Contents
Judgment of the General Court (Fifth Chamber)25 October 2018note(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)In Case T‑729/16,PO, official of the European Commission,PP, official of the European External Action Service,PQ, official of the European Commission,PR, official of the European Commission,represented initially by N. de Montigny and J.-N. Louis, lawyers, and subsequently by N. de Montigny, lawyer,vEuropean External Action Service (EEAS), represented by S. Marquardt and R. Spac, acting as Agents, and M. Troncoso Ferrer, F.-M. Hislaire and S. Moya Izquierdo, lawyers,THE GENERAL COURT (Fifth Chamber),composed of D. Gratsias, President, I. Labucka and A. Dittrich (Rapporteur), Judges,Registrar: M. Marescaux, Administrator,having regard to the written procedure and further to the hearing on 30 May 2018,gives the following
Judgment
I.Background to the dispute and the contested measures
1The applicants, PO, PP, PQ and PR, were posted to the European Union’s delegation to China, in Beijing, as staff members of the European External Action Service (EEAS).
A.po
2On 26 August 2011, PO was posted to the European Union’s delegation to China, in Beijing, in the interests of the service. When he arrived in China, he enrolled his children in the British School of Beijing.
3On 9 September 2015, pursuant to Article 15 of Annex X to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), PO requested reimbursement of education costs (education allowance B) for 2015/2016 exceeding the ceiling laid down by that article for officials posted to a third country, corresponding to six times the basic ceiling for the education allowance under Article 3(1) of Annex VII to the Staff Regulations (‘the third country statutory ceiling’). For 2015/2016, the basic ceiling for the education allowance was EUR 260.95 per month for each child and the third country statutory ceiling was therefore EUR 1 565.70 per month, that is to say, EUR 18 788.40 per year.
4On 17 December 2015, PO received an email from the appointing authority informing him that the reimbursement of education costs was limited, for each child, to the third country statutory ceiling plus EUR 10000 (EUR 28 788.40 per year). The difference between the education allowance PO received and the education costs he incurred in respect of his children for the 2015/2016 school year was EUR 17 330.11.
5On 7 March 2016, following a request by him, PO was informed that the ‘email of 21 December 2015’ constituted the appointing authority’s decision, against which he could lodge a complaint.
6On 15 March 2016, PO lodged a complaint within the meaning of Article 90(2) of the Staff Regulations against the email of 17 December 2015.
7On 5 July 2016, the appointing authority made a decision rejecting PO’s complaint.
B.pp
8On 1 August 2015, PP was posted to the European Union’s delegation to China, in Beijing, in the interests of the service. In anticipation of arriving in China, on 19 May 2015, he enrolled his children in Dulwich College Beijing.
9On 25 August 2015, pursuant to Article 15 of Annex X to the Staff Regulations, PP requested reimbursement of education costs (education allowance B) for 2015/2016 exceeding the third country ceiling.
10On 17 December 2015, PP received an email from the appointing authority informing him that the reimbursement of education costs was limited, for each child, to the third country statutory ceiling plus EUR 10000. It is apparent from a notice at the end of that email that the email was sent for information only and did not constitute a decision adversely affecting the applicant within the meaning of Article 90 of the Staff Regulations. The difference between the education allowance that PP received and the education costs he incurred in respect of his children for the 2015/2016 school year was EUR 23 791.93.
11On 21 December 2015, at PP’s request, the appointing authority confirmed that he would receive for each child only a sum corresponding to the third country statutory ceiling plus EUR 10000.
12On 13 January 2016, PP informed the appointing authority of the resulting financial consequences to him and requested a final decision.
13On 14 January 2016, PP was informed that the email of 21 December 2015 was the final decision.
14On 16 March 2016, PP lodged a complaint within the meaning of Article 90(2) of the Staff Regulations against the email of 21 December 2015 and, in so far as necessary, against the email of 17 December 2015 and his February 2016 payslip.
15On 5 July 2016, the EEAS made a decision rejecting PP’s complaint.
C.pq
16In 2015, PQ applied for a post in the European Union delegation to China in Beijing. On 19 October 2015, it was proposed that he should hold that post from 1 January 2016.
17On 19 November 2015, under Article 15 of Annex X to the Staff Regulations, PQ requested an advance on the education allowance and the reimbursement of education costs (education allowance B) for 2015/2016 exceeding the third country statutory ceiling.
18On 17 December 2015, PQ received an email from the appointing authority informing him that the reimbursement of education costs was limited, for each child, to the third country statutory ceiling plus EUR 10000. It is apparent from a notice at the end of that email that the email was sent for information only and did not constitute a decision adversely affecting the applicant within the meaning of Article 90 of the Staff Regulations. The amount of the education costs was calculated pro rata on the basis of 8 months out of 12.
19When he arrived in China on 1 January 2016, PQ enrolled his children in the Western Academy of Beijing. The difference between the education allowance PQ received and the education costs he incurred in respect of his children for the 2015/2016 school year was EUR 10 011.94.
20On 14 March 2016, PQ lodged a complaint within the meaning of Article 90(2) of the Staff Regulations against the email of 17 December 2015.
21On 5 July 2016, the EEAS made a decision rejecting PQ’s complaint.
D.pr
22On 14 August 2013, PR began working at the European Union’s delegation to China in Beijing. When she arrived in China, she enrolled two of her children in the Western Academy of Beijing.
23On 25 September 2015, pursuant to Article 15 of Annex X to the Staff Regulations, PR requested reimbursement of education costs (education allowance B) for 2015/2016 exceeding the third country ceiling.
24On 17 December 2015, PR received an email from the appointing authority informing her that the reimbursement of education costs was limited, for each child, to the third country statutory ceiling plus EUR 10000. It is apparent from a notice at the end of that email that the email was sent for information only and did not constitute a decision adversely affecting the applicant within the meaning of Article 90 of the Staff Regulations. The difference between the education allowance that PR received and the education costs she incurred in respect of her children for the 2015/2016 school year was EUR 17 960.45.
25On 7 January 2016, on request, it was confirmed to PR that the education allowance she would receive for each child would not exceed the third country statutory ceiling plus EUR 10000.
26On 4 March 2016, PR asked to be sent an official decision.
27On 7 March 2016, PR received an email from the appointing authority informing her that the measure adversely affecting her was the email of 17 December 2015.
28On 12 March 2016, PR lodged a complaint within the meaning of Article 90(2) of the Staff Regulations against the email of 17 December 2015.
29On 5 July 2016, the EEAS made a decision rejecting PR’s complaint.
II.Procedure and forms of order sought
30By application lodged at the Court Registry on 17 October 2016, the applicants brought the present action.
31On 6 January 2017, the EEAS lodged its defence.
