Court of Justice of the European Communities (including Court of First Instance Decisions)

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 4 May 2023 (1)

Case C‑88/22 P

QB

v

European Commission

(Appeal – Civil service – Article 4(1)(a) of Annex VII to the Staff Regulations – Expatriation allowance – Concept of ‘main occupation’ – Concept of ‘work done for another State’)

I.      Introduction

1.        In order to take up employment with the European Union, its members of staff must often leave their Member State of origin and establish their residence in the Member State in which they are employed. With a view to compensating for the inconvenience associated with that and to permit the recruitment of nationals of Member States of the European Union on the broadest possible geographical basis, the EU legislature created the expatriation allowance in Article 69 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’). (2) The conditions of the expatriation allowance are laid down in Article 4(1)(a) and (b) of Annex VII to the Staff Regulations. Pursuant to Article 20(2) of the Conditions of Employment of Other Servants of the European Union in conjunction with Article 69 of the Staff Regulations, those provisions apply by analogy to temporary staff.

2.        Article 4(1)(a) of Annex VII to the Staff Regulations provides that an expatriation allowance is to be paid to officials who are not and have never been nationals of the State in whose territory the place where they are employed is situated (‘the country of employment’) (first indent) and who during the five years ending six months before they entered the service (‘the reference period’) did not habitually reside or carry on their main occupation within the territory of that State (first sentence of the second indent). For the purposes of that provision, circumstances arising from work done for another State or for an international organisation are not to be taken into account (second sentence of the second indent). In principle, therefore, carrying out one’s main occupation or habitually residing in the country of employment during the reference period results in the loss of the right to the expatriation allowance. However, that does not apply if the official performed work for another State or for an international organisation during the reference period. Such work therefore has the effect of ‘neutralising’ a main occupation or a habitual residence in the country of employment and results in the staff member’s right to an expatriation allowance being maintained. In the following, I shall therefore also refer to the second sentence of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations as the ‘neutralisation rule’.

3.        However, what is the situation in the case of an official who, during the five-year reference period, was seconded as a Polish judge to the Krajowa Szkola Sadownictwa i Prokuratury (State School of Justice and Prosecution, Poland; ‘the KSSiP’), but at the same time held the post of Secretary General of the European Judicial Training Network (‘the EJTN’), a non-profit international association under Belgian law with its head office in Brussels (Belgium), the place where the official was subsequently employed? In such a case, where did the official carry out his main occupation during the relevant reference period? And if that place of work is in Belgium, is that occupation considered to be work done for another State or an international organisation, with the result that the official would benefit from the neutralisation rule?

4.        Those are the questions which the Court of Justice is called on to answer in the present appeal proceedings, by which the appellant contests the judgment of the General Court of 8 December 2021 (3) (‘the judgment under appeal’).

II.    Legal context

5.        The Staff Regulations constitute the legal context of the present case.

6.        The first sentence of Article 69 of the Staff Regulations provides:

‘The expatriation allowance shall be equal to 16% of the total of the basic salary, household allowance and dependent child allowance to which the official is entitled.’

7.        Pursuant to Article 20(2) of the Conditions of Employment of Other Servants of the European Union, Article 69 of the Staff Regulations regarding the expatriation allowance applies by analogy to temporary staff.

8.        Article 4(1) and (2) of Annex VII to the Staff Regulations reads:

‘1.      An expatriation allowance equal to 16% of the total of the basic salary, household allowance and dependent child allowance paid to the Established 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 that provision, circumstances arising from work done for another State or for an international organisation shall not be taken into account;

(b)      to officials who are or have been nationals of the State in whose territory the place where they are employed is situated but who during the ten years ending at the date of their entering the service habitually resided outside the European territory of that State for reasons other than the performance of duties in the service of a State or of an international organisation.

…

2.      An official who is not and has never been a national of the State in whose territory he is employed and who does not fulfil the conditions laid down in paragraph 1 shall be entitled to a foreign residence allowance equal to one quarter of the expatriation allowance.’

III. Background to the dispute and judgment under appeal

9.        The background to the present dispute was set out in paragraphs 3 to 13 of the judgment under appeal and can be summarised as follows.

10.      Since his appointment in 2005, the appellant, who is a Polish national, served as a judge in a district court in Poland.

11.      From March 2009, pursuant to a decision of the Polish Ministry of Justice, the appellant was seconded to the KSSiP. The KSSiP is a central Polish State body responsible for the training of members of the ordinary courts and members of the public prosecutor’s office in Poland.

12.      In December 2013, the Polish Ministry of Justice and the EJTN entered into an agreement whereby the appellant was appointed as Secretary General of the EJTN. The EJTN is a non-profit international association governed by Belgian law, which does not have legal personality and has its head office in Brussels. Its purpose is the development of training programmes with a European dimension for members and court staff. Member State institutions responsible for training judges and prosecutors or those involved in judicial training at EU level may become members of the EJTN.

13.      Regarding the place of performance of his duties, it was anticipated that the appellant’s presence would be required not only at the 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 appellant’s presence would be regarded as being in the EJTN’s interest.

14.      In addition, from 1 January 2014 to 31 December 2019, the appellant held the position of chief specialist within the International Cooperation Centre of the KSSiP. He was responsible for ensuring good cooperation and the implementation of activities stemming from the KSSiP’s membership of the EJTN.

15.      From 1 January 2014 to 30 June 2019, the appellant lived in Brussels with his family. After his mandate within the EJTN expired in June 2019, the appellant and his family returned to Poland.

16.      The appellant entered the service of the European Commission on 1 January 2020 as a member of the temporary staff.

17.      On 6 April 2020, the Office for the Administration and Payment of Individual Entitlements (PMO) issued a decision (‘the contested decision’) granting the appellant the foreign residence allowance pursuant to Article 4(2) of Annex VII to the Staff Regulations but not the expatriation allowance.

18.      On 16 June 2020, the appellant requested a mediation between him and the PMO regarding the expatriation allowance, which the PMO refused.

