1 By his appeal, Mr Colin Brown, official of the European Commission, claims that the Court of Justice should set aside the judgment of the General Court of the European Union of 5 October 2020, Brown v Commission (T‑18/19, ‘the judgment under appeal, EU:T:2020:465), by which the latter dismissed his action seeking annulment of the decision of the Commission of 19 March 2018 withdrawing his entitlement to receive an expatriation allowance and, consequently, the travel expenses between his place of employment and his place of origin, as of 1 December 2017, after he acquired the nationality of the Member State in which he is employed (‘the decision at issue’).
2 Article 1d(5) of the Staff Regulations of Officials of the European Union, in its version applicable to the dispute that gave rise to the action (‘the Staff Regulations’), states: ‘Where persons covered by these Staff Regulations, who consider themselves wronged because the principle of equal treatment as set out above has not been applied to them, establish facts from which it may be presumed that there has been direct or indirect discrimination, the onus shall be on the institution to prove that there has been no breach of the principle of equal treatment. …’
3 Article 4 of Annex VII to the Staff Regulations provides: ‘1. An expatriation allowance equal to 16% of the total of the basic salary, household allowance and dependent child allowance paid to the official shall be paid: (a) to officials: - who are not and have never been nationals of the State in whose territory the place where they are employed is situated, and - who during the five years ending six months before they entered the service did not habitually reside or carry on their main occupation within the European territory of that State. For the purposes of this provision, circumstances arising from work done for another State or for an international organisation shall not be taken into account; (b) to officials who are or have been nationals of the State in whose territory the place where they are employed is situated but who during the ten years ending at the date of their entering the service habitually resided outside the European territory of that State for reasons other than the performance of duties in the service of a State or of an international organisation. … 2. An official who is not and has never been a national of the State in whose territory he is employed and who does not fulfil the conditions laid down in paragraph 1 shall be entitled to a foreign residence allowance equal to one quarter of the expatriation allowance. 3. For the purposes of paragraphs 1 and 2, an official who has by marriage automatically acquired and cannot renounce the nationality of the State in whose territory he or she is employed shall be treated in the same way as an official covered by the first indent of paragraph 1(a).’
4 Under Article 7(4) of Annex VII to the Staff Regulations: ‘An official’s place of origin shall be determined when he takes up his appointment, account being taken in principle of where he was recruited or, upon express and duly reasoned request, the centre of his interests. The place of origin as so determined may by special decision of the appointing authority be changed while the official is in service or when he leaves the service. While he is in the service, however, such decision shall be taken only exceptionally and on production by the official of appropriate supporting evidence.’
5 Article 8(1) of Annex VII to the Staff Regulations states: ‘Officials entitled to the expatriation or foreign residence allowance shall be entitled, within the limit set out in paragraph 2, in each calendar year to a flat-rate payment corresponding to the cost of travel from the place of employment to the place of origin as defined in Article 7 for themselves and, if they are entitled to the household allowance, for the spouse and dependants within the meaning of Article 2.’
6 The first sentence of Article 20 of the Staff Regulations provides: ‘An official shall reside either in the place where he is employed or at no greater distance there from as is compatible with the proper performance of his duties. …’
7 According to the first paragraph of Article 85 of the Staff Regulations: ‘Any sum overpaid shall be recovered if the recipient was aware that there was no due reason for the payment or if the fact of the overpayment was patently such that he could not have been unaware of it.’
