JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Second Chamber)

23 March 2015 ([\*](#Footnote*))

(Civil service — Remuneration — Survivor’s pension — First paragraph of Article 27 of Annex VIII to the Staff Regulations — Divorced spouse of a deceased official — Existence of maintenance on the date of death of the official — Article 42 of Annex VIII to the Staff Regulations — Time limits for applying for payment of pension entitlements)

In Case F‐6/14,

ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,

**Julia Borghans,** divorced spouse of Mr van Raan, deceased official of the European Commission, residing in Auderghem (Belgium), represented
by F. Van der Schueren and C. Lefèvre, lawyers,

applicant,

v

**European Commission,** represented by J. Currall and A.-C. Simon, acting as Agents,

defendant,

THE CIVIL SERVICE TRIBUNAL (Second Chamber)

composed of K. Bradley, President, H. Kreppel (Rapporteur) and M.I. Rofes i Pujol, Judges,

Registrar: P. Cullen, Administrator,

having regard to the written procedure and further to the hearing on 6 November 2014,

gives the following

**Judgment**

1        By an application lodged at the Tribunal Registry on 28 January 2014, Ms Borghans seeks the annulment of the decision by which
the European Commission refused to grant her a survivor’s pension.

**Legal context**

2        The legal context comprises Articles 27 and 42 of Annex VIII to the Staff Regulations of Officials of the European Union,
in its version prior to the entry into force of Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the
Council of 22 October 2013 amending the Staff Regulations of Officials of the European Union and the Conditions of Employment
of Other Servants of the European Union (‘the Staff Regulations’), as well as the following provisions of the Staff Regulations
and of that annex.

3        Article 79 of the Staff Regulations provides:

‘The surviving spouse of an official or of a former official shall be entitled, in the manner provided for in Chapter 4 of
Annex VIII [to the Staff Regulations], to a survivor’s pension equal to 60% of the retirement pension or invalidity allowance
which was paid to the deceased, or which, irrespective of length of service or of age, would have been payable to him if he
had qualified for it at the time of death.

The amount of the survivor’s pension payable to the surviving spouse of an official who has died while in one of the administrative
statuses specified in Article 35 [of the Staff Regulations], shall be neither less than the minimum subsistence figure nor
less than 35% of the last basic salary received by the official.

...’

4        Under Article 80 of the Staff Regulations:

‘Where an official or person entitled to a retirement pension or invalidity allowance dies leaving no spouse entitled to a
survivor’s pension, the children dependent on the deceased within the meaning of Article 2 of Annex VII [to the Staff Regulations]
at the time of his death shall be entitled to orphans’ pension in accordance with Article 21 of Annex VIII [to the Staff Regulations].

The same pension entitlement shall apply to children who fulfil the above conditions in the event of the death or remarriage
of the spouse in receipt of a survivor’s pension.

Where an official or person entitled to a retirement pension or invalidity allowance dies but the conditions set out in the
first paragraph are not satisfied, the dependent children within the meaning of Article 2 of Annex VII [to the Staff Regulations]
shall be entitled to orphans’ pension in accordance with Article 21 of Annex VIII [to the Staff Regulations]; the pension
shall, however, be equal to half the pension calculated in accordance with that Article.

...’

5        The first subparagraph of Article 21(1) of Annex VIII to the Staff Regulations provides:

‘The orphan’s pension provided for in Article 80, first, second and third paragraphs of the Staff Regulations shall for the
first orphan be equal to eight tenths of the survivor’s pension to which the surviving spouse of an official or former official
in receipt of a retirement pension or invalidity allowance would have been entitled, the reductions set out in Article 25
[of this Annex] being disregarded.’

