CELEX: 62016TJ0702
Appeal
Civil service
Members of the contract staff
Pensions
Transfer to the European Union pension scheme of pension rights acquired previously under national schemes
Damage resulting from the allegedly insufficient information provided to the appellants by the AECE when communicating the proposals concerning additional pensionable years relating to them
Dismissal of the action for damages at first instance
Fourth paragraph of Article 77 of the Staff Regulations
Material damage

By their appeal, the appellants, José Barroso Truta, Marc Forli, Calogero Galante and Bernard Gradel, members of the contract staff in function group I, employed on a permanent basis and assigned to the Directorate-General (DG) for Administration of the Court of Justice of the European Union, previously called the ‘Infrastructures’ DG, ask the General Court to set aside the judgment of the European Union Civil Service Tribunal (Third Chamber) of 20 July 2016, Barroso Truta and Others v Court of Justice of the European Union (
F‑126/15
,
EU:F:2016:159
) (‘the judgment under appeal’). By that judgment, the Civil Service Tribunal dismissed their action seeking an order that the Court of Justice of the European Union be ordered to compensate them for the loss of their pension rights acquired prior to them entering the service of that institution under national pension schemes and transferred to the European Union pension scheme.
Legal context and facts of the dispute
Legal context
Chapter 3 of Title V of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), in the version thereof applicable since 1 January 2014, is entitled ‘Pensions and invalidity allowance’. Article 77 of the Staff Regulations provides:
‘An official who has completed at least ten [years’] service shall be entitled to a retirement pension. …
The maximum retirement pension shall be 70% of the final basic salary carried by the last grade in which the official was classified for at least one year. 1.80% of that final basic salary shall be payable to an official for each year of service reckoned in accordance with Article 3 of Annex VIII.
…
The amount of the retirement pension must not be less than 4% of the minimum subsistence figure per year of service.
The pensionable age shall be 66 years.
…’
Under Article 6 of Annex VIII to the Staff Regulations, ‘the minimum subsistence figure for the purpose of calculating pension benefits shall correspond to the basic salary of an official at the first step of grade AST 1’.
In its earlier version, applicable from 1 May 2004 to 31 December 2013, Article 77 of the Staff Regulations provided that ‘1.90% of [the] final basic salary [carried by the last grade in which the official was classified for at least 1 year was] payable to an official for each year of service’, and that the pensionable age was, in principle, 63 years.
Article 2 of Annex VIII to the Staff Regulations provides as follows:
‘A retirement pension shall be payable on the basis of the total number of years of pensionable service acquired by the official. Each year of service reckoned as provided in Article 3 shall entitle him to one year of pensionable service and each complete month to one-twelfth of a year of pensionable service.
The maximum number of years of pensionable service which may be taken into account for the calculation of retirement pension rights shall be the number necessary to achieve the maximum pension, within the meaning of the second paragraph of Article 77 of the Staff Regulations.’
Under Article 11(2) of Annex VIII of the Staff Regulations:
‘An official who enters the service of the Union after:
–
leaving the service of a government administration or of a national or international organization; or
–
pursuing an activity in an employed or self-employed capacity;
shall be entitled, after establishment but before becoming eligible for payment of a retirement pension with the meaning of Article 77 of the Staff Regulations, to have paid to the Union the capital value, updated to the date of the actual transfer, of pension rights acquired by virtue of such service or activities.
In such case the appointing authority of the institution in which the official serves shall, taking into account the official’s basic salary, age and exchange rate at the date of application for a transfer, determine by means of general implementing provisions the number of years of pensionable service with which he shall be credited under the Union pension scheme in respect of the former period of service, on the basis of the capital transferred, after deducting an amount representing capital appreciation between the date of the application for a transfer and the actual date of the transfer.
…’
Article 109 of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) provides:
‘1.   On leaving the service, contract staff shall be entitled to a retirement pension, transfer of the actuarial equivalent or the payment of a severance grant in accordance with Chapter 3 of Title V of, and Annex VIII to, the Staff Regulations. …
2.   Article 11(2) and (3) of Annex VIII of the Staff Regulations shall be applicable by analogy to contract staff.
…’
Under Article 110 of the CEOS:
‘Any period of service on the contract staff of the Union shall be taken into account for the purpose of calculating years of pensionable service as provided for in Annex VIII to the Staff Regulations.’
Finally, pursuant to Article 7(6) of the decision of the Administrative Committee of the Court of Justice of 17 October 2011 laying down general implementing provisions relating to Articles 11 and 12 of Annex VIII to the Staff Regulations, ‘the number of years of pensionable service to be taken into account [for the purposes of crediting the person concerned with pensionable years following the transfer] may under no circumstances exceed the number of pensionable years during which the person concerned had been a member of the schemes in question’ and ‘any excess financial amount resulting from the capping of the years of pensionable service shall be reimbursed to the member of staff concerned’.
Facts of the dispute
The Civil Service Tribunal set out the background to the dispute in paragraphs 8 to 48 of the judgment under appeal. The main points of those paragraphs are reproduced below.
The requests to transfer pension rights
Between 2006 and 2010, pursuant to Article 11(2) of [Annex VIII to] the Staff Regulations, the appellants submitted requests to transfer pension rights which they had previously acquired with various Luxembourg, French and Belgian bodies.
The authority empowered to conclude contracts of employment (‘the AECE’) of the Court of Justice of the European Union sent proposals concerning additional pensionable years to the appellants, asking them to check the information taken into account carefully and inviting them ‘to contact [the designated officials in the Directorate for Human Resources and Personnel Administration of the ‘Personnel and Finances’ DG of the Court of Justice of the European Union] for an explanation of the calculation and to discuss whether or not a transfer would be beneficial for [them]’.
In that regard, the AECE drew the appellants’ attention to the fact that ‘the effects for the purpose of the Staff Regulations of the additional pensionable years credited pursuant to [the proposals at issue were covered by] the rules governing the pension scheme of the European Civil Service in force when calculating the pension rights, it being understood that the number of pensionable years credited under the transfer scheme would not be changed’, that ‘the official proposal concerning the crediting of pensionable years would take effect only after receipt of the total amount to be transferred’ and that ‘the additional pensionable years thus obtained [would] not be taken into consideration when calculating the minimum period of service to be carried out, that is to say 10 years, following which an individual is eligible for a European Civil Service pension under Article 77 of the Staff Regulations …’ (judgment under appeal, paragraphs 11, 12, 16, 21 and 27).