32On 9 March 2017, the applicants lodged their reply.
33On 3 May 2017, the EEAS lodged its rejoinder.
34On a proposal of the Judge-Rapporteur, the General Court (Fifth Chamber) decided to commence the oral part of the procedure and, by way of the measures of organisation of procedure provided for in Article 89 of its Rules of Procedure, invited the EEAS to produce a number of documents. The EEAS complied with that request.
35The parties presented oral argument and replied to the questions put to them by the Court at the hearing of 30 May 2018.
36The applicants claim that the Court should:– annul the decisions of 17 December 2015 ‘to limit to EUR 10000 the education costs incurred by the applicants’;– in so far as necessary, annul:– the email of 21 December 2015;– any other email confirming the decision of 17 December 2015;– the education allowance evaluation forms;– the payslips showing the amount of the education allowance received;– in so far as necessary, annul the decisions of 5 July 2016 rejecting their complaints;– order the EEAS to pay the costs.
37The EEAS contends that the Court should:– find the action to be admissible but unfounded;– order the applicants to pay the costs of the proceedings.
III.Law
38As a preliminary point, it should be noted that, under Article 1(2) of Council Decision 2010/427/EU of 26 July 2010 establishing the organisation and functioning of the EEAS (OJ 2010 L 201, p. 30), the EEAS is a functionally autonomous body of the European Union, separate from the General Secretariat of the Council of the European Union and from the European Commission with the legal capacity necessary to perform its tasks and attain its objectives.
39Under Article 6 of Decision 2010/427, the Staff Regulations and the Conditions of Employment of Other Servants of the European Union apply to the staff of the EEAS. Article 1b(a) of the Staff Regulations, for its part, provides that, save as otherwise provided, the EEAS is to be treated as an institution of the Union for the purposes of the Staff Regulations.
40In terms of subject matter, it should be noted that the applicants’ claims for annulment relate primarily to the emails of 17 December 2015 and the decisions rejecting the complaints and that the applicants are seeking only ‘in so far as necessary’ annulment of emails subsequent to that of 17 December 2015, education allowance evaluation forms and payslips referring to the amount of the education allowance received. Given the subject matter of the claims for annulment, the Court will examine, first of all, the claims for annulment of the emails of 17 December 2015 and the decisions rejecting the complaints and, thereafter, the other claims for annulment.
A.The claims for annulment of the emails of 17 December 2015 and of the decisions rejecting the complaints
41The applicants put forward four pleas in law in support of their claims for annulment of the emails of 17 December 2015 and the decisions rejecting the complaints.
42Under the first plea, they claim that, since their cases are exceptional, they were entitled to full reimbursement of education costs under Article 15 of Annex X to the Staff Regulations. That entitlement could not be limited by budgetary considerations. Under the first plea, they also argue that the contested decisions should in any event have been founded on general implementing provisions (‘GIPs’) that the EEAS should have adopted in accordance with the procedure under Article 110 of the Staff Regulations.
43The second plea alleges infringement of the EEAS Guidelines on education allowances (‘the Guidelines’).
44By the third plea, the applicants submit that the appointing authority infringed principles of primary law such as the rights of the child, the right to family life, the right to education, the principle of non-discrimination, the principle of legal certainty, the principle of proportionality and the principle of the protection of acquired rights and legitimate expectations.
45The fourth plea alleges manifest errors of assessment.
46It is appropriate to analyse first of all the argument put forward by PR under the fourth plea, alleging that, in the light of her arguments, the email of 17 December 2015 and the decision rejecting her complaint contain an insufficient statement of reasons.
47Secondly, the Court will examine the arguments that the applicants set out under the fourth plea in law, seeking to show that the appointing authority’s finding that their cases were not exceptional within the meaning of the second sentence of Article 15 of Annex X to the Staff Regulations is vitiated by manifest errors of assessment.
48Thirdly, it is necessary to analyse the applicants’ arguments set out under the first to the fourth pleas, which seek to demonstrate that, in so far as the applicants were in exceptional circumstances within the meaning of the second sentence of Article 15 of Annex X to the Staff Regulations, the EEAS had an obligation to reimburse in full the education costs exceeding the third country statutory ceiling.
49Fourthly, the Court will examine the applicants’ arguments set out under the second to the fourth pleas, relating to the limitation, that the appointing authority imposed in the emails of 17 December 2015, on the reimbursement of education costs exceeding the third country statutory ceiling.
50Fifthly, it will be necessary to analyse the applicants’ arguments set out in particular under the first plea, alleging that the EEAS should have adopted GIPs.
1.The argument alleging an insufficient statement of reasons
51Under the fourth plea, PR alleges that, in the light of her arguments, the email of 17 December 2015 and the decision rejecting her complaint contain insufficient statements of reasons. According to PR, the appointing authority failed to take into account the exceptional circumstances she referred to in her request to be reimbursed for education costs, which, according to PR, justify those costs being reimbursed in full. In her view, enrolling her children in the Western Academy of Beijing was justified on the grounds that her children needed to maintain and improve the level of their Dutch mother tongue, as her children’s schooling had initially been in Dutch and they would most probably continue their schooling in that language if she were to return to headquarters in the coming years.
52It should be noted in that respect that, according to settled case-law, the obligation to state grounds laid down by the second paragraph of Article 25 of the Staff Regulations, which merely repeats the general obligation enshrined in Article 296 TFEU, is intended first to provide the person concerned with sufficient information to assess the merits of the act adversely affecting him and the opportunity to bring an action before the courts of the European Union and secondly, to enable the latter to review the legality of the act (see judgment of 29 September 2005, Napoli Buzzanca v Commission, T‑218/02, EU:T:2005:343, paragraph 57 and the case-law cited).
53In that context, it is also worth noting that the reasons given in a decision rejecting a complaint are deemed to be the same as those for the decision which was the subject of the complaint and can supplement that statement of reasons (see, to that effect, judgment of 16 January 2015, Trentea v FRA, T‑107/13 P, EU:T:2015:20, paragraph 77).
54As regards the statement of reasons for the decision rejecting PR’s complaint, it should be noted that, in that decision, on pages 21 and 22 in particular, the appointing authority stated, in essence, that, even in exceptional cases within the meaning of the second sentence of Article 15 of Annex X to the Staff Regulations, the EEAS did not automatically have an obligation to reimburse in full the education costs incurred exceeding the third country statutory ceiling. It also stated that it was entitled to take account of budgetary constraints. Furthermore, on pages 20 and 21 of that decision, the appointing authority stated that the right to education under Article 14(2) of the Charter of Fundamental Rights of the European Union does not cover education in a private school.
