Judgment — ECLI:EU:F:2016:159
Date: 2016-07-20
Language of the case: French
Court formation: Third Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases;Action for damages - inadmissible

Summary 1. Actions brought by officials — Acts adversely affecting an official — Meaning — Decision to credit pensionable years adopted following transfer of the capital representing acquired pension rights — Included — Possibility of relying, in support of the challenge, on incompleteness of the information provided by the administration at the time of making the proposal to credit pensionable years (Art. 270 TFEU; Staff Regulations, Art. 90(2) and 91(2), and Annex VIII, Art. 11(2)) 2. Officials — Pensions — Pension rights acquired before entry into the service of the EU — Transfer to the EU scheme — Obligations of the administration — Obligation to take account, in formulating the proposal to credit pensionable years, of the specific consequences for the official concerned — None — Sufficiency of simply inviting the person concerned to contact the administration for further information (Staff Regulations, Art. 77, paras 1 and 4, and Annex VIII, Art. 11(2)) 3. Officials — Non-contractual liability of the institutions — Conditions — Damage — Material damage allegedly caused by the administration’s failure to inform a member of the contract staff that the transfer of his national pension rights to the EU scheme would have no impact on his future pension — Uncertain damage (Art. 336 TFEU and 340 TFEU; Staff Regulations, Art. 77, para. 4, and Annex VIII, Art. 11(2); Conditions of Employment of Other Servants, Art. 110(1), para. 2) 1. A final decision of the authority empowered to conclude contracts of employment crediting pensionable years under the EU pension scheme, following the transfer of pension rights acquired previously by a member of staff under a national pension scheme, constitutes an act adversely affecting that member of staff which he may challenge by means of a complaint under Article 90(2) of the Staff Regulations and, if necessary, an action under Article 270 TFEU and Article 91(2) of the Staff Regulations. In support of such a challenge, it is open to the person concerned to argue, where applicable, that his acceptance of the transfers was vitiated by an alleged lack of information from the authority as to the consequences, in his specific case, of the application of the fourth paragraph of Article 77 of the Staff Regulations, under which the amount of the retirement pension must not be less than 4% of the minimum subsistence figure per year of service. In this regard, although some purely preparatory measures, such as proposals concerning additional pensionable years made by the authority empowered to conclude contracts of employment which purportedly include incomplete information, may adversely affect the person concerned inasmuch as they may influence the content of a subsequent challengeable act, such as a final decision crediting pensionable years, those measures nevertheless cannot be the subject of a separate action and must be challenged in an action brought against that act by contending, where applicable, that the preparatory measure was unlawful. (see paras 67, 68) See: Judgment of 11 July 1968 in Van Eick v Commission, 35/67, EU:C:1968:39, p. 341 Order of 26 November 2003 in Mc Bryan v Commission, T‑96/02, EU:T:2003:314, paras 47 to 52 Judgment of 13 October 2015 in Commission v Cocchi and Falcione, T‑103/13 P, EU:T:2015:777, para. 88 Judgment of 23 November 2010 in Marcuccio v Commission, F‑65/09, EU:F:2010:149, para. 42 2. In relation to the transfer of pension rights, the consent of the member of staff to such a transfer must be informed by the proposal to credit pensionable years made by the appointing authority or the authority empowered to conclude contracts of employment on the basis of the provisional capital value stated by the national body responsible for the pensions in question. In this regard, it cannot reasonably be expected of a diligent administration dealing with hundreds of requests for transfers of pension rights that, in formulating every such proposal, it anticipates the consequences for the individual officials and other members of staff concerned of transferring their respective pension rights. In those circumstances, the authority complies with its duty to have regard for the welfare of officials and other members of staff, and with the principle of sound administration, where, within the proposals to credit pensionable years in question, it invites the persons concerned to contact it for an explanation of the calculation