LR v European Investment Bank (T-529/20)

Contents

Judgment of the General Court (Seventh Chamber, Extended Composition)7 September 2022^note(Civil service — EIB staff — Remuneration — Resettlement allowance — Establishment of a member of staff’s residence in his or her own home after leaving the service of the EIB — Second indent of the first paragraph of Article 13 of the EIB Staff Rules — Concept of home — Literal interpretation according to a prevailing language version– Unlimited jurisdiction — Dispute of a financial character — Admissibility)In Case T‑529/20,LR, represented by J.L. Gómez de la Cruz Coll and M. Casado García‑Hirschfeld, lawyers,vEuropean Investment Bank (EIB), represented by A.V. García Sánchez and I. Zanin, acting as Agents, and by A. Manzaneque Valverde and J. Rivas de Andrés, lawyers,THE GENERAL COURT (Seventh Chamber, Extended Composition),composed of M. Van der Woude, President, S. Papasavvas, R. da Silva Passos, V. Valančius (Rapporteur) and M. Sampol Pucurull, Judges,Registrar: P. Nuñez Ruiz, Administrator,having regard to the written part of the procedure,further to the hearing on 24 February 2022,gives the following

Judgment

1By his action based on Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union, the applicant, LR, seeks, first, annulment of the decision of the European Investment Bank (EIB) of 9 January 2020 refusing him the benefit of the resettlement allowance (‘the contested decision’) and, secondly, an order that the EIB pay the resettlement allowance, together with default interest calculated at the European Central Bank (ECB) rate, increased by two percentage points.

Background to the dispute

2The applicant was recruited by the EIB on [confidential] and retired on [confidential].

3During that period, the applicant resided with his family in [confidential].

4On 4 September 2019, the applicant applied to the EIB for payment of a resettlement allowance on the ground that, following his retirement, he had moved to [confidential].

5On 9 January 2020, by the contested decision, the EIB rejected the applicant’s request on the grounds that he owned the house into which he had moved back and that he therefore did not satisfy the conditions for the grant of the resettlement allowance provided for in Article 13 of the EIB Staff Rules (‘the Staff Rules’).

6On 19 February 2020, the applicant applied to the President of the EIB, primarily, for the grant of the resettlement allowance in the event that, in the case which has since given rise to the judgment of 12 May 2021, DF and DG v EIB (T‑387/19, not published, EU:T:2021:258), the Court would rule in favour of the applicants and, in the alternative, for a review of the contested decision, in accordance with Article 41 of the EIB Staff Regulations.

7By decision of 15 May 2020, notified on 20 May 2020, the EIB rejected the applicant’s request for review (‘the decision rejecting the request for review’) on the ground that, according to its interpretation, the term ‘own home’ in the second indent of the first paragraph of Article 13 of the Staff Rules designated the property of the member of staff or of a member of his or her family.

Forms of order sought

8The applicant claims that the Court should:– annul the contested decision;– annul the decision rejecting the request for review;– order the EIB to pay the resettlement allowance together with default interest calculated at the ECB rate, increased by two percentage points;– order the EIB to pay the costs.

9The EIB contends that the Court should:– dismiss the action;– order the applicant to pay the costs.

Law

The claim for annulment of the decision rejecting the request for review

10By his second head of claim, the applicant asks the Court to annul the decision rejecting the request for review.

11In that regard, in accordance with the settled case-law relating to, inter alia, the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), which must be applied by analogy in the present case, claims for annulment formally brought against a decision to reject a complaint have, where that decision lacks any independent content, the effect of bringing before the General Court the act against which the complaint was submitted (see, to that effect, judgment of 17 March 2021, EJ v EIB, T‑585/19, not published, EU:T:2021:142, paragraph 22 and the case-law cited).

12In the present case, it should be noted that the decision rejecting the request for review does not alter the meaning or the scope of the contested decision by which the EIB refused to grant the applicant the resettlement allowance when he moved to [confidential].

