Judgment — ECLI:EU:T:2011:600
Date: 2011-10-18
Language of the case: French
Court formation: Fourth Chamber
Subject matter: Provisions governing the Institutions
Procedure: Action for annulment - unfounded
Origin: United Kingdom

summary of that report reads as follows: ‘The conversion factors used for a lump-sum payment, compared to the corresponding conversion factors given by the UK tables rated down by 4, are almost neutral. If a member chooses a lump-sum payment at the retirement age, it does not contribute to any deficit in the funding and would not affect the contribution rate paid by the European Parliament and its members.’ 103 In this regard, it must be pointed out that that study was completed in November 2007 on the basis of data updated on 30 June 2007. As is expressly stated in the study, it is based on assumptions which, in all likelihood, differ from the actual future trend. By way of example, the authors of the study take as the starting point the assumption, based on a forward projection of the trend prior to 30 June 2007, that the assets of the fund will produce an annual return of 6.99%. However, as is clear from the table reproduced in paragraph 96 above, the trend in the value of the assets was negative throughout the period from 30 June 2007 to 28 February 2009, such that the assumptions made regarding the return were proved to be false by the actual trend. 104 Accordingly, the findings of the actuarial study, based on clearly out‑of-date data and on assumptions which had been proved incorrect as at 1 April 2009, are of no relevance to the financial position of the additional pension fund when the Bureau’s decision of that same date was adopted. In particular, they are incapable of casting doubt on the provisional calculations made in February 2009 in the light of the financial situation as it stood at that time. 105 The argument based on the opinion expressed by the authors of the actuarial study must therefore be rejected. 106 In the second place, in the course of the hearing the applicant submitted the minutes of a meeting of the SICAV board of directors held on 3 December 2008. Point 10 of those minutes, entitled ‘Investment Committee Report’, states the following: ‘It was reported and noted that after the European elections in June 2009 the Fund would be required to pay out around [EUR] 6 to €7 million in capital pension payments to new pensioners of the scheme. Consequently, [the fund-managing bank] would need available sufficient liquid assets within the Fund to meet these capital calls in August 2009.’ 107 In the view of the applicant, it is clear from that passage that, from that date onwards, provisions had been adopted to ensure that sufficient liquidity was available in August 2009 to meet the applications for lump-sum payments which could be expected from the new pensioners who were members of the additional pension scheme. 108 However, as the Parliament rightly pointed out at the hearing and in its observations of 8 April 2011, the passage cited in paragraph 106 above merely demonstrates that it was necessary to make available additional liquidity to enable the pension fund to meet the foreseeable applications for payment in the form of a lump sum in August 2009 and that securities were going to have to be sold off to that end. Indeed, if the situation had been otherwise, it would not have been necessary to highlight the need to adopt provisions in that regard. By contrast, that passage does not show that the abolition of the possibility of requesting payment of part of the pension in the form of a lump sum was unlikely to save the pension fund from having to sell off securities on unfavourable terms in 2009. 109 The argument based on the minutes of the meeting of the SICAV board of directors held on 3 December 2008 must therefore be rejected, without it being necessary to rule on the admissibility of this item of evidence. 110 In the third place, the applicant claims that the value of the pension fund’s liquid resources was approximately EUR 8 000 000 on 28 February 2009, and not approximately EUR 5 000 000 as the Parliament claims (see paragraph 98 above). In this connection, firstly, in the course of the hearing he submitted the full version of the report on the value of the pension fund’s assets as at 28 February 2009 (‘the 02/2009 report’), which includes the cash reports provided by the Parliament (see paragraph 98 above). In his view, the 02/2009 report indicates that the SICAV held liquid assets of EUR 6 921 988 rather than the EUR 3 869 848.69 stated in the report presented by the Parliament. Secondly, the applicant enclosed as an annex to his observations of 25 May 2011 an exchange of emails dating from March 2011. The first email was sent on 30 March 2011 by a member of the investment committee of the pension fund to the pension fund administrator and contains, inter