and to discuss whether or not a transfer would be beneficial for them. Accordingly, where the persons concerned have requested a transfer of their respective national pension rights to the EU pension scheme, and subsequently confirmed those requests, without first thinking fit to contact the administration for information relevant to their respective decisions, they cannot criticise the authority empowered to conclude contracts of employment for not providing them with sufficient information in that regard, nor argue that their acceptance of the respective proposals to credit pensionable years was vitiated. Furthermore, any official or other member of staff of normal diligence is deemed to be familiar with the Staff Regulations and more particularly the rules governing his salary or retirement pension. In this regard, it is true that the normal diligence that may be expected of an official or other member of staff is to be assessed in the light of his training, grade and professional experience. However, the wording of Article 77 of the Staff Regulations is relatively clear, in both the first and fourth paragraphs, and should thus, at the very least, have prompted those concerned to raise the issue with the administration. (see paras 73-78) See: Judgments of 10 February 1994 in White v Commission, T‑107/92, EU:T:1994:17, para. 47, and 5 November 2002 in Ronsse v Commission, T‑205/01, EU:T:2002:269, para. 52 Judgment of 3 October 2015 in Commission v Verile and Gjergji, T‑104/14 P, EU:T:2015:776, para. 49 Judgment of 12 March 2014 in CR v Parliament, F‑128/12, EU:F:2014:38, para. 45 and the case-law cited; Order of 20 March 2014 in Michel v Commission, F‑44/13, EU:F:2014:40, para. 53, and judgment of 19 November 2014 in EH v Commission, F‑42/14, EU:F:2014:250, para. 106 and case-law cited 3. In relation to the non-contractual liability of the Union and as to the requirement concerning damage, where the damage alleged by the applicant is material, he must, if he is to obtain compensation, go on to prove that it is real and certain, since, in principle, compensation is not available for damage which is future and hypothetical. That requirement is not met in the case of damage resulting from the alleged failure of the administration to inform a member of the contract staff that the pensionable years obtained by transferring his national pension rights to the European Union pension scheme would have no impact on the amount of his future pension, as a result of the fourth paragraph of Article 77 of the Staff Regulations. First, the person concerned remains able to pursue his career within the institution and, accordingly, it is not inconceivable that he may subsequently take up a post as a member of the temporary staff or an official, a category of post which would make it possible, under the second paragraph of Article 110(1) of the Conditions of Employment of Other Servants, for his future retirement pension, a maximum of 70% of final basic salary, to rise above the amount resulting from the application of the fourth paragraph of Article 77 of the Staff Regulations. In such a situation, it could not be said that any damage had been caused to him by reason of his decision to transfer the pension rights he had acquired under a national pension scheme. Secondly, it is not certain that, when the person concerned has attained the legal retirement age, the effect and applicability of the rule contained in the fourth paragraph of Article 77 of the Staff Regulations will be the same as they are now, bearing in mind that the EU legislature may, at any time, alter the rights and obligations of officials and other members of staff of the Union by means of regulations, adopted under Article 336 TFEU, making amendments to the Staff Regulations and the Conditions of Employment of Other Servants, which, unless otherwise provided, will govern the future consequences of situations which arose under the previous legislation. (see paras 80-83) See: Judgments of 21 February 2008 in Commission v Girardot, C‑348/06 P, EU:C:2008:107, para. 54, and 22 December 2008 in Centeno Mediavilla and Others v Commission, C‑443/07 P, EU:C:2008:767, paras 60 and 61 Judgment of 26 May 1998 in Bieber v Parliament, T‑205/96, EU:T:1998:110, and order of 24 April 2001 in Pierard v Commission, T‑172/00, EU:T:2001:123, para. 38 Judgment of 22 May 2012 in Evropaïki Dynamiki v Commission, T‑17/09, EU:T:2012:243, para. 123 and the case-law cited Order of 23 April 2015 in Bensai v Commission, F‑131/14, EU:F:2015:34, para. 40, and judgment of 19 May 2015 in Brune v Commission, F‑59/14, EU:F:2015:50, para. 76