55The Court finds that it was possible for PR, on the basis of those reasons, to understand why the appointing authority had decided, notwithstanding the exceptional circumstances on which she relied in her request for reimbursement of education costs exceeding the third country statutory ceiling, not to reimburse those costs in full. Those reasons also enable the Court to review the legality of that decision.
56PR’s argument alleging infringement of the obligation to state reasons must therefore be rejected.
2.The arguments seeking to show that the appointing authority’s finding that the applicants’ cases were not exceptional is vitiated by manifest errors of assessment
57A number of the arguments that the applicants put forward under the fourth plea suggest that the appointing authority erred in finding that the applicants’ cases were not exceptional and that that finding is vitiated by a manifest error of assessment.
58The applicants’ arguments in that regard are based on the premiss that, in the contested decisions, the appointing authority did not find the applicants to be in exceptional situations.
59However, it should be noted in that context that the first sentence of Article 15 to Annex X to the Staff Regulations provides that, on the conditions laid down by the appointing authority, officials are to receive an education allowance to cover the actual education costs incurred, paid on the production of supporting documents. The second sentence of Article 15 provides that, except in cases deemed exceptional by the appointing authority, that allowance cannot exceed the third country statutory ceiling. As that last sentence indicates, the appointing authority can therefore lawfully grant a reimbursement exceeding the third country statutory ceiling only in exceptional cases within the meaning of that sentence.
60As can be seen from the emails of 17 December 2015, the amount that the EEAS reimbursed for the applicants’ children’s education costs exceeded the statutory ceiling. It follows that the appointing authority did find that the applicants’ cases were exceptional within the meaning of the second sentence of Article 15 of Annex X to the Staff Regulations.
61The applicants’ assumption that the appointing authority did not find their situations to be exceptional is therefore incorrect. Their arguments must accordingly be rejected.
3.The arguments seeking to show that the appointing authority had an obligation to reimburse the applicants in full for the education costs exceeding the third country statutory ceiling
62According to the applicants, since their cases are exceptional, the appointing authority had an obligation to reimburse in full their education costs exceeding the third country statutory ceiling. In support of that claim they submit, first, arguments concerning the interpretation of Article 15 of Annex X to the Staff Regulations and, second, arguments based on the Guidelines.
(a)The arguments based on the interpretation of Article 15 of Annex X to the Staff Regulations
63The applicants claim that, under Article 15 of Annex X to the Staff Regulations, the appointing authority had an obligation to reimburse in full their education costs exceeding the third country statutory ceiling. Their cases were exceptional because, according to the applicants, the only forms of education available in Beijing that were suitable for their children gave rise to education costs exceeding the third country statutory ceiling. In support of their reasoning, they put forward arguments based on the wording of Article 15 of Annex X to the Staff Regulations and the travaux préparatoires of that annex and arguments based on a construction of that article in the light of the principle of legal certainty, the principle of the protection of acquired rights and legitimate expectations, the principle of non-discrimination, the rights of the child, the right to family life, the right to education and the principle of proportionality.
(1)The arguments based on the wording of Article 15 of Annex X to the Staff Regulations and the travaux préparatoires of that annex
64In the decisions rejecting the complaints, the appointing authority stated, in essence, that Article 15 of Annex X to the Staff Regulations did not establish an unconditional right to the reimbursement of education costs exceeding the third country statutory ceiling and that, beyond that ceiling, it was entitled to limit education allowances having regard to the available budget.
65Under the first plea, the applicants claim that such an interpretation of Article 15 of Annex X to the Staff Regulations is incorrect. That article does not permit the authority to limit the reimbursement of education costs in exceptional cases, in which the only forms of education suitable for the children of delegation officials available in the third country in question give rise to costs exceeding the third country statutory ceiling. In support of that interpretation, they argue that the wording of the second sentence of Article 15 does not establish limits on the amount of the education allowances payable in exceptional cases, and refer to the travaux préparatoires of that annex.
66The EEAS disputes those arguments.
67In that regard, it should be noted that the first sentence of Article 15 of Annex X to the Staff Regulations provides that education allowances are to cover the actual education costs incurred. It should also be noted, however, that under the second sentence of that article the amount of education allowances cannot, in principle, exceed the third country statutory ceiling. Admittedly, that sentence also states that, in exceptional cases, that maximum allowance can be exceeded. Nevertheless, the wording of that sentence does not indicate to what extent education allowances must cover the education costs necessary in order to receive a suitable form of education.
68As regards what constitutes an exceptional case within the meaning of the second sentence of Article 15 of Annex X to the Staff Regulations, it is apparent from the travaux préparatoires of that annex that the article seeks to achieve the objective of enabling the children of EU officials to receive free education and to prevent the fact that an official performs his or her duties outside the European Union from entailing discrimination on that point. In that context, it must also be highlighted that those travaux préparatoires are predicated on the principle that not all the forms of free public education available in the country of posting are necessarily suitable for the children of EU officials. They also make it clear that the forms of education available in the third country that are suitable for the children of EU officials may be limited and very expensive and that the option of exceeding the third country statutory ceiling established by the second sentence of Article 15 of Annex X to the Staff Regulations was created to address such a situation. In the light of the foregoing, it must be concluded that the applicants are in a situation for which the option of exceeding the third country statutory ceiling was established in the second sentence of Article 15 of Annex X to the Staff Regulations.
69Nevertheless, contrary to the applicants’ assertions, it cannot be inferred from the travaux préparatoires of Annex X to the Staff Regulations that the second sentence of Article 15 of that annex must be interpreted as meaning that, in exceptional cases within the meaning of that sentence, there is an unlimited right to the full reimbursement of education costs exceeding the third country statutory ceiling.
70As is apparent from those travaux préparatoires, the third country statutory ceiling was introduced in order to avoid excessive expenditure as a result of reimbursing education costs. The applicants’ thesis does not take sufficient account of the existence of that ceiling or of the decision by the EU legislature that, in principle, reimbursements of education costs should not exceed that ceiling. Against that background, it is necessary to bear in mind that the education costs required in order to obtain suitable education in a third country may depend on factors beyond the control of the EEAS, such as exchange rates or the demand for those forms of education. By providing for the third country statutory ceiling, the EU legislature sought to ensure that the EEAS budget did not have to bear excessive expenditure resulting from such factors. A construction of the second sentence of Article 15 of Annex X to the Staff Regulations to the effect that, in exceptional cases within the meaning of that provision, there was an unlimited right to the reimbursement of education expenses exceeding the third country statutory ceiling, irrespective of the consequences for the EEAS budget, would fail to take that objective into account.
