Judgments nº T-18/19 of Tribunal General de la Unión Europea, October 05, 2020

• Resolution Date: October 05, 2020
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-18/19

(Civil service - Officials - Official with United Kingdom nationality at the date of entering the service - Withdrawal of the United Kingdom from the European Union - Acquisition of the nationality of the country of employment during the course of a career - Loss of the expatriation allowance - Equal treatment - Principle of non-discrimination - Article 4(1) of Annex VII to the Staff Regulations)

In Case T-18/19,

Colin Brown, residing in Brussels (Belgium), represented by I. Van Damme, lawyer,

applicant,

v

European Commission, represented by T. Bohr and D. Milanowska, acting as Agents,

defendant,

supported by

Council of the European Union, represented by M. Bauer and R. Meyer, acting as Agents,

intervener,

APPLICATION under Article 270 TFEU seeking, first, annulment of the decision of 19 March 2018 of the Office for the Administration and Payment of Individual Entitlements (PMO) withdrawing the applicant’s entitlement to the expatriation allowance and to the payment of travel expenses and, secondly, re-establishment of those benefits with effect from 1 December 2017,

THE GENERAL COURT (Fourth Chamber, Extended Composition),

composed of S. Papasavvas, President, S. Gervasoni, P. Nihoul, R. Frendo (Rapporteur) and J. Martín y Pérez de Nanclares, Judges,

Registrar: L. Ramette, Administrator,

having regard to the written part of the procedure and further to the hearing on 27 February 2020,

gives the following

Judgment

1. Background to the dispute

   1 The applicant, Colin Brown, was originally a national of the United Kingdom only and lived there until 1996. He studied in Italy in 1996 and 1997, then in Belgium from September 1997 to June 1998. The applicant then served as a trainee in the European Commission in Brussels (Belgium) 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 applicant 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 of Officials of the European Union (‘the Staff Regulations’).

   3 On 23 June 2016, the citizens of the United Kingdom of Great Britain and Northern Ireland voted in a referendum in favour of their State’s withdrawal from the European Union. After the adoption by the United Kingdom Parliament, on 13 March 2017, of the European Union (Notification of Withdrawal) Act 2017, 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 applicant 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 applicant 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 applicant 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 a new decision setting 1 December 2017 as the date on which entitlement to the expatriation allowance and payment of travel expenses were withdrawn from the applicant (‘the contested decision’).

   8 On 17 June 2018, the applicant filed a complaint, which was rejected by decision of the appointing authority (AIPN) of 15 October 2018.

2. Procedure and forms of order sought

   9 The applicant brought this action by application lodged at the Court Registry on 11 January 2019.

   10 The Commission lodged its defence on 20 March 2019.

   11 Following a change in the composition of the Chambers of the Court, the President of the General Court, by decision of 25 March 2019 and pursuant to Article 27(3) of the Rules of Procedure of the General Court, reassigned the case to a new Judge-Rapporteur, attached to the Fifth Chamber.

   12 By document lodged at the Court Registry on 12 April 2019, the Council of the European Union sought leave to intervene in the present proceedings in support of the form of order sought by the Commission.

   13 On 9 May 2019, the applicant filed his reply.

   14 By decision of 13 May 2019, the President of the Fifth Chamber of the Court granted the Council leave to intervene.

   15 On 18 June 2019, the Commission lodged the rejoinder.

   16 The intervener lodged its statement in intervention on 25 June 2019 and the applicant submitted his observations thereon within the prescribed period.

   17 Following a change in the composition of the Chambers of the Court, pursuant to Article 27(5) of the Rules of Procedure, the Judge-Rapporteur was assigned to the Fourth Chamber, to which the present case was, consequently, allocated.

   18 Acting on a proposal from the Fourth Chamber, the General Court decided, pursuant to Article 28 of the Rules of Procedure, to refer the case to a chamber sitting in extended composition. The Vice-President of the General Court was called to sit in the Fourth Chamber, Extended Composition, pursuant to the decision of the Plenum of the Court of 4 October 2019 on the formation of Chambers and assignment of Judges to Chambers (OJ 2019 C 372, p. 3) and to act as President of that Chamber in accordance with Article 11(4) of the Rules of Procedure.

   19 Acting on a proposal of the Judge Rapporteur, the Court (Fourth Chamber, Extended Composition) decided (i) to open the oral part of the procedure, (ii) to put written questions to the parties, in the context of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, requesting them to answer those questions at the hearing, and (iii) to ask the European Parliament, the Court of Justice of the European Union and the Court of Auditors to supply information, in accordance with Article 24 of the Statute of the Court of Justice of the European Union. That request for information sought to find out how those three institutions interpret Article 4(1) of Annex VII to the Staff Regulations and how they apply it where an official or an agent already with the nationality of a Member State obtains, during the course of his or her career, the nationality of the State in whose territory the place where he or she is employed is situated.

   20 The parties presented oral argument and answered the written and oral questions put by the Court at the hearing on 27 February 2020. At the hearing, the Commission and the Council were asked to provide the Court with the numbers of officials entitled to the expatriation allowance who had acquired the nationality of their country of employment and to specify how many, among them, have lost the benefit of that allowance.

   21 In the context of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, on 9 March 2020, the Court requested the Commission to produce an information notice from the Council of 11 December 1959, which it had read at the hearing.

   22 The Commission and the Council submitted, within the prescribed period, their replies to the questions put to them by the Court at the hearing and by way of a measure of organisation of procedure.

   23 On 4 May 2020, the applicant submitted his observations on the figures and the document provided after the hearing by the Commission and the Council. In those observations, the applicant regretted the incomplete nature, in his view, of those figures without, however, requesting that they be supplemented.

   24 On 14 May 2020, the oral part of the procedure was closed and the case entered the deliberation stage.

   25 The applicant claims that the Court should:

   - annul the contested decision;

   - order that his entitlement to the expatriation allowance and payment of his travel expenses be restored with effect from 1 December 2017;

   - order that the allowances which were not paid between 1 December 2017 and the date of re-establishment of his entitlement to those benefits be paid to him, together with interest;

   - if the Court accepts the plea of illegality raised in the application, annul the application of Article 4(1)(b) of Annex VII to the Staff Regulations, until such time as the institutions replace it with non-discriminatory provisions;

   - order the Commission to pay the costs.

   26 The Commission contends that the Court should:

   - dismiss the action;

   - order the applicant to pay the costs.

   27 The intervener contends that the Court should dismiss the action.

3. Law

   A. The first head of claim

   28 In support of his first head of claim, seeking annulment of the contested decision, the applicant puts forward four pleas in law, alleging:

   - infringement of Article 4(1)(a) of Annex VII to the Staff Regulations;

   - breach of the principle of equality and non-discrimination, in that the contested decision makes his entitlement to the expatriation allowance subject to the requirements prescribed by Article 4(1)(b) of Annex VII to the Staff Regulations;

   - breach of the principle of equality and non-discrimination, in that the contested decision interpreted Article 4(1)(b) of Annex VII to the Staff Regulations in breach of that principle;

   - a plea of illegality against Article 4(1) of Annex VII to the Staff Regulations.

   29 In his first plea, which can be divided into two parts, the applicant disputes the Commission’s ability to reassess his entitlement to the expatriation allowance. In the first part of that plea, he submits that...