# C_2022158EN.01001501.xml

| 11.4.2022 | EN | Official Journal of the European Union | C 158/15 |
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11.4.2022

EN

Official Journal of the European Union

C 158/15

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Action brought on 28 February 2022 — Baert v Commission

(Case T-111/22)

(2022/C 158/18)

Language of the case: French

Parties

Applicant: Rhonny Baert (Deinze, Belgium) (represented by: D. Grisay and A. Ansay, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | accept the present application for annulment/non-contractual liability; |
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accept the present application for annulment/non-contractual liability;

| — | declare the application admissible and consequently:






  — | principally,






  — | declare the action for annulment well founded and rule that the implied refusal of the appointing authority of 28 February 2022 and the European Commission’s decision of 21 December 2016 (notice of determination) are null and void on the grounds that:






  — | Article 77 of the Staff Regulations and Article 11 of Annex VIII to the Staff Regulations on which the notice of determination of 21 December 2016 is based are unlawful; |
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declare the application admissible and consequently:

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principally,

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declare the action for annulment well founded and rule that the implied refusal of the appointing authority of 28 February 2022 and the European Commission’s decision of 21 December 2016 (notice of determination) are null and void on the grounds that:

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Article 77 of the Staff Regulations and Article 11 of Annex VIII to the Staff Regulations on which the notice of determination of 21 December 2016 is based are unlawful;

| — | by not proposing to the applicant, in his notice of determination of 21 December 2016, any repayment of the pension rights unaccounted for by the competent European authority, the European Commission failed in its duty to have regard to the welfare of officials; |
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by not proposing to the applicant, in his notice of determination of 21 December 2016, any repayment of the pension rights unaccounted for by the competent European authority, the European Commission failed in its duty to have regard to the welfare of officials;

| — | by not proposing to the applicant, in his notice of determination of 21 December 2016, any repayment of the pension rights unaccounted for by the competent European authority, the European Commission failed to comply with the principle of equal treatment and non-discrimination; |
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by not proposing to the applicant, in his notice of determination of 21 December 2016, any repayment of the pension rights unaccounted for by the competent European authority, the European Commission failed to comply with the principle of equal treatment and non-discrimination;

| — | and refer the file back to the appointing authority so that it may determine the amount to be repaid to the applicant; |
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and refer the file back to the appointing authority so that it may determine the amount to be repaid to the applicant;

| — | in the alternative,






  — | declare the action for compensation based on unjust enrichment well founded on the ground that the applicant has been impoverished by the amount of his pension rights contributed in his national pension scheme not taken into account by the competent European authority and which have, by the same token, enriched the pension fund of the European Union; |
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in the alternative,

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declare the action for compensation based on unjust enrichment well founded on the ground that the applicant has been impoverished by the amount of his pension rights contributed in his national pension scheme not taken into account by the competent European authority and which have, by the same token, enriched the pension fund of the European Union;

| — | order the Commission to compensate the applicant for the financial loss suffered, assessed at the date of lodging this application at a principal amount of EUR 31 066,80 or, at least at 39,18 % of the periodic annuity payments received by the Commission since 1 February 2017, to be increased by the same percentage for future annuity payments; |
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order the Commission to compensate the applicant for the financial loss suffered, assessed at the date of lodging this application at a principal amount of EUR 31 066,80 or, at least at 39,18 % of the periodic annuity payments received by the Commission since 1 February 2017, to be increased by the same percentage for future annuity payments;

| — | order the Commission to pay the costs. |
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order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on four pleas in law.

| 1. | First plea in law, alleging the unlawfulness of Article 77(1) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and of Article 11(2) of Annex VIII to the Staff Regulations. The applicant submits that the abovementioned provisions provide that the official is to take the decision to transfer his pension rights, accrued in the national pension scheme, to the pension fund of the European Union (‘the PFEU’) within the 10 years of the official’s start of employment in the service of the institutions of the European Union. However, it is only at the time of retirement that the official who has carried out a transfer can accurately assess the scope of his possible transfer, in particular owing to the rule which limits the amount of pensions to 70 %. The applicant therefore concludes that, in breach of the principle of non-discrimination, that rule creates a difference in treatment compared with an official who has spent his entire career within the European system. |
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1.

First plea in law, alleging the unlawfulness of Article 77(1) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and of Article 11(2) of Annex VIII to the Staff Regulations. The applicant submits that the abovementioned provisions provide that the official is to take the decision to transfer his pension rights, accrued in the national pension scheme, to the pension fund of the European Union (‘the PFEU’) within the 10 years of the official’s start of employment in the service of the institutions of the European Union. However, it is only at the time of retirement that the official who has carried out a transfer can accurately assess the scope of his possible transfer, in particular owing to the rule which limits the amount of pensions to 70 %. The applicant therefore concludes that, in breach of the principle of non-discrimination, that rule creates a difference in treatment compared with an official who has spent his entire career within the European system.

| 2. | Second plea in law, alleging breach of the duty of assistance and the duty to have regard to the welfare of officials referred to in Article 24 of the Staff Regulations. The applicant claims that, upon transferring their pension rights from the national system to the PFEU, officials normally receive a table from the Commission clarifying whether they are entitled to a repayment of the non-supplemented actuarial equivalent of the contributed amounts in their original national scheme, not included in the EU pension scheme. In addition, repayment is generally made without restrictions or specific steps. According to the applicant, he has not received that table or any repayment. |
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2.

Second plea in law, alleging breach of the duty of assistance and the duty to have regard to the welfare of officials referred to in Article 24 of the Staff Regulations. The applicant claims that, upon transferring their pension rights from the national system to the PFEU, officials normally receive a table from the Commission clarifying whether they are entitled to a repayment of the non-supplemented actuarial equivalent of the contributed amounts in their original national scheme, not included in the EU pension scheme. In addition, repayment is generally made without restrictions or specific steps. According to the applicant, he has not received that table or any repayment.

| 3. | Third plea in law, alleging breach of the principles of equal treatment and non-discrimination. The applicant takes the view that there is discrimination not justified by any objective criterion between some officials who receive a repayment when their pension rights are transferred and others for whom this is not the case. |
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3.

Third plea in law, alleging breach of the principles of equal treatment and non-discrimination. The applicant takes the view that there is discrimination not justified by any objective criterion between some officials who receive a repayment when their pension rights are transferred and others for whom this is not the case.

| 4. | Fourth plea in law, alleging that non-contractual liability has been incurred on account of unjust enrichment to the applicant’s detriment. |
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4.

Fourth plea in law, alleging that non-contractual liability has been incurred on account of unjust enrichment to the applicant’s detriment.

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