**Facts**

6        On 20 April 1991 the applicant married Mr van Raan, at that time an official of the Commission.

7        There was one child of the marriage, born on 10 September 1993.

8        By a judgment of 15 June 2004 the tribunal de première instance de Bruxelles (court of first instance, Brussels) (Belgium)
pronounced the divorce by mutual consent of Mr van Raan and the applicant. The divorce settlement concluded on 24 December
2003 (‘the divorce settlement’) and attached to that judgment provided that, from that date until his death, Mr van Raan would
pay the applicant maintenance in an amount fixed at the time at EUR 3 000 per month.

9        By a judgment of 18 December 2007 the juge de paix du canton de Overijse-Zaventem (magistrate, canton of Overijse-Zaventem)
(Belgium), at Mr van Raan’s request, terminated, from 1 September 2006, the maintenance payable by him to the applicant.

10      On 12 February 2008, the applicant appealed against the judgment of the juge de paix du canton de Overijse-Zaventem (magistrate,
canton of Overijse-Zaventem) of 18 December 2007.

11      On 2 March 2008, Mr van Raan died.

12      Following Mr van Raan’s death, it is common ground that the Commission did not pay the applicant a survivor’s pension.

13      However, from July 2008 the Commission granted the child of the late Mr van Raan and the applicant an orphan’s pension under
Article 80 of the Staff Regulations, the amount of which was fixed, in accordance with the first sub-paragraph of Article 21(1)
of Annex VIII to the Staff Regulations, at eight tenths of the survivor’s pension which the applicant would have received
had she been entitled to that pension (‘the higher-rate orphan’s pension’).

14      In October 2011, having become an adult, the child of the late Mr van Raan and the applicant, in his capacity as Mr van Raan’s
heir, continued the proceedings brought before the Belgian courts for the termination of the maintenance payable to the applicant,
which were then pending before the tribunal de première instance de Bruxelles (court of first instance, Brussels).

15      By a judgment of 25 March 2013, the tribunal de première instance de Bruxelles (court of first instance, Brussels) set aside
the judgment of the juge de paix du canton de Overijse-Zaventem (magistrate, canton of Overijse-Zaventem) of 18 December 2007
and declared unfounded the late Mr van Raan’s original application seeking the termination of the maintenance provided for
in the divorce settlement for the applicant, on the ground that the conditions to which termination of the maintenance was
subject under the divorce settlement were not satisfied.

16      The child of the late Mr van Raan and the applicant, in his capacity as Mr van Raan’s heir, accepted the judgment of the tribunal
de première instance de Bruxelles (court of first instance, Brussels) of 25 March 2013.

17      By a letter of 29 April 2013, the applicant requested the Commission to pay her a survivor’s pension from April 2008, explaining
that, as a result of the annulment, by the judgment of the tribunal de première instance de Bruxelles (court of first instance,
Brussels) of 25 March 2013, of the judgment of the juge de paix du canton de Overijse-Zaventem (magistrate, canton of Overijse-Zaventem)
of 18 December 2007, she satisfied the criteria laid down by Article 27 of Annex VIII to the Staff Regulations for receipt
of such a pension.

18      By a decision of 3 June 2013 (‘the contested decision’) the Commission rejected the applicant’s request on the ground that,
as she had not applied for payment of her pension entitlements within a year of Mr van Raan’s death, she had lost her entitlements
pursuant to Article 42 of Annex VIII to the Staff Regulations.

19      By a note of 9 July 2013, the applicant lodged a complaint against the contested decision for the purposes of Article 90(2)
of the Staff Regulations.

20      By a decision of 29 October 2013, the appointing authority rejected the complaint on the same ground as the contested decision
(‘the decision rejecting the complaint’).

**Forms of order sought**

21      The applicant claims that the Tribunal should:

–        annul the decision rejecting the complaint;

–        order the Commission to pay the costs.

22      The Commission contends that the Tribunal should:

–        dismiss the action;

–        order the applicant to pay the costs.

