1 By his appeal, Mr Michael Heβler seeks to have set aside the judgment of the General Court of the European Union of 20 December 2023, Heßler v Commission (T‑369/22, ‘the judgment under appeal’, EU:T:2023:855), by which the General Court dismissed his action seeking (i) the annulment of the decisions of the European Commission rejecting his requests for tax abatement for a dependent child (‘the tax abatement’); (ii) an order that the Commission grant him, with retroactive effect from 1 August 2021 and for as long as the conditions are satisfied, the tax abatement in question; and (iii) an order that the Commission pay interest on the payments not made.
2 Under Article 72(1) of the Staff Regulations of Officials of the European Union, in its version applicable to the dispute (‘the Staff Regulations’): ‘An official, his spouse, where such spouse is not eligible for benefits of the same nature and of the same level by virtue of any other legal provision or regulations, his children and other dependants within the meaning of Article 2 of Annex VII are insured against sickness up to 80% of the expenditure incurred subject to rules drawn up by agreement between the appointing authorities of the institutions of the Union after consulting the Staff Regulations Committee. …’
3 Article 80(1) of the Staff Regulations provides: ‘Where an official or person entitled to a retirement pension or invalidity allowance dies leaving no spouse entitled to a survivor’s pension, the children dependent on the deceased within the meaning of Article 2 of Annex VII at the time of his death shall be entitled to orphans’ pension …’
4 Article 90 of the Staff Regulations provides: ‘1. Any person to whom these Staff Regulations apply may submit to the appointing authority, a request that it take a decision relating to him. The authority shall notify the person concerned of its reasoned decision within four months from the date on which the request was made. If at the end of that period no reply to the request has been received, this shall be deemed to constitute an implied decision rejecting it, against which a complaint may be lodged in accordance with the following paragraph. 2. Any person to whom these Staff Regulations apply may submit to the appointing authority a complaint against an act affecting him adversely, either where the said authority has taken a decision or where it has failed to adopt a measure prescribed by the Staff Regulations. The complaint must be lodged within three months. … … The authority shall notify the person concerned of its reasoned decision within four months from the date on which the complaint was lodged. If at the end of that period no reply to the complaint has been received, this shall be deemed to constitute an implied decision rejecting it, against which an appeal may be lodged under Article 91.’
5 Under Article 91(1) of the Staff Regulations: ‘The Court of Justice of the European Union shall have jurisdiction in any dispute between the Union and any person to whom these Staff Regulations apply regarding the legality of an act affecting such person adversely within the meaning of Article 90(2). …’
6 The Staff Regulations contain Annex VII, entitled ‘Remuneration and reimbursement of expenses’, Article 2 of which provides: ‘1. An official who has one or more dependent children shall, in accordance with paragraphs 2 and 3 below, receive an allowance … per month for each dependent child. 2. “Dependent child” means the legitimate, natural or adopted child of an official, or of his spouse, who is actually being maintained by the official. The same shall apply to a child for whom an application for adoption has been lodged and the adoption procedure started. Any child whom the official has a responsibility to maintain under a judicial decision based on Member States’ legislation on the protection of minors shall be treated as a dependent child. 3. The allowance shall be granted: (a) automatically for children under [18] years of age; (b) on application, with supporting evidence, by the official for children between [18] and [26] who are receiving educational or vocational training. 4. Any person whom the official has a legal responsibility to maintain and whose maintenance involves heavy expenditure may, exceptionally, be treated as if he were a dependent child by special reasoned decision of the appointing authority, based on supporting documents. 5. Payment of the allowance in respect of a child prevented by serious illness or invalidity from earning a livelihood shall continue throughout the period of that illness or invalidity, irrespective of age. 6. Not more than one dependent child allowance shall be paid in respect of any one dependent child within the meaning of this Article, even where the parents are in the service of two different institutions of the European Union. 7. If custody of the dependent child within the meaning of paragraphs 2 and 3 has been entrusted by law or by an order of court or of the competent administrative authority to another person, the dependent child allowance shall be paid to that person in the name and on behalf of the official.’
7 Under Article 3 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 [Union] (OJ 1968 L 56, p. 8): ‘1. The tax shall be payable each month on salaries, wages and emoluments paid by the [European Union] to each person liable. … 3. The family allowance and social benefits listed below shall be deducted from the basic taxable amount: (a) family allowances: … - dependent child’s allowance, … … 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. …’
8 The background to the dispute is set out in paragraphs 2 to 11 of the judgment under appeal in the following terms: ‘2 The [appellant] is a Commission official. He is the father of two daughters born in 1993 and 1994, respectively. 3 The [appellant] received a dependent child allowance for each daughter until they each reached the age of 26 in 2019 and 2020, respectively. 4 In addition to receiving the dependent child allowance, the [appellant] also obtained the tax abatement provided for in the second subparagraph of Article 3(4) of Regulation [No 260/68], up until 31 July 2021, in respect of each of his two daughters, who were still students on that date. 5 On 28 June 2021, the [appellant] sent his first daughter’s certificate of studies to the Office for the Administration and Payment of Individual Entitlements (PMO), in order to request an extension of the tax abatement in respect of that daughter. 6 By a first email of 29 June 2021, a case manager in the Rights and Obligations unit of the PMO replied to the [appellant] that, “on the basis of [the] judgment … of [12] March 2020[, XB v ECB (T‑484/18, … EU:T:2020:90) (“the judgment in XB v ECB”)], any request for the grant or extension of the tax reduction in the absence of entitlement to the dependent child allowance paid under Article 2 of Annex VII [to] the Staff Regulations [was] suspended”. Further to a query from the [appellant] following that email, the case manager then added, in a second email sent the same day, that “the grant of the tax reduction [could] no longer be granted [because], on the basis of the judgment [in XB v ECB], it [had] been cancelled” (together, “the emails of 29 June 2021”). Each email also contained a note at the end, under the case manager’s signature, stating that the email in question was sent for information purposes only and did not constitute a decision of “the Appointing Authority AIPN/AHCC” that could give rise to a complaint under Article 90 of the Staff Regulations. 7 On 15 July 2021, the [appellant] sent a note to the Head of the Rights and Obligations unit of the PMO, in which he disputed the information contained in the emails of 29 June 2021 and asked the PMO to grant him the tax abatement for his daughter. The [appellant] did not receive an explicit response to that note. 8 On 18 August 2021, the [appellant] requested the PMO to grant him the extension of the tax abatement in respect of his second daughter. 9 By email of 27 August 2021, the case manager in the Rights and Obligations unit of the PMO replied to the [appellant] that “[they regretted] to inform [him] that on the basis of [paragraph 103 of the judgment in XB v ECB], any request or extension of the tax reduction in the absence of entitlement to the dependent child allowance paid under Article 2 of Annex VII [to] the Staff Regulations [could] no longer be accepted, it [had] been cancelled” (“the email of 27 August 2021”). That email, like the emails of 29 June 2021, contained a note, under the case manager’s signature, stating that the email in question was sent for information purposes only and did not constitute a decision of “the Appointing Authority AIPN/AHCC” that could give rise to a complaint under Article 90 of the Staff Regulations. 10 On 24 November 2021, the [appellant] lodged a complaint against the refusal by the PMO, arising from the PMO’s “failure to reply”, to grant the extension of the tax abatement sought for his two daughters (“the complaint”). 11 On 25 March 2022, the Director of the Finance, Legal and Partnerships Directorate in the Commission’s Directorate-General (DG) for Human Resources and Security, acting as the appointing authority, rejected the [appellant]’s complaint (“the decision rejecting the complaint”).’
