62005FJ0105_EN
Parties
Grounds
Operative part
Parties
In Case F‑105/05,
ACTION under Articles 236 EC and 152 EA,
Dieter Wils,
an official of the European Parliament, residing in Altrier (Luxembourg), represented by G. Vandersanden and C. Ronzi, lawyers,
applicant,
v
European Parliament,
represented by J. F. De Wachter and M. Mustapha Pacha, acting as Agents,
defendant,
supported by
Council of the European Union,
represented by M. Arpio Santacruz and M. Simm, acting as Agents,
And by
Commission of the European Communities,
represented by J. Currall and D. Martin, acting as Agents,
interveners,
THE TRIBUNAL (Full Court),
composed of P. Mahoney, President, H. Kreppel and S. Van Raepenbusch, Presidents of Chambers, I. Boruta, H. Kanninen, H. Tagaras and S. Gervasoni (Rapporteur), Judges,
Registrar: W. Hakenberg,
having regard to the written procedure and further to the hearing on 13 February 2007,
gives the following
Judgment
Grounds
1. By an application lodged by fax at the Registry of the Court of First Instance of the European Communities on 21 October 2005 (the original was lodged on the 28 October 2005), Mr Wils applied for the annulment of his salary slip for January 2005, in so far as it increases the rate of contribution to the pension scheme to 9.75% with retroactive effect from 1 July 2004 in accordance with the version of the Staff Regulations of Officials of the European Communities which entered into force on 1 May 2004 (hereinafter referred to as ‘the Staff Regulations’ or ‘the new Staff Regulations’).
Legal context
2. Article 83 of the version of the Staff Regulations of Officials of the European Communities in force before 1 May 2004 (hereinafter referred to as ‘the old Staff Regulations’ provided as follows:
‘1. Benefits paid under this pension scheme shall be charged to the budget of the Communities. Member States shall jointly guarantee payment of such benefits in accordance with the scale laid down for financing such expenditure.
…
2. Officials shall contribute one third of the cost of financing this pension scheme. The contribution shall be 8.25% of the official’s basic salary, the weightings provided for in Article 64 not being taken into account. It shall be deducted monthly from the salaries of officials.
…
4. Should an actuarial assessment of the pension scheme, carried out by one or more qualified experts at the request of the Council [of the European Union], show the contributions of officials to be insufficient to finance one third of the benefits payable under the pension scheme, the budgetary authorities shall, acting in accordance with the budgetary procedure and after consulting the Staff Regulations Committee provided for in Article 10, determine what changes are to be made to the rates of contributions or to the retirement age.’
3. 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) entered into force on 1 May 2004. From 1 May 2004, Article 83 of the Staff Regulations of Officials of the European Communities provides as follows:
‘1. Benefits paid under this pension scheme shall be charged to the budget of the Communities. Member States shall jointly guarantee payment of such benefits in accordance with the scale laid down for financing such expenditure.
…
2. Officials shall contribute one third of the cost of this pension scheme. The contribution shall be 9.25% of the official’s basic salary, the weightings provided for in Article 64 not being taken into account. It shall be deducted monthly from the salary of officials. The contribution shall be adjusted in accordance with the rules laid down in Annex XII.
3. The procedure for calculation of the pensions of officials who have spent part of their service with the European Coal and Steel Community or who belong to the institutions or organs common to the Communities, and the apportionment of the cost of such award between the European Coal and Steel Community pension fund and the budgets of the European Economic Community and the European Atomic Energy Community shall be settled by a Regulation made by agreement between the Councils and the Committee of Presidents of the European Coal and Steel Community, after consulting the Staff Regulations Committee.’
4. In addition, Regulation No 723/2004 inserted a new article, Article 83a, into the Staff Regulations according to which:
‘1. The scheme shall be kept in balance in accordance with the detailed rules set out in Annex XII.
2. Agencies which do not receive a subsidy from the general budget of the European Union shall pay into that budget the entire amount of the contributions needed to finance the scheme.
3. On the occasion of the five-yearly actuarial assessment in accordance with Annex XII and in order to ensure the balance of the scheme, the Council shall decide on the rate of contribution and any change to the pensionable age.
4. Each year the Commission [of the European Communities] shall present to the Council an updated version of the actuarial assessment, in accordance with Article 1(2) of Annex XII. Where it is shown that there is a gap of at least 0,25 points between the rate of contribution currently applied and the rate required to maintain actuarial balance, the Council shall consider whether the rate should be adapted, in accordance with the arrangements laid down in Annex XII.
5. For the purposes of paragraphs 3 and 4 of this Article, the Council shall act by a qualified majority on a proposal from the Commission as provided for in the first indent of Article 205(2) of the EC Treaty. For the purposes of paragraph 3, the Commission’s proposal shall be presented after consultation of the Staff Regulations Committee.’
5. Article 1 of Annex XII to the Staff Regulations, containing rules for implementing article 83a provides as follows:
‘1. In order to determine the contribution of officials to the pension scheme referred to in Article 83(2) of the Staff Regulations, the Commission shall, every five years starting in 2004, carry out the actuarial assessment of the balance of the pension scheme referred to in Article 83a(3) of the Staff Regulations. This assessment shall indicate whether the contribution of the officials is sufficient to finance one third of the cost under the pension scheme.
2. In preparation for the examination referred to in Article 83a(4) of the Staff Regulations, the Commission shall every year update this actuarial assessment, having regard to changes in the population as defined in Article 9 of this Annex, in the interest rate as defined in Article 10 of this Annex and in the rate of annual change in the salary scales of EC officials as defined in Article 11 of this Annex.
3. The assessment and updates shall be carried out in each year n, on the basis of the population of active members of the pension scheme at 31 December of the previous year (n-1).’
6. Article 2 of Annex XII to the Staff Regulations provides as follows:
‘1. Any adjustment of the contribution rate shall take effect on 1 July at the same time as the annual adjustment of remunerations under Article 65 of the Staff Regulations. Any adjustment shall not lead to a contribution being more than one percentage point above or below the valid rate of the previous year.
2. The adjustment taking effect on 1 July 2004 shall not lead to a contribution higher than 9.75%. The adjustment taking effect on 1 July 2005 shall not lead to a contribution higher than 10.25%.
3. The difference established between the adjustment of the contribution rate which would have resulted from the actuarial calculation and the adjustment resulting from the variation referred to in paragraph 2 shall not be recovered at any time, or, consequently, taken into account in subsequent actuarial calculations. The contribution rate which would have resulted from the actuarial calculation shall be mentioned in the assessment report provided for in Article 1 of this Annex.’
7. According to Article 4 of Annex XII to the Staff Regulations:
‘1. The actuarial balance shall be assessed on the basis of the method for calculation set out in this chapter.
2. Under the method, the actuarial value of the pension rights earned before the calculation date represents a past service liability, while the actuarial value of the pension rights that will be earned in the year of service beginning on the calculation date represents the ‘service cost’.
3. It is assumed that all retirements (except for invalidity) will occur at a fixed average age (r). The average retirement age shall be updated only on the occasion of the five-yearly actuarial assessment referred to in Article 1 of this Annex and may be different for different groups of staff.
4. In determining the actuarial values,
(a) the future changes in each official’s basic salary between the calculation date and the assumed retirement age shall be taken into account;
(b) the pension rights earned before the calculation date (the past service liability) shall not be taken into account.
5. All the relevant provisions provided for in these Staff Regulations (particularly in Annexes VIII and XIII) shall be taken into account in the actuarial evaluation of the service cost.
6. A smoothing process shall be applied to determine the real discount rate and the rate of annual change in the salary scales of officials of the Communities. The smoothing shall be obtained through a 12-year moving average for the interest rate and for the increase in the salary scales.’
8. According to Article 10 of Annex XII to the Staff Regulations:
‘1. The interest rates to be taken into consideration for the actuarial calculations shall be based on the observed average annual interest rates on the long-term public debt of Member States as published by the Commission. An appropriate consumer price index shall be used to calculate the corresponding interest rate net of inflation as needed for the actuarial calculations.
2. The effective annual rate to be taken into consideration for the actuarial calculations shall be the average of the real average interest rates for the 12 years preceding the current year’.
9. Eurostat is responsible for the technical implementation Annex XII of the Staff Regulations, assisted by one or more qualified independent experts in carrying out actuarial assessments. According to Article 13 of Annex XII to the Staff Regulations:
‘…
3. Each year on 1 September Eurostat shall submit a report on the assessments and updatings referred to in Article 1 of this Annex.
4. Any questions of methodology raised by the implementation of this Annex shall be dealt with by Eurostat in cooperation with national experts from the relevant departments of the Member States and the qualified independent expert or experts. Eurostat shall convene a meeting of this group for that purpose at least each year. However, Eurostat may convene more frequent meetings if it feels it necessary’.
10. The Council Decision of 23 June 1981 establishing a tripartite consultation procedure for staff relations (hereinafter referred to as ‘the Decision of 23 June 1981) provides as follows:
‘I. Consultation in the Consultation Committee
1. Relations between the Council and the staff, represented by the trade union and professional organisations, shall be based on a consultation procedure in which the administrative authorities of the institutions and equivalent organs participate, in the course of which all the available information and the positions of the parties shall be examined with the aim of facilitating as far as possible an alignment of positions and of ensuring that the views of the staff and the administrative authorities are known to the representatives of the Member States before firm positions are adopted by them.
