# C_2023045EN.01001901.xml

| 6.2.2023 | EN | Official Journal of the European Union | C 45/19 |
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6.2.2023

EN

Official Journal of the European Union

C 45/19

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Action brought on 7 December 2022 — Sboarina v Parliament

(Case T-761/22)

(2023/C 45/28)

Language of the case: Italian

Parties

Applicant: Gabriele Sboarina (Verona, Italy) (represented by: M. Paniz, lawyer)

Defendant: European Parliament

Form of order sought

The applicant claims that the Court should:

| — | annul the measure entitled ‘Amendment to the determination of the rights to a retirement pension of a former Member of the European Parliament under an Italian mandate’ communicated by letter of 21 September 2022, received on 28 October 2022, sent by the Directorate-General for Finance of the European Parliament, with the subject line: ‘Redefinition of the rights to a retirement pension following Decision No 150 of 3 March 2022 of the Ufficio di Presidenza della Camera dei deputati [(Office of the President of the Italian Chamber of Deputies, Italy)]’, of which the applicant was notified, and, consequently, annul the redefinition and recalculation of the life annuity paid to the applicant by the European Parliament, and any other prior and/or consecutive act, |
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annul the measure entitled ‘Amendment to the determination of the rights to a retirement pension of a former Member of the European Parliament under an Italian mandate’ communicated by letter of 21 September 2022, received on 28 October 2022, sent by the Directorate-General for Finance of the European Parliament, with the subject line: ‘Redefinition of the rights to a retirement pension following Decision No 150 of 3 March 2022 of the Ufficio di Presidenza della Camera dei deputati [(Office of the President of the Italian Chamber of Deputies, Italy)]’, of which the applicant was notified, and, consequently, annul the redefinition and recalculation of the life annuity paid to the applicant by the European Parliament, and any other prior and/or consecutive act,

| — | declare that the applicant is entitled to the maintenance of the life annuity paid by the European Parliament in so far as it was accrued and is being accrued at the time of the first payment, |
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declare that the applicant is entitled to the maintenance of the life annuity paid by the European Parliament in so far as it was accrued and is being accrued at the time of the first payment,

| — | order the European Parliament to pay him all the sums unduly withheld, adjusted for inflation, together with statutory interest from the date of withholding until the date of payment, |
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order the European Parliament to pay him all the sums unduly withheld, adjusted for inflation, together with statutory interest from the date of withholding until the date of payment,

| — | order the European Parliament to comply with the judgment in this case and immediately to restore in full the original amount of the life annuity. |
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order the European Parliament to comply with the judgment in this case and immediately to restore in full the original amount of the life annuity.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging infringement of the powers reserved to the Bureau of the European Parliament (Rule 25 of the Rules of Procedure of the European Parliament).






  — | The applicant claims that the contested measure is unlawful on the ground that it was adopted by the Head of Unit of the Members’ Salaries and Social Entitlements Unit without the necessary involvement of the Bureau of the European Parliament, which is in fact the body that takes financial, organisational and administrative decisions on matters concerning the Members of the European Parliament under Article 25 of the Rules of Procedure of the European Parliament. |
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1.

First plea in law, alleging infringement of the powers reserved to the Bureau of the European Parliament (Rule 25 of the Rules of Procedure of the European Parliament).

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The applicant claims that the contested measure is unlawful on the ground that it was adopted by the Head of Unit of the Members’ Salaries and Social Entitlements Unit without the necessary involvement of the Bureau of the European Parliament, which is in fact the body that takes financial, organisational and administrative decisions on matters concerning the Members of the European Parliament under Article 25 of the Rules of Procedure of the European Parliament.

| 2. | Second plea in law, alleging infringement of the second paragraph of Article 296 TFEU and of Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’) (1); insufficient statement of reasons in the contested act.






  — | The applicant claims that the contested measure is unlawful since it fails to provide a sufficient statement of reasons, in breach of the second paragraph of Article 296 TFEU and of Article 41 of the Charter. |
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2.

Second plea in law, alleging infringement of the second paragraph of Article 296 TFEU and of Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’) (1); insufficient statement of reasons in the contested act.