The appellants took the necessary steps to ensure the transfer of all, in some cases, or some, in other cases, of the rights which they had acquired under the various national pension schemes of which they were members prior to their entry into service at the Court of Justice of the European Union (judgment under appeal, paragraphs 13, 18, 23, 29 and 30). As stated in this regard in the judgment under appeal, the competent departments of the Court of Justice of the European Union adopted decisions closing the procedure for the transfer of the appellants’ national pension rights (jointly, ‘the decisions crediting pensionable years’).
More specifically, by memorandum of 16 February 2012, the Head of the ‘Rights under the Staff Regulations’ Unit informed Mr Barroso Truta that, following the transfer of the capital value corresponding to the pension rights which he had previously acquired, namely EUR 61 121.08, the AECE had re-calculated the number of pensionable years credited by virtue of the transfer of those rights to the European Union pension scheme, which now resulted in the crediting, under that scheme, of a contribution period of 8 years and 24 days (judgment under appeal, paragraph 14).
By memoranda of 16 February 2012, 8 April 2013 and 25 July 2014, the Head of the ‘Rights under the Staff Regulations’ Unit informed Mr Forli that, following the transfers of the capital amounts corresponding to the pension rights which he had acquired with various national bodies, the AECE had re-calculated the number of pensionable years credited by virtue of the transfer of those rights to the European Union pension scheme, which now resulted in the crediting, under that scheme, of contribution periods of 15 years and 18 days, 6 days and 1 year and 23 days (judgment under appeal, paragraph 19).
By memoranda of 13 November 2009 and 6 December 2010, the ‘Rights under the Staff Regulations’ Unit informed Mr Galante that the AECE had re-calculated the number of pensionable years credited by virtue of the transfer of the rights which he had previously acquired with various national bodies to the European Union pension scheme, which now resulted in the crediting, under the European Union pension scheme, of contribution periods of 4 years and 1 month (plus a refund to Mr Galante of a sum of EUR 7 626.50) and 10 years, 4 months and 5 days (judgment under appeal, paragraph 25).
By memoranda of 20 December 2006 (annulled and replaced by a memorandum of 21 December 2009) and 18 October 2011, the ‘Rights under the Staff Regulations’ Unit informed Mr Gradel that, following the transfer of the capital value corresponding to the pension rights which he had previously acquired with various national bodies, the AECE had re-calculated the number of pensionable years credited by virtue of the transfer of those rights to the European Union pension scheme, which now resulted in the crediting, under that scheme, of contribution periods of 16 years (plus a refund to Mr Gradel of a sum of EUR 14 235.11), 3 years, 2 months and 20 days, and 2 years, 3 months and 5 days (judgment under appeal, paragraph 31).
The meeting of 12 April 2012 and the requests for information made by the appellants
After receiving, on 9 March 2012, an email sent to all personnel by the Directorate for Human Resources and Personnel Administration of the Court of Justice of the European Union regarding the updating of its simulation tool to calculate the pension rights of officials, called the ‘calculette pension’ (pensions calculator), the appellants used that tool and discovered that the amount of their respective pensions would not be increased by virtue of the transfers of pension rights which they had made. In other words, according to the appellants and the estimate thus obtained, the amount of their respective pensions, on taking retirement, would be essentially the same, irrespective of the transfers of their pension rights previously acquired under various national schemes (judgment under appeal, paragraphs 32 and 33).
In April 2012, Mr Barroso Truta and Mr Forli met with the Head of the ‘Rights under the Staff Regulations’ Unit at a meeting which they had requested. At that meeting, the Head of that unit explained to them the scope, in their circumstances, of the application of the rule laid down inter alia in the fourth paragraph of Article 77 of the Staff Regulations (‘the minimum subsistence figure rule’).
The appellants were likewise informed at the abovementioned meeting that it was, in principle, impossible to transfer the pension rights already transferred to the European Union pension scheme back to the national bodies concerned. The Head of the Unit agreed with the two persons concerned that he would contact the services of the European Commission to establish whether they had been faced with similar cases and how they had dealt with them (judgment under appeal, paragraph 34).
As stated in paragraph 35 of the judgment under appeal, it is clear from the email of 11 February 2015 from the Head of the ‘Rights under the Staff Regulations’ Unit, on temporary secondment to other duties within the Court of Justice of the European Union, that, at the abovementioned meeting, the two appellants identified in paragraph 20 above informed him that, at the suggestion of Mr Galante, they had attended a meeting organised by a trade union at which they were informed, at that time, of the urgent need to proceed with the transfer of their pension rights at the risk of losing rights.
By letter of 23 April 2012, pursuant to Article 25 of the Staff Regulations, Mr Barroso Truta and Mr Forli asked the Director-General of the ‘Personnel and Finances’ DG of the Court of Justice of the European Union (‘the Director-General’) to examine whether it was possible for the amounts transferred in their names to the European Union pension scheme to be returned to the national bodies concerned (judgment under appeal, paragraph 36).
On 26 April 2012, Mr Barroso Truta and Mr Forli asked one of the bodies concerned by the present case, namely the Caisse nationale d’assurance pension du Luxembourg (National Pension Insurance Fund, Luxembourg) (‘the CNAP’), to cancel their requests to transfer pension rights and to make up the rights which they had previously acquired with that body. By individual letters of 7 May 2012, the CNAP refused to accede to those requests, pointing out in essence that the transfers of pension rights made were final (judgment under appeal, paragraph 37).
On 3 September 2012, pursuant to Article 25 of the Staff Regulations, Mr Galante asked the Director-General to examine whether it was possible for the Court of Justice of the European Union to return the capital amount transferred by the CNAP in respect of the rights which he had previously acquired. This appellant also contacted the CNAP directly in relation to this matter. By memorandum of 27 September 2012, the Director-General informed Mr Galante that he was unable to accede to the latter’s request (judgment under appeal, paragraphs 38 and 39).
