26 June 2024 (*1)

(Civil service – Officials – Remuneration – Family allowances – Education allowance – Refusal to grant – Article 3(1) of Annex VII to the Staff Regulations – Vocational training – Higher education – Delegation of powers – Recall of the delegated powers – Competent appointing authority)

In Case T‑698/21,

Georgios Paraskevaidis, residing in Wezembeek-Oppem (Belgium), represented by S. Pappas, D.-A. Pappa and A. Pappas, lawyers,

applicant,

Council of the European Union, represented by M. Bauer and M. Alver, acting as Agents,

European Commission, represented by T.S. Bohr and I. Melo Sampaio, acting as Agents,

defendants,

THE GENERAL COURT (Ninth Chamber, Extended Composition),

composed of S. Papasavvas, President, L. Truchot, H. Kanninen, R. Frendo (Rapporteur) and M. Sampol Pucurull, Judges,

Registrar: A. Marghelis, Administrator,

having regard to the written part of the procedure, in particular:

–the plea of inadmissibility raised by the European Commission by separate document lodged at the Court Registry on 27 January 2022,

–the order of 15 July 2022 reserving the decision on the plea of inadmissibility for the final judgment,

further to the hearing on 4 October 2023,

gives the following

–declare that the action is admissible in its entirety;

–annul the PMO’s decisions and the decision on the complaint;

–order the defendant to pay the costs.

–declare the action inadmissible in so far as it is directed against the Commission;

–in the alternative, dismiss the action as unfounded;

–order the applicant to pay the costs.

–dismiss the action;

–order the applicant to pay the costs.

III. Law

–the first plea, alleging infringement of the principle of legality on account of (i) a lack of legal basis ratione temporis and (ii) the illegal retroactive application of Revised Conclusion No 237/05;

–the second plea, raising an objection of illegality against Revised Conclusion No 237/05, introducing a distinction between vocational training programmes and programmes leading to a degree or diploma, and alleging that the Heads of Administration lacked the competence to draw that distinction;

–the third plea, alleging infringement of Article 3(1) of Annex VII to the Staff Regulations.

25At the stage of the reply, the applicant raises a fourth plea in law, claiming that the recall of the delegated powers is unlawful, which, consequently, calls into question the Council’s power to adopt the decision on the complaint.

26The Court will first examine the first and second pleas together, then the fourth plea and, finally, the third plea.

27By his first plea, the applicant disputes, in essence, the retroactive application of Revised Conclusion No 237/05 and thus claims that there is no legal basis ratione temporis for the PMO’s decisions.

28By his second plea, the applicant raises an objection of illegality against Revised Conclusion No 237/05, in so far as it draws a distinction between vocational training programmes and programmes leading to a degree or diploma. The applicant also claims that the Heads of Administration lacked the competence to draw that distinction.

29The Council disputes the applicant’s arguments.

30In that regard, it should be noted that, as is apparent from paragraphs 6 and 10 and from paragraphs 19 and 20 above, although the PMO’s decisions were based on Revised Conclusion No 237/05, which is referred to in the first and second pleas in law, in the decision on the complaint, the appointing authority of the Council completely altered the matters of law supporting the analysis in order to conclude that the education allowance was not payable.

31In particular, the decision on the complaint disregarded Revised Conclusion No 237/05, which constituted the legal basis for the PMO’s decisions, stating that there was no need to determine whether the threshold of a minimum of 30 ECTS credits provided for in that revised conclusion was applicable.

32It follows that the first and second pleas relate solely to the PMO’s decisions.

33As stated in paragraph 23 above, the action is inadmissible in so far as it seeks annulment of the PMO’s decisions and, consequently, the first and second pleas relating thereto must be rejected as ineffective.

(a) Admissibility of the fourth plea in law

34The Council disputes the admissibility of the fourth plea, claiming that, under Article 84 of the Rules of Procedure of the General Court, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light after the action has been brought. Since the applicant was informed in the decision on the complaint that the delegated powers had been recalled, the Council takes the view that the plea raised by the applicant at the stage of the reply is out of time and, consequently, inadmissible.