9 By application lodged with the Registry of the General Court of 24 June 2022, the appellant brought an action seeking (i) the annulment of the decision rejecting the complaint; (ii) an order that the Commission grant him, ‘with retroactive effect from 1 August 2021 and for as long as the conditions are satisfied’, the tax abatement; and (iii) an order that the Commission pay interest on the payments not made.
10 As regards the claim for annulment, the General Court noted, in paragraph 24 of the judgment under appeal, that, in the present case, the appellant’s complaint concerned the Commission’s ‘failure to reply’ to his requests for the grant or extension of a tax abatement. Moreover, according to the General Court, the decision rejecting that complaint did not clearly specify the date of the refusals to grant that abatement and did not state whether the decisions were adopted explicitly, in the emails of 29 June 2021 and the email of 27 August 2021, or were implied. In those circumstances, in order to define the object of that claim, the General Court proceeded, in the first place, in paragraphs 25 to 39 of that judgment, to identify the initial act adversely affecting the appellant against which that claim was to be regarded as being directed, as the case may be, in so far as the claim refers to the decision rejecting the complaint.
11 In that regard, the General Court considered, first of all, in paragraph 35 of the judgment under appeal, that, in the circumstances of the present case, the emails of 29 June 2021 and the email of 27 August 2021 could not be regarded as final decisions of the appointing authority by which that authority had refused to grant the tax abatement to the appellant. According to the General Court, they did not constitute, therefore, initial acts adversely affecting the appellant.
12 The General Court then stated, in paragraph 37 of that judgment, that, in the absence of a reply from the appointing authority within four months of the appellant’s requests set out in his emails of 28 June and 18 August 2021, it was appropriate to find that those requests were rejected by implied decisions of 28 October and 18 December 2021, respectively (‘the implied rejection decisions’). Thus, the General Court found, in paragraph 39 of the judgment under appeal, that the implied rejection decisions constituted the initial acts adversely affecting the appellant.
13 The General Court, lastly, established, in paragraph 40 of that judgment, that the decision rejecting the complaint merely confirmed the implied rejection decisions and did not include any review of the appellant’s situation on the basis of new matters of law or of fact.
14 The General Court therefore concluded, in paragraph 41 of the judgment under appeal, that, under those circumstances, the claim for annulment, even if formally directed solely against the decision rejecting the complaint, had the effect of bringing before it the implied rejection decisions, the legality of which had to be examined by having regard to the statement of reasons set out in the decision rejecting the complaint.
15 In the second place, the General Court, in paragraphs 42 to 45 of that judgment, ruled on whether in the present case the time limits for the pre-litigation procedure had been observed.
16 In that regard, the General Court stated that the three-month time limit within which to lodge a complaint against the first implied rejection decision, of 28 October 2021, had expired on 28 January 2022, pursuant to Article 90(2) of the Staff Regulations. Since the appellant had lodged his complaint against the Commission’s ‘refusals’ on 24 November 2021, the time limit for lodging a complaint laid down in that provision had been duly observed as regards that first decision.
17 According to the General Court, however, the appellant lodged a complaint against the second implied rejection decision before the date of that decision, namely 18 December 2021. Furthermore, the General Court stated that, after that date, the appellant did not lodge any complaint against that implied decision, to which the appointing authority allegedly replied in the decision rejecting the complaint. Therefore, the General Court held that the pre-litigation procedure concerning the implied decision had not been conducted properly.
18 The General Court accordingly concluded, in paragraph 45 of the judgment under appeal, that the claim for annulment must be found to be inadmissible in so far as it concerned, in essence, the implied rejection decision of 18 December 2021.
19 In the third place, the General Court examined, in paragraphs 46 to 96 of the judgment under appeal, the merits of the two pleas in law put forward by the appellant, alleging (i) the absence of an explicit decision notifying him of his right to lodge a complaint and the failure to observe the obligation to state reasons, and (ii) infringement of his right to receive remuneration, laid down in Article 62 of the Staff Regulations. It rejected those two pleas as in part inadmissible and in part unfounded.
20 In the last place, the General Court rejected, in paragraphs 97 to 105 of the judgment under appeal, the second and third heads of claim before it, which sought, in essence, an order that the Commission grant to the appellant the tax abatement as well as an order that the Commission pay interest on the payments not made.
