1 By his appeal, the appellant asks the Court of Justice to set aside the judgment of the General Court of the European Union of 21 December 2021, MG v EIB (T‑573/20, EU:T:2021:915) (‘the judgment under appeal’) by which the General Court dismissed his application under Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union seeking, first, annulment of the letters of the European Investment Bank (EIB) on the basis of which the appellant was deprived of the entitlement to family allowances and derived financial rights and, second, compensation for the non-material damage which the appellant allegedly suffered.
2 Article 3(3) and (4) of Regulation (EEC, Euratom, ECSC) No 260/68 of the Council of 29 February 1968 laying down the conditions and procedure for applying the tax for the benefit of the European Communities (OJ, English Special Edition, Series I 1968(I), p. 37), as last amended by Council Regulation (EC, Euratom) No 1750/2002 of 30 September 2002 (OJ 2002 L 264, p. 15) (‘Regulation No 260/68’), provides: ‘3. The family allowance and social benefits listed below shall be deducted from the basic taxable amount: (a) family allowances: - household allowance, - dependent child’s allowance, - education allowance, - allowance on the birth of a child; … 4. Subject to the provisions of Article 5, an abatement of 10% for occupational and personal expenses shall be made from the amount obtained by applying the preceding provisions. An additional abatement equivalent to twice the amount of the allowance for a dependent child shall be made for each dependent child of the person liable as well as for each person treated as a dependent child within the meaning of Article 2(4) of Annex VII to the Staff Regulations [of Officials of the European Union].’
3 The Staff Regulations of the EIB, adopted on 20 April 1960 by the Board of Directors of the EIB, in the version applicable in the present case (‘the Staff Regulations’), provided, in Article 41 thereof: ‘Disputes of any nature between the [EIB] and individual members of staff shall be brought before the Court of Justice of the European Union. … In addition to proceedings being instituted before the Court of Justice of the European Union, an amicable settlement shall be sought, prior to the institution of any proceedings, before the [EIB]’s Conciliation Board in respect of disputes other than such as arise from application of the disciplinary measures provided for under Article 38. …’
4 Articles 2.2.1 and 2.2.2 of the Staff Rules of the EIB (‘the Staff Rules’) are worded as follows: ‘2.2.1. Family allowance The following members of staff shall be entitled to family allowance amounting to 5% of the monthly basic salary: (a) married employees; (b) employees who are legally separated or divorced and who are obliged by a court order to provide chief maintenance; (c) employees who are unmarried, legally separated, divorced or widowed, where they are entitled to dependent child allowance (see 2.2.3.). The Management Committee shall determine the minimum amount of the allowance (see Annex I). Where both spouses are [EIB] employees, the allowance shall be paid to the spouse with the higher monthly basic salary. Where one of the spouses is employed by the [EIB] and the other by another international organisation, the official employed by the [EIB] shall draw the allowance provided that the other organisation is not paying a similar allowance to his/her spouse. In the event of the death of the sole person in respect of whom family allowance is payable, the allowance shall cease to be paid at the end of the six months following the date of death. This provision shall apply mutatis mutandis to recipients of a [EIB] pension. 2.2.2. Dependent child A child whose maintenance is effectively being provided for by a member of staff and who is his or her legitimate, legitimised, recognised natural or adopted child, or stepchild shall be deemed a dependent child of this staff member, provided that the [EIB] or another institution of the [European Union] does not deem the child to be the dependent of another staff member, official or servant, and that the child is not gainfully employed. Subject to the same conditions, the [EIB] may also deem a child given a home by a member of staff to be a dependent child. When the child is living in the same household as the member of staff or where the latter is contributing to the child’s maintenance to the extent of an amount at least 50% greater than the dependent child allowance (see Annex I), it shall be considered that the staff member is effectively providing for the child’s maintenance.’
