ORDER OF THE GENERAL COURT (Eighth Chamber)
24 April 2017 (*)
(Action for annulment and compensation — Civil service — Officials — Pensions — Transfer of national pension rights — Calculation of years of pensionable service — Article 90(2) of the Staff Regulations — Time-limit — Inadmissibility)
In Case T‑618/16,
Sandra Dreimane, official at the Court of Auditors of the European Union, residing in Luxembourg (Luxembourg), represented by J. Ābiks, lawyer,
applicant,
v
European Commission, represented by G. Gattinara and L. Radu Bouyon, acting as Agents,
defendant,
ACTION under Article 270 TFEU seeking, first, annulment of the Commission decision fixing the number of additional pensionable years to be taken into account in the pension scheme of the EU institutions following the applicant’s request to transfer pension rights acquired before she entered the service of the European Union, and, second, compensation for the damage allegedly suffered by the applicant as a result of the Commission’s failure to act within a reasonable period in the processing of that transfer request,
THE GENERAL COURT (Eighth Chamber),
composed of A. M. Collins (Rapporteur), President, M. Kancheva and J. Passer, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1        The applicant, Ms Sandra Dreimane, a Latvian national, is an official of the Court of Auditors of the European Union.
2        Pursuant to Article 11(2) and (3) of Annex VIII to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), the applicant, on 31 May 2010, made a request to transfer the pension rights which she had acquired in Latvia with the Valsts sociālās apdrošināšanas aģentūra (State Social Insurance Agency) (‘the VSAA’) to the pension scheme of the EU institutions (‘the PSEUI’).
3        On 13 September 2013, as no action had been taken on her request to transfer the pension rights, the applicant sent an email to the Commission’s Office for the administration and payment of individual entitlements (PMO) in order to obtain information on the processing of that request.
4        By email of 17 September 2013, the PMO replied to the applicant, stating that the requests to transfer pension rights that it had received after 31 December 2008 had been ‘frozen’ until 1 April 2009, the date on which the new general implementing provisions entered into force. The PMO stated that as it had received and ‘accumulated’ more than 11 000 new transfer requests on the latter date, it had decided to treat them according to the principle of ‘first in — first out’ and to give priority to those from persons who were close to retirement age. It stated that the applicant was not part of the ‘first priority group’, that her request would be dealt with as soon as possible and that, in any event, account would be taken of all the parameters required for calculating the number of pension annuities on the date on which she had submitted that request, namely 2 June 2010.
5        By email of 14 March 2014, the PMO confirmed to the applicant that her request to transfer pension rights was admissible and informed her that it would ask the VSAA to provide it with the information necessary for the provisional calculation to credit additional pensionable years to her pension rights.
6        By letter of 22 May 2014, the VSAA provided the applicant with the calculation of the capital representing the pensionable rights on the date of her transfer request, namely 2 June 2010. In its letter, the VSAA stated that, following receipt of the final request from the EU institution concerning the transfer of the pension rights, it was required to revise the pension rights established within the compulsory national scheme for uncapitalised pension rights up to the month in which the final application from the EU institution had been received, taking into account the salary indices for insurance contributions. The index is calculated on an annual basis. If it is less than ‘1’, the adjustment is likely to reduce the amount of the uncapitalised pension rights. The VSAA pointed out that, since 2009, the index had been less than ‘1’, which meant that the adjustment would necessarily lead to a depreciation of the uncapitalised part of the pension rights, with the result that, if the EU institutions’ final application was received in 2014, the amount of uncapitalised pension rights would be reduced by around 9%.
7        On 29 July 2014 the applicant agreed to the VSAA’s proposal by countersigning the form provided for that purpose, in which the capital representing her pension rights was fixed at EUR 171 286.36. By letter of 4 August 2014 the VSAA sent that form to the PMO.