13Consequently, it must be held that the EIB did not, in the decision rejecting the request for review, carry out a fresh examination of the applicant’s situation in the light of new matters of law and of fact which the applicant might have put forward against the contested decision, but confined itself, in response to the applicant’s request for review of 19 February 2020, to providing clarification concerning the grounds of that decision. Such clarifications cannot justify the rejection of a request for review being regarded as an autonomous act adversely affecting the applicant.

14The claim for annulment must therefore be regarded as being directed solely against the contested decision, the legality of which must, however, be examined by taking into account the statement of reasons contained in the decision rejecting the request for review, which is deemed to be the same as that of the contested decision (see, to that effect, judgment of 14 July 2021, KO v Commission, T‑389/20, not published, EU:T:2021:436, paragraph 15 and the case-law cited).

The claim for annulment of the contested decision

15In support of the first head of claim, the applicant relies on four pleas in law, alleging, first, infringement of Article 13 of the Staff Rules; second, breach of the obligation to consult the EIB’s staff representatives; third, infringement of the principles of proportionality, protection of acquired rights, protection of legitimate expectations and the obligation to provide for transitional arrangements; and, fourth, infringement of the principles of equal treatment and non-discrimination, of the duty of care and of the principle of good administration.

16As regards the first plea, the applicant claims that the EIB misinterprets Article 13 of the Staff Rules relating to the reimbursement of expenses and payment of flat-rate allowances at the time of leaving the service of the EIB.

17The applicant claims that the EIB misinterprets the term ‘own home’ as meaning ‘real property in which the member of staff or his or her spouse has an interest, however small’ even if the staff member concerned or his or her family does not reside there and has never resided there.

18According to the EIB, the contested decision is based not on a new interpretation of the term ‘own home’, but on the correct application of Article 13 of the Staff Rules, interpreted in the light of its context, general scheme and purpose. The EIB considers that the applicant’s interpretation of the second indent of the first paragraph of Article 13 of the Staff Rules would render that provision ineffective.

19In accordance with settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part. The origins of a provision of EU law may also provide information relevant to its interpretation (judgment of 2 September 2021, CRCAM, C‑337/20, EU:C:2021:671, paragraph 31; see also, to that effect, judgment of 10 March 2021, AM v EIB, T‑134/19, EU:T:2021:119, paragraph 60).

20In the first place, it should be borne in mind that Article 13 of the Staff Rules, in the version applicable to the dispute, is worded as follows:‘A person who has changed his place of residence after leaving Bank service to reside at least 50 [kilometres (km)] from his last place of employment shall be entitled to:– reimbursement of the expenses detailed below, in so far as they are not met from any other source, and– the flat-rate allowance detailed below – less, where applicable, allowances paid from other sources – provided that he does not reside in his own home.…13.3. Resettlement allowanceA person who has completed three years’ service – no minimum length of service being applicable in the event of the [EIB] having cancelled or not renewed his contract – shall receive, after actual settlement at his new place of residence, a resettlement allowance for an amount equivalent to his last monthly basic salary, provided that he has not been dismissed for reasons of grave misconduct.In addition, a person whose family – provided that they lived under the same roof as the person concerned – has actually settled at his new place of residence at least 50 km from his last place of employment as the crow flies shall receive a second identical amount.Where a husband and wife on the [EIB’s] staff are both entitled to resettlement allowance, this shall be paid only to the spouse with the higher monthly basic salary.’

21Thus, as regards the wording of Article 13 of the Staff Rules, that article provides for the payment of a flat-rate resettlement allowance to a member of staff of the EIB who changed his or her place of residence, after leaving the service of the EIB, in order to reside at least 50 kilometres (km) from his or her last place of employment.

22Nevertheless, the second indent of the first paragraph of Article 13 of the Staff Rules makes entitlement to that allowance conditional on the staff member concerned not residing in his or her own home.

23In the absence of a definition, in the Staff Rules, of the concepts of ‘residence’ and ‘home’, those concepts must be interpreted in accordance with their usual meaning in everyday language (see, to that effect, judgment of 9 September 2021, Phantasialand, C‑406/20, EU:C:2021:720, paragraphs 28 and 29).