35In that regard, it should be noted that, while, in principle, the introduction of a new plea must comply with the requirements laid down in Article 84 of the Rules of Procedure, those requirements do not apply where a plea, although it may be qualified as new, is a plea involving a matter of public policy (see, to that effect, judgments of 15 September 2016, La Ferla v Commission and ECHA, T‑392/13, EU:T:2016:478, paragraph 65, and of 24 September 2019, Yanukovych v Council, T‑301/18, not published, EU:T:2019:676, paragraph 64).

36As the applicant submits, the plea alleging lack of competence on the part of the body which adopted an act adversely affecting the applicant involves a matter of public policy, so that it may be raised at any stage of the proceedings (see, to that effect, judgments of 13 December 2018, Pipiliagkas v Commission, T‑689/16, not published, EU:T:2018:925, paragraph 39 and the case-law cited, and of 28 September 2022, Grieger v Commission, T‑517/21, not published, EU:T:2022:588, paragraph 89 and the case-law cited).

37Accordingly, the fourth plea is admissible.

(b) The merits of the fourth plea in law

38The applicant claims that the decision on the complaint is unlawful on account of the lack of competence of the body which adopted it. In that regard, it puts forward, in essence, two objections.

39In the first place, the applicant submits that the Council could only revoke the delegation of powers to the PMO in its entirety and not in relation to a specific case. He claims in that regard that Articles 90c and 91a of the Staff Regulations preclude any recall of the delegated powers where the PMO has already exercised the powers of the appointing authority, being the subject of the delegation. He also adds that that recall of the delegated powers raises questions as to the principle of legal certainty.

40In the second place, the applicant alleges infringement of essential procedural requirements on account of the Council’s failure to publish the individual decision to recall the delegated powers following his complaint.

41The Council disputes those submissions.

(1) The first objection, alleging that the Council lacked the competence to recall the delegated powers in relation to a specific case

42Under Article 2(2) of the Staff Regulations, one or more institutions may entrust to any one of them or to an inter-institutional body the exercise of some or all of the powers conferred on the appointing authority other than decisions relating to appointments, promotions or transfers of officials. In the present case, pursuant to the first indent of Article 1(1)(a) of the decision of 13 May 2019, the Council made use of that possibility by delegating to the PMO, inter alia, its powers as appointing authority to grant and manage applications for education allowances from its staff.

43As regards the areas in respect of which Article 2(2) of the Staff Regulations has been applied, Article 90c of the Staff Regulations provides that complaints are to be lodged with the appointing authority entrusted with the exercise of powers, whereas, under Article 91a of the Staff Regulations, appeals are to be made against the institution to which the appointing authority entrusted with the exercise of powers is answerable.

44It follows that, in the present case, the appointing authority of the Commission was, in principle, competent to adopt any decision on a complaint lodged in relation to education allowances in respect of Council staff.

45In addition, according to the case-law, a delegation of power constitutes an act which deprives the delegating authority of the power delegated and therefore has the effect of causing a transfer of powers, which, a priori, prohibits the delegating authority from referring to the transferred power, without rendering its decision invalid on the ground of a lack of competence (see, to that effect, judgment of 22 November 2018, Janssen-Cases v Commission, T‑688/16, EU:T:2018:822, paragraph 31 and the case-law cited).

46However, it should be noted, first, that the legislature did not expressly exclude, in the Staff Regulations, the possibility of a recall of the delegated powers by the delegating institution on the basis of Article 2(2) of the Staff Regulations.

47Secondly, the case-law accepts that the delegating authority may exercise the power again, while noting that the principle of legal certainty, which underpins the formal nature of operations involving the delegation of power, requires that it first adopt an express act by virtue of which it recovers the delegated power. Thus, just as a delegation of powers requires the adoption of an express act transferring the power concerned, the recall of the delegated powers must also be made by means of the adoption of an express act (see, to that effect, judgment of 22 November 2018, Janssen-Cases v Commission, T‑688/16, EU:T:2018:822, paragraph 31 and the case-law cited).