2. (a) The consultations shall take place within a Committee which shall consist of:
– a representative of each Member State;
– an equal number of representatives of the staff, designed by the trade union and professional organisations;
– the chief administrative official of each institution (that is to say the Registrar of the Court of Justice [of the European Communities] and the Secretary-General of each of the other institutions) or a person designated by him to represent him.
…
3. The consultation procedure may be applied only to Commission proposals to the Council relating to the amendment of the Staff Regulations of officials of the Communities or the Conditions of Employment of other servants of the Communities or relating to the application of the provisions of the Staff Regulations or the Conditions of Employment concerning remunerations or pensions. It shall be applied to any such proposal if any member of the Consultation Committee so requests.
…
7. The Consultation Committee shall draw up a report on the results of its examination of the proposal, which it shall transmit … to the Permanent Representatives Committee for submission to the Council.’
Facts of the case
11. The applicant is an official of the European Parliament, where he has worked since 1991. Before being assigned to the Transport and Removals Unit, he was head of the Parliament’s Pensions Department.
12. After the entry into force of the new Staff Regulations, the applicant noted that the reform of the Staff Regulations was likely to entail an increase in his contribution to the financing of the Community pension scheme.
13. By letter of 23 July 2004, the applicant put 41 questions and requests to the Secretary General of the Parliament concerning, in particular, the lawfulness of the new Staff Regulations and Annex XII thereto.
14. By letter of 30 November 2004, the Parliament replied partially to the applicant but some of his questions and requests were sidestepped or not satisfied.
15. Subsequent to the reception of the abovementioned letter of 30 November 2004, the applicant noted that his salary slip for January 2005 indicated that his contribution to the pension scheme had increased with retroactive effect from 1 July 2004 and it was now fixed at 9.75%.
16. By letter dated 28 February 2005, the applicant lodged a complaint under Article 90(2) of the Staff Regulations in which he contested the answers provided by the Parliament in the abovementioned letter of 30 November 2004 and sought the annulment of his salary slip for January 2005.
17. By letter of 13 July 2005, the President of the Parliament rejected the applicant’s complaint.
Procedure and forms of order sought
18. The present action was initially registered at the Registry of the Court of First Instance and was entered as Case T‑399/05.
19. Pursuant to Article 3(3) of Council Decision 2004/752/EC, Euratom of 2 November 2004 establishing the European Union Civil Service Tribunal (OJ 2004 L 333, p. 7), the Court of First Instance made an order on 15 December 2005 referring the case to the Civil Service Tribunal. The action was registered at the Tribunal Registry as Case F‑105/05.
20. By document lodged by fax at the Registry of the Court of First Instance on 1 December 2005 (the original being lodged on 5 December 2005), the Council sought leave to intervene in the present proceedings in support of the forms of order sought by the Parliament. By order of 22 February 2006, the President of the First Chamber of the Court of First Instance granted leave to intervene.
21. By a separate document lodged by fax at the Registry of the Tribunal on 3 April 2006 (the original being lodged on 5 April 2006), the Council raised an objection under Article 114(1) of the Rules of Procedure of the Court of First Instance, applicable mutatis mutandis
to the Tribunal by virtue of Article 3(4) of Decision No 2004/752 until the entry into force of the Tribunal’s Rules of Procedure, asking that the opinion of the Council’s Legal Service of 10 April 2003, submitted by the applicant, be withdrawn from the case file.
22. By order of 20 June 2006, the Tribunal granted the Council’s application to remove the Legal Service’s opinion of 10 April 2003 from the file and reserved the costs.
23. Under Article 51(1) of the Rules of Procedure of the Court of First Instance, the Tribunal, after hearing the parties, decided to refer the case to the full court.
24. By way of measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of the Court of First Instance, the Tribunal asked the parties, the intervener and the Commission, not at that time party to the proceedings, to answer written questions and to provide it with documents.
25. By document lodged at the Registry of the Tribunal on 7 December 2006, the Commission sought leave to intervene in the present proceedings in support of the forms of order sought by the Parliament. Pursuant to Article 115(1) and Article 116(6) of the Rules of Procedure of the Court of First Instance, the President of the Tribunal, by order of 10 January 2007, granted the Commission leave to intervene in the oral procedure.
26. By fax received at the Registry of the Tribunal on 8 February 2007, the Commission requested, on the behalf of the three institutions which were party to the proceedings, that an official of Eurostat be permitted to present certain technical matters at the hearing. Having regard to the technical nature of the questions raised by the dispute, the Tribunal granted the agents of the institutions leave to be assisted for the purposes of their defence at the hearing by an official of Eurostat. When informed by the Tribunal, by fax of 9 February 2007, of the presence of that official at the hearing, the applicant’s representative expressed no objection, in particular on the day of the hearing, to the official answering technical questions put by the Tribunal.
27. The parties presented oral argument and answered the questions put by the Tribunal at the hearing on 13 February 2007.
28. The applicant claims that the Tribunal should:
– annul the applicant’s salary slip for January 2005 with retroactive effect from 1 July 2004;
– order the Parliament to pay the costs.
29. The Parliament contends that the Tribunal should:
– declare the action partially inadmissible and, for the rest, unfounded;
– make an appropriate order as to costs.
30. The Council and the Commission, interveners, support the forms of order sought by the Parliament.
Law
31. The applicant claims that the increase in the rate of contribution to 9.75% which appears in his pay slip for January 2005 has no basis in law inasmuch as that rate of contribution was fixed pursuant to Annex XII of the Staff Regulations, to which the applicant raises an objection of illegality.
32. The applicant’s objection of illegality in regard to Annex XII of the Staff Regulations is based, essentially, on five pleas in law. The first plea in law alleges that Regulation No 723/2004 was not adopted in accordance with the consultation procedure laid down in the Decision of 23 June 1981. The second plea in law alleges that Annex XII is vitiated by a manifest error of assessment of the facts, which has given rise to an error of law. The third plea in law alleges a breach of the principle of proportionality. The fourth plea in law alleges a misuse of powers. The fifth plea in law alleges a breach of the principle of the protection of legitimate expectations.
1. 1. Legal interest in bringing proceedings
33. The Commission contended at the hearing that the applicant’s personal situation is nowhere mentioned in the application, which deals only with institutional, political and trade union matters. The action was brought only in the interests of the law and, for that reason, should be declared inadmissible.
34. First of all, it is true that all the applicant’s pleas in law are based on the unlawfulness of Annex XII to the Staff Regulations, which does not individually concern the applicant, in the sense that it does not affect him by reason of certain attributes which are peculiar to him or by reason of circumstances in which he is differentiated from all other persons but concerns him only to the same extent as any other official. For that reason, the fourth paragraph of Article 230 EC renders inadmissible a direct application on the part of the applicant for the annulment of Annex XII (judgments in Case 25/62 Plaumann
v Commission
[1963] ECR 95 at 107; and Joined Cases T‑35/05, T‑61/05, T‑107/05 and T‑139/05 Agne-Dapper and Others
v Parliament, Commission, Court of Auditors and EESC
[2006] ECR‑SC I‑ A‑0000 and II‑0000, paragraph 58).
35. However, pursuant to Article 241 EC, the applicant may, by way of exception, plead the illegality of Community measures of general application which do not concern him individually, in particular the Staff Regulations, in his capacity as an official. According to the Court of Justice, that possibility even constitutes a pre-condition for the observance of the right to effective judicial protection (see, to that effect, the judgment in Case C‑50/00 P Unión de Pequeños Agricultores
v Council
[2002] ECR I‑6677, paragraph 40). That is why the requirement of a direct and individual link between the applicant and the measure of general application which he is contesting cannot be invoked against him in an action brought indirectly on the basis of Article 241 EC.
36. The admissibility of an indirect challenge to a Community measure of general application is subject only to the double condition that the individual measure being challenged was adopted in direct implementation of the measure of general application (see the judgment in Joined Cases C‑432/98 P and C‑433/98 P Council
v Chvatal and Others
[2000] ECR I‑8535, paragraph 33) and that the applicant must have an interest in challenging the individual decision which is the subject of the main action (judgment in Agne-Dapper and Others
v Parliament, Commission, Court of Auditors and EESC, cited above, paragraphs 42 and 43).
37. In this case, it is not denied that the increase in the rate of contribution appearing in the applicant’s salary slip for January 2005 was decided on by direct application of Annex XII of the Staff Regulations, or that the applicant has an interest in applying for annulment of that increase.
38. Secondly, it is settled case-law that the applicant is not entitled to act in the interests of the law or of the institutions and may put forward, in support of an action for annulment, only such claims as relate to him personally (judgment in Case 85/82 Schloh
v Council
[1983] ECR 2105, paragraph 14). However, that requirement cannot be understood as meaning that an action will be admissible before the Community Courts only if it is linked to the personal situation of the applicant alone. In the same way as the application is admissible only in so far as the applicant has a personal interest in the annulment of the contested measure (see the judgment in Case T‑310/00 MCI
v Commission
[2004] ECR II‑3253, paragraph 44, and, a contrario, the order in Case T‑179/98 Cuenda Guijarro and Others
v Council
[2000] ECR‑SC I‑A‑1 and II‑1, paragraph 60), the applicant’s claims are admissible only if they are susceptible of justifying an annulment which would be of advantage to the applicant, that is to say, one in which he has a personal interest (judgments in Case 37/72 Marcato
v Commission
[1973] ECR 361, paragraph 7, and in Case 124/75 Perinciolo
v Council
[1976] ECR 1953, paragraph 26). Similarly, an objection of illegality is admissible only if acceptance of it is likely to be of advantage to the party raising it (judgment in Case T‑135/05 Campoli
v Commission
[2006] ECR‑SC I‑A‑0000 and II‑0000 paragraph 132).
