rules on travelling time and reimbursement of annual travel expenses by linking them to expatriate, or foreign resident, status in order to make their application simpler and more transparent. Furthermore, that specific objective is part of a more general objective consisting, as is apparent from recitals 2 and 12 of that regulation, in ensuring cost-efficiency in an economic and social context in Europe which calls for the consolidation of public finances and a particular effort by every public administration and its staff to improve efficiency and effectiveness, while maintaining the objective of ensuring high-quality recruitment on the broadest possible geographical basis.
68 To that end, when adopting Regulation No 1023/2013, the legislature opted to link the right to travelling time and the reimbursement of annual travel expenses to ‘expatriate status’ in a broad sense, that is to say to grant that right only to officials and members of staff who satisfy the conditions laid down in Article 4 of Annex VII to the Staff Regulations for receipt of an expatriation or foreign residence allowance, in order to better target those measures and thus to limit entitlement thereto to those who are most in need of them in light of that expatriate or foreign resident status.
69 In that regard, it should be noted that the purpose of the expatriation allowance is to compensate officials for the extra expense and inconvenience of taking up employment with the EU institutions if they have been thereby obliged to change their residence and move to the State of employment and to integrate themselves into a new environment. The concept of expatriation also depends on the personal position of an official, that is to say, on the extent to which he or she is integrated into his or her new environment, which is demonstrated for example by habitual residence or by the main occupation pursued. The grant of the expatriation allowance is thus 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 (judgment of 24 January 2008, Adam v Commission, C‑211/06 P, EU:C:2008:34, paragraphs 38 and 39 and the case-law cited).
70 By contrast, the foreign residence allowance is, for its part, granted, in accordance with Article 4(2) of Annex VII to the Staff Regulations, to an official who, as he or she is not and has never been a national of the State in whose territory the place where he or she is employed is situated, does not satisfy the conditions for receiving an expatriation allowance. That allowance is thus intended to compensate for the disadvantages which officials undergo as a result as their status as aliens, namely a number of inconveniences, both in law and in fact, of a civic, family, educational, cultural and political nature, which the nationals of that State do not experience (see, to that effect, judgment of 16 October 1980, Hochstrass v Court of Justice, 147/79, EU:C:1980:238, paragraph 12).
71 It follows from the foregoing that Article 4 of Annex VII to the Staff Regulations establishes objective criteria in accordance with which the entitlement to the allowances provided for therein is limited to officials who, in principle, are not integrated or are barely integrated into the society of the State of employment, permitting the assumption, by contrast, that officials who do not satisfy the conditions for receipt of those allowances are, for their part, sufficiently integrated into the Member State of employment, which means that they are not exposed to the disadvantages referred to in paragraphs 69 and 70 above.
72 Thus, even if their place of origin was not determined as being in the State where their place of employment is situated, officials and members of staff, such as the appellants, who do not satisfy the conditions for receipt of an expatriation or foreign residence allowance have closer connections with that State than the officials and members of staff who satisfy those conditions, who do not have, a priori, as the General Court noted in paragraph 70 of the first judgment under appeal and in paragraph 68 of the second judgment under appeal, any connections with their place of employment, as they are not and have never been nationals of the State of employment, on the one hand, and/or have never, at least for a prolonged period, resided or carried on their occupation in that State, on the other.
73 Accordingly, as the General Court, in essence, correctly found in paragraph 73 of the first judgment under appeal and in paragraph 71 of the second judgment under appeal, officials and members of staff such as the appellants cannot claim to have a closer connection with their place of origin than an official or member of staff who is entitled to the expatriation or foreign residence allowance. The latter is the least integrated into his or her place of employment and as such has the greatest need to maintain ties with his or her place of origin.
74 Therefore, the General Court was fully entitled to find, in paragraph 71 of the first judgment under appeal and in paragraph 69 of the second judgment under appeal, that officials and members of staff who receive the expatriation or foreign residence allowance are not in a situation comparable to that of the appellants.
75 In the light of the foregoing considerations, the second ground of appeal must be rejected as unfounded.
76 By their third ground of appeal, the appellants submit that, in paragraphs 69 and 80 to 86 of the first judgment under appeal, and in paragraphs 67 and 78 to 84 of the second judgment under appeal, the General Court erred in its assessment of the objective and the proportionality of Article 7 of Annex V and Article 8 of Annex VII to the Staff Regulations.