19.      On 3 July 2020, the appellant submitted a complaint against the contested decision under Article 90(2) of the Staff Regulations.

20.      By decision of 3 November 2020, the authority empowered to conclude contracts of employment for the Commission (‘the appointing authority’) rejected the complaint.

21.      By application lodged at the Registry of the General Court on 2 February 2021, the appellant brought an action pursuant to Article 270 TFEU. He sought the annulment of the contested decision and the decision rejecting his complaint to the extent that the Commission refused to grant him the expatriation allowance.

22.      By the judgment under appeal, the General Court dismissed the action and ordered the appellant to pay the costs.

23.      The first plea in law, alleging infringement of the obligation to state reasons, was rejected by the General Court as unfounded since the absence of reasons in the contested decision had been remedied by a sufficient statement of reasons in the decision rejecting the appeal.

24.      The General Court also held that the second plea in law raised by the appellant, which alleged an infringement of Article 4(1)(a) of Annex VII to the Staff Regulations, was unfounded. It took the view, as had the Commission in the contested decision, that the place where the appellant carried on his main occupation during the reference period was Brussels and that the work carried out by the appellant was not work done for another State or an international organisation.

25.      Finally, the General Court also rejected as unfounded the third plea in law, alleging a manifest error of assessment on the part of the Commission. It argued that the Commission had correctly applied Article 4(1)(a) of Annex VII to the Staff Regulations and that it did not have any discretion in that respect.

IV.    The appeal proceedings and forms of order sought by the parties

26.      By document lodged at the Registry of the Court of Justice on 8 February 2022, the appellant brought an appeal against the judgment under appeal.

27.      The appellant claims that the Court should:

–        set aside the judgment under appeal and annul the decisions of the Commission of 6 April 2020 and of 3 November 2020; or, in the alternative, refer the case back to the General Court for judgment;

–        order the Commission to pay its own costs as well as those of the appellant at both instances.

28.      The Commission claims that the Court should:

–        dismiss the appeal;

–        order the appellant to pay the costs.

29.      The parties have submitted written observations. The Court dispensed with an oral procedure, as it did not require any further information due to the written procedure.

V.      Assessment

30.      Article 4(1)(a) of Annex VII to the Staff Regulations provides that an expatriation allowance is to be paid to EU officials who are not and have never been nationals of the country of employment 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 territory of that State or who benefit from the neutralisation rule.

31.      The PMO granted the appellant the foreign residence allowance but not the expatriation allowance after the appellant took up his duties with the Commission, as it did not consider that the conditions of Article 4(1)(a) of Annex VII to the Staff Regulations had been met. The complaint filed against that decision by the appellant was rejected by the appointing authority.

32.      The appellant challenged those decisions unsuccessfully before the General Court and now challenges the General Court’s rejection of his arguments at first instance.

33.      By his single ground of appeal, which is essentially the same as the second plea in law raised before the General Court, the appellant contends that the General Court infringed Article 4(1) of Annex VII to the Staff Regulations. That ground of appeal has two separate parts.

34.      The appellant submits, first, that the General Court erred in determining the place of his main occupation since that place was in fact in Poland and not in Belgium.

35.      Second, he argues that the General Court erred in defining the conditions of ‘work done for another State’ and failed to take account of the work done by the appellant for the Polish State and his status of a judge.

36.      However, the question whether the EJTN is an ‘international organisation’ within the meaning of the second sentence of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations is not the subject of the dispute and therefore does not need to be decided. (4)

37.      In the following, I shall show, in a first step, that the General Court was right to find that the appellant carried on his main occupation in Belgium during the reference period (A.). The appellant could therefore only be entitled to the expatriation allowance under Article 4(1)(a) of Annex VII to the Staff Regulations if the work he carried out in Belgium was work done for another State because he would then benefit from the neutralisation rule. I shall examine that in a second step (B.).

A.      Main occupation

38.      The appellant submits that the General Court erred in finding that, because of his work for the EJTN, he carried on his main occupation in Brussels during the reference period.

39.      According to the General Court’s reasoning in paragraphs 62 to 74 of the judgment under appeal, the appellant, as Secretary General of the EJTN, performed a variety of administrative and representational tasks which took up a large part of his working time and required his presence not only in Poland but also, inter alia, at the EJTN’s offices in Brussels and other places. That was also reflected in the salary that was ultimately paid by the EJTN. In addition, the EJTN had provided the appellant with a staff apartment in Brussels. Those circumstances show that the work for the EJTN was not a mere secondary or subsidiary occupation or an occupation exercised on behalf of another body. The appellant did not provide any evidence of the duties or activities he performed for the KSSiP during the reference period. Therefore, the appellant had carried on his main occupation for the EJTN in Brussels.

40.      According to the General Court, that conclusion is not called into question by the fact that the appellant, in the context of his duties in Brussels, had contact mainly with foreigners and went on numerous business trips in Europe, that he stated that he was not fluent in any of the official languages of Belgium, or that his wife had kept her employment contract with a Polish court. It is not apparent from the circumstances that the appellant carried out work other than that relevant to his duties for the EJTN.

41.      In addition, according to the General Court, the fact that the appellant kept his status as a Polish judge during the reference period does not imply that his main occupation was in Poland. That role was not incompatible with the duties assigned to him for the EJTN. Moreover, as Secretary General of the EJTN, the appellant was subject to supervision by the EJTN Steering Committee.

42.      According to the appellant, that conclusion is vitiated by an error of law. He submits that he carried out the duties for the EJTN on behalf of the KSSiP. Moreover, the EJTN is merely a grouping of national institutions with a subsidiary character. There is no legal relationship between the EJTN and its Secretary General. Rather, it has to be taken into account that during the period of work for the EJTN he kept his status as a national judge, was employed by the Polish State and was under the supervision of the KSSiP. Lastly, the principle of independence and impartiality of the judiciary precludes the assumption that the appellant carried on his main occupation for the EJTN.