71Moreover, the EU legislature cannot be found to have intended to exclude reimbursement only of the portion of the education costs exceeding the third country statutory ceiling that is due to the fact that, whilst there are schools offering suitable education with lower fees, members of the EEAS staff choose to enrol their children in schools that charge higher fees. Indeed, had the legislature wanted to confine itself to excluding reimbursement only of that portion of education costs, it could have stated that intention.
72In the light of the foregoing, it must be held that, contrary to the applicants’ arguments, 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.
73The arguments based on the wording of Article 15 of Annex X to the Staff Regulations and the travaux préparatoires of that annex must therefore be rejected.
(2)The arguments alleging infringement of the principle of legal certainty, the principle of due regard for the applicants’ acquired rights and legitimate expectations and the principle of sound administration
74In the decisions rejecting PO and PP’s complaints, the appointing authority stated that limiting reimbursement of the applicants’ education costs to the third country statutory ceiling plus EUR 10000 did not infringe the principle of protecting the applicants’ legitimate expectations. The applicants did not, it contended, receive precise, unconditional and consistent assurances coming from authorised and reliable sources that they would be reimbursed in full for education costs throughout their posting in China.
75The applicants argue that those assertions are wrong. They submit that the principle of legal certainty, the principle of due regard for their acquired rights and legitimate expectations and the principle of sound administration preclude any limitation on the reimbursement of their education costs.
76The EEAS disputes those arguments.
77In the first place, as regards the argument that the principle of legal certainty precludes any amendment of the applicable rules without discussion or the prior provision of information and without transitional measures, suffice it to note that Article 15 of Annex X to the Staff Regulations has not been amended. In that context, it is also worth noting that, according to statements made by the EEAS at the hearing, which the applicants have not disputed, the limitation of reimbursement of education costs exceeding the third country statutory ceiling to EUR 10000 had already been applied to education costs for the 2014/2015 school year. That argument must therefore be rejected.
78In the second place, as regards the applicants’ acquired rights, it is sufficient to note that the applicants have not submitted any evidence to demonstrate that they had an acquired right to full reimbursement of education costs exceeding the third country statutory ceiling for the 2015/2016 school year. On the contrary, as can be seen from the statements, which the applicants have not disputed, made by the appointing authority in the decisions rejecting PO and PP’s complaints, in the context of its decisions on the requests for the reimbursement of education costs for earlier school years, the EEAS was careful to state that those decisions related only to the school year in question and did not constitute a right for future school years. That argument must therefore also be rejected.
79In the third place, as regards the applicants’ legitimate expectations, according to the case-law, 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, secondly, 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, thirdly, the assurances given must comply with the applicable rules (judgment of 15 November 2005, Righini v Commission, T‑145/04, EU:T:2005:395, paragraph 130).
80However, in the light of the wording of Article 15 of Annex X to the Staff Regulations and the contents of the Guidelines, which provided that requests for reimbursement of education costs exceeding the third country statutory ceiling would be examined on the basis of the available budget, the mere fact that, in the past, the applicants may have received education allowances exceeding the third country statutory ceiling and covering the education costs in full cannot in itself be regarded as a precise, unconditional and consistent assurance within the meaning of the case-law referred to in paragraph 79 above. That is all the more so in so far as, in the context of its decisions on the requests for the reimbursement of education costs for earlier school years, the EEAS was careful to state that those decisions related only to the school year in question and did not constitute a right for future school years (see paragraph 78 above).
81In the fourth place, the applicants allege infringement of the principle of sound administration. They argue that the contested decisions were made in the middle of the school year, when the officials had already paid the registration fees. By then, they could no longer do anything about it.
82In that regard, it should be noted that, in essence, the applicants’ argument is based on the mistaken assumption that, before they enrolled their children in the schools in question, they were entitled to rely on the fact that they would be reimbursed the education costs in full, including the amount exceeding the third country statutory ceiling. As already set out in paragraphs 77 to 80 above, there was no valid basis for any such expectations. That argument must therefore also be rejected.
83Accordingly, contrary to what the applicants claim, neither the principle of legal certainty nor the principle of due regard for their acquired rights or legitimate expectations, or the principle of sound administration, prevented the appointing authority from limiting the reimbursement of education costs exceeding the third country statutory ceiling.
(3)The arguments alleging infringement of the principle of non-discrimination
84Under the second part of the third plea in law and the third part of the third plea in law, the applicants submit arguments alleging infringement of the principle of non-discrimination.
85In that regard, it should be recalled that, according to the principle of non-discrimination, comparable situations must not be treated differently or different situations be treated in the same way, unless such difference in treatment is objectively justified (judgment of 28 June 1990, Hoche, C‑174/89, EU:C:1990:270, paragraph 25).
86The elements which characterise different situations and their comparability must in particular be determined and assessed in the light of the subject matter and purpose of the EU act which makes the distinction in question. In that context, the principles and objectives of the field to which the act relates must also be taken into account (judgment of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 26).
87A difference in treatment is justified if it is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by the legislation in question, and it is proportionate to the aim pursued by the treatment (judgment of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 47).
88In the decisions rejecting the complaints, the appointing authority refuted the claim that it had infringed the principle of non-discrimination. It contends that it did not treat identical situations differently. Delegation officials are not in the same situation as officials serving at headquarters in Brussels (Belgium). That is why Annex X to the Staff Regulations establishes specific rules for officials serving in third countries.
89The applicants submit that those assertions are wrong.
90In the first place, they claim that delegation officials are treated in the same way as officials at headquarters, even though they are in different situations.
91The EEAS disputes that argument.
92The applicants’ argument must be rejected. As can be seen from Article 101a of the Staff Regulations, Annex X of those regulations lays down the special and exceptional provisions applicable to officials serving in a third country and that annex establishes specific rules on the education allowances those officials receive, which are different from those applicable to officials serving at headquarters. Not only does Article 15 of Annex X establish that the ceiling for those allowances is six times the basic ceiling for the education allowance under Article 3(1) of Annex VII to the Staff Regulations, it also permits that ceiling to be exceeded in exceptional cases. Accordingly, contrary to what the applicants assert, officials posted to delegations are not treated in the same way as officials serving at headquarters.
93In the second place, the applicants argue that, whilst both officials serving at headquarters and delegation officials are entitled to free education for their children, they are treated differently in so far as, for the children of delegation officials, the reimbursement of education costs might be limited.
94The EEAS disputes that argument.
95It should be recalled at the outset that, as described in paragraph 92 above, first, the statutory ceiling for delegation officials is higher than that for officials serving at headquarters and, secondly, the ceiling for delegation officials can be exceeded in exceptional cases, whereas there is no such option for officials serving at headquarters. Accordingly, the rules in Annex X to the Staff Regulations establish more favourable treatment for the applicants than for officials serving at headquarters.