24However, it should be noted that the French term ‘foyer’, which appears in the French version of the Staff Rules, was translated by the term ‘home’ in the English version of those rules and that the EIB relied on that version both in the contested decision and in the decision rejecting the request for review.

25The English term ‘home’ also refers to a house or an apartment, with the result that the expression ‘own home’ may be interpreted as referring, as the EIB contends, to the concept of real property.

26By contrast, the French term ‘foyer’, according to the Dictionnaire de l’Académie française, refers to the place where fire is made and, by extension, to the place where a person’s family resides. As for the French adjective ‘propre’, placed before the word ‘foyer’, its sole purpose, by reinforcing the possessive adjective ‘son’, is to emphasise the fact that the home in question is indeed that of the staff member.

27In that regard, according to settled case-law, the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision or be made to override the other language versions. Provisions of EU law must be interpreted and applied uniformly in the light of the versions existing in all languages of the European Union. Where there is a disparity between the various language versions of a text of EU law, the provision in question must, in principle, be interpreted by reference to the general scheme and purpose of the rules of which it forms part (see, to that effect, judgment of 21 December 2021, Trapeza Peiraios, C‑243/20, EU:C:2021:1045, paragraph 32 and the case-law cited).

28In the present case, the version of Article 13 of the Staff Rules applicable to the dispute is the result of a proposal drafted and adopted in French and the EIB chose to state expressly, in the last paragraph of the introduction to the Staff Rules, that the English and German versions of those rules were ‘translations of the French original.’

29Therefore, in those particular circumstances, in order to determine objectively the intention of the author of the provision at issue when it was adopted, it is necessary for the Court, in the present case, to interpret the concepts of ‘résidence’ (‘residence’) and ‘foyer’ (‘home’) in accordance with their usual meaning in French.

30Thus, the term ‘résidence’, on the basis of the definition provided by the Dictionnaire de l’Académie française, corresponds to the fact that it is established on a long-term or permanent basis in a place and, by extension, refers to the place or location where a person is established.

31Consequently, it follows from the wording of Article 13 of the Staff Rules that a member of staff of the EIB who changed his or her place of residence, after leaving the service of the EIB, in order to establish his or her place of residence at least 50 km from his or her last place of employment, is entitled to a resettlement allowance, provided that that place of residence does not coincide with the place of residence where his or her family lives.

32In that respect, it should be noted that, contrary to what the EIB maintains, the fact that an official or other member of staff has real property in a country, in particular his or her country of origin, cannot suffice to show that he or she lived there permanently or habitually, or that he or she intended to settle in that country (see, to that effect, judgment of 25 November 2020, UI v Commission, T‑362/19, not published, EU:T:2020:562, paragraph 82).

33Thus, the fact that an official or other member of staff is a tenant or owner of his or her dwelling in a country – a fact which comes within the scope of the freedom to organise his or her personal and family life – cannot, in itself, establish whether or not that person has established the permanent or habitual centre of his or her interests in that country (see, to that effect, judgment of 9 March 2010, Tzvetanova v Commission, F‑33/09, EU:F:2010:18, paragraph 52).

34Finally, the accommodation occupied by a person does not necessarily or systematically correspond to the place of residence of the members of that person’s family.

35Consequently, it must be understood that the phrase ‘provided that he does not reside in his own home’, which appears in the second indent of the first paragraph of Article 13 of the Staff Rules, excludes entitlement to the resettlement allowance in the case where the staff member concerned transfers his or her habitual residence to the place where the members of his or her family reside, and not where the house to which the staff member returns is his or her own home.

36In the second place, the contextual interpretation of the second indent of the first paragraph of Article 13 of the Staff Rules supports the literal interpretation of that article.

