Azoulay and Others v Parliament (Staff Regulations of officials and Conditions of Employment of other servants - Judgment) [2017] EUECJ T-580/16 (28 April 2017)

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(Civil service — Officials — Members of the temporary staff — Remuneration — Family allowances — Education allowance — Refusal to reimburse education costs — Article 3(1) of Annex VII to the Staff Regulations — Legitimate expectations — Equal treatment — Principle of sound administration)

Irit Azoulay, member of the temporary staff of the European Parliament, residing in Brussels (Belgium),

Andrew Boreham, member of the temporary staff of the European Parliament, residing in Wansin-Hannut (Belgium),

Mirja Bouchard, official of the European Parliament, residing in Villers-la-Ville (Belgium),

Darren Neville, official of the European Parliament, residing in Ohain (Belgium),

European Parliament, represented by E. Taneva and L. Deneys, acting as Agents,

ACTION brought under Article 270 TFEU, seeking annulment of the individual decisions of the Parliament of 24 April 2015 refusing to grant education allowances for the year 2014/2015 and, so far as necessary, annulment of the individual decisions of the Parliament of 17 and 19 November 2015 partially rejecting the applicants’ complaints of 20 July 2015,

composed of A.M. Collins, President, R. Barents (Rapporteur) and J. Passer, Judges,

having regard to the written part of the procedure and further to the hearing on 14 December 2016,

1 The first applicant, Ms Irit Azoulay, has a child registered since September 2014 at the Athénée (Belgian primary and secondary school) Ganenou in Brussels (Belgium). The other three applicants, Mr Andrew Boreham, Ms Mirja Bouchard and Mr Darren Neville, have children registered at the International School Le Verseau in Bierges (Belgium). Until the school year 2014/2015, those of the applicants who already had children registered at those educational establishments before 2014 received reimbursement of those children’s education costs within the limits of the monthly maximum amount.

2 The International School Le Verseau is a non-faith school which is part of the Fédération des établissements libres subventionnés indépendants (Federation of Independent Subsidised Free Establishments) (FELSI) and is subsidised by the French Community. Lessons are provided in French and English from pre-school onwards by teachers who have one of those languages as their mother tongue. However, the school is not entirely funded by that subsidy. It has its own resources, provided, inter alia, by the non-profit association Les Amis du Verseau.

3 The Athénée Ganenou is a faith school which is subsidised by the French Community, whose official curriculum it applies in full, while adding several hours thereto per week to teach Hebrew, the history of Judaism, the Bible, and English from primary level onwards. The school is not entirely funded by that subsidy. It has its own resources, provided, inter alia, by the non-profit association Les Amis de Ganenou.

4 In October and November 2014, the applicants submitted requests for reimbursement of education costs which they had incurred in respect of their dependent children, accompanied by supporting documents provided by the schools concerned and identical to those which had been appended to their previous requests for reimbursement of such costs, which had been accepted.

5 On 24 April 2015, the applicants received notification that their requests for reimbursement of education costs had been definitively rejected (‘the contested decisions’) on the ground that the conditions set out in Article 3(1) of Annex VII to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) were not satisfied, because the two schools concerned were not schools which charge fees for the purposes of that provision, since the optional contributions made by the applicants to the non-profit associations concerned fall outside the framework of compulsory free education as provided for by Belgian legislation.

6 On 20 July 2015, each of the applicants submitted a complaint pursuant to Article 90(2) of the Staff Regulations. By individual decisions of the Secretary-General of the European Parliament of 17 and 19 November 2015, those complaints were rejected (‘the decisions rejecting the complaints’). However, the Secretary-General of the Parliament decided, ‘ex gratia and by way of exception’, to grant the applicants the education allowance for the year 2014/2015, but not to continue to grant it for future school years in respect of schooling at the International School Le Verseau or the Athénée Ganenou.

7 By application lodged at the Registry of the Civil Service Tribunal on 17 February 2016, the applicants brought the present action.

8 Pursuant to Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), cases pending before the Civil Service Tribunal on 31 August 2016 are to be transferred to the General Court, which is to continue dealing with those cases as it finds them at that date and in accordance with its Rules of Procedure.