**Decision**

*Subject matter of the action*

23      It is settled case-law that claims for annulment formally directed against the decision rejecting a complaint have, where
that decision has no independent content, the effect of bringing before the Tribunal the act against which the complaint was
submitted (see, to that effect, judgment in *Vainker* v *Parliament*, 293/87, EU:C:1989:8, paragraph 8).

24      Since the decision rejecting the complaint lacks any independent content in the present case, the action must be regarded
as being directed only against the contested decision.

*Admissibility*

 Arguments of the parties

25      The Commission contends that the claims for annulment of the contested decision are inadmissible. In its view, that decision
merely confirms a previous implied decision adopted after Mr van Raan’s death in 2008, by which the administration refused
to grant the applicant a survivor’s pension, and which she did not challenge within the time limit laid down in Article 90(2)
of the Staff Regulations. The Commission adds that, according to settled case-law, the possibility of submitting a request
as provided for in Article 90(1) of the Staff Regulations, which the applicant used in requesting a survivor’s pension in
her letter of 29 April 2013, does not allow an official or a person entitled under them to set aside the time limits laid
down in Articles 90 and 91 of the Staff Regulations for the lodging of a complaint and an appeal by indirectly calling in
question, by means of a request, a previous decision which had not been challenged within the time limits, as in the present
case.

26      The applicant claims that the plea of inadmissibility raised by the Commission should be rejected.

 Findings of the Tribunal

27      As is clear from consistent case-law, an action for annulment of a decision merely confirming a previous decision which was
not challenged within the prescribed period is inadmissible. A decision is a mere confirmation of an earlier decision where
it contains no new factors as compared with the earlier measure and is not preceded by any re-examination of the situation
of the addressee of the earlier measure (judgment in *A* v *Commission*, F‐12/09, EU:F:2011:136, paragraph 119).

28      In the present case, it must first of all be ascertained whether, as the Commission argues, an implied decision was taken
in 2008 to refuse the applicant a survivor’s pension on the ground that she did not satisfy the conditions laid down in the
first paragraph of Article 27 of Annex VIII to the Staff Regulations.

29      In that regard, Article 90(1) of the Staff Regulations provides that any person to whom the Staff Regulations apply may submit
to the appointing authority a request that it take a decision relating to him and that, upon expiry of a period of four months
from the date on which the request was made, the absence of a reply to the request is to be deemed to constitute an implied
decision rejecting it. It follows from that provision that, as a rule, an implied decision refusing to grant an entitlement
to an official can arise only if the official has first submitted a request to the administration for that entitlement to
be granted to him.

30      In its written pleadings, the Commission stated that it had not received any request from the applicant for payment of a survivor’s
pension. As for the applicant, while she did refer, in her complaint against the contested decision, to the existence of such
a request and even to a decision in 2008 refusing her a survivor’s pension, she subsequently, in her written pleadings and
at the hearing, confirmed that no such request or decision had occurred.

31      It has therefore not been established that the Commission, by an implied decision resulting from the absence of a reply to
a request from the applicant, refused her the benefit of a survivor’s pension.

32      Furthermore, even if the Commission, at the same time as granting a higher-rate orphan’s pension to the child of the late
Mr van Raan and the applicant, had refused in 2008, by an implied decision, to grant the applicant a survivor’s pension, the
contested decision could not be regarded as merely confirming that implied decision.

33      The implied decision could only have been based on the fact that the applicant did not satisfy the conditions laid down by
the first paragraph of Article 27 of Annex VIII to the Staff Regulations for receiving a survivor’s pension. The contested
decision, however, was based on the fact that the applicant had not complied with the time limits prescribed by Article 42
of that annex. In the contested decision, therefore, the Commission re-examined the applicant’s situation on the basis of
new factors capable of affecting that situation.

34      It follows that the plea of inadmissibility raised by the Commission must be rejected.

*Substance*

 Arguments of the parties

35      In essence, the applicant raises a single plea against the contested decision, alleging a breach of Article 42 of Annex VIII
to the Staff Regulations.