5 The background to the dispute is set out in paragraphs 1 to 25 of the judgment under appeal in the following terms: ‘1. The [appellant], MG, has been a member of the [EIB] staff since 1 February 1998. 2. On 12 September 2003, the [appellant] married A, who was also a member of the EIB staff since 2002. They have five children. 3. On 22 August 2017, A brought divorce proceedings against the [appellant] before the tribunal d’arrondissement de Luxembourg (District Court, Luxembourg, Luxembourg), seeking interim measures regarding separate residence, the departure of her husband from the marital home and provisional custody of their five minor children in her name. 4. On 14 November 2017, the tribunal d’arrondissement de Luxembourg (District Court, Luxembourg) issued an interim order (“the interim order of 14 November 2017”) by which it granted A provisional custody of the children. In addition, the Luxembourg court also ordered the [appellant] to leave the marital home within a period of one month as from the service of that interim order. 5. The [appellant] left the marital home in December 2017. 6. By order of 20 July 2018 (“the interim order of 20 July 2018” …), served on the [appellant] on 7 March 2019, the Luxembourg judge hearing applications for interim measures ordered that the [appellant] pay A maintenance in the amount of EUR 1500 per month, corresponding to EUR 300 for each of their children, family allowances excluded, as well as garderie and Centre polyvalent de l’enfance fees … for three children and half of all extraordinary costs incurred in the interests of the [appellant]’s and A’s five children. In addition, the judge hearing the application for interim measures ordered the EIB to pay the dependent child allowance and education allowances to A. 7. On 9 January 2019, the Cour supérieure de justice de Luxembourg (High Court of Justice, Luxembourg, Luxembourg), sitting as an appellate court, dismissed the [appellant]’s appeal against the interim order of 14 November 2017 in so far as it fixed the residence of the minor children at A’s address, but granted him visitation and accommodation rights every second weekend and during half of the school holidays. 8. On 21 March 2019, the tribunal d’arrondissement de Luxembourg (District Court, Luxembourg) granted [the appellant] and A divorce. 9. On 10 July 2019, the Cour supérieure de justice de Luxembourg (High Court of Justice, Luxembourg) delivered a judgment on appeal against the interim order of 20 July 2018 by which it confirmed A’s right to payment by the [appellant] of maintenance in the amount of EUR 300 per month per child. It nevertheless varied the interim order of 20 July 2018 by relieving the [appellant] of the payment of certain costs, including garderie fees, incurred in the interests of the children, taking the view that those expenses were taken into account in the maintenance payments. 10. On 24 November 2017, the [appellant] was informed by the EIB that, following the interim order of 14 November 2017, the dependent child and education allowances would be paid to A. 11. On 28 December 2017, A lodged an request for conciliation under Article 41 of the [Staff Regulations], in the version applicable in the present case, in order for her five children to be recognised as her dependents, in accordance with the interim order of 14 November 2017, and for the entitlement to payment of the family allowances and derived financial rights provided for by that regulation to be granted to her. 12. On 12 September 2018, the President of the EIB decided that, as from October 2018, the [appellant]’s and A’s children were to be considered A’s dependents (‘the decision of 12 September 2018’), thereby confirming the outcome of another conciliation procedure which he decided to extend to A’s case. In addition, this meant that the right to family allowances and derived financial rights was also granted to A. 13. By letter of 11 October 2018 (‘the letter of 11 October 2018’), the EIB informed the [appellant] that, as from October 2018, he will no longer be entitled to the family allowance, the dependent child allowance and the education allowance (together ‘the family allowances’), or to the derived financial rights, granted under the Staff Rules …, since those entitlements had been granted to A by decision of 12 September 2018. 14. By letter of 29 October 2018, the [appellant] informed the EIB that he opposed the measures set out in the letter of 11 October 2018. He also stated that his letter of 29 October 2018 should be regarded as a request for conciliation within the meaning of Article 41 of the Staff Regulations … 15. As he did not receive any reply from the EIB, the [appellant] renewed his request by letter of 10 December 2018. 16. By letter of 7 January 2019, the EIB rejected the [appellant]’s request without addressing the question of the opening of the conciliation procedure (“the letter of 7 January 2019” …). 17. By email of 11 January 2019, the [appellant] lodged a request for conciliation pursuant to Article 41 of the Staff Regulations. That request sought to challenge the letter of 11 October 2018 and, in so far as necessary, the letter of 7 January 2019. 18. By email of 14 January 2019, the EIB’s human resources department acknowledged receipt of the [appellant]’s request for conciliation. By email of 15 January 2019, the President of the EIB also acknowledged receipt of that request for conciliation. 19. By email of 17 January 2019, the [appellant] designated B, head of division at the EIB, to be his representative on the conciliation board and asked the EIB to inform him of who would represent it. He reiterated his request by registered letter on 4 February 2019. 20. By letter of 17 April 2019, the EIB’s human resources department informed the [appellant] that, in response to his letter of 11 January 2019, his request for conciliation had been accepted and that a conciliation procedure had therefore been opened. The EIB stated that C had been appointed as the EIB’s representative in that procedure. 21. From 24 April 2019, B and C exchanged a series of emails to designate the chair of the conciliation board. A compromise was reached on the appointment of D, a retired member of the EIB staff. 22. The conciliation board met on 23 July and 2 August 2019 and on 5 and 9 March 2020. 23. By email of 12 February 2020, the EIB’s human resources department proposed to the conciliation board that, in the light of what had been decided in a case which it described as a ‘parallel’ case, some allowances be paid half to the [appellant] and half to A, provided that the [appellant] furnished proof of the payments made for his children. The [appellant] rejected that proposal. 24. Between 9 March and 4 June 2020, the three members of the conciliation board exchanged a series of emails the purpose of which was to comment on and amend the content of the minutes of the conciliation procedure. By email of 4 June 2020, the chair of the conciliation board submitted those minutes to the President of the EIB, in which he noted, inter alia, the failure of the conciliation procedure and the impossibility of agreeing a report closing that procedure. 25. By letter of 30 July 2020, sent to the [appellant] by email of 31 July 2020, the President of the EIB informed him that he had received the conciliation board’s conclusions and stated that he took note of the failure of the conciliation procedure (‘the decision of 30 July 2020’). The minutes of the conciliation procedure were attached to that letter.’