8 The background to the dispute was summarised by the General Court in paragraphs 1 to 8 of the judgment under appeal as follows: ‘1 The [appellant], [Mr] … Brown, was originally a national of the United Kingdom [of Great Britain and Northern Ireland] only and lived there until 1996. He studied in Italy in 1996 and 1997, then in Belgium from September 1997 to June 1998. The [appellant] then served as a trainee in the … Commission … from 1 October 1998 to 28 February 1999. Finally, he worked full time in the private sector in Belgium from 1 March 1999 to 31 December 2000. 2 The [appellant] began working for the Commission on 1 January 2001. The Office for the “Administration and Payment of Individual Entitlements” (PMO) of the Commission granted him the expatriation allowance under Article 4(1)(a) of Annex VII to the Staff Regulations … 3 … The Prime Minister of the United Kingdom notified the European Council, on 29 March 2017, of the United Kingdom’s intention to withdraw from the European Union and the European Atomic Energy Community (Euratom) in accordance with Article 50(2) TEU. 4 On 27 June 2017, the [appellant] applied for Belgian nationality, which he obtained on 3 November 2017. He notified PMO of that change in circumstances on 19 January 2018. 5 On 23 February 2018, the [appellant] was informed, first, that his entitlement to the expatriation allowance was withdrawn with effect from 31 October 2017 because he had obtained Belgian nationality and, secondly, that as a consequence he also lost his entitlement to payment of travel expenses pursuant to Article 8 of Annex VII to the Staff Regulations. 6 Following a request for an explanation, the [appellant] received an email, on 5 March 2018, stating that withdrawal of the expatriation allowance was justified under Article 4(1)(b) of Annex VII to the Staff Regulations by the fact that he had resided in Belgium since 1997. 7 On 19 March 2018, PMO replaced the decision of 23 February 2018 by [the decision at issue]. 8 On 17 June 2018, the [appellant] filed a complaint, which was rejected by decision of the appointing authority … of 15 October 2018.’
9 In the context of his action before the General Court, the appellant sought inter alia annulment of the decision at issue and an order requiring the Commission to restore his entitlement to receive an expatriation allowance, provided for in Article 4 of Annex VII to the Staff regulations (‘the expatriation allowance’), and the travel expenses between his place of employment and his place of origin, as defined in Article 7 of that Annex VII, from 1 December 2017.
10 In support of his claim for annulment, the appellant put forward four pleas in law, which were rejected by the General Court.
11 As regards the first plea in the action at first instance, alleging infringement of Article 4(1)(a) of Annex VII to the Staff Regulations, the General Court, first, at the end of the reasoning it developed in paragraphs 35 to 51 of the judgment under appeal, found that PMO had not misinterpreted that provision of the Staff Regulations by ‘finding that the acquisition of the nationality of the country of employment during the course of a career triggered the reassessment of the entitlement to the expatriation allowance’ (paragraph 52 of the judgment under appeal). Secondly, the General Court rejected the appellant’s line of argument according to which the risk ‘of being required to resign’ following the United Kingdom’s withdrawal from the European Union that the appellant faced, as a national of the United Kingdom, constituted a case of force majeure relieving PMO from its obligation to review his situation in the light of the Belgian nationality that he had acquired (paragraphs 55 to 71 of the judgment under appeal).
12 In that regard, the General Court found, in essence, that it could not be inferred from the wording of Article 4(1)(a) of Annex VII to the Staff Regulations, read in the light of the legislative history of that provision and of the objective which it pursues, that the administration must continue to pay the expatriation allowance on a monthly basis where an event occurs that substantially alters the situation of the persons receiving that allowance with regard to the conditions for granting it. The acquisition by the officials concerned of the nationality of the State in which they are employed after they entered the service constituted such a substantial change capable of leading to a withdrawal of the entitlement to receive that allowance.
13 The second plea put forward by the appellant at first instance, alleging a breach of the principle of equal treatment and of non-discrimination resulting from the review of his situation with regard to the conditions laid down in Article 4(1)(b) of Annex VII to the Staff Regulations, was rejected by the General Court following the examination carried out in paragraphs 75 to 106 of the judgment under appeal.
14 More specifically, the General Court held, in essence, that observance of that principle was required not only at the date on which the person concerned entered the service but also when the question whether that person is entitled to receive the expatriation allowance is reviewed following a change in personal circumstances. The General Court considered that, from the date on which the appellant became a Belgian national, he was to be treated in the same way as any other Belgian national or former Belgian national whose habitual residence in Belgium, even for a short period of time, during the ‘10-year reference period’ before entering the service was sufficient to exclude the entitlement to receive that allowance pursuant to Article 4(1)(b) of Annex VII to the Staff Regulations.
15 As regards the third plea raised at first instance, by which the appellant criticised the Commission on the ground that it had infringed the principle of equal treatment and of non-discrimination through its interpretation, in the decision at issue, of Article 4(1)(b) of Annex VII to the Staff Regulations, the General Court pointed out, in paragraphs 112 and 113 of the judgment under appeal, that the interpretation advocated by the appellant was incompatible with the actual wording of that provision and with its scope, with the result that it had to be rejected.