– order the Parliament to pay them the education allowance for the year 2015/2016, together with interest calculated from the dates on which those sums were due;

11 At the hearing, in response to a question put by the Court, the applicants asked to amend their second head of claim, and thus claim that the Court should:

– so far as necessary, annul ‘the decisions rejecting the complaints except as concerns the decision of the Secretary-General of the Parliament ex gratia and by way of exception to grant them the education allowance for the year 2014/2015’;

– order the Parliament to pay them the education allowance for the year 2015/2016, together with interest calculated from the dates on which those sums were due;

12 It should be borne in mind that, according to settled case-law, claims for annulment formally directed against a decision rejecting a complaint have, where that decision lacks any independent content, the effect of bringing before the Court the act against which the complaint was submitted (judgment of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8). As the decisions rejecting the complaints in the present case lack any independent content, the action must be regarded as directed against the contested decisions.

13 In support of the action, the applicants rely on three pleas in law, alleging (i) infringement of Article 3(1) of Annex VII to the Staff Regulations and a manifest error of assessment, (ii) infringement of the principle of protection of legitimate expectations, and (iii) infringement of the principles of equal treatment and sound administration.

First plea in law: infringement of Article 3(1) of Annex VII to the Staff Regulations and a manifest error of assessment

14 In the first place, the applicants remark that the concept of ‘education costs’ referred to in Article 3(1) of Annex VII to the Staff Regulations includes fees for registration and attendance at educational establishments. In their view, the condition relating to whether the establishment attended ‘charges fees’ is misleading. Whether the education costs are optional or compulsory is irrelevant, because all that matters is that education costs have been incurred by the official in respect of dependent children in schools offering the teaching programme of their choice. That provision does not make the grant of the education allowance dependent on existing designations or classifications applied at national level, but only on the nature of the expenditure to be reimbursed and its constituent elements.

15 In the second place, the applicants argue that the concept of ‘education costs’ is an autonomous concept. In that regard, they acknowledge that subsidised education in Belgium does not provide for the teaching of English to native speakers by native speakers; nor does it provide for the passing on of the cultural, religious and historical heritage of the Jewish people. The only means of ensuring such teaching is additional funding. The costs covered by the resources of the schools concerned and funded thanks to the support provided by non-profit associations are costs enabling a pupil first to have access to a specific teaching establishment and then to participate properly in the programmes and attend the classes provided by that establishment. The Parliament’s argument that, under Belgian legislation, an educational establishment may not make registration conditional upon payment of a sum of money, whether to the establishment itself or to any other body, disregards the autonomous nature of the concept of ‘education costs’. Again according to the applicants, it is apparent from the statement of education costs that the costs incurred correspond exactly to the parents’ contribution to the funding of a non-profit association supporting a subsidised educational establishment and constitute, in terms of their intended purpose and actual use, education costs which may be reimbursed.

16 In the third place, the applicants remark that the costs excluded from reimbursement, listed in Article 3 of the General Implementing Provisions on granting the education allowance laid down in Article 3 of Annex VII to the Staff Regulations, adopted by the Parliament on 18 May 2004 pursuant to Article 110 of the Staff Regulations (‘the GIPs’), are extra-curricular and thus optional costs. By contrast, the costs connected with the funds called for by the non-profit associations concerned are fees payable in advance as part of the registration and attendance fees.

17 According to the Parliament, it is apparent from Belgian legislation that the free subsidised establishments provide a free education and are not private schools requiring school fees to which pupils’ registration and access to classes are subject. Although some fees may be required under certain conditions, non-payment of those fees cannot under any circumstances constitute, for the pupil, a ground for a penalty such as refusal to register or exclusion from classes. The list in Article 3 of the GIPs of the costs excluded from the reimbursement of education costs is not exhaustive. The only costs that are regarded as education costs are those to which the pupil’s admission to the school and its programme are subject. In the present case, registration of pupils at the schools concerned is not conditional upon payment of registration fees. The parents’ contributions to the non-profit associations concerned cover the specific programme provided by the two schools.