43.      In the following, I shall start by setting out how to determine the place where the main occupation was carried on within the meaning of Article 4(1)(a) of Annex VII to the Staff Regulations (1). On that basis, I shall show that the General Court was right to find that the appellant carried on his main occupation in Brussels during the reference period (2).

1.      Criteria for determining the place where the main occupation was carried on

44.      The Court of Justice has not yet expressly dealt with the question of how to determine the place where the main occupation was carried on and which criteria are relevant for qualifying an occupation as a main occupation within the meaning of Article 4(1)(a) of Annex VII to the Staff Regulations.

45.      According to the settled case-law of the Court of Justice, in interpreting a provision of EU law it is necessary to consider not only its wording but also its context and the objectives pursued by the rules of which it is part. (5) Account must be taken of the fact that the provisions of EU law are drafted in several languages and that the different language versions are equally authentic, so that none of them can override the others and a comparison of the language versions may be necessary. (6)

46.      It follows from the wording of Article 4(1)(a) of Annex VII to the Staff Regulations that the occupation in the subsequent country of employment must be a main occupation. A mere secondary or subsidiary occupation is not sufficient. If a staff member has carried on several occupations during the relevant reference period before entering the service, it must be determined which of those occupations was or is his or her main occupation. That can only be one occupation. The primary criterion for determining which of several occupations is the main occupation is that of the working time devoted to the occupation. Other aspects, such as the scope of the occupations and the salary level can, in that respect, be taken into account as evidence. (7)

47.      Furthermore, according to the wording of Article 4(1)(a) of Annex VII to the Staff Regulations, it is the place where that occupation was carried on within the European territory of the country of employment that is relevant.

48.      That is confirmed by the spirit and purpose of the expatriation allowance. As the Court has consistently held, ‘the purpose of the expatriation allowance is to compensate staff members for the extra expense and inconvenience of taking up employment with the institutions of the European Union if they have been thereby obliged to change their residence and move to the country of employment and to integrate themselves in a new environment. Whether the conditions for granting the expatriation allowance have been met also depends on the personal position of a [staff member], that is to say, on the extent to which he or she is integrated into his or her new environment, which is demonstrated for example by … the main occupation pursued. The grant of the expatriation allowance is thus intended to correct actual instances of inequality arising between staff members who are completely integrated into the society of the country of employment and those who are not’. (8)

49.      The fact that a staff member carried on a main occupation in the country of employment may thus result in an ‘expatriation’, (9) that is to say the integration of that staff member in the country of employment, before his or her entry into service, which justifies a refusal of the expatriation allowance. The environment to which the staff member moves is not new to him or her in that case. (10) However, a sufficient degree of integration typically exists only if the occupation in question is not just a secondary or subsidiary occupation, but the main occupation pursued. The relevant criteria for the determination of that main occupation are, among others, the working time devoted to the occupation and the corresponding salary level. (11)

50.      The integration of a person at a place is directly dependent on his or her actual living and working conditions. The legal framework governing the circumstances of work and the status of the person concerned under employment law have only an indirect effect on that integration. In view of the purpose of the expatriation allowance as described above, it therefore seems reasonable to me to base the determination of the place of main occupation on factual elements. That depends, in particular, on the place where the person has actually carried on his or her work in accordance with the contract signed by him or her. (12)

2.      Brussels as the place where the main occupation was carried on

51.      Since the appellant has not complained of any distortion of the facts by the General Court, the findings made in the judgment under appeal must be regarded as established. In paragraphs 6, 8 and 64 to 66 of that judgment, the General Court found that the appellant was appointed to the post of Secretary General of the EJTN as a result of an agreement between the Polish Minister for Justice and the EJTN. In accordance with that agreement, the appellant spent much of his working time at the EJTN head office in Brussels. For those purposes, the EJTN afforded him the use of a staff apartment in Brussels, where he lived with his family during the reference period. As can be seen from paragraphs 42 to 44 of the judgment under appeal, it is true that the appellant received his salary directly from the Polish district court even while working for the EJTN. However, Poland was ultimately reimbursed by the EJTN up to a considerable maximum amount. That amount is equivalent to the salary for a full-time position, taking into account the job profile of a Secretary General.

52.      The General Court concluded from this that the appellant carried on his occupation for the EJTN mainly at its head office in Brussels. The appellant has not challenged that finding in his appeal.

53.      As the General Court noted in paragraph 67 of the judgment under appeal, that is not precluded by the fact that the appellant had contact mainly with foreigners in the context of his role in Brussels or that he stated that he was not fluent in any of the official Belgian languages. While those aspects may in fact affect the appellant’s integration in Brussels, they do not affect the place where he carries on his occupation. Moreover, not taking those aspects into account does not contradict the aim or the regulatory context of Article 4(1)(a) of Annex VII to the Staff Regulations. The link to the main occupation also serves to establish a simple and objective criterion to cover the situation of staff members who, by taking up employment with the European Union, are forced to integrate into a new environment. (13) In that way, the need for legal certainty is taken into account.

54.      The conclusion that the appellant carried on his occupation for the EJTN mainly in Brussels is also not called into question by the numerous business trips he went on in Europe. If an occupation is characterised by travelling and the provision of services at different locations, it cannot be ruled out that, in certain cases, there may be no fixed place where the main occupation is carried on. However, there are no indications that that might be the case here, particularly since, according to the findings in paragraph 66 of the judgment under appeal, the appellant and his family lived in the staff apartment in Brussels made available to him by the EJTN during the entire reference period.

55.      Lastly, it is also irrelevant that the appellant’s wife kept her employment contract with a Polish court during that period. The determination of the place of the appellant’s main occupation can depend only on circumstances which are inherent in his person and are of a professional nature. The employment relationship of a person close to him, such as his wife, is not relevant in that respect. (14)

56.      Furthermore, it is apparent from the findings of the General Court referred to in point 51 above that the appellant’s activity for the EJTN was not merely secondary or subsidiary, but constituted his main occupation within the meaning of Article 4(1)(a) of Annex VII to the Staff Regulations.