96Nevertheless, by their line of argument, the applicants also seek to claim that they are treated differently because, by virtue of the European Schools or of the education allowances they receive, the children of officials serving at headquarters have free access to a suitable form of education, whereas the education allowances that they received do not enable their children to receive a suitable education in Beijing free of charge.
97In that regard, it should be recalled that one of the objectives of Article 15 of Annex X to the Staff Regulations is that officials posted to third countries should be treated in a non-discriminatory manner compared with officials serving at headquarters as regards free education for their children (see paragraph 68 above). In the light of the case-law referred to in paragraph 86 above, it is therefore necessary to examine whether, in the light of that objective, officials posted to delegations are treated in a discriminatory manner compared with those serving at headquarters.
98It should be noted that, at the hearing, the EEAS stated that there were schools in Beijing that provided suitable education whose fees were lower than those borne by the applicants. Nevertheless, in neither the emails of 17 December 2015 nor the decisions rejecting the applicants’ complaints did the EEAS rely on the fact that suitable education was available for the third country statutory ceiling plus EUR 10000 or less.
99In any event, assuming that there is no school in Beijing that can provide a suitable education for the applicants’ children at a cost of EUR 27 788.40, corresponding to the third country statutory ceiling plus EUR 10000, and if it is found that the education costs in respect of children of officials serving at headquarters are in practice reimbursed in full, the applicants would indeed have been treated differently from officials serving at headquarters. Nevertheless, different treatment is only discrimination if it is not objectively justified.
100In that respect it should be noted, first, that the EEAS has a wide discretion as to how it allocates the budgetary envelope available to it for non-compulsory expenditure. As the EEAS submitted at the hearing, the objective it pursued by limiting the reimbursement of education costs exceeding the third country statutory ceiling plus EUR 10000 was to extend 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. Given the wide discretion available to the EEAS, the choice of that objective cannot be challenged.
101Secondly, it should be noted that the applicants are not disputing that there were budgetary constraints. They merely argue that the appointing authority failed to take sufficiently into account the fact that limiting the reimbursement of school fees could generate other costs, such as the costs of children repeating a year and the costs of moving house, transfers and periods of invalidity.
102It must be stated in that regard that, by those arguments, the applicants seek, in essence, to call into question whether limiting the reimbursement of education costs exceeding the third country statutory ceiling plus EUR 10000 was appropriate for the purposes of achieving the objective of extending the reimbursement of those costs to the maximum possible number of officials who applied for it.
103In view of the EEAS’ wide discretion in that respect, the Court must confine itself to reviewing whether the applicants’ arguments are such as to demonstrate that the EEAS made a manifest error. That would only be the case if the applicants’ arguments were such as to make the EEAS’ findings implausible.
104It must be stated that the argument based on the costs that might potentially arise from any repeated years, house moves, transfers and periods of invalidity, which is not reasoned in the slightest, is not such as to render implausible the EEAS’ view that limiting the reimbursement of education costs exceeding the third country statutory ceiling to EUR 10000 was an appropriate way to allocate the limited budget available to it.
105The arguments put forward by the applicants are therefore not such as to demonstrate that any difference in treatment was not objectively justified.
106It follows that the argument alleging that the applicants were discriminated against compared with officials serving at headquarters must also be rejected.
107In the third place, in so far as the applicants maintain that they have been discriminated against compared with officials posted to EU missions in third countries where the third country statutory ceiling plus EUR 10000 is sufficient to cover education costs in order to receive suitable education, those arguments must be rejected, referring to the reasoning set out in paragraphs 93 to 106 above.
108In the fourth place, as regards the applicants’ argument that the EEAS favours officials without children, it is sufficient to note that officials with children are not treated in the same way as officials without children. Indeed, Article 3 of Annex VII to the Staff Regulations and Article 15 of Annex X to the Staff Regulations provide that education allowances are granted only for officials with dependent children.
109Accordingly, none of the arguments alleging infringement of the principle of non-discrimination submitted by the applicants demonstrates that, in the light of that principle, Article 15 of Annex X to the Staff Regulations must be interpreted as giving them a right to full reimbursement of education costs.
(4)The arguments alleging infringement of the rights of the child, the right to family life and the right to education
110Under the third part of the third plea, the applicants argue, in essence, that, in the light of the rights of the child, the right to family life and the right to education, Article 15 of Annex X to the Staff Regulations should have been interpreted as giving them a right to full reimbursement of education costs.
111In the decisions rejecting PO, PP and PR’s complaints, the appointing authority refuted the claim that it infringed the right to education. The appointing authority asserted, first, that the Charter of Fundamental Rights did not establish any provision obliging employers to reimburse their staff in full for the education costs arising from their children being enrolled in a private school, secondly, that it did not infringe the right to education under Article 14 of the Charter of Fundamental Rights, in so far as that article is intended to protect the right to receive compulsory education free of charge in the Member States, but does not give a right to receive education in private schools such as the schools chosen by the applicants and, thirdly, in any event, that a limitation on that right can be justified under Article 52 of the Charter of Fundamental Rights.
112The applicants argue that those assertions are wrong.
113In the first place, they contend that, according to Article 14 of the Charter of Fundamental Rights, everyone has the right to education and that this right includes the possibility to receive compulsory education free of charge. In EU countries, education is generally compulsory for children of between 6 and 16 years. The children of delegation officials have a right to education at a similar level. In a number of third countries, however, the choice of schools offering that level is limited. In those third countries, therefore, the right to education is in their view not limited to free public education. That applies in particular where, in a third country, public education is provided only in the national language of that country but not in either the mother tongue of the children of the delegation staff or in English.
114The EEAS disputes those arguments.
115First, as regards the right to education enshrined in Article 14 of the Charter of Fundamental Rights, Article 14(2) does indeed safeguard the possibility of receiving compulsory education free of charge.
116However, first of all, it is apparent from the explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 2), to which due regard must be given pursuant to Article 52(7) of that charter, that Article 14 thereof does not require private establishments that provide compulsory education to be free.
117Next, it cannot be inferred from Article 14(2) of the Charter of Fundamental Rights that the European Union has a duty to safeguard, in the territory of third countries, free compulsory education corresponding to that existing in the EU Member States.
118Furthermore, the applicants have not argued that their children did not have access to national public education in China.
119In addition, in respect of the applicants’ arguments that the children of delegation staff are entitled to a suitable form of education, it is necessary to distinguish between the rights safeguarded by the Charter of Fundamental Rights and the rights safeguarded by the Staff Regulations.
120On the one hand, as regards the rights under the Staff Regulations, it is sufficient to bear in mind that Article 15 of Annex X to the Staff Regulations cannot be interpreted as requiring the EEAS to reimburse education costs exceeding the third country statutory ceiling without limitation (see paragraphs 64 to 73 above).
