Contents
Judgment of the Court (Fourth Chamber)19 October 2023note(Appeal — Civil service — Annex VII to the Staff Regulations of Officials of the European Union — Article 4(1)(a), second indent — Temporary staff — Remuneration — Expatriation allowance — Conditions for granting — Main occupation — Work done for another State)In Case C‑88/22 P,APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 8 February 2022,QB, represented initially by R. Wardyn, radca prawny, and subsequently by K. Staszkiewicz, avocate,the other party to the proceedings being:European Commission, represented by T.S. Bohr and A.-C. Simon, acting as Agents,THE COURT (Fourth Chamber),composed of J.-C. Bonichot, acting as President of the Chamber, S. Rodin and L.S. Rossi (Rapporteur), Judges,Advocate General: J. Kokott,Registrar: A. Calot Escobar,having regard to the written procedure,after hearing the Opinion of the Advocate General at the sitting on 4 May 2023,gives the following
Judgment
1By his appeal, QB, a member of the temporary staff of the European Commission, seeks to have set aside the judgment of the General Court of the European Union of 8 December 2021, QB v Commission (T‑71/21, EU:T:2021:868; ‘the judgment under appeal’), by which the General Court dismissed his action seeking annulment of the decision of the Commission’s Office for the Administration and Payment of Individual Entitlements (PMO) of 6 April 2020, by which that office refused to grant QB the expatriation allowance (‘the decision at issue’).
Legal context
2Article 4 of Annex VII to the Staff Regulations of Officials of the European Union, in the version applicable to the dispute which gave rise to the action (‘the Staff Regulations’), provides, in paragraph 1:‘An expatriation allowance equal to 16% of the total of the basic salary, household allowance and dependent child allowance paid to the official shall be paid:(a) to officials:– who are not and have never been nationals of the State in whose territory the place where they are employed is situated, and– who during the five years ending six months before they entered the service did not habitually reside or carry on their main occupation within the European territory of that State. For the purposes of this provision, circumstances arising from work done for another State or for an international organisation shall not be taken into account;…’
Background to the dispute
3The background to the dispute was set out by the General Court in paragraphs 3 to 13 of the judgment under appeal in the following terms:3 The European Judicial Training Network (“the EJTN”) is an international, non-profit association governed by Belgian law. It lacks legal personality and is established in Brussels (Belgium). Its purpose is the development of training programmes with a European dimension for members of the judiciary and for court staff. Member State institutions responsible for training judges and prosecutors or those involved in judicial training at European Union level may become members of the EJTN.4 From 2005, the applicant, QB, a Polish national, served as a judge in a district court in Poland.5 From March 2009, pursuant to a decision of the Polish Ministry of Justice, the applicant was seconded to the Krajowa Szkola Sadownictwa i Prokuratury (National School of Judiciary and Public Prosecution, “the KSSiP”). The latter is a central state body established by a law which purpose is to train members of the ordinary courts and members of the public prosecutor’s office in Poland.6 In December 2013, the Polish Ministry of Justice and the EJTN entered into an agreement whereby the applicant, seconded by the KSSiP, was appointed as Secretary General of the EJTN. Regarding the place of performance of his duties, it was anticipated that the applicant’s presence would be required not only at KSSiP’s head office in Poland but also at the EJTN’s premises in Brussels and in any other place where EJTN activities took place or where the applicant’s presence would be regarded as being in the EJTN’s interest.7 In addition, from 1 January 2014 to 31 December 2019, the applicant held the position of chief specialist within the International Cooperation Centre [of the KSSiP]. He was responsible for ensuring good cooperation with and the implementation of activities stemming from the KSSiP’s membership of the EJTN.8 The applicant lived with his family in Brussels between 1 January 2014 and 30 June 2019. Following the expiry of his mandate within the EJTN in June 2019, the applicant and his family returned to Poland.9 On 1 January 2020, the applicant joined the … Commission in Brussels as a member of the temporary staff.10 By [the decision at issue], after the applicant had taken up employment within the Commission, the Office for the “Administration and Payment of Individual Entitlements” (PMO) granted the applicant the foreign residence allowance but refused to grant him the expatriation allowance.