57.      As the General Court considered in paragraphs 65 and 66 of the judgment under appeal without erring in law, it follows from the variety of duties to be performed by the Secretary General of the EJTN as well as from the corresponding salary level, that the responsibilities of the Secretary General must be regarded as a main occupation and not merely as a secondary or subsidiary occupation. It follows, by implication, that the appellant’s activity as a senior expert of the KSSiP in Poland was merely ancillary and therefore not relevant to the application of Article 4(1)(a) of Annex VII to the Staff Regulations.

58.      Contrary to the appellant’s submissions, the determination of the place of the main occupation does not depend on the question for which body the activity was primarily performed. The purpose of the expatriation allowance as described above in points 48 to 50 means that the determination of the place of main occupation must be based on factual elements. The decisive question is where the work is performed.

59.      Whether the tasks performed by the appellant for the EJTN were carried out on behalf of the KSSiP and thus ultimately the Polish State is thus not relevant for determining the place of occupation, but at most for the question of whether the appellant worked for another State. In other words, even if the appellant’s argument that he performed the tasks entrusted to him primarily for the KSSiP and only secondarily for the EJTN were accepted, the appellant’s main occupation during the reference period was carried on in Brussels. The appellant’s arguments summarised in point 42 above are therefore irrelevant for the determination of the place of the appellant’s main occupation.

3.      Interim conclusion

60.      It follows from all the foregoing that the General Court was right to hold that the place of the appellant’s main occupation during the reference period was Brussels.

B.      Work done for another State

61.      The appellant also submits that the General Court erred in defining the conditions of ‘work done for another State’. Moreover, the General Court failed to take into account his work for the Polish State and his status as a judge.

62.      In paragraphs 78 to 83 of the judgment under appeal, the General Court found that the term ‘State’ within the meaning of Article 4(1)(a) of Annex VII to the Staff Regulations relates only to the State as a legal person and unitary subject of international law and its government bodies. Work carried out for an international, non-profit association governed by Belgian law, such as the EJTN, is not covered by that term. Thus, Article 4(1)(a) of Annex VII to the Staff Regulations did not apply to the work done by the appellant for the EJTN.

63.      According to the appellant, the case-law does not support such a narrow interpretation of Article 4(1)(a) of Annex VII to the Staff Regulations. Moreover, it has to be taken into account that, due to the principle of separation of powers, members of the judiciary could not be integrated into a permanent representation of a State. By the interpretation which it adopted, the General Court excluded any members of the judiciary from the benefit of the exception set out in the second sentence of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations. The phrase ‘work done for another State’ should therefore be interpreted as covering all circumstances arising from the work done for another State, without that work being limited to work in connection with an official representation of that State.

64.      Moreover, according to the appellant, by holding that work for the EJTN did not fall within the scope of the concept of ‘work done for another State’, the General Court failed to take into account the appellant’s work for the Polish State and his status as a judge. By performing the duties and obligations of the Secretary General of the EJTN, the appellant at the same time fulfilled the tasks assigned to him by the KSSiP.

65.      In the following, I shall start by explaining which requirements must be placed on the criterion of ‘work done for another State’ (1). In that context, I shall explain in particular that this requires working in an institution of that other State in the country of employment. I shall then go on to show that the appellant did not do any work for another State during the reference period (2).

1.      Requirements of the criterion of ‘work done for another State’

(a)    Wording and rationale of the provision

66.      As Advocate General Bot has explained in detail, the term ‘State’ can be broad or narrow depending on the context in which it is applied. (15) It cannot therefore be detached from the phrase of which it is a part in order to be interpreted separately; rather the phrase ‘work done for another State’ must be considered as a whole and interpreted in the light of the scheme and objectives of the rules of which it forms part. (16)

67.      As noted in point 48 above, the purpose of the expatriation allowance is to compensate staff members for the extra expense and inconvenience of taking up employment with institutions of the European Union if they have been thereby obliged to integrate themselves in a new environment. The neutralisation rule set out in the second sentence of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations provides that it is necessary ‘to treat as also being in such a situation of expatriation a staff member who, whilst residing or carrying on an occupation within the European territory of the State in which his [or her] place of employment is situated during the five years ending six months before he [or she] entered the service, worked for another State …’. (17) The presumption behind this is that, by the performance of that work, the party concerned preserves a specific tie linking him or her to that other State. That tie hinders the creation of a lasting tie to the country of employment and thus his or her sufficient integration into the society of the country of employment. (18) In other words, in such a situation, it is presumed that a staff member continues to be ‘foreign’ in the country of employment, which justifies treating him or her on an equal footing with newly arrived staff members and preserving his or her entitlement to payment of the expatriation allowance.

68.      How can that assumption be justified on the basis of the objectives and the scheme of the relevant rules?

69.      The first justification is that working abroad for another State is usually done only for a limited period and the person concerned therefore has no interest in establishing a permanent tie with that country of employment. Second, the particular working environment in which the person working for another State finds himself or herself in the country of employment may make social integration into that State more difficult. Third, the neutralisation rule reflects the need to maintain the EU institutions’ ability to recruit and their capacity to attract citizens from States other than the State in which their seat is located even if those citizens have already worked in the country of employment for a limited period. (19)

70.      However, as Advocate General Mengozzi has already pointed out, those attempts at justification appear insufficient in themselves, as they do not explain the more favourable treatment given to persons who perform services abroad for other States or international organisations and thus benefit from the neutralisation rule, as opposed to the position of persons who perform services for other bodies and thus do not benefit from the neutralisation rule. (20)

71.      A different explanation for that differentiation would be to regard the neutralisation rule as a privilege for the benefit of other States or international organisations, which is reflected in special arrangements for persons who have worked for their institutions and is designed to facilitate regional mobility for employees of other States and international organisations. (21)

72.      However, Article 4(1)(b) of Annex VII to the Staff Regulations, which has a different scope from that of subparagraph (a), argues against that interpretation: whereas subparagraph (a) requires that the staff member is not a national of the country of employment, subparagraph (b) regulates the granting of the expatriation allowance in cases where the staff member is a national of the country of employment. Under that provision, staff members will receive the expatriation allowance only in exceptional circumstances: namely if, during the 10 years ending at the date of their entering the service, they habitually resided outside the country of employment for reasons other than the performance of duties in the service of a State or of an international organisation. Those other reasons cannot therefore be related to the performance of duties in the service of a State or of an international organisation.