48Moreover, it is clear from the case-law that the principle of good administration requires, inter alia, the division of powers in staff management to be clearly defined and duly published (see, to that effect and by analogy, judgment of 9 July 2008, Kuchta v ECB, F‑89/07, EU:F:2008:97, paragraph 62).

49In the present case, first, pursuant to Article 1(2) of the decision of 13 May 2019 the PMO was to notify, until 31 December 2021, the Council of any complaint received against a decision regarding a member of its staff. That same provision provides that ‘if in an individual case the appointing authority or the authority authorised to conclude contracts of the Council so requests, the PMO shall relinquish the exercise of the powers delegated under paragraph 1 of this Article, and the appointing authority or the authority authorised to conclude contracts of the Council shall exercise its powers in such a case’. Thus, that provision expressly authorised the Council to request the PMO to relinquish the powers of the appointing authority delegated to it, in order to resume the exercise thereof.

50It follows that Article 1(2) of the decision of 13 May 2019 expressly authorised the Council to recall the delegated powers, specifically in individual cases and following the lodging of a complaint.

51Secondly, it is not disputed that the decision of 13 May 2019 was duly published in the Official Journal.

52Thirdly, the Council exercised its power only following an express and prior act, by which, on 23 April 2021, it requested the PMO to relinquish the exercise of the delegated powers in the present case, a request which the PMO complied with on 10 June 2021 (see paragraph 9 above).

53It follows from the considerations set out in paragraphs 49 to 52 above that the recall of the delegated powers complied with the requirements stemming from the principle of legal certainty, in particular within the meaning of the case-law cited in paragraphs 47 and 48 above.

54In those circumstances, the fact, in particular, that Article 90c of the Staff Regulations states that requests and complaints relating to delegated powers are to be lodged with the appointing authority entrusted with the exercise of powers cannot be equated with a legislative prohibition on the recall of such powers by the holder thereof, whether total or individual. Nor can that provision be regarded as prohibiting the recall of the delegated powers during the pre-litigation procedure, as the applicant claims, having regard, in particular, to the evolving nature of that procedure, as stated in the case-law cited in paragraph 17 above.

55Accordingly, the first objection, alleging that the Council lacked the competence to recall the delegated powers in relation to a specific case, must be rejected.

(2) The second objection, alleging failure to publish the individual decision to recall the delegated powers

The applicant criticises the Council for failing to publish the individual decision to recall the delegated powers following his complaint.

In that regard, it must be borne in mind that, first, in accordance with Article 21 of the Statute of the Court of Justice of the European Union and Article 76(d) of the Rules of Procedure, as interpreted in the context of settled case-law, the application must contain the pleas in law and arguments relied on, expressed in a sufficiently clear and precise manner to enable the defendant to prepare its defence and the Court to rule, if necessary, without having to seek further information. Failing that, a claim that is obscure or vague is inadmissible (see judgment of 23 March 2022, ON v Commission, T‑730/20, not published, EU:T:2022:155, paragraph 44 and the case-law cited).

In the present case, the applicant submits that, by failing to publish the decision to withdraw the delegation of powers in respect of the complaint, the Council infringed an essential procedural requirement. However, the applicant fails to set out the legal basis which would establish any obligation to publish the individual decision or to develop further, and in a sufficiently clear and precise manner, his arguments in relation to that submission.

It follows that the second objection must be rejected as inadmissible on the basis of Article 76 of the Rules of Procedure.

In any event, even if, by his second objection, the applicant seeks to rely on the failure to disclose, in his regard, the individual decision to recall the delegated powers concerning the complaint, it should be noted that that decision was taken on 10 June 2021, the date of the PMO’s letter informing the Council of its agreement to relinquish the exercise of the delegated powers. Admittedly, that letter was not notified to the applicant and he was not informed of it until the decision on the complaint was served, on 19 July 2021, namely five and a half weeks later (see paragraphs 9 and 10 above).