21 By the judgment under appeal, the General Court dismissed the action in its entirety.
22 The appellant claims that the Court of Justice should: - set aside the judgment under appeal; - annul the decision rejecting the complaint; - order the Commission to grant, with retroactive effect from 1 August 2021 and for as long as the conditions are satisfied, the tax abatement pursuant to the second subparagraph of Article 3(4) of Regulation No 260/68, as set out in Conclusions No 222/04 (SEC(2004)411) of the Heads of Administration of 7 April 2004 (‘Conclusions No 222/04 of the Heads of Administration’); - order interest to be paid on the payments not made pursuant to the Financial Regulation in its version applicable at the date of the requests for the grant of the tax abatement formulated by the appellant; and - order the Commission to pay the costs.
23 The Commission contends that the Court should: - dismiss the appeal; and - order the appellant to pay the costs.
24 In support of his appeal, the appellant relies on three grounds of appeal, alleging (i) infringement of the concept of ‘act adversely affecting’ him within the meaning of Article 90 of the Staff Regulations; (ii) infringement of the obligation to state reasons and of his right to be heard, guaranteed in Article 41(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’); and (iii) infringement of Article 3 of Regulation No 260/68, read in conjunction with Article 2 of Annex VII to the Staff Regulations, and failure to have regard to the binding nature of the Commission’s internal acts.
25 By his first ground of appeal, the appellant submits that the General Court wrongly held, in paragraphs 44 and 45 of the judgment under appeal, that his claim for annulment was inadmissible in so far as it concerned his second daughter. In his view, the PMO’s explicit refusal, in the email of 27 August 2021, to grant any request for tax abatement in situations comparable to his own constitutes a decision adversely affecting him. After that email, by which he was de facto denied that abatement, which he had hitherto received for the maintenance of his two children, the appellant had no reason to expect a tacit refusal from the appointing authority. In addition, he claims that that email was to be understood as meaning that he was not to receive a positive decision from the appointing authority on his request for the grant of that abatement either.
26 Accordingly, the appellant maintains that he was not required to wait until the expiry of the four-month period laid down in Article 90(1) of the Staff Regulations, at the end of which the absence of reply from the administration constitutes an implied rejection. He argues that the receipt of the email of 27 August 2021 triggered the three-month limit for lodging a complaint, laid down in Article 90(2) of the Staff Regulations. Consequently, by lodging his complaint on 24 November 2021, he complied with the time limits for the pre-litigation procedure.
27 According to the Commission, the appellant does not challenge paragraphs 33, 37 and 39 of the judgment under appeal, which relate to the determination of the act adversely affecting him in the present case. In so far as that determination is a preliminary issue essential to the question whether the pre-litigation procedure was conducted properly, the first ground of appeal should be rejected as ineffective. In any event, the Commission contends that the appellant’s arguments are unfounded.
28 It should be noted at the outset that although, by his first ground of appeal, the appellant challenges paragraphs 44 and 45 of the judgment under appeal, in which his claim for annulment of the decision not to extend the tax abatement which he was receiving in respect of his second daughter was declared inadmissible, that declaration was based on the General Court’s findings, set out in paragraphs 33 to 39 of the judgment under appeal, that the email of 27 August 2021 did not constitute a decision of the appointing authority denying the appellant the tax abatement, with the result that the initial act adversely affecting him was to be found in an implied rejection decision of 18 December 2021. It is clear from the arguments which he put forward in support of the first ground of appeal, as summarised in paragraphs 25 and 26 above, that the appellant is challenging exclusively those findings of the General Court relating to the determination of the initial act adversely affecting him, on which the General Court based its finding of inadmissibility.
29 In those circumstances, the first ground of appeal cannot be rejected as ineffective. It is therefore necessary to examine its merits.
30 In that regard, it should recalled that, under Article 90(2) of the Staff Regulations, any person to whom the Staff Regulations apply may submit to the appointing authority a complaint against an act affecting him or her adversely. Article 91(1) of the Staff Regulations states that the Court has jurisdiction in any dispute between the European Union and any such person concerning the legality of an act adversely affecting that person within the meaning of that Article 90(2). Those provisions are applicable by analogy to actions brought by other members of staff under Article 117 of the Conditions of Employment of Other Servants of the European Union (judgment of 12 December 2024, DD v FRA, C‑130/22 P, EU:C:2024:1018, paragraph 71 and the case-law cited).
31 As the General Court noted in paragraph 29 of the judgment under appeal, according to the case-law of the Court of Justice, only acts or measures which produce binding legal effects capable of directly and immediately affecting the appellant’s interests by bringing about a distinct change in his or her legal position are acts adversely affecting him or her within the meaning of Article 90(2) of the Staff Regulations (judgment of 12 December 2024, DD v FRA, C‑130/22 P, EU:C:2024:1018, paragraph 72 and the case-law cited).
32 Moreover, the Court has already held that the concept of an ‘act affecting [an official] adversely’, within the meaning of Article 90(2) of the Staff Regulations, must be interpreted broadly and must be understood as any act capable of directly affecting a particular legal position (judgment of 12 December 2024, DD v FRA, C‑130/22 P, EU:C:2024:1018, paragraph 74 and the case-law cited).
33 As recalled by the General Court in paragraph 30 of the judgment under appeal, in order to determine whether an act produces such effects, it is necessary to examine the substance of that act and to assess its effects on the basis of objective criteria, such as the content of that act, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the act (judgment of 12 December 2024, DD v FRA, C‑130/22 P, EU:C:2024:1018, paragraph 73 and the case-law cited).
34 Thus, the ability of an act to directly affect the legal position of a natural or legal person cannot be assessed solely by reference to the fact that that act takes the form of an email, since that would amount to giving precedence to the form of the act which is the subject of the action over the actual substance of that act (judgment of 15 December 2022, Picard v Commission, C‑366/21 P, EU:C:2022:984, paragraph 97 and the case-law cited).