6 By an application lodged at the General Court Registry on 14 September 2020, the appellant brought an action based on Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union seeking, first, annulment of the EIB’s letters of 11 October 2018, 7 January 2019 and 30 July 2020 on the basis of which the appellant was deprived of the entitlement to family allowances and derived financial rights and, second, compensation for the non-material damage which the appellant allegedly suffered.
7 In support of his claim for annulment, the appellant put forward six pleas in law, alleging, first, infringement of the right to be heard; second, infringement of the obligation to state reasons; third, a manifest error of assessment and, in the alternative, a plea of illegality in respect of the Staff Rules; fourth, infringement of Article 3(4) of Regulation No 260/68 and a manifest error of assessment; fifth, infringement of Article 4(1) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision 1247/2002/EC (OJ 2018 L 295, p. 39), and infringement of the principle of sound administration and of the duty of care; and, sixth, infringement of Article 41 of the Staff Regulations, the principle of sound administration and the duty of care.
8 In the judgment under appeal, the General Court rejected each of those pleas and, consequently, the claim for annulment.
9 In support of his claim for compensation, the appellant stated that he had suffered non-material damage because of his employer’s actions and omissions, owing to (i) the abrupt and very significant reduction in his remuneration caused by the adoption of an unlawful act, which is a source of anxiety; (ii) the disclosure of his personal data to third parties without his consent; (iii) the EIB’s position in favour of his ex-wife in so far as it was based decisively on the outcome of the judicial proceedings before the Luxembourg courts; and (iv) the unjustified delay in setting up the conciliation procedure. The appellant assessed that damage ex æquo et bono at EUR 10000, an amount which he undertook to pay back to charity if awarded.
10 In the judgment under appeal, the General Court rejected the first three parts of the claim for compensation raised at first instance. By contrast, it held, so far as concerns the fourth part of that claim and having regard in particular to the unreasonable period of over three months it took the EIB to respond to the appellant’s request concerning the opening of a conciliation procedure following the letter of 7 January 2019 and the EIB’s failure to reply to the first request for conciliation set out in the letter of 29 October 2018, that the EIB had maintained the appellant in a state of prolonged uncertainty as a result of that unjustified delay and had therefore caused him non-material damage. Consequently, the General Court ordered the EIB to pay the appellant damages assessed ex æquo et bono in the sum of EUR 500.
11 The General Court also decided that each party should bear its own costs.
12 The appellant claims that the Court should: - declare the present appeal admissible and well founded; - set aside the judgment under appeal and, consequently, grant the appellant the benefit of his claims at first instance and, consequently, annul the EIB’s decision of 11 October 2018 by which the appellant was deprived of the entitlement to family allowances (including, in particular, the garderie and Centre Polyvalent de l’ Enfance fees wrongly deducted by the EIB from the appellant’s salary until November 2019) and the financial rights derived therefrom (including, in particular, tax allowances and the reimbursement of the children’s medical expenses borne by the appellant) and, so far as necessary, annul the decision of 7 January 2019 rejecting his claims in their entirety and annul the EIB’s decision of 30 July 2020 noting the absence of conciliation and confirming the decision of 11 October 2018, and order that the appellant be awarded compensation for the material and non-material damage he suffered; and - order the EIB to pay all of the costs of the proceedings at first instance and on appeal.