On 5 February 2013, the Director-General informed Mr Barroso Truta and Mr Forli that the AECE had contacted the CNAP on two occasions with a view to examining their respective situations but that, on 20 July and 17 August 2012, that national body had notified the AECE of its refusal to accept the return from the Court of Justice of the European Union of the pension rights previously acquired by those two applicants which they had transferred to the European Union pension scheme. Those refusals were re-confirmed by the CNAP on 7 January 2013 (judgment under appeal, paragraph 40).
The pre-litigation procedure
By letters of 16 April 2014 drafted in similar terms, pursuant to Article 90(1) of the Staff Regulations, the appellants submitted requests asking the AECE to compensate them for the financial damage which they suffered as a result of the transfers of their respective pension rights to the European Union pension scheme. In support of their requests, they submitted, in essence, that, under the fourth paragraph of Article 77 of the Staff Regulations and, more specifically, under the minimum subsistence figure rule, of which they were unaware when they each agreed to transfer their previously acquired pension rights, only the years of service performed at the Court of Justice of the European Union were going to be taken into account in order to calculate their pension. Thus, the pensionable years which they had each obtained by virtue of the transfers of their rights would, according to them, have no impact on the amount of their future respective pensions. The applicants pointed out that, if they had been duly informed by the AECE of the existence of the minimum amount of the retirement pension, which has to equate to at least 4% of the minimum subsistence figure per year of service, they would have foregone transferring their previously acquired pension rights, whilst at the same time preserving their national pension rights, thus enabling them, where appropriate, to claim national pensions (judgment under appeal, paragraph 41).
The applicants take the view that the AECE committed a breach of administrative duty by failing to provide them with sufficient information about the lack of impact, in their specific cases, of the additional pensionable years which they could obtain pursuant to Article 11(2) of Annex VIII to the Staff Regulations on the amount of their future retirement pensions. They therefore requested compensation from the AECE for the material damage corresponding to the capital amounts of the national pension rights which, in their view, were transferred to no avail to the European Union pension scheme. The amounts claimed (plus default interest) were EUR 61 121.08 in the case of Mr Barroso Truta; a total of EUR 129 440.98 in the case of Mr Forli; a total of EUR 76 342.29 in the case of Mr Galante; and a total of EUR 99 565.13 in the case of Mr Gradel (judgment under appeal, paragraph 42).
By memorandum of 3 September 2014, whilst ‘regret[ting] that [the appellants find] themselves in this situation’, the Director-General, in his capacity as the AECE, rejected their requests of 16 April 2014. According to that refusal decision, there was no breach of administrative duty by the AECE as regards the level of information which it had provided to the appellants when it had submitted to them the proposals concerning additional pensionable years relating to them (judgment under appeal, paragraph 43).
More specifically, the Director-General stated that there was no doubt that, if they had accepted the invitation made to them, in ‘quite prescriptive language’, in the memoranda accompanying the proposals concerning additional pensionable years at issue, to contact the ‘Rights under the Staff Regulations’ Unit, the appellants would have received clarifications as to how the mechanism linked to the minimum subsistence figure rule operates and, as is customary in such cases, the administration would have carried out simulations to calculate the amount of their future pensions with and without the transfer, which would have shown the effect of the minimum subsistence figure rule in their respective circumstances (judgment under appeal, paragraph 44).
The Director-General explained that, in any event, any assessment of the benefit of proceeding, or not proceeding, with a transfer of pension rights acquired under a national scheme was subject to uncertainties, in particular because it was based on conditions, including conditions under the Staff Regulations, which could change over time. He observed that it could not be ruled out that appellants might, in the course of their respective careers, access other pay scales, such as those of higher function groups of contract staff or those of officials and temporary staff. Similarly, the EU legislature might consider, in the future, amending the amount of the minimum subsistence figure, whereas, at the national level, rules against overlapping could be introduced (judgment under appeal, paragraph 45).
The Director-General came to the conclusion that, ‘in such circumstances, the choice whether or not to proceed with a transfer of pension rights [was] based on a sharing of responsibilities as part of which the administration [made] itself available to the individual in question and [provided], at that person’s request, the information which [was] known to it or [which it could] obtain and that individual, for his part, as the person primarily concerned, [made sure] that he was fully and correctly informed before making his choice’ (judgment under appeal, paragraph 46).
On 21 November 2014, by means of essentially identical memoranda, the applicants submitted complaints pursuant to Article 90(2) of the Staff Regulations against the Director-General’s decision of 3 September 2014 rejecting their respective requests of 16 April 2014 (judgment under appeal, paragraph 47).
By decisions of 17 June 2015 drafted in similar terms, the Complaints Committee of the Court of Justice of the European Union rejected the abovementioned complaints (judgment under appeal, paragraph 48).
Proceedings at first instance and the judgment under appeal
On 25 September 2015, the appellants brought an action before the Civil Service Tribunal, registered under reference F‑126/15, seeking, primarily, that the Court of Justice of the European Union be ordered to pay, to any national pension fund or insurance policy, respectively, EUR 61 121.08 in respect of Mr Barroso Truta, EUR 129 440.98 in respect of Mr Forli, EUR 76 324.29 in respect of Mr Galante and EUR 99 565.13 in respect of Mr Gradel. In the alternative, the appellants requested that the Court of Justice of the European Union be ordered to pay those amounts to them. In the further alternative, the appellants asked the Civil Service Tribunal to find that the Court of Justice of the European Union had committed a breach of administrative duty in the context of the transfer of their previously acquired national pension rights. Finally, the appellants requested that the Court of Justice of the European Union be ordered to pay the costs.
In the judgment under appeal, the Civil Service Tribunal found, primarily, that the action had to be dismissed as inadmissible. More specifically, it held that the conduct for which the AECE is criticised in the present case, namely the provision of insufficient information to the appellants when sending the proposals concerning additional pensionable years relating to them, could not be separated from the procedure which led to the adoption of the final decisions crediting pensionable years, a procedure which comprised several stages (judgment under appeal, paragraph 66). In addition, since the final decisions of the AECE crediting pensionable years under the European Union pension scheme following the transfer of pension rights previously acquired by the appellants constituted acts having an adverse effect, they could have been challenged by means of a complaint submitted pursuant to Article 90(2) of the Staff Regulations and, as the case may be, an appeal brought pursuant to Article 270 TFEU and Article 91(2) of the Staff Regulations (judgment under appeal, paragraph 67). In support of such an appeal, the appellants could have relied on the fact that the consent given by them to the proposals concerning pensionable years credited in respect of their pension rights had been vitiated by an alleged failure to provide information on the part of the AECE. According to the Civil Service Tribunal, such conduct was connected with the acts preparatory to the final decisions crediting pensionable years relating to the appellants and could not therefore form the subject matter of an independent appeal, such that that conduct had to be challenged by means of an appeal brought against the abovementioned final decisions (judgment under appeal, paragraph 68).