36      Among the claims made in support of her plea, the applicant explains that she cannot be criticised for not having applied
for payment of a survivor’s pension within a year of the date of Mr van Raan’s death. On that date, as a result of the judgment
of the juge de paix du canton de Overijse-Zaventem (magistrate, canton of Overijse-Zaventem) of 18 December 2007, she was
no longer receiving maintenance and, consequently, did not satisfy the conditions laid down by Article 27 of Annex VIII to
the Staff Regulations. The applicant adds that she subsequently complied with the provisions of Article 42 of Annex VIII to
the Staff Regulations by submitting, within a year of the delivery of the judgment of the tribunal de première instance de
Bruxelles (court of first instance, Brussels) of 25 March 2013 reviving her maintenance payments, a request for payment of
a survivor’s pension.

37      The Commission contends that the plea should be dismissed.

38      The Commission maintains that it was for the applicant to comply with the time limit laid down in Article 42 of Annex VIII
to the Staff Regulations for applying for payment of her survivor’s pension entitlements. According to the Commission, the
applicant should have informed the administration, within a year of Mr van Raan’s death, that the divorce settlement had awarded
her maintenance and that she had appealed against the judgment of 18 December 2007 by which the juge de paix du canton de
Overijse-Zaventem (magistrate, canton of Overijse-Zaventem) had terminated that maintenance.

39      At the hearing, the Commission stated that, if the applicant had provided it with that information, it would have been in
a position to make the definitive payment of the higher-rate orphan’s pension to the child of the late Mr van Raan and the
applicant conditional on the judgment of the juge de paix du canton de Overijse-Zaventem (magistrate, canton of Overijse-Zaventem)
of 18 December 2007 not being set aside by the tribunal de première instance de Bruxelles (court of first instance, Brussels)
and the maintenance retroactively revived.

40      Again at the hearing, in response to the Tribunal’s questions, the Commission contended that, in any event, the applicant
could never have claimed a survivor’s pension because, on the date of Mr van Raan’s death, she did not satisfy the conditions
prescribed by Article 27 of Annex VIII to the Staff Regulations for receiving such a pension, that is, that on the death of
her former spouse, who was an official or former official, she had to be receiving maintenance from him on her own account.
The Commission adds that the fact that, after Mr van Raan’s death, the tribunal de première instance de Bruxelles (court of
first instance, Brussels) set aside the judgment of the juge de paix du canton de Overijse-Zaventem (magistrate, canton of
Overijse-Zaventem) of 18 December 2007 and accordingly revived the maintenance payments provided for in the divorce settlement,
is irrelevant. In the Commission’s view, a finding to the contrary would be tantamount to accepting that, for a given period,
a survivor’s pension and a higher-rate orphan’s pension could lawfully be paid simultaneously, in breach of the provisions
of Article 80 of the Staff Regulations.

 Findings of the Tribunal

–       Preliminary observations

41      Although, in the contested decision and the decision rejecting the complaint, the Commission based its rejection of the applicant’s
request for payment of a survivor’s pension on the fact that she had lost her entitlements by not having submitted that request
within the one-year time limit laid down in Article 42 of Annex VIII to the Staff Regulations, the Commission contended, in
its defence and at the hearing, that the applicant had never been entitled to a survivor’s pension because she was not receiving
maintenance on the date when her former spouse died, and she therefore did not satisfy the conditions laid down in the first
paragraph of Article 27 of Annex VIII to the Staff Regulations to claim such a pension.

42      In that regard, according to consistent case-law, an institution cannot be permitted to put forward a substituted statement
of reasons during the proceedings unless it is under a mandatory duty which leaves it no discretion (judgment in *CP* v *Parliament*, F‐8/13, EU:F:2014:44, paragraph 67 and the case-law cited therein).