37First, the first sentence of the second paragraph of Article 1.3 of the Staff Rules relating to the installation allowance, the second paragraph of Article 5 of Annex VII to the Staff Rules, relating to the installation allowance for assignees entitled to expatriation allowance, and the second paragraph of Article 6 of that annex, relating to the accommodation of assignees to the External Offices outside the European Union, use the term ‘home’ to designate the residence of the staff member where the members of his or her family reside.

38Similarly, point (b) of the first subparagraph and the third subparagraph of Article 3.10 of Annex X to the Staff Rules, concerning medical administrative procedures, require staff members to inform the EIB’s medical services without delay about any case of severe contagious disease affecting themselves or ‘their household’.

39Thus, those provisions support the interpretation that the term ‘home’, set out in the second indent of the first paragraph of Article 13 of the Staff Rules, corresponds to the place where the members of the family of the staff member habitually reside, and not to the place of residence owned by the staff member.

40Secondly, it should be noted that the second indent of the first paragraph of Article 1 of the Staff Rules relating to the reimbursement of expenses and payment of flat-rate allowances upon entry into service or transfer to another place of employment contains a clause excluding entitlement to the installation allowance which is drafted in terms identical to those of the second indent of the first paragraph of Article 13 of those rules.

41Furthermore, Article 5(4) of Annex VII to the Staff Regulations, concerning the installation allowance, also contains a clause excluding entitlement to that allowance where the official comes to be posted to the place where his or her family resides.

42In that regard, it is true that, pursuant to Article 308 TFEU, the EIB has operational and institutional autonomy and, in particular, by excluding the application of Article 336 TFEU, which confers competence on the European Parliament and the Council of the European Union to lay down the provisions of the Staff Regulations and the Conditions of Employment of other servants of the Union, the Statute of the EIB confers operational autonomy on the EIB to determine the conditions of employment applicable to its staff members. Thus, in exercising that power, the EIB opted for a contractual regime rather than a statutory regime, with the result that the provisions of the Staff Regulations cannot be applied, as they stand, to the employment relationship between the EIB and its staff (see, to that effect, judgments of 10 July 2003, Commission v EIB, C‑15/00, EU:C:2003:396, paragraph 101, and of 16 December 2004, De Nicola v EIB, T‑120/01 and T‑300/01, EU:T:2004:367, paragraph 57 and the case-law cited).

43However, in the present case, the EIB has not shown how its operational autonomy would be disregarded by an interpretation of the second indent of the first paragraph of Article 13 of the Staff Rules which results from an application by analogy of the case-law based on the Staff Regulations and resulting from the judgment mentioned in paragraph 44 below.

44Thus, the clause excluding entitlement to the installation allowance provided for in Article 5(4) of Annex VII to the Staff Regulations applies where the official is posted to the place where his or her family already resides and moves in with them, since he or she will not have incurred installation costs (judgment of 18 November 2015, FH v Parliament, F‑26/15, EU:F:2015:137, paragraph 35).

45Furthermore, it follows from the case-law relating to the Staff Regulations, which may be transposed to the present case, in view of the identical terms in which Articles 1 and 13 of the Staff Rules are drafted, that not only is there no difference in functions between installation and resettlement allowances, but, on the contrary, there is a close analogy between them in terms of their purposes (see, to that effect, judgment of 24 April 2001, Miranda v Commission, T‑37/99, EU:T:2001:122, paragraph 29).

46Thus, the case-law cited in paragraph 44 above, which relates to the installation allowance provided for in Article 5 of Annex VII to the Staff Regulations, is applicable by analogy to the resettlement allowance provided for in Article 6 of that annex and Article 13 of the Staff Rules and to the installation allowance governed by Article 1 of those rules.

47It is true that there is a difference in wording between, on the one hand, the second indent of the first paragraph of Article 1 and the second indent of the first paragraph of Article 13 of the Staff Rules and, on the other hand, Article 5(4) of Annex VII to the Staff Regulations.

48However, it does not appear that that difference purely in drafting means that it is impossible to transpose the interpretation of the clause excluding the right to the installation allowance provided for in Article 5(4) of Annex VII to the Staff Regulations to the installation and resettlement allowance provided for by the Staff Rules for those working in the EIB.

