JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
28 September 2022 (*)
(Civil service – Officials – Retirement pension – Transfer of national pension rights – Condition requiring acquisition before entry into the service of the European Union – Recognition by the national authority of a period after entry into the service of the European Union)
In Case T‑663/21,
Tanja Zegers, residing in Hoeilaart (Belgium), represented by C. Bernard-Glanz, lawyer,
applicant,
v
European Commission, represented by B. Mongin and M. Brauhoff, acting as Agents,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed, at the time of the deliberations, of S. Gervasoni (Rapporteur), President, R. Frendo and J. Martín y Pérez de Nanclares, Judges,
Registrar: E. Coulon,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1        By her action based on Article 270 TFEU, the applicant, Ms Tanja Zegers, seeks annulment of the European Commission’s decision of 3 December 2020, by which the Commission rejected her request for transfer to the European Union of pension rights she had acquired in the Netherlands (‘the contested decision’).
Background to the dispute
2        From 1 July 1992 to 31 December 2010 (‘the period before entry into the service of the European Union’), the applicant worked in universities and research institutes in the Netherlands. During that period, she acquired pension rights with the Algemeen Burgerlijk Pensioen-Fonds (ABP; public service employees’ pension fund, the Netherlands).
3        On 1 January 2011, the applicant began working for the Commission as a member of the contract staff, and she then worked as a member of the temporary staff, until 31 May 2020. She was appointed as an official on 1 June 2020.
4        On 17 August 2015, the applicant sent an initial application to the Commission’s Office for the Administration and Payment of Individual Entitlements (the Paymaster Office (PMO)) for the transfer of the pension rights she had acquired with the ABP to the EU pension scheme, in accordance with Article 11(2) of Annex VIII to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).
5        On 20 October 2015, the ABP informed the PMO of the value of the applicant’s transferable capital.
6        By letter of 22 February 2016, the PMO sent the applicant a provisional calculation of the number of additional years to be recognised in the EU pension scheme.
7        The applicant did not act upon the letter of 22 February 2016.
8        On 1 September 2017, the applicant submitted a request to the PMO for information, for the purposes of a new application to have the pension rights she had accrued with the ABP transferred to the EU pension scheme, stating that she had worked from 1 July 1992 to 31 January 2015 for a Netherlands university and research centre.
9        That new request for the transfer of pension rights gave rise to various exchanges between the ABP and the PMO.
10      In particular, on 16 February 2018, the PMO asked the ABP for a valuation of the applicant’s transferable capital relating only to the period before entry into the service of the European Union. It repeated that request on 23 November 2018.
11      On 29 November 2018, the ABP provided the PMO with a new valuation of the applicant’s transferable capital. That valuation related to the period of contribution from 1 July 1992 to 1 February 2015.
12      On 13 December 2018, the PMO again asked the ABP to provide it with information to enable it to make a provisional calculation relating only to the period prior to the applicant’s entry into the service of the European Union.
13      By an email of 8 January 2019, the ABP replied to the PMO that it was not possible to provide a valuation of the transferable capital for the period before entry into the service of the European Union, as the applicant had paid contributions for the purposes of those rights until 1 February 2015.
14      Following a new request by the PMO on 9 January 2019, the ABP confirmed, on 21 April 2020, that it was unable to provide the valuation requested.
15      On 10 June 2020, the PMO requested a telephone discussion with the ABP. It asked the ABP whether the applicant had paid any contributions between 2011 and 2015 and, if so, whether it was really not possible to deduct the corresponding amount from the transfer.
16      By decision of 18 June 2020, the Commission rejected the applicant’s request for transfer of the pension rights she had acquired with the ABP to the EU pension scheme, on the following ground:
‘Pension rights granted by this type of plan are not exclusively related to the exercise of a profession. Accordingly, the statutory provisions regarding the transfer do not apply to it.’
17      On 14 September 2020, the applicant lodged a complaint with the Commission, by which she challenged the decision of 18 June 2020. She stated that the pension rights she had acquired with the ABP had been accrued in the exercise of a profession. In addition, she claimed that the provisional calculation provided on 22 February 2016 had given rise to legitimate expectations on her part.
18      After receiving the applicant’s complaint, the Commission considered that the statement of reasons provided in the decision of 18 June 2020 was incorrect.