18 The Parliament also argues that, according to Conclusion No 12/77 of the Heads of Administration, in order to be able to receive the education allowance, members of staff must submit an invoice distinguishing between the different types of costs. The invoices and affidavits submitted by the applicants do not satisfy that condition and do not provide a means of ascertaining precisely how the contributions made by the applicants are actually used.

19 Article 3(1) of Annex VII to the Staff Regulations provides in particular that, ‘subject to the conditions laid down in the general implementing provisions, an official shall receive an education allowance equal to the actual education costs incurred by him up to a maximum of EUR 260.95 per month for each dependent child ... who is at least five years old and in regular full-time attendance at a primary or secondary school which charges fees or at an establishment of higher education’.

20 It is apparent from Article 3(1) of Annex VII to the Staff Regulations that the concept of ‘education costs’ concerns costs connected with the regular full-time attendance by an official’s dependent child at ‘a primary or secondary school which charges fees’.

21 It is therefore necessary to examine whether the International School Le Verseau and the Athénée Ganenou are ‘primary or secondary school[s] which [charge] fees’ for the purposes of Article 3(1) of Annex VII to the Staff Regulations.

22 In the first place, it is common ground that, according to the legislation applicable in the French Community, compulsory education in that Community is to be free and no school fees may be required or received.

23 In that regard, it should be noted that Circular No 4516 of 29 August 2013 of the French Community entitled ‘Free Compulsory Education’ (‘Circular No 4516’) stipulates the following in Chapter II, headed ‘Rules applicable regarding free access to education’, which appears in Part A, entitled ‘Fees which may not be requested by the school (Articles 100 and 102 of the Decree of 24 July 1997 “Assignments”)’:

‘In primary education as in secondary education, schools may not request the payment of certain fees by parents. These include, in particular:

The first paragraph of Article 12 of the Law of 29 May 1959, known as the Schools Pact, and the first paragraph of Article 100 of the Decree of 24 July 1997 state that no direct or indirect school fees may be collected or accepted.

This means, in particular, that an educational establishment may not make registration conditional upon payment of a sum of money, whether to the establishment itself or to any other body ([non-profit association], social club, de facto association).’

24 In the second place, it is also common ground that, according to the legislation referred to in paragraphs 22 and 23 above, the applicants were not required to pay registration or attendance fees to the International School Le Verseau, the Athénée Ganenou or a third body in respect of their dependent children at those schools.

25 It is apparent from the affidavits provided by the International School Le Verseau that ‘the contribution for the year 2014/2015 ... will be used exclusively for the continuation and development of the teaching programmes [provided by that school], at which [the dependent children of the second, third and fourth applicants are] correctly registered, which are not subsidised by the French Community’. The Athénée Ganenou ‘confirm[s] … the registration of [the first applicant’s dependent child] for the year 2014/2015’, states that it is ‘a free subsidised school that applies the full official curriculum of the [French Community]’, notes that ‘the cost of participation in the specific teaching programme and unsubsidised education is EUR 270 per month, for 10 months each year’ and specifies that ‘[these] costs do not cover school equipment or canteen charges, both of which are to be paid for separately’.

26 It follows that, in the present case, the condition of a ‘primary or secondary school which charges fees’ as referred to in Article 3(1) of Annex VII to the Staff Regulations is not met and that, accordingly, the applicants cannot receive an education allowance in respect of their dependent children who are registered at, respectively, the International School Le Verseau and the Athénée Ganenou.

27 That finding is not undermined by the arguments put forward by the applicants.

28 First of all, the applicants argue that the concept of ‘education costs’ concerns costs incurred by an official in respect of his dependent children at the schools offering the teaching programme of their choice.

‘Subject to the maximum amounts prescribed in the first and third subparagraphs of Article 3(1) of Annex VII to the Staff Regulations, ... education allowance B shall cover:

– compulsory expenditure such as for the purchase of books, school equipment, sports equipment, school insurance and medical expenses cover, examination fees, costs of joint extra-curricular activities (school excursions, visits and trips, sports courses, etc.), and other expenses connected with following the curriculum of the educational establishment attended;

– costs incurred as a result of the child’s participation in organised trips to winter, seaside and countryside resorts and similar activities.’