alia, the following passage: ‘The total cash level at the end of February 2009 was approximately EUR 8 [million]: Cash SICAV 6 885 045 EUR (including 3 869 848 EUR (page 11 of the 2009 02 27 NAV package)) Cash ASBL 1 172 163 EUR.’ 111 In this regard, firstly, with regard to the applicant’s argument that the amount of EUR 6 921 988 stated at the end of the ‘CASH amount’ line in the table entitled ‘Asset distribution’ contained in the 02/2009 report should be taken into account in order to calculate the liquid resources of the SICAV, it must be held that, as the Parliament observed at the hearing, that figure clearly does not refer to the resources immediately available to the SICAV but to amounts which it held in different currencies in investment accounts and which were therefore not immediately available in their entirety without costs being incurred. Indeed, if the situation had been otherwise, the inclusion of those amounts in the cash report of the SICAV, which forms part of the 02/2009 report, would have to have been expected. On the contrary, the view must therefore be taken that the sum of EUR 3 869 848.69 stated in the cash report of the SICAV is included within the sum of EUR 6 921 988 stated at the end of the ‘CASH amount’ line in the table entitled ‘Asset distribution’. 112 Secondly, although the value of the liquid resources of the ASBL stated in the email of 30 March 2011 and cited in paragraph 110 above – the amount of EUR 1 172 163 – corresponds to the amount stated in the 02/2009 report, the amount of EUR 6 885 045 stated in relation to the liquid resources of the SICAV does not correspond to any of the data contained in the 02/2009 report. Since the parties have not disputed the substantive accuracy of the figures contained in the 02/2009 report, as produced by the applicant at the hearing, and in the absence of any explanation by the applicant as to the basis of calculation of the amount of EUR 6 885 045 or the reason why that figure should take precedence over the data contained in the 02/2009 report, the information contained in that email is not capable of calling into question the findings made in paragraph 98 above regarding the value of the liquid resources of the pension fund as at 28 February 2009. 113 Thirdly, it must be held that, contrary to the claims made by the applicant in his observations of 25 May 2011, both the amount of the contributions paid by the Parliament for the month of February 2009 and that of the contributions of members of the pension fund for that month are included under the heading ‘Contributions’ in the cash report of the ASBL, which forms part of the 02/2009 report. 114 The arguments based on the 02/2009 report and the information provided by the applicant in an annex to his observations of 25 May 2011 must therefore be rejected, without it being necessary to rule on the admissibility of that report and that information as evidence. – The choice of the least onerous measure 115 With regard, finally, to the choice of the least onerous measure, the applicant submits that it is disproportionate to abolish any possibility for the members of the additional pension scheme to obtain part of their pension in the form of a lump sum, whereas provision could perhaps have been made to limit the percentage of the pension capable of being received early or as a lump sum. 116 It must be pointed out in this regard that the approximate calculations contained in paragraph 98 above assume that each of the 105 former Members who belonged to the additional pension scheme and who were liable to apply to receive their pension in the second half of 2009 would opt to receive the maximum amount of their pension, that is 25%, in the form of a lump sum. It is therefore the case that those figures represent the worst‑case scenario and that it was possible that the actual expenditure by the fund in the second half of 2009 would be lower. However, that scenario could by no means be ruled out. In addition, given the economic position of the pension fund as described above, a prudent measure which maintained the maximum short‑term liquidity of the fund was required. This is all the more true if account is taken of the fact, as pointed out in paragraph 100 above, that the measures adopted were in fact insufficient to attain three of their four intended objectives and, in particular, the second objective of avoiding any financial impact on European taxpayers. In this context, it must be borne in mind that the abolition of the option of payment in the form of a lump sum was neutral from an actuarial perspective. By contrast, other measures which could have been envisaged, such as a reduction in the pensions or an increase in the contributions, which would certainly have been much more likely to promote or even attain the other three objectives, would have entailed a fall in the actuarial value of the pensions which the pension scheme members could expect. Accordingly, the abolition of the special methods of payment and, in particular, of the possibility of paying part of the pension in the form of a lump sum was the least onerous measure for the members of the additional pension scheme. 