19      On 3 December 2020, the Commission adopted the contested decision, cancelling and replacing the decision of 18 June 2020. By the contested decision, the Commission rejected the applicant’s request for transfer on the ground that ‘Article 11 paragraph 2 of Annex VIII to the Staff Regulations only foresees the transfer of the rights acquired before entry into service …’.
20      The Commission enclosed with the contested decision the email sent by the ABP to the PMO on 8 January 2019. That email states as follows:
‘You indicate in your email of 13 December 2018 that you would like a new notification with the transferable capital relating to pension rights for the period 1 July 1992 to 31 December 2010. Unfortunately, this is not possible because, with ABP, the participation ends on 1 February 2015. The declaration you received on 4 January 2018 is therefore the declaration of the transfer value at this point in time.’
21      On 1 March 2021, the applicant lodged a complaint against the contested decision. She asked the appointing authority of the Commission, first, to withdraw that decision and, secondly, to provide a provisional calculation of the rights to which she would be entitled under the EU pension scheme by virtue of a transfer of the pension rights acquired with the ABP in respect of the period before entry into the service of the European Union.
22      In support of her complaint, the applicant claimed that, while the period from 1 January 2011 to 31 January 2015 could not be taken into account for the purposes of the transfer, the Commission had infringed Article 11(2) of Annex VIII to the Staff Regulations by failing to take account of the period before entry into the service of the European Union. She also submitted that the Commission had infringed the principle of the protection of legitimate expectations, in view of the provisional calculation provided on 22 February 2016.
23      On 1 July 2021, the Commission rejected the applicant’s complaint (‘the decision rejecting the complaint’). It considered that, since the ABP was unable to provide a calculation of the transferable capital for the period before entry into the service of the European Union, the Commission could not proceed with the transfer of the capital value that had been communicated to it on 4 January 2018. It stated that the PMO was not able to distinguish between the period before entry into the service of the European Union and the period after that entry into service in terms of transferable capital and was not competent to do so, since the national authority had exclusive competence to determine the value of pension rights acquired in a national scheme. It added that the PMO had made numerous enquiries and provided clear explanations to the ABP regarding the applicable rules and the necessity of obtaining a calculation limited to the period before entry into the service of the European Union. It considered that the conditions required for application of the principle of the protection of legitimate expectations were not satisfied, given that the provisional calculation communicated on 22 February 2016 was indicative and, in any event, incorrect and contrary to Article 11(2) of Annex VIII to the Staff Regulations.
Forms of order sought
24      The applicant claims that the Court should:
–        annul the contested decision and, so far as necessary, the decision rejecting the complaint;
–        order the Commission to pay the costs.
25      The Commission contends that the Court should:
–        dismiss the application;
–        order the applicant to pay the costs.
Law
Subject matter of the action
26      It is apparent from the claim for annulment that the applicant is asking the Court to annul not only the contested decision but also, so far as necessary, the decision rejecting the complaint.
27      According to settled case-law, a claim for annulment formally directed against the decision rejecting a complaint has the effect of bringing before the Court the act against which the complaint was submitted, where that claim, as such, lacks any independent content (judgment of 13 July 2018, Curto v Parliament, T‑275/17, EU:T:2018:479, paragraph 63; see also, to that effect, judgment of 6 April 2006, Camós Grau v Commission, T‑309/03, EU:T:2006:110, paragraph 43).
28      In the present case, given that the decision rejecting the complaint merely confirms the contested decision while specifying the reasons for that decision, it must be held that the claim for annulment of the decision rejecting the complaint lacks any independent content and that there is therefore no need to rule on that claim specifically. However, when examining the legality of the contested decision, it is necessary to take into consideration the statement of reasons contained in the decision rejecting the complaint, since that statement of reasons is deemed to be the same as that of the contested decision (see, to that effect, judgment of 30 April 2019, Wattiau v Parliament, T‑737/17, EU:T:2019:273, paragraph 43 and the case-law cited).
Substance of the action
29      In support of her application, the applicant states that she is raising a single plea in law, alleging an error of assessment, infringement of Article 11(2) of Annex VIII to the Staff Regulations and contravention of the maxim nemo auditur propriam turpitudinem allegans, according to which no person may take advantage of his or her own misconduct.