39. Thus, the Court of Justice has held that an official of the Council did not have an interest in complaining that the vacancy at issue in that case was not brought to the notice of the staff of Community institutions other than the Council, since that omission did not adversely affect him (judgment in Schloh
v Council, cited above, paragraphs 13 and 14). In its judgment in Campoli
v Commission, cited above (paragraph 133), the Court of First Instance held that since the applicant had not shown that he could benefit financially from a judgment of that court declaring unlawful the introduction of a minimum weighting of 100%, applicable to pensions, in respect of Member States in which the cost of living was the least expensive, that complaint, raised in the context of an objection of illegality in regard to Article 20 of Annex XIII to the Staff Regulations, was inadmissible.
40. In the present case, while the pleas put forward by the applicant in support of the objection of illegality in regard to Annex XII to the Staff Regulations do not solely concern his personal situation, they all allege irregularities liable to have caused him prejudice. The applicant has an interest in pleading by way of incidental submission in legal proceedings that the annex in question was not adopted in accordance with the rules of consultation fixed by the Council, that the method of calculation of his contribution to the pension scheme is manifestly erroneous and inappropriate to achieve the objective of actuarial balance of the pension scheme or is the result of a misuse of powers, and that his legitimate expectation that the rules for financing the pension scheme would be respected had to be properly protected.
41. Thus, the fact that the applicant’s claims rely on institutional, political or trade union considerations and that they do not concern only his personal situation is not such as to establish that his claims are inadmissible.
42. It follows from all of the foregoing that the plea of inadmissibility raised by the Commission must be rejected.
2. Substance
The first plea in law alleging an infringement of the consultation procedure
Arguments of the parties
43. The applicant claims in his application (paragraph 31 and footnote 9) that the procedure for the reform of the Community pension scheme had not been followed since the consultation laid down in the Decision of 23 June 1981 did not take place on the basis of a proposal from the Commission.
44. The Parliament contends in its defence that the applicant provided no evidence that the Consultation Committee could be consulted only on a formal proposal from the Commission to the Council. The Decision of 23 June 1981 makes no mention of such a requirement.
45. In his reply the applicant reiterated his argument that Annex XII to the Staff Regulations was adopted in breach of the consultation procedure laid down in the decision of 23 June 1981. Although the Consultation Committee should, by virtue of Article 3 of the Decision of 23 June 1981, have been consulted on all proposals made by the Commission to the Council, the Consultation Committee was consulted only on the version of Annex XII initially proposed by the Commission, but not on the second version proposed by the Commission which took account of the guidelines established by the Council on 19 May 2003 (the Greek Presidency compromise). The Consultation Committee was consulted directly by the Council on that compromise. Since the Commission did not submit its amended proposal until November 2003, the final version of Annex XII was not submitted by it to the Consultation Committee and, consequently, was not approved by the organisations representing staff.
46. The Council asserts in its statement in intervention that, as the Community authority with power to amend the Staff Regulations, it adopted Regulation No 723/2004 on a proposal from the Commission, as amended by document COM (2003) 721 of 18 November 2003, and after consulting the institutions concerned in accordance with Article 283 EC. In addition, the Council observes that the Commission’s initial proposal of 26 November 2002 already contained a new version of Annex XII to the Staff Regulations, which laid down a method for ensuring the balance of the pension scheme. For reasons of urgency, the Commission did not include the details of the method of calculation in that initial proposal. Following negotiations, that method was set out in the Commission’s second proposal, dated 18 November 2003. Annex XII to the Staff Regulations was therefore adopted on a formal proposal from the Commission and after formal consultation of the Consultation Committee. The 38th recital in the preamble to Regulation No 723/2004 refers to the new rules having been accepted ‘by the organisations representing staff consulted within the framework of the Consultation Committee established by the … Decision of 23 June 1981’.
47. In its rejoinder, the Parliament contends, principally, that the plea alleging an infringement of the consultation procedure was formally raised by the applicant only in his reply and that plea should, consequently, be declared inadmissible. In the alternative, the Parliament points out that a procedural irregularity will entail the annulment of a decision only if it is shown that had it not been for the irregularity the contested decision might have been substantively different. In this case, however, the applicant puts forward no argument suggesting that if the second proposal for a regulation of 18 November 2003 had been formally submitted to the Consultation Committee, the contents of Annex XII to the Staff Regulations would have been different. Finally, the Decision of 23 June 1981 does not make it mandatory, on penalty of the unlawfulness of the regulation adopted, to submit a proposal to amend a regulation to the Consultation Committee.
48. Finally, in the view the Commission expressed at the hearing, the applicant has no personal interest in challenging the regularity of the consultation procedure and that claim is, consequently, inadmissible.
Findings of the Court
49. The documents in the case-file show that an initial proposal for a Council regulation amending the Staff Regulations of Officials of the European Communities was submitted by the Commission in April 2002. That proposal did not propose any significant change to the pension scheme. By decision of 19 May 2003, the Council laid down guidelines for the reform of the pension scheme and decided to link that reform to the reform of the Staff Regulations. The consultation procedure took place from June to September 2003 on the basis of the Commission’s proposal and the Council’s guidelines. On 18 November 2003, the Commission submitted a second proposal for a regulation to the Council, taking account of the guidelines laid down by the Council and the outcome of the consultation procedure.
50. The applicant’s argument concerning the irregularity of the consultation procedure falls into two parts. The first part alleges that, contrary to the provisions of the Decision of 23 June 1981, the consultation did not take place on the basis of a formal proposal from the Commission but on the Council’s initiative and on the basis of a text drafted directly by the latter. According to the second part, the Commission’s second proposal, which included the new version of Annex XII to the Staff Regulations, was not submitted to the Consultation Committee.
51. First of all, by virtue of paragraph I 3 of the Decision of 23 June 1981, the consultation procedure may be applied only to Commission proposals to the Council relating to the amendment of the Staff Regulations or the Conditions of Employment of Other Servants of the European Communities or relating to the application of those regulations or conditions concerning remuneration or pensions. Those provisions make a consultation procedure subject to two conditions, namely, a proposal from the Commission to the Council on the subject concerned and a request from a member of the Consultation Committee. On the other hand, the purpose of those provisions is not to prevent the Consultation Committee from extending the consultation, and it would be contrary to the objective of the procedure to do so, to matters other than those contained in the Commission’s proposal and to take account of all relevant factors put forward by the trade union and professional organisations, the Member States or the institutions in order to carry out its mission of tripartite consultation. Consequently, and contrary to what the applicant claims in the first part of his argument, the Decision of 23 June 1981 does not prevent the Consultation Committee from considering, as in this case, amendments which the Council intends to ask the Commission to add to its initial proposal.
52. Secondly, as has just been pointed out, the consultation procedure is applied to Commission proposals only if a member of the Consultation Committee so requests. That provision is intended to avoid the consultation procedure being employed when the very persons who are in charge of carrying it out do not see any useful purpose in so doing. In particular, the provision permits the Consultation Committee to dispense with consideration of the Commission’s amending proposals when the initial proposal has already been the subject of a consultation which is considered sufficient.
53. In this case, the Council stated, without being contradicted, at the hearing that no member of the Consultation Committee had requested that the consultation procedure be applied to the Commission’s second, amending, proposal, submitted on 18 November 2003. Consequently, there was no legal obligation to consult on that proposal, contrary to the premise of the second part of the applicant’s argument.
54. Finally, and in addition, it is settled case-law that a procedural irregularity justifies the annulment in whole or in part of a legislative act only if it is shown that, in the absence of such irregularity, the act might have been substantively different (see, in particular, the judgment in Case T‑24/01 Staelen
v Parliament
[2003] ECR‑SC I‑A‑79 and II‑423, paragraph 53).
55. However, the documents in the case-file do not show that the fact that the Commission’s second proposal, dated 18 November 2003, was not submitted to consultation could have influenced the substance of Annex XII to the Staff Regulations. Although the applicant argued at the hearing that there had been no consultation concerning the new version of Annex XII, formalised in the Commission’s second proposal, he did not indicate precisely what elements were thereby excluded from consultation. On the contrary, it is clear from point 18 of the results of the Consultation Committee’s work, transmitted by the Council to the Tribunal by fax on 8 December 2006, that the Consultation Committee approved the actuarial method ultimately included in Annex XII to the Staff Regulations, namely, the method resulting from a Eurostat study of September 2003, modified in regard to three points. In particular, the majority of the unions indicated their agreement with the reform, as the Council pointed out at the hearing.
56. It follows that it is not established that if the consultation procedure had been applied to the Commission’s second proposal, Annex XII to the Staff Regulations would have been substantively different. Thus, even supposing that Annex XII to the Staff Regulations was affected by an irregularity in that regard, such an irregularity would not, in any event, be such as to justify the annulment of the annex.
57. It follows from all the foregoing considerations that the plea in law alleging an infringement of the consultation procedure must be dismissed, without there being any need to rule on its admissibility.