30 It should thus be noted that, according to Article 3 of the GIPs, education costs include ‘registration and attendance fees at educational establishments’. Thus worded, education costs cover both fees enabling a pupil to access an educational establishment (registration fees) and fees enabling him to attend classes and participate properly in the programmes provided by that establishment (attendance fees) (judgment of 8 September 2011, Bovagnet v Commission, F‑89/10, EU:F:2011:129, paragraph 23).

31 It must be pointed out that, in the present case, the registration and education provided at the International School Le Verseau and at the Athénée Ganenou to the applicants’ dependent children are not conditional upon payment of a sum of money to those establishments or to third bodies, such as non-profit associations, which covers those schools’ registration and attendance fees. Indeed, such a situation, as is apparent from Circular No 4516, would not be consistent with the legislation applicable in the French Community.

32 It must also be pointed out that the applicants have not contradicted the Parliament’s comment that non-payment of the sums concerned to the respective non-profit associations cannot under any circumstances constitute, for the pupil concerned, a ground for a penalty such as refusal to register or exclusion from classes.

33 In that regard, it is also necessary to refer to Circular No 4516 in which, regarding the payment of fees which may be requested by the school such as fees for ‘swimming and ... cultural and sporting activities’, the following is stipulated in Chapter II, under the heading ‘Non-payment of fees’:

‘In the event of failure or refusal to pay, the school may neither refuse to register or to re-register a pupil, nor definitively exclude him; nor may it punish him or refuse to provide him with his school report or diploma. Where appropriate, provision has been made for a recovery request procedure within each of the responsible authorities.’

34 It follows that the argument based on the concept of ‘education costs’ in no way alters the fact that, in the present case, given the lack of registration and attendance fees, the International School Le Verseau and the Athénée Ganenou cannot be classified as ‘primary or secondary school[s] which [charge] fees’ for the purposes of Article 3(1) of Annex VII to the Staff Regulations.

35 Next, the applicants remark that, given that the concept of ‘education costs’ is an autonomous concept of EU law, its substance cannot depend on existing designations or classifications applied at national level, but only on the actual nature of the expenditure to be reimbursed and its constituent elements (judgment of 8 September 2011, Bovagnet v Commission, F‑89/10, EU:F:2011:129, paragraph 22).

36 The applicants correctly state that the concept of ‘education costs’ is an autonomous concept of EU law and that, accordingly, national descriptions or classifications relating to school fees are not decisive in that regard. However, it also follows that the description or classification of the contributions made by the parents to the non-profit associations concerned in no way alters the fact that neither the International School Le Verseau nor the Athénée Ganenou require registration or attendance fees. It necessarily follows that the contributions required by those non-profit associations for the participation of children in the specific programme and non-subsidised education provided by those schools cannot constitute fees for registration and attendance at those schools either, as is indeed confirmed by Circular No 4516. Therefore, the contributions required in the present case by those non-profit associations cannot in any event be classified as ‘education costs’ as referred to in Article 3(1) of Annex VII to the Staff Regulations and as specified in Article 3 of the GIPs.

37 Lastly, the applicants argue that the costs excluded from reimbursement, listed in Article 3 of the GIPs, are extra-curricular and therefore optional, whereas the costs connected with the funds called for by the non-profit associations concerned are fees payable in advance as part of the registration and attendance fees.

38 In that regard, it should be borne in mind that Article 3 of the GIPs differentiates ‘all other costs’, in respect of which no reimbursement is permitted and of which it provides certain examples, from ‘registration and attendance fees at educational establishments’ and ‘transport costs’, in respect of which limited reimbursement is possible. In addition, contrary to the applicants’ assertions, the expression ‘all other costs’ does not concern only ‘extra-curricular’ costs. Indeed, that provision expressly refers to ‘other expenses connected with following the curriculum of the educational establishment attended’.

39 Lastly, the applicants have stated that, at the International School Le Verseau and the Athénée Ganenou, compulsory education was supplemented by learning included in the teaching programme provided by each of those schools and that, to that end, they paid to the non-profit associations concerned amounts covering the participation of their children in the specific programme and non-subsidised education provided by those schools.