16 Drawing the appropriate conclusions from those considerations, the General Court also rejected the fourth plea put forward, in the alternative, by the appellant at first instance and raising a plea of illegality against Article 4(1) of Annex VII to the Staff Regulations, rejected the other heads of claim and, consequently, dismissed the action in its entirety (paragraphs 123 to 132 of the judgment under appeal).
17 By his appeal, the appellant claims that the Court should: - set aside the judgment under appeal; - annul, on the basis of the file before it, the decision at issue; - order the Commission to restore, with effect from 1 December 2017, his entitlement to receive the expatriation allowance and travel expenses as well as to pay him any allowances not paid between 1 December 2017 and the date of re-establishment of his entitlement, together with interest; - order the Commission to pay the costs which he incurred before the Court of Justice and the General Court.
18 The Commission and the Council of the European Union contend that the Court should dismiss the appeal and order the appellant to pay the costs.
19 In support of his claims, the appellant relies on two grounds of appeal. The first ground of appeal alleges an erroneous interpretation of Article 4(1)(a) of Annex VII to the Staff Regulations. The second ground of appeal alleges unjustified discrimination arising from the General Court’s application of Article 4(1)(b) of Annex VII to the Staff Regulations.
20 The appellant submits that the General Court erred in law in its interpretation of Article 4(1)(a) of Annex VII to the Staff Regulations as permitting or requiring the removal of an official’s entitlement to receive the expatriation allowance on account of the official obtaining the nationality of the State of his or her place of employment, absent a change in that State.
21 The appellant submits, first of all, that he fully agrees with the premiss of the General Court’s reasoning, set out in paragraphs 47 to 50 of the judgment under appeal, with regard to the purpose of the expatriation allowance, which is to compensate for the inconvenience and extra expense that an official suffers as a result of the distance between the State of his or her place of employment and the State of his or her place of origin.
22 According to the appellant, the need to provide compensation throughout an official’s career, in the State in which he or she took up employment, is obvious, since the extra expense and inconvenience do not disappear even if that official has been expatriated for the entirety of his or her career and has established various types of ties with the State of his or her place of employment. The appellant argues that, on the contrary, as stated by the General Court in paragraph 47 of the judgment under appeal, the extra expense and inconvenience are even likely to intensify.
23 In the appellant’s view, the link between the State of the place of origin of the official concerned at the time of recruitment and the right to receive the expatriation allowance explains why the wording of Article 4(1)(a) of Annex VII to the Staff Regulations, first, focuses uniquely on periods of time before the official’s entry into service and not on developments that might occur thereafter and, secondly, uses the present tense in the phrase ‘are not and have never been nationals’ of the State in which they are employed, which implies that account should be taken of the nationality of that official at the time of taking up employment.
24 The error of law vitiating the judgment under appeal, according to the appellant, stems from the fact that the General Court, through its reasoning, reached a result which is inconsistent with the rationale behind the expatriation allowance, as established in paragraphs 47 to 50 of the judgment under appeal, namely that that allowance should be granted on the basis of the circumstances at the date on which the official concerned entered the service and that the entitlement to receive that allowance cannot be withdrawn thereafter, absent a change in the official’s place of employment.
25 The appellant argues that the General Court in fact accepted, in paragraphs 36 and 50 of the judgment under appeal, that integration of the officials concerned in the State of their place of employment after taking up employment does not affect the entitlement to receive the expatriation allowance.
26 In the appellant’s opinion, and contrary to the General Court’s finding in paragraph 51 of the judgment under appeal, the EU legislature deliberately did not address the issue of nationality changes occurring after the official concerned has been recruited. The only conclusion that can be drawn from this, given the rationale behind the expatriation allowance, is that the acquisition of a new nationality after the official concerned entered the service was not intended as a ground to withdraw the entitlement to receive the expatriation allowance if that official initially satisfied the requisite conditions.
27 The appellant submits that that interpretation, in addition, is confirmed by the General Court’s finding, in paragraph 49 of the judgment under appeal, that the expatriation allowance is intended to encourage recruitment on the broadest possible geographical basis. The appellant claims that that allowance therefore cannot be revisited after the official concerned entered the service.
28 The appellant adds, in his reply, referring to the term ‘fiction’ used in paragraph 85 of the judgment under appeal, that Article 4(1) of Annex VII to the Staff Regulations should be read in such a way as to avoid the application of such a ‘fiction’ whereby the change of nationality of an official is deemed to occur retroactively at the date that official took up employment. He argues that when Article 4(1) of Annex VII to the Staff Regulations was adopted, the EU legislature was fully aware of the issues caused by dual nationality or the acquisition of a new nationality. However, it made no express provision for the entitlement to receive the expatriation allowance to be withdrawn in such circumstances.