8        On 29 September 2014, the PMO sent to the applicant an information note containing the provisional calculation of the number of annuities that could be recognised in the PSEUI if she decided to transfer the rights that she had acquired with the VSAA, namely 6 years, 7 months and 5 days of annuities.
9        In its note, the PMO explained that the calculation of the annuities would be adjusted to take into account the transfer completion date and the amount actually paid, less interest (at the rate provided for by the rules in force on the date of registration and/or admissibility of the request) for the period from the date of registration or admissibility of the request to the date of the actual transfer. The PMO stated that the number of annuities could thus be higher or lower than the number indicated in that note.
10      On 29 December 2014, the VSAA transferred to the Commission, in respect of the pension rights acquired by the applicant, an amount of EUR 155 237.25, equivalent to 5 years, 11 months and 24 days of pensionable service.
11      On 9 September 2015 the Commission notified the applicant of its decision definitively fixing the period of pensionable service, resulting from the transfer of her pension rights acquired in Latvia to the PSEUI, at 5 years, 2 months and 25 days.
12      By email of 21 October 2015, the applicant complained to the PMO that she had suffered a loss equivalent to more than one year and four months of her pension rights because the PMO had not acted in good time and had incorrectly deducted interest, calculated on the basis of an interest rate of 3.1% per annum, amounting to EUR 19 281.38 of capital transferred. She requested that the PMO reconsider the calculation of her credited pensionable years in order to correct the alleged error.
13      On 4 November 2015, having received no reply to her email of 21 October 2015, the applicant pursued the matter with the PMO.
14      The PMO responded to the applicant’s request by letter of 6 November 2015, which the applicant claims not to have received until 11 November 2015. The PMO stated that it could not respond favourably to her request, given that the interest rate of 3.1% had been established by Council Regulation (EC, Euratom) No 1324/2008 of 18 December 2008 adjusting, from 1 July 2008, the rate of contribution to the pension scheme of officials and other servants of the European Communities (OJ 2008 L 345, p. 17), as provided for in Article 8 of Annex VIII to the Staff Regulations and applied to any person placed in a situation similar to that of the applicant. The PMO also stated that the VSAA had informed the applicant of the reduction in the amount of her capital between the date of the transfer request and the date of the actual transfer. It also pointed out that the information note containing the provisional calculation stated that, if she confirmed her intention to transfer her rights, the number of annuities finally assigned could be higher or lower than the result of the calculation attached to that note. With regard to the delay in processing the transfer request, the PMO explained that this was due to the files having been put on hold until 28 March 2011, the date on which the new conversion coefficients were published. It stated that, as 10 000 new transfer requests had been made since then, the procedures had been followed according to the principle of ‘first in/first out’. Finally, the PMO informed the applicant of her right to submit a complaint under Article 90(2) of the Staff Regulations.
15      As she was not satisfied with the PMO’s reply, the applicant, by email of 1 December 2015, expressed once again her disagreement with the final calculation of her pension rights, stating that the deduction of interest at the rate of 3.1% represented a double penalty as the financial crisis in Latvia between 2009 and 2015 had already led to a depreciation of pensions. She concluded by stating that she would exercise her right to submit a complaint in accordance with Article 90(2) of the Staff Regulations but that she considered it important to attempt to settle the problem amicably before doing so.
16      By email of 16 December 2015, the PMO repeated its refusal to adjust the final calculation and advised the applicant to submit a complaint pursuant to Article 90(2) of the Staff Regulations.
17      On 3 February 2016, the applicant filed a complaint with the Commission pursuant to Article 90(2) of the Staff Regulations. In her complaint, the applicant repeated the observations contained in her email of 21 October 2015 to the PMO (see paragraph 12 above). She added that her pension rights had been significantly reduced because of the PMO’s failure to act within a reasonable period of time, this being a reason why the PMO was obliged to pay her compensation. She took the view that she had thus suffered material damage amounting to EUR 10 739.28 and non-material damage, provisionally assessed at EUR 1 000.