35 It is therefore necessary, in accordance with the case-law referred to in paragraph 33 above, to examine whether, having regard to the content of the email of 27 August 2021, its context and the powers of the institution from which it emanated, the General Court was entitled to hold, in paragraphs 33 and 35 of the judgment under appeal, that that email could not be classified as an ‘act adversely affecting’ an official within the meaning of Article 90(2) of the Staff Regulations.
36 In that regard, it should be borne in mind that, as stated in paragraph 8 of the judgment under appeal, on 18 August 2021, the appellant requested the competent PMO service to extend the tax abatement for his second daughter. Paragraph 9 of that judgment states that, by email of 27 August 2021, the case manager in the Rights and Obligations unit of the PMO, replied to the appellant that ‘[they regretted] to inform [him] that on the basis of [paragraph 103 of the judgment in XB v ECB], any request or extension of the tax reduction in the absence of entitlement to the dependent child allowance paid under Article 2 of Annex VII [to] the Staff Regulations [could] no longer be accepted, it [had] been cancelled’. In addition, that email, like the emails of 29 June 2021, contained a note, under the case manager’s signature, stating that the email in question was sent for information purposes only and did not constitute a decision of ‘the Appointing Authority AIPN/AHCC’ that could give rise to a complaint under Article 90 of the Staff Regulations.
37 Although the email of 27 August 2021 contains elements indicative of the competent PMO service’s wish to classify it as being purely by way of information, it also contains elements suggesting that the appellant would not receive the tax abatement. As is apparent from the preceding paragraph, the case manager in the Rights and Obligations unit of the PMO stated, in essence, that no request seeking to obtain or extend the tax abatement would be accepted any longer in the absence of entitlement to the dependent child allowance, in accordance with the judgment in XB v ECB. In addition, as regards the context in which that email was sent to the appellant, it must be pointed out that the email reiterated the position which the administration had expressed, to that effect, in the emails of 29 June 2021, in response to the appellant’s request concerning his entitlement to the tax abatement in respect of his first daughter.
38 Thus, by stating in the email of 27 August 2021 that ‘[no] request’ seeking, inter alia, the extension of the tax abatement could be accepted any longer, the PMO’s refusal to grant such requests necessarily included the refusal to grant the appellant’s request. Accordingly, that email did not merely provide information to the appellant, but indicated to him that, on the basis of paragraph 103 of the judgment in XB v ECB, he would not be granted the extension of the tax abatement.
39 Furthermore, as the General Court noted in paragraph 32 of the judgment under appeal, it follows from paragraphs 100 to 105 of the judgment of 15 December 2022, Picard v Commission (C‑366/21 P, EU:C:2022:984), that a note, in the PMO emails, such as the email of 27 August 2021, stating that the PMO’s reply is simply by way of information, and not a decision of ‘the Appointing Authority AIPN/AHCC’ that could give rise to a complaint under Article 90 of the Staff Regulations, does not preclude those emails from being classified as ‘acts adversely affecting’ an official.
40 It follows from the foregoing considerations that, since the reply contained in the email of 27 August 2021 was capable of directly and immediately affecting the appellant’s interests by bringing about a distinct change in his legal position, as regards the determination of the amount of tax due on his monthly remuneration, that reply should have been classified by the General Court as an ‘act adversely affecting’ him within the meaning of Article 90(2) of the Staff Regulations.
41 It also follows that the three-month period available to the appellant to lodge a complaint, in accordance with Article 90(2) of the Staff Regulations, began to run from the date of notification of the decision, set out in the email of 27 August 2021 and by which the PMO refused to grant the extension of the tax abatement that the appellant had requested for his second daughter. Therefore, by lodging his complaint on 24 November 2021, the appellant complied with the three-month time limit laid down in Article 90(2).
42 It follows that the General Court erred in law in finding, in paragraphs 33, 35, 37 and 39 of the judgment under appeal, in essence, that the email of 27 August 2021 did not constitute an act adversely affecting him and that the implied rejection decision of 18 December 2021 constituted the initial act adversely affecting the appellant, from which it wrongly inferred, in paragraph 45 of that judgment, that the claim for annulment was inadmissible in so far as it concerned that implied decision.
43 The first ground of appeal must therefore be upheld.
44 The error of law made by the General Court, referred to in paragraph 42 above, concerns the object and admissibility of the claim for annulment which, according to the General Court, was brought by the appellant against the implied rejection decision of 18 December 2021.
45 However, the second and third grounds of appeal relate to the dismissal, on the merits, of the action brought by the appellant before the General Court in so far as that action was considered to have been brought against the implied rejection decision of 28 October 2021. These grounds of appeal must therefore be examined.
46 The second ground of appeal is divided into two limbs.
47 By the first limb of the second ground of appeal, directed against paragraph 50 of the judgment under appeal, the appellant submits that the General Court failed to comply with the obligation incumbent on the administration, in accordance with Article 41(2)(c) of the Charter, to give reasons for its decisions.
48 According to the appellant, it follows from the combined provisions of Article 90 of the Staff Regulations and Article 41 of the Charter that the Commission was under an obligation to adopt a decision concerning him. In his view, the administration’s failure to act constitutes a breach of the principle of good administration on which he may rely.
49 According to the Commission, the first limb of the second ground of appeal must be rejected as unfounded.
50 It must be recalled that, according to well-established case-law, in the context of an appeal, objections directed against grounds of a judgment of the General Court included for the sake of completeness cannot lead to that judgment being set aside and must therefore be dismissed as being ineffective (judgment of 22 June 2023, DI v ECB, C‑513/21 P, EU:C:2023:500, paragraph 47 and the case-law cited).
