Abstract

Findings of the Complaints Board
2. In so far as the applicant is claiming payment of a removal costs allowance, the admissible appeal is unfounded. The applicant has no such entitlement either in accordance with Article 37 SR or on account of an express individual contractual agreement.
2.1 The provisions of the SR applicable here provide, under Article 37 SR, a removal costs advance payment for a locally recruited teacher only for a removal to the place of the school's location – hence to Frankfurt am Main – and not for a (further) removal – return to the locally recruited teacher's country of origin.

2.1.1 Article 37 SR, in the original version (2016-05-D-11-en-2), provided as follows:
'Removal costs
1. A locally recruited teacher recruited for a minimum period of one year shall, as provided in Article 59 and Article 62 of the Regulations for Seconded Staff Members of the European Schools, be entitled to reimbursement of his removal expenses unless the contract ends within the first 12 months due to circumstances lying in the responsibility of the locally recruited teacher.
2. A locally recruited teacher who changes to another European School in another city following the mobility approach defined in Article 38 will be entitled to the reimbursement of his removal expenses in accordance with Article 62 of the Regulations for Seconded Staff Members of the European Schools."
Those provisions of the SR do not contain a provision on an installation allowance.
Article 37 SR of the amended version applicable with effect 1 September 2018 provides:
"Removal costs
1. A locally recruited teacher recruited for a minimum period of one year and a contract providing a minimum of 16 hours/periods per week shall, as provided in Article 59 and Article 62 of the Regulations for Seconded Staff Members of the European Schools, be entitled to reimbursement of the expenses caused by the removal to the place of the school unless the contract ends within the first 12 months due to circumstances lying in the responsibility of the locally recruited teacher. The reimbursement of the expenses caused by the removal to the place of the school shall be limited to a maximum amount of 5 000 euro for locally recruited teachers removing from a place outside the territories of the Member States of the European Union.
2. A locally recruited teacher who changes to another European School in another city following the mobility approach defined in Article 38 of these Service Regulations will be entitled to the reimbursement of his removal expenses in accordance with Article 62 of the Regulations for Seconded Staff Members of the European Schools." .

2.1.2 The provisions of the SR applicable from 1 September 2018 are crucial for the case in which a decision has to be made.
2.1.2.1 The applicant's last – permanent – written contract of employment contains in Article 9 not only a static but also a dynamic reference clause to the 'Service Regulations for Locally Recruited Teachers'. Article 9 of the contract of employment states that the employment relationship is subject to the 'Service Regulations for Locally Recruited Teachers', "in the current version as amended by decision of the Board of Governors of the ES." Thus, the parties to the contract put into operation dynamically and not statically, on a private autonomy basis, the current version as amended of the Service Regulations, in terms of the provision of the SR applicable when the contract was concluded (2016-06-D-11-en-2). This follows from interpretation of the contractual provision in Article 9, which, according to its wording, clearly and unquestionably refers to the "current version" of the SR. Thus, the contract of employment should be dynamically adapted to and aligned with general framework conditions – beyond the contractual main conditions of working hours and remuneration – that changed during an ongoing permanent employment relationship, without the need for an additional express contractual agreement in each individual case.
For the applicant's permanent employment relationship, the provisions of the SR are therefore applicable in the – current – version in force in the case of the dispute.
This means, for the case in which a decision has to be made, for the planned removal in autumn 2019, the SR in the version applicable from 1 September 2018.

2.1.2.2 This conclusion is in no way vitiated by the fact that the original version of the SR foresaw different requirements for the removal costs advance payment. Thus, the restrictive requirement of the later norm, of significance here ("removal to the place of the school"), was unknown in the original version of Article 37 SR (old version).

2.1.2.3 The applicant cannot nevertheless invoke the earlier version of the provision of Article 37 SR. For that purpose, it would have required a 'static' reference in his contract of employment to the specific version of the SR at the time of conclusion of the permanent contract of employment, without further restrictions or expansions. It is true that Article 9 of the contract of employment makes reference to version 2016-05-D-11-en-2 of the SR and that the applicant further confirmed that he had duly scrutinised that version. Hence, it is not just this 'older' version of Article 37 SR, which does not contain any restrictions, that is of significance. For the parties to the contract in fact agreed on a 'dynamic' reference – as explained – to SR 2016-05-D-11-en.

2.1.2.4 The applicant cannot rely either, with respect to the contractual agreements entered into, on the provisions of the SR not being subject to any change. As a result of the dynamic reference clause agreed by the parties to the contract, all provisions of the SR were subject to caveats, not only in terms of improvement but also of deterioration.

2.1.2.5 The applicant's further reference to the fact that he was neither made aware of the change, nor allegedly did the ES draw his attention to it, does not alter the fact that the provisions of the SR in force with effect from 1 September 2018 determine the parties' employment relationship. The ES were not required to make express reference to possible changes to the SR, particularly as the changes and adaptations are published on the internet by the ES and are always accessible to locally recruited teachers.

2.2 Finally, the applicant has no entitlement to payment of a removal costs allowance because of an additional express contractual provision. No such provision was agreed between the parties to the contract of employment. The comments alone of the staff of the ESF do not, according to the applicant's contract, result in an express contractual agreement on payment of relocation assistance – regardless of the provisions of the SR. The applicant does not even contend that – after the change to the SR on 1 September 2018 – he was made a concrete offer at some point, by an authorised member of the staff of the ESF, of an unconditional removal costs allowance (or the extent thereof) in the event of a return to Canada.

3. It remains an open question whether the applicant's request, in so far as a claim for payment of an installation allowance, in accordance with Article 37a SR, for a removal in the year 2018 was expressly made in writing for the first time with his administrative appeal of 13 December 2019, is already inadmissible – as there are many indications that this is the case. The contentious appeal is manifestly unfounded, as the conditions of Article 37a SR are not met.
(...)

3.2 Pursuant to the above provisions, the applicant has no entitlement to payment of an installation allowance under Article 37a SR. The applicant has never in his approaches provided evidence that he was obliged to change his place of residence in order to settle at the place of his employment. He merely states that he moved house in the year 2018 so as to live closer to the ESF. It already remains unclear in his statement from where and to where he moved house. Should it be a question of a move within Frankfurt or the Rhein-Main region, an installation allowance – which, moreover, needs to be read in conjunction with the provision of Article 37.1 SR – would already therefore not come into consideration, because it is a question of a move "to the place of the school", and the "places" remained the "same" within the meaning of the SR. Nor has the applicant demonstrated that he "was obliged" to change his place of residence because of his employment at the school.