However, according to settled case-law, a delay in the communication of an individual decision to its addressee cannot result in the annulment thereof, since the communication is an act subsequent to the decision and therefore has no influence over the content of the decision (judgments of 29 October 1981, Arning v Commission, 125/80, EU:C:1981:248, paragraph 9, and of 7 February 2007, Caló v Commission, T‑118/04 and T‑134/04, EU:T:2007:37, paragraph 79).

Furthermore, as is apparent from paragraph 8 above, the applicant lodged his complaint first with the Council and, only three weeks later, with the Commission, submitting to it a copy of the complaint lodged with the Council.

Furthermore, the applicant does not claim, let alone demonstrate, that the fact that the decision on the complaint was adopted by the Council and not by the Commission was, in itself, liable to undermine one of the guarantees conferred on him by the Staff Regulations or the rules of sound administration in staff management.

Consequently, it must be concluded that no procedural irregularity vitiates the recall of the delegated powers by the Council, with the result that the applicant is not entitled to claim that the decision on the complaint was taken by an authority lacking competence.

The fourth plea in law must therefore be dismissed as unfounded.

Third plea in law, alleging infringement of Article 3(1) of Annex VII to the Staff Regulations

The third plea in law, which is divided into two parts, alleges infringement of Article 3(1) of Annex VII to the Staff Regulations.

In the first part, the applicant submits that, for the purposes of Revised Conclusion No 237/05, the condition of ‘full-time’ attendance at a higher education institution is satisfied, in essence, only when the studies pursued correspond to 30 ECTS credits. Thus, that revised conclusion imposed an additional unlawful condition, by restricting the application of Article 3(1) of Annex VII to the Staff Regulations solely to academic training programmes, to the exclusion of any vocational training which entitles it to the award of ECVET units.

As is apparent from paragraphs 30 to 32 above, the appointing authority of the Council completely disregarded Revised Conclusion No 237/05, which constituted the legal basis for the PMO’s decisions, with the result that the first part of the third plea, relating to those decisions, must be rejected as ineffective.

In support of the second part of the third plea, the applicant maintains that the decision on the complaint infringed Article 3(1) of Annex VII to the Staff Regulations, in that it introduced a distinction between higher education and vocational education.

The Council disputes those submissions.

In that regard, it should be recalled that, under Article 3(1) of Annex VII to the Staff Regulations, the education allowance is payable for each dependent child who is at least five years old in regular, full-time attendance at a primary or secondary school which charges fees or at an establishment of higher education.

In the decision on the complaint, the Council held that the applicant was not entitled to the education allowance. First, the training programme was of a vocational nature and led to the award of ECVET units, not ECTS credits. Secondly, it did not confer entitlement to a graduate or post-graduate degree and, therefore, did not constitute university education within the meaning of the Greek education system. The Council concluded that the training programme could not be regarded as ‘higher education’ within the meaning of Article 3(1) of Annex VII to the Staff Regulations.

In the course of the present proceedings, the Council submitted that Article 3(1) of Annex VII to the Staff Regulations, which gives entitlement to the education allowance, must be interpreted in the light of Article 2(3)(b) of that annex, which provides for the grant of an allowance for a dependent child receiving educational or vocational training.

According to the Council, the fact that the concept of ‘vocational training’ appears in Article 2(3)(b) of Annex VII to the Staff Regulations, relating to the dependent child allowance, but is absent from Article 3(1) of Annex VII to the Staff Regulations, relating to the education allowance, shows that the concept of ‘vocational training’ is an autonomous concept distinct from that of ‘higher education’, to which, in particular, Article 3(1) of that annex makes the grant of the education allowance subject. Therefore, higher education cannot include vocational training, with the result that the education allowance is not payable if the child concerned receives such training.

In that regard, the Court notes that, as is apparent from paragraph 71 above, Article 3(1) of Annex VII to the Staff Regulations requires, inter alia, three conditions for the education allowance to be granted, namely (i) attendance at an establishment of higher education, (ii) regularity of that attendance and (iii) the fact that that attendance is full time. Thus, Article 3(1) of Annex VII to the Staff Regulations makes no reference to the nature of the training as such.