77 They observe that, contrary to what the General Court found in paragraph 69 of the first judgment under appeal and in paragraph 67 of the second judgment under appeal, the system resulting from Regulation No 1023/2013 is less simple to apply and less transparent than that predating the entry into force of that regulation. While the previous system granted the reimbursement of annual travel expenses to any official or member of staff whose place of origin was determined as being in a different place to the place of employment, the right to reimbursement now varies depending on the nationality of the official or member of staff in question, his or her place of origin, his or her place of employment and the extent to which he or she is integrated into that place of employment. In their view, the General Court thus confused the concepts of expatriation and place of origin, which led to the creation of situations which were manifestly and purely arbitrary, in so far as there is no connection between reimbursement and the distance separating the place of origin from the place of employment.
78 In that regard, the appellants refer to the example of two of their number, whose respective places of origin have been determined as being in Peru and Brazil. They explain that, if those persons were to be part of an EU delegation in South America, the reimbursement of their annual travel expenses would be carried out on the basis of the distance separating their place of employment from the capital of the Member State of which they are nationals, namely Brussels (Belgium). The amount reimbursed would thus be greater than that which would have been calculated, in accordance with the old Staff Regulations, on the basis of the distance between their place of employment and their place of origin, those two places being located on the continent of South America.
79 Likewise, the appellants refer to the example of another of their number, whose place of origin is situated in Morocco. They explain that, if that person were to be employed at the European Union Intellectual Property Office (EUIPO) in Alicante (Spain) or at the Institute for Prospective Technological Studies of the Commission’s Joint Research Centre (JRC) in Seville (Spain), the reimbursement of his annual travel expenses would be calculated on the basis of the distance between the place of employment and Brussels, that is, around 1800 km, whereas Rabat (Morocco) is situated less than 1000 km from Alicante or Seville.
80 Furthermore, the appellants note that the General Court disregarded that line of argument by means of insufficient and brief reasoning, having merely classified those situations, in paragraph 85 of the first judgment under appeal and in paragraph 83 of the second judgment under appeal, as ‘fortuitous problems’, by reference to the judgment of 16 October 1980, Hochstrass v Court of Justice (147/79, EU:C:1980:238).
81 In addition, the appellants claim that Regulation No 1023/2013 is also not appropriate for achieving the purported objective, which consists, as the General Court stated in paragraph 84 of the first judgment under appeal and in paragraph 82 of the second judgment under appeal, in reserving the right to reimbursement of annual travel expenses for the officials and members of staff who are ‘most in need’ of it, namely those who are ‘expatriates or foreign residents’.
82 In that regard, the appellants highlight the fact that an official or a member of staff whose place of origin is outside the European Union and who receives the expatriation or foreign residence allowance is not to receive reimbursement of his or her annual travel expenses where his or her place of employment is situated less than 200 km from the capital of the Member State of which he or she is a national, even though that person would be, from the EU legislature’s perspective, one of those most in need of it.
83 The Commission, in Case C‑517/19 P, and the Council and the Parliament, in Cases C‑517/19 P and C‑518/19 P, contend that the third ground of appeal should be rejected.
84 It should be noted that, according to settled case-law, the principle of proportionality is one of the general principles of EU law and requires that the means employed by provisions of EU law be appropriate for attaining the legitimate objectives pursued by the legislation at issue and must not go beyond what is necessary to achieve them (judgment of 3 December 2019, Czech Republic v Parliament and Council, C‑482/17, EU:C:2019:1035, paragraph 76 and the case-law cited).
85 As regards the judicial review of whether those conditions are satisfied, it has already been established in paragraph [53] above that the EU legislature enjoys a broad discretion where provisions of the Staff Regulations such as those at issue in this instance are involved.
86 Thus, the criterion to be applied is not whether a measure adopted in such an area was the only or the best possible measure, since its legality can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (judgment of 3 December 2019, Czech Republic v Parliament and Council, C‑482/17, EU:C:2019:1035, paragraph 77 and the case-law cited).
87 In this instance, as has been pointed out in paragraph 67 above, it is apparent from recital 24 of Regulation No 1023/2013 that the EU legislature wished, in the context of the reform of the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Union, to modernise and rationalise the rules on travelling time and reimbursement of annual travel expenses by linking them to expatriate, or foreign resident, status in order to make their application simpler and more transparent.
88 In that regard, the appellants submit, first, that, contrary to what the General Court found in paragraph 84 of the first judgment under appeal and in paragraph 82 of the second judgment under appeal, those provisions do not respond to that objective. The system predating the reform resulting from Regulation No 1023/2013 was simpler to apply and more transparent, in so far as, with the new system, the grant of travelling time and the reimbursement of annual travel expenses depends on a large number of different factual criteria, referred to in paragraph 77 above.