13 The EIB contends that the Court should: - dismiss the appeal; and - order the appellant to pay the costs.
14 In support of his appeal, the appellant relies on five grounds of appeal based on (i) infringement of the right to be heard, (ii) infringement of the obligation to state reasons, (iii) distortion of the facts, manifest errors of assessment and breach of the principles of equal treatment and proportionality, (iv) failure to observe Article 3(4) of Regulation No 260/68 and, (v) distortion of the file, infringement of Article 85 of the Rules of Procedure of the General Court, incorrect characterisation of the facts and infringement of the obligation to state reasons.
15 It is appropriate to examine, in the first place, the first ground of appeal and, in the second place, the second part of the third ground of appeal.
16 By that ground of appeal, the appellant claims that, in paragraphs 73 and 74 of the judgment under appeal, the General Court infringed the right to be heard, enshrined in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union (‘the Charter’).
17 He notes that, in his action before the General Court, he maintained that he had not been heard by the EIB before the letter of 11 October 2018 was adopted. That letter followed a conciliation procedure opened at the request of his ex-wife, without his having been informed and which concluded that a decision adopted by the EIB in another conciliation procedure initiated by another member of staff, the factual and legal elements of which he was unaware, should be applied by analogy. The appellant also claimed that the outcome of the procedure would have been different if he had been heard since, first, he could have explained precisely his situation in the light of the legal proceedings pending before the national court and, second, the EIB could, in that regard, have proposed apportioning the family allowances, or some of them, between the appellant and his ex-wife.
18 In the judgment under appeal, the General Court accepted that the appellant was not heard in the course of the procedure leading to the decision communicated by the letter of 11 October 2018. Nevertheless, in his opinion, the General Court was wrong to find that his right to be heard had been observed merely because he had been able, in his letters of 29 October and 10 December 2018, to comment on the reasoning set out in the decision of 11 October 2018, since the appellant’s observations had been taken into account before the EIB took the position set out in its letter of 7 January 2019.
19 The EIB contends that the General Court was right to hold that it had given the appellant the opportunity to be heard on the subject of the letter of 11 October 2018. It observes, in this respect, that the second paragraph of Article 41 of the Staff Regulations provides that the conciliation procedure laid down therein may be initiated only on an individual basis on the initiative of the party concerned, namely a member of the EIB staff who considers that he or she has been adversely affected by a decision or the conduct of the administration. Since the appellant’s ex-wife, who is also a member of the EIB staff, took the initiative to have recourse to such a conciliation procedure concerning the payment of the family allowances and derived financial rights, she was the only one concerned by that procedure, with no possibility for the EIB to extend it to the appellant.
20 In this connection, the EIB arranged for the appellant to exercise his right to be heard in the only manner compatible with his ex-wife’s rights to rely on the individual conciliation procedure provided for in Article 41 of the Staff Regulations. Accordingly, the appellant was informed of the results of the conciliation procedure which concerned his ex-wife individually after the conclusion of that procedure and in so far as the action to be taken by the EIB could have consequences for his position, and he was heard in this respect. In any event, the appellant has not shown that the outcome of the procedure in question could, depending on the circumstances, have been different.
21 It should be recalled that, under Article 41(2) of the Charter, the right to sound administration includes, inter alia, the right of every person to be heard before an individual measure which would affect him or her adversely is taken.
22 As follows from its very wording, that provision is of general application. Accordingly, the right to be heard must be observed in all proceedings which are liable to culminate in a measure adversely affecting a person, even where the applicable legislation does not expressly provide for such a procedural requirement (judgment of 18 June 2020, Commission v RQ, C‑831/18 P, EU:C:2020:481, paragraph 67 and the case-law cited).
23 In accordance with the settled case-law of the Court of Justice, recalled by the General Court in paragraph 70 of the judgment under appeal, the right to be heard pursues a dual objective. First, to enable the case to be examined and the facts to be established in as precise and correct a manner as possible, and, second, to ensure that the person concerned is in fact protected. The right to be heard is intended in particular to guarantee that any decision adversely affecting a person is adopted in full knowledge of the facts, and its purpose is to enable the competent authority to correct an error or to enable the person concerned to submit such information relating to his or her personal circumstances as will argue in favour of the adoption or non-adoption of the decision, or in favour of its having a specific content (judgment of 4 June 2020, EEAS v De Loecker, C‑187/19 P, EU:C:2020:444, paragraph 69 and the case-law cited).