…13 By decision of 3 November 2020 (“the decision rejecting the complaint”), the authority empowered to conclude contracts of employment for the Commission … dismissed [the complaint lodged by the applicant against the decision at issue]. It stated that the reference period of five years preceding the applicant’s entry into service with the Commission [(“the reference period”)] was from 1 July 2014 to 30 June 2019. It considered that, throughout that period, the applicant had performed the duties of Secretary General of the EJTN in Brussels. It stated that the applicant was not disputing the PMO’s finding that the EJTN could not be regarded as an international organisation within the meaning of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations. It considered that, although the applicant had remained subject to the instructions of his hierarchical superiors in the KSSiP during the reference period, his link to the EJTN was, nevertheless, an independent legal relationship. It emphasised that, since the applicant had not been integrated into the permanent representation of the Polish State in Belgium, the performance of his duties as Secretary General of the EJTN could not be regarded as work carried out for the Polish State, within the meaning of Article 4(1)(a) of Annex VII to the Staff Regulations. Accordingly, his main occupation during the reference period had been carried out in Belgium. The AECE considered that, since the expatriation allowance could be refused under the single criterion of the place of performance of the main occupation, it was not necessary to examine the criterion of the place of habitual residence.’
The procedure before the General Court and the judgment under appeal
4By application lodged at the Court Registry on 2 February 2021, QB brought an action for annulment of the decision at issue.
5In support of his action, QB relied on three pleas in law. The first plea in law alleged infringement of the obligation to state reasons. The second plea in law alleged that the Commission had infringed Article 4(1)(a) of Annex VII to the Staff Regulations as regards, first, the establishment of QB’s place of habitual residence during the reference period; second, the determination of his main occupation during that period and the place of performance of that occupation; and, third, the applicability of the exception provided in that provision for ‘work done for another State’. The third plea in law alleged a manifest error of assessment in the application of the conditions for the grant of the expatriation allowance.
6By the judgment under appeal, the General Court dismissed the action in its entirety.
Forms of order sought by the parties to the appeal
7By his appeal, QB claims that the Court should:– set aside the judgment under appeal;– annul the decision at issue and the decision rejecting the complaint;– in the alternative, refer the case back to the General Court; and– order the Commission to pay the costs at both instances.
8The Commission contends that the Court should dismiss the appeal and order QB to pay the costs.
The appeal
9In support of his appeal, the appellant raises two grounds of appeal, alleging that the General Court erred in law in the interpretation and application of the conditions for the grant of the expatriation allowance laid down in the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations.
The first ground of appeal
Arguments of the parties
10By the first ground of appeal, the appellant alleges that the General Court erred in law in the interpretation and application of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations, in that it held, in paragraphs 63 to 74 of the judgment under appeal, that the appellant’s main occupation, during the reference period, was that of Secretary General of the EJTN and that the place where that activity was pursued was Brussels.
11In that regard, the appellant does not dispute that, during the reference period, he performed the duties of Secretary General of the EJTN, that he performed, for that purpose, a variety of administrative and representational tasks with important responsibilities, and that his presence was required not only at the KSSiP, but also at the EJTN’s premises in Brussels.
12Nevertheless, he submits that, throughout that period, his main occupation remained that of a judge, seconded to the KSSiP, in Poland.
13Specifically, he argues, first, that the tasks and duties that he performed for the EJTN were performed on behalf of the KSSiP, the latter having the task of training the Polish judiciary and being one of the main beneficiaries of the EJTN’s training offer.
14Second, the appellant submits that all the activities of the EJTN are carried out for the benefit of the judicial bodies of the Member States and that the EJTN must be regarded as a grouping of those national bodies, which is confirmed by the fact that the EJTN does not have legal personality.