The second and third pleas in law alleging a manifest error of assessment and a breach of the principle of proportionality
58. Having regard to the close link between those two complaints, it is appropriate to consider them together.
Arguments of the parties
59. With regard, first, to the plea alleging a manifest error of assessment, the applicant claims that such an error has vitiated the choice made in Article 10(2) of Annex XII to the Staff Regulations to calculate the average effective annual rate over the 12 years preceding the current year. In the actuarial assessment carried out in 2003, Eurostat and the group of national experts agreed on a period of 20 years preceding the current year. The reference period of 12 years was adopted so that the calculation would produce a higher rate of contribution for officials. The applicant points out that the minutes of the meeting on 7 June 2004 of the group of experts responsible, under Article 13(4) of Annex XII to the Staff Regulations, for assisting Eurostat in the technical implementation of the annex (hereinafter referred to as ‘the Article 83 Working Group’) shows that the reference period of 20 years, recommended in the actuarial study carried out by the KPMG company in 1998 and accepted in the Eurostat report of 2003 in accordance with international accounting standard IAS 19, was replaced by a reference period of 12 years as a result of political negotiations. That parameter was thus not chosen in order to ensure the actuarial balance of the scheme. It is for the Parliament or the Council to furnish an explanation of the reasons for their choice.
60. The Parliament contends that the plea of manifest error of assessment entailing an error of law was not raised in the complaint and is therefore inadmissible. As to the merits, given the Council’s discretion as the legislative authority in regard to the provisions of the Staff Regulations, only a manifest error of assessment could by censured by the courts and the choice of a reference period of 12 years is not such an error. Moreover, an independent expert, Ernst & Young Actuaires-Conseils, confirmed the relevance and reliability of the actuarial procedures and hypotheses used.
61. The Council points out in its statement in intervention that although it is true that the reduction of the reference period from 20 to 12 years resulted in a reduction in the discount rate used in the actuarial assessment of 31 December 2003 (3.9% instead of 4.7%) and that that reduction in the discount rate explains in part the increase in the rate of contribution (10.43%, before the application of the 9.75% ceiling laid down in Article 2(2) of Annex XII to the Staff Regulations), that does not lead to the conclusion that the measure adopted was inappropriate to ensure the actuarial balance of the pension scheme.
62. The Council accepts that a reduction in the number of years taken into account in calculating the real interest rate makes it, and the contribution rate, more volatile, but it contends that that choice has no impact on the balance of the pension scheme in the long term since the interest rates are re-calculated each year, which permits an annual adjustment of the contribution rate in order to ensure actuarial balance. There are no grounds for claiming that the real average interest rate calculated over 12 years will be systematically lower in the future compared to the real average interest rate calculated over 20 years. The Council also points out that a period of 12 years is also used to determine the general rate of salary increases to be taken into account in the actuarial calculations under Article 4(6) of Annex XII to the Staff Regulations.
63. The reasoning concerning actuarial balance pre-supposes a long-term view. It cannot be concluded that the provisions of Annex XII to the Staff Regulations are inappropriate merely because the actuarial calculations produce an increase in the rate of pension contributions in a given year.
64. Secondly, the applicant considers that the breach of the principle of proportionality lies in the fact that the increase in officials’ rate of contribution to the pension scheme is neither necessary nor appropriate to ensure actuarial balance. In the light of the information available to the legislature, in particular the Eurostat report of September 2003, the increase in the contribution rate appears manifestly disproportionate. The Eurostat report showed that an increase in the contribution rate to 8.7% was sufficient to ensure actuarial balance. The applicant claims that it is the choice of a 12-year period for the calculation of the real average interest rate, rather than a 20-year period, which led to considerably higher contribution rate being calculated. However, according to a report commissioned by the applicant from EIS Belgium, an actuary, the 12-year period is less satisfactory.
65. The Parliament considers that the plea alleging a breach of the principle of proportionality should be declared inadmissible, inasmuch as it was not expressly advanced in the complaint and inasmuch as that complaint contained nothing which indicated to the Parliament that the applicant intended to rely on that plea.
66. In the alternative, the Parliament points out that, according to case-law, the legislature has a wide discretion in economic matters. That case-law also applies to the Staff Regulations in regard to assessing the actuarial balance of the pension scheme. Consequently, only the manifestly inappropriate nature of a measure adopted in this area, compared to the objective which the competent institutions seek to achieve, could affect the lawfulness thereof. However, the method laid down in Annex XII to the Staff Regulations and its parameters, in particular, the fixing at 12 years of the reference period for the calculation of the real average interest rate, is not inappropriate having regard to the goal to be attained, namely actuarial balance.
Findings of the Court
– The scope of judicial review of the provisions of Annex XII to the Staff Regulations
67. In principle, the Community courts have a full power of review over the substantive legality of a measure, that is to say a review which covers both the reasons of law and fact underlying a measure and its content. In such a review, the Community courts will ascertain, in particular, whether the assessments of fact made by the author of the measure are valid.
68. However, in areas which involve a complex appraisal, in particular, economic situations (see the judgment in Case C‑150/94 United Kingdom
v Council
[1998] ECR I‑7235, paragraph 54), statistical methods (see, in regard to the adjustment of weightings, the judgments in Case T‑158/98 Bareyt and Others
v Commission
[2000] ECR‑SC I‑A‑235 and II‑1085, paragraph 57, and Joined Cases T‑201/00 and T‑384/00 Ajour and Others
v Commission
[2002] ECR‑SC I‑A‑167 and II‑885, paragraph 48) or the exercise of the political responsibilities given to them by the Treaties (see the judgments in Case C‑310/04 Spain
v Council
[2006] ECR I‑7285, paragraph 96, and Joined Cases T‑125/96 and T‑152/96 Boehringer
v Council and Commission
[1999] ECR II‑3427, paragraph 74), the Community courts have recognised that the institutions enjoy a wide discretion.
69. Consequently, when they review the exercise of such a power, the Community courts must confine themselves to examining whether the measure under review contains a manifest error or misuse of power or whether the institution has clearly exceeded the bounds of its discretion (see the judgments in Case 98/78 Racke
[1979] ECR 69, paragraph 5; Case 11/82 Piraiki-Patraiki and Others
v Commission
[1985] ECR 207, paragraph 40; and Case C‑120/99 Italy
v Council
[2001] ECR I‑7997, paragraphs 44 and 45).
70. In the present case, the actuarial balance of the Community pension scheme, the detailed rules for which are laid down in Annex XII to the Staff Regulations, requires the taking into account, in the long term, of economic developments and financial variables, and requires complex statistical calculations. That is why the Community legislature enjoys a wide discretion in adopting the detailed rules to ensure the actuarial balance of the pension scheme. In addition, the Court of First Instance has held that the Council enjoys a wide discretion in restructuring the Community pension scheme, consonant with the political responsibilities given to it by the Treaties (judgment in Campoli
v Commission, paragraphs 143 and 144).
71. It follows from the foregoing that the Tribunal may examine only whether the provisions of Annex XII to the Staff Regulations, which the applicant has challenged by way of objection, in particular Article 10(2) thereof, contain a manifest error of assessment.
72. By virtue of the principle of proportionality, the legality of Community rules is also subject to the condition that the means employed must be appropriate to attainment of the legitimate objective pursued and must not go further than is necessary to attain it, and, where there is a choice of appropriate measures, it is necessary, in principle, to choose the least onerous (judgment in Case T‑162/94 NMB France and Others
v Commission
[1996] ECR II‑427, paragraph 69 and the case-law cited therein).
73. However, it is settled case-law that in an area in which the Community legislature has a broad discretion consonant with the political responsibilities given to it by the Treaty, as is the case here, the review of proportionality must be confined solely to examining whether the measure at issue is manifestly inappropriate having regard to the objective which the competent institution is required to pursue (see, to that effect, the judgements in Italy
v Council, paragraphs 44 and 45; NMB France and Others
v Commission, paragraph 70, and Campoli
v Commission, paragraph 143).
74. Having regard to the courts’ limited review of the regulatory provisions at issue, the Commission expressed concern at the hearing regarding the precision and technical nature of the written questions put by the Tribunal to the parties and the interveners and the scope of the documents requested of them, pointing out that the applicant has failed to provide evidence that a superior right has been infringed by the Community legislature in this case. In the Commission’s view, the measures of organisation of procedure ordered by the Tribunal were even liable to entail a breach of the principle of respect for the right to be heard, since there was a risk of the Tribunal itself conceiving a solution to the dispute, independently of the arguments of the parties.
75. That argument cannot prosper in the present case. Even though the judicial review exercised in this case is of limited scope, it requires the Council, as the author of the impugned act, to show before the Community courts that when adopting the act it properly exercised its discretion, which presupposes the taking into consideration of all relevant factors and circumstances of the situation the act was intended to regulate (judgment in Spain
v Council, paragraph 122).
76. It follows that the Council must at the very least be able to produce and set out clearly and unequivocally the basic facts which had to be taken into account as the basis of the contested measures and on which the exercise of its discretion depended (judgment in Spain
v Council, paragraph 123).
77. The applicant provided information in support of his pleas alleging a manifest error of assessment and a breach of the principle of proportionality which was sufficiently precise, objective and consistent to justify the Tribunal intervening directly in the search for evidence (see, to that effect, the judgment in Case C‑274/99 P Connolly
v Commission
[2001] ECR I‑1611, paragraph 113) in order to ascertain whether the Council had not made a manifestly erroneous or inappropriate use of its wide discretion.
78. The applicant supported his arguments with a total of 47 annexes to his various pleadings and also had a comparative study carried out by an actuary, EIS Belgium, of the actuarial methods used in the Eurostat reports of September 2003 and September 2004. He thus produced the maximum amount of information at his disposal and even produced a document he was not entitled to produce and which the Tribunal decided to withdraw from the file by order of 20 June 2006.
79. On the other hand, the institutions produced few, or no, documents of their own motion: the Parliament submitted no annexes and the Council annexed two documents to its statement in intervention.
