Judgment — ECLI:EU:T:2013:127
Date: 2013-03-13
Language of the case: French
Court formation: Fourth Chamber
Subject matter: Provisions governing the Institutions
Procedure: Action for annulment - unfounded

summary of the financial situation of the pension fund, the fact remains that they demonstrate clearly the need to safeguard its liquidity as far as possible. As is apparent from the considerations set out in paragraphs 104 to 106 above, it is precisely that need which justifies the Bureau in refraining from including additional transitional measures in the decision of 1 April 2009. Furthermore, prior to the adoption of that decision, the financial situation of the pension fund and the measures envisaged to correct it had been exhaustively covered by several meetings with the managers of that fund and the representatives of the ASBL, the last of which took place on 31 March 2009. In those circumstances, the applicants cannot reasonably claim a lack of relevant reasoning as regards the absence of transitional measures. 109 Consequently, the head of claim alleging infringement of the principle of proportionality must be rejected. The head of claim alleging infringement of the principle of equal treatment 110 The applicants claim that the decision of 1 April 2009 is discriminatory in so far as it increases the pension age without providing for transitional measures. In that regard, the applicants cite two examples relating to the amendment of the Community pension schemes in respect of which they submit that the Council of the European Union provided for transitional measures. Furthermore, they claim that there is discrimination between Members who reached the age of 60 before 14 July 2009 and were able to receive the additional pension directly at age 60, on the one hand, and those who reached the age of 60 after that date and will have all the limitations arising out of the decision of 1 April 2009 applied to their acquired rights, on the other. The Members who reached the age of 60 before 14 July 2009 cannot, they argue, be distinguished, in terms of acquired rights and legitimate expectations, from younger Members and, in particular, from those who, prior to that date, satisfied the conditions for the early pension or who were approaching 60 years of age. 111 The Parliament disputes those arguments. 112 It follows from settled case-law that there is a breach of the principle of equal treatment where two classes of persons whose factual and legal situations are not essentially different are treated differently or where different situations are treated in an identical manner (Case T‑100/92 La Pietra v Commission [1994] ECR‑SC I‑A‑83 and II‑275, paragraph 50, and Case T‑66/95 Kuchlenz-Winter v Commission [1997] ECR II‑637, paragraph 55; see also, to that effect, Case T‑251/02 E v Commission [2004] ECR-SC I‑A‑359 and II‑1643, paragraph 123). 113 Furthermore, in a field in which the legislature has a broad discretionary power, the Court, in its review of observance of the principle of equal treatment and non-discrimination, is confined to determining that the institution concerned has not applied arbitrary or manifestly inappropriate distinctions (see Campoli v Commission, paragraph 71 above, paragraph 97, and Davis and Others v Council, paragraph 71 above, paragraph 65 and the case-law cited). 114 In the present case, in the first place, the applicants compare the amendment of the additional pension scheme with the amendment of the pension scheme for European Union officials introduced following the entry into force of Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (OJ 2004 L 124, p. 1), and with the amendment of the pension scheme for Members of the European Commission and Members of the Courts of the European Union introduced following the entry into force of Council Regulation (EC, Euratom) No 1292/2004 of 30 April 2004 amending Regulations No 422/67/EEC and No 5/67/Euratom determining the emoluments of the President and Members of the Commission and of the President, Judges, Advocates General and Registrar of the Court of Justice and of the President, Members and Registrar of the Court of First Instance (OJ 2004 L 243, p. 23). They seek to demonstrate by way of that comparison that they, like the persons covered by those regulations, ought to have benefited from transitional measures. 115 In this connection, first, as regards the transitional provisions laid down in respect of Members of the Commission and of the Courts of the European Union in office prior to 1 May 2004, under Regulation No 1292/2004, it must be stated that those provisions cannot be used as a framework of reference in the present case as they do not concern the increase in the retirement age, but only the reduction in the annual accrual rate of pension rights. 116 Secondly, as regards the amendment of the pension scheme for European Union officials, the increase in retirement age from 60 to 63 introduced by Regulation No 723/2004 was valid as such, in respect of officials employed as at 1 May 2004, only on condition that they had not yet reached the age of 30. In respect of officials in service on that date who were between 30 and 49 years of age, the retirement age was staggered according to age, between 62 years and 8 months and 60 years and 2 months. Lastly, for officials in service on 1 May 2004 who were 50 years of age or who had completed 20 years of service, the retirement age remained set at 60. 117 In essence, the transitional measures adopted under Regulation No 723/2004 consisted therefore, first, in an exemption in respect of certain officials who were in service on the date of entry into force of the amendments and, secondly, in the staggered application of the amendments, on the basis of the age of the officials in service on the date of their entry into force. 