117 It follows from the foregoing that the abolition of the possibility of paying the pension in part in the form of a lump sum was consistent with the principle of proportionality. 118 The second plea in law must therefore be rejected. The third plea in law, alleging a breach of Article 29 of the PEAM Rules 119 The applicant claims that the Bureau breached 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 adopting the decision of 1 April 2009. 120 As a preliminary point, it is necessary to recall Article 29 of the PEAM Rules, which states that ‘[i]n accordance with the instructions issued by the President, the Quaestors and the Secretary-General shall be responsible for [the] interpretation and proper implementation [of the PEAM Rules]’. 121 It is clear from its wording that Article 29 is concerned simply with the interpretation and implementation of the PEAM Rules and not their amendment. Furthermore, as has been pointed out in paragraph 64 above, the Bureau was competent to amend the PEAM Rules. 122 In addition, it must be observed that, as is clear from the note from the Secretary-General of the Parliament of 1 April 2009, the decision of 1 April 2009 was adopted by the Bureau on the proposal of the Secretary-General, and that, pursuant to Rule 21(2) of the Rules of Procedure of the Parliament in the version applicable to the facts of the present case, the Quaestors are to attend meetings of the Bureau in an advisory capacity. 123 The third plea in law put forward by the applicant must therefore be rejected. The fourth plea in law, alleging a breach of the principle of good faith in the implementation of contracts 124 On the basis of the existence of a contractual relationship between himself and the Parliament, the applicant claims that the Bureau’s decisions of 9 March and 1 April 2009 are not only potestative but also equivalent to a breach of contract. He adds that, despite the contractual origin of his rights, the Court remains competent to assess the legality of the contested decision, which may be separated from the contract between him and the Parliament. 125 This plea in law is based on the assumption that the relationship between the applicant and the Parliament is contractual in nature. However, as is clear from paragraphs 58 to 61 above, that relationship is a relationship governed by the statutes which bind the applicant and the Parliament and therefore falls within the rights conferred by public law on the Parliament so that it is able to perform the tasks entrusted to it by the Treaties. 126 The fourth plea in law must therefore be rejected. 127 Since all the pleas in law advanced by the applicant in support of his plea of illegality brought against the Bureau’s decision of 1 April 2009 have been rejected, the plea of illegality must be rejected. It follows that the decision of 1 April 2009 formed a valid basis for the contested decision. Accordingly, in accordance with the findings made in paragraph 30 above, the action must be dismissed in its entirety. Costs 128 Under Article 87(2) of the Rules of Procedure of the 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 applicant has been unsuccessful, and the Parliament has applied for costs, he must be ordered to pay the costs. On those grounds, THE GENERAL COURT (Fourth Chamber) hereby: 1. Dismisses the action; 2. Orders John Robert Purvis to pay the costs. Pelikánová Jürimäe Van der Woude Delivered in open court in Luxembourg on 18 October 2011. [Signatures] Table of contents Legal context Background to the dispute Procedure and forms of order sought Law 1. The conclusions to be drawn from the present judgment 2. Substance The wording of the pleas in law and the plea of illegality The scope of the plea of illegality The first plea in law The first limb, alleging infringement of acquired rights The second limb, alleging infringement of the principles of legal certainty and of the protection of legitimate expectations – The complaint alleging infringement of the principle of legal certainty – The complaint alleging infringement of the principle of the protection of legitimate expectations The second plea in law, alleging infringement of the principles of equal treatment and of proportionality The complaint alleging infringement of the principle of equal treatment The complaint 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 third plea in law, alleging a breach of Article 29 of the PEAM Rules The fourth plea in law, alleging a breach of the principle of good faith in the implementation of contracts Costs NaN – . Language of the case: French.