30      However, given that the question of whether the Commission infringed Article 11(2) of Annex VIII to the Staff Regulations differs, in law, from the question of whether the Commission could take improper advantage from its unlawful action, in breach of the maxim nemo auditur propriam turpitudinem allegans, it must be held that the applicant raises, in essence, two pleas in law, the first alleging infringement of Article 11(2) of Annex VIII to the Staff Regulations and the second alleging a breach of such a maxim.
The first plea in law, alleging infringement of Article 11(2) of Annex VIII to the Staff Regulations
31      The applicant claims that the Commission erred in its assessment of the facts and infringed Article 11(2) of Annex VIII to the Staff Regulations. She states that she accrued pension rights with the ABP from 1 July 1992 to 31 January 2015. Although she acknowledges that the period from 1 January 2011 to 31 January 2015 was subsequent to entry into the service of the European Union, she points out that the period from 1 July 1992 to 31 December 2010 precedes that entry into service.
32      On the basis of that distinction, the applicant submits that she is entitled to have the pension rights she accrued with the ABP during the period before entry into the service of the European Union transferred to the EU pension scheme. She considers that the ABP is refusing to provide the calculation relating to that period, in breach of Article 11(2) of Annex VIII to the Staff Regulations. According to the applicant, by rejecting her request without making any distinction between the period before entry into the service of the European Union and the period from 1 January 2011 to 31 January 2015, the Commission ignored 18 years and 6 months of transferable pension rights and infringed Article 11(2) of Annex VIII to the Staff Regulations. The applicant claims that, contrary to the Commission’s contention, it is not apparent from settled case-law that the PMO cannot overcome the ABP’s refusal to provide it with the information required.
33      The Commission submits that the plea is not supported by any argument at the application stage and that it is, in any event, unfounded.
–       Admissibility of the plea
34      According to the Commission, the plea in the application alleging infringement of Article 11(2) of Annex VIII to the Staff Regulations is not supported by any argument or consideration whatsoever in the application and is therefore inadmissible.
35      It is apparent from the terms of the application (paragraphs 14, 16, 22 and 26) that the applicant is alleging infringement of Article 11(2) of Annex VIII to the Staff Regulations.
36      Assuming that, by arguing that the action is devoid of argument as regards infringement of Article 11(2) of Annex VIII to the Staff Regulations, the Commission sought to maintain that the action did not meet the requirements of Article 76(d) of the Rules of Procedure of the General Court, the following observations should be made.
37      Under Article 76(d) of the Rules of Procedure, an application must contain, inter alia, a summary of the pleas in law relied on. Indeed it is necessary, for an action to be admissible, that the basic matters of fact and law relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (see judgment of 3 March 2022, WV v EEAS, C‑162/20 P, EU:C:2022:153, paragraph 68 and the case-law cited).
38      In the present case, it is apparent from paragraphs 16 and 26 of the application that the applicant explains why, in her view, the Commission erred in its assessment of the facts and infringed Article 11(2) of Annex VIII to the Staff Regulations. In particular, according to the applicant, in rejecting her transfer request without making a distinction between the period before entry into the service of the European Union and the subsequent period, from 1 January 2011 to 31 January 2015, the Commission ignored 18 years and 6 months of transferable pension rights and, therefore, infringed the article in question.
39      In support of her plea, the applicant cites, first, the decision rejecting the complaint and, secondly, the email of 8 January 2019 annexed to the contested decision, in which the ABP informed the Commission that it was not possible for it to calculate the transferable capital for the period before entry into the service of the European Union.
40      Accordingly, the application contains, albeit succinctly but sufficiently precisely and intelligibly, in accordance with Article 76(d) of the Rules of Procedure, a summary of the plea alleging infringement of Article 11(2) of Annex VIII to the Staff Regulations.
41      The first plea is therefore admissible.
–       Merits of the plea
42      Article 11(2) of Annex VIII to the Staff Regulations provides as follows:
‘An official who enters the service of the Union after:
–        leaving the service of a government administration or of a national or international organisation; or
–        pursuing an activity in an employed or self-employed capacity;
shall be entitled, after establishment but before becoming eligible for payment of a retirement pension within the meaning of Article 77 of the Staff Regulations, to have paid to the Union the capital value, updated to the date of the actual transfer, of pension rights acquired by virtue of such service or activities.