Recalling, first, the case-law that an official or other servant who has failed to contest acts adversely affecting him by lodging a complaint and, subsequently, bringing an action for annulment in good time cannot remedy that omission and thus obtain further time to bring proceedings by means of a subsequent claim for compensation, the purpose of which is clearly to obtain the same financial outcome as would have resulted from an action for annulment of those acts brought in good time (see judgment under appeal, paragraphs 60 to 63 and the case-law cited) and observing, second, that the appellants had failed to challenge the legality of the final decisions mentioned above in paragraph 36, the Tribunal found the action inadmissible.
For the sake of completeness, the Civil Service Tribunal also examined the substance of the application made to it. Firstly, having recalled the conditions governing the non-contractual liability of the European Union (judgment under appeal, paragraph 72), it found that, ‘even though it might have been better administrative practice if the AECE had made its proposals concerning additional pensionable years such that it drew the attention of the members of contract staff concerned to the scope of the fourth paragraph of Article 77 of the Staff Regulations, it cannot be reasonably expected of a diligent authority which, as in the present case, dealt with hundreds of requests to transfer pension rights … between 2008 and 2010 that it make each of its proposals in such a way that it anticipates the consequences, for each of the officials or other members of staff concerned, of them transferring their respective pension rights’ (judgment under appeal, paragraph 74). The Civil Service Tribunal thus found that, in the present case, the AECE succeeded in complying with its duty to have regard to the welfare of officials and other members of staff, in accordance with the principle of sound administration (judgment under appeal, paragraph 75).
In that regard, first, the Civil Service Tribunal also took account of the fact that the applicants ‘quickly requested to transfer their respective national pension rights to the European Union pension scheme, and then confirmed those requests’, ‘without considering it beneficial to contact the administration in advance to obtain clarifications vis-à-vis their respective decisions’, even though in its proposals the AECE had invited them to contact it ‘for an explanation of the calculation and to discuss whether or not the transfer[s at issue] would be beneficial for [them]’ (judgment under appeal, paragraphs 75 and 76).
Second, the Civil Service Tribunal recalled that, in accordance with case-law, any official was deemed to be familiar with the Staff Regulations and, more particularly, the rules governing his remuneration or his retirement pension (see judgment under appeal, paragraph 77 and the case-law cited). In the light of that case-law, whilst taking into account the fact that ‘the appellants, in view of their respective functions, [were] not necessarily the most informed about such matters’, the Civil Service Tribunal found that the wording of the relevant provisions was ‘relatively clear’ and that it should have ‘at the very least encouraged the appellants to make enquiries about [the question raised in the present case] with the authority for which they worked’ (judgment under appeal, paragraph 78).
Secondly, the Civil Service Tribunal concluded that the appellants had failed to establish the reality and certainty of the damage claimed, which they had classified as strictly material. It thus found, first, that the appellants ‘still intended to pursue their respective careers within the Court of Justice of the European Union or any other EU institution and that, therefore, it cannot be ruled out that some or even all of them might later become a temporary member of staff or an official, categories of employment which would then mean … that their respective future retirement pensions, at the maximum rate of 70% of their last basic salary, would exceed the amount resulting from the application of the fourth paragraph of Article 77 of the Staff Regulations’. In such circumstances, ‘no damage could … be … caused [to the appellants] by virtue of their decisions to transfer their pension rights’ (judgment under appeal, paragraph 81).
Second, it was not certain that, when the appellants reached the statutory retirement age, ‘the scope and the conditions of application of the rule laid down in the fourth paragraph of Article 77 of the Staff Regulations [would] necessarily be the same’ as on the date of delivery of the judgment under appeal, ‘it being recalled that the EU legislature may, at any time, alter the rights and obligations of officials and other servants of the European Union by means of regulations which amend the Staff Regulations and the CEOS and are adopted pursuant to Article 336 TFEU, and which apply, unless otherwise provided, to the future consequences of situations which arose under the previous legislation’ (see judgment under appeal, paragraph 82 and the case-law cited).
Finally, applying Articles 101 and 102 of the Rules of Procedure of the Civil Service Tribunal, and in the light of the conduct of the AECE in the present case, in particular the fact that it had not, when responding to the complaint, drawn the appellants’ attention to the inadmissibility of their claims for compensation, the Civil Service Tribunal ordered the Court of Justice of the European Union to bear its own costs and those incurred by the appellants.
Procedure before the Court and forms of order sought by the parties
By document lodged at the Court Registry on 30 September 2016, the appellants brought the present appeal. On 20 December 2016, the Court of Justice of the European Union lodged a response.
After the reply and rejoinder were lodged on 22 February and 20 April 2017 respectively, the written procedure was closed.
By letter of 15 May 2017, the appellants submitted a reasoned application under Article 207(1) of the Rules of Procedure of the General Court to be heard during the oral stage of the procedure.
Acting on the proposal of the Judge-Rapporteur, the Court allowed the appellants’ application and opened the oral stage of the procedure.
In the context of the measures of organisation of procedure provided for in Article 89(3) of the Rules of Procedure, applicable in the present case under Article 213(1) thereof, on 19 December 2017 the Court put questions to the parties requiring a written response. The parties replied to those questions within the period prescribed.
The parties’ oral argument and replies to the oral questions put by the Court were heard at the hearing of 9 February 2018.
The appellants claim that the Court should:
–
set aside the judgment under appeal;
–
giving judgment on the substance of the case, order the Court of Justice of the European Union to pay EUR 61 121.08 on behalf of Mr Barroso Truta, EUR 129 440.98 on behalf of Mr Forli, EUR 76 324.29 on behalf of Mr Galante and EUR 99 565.13 on behalf of Mr Gradel ‘to any fund or insurance policy in the appellants’ names’;
–
in the alternative, order the Court of Justice of the European Union to pay the abovementioned amounts to the appellants, together with interest ‘calculated at a rate of 3.1% per annum from the date of the transfer of the pension rights [to the European Union pension scheme]’;
–
order the Court of Justice of the European Union to pay the costs in both sets of proceedings.