43      It is therefore necessary to examine whether the Commission, which sought to replace the original statement of reasons for
the contested decision, based on the applicant’s breach of Article 42 of Annex VIII to the Staff Regulations, with a fresh
statement of reasons alleging that the applicant did not fall within the scope of the first paragraph of Article 27 of that
annex, was under a mandatory duty which left it no discretion.

44      The first paragraph of Article 27 of Annex VIII to the Staff Regulations provides that ‘the divorced spouse of an official
or a former official shall be entitled to a survivor’s pension, as defined in this Chapter, provided that, on the death of
the former spouse, he/she can justify entitlement on his/her own account to receive maintenance from him by virtue of a court
order or as a result of an officially registered settlement in force between himself/herself and his/her former spouse’.

45      Where it is required to ascertain whether the divorced spouse of an official or former official can justify entitlement, on
the death of his or her former spouse, to receive maintenance within the meaning of the first paragraph of Article 27 of Annex
VIII to the Staff Regulations, the administration has no margin of discretion and is required to grant or refuse payment of
the survivor’s pension according to whether or not that fact is ultimately established.

46      Accordingly, since the administration was under a mandatory duty to grant or refuse the benefit of the survivor’s pension
provided for by the first paragraph of Article 27 of Annex VIII to the Staff Regulations, it was possible for the Commission
to put forward a substituted statement of reasons in its defence and at the hearing, alleging that the applicant did not fall
within the scope of that provision.

47      It is therefore for the Tribunal, first of all, to ascertain whether the applicant could be regarded as entitled to a survivor’s
pension as a result of the judgment of the tribunal de première instance de Bruxelles (court of first instance, Brussels)
of 25 March 2013.

48      If that is the case, it will then be for the Tribunal to determine whether the time limit for loss of entitlement provided
for by Article 42 of Annex VIII to the Staff Regulations was applicable to the applicant.

–       Whether the applicant was entitled to a survivor’s pension as a result of the judgment of the tribunal de première instance
de Bruxelles (court of first instance, Brussels) of 25 March 2013

49      As has already been stated, it is clear from the first paragraph of Article 27 of Annex VIII to the Staff Regulations that
the grant of a survivor’s pension to the divorced spouse of a deceased official or former official is subject to the condition
that ‘on the death of the former spouse, he/she can justify entitlement on his/her own account to receive maintenance from
him by virtue of a court order or as a result of an officially registered settlement in force between himself/herself and
his/her former spouse’.

50      In the present case, it is apparent from the evidence before the Tribunal that, although the divorce settlement provided that
Mr van Raan would pay the applicant maintenance of EUR 3 000 per month, that maintenance was terminated, from 1 December 2006,
by a judgment of the juge de paix du canton de Overijse-Zaventem (magistrate, canton of Overijse-Zaventem), which, under Belgian
law, was automatically provisionally enforceable.

51      Consequently, on 2 March 2008, the date of Mr van Raan’s death, and despite the fact that the applicant had lodged an appeal
against the judgment of the juge de paix du canton de Overijse-Zaventem (magistrate, canton of Overijse-Zaventem) of 18 December
2007, the applicant could not be regarded as entitled, on her own account, under Belgian law, to receive maintenance from
her former spouse.

52      It is true that when Mr van Raan died, the judgment of the juge de paix du canton de Overijse-Zaventem (magistrate, canton
of Overijse-Zaventem) of 18 December 2007 did not have the force of *res judicata*, since the applicant, as stated earlier, had appealed against the judgment. However, because the judgment was provisionally
enforceable, the applicant no longer had standing to pursue recovery of the maintenance payments.

53      Consequently, on the date of Mr van Raan’s death, the applicant did not satisfy the conditions laid down in the first paragraph
of Article 27 of Annex VIII to the Staff Regulations for claiming a survivor’s pension.

54      Moreover, the Commission itself admitted in its written pleadings that ‘Article 27 of Annex VIII to the Staff Regulations
did not ... apply’ to the applicant’s situation on the date of Mr van Raan’s death.