18      By decision of 25 May 2016, the Commission’s appointing authority (‘the appointing authority’) rejected the complaint. The appointing authority took the view that the complaint was inadmissible as it had been lodged outside the period of three months provided for in Article 90(2) of the Staff Regulations. The appointing authority nevertheless examined the arguments put forward by the applicant and rejected them as being unfounded. As regards the claim for compensation, it found, first, that the condition relating to the illegality of the act had not been satisfied in the present case and, second, that the period between the date of the request to transfer the pension rights and that of the final transfer of those rights could not be considered as unreasonable.
Procedure and forms of order sought
19      By application lodged at the Registry of the General Court on 26 August 2016, the applicant brought the present action under Article 270 TFEU and Article 91 of the Staff Regulations.
20      On 29 September 2016, the Council of the European Union submitted an application to intervene in support of the form of order sought by the Commission.
21      By a separate document lodged at the Court Registry on 10 November 2016, the Commission raised an objection of inadmissibility.
22      On 10 January 2017, the applicant lodged with the Registry her observations on the objection of inadmissibility.
23      The applicant claims that the Court should:
–        annul the decision of 9 September 2015;
–        order the Commission to pay her EUR 10 739.28 as compensation for material damage and at least EUR 1 000 as compensation for non-material damage;
–        order the Commission to pay the costs.
24      The Commission contends that the Court should:
–        dismiss the action as being manifestly inadmissible;
–        order the applicant to pay the costs.
Law
25      Pursuant to Article 130 of the Rules of Procedure of the General Court, the Court may, if the defendant so requests, rule on the question of admissibility without going to the substance of the case. In the present case, the Court considers that it has sufficient information from the documents in the file and has decided to give a decision without taking further steps in the proceedings.
26      According to Article 90(2) of the Staff Regulations, a complaint seeking to challenge a decision of the appointing authority must be lodged within three months from the date of notification of the decision to the person concerned, but in no case later than the date on which the latter received such notification, if the measure affects a specified person.
27      Furthermore, the period of three months for lodging a complaint against an act adversely affecting a person is a matter of public policy and is not subject to the discretion of the parties or the Court, since it was established in order to ensure that legal positions are clear and certain and that there is legal certainty (see order of 7 September 2005, Krahl v Commission, T‑358/03, EU:T:2005:301, paragraph 35 and the case-law cited).
28      Therefore, in order for a complaint to be regarded as having been validly made for the purposes of Article 90(2) of the Staff Regulations, the authority in question must have been in a position to take cognisance of its contents within the prescribed period. Consequently, the date to be taken into consideration for assessing whether a complaint was lodged within the prescribed period is the date on which it was received by the institution concerned (see, to that effect, judgment of 18 December 2008, Lofaro v Commission, T‑293/07 P, EU:T:2008:607, paragraph 35).
29      Under Article 91(2) of the Staff Regulations, an appeal to the Court of Justice of the European Union may be made only if the appointing authority has previously had a complaint submitted to it pursuant to Article 90(2) within the period prescribed therein.
30      Accordingly, Articles 90 and 91 of the Staff Regulations make the admissibility of an action brought by an official against the institution to which he belongs subject to the condition that the prior administrative procedure has been properly carried out (see order of 7 December 1999, Reggimenti v Parliament, T‑108/99, EU:T:1999:310, paragraph 19 and the case-law cited).
31      Furthermore, it is settled case-law that only acts producing binding legal effects which directly and immediately affect the interested person’s legal situation, by significantly altering that situation, can be regarded as adversely affecting that person (see judgment of 13 October 2015, Commission v Verile and Gjergji, T‑104/14 P, EU:T:2015:776, paragraph 28 and the case-law cited).