29 Moreover, the appellant takes the view that, if the criteria laid down in Article 4(1)(a) of Annex VII to the Staff Regulations were applied after the officials concerned entered the service, the duration of residence in the State in which they are employed should then be taken into consideration. In so far as a change of residence of the officials concerned after entering the service - residence being the more important of the two conditions for assessing the need for compensation; nationality being secondary - does not trigger the reassessment of the need for compensation, the same should apply for a change of nationality of the officials concerned. According to the appellant, officials either had to leave the State of their place of residence to take up employment or they were able to remain there. Thus the conditions for granting the entitlement to receive the expatriation allowance are based entirely on the situation before the entry into service of the officials concerned.
30 The Commission, supported by the Council, contends that the first ground of appeal must be rejected.
31 As a preliminary point, it is important to note that the appellant has not raised any complaint against the reasoning adopted in paragraphs 55 to 73 of the judgment under appeal, at the conclusion of which the General Court rejected the argument that the appellant was constrained to apply for Belgian nationality in view of the United Kingdom’s possible withdrawal from the European Union.
32 It follows that the examination of the first ground of appeal must start from the premiss that the appellant, having had the nationality of the United Kingdom alone at the date of his entry into service with the Commission in 2001, voluntarily acquired the nationality of the State of his place of employment later in his career, in November 2017.
33 It must be borne in mind that the expatriation allowance provided for in Article 4(1) of Annex VII to the Staff Regulations, which is calculated on the basis, inter alia, of the basic salary of the official concerned, constitutes an element of that official’s remuneration, paid on a monthly basis.
34 The grant, under the law relating to the EU public service, of such an element of remuneration cannot create vested rights such as to prevent a possible abrogation of that element (see, to that effect, judgment of 9 March 1978, Herpels v Commission, 54/77, EU:C:1978:45, paragraph 39). The General Court was therefore fully entitled, without this being challenged by the appellant, to hold, in essence, in paragraph 38 of the judgment under appeal, that it did not in any way follow from the provisions of the Staff Regulations, in particular Article 4(1) of Annex VII thereto, that granting the right to receive the expatriation allowance constitutes a vested right.
35 The General Court was also fully entitled, in paragraph 37 of the judgment under appeal, to deduce from the judgment cited in the previous paragraph above, that, since the expatriation allowance is paid on a monthly basis, the administration cannot continue to pay it where an event occurs that substantially alters the circumstances of the recipient thereof in so far as that event affects the conditions for granting the entitlement to receive that allowance.
36 Without formally criticising the validity of that finding, the appellant nevertheless submits that the General Court erred in taking the view that the acquisition by officials, during the course of their career, of the nationality of the State of their place of employment affects the conditions for granting the entitlement to receive the expatriation allowance, laid down in Article 4(1)(a) of Annex VII to the Staff Regulations. According to the appellant, those conditions, except in the case of a change in the State in which the officials concerned are employed, must only be satisfied before their entry into service.
37 In that regard, it should be recalled that, according to Article 4(1)(a) of Annex VII to the Staff Regulations, the expatriation allowance is paid to officials, pursuant to the first indent of that provision, ‘who are not and have never been nationals of the State in whose territory the place where they are employed is situated’ and, pursuant to the second indent, ‘who during the five years ending six months before they entered the service did not habitually reside or carry on their main occupation within the European territory of that State’.
38 In the light of the wording of Article 4(1)(a) of Annex VII to the Staff Regulations, entitlement to the expatriation allowance is granted only to officials who satisfy the two cumulative negative conditions laid down in that provision (order of 6 July 2021, Karpeta-Kovalyova v Commission,C‑717/20 P, not published, EU:C:2021:542, paragraph 11), the first of which, set out in the first indent of that provision, requires those officials not to be, and never to have been, nationals of the State in whose territory the place where they are employed is situated.
39 If, as the appellant claims, the condition that the officials concerned ‘are not and have never been nationals’ of the State in which they are employed had to be assessed only at the date on which they entered the service, and not throughout their career, that provision, which uses the present tense and concerns an element of those officials’ remuneration paid on a monthly basis, would necessarily have been drafted differently, as the General Court rightly pointed out in paragraph 45 of the judgment under appeal.