121On the other hand, in so far as the applicants’ arguments concern Article 14 of the Charter of Fundamental Rights, it must be noted that Article 14 confers minimum rights for everyone and that the right of officials’ children to a suitable form of education in a third country is not one of those rights.
122In the light of the foregoing, the applicants’ argument that the right to education under Article 14 of the Charter of Fundamental Rights has been limited must be rejected.
123Secondly and in any event, 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, that such a limitation may be justified under Article 52(1) of the Charter of Fundamental Rights. 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 (see paragraphs 100 to 105 above).
124Accordingly, contrary to what the applicants claim, the right to education enshrined in Article 14 of the Charter of Fundamental Rights 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 the applicants found themselves, the EEAS had an obligation to reimburse in full their education costs exceeding the third country statutory ceiling.
125In the second place, the applicants claim that, in the light of the rights of the child enshrined in Article 24 of the Charter of Fundamental Rights, the right to family life enshrined in Article 9 of that charter and the right to the protection of the family under Article 33 of that charter, Article 15 of Annex X to the Staff Regulations must be interpreted as meaning that, since their cases are exceptional, they have a right to full reimbursement of education costs exceeding the third country statutory ceiling. In their view, by moving to China with their families, they exercised their right to a family life. In that context, they assert that officials posted to delegations do not necessarily do so of their own volition. On the one hand, some officials, like PO and PP, were posted to China in the interests of the service. On the other, all EEAS staff periodically have to serve in the European Union delegations. The financial burden that a limitation on the reimbursement of education costs exceeding the third country statutory ceiling places on certain officials’ households in their view infringes either the rights of their children or their rights to family life in so far as, because of that burden, the children risk being separated from a parent who is serving at a delegation, so that they can receive a suitable form of education in an EU country.
126The EEAS disputes those arguments.
127In that respect it should be noted, first, that the applicants’ arguments intended to demonstrate that there is a limitation on the right to family life and the rights of the child rest on the premiss that an official can be posted against his or her will to a European Union delegation to a third country in which education costs exceed the third country statutory ceiling.
128It must be recalled in that context that the applicants decided to join the EEAS, in the knowledge that this involved periodically serving in European Union delegations (see, in that respect, the third sentence of Article 6(10) of Decision 2010/427).
129It should also be noted that the applicants have not proven that they were posted against their will to the European Union delegation to China in Beijing. Indeed, it emerges from the case file that a number of the applicants requested at their own initiative to be posted to the European Union delegation to China. The applicants confirmed at the hearing that the officials who were posted to the European Union delegation to China in the interests of the service were not posted against their wishes. It should also be noted here that the EEAS stated in its pleadings and at the hearing that members of EEAS staff are not posted to a European Union delegation to a third country against their wishes, and that the applicants have not disputed that assertion in specific detail.
130In those circumstances, the fact that the applicants have not been reimbursed in full for the education costs exceeding the third country statutory ceiling cannot be regarded as a limitation on the rights of their children within the meaning of Article 24 of the Charter of Fundamental Rights, the right to family life within the meaning of Article 9 of that charter or on the right to the protection of the family under Article 33.
131Secondly and in any event, it should be recalled that any limitation on the right to family life due to the fact that the financial burden caused by partial reimbursement of education costs in the country of posting meant that children could not accompany one of their parents when they were posted to a European Union delegation to a third country might be justified under Article 52(1) of the Charter of Fundamental Rights (see paragraph 123 above).
132In the light of the foregoing, the applicants’ arguments alleging infringement of the rights of the child, the right to family life and the right to protection of the family and the right to education must be rejected.
(5)The arguments alleging infringement of the principle of proportionality
133The applicants submit that, by limiting the reimbursement of education costs, even though their cases were exceptional within the meaning of the second sentence of Article 15 of Annex X to the Staff Regulations, the appointing authority took into account solely the objective of reducing the financial impact involved in reimbursing education costs. They claim that, by acting in that way, without sufficiently taking their rights and interests into account, the appointing authority infringed the principle of proportionality.
134The EEAS disputes those arguments.
135It is sufficient to bear in mind on that point that the principle of proportionality and the arguments that the applicants have submitted in relation to it have already been addressed in the context of examining any infringement of the rights relied upon by the applicants in paragraphs 74 to 132 above (see in particular paragraphs 100 to 105 above). That examination did not show that the appointing authority disproportionately infringed the applicants’ rights by not reimbursing the applicants in full for the education costs exceeding the third country statutory ceiling.
136The arguments alleging infringement of the principle of proportionality must therefore also be rejected.
137In the light of the foregoing, it must be concluded that none of the arguments put forward by the applicants based on the wording and objectives of Article 15 of Annex X to the Staff Regulations, the principle of non-discrimination, the principle of legal certainty, the principle of due regard for acquired rights and legitimate expectations, the principle of sound administration, the rights of the child, the right to family life and the right to education or the principle of proportionality is such as to demonstrate that, in the situations in which the applicants found themselves, the appointing authority had an obligation to reimburse them in full for the education costs exceeding the third country statutory ceiling.
(b)The argument alleging failure to comply with the Guidelines
138In the decisions rejecting PQ and PR’s complaints, the appointing authority stated that it complied with the Guidelines. In its view, the Guidelines provide that those costs are reimbursed on the basis of the ‘available budget’.
139Under the second plea in law, the applicants argue that those assertions are incorrect. To their mind, the Guidelines preclude a limitation on the reimbursement of education costs where the only suitable forms of education for the children of EU officials posted to a third country entail costs exceeding the third country statutory ceiling. They do not establish a limit on the reimbursement of education costs in exceptional cases within the meaning of the second sentence of Article 15 of Annex X to the Staff Regulations.
140The EEAS disputes those arguments.
141The applicants’ arguments in that respect must be rejected. First, it is clearly apparent from the Guidelines, as they applied in the present case, that the decisions relating to requests for the reimbursement of education costs exceeding the third country statutory ceiling were made on the basis of the available budget. Secondly, there is nothing in the Guidelines to suggest that the appointing authority could not take account of budgetary constraints where the only suitable forms of education for the children of EU officials would entail costs exceeding the third country statutory ceiling.
142It follows that none of the arguments put forward by the applicants demonstrates that, in the exceptional situations in which they found themselves, they were entitled to full reimbursement of their education costs.
4.The arguments relating to the fact that the appointing authority limited the reimbursement of education costs exceeding the third country statutory ceiling
143In paragraphs 62 to 142 above, the Court examined only the applicants’ arguments seeking to show that, since their cases were exceptional, the appointing authority should have reimbursed their children’s education costs in full. Under the third plea in law, however, the applicants do not confine themselves to submitting those arguments, but also put forward arguments seeking to challenge how in practice the appointing authority limited the reimbursement of education costs exceeding the third country statutory ceiling in the contested decisions.