118 Against that background, first, it is, however, important to point out that the old-age pension which European Union officials may expect to receive constitutes, in the majority of cases, the most important, if not the only component of the old-age income to which they are entitled by virtue of their professional activities. By contrast, a term of office as a Member of the Parliament is not in general in the nature of a sole professional activity. It is thus normally held after or before other periods of professional activity on the part of the Member, or even in parallel to such activity. Consequently, the additional pension under the scheme at issue constitutes, as a general rule, only a portion of the old-age income of former Members, as the latter will normally have acquired other pension rights in the course of their other professional activities. It follows that an amendment to the additional pension scheme is not likely to affect members of that scheme in the same manner as that in which European Union officials are affected by an amendment to their pension scheme. 119 Secondly, the amendment to the pension scheme for European Union officials adopted under Regulation No 723/2004 was based on grounds which are different from those advanced by the decision of 1 April 2009 in respect of the amendments to the additional pension scheme for Members of the Parliament. 120 As regards the increase in retirement age under the pension scheme for European Union officials, recital 29 in the preamble to Regulation No 723/2004 states that ‘[d]emographic changes and the changing age structure of the population concerned are imposing ever-increasing burdens upon the Community pension scheme and require that the pension age be increased and the annual rate of accrual of pension rights be reduced, subject however to transitional measures for officials already in service’. It is clear from that recital that the increase in the retirement age of officials and the reduction in the annual rate of accrual of pension rights constituted an adaptation of the pension scheme to progressive demographic changes and not a reaction to an acute crisis in respect of that scheme. In such a situation, it was possible, and even necessary, to provide for transitional measures in favour of officials in service at the time when the amendments entered into force. 121 By contrast, as has already been pointed out in paragraph 75 above, it is apparent from the first and second recitals in the preamble to the decision of 1 April 2009, and from all of the circumstances surrounding its adoption, that the fundament reason for that decision – and, in particular, for the decision to increase the retirement age under the additional pension scheme – was the imminent liquidity crisis of the additional pension fund. That crisis was not the result of progressive demographic changes, but of the combined effects of the financial crisis, which had greatly reduced the value of the fund’s assets, on the one hand, and of the imbalance between the diminished revenue of the scheme in the form of contributions, due to the absence of new members as from the seventh term beginning in 2009, and its expenses, which were increased on account of the imminent retirement of a large number of non-re-elected Members, on the other. It must be pointed out, in that regard, that that imbalance formed an integral part of the additional pension scheme by reason of its transitional nature, resulting in its progressive disappearance as from the entry into force of the Statute for Members at the beginning of the seventh term on 14 July 2009. 122 In contrast to the situation of the pension scheme for European Union officials in 2004, the situation of the additional pension fund at the beginning of 2009 was thus characterised by a specific emergency which justified reducing the use of transitional measures in favour of members of the additional pension scheme to a strict minimum. It must be added, in that regard, that, since there were no new members of the additional pension scheme as from 14 July 2009, the measures adopted under the decision of 1 April 2009 related in actual fact only to those Members who were already members of the scheme at that time. In those circumstances, the adoption of additional transitional measures in favour of former members, comparable to the measures provided for in respect of officials under Regulation No 723/2004, would have rendered the measures adopted entirely meaningless. 123 It follows that, as the reason for the amendments to the additional pension scheme was the specific emergency prevailing at the beginning of 2009, as regards the liquidity and the coverage rate of the pension rights, the applicants’ position is not similar to that of the European Union officials affected by the amendments to their pension scheme which were introduced by Regulation No 723/2004. 124 Accordingly, since the Members of the European Parliament, on the one hand, and the officials of the European Union, on the other hand, are in factual and legal situations which differ in essential respects, it was possible for them to be treated differently with regard to the adoption of transitional measures. 125 In the second place, the applicants make a comparison between Members who reached the age of 60 prior to 14 July 2009 and could receive their pension at age 60, on the one hand, and those who reached the age of 60 after that date and could receive their pension only at age 63, on the other. Whereas the first group could receive their additional pensions as from 1 August 2009, the second group had to wait until at least 1 August 2012. A slight difference in age could therefore result in a deferment of three years in receiving the additional pension for 100 or so of the more than 1 000 members of the additional pension scheme, according to the statements of the parties. 126 That situation is attributable to the combined effect of Article 1(1) and 1(1a) of the Rules of 12 June 1990, as recast by the decision of 1 April 2009. That latter decision introduced a deadline, namely 14 July 2009, for the entry into force of the increase in the retirement age to 63, with the result that members of the scheme who were aged 60 before that date and who were not (re-)elected as Members of the Parliament for the seventh term could receive their additional pensions as from 14 July 2009. 