Opinion of Advocate General Kokott delivered on 4 May 2023.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:387
• Date: 04 May 2023
• Celex Number: 62022CC0088
• Court: Court of Justice (European Union)

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 4 May 2023 (1)

Case C‑88/22 P

QB

v

European Commission

(Appeal – Civil service – Article 4(1)(a) of Annex VII to the Staff Regulations – Expatriation allowance – Concept of ‘main occupation’ – Concept of ‘work done for another State’)

I. Introduction

1. In order to take up employment with the European Union, its members of staff must often leave their Member State of origin and establish their residence in the Member State in which they are employed. With a view to compensating for the inconvenience associated with that and to permit the recruitment of nationals of Member States of the European Union on the broadest possible geographical basis, the EU legislature created the expatriation allowance in Article 69 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’). (2) The conditions of the expatriation allowance are laid down in Article 4(1)(a) and (b) of Annex VII to the Staff Regulations. Pursuant to Article 20(2) of the Conditions of Employment of Other Servants of the European Union in conjunction with Article 69 of the Staff Regulations, those provisions apply by analogy to temporary staff.

2. Article 4(1)(a) of Annex VII to the Staff Regulations provides that an expatriation allowance is to be paid to officials who are not and have never been nationals of the State in whose territory the place where they are employed is situated (‘the country of employment’) (first indent) and who during the five years ending six months before they entered the service (‘the reference period’) did not habitually reside or carry on their main occupation within the territory of that State (first sentence of the second indent). For the purposes of that provision, circumstances arising from work done for another State or for an international organisation are not to be taken into account (second sentence of the second indent). In principle, therefore, carrying out one’s main occupation or habitually residing in the country of employment during the reference period results in the loss of the right to the expatriation allowance. However, that does not apply if the official performed work for another State or for an international organisation during the reference period. Such work therefore has the effect of ‘neutralising’ a main occupation or a habitual residence in the country of employment and results in the staff member’s right to an expatriation allowance being maintained. In the following, I shall therefore also refer to the second sentence of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations as the ‘neutralisation rule’.

3. However, what is the situation in the case of an official who, during the five-year reference period, was seconded as a Polish judge to the Krajowa Szkola Sadownictwa i Prokuratury (State School of Justice and Prosecution, Poland; ‘the KSSiP’), but at the same time held the post of Secretary General of the European Judicial Training Network (‘the EJTN’), a non-profit international association under Belgian law with its head office in Brussels (Belgium), the place where the official was subsequently employed? In such a case, where did the official carry out his main occupation during the relevant reference period? And if that place of work is in Belgium, is that occupation considered to be work done for another State or an international organisation, with the result that the official would benefit from the neutralisation rule?

4. Those are the questions which the Court of Justice is called on to answer in the present appeal proceedings, by which the appellant contests the judgment of the General Court of 8 December 2021 (3) (‘the judgment under appeal’).

II. Legal context

5. The Staff Regulations constitute the legal context of the present case.

6. The first sentence of Article 69 of the Staff Regulations provides:

‘The expatriation allowance shall be equal to 16% of the total of the basic salary, household allowance and dependent child allowance to which the official is entitled.’

7. Pursuant to Article 20(2) of the Conditions of Employment of Other Servants of the European Union, Article 69 of the Staff Regulations regarding the expatriation allowance applies by analogy to temporary staff.

8. Article 4(1) and (2) of Annex VII to the Staff Regulations reads:

‘1. An expatriation allowance equal to 16% of the total of the basic salary, household allowance and dependent child allowance paid to the Established 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 that 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.’

III. Background to the dispute and judgment under appeal

9. The background to the present dispute was set out in paragraphs 3 to 13 of the judgment under appeal and can be summarised as follows.

10. Since his appointment in 2005, the appellant, who is a Polish national, served as a judge in a district court in Poland.

11. From March 2009, pursuant to a decision of the Polish Ministry of Justice, the appellant was seconded to the KSSiP. The KSSiP is a central Polish State body responsible for the training of members of the ordinary courts and members of the public prosecutor’s office in Poland.

12. In December 2013, the Polish Ministry of Justice and the EJTN entered into an agreement whereby the appellant was appointed as Secretary General of the EJTN. The EJTN is a non-profit international association governed by Belgian law, which does not have legal personality and has its head office in Brussels. Its purpose is the development of training programmes with a European dimension for members and court staff. Member State institutions responsible for training judges and prosecutors or those involved in judicial training at EU level may become members of the EJTN.

13. Regarding the place of performance of his duties, it was anticipated that the appellant’s presence would be required not only at the KSSiP’s head office in Poland but also at the EJTN’s premises in Brussels and in any other place where EJTN activities took place or where the appellant’s presence would be regarded as being in the EJTN’s interest.

14. In addition, from 1 January 2014 to 31 December 2019, the appellant held the position of chief specialist within the International Cooperation Centre of the KSSiP. He was responsible for ensuring good cooperation and the implementation of activities stemming from the KSSiP’s membership of the EJTN.

15. From 1 January 2014 to 30 June 2019, the appellant lived in Brussels with his family. After his mandate within the EJTN expired in June 2019, the appellant and his family returned to Poland.

16. The appellant entered the service of the European Commission on 1 January 2020 as a member of the temporary staff.

17. On 6 April 2020, the Office for the Administration and Payment of Individual Entitlements (PMO) issued a decision (‘the contested decision’) granting the appellant the foreign residence allowance pursuant to Article 4(2) of Annex VII to the Staff Regulations but not the expatriation allowance.

18. On 16 June 2020, the appellant requested a mediation between him and the PMO regarding the expatriation allowance, which the PMO refused.

19. On 3 July 2020, the appellant submitted a complaint against the contested decision under Article 90(2) of the Staff Regulations.

20. By decision of 3 November 2020, the authority empowered to conclude contracts of employment for the Commission (‘the appointing authority’) rejected the complaint.

21. By application lodged at the Registry of the General Court on 2 February 2021, the appellant brought an action pursuant to Article 270 TFEU. He sought the annulment of the contested decision and the decision rejecting his complaint to the extent that the Commission refused to grant him the expatriation allowance.

22. By the judgment under appeal, the General Court dismissed the action and ordered the appellant to pay the costs.

23. The first plea in law, alleging infringement of the obligation to state reasons, was rejected by the General Court as unfounded since the absence of reasons in the contested decision had been remedied by a sufficient statement of reasons in the decision rejecting the appeal.

24. The General Court also held that the second plea in law raised by the appellant, which alleged an infringement of Article 4(1)(a) of Annex VII to the Staff Regulations, was unfounded. It took the view, as had the Commission in the contested decision, that the place where the appellant carried on his main occupation during the reference period was Brussels and that the work carried out by the appellant was not work done for another State or an international organisation.

25. Finally, the General Court also rejected as unfounded the third plea in law, alleging a manifest error of assessment on the part of the Commission. It argued that the Commission had...