80. However, two of the three actuarial studies which formed the basis of the reform of the pension scheme, namely, the study carried out by KPMG, dated December 1998, and the study carried out by Watson Wyatt Brans & Co, actuaries, dated December 2002, were not on the file notwithstanding the fact that they were mentioned on numerous occasions by the parties and cited by way of example by the Council in its statement in intervention. Similarly, the parties debated the Council’s obligations under the Decision of 23 June 1981 and the international accounting standard IAS 19 without having transmitted those texts. The Tribunal therefore asked to have those documents placed on the file.
81. In addition, since neither the Parliament nor the Council indicated in their pleadings the reasons why the reference period of 12 years had been chosen by the legislature, mentioning only the Council’s wide discretion, the Tribunal considered that it was incumbent on it to ascertain those reasons in the preparatory documents concerning Annex XII to the Staff Regulations and it accordingly asked to have those documents transmitted to it, so as to have at its disposal the requisite information for assessing whether the claim of a manifest error or the manifestly inappropriate nature of the choice of that reference period was well founded.
82. Moreover, the fact that the Tribunal considered that it lacked sufficient information concerning certain points and therefore decided, in the interest of due administration of justice, to put several written questions to the Parliament and the Council cannot be regarded as incompatible with the rights of the defence.
83. Finally, for the same reasons, the Tribunal considered it necessary, having regard to the role of the Commission, in particular Eurostat, in drafting Annex XII to the Staff Regulations to put several questions to that institution.
– The 12-year reference period
84. As can be seen from the provisions of Article 83a(1) of the Staff Regulations, read together with Article 4(1) of Annex XII thereto, the objective of the method for calculation set out in that Annex is to ensure the actuarial balance of the Community pension scheme. Under Article 1(1) and Article 5 of Annex XII to the Staff Regulations, the contribution rate for officials has to be fixed at a level sufficient to finance one third of the cost of the scheme calculated on an actuarial basis.
85. Unlike so-called ‘distribution’ schemes, where balance, defined in budgetary terms, is attained if the total resources from employer and employee contributions during the year cover the total of the benefits paid out to pensioners in the same year, the Community pension scheme is balanced, in the actuarial sense laid down in Annex XII to the Staff Regulations, if the level of the contributions paid each year by officials in active service is sufficient to finance the future amount of the rights which those officials acquired during the same year. Unlike the budgetary approach, the actuarial approach thus envisages the long-term financing of the pension scheme. Article 83(2) of the Staff Regulations provides that officials are to contribute one third of the cost of financing the pension scheme, the other two thirds being paid by the institutions.
86. Annex XII to the Staff Regulations uses the method known as ‘projected unit credit’, as required by International Accounting Standard IAS 19. According to that method, the sum of the actuarial values of the pension rights acquired by all those in active service in a given year, which actuaries call ‘service cost’, is expressed as a ratio of their total annual basic salaries. The contribution of officials is equal to one third of that ratio, having regard to the allocation of financing set out in Article 83(2) of the Staff Regulations. Calculation of the service cost requires actuarial hypotheses, that is to say, estimates of the future value of several parameters (interest rates, mortality, salary growth etc.). To take account of the values actually observed, maintaining the actuarial balance requires a periodic adjustment of those hypotheses, which Article 2(1) of Annex XII provides is to be carried out annually.
87. As all the parties and interveners have pointed out, the rate of pension contributions is, in particular, very sensitive to variations in the real interest rates used in the actuarial calculations. Taking account of low real interest rates leads to a significant increase in the rate of pension contributions. Conversely, using high a real interest rate in actuarial calculations significantly reduces the contribution rate. Bearing in mind that sensitivity of the contribution rate to real interest rates, and in order to avoid frequent, even brutal, changes in that rate, actuaries recommend the use of an average real interest rate calculated over a long period.
88. Thus, Article 10(2) of Annex XII to the Staff Regulations defines the interest rate to be taken into consideration for the actuarial calculations as the average of the real average interest rates for the 12 years preceding the current year.
89. The applicant contests the choice of that period. He rightly points out that all the actuarial studies available to the Council when it determined the method laid down in Annex XII proposed a longer period, 20 years, for the calculation of the real average interest rate. That is the case in the KPMG study of December 1998, the Watson Wyatt Brans & Co study of December 2002 and even the Eurostat report of September 2003. It thus appears that Annex XII of the Staff Regulations departs from the usual actuarial practice on that point.
90. Moreover, the measures of organisation of procedure prescribed by the Tribunal revealed that, when it adopted Annex XII to the Staff Regulations, the Council did not have at its disposal any actuarial study of the Community pension scheme carried out on the basis of a period of 12 years. On the other hand, it can be seen from the minutes of the Article 83 Working Group meeting on 7 June 2004, annexed to the reply, that the period was reduced from 20 to 12 years ‘following political negotiations’.
91. After merely arguing, in its statement in intervention, that the choice of the period of 12 years was within its wide discretion, the Council, in reply to a written question from the Tribunal, explained why it had departed from the actuarial practice followed by the three studies at its disposal: the choice of the 12-year period was the result of a compromise, approved by the organisations representing the staff, between a 20-year period, proposed by the Commission and a 5-year period desired by certain Member States.
92. The documents on the file and, in particular, the ‘Non-Paper’ of the presidency of the Committee of Permanent Representatives (Coreper), dated 23 September 2003, which was produced by the Council in response to a request for documents from the Tribunal, make it possible to supplement those explanations. Since interest rates were particularly low in the years before 2004, the average real interest rate would not have been very high if it had been calculated over a short period preceding that year. Inasmuch as that rate serves to calculate the future value of the contributions paid by officials during the current year, the lower it is, the higher officials’ contributions must be in order to ensure the actuarial balance of the system. Thus, it can be seen from the ‘Non-Paper’ of 23 September 2003 that, all other things being equal, the choice of a period of five years for the calculation of the real average interest rate would have given a contribution rate of 12.4% from 1 January, rather than 8.9% if a 20-year period had been chosen. It can be seen from that comparison that the shortening of the reference period, reduced, finally, to 12 years, was decided on in order to obtain a greater immediate increase in officials’ contributions.
93. However, that finding is not such as to cause the 12-year period to be regarded as a manifestly erroneous or inappropriate parameter for the purposes of the actuarial calculation.
94. First of all, although actuaries normally use a period of 20 years, their practice does not constitute a binding rule. In particular, the International Accounting Standard IAS 19, relied on by the applicant, is not binding on the Community legislature, does not recommend a smoothing of the real average interest rate over a given period.
95. Secondly, as has been set out in paragraph 87 of this judgment, the purpose of the calculation of the average rate of interest over a defined period preceding the current year is to avoid the contribution rate changing every year according to the annual interest rate. However, the fact of using a 12-year period rather than a 20 year one does not endanger actuarial balance.
96. Certainly, the Council itself admits in its statement in intervention that the reduction in the number of years to be taken into account in calculating the average real interest rate makes that rate, and with it the rate of pension contributions, ‘more volatile’. Since the purpose of the reference period was, precisely, to limit the volatility of the contribution rate, the 20-year period seems consequently to be more suitable than 12 years, as pointed out in the actuarial study carried out by EIS Belgium and placed on the file by the applicant.
97. None the less, the choice of a reference period of 12 years does not affect the validity of the actuarial method defined by the Council. On the one hand, the prospective value of an average real interest rate calculated on the basis of a period in the past is, in any event, approximate, regardless of the length of that period. Also, as has been said earlier, the length of the reference period is unlikely to affect actuarial balance as long as the parameter is not modified over a long period. As the Eurostat official stated at the hearing, it is only if, in the future, the length of that period was extended or reduced, in the light of changes in interest rates, in order to maintain the average real interest rate used in the actuarial calculation at a low level, and consequently, to maintain officials’ contributions at a high level, that the objectivity of the method of calculation could be called into question and that the purpose of ensuring actuarial balance on a transparent and uncontroversial basis would be affected.
98. It follows from the foregoing that the period of 12 years fixed in Article 10(2) and Article 4(6) of Annex XII to the Staff Regulations is neither manifestly erroneous nor manifestly inappropriate and no breach of the principle of proportionality can be found, without there being any need, in consequence, to rule on the objections raised in regard to those pleas.
The fourth plea in law alleging a misuse of powers
Arguments of the parties
99. The applicant claims that the method for calculation laid down in Annex XII to the Staff Regulations, allegedly drawn up to ensure the actuarial balance of the Community pension scheme, was in fact prepared in order to justify an increase in the rate at which officials were to contribute to the pension scheme. The objective of that increase was, on the one hand, to make officials bear the burden of the deficit in the pension scheme, which had mounted up because, over a long period, the Member States had failed to pay their contribution to the scheme and, on the other, to bring the Community scheme into line with the less favourable national schemes.
100. First, Annex XII to the Staff Regulations is contrary to Article 83(4) of the old Staff Regulations, which provided that officials’ contributions to the pension scheme could be increased only to maintain the actuarial balance of the pension scheme and, secondly, it is vitiated by a misuse of procedures.