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The applicant claims that the contested measure is unlawful since it fails to provide a sufficient statement of reasons, in breach of the second paragraph of Article 296 TFEU and of Article 41 of the Charter.

| 3. | Third plea in law, alleging that the contested measure was adopted without a valid legal basis; incorrect application of Annex III to the PEAM Rules (2) and of Articles 74 and 75 of the IMS. (3)







  — | The applicant claims that the contested measure is unlawful on the ground that it was adopted without a valid legal basis, since Article 2(1) of Annex III to the PEAM Rules was repealed following the entry into force of the Statute for Members (Articles 74 and 75 of the IMS). |
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3.

Third plea in law, alleging that the contested measure was adopted without a valid legal basis; incorrect application of Annex III to the PEAM Rules (2) and of Articles 74 and 75 of the IMS. (3)

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The applicant claims that the contested measure is unlawful on the ground that it was adopted without a valid legal basis, since Article 2(1) of Annex III to the PEAM Rules was repealed following the entry into force of the Statute for Members (Articles 74 and 75 of the IMS).

| 4. | Fourth plea in law, alleging misinterpretation of Article 75 of the IMS and of Annexes I, II and III to the PEAM Rules. Infringement of Article 28 of the Statute for Members and of the applicant’s entitlement to a pension.






  — | The applicant claims that the contested act is unlawful on the ground that the European Parliament misinterpreted and misapplied Article 75 of the IMS and Article 2(1) of Annex III to the PEAM Rules. The applicant submits that those provisions must be interpreted as meaning that the reference, in Article 75 of the IMS, to Annexes I, II and III to the PEAM Rules, and in particular to Article 2(1), must necessarily be understood as referring to the pension applicable when that Annex III was in force. By contrast, the abovementioned provisions have been interpreted and applied by the Parliament as allowing the applicant’s pension to be amended an indefinite number of times, in clear breach of Article 28 of the Statute for Members and of the principles of legitimate expectations and of legal certainty. |
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4.

Fourth plea in law, alleging misinterpretation of Article 75 of the IMS and of Annexes I, II and III to the PEAM Rules. Infringement of Article 28 of the Statute for Members and of the applicant’s entitlement to a pension.

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The applicant claims that the contested act is unlawful on the ground that the European Parliament misinterpreted and misapplied Article 75 of the IMS and Article 2(1) of Annex III to the PEAM Rules. The applicant submits that those provisions must be interpreted as meaning that the reference, in Article 75 of the IMS, to Annexes I, II and III to the PEAM Rules, and in particular to Article 2(1), must necessarily be understood as referring to the pension applicable when that Annex III was in force. By contrast, the abovementioned provisions have been interpreted and applied by the Parliament as allowing the applicant’s pension to be amended an indefinite number of times, in clear breach of Article 28 of the Statute for Members and of the principles of legitimate expectations and of legal certainty.

| — | In the end, even if the interpretation of the European Parliament were to be adopted, Article 2 of Annex III to the PEAM Rules meets a limit under EU law and, in any event, concerns only that amount and the conditions for paying the pension which cannot, nevertheless, affect the entitlement to a pension itself. However, in the present case, the measure applied to the applicant, through the automatic transposition of Decision 150/2022, not only amended the applicant’s entitlement to a pension, by affecting the conditions relating to the constitution of that entitlement, but presents clear signs of incompatibility with EU law. |
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In the end, even if the interpretation of the European Parliament were to be adopted, Article 2 of Annex III to the PEAM Rules meets a limit under EU law and, in any event, concerns only that amount and the conditions for paying the pension which cannot, nevertheless, affect the entitlement to a pension itself. However, in the present case, the measure applied to the applicant, through the automatic transposition of Decision 150/2022, not only amended the applicant’s entitlement to a pension, by affecting the conditions relating to the constitution of that entitlement, but presents clear signs of incompatibility with EU law.

| 5. | Fifth plea in law, alleging infringement of the principle of legitimate expectations, of legal certainty, of the protection of acquired rights and of equality.