The Court of Justice of the European Union contends that the Court should:
–
dismiss the appeal as partly inadmissible and partly unfounded or, in the alternative, as unfounded in its entirety;
–
order the appellants to pay the costs.
The appeal
In support of the appeal against the judgment under appeal, the appellants put forward two grounds of appeal. The first ground of appeal alleges that the Civil Service Tribunal erred in law by holding, primarily, that their action was inadmissible. The second ground of appeal concerns the scope of the dispute and, more specifically, alleges that the Civil Service Tribunal erred in law by finding, for the sake of completeness, first, that the AECE had not committed a breach of administrative duty in the present case when communicating the proposals concerning additional pensionable years to the appellants and, second, that the damage claimed by the appellants was merely hypothetical.
The first ground of appeal
It is clear from the appellants’ written submissions that, by their first ground of appeal, they complain that the Civil Service Tribunal erred in law by finding that their action brought at first instance had to be declared inadmissible. They further submit that they had claimed not only material damage before the Civil Service Tribunal, but also non-material damage.
In that regard, the Court of Justice of the European Union alleges that, since such non-material damage had not been claimed at first instance, any arguments relating to it should be dismissed as inadmissible. Consideration must therefore be given first of all to the exact nature of the damage claimed by the appellants at first instance.
The nature of the damage claimed by the appellants at first instance
As the Court of Justice of the European Union rightly observes, according to case-law, to allow a party to put forward for the first time before the General Court a plea in law and arguments which it has not raised before the Civil Service Tribunal would be to allow it to bring before the General Court, whose jurisdiction in appeals is limited, a dispute of wider ambit than that which came before the Civil Service Tribunal. In an appeal the Court’s jurisdiction is therefore confined to a review of the findings of law on the pleas argued and arguments advanced before the Civil Service Tribunal (see judgment of 13 May 2016, CX v Commission,
T‑496/15 P
,
EU:T:2016:305
, paragraph
and the case-law cited).
In the present case, it is apparent from the documents submitted at first instance that, in their pleadings, the appellants claimed material damage only and did not raise before the Civil Service Tribunal a complaint alleging any non-material damage suffered by them. It must be observed that, in their action brought before the Civil Service Tribunal, the appellants referred only to the loss of the amount corresponding to their pension rights transferred to the Court of Justice of the European Union.
In addition, contrary to the appellants’ claim in paragraph 27 of the reply, the Civil Service Tribunal by no means took the view that the damage to them consisted, albeit only partially, in the uncertain situation in which they claim to find themselves. On the contrary, it must be observed, as the Court of Justice of the European Union points out, that paragraph 80 of the judgment under appeal specifically states that the ‘damage alleged by the appellants is material’.
It is true that the appellants claimed, at first instance, that their action was ‘brought for a declaration in that it [sought] a finding by the European Union judicature that a breach of duty had been committed by the Court of Justice with a view to their possible compensation’. In that regard, they relied, on the one hand, on the judgments of 1 February 1979, Deshormes v Commission (
17/78
,
EU:C:1979:24
), and of 26 February 2015, Planet v Commission (
C‑564/13 P
,
EU:C:2015:124
), and, on the other, on the Opinion of Advocate General Kokott in Planet v Commission (
C‑564/13 P
,
EU:C:2014:2352
).
However, it is apparent from paragraph 114 et seq. of the application lodged at first instance that the appellants’ application for a declaration was not made in support of claims concerning alleged non-material damage, but rather in relation to the situation in which ‘the loss of the rights transferred [was] not, at that stage, deemed to be “certain”’. That application did not in fact relate to the nature of the damage claimed by the appellants, rather it sought a finding that the Tribunal had committed a breach of duty. Accordingly, it cannot be regarded as including a claim for compensation of the non-material damage allegedly suffered by the appellants.
In the light of that finding, the case-law relied on by the appellants, which, in their view, is capable of establishing the possibility of bringing an application for a declaration before the European Union judicature (see paragraph 58 above), is irrelevant in the present case.
It must therefore be concluded, in accordance with the case-law cited in paragraph 55 above, that the appellants’ claim for compensation must be regarded as inadmissible in so far as it concerns compensation for the non-material damage which they have allegedly suffered, a matter raised for the first time before the Court.
Thus, it must be concluded that, as is clear from the findings made in paragraphs 55 to 61 above, the form of order sought by the appellants at first instance related to compensation for material damage only.
Next, consideration must be given to the appellants’ arguments by which they seek to contest the inadmissibility of their action, the main finding reached by the Civil Service Tribunal in the judgment under appeal.
The admissibility of the form of order sought by the appellants at first instance in so far as it related to compensation for material damage
As a preliminary point, it should be observed that, under the system of remedies established by Articles 90 and 91 of the Staff Regulations, an action for damages is admissible only if it has been preceded by a pre-litigation procedure in accordance with the provisions of the Staff Regulations (order of 24 March 1998, Meyer and Others v Court of Justice,
T‑181/97
,
EU:T:1998:64
, paragraph
).
The pre-litigation procedure in actions for damages differs according to whether the damage for which reparation is sought results from an act having an adverse effect for the purposes of Article 90(2) of the Staff Regulations or from conduct on the part of the administration which contains nothing in the nature of a decision. In the first case it is for the person concerned to submit to the appointing authority, within the prescribed time limit, a complaint directed against the act in question. In the second case, on the other hand, the administrative procedure must commence with the submission of a request, within the meaning of Article 90(1) of the Staff Regulations, for compensation and continue, where appropriate, with a complaint against the decision rejecting that request (see judgment of 6 November 1997, Liao v Council,
T‑15/96
,
EU:T:1997:169
, paragraph
and the case-law cited).
Furthermore, in accordance with case-law, an action for annulment and an action for damages are independent remedies. Since Articles 90 and 91 of the Staff Regulations make no distinction between those two actions as regards the administrative or contentious procedure, the official may choose, in view of the independence of those two separate remedies, either one or the other, or both together, on condition that he brings his action before the European Union judicature within the period of 3 months after the rejection of his complaint (see judgments of 24 January 1991, Latham v Commission,
T‑27/90
,
EU:T:1991:5
, paragraph
and the case-law cited, and of 6 February 2007, Wunenburger v Commission,
T‑246/04 and T‑71/05
,
EU:T:2007:34
, paragraph
).