73.      Thus, while it is true that, within the scope of Article 4(1)(a) of Annex VII to the Staff Regulations, a staff member does benefit from having worked in the service of another State or of an international organisation, since that provision maintains his or her entitlement to the expatriation allowance, conversely, within the scope of Article 4(1)(b) of Annex VII to the Staff Regulations, previous work in the service of a State or of an international organisation is detrimental to him or her, since it eliminates that entitlement. (22) In reality, therefore, there is no general privilege afforded to work done for another State or an international organisation.

74.      It is clear from the scheme of subparagraphs (a) and (b) that whether or not a person possesses the nationality of the country of employment determines only which period is relevant for the assessment of the permanent residence or the main occupation before the entry into service and thus for the criterion of being ‘foreign’ in the country of employment at the time of that entry into service. (23) Just as a person who is not a national of the country of employment can establish a special connection to it by taking up residence or carrying on a main occupation there during the reference period and thus eliminate the criterion of being ‘foreign’ (on which a claim is based), a national can lose that special connection to a country, established by being a national thereof, by means of a continuous absence of 10 years and thus fulfil the criterion of being ‘foreign’ upon his or her return to the country of employment. (24) However, that activity, which either (a) establishes a special connection to the country of employment or (b) eliminates it, cannot be work done for another State or the performance of duties in the service of another State. The legislature thus assumed that work done for another State or the performance of duties in the service of another State cannot lead to a special connection with the State in which that work is carried out.

75.      Taking into account the provision in Article 4(1)(b) of Annex VII to the Staff Regulations, it is therefore clear that the legislature has attached a privilege to the situation of work done for another State or an international organisation in subparagraph (a) only because, in such cases, it is typically assumed that the specific connection of the person concerned to the other State or international organisation prevents sufficient integration into the society of the country of employment and that the person is therefore ‘foreign’ there.

76.      Those categories are applied for reasons of legal certainty and correspond to the need to assess the granting of an expatriation allowance on the basis of objective and easily applicable criteria. (25) That conclusion is not undermined by the fact that the application of those categories may give rise to individual cases in which staff members find that payment of the expatriation allowance is denied to them, even though their situation is close to that defined by Article 4(1)(a) of Annex VII to the Staff Regulations, (26) since those staff members had been, before entering the service of the European Union, employed by a body other than another State or an international organisation. (27)

(b)    The requirement to work in an institution of that other State

77.      Given those purposes, which requirements must be placed on work done for another State?

(1)    The Court’s previous case-law

78.      In its judgment in Commission v Hosman-Chevalier the Court stated that, in the country to which the staff member concerned was posted, the other States ‘are represented by embassies or diplomatic missions and by permanent representations to international organisations’. (28)

79.      The Court therefore concluded that a person who, although not employed by the central administration of that State, was a member of staff of the permanent representation of that State, had to be regarded as having worked for that State. (29) In that regard, the Court considered it irrelevant what particular and specific functions a person carried out within the permanent representation. (30) Rather, it focused on the person’s privileged status, which meant the person was accorded various privileges and immunities under the Vienna Convention on Diplomatic Relations of 18 April 1961 and therefore had a specific tie linking that person to that State. (31) The Court also ruled that a direct legal tie linking the person concerned and the State at issue was not required. (32)

80.      Building on that, in its judgments in Salvador García v Commission, Herrero Romeu v Commission, Salazar Brier v Commission and De Bustamante Tello v Council, the Court ruled that the only fact to be considered relevant for the purposes of interpretation of the phrase ‘work done for another State’ is that the work is done within a permanent representation of a State. (33) However, that statement must be read against the background of the particularities of the decided cases and, in my view, must not be construed too narrowly. According to the interpretation set out in point 78 above, work in embassies and diplomatic missions must, in any event, also be included.

81.      However, is it necessary in every case that the work for another State be performed in an institution of that other State in the country of employment, such as, in particular, an embassy, diplomatic mission or permanent representation?

(2)    The wording ‘work done for another State’

82.      The wording ‘work done for another State’ does not necessarily require that. In that respect, there is a difference, at least in the German-language version, from Article 4(1)(b) of Annex VII to the Staff Regulations, which – more narrowly – refers to work ‘in einer Dienststelle eines Staates’. Similar nuances can be found in other language versions. Thus, the French version of Article 4(1)(a) of Annex VII to the Staff Regulations refers to ‘services effectués pour un autre État’ (34) and Article 4(1)(b) of that annex refers to ‘l’exercice de fonctions dans un service d’un État.’ (35)

83.      The General Court concluded in its judgment in Vardakas v Commission that the term used in subparagraph (a) must be interpreted broadly and the term used in subparagraph (b) narrowly. (36) However, such a divergent interpretation does not seem necessary: as noted in points 72 to 75 above, both subparagraph (a) and subparagraph (b) are based on the same idea, namely that, in the case of work for another State or in the service of another State, a specific tie is preserved between the person concerned and that State, which prevents his or her sufficient integration into the State in which that work is performed. That pleads in favour of assigning the same meaning to the concepts used in subparagraphs (a) and (b), despite their different wording.

84.      Moreover, the differences in wording are less pronounced in other language versions. For example, in the English version, Article 4(1)(a) of Annex VII to the Staff Regulations refers to ‘work done for another State’ and Article 4(1)(b) of that annex refers to ‘duties in the service of a State’, whereas the Dutch version refers to ‘diensten, verricht voor een andere staat’ (subparagraph (a)) and ‘functie in dienst van een staat’ (subparagraph (b)).