15Third, the appellant maintains that the EJTN’s articles of association and rules of procedure do not provide for an employment or any other legal relationship between the EJTN and the national judge performing the duties of Secretary General. That also follows from the memorandum of understanding concluded between the EJTN and the Polish Ministry of Justice, which states that there is no legal link between the appellant and the EJTN.
16Fourth, the appellant maintains that it is apparent from the case-law resulting from the judgment of 21 June 2007, Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:367, paragraph 42), that the ‘supervisory authority’ is a relevant factor when determining for whom a person worked, for the purpose of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations. In that regard, he submits that, throughout the reference period, he retained his status as a judge and, on that basis, remained an employee of the Polish State, subject to the supervisory authority of the KSSiP. Consequently, he performed the tasks and duties of Secretary General of the EJTN as a seconded judge to the KSSiP, in accordance with the principles of independence and impartiality, which prohibit judges from engaging in any parallel employment or from entering into a legal relationship of a similar nature.
17In addition, in his reply, the appellant denies having been remunerated by the EJTN for his work done as Secretary General, maintaining that, throughout the reference period, he was remunerated exclusively by the Polish State, his sole legal employer.
18In that regard, the appellant submits, in particular, that the Secretaries General of the EJTN continue to receive their respective national salary, that salary being reimbursed by the EJTN to the respective national authorities up to an annual ceiling which is not necessarily equivalent to the whole amount of that salary. In addition, he maintains that only the costs of the accommodation of the Secretaries General in Brussels are borne by the EJTN, to the exclusion of the other benefits in kind granted to EJTN staff, which proves that the Secretaries General are not employed by the EJTN.
19The Commission challenges those arguments.
Findings of the Court
20The first ground of appeal alleges that the General Court erred in law in the interpretation and application of the criteria for the determination of the main occupation of the person concerned and the place where that occupation was carried on, within the meaning of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations, when it held, in paragraphs 63 to 74 of the judgment under appeal, that the appellant’s main occupation, during the reference period, was that of Secretary General of the EJTN and that the place where that occupation was pursued was Brussels.
21In accordance with that provision, the expatriation allowance is paid to officials who satisfy the two cumulative conditions laid down in that provision, namely, first, they are not, and have never been, nationals of the State in whose territory the place where they are employed is situated (‘the State of employment’), and, second, they did not habitually reside or carry on their main occupation within the European territory of that State during the reference period of five years ending six months before they entered the service (see, to that effect, judgment of 15 September 2022, Brown v Commission and Council, C‑675/20 P, EU:C:2022:686, paragraphs 37 and 38 and the case-law cited). That provision states, however, that, for the purposes of the second condition, circumstances arising from work done for another State or for an international organisation are not to be taken into account.
22In the absence of a definition of the concept of ‘main occupation’ in the Staff Regulations, the meaning and scope of that concept must be determined by considering its usual meaning in everyday language, while also taking into account the context in which it occurs and the purposes of the rules of which it is part (see, to that effect, judgment of 8 June 2023, Commission v Slovakia (Right of termination without fees), C‑540/21, EU:C:2023:450, paragraph 63 and the case-law cited).
23In that regard, it should be noted that the concept of ‘main occupation’ covers, according to its usual meaning in everyday language, any remunerated and regular work – regardless of whether it is private or public, employed or self-employed – which is preponderant in relation to any other occupation carried on by the person concerned.
24Thus, as the Advocate General observed, in essence, in point 46 of her Opinion, in order for an occupation to be covered by that concept, it is necessary that that person devote most of his or her working time to that occupation and earn most of his or her professional income from it. It is not, however, necessary for that occupation to be carried on in the context of a legal or contractual employment relationship existing specifically between the person concerned and the entity for which that occupation is carried on.
25As regards the context in which the concept of ‘main occupation’ occurs and, specifically, the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations, of which that concept forms part, it should be noted that, first, the main occupation is relevant to that provision only in so far as it was carried on ‘habitually’ and ‘within the European territory’ of the State of employment. It follows that factual circumstances that make it possible to establish the stable and continuous nature of such an occupation and to determine the place where it was carried on, such as those relating to the allocation of the working time of the person concerned during the reference period and to the place where that person was actually required to spend that working time, are of particular importance for the purpose of classifying a given occupation as a ‘main occupation’, within the meaning of that provision.