101. The Member States wished to have the deficit in the pension scheme financed by officials although it was not the latter’s responsibility. The existence of a deficit prior to the reform of the Staff Regulations can be seen from the report of the general rapporteur of the Committee on Budgets of the Parliament, Ms Dührkop Dührkop, on the draft general budget of the European Union for the financial year 1999 (hereinafter referred to as the ‘Dührkop Dührkop Report’), which estimated the deficit at EUR 14.3 billion at 31 December 1997. That report noted that until 1997, the Member States had not paid, or had not fully paid, the employer’s share of contributions to the pension scheme. Until 1982, no employer’s contribution to the pension scheme was paid at all and from 1982 to 1998, that contribution was not fully paid. According to the Dührkop Dührkop Report, ‘[a]s the number of Community officials has been rising constantly, with the increase in the Community’s competences and as the Union has enlarged, …
the system’s ‘biological yield’ has been, until recently, more than sufficient to keep the system ‘in balance’, that is to say: all payments under the pension scheme did not exceed the amount of the sum of the employee’s and employer’s share. What is more, until 1982 the one third contribution of staff alone was sufficient to cover all payments under the pension scheme. In 1998 the total payments [exceeded] the theoretical total of … staff pension deductions, … the hypothetical or nominal employer’s share and … the buying in receipts of national retirement pensions rights’.
102. The method laid down in Annex XII to the Staff Regulations is the result of a ‘political deal’, as several Member States had asked that the surplus expenditure of the pension scheme should be borne by the officials. The initial proposal for Annex XII to the Staff Regulations which the Council sent to the Commission merely set out a few broad principles, but after it was discovered that the methodology fixed in 2003 did not achieve the principal objective of increasing the contribution rate, it was decided to insert in Annex XII a new, detailed, method with arbitrary parameters. That is why the increases in the contribution rate for officials provided for by the Staff Regulations cannot be derived from the studies carried out by Eurostat in 2003 in accordance with International Accounting Standard IAS 19 and their sole purpose is not to ensure the actuarial balance of the scheme.
103. In its defence, the Parliament points out that by arguing that Annex XII to the Staff Regulations is unlawful, the applicant is making a plea based on a breach of the treaties or of a higher-ranking rule than the provisions of Annex XII. However, the applicant failed to specify which higher-ranking rule has been infringed. The provisions of Article 83(4) of the old Staff Regulations are not of higher legal value than the provisions recently adopted by the Council in the form of Annex XII to the Staff Regulations. In the absence of a specific legal basis, the plea is inadmissible. If the plea is to be interpreted as a denunciation of a misuse of procedures, the Parliament points out that it was not expressly raised at the complaint stage and should therefore also be rejected as inadmissible.
104. As to the merits, the Parliament contends that the increase in the contribution rate for officials was necessary to maintain the actuarial balance of the Community pension scheme. That increase, decided on by the Council, was adopted on the basis of a proposal from the Commission itself based on a report concerning the actuarial assessment of the pension scheme. According to that report, ‘to ensure the balance of the pension scheme, the contribution rate needed to finance one third of the benefits provided for under the [Community] pension scheme … [was] 10.43% of basic salary’. The increase in the contribution rate was thus based on an actuarial study carried out in accordance with the principles of Annex XII to the Staff Regulations and generally accepted actuarial practices.
105. Finally, the Parliament points out that there is a misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, that the measure being challenged was adopted with the exclusive, or at least, main, purpose of achieving an end other than that stated. However, the applicant has not shown that the clearing of a budgetary deficit in the pension scheme was the exclusive or main purpose behind the adoption of Annex XII to the Staff Regulations, nor that the adoption of that annex was intended to achieve the exclusive or main objective of reducing the level of the Community pension scheme so as to bring it closer to the national schemes. The Parliament contends that the documents submitted by the applicant do not in any way constitute adequate evidence establishing with certainty that Annex XII to the Staff Regulations was intended to achieve objectives other than those set out. Even supposing, quod non, that there had been a ‘political deal’, as the applicant claims, the predominant purpose of Annex XII was to lay down a procedure which ensured the actuarial balance of the pension scheme.
106. In his rejoinder, the applicant claims that he implicitly raised a misuse of procedures in his complaint, although his argument was not formulated in strictly legal terms. According to case-law, it cannot be required that claims made in support of a complaint should be formulated in such terms.
107. The applicant refers to the study which he had carried out by the actuary EIS Belgium, which analysed the change in actuarial method which took place between 2003 and 2004 and the difference in the results obtained by each method. Notwithstanding the applicant’s requests, the Parliament has provided no explanation concerning the reasons for the change of method. The applicant suggested that the Tribunal should ask for the documents which explain this change of direction to be produced.
108. Contrary to the Parliament’s contention, the report drawn up in 2004 by Ernst & Young Actuaires-Conseils at the request of Eurostat does not state that the method laid down in Annex XII to the Staff Regulations is in accordance with actuarial practice. That reports merely consists of a verification of the actuarial balance as defined in Annex XII to the Staff Regulations on the basis of information provided by Eurostat.
109. The applicant disputes that the legislature can decide the method for calculating the actuarial balance in an arbitrary fashion. Since it referred to an actuarial balance, it was required to comply with the principles used by specialists in its calculation.
110. In its statement in intervention, the Council states that the method of calculation laid down in Annex XII to the Staff Regulations is solely intended to achieve the objective, common to both the old and the new Staff Regulations, of ensuring the actuarial balance of the pension scheme.
111. The Council supports the Parliament’s arguments. In addition, it considers that, having regard to the nature of the pension scheme for Community officials, the applicant’s arguments concerning the allegedly insufficient amount of the Member States’ contributions is erroneous. The Member States do not make ‘contributions’ amounting to a given percentage of the total pensions, as would have been the case with a pension fund scheme. On the other hand, the Member States have an obligation to finance the Community budget in such a way that the budget permits pensions to be paid, regardless of their amount.
112. When Regulation No 723/2004 was adopted, the Council considered that it was necessary to include a method of calculation in the Staff Regulations which ensured the actuarial balance of the Community pension scheme. However, having regard to the variability of the economic parameters to be taken into account, the Council has a wide discretion in defining that method. The applicant has not explained how the method laid down in Annex XII to the Staff Regulations goes beyond that discretion or what provision of Annex XII was adopted for the purpose of using officials’ contributions to the pension fund for purposes other than ensuring the actuarial balance.
113. The applicant is not justified in arguing, on the basis of the Eurostat report of September 2003 and in particular, the statistical analysis made in point 8.2.3.1. thereof, that the contribution rate to be applied to officials in order to ensure actuarial balance should have been lower than that finally fixed by the Staff Regulations, namely 9.25%. Certain provisions of the Staff Regulations, such as the reduction in the annual rate of acquisition of pension rights (1.9% rather than 2%), will lead to a reduction of the contribution rate only in the long term. Similarly, a large part of the changes laid down in the Staff Regulations have little immediate effect because they are not, or not entirely, applicable to officials recruited before the entry into force of the Staff Regulations. On the other hand, the change in the rules concerning the calculation of the real interest rate to be used in the actuarial calculations (average over 12 years rather than 20 years) had an immediate effect on the calculation of the contribution rate.
114. In his observations on the Council’s statement in intervention, the applicant claims that it is the overall method laid down in Annex XII to the Staff Regulations which was intended to justify an increase in the contribution rate. The contribution rate was thus fixed at 9.25%, whereas the Eurostat study of September 2003 indicated clearly that a contribution rate of 8.91% was sufficient to ensure actuarial balance and even envisaged that the entry into force of the new Staff Regulations would allow the rate to be lowered to about 8.7%.
115. The Community legislature’s discretion does not justify arbitrariness. The Council has provided no explanation of the legislature’s decision to reduce from 20 to 12 years the reference period for the calculation of the average real interest rate, defined as the average of the real interest rates during the reference period.
116. In its rejoinder, the Parliament contends that the Community courts exercise a limited review of manifest or serious errors when they review the lawfulness of a Community legislative measure which requires complex assessments. However, the EIS Belgium study, produced by the applicant, found no serious or manifest error in Annex XII to the Staff Regulations. In regard to the period of 12 years fixed in that annex for the calculation of the average real interest rate, the author of the study merely indicated that a 20-year period was more appropriate. No rule of accountancy prohibits the use of a period of 12 years in making that calculation.
117. The reason why the method used in the Eurostat report of September 2003 was not ultimately adopted is simple: the legislature exercised its discretion in choosing the method of calculating the actuarial balance.
Findings of the Tribunal
118. As a preliminary point, the argument that Annex XII to the Staff Regulations is contrary to Article 83(4) of the old Staff Regulations must be rejected. Since those provisions were repealed when the Staff Regulations entered into force, the applicant cannot in any circumstances rely on them (see, to that effect, the order in Case T‑26/97 Antillean Rice Mills
v Commission
[1997] ECR II‑1347, paragraphs 14 to 16).
119. As the Court has consistently held, a measure is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty (see the judgment in Case 8/57 Groupement des hauts fourneaux et aciéries belges
v High Authority
[1957-1958] ECR 245 at 263; see also, with regard to measures adopted by the Community legislature, the judgments in Case C‑342/03 Spain
v Council
[2005] ECR I‑1975, paragraph 64, and in Case C‑310/04 Spain
v Council, cited above, paragraph 69).
120. The objective of Annex XII to the Staff Regulations, as has been set out in paragraph 84 of this judgment and can also be seen from the 28th recital in the preamble to Regulation No 723/2004, is to safeguard the actuarial basis of the Community pension scheme while maintaining the allocation of financing of the scheme by calculating a contribution rate for officials which is sufficient to finance one third of the service cost.
121. However, the applicant argues that the measures adopted by the Council, in particular, the choice of calculating the average real interest rate over 12 years rather than 20 years, were not related to the objective which that institution claims to have sought to achieve, inasmuch as short-term budgetar y concerns took precedence over the desire to place the calculation of the actuarial balance on a more objective basis.