51 The contested ground of the judgment under appeal, set out in paragraph 50 of that judgment, is included purely for the sake of completeness. The appellant’s arguments alleging the Commission’s failure to adopt an explicit decision of refusal informing him of his right to lodge a complaint were rejected, in paragraph 49 of the judgment under appeal, as being ineffective, before the General Court proceeded to reject those arguments, for the sake of completeness, in particular in paragraph 50, as unfounded, ‘in any event’.
52 Accordingly, the first limb of the second ground of appeal must be rejected as ineffective.
53 By the second limb of the second ground of appeal, the appellant submits that the Commission infringed his right to be heard, enshrined in Article 41(2)(a) of the Charter, in so far as that institution completely ignored, even at the stage of the complaint procedure, the note, referred to in paragraph 7 of the judgment under appeal, which he had sent on 15 July 2021 to the Head of the Rights and Obligations unit of the PMO and to which he had received no reply.
54 According to the Commission, the second limb of the second ground of appeal should be rejected as inadmissible and, in any event, as unfounded.
55 It must be borne in mind that arguments in an appeal which criticise not the judgment delivered by the General Court following a claim for annulment of a decision, but the decision the annulment of which was sought before the General Court, are inadmissible (judgment of 27 April 2023, PL v Commission, C‑537/21 P, EU:C:2023:363, paragraph 108 and the case-law cited).
56 By his arguments in support of the second limb of the second ground of appeal, the appellant, instead of criticising the grounds of the judgment under appeal, complains that the Commission infringed his right to be heard, enshrined in Article 41(2)(a) of the Charter, while relying on the note referred to in paragraph 7 of that judgment.
57 Accordingly, in accordance with the case-law referred to in paragraph 55 above, that second limb of the second ground of appeal must be rejected as inadmissible.
58 Consequently, the second ground of appeal must be rejected as in part ineffective and in part inadmissible.
59 The third ground of appeal is divided into four limbs.
60 By the first to third limbs of the third ground of appeal, which it is appropriate to examine together, the appellant submits, in the first place, that the General Court, in holding in paragraph 93 of the judgment under appeal that the tax abatement provided for in Article 3(4) of Regulation No 260/68 supplemented the dependent child allowance and that only actual payment of that allowance by an EU institution may give entitlement to that abatement, adopted an incorrect interpretation of Article 3 and misconstrued the true legal nature of that abatement. According to the appellant, there is no link between the grant of the tax abatement and entitlement to the dependent child allowance.
61 The appellant submits that it follows from the wording of Article 3 of Regulation No 260/68 and from the historical context of that article that the tax abatement is not to be granted in addition to the dependent child allowance, but as a supplement to the allowance for occupational expenses, referred to in the first subparagraph of Article 3(4) of that regulation, with the result that the grant of that abatement is not conditional on receipt of the dependent child allowance.
62 According to the appellant, the General Court’s erroneous findings concerning the interpretation of Article 3(4) of Regulation No 260/68 result, inter alia, from an application of the General Court’s case-law, in particular the judgment in XB v ECB referred to in paragraphs 81 and 82 of the judgment under appeal, which is itself vitiated by an error of law.
63 In the second place, the appellant argues that the General Court’s findings, in paragraphs 74 and 93 of the judgment under appeal, that all the criteria laid down in Article 2 of Annex VII to the Staff Regulations must be met, including the criterion relating to the age limit for the child concerned laid down in Article 2(3), in order for a child to be recognised as a dependent child and give rise to entitlement to payment of the tax abatement, are incorrect.
64 In that regard, the appellant observes that it follows from the judgment of 14 December 1990, Brems v Council (T‑75/89, EU:T:1990:88), referred to in paragraph 74 of the judgment under appeal, that the definition of the concept of ‘dependent child’ must be assessed solely in the light of Article 2(2) of Annex VII to the Staff Regulations. Such an interpretation is supported by Conclusions No 222/04 of the Heads of Administration, which refer only to paragraph 2 of Article 2 and not to the other provisions of Article 2 of Annex VII to the Staff Regulations.
65 According to the appellant, it also follows that the General Court’s finding, set out in paragraph 77 of the judgment under appeal, that the appellant should have argued that his daughters, pursuant to Article 2(4) of Annex VII to the Staff Regulations, were to be treated as if they were dependent children by special decision of the appointing authority is vitiated by an error of law. Such a finding would run counter to the administrative simplification sought by the adoption of Conclusions No 222/04 of the Heads of Administration.
66 Furthermore, the appellant argues that, first, it follows from the previous practice of the Commission over approximately 60 years that it was not necessary for the appellant to take action, under Article 2(4) of Annex VII to the Staff Regulations, given the conditions laid down in those conclusions of the heads of administration. Second, the Commission itself informed the appellant that he was no longer entitled to a dependent child allowance for his two children, but that he could receive a tax abatement if he so requested. Thus, the General Court should have granted him, in any event, that abatement in accordance with customary rules and the principle of the protection of legitimate expectations.
67 In the third and last place, the appellant takes the view that the General Court, in paragraph 100 of the judgment under appeal, misconstrued the true legal nature of a tax abatement. Thus, the appellant did not request that he should ‘continue to receive tax relief’ or, contrary to what is stated in paragraph 100, ‘reimbursement of the sums which, in his view, should have been deducted from the basic taxable amount of his remuneration’.
68 In that regard, the appellant submits that tax relief cannot be paid, but leads to a reduction in taxable income. It is only subsequently that it reduces the amount of tax by reference to the applicable tax rate. Thus, the appellant requested a tax refund on the basis of a recalculation of the tax due, after deduction of the applicable relief.
69 Moreover, the appellant argues that, when he would no longer receive any remuneration, for example, after his death, he would no longer pay any tax and, therefore, no longer receive any tax relief either. Thus, contrary to what is stated in paragraphs 72 and 73 of the judgment under appeal, there is no risk that the appellant’s children will become a burden on the EU budget after his death. The General Court’s findings in paragraphs 72 and 73 are therefore irrelevant.