(3)    Purpose and objective of the neutralisation rule

85.      In my view, the rationale of the neutralisation rule pleads in favour of the requirement that the person be directly employed in an institution of the other State in the country of employment. As outlined above in point 67 et seq., the neutralisation rule involves a presumption, based on objective and simple criteria, that the person preserves a specific tie with the other State. Applying the required categorisation, that presumption appears to be justified only if the activity is performed directly in an institution of the other State, even if a direct legal tie linking the person concerned and the State is not required. (37) If, however, the activity is carried out, albeit on behalf and for the account of the other State, in a third-party institution or in different institutions, that weakens the tie linking the person and the State.

86.      A different interpretation would make the application of the law significantly more difficult and would give rise to the risk of considerable legal uncertainty. If it were considered that work in an institution of another State in the country of employment were not necessary, it would be difficult to determine which cases actually constitute work for another State.

87.      The status or employment relationship with that other State would not be sufficient for that purpose, because it cannot be ruled out that in certain cases work for another State can also be provided by means of self-employment (38) or employment with a third party. Such a view would, moreover, contradict the previous case-law of the Court of Justice, according to which a direct legal relationship between the person concerned and the State at issue is, in fact, not required. (39)

88.      Nor could such cases be reliably determined on the basis of the specific work performed. The actual assessment of that work would run counter to the need for simple criteria for the application of the law. Moreover, with respect to integration into the country of employment, the work performed appears to me to be much less significant than other factors, such as the working environment or the status and any associated privileges and prerogatives of the person. In other words, the specific work performed, regardless of its nature, does not seem to me to be suitable in itself to establish the presumption of such a specific tie with the other State that would prevent integration in the country of employment. In that respect, the Court of Justice has also already ruled that the specific functions performed in the institution are irrelevant. (40)

(4)    Interim conclusion

89.      I conclude that the applicability of the neutralisation rule requires that the work in the country of employment must have been performed in an institution of that other State.(41) Whether that institution of the other State in the country of employment must necessarily be an embassy, a diplomatic mission or a permanent representation, which seems to be implied by the case-law of the Court of Justice to date and was also assumed by the General Court in paragraphs 78 to 83 of the judgment under appeal, or whether other State institutions, such as military bases abroad or international schools under the sponsorship of another State, may also be covered is not decisive in the present case. (42)

2.      Application of that criterion to the appellant’s situation

90.      In the light of those criteria, does the work performed by the appellant during the reference period constitute work done for the Polish State?

91.      In the present case, it is clear that the appellant continued to hold the status of a Polish judge during the performance of his work in Brussels. As can be seen from what I have said so far, however, the decisive criterion for the application of the neutralisation rule is neither the specific work performed by the person concerned nor his or her specific legal tie with that other State, but his or her integration into an institution of that other State in the country of employment.

92.      During the reference period, according to the findings in paragraphs 64, 66 and 73 of the judgment under appeal, the appellant performed a large part of his work at the EJTN’s office in Brussels. He was also subject to the supervision of the EJTN Steering Committee, which had the power to suspend his mandate and propose to the General Assembly that it be terminated. Those circumstances show that he was integrated into an EJTN institution in Belgium. As is apparent from paragraphs 3 and 82 of the judgment under appeal, the EJTN is an international, non-profit association under Belgian law which aims to develop training programmes with a European dimension for its members and court staff. It is therefore not an institution of the Polish State.

93.      That conclusion is not called into question by the appellant’s argument that the interpretation adopted by the General Court, according to which integration into a permanent representation of a Member State is required, would exclude all members of the judiciary from the benefit of the neutralisation rule.

94.      First, in the present case, it is ultimately not necessary to determine whether integration into an embassy, diplomatic mission or permanent representation is required or whether integration into another State institution in the country of employment is sufficient.

95.      Second, it cannot be ruled out that members of the judiciary, despite their judicial independence, may also be integrated into such an institution, for example as a result of a secondment. That is shown by the example of the appellant himself, whose judicial independence was not adversely affected by the fact that, in the context of his work for the EJTN, which must be distinguished from his work as a judge, he was integrated into the EJTN and was subject to the supervision of its Steering Committee.

96.      Third, the fact that the need to apply the neutralisation rule on the basis of objective and simple criteria would entail the exclusion of certain groups of people, in the same way as, for example, work in the purely private sector, is irrelevant. As stated in point 67 et seq. above, the neutralisation rule is not to be understood as a privilege but is typically based on the specific tie of the applicant to the other State. If the appellant did not fall within the scope of Article 4(1)(a) of Annex VII to the Staff Regulations, but within that of subparagraph (b), a broad interpretation of the – identically interpreted – concept of ‘performance of duties in the service of a State’ would, in fact, be detrimental to him. (43)

97.      Contrary to the appellant’s submission, the General Court also did not err in law by assuming that the work performed for the EJTN was the only relevant factor, without taking into account the appellant’s status as a judge and the legal tie between him and the Polish State.

98.      As explained above, the status of the person concerned and his legal ties with the other State are not decisive factors for the application of the criterion of ‘work done for another State’. It is therefore also irrelevant that the appellant continued to be employed as a district court judge by the Polish State during the reference period and received his salary directly from that court.

3.      Interim conclusion

99.      The General Court therefore did not err in law in holding that the exception relating to ‘work done for another State’ in the second sentence of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations did not apply to the work performed by the appellant for the EJTN.

VI.    Costs

100. It follows from the foregoing considerations that the appeal must be dismissed. Consequently, in accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, the Court is to make a decision as to costs. Under Article 138(1) of those rules, applicable 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. Since the Commission has applied for costs, the appellant must be ordered to bear his own costs and to pay those incurred by the Commission.

VII. Conclusion

101. In summary, I propose that the Court should order as follows:

(1)      The appeal is dismissed.

(2)      The appellant shall pay the costs of the appeal proceedings.

1      Original language: German.

2      Regulation No 31 (EEC) 11 (EAEC) laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community (OJ 1962 45, p. 1385).