122. Regardless of the Council’s denials at the hearing, and however firm those denials were, it appears from the documents on the file that budgetary considerations did indeed influence the choice of the 12-year period, as has already been set out in paragraph 92 of this judgment.
123. First of all, that choice derogates from the usual practice in actuarial calculations, which is to obtain a better smoothing of the variable by calculating the average interest rate over a longer period of 20 years. Secondly, it can be seen from the study carried out by Eurostat in September 2003 that an increase in the contribution rate to 8.9%, or even 8.7%, was, having regard to the proposed amendments to the Staff Regulations, sufficient to ensure the actuarial balance of the pension scheme as of 1 January 2004, if the average real interest rate was calculated over a period of 20 years preceding the current year. Thirdly, the study carried out by EIS Belgium shows that the choice of the reference period is the essential reason why Eurostat, in its report of September 2004, was able to calculate a contribution rate of 10.43%. Finally, the preparatory documents concerning the pensions reform, in particular, the Council’s note of 7 March 2003, annexed to the application, reveal the firm intention of several Member States to increase officials’ contributions with a view to reducing the cost of the pension scheme to the budget.
124. None the less, it appears that budgetary considerations did not have a decisive effect on the method laid down in Annex XII to the Staff Regulations. Inserting an actuarial method into the Staff Regulations in itself prevents officials’ contributions being changed in the light of the budgetary situation, because the contributions for the current year are now calculated in the light of the future financing needs of the pension scheme, objectively defined by the aforementioned actuarial method.
125. As has been set out in paragraphs 95 to 97 of this judgment, the calculation of the average real interest rate over a shorter or a longer period, in itself, does not have any influence on the actuarial balance because the only function of that period is to ensure the smoothing over time of the interest rate and, consequently, the contribution rate. In addition, the choice of a period of 12 years does not undermine the smoothing function of the reference period, as the choice of a really short period would have, such as the five years proposed by certain delegations in the Council with a view to obtaining a higher contribution rate in 2004. Thus, as between a stable contribution rate ensured by a sufficiently long reference period and a greater, immediate, increase in the contribution rate, the Council chose the first objective. Consequently, it cannot be argued that the 12-year period was fixed exclusively, or even mainly, for budgetary reasons.
126. Finally, it is not clear from the Staff Regulations that, in the exercise of the legislature’s wide discretion in ensuring the actuarial balance of the Community pension scheme, any taking account of budgetary considerations would be unlawful. Such taking into account is even necessary because, in the absence of a Community pension fund, the payment of retirement benefits is charged to the Community budget in accordance with Article 83(1) of the Staff Regulations in the same way as officials’ contributions constitute income. Moreover, Article 14(2) of Annex XII to the Staff Regulations provides that on the occasion of the five-yearly actuarial assessment, Annex XII could be reconsidered by the Council not merely in regard to actuarial balance but also ‘in the light of its budgetary implications’.
127. It follows from all the foregoing that the plea alleging that the Council, when it adopted Annex XII to the Staff Regulations, was mainly seeking to achieve a budgetary objective and that, consequently, the annex is vitiated by a misuse of powers must be rejected, without it being necessary to rule on the admissibility of the plea.
The fifth plea in law alleging a breach of the principle of the protection of legitimate expectations
Arguments of the parties
128. The applicant claims in his application that the method laid down in Annex XII to the Staff Regulations infringes the principle of the protection of legitimate expectations.
129. Although the Parliament had assured its officials and other staff on several occasions that their contributions would be increased only in so far as was strictly necessary to maintain actuarial balance, the contribution was increased very much beyond that, in an artificial manner and contrary to the principle of actuarial balance. The Parliament did not therefore live up to the assurances it had given to its officials and other staff and thereby breached the expectations which the staff legitimately had in regard to it.
130. In addition, the applicant considers that by means of an unjustified increase in the contribution rate, the employer had placed the burden of the Community pension scheme’s debt on officials, although it should have been borne by the employer. For many years, employee contributions alone were sufficient to cover the payments made out of the pension scheme, while the employer did not pay the contributions necessary to finance that scheme. The applicant points out that, in a letter of 2001, the President of the Commission admitted that there were extensive vested rights corresponding to past pension contributions which were still to be paid and gave an assurance that ‘any future increase in contributions could not in any circumstances be prompted by the objective of financing those vested rights’.
131. The Parliament points out in its defence that a breach of the principle of the protection of legitimate expectations may be envisaged only where precise, unconditional and consistent assurances originating from authorised and reliable sources have given rise to a legitimate expectation on the part of the person to whom they are addressed. However, that is not the case here because the Parliament, which has no power to enact provisions of the Staff Regulations and was merely consulted in the course of the procedure leading to the adoption of Regulation No 723/2004, could not in any circumstances give unconditional assurances at the time that the pension scheme was reformed. Thus, any assurances that might have been given to the applicant by the Parliament could not give rise on his part to justified hopes that the rate of contribution to the Community pension scheme would not be increased.
132. The Parliament also contends that officials may not rely on the principle of the protection of legitimate expectations to contest the lawfulness of a new regulatory provision, particularly in a field involving constant adaptation in the light of variations in the economic situation.
133. In his rejoinder, the applicant states that it matters little that the provisions of the Staff Regulations were adopted by the Council and that the Parliament was merely consulted thereon. The Parliament’s opinion was an essential and indispensable factor in the procedure, without which the new Staff Regulations could not have been adopted. By expressing a favourable opinion on the method laid down in Annex XII, the Parliament failed to live up to the assurances it had given to its officials and other staff.
134. In any event, the applicant points out that his legitimate expectations flowed not merely from the assurances given to him by his superiors in the Parliament but also from the terms of the Staff Regulations.
135. In its statement in intervention, the Council replies to the applicant’s observation that the increase in the rate of contribution to the pension scheme could not have as its cause the financing of already vested pension rights. The adoption of the new Staff Regulations and the maintenance of the solidarity guarantee on the part of the Member States to pay the pensions sanctioned a de facto actuarial balance as of 30 April 2004. By reason of the nature of the Community pension scheme, the officials and the institution covered the pension rights of officials and other agents accrued at that date. The new Staff Regulations did not envisage the recovery of possible differences, whether positive or negative, caused by hypothetical failures to adapt the contribution rate. The method of actuarial assessment defined by Annex XII to the Staff Regulations is intended merely to ensure the contribution rate applied after 1 May 2004 would be adequate to cover the pension right which officials would acquire after that date.
136. In his observations on the Council’s statement in intervention, the applicant notes that all parties accept that officials and other agents are required to pay only one third of the contributions necessary to ensure the payment in the future of the rights which they are now acquiring and that the deficit in the past should be entirely financed by the Member States through the Community budget. The disagreement concerns the implementation of that principle. Contrary to the Council’s argument, the method laid down in Annex XII to the Staff Regulations artificially increased the contributions of officials and other agents.
137. In its rejoinder, the Parliament argues that maintenance of the actuarial balance is a complex matter requiring constant adaptation in the light of variations in the economic situation. In addition, the fact that the level of the contribution is variable can be seen clearly from Article 83(4) of the old Staff Regulations. The applicant cannot therefore rely on the principle of the protection of legitimate expectations to challenge the lawfulness of the new provisions concerning the method of calculating actuarial balance.
Findings of the Court
138. The principle of the protection of legitimate expectations has been declared in the case-law to be ‘a superior rule of law’ (judgment in Case 74/74 CNTA
v Commission
[1975] ECR 533, paragraph 44), one of the ‘fundamental principles of the Community’ (judgments in Case C‑104/97 P Atlanta
v European Community
[1999] ECR I‑6983, paragraph 52, and Case C‑17/03 VEMW and Others
[2005] ECR I‑4983, paragraph 73) or a general principle (judgment in Case C‑403/99 Italy
v Commission
[2001] ECR I‑6883, paragraph 35).
139. The principle is the corollary of the principle of legal certainty, which requires that legal rules be clear, and aims to ensure that its application is foreseeable for persons subject to Community law in the sense that its purpose, where a rule of law is amended, is to ensure that positions legitimately acquired by one or more natural or legal persons are protected (see, to that effect, the judgments in Case C‑63/93 Duff and Others
[1996] ECR I‑569, paragraph 20; Case C‑107/97 Rombi & Arkopharma
[2000] ECR I‑3367, paragraph 66; and Case T‑182/96 Partex
v Commission
[1999] ECR II‑2673, paragraph 191).
140. It is settled case-law that the right to rely on the principle of the protection of legitimate expectations extends to any individual in a situation where the Community authorities, by giving him precise assurances, have caused him to entertain legitimate expectations (judgments in Case T‑211/95 Petit-Laurent
v Commission ; T‑211/95, [1997] ECR‑SC I‑A‑21 and II‑57, paragraph 72; and Case T‑205/01 Ronsse
v Commission
[2002] ECR‑SC I‑A‑211 and II‑1065, paragraph 54).
141. Under the first branch of the plea, the applicant claims that the Parliament gave its officials assurances as to the content of the future reform which were disregarded, in breach of the principle of the protection of legitimate expectations.
142. However, only precise assurances emanating from the authority entitled to grant what it is promising may give rise to a legitimate expectation on the part of the official concerned (see the judgment in Case T‑237/00 Reynolds
v Parliament
[2005] ECR‑SC I‑A‑385 and II‑1731, paragraph 146).