89 However, such a complaint cannot be accepted. As the Advocate General stated, in essence, in point 78 of his Opinion, while Article 7 of Annex V and Article 8 of Annex VII to the Staff Regulations, concerning the benefits at issue, must now be read in conjunction with Article 4 of Annex VII to those regulations, concerning the expatriation and foreign residence allowances, the last of those provisions applies on the basis of objective criteria and is worded with sufficient precision and clarity to ensure the simple and transparent application of those first two provisions of the Staff Regulations, in accordance with the legislature’s objective as referred to in recital 24 of Regulation No 1023/2013.
90 Furthermore, as regards the situations foreseen by the appellants and described in paragraphs 78 and 79 above, it should be noted that these are hypothetical or theoretical in nature, in so far as the appellants have not alleged that some of their number have been employed in an EU delegation in South America, at EUIPO in Alicante or at the Institute for Prospective Technological Studies of the JRC in Seville.
91 It is apparent from the case-law that an official or a member of staff is not entitled to act in the interests of the law or of the institutions and may put forward, in support of an action, only such claims as relate to him or her personally (order of 8 March 2007, Strack v Commission, C‑237/06 P, EU:C:2007:156, paragraph 64 and the case-law cited).
92 As regards, second, the appellants’ argument, reproduced in paragraph 81 above, that Regulation No 1023/2013 is not appropriate for achieving the objective of reserving the right to reimbursement of annual travel expenses for officials and members of staff who are ‘most in need’ of it, namely those who are ‘expatriates’ or ‘foreign residents’, it should be noted, as has been recalled in paragraph [67] above, that the objective of modernising and rationalising, in particular, the rules on reimbursement of annual travel expenses by linking them to expatriate or foreign resident status is part of the more general objective of ensuring cost-efficiency in an economic and social context in Europe which calls for the consolidation of public finances and a particular effort by every public administration and its staff to improve efficiency and effectiveness, while maintaining the objective of ensuring high-quality recruitment on the broadest possible geographical basis.
93 Limiting the reimbursement of annual travel expenses to only the officials and members of staff who are entitled to an expatriation or foreign residence allowance, namely those who are the least integrated into their country of employment and who have, by extension, the greatest need to maintain ties with their place of origin, is appropriate in order to contribute to the achievement of the more general objective pursued by the legislature, recalled in the previous paragraph, which is to ensure cost-efficiency in respect of the EU civil service, while maintaining high-quality recruitment on the broadest possible geographical basis.
94 As the Advocate General pointed out in point 77 of his Opinion, in the exercise of its broad discretion, the legislature chose, among the various possible solutions, to restrict the number of recipients of the benefits at issue by excluding the category of officials and members of staff, such as the appellants, whose ties with the place of origin it considered to be weaker.
95 Consequently, the General Court was fully entitled to find, in paragraph 86 of the first judgment under appeal and in paragraph 84 of the second judgment under appeal, that it could not be claimed that, in exercising its broad discretion, the legislature had introduced measures which were manifestly disproportionate with regard to the objective pursued.
96 In that regard, the situation envisaged by the appellants and described in paragraph 82 above is not capable of calling that conclusion into question.
97 Such a situation, which presupposes the right to an expatriation or foreign residence allowance, is hypothetical or theoretical in nature, in so far as none of the appellants is entitled to such an allowance.
98 Accordingly, the third ground of appeal must be rejected as unfounded.
99 In the light of all of the foregoing, the appeals must be dismissed in their entirety.
100 In accordance with Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to the costs.
101 Under Article 138(1) of those rules, applicable 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. Where an intervener at first instance, which has not itself brought the appeal, takes part in the proceedings before the Court, the Court may decide, under Article 184(4) of the Rules of Procedure, that that intervener is to bear its own costs. Lastly, pursuant to Article 140(1) of those rules, also applicable to appeal proceedings by virtue of Article 184(1) thereof, the Member States and institutions which have intervened in the proceedings are to bear their own costs.
102 As regards Case C‑517/19 P, since the Commission has applied for costs and the appellants have been unsuccessful, the appellants must be ordered to bear their own costs and to pay those incurred by the Commission.
103 The Parliament and the Council, as interveners before the General Court, are each to bear their own costs.
104 As regards Case C‑518/19 P, since the Council has applied for costs and the appellants have been unsuccessful, the appellants must be ordered to bear their own costs and to pay those incurred by the Council.
105 The Parliament, as an intervener before the General Court, is to bear its own costs.