49In the third and last place, the teleological interpretation of the second indent of the first paragraph of Article 13 of the Staff Rules confirms its literal and contextual interpretation.

50In that regard, as the EIB rightly points out, the purpose of the resettlement allowance, as is apparent from the case-law on the resettlement allowance provided for in Article 6 of Annex VII to the Staff Regulations, is to cover and alleviate the financial burdens involved in the resettlement of the former official or member of staff in a new environment for an indefinite but rather long period, because of the change in his or her main residence after definitely leaving the service (see, to that effect, judgment of 24 April 2001, Miranda v Commission, T‑37/99, EU:T:2001:122, paragraph 29).

51Although the first paragraph of Article 13 of the Staff Rules makes the grant of the resettlement allowance subject only to a transfer of the residence of the staff member concerned to a location at least 50 km from the place of employment, the transfer of residence referred to in that provision necessarily implies an actual transfer of the staff member’s residence to the new place indicated as being the place of resettlement (see, by analogy, judgment of 24 April 2001, Miranda v Commission, T‑37/99, EU:T:2001:122, paragraph 30 and the case-law cited).

52In those circumstances, the expenses which the former member of staff is obliged to bear as a result of the change in his or her main residence after definitively leaving the service are presumed to be higher when he or she resettles with his or her family, which justifies, in such a case, in accordance with the second paragraph of Article 13.3 of the Staff Rules, that such a member of staff should receive a resettlement allowance corresponding to twice the amount of the last monthly basic salary (see, by analogy, judgment of 19 November 2015, van der Spree v Commission, F‑37/15, EU:F:2015:139, paragraph 29 and the case-law cited).

53In the situation at issue in the present case, in which, on leaving the service, a member of staff resettles with his family who were residing with him at his last place of employment, it does not appear that the ownership of the accommodation in which the staff member resettles exempts him from all charges linked to the transfer of his main and family residence and to his integration, as well as that of the members of his household, in their new place of residence for a substantial period.

54It should be noted that the expenses covered by the resettlement allowance provided for in the second indent of the first paragraph of Article 13 of the Staff Rules are not defined by nature, which, moreover, simplifies the task of the administration by excluding the need for the latter to examine the expenses actually incurred by a member of staff (see, by analogy, judgment of 9 November 1978, Verhaaf v Commission, 140/77, EU:C:1978:197, paragraph 17).

55Thus, that flat-rate allowance is intended to cover expenses which will necessarily be incurred, but which it is difficult to quantify and overly expensive and inconvenient for the administration to investigate (see, to that effect, Opinion of Advocate General Slynn in Evens v Court of Auditors, 79/82, EU:C:1982:389, p. 4045).

56It is true that the fact that the member of staff, upon leaving the service, resettles in a house of which he or she is the owner or co-owner is likely to reduce some costs linked to his or her resettlement by avoiding, in particular, the cost of renting his or her new accommodation.

57However, contrary to the EIB’s submissions, it cannot be inferred from such a circumstance that there is a general presumption that integration of the member of staff concerned into an environment different from that of his or her last place of employment would not expose him or her to any expenses.

58It is conceivable that a person’s decision to transfer his or her habitual residence to a secondary residence may be accompanied, for example, by repair or fitting-out work which, where that resettlement occurs following termination of service, constitutes expenses which the resettlement allowance is intended to cover.

59In that regard, an official or other staff member who resettles to an owner-occupied dwelling is not in the same situation as an official or other staff member who establishes his or her new residence in his or her own home.

60In the latter situation, the presumption that the official or staff member concerned is not exposed to resettlement expenses is logically inferred from the intensity of the links which a person has, in principle, with the members of his or her family and which leads that person to return as frequently as possible to the place where his or her family resides.

61In view of the intensity of those links, the view cannot reasonably be taken that, when a member of staff leaves the service and transfers his or her habitual residence to his or her home, that staff member is faced with the need to adapt to a new environment.