40 Thus, the wording of that provision did not refer to the date the officials concerned ‘entered the service’ merely for the purpose of assessing whether the second condition - also in the negative - for the application of Article 4(1)(a) of Annex VII to the Staff Regulations is satisfied, namely the absence of habitual residence or main occupation within the territory of the State of the place of employment of the officials concerned during the ‘five-year reference period’ ending six months before that date. Rather, reference would inevitably have been made to that date in order to examine compliance with the first condition, namely that the officials concerned must not be nationals of that State.
41 The wording of the other provisions of Article 4 of Annex VII to the Staff Regulations and the scheme of that article support the view that that first condition, that of not being nationals of the State in which they are employed, is not limited to the nationality that the officials concerned possessed before they entered the service.
42 First, under Article 4(1)(b) of that annex, entitlement to receive the expatriation allowance may also be granted to officials ‘who are or have been nationals’ of the State in which they are employed and who meet the other conditions in that provision. In addition, it must be noted that the foreign residence allowance, referred to in Article 4(2) of that annex, is granted only to officials who ‘[are] not and ha[ve] never been … national[s] of the State in whose territory [they are] employed’ and who do not fulfil the other conditions to benefit from the expatriation allowance. Thus, none of those provisions suggests that the condition relating to whether or not the officials concerned are nationals of the State in which they are employed concerns solely the nationality of those officials at the date on which they entered the service of the EU institutions.
43 Secondly, with regard to the scheme of Article 4 of Annex VII to the Staff Regulations, it should be noted that, under Article 4(3) of that annex, an official who has by marriage automatically acquired and cannot renounce the nationality of the State in whose territory he or she is employed ‘shall be treated in the same way’ as an official covered by the first indent of Article 4(1)(a) of that annex. That Article 4(3), inserted in the Staff Regulations following delivery of the judgments of 20 February 1975, Airola v Commission (21/74, EU:C:1975:24), and of 20 February 1975, Van den Broeck v Commission (37/74, EU:C:1975:25), thus neutralises the effects of the automatic acquisition by marriage of the nationality of the State in which the official concerned is employed when that official has no possibility of renouncing it.
44 Article 4(3) of Annex VII to the Staff Regulations would be rendered redundant if the provision to which it refers were to relate only to the acquisition of the nationality of the State in which the official concerned was employed before that official entered the service. Since the objective of Article 4(3) of that annex is, in order to ensure observance of the principle of non-discrimination, to avoid officials being deprived of their entitlement to receive the expatriation allowance from the administration following the acquisition by marriage of the nationality of the State in which that official is employed, with no possibility of renouncing it, that provision, like the first indent of Article 4(1)(a) of Annex VII to the Staff Regulations to which it refers, must apply even when that nationality was acquired after the official concerned entered the service.
45 Moreover, upholding the appellant’s complaints concerning the interpretation of Article 4(1)(a) of Annex VII to the Staff Regulations adopted in the judgment under appeal would, in the event that the official concerned acquires the nationality of the State in which he or she is employed after entering the service, amount to taking the view that the nationality of origin of that official is the only ‘effective nationality’ of that official, which was expressly rejected by the Court in its judgment of 14 December 1979, Devred v Commission (257/78, EU:C:1979:294, paragraph 14).
46 It is true that the question of the integration of the official concerned in the State in which he or she is employed, after taking up employment, makes no difference in terms of the application of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations. It is also true that, as the Court has repeatedly held, the expatriation allowance is intended to compensate officials for the extra expense and inconvenience of taking up employment with the EU institutions if they have been thereby obliged to change their residence (see, to that effect, judgment of 15 September 1994, Magdalena Fernández v Commission, C‑452/93 P, EU:C:1994:332, paragraph 20, and order of 6 July 2021, Karpeta-Kovalyova v Commission, C‑717/20 P, not published, EU:C:2021:542, paragraph 4).
47 However, those considerations do not mean that, even if the condition relating to the nationality of the official concerned is regarded as being of merely secondary importance (see inter alia, to that effect, judgment of 15 January 1981, Vutera v Commission, 1322/79, EU:C:1981:6, paragraph 6), application of that condition must necessarily disregard events, such as a change of nationality, occurring after the official concerned entered the service.