Contrary to the Council’s assertions, if the legislature did not refer to the nature of the training provided by an establishment of higher education in the context of Article 3(1) of Annex VII to the Staff Regulations, although it did so in the context of Article 2(3)(b) of that annex, it is not for the Council or the General Court to establish this as an additional condition.

Thus, the General Court has already held that, admittedly, the distinction between educational and vocational training in Article 2(3)(b) of Annex VII to the Staff Regulations allowed payment of the education allowance provided for in Article 3(1) of that annex to be withheld when the dependent child is receiving vocational training not connected with an educational establishment. By contrast, the distinction does not prevent payment of the education allowance where a dependent child is receiving vocational training provided by an educational establishment at which the child is in regular, full-time attendance (see, to that effect and by analogy, judgment of 29 January 1993, Wery v Parliament, T‑86/91, EU:T:1993:7, paragraphs 44, 45, 50 and 51).

Consequently, the vocational nature of the training has no bearing on the grant of an education allowance under Article 3(1) of Annex VII to the Staff Regulations, provided that it is provided by an educational establishment.

That interpretation is supported by recital 3 of Commission Regulation (EU) No 317/2013 of 8 April 2013 amending the Annexes to Regulations (EC) No 1983/2003, (EC) No 1738/2005, (EC) No 698/2006, (EC) No 377/2008 and (EU) No 823/2010 as regards the International Standard Classification of Education (OJ 2013 L 99, p. 1), according to which the EU institutions are to use classifications of education which are compatible with the revised International Standard Classification of Education 2011 (ISCED). The second paragraph of point 2 of Revised Conclusion No 237/05 refers to the ISCED for the purposes of defining the concept of full-time attendance at an establishment of higher education.

At the hearing, the Council acknowledged, first, that the ISCED defines higher education as including both what is commonly understood as academic education and what corresponds to advanced vocational education and, secondly, that the University of the Aegean (Greece), where the training programme was provided, is an establishment of higher education.

In those circumstances, it must be concluded that the Council could not refuse to grant the applicant the education allowance on the ground that the training programme could not be regarded as ‘higher education’ within the meaning of Article 3(1) of Annex VII to the Staff Regulations.

It follows from all the foregoing considerations that, first, the second part of the third plea in law must be upheld and, consequently, the decision on the complaint must be annulled and, secondly, the action must be dismissed as to the remainder.

Costs

Under 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.

However, according to Article 135(1) of the Rules of Procedure, if equity so requires, the 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 or her own, or even that he or she is not to be ordered to pay any.

In the present case, the applicant has been unsuccessful as regards the admissibility of the action in so far as it is directed against the PMO’s decisions and, therefore, against the Commission.

However, the Court considers that, in the present case, the transitional provision in Article 1(2) of the decision of 13 May 2019, read in conjunction with Articles 90c and 91a of the Staff Regulations (see paragraphs 43 and 49 above), may have created some ambiguity as to the act adversely affecting the applicant in the present case.

In those circumstances, even though the applicant has been unsuccessful in his claims in so far as they are directed against the Commission, the Court will make an equitable assessment of all the circumstances of the case by deciding that the Commission is to bear its own costs.

—

Since the Council has been unsuccessful on the substance, it must be ordered to bear its own costs and to pay those incurred by the applicant.

On those grounds,

hereby:

Declares the action inadmissible in so far as it is directed against the European Commission;

Annuls the decision of the Council of the European Union of 19 July 2021 by which the complaint lodged by Mr Georgios Paraskevaidis against the decisions of the Commission’s Office for the Administration and Payment of Individual Entitlements of 4 February 2021, 1 March 2021 and 9 March 2021 was rejected;

3.Dismisses the action as to the remainder;

4.Orders the Council to bear its own costs and to pay those of Mr Paraskevaidis;

5.Declares that the Commission shall bear its own costs.

Papasavvas

Truchot

Kanninen

Frendo

Sampol Pucurull

Delivered in open court in Luxembourg on 26 June 2024.

Registrar

President

*1 Language of the case: English.