24 The right to be heard guarantees every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of any decision liable to affect his or her rights and legitimate interests adversely (see, to that effect, judgments of18 June 2020, Commission v RQ, C‑831/18 P, EU:C:2020:481, paragraph 67, and of 21 October 2021, Parliament v UZ, C‑894/19 P, EU:C:2021:863, paragraph 89 and the case-law cited).
25 It is in the light of those considerations that it must be ascertained whether the General Court erred in law in finding, in paragraphs 73 and 74 of the judgment under appeal, that the right to be heard did not entail an obligation for the EIB to hear the appellant before adopting the letter of 11 October 2018.
26 In the first place, so far as concerns the question whether the letter of 11 October 2018 constitutes an ‘individual measure which would [adversely] affect’ the appellant’s rights and legitimate interests, within the meaning of Article 41(2) of the Charter, the General Court noted, in paragraph 73 of the judgment under appeal, that it was already apparent from paragraph 35 of that judgment that, by that letter, the EIB had informed the appellant that, in the light of the outcome of the conciliation procedure initiated by his ex-wife, he would no longer receive payment for the family allowances. In paragraph 35 of that judgment, the General Court thus stated that, since the appellant had been deprived of the possibility of obtaining those family allowances and the derived financial rights in question, the letter of 11 October 2018 had directly affected his individual situation.
27 By referring to that finding in paragraph 73 of the judgment under appeal, in the context of the examination of the appellant’s plea alleging infringement of the right to be heard, the General Court implicitly, but necessarily, held, with no challenge in the present appeal, that the letter of 11 October 2018 does indeed constitute an individual measure capable of ‘adversely’ affecting the appellant’s rights and legitimate interests, within the meaning of Article 41(2) of the Charter, with the result that the appellant must, in accordance with that provision, be heard before the adoption of that measure.
28 In the second place, it is common ground that the appellant was not heard by the EIB before the adoption of the letter of 11 October 2018. As is apparent from paragraphs 12 and 13 of the judgment under appeal, that letter was notified to the appellant following the decision taken by the EIB, on 12 September 2018, to grant the entitlement to the family allowances to his ex-wife, in the context of a conciliation procedure initiated by her on the basis of Article 41 of the Staff Regulations and in which the appellant did not participate, as is apparent from paragraph 73 of the judgment under appeal.
29 It is true, first, as the General Court noted, in essence, in paragraph 74 of the judgment under appeal, that the appellant contacted the EIB after receiving the letter of 11 October 2018, in order to challenge the decision of which he had been notified. He thus claimed, in particular, in a letter of 29 October 2018, that the letter of 11 October 2018 had been adopted in disregard of his procedural rights, that the content of that letter was incomprehensible and that it failed to have regard to the financial arrangements within the family, in particular the fact that he bore a substantial part of the family’s expenses.
30 Second, the EIB did in fact respond, by its letter of 7 January 2019, to certain objections raised by the appellant, as the General Court also pointed out in paragraph 74 of the judgment under appeal.
31 However, it must be stated that that reply to the appellant’s written objections, sent to his legal advisor several weeks after the adoption of the letter of 11 October 2018, cannot make up for the fact that the appellant was not heard before that decision was adopted. As the Advocate General observed in point 50 of her Opinion, that letter is not a preparatory act embodied in a later decision. It is the initial decision, and the letter of 7 January 2019 confirms it. Therefore, the decision by which the appellant was divested of his entitlement to family allowances was the letter of 11 October 2018.
32 In that context, it should be borne in mind that the right to be heard implies that the person concerned must have been put in a position effectively to make known his or her views on the draft decision, in the context of an oral and/or written exchange initiated by that authority, evidence of which it must provide. In particular, the person concerned must have been expressly informed of a draft decision and invited to submit his or her comments. Only then, mindful of the consequences of the proposed decision, will he or she have been put in a position to influence the decision-making process at issue (see, to that effect, judgment of 6 December 2007, Marcuccio v Commission, C‑59/06 P, EU:C:2007:756, paragraphs 47 and 58).
33 In the present case, as is apparent from paragraphs 28 and 31 of the present judgment, the EIB did not put the appellant in the position to submit his observations in good time and, therefore, to influence the decision-making process at issue.