3      Judgment in QB v Commission (T‑71/21, not published, EU:T:2021:868).

4      In that regard, it is appropriate to note, for example, the judgment of 30 March 1993, Vardakas v Commission (T‑4/92, EU:T:1993:29), in which the General Court held that the Comité européen de normalisation, an international non-profit association under Belgian law, is an ‘international organisation’ within the meaning of the second sentence of the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations.

5      Judgments of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraph 61); of 14 January 2016, Vodafone (C‑395/14, EU:C:2016:9, paragraph 40); of 25 January 2018, Commission v Czech Republic (C‑314/16, EU:C:2018:42, paragraph 47); of 15 March 2022, Autorité des marchés financiers (C‑302/20, EU:C:2022:190, paragraph 63); and of 12 January 2023, Österreichische Post (Information regarding the recipients of personal data) (C‑154/21, EU:C:2023:3, paragraph 29).

6      See, to that effect, judgments of 26 January 2021, Hessischer Rundfunk (C‑422/19 and C‑423/19, EU:C:2021:63, paragraph 65), and of 17 January 2023, Spain v Commission (C‑632/20 P, EU:C:2023:28, paragraphs 40 to 42).

7      In certain cases, it is conceivable that a staff member’s main occupation cannot be determined because he or she carries on several occupations with the same time commitment. In such cases, carrying on one of those occupations in the subsequent country of employment during the reference period would not prevent the expatriation allowance being granted.

8      Judgments of 24 January 2008, Adam v Commission (C‑211/06 P, EU:C:2008:34, paragraphs 38 and 39); of 21 June 2007, Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:367, paragraphs 35 and 36); of 29 November 2007, Salvador García v Commission (C‑7/06 P, EU:C:2007:724, paragraphs 43 and 44); of 29 November 2007, Salazar Brier v Commission (C‑9/06 P, EU:C:2007:726, paragraphs 41 and 42); of 29 November 2007, Herrero Romeu v Commission (C‑8/06 P, EU:C:2007:725, paragraphs 37 and 38); of 29 November 2007, De Bustamante Tello v Council (C‑10/06 P, EU:C:2007:727, paragraphs 33 and 34); and 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); see judgments of 15 September 1994, Magdalena Fernández v Commission (C‑452/93 P, EU:C:1994:332, paragraph 20), and of 15 September 2022, Brown v Commission and Council (C‑675/20 P, EU:C:2022:686, paragraph 46).

9      Opinion of Advocate General Mengozzi in Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:169, point 44, footnote 23).

10      See judgment of 28 February 2019, Pozza v Parliament (T‑216/18, not published, EU:T:2019:118, paragraph 39).

11      See, to that effect, judgments of 30 June 2005, Olesen v Commission (T‑190/03, EU:T:2005:264, paragraph 34), and of 28 February 2019, Pozza v Parliament (T‑216/18, not published, EU:T:2019:118, paragraph 50).

12      See, to that effect, judgment of 25 November 2020, UI v Commission (T‑362/19, not published, EU:T:2020:562, paragraph 53); similarly, judgment of 13 December 2004, E v Commission (T‑251/02, EU:T:2004:357, paragraphs 57 and 72).

13      Judgment of 31 May 1988, Nuñez v Commission (211/87, EU:C:1988:275, paragraph 10); judgments of 8 April 1992, Costacurta Gelabert v Commission (T‑18/91, EU:T:1992:56, paragraph 41); of 13 April 2000, Reichert v Parliament (T‑18/98, EU:T:2000:113, paragraph 25); of 3 May 2001, Liaskou v Council (T‑60/00, EU:T:2001:129, paragraph 52); of 30 June 2005, Olesen v Commission (T‑190/03, EU:T:2005:264, paragraph 61); and of 25 November 2020, UI v Commission (T‑362/19, not published, EU:T:2020:562, paragraph 37).

14      See order of 6 July 2021, Karpeta-Kovalyova v Commission (C‑717/20 P, not published, EU:C:2021:542, paragraphs 11 and 12).

15      Joined Opinion of Advocate General Bot in Salvador García v Kommission (C‑7/06 P); Herrero Romeu v Commission (C‑8/06 P); Salazar Brier v Commission (C‑9/06 P); and De Bustamante Tello v Council (C‑10/06 P) (EU:C:2007:324, points 123 to 131).

16      Judgments of 29 November 2007, Salvador García v Commission (C‑7/06 P, EU:C:2007:724, paragraph 42); of 29 November 2007, Herrero Romeu v Commission (C‑8/06 P, EU:C:2007:725, paragraph 36); and of 29 November 2007, Salazar Brier v Commission (C‑9/06 P, EU:C:2007:726, paragraph 40); Joined Opinion of Advocate General Bot in Salvador García v Commission (C‑7/06 P); Herrero Romeu v Commission (C‑8/06 P); Salazar Brier v Commission (C‑9/06 P); and De Bustamante Tello v Council (C‑10/06 P) (EU:C:2007:324, point 136).

17      Judgments of 21 June 2007, Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:367, paragraph 37); of 29 November 2007, Salvador García v Commission (C‑7/06 P, EU:C:2007:724, paragraph 45); of 29 November 2007, Herrero Romeu v Commission (C‑8/06 P, EU:C:2007:725, paragraph 39); of 29 November 2007, Salazar Brier v Commission (C‑9/06 P, EU:C:2007:726, paragraph 43); of 29 November 2007, De Bustamante Tello v Council (C‑10/06 P, EU:C:2007:727, paragraph 35); and of 24 January 2008, Adam v Commission (C‑211/06 P, EU:C:2008:34, paragraph 40).

18      Judgments of 21 June 2007, Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:367, paragraph 38); of 29 November 2007, Salvador García v Commission (C‑7/06 P, EU:C:2007:724, paragraph 46); of 29 November 2007, Herrero Romeu v Commission (C‑8/06 P, EU:C:2007:725, paragraph 40); of 29 November 2007, Salazar Brier v Commission (C‑9/06 P, EU:C:2007:726, paragraph 44); of 29 November 2007, De Bustamante Tello v Council (C‑10/06 P, EU:C:2007:727, paragraph 36); and of 24 January 2008, Adam v Commission (C‑211/06 P, EU:C:2008:34, paragraph 41).