However, case-law has made an exception to that principle where the action for damages bears a close link with the action for annulment, which, incidentally, would or should be declared inadmissible. Thus, claims for compensation are inadmissible where the action for damages seeks reparation exclusively for the consequences of the measure contested in the action for annulment, which could have been or has been declared inadmissible, inter alia where the sole purpose of the action for damages is to make up for losses of remuneration which would not have occurred if the action for annulment could have been or had been successful (see, to that effect, judgments of 24 January 1991, Latham v Commission,
T‑27/90
,
EU:T:1991:5
, paragraphs
and
and the case-law cited, and of 6 February 2007, Wunenburger v Commission,
T‑246/04 and T‑71/05
,
EU:T:2007:34
, paragraph
). Thus, in accordance with that case-law, an official or other staff member who has failed to challenge acts adversely affecting him by lodging a complaint and, subsequently, bringing an action for annulment in good time cannot remedy that omission and thus obtain further time to bring proceedings by means of a subsequent claim for compensation, the purpose of which is clearly to obtain the same financial outcome as would have resulted from an action for annulment of those acts brought in good time (see order of 20 March 2014, Michel v Commission,
F‑44/13
,
EU:F:2014:40
, paragraph
and the case-law cited).
In that regard, it follows from case-law that, where the two actions, namely the action for annulment, on the one hand, and the action for damages, on the other, derive from different acts or courses of conduct on the part of the administration, the action for damages cannot be identified with the action for annulment, even if both actions pursued the same financial result for the applicant (see judgment of 24 January 1991, Latham v Commission,
T‑27/90
,
EU:T:1991:5
, paragraph
and the case-law cited).
Furthermore, in the case which gave rise to the judgment of 13 October 2015, Commission v Cocchi and Falcione (
T‑103/13 P
,
EU:T:2015:777
), in which the appellants sought the annulment of proposals to calculate years of pensionable service, such as those which had been sent to the appellants in the present case, the Court concluded that such a proposal did not constitute an act having an adverse effect for the purposes of Article 91(1) of the Staff Regulations, but rather conduct which contains nothing in the nature of a decision which could allow the person concerned to bring an action for compensation for the damage suffered as a result of that conduct (judgment of 13 October 2015, Commission v Cocchi and Falcione,
T‑103/13 P
,
EU:T:2015:777
, paragraphs
and
). In addition, the Court found that, since the agreement of the person concerned is required in order for his pension rights previously acquired under a scheme other than the European Union scheme to be transferred to the European Union pension scheme, the view had to be taken that, if that person had given his consent to the transfer relying on a proposal concerning additional pensionable years which, further to a breach of duty attributable to the institution for which he works, were to prove to be incorrect or misleading, that consent could be regarded as being vitiated, thus entitling the person concerned to seek the annulment of the decision adopted following that transfer with a view to reversing the effects of the transfer (judgment of 13 October 2015, Commission v Cocchi and Falcione,
T‑103/13 P
,
EU:T:2015:777
, paragraphs
and
).
However, it cannot be inferred from the judgment of 13 October 2015, Commission v Cocchi and Falcione (
T‑103/13 P
,
EU:T:2015:777
) that, where the allegedly unlawful conduct of an institution is connected with a procedure such as the procedure for the transfer of rights at issue in the present case and may have affected the consent of the person concerned, that person can under no circumstances rely on damage which he has suffered by virtue of that conduct within the context of action for compensation.
More specifically, such an interpretation of the case-law cited in paragraph 70 above would result in an excessive restriction of the appellants’ right to bring an action for compensation of the damage which they claim to have suffered. A judgment annulling the decisions transferring the appellants’ national pension rights would entail the retroactive disappearance of acts which, in principle, have positive effects for the appellants, since they result in them being credited with additional pensionable years following the transfer in question.
In addition, in the present case, the appellants do not call into question the effects of the abovementioned decisions as such, namely the transfer of their national pension rights and the resultant crediting of additional pensionable years, but rather the conduct of the administration, which did not inform them that the transfers in question would not have all the effects for which they hoped. Thus, by the action brought at first instance, the appellants are not seeking the elimination of the effects of the transfer decisions in question, but rather compensation for the damage suffered by them, in their opinion, because the transfers at issue have not had all the expected legal effects on their legal situation.
Accordingly, the Civil Service Tribunal should have examined whether the appellants’ action exclusively sought compensation for the consequences of the decisions crediting pensionable years and, in particular, whether the purpose of that action was to obtain the same financial outcome as would have resulted from an action for annulment of those acts brought in good time.
It must be observed that, contrary to the finding made in the judgment under appeal, this is not the case here.
In that regard, it must be clarified, from the outset, that the subject matter of the decisions crediting pensionable years relating to the appellants is the award of a particular number of pensionable years credited following the transfers carried out.
It is true that it cannot be ruled out that the number of pensionable years awarded under the decisions crediting pensionable years might have been fewer than that hoped for by the appellants and that, to that extent, the decisions in question could have adversely affected them.
That was not, however, the situation in the present case. By their claims for compensation, the appellants were not seeking to obtain compensation for the damage which they suffered on account of the crediting of those pensionable years, but rather for the damage allegedly resulting from the fact that, despite the crediting of pensionable years, they could neither aspire to a higher level of pension nor hope to recover the capital value corresponding to their national pension rights, now transferred to the European Union pension scheme.
It should be pointed out in that connection that, according to paragraph 9 of the reply at first instance, ‘the appellants had no interest in bringing an action for annulment against the decisions confirming the transfer since those decisions [did] not differ from the proposals to which they had agreed’ and that, ‘since they obtained exactly what they had requested and the capital transferred was correctly credited, those decisions … [were] lawful’.
The view cannot therefore be taken that the action brought at first instance seeks to obtain compensation solely for the consequences of the decisions crediting pensionable years relating to them for the purposes of the case-law cited in paragraphs 67 and 68 above.
It is true that, by the main head of claim advanced at first instance, the appellants requested that the amounts corresponding to their national pension rights, which have been transferred to the European Union pension scheme, be paid to any national pension fund or insurance policy (see paragraph 35 above).