40 It follows from those statements that, as the contributions made to the non-profit associations concerned cannot be classified as education costs, they constitute costs arising from requirements and activities connected with following the curriculum, namely the participation of children in the specific programme and non-subsidised education provided by the schools in question, and must be regarded as ‘other expenses connected with following the curriculum of the educational establishment attended’ for the purposes of the second paragraph of Article 3 of the GIPs, which, according to that provision, are not covered by education allowance B.

Second plea in law: infringement of the principle of the protection of legitimate expectations

42 According to the applicants, the Parliament gave them precise assurances which gave rise to an expectation on their part that they would be paid education allowances, as those costs had been reimbursed in previous years. They dispute the Parliament’s argument that the education allowance is subject to an annual assessment. In their view, such an assessment is more akin to an annual review of the policy on the reimbursement of education costs, which would mean that the Parliament would have the right to radically change the administration’s position as regards a completely identical situation, which would be contrary to the principle of legal certainty.

44 Three conditions must be met in order to claim entitlement to the protection of legitimate expectations. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the administrative authorities. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules (judgment of 7 November 2002, G v Commission, T‑199/01, EU:T:2002:271, paragraph 38).

45 In the present case, it is sufficient to note that, even assuming that precise, unconditional and consistent assurances had been given to the applicants by the Parliament as regards reimbursement of the contributions made by the former to the non-profit associations concerned for the participation of their dependent children in the specific programme and non-subsidised education provided by the schools in question, such assurances would not have complied with the provisions of the Staff Regulations, as held at paragraphs 19 to 41 above. Accordingly, there can be no finding that the principle of the protection of legitimate expectations has been infringed in the present case.

46 In any event, it is in no way apparent from the documents in the case-file that the administrative authorities gave the applicants precise, unconditional and consistent assurances. The purpose of the specific form prepared for the schools by the administrative authorities was to enable those authorities to establish more easily, by means of questions relating to the various fees required by those schools, in the absence of detailed invoices, whether the schools had required registration and attendance fees which would then have to be reimbursed by the administrative authorities. That form did not show that the applicants had paid registration fees.

47 Lastly, the applicants’ argument that a change in administrative practice would be contrary to the principle of legal certainty is inadmissible given that it was not raised in the complaint and therefore does not comply with the rule of correspondence between the prior administrative complaint and the action.

48 According to settled case-law, the rule of correspondence between a complaint, within the meaning of Article 91(2) of the Staff Regulations, and the application which follows requires that, for a plea before the EU judicature to be admissible, it must have already been raised in the pre-litigation procedure, enabling the appointing authority to know the criticisms made by the person concerned of the contested decision (see judgment of 7 July 2004, Schmitt v EAR, T‑175/03, EU:T:2004:214, paragraph 42 and the case-law cited).

Third plea in law: infringement of the principles of equal treatment and sound administration

50 The present plea in law is divided into two parts, the first alleging infringement of the principle of equal treatment and the second alleging infringement of the principle of sound administration.

51 Concerning the alleged infringement of the principle of equal treatment, the applicants argue that their situation is legally and factually identical to that of parents who received, in previous years, reimbursement of the education costs of their dependent children registered at the schools concerned, and to that of parents working at the European Commission who continue to receive reimbursement of the education costs of their dependent children registered at those schools.

52 Regarding the alleged infringement of the principle of sound administration, the applicants argue that the six-month period which elapsed between the request for reimbursement and the contested decisions is unreasonable, in so far as the Parliament’s previous conduct left no room for doubt as regards the reimbursement of the costs in question. In addition, they express doubts as to the objectivity and care with which the Parliament assessed the facts in linking the grant of the education allowance to a parent’s personal choice regarding the teaching programme selected for his child, which is contrary to Article 22 of the Charter of Fundamental Rights of the European Union and the autonomous nature of the concept of ‘education costs’.

54 Concerning the first part of the third plea in law, it should be borne in mind that the principle of equal treatment is one of the fundamental principles of EU law and that it is infringed when two categories of persons, whose factual and legal situations are not essentially different, receive different treatment. Accordingly, that principle requires that comparable situations must not be treated differently unless such treatment is objectively justified. In order to be accepted, the difference in treatment must be justified on the basis of an objective and reasonable criterion and must be proportionate to the aim pursued (judgment of 30 January 2003, C v Commission, T‑307/00, EU:T:2003:21, paragraph 48).