In such case the appointing authority of the institution in which the official serves shall, taking into account the official’s basic salary, age and exchange rate at the date of application for a transfer, determine by means of general implementing provisions the number of years of pensionable service with which he shall be credited under the Union pension scheme in respect of the former period of service, on the basis of the capital transferred, after deducting an amount representing capital appreciation between the date of the application for a transfer and the actual date of the transfer.’
43      The system for the transfer of pension rights, as provided for in Article 11(2) of Annex VIII to the Staff Regulations, by enabling coordination between the national schemes and the EU pension scheme, is intended to facilitate movement from national employment, whether public or private, to the EU administration and thus ensure that the European Union has the best possible chance of being able to choose qualified staff who already possess suitable experience (judgment of 20 October 1981, Commission v Belgium, 137/80, EU:C:1981:237, paragraph 11).
44      The entitlement referred to in Article 11(2) of Annex VIII to the Staff Regulations is intended to confer upon officials a right which they may freely exercise (judgment of 20 October 1981, Commission v Belgium, 137/80, EU:C:1981:237, paragraph 13).
45      Under Article 6(1) of the Commission Decision of 3 March 2011 on the general implementing provisions for Articles 11 and 12 of Annex VIII to the Staff Regulations on the transfer of pension rights, ‘without prejudice to the second subparagraph of Article 5(1), any amount to be transferred, owed to staff members from their previous pension scheme, must be certified as being the updated capital value of the pension rights acquired before they took up their post with the European Union’.
46      It is unequivocally clear from Article 11(2) of Annex VIII to the Staff Regulations, as it is from Article 6(1) of the Commission Decision of 3 March 2011, that the pension rights that an official is entitled to have transferred into the EU pension scheme from the pension scheme in force in a Member State are those acquired by virtue of only those activities exercised before he or she entered into the service of the European Union (see, to that effect, judgment of 5 December 2013, Časta, C‑166/12, EU:C:2013:792, paragraphs 45 and 46). Indeed, that is not disputed by the applicant.
47      In this instance, while recognising the applicant’s right to obtain the transfer to the EU pension scheme of pension rights she acquired with the ABP for the period before entry into the service of the European Union, the Commission rightly submits that it could not proceed with the transfer of the pension rights in question because the transferable capital value provided by the ABP related not only to the period before entry into the service of the European Union but also to the subsequent period.
48      If the Commission had proceeded with the transfer on the basis of the transferable capital evaluated by the ABP, it would have infringed Article 11(2) of Annex VIII to the Staff Regulations, since that article allows the transfer of rights acquired by the official only in respect of activities carried out by that official before his or her entry into the service of the European Union. Nor does the applicant dispute that.
49      In addition, according to settled case-law, it is apparent from Article 11(2) of Annex VIII to the Staff Regulations that the institution is under no obligation other than to convert into years of pensionable service to be credited under its own scheme the actuarial equivalent value calculated by the institution administering the previous pension scheme, on the basis of the rights acquired under that scheme. The method of calculating that value is a matter solely for the national or international authority administering the pension scheme to which the official was affiliated prior to entering the service of the European Union (judgment of 9 November 1989, Bonazzi-Bertottili v Commission, 75/88, 146/88 and 147/88, EU:C:1989:410, paragraphs 17 and 19). The two decisions concerning, first, the calculation of the actuarial equivalent of the pension rights acquired and, secondly, the conversion of that asset into years of pensionable service fall within different legal systems and each must be dealt with by the courts having jurisdiction under the relevant legal system (judgments of 18 March 2004, Radauer v Council, T‑67/02, EU:T:2004:82, paragraph 31, and of 18 December 2008, Belgium and Commission v Genette, T‑90/07 P and T‑99/07 P, EU:T:2008:605, paragraph 57).
50      Thus, it was not for the Commission itself to calculate the transferable capital by distinguishing the period before entry into the service of the European Union and the period from 1 January 2011 to 31 January 2015, given that that competence falls exclusively to the national or international authority that administers the pension scheme to which the person concerned was affiliated prior to entering into the service of the European Union. It is only once the Commission is in possession of the calculation of the transferable capital corresponding to rights acquired for the period before entry into the service of the European Union that the Commission is required to convert the actuarial equivalent value into years of pensionable service to be credited in its own pension scheme.