127 The Parliament stated at the hearing, in reply to a question put by the Court, that, although it is true that the negative effects resulting from the measures adopted by the decision of 1 April 2009 are thus borne by only 10% of the members of the additional pension scheme, it had, none the less, considered that measure to be less onerous than measures which would affect the monthly amount of the pension, such as a general reduction in the monthly amount of the pensions which would have affected all the members of the scheme, including those already in receipt of their additional pensions. 128 In that regard, first, it must be stated that the members of the scheme who were already receiving their additional pensions as at the date of the entry into force of the decision of 1 April 2009 had already acquired in full, at that time, their rights to the additional pension, whereas that was not the case with regard to the applicants, as has been established in paragraph 47 above. 129 Consequently, since the applicants, on the one hand, and the members of the scheme who were already receiving their additional pensions on the date of the entry into force of the decision of 1 April 2009, on the other, are in different factual and legal situations, it was possible for them to be treated differently. 130 Secondly, as regards the transitional measure provided for in favour of members of the scheme reaching the age of 60 in the period between the entry into force, on 27 May 2009, of the decision of 1 April 2009 and the end of the sixth term, namely on 13 July 2009 (see paragraph 97 above), it must be pointed out that, in a situation where the law is amended, it is normal, indeed necessary, to fix a deadline with effect from which the new law will apply to existing factual situations. The setting of such a deadline is therefore in principle lawful, even if it inevitably has the effect that situations which can be distinguished only slightly from each other ratione temporis are treated differently. 131 Furthermore, it must be pointed out that the last members of the scheme who were able to receive the additional pension at age 60 could be distinguished from the group of the applicants, who had to wait until they reached the age of 63, inasmuch as they had already reached retirement age before the end of the sixth term on 13 July 2009. They thus satisfied all the conditions laid down in Article 1(1) of the Rules of 12 June 1990 for receiving the additional pension, with the sole exception, for those who were Members of the Parliament during the sixth term, of that relating to their having ceased to hold office. By contrast, the applicants had not yet, at the time when the law was amended on 14 July 2009, reached retirement age according to the rules in force at that time. 132 As the Parliament has correctly pointed out, the criterion of age used by the decision of 1 April 2009 is not only an objective factor, which is reasonable and independent of the will of the legislature, but also forms an integral part of every pension scheme, as the factor which determines the time of retirement and of payment of the pension. Consequently, such a criterion cannot, in itself, be considered to be discriminatory or disproportionate in the context of an amendment to a pension scheme. 133 In those circumstances, the difference in treatment to which the applicants were subject in contrast to Members of the Parliament who had reached the age of 60 before 14 July 2009 cannot be categorised as arbitrary or as manifestly inappropriate within the meaning of the case-law cited in paragraph 113 above. 134 It follows that the head of claim alleging infringement of the principle of equal treatment must be rejected, as must also the second plea in its entirety. The third plea, alleging infringement of Article 29 of the PEAM Rules 135 The applicants claim that the Bureau infringed Article 29 of the PEAM Rules by failing to consult the Secretary-General of the Parliament and the College of Quaestors of the Parliament before it adopted the decision of 1 April 2009. 136 The Parliament disputes those arguments. 137 It must be borne in mind, in that regard, that the Court has already held, first, that Article 29 of the PEAM Rules is concerned simply with the interpretation and implementation of those rules and not with their amendment and, secondly, that, in accordance with the provisions of the Rules of Procedure of the Parliament, the Quaestors attend meetings of the Bureau in an advisory capacity (Purvis v Parliament, paragraph 29 above, paragraphs 120 to 122). 138 Although the applicants added, at the stage of the reply, that the mandatory consultation of the Quaestors cannot be regarded as having been properly satisfied under the pretext that they attend meetings of the Bureau in an advisory capacity, which would be contrary to the established practice of the Parliament and render Article 29 of the PEAM Rules redundant, first, it must be held that, as is apparent from the words ‘[i]n addition’, with which paragraph 122 of the judgment in Purvis v Parliament, paragraph 29 above, begins, it is only by way of addition that the Court based an argument on the attendance of the Quaestors at meetings of the Bureau pursuant to the Rules of Procedure of the Parliament. The argument that Article 29 of the PEAM Rules did not cover the amendment to the PEAM Rules was in itself a sufficient basis on which to reject the plea alleging infringement of that provision. 139 Secondly, although the applicants invoke an established practice of the Parliament, they have neither specified what that practice is nor provided evidence of its existence. 