48 It is also true, as the General Court pointed out in paragraph 47 of the judgment under appeal, that the extra expense and inconvenience of taking up employment with the EU institutions are likely to last for officials who, like the appellant, voluntarily acquired the nationality of the State in which they are employed during the course of their career.
49 The fact remains that the Staff Regulations do not overlook that scenario, since the expatriation allowance is not automatically lost in future in that instance. Despite the substantial change in the personal circumstances of the official concerned that is caused by the acquisition of the nationality of the State in which that official is employed, the Staff Regulations allow that official, under certain conditions, to retain the benefit of that allowance, not on the basis of Article 4(1)(a) of Annex VII to the Staff Regulations but instead pursuant to Article 4(1)(b) of that annex.
50 While it is true, as submitted by the appellant and as also noted by the General Court in paragraph 76 of the judgment under appeal, that the conditions for the application of Article 4(1)(b) of Annex VII to the Staff Regulations are interpreted by the EU Courts in a more restrictive way than those of the second indent of Article 4(1)(a) of that annex, it is important to note that the appellant has not challenged that distinction in any way, nor has he criticised the General Court for rejecting, in paragraphs 125 to 127 of the judgment under appeal, the plea of illegality against Article 4(1) of Annex VII to the Staff Regulations, which he had raised, in the alternative, at first instance.
51 Accordingly, the General Court was right to interpret Article 4(1) of Annex VII to the Staff Regulations as meaning that officials who, after entering the service, acquire the nationality of the State in which they are employed lose, in future, the benefit of the expatriation allowance that was granted to them on the basis of Article 4(1)(a) of Annex VII to the Staff Regulations, which implies that the entitlement of those officials to receive that allowance must be reassessed by the administration, as established, in essence, by the General Court in paragraph 52 of the judgment under appeal.
52 It follows that the appellant’s first ground of appeal must be rejected as unfounded.
53 The appellant claims that the General Court did not correctly examine the arguments which he put forward at first instance, according to which the application of Article 4(1)(b) of Annex VII to the Staff Regulations to officials who acquired the nationality of the State in which they are employed after they had entered the service is discriminatory.
54 In the appellant’s view, the General Court did not correctly analyse, on the one hand, the various situations at issue and, on the other, the question whether the discrimination which it should have identified could be objectively justified.
55 Having regard to the purpose of the expatriation allowance, the appellant submits that officials who acquire the nationality of the State of their place of employment during the course of their career and officials who had that nationality at the date on which they entered the service, as identified in paragraphs 87 and 89 of the judgment under appeal, constitute two clearly distinct categories of officials. The appellant claims that those two categories of officials are affected differently by the distance from their place of origin.
56 At no point in its analysis, according to the appellant, did the General Court address the existence of those two categories of officials nor did it consider the consequences of treating them in the same way. Rather, the General Court simply and incorrectly, in paragraphs 87 to 89 of the judgment under appeal, treated the category of officials who acquired the nationality of the State of their place of employment after they entered the service in the same way as that of officials who had, or previously had, that nationality before entering the service.
57 Had the General Court made a distinction between those same two categories of officials, the appellant argues that it would have determined that, on the basis of the ‘fiction’ operated by the decision at issue, those categories were treated the same and subject to the same ‘strict presumption’ that there were close ties to the place of employment in the 10 years prior to the entry into service, which can be rebutted only by showing that in those 10 years there was no period of habitual residence whatsoever in the State in which the official concerned is employed.
58 According to the appellant, the judgment under appeal is thus vitiated by a breach of the principle of equal treatment, since the category of officials not having acquired the nationality of the State of their place of employment before or during the course of those 10 years is unfairly made subject to that ‘strict presumption’.
59 The appellant adds, in his reply, that the interpretation and application of Article 4(1)(b) of Annex VII to the Staff Regulations should not be based on a ‘fiction’ whereby the change of nationality of the official concerned is deemed to occur retroactively at the date on which that official took up employment. Such an approach makes no sense, according to the appellant, since it would be tantamount to ascertaining, for the purpose of granting the entitlement to receive the expatriation allowance, whether that official has severed, during those same 10 years, any ties with the State whose nationality he or she did not have. By definition, a tie that did not exist cannot be severed.