143. The Parliament, on the other hand, has only a consultative role in the process of adopting or revising of the Staff Regulations. According to Article 283 EC, ‘[t]he Council shall, acting by a qualified majority on a proposal from the Commission and after consulting the other institutions concerned, lay down the Staff Regulations … and the Conditions of employment of other servants of [the European] Communities’. That is why it cannot be argued, without ignoring the existence of the provisions of the Treaties governing the division of powers between the institutions, that the Parliament could give its officials assurances concerning the reform of the Community pension scheme which would thereafter be binding on the Council.
144. Under those circumstances, the Parliament’s statements on the reform of the Community pension scheme could not have given rise to justified hopes on the part of the applicant.
145. Under the second branch of the plea, the applicant argues that his expectation that the increase in officials’ pension contributions would be much lower was based on the provisions of the Staff Regulations limiting those contributions to one third of the cost of financing the Community pension scheme and on the fact that, in the past, officials’ contributions had passed that threshold. Contrary to what the Council argued at the hearing, therefore, the expectation relied on by the applicant does not rest on a mere practice.
146. The provisions of Article 83(2) of the old Staff Regulations, which were carried over into the new Staff Regulations, already provided that officials were to provide one third of the cost of financing the pension scheme. Even before the entry into force of the new Staff Regulations, two thirds of the cost of the Community pension scheme was to be financed by the Community employer and the remaining third by the contributions of officials and other agents.
147. However, the applicant considers that the method laid down in Annex XII to the Staff Regulations undermines that allocation of financing in regard to the past.
148. The Parliament objects, in the first place, that the applicant cannot rely on the principle of the protection of legitimate expectations against Annex XII to the Staff Regulations.
149. According to settled case-law, officials cannot rely on the principle of the protection of legitimate expectations to challenge the lawfulness of a new regulatory provision, particularly in a field involving constant adjustment to the variations in the economic situation (judgments in Joined Cases T‑98/92 and T‑99/92 Di Marzio and Lebedef
v Commission
[1994] ECR‑SC I‑A‑167 and II‑541, paragraph 68, and Case T‑177/95 Barraux and Others
v Commission
[1996] ECR‑SC I‑A‑541 and II‑1451, paragraph 47). That is the case, in particular, as regards the arrangements for the Community social security scheme in relation to which the legislature also enjoys a wide discretion in regard to the need for reforms (see, to that effect, the judgment in Campoli
v Commission, paragraphs 71 and 72).
150. However, although the legislature is at any time free to make such amendments to the rules in the Staff Regulations as it considers to be in accordance with the general interest and to adopt staff regulations less favourable to the officials concerned, subject to providing a sufficiently long transitional period where necessary, that freedom is subject to the condition of its acting only in regard to the future (see the judgment in Campoli
v Commission, cited above, paragraph 85), that is to say, the new rules must apply only to new situations and to the future effects of situations which arose under the earlier rules (see, to the contrary, the judgments in Case 84/78 Tomadini
[1979] ECR 1801, paragraph 21; Case 112/80 Dürbeck
[1981] ECR 1095, paragraph 48; and, in regard to the civil service, Joined Cases T‑6/92 and T‑52/92 Reinarz
v Commission
[1993] ECR II‑1047, paragraph 85).
151. The limit thus placed on the right to rely on the principle of the protection of the protection of legitimate expectation against a new regulatory provision may not be invoked against the applicant in the present case.
152. The applicant does not claim that the formula laid down in Article 83(2) of the old Staff Regulations has been undermined for the future in breach of the principle of the protection of the protection of legitimate expectation. As has been set out in paragraph 146 of this judgment, the provisions in question were carried over unchanged by Article 83(2) of the new Staff Regulations. The applicant’s complaint in regard to Annex XII to the Staff Regulations is that it undermined the allocation of financing in regard to the period before the entry into force of the annex, that is to say, in a purely retroactive manner.
153. It is for that reason that, contrary to the Parliament’s argument, the abovementioned case-law does not apply to the present case and cannot therefore be cited as a relevant authority to deny the applicant’s right to rely on the principle of the protection of legitimate expectations. On the contrary, in its judgment in Crispoltoni
(Case C‑368/89 [1991] ECR I‑3695), the Court of Justice found an infringement of the legitimate expectations of economic operators by two regulations by reason of their retroactive effects.
154. Secondly, it must be considered whether, as the applicant claims, Annex XII to the Staff Regulations actually undermined the rule for financing the Community pension scheme in regard to the period before 1 May 2004.
155. It can be seen from the Dührkop Dührkop report that the institutions made no contribution to the Community pension scheme until 1982 and fully paid the Community employer’s share only from 1998.
156. As the Council pointed out in its statement in intervention, the actuarial method defined in Annex XII to the Staff Regulations is intended only to ensure that the rate of pension contributions to be applied after 1 May 2004 would be sufficient to cover the pension rights acquired by officials from that date. The failure to take account of the past in Annex XII has two corollaries which must be distinguished when considering the applicant’s argument.
157. First of all, the actuarial balance does not take account of the pension rights earned before the calculation date, pursuant to Article 4(4)(b) of Annex XII to the Staff Regulations. Contrary to the applicant’s argument, that provision guarantees that any deficit in the Community pension scheme which might have accumulated up to 1 May 2004 will not be borne by the officials and that an increase in the contribution rate cannot be introduced in order to finance pension rights th at officials have already earned.
158. Secondly, the Staff Regulations also do not provide for recovery of any differences, whether positive or negative, which might arise from the failure to modify the contribution rate in the past. In other words, the definition of actuarial balance adopted in Annex XII to the Staff Regulations takes no account of contributions made up to 30 April 2004 and postulates that the rights earned up to that date had been covered in accordance with the financing allocation.
159. The applicant relies on the Dührkop Dührkop report to argue that the Community employer has financed two thirds of the pension scheme only since 1998 and that officials have contributed more than one third of the financing in the past.
160. However, since the Dührkop Dührkop report was not based on an actuarial study of the pension scheme, it merely noted that the officials’ annual contribution had been in excess of one third of the annual budgetary cost of the Community pension scheme. Article 83(2) of the old Staff Regulations, which provided, in the same terms as the new Staff Regulations that officials were to contribute one third of the cost of financing the scheme, must be understood in an actuarial, rather than a budgetary, sense, as can clearly be seen from Article 83(4) of the old Staff Regulations. Those provisions signified that one third of the sum of the actuarial value of the pension rights earned by all staff in active service during the course of the year, that is to say, one third of the service cost, had to be financed by the officials.
161. The finding that for decades, while the Community pension scheme still had only a small number of pensioners, the amount of officials’ contributions was far more than one third of the budgetary cost of the scheme does not justify the conclusion that official’s contribution also exceeded one third of the service cost.
162. First of all, such a conclusion can only be based on an actuarial study. The Commission contended at the hearing, without being contradicted, that no actuarial study of the Community pension scheme had been carried out before 1998. Moreover, it is not certain that with the contribution rate fixed at 6.75% and then at 8.25%, the officials financed more than one third of the service cost in the past. Finally, even supposing that compliance with the allocation of financing could be ascertained on the basis of budgetary data and that the conclusion drawn in the Dührkop Dührkop report that the employer’s contribution was not fully paid until 1998 may consequently be accepted, it remains to be ascertained whether the alleged surplus of officials’ contributions up to that date was not compensated for by a surplus of contributions from the Communities between 1998 and 2004.
163. Consequently, it has not been established that the effect of the new rules was to undermine retroactively the allocation of financing of the Community pension scheme.
164. Thus, in presuming implicitly that that rule had been complied with before the entry into force of Annex XII to the Staff Regulations, the Council cannot be considered to have undermined the expectation which officials could legitimately have that the rule would be complied with.
165. It follows from the foregoing that each of the branches of the plea alleging a breach of the principle of the protection of legitimate expectations is to be rejected.
166. In the light of all the foregoing, the application must be dismissed as unfounded.
Costs
167. As the Tribunal held in Case F-16/05 Falcione v Commission [2006] ECR-SC I‑A‑0000 and II-0000, paragraphs 77 to 86, until the Rules of Procedure of the Tribunal, and in particular, the special provisions relating to costs, enter into force, in the interests of sound administration and justice and in order to afford individuals a sufficient degree of predictability concerning the rules relating to costs, the Rules of Procedure of the Court of First Instance alone must be applied.
168. Under Article 87(2) of the Rules of Procedure of that Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under Article 88 of those Rules of Procedure, in proceedings between the Communities and their servants the institutions are to bear their own costs.
169. Under Article 87(3) of the Rules of Procedure of the Court of First Instance, the Court may, where the circumstances are exceptional, order that the costs be shared.
170. In the present case, the Parliament answered the complaint only to a very limited extent, provided no explanation in its pleadings for the choice of the period of 12 years, notwithstanding the fact that it had been challenged in a serious and precise way by the applicant, and did not annex any documents to those pleadings in response to a well-supported argument. To put the file in order and determine the ratio legis
of the contested provisions, the Tribunal was obliged to order numerous measures of organisation of procedure.
171. Under those circumstances, the Parliament, in addition to bearing its own costs, must be ordered to pay half of the costs incurred by Mr Wils. The applicant is to bear half of his own costs.
172. Finally, pursuant to the first subparagraph of Article 87(4) of the Rules of Procedure of the Court of First Instance, the Council and the Commission, which intervened in the case, must be ordered to bear their own costs.
Operative part
On those grounds,
THE CIVIL SERVICE TRIBUNAL (Full Court)
hereby:
1. Dismisses the action;
2. Orders the European Parliament to bear its own costs and to pay half of the costs incurred by Mr Wils;
3. Orders Mr Wils to bear half of his own costs;
4. Orders the Council of the European Union and the Commission of the European Communities to bear their own costs.