  — | The applicant claims that the contested measure is unlawful on the ground that, by providing for the automatic transposition of Decision 150/2022 and the resulting recalculation of the applicant’s pension using a new, retroactive method with permanent effects that directly affects the entitlement to a pension, the European Parliament infringed the principle of legal certainty, which precludes a violation of acquired rights, in line, furthermore, with the rationale of Article 28 of the Statute for Members and Article 75 of the IMS, as well as the principle of legitimate expectations, which does not allow pensions to be diminished or changed. In addition, in so far as it affects only former Italian Members of the European Parliament, who are the sole addressees of a measure that recalculates retroactively, using a contributive method, pensions accrued while the contributive method had not yet been introduced in Italy, that recalculation presents clear signs of infringement of the principle of equality too, in that it amounts to unlawful discrimination compared to former Members of the European Parliament from the other Member States as well as the Members of the European Parliament elected after 2009 and all other citizens in general, who are not subject to any such reductions. |
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5.

Fifth plea in law, alleging infringement of the principle of legitimate expectations, of legal certainty, of the protection of acquired rights and of equality.

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The applicant claims that the contested measure is unlawful on the ground that, by providing for the automatic transposition of Decision 150/2022 and the resulting recalculation of the applicant’s pension using a new, retroactive method with permanent effects that directly affects the entitlement to a pension, the European Parliament infringed the principle of legal certainty, which precludes a violation of acquired rights, in line, furthermore, with the rationale of Article 28 of the Statute for Members and Article 75 of the IMS, as well as the principle of legitimate expectations, which does not allow pensions to be diminished or changed. In addition, in so far as it affects only former Italian Members of the European Parliament, who are the sole addressees of a measure that recalculates retroactively, using a contributive method, pensions accrued while the contributive method had not yet been introduced in Italy, that recalculation presents clear signs of infringement of the principle of equality too, in that it amounts to unlawful discrimination compared to former Members of the European Parliament from the other Member States as well as the Members of the European Parliament elected after 2009 and all other citizens in general, who are not subject to any such reductions.

| 6. | Sixth plea in law, alleging breach of Article 17 of the Charter. Breach of Article 1 of Protocol 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Disproportionate nature of the sacrifice imposed.






  — | The applicant submits that the contested measure, which reduced, through the recalculation, the amount of the pension for the position of Member of the European Parliament to which he was entitled as originally paid, directly affects his right of ownership. He claims, in addition, that interference occurred without an effective statement of reasons and that it imposed a disproportionate and unreasonable sacrifice. |
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6.

Sixth plea in law, alleging breach of Article 17 of the Charter. Breach of Article 1 of Protocol 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Disproportionate nature of the sacrifice imposed.

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The applicant submits that the contested measure, which reduced, through the recalculation, the amount of the pension for the position of Member of the European Parliament to which he was entitled as originally paid, directly affects his right of ownership. He claims, in addition, that interference occurred without an effective statement of reasons and that it imposed a disproportionate and unreasonable sacrifice.

| 7. | Seventh plea in law, alleging breach of Articles 21 and 25 of the Charter, of Article 10 TFEU and of Article 15 of the European Pillar of Social Rights.






  — | The applicant submits that, since it transposed a measure for the recalculation of pensions which, on account of the way in which it was designed, affects primarily subjects who are older, the European Parliament, by the contested act, is itself in breach of Articles 21 and 25 of the Charter, of Article 10 TFEU and of Article 15 of the European Pillar of Social Rights and of Directive 2000/78/EC. (4) |
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7.

Seventh plea in law, alleging breach of Articles 21 and 25 of the Charter, of Article 10 TFEU and of Article 15 of the European Pillar of Social Rights.

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The applicant submits that, since it transposed a measure for the recalculation of pensions which, on account of the way in which it was designed, affects primarily subjects who are older, the European Parliament, by the contested act, is itself in breach of Articles 21 and 25 of the Charter, of Article 10 TFEU and of Article 15 of the European Pillar of Social Rights and of Directive 2000/78/EC. (4)

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(1)  OJ 2016 C 202, p. 389.

(2)  Enlarged Bureau Decision of 4 November 1981; Bureau Decision of 24 and 25 May 1982, as amended on 13 September 1995 and 6 June 2005.

(3)  Decision of the Bureau of the European Parliament of 19 May and 9 July 2008 concerning implementing measures for the Statute for Members of the European Parliament (OJ 2009 C 159, p. 1).

(4)  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).

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