JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

23 January 2007

Case F-43/05

Olivier Chassagne

v

Commission of the European Communities

(Officials – Pay – Annual travel expenses – Provisions applicable to officials originating from French overseas departments – Article 8 of Annex VII to the amended Staff Regulations)

Application: brought under Articles 236 EC and 152 EA, in which Mr Chassagne essentially seeks, first, annulment of the Commission’s implied decision rejecting his complaint of 20 November 2004 against his payslip for August 2004 and annulment of that payslip, and, secondly, compensation for the non-pecuniary and financial damage sustained.

Held: The action is dismissed. Each party is ordered to bear its own costs.

Summary

1.      Officials – Reimbursement of expenses – Annual travel expenses

(Staff Regulations, Art. 71; Annex VII, Art. 8)

2.      Officials – Staff Regulations – Interpretation – Methods

3.      Officials – Reimbursement of expenses – Annual travel expenses

(Staff Regulations, Annex VII, Art. 8)

4.      Officials – Reimbursement of expenses – Annual travel expenses

(Staff Regulations, Annex VII, Art. 8)

5.      Officials – Reimbursement of expenses – Annual travel expenses

(Art. 253 EC; Staff Regulations, Annex VII, Art. 8, as amended by Regulation No 723/2004)

6.      Officials – Staff Regulations – Amendment

(Staff Regulations; Council Regulation No 723/2004)

7.      Officials – Principles – Protection of legitimate expectations

(Staff Regulations, Annex VII, Art. 8)

1.      An official’s entitlement to reimbursement of annual travel expenses for himself and his dependants between his place of employment and his place of origin, recognised in Article 8 of Annex VII to the Staff Regulations, is an expression of the Community legislature’s exercise of its discretionary power, since it was not obliged under any higher rule of Community law or of international law to recognise officials and members of their families as having that right. Since it was at its discretion that it decided that members of the European civil service should be reimbursed the travel expenses incurred during their annual leave, the Community legislature should a fortiori enjoy a broad discretion in determining the conditions and rules governing that reimbursement, a discretion which must be exercised in accordance with the higher rules and principles of Community law.

The judicial review carried out by the Community judicature in this area must therefore be confined to establishing whether the measure in question was manifestly incorrect or a misuse of power, or whether the authority concerned did not manifestly exceed its discretion, which must be exercised in accordance with the higher rules and principles of Community law. The review by the Court must therefore be confined to determining, as regards the principles of equal treatment and non-discrimination, that the institution concerned has not applied arbitrary or manifestly inappropriate distinctions, and, as regards the principle of proportionality, that the measure adopted is not manifestly inappropriate for the objective pursued by the rules.

Thus, in view of the substantial and constant increase in the number of officials, the Community legislature was perfectly entitled, for legitimate budgetary, administrative and staff policy reasons, to elect in future to make only a flat-rate reimbursement rather than reimbursing the costs actually incurred, subject only to ensuring that the aim of Article 8 of Annex VII to the Staff Regulations, which is to enable each official to maintain personal ties with the places where he has his main interests, is met, as appears to have been the case here.

(see paras 52, 55-57, 61-62, 65-66, 73)

See:

279/84, 280/84, 285/84 and 286/84 Rau v Commission [1987] ECR 1069, para. 34; 265/87 Schräder [1989] ECR 2237, para. 22; C‑8/89 Zardi [1990] ECR I‑2515, para. 10; C-189/01 Jippes and Others [2001] ECR I‑5689, para. 80 and the case-law cited therein; C‑310/04 Spain v Council [2006] ECR I‑7285, para. 96

T-13/97 Losch v Court of Justice [1998] ECR-SC I‑A‑543 and II‑1633, paras 113, 121 and 122; T-164/97 Busacca and Others v Court of Auditors [1998] ECR-SC I‑A‑565 and II‑1699, paras 48, 49, 58 and 59; T-112/96 and T-115/96 Séché v Commission [1999] ECR-SC I‑A‑115 and II‑623, paras 127 and 132; T‑94/01, T-152/01 and T-286/01 Hirsch and Others v ECB [2003] ECR-SC I‑A‑1 and II‑27, para. 51; of 13 September 2006 in T-217/99, T-321/00 and T-222/01 Sinaga v Commission, not published in the ECR, para. 144

2.      The provisions of the Staff Regulations at present in force must be interpreted with regard to their context and purpose and not in the light of rules which have been repealed.

(see para. 70)

See:

79/82 Evens v Court of Auditors [1982] ECR 4033, para. 10

3.      If the application of Article 8 of Annex VII to the Staff Regulations, concerning entitlement to the flat-rate payment of travel expenses from the place of employment to the place of origin, in the version in force from 1 May 2004, results in a distinction between the situation of an official from a French overseas department and that of the vast majority of other officials whose places of employment and origin are a shorter distance apart, in that it grants the former an average kilometre allowance lower than that enjoyed by the latter, that distinction originates in the higher kilometre price for air travel to medium-haul destinations. Although it is true that the establishment of the tariff in that article was not preceded by a study of the airline tickets market, but was based solely on the general perception of the structure of kilometre pricing, the Community legislature was nevertheless fully entitled to note the existence of that pricing structure and to take account of it when developing and introducing the new flat-rate reimbursement system, in the light of the institutions’ lengthy experience of dealing with applications for reimbursement of travel expenses.