55      However, it is common ground that, by its judgment of 25 March 2013, the tribunal de première instance de Bruxelles (court
of first instance, Brussels) set aside the judgment of the juge de paix du canton de Overijse-Zaventem (magistrate, canton
of Overijse-Zaventem) of 18 December 2007 and declared unfounded the late Mr van Raan’s application for the termination of
the maintenance payments provided for by the divorce settlement.

56      It is necessary to determine whether, as the applicant claims, the appeal court’s annulment of the judgment at first instance
had the effect of conferring on her entitlement to a survivor’s pension under the first paragraph of Article 27 of Annex VIII
to the Staff Regulations.

57      In that regard, the Tribunal notes that the terms of a provision of EU law which, like the first paragraph of Article 27 of
Annex VIII to the Staff Regulations, makes no express reference to the law of the Member States for the purpose of determining
its meaning and scope must normally be given an independent interpretation, which must take into account the context of the
provision and the purpose of the relevant regulations. However, even in the absence of an express reference, the application
of EU law may necessitate a reference to the laws of the Member States where the Union court cannot identify in EU law or
in the general principles of EU law criteria enabling it to define the meaning and scope of the provision of EU law in question
by way of independent interpretation (judgment in *Díaz García* v *Parliament*, T‐43/90, EU:T:1992:120, paragraph 36).

58      In this case, as the Court of First Instance of the European Communities expressly held in the judgment in *M* v *Court of Justice* (T‐172/01, EU:T:2004:108), the concept of ‘maintenance ... as a result of a settlement between herself and her former husband’,
within the meaning of the first paragraph of Article 27 of Annex VIII to the Staff Regulations, cannot be given an independent
interpretation. On the contrary, the concept of a maintenance obligation agreed between former spouses by reason of their
divorce is one of the financial consequences arising from the decree of divorce pronounced on the basis of the rules of the
applicable civil law (judgment in *M* v *Court of Justice*, EU:T:2004:108, paragraph 72).

59      Consequently, in order to determine whether the divorced spouse of an official or former official can, ‘on the death of the
former spouse, ... justify entitlement on his/her own account to receive maintenance from him ... as a result of a ... settlement
in force between himself/herself and his/her former spouse’, reference must be made to the law governing the effects of their
divorce, which, in this case, is Belgian law, under which their divorce was pronounced.

60      Since, in Belgian law, the annulment by the appeal court of a decision at first instance has the effect of eradicating that
decision retroactively, the judgment of the tribunal de première instance de Bruxelles (court of first instance, Brussels)
of 25 March 2013 setting aside the judgment of the juge de paix du canton de Overijse-Zaventem (magistrate, canton of Overijse-Zaventem)
of 18 December 2007 retroactively eradicated the latter judgment and revived the maintenance payments provided for by the
divorce settlement, so that the maintenance is deemed never to have been terminated.

61      Thus, from 25 March 2013, when the judgment of the tribunal de première instance de Bruxelles (court of first instance, Brussels)
was delivered, given that the applicant had her entitlement to the maintenance provided for in the divorce settlement revived
from 1 September 2006, she was necessarily to be regarded as justifying, in Belgian law, on the death of Mr van Raan, entitlement
on her own account to receive maintenance from him.

62      It follows that the judgment of the tribunal de première instance de Bruxelles (court of first instance, Brussels) of 25 March
2013 had the effect of adding the applicant to those entitled to a survivor’s pension under the first paragraph of Article 27
of Annex VIII to the Staff Regulations.

63      That finding is not affected by the Commission’s argument that, in order to determine whether the divorced spouse of an official
or former official qualifies for a survivor’s pension under Article 27 of Annex VIII to the Staff Regulations, reference should
be made only to the situation existing on the date of the death of the official or former official, without taking account
of any retroactive change to that situation. Accepting such an argument would amount to a breach of Belgian law, according
to which the setting aside, by the appeal court, of a decision at first instance which terminated maintenance payments has
the effect of retroactively reviving those maintenance payments.