34 It follows from the foregoing considerations that the General Court, in paragraph 74 of the judgment under appeal, erred in law in holding that the appellant’s right to be heard had not been infringed in the present case, on the ground that the appellant had been able to comment on the reasoning set out by the EIB in the letter of 11 October 2018 and to submit his observations on the reasons set out therein, even though those observations could not have been made by the appellant until after that decision had been adopted and, therefore, that he was not given the opportunity to influence the decision-making process at issue.
35 In the third place, it must be borne in mind that if the grounds of a decision of the General Court reveal an infringement of EU law, but the operative part of that decision can be seen to be well founded on other legal grounds, that infringement is not capable of leading to the annulment of that decision and a substitution of grounds must be made (judgment of 17 January 2023, Spain v Commission, C‑632/20 P, EU:C:2023:28, paragraph 48 and the case-law cited).
36 In that regard, it is apparent from the case-law of the Court that an infringement of the rights of the defence, in particular of the right to be heard, results in the annulment of the decision taken at the end of the administrative procedure at issue only if, had it not been for such an irregularity, the outcome of the procedure might have been different (judgment of 18 June 2020, Commission v RQ, C‑831/18 P, EU:C:2020:481, paragraph 105 and the case-law cited).
37 In order for an infringement of the right of a person concerned to be heard to lead to the annulment of an individual decision of the administrative authority which may be unfavourable to him or her, it is necessary to ascertain whether that authority had any discretion in taking the decision in question. An official has no legitimate interest in seeking the annulment of a decision for a formal defect, and in particular for an infringement of the right to be heard before any decision adversely affecting him or her, where the administration has no scope for the exercise of discretion but is bound to act as it has done. In such a situation where the powers of the administration are circumscribed, the annulment of the contested decision will inevitably, once the defect has been rectified, result in the adoption of decision identical, in substance, to the annulled decision (see, by analogy, judgment of 6 July 1983, Geist v Commission, 117/81, EU:C:1983:191, paragraph 7).
38 In that regard, in order to demonstrate that the EIB infringed the appellant’s right to be heard, the appellant claims, in essence, that if he had been heard before the letter of 11 October 2018 was adopted, he would have been able to explain his personal situation in the light of the legal proceedings pending before the national court, and in particular the fact that he contributes to the maintenance of his children in an amount which is at least 50% higher than that of the dependent child allowance, so that the EIB could have proposed that the family allowances, or some of those allowances, be apportioned between the appellant and his ex-wife.
39 For its part, the EIB contends, in essence, in particular at the hearing, that the procedure could not have led to a different result since Article 2.2.2 of the Staff Rules provides that, in order to be deemed a dependent child of a member of staff, that member of staff must effectively provide for that child’s maintenance, and such effective maintenance requires demonstrating, first, that the child lives in his or her household and, second, that he or she contributes to the maintenance of that child in an amount at least 50% greater than the amount of the dependent child allowance. However, as the EIB stated in the letter of 7 January 2019, the first of those conditions was not met, since custody of the children was entrusted by the national court to the appellant’s ex-wife.
40 In this respect, it should be noted that the EIB’s assertion that a different apportionment of the family allowances between the appellant and his ex-wife would not have been possible in the light of the wording of Articles 2.2.1 and 2.2.2 of the Staff Rules is contradicted by the finding of fact in paragraph 23 of the judgment under appeal, which is not disputed by the EIB in the present proceedings, that the EIB’s human resources department proposed to the conciliation board, by email of 12 February 2020 and in the light of what had been decided in a case described as ‘parallel’, that some allowances be paid half to the appellant and half to his ex-wife, on condition that the appellant furnish proof of the payments made for his children.
41 In those circumstances, it must be held, as the Advocate General did in point 66 of her Opinion, that the EIB could have adopted a different interpretation of its own Staff Rules. The EIB therefore had discretion, within the meaning of the case-law referred to in paragraph 37 of the present judgment, so that the outcome of the procedure at issue might have led to a different decision if the appellant had been given the opportunity to submit his observations before the letter of 11 October 2018 was adopted.
42 In the light of the foregoing considerations, the first ground of appeal must be upheld.
43 By the second part of his third ground of appeal, the appellant claims that the General Court erred, in paragraphs 100, 101, 107 and 108 of the judgment under appeal, in rejecting the plea of illegality raised in respect of the Staff Rules so far as they concern family allowances. In that regard, the appellant claims that those provisions breach the principles of equal treatment and non-discrimination in that the parents, who both maintain their children, do not enjoy the same derived financial rights, even though those rights are determined according to the effective provision of maintenance for the children. Thus, the fact that one parent has custody of a child does not distinguish him or her, as regards the entitlement to family benefits, from the other parent who does not have custody of that child. In that context, the appellant has demonstrated to the requisite legal standard that he bore significant costs for the maintenance of his children, even though they lived in his ex-wife’s household for most of the time.