Notwithstanding the difference identified between the average kilometre allowances applicable to the situation of an official from a French overseas department and those of other officials, the scheme of the article in question does not appear either manifestly inadequate or manifestly inappropriate for its objective, which is to allow the official and his dependants to travel to their place of origin at least once a year. In order to ensure that the aim of that article was met, the legislature could not merely fix the reimbursements at exactly the same as or slightly above the going rate for travel between the place of employment and place of origin of officials. Thus, because of the volatile nature of the market for airline tickets and the heavy impact of cyclical political and economic factors on ticket prices, the legislature as a general rule fixed the kilometre allowance rates so that the flat-rate amounts resulting from their application were more than enough to cover the actual travel costs, as well as the costs of a second trip or even more, in some cases. That being so, in so far as the amount reimbursed to the official is enough to finance his travel to his place of origin, the fact that other officials receive a higher average kilometre allowance does not render the system unlawful, even if the prices of different modes of transport at a particular time mean that some of those officials are able to travel to their place of origin more often than the applicant can to his.

Consequently, in view of the Community legislature’s wide discretion and the aim of the overall scheme of Article 8 of Annex VII to the Staff Regulations, that article is neither manifestly inadequate nor manifestly inappropriate for the aim pursued, particularly as, although in borderline cases fortuitous problems must arise from the introduction of any general and abstract system of rules, there are no grounds for taking exception to the fact that the legislature has resorted to categorisation, provided that it is not in essence discriminatory having regard to the objective which it pursues.

(see paras 86, 89-91)

See:

147/79 Hochstrass v Court of Justice [1980] ECR 3005, para. 14

4.      In exercising its wide discretion the legislature is entitled to consider that, for the purpose of calculating the flat-rate amount of annual travel expenses to be reimbursed, all officials whose place of employment and place of origin are the same distance apart are in an identical situation in accordance with the requirements of the principle of equal treatment, despite any differences relating to the fact that certain places of origin are islands, that it is impossible for some officials to use modes of transport other than air, and that air tickets for certain destinations are subsidised. It follows that the equal treatment accorded to all such officials under Article 8 of Annex VII to the Staff Regulations is consistent with the requirements of that principle.

(see para. 93)

5.      Given that the statement of reasons for a measure of general application may be confined to indicating the general situation which led to its adoption, on the one hand, and the general objectives which it is intended to achieve, on the other, and that, if the measure in question clearly discloses the essential objective pursued by the institution, it would be excessive to require a specific statement of reasons for the various technical choices made, the statement of reasons for Regulation No 723/2004 amending the Staff Regulations of Officials of the European Communities and the Conditions of Employment of other servants of the European Communities, although succinct, is adequate as regards the new rules concerning the reimbursement of annual travel expenses.

(see paras 105-106, 108)

See:

3/83 Abrias and Others v Commission [1985] ECR 1995, paras 30 and 31; C‑150/94 United Kingdom v Council [1998] ECR I‑7235, paras 25 and 26; C‑284/94 Spain v Council [1998] ECR I‑7309, para. 30; C‑168/98 Luxembourg v Parliament and Council [2000] ECR I‑9131, para. 62; C-361/01 P Kik v OHIM [2003] ECR I‑8283, para. 102; C-342/03 Spain v Council [2005] ECR I‑1975, para. 55

T-97/92 and T-111/92 Rijnoudt and Hocken v Commission [1994] ECR-SC I‑A‑159 and II‑511, para. 49 et seq.; T-44/97 Ghignone and Others v Council [2000] ECR-SC I‑A‑223 and II‑1023, paras 54 and 55

6.      The adoption of a Community regulation amending the Staff Regulations could not be invalidated by the fact that a consolidated version of the provisions governing the situation of officials of the European institutions was not published. The validity of a regulation depends on its proper publication in the Official Journal of the European Union, a formal requirement that has been met both for the original regulation laying down the Staff Regulations and for the regulations which have amended it subsequently, including, most recently, Regulation No 723/2004. In any event, the consolidated version of the Staff Regulations is accessible on the Commission’s intranet site, and a printed version is usually handed to each official upon taking up his post. Moreover, there is no rule of law which imposes an obligation to publish consolidated versions of the Staff Regulations or studies on the effects of a future reform of the Staff Regulations, or lays down the procedure for publishing information intended for the staff, nor is there any provision which makes the validity of rules of the Staff Regulations dependent on such publication.

Furthermore, an official may not rely on the principle of protection of legitimate expectations or the principle of sound administration to challenge the legality of a new regulatory provision, particularly in an area the objective of which involves constant adjustment to reflect changes in economic circumstances.

(see paras 109-111)

See:

T-100/92 La Pietra v Commission [1994] ECR-SC I‑A‑83 and II‑275, para. 45; Rijnoudt and Hocken v Commission, para. 104; T-238/95 to T-242/95 Mongelli and Others v Commission [1998] ECR-SC I‑A‑319 and II‑925, paras 52 to 54; T‑116/96, T-212/96 and T-215/96 Telchini and Others v Commission [1998] ECR-SC I‑A‑327 and II‑947, paras 83 to 85

7.      In an area the objective of which involves constant adjustment to reflect changes in economic circumstances, such as the reimbursement to officials of annual travel expenses, observance of the principle of protection of legitimate expectations cannot, in the absence of any undertaking on the part of the public authority, prevent new rules from applying to the future effects of situations which arose under earlier rules.

(see paras 113-114)

See:

112/80 Dürbeck [1981] ECR 1095, para. 48

T-6/92 and T-52/92 Reinarz v Commission [1993] ECR-SC II‑1047, para. 85; Mongelli and Others v Commission, paras 52 to 54; Telchini and Others v Commission, paras 83 to 85