70 Lastly, the appellant points out that he is not claiming any dependent child allowance, since it is common ground that he is not entitled to it. In addition, the burden of maintaining his children falls entirely on him, and not on the EU budget. However, it is inconceivable that he should pay, instead of the public authorities and from his income on which tax has already been paid, benefits such as, for example, housing allowance, heating assistance, social assistance or even education aid, which should normally be financed from tax revenue, without receiving, in return, a tax relief.
71 The Commission contends that the first to third limbs of the third ground of appeal should be rejected as unfounded.
72 It should be borne in mind that, in accordance with Article 3(1) of Regulation No 260/68, tax for the benefit of the European Union is payable each month on salaries, wages and emoluments of any kind paid by the European Union to each person liable.
73 Article 3(3) of that regulation lists the family allowance and social benefits to be deducted from the basic taxable amount. Those benefits and allowances include the dependent child allowance. Consequently, as the General Court held in paragraph 67 of the judgment under appeal, it follows from the wording of Article 3(3) that, in order to calculate the amount of tax payable by an official, such as the appellant, on his monthly remuneration, that allowance, inter alia, must be deducted from the basic taxable amount.
74 In addition, under the first subparagraph of Article 3(4) of that regulation, an abatement of 10% for occupational and personal expenses is to be made from the amount obtained by applying the preceding provisions of that article.
75 Lastly, in accordance with the second subparagraph of Article 3(4) of Regulation No 260/68, ‘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 …’.
76 It is apparent from the wording of the second subparagraph of Article 3(4) that, as the General Court stated in paragraph 69 of the judgment under appeal, in order to receive the additional tax abatement provided for by that provision, the person liable must have one or more dependent children, or one or more persons treated as a dependent child within the meaning of Article 2(4) of Annex VII to the Staff Regulations.
77 However, as the Advocate General observed, in essence, in point 26 of her Opinion, the second subparagraph of Article 3(4) of Regulation No 260/68 does not make entitlement to the tax abatement conditional upon the dependent child allowance actually being paid to the person concerned on the basis of Article 2(3) of that annex, contrary to what the General Court held in paragraphs 81 and 93 of the judgment under appeal.
78 However, although entitlement to the tax abatement does not depend on actual payment of the dependent child allowance, it cannot be maintained, as the appellant does, that there is no link between that abatement and that allowance.
79 First, as is apparent from the case-law of the General Court, the tax abatement and the dependent child allowance both pursue an objective of a social nature and the provision thereof is justified by the expenses arising from a present and definite need, connected with the existence of the child and the cost of actually maintaining him or her (see judgments of 28 November 1991, Schwedler v Parliament, C‑132/90 P, EU:C:1991:452, paragraphs 18 and 26; of 7 May 1992, Council v Brems, C‑70/91 P, EU:C:1992:201, paragraph 9 and the case-law cited; and of 30 November 2023, MG v EIB, C‑173/22 P, EU:C:2023:932, paragraph 47).
80 Second, as has been pointed out in paragraph 76 above, entitlement to the tax abatement and to the dependent child allowance depends on the existence of a ‘dependent child’ or a person treated as such a child, as defined in Article 2 of Annex VII to the Staff Regulations.
81 Article 2(2) of Annex VII to the Staff Regulations defines the concept of a ‘dependent child’ as a ‘legitimate, natural or adopted child of an official, or of his spouse, who is actually being maintained by the official’.
82 As the General Court observed, in essence, in paragraph 71 of the judgment under appeal, although that provision does not refer to any age limit for defining the concept of ‘dependent child’, it follows from a combined reading of the provisions of Article 2 of that annex as a whole that that concept must not be understood within the meaning of Article 2(2) alone, but more broadly.
83 In that regard, it should be borne in mind that, under Article 2(1) of Annex VII to the Staff Regulations, ‘an official who has one or more dependent children shall, in accordance with paragraphs 2 and 3 below, receive an allowance … per month for each dependent child’. It follows from those terms that only persons satisfying the conditions laid down in those two paragraphs may be regarded as being ‘dependent children’ for the purposes of applying Article 2.
84 That interpretation is supported by Article 2(6) of that annex, which expressly refers to ‘a dependent child within the meaning of this Article’ and by Article 2(7), which refers to ‘the dependent child within the meaning of paragraphs 2 and 3’.
85 In addition, Article 2(4) of Annex VII provides that ‘any person whom the official has a legal responsibility to maintain and whose maintenance involves heavy expenditure’ may exceptionally be treated as if that person were a dependent child. The Court has already held that the object of that provision is precisely to ensure that a person who does not satisfy the conditions laid down in paragraph 3 of that article, in that that person is neither the minor child of the official nor that official’s adult child who is receiving educational or vocational training, may be treated as a dependent child where the official has in fact to maintain that person. In particular, it stated that the exceptional nature of that treatment does not imply that the child of the official must necessarily be excluded from the scope of Article 2(4) of that annex (see, to that effect, judgment of 7 May 1992, Council v Brems, C‑70/91 P, EU:C:1992:201, paragraphs 7 and 10). The case-law resulting from that judgment precludes any child being maintained by the official from being regarded as his or her dependent child, irrespective of the conditions laid down in Article 2(3) of that annex.
86 Furthermore, it should be noted that other provisions of the Staff Regulations, namely, in particular, Article 72 thereof, relating to sickness insurance, and Article 80 thereof, relating to the orphan’s pension, refer, as regards the definition of the concept of ‘dependent child’, to Article 2 of Annex VII to the Staff Regulations as a whole, and not only to paragraph 2 thereof. Thus, for reasons, in particular, of consistency of the Staff Regulations, it is necessary to refer to the provisions of Article 2 as a whole in order to define that concept.
87 Thus, the Court has already held, in essence, that the concept of ‘dependent child’ has to be interpreted by taking in to account Article 2 of Annex VII to the Staff Regulations as a whole (judgment of 20 November 1980, Gerin v Commission, 806/79, EU:C:1980:264, paragraph 15).