26Second, it is only after the main occupation carried on by the person concerned has been determined that the question arises as to whether that occupation may be classified as ‘work done for another State or for an international organisation’, within the meaning of that provision, and that the possible identification of the entity for which that occupation is carried on becomes relevant. It follows that the final beneficiaries of that occupation and the entities for which it might have been done are irrelevant for the purpose of identifying the main occupation of the person concerned or the place where it was carried on.
27Such a literal and systematic interpretation of the concept of ‘main occupation’ is borne out by the objectives pursued by Article 4(1) of Annex VII to the Staff Regulations. The Court of Justice has repeatedly held that the purpose of the expatriation allowance is to compensate officials for the extra expense and inconvenience of taking up employment with the EU institutions if they have been thereby obliged to change their residence and move to the State of employment and to integrate themselves into a new environment. The concept of expatriation also depends on the personal position of an official, that is to say, on the extent to which he or she is integrated into his or her new environment, which is demonstrated by habitual residence or by the characteristics of the main occupation pursued. The expatriation allowance is thus intended to correct actual instances of inequality arising between officials who are integrated into the society of the State of employment and those who are not (see, to that effect, judgment of 25 March 2021, Alvarez y Bejarano and Others v Commission, C‑517/19 P and C‑518/19 P, EU:C:2021:240, paragraph 69 and the case-law cited).
28It follows that, as the Advocate General noted, in essence, in points 49 and 50 of her Opinion, in order to determine whether, during the reference period, the person concerned carried on his or her main occupation in the State of employment, with the result that he or she must, in principle, be regarded as being integrated into the society of that State and therefore as not being entitled to the expatriation allowance, account should be taken of the factual elements that may affect his or her integration into that society, and not of the formal elements relating to the legal or contractual status of the person concerned. Those factual elements include, in particular, the main place where the tasks required by such an occupation were actually carried out, the working time devoted to that occupation and the level of remuneration received for it, also in the form of any benefits in kind corresponding to a requirement of presence at the workplace.
29That having been noted, it should also be borne in mind that, in accordance with Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and evidence is not, therefore, save where they have been distorted, subject, as such, to review by the Court of Justice on appeal (see, to that effect, judgment of 12 January 2023, Lietuvos geležinkeliai v Commission, C‑42/21 P, EU:C:2023:12, paragraph 60 and the case-law cited).
30In the present case, the appellant has not alleged any distortion vitiating the grounds, set out in paragraphs 63 to 66 of the judgment under appeal, whereby the General Court noted, in essence, that it followed from the agreement concluded between the Polish Ministry of Justice and the EJTN that the appellant had to carry out administrative tasks and tasks relating to external representation, which required him to spend a significant part of his work time at the premises of the secretariat of the EJTN in Brussels, and whereby the General Court observed that, in his role as Secretary General, the appellant, first, received remuneration of a substantial amount, the level of which precluded that role performed by the appellant being ancillary to his duties as a judge in Poland, and, second, was granted benefits in kind corresponding to a requirement of presence in Brussels, including, in particular, the use of a staff apartment which the appellant lived in with his family throughout the entirety of the reference period. Furthermore, it is common ground between the parties that the post of Secretary General of the EJTN is a position with important duties and responsibilities.
31In support of his first ground of appeal, the appellant relies, in the first place, on the fact that the tasks and duties that he performed for the EJTN in his capacity as Secretary General were carried out on behalf of the KSSiP as the beneficiary of the EJTN’s training offer and that all the activities of the EJTN are carried out for the benefit of the judicial training bodies of the Member States.
32That argument cannot succeed, since, as noted in paragraph 26 above, the identification of the final beneficiaries of the occupation of the person concerned is irrelevant for the purpose of determining whether that occupation constitutes his or her main occupation and the place where it is carried on.