64      The Commission’s argument that recognising the applicant’s entitlement to a survivor’s pension from the date of Mr van Raan’s
death would infringe the provisions of the third paragraph of Article 80 of the Staff Regulations also cannot be accepted.

65      In that regard, it is true that the provisions of the third paragraph of Article 80 of the Staff Regulations mean that the
divorced spouse of an official or former official may not be recognised as entitled to receive a survivor’s pension while,
in the same period, a child who was dependent on that official or former official at the time of his death is also recognised
as entitled to receive a higher-rate orphan’s pension.

66      However, in the present case, the judgment of the tribunal de première instance de Bruxelles (court of first instance, Brussels)
of 25 March 2013 not only had the effect of reviving, from 1 September 2006, the maintenance payments due to the applicant
under the divorce settlement and, accordingly, gave rise to the applicant’s entitlement to a survivor’s pension from the date
of Mr van Raan’s death, but it also retroactively negated the legal basis for the Commission’s decision granting, from July
2008, a higher-rate orphan’s pension to the child of the late Mr van Raan and the applicant.

67      Lastly, it should be noted that the purpose of Article 27 of Annex VIII to the Staff Regulations is to enable the divorced
spouse of an official or former official who was receiving maintenance from him/her at the time of the official’s death to
continue to receive resources providing a livelihood after that death. There would be no justification for denying the divorced
spouse of an official or former official the benefit of a survivor’s pension, and thus of a livelihood, solely on the ground,
beyond his/her control, that the maintenance he/she was receiving under national law was terminated before the death of the
official or former official and then revived retroactively after that death.

–       Whether the time limit for loss of entitlement provided for by Article 42 of Annex VIII to the Staff Regulations was applicable
to the applicant

68      According to Article 42 of Annex VIII to the Staff Regulations, ‘where an official or former official in receipt of a retirement
pension or invalidity allowance dies and those entitled under him do not apply for their pension or allowance within one year
from the date of his death, they shall lose their entitlement, save where force majeure is duly established’.

69      It is clear from the very wording of Article 42 of Annex VIII to the Staff Regulations that the time limit stipulated for
loss of entitlement applies only if those entitled under a deceased official or former official actually have pension or allowance
entitlements on the date of his death.

70      Consequently, those entitled under a deceased official or former official who, as in the present case, do not have pension
or allowance entitlements on the date of his death, but have those entitlements recognised after his death and retroactively,
as a result of the adoption of a decision by a national court, do not fall within the scope of Article 42 of Annex VIII to
the Staff Regulations.

71      In this case, as was stated earlier, the applicant was not, on the date of Mr van Raan’s death, entitled to a survivor’s pension,
since the maintenance provided for in the divorce settlement had previously been terminated by the judgment of the juge de
paix du canton de Overijse-Zaventem (magistrate, canton of Overijse-Zaventem) of 18 December 2007 and had not yet been revived
with retroactive effect by the appeal court.

72      That being so, the Commission erred in law by basing the contested decision on the fact that, in not having applied for her
pension within one year of Mr van Raan’s death, the applicant had lost her entitlement pursuant to Article 42 of Annex VIII
to the Staff Regulations.

73      The question remains whether the applicant was nevertheless required to apply for her survivor’s pension within a particular
time limit.

74      In that regard, because the Staff Regulations do not contain any provision imposing on the successors of a deceased official
or former official who are in the situation described in paragraph 70 above a time limit for applying for their pension or
allowance, it is for the Tribunal to fill that gap (see, by analogy, regarding the time limit for bringing actions in disputes
between the European Investment Bank and its staff, judgment in *Dunnett and Others* v *EIB*, T‐192/99, EU:T:2001:72, paragraph 51).