55 However, it is settled case-law that no official or member of the temporary staff may rely on an unlawful act in order to gain an advantage. Indeed, the principle of equal treatment must be reconciled with the principle of legality, according to which no person may rely, in support of his claim, on an unlawful act committed in favour of another (judgments of 4 July 1985, Williams v Court of Auditors, 134/84, EU:C:1985:297, paragraph 14; of 2 June 1994, de Compte v Parliament, C‑326/91 P, EU:C:1994:218, paragraphs 51 and 52; and of 1 July 2010, Časta v Commission, F‑40/09, EU:F:2010:74, paragraph 88).

56 Accordingly, in view of the fact that the first plea in law has been rejected, the first part of the third plea in law, alleging infringement of the principle of equal treatment compared with other officials, is ineffective (see, to that effect, judgment of 21 January 2014, Van Asbroeck v Parliament, F‑102/12, EU:F:2014:4, paragraphs 37 and 38).

57 In any event, it should be borne in mind that, although, under the principle of a single administration, as laid down in Article 9(3) of the Treaty of Amsterdam, all the officials of the European Union are subject to a single body of Staff Regulations, such a principle does not mean that the institutions are required to make identical use of the discretion afforded to them by the Staff Regulations given that, on the contrary, in the management of their staff, the ‘principle of the autonomy of the institutions’ applies (judgment of 5 July 2011, V v Parliament, F‑46/09, EU:F:2011:101, paragraph 135).

58 Thus, pursuant to Article 110 of the Staff Regulations, the GIPs are to be adopted by the appointing authority of each institution and may therefore vary from one institution to another.

59 As regards the second part of the third plea in law, it should be borne in mind that compliance with the reasonable time requirement in the conduct of administrative procedures constitutes a general principle of EU law the observance of which is ensured by the EU judicature and which is laid down as a component of the right to sound administration by Article 41(1) of the Charter of Fundamental Rights (see, to that effect, judgment of 11 April 2006, Angeletti v Commission, T‑394/03, EU:T:2006:111, paragraph 162).

60 However, infringement of the principle of sound administration cannot, as a general rule, justify annulment of the decision taken at the end of an administrative procedure. It is only where the excessive lapse of time is such as to have an effect on the actual content of the decision adopted at the end of the administrative procedure that the failure to comply with the reasonable time requirement affects the validity of that administrative procedure.

61 In the present case, it follows from the examination of the first plea in law (see paragraphs 19 to 41 above) that, even assuming that the time taken by the Parliament to process the applicants’ requests for reimbursement had to be regarded as excessive, it would have had no effect on the actual content of the contested decisions. In addition, it should be borne in mind that the Parliament decided, because of the excessive time taken in processing the requests, to grant, ex gratia and by way of exception, the education allowance for the year 2014/2015.

63 Consequently, the claim for annulment of the contested decisions must be dismissed.

Claim that the Parliament should be ordered to pay the applicants the education allowance for the year 2015/2016

64 The applicants claim that the Court should order the Parliament to pay the education allowance for the year 2015/2016.

65 In view of the fact that the claim for annulment of the contested decisions has been dismissed, there is no longer any need to adjudicate on this claim.

67 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.

68 For the reasons set out in this judgment, the applicants have been unsuccessful. In addition, in its pleadings the Parliament has expressly requested that the applicants be ordered to pay the costs. Consequently, the applicants must be ordered to pay the costs.

2. Orders Ms Irit Azoulay, Mr Andrew Boreham, Ms Mirja Bouchard and Mr Darren Neville to pay the costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Azoulay and Others v Parliament (Staff Regulations of officials and Conditions of Employment of other servants - Judgment) [2017] EUECJ T-580/16 (28 April 2017) URL: http://www.bailii.org/eu/cases/EUECJ/2017/T58016.html Cite as: EU:T:2017:291, [2017] EUECJ T-580/16, ECLI:EU:T:2017:291

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