60 In addition, the appellant submits that that ‘fiction’ entails ‘shifting categories’. In other words, the appellant argues that, in response to his argument regarding the breach of the principle of equal treatment, the General Court, like the Commission, ‘move[d] the appellant from one category to another’. According to the appellant, no claim of discrimination could ever succeed if it were possible, as the General Court did in the judgment under appeal, to change, on the basis of a fiction, a categorisation in order to remove the difference in treatment between the categories concerned.
61 In the appellant’s view, the difference in treatment thus identified cannot be justified by the objective underlying the granting of entitlement to receive the expatriation allowance, even though that objective was correctly recalled in paragraphs 47 to 50 of the judgment under appeal.
62 In that regard, the appellant argues that the fact that, as the General Court states in paragraph 86 of the judgment under appeal, the expatriation allowance is intended to be paid throughout the period of service is irrelevant. Without disputing the accuracy of that statement, the appellant claims that enjoyment of a benefit under the Staff Regulations is to be distinguished from the legal basis giving rise to the benefit. Since the entitlement to receive the expatriation allowance is determined on the basis of the circumstances which prevailed in the period of time before the official concerned entered the service, it is the assessment of that period of time and the decision refusing to grant the entitlement to receive that allowance that give rise to the discrimination. According to the appellant, paragraph 86 of the judgment under appeal is, moreover, inconsistent with the statement in paragraph 47 of that judgment that that allowance is given as compensation for the distance from the place of origin of the official concerned, which lasts throughout the career of that official.
63 According to the appellant, the General Court erred in law by failing to analyse the purpose of the expatriation allowance when it examined the alleged breach of the principle of equal treatment. Furthermore, the appellant submits that the examination in paragraphs 93 to 97 of the judgment under appeal of the statistics provided by the EU institutions is legally irrelevant in that regard.
64 In the appellant’s view, the General Court was also wrong not to apply Article 1d(5) of the Staff Regulations and, consequently, to find that the onus was not on the Commission to discharge the obligation to justify any difference in treatment.
65 The Commission and the Council contend that the second ground of appeal must be rejected.
66 It should be noted that, according to settled case-law, the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 25 March 2021, Alvarez y Bejarano and Others v Commission, C‑517/19 P and C‑518/19 P, EU:C:2021:240, paragraph 52 and the case-law cited).
67 Under Article 4(1)(b) of Annex VII to the Staff Regulations, the expatriation allowance is paid ‘to officials who are or have been nationals of the State in whose territory the place where they are employed is situated but who during the 10 years ending at the date of their entering the service habitually resided outside the European territory of that State for reasons other than the performance of duties in the service of a State or of an international organisation’.
68 Therefore, in so far as officials ‘are or have been’ nationals of the State in which they are employed, they must, in order to benefit from the expatriation allowance, satisfy the conditions laid down in Article 4(1)(b) of Annex VII to the Staff Regulations.
69 Admittedly, in the case of officials who, like the appellant, voluntarily acquired the nationality of the State of their place of employment during the course of their career, the application of those conditions is tantamount to ascertaining, as the appellant rightly points out, whether, during the 10-year period before the officials concerned entered the service, they habitually resided outside the European territory of that State.
70 Article 4(1) of Annex VII to the Staff Regulations envisages no other situation in which officials who are or have been nationals of the State in which they are employed, within the meaning of point (b) of that provision, are entitled to receive the expatriation allowance.
71 That said, first, as stated in paragraph 50 above, the appellant does not dispute the finding in paragraph 76 of the judgment under appeal, that, as regards officials who are nationals of the State of their place of employment, the fact that they kept or established their habitual residence there, albeit for a very short time during the ‘10-year reference period’, is sufficient to result in the refusal or loss of their entitlement to the expatriation allowance.
72 Secondly, it must be pointed out that, for the purposes of assessing his right to receive that allowance, the appellant was treated in the same way as officials having the nationality of the State of their place of employment only from the date on which he himself acquired, voluntarily, that nationality and not beforehand.
73 However, the appellant claims that, even from that date onwards, he finds himself in an objectively different situation from that of officials who, even before entering the service, have the nationality of the State of their place of employment, since his place of origin remains in Scotland.
74 This argument effectively ignores the fact that while, under Article 7(4) of Annex VII to the Staff Regulations, the place of origin of the official concerned is determined at the date on which the official was recruited and this place may be changed while the official is in service only in exceptional cases, upon a duly reasoned request by the official concerned, different criteria apply to the granting of the entitlement to receive the expatriation allowance, and that that entitlement must, in the event of a substantial change in circumstances occurring after the entry into service of the official concerned, be reassessed by the administration, irrespective of any request by that official.