75      The principles of legal certainty and the protection of legitimate expectations, which are general principles of Union law,
prevent the institutions and natural or legal persons from being able to act without any time limits, thereby threatening,
inter alia, to undermine the stability of legal positions already acquired, and they require the observance of a reasonable
period (see, by analogy, regarding the time limit for applying for compensation for damage, order in *Marcuccio* v *Commission*, T‐157/09 P, EU:T:2010:403, paragraph 42).

76      Consequently, the Tribunal considers that the principle of legal certainty requires that the successors of a deceased official
or former official who are in the situation described in paragraph 70 above must apply for payment of their pension or allowance
entitlements within a reasonable period, which starts to run on the date of service of the national court’s decision on the
basis of which their pension or allowance entitlements are recognised retroactively.

77      In the present case, although the documents before the Tribunal do not make it possible to determine the precise date on which
the judgment of the tribunal de première instance de Bruxelles (court of first instance, Brussels) of 25 March 2013 was served
on the applicant, that service cannot have occurred before 25 March 2013.

78      The applicant applied for payment of her survivor’s pension on 29 April 2013, within a period that must be regarded as reasonable
in the light of the circumstances of the case.

79      It must therefore be considered that the applicant had not lost her survivor’s pension entitlements when she applied for them
to be paid.

80      The Commission claims, however, that the applicant should, at the very least, within a year of Mr van Raan’s death, have informed
it of her personal situation and, in particular, should have told it that Mr van Raan owed her maintenance under the divorce
settlement, that that maintenance had been terminated by the judgment of the juge de paix du canton de Overijse-Zaventem (magistrate,
canton of Overijse-Zaventem) of 18 December 2007, and that her appeal against that judgment was pending before the tribunal
de première instance de Bruxelles (court of first instance, Brussels).

81      However, it cannot be inferred from the wording or structure of Article 42 of Annex VIII to the Staff Regulations that the
applicant was required to provide the Commission with that information, since the provision merely imposes on the successors
of a deceased official or former official who actually have pension or allowance entitlements a time limit for applying for
payment of their entitlements.

82      Accordingly, the applicant’s failure to provide the Commission with information on her personal situation, in particular on
the appeal she had lodged against the judgment of the juge de paix du canton de Overijse-Zaventem (magistrate, canton of Overijse-Zaventem)
of 18 December 2007, is irrelevant for determining whether she applied for payment of her survivor’s pension in good time.

83      It follows from all the foregoing that the contested decision must be annulled, without its being necessary to consider the
other claims raised in support of the single plea in the application.

**Costs**

84      Under Article 101 of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those Rules,
the unsuccessful party is to bear his own costs and is ordered to pay the costs incurred by the other party if they have been
applied for in the other party’s pleadings. Under Article 102(1) of those Rules, if equity so requires, the Tribunal may decide
that an unsuccessful party is to bear his own costs, but is to pay only part of the costs incurred by the other party, or
even that he is not to be ordered to pay any costs.

85      It follows from the grounds set out above that the Commission is the unsuccessful party. Moreover, in the form of order sought,
the applicant expressly applied for the Commission to pay the costs. As the circumstances of the present case do not justify
the application of Article 102(1) of the Rules of Procedure, the Commission must bear its own costs and be ordered to pay
the costs incurred by the applicant.

On those grounds,

THE CIVIL SERVICE TRIBUNAL (Second Chamber)

hereby:

1.      **Annuls the decision of 3 June 2013 by which the European Commission refused to grant a survivor’s pension to Ms Borghans.**

2.      **Declares that the European Commission is to bear its own costs and orders it to pay the costs incurred by Ms Borghans.**

| | | |
| --- | --- | --- |
| Bradley | Kreppel | Rofes i Pujol |

Delivered in open court in Luxembourg on 23 March 2015.

| | | |
| --- | --- | --- |
| W. Hakenberg | | K. Bradley |

| | | |
| --- | --- | --- |
| Registrar | | President |

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[\*](#Footref*) Language of the case: French.