33In the second place, the appellant relies on the absence of an employment or any other legal relationship between him and the EJTN. However, as noted in paragraphs 23, 24 and 28 above, in order to be regarded as a ‘main occupation’, within the meaning of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations, it is not necessary for an occupation to be the subject of an employment relationship between the person concerned and the entity for which that occupation is carried on, provided that it is carried on by that person on a regular and remunerated basis and, in addition, that person devotes most of his or her working time to it and earns most of his or her professional income from it.
34In the present case, it is apparent from the findings made by the General Court in the judgment under appeal, recalled in paragraph 30 above, that the occupation of Secretary General of the EJTN was an occupation carried on by the appellant on a regular and remunerated basis, under an agreement between his employer, namely the Polish Ministry of Justice, and the EJTN, and, in addition, that the appellant devoted a significant part of his work time to that occupation, in return for remuneration the level of which precluded that occupation being ancillary.
35In the third place, the appellant complains that the General Court failed to take into consideration, for the purpose of determining his main occupation, the criterion of the supervisory authority, which is apparent from the case-law of the Court of Justice resulting from the judgment of 21 June 2007, Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:367, paragraph 42), and his status as a national judge.
36However, that argument is based on a misreading of that case-law. It was only in the context of the assessment whether the occupation at issue in the case which gave rise to that judgment could be classified as ‘work done for another State’ that the Court took into account the existence of a hierarchical relationship between the person concerned and the entity for which that occupation had been carried on. As stated in paragraph 26 above, that assessment takes place only after it has been determined that such an occupation is a main occupation.
37Similarly, as regards the fact that the appellant retained his status as a national judge and, therefore, performed his duties as Secretary General of the EJTN as a judge seconded to the KSSiP, it must be noted that, as the Advocate General stated, in essence, in point 59 of her Opinion, that fact could at most be relevant for the purpose of determining whether such an occupation was carried out on behalf of the Polish State. For the same reasons as those set out in the preceding paragraph of the present judgment, that fact therefore has no bearing on the determination of whether that occupation is a main occupation or on that of the place where it was carried on.
38In the fourth and last place, the argument challenging the assessment that the appellant had been remunerated by the EJTN for his work done as Secretary General is, in any event, also based on a misreading of the judgment under appeal. In paragraph 66 of that judgment, the General Court did not observe that the appellant had been remunerated by the EJTN, but rather that his remuneration had been borne, in fine, by the EJTN up to a substantial maximum amount.
39In the light of the foregoing considerations, the first ground of appeal must be rejected as unfounded.
The second ground of appeal
Arguments of the parties
40By the second ground of appeal, the appellant alleges that, in paragraphs 79 to 82 of the judgment under appeal, the General Court erred in law in its interpretation of the concept of ‘work done for another State’, within the meaning of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations.
41First, the appellant submits that the General Court was incorrect to take the view that that concept covers only work done within a permanent representation of a State. In that regard, he submits, first of all, that such a restrictive interpretation of that concept departs from the case-law of the General Court, according to which, provided that the person concerned has had direct legal links with the State or international organisation in question, the exception provided for in that provision covers all circumstances arising from work done for that State or that international organisation.
42Next, the appellant maintains that the case-law referred to by the General Court in the judgment under appeal in support of that restrictive interpretation cannot be applied to the present case. That case-law concerns either persons who benefited from diplomatic status solely by virtue of their spouses – who were diplomats of the Member States – and who, being bound by a legal relationship with Belgian entities, had no direct link with their State of origin, or persons who worked for a political subdivision of a State and not for the central administration of that State.
43Lastly, the appellant submits that, having regard to the principle of separation of powers that stems in particular from the constitutional traditions common to the Member States, no member of the judicial branch can be integrated in a permanent representation of a Member State, since such a permanent representation forms part of the executive branch. By interpreting the concept of ‘work done for another State’, within the meaning of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations, as meaning that it covers only work done within a permanent representation of a State, the General Court therefore wrongly excluded any member of the judicial branch from the benefit of that exception.