144In the decisions rejecting the complaints, the appointing authority stated, inter alia, that the limitation it had imposed on education costs exceeding the third country statutory ceiling was not discriminatory. Since the education allowances were payable for each child, a limit on that allowance also applied to each child. In its view such a method is not manifestly wrong.
145According to the applicants, the appointing authority’s reasoning infringes the principle of non-discrimination, the Guidelines, the rights of the child, the right to family life, the right to education and the principle of proportionality.
146The EEAS disputes those arguments.
147In the first place, the applicants argue that, by limiting reimbursement of the education costs exceeding the third country statutory ceiling, the appointing authority infringed the principle of non-discrimination and the Guidelines on the ground that it failed to examine individually the requests for reimbursement from the officials in question.
148That argument must be rejected. As can be seen in particular from the decisions rejecting the applicants’ complaints, the appointing authority took their individual situations into account when examining their requests for reimbursement of education costs exceeding the third country statutory ceiling. The amount of the allowances granted to the applicants were identical only because the amounts of the education costs that the applicants had requested be reimbursed all exceeded the EUR 10000 limit set by the appointing authority.
149In the second place, it is necessary to examine the applicants’ argument that the limit applied by the appointing authority infringes the principle of non-discrimination because it purportedly treats single-parent families and large families, on the one hand, in the same way as other families, on the other hand, whereas they are in different situations.
150In that regard, it should be recalled that, under the principle of non-discrimination, different situations must not be treated in the same way unless such different treatment is objectively justified, and the elements that characterise different situations and their comparability must in particular be determined and assessed in the light of the subject matter and purpose of the EU act which makes the distinction in question, taking into account the principles and objectives of the field to which the act relates (see paragraphs 85 and 86 above).
151The applicants have not argued that there is any objective of the Staff Regulations from which it can be inferred that, in relation to the amount of children’s education allowances, the appointing authority should have found the situation of single-parent and large families to be different from that of other families, thereby requiring different treatment. On the contrary, it should be noted that, first, it is apparent from Article 3(1) of Annex VII to the Staff Regulations that the education allowance is payable for each dependent child and, secondly, that, in the Staff Regulations, the EU legislature established ceilings limiting those education allowances. In the light of those facts, it cannot be found that, by limiting the reimbursement of the education costs for each child in excess of the third country statutory ceiling to EUR 10000, the appointing authority treated two different situations identically.
152Accordingly, the applicants’ arguments that the appointing authority infringed the principle of non-discrimination by treating single-parent and large families in the same way as other families must also be rejected.
153In the third place, as regards the other arguments alleging infringement of the principle of non-discrimination and the arguments alleging infringement of the rights of the child, the right to family life and the right to education and of the principle of proportionality, it is appropriate to refer to the reasoning set out in paragraphs 62 to 142 above. Furthermore, in the event that the limitation of the reimbursement of education costs exceeding the third country statutory ceiling did limit one of those rights, it should be noted that the applicants have not submitted any reasoned argument to show that the limitation in question was manifestly disproportionate in the light of the objective pursued by the EEAS, 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 constraints on the EEAS.
154It follows that the arguments based on the fact that the appointing authority limited the education costs exceeding the third country statutory ceiling must also be rejected in their entirety.
5.The arguments alleging that the contested decisions should have been based on GIPs
155Under the first plea in law, the applicants claim that the contested decisions should have been based on GIPs adopted in accordance with the procedure in Article 110(1) of the Staff Regulations. That procedure, they argue, requires the EEAS staff committee to be consulted and the Central Staff Committee to issue an opinion.
156The EEAS disputes those arguments.
157As a preliminary point it should be noted that, by decision HR DEC(2014)02 of 3 February 2014, the EEAS decided to apply the provisions contained in Commission Decision C(2013) 8971 final of 16 December 2013 on General implementing provisions on granting the education allowance under Article 3 of Annex VII to the Staff Regulations, and that decision HR DEC(2014)02 was adopted in accordance with the procedure under Article 110(1) of the Staff Regulations.
158However, by their arguments, the applicants are not questioning that the EEAS has GIPs concerning the application of Article 3 of Annex VII to the Staff Regulations, but claim that the EEAS should have adopted GIPs concerning the derogation under the second sentence of Article 15 of Annex X to the Staff Regulations, which allows that service to exceed the third country statutory ceiling in exceptional cases.
159In that respect, it should be noted that, according to the case-law, there is an obligation to issue GIPs, 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 (see, to that effect, judgment of 17 March 2016, Vanhalewyn v EEAS, T‑792/14 P, EU:T:2016:156, paragraphs 29 and 30).
160First of all, it is therefore necessary to examine whether there is an express provision laying down an obligation on the appointing authority to issue GIPs in exercise of its decision-making power under the second sentence of Article 15 of Annex X to the Staff Regulations, that is to say, for the purposes of its power to decide, in exceptional cases, to reimburse education costs exceeding the third country statutory ceiling.
161In the first place, it should be noted that no such express provision is apparent from the second sentence of Article 15 of Annex X to the Staff Regulations, which merely refers to the individual decisions that the appointing authority must make in exceptional circumstances.
162In the second place, even if the first sentence of Article 15 of Annex X to the Staff Regulations, which provides that the conditions on which an official receives an education allowance are laid down by the appointing authority, did cover the exceptional cases, referred to in the second sentence of that article, in which the appointing authority can exceed the third country statutory ceiling, it should be noted that the first sentence of Article 15 of Annex X to the Staff Regulations does not explicitly provide that those conditions must be laid down in the form of GIPs.
163In the third place, it is necessary to examine whether the third paragraph of Article 1 of Annex X to the Staff Regulations, which states that ‘[GIPs] shall be adopted in accordance with Article 110 of the Staff Regulations’, must be treated as an express provision requiring that GIPs be adopted concerning the exercise of a decision-making power conferred on the appointing authority under the second sentence of Article 15 of Annex X to the Staff Regulations.
164In that regard, it should be noted that the decision-making power that the second sentence of Article 15 of Annex X to the Staff Regulations confers on the appointing authority relates to exceptional cases. Furthermore, as indicated in particular in paragraphs 64 to 73 above, in connection with that decision-making power, the appointing authority must take into account budgetary constraints on the reimbursement of education costs exceeding the third country statutory ceiling. Those constraints mean that it must take into account all the requests for the reimbursement of such costs submitted by members of the EEAS staff, the amounts of which may vary depending on factors beyond the control of the service, such as exchange rates or the demand for such forms of education. It follows that, when exercising its decision-making power, the appointing authority must have a degree of flexibility, enabling it to take into account the total amount for which a reimbursement is requested, the available budget and any exceptional circumstances claimed by the persons concerned.