51      Finally, according to the case-law, only the national authorities and courts have the power to entertain applications or settle disputes concerning decisions calculating rights acquired by EU officials under national pension schemes and it is for the officials concerned to make such requests to, or bring such disputes before, those authorities and courts, in accordance with the procedures laid down in the applicable national law (judgment of 18 December 2008, Belgium and Commission v Genette, T‑90/07 P and T‑99/07 P, EU:T:2008:605, paragraph 57). Proceedings brought before the national courts may, in an appropriate case, give rise to a reference to the Court of Justice for a preliminary ruling.
52      Thus, in the event of the applicant intending to challenge the act by which the ABP considered that it was not possible to provide a valuation of transferable capital for the period before entry into the service of the European Union, it would be for her to bring an action before the Netherlands courts with jurisdiction under the applicable law (see, to that effect, judgment of 9 November 1989, Bonazzi-Bertottili v Commission, 75/88, 146/88 and 147/88, EU:C:1989:410, paragraph 20). In that situation, she could rely on Article 11(2) of Annex VIII to the Staff Regulations before those courts. Compliance with the Staff Regulations, which are binding in their entirety and directly applicable, is required of the Member States (judgments of 10 May 2017, de Lobkowicz, C‑690/15, EU:C:2017:355, paragraph 42, and of 4 February 2021, Ministre de la Transition écologique et solidaire and Ministre de l’Action et des Comptes publics, C‑903/19, EU:C:2021:95, paragraph 36).
53      Since the Commission does not have the competence to overcome the ABP’s refusal to provide it with the information requested by calculating itself the transferable capital corresponding to the rights acquired for the period before entry into the service of the European Union, it cannot be alleged to have ‘ignored’ 18 years and 6 months of transferable pension rights.
54      Therefore, the applicant is not justified in claiming that the Commission erred in its assessment of the facts and infringed Article 11(2) of Annex VIII to the Staff Regulations by rejecting the request for transfer of her pension rights.
55      It follows from the foregoing that the first plea in law must be rejected as unfounded.
The second plea in law, alleging contravention of the maxim nemo auditur propriam turpitudinem allegans
56      By her second plea, the applicant submits that, in rejecting her request for the transfer of pension rights for the period before entry into the service of the European Union, the Commission contravened the maxim nemo auditur propriam turpitudinem allegans, in conjunction with the principle of sincere cooperation referred to in Article 4(3) TEU.
57      The applicant submits that the ABP did not give due effect to Article 11(2) of Annex VIII to the Staff Regulations, which required it to calculate the transferable capital for the relevant period. She considers that, as guardian of the Treaties, the Commission should have ensured that the ABP complied with the Staff Regulations and with its duty of sincere cooperation by providing the Commission with the calculation required to proceed with the transfer of the pension rights.
58      In that regard, the applicant submits that the Commission could have mobilised more tools and resources to ensure the ABP’s compliance with the Staff Regulations and the duty of sincere cooperation. She maintains that the emails of 9 January 2019 and 10 June 2020, sent by the Commission to the ABP over a period of a year and a half with a view to obtaining the calculation of the transferable capital for the period before entry into the service of the European Union, cannot be described as ‘numerous enquiries’. She submits that it was not sufficient for the Commission to remind the ABP of its obligations and that it was incumbent on the Commission, under Article 258 TFEU, to raise the question with the Member State by eliciting its observations on the ABP’s failure to fulfil its obligations.
59      The applicant claims that, by laying the blame on the ABP as a basis for rejecting the request for transfer of her pension rights, the Commission has taken advantage of its own failure.
60      The Commission disputes both the admissibility and the merits of the second plea.
–       Admissibility of the plea
61      The Commission contends that, by raising for the first time the plea alleging contravention of the maxim nemo auditur propriam turpitudinem allegans and the plea alleging breach of the principle of sincere cooperation at the application stage, the applicant disregards the rule of correspondence between the complaint and the application.
62      According to the applicant, even though the plea alleging contravention of the maxim nemo auditur propriam turpitudinem allegans was raised for the first time in the application, that plea is admissible, since she became aware only at the stage of the decision rejecting the complaint of the real reason why the Commission had rejected her transfer request, namely the ABP’s inability to provide the transferable capital calculation for the period before entry into the service of the European Union.