62It follows from all of the foregoing that, by refusing to grant the applicant the resettlement allowance on the ground that he was the owner of the house in which he resettled, the EIB relied on a ground not provided for in the second indent of the first paragraph of Article 13 of the Staff Rules and, by so doing, infringed that provision.

63Consequently, the contested decision must be annulled, without there being any need to consider the other pleas in the application.

The claim that the EIB should be ordered to pay the resettlement allowance

64In his third head of claim, the applicant requests that the EIB be ordered to pay the resettlement allowance, together with default interest calculated at the ECB rate, increased by two percentage points, until the allowance has been paid in full.

65In that respect, it should be recalled that, according to the case-law, the Courts of the European Union cannot, without encroaching upon the prerogatives of the administration, order an EU institution or body to take the specific measures required to comply with a judgment setting aside a decision (see, to that effect, judgment of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraph 145 and the case-law cited).

66Nevertheless, in disputes of a financial character, the unlimited jurisdiction conferred on the EU Courts by Article 91(1) of the Staff Regulations entrusts those Courts with the task of providing a complete solution to the disputes brought before them, that is to say to rule on all the rights and obligations of the staff member, save for leaving to the institution in question, under the control of those Courts, the implementation of such part of the judgment and under such precise conditions as those Courts are to determine (judgment of 18 December 2007, Weißenfels v Parliament, C‑135/06 P, EU:C:2007:812, paragraph 67).

67Thus, ‘disputes of a financial character’ within the meaning of Article 91(1) of the Staff Regulations include not only actions brought by staff members seeking to have an institution held liable, but also all those seeking payment by an institution to a staff member of a sum which the latter considers to be due to him or her under the Staff Regulations or other measure governing their working relations (judgment of 18 December 2007, Weißenfels v Parliament, C‑135/06 P, EU:C:2007:812, paragraph 65).

68It is for the EU Courts to order an institution, in an appropriate case, to pay a sum to which the applicant is entitled under the Staff Regulations or another legal measure (judgments of 18 December 2007, Weißenfels v Parliament, C‑135/06 P, EU:C:2007:812, paragraph 68, and of 10 September 2015, Review Missir Mamachi di Lusignano v Commission, C‑417/14 RX‑II, EU:C:2015:588, paragraph 40).

69Furthermore, according to the case-law, the rule contained in the second sentence of Article 91(1) of the Staff Regulations should be applied to disputes between the EIB and its staff (see, to that effect, judgment of 2 October 2001, EIB v Hautem, C‑449/99 P, EU:C:2001:502, paragraph 95).

70In the present case, the applicant’s request that the EIB pay him the amount of the resettlement allowance and that that amount be increased by default interest is of a financial character within the meaning of Article 91(1) of the Staff Regulations.

71Furthermore, the EIB has not established, or even alleged, that the applicant did not satisfy the other conditions laid down in Article 13 of the Staff Rules for the grant of the resettlement allowance.

72Therefore, in view of the annulment of the contested decision, it is necessary to uphold the applicant’s claim and to order the EIB to pay him the resettlement allowance due to him from the date of receipt of his application, that is to say, 4 September 2019, together with default interest on the payment of that allowance until full payment, the default interest being set at the interest rate applied by the ECB for its main refinancing operations and in force on the first day of the month in which payment is due, increased by two percentage points.

Costs

73Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the EIB has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.

Operative part

On those grounds,THE GENERAL COURT (Seventh Chamber, Extended Composition)hereby:

1.Annuls the decision of the European Investment Bank (EIB) of 9 January 2020 refusing to grant LR the benefit of the resettlement allowance;

2.Orders the EIB to pay to LR the allowance referred to in point 1 of the operative part, plus default interest, from 4 September 2019 until the date of actual payment, at the rate set by the European Central Bank (ECB) for its main refinancing operations and applicable during the period concerned, increased by two percentage points;

3.Orders the EIB to pay the costs.

Delivered in open court in Luxembourg on 7 September 2022.