75 The provisions of the Staff Regulations relating to the determination and modification of the place of origin are therefore irrelevant for the purpose of objectively distinguishing the appellant’s situation from that of other officials who are or have been nationals of the State of their place of employment before entering the service, in the context of the application of Article 4(1)(b) of Annex VII to the Staff Regulations.
76 Consequently, for the purposes of assessing his entitlement to receive the expatriation allowance and as the General Court held, in essence, in paragraph 87 of the judgment under appeal, the only category of officials to which the appellant can be compared objectively, after he became a Belgian national, is that of officials who are Belgian nationals.
77 To continue to treat the appellant, after he had become a national of the State of his place of employment, in the same way, as the appellant alleges, as officials who are not and have never been nationals of that State, within the meaning of the first indent of Article 4(1)(a) of Annex VII to the Staff Regulations, would be tantamount to disregarding the specific categories laid down in Article 4 of that Annex VII, including that covered by Article 4(3) of that annex.
78 The appellant’s situation is, in the end, comparable to that of officials who, while able to avail themselves of the option to renounce the nationality of the State in which they are employed, acquired automatically by marriage to a national of that State, decided of their own volition to retain that nationality, which results in the application to those officials of the conditions laid down in Article 4(1)(b) of Annex VII to the Staff Regulations (see, to that effect, judgment of 14 December 1979, Devred v Commission, 257/78, EU:C:1979:294, paragraphs 12 and 14).
79 Therefore, not applying Article 4(1)(b) of Annex VII to the Staff Regulations to the appellant’s situation from the date on which he acquired Belgian nationality would amount to treating him more favourably, without objective justification, than the officials who, while able to renounce the nationality of the State in which they are employed, acquired automatically by marriage, chose to retain that nationality, or even, as noted by the General Court in paragraph 87 of the judgment under appeal, to treating him more favourably than Belgian citizens by birth who entered the service of an EU institution having its seat in Belgium and who had to satisfy the strict requirements imposed by that provision in order to benefit from the expatriation allowance throughout their career.
80 In addition, it should be borne in mind that the review of an official’s personal circumstances, such as those of the appellant, pursuant to Article 4(1)(b) of Annex VII to the Staff Regulations, from the date on which the official concerned acquired the nationality of the State in which he or she is employed, does not automatically entail the withdrawal of his or her entitlement to receive the expatriation allowance in future. Following such a review, that official will cease to receive that allowance only if it is established that he or she habitually resided within the European territory of that State during the 10-year period before entering the service.
81 While the appellant has never, throughout the proceedings, claimed that he did not actually habitually reside in Belgium, at least for part of the ‘10-year reference period’, it appears that, generally, the second condition laid down in Article 4(1)(b) of Annex VII to the Staff Regulations will be more easily satisfied by an official who acquired that nationality during his or her career rather than by an official having the nationality of the State of his or her place of employment since birth or who acquired it before entering the service and who can be presumed to have had multiple close ties with that State.
82 Accordingly, by concluding, in essence, in paragraph 97 of the judgment under appeal, that, in order to continue to receive the expatriation allowance from the date on which he had voluntarily acquired the nationality of the State of his place of employment, the appellant had to satisfy the conditions set out in Article 4(1)(b) of Annex VII to the Staff Regulations, in the same way as any official with that nationality, the General Court did not infringe the principle of equal treatment.
83 It follows that the second ground of appeal must be rejected as unfounded.
84 In the light of all the foregoing considerations, since none of the grounds of appeal has been upheld, the appeal must be dismissed in its entirety.
85 In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.
86 Under Article 138(1) of those Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
87 Since the appellant has been unsuccessful, he must be ordered to bear his own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.
88 Under Article 184(4) of the said Rules of Procedure, where the appeal has not been brought by an intervener at first instance, that intervener may not be ordered to pay costs in the appeal proceedings unless it participated in the written or oral part of the proceedings before the Court of Justice. Where an intervener at first instance takes part in the proceedings, the Court may decide that it is to bear its own costs.
89 In the present case, since the Council, intervener at first instance, participated, without being the appellant, in the proceedings before the Court of Justice, it must be decided that it is to bear its own costs.