32      The decision notified to the applicant on 9 September 2015 definitively fixed the number of pensionable years resulting from the transfer to the PSEUI of the pension rights which she had acquired in Latvia. It must be held that that is the act adversely affecting the applicant within the meaning of Article 90(2) of the Staff Regulations (judgment of 13 October 2015, Commission v Cocchi and Falcione, T‑103/13 P, EU:T:2015:777, paragraph 66).
33      The Commission takes the view that that act should have been the subject of an administrative complaint made within the period of three months provided for in Article 90(2) of the Staff Regulations, that is to say, no later than 9 December 2015. However, as the applicant did not lodge her complaint until 3 February 2016, that is to say, after the expiry of the prescribed period, that action is manifestly inadmissible.
34      The Commission submits that the exchanges between the PMO and the applicant after 9 September 2015 are based on the premise that the act adversely affecting the applicant’s rights is the decision notified on 9 September 2015. The PMO’s email of 6 November 2015, in the Commission’s view, thus constitutes merely a reply to two requests for clarification made by the applicant, dated 21 October and 4 November 2015 respectively.
35      The applicant claims that the calculation which the Commission sent to her on 9 September 2015 did not provide sufficient information to make it possible to ascertain whether or not that act was well founded or to assess its legality. In particular, that calculation did not provide an explanation for the amount deducted. Since, according to the applicant, it was not until 6 November 2015 that the Commission gave sufficient reasons for its decision, the complaint was lodged within the period of three months laid down in Article 90(2) of the Staff Regulations, namely before 6 February 2016.
36      According to settled case-law, the obligation to state reasons constitutes an essential principle of EU law which may be derogated from only for compelling reasons (see judgment of 3 October 2006, Nijs v Court of Auditors, T‑171/05, EU:T:2006:288, paragraph 36 and the case-law cited). Its purpose is, first, to enable the person concerned to determine whether or not the act adversely affecting him is justified and to consider whether it is appropriate to institute proceedings and, second, to make it possible for that act to be made subject to judicial review.
37      In the present case, the information note of 29 September 2014 and the decision notified on 9 September 2015 show that the interest rate of 3.1% came from an administrative note. In addition, on page 2 of that information note, the PMO draws the attention of the addressee to the fact that the calculation of the years of pensionable service attached to it would be reduced by interest ‘at the rate provided for in Article 8 of Annex VIII to the Staff Regulations in force at the date of registration and/or admissibility of [her] request’.
38      Consequently, the PMO’s reply of 6 November 2015, which the applicant considers to be the first document containing the grounds for the PMO’s decision, adds nothing new to the reasoning of the decision of 9 September 2015. Furthermore, as from 22 May 2014, the applicant was informed by the VSAA of the fact that the amount of the uncapitalised pension rights would be reduced (see paragraph 10 above). It cannot therefore be argued that the applicant was not in a position to challenge the merits of the decision of 9 September 2015. The fact, noted in the applicant’s observations on the plea of inadmissibility, that she is not a lawyer and was not obliged to be represented by a lawyer during the administrative procedure has no bearing in this respect.
39      In those circumstances, it must be concluded that the decision of 9 September 2015 is indeed the act which adversely affects the applicant, that that act was sufficiently reasoned and, therefore, that the complaint was lodged out of time. It follows from the foregoing that the action must be dismissed as being inadmissible, as the administrative appeal, including both the action for annulment and the action for compensation for the damage suffered, was lodged after the expiry of the three-month period laid down by Article 90(2) of the Staff Regulations.
40      In those circumstances, there is no need to rule on the Council’s application to intervene.
Costs
41      Under Article 134(1) of the Rules of Procedure, 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, she must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby orders:
1.      The action is dismissed as being inadmissible.
2.      There is no need to rule on the application to intervene submitted by the Council of the European Union.
3.      Ms Sandra Dreimane shall bear her own costs and also pay those incurred by the European Commission.
Luxembourg, 24 April 2017.
E. Coulon
A.M. Collins
Registrar
President
*      Language of the case: English.