44 For its part, the EIB submits that the General Court did not breach the principle of non-discrimination or equal treatment, given that the Staff Rules allow members of staff to demonstrate that they contribute to the maintenance of the children and, subsequently, to obtain family allowances. In addition, those allowances are paid for the benefit of the children and not for that of members of staff. In any event, the position of the parent who has custody of the children is different from that of the parent who does not, so that a difference in treatment of the two parents is fully justified.
45 As a preliminary point, it must be observed that the principle of equal treatment, as laid down in Article 20 of the Charter, is a general principle of EU law, which 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. A difference in treatment is justified if it is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by the legislation in question, and it is proportionate to the aim pursued by the treatment concerned (judgments of 16 December 2008, Huber, C‑524/06, EU:C:2008:724, paragraph 75, and of 4 May 2023, Glavna direktsia Pozharna bezopasnost i zashtita na naselenieto (Night work), C‑529/21 to C‑536/21 and C‑732/21 to C‑738/21, EU:C:2023:374, paragraph 52 and the case-law cited).
46 According to settled case-law, a breach of the principle of equal treatment as a result of different treatment presupposes that the situations concerned are comparable, having regard to all the elements which characterise them. The elements which characterise various situations, and hence their comparability, must in particular be determined and assessed in the light of the subject matter of the provisions in question and of the aim they pursue, whilst account must be taken for that purpose of the principles and objectives of the field to which the measure at issue relates (judgments of 26 September 2013, IBV & Cie, C‑195/12, EU:C:2013:598 paragraphs 51 and 52, and of 14 June 2017, Compass Contract Services, C‑38/16, EU:C:2017:454, paragraph 25 and the case-law cited).
47 In the present case, as the General Court noted in paragraph 102 of the judgment under appeal, the dependent child allowance reflects a social objective justified by the expenses arising from a present and definite need, linked to the existence of the child and to his or her effective maintenance. In that regard, even though allowances such as the dependent child allowance or the education allowance, or even flat-rate allowances for children for travel between the place of employment and the centre of interest, form part of remuneration, they are not intended for the upkeep of the official but for that of his or her children (see, to that effect, judgment of 14 June 1988, Christianos v Court of Justice, 33/87, EU:C:1988:300, paragraph 15).
48 It follows, as the Advocate General noted in point 87 of her Opinion, that, in the light of that objective, the relevant criterion for deciding whether, as regards the payment of dependent child allowances, the parent who has sole custody of the child is in a situation comparable to that of the parent who does not have custody is that of their respective financial contribution to the maintenance of that child.
49 It follows that, contrary to what the General Court held in paragraph 107 of the judgment under appeal, parents who both effectively contribute to the maintenance of their child are in a comparable situation as regards payment of the dependent child allowances, and that payment, as a matter of principle, of those allowances to only one of them constitutes a difference in treatment which must be objectively justified.
50 In that regard, it must be held that the fact that one of the parents does have sole custody of the child, and accordingly that child then lives in that parent’s household, means, in principle, that that parent will effectively contribute to the maintenance of that child.
51 However, that circumstance does not in any way preclude the other parent, even if he or she does not have sole custody of the child, from also contributing effectively to the child’s maintenance, in particular, having regard to that child’s right, enshrined in Article 24(3) of the Charter, to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.
52 In this context, it is important also that the principle of proportionality be observed; that principal, as the General Court recalled in paragraph 106 of the judgment under appeal, requires that measures adopted by the Union institutions should not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question and, where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.
53 In the present case, Articles 2.2.1 and 2.2.2 of the Staff Rules, interpreted as requiring the EIB to pay family allowances to the sole parent who has been granted sole custody of the child, irrespective of the effective contributions made by the parents for the maintenance of that child, goes beyond what is necessary to attain the legitimate objective pursued by the legislation at issue, in so far as that legislation does not allow account to be taken, in the best interests of the child and having regard to his or her right, recalled in paragraph 51 of the present judgment, to maintain on a regular basis a personal relationship and direct contact with both of his or her parents, the existing factual situation relating to the effective contribution of each parent to the maintenance of the child, namely, actual responsibility for all or part of the child’s essential needs, in particular in relation to board and lodging, clothing, education and medical care and costs.