88 It follows from the foregoing that the General Court did not err in law in holding, in paragraphs 74, 75 and 93 of the judgment under appeal, in essence, that the concept of ‘dependent child’, within the meaning of Article 2 of Annex VII to the Staff Regulations, must be interpreted by taking into account the age limits laid down in paragraph 3 of that article.
89 Since, as has been pointed out in paragraph 80 above, entitlement to the tax abatement depends on the existence of a ‘dependent child’ within the meaning of Article 2 of Annex VII to the Staff Regulations, it must be held that the General Court did not err in law in holding, in paragraph 80 of the judgment under appeal, that Article 3(4) of Regulation No 260/68 applied only in situations where the person concerned also satisfies the conditions for entitlement to the dependent child allowance under Article 2.
90 The foregoing finding follows from the very wording of the second subparagraph of Article 3(4) of Regulation No 260/68 and Article 2 of Annex VII to the Staff Regulations, as interpreted by the Court of Justice. That finding cannot be invalidated by the appellant’s arguments based on case-law of the General Court and on Conclusions No 222/04 of the Heads of Administration, summarised in paragraphs 64 and 65 above, or by his arguments based on the alleged legal nature of a tax abatement set out in paragraphs 67 to 70 above.
91 As regards the appellant’s argument, referred to in paragraph 66 above, that the General Court should have granted him, in any event, the tax abatement in accordance with customary rules and the principle of the protection of legitimate expectations, it must be borne in mind that, in accordance with Article 58 of the Statute of the Court of Justice of the European Union, the grounds of appeal must be based on arguments made in the proceedings before the General Court. Moreover, according to Article 170(1) of the Rules of Procedure of the Court of Justice, the subject matter of the proceedings before the General Court may not be changed in the appeal. The jurisdiction of the Court of Justice in an appeal is confined to a review of the findings of law on the pleas and arguments debated before the General Court (judgment of 19 September 2024, Coppo Gavazzi and Others v Parliament, C‑725/20 P, EU:C:2024:766, paragraph 149 and the case-law cited).
92 Since the argument referred to in the preceding paragraph of the present judgment was not raised by the appellant before the General Court, it must be rejected as inadmissible.
93 In the light of all the foregoing considerations, the first to third limbs of the third ground of appeal must be discarded as in part inadmissible and in part unfounded.
94 By the fourth limb of the third ground of appeal, the appellant submits that the General Court erred, in paragraph 94 of the judgment under appeal, in holding that Conclusions No 222/04 of the Heads of Administration, on the basis of which he should have received the tax abatement, were not applicable in the present case.
95 According to the appellant, Commission Internal Directive No 36‑2004 of 24 May 2004 (‘the internal directive’), which transposes Conclusions No 222/04 of the Heads of Administration, is not an internal decision of a general nature, taken on the basis of the Staff Regulations, but a decision adopted on the basis of Article 10 of Regulation No 260/68 in order to guarantee uniform interpretation of that regulation.
96 In addition, the appellant submits that those conclusions of the heads of administration constitute a lex specialis, with the result that the conditions which they lay down, in particular that relating to the age limit for dependent children, are applicable.
97 According to the Commission, the fourth limb of the third ground of appeal must be rejected as unfounded.
98 It should be noted, as the General Court found in paragraph 90 of the judgment under appeal, that the internal directive transposes Conclusions No 222/04 of the Heads of Administration. Those conclusions provide that, for dependent children over 26 years of age, the tax abatement under Article 3(4) of Regulation No 260/68 is to be approved only if the child has commenced training at the normal age for that child before reaching the age of 26 and if he or she is regularly pursuing that training. It is also provided that, in any event, the tax abatement ends with effect from the date on which the child receives an income exceeding 40% of the salary of an official of grade 1, step 1, or when the child reaches the age of 30.
99 According to the case-law of the Court, internal acts adopted by an EU institution, such as an internal directive of the Commission, must be regarded as rules of conduct, indicating the practice to be followed, which the administration imposes on itself and from which it may not depart without specifying the reasons which have led it to do so (see judgment of 1 December 1983, Blomefield v Commission, 190/82, EU:C:1983:358, paragraph 20 and the case-law cited).
100 However, such internal acts may not in any circumstance derogate from binding and higher-ranking acts, such as, in the present case, the provisions of the Staff Regulations or of Regulation No 260/68 (see, to that effect, judgment of 1 December 1983, Blomefield v Commission, 190/82, EU:C:1983:358, paragraph 21).
101 It follows that the General Court was fully entitled, in paragraph 92 of the judgment under appeal, to recall that an internal directive adopted by an EU institution is a norm of lower rank than the Staff Regulations and, more generally, than a regulation, before holding that such an internal directive cannot lawfully lay down rules which derogate from the provisions of the Staff Regulations or of a regulation.
102 It follows from the findings relating to the first to third limbs of the third ground of appeal that, without prejudice to the fact that certain persons may exceptionally be treated as if they were dependent children pursuant to Article 2(4) of Annex VII to the Staff Regulations, the tax abatement provided for in Article 3(4) of Regulation No 260/68 cannot apply to an official’s children who are over 26 years of age, in so far as those children exceed the age limit laid down in Article 2(3) of that annex, above which a person can no longer be regarded as a ‘dependent child’ within the meaning of Article 2.
103 It follows from the foregoing that the General Court did not err in law by holding, in paragraph 94 of the judgment under appeal, that the internal directive cannot apply in the present case, since such an application would have been contrary to Article 3(4) of Regulation No 260/68, read in conjunction with Article 2 of Annex VII to the Staff Regulations, it being specified that the exceptional treatment as dependent children under Article 2(4) is not at issue in the present case.