44Second, the appellant claims that, by failing to take into account his status as a national judge and his work done for the KSSiP, the General Court infringed that provision. He refers in that regard to the arguments put forward in the first ground of appeal to maintain that, by performing the tasks and duties of Secretary General of the EJTN, he performed the tasks entrusted to him by the KSSiP.
45The Commission challenges those arguments.
Findings of the Court
46By his second ground of appeal, the appellant challenges the interpretation of the concept of ‘work done for another State’, within the meaning of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations, submitting that the General Court, first, was incorrect to hold that that concept covers only work done within a permanent representation of a State and, second, failed to take into account his status as a national judge and his work done for the KSSiP.
47In accordance with the Court of Justice’s settled case-law, the scope of the concept of ‘work done for another State’ must be assessed as a whole and interpreted according to the structure and the objectives of the rules of which it is part (judgment of 29 November 2007, Salvador García v Commission, C‑7/06 P, EU:C:2007:724, paragraph 42 and the case-law cited).
48In that regard, the Court has held that, as noted in paragraph 27 above, the expatriation allowance is intended to correct actual instances of inequality arising between officials who are integrated into the society of the State of employment and those who are not. However, the performance of work for another State or an international organisation has the effect of preserving a specific tie of the party concerned linking him or her to that other State or that international organisation, thereby hindering the creation of a lasting tie to the State of employment and thus his or her sufficient integration in the society of that State. In that context, an official who resided or carried on an occupation within the European territory of the State of employment during the reference period in order to work for another State or for an international organisation is also in a situation of expatriation (see, to that effect, judgment of 29 November 2007, Salvador García v Commission, C‑7/06 P, EU:C:2007:724, paragraphs 43 to 46 and the case-law cited).
49Thus, the Court has held that any person who, because he or she was part of the structures of another State or an international organisation in the State of employment during the reference period, must be considered to have worked for that other State or that international organisation is in a situation of ‘expatriation’ under the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations, regardless of the functions carried out and the existence of a direct legal tie with that other State or that international organisation (see, to that effect, judgments of 15 January 1981, Vutera v Commission, 1322/79, EU:C:1981:6, paragraph 8, and of 21 June 2007, Commission v Hosman-Chevalier, C‑424/05 P, EU:C:2007:367, paragraphs 41, 44 and 45).
50The Court has also stated that, since the concept of ‘work done for another State’, within the meaning of that provision, also covers work done for a third country, reference should be made, in order to interpret that provision, to public international law which governs relations between Member States and third countries. Even if the distribution of responsibilities at intra-State level varies according to the institutional make-up of each State, that State must be considered to be a unitary subject of public international law (see, to that effect, judgment of 29 November 2007, Salvador García v Commission, C‑7/06 P, EU:C:2007:724, paragraphs 47 to 49).
51In accordance with that approach, in the State of employment of the person concerned, the other States are represented by a system of a single diplomatic representation, which reflects the unitary nature of those other States, at international level, and includes embassies, diplomatic missions and permanent representations to international organisations (see, to that effect, judgments of 21 June 2007, Commission v Hosman-Chevalier, C‑424/05 P, EU:C:2007:367, paragraph 39, and of 29 November 2007, Salvador García v Commission, C‑7/06 P, EU:C:2007:724, paragraph 49).
52In that context, the Court has held that, although it is not essential, in order for a person who carried on his or her main occupation during the reference period within a representative office of a political subdivision of a Member State to the EU institutions in Brussels to be considered to have worked for ‘another State’, that he or she should have been employed by the central administration of that other State, his or her functional integration within the permanent representation of that other State to the European Union during that period constitutes a decisive factor (see, to that effect, judgment of 29 November 2007, Salvador García v Commission, C‑7/06 P, EU:C:2007:724, paragraph 50 and the case-law cited).