54 In that regard, while the existence of a judicial decision handed down by a national court or tribunal which fixes the amount of the contributions a divorced official is obliged to pay towards the maintenance of a child constitutes a factor which must be taken into consideration by the institution, that factor cannot relieve that institution from exercising itself its discretion in order to determine whether that official effectively contributes to the maintenance of the child.
55 In those circumstances, it must be held that Articles 2.2.1 and 2.2.2 of the Staff Rules, in so far as their interpretation does not permit under any circumstance the inference that a parent who has not been granted sole custody of a child effectively contributes to the maintenance of that child, breach the principles of equal treatment and proportionality.
56 The General Court therefore erred in law in finding, in paragraphs 107 and 108 of the judgment under appeal, that the Staff Rules did not breach those principles.
57 In the light of the foregoing, the second part of the third ground of appeal must also be upheld.
58 Since the first ground of appeal and the second part of the third ground of appeal have been upheld and justify the setting aside of the judgment under appeal, there is no need to examine the other grounds of appeal and parts of grounds put forward in support of the appeal, as they cannot lead to the judgment under appeal being set aside to a greater extent.
59 In accordance with 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 set aside, the Court of Justice may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.
60 In the present case, the Court has the necessary information to give final judgment on the action for annulment of the EIB’s letter of 11 October 2018 and, in so far as necessary, of the letters of 7 January 2019 and 30 July 2020, brought by the appellant before the General Court, and on the claim for compensation made at first instance.
61 It follows from paragraphs 21 to 57 of the present judgment that the first ground of appeal and the second part of the third plea in law in the action at first instance are well founded and that the letters of 11 October 2018, 7 January 2019 and 30 July 2020 must be annulled, on account of an infringement of the right to be heard and the illegality of Articles 2.2.1 and 2.2.2 of the Staff Rules, in so far as their interpretation does not permit under any circumstance the inference that a parent who has not been granted sole custody of a child effectively contributes to the maintenance of that child.
62 In support of his claim for compensation raised at first instance, as set out in paragraph 9 of the present judgment, the appellant claimed that he suffered non-material damage as a result of, first, the abrupt and very significant reduction in his remuneration, which is a source of anxiety, second, the disclosure of his personal data to third parties without his consent, third, the adoption of a position by members of the EIB management in favour of his ex-wife in legal proceedings before the Luxembourg courts and, fourth, the unjustified delay in setting up the conciliation procedure, which may be remedied only by compensation assessed provisionally, ex æquo et bono, at EUR 10000, which he undertakes, as he had done before the court at first instance, to pay to a charity if awarded.
63 So far as concerns the first three parts of that claim for compensation, the General Court, as mentioned in paragraph 10 of the present judgment, rejected them but found, as regards the fourth part, that the appellant’s non-material damage was clear in the case of the EIB’s unjustified delay in setting up the conciliation procedure and ordered that institution to pay the appellant damages assessed ex æquo et bono in the sum of EUR 500.
64 In that regard, first, concerning the alleged non-material damage stemming from the abrupt and very significant reduction in his remuneration, it should be noted that, according to the case-law, the annulment of an illegal act may constitute, in itself, appropriate and, in principle, sufficient compensation for any non-material damage which that act may have caused (judgment of 4 April 2019, OZ v EIB, C‑558/17 P, EU:C:2019:289, paragraph 80), unless the appellant shows that he has suffered non-material damage that can be separated from the illegality on which the annulment is based and cannot be compensated in full by that annulment. However, the appellant does not in any way show that this is the case.
65 Second, as regards the alleged non-material damage resulting from the disclosure of the appellant’s personal data to third parties without his consent or even the adoption of a position by members of the EIB management in favour of his ex-wife in the judicial proceedings before the Luxembourg courts, the appellant has failed to establish the existence of actual and certain damage linked to the alleged infringements, in accordance with the case-law cited in paragraph 148 of the judgment under appeal, with the result that the conditions for the EIB to incur liability, referred to in paragraph 145 of that judgment, are not satisfied.
66 In those circumstances, the appellant’s claim for compensation cannot be upheld.
67 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs.
68 Under Article 138(1) of those rules, 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.
69 Since the appellant applied for costs against the EIB and the latter has been unsuccessful, the EIB must be ordered to pay the costs relating both to the proceedings at first instance in Case T‑573/20 and to the appeal.