104 As regards the argument referred to in paragraph 95 above, it should be noted, as the Advocate General observed in point 55 of her Opinion, that the file before the Court does not make it possible to identify the legal basis on which the Commission adopted the internal directive. That said, whatever the basis on which that internal directive was adopted by that institution, in accordance with the case-law referred to in paragraph 100 above, such an internal act cannot, in any event, apply if it is contrary to a binding and higher-ranking EU act.
105 In the light of all the foregoing considerations, the fourth limb of the third ground of appeal must be rejected as unfounded.
106 Accordingly, the third ground of appeal must be rejected as in part inadmissible and in part unfounded.
107 As is apparent from paragraph 42 above, the General Court erred in law in finding, in paragraph 45 of the judgment under appeal, that the appellant’s claim for annulment was inadmissible in so far as it concerned the implied rejection decision of 18 December 2021. It follows that the judgment under appeal must be set aside to that extent. Since the second and third grounds of appeal must be rejected, the appeal must be dismissed as to the remainder.
108 Under the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if an appeal is well founded and the Court of Justice quashes the decision of the General Court, 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.
109 In the present case, in view of the fact that the judgment under appeal has been set aside in part, the action before the General Court continues to exist only in so far as it seeks annulment of the refusal to grant the request for the appellant’s tax abatement of 18 August 2021.
110 Before the General Court, the appellant raised two pleas in law.
111 The first plea alleges the absence of an explicit decision informing him of his right to lodge a complaint, and a failure to state reasons. Thus, according to the appellant, the ‘decisions’ contained in the emails of 29 June 2021 and in the email of 27 August 2021 should have been accompanied by information on his right to lodge a complaint and by a statement of reasons. The second plea alleges infringement by the Commission of his right to receive remuneration. Since those two pleas were the subject of an exchange of arguments before the General Court, the state of the proceedings permits the Court of Justice to give final judgment.
112 As regards the second plea, which it is appropriate to examine in the first place, it is apparent from the findings relating to the third ground of appeal, set out in paragraphs 72 to 93 and 98 to 107 above, that the Commission was entitled to refuse to grant the tax abatement.
113 It follows from those findings that, without prejudice to the fact that certain persons may exceptionally be treated as if they were dependent children under Article 2(4) of Annex VII to the Staff Regulations, the tax abatement provided for in Article 3(4) of Regulation No 260/68 cannot apply to an official’s children who are over 26 years of age, in so far as those children exceed the age limit laid down in Article 2(3) of that annex, above which a person can no longer be regarded as a ‘dependent child’ within the meaning of Article 2.
114 In addition, according to those findings, the internal directive, which transposes Conclusions No 222/04 of the Heads of the Administration, in that it provides that a tax abatement may be granted for dependent children that may not meet the criteria of the Staff Regulations to be considered to be dependent children and thus create an entitlement to a dependent child allowance, cannot apply to the appellant, since such an application would be contrary to Article 3(4) of Regulation No 260/68, read in conjunction with Article 2 of Annex VII to the Staff Regulations, it being specified that the fact that certain persons may exceptionally be treated as if they were dependent children as provided for in Article 2(4) is not at issue in the present case.
115 It follows that the second ground of appeal is unfounded.
116 As regards the first plea, which it is appropriate to examine in the second place, it is apparent from paragraphs 30 to 42 above that the email of 27 August 2021 must be classified as an ‘act adversely affecting’ the appellant, within the meaning of Article 90(2) of the Staff Regulations and, accordingly, as a ‘decision’ against which the appellant was entitled to lodge, in accordance with that provision, a complaint within three months of notification thereof.
117 While it is true, as the appellant submits, that the Commission should have classified the email of 27 August 2021 as a ‘decision’ and should have informed him of his right to lodge a complaint, the fact nevertheless remains that the appellant was able, in the circumstances of the present case, to lodge a complaint on 24 November 2021 against, inter alia, that decision, by challenging the PMO’s refusal to grant him the additional tax abatement for his two daughters. Thus the appellant was not in any case deprived of the safeguard represented by the right to lodge a complaint against the acts of the administration adversely affecting him.
118 As regards the argument that the PMO failed to provide a sufficient statement of reasons for the refusal to grant the tax abatement, it must be borne in mind that the statement of reasons required under Article 296 TFEU, as well as in the second paragraph of Article 25 of the Staff Regulations, for measures adopted by EU institutions must be appropriate to the measure at issue and must disclose clearly and unequivocally the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to review its legality. The requirements to be satisfied by the statement of reasons depend on all the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgment of 11 June 2020, Commission v Di Bernardo, C‑l14/19 P, EU:C:2020:457, paragraph 29 and the case- law cited).
119 In the present case, the email of 27 August 2021 set out in unambiguous terms the reasons why the appellant was not entitled to the tax abatement. The PMO, in that regard, relied on the judgment in XB v ECB, while stating that, in accordance with that judgment, the grant or extension of a tax abatement could no longer be accepted in the absence of entitlement to a dependent child allowance paid under Article 2 of Annex VII to the Staff Regulations. In addition, in the decision rejecting the complaint, the Commission stated in detail the reasons justifying the refusal to grant the tax abatement requested by the appellant.
120 The appellant was thus able to ascertain the reasons for the refusal to grant the tax abatement.
121 Consequently, the first plea in law in the action before the General Court must be rejected.
122 It follows that the claim against the refusal to grant the request of 18 August 2021 for the tax abatement must be rejected.
123 Under Article 184(2) of its Rules of Procedure, where the appeal is unfounded or 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 the costs.
124 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.
125 Under Article 138(2) of those rules, which is also applicable to appeal proceedings pursuant to Article 184(1) thereof, where there is more than one unsuccessful party the Court is to decide how the costs are to be shared. Similarly, under Article 138(3) of those rules, which is applicable to appeal proceedings pursuant to that Article 184(1), where each party succeeds on some and fails on other heads, the parties are to bear their own costs.
126 Since the appellant and the Commission each claimed that the other should be ordered to pay the costs and since they have each been unsuccessful in one or more of their pleas, they must be ordered to each bear their own costs.