Case T‑729/16

PO and Others

v

European External Action Service

(Civil service — EEAS — Remuneration — Officials posted to the Beijing delegation — Family allowances — Education allowance for 2015/2016 — Second sentence of Article 15 of Annex X to the Staff Regulations — Exceedance of the statutory ceiling for third countries — Decision to cap the reimbursement of education costs in exceptional circumstances — General Implementing Provisions)

Summary — Judgment of the General Court (Fifth Chamber), 25 October 2018

1. Officials — Decision adversely affecting an official — Obligation to state reasons — Scope

   (Art. 296 TFEU; Staff Regulations, Art. 25, second para.)

2. Officials — Remuneration — Financial rules applicable to officials posted to a third country — Education allowance — Reimbursement of education costs exceeding the statutory ceiling for third countries — Limits — Right to education — Infringement — None

   (Charter of Fundamental Rights of the European Union, Arts 14 and 52(1); Staff Regulations, Annex X, Art. 15)

3. Officials — Principles — Protection of legitimate expectations — Conditions

   (Staff Regulations, Annex X, Art. 15)

4. Officials — Equal treatment — Meaning — Limits

   (Staff Regulations, Annex X, Art. 15)

5. Officials — Remuneration — Financial rules applicable to officials posted to a third country — Education allowance — Reimbursement of education costs exceeding the statutory ceiling for third countries — Conditions for granting — Obligation for the institutions to adopt general implementing provisions — None

   (Staff Regulations, Art. 110(1) and Annex X, Art. 15)

1.  See the text of the decision.

   (see paras 52, 53)

2.  Neither the wording of Article 15 of Annex X to the Staff Regulations nor the travaux préparatoires of that annex require that the second sentence of that article be interpreted as meaning that, in exceptional cases within the meaning of that sentence, there is a right to full and unlimited reimbursement of education costs exceeding the third country statutory ceiling. On the contrary, that sentence must be interpreted as meaning that, when applying that article, the appointing authority is entitled to have regard for budgetary constraints.

   Even assuming that reimbursing only part of the education expenses exceeding the third country statutory ceiling did limit the right to education under Article 14 of the Charter of Fundamental Rights of the European Union, such a limitation may be justified under Article 52(1) of that charter. The limitation is one established by a law that pursues an objective of general interest of the European Union, that is to say, the objective of extending the reimbursement of education costs exceeding the third country statutory ceiling to the maximum number of officials possible who applied for it, whilst having regard for the budgetary limits for such expenditure.

   Accordingly, the right to education enshrined in Article 14 of the Charter does not mean that Article 15 of Annex X to the Staff Regulations must be interpreted as meaning that, because of the exceptional situations in which officials posted to an EU delegation in a third country find themselves, the European External Action Service had a duty to reimburse the entirety of their education costs exceeding the third country statutory ceiling.

   (see paras 72, 123, 124)

3.  The right to claim protection for legitimate expectations requires three conditions to be satisfied, namely, first, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the authorities of the European Union, second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed and, third, the assurances given must comply with the applicable rules.

   In that regard, the mere fact that, in the past, an official posted to a third country may have received education allowances exceeding the third country statutory ceiling and covering the entirety of the education costs cannot in itself be regarded as a precise, unconditional and consistent assurance.

   (see paras 79, 80)

4.  See the text of the decision.

   (see paras 85-87, 109)

5.  There is an obligation to issue general implementing provisions, in accordance with the procedure under Article 110(1) of the Staff Regulations, where there is an express provision. In the absence of any express provision, such an obligation can be recognised only in exceptional circumstances, that is, when the provisions of the Staff Regulations are so unclear and imprecise that any application of them must necessarily be arbitrary.

   In that regard, the decision-making power conferred on the appointing authority by the second sentence of Article 15 of Annex X of the Staff Regulations relates not to a decision of general scope, but to decisions of individual scope which must be made in exceptional cases and, when exercising that power, the appointing authority must take into account the individual situations of the members of its staff who have requested reimbursement of education costs exceeding the third country statutory ceiling. In that context, the appointing authority must have a degree of flexibility enabling it to take into account, on the one hand, the individual situation of each European External Action Service staff member who has requested reimbursement of education costs exceeding the third country statutory ceiling and, on the other, the budgetary constraints on the reimbursement of those costs.

   In the light of those findings, the third paragraph of Article 1 of Annex X to the Staff Regulations cannot be interpreted as requiring the European External Action Service to adopt general implementing provisions on how the decision-making power conferred by the second sentence of Article 15 of Annex X to the Staff Regulations is to be exercised.

   In the light of the exceptional nature of decisions by the appointing authority to exceed the third country statutory ceiling under the second sentence of Article 15 of Annex X to the Staff Regulations and of the fact that the appointing authority must have a degree of flexibility in applying that provision, the fact that Article 15 leaves a wide discretion to the appointing authority cannot be found to be sufficient to demonstrate that the provision is unclear or imprecise.

   (see paras 159, 165, 169, 173)