However, it must be observed that, even taking the view that, by their main head of claim, the appellants sought to obtain the same financial outcome which would have resulted from the annulment of the contested decisions, the same is not true as regards the head of claim advanced in the alternative. The annulment of the contested decisions cannot, in any case, have the effect of paying to the appellants the amounts corresponding to their national pension rights, but rather merely of entailing the disappearance,
ex tunc
, of the contested transfer decisions and their effects, namely the crediting of pensionable years, which is in principle beneficial to the appellants and cannot be separated from the transfer of their national pension rights to the European Union pension scheme.
In the light of all the foregoing, it must be held that the Civil Service Tribunal erred in law by dismissing, primarily, the appellants’ action as inadmissible.
It is therefore necessary to examine, in the light of the second ground of appeal relied on by the appellants, the findings made by the Civil Service Tribunal for the sake of completeness.
The second ground of appeal
As a preliminary point, it should be recalled that, in accordance with settled case-law in relation to the civil service, the European Union can be held liable for damages if a number of conditions are satisfied, namely the illegality of the allegedly wrongful act committed by the institutions, the actual harm suffered, and the existence of a causal link between the act and the damage alleged to have been suffered (judgment of 16 December 1987, Delauche v Commission,
111/86
,
EU:C:1987:562
, paragraph
; see also judgment of 12 July 2012, Commission v Nanopoulos,
T‑308/10 P
,
EU:T:2012:370
, paragraph
and the case-law cited).
The three conditions laid down in paragraph 84 above are cumulative, which means that, if one of them is not satisfied, the European Union cannot be held liable (see judgment of 17 May 2017, PG v Frontex,
T‑583/16
, not published,
EU:T:2017:344
, paragraph
and the case-law cited).
It follows that, even where a breach of a duty on the part of an institution, body, office or agency of the European Union is established, the European Union can actually be held liable only if, inter alia, the applicant has succeeded in demonstrating that he has suffered actual damage (see judgment of 29 September 2005, Napoli Buzzanca v Commission,
T‑218/02
,
EU:T:2005:343
, paragraph
and the case-law cited).
It is in the light of those considerations that the appellants’ second ground of appeal, which is divided into two parts, must be examined. By the first part of that ground of appeal, the appellants submit that the Civil Service Tribunal erred in law by finding that the AECE’s conduct cannot be regarded as unlawful. By the second part of the ground of appeal, they claim that the Civil Service Tribunal erred in law by taking the view that the damage which they claim to have suffered was neither actual nor certain.
It is necessary, in the first place, to take a view on the second part of this ground of appeal.
In the appellants’ opinion, the mere fact that they have not yet reached the statutory retirement age such that they are unaware whether the transfer of their pension rights will afford them a benefit is irrelevant for the purposes of assessing the definitive nature of the damage upon which they rely in support of their appeal. In that regard, they allege that they have already lost their national rights and that their situation is currently uncertain. According to the appellants, that damage stems from the incomplete and inaccurate information which they received during the procedure for the transfer of their national rights and is indeed definitive in nature.
Furthermore, the mere possibility of any amendment of the fourth paragraph of Article 77 of the Staff Regulations, or even its abolition, has no impact vis-à-vis the assessment of the allegedly unlawful conduct on the part of the AECE, since that provision was indeed in force when the proposals concerning additional pensionable years relating to the appellants were sent to them.
The appellants argue that the material damage suffered by them is certain, since the minimum subsistence figure rule ‘does not apply in the alternative, but is rather a guarantee applicable to any calculation of the pension of a member of staff’. Thus, ‘it cannot be established that the crediting of pensionable years … will take precedence over that fundamental social rule’. In the appellants’ view, it cannot be established that their national pension rights will have an effect on the level of their pension. In this regard, they rely on paragraphs 27 and 28 of the judgment of 6 October 2016, Adrien and Others (
C‑466/15
,
EU:C:2016:749
) which concerns the social security of migrant workers.
The Court of Justice of the European Union disputes the appellants’ arguments.
It should be recalled, in this regard, that the damage for which compensation is sought in the context of an action for damages must be actual and certain (see judgment of 21 February 2008, Commission v Girardot,
C‑348/06 P
,
EU:C:2008:107
, paragraph
and the case-law cited).
Nevertheless, in accordance with settled case-law, the persons concerned are not prevented from bringing proceedings before the European Union judicature for a finding that the European Union is liable for imminent damage foreseeable with sufficient certainty even if the damage cannot yet be precisely assessed (see judgment of 14 January 1987, Zuckerfabrik Bedburg and Others v Council and Commission,
281/84
,
EU:C:1987:3
, paragraph
and the case-law cited). In such circumstances, if it is established that the persons concerned would of necessity have been in a better position if the breach of duty for which they hold the defendant responsible had not been committed, the view must be taken that the existence of the damage alleged by them cannot be regarded as being hypothetical or merely possible (see, to that effect, judgment of 9 November 2006, Agraz and Others v Commission,
C‑243/05 P
,
EU:C:2006:708
, paragraph
).
In the present case, there are factors forming part of the calculation of the appellants’ pension rights which remain, as at the present date and until those rights are calculated, uncertain. In addition, those factors will be decisive, inter alia, for the application of the minimum subsistence figure rule in their situations.
First, the amount of the final basic salary which the appellants will receive prior to their retirement is currently uncertain. As the Civil Service Tribunal found in paragraph 81 of the judgment under appeal, it cannot be ruled out that the appellants might later access employment as a temporary member of staff or an official, which would exclude them from the scope of the minimum subsistence figure rule.
Moreover, nor can it be ruled out that the basic monthly salaries for the function group to which the appellants belong might be increased, which could have the same effect for the persons concerned, namely their exclusion from the scope of the minimum subsistence figure rule. Furthermore, the appellants themselves point out, in their responses of 17 January 2018 to the questions sent to them by the Court, that, at the seventh and final step of grade 3, the basic salary of an member of contract staff in function group I, such as the appellants, is higher than the basic salary of an AST 1/1 member of staff, which would exclude such a staff member from the scope of the minimum subsistence figure rule. It follows from that finding that, even if the basic monthly salaries for the function group to which the appellants belong are not increased, it is possible, since the appellants have not advanced arguments capable of ruling out the possibility, that when their pension rights are calculated they will find themselves in a professional situation which will mean that they are excluded from the scope of the minimum subsistence figure rule.