53The Court has held that the special status of member of the staff of a permanent representation, which, in particular, allows various privileges and immunities under the Vienna Convention on Diplomatic Relations of 18 April 1961 to be enjoyed, results in the person concerned having a specific tie linking him or her to the Member State concerned and in itself creates an obstacle which prevents the person concerned from forming a lasting tie linking him or her to the State to which he or she was posted and, consequently, from integrating to the requisite degree in the society of that State (judgment of 29 November 2007, Salvador García v Commission, C‑7/06 P, EU:C:2007:724, paragraph 51 and the case-law cited).
54In the judgment under appeal, the General Court, after recalling, in paragraphs 78 to 80, the essence of the case-law cited in paragraphs 50 to 52 above, held, in paragraph 82, that the work done by the appellant in his capacity as Secretary General at the EJTN did not fall under the concept of ‘work done for another State’, since, inter alia, the EJTN was an international non-profit association governed by Belgian law ‘not integrated in a permanent representation of a Member State’.
55In so ruling, without examining whether the appellant had himself carried on his main occupation of Secretary General of the EJTN within a diplomatic representation of another State in the State of employment, and therefore in the service of that other State, within the meaning of the case-law referred to in paragraphs 48 to 51 above, the General Court erred in law.
56However, if the grounds of a decision of the General Court reveal an infringement of EU law, but the operative part of that decision can be seen to be well founded on other legal grounds, that infringement is not capable of leading to the annulment of that decision and a substitution of grounds must be made (judgment of 17 January 2023, Spain v Commission, C‑632/20 P, EU:C:2023:28, paragraph 48).
57It is therefore necessary to examine whether the General Court was entitled to conclude, in paragraph 83 of the judgment under appeal, that the exception for ‘work done for another State’, provided in the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations, did not apply to the work done by the appellant within the EJTN.
58In that regard, it is apparent from the particulars contained in paragraphs 3, 64 to 66 and 73 of the judgment under appeal, which have not been effectively challenged by the appellant, that the EJTN is an international non-profit association governed by Belgian law, the members of which are the institutions of the Member States of the European Union responsible for judicial training and the purpose of which is the development of training programmes for national courts; that the occupation of Secretary General of the EJTN carried on by the appellant consisted in the performance of administrative tasks and tasks relating to the external representation of that association; that, as Secretary General of the EJTN, the appellant was afforded the use of a staff apartment in Brussels but, as he himself admits, did not receive any other benefit or any privileges or immunities; and that, lastly, in his capacity as Secretary General, the appellant was subject to the power of supervision of the EJTN Steering Committee, which had the power to suspend him and to propose to the general assembly of that association that his mandate be terminated.
59It follows from the foregoing that the appellant did not carry on his main occupation as Secretary General of the EJTN within a diplomatic representation of another State in the State of employment and, therefore, in the service of that other State, within the meaning of the case-law referred to in paragraphs 48 to 51 above, or in another body representing the interests of that other State in the State of employment.
60The fact that the appellant was, during the reference period, a national judge seconded to the KSSiP is not such as to call that conclusion into question. As noted in paragraph 49 above, the existence of a direct legal tie with a State other than the State of employment outside the situations referred to in the preceding paragraph of the present judgment is not, in itself, capable of demonstrating that the main occupation of the person concerned during the reference period was carried on in the service of that other State.
61Consequently, the General Court was correct to conclude, in paragraph 83 of the judgment under appeal, that the exception for ‘work done for another State’, provided in the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations, did not apply to the main occupation carried on by the appellant during the reference period.
62The second ground of appeal must therefore be rejected.
63In the light of all the foregoing considerations, the appeal must be dismissed as being unfounded.
Costs
64In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.
65Under Article 138(1) of those Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
66In the present case, since QB has been unsuccessful, he must be ordered to bear his own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.
Operative part
On those grounds, the Court (Fourth Chamber) hereby:
1.Dismisses the appeal;
2.Orders QB to bear his own costs and to pay those incurred by the European Commission.
Delivered in open court in Luxembourg on 19 October 2023.
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