165In the light of those findings, the third paragraph of Article 1 of Annex X to the Staff Regulations cannot be interpreted as requiring the EEAS to adopt GIPs 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.
166Contrary to the applicants’ assertions, that finding is in line with the judgment of 17 March 2016, Vanhalewyn v EEAS (T‑792/14 P, EU:T:2016:156).
167The findings that led the Court to hold that the EEAS was obliged to adopt GIPs on the procedure established in the second paragraph of Article 10(1) of Annex X to the Staff Regulations cannot be transposed to the second sentence of Article 15 of that annex.
168As can be seen from paragraph 32 of the judgment of 17 March 2016, Vanhalewyn v EEAS (T‑792/14 P, EU:T:2016:156), as regards the procedure under the second paragraph of Article 10(1) of Annex X to the Staff Regulations, the EU legislature intended to ensure that the criteria used to determine the third countries in which living conditions can be deemed equivalent to those normally obtaining in the European Union are established in the abstract, independently of any procedure designed to determine, in a specific case, whether the living conditions in a country are equivalent in that way. The second paragraph of Article 10(1) of Annex X to the Staff Regulations therefore concerns a decision of general scope, covering all EEAS staff members posted to a third country. It should also be noted that, where the living conditions in a third country are not equivalent to those normally obtaining in the European Union, the EEAS staff members posted to that country are entitled to an allowance for living conditions.
169In contrast, as set out in paragraphs 62 to 142 above, even if the situation of an EEAS staff member is an exceptional case within the meaning of the second sentence of Article 15 of Annex X to the Staff Regulations, that provision does not confer an unconditional right to full reimbursement of the education costs exceeding the third country statutory ceiling. Furthermore, the decision-making power conferred on the appointing authority by that provision relates not to a decision of general scope, but to decisions of individual scope which must be made in exceptional cases and, as stated in paragraph 164 above, 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 EEAS 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 such costs.
170It follows that the Court’s finding on the second paragraph of Article 10(1) of Annex X to the Staff Regulations, according to which the EU legislature intended to ensure that the criteria used to determine the third countries in which living conditions can be deemed equivalent to those normally obtaining in the European Union are established in the abstract, independently of any procedure designed to determine, in a specific case, whether the living conditions in a country are equivalent in that way, and therefore within the framework of GIPs, cannot be transposed to the decision-making power conferred on the appointing authority by the second sentence of Article 15 of Annex X to the Staff Regulations.
171In the light of the foregoing, it must be concluded that there is no express provision laying down an obligation to issue GIPs concerning the exercise of the appointing authority’s decision-making power under the second sentence of Article 15 of Annex X to the Staff Regulations.
172Secondly, it should be noted that, according to the case-law, where there is no express provision laying down an obligation to issue GIPs, 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 (see paragraph 159 above).
173In 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 (see paragraph 164 above), 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 within the meaning of the case-law cited in paragraph 159 above.
174In any event, the applicants have not put forward any arguments capable of demonstrating that, if there are no GIPs, any application of the second sentence of Article 15 of Annex X to the Staff Regulations must necessarily be arbitrary. First, as emerges from paragraphs 62 to 154 above, the applicants’ arguments seeking to show that the EEAS erred in applying the second sentence of Article 15 of Annex X to the Staff Regulations must be rejected. Second, it should be noted that the applicants have not put forward other reasoned arguments on that point.
175Lastly and in any event, it should be noted that, even if the EEAS had been obliged to adopt GIPs, in the light of the findings set out in paragraphs 64 to 137 above, it would not have been bound to lay down in those GIPs an obligation to reimburse in full the education costs exceeding the third country statutory ceiling.
176In the light of the foregoing, the arguments alleging that the EEAS had an obligation to adopt GIPs concerning its decision-making power under the second sentence of Article 15 of Annex X to the Staff Regulations must be rejected.
177All the pleas in law submitted by the applicants must therefore be rejected. Accordingly, the claim for annulment of the emails of 17 December 2015 and the claim for annulment of the decisions rejecting the applicants’ complaints must be dismissed, and it is not necessary to rule on whether the last claim is admissible.
B.The other claims for annulment
178As regards the claims for annulment relating to the emails subsequent to 17 December 2015, the education allowance evaluation forms and the payslips showing the amount of the education allowance received, it is sufficient to note that, in support of those claims, the applicants confined themselves to submitting the pleas in law that have already been examined and rejected in paragraphs 41 to 177 above. Those claims must therefore also be rejected, and it is not necessary to rule on whether they are admissible.
179In the light of the foregoing, the action must be dismissed in its entirety.
IV.Costs
180The applicants claim that, in the event of the action being dismissed, they should not be ordered to pay the costs arising from the fact that the EEAS decided to be assisted by lawyers. That decision should not be prejudicial to them. Ordering the applicants to bear the costs and expenses of an external legal firm, whereas the EEAS, they argue, has an internal legal department, would fetter their right of access to a tribunal.
181The EEAS disputes those arguments.
182Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
183As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the EEAS.
184As regards the applicants’ claim that they should not be ordered to pay the costs arising because the EEAS decided to be assisted by lawyers, in so far as the claim is based on the recoverability of costs, it should be recalled that the General Court rules on the recoverability of costs on application by the party concerned, by order adopted under Article 170(1) of the Rules of Procedure (see, to that effect, judgment of 2 April 2014, Ben Ali v Council, T‑133/12, not published, EU:T:2014:176, paragraph 104). Such a claim must therefore be rejected as inadmissible in the present proceedings.
185Furthermore, were that claim based on Article 135(1) of the Rules of Procedure, according to which, if equity so requires, the General Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his own, or even that no order should be made against it in respect of costs, it is sufficient to note that the circumstances on which the applicants rely do not justify applying that article. In contrast, it is apparent from the first paragraph of Article 19 of the Statute of the Court of Justice of the European Union, which applies to the General Court by virtue of the first paragraph of Article 53 of that statute, that, as regards how they wish to be represented or assisted before the courts of the European Union, the institutions of the European Union are free to be assisted by a lawyer.
186The applicants’ claim that they should not be ordered to pay the costs arising from the fact that the EEAS decided to be assisted by lawyers must therefore be dismissed.
Operative part
On those grounds,THE GENERAL COURT (Fifth Chamber)hereby:
1.Dismisses the action;
2.Orders PO, PP, PQ and PR to bear their own costs and to pay the costs incurred by the European External Action Service (EEAS).
Delivered in open court in Luxembourg on 25 October 2018.
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.