19      See, on those considerations, Opinion of Advocate General Mengozzi in Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:169, points 54 to 56).

20      Opinion of Advocate General Mengozzi in Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:169, point 57).

21      To that effect, Opinion of Advocate General Mengozzi in Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:169, point 57).

22      The case under consideration falls within the scope of Article 4(1)(a) of Annex VII to the Staff Regulations, since the appellant is not a national of his country of employment (Belgium) but is a Polish national. Nevertheless, since he carried on his main occupation in Belgium during the reference period, he is not entitled to the expatriation allowance unless he worked for another State (or an international organisation). In those circumstances, a broad interpretation of the phrase ‘work done for another State’ would benefit him. If, however, an entry into service in Poland were at issue, and the appellant had carried on his main occupation in Belgium for a period of at least 10 years, he would be entitled to the expatriation allowance only if he had not performed duties in the service of a State or of an international organisation. In that scenario – which is not the one in the present case – a broad interpretation of that phrase would therefore be detrimental to him.

23      See, in extenso my Opinion in Brown v Commission (C‑675/20 P, EU:C:2022:287, points 36 to 42 and 50).

24      See my Opinion in Brown v Commission (C‑675/20 P, EU:C:2022:287, points 40 and 41).

25      See Opinion of Advocate General Mengozzi in Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:169, point 90); on that consideration with regard to the interpretation of the criterion of ‘main occupation’, see also above under point 53.

26      See judgment of 15 January 1981, Vutera v Commission (1322/79, EU:C:1981:6, paragraph 9) and judgment of the General Court of 13 December 2004, E v Commission (T‑251/02, EU:T:2004:357, paragraph 126).

27      An example of that would be the temporary secondment of an employee of a private company to a foreign office of that company. Thus, in the judgment of 13 December 2004, E v Commission (T‑251/02, EU:T:2004:357) the General Court held that a person who had been an employee of an English law firm in London (England) and had been temporarily seconded to the Brussels office of that firm did not benefit from the neutralisation rule.

28      Judgment of 21 June 2007, Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:367, paragraph 39).

29      Judgment of 21 June 2007, Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:367, paragraph 42).

30      Judgment of 21 June 2007, Commission v Hosman-Chevalier (C‑424/05 P EU:C:2007:367, paragraph 44).

31      Judgment of 21 June 2007, Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:367, paragraphs 42 and 43); see the judgments referring to the above of 29 November 2007, Salvador García v Commission (C‑7/06 P, EU:C:2007:724, paragraph 51); of 29 November 2007, Herrero Romeu v Commission (C‑8/06 P, EU:C:2007:725, paragraph 45); of 29 November 2007, Salazar Brier v Commission (C‑9/06 P, EU:C:2007:726, paragraph 49); and of 29 November 2007, De Bustamante Tello v Council (C‑10/06 P, EU:C:2007:727, paragraph 41).

32      Judgment of 21 June 2007, Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:367, paragraph 45).

33      Judgments of 29 November 2007, Salvador García v Commission (C‑7/06 P, EU:C:2007:724, paragraphs 50 and 60); of 29 November 2007, Herrero Romeu v Commission (C‑8/06 P, EU:C:2007:725, paragraphs 50 and 54); of 29 November 2007, Salazar Brier v Commission (C‑9/06 P, EU:C:2007:726, paragraphs 54 and 58); and of 29 November 2007, De Bustamante Tello v Council (C‑10/06 P, EU:C:2007:727, paragraphs 46 and 50).

34      Corresponding wording can also be found in the Italian-language version (‘servizi effettuati per un altro Stato’), the Spanish-language version (‘servicios prestados a otro Estado’) and the Portuguese-language version (‘serviços prestados a um outro Estado’).

35      Corresponding wording can also be found in the Italian-language version (‘esercizio di funzioni al servizio di uno Stato’), the Spanish-language version (‘ejercicio de funciones al servicio de un Estado’) and the Portuguese-language version (‘exercício de funções num serviço de qualquer Estado’).

36      Judgment of 30 March 1993, Vardakas v Commission (T‑4/92, EU:T:1993:29, paragraph 36), also judgment of 28 November 2019, Wywiał-Prząda v Commission (T‑592/18, EU:T:2019:820, paragraph 35).

37      Judgment of 21 June 2007, Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:367, paragraph 45).

38      In that respect, the General Court has ruled in one case that work as an independent adviser to the Commission falls within the scope of the exception relating to work for an international organisation, see judgment of 14 December 1995, Diamantaras v Commission (T‑72/94, EU:T:1995:212, paragraph 52).

39      Judgment of 21 June 2007, Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:367, paragraph 45).

40      Judgment of 21 June 2007, Commission v Hosman-Chevalier (C‑424/05 P, EU:C:2007:367, paragraph 44).

41      Whether work for a political sub-unit of a State, such as regional governments, autonomous communities or other territorial authorities, falls under the neutralisation rule is not decisive in the present case. It can therefore be left open here whether the Court of Justice expressly rejected that in its judgments of 29 November 2007, Salvador García v Commission (C‑7/06 P, EU:C:2007:724); of 29 November 2007, Herrero Romeu v Commission (C‑8/06 P, EU:C:2007:725); of 29 November 2007, Salazar Brier v Commission (C‑9/06 P, EU:C:2007:726); and of 29 November 2007, De Bustamante Tello v Council (C‑10/06 P, EU:C:2007:727).

42      In that respect, it would be worth considering whether the respective work is accompanied by certain privileges and immunities, such as may arise from the Vienna Convention on Diplomatic Relations of 18 April 1961 or other treaties under international law. For in those cases at least, there is a sufficiently relevant difference from persons who are temporarily posted abroad by a private – natural or legal – person and work there, for example, in a branch office. Moreover, the criterion of the existence of certain privileges and immunities for the benefit of the person would allow an objective and clear application of the neutralisation rule.

43      See, in that regard, my comments in points 71 to 73.

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