Second, the number of years of service performed with European Union institutions by the appellants on their retirement is also, at this stage, uncertain. It cannot be ruled out that the date on which the appellants choose to take retirement might also have consequences for the calculation of the final amount of their pension.
Those findings are sufficient grounds for taking the view that the damage alleged by the appellants, damage which is, moreover, exclusively material (see paragraphs 55 to 63 above), is not certain within the meaning of the case-law cited in paragraph 93 above.
In any event, as the Civil Service Tribunal observed in paragraph 82 of the judgment under appeal, it is not certain that, when the appellants retire and their pension rights are calculated, the scope and conditions of application of Article 77 of the Staff Regulations and, more specifically, the second and fourth paragraphs of that article, will be the same as those when the present judgment is given.
Furthermore, it must be added that it cannot, a priori, be excluded that the Court of Justice of the European Union might adopt a provision similar to that contained in Article 7(6) of the Administrative Committee of the Court of Justice of the European Union of 17 October 2011 laying down general implementing provisions relating to Articles 11 and 12 of Annex VIII to the Staff Regulations (see paragraph 9 above) which would apply in cases such as that in which the appellants fear that they find themselves.
It follows from the foregoing that, before their pension rights are calculated and before any application of the minimum subsistence figure rule to their situations, the mere fact that, by making a calculation on the basis of hypothetical data (see paragraph 19 above), the appellants are of the view that, on their future retirement, they will be found to have transferred their national pension rights to no avail cannot be sufficient to establish either actual and certain damage, within the meaning of the case-law cited in paragraph 93 above, or damage foreseeable with sufficient certainty, within the meaning of the case-law cited in paragraph 94 above. At the present time, the only finding of fact that can be made with certainty is that the appellants’ national pension rights were converted into pensionable years pursuant to the decisions crediting pensionable years relating to them.
The capital corresponding to the appellants’ national pension rights has not disappeared. Following its transfer, it was converted into additional pensionable years, which, in principle, will have to be taken into account in order to calculate the appellants’ pension rights. Accordingly, as the Court of Justice of the European Union rightly points out in paragraph 41 of the rejoinder, the view cannot be taken, at the present stage, that the rights were transferred to no avail.
In that context, even taking the view that, when their pension rights are calculated, no legal or regulatory provision will enable the appellants to recover even some of the capital transferred corresponding to the additional pensionable years not taken into account for the calculation of their retirement pension, the appellants will have remedies available to them by which they will be able to claim the ‘loss’ of that capital without consideration. By means of an action brought against the measures by which their rights are assessed and their pensions calculated and which adversely affect them because they take no account of the pensionable years credited by virtue of the application of the minimum subsistence figure rule, the appellants could, where appropriate, dispute the application of the minimum subsistence figure rule in their specific cases, since the application of that rule would mean that no account would be taken, for the calculation of their pension rights, of the pensionable years credited following the transfer of their national pension rights to the European Union pension scheme.
Finally, it must be recalled that the possibility of bringing an action for unjust enrichment against the European Union cannot be denied to a person solely on the ground that the FEU Treaty does not make express provision for a means of pursuing that type of action. As the Court of Justice has already held, if Articles 268 and 340 TFEU were to be construed as excluding that possibility, the result would be contrary to the principle of effective judicial protection, laid down in the case-law of the Court and confirmed in Article 47 of the Charter of Fundamental Rights of the European Union (see judgment of 16 December 2008, Masdar (UK) v Commission,
C‑47/07 P
,
EU:C:2008:726
, paragraphs
and
and the case-law cited).
In that regard, it cannot be ruled out that the refusal of an institution to refund, to the person concerned, the share of the capital of his national pension rights transferred to the European Union pension scheme of which account will not be taken when that person’s pension rights are calculated might result in the unjustified appropriation, by that institution, of a share of the national pension rights paid out by way of the transfer, which belong to the member of staff concerned in accordance with case-law, and, therefore, unjustified enrichment benefiting the European Union (see, by analogy, judgment of 30 January 2003, Caballero Montoya v Commission,
T‑303/00, T‑304/00 and T‑322/00
,
EU:T:2003:20
, paragraph
and the case-law cited).
In the light of the factors set out above which remain, at this stage, uncertain with regard to the calculation of the amount of the pensions which will be awarded to the appellants when their pension rights are calculated, the view must be taken that the damaged alleged by them in the present case is not actual and certain damage within the meaning of the case-law cited in paragraphs 93 and 94 above.
The view must therefore be taken that the Civil Service Tribunal did not err in law by finding that the damage alleged by the appellants was not actual or certain. In the light of that finding, the second part of this ground of appeal must be dismissed as must the appeal in its entirety, without it being necessary, having regard to the case-law cited in paragraph 86 above, to examine the first part of the second ground of appeal relied on by the appellants.
Costs
Under Article 211(2) of the Rules of Procedure, where the appeal is unfounded or where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs.
Article 211(4) of the Rules of Procedure provides that the Court may, in appeals brought by officials, decide to apportion the costs between the parties where equity so requires.
It is clear from the grounds set out in the present judgment that the appellants have been unsuccessful in their appeal. In addition, in the form of order sought by it, the Court of Justice of the European Union expressly applied for the appellants to be ordered to pay the costs.
However, the Court considers on a fair assessment of the circumstances of the present case that, in the light, inter alia, of the questions raised by the present appeal and of the fact that the Court of Justice of the European Union has been unsuccessful in its arguments concerning the first ground of appeal put forward by the appellants, the appellants must be ordered to bear one quarter of their own costs and the Court of Justice to bear, in addition to its own costs, three quarters of the costs incurred by the appellants.

On those grounds,
THE GENERAL COURT (Appeal Chamber)
hereby:

1.
Dismisses the appeal;

2.
Orders the appellants to bear a quarter of their costs;

3.
Orders the Court of Justice of the European Union to bear its own costs and three quarters of the costs incurred by the appellants.

Van der Woude
Kanninen
Gratsias
Delivered in open court in Luxembourg on 18 September 2018.
[Signatures]
(
*1
)	Language of the case: French.