140 Thirdly, the applicants claim that, if the Quaestors had been formally consulted, they would have requested the opinion of the Legal Service and of actuarial experts in 1999 at the time when the Rules of 12 June 1990 were amended. However, apart from the fact that that argument is based on mere supposition on the applicants’ part as regards the initiatives that the College of Quaestors would have taken, their reference to the involvement of the Quaestors at the time of the events which took place in 1999 is contradicted by the content of the file. As is apparent from the note from the College of Quaestors of 29 August 1998 for the attention of the Bureau, which was provided by the applicants, it was at the request of the Bureau, and not at the request of the Quaestors, that the amendments were at that time examined by the Legal Service. 141 It follows that the applicants’ third plea must be rejected. The fourth plea, alleging a manifest error of assessment 142 The applicants submit that the ground relied on in the third recital in the preamble to the decision of 1 April 2009 for raising to 63 the age at which the right to the additional pension is acquired, derived from developments in the old-age pensions sector in the Member States, is unlawful and that the increase in the age at which the right to the pension is acquired infringes Article 27(2) of the Statute for Members. 143 The Parliament takes issue with those arguments. 144 As regards, first, the alleged infringement of Article 27(2) of the Statute for Members, it has been established in paragraph 53 above that that Statute was not yet in force at the time when the decision of 1 April 2009 was adopted and that that decision could not therefore have infringed the provisions of the Statute. 145 Secondly, regarding the argument relating to the ground relied on in the third recital in the preamble to the decision of 1 April 2009, it has been established in paragraph 75 above that the fundamental reason for the decision to increase the retirement age under the additional pension scheme was the difficult financial situation of the additional pension fund. Since that reason is sufficient to justify the increase in the retirement age, as has been established in paragraphs 70 to 109 above, the issue of whether the Bureau legitimately used additional grounds is not capable of having any bearing on the outcome of the present case. Consequently, that argument must be rejected as ineffective. 146 It follows that the fourth plea must be rejected. The fifth plea, alleging infringement of good faith in the performance of contracts 147 On the basis of the existence of a contractual relationship between themselves and the Parliament, the applicants claim that the decision of 1 April 2009 is potestative and constitutes a breach of contract. 148 Suffice it to point out, in that regard, that, as was stated in paragraph 61 above, in reference to the findings made in the judgment in Purvis v Parliament, paragraph 29 above, the rights and obligations of the Parliament and of members of the additional pension scheme are governed by the internal rules and statutes which bind them, and are therefore not contractual in nature. 149 The fifth plea must for that reason be rejected. 150 Since all of the pleas in law advanced by the applicants in support of their plea of illegality against the decision of 1 April 2009 must be rejected, that plea of illegality must be rejected. It follows that the decision of 1 April 2009 formed a valid basis for the contested decisions. Consequently, in accordance with the findings made in paragraph 27 above, the actions must be dismissed in their entirety. Costs 151 Under Article 87(2) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Parliament. On those grounds, THE GENERAL COURT (Fourth Chamber) hereby: 1. Dismisses the actions; 2. Orders Lord Inglewood and the other 10 applicants whose names are set out in the Annex, as well as Ms Marie-Arlette Carlotti, to pay the costs. Pelikánová Jürimäe Van der Woude Delivered in open court in Luxembourg on 13 March 2013. [Signatures] Annex Georges Berthu, residing in Longré (France), Guy Bono, residing in Saint-Martin-de-Crau (France), David Robert Bowe, residing in Leeds (United Kingdom), Brendan Donnelly, residing in London (United Kingdom), Catherine Guy-Quint, residing in Cournon d’Auvergne (France), Christine Margaret Oddy, residing in Coventry (United Kingdom), Nicole Thomas-Mauro, residing in Épernay (France), Gary Titley, residing in Bolton (United Kingdom), Maartje van Putten, residing in Amsterdam (Netherlands), Vincenzo Viola, residing in Palermo (Italy). Table of contents Legal context Background to the dispute Procedure and forms of order sought Law The first plea, alleging infringement of acquired rights and infringement of the principles of legal certainty and of the protection of legitimate expectations The first part, alleging infringement of the applicants’ acquired rights – The right to the additional pension at age 60 – The right to the early additional pension as from the age of 50 and the right to payment of part of the additional pension in the form of a lump sum The second part, alleging infringement of the principles of legal certainty and of the protection of legitimate expectations – The head of claim alleging infringement of the principle of legal certainty – The head of claim alleging infringement of the principle of the protection of legitimate expectations The second plea, alleging infringement of the principles of proportionality and of equal treatment The head of claim alleging infringement of the principle of proportionality – The legitimacy of the objective pursued – The appropriateness of the measures adopted to attain the intended objective – The choice of the least onerous measure The head of claim alleging infringement of the principle of equal treatment The third plea, alleging infringement of Article 29 of the PEAM Rules The fourth plea, alleging a manifest error of assessment The fifth plea, alleging infringement of good faith in the performance of contracts Costs * Language of the cases: French.