63      According to the case-law, the rule of correspondence between a complaint, within the meaning of Article 91(2) of the Staff Regulations, and the subsequent application requires that, for a plea before the Courts of the European Union to be admissible, it must have already been raised in the pre-litigation procedure, allowing the appointing authority to know the criticisms made by the person concerned of the contested decision. That rule is justified by the very purpose of the pre-litigation procedure, which is to allow an amicable settlement of differences that have arisen between the officials and other staff in question, on the one hand, and the administration, on the other. It follows, as is also apparent from settled case-law, that claims submitted before the Courts of the European Union may contain only heads of claim based on the same matters as those forming the basis of the heads of claim put forward in the complaint, although those heads of claim may be developed before the Courts of the European Union by the presentation of pleas and arguments which do not necessarily appear in the complaint but are closely linked to it (see judgment of 15 July 2015, Rouffaud v EEAS, T‑457/14 P, EU:T:2015:495, paragraph 24 and the case-law cited).
64      In the present case, it is accepted both by the applicant and by the Commission that the second plea alleging contravention of the maxim nemo auditur propriam turpitudinem allegans is new in so far as it was not raised in the complaint of 1 March 2021.
65      It is settled case-law that, if the complainant learns of the reasoning for the act adversely affecting him or her by means of the reply to his or her complaint or if the reasoning for that reply substantially amends or supplements the reasoning contained in that act, any plea put forward for the first time at the application stage and seeking to contest the merits of the reasoning set out in the reply to the complaint must be regarded as admissible. In such circumstances, the person concerned was not in a position to know precisely and definitively the reasons underlying the act adversely affecting him or her (judgments of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 86, and of 22 May 2014, BG v European Ombudsman, T‑406/12 P, EU:T:2014:273, paragraph 40).
66      In that regard, the applicant cannot validly claim that it was not apparent from the contested decision or from the email of 8 January 2019 annexed thereto that the reason for the Commission rejecting her transfer request lay in the fact that the ABP was unable to provide the transferable capital calculation for the period before entry into the service of the European Union.
67      By holding in the contested decision that Article 11(2) of Annex VIII to the Staff Regulations allowed only the transfer of rights acquired before entry into the service of the European Union and by referring to the attached email of 8 January 2019, from which it was apparent that the ABP considered itself unable to provide the information requested by the Commission, the latter informed the applicant, with sufficient clarity, that the refusal to transfer her pension rights was based on the ABP’s inability to provide the calculation of rights acquired for the period provided for in Article 11(2) of Annex VIII to the Staff Regulations.
68      In addition, it is apparent from various exchanges between the PMO and the ABP that the applicant was aware, even before the contested decision, of the fact that the ABP was liable to consider itself unable to provide the information requested. In particular, it is apparent from an email sent by the ABP to the applicant on 21 April 2020 that, according to the ABP, ‘it is not possible to make a new declaration for the period from 1 July 1992 to 31 December 2010, as the participation ends on 1 February 2015’.
69      Therefore, the ground in the decision rejecting the complaint relating to the ABP’s inability to provide the Commission with the transferable capital solely for the period before entry into the service of the European Union cannot be regarded as a substantial amendment or supplement to the reasoning for the contested decision, within the meaning of the case-law referred to in paragraph 65 above.
70      By raising the plea alleging contravention of the maxim nemo auditur propriam turpitudinem allegans at the application stage, without having raised it at the preliminary complaint stage, and in circumstances where that plea is not sufficiently closely connected with the heads of claim set out in the complaint, the applicant has therefore failed to comply with the rule of correspondence between the complaint and the application.
71      Accordingly, the second plea in law is inadmissible.
–       Merits of the plea
72      In any event, according to the case-law, in order to rely on the maxim nemo auditur propriam turpitudinem allegans, it is necessary to establish wrongful conduct attributable to the institution which adopted the contested measure (see, to that effect, judgment of 20 January 2021, ABLV Bank v SRB, T‑758/18, under appeal, EU:T:2021:28, paragraph 170), from which that institution derives an advantage.
73      According to the first and second subparagraphs of Article 4(3) TEU, ‘pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties’ and ‘the Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union’.
74      Like the Member States with regard to the Commission, the Commission has a duty of sincere cooperation vis-à-vis the Member States (see, to that effect, judgment of 12 February 2009, Commission v Greece, C‑45/07, EU:C:2009:81, paragraph 25).
75      It is apparent from various exchanges between the PMO and the ABP that the Commission asked the ABP on three occasions to provide it with the transferable capital calculation for the period before entry into the service of the European Union, namely on 16 February, 23 November and 13 December 2018. After the ABP indicated to the Commission on 8 January 2019 that it was unable to provide the information requested, the PMO attempted, on at least two occasions, to obtain that information.
76      First, on 9 January 2019, the Commission informed the ABP that the transfer requested was not a usual pension transfer between two national States but a transfer from the Netherlands to a supranational organisation and also that the Staff Regulations were binding in their entirety and directly applicable in all Member States. The Commission also asked the ABP whether the applicant had paid contributions between 2011 and 2015 and, if so, whether it was possible to deduct the corresponding amount from the transfer.
77      Secondly, on 10 June 2020, the Commission testified to its availability for the purpose of replying to any questions the ABP may have had and requested a telephone discussion. The Commission pointed out that only a transfer of pension rights accrued before entry into the service of the European Union was possible and that, in the present case, it was not possible to grant an exception. Finally, it repeated its questions regarding the method of contribution for the period from 1 January 2011 to 1 February 2015.
78      It follows from paragraphs 75 to 77 above that the Commission drew the ABP’s attention, first, to the necessity of having a calculation of the transferable capital relating solely to the pension rights accrued in respect of the period before entry into the service of the European Union, in order to be able to make the transfer, and, secondly, to the obligation to comply with the Staff Regulations.
79      The applicant’s argument that, in addition to the various exchanges with the ABP, the Commission should have initiated proceedings against the Kingdom of the Netherlands for failure to fulfil obligations under Article 258 TFEU must be rejected.
80      According to the case-law, under the system established by Article 258 TFEU, the Commission has a discretion to bring an action for a declaration of failure to fulfil obligations, and it is not for the Courts of the European Union to assess whether it was appropriate to do so (judgment of 14 October 2010, Deutsche Telekom v Commission, C‑280/08 P, EU:C:2010:603, paragraph 47).
81      Accordingly, the Commission cannot be criticised for not having brought an action for a declaration of failure to fulfil obligations against the Kingdom of the Netherlands on account of the ABP’s inability to provide the Commission with the information requested, since the Commission is under no obligation to do so.
82      Consequently, the Commission, which provided sufficient assistance to the ABP in relation to the implementation of the provisions of Article 11(2) of Annex VIII to the Staff Regulations with regard to the applicant, was not at fault with respect to the principle of sincere cooperation and to Article 258 TFEU.
83      In the absence of fault attributable to the Commission, it is not necessary to determine whether the Commission derived an advantage. Moreover, given that the applicant does not clearly specify the nature of the advantage that the Commission was able to derive from its alleged wrongful conduct, it must be held that the existence of such an advantage has not been demonstrated.
84      It follows from all the foregoing that the second plea in law must be rejected as inadmissible and, in any event, unfounded and that, accordingly, the action must be dismissed.
Costs
85      According to Article 135(1) of the Rules of Procedure, if equity so requires, the Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his or her own costs, or even that he or she is not to be ordered to pay any costs.
86      In the present case, not only was the applicant entitled to obtain the transfer of her pension rights to the EU pension scheme for the period before entry into the service of the European Union but it is neither alleged nor established that she did not comply with the administrative procedure intended to enable her to benefit from those rights. In addition, it should be noted that the Commission acknowledges having, on two occasions, committed errors in the handling of the applicant’s case, the first time by sending her, on 22 February 2016, a provisional calculation that included a period after entry into the service of the European Union and, the second time, by adopting the decision of 18 June 2020 on the ground that ‘pension rights granted by this type of plan are not exclusively related to the exercise of a profession’. The Court notes, lastly, that neither the contested decision nor the decision rejecting the complaint mentions that challenge to the calculation of transferable pension rights carried out by the ABP falls within the jurisdiction of the national courts, when that information could have been useful to the applicant.
87      Consequently, the Commission must be ordered to pay the costs, in accordance with Article 135(1) of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders the European Commission to pay the costs.
Gervasoni
Frendo
Martín y Pérez de Nanclares
Delivered in open court in Luxembourg on 28 September 2022.
E. Coulon
